New South Wales Court of Criminal Appeal CITATION : Regina v Robert Joseph DUNN [2000] NSWCCA 171 FILE NUMBER(S) : CCA 60533/99 HEARING DATE(S) : 17/3/00 JUDGMENT DATE : 15 May 2000 PARTIES : Regina Robert Joseph DUNN JUDGMENT OF : Sully J at 1; Foster AJA at 117; Carruthers AJ at 118 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0478 LOWER COURT JUDICIAL Davidson DCJ OFFICER : COUNSEL : A. M. Blackmore/M. C. Marien - Crown M. Thangaraj - Appellant SOLICITORS : S. E. O'Connor - Crown Kalmath Lawyers - Appellant Criminal Appeal Act 1912 (NSW) LEGISLATION CITED : Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) CASES CITED: House v The King (1936) 55 CLR 449 R v Georgiadis [1984] VR 1030 DECISION : Appeal dismissed; Order of learned primary Judge affirmed IN THE COURT OF CRIMINAL APPEAL 60533/99 SULLY J FOSTER AJA CARRUTHERS AJ Monday 15 May 2000 REGINA v Robert Joseph DUNN JUDGMENT SULLY J: Introduction 1 This is an appeal brought pursuant to section 5F of the Criminal Appeal Act 1912 (NSW) by Mr. Robert Joseph Dunn, ["the appellant"]. The appeal challenges an interlocutory judgment delivered on 3 September 1999 by his Honour Judge Davidson QC sitting in the criminal jurisdiction of the District Court at Sydney. The appeal is brought as of right, the learned primary Judge having certified the appeal as appropriate to be brought. The interlocutory judgment refuses an application by the appellant for a permanent stay of the trial of the appellant in the District Court upon an indictment which it is proposed to present against him in that Court. The proposed indictment contains thirty-nine counts. The first thirty-seven of those counts are charged as having been committed at various times within the overall time frame of 16 August 1979 to 19 August 1992. The remaining two counts are charged as having been committed between 1 and 31 January 1995. The stay for which the appellant applied in the District Court was limited to the first thirty-seven counts in the proposed indictment. 2 Of those thirty-seven counts in the proposed indictment, two, namely counts 17 and 37, allege the supply of a prohibited drug, namely, cannabis. The remaining thirty-five counts are all counts charging various "prescribed sexual offences" as defined by section 578A of the Crimes Act 1900 (NSW). The effect of section 578A is to prohibit the publication of the name of the complainant who is the subject of any of the counts charging "prescribed sexual offences". 3 Davidson DCJ had regard to the fact that there might well be in the future a trial of the appellant in respect of all or any of the counts in the proposed indictment, including any or all of the counts charging "prescribed sexual offences". His Honour made, thereupon and pursuant to section 578 of the Crimes Act, a non-publication order, but excluding from the ambit of such non-publication order: the fact of the making of the application to the District Court; the fact of the opposition of the Crown to the application; the fact that the application was based upon indemnities granted by the prosecuting authorities; and the general nature of those indemnities. At the inception of the hearing of the appeal this Court made an order continuing the non-publication order as thus made by Davidson DCJ in the Court below. 4 The order made by Davidson DCJ refused the appellant an all-embracing stay of the thirty-seven charges to which reference has been made. His Honour granted, however, a stay in respect of the counts numbered 1 to 11, both inclusive, of the proposed indictment. The appellant contends that his Honour should have granted a similar stay in respect of the counts numbered 12 through 37 of the proposed indictment. In that connection four specific grounds of appeal were notified. They are: "i His Honour erred in finding that the provision to the appellant of the written indemnity and written undertaking did not protect the appellant from prosecution with respect to counts 12 - 37 of the indictment. Alternatively, the term 'associated offences' should not have been limited to counts 1 - 11. ii His Honour erred in failing to find that the appellant justifiably believed that he would not be prosecuted. His Honour erred in failing to find the existence of an agreement and undertaking independent of the indemnity made by the prosecution authorities not to prosecute the appellant. Counts 1 - 37 of the indictment should have been permanently stayed on this basis. iii His Honour failed to hold that in all the circumstances of this case, the appellant is entitled to relief from punishment for counts 12 - 37. iv His Honour erred in failing to have regard to the argument of the appellant that an agreement or understanding existed between the appellant on the one hand and the prosecution authorities on the other, independent of the written indemnities given to the applicant." The Relevant Facts 5 Davidson DCJ used, in his Honour's canvass of the material facts, various pseudonyms. This judgment will continue the use of the same pseudonyms. 6 At all material times the appellant was living an actively homosexual life. His preference in sexual partners was for young boys aged, broadly speaking, between 13 and 18 years. During the course of an interview in 1990 with investigating police, the appellant described his relationship with these young persons as having been this: "Basically my attitude to the relationship with these boys was a love, affection and a desire to make their lives better, materially and scholastically. Some boys needed no more than a feeling of being wanted while with others it was more sexually orientated." 7 Of particular importance for present purposes are three of the appellant's young sexual partners. They have been given the pseudonyms: A, V and H. 8 In August 1987 the appellant was residing at premises number 4 Ivy Street, Chippendale. The complainant A was living there with him. On 21 August, two police officers, who have been given the pseudonyms X and Y, raided the appellant's premises. They were looking for a man named Brian Wain, who was an acquaintance of the appellant, and who was suspected by the police officers of living at the premises. Mr. Wain was a fugitive from Queensland, having absconded on bail from that State. The appellant, in his affidavit sworn in support of his original Stay application, describes as follows part of what happened during the course of that police raid: "During the said raid, Police officers seized a number of videos, depicting myself carrying out sexual activities with boys. The Police also seized 20-30 photographs. One of the officers played at least one of the video tapes at my home during the raid. I recall that in return for a payment to the officers of $40,000 by Wain, neither he nor I were charged with any offence. The videos and photographs were also returned to me by the officers." 9 This alleged extortion of $40,000 was effected by the police officers X and Y in conjunction with a third, and very senior, police officer, who has for present purposes the pseudonym Z. 10 At the time of the raid, the complainant A was actually upon the premises in company with the appellant. He was told by the police officers to leave the premises, and he did so without incident. 11 So far as is now relevant, nothing further happened until 31 March 1989. On that day the police officer Z and two other men were arrested and charged with having supplied amphetamine. The appellant learned of this arrest and promptly removed himself from New South Wales to Victoria. 12 On 18 October 1989 the appellant was arrested in Victoria. He was charged with having conspired to supply amphetamines. He was extradited to New South Wales. At the time of his arrest seventeen videos were seized by the arresting police. By this time the relevant police authorities had begun investigating allegations of corruption that had been made concerning the officers X, Y and Z. During the course of those investigations the authorities had got wind of the alleged $40,000 extortion. Police officers who were investigating the cases of X, Y and Z made contact with the appellant in order to explore the extent to which the appellant both could, and would be willing to, assist them in their investigations of the extortion. 13 The appellant, in his affidavit, describes as follows his initial contact in that connection: "In late October 1989, whilst I was on Remand at Long Bay Correctional Centre, I was requested to attend the Superintendent's office of the Metropolitan Remand Centre. I was introduced to a Sergeant Lola Scott of the Police Internal Security Unit. She said, 'I and Chief Inspector Ken Watson are investigating allegations which have been made in relation to three Detectives who have been alleged to have extorted $40,000 from a Brian Wain. We believe that you have knowledge of matters that may assist us in our investigations. If you co-operate, you'll have no worries about charges being laid against you as a result of your involvement in the matter. In fact, your co-operation would benefit your present situation, in that a letter will be provided to you detailing your co-operation and it will be passed to the Judge who hears your matter'. I said 'yes, I am prepared to co-operate with the police'…………………………." 14 It is a matter of record that thereafter, and on 15, 16 and 17 January 1990, the appellant took part in three separate recorded interviews with Detective Chief Inspector Watson. The appellant contends, however, that he had an unrecorded meeting with Chief Inspector Watson prior to the first of those three recorded interviews. The appellant says in his affidavit that this initial and unrecorded contact with Chief Inspector Watson took place in about October or November 1989 at the Long Bay Correctional Centre Assessment Prison. The appellant recounts in his affidavit the following conversation between him and Chief Inspector Watson: "WATSON: Would you be prepared to contact Brian Wain to convince him to come forward in order to participate in questioning by the Internal Security Unit. APPELLANT: I will have to get word to him through another friend of mine. Will he be safe in coming to see me? Are there going to be any surprises for him? WATSON: We already know where he is but it would be better for him to come forward voluntarily. Would you also be prepared to give information to us concerning the video tapes which had been seized when you were arrested? It would only be for intelligence gathering and you wouldn't be prosecuted for any information which you gave. In fact, you would not have to give evidence in Court about anyone involved with you. APPELLANT: In that case, I will help you as much as I can but am I going to be charged with any offences arising from the contents of the video tapes or any other material? WATSON: There is no way anything you say will be used against you. We will obtain a written immunity to protect you. You have everything to gain and nothing to lose. We will also be seeking anonymity for all witnesses. APPELLANT: That's a relief." 15 The appellant then deposes as follows: "As a result of this conversation, I believed that in return for cooperating with and assisting the Police, I would never face any criminal charges for matters said to have occurred before that date." 16 On 15 January 1990 Chief Inspector Watson formally interviewed the appellant. Detective Sergeant Lola Scott, also, was present. 17 The interview commences with a statement by Chief Inspector Watson to the effect that he and Detective Sergeant Scott have previously interviewed the appellant "on a number of occasions at the Central Industrial Prison concerning various matters. On those occasions you have told us that there are other matters that you would like to discuss". The appellant agrees that such is the case. 18 The appellant's formal particulars are then taken; and a formal caution, in the conventional form, is administered. That gives rise to the following exchange: "QUESTION 4: Your are not obliged to answer my questions unless you wish but whatever you say may later be used in evidence. Do you understand that? ANSWER: Yes Sir. I am telling you this with the understanding that it will not involve me in further charges. QUESTION 5: I must warn you that I am not in a position to give you an assurance that you would gain immunity from prosecution in what you are about to tell us. That is a matter for the Director of Public Prosecutions and the Attorney-General. Do you understand that? ANSWER: Yes Sir. QUESTION 6: Being aware of what I have just told you are you still desirous of taking part in this interview? ANSWER: Yes Sir. QUESTION 7: I want you to understand that anything that you do tell us will purely be voluntary on your part. Do you understand that? ANSWER: Yes Sir." 19 It is not necessary to detail the remainder of this particular interview. It canvasses extensively the appellant's homosexual lifestyle; various of the appellant's associations formed in the course of that lifestyle; and various things done by the appellant in connection with his homosexual activities. 20 On the following day, 16 January 1990, a second formal interview was conducted with the appellant by Chief Inspector Watson, Detective Sergeant Scott again being present. This interview commences with a formal confirmation by the appellant of the accuracy of the transcription that had been made of the interview of 15 January. There is then administered, once again, a formal caution; the appellant is asked whether he understands it; and he responds, simply, that he does. It is not necessary to detail the further course of this second recorded interview. 21 On the following day, 17 January 1990, Chief Inspector Watson, again in company with Detective Sergeant Scott, conducted the third of the three recorded interviews with the appellant. Once again, the interview commenced with a formal adoption of the contents of the transcription of the previous day's interview. The interview then continues with the administering, once again, of a formal caution; the appellant acknowledging simply and affirmatively that he understands the terms of the caution. 22 Chief Inspector Watson thereupon asks the appellant to examine three boxes containing a number of video tapes. The following exchanges are then recorded: "QUESTION 5: Have you made an examination of the three boxes of the video tapes that I indicated to you? ANSWER: Yes I have Sir. QUESTION 6: Do you agree that whilst making that examination I said to you 'I'd like you to pick out the tapes which depict sexual acts between children and male persons'. ANSWER: Yes Sir. QUESTION 7: Do you agree that you have picked out fifteen VHS tapes together with two video eight tapes that you believe to contain children with some showing sexual acts? ANSWER: Yes. QUESTION 8: I intend to mark those tapes one to fifteen and the two smaller tapes sixteen and seventeen. Do you understand that? ANSWER: Yes Sir. ……………………… QUESTION 9: Do you agree that I have just marked the larger tapes 1 to 15 inclusive and the smaller tapes 16 and 17? ANSWER: Yes Sir. QUESTION 10: I am now going to show you tape marked one. What can you tell me about that tape? ANSWER: I believe this is the tape that ………. (one of the police officers) ……….. picked up off my television set at Ivy Street together with two others on the day they searched the premises. I believe I recognise the tape which was one that was not commercial and therefore likely to have material involving me on it. …….(One of the police officers) …….. said 'Are these tapes boy porn?'. I said 'Yes, with the exception of that one you can see the name on it'. He then passed that tape back to me. That is the one that you just handed to me, it has 'Sherlock Holmes' on it. QUESTION 11: Would you be in a position to tell us how many tapes ……(the police officer) …..actually confiscated from your place on the 21 August 1987? ANSWER: The actual number he took away was two and he gave those two tapes back to me on the way to the bank to collect the $40,000.00. QUESTION 12: Are you able to identify from the fourteen other tapes you have indicated the two tapes that …….. (the police officer) …….seized from your premises and later returned to you? ANSWER: No Sir. I don't believe they are. More than likely I would have taken off the tape by copying the parts I wanted to condense the number of tapes I possessed in case of a similar raid. Those two tapes had clear numbers on the bottom of them and they were commercially made tapes from overseas depicting boy porn. QUESTION 13: The other tapes that you have picked out were they in your possession at 4 Ivy Street, Chippendale on the 21 August 1987? ANSWER: Some of them would have been. QUESTION 14: Would those tapes have been accessible to the police at the time of their search? ANSWER: Yes Sir. QUESTION 15: Did any of those tapes depict yourself or any other person in acts of a sexual nature with young boys? ANSWER: Yes Sir. QUESTION 16: Would they have been the tapes you discussed with us identifying yourself, Michael Hill and the young boys? ANSWER: Yes Sir. QUESTION 17: I would like you to pick out from the tapes marked 1 to 17 inclusive which tapes you are referring to. ANSWER: The only one is this one tape number 7 remaining in its original condition. …………………………….. QUESTION 19: That tape was in your possession at 4 Ivy Street, Chippendale on the 21 August 1987. Is that correct? ANSWER: Yes Sir. QUESTION 20: Would you care to tell us what is depicted on that tape? ANSWER: Pornography involving me and another boy. …………………………… QUESTION 27: Where was that movie at the time of the raid by police on the 21 August 1987? ANSWER: As far as my memory will permit it was on the television set. QUESTION 28: That tape would have been visible to the police at the time they searched your premises on the 21 August 1987 is that correct? ANSWER; Yes that is correct Sir. QUESTION 29: You mentioned another tape which depicted yourself and children. Where is that tape now? ANSWER; That is tape number 13 but it is not in its original condition. …………………………… QUESTION 35: Was that video readily accessible to police when they searched your premises on the 21 August 1987? ANSWER: No Sir it was made from parts of other videos some of which were there and freely available for the police to take. QUESTION 36: Would it be correct to say that the police officer who questioned you at your home about these matters was Detective ………..? ANSWER: Most definitely. QUESTION 37: What did you actually tell him about the videos you had in your possession? ANSWER: I confessed that they were of boy porn. QUESTION 38: Did you tell ……… that you were involved in sexual acts with boys in some of the movies that were in your possession? ANSWER: He never asked me that question. QUESTION 39: What other tapes marked 1 to 17 depict acts of a sexual nature between yourself and young boys? ANSWER: As far as I can remember none." 23 The appellant deposes in his affidavit to the effect that he was in no doubt, after his initial contact with Chief Inspector Watson in October or November 1989, that he would receive "the protection and immunity" which the appellant says was promised him by Chief Inspector Watson. The appellant deposes that he understood the reference to the Director of Public Prosecutions and the Attorney-General as entailing, not that there was any doubt as to whether or not he would receive in fact the promised immunity from prosecution, but that the promise could not be fulfilled by Chief Inspector Watson personally, and would be fulfilled by the Director or by the Attorney-General. 24 The appellant deposes, further, that on at least two occasions during the course of the three interviews, Chief Inspector Watson told him in terms that, provided he told the truth in the answers that he gave to Chief Inspector Watson, nothing that he said would be used against him. 25 The investigating police sought advice from the Director of Public Prosecutions as to the laying of charges against the three police officers X, Y and Z in connection with the alleged $40,000 payment to them. The request was passed to Mr. R. A. Hulme, a Senior Principal Solicitor in the Office of the Director of Public Prosecutions. Mr. Hulme prepared an extensive advising dated 18 January 1990. It recommended that proceedings should be commenced against the three police officers charging them with conspiracy to act corruptly in the discharge of a public duty. A further charge of misconduct as a public officer was recommended in the case of one of the three. It was recommended that the Attorney-General be advised to grant immunities to, among others, the present appellant. These recommendations were approved by the Director of Public Prosecutions, and advice accordingly was tendered to the police. The Director's advice was accepted, and proceedings were instituted accordingly against X, Y and Z. 26 On the question of immunities from prosecution, Mr. Hulme made the following observations: "The criminal involvement of Dunn and Wain relates to their participation in the payment of the $40,000 in exchange for no action being taken against them. In the course of giving evidence Dunn will be required to answer questions relating to his being a paedophile. Such evidence may not be required of Wain but it is noted that the police believe that he is also a paedophile." 27 There is a post script to the advising of Mr. Hulme. It reads as follows: "A statement has been obtained from Dunn as to the films found in his home on 21 August 1987. Dunn does not say, as I was earlier led to believe, that ……. (the police officer)…… was aware that some of the films depicted Dunn himself." 28 On 23 February 1990 Mr. P. Smythe, the Senior Professional Assistant in the Office of the Director of Public Prosecutions, prepared an advising concerning the question of granting immunity from prosecution to, among others, the present appellant. The advising contains the following passages: "3. What is the criminal involvement of the persons for whom an immunity is sought? Fisk claims he was originally approached by Dunn with a request to 'help Dunn fix the problems in Queensland'. It appears that Dunn knew of Fisk's prior dealings with Z. Fisk himself states that this was so, Z receiving monetary payment for prior favours. Fisk's criminality relates to his passing on to Z Dunn's request, and also indirectly shared in the proceeds of the conspiracy in that Z waived the balance of the debt owed by him on the Volvo. Dunn and Wain's criminal involvement relate to their participation in the payment of the $40,000 in exchange for no action being taken against them. Their criminality in this matter qua the three police officers appears minimal, the police officers being able to carry out their actions by virtue of their positions within the force. Of the 3 persons seeking immunity, Fisk's criminality appears greater than the other two. It was Fisk who first spoke to Z concerning the matter; it was Fisk who spoke to Z after the argument with the other two, and it was Fisk who visited Z on at least two occasions after the money had been obtained, he obtaining remission of his debt to Z as a result" 29 In due course, and on 3 April 1990, the Attorney-General granted, pursuant to section 13 of the Criminal Procedure Act, an indemnity to the appellant. The indemnity was not shown to the appellant at that time. It will be necessary to consider later the terms, and their effect, of the indemnity. 30 On 28 May 1990 the appellant was sentenced in the District Court in respect of the amphetamine offences to which reference has earlier been made herein. He was sentenced to imprisonment for a minimum term of 2 years and 3 months, with an additional term of 9 months. His assistance to the police in the charging of X, Y and Z was taken into account by the sentencing Judge. 31 In August 1990 a meeting took place between the appellant, Chief Inspector Watson and Mr. G. E. Smith, Deputy Senior Crown Prosecutor. Mr. Smith had been briefed to appear for the Crown in connection with the prosecution of X, Y and Z. 32 Mr. Smith handed to the appellant the indemnity which had been signed by the Attorney-General on 3 April 1990. The appellant read it and was satisfied that it gave him the protection against prosecution which the appellant says Mr. Smith told him was the effect of the indemnity. The appellant says in his affidavit earlier herein referred to that it was his understanding "that I could not be charged with any offence arising out of my illicit activities with young boys that might have been disclosed by me during the course of the said proceedings, and in particular in relation to any potential questions asked of me during cross-examination. In short, I believed that it was an immunity for every act I had committed up until my entering the witness box and it is on this basis that I gave evidence". 33 Mr. Smith himself swore an affidavit in connection with the proceedings in the Court below. In paragraph 15 of that affidavit Mr. Smith deals with his first meeting with the appellant. Mr. Smith deposes: "At this stage it was my view that he was protected against prosecution for evidence he gives about his own participation in corrupt activity of paying the defendants to avoid being charged for harbouring Mr. Wain and over his possession of pornographic films and videos and his sexual activities with A who was then aged 14 and who was living with him. I do not recall whether I went into such detail with him. He seemed to understand my explanation and the document's intent." 34 It is convenient to note at this point that the learned primary Judge made a specific finding, favourable to the appellant, that "there was a basis for the applicant believing that at least those matters adverted to by Mr. Smith in para 15 of his affidavit were encompassed within the scope of the indemnity of 3 April 1990". 35 On 14 August 1990 committal proceedings against X, Y and Z commenced. Each of X, Y and Z was charged with having conspired with the other two of them "together and amongst themselves that they then being members of the New South Wales Police Force should act corruptly in the discharge of their public duty". A second charge was laid against X, being a charge that he had misconducted himself whilst acting as a police officer in that he had wilfully given false information to a Justice of the Peace in connection with an application for a search warrant in respect of the premises at 4 Ivy Street, Chippendale. 36 At the commencement of the proceedings an application was made for leave to take the appellant's evidence under the cover of a pseudonym "Mr Roberts". The application was opposed, and the appellant was called thereupon to give evidence in support of that application. He was shown the indemnity. He was asked whether he had "received an indemnity from the Attorney-General of New South Wales in relation to the evidence you're going to give in these proceedings?"; and the appellant responded: "I have". 37 Mr. Smith, examining for the Crown, then turned to the appellant's domestic situation as at 21 August 1987. He elicited the fact that the appellant had been living at the Ivy Street premises with A. He was asked what had been his understanding of A's age as at August 1987 and he replied "about 14". 38 Thereupon, the learned Magistrate intervened. What then occurred is best explained by quoting from the relevant transcript: "BENCH: Mr. Roberts you've been granted immunity from prosecution but the immunity that has been given to you is very specific in terms of paragraph (a), in other words in dealing with the money that was allegedly received by various people. However there may be other matters that may arise either in chief or in cross-examination where you feel that to answer the question either in chief or in cross-examination may incriminate you, in other words incriminate you in relation to some other matter. I am not here to give you legal advice other than to say to you that should you say something that doesn't relate to the matters in the immunity, you may be liable to prosecution, that is the evidence that you may give in those matters may be used in evidence against you at a hearing. Under the Crimes Act you've got the right not to say anything which may tend to incriminate you in any criminal proceedings. Do you understand that? ANSWER: I do Sir and I also understand the fact that -- - QUESTION: No, but do you understand that? ANSWER: Yes Sir. QUESTION: Do you need time to seek legal advice? ANSWER: I think so Sir." 39 There then ensued an exchange between the learned Magistrate and Mr. Smith, the latter indicating a wish to canvass what the learned Magistrate had said to the appellant. Eventually, the learned Magistrate excused the appellant until after the luncheon adjournment. In so excusing the appellant, the learned Magistrate said: "I may be incorrect in my assuming that this particular doesn't cover all situations but in any event I'll tell you again at 2 o'clock what we're after". 40 There were then some further exchanges between the learned Magistrate and Counsel. These exchanges led to Mr. Smith saying this: "……………………..I don't wish to cavil with what your Worship has done. I'll seek some instructions. I'm sure the matter can be clarified. I'm not sure if it can be clarified sufficiently over the lunch hour to have a new indemnity. I'd be arguing that this indemnity does protect him for all his evidence in chief. Admittedly there is another argument that says that it doesn't. So I wish to clarify it at lunch time. I'm sure that those instructing me had no intention of not giving him full protection. It appears that they may well even have left out a paragraph that usually appears in these documents. So I was wrong in assuming that the indemnities were O.K. So I wonder if we could just adjourn now and I'll go and get some further instructions on that aspect your Worship. It may well be that we can't continue with this witness till we get that matter clarified to save any further argument. ………………" 41 When the Court reconvened after the luncheon adjournment, Mr. Smith informed the learned Magistrate that he had sought further instructions, "and the upshot of that is that there will be an application for a wider immunity or undertaking made this afternoon". After some further brief exchanges, the learned Magistrate had the following exchanges with the appellant: "BENCH: Mr. Roberts the situation as I understand it is this that there have been some discussions as to the coverage of the indemnity that has been given to you in relation to these matters and before the Court. I took the view that this indemnity did not cover you from all prosecution and then I chose to give you a warning in relation to the evidence that you may wish to give in these proceedings but nevertheless may have the effect of carrying over to some other offence and I indicated that you had the right to refuse to answer those questions if you believe that they would tend to incriminate you in those other matters. In the meantime Mr. Smith who is the Crown representing the DPP in these prosecutions has had certain discussions with his seniors and he was advised that there will be an approach made either today or tonight to the relevant persons, I would imagine one would have to be the Attorney-General, for another indemnity to be typed in similar terms as the one you already signed with the inclusion of a further clause that would cover as I understand it all prosecutions that arise from these proceedings. Now this is your choice, it's no-one else's. If you feel that you wish to proceed with your evidence today on the basis of what's been put to me then you're quite free to do so bearing in mind of course that you still have that right to say nothing. My understanding is that as I have already indicated, certain matters will be before the court tomorrow in addition to what's here today or should you choose, you may wish to receive legal advice as to your position and stand down from the witness box until tomorrow. Now it's a matter for yourself what you want to do. WITNESS: Your Worship I'd rather wait and see what else is written in the indemnity please." 42 The appellant was thereupon excused further attendance on that day. 43 On 14 August 1990 Mr. Viney QC, Senior Deputy Director of Public Prosecutions, signed a submission to the Attorney-General. The submission sought the grant of an undertaking of the kind contemplated by section 14 of the Criminal Procedure Act. In support of the application, and referring, among others to the present appellant, Mr. Viney put the following submissions: "There is no real argument that these witnesses are paedophiles. The youth ……..(A)……who is now 17 going on 18, was residing on and off with Dunn since the age of 13 or 14. There is good reason to believe he engaged in homosexual conduct with Dunn at least. Mr. Smith, Crown Prosecutor, seeks to lead evidence from Dunn and the others of the real situation, which may involve admissions of such conduct, so that the truth of the whole circumstances leading to the arrest and subsequent misconduct by the Police is not left to speculation. To do so may leave the witnesses open to incriminating themselves in such offences which are really not covered by the existing immunity - it covers only the offences alleged against the Police 'and any other associated offences'. Prior homosexual activity would not come under that description. It needs to be said that there is no other evidence available of any homosexual offences by these witnesses. It would only be by admission in the witness box that the basis for laying charges would be established. I concede there is a reluctance to grant 'use' indemnities, but there are occasions such as the present where I believe it is appropriate to do so. The offences charged against the Police here allege gross misbehaviour by serving Police officers. In my view the extension of these immunities to cover the possible offences mentioned is appropriate in these circumstances." 44 On 15 August the Attorney-General approved the recommended extension of the protection to be afforded the appellant in connection with the evidence which it was proposed to lead from him in the then current committal proceedings. 45 The requisite document was prepared accordingly and was signed by the Attorney-General. It will be necessary to return later to the terms, and the effect of the terms, of the document thus signed by the Attorney-General. 46 Later on 15 August Mr. Smith recalled the appellant to continue his evidence in the committal proceedings. Mr. Smith showed the appellant the recently executed document and directed the appellant's attention in particular to the last paragraph on the first page of the document. Mr. Smith asked the appellant: "Do you understand that any evidence you give in these proceedings will not be used in evidence against you?". The appellant responded: "Yes sir". 47 The appellant's evidence then continued in the usual way. When he came to be cross-examined by Mr. Beale of Counsel, the following exchange occurred: "QUESTION: Concerning the indemnity you were shown a little while ago, I take it you appreciate that it differs from the other indemnity? ANSWER: Yes sir. QUESTION: In that the other indemnity was an undertaking not to prosecute you for offences arising out of the matters that bring you here, that is the alleged transfer of money and so on? ANSWER: That's right sir. QUESTION: And the new indemnity if I can call it that is merely an undertaking that any answer you give in these proceedings will not be used in evidence against you? ANSWER: Yes sir. QUESTION: And it is not an immunity from prosecution for acts of paedophilia, you understand that don't you" ANSWER: No sir I don't. I was under the impression I was immune. QUESTION: Well this document is not an immunity, it is an indemnity. OBJECTION. QUESTION WITHDRAWN BENCH: QUESTION: In any event if Mr. Beale takes that interpretation in relation to that document I've warned you yesterday that you don't have to answer his questions regarding anything that you believe may incriminate you? ANSWER: Yes sir. QUESTION: See what I mean, so you've got two ways. If you accept Mr. Beale's submission just don't answer his question. If you accept Mr. Smith's well please feel free to do so if you want to. I'm not here to solve either of your dilemmas." 48 The course of the committal proceedings prior to 16 October 1990 had been directed, so far as is now relevant, to the question whether the appellant should be permitted to give evidence under the cover of the pseudonym. On 16 October 1990, Mr. Smith wished to recall the appellant in order to commence the taking of the appellant's evidence as to the substantive matters charged against X, Y and Z. Prior to the commencement of the day's sitting, Mr. Smith, his instructing solicitor, and the appellant conferred. At the hearing before the learned primary Judge there were hotly contested issues of fact concerning what actually transpired at that meeting. Set out hereunder is the version given by Mr. Smith in an affidavit sworn by him on 14 May 1999 and in connection with the proceedings in the Court below. "22………………… I did not have any conversation with him about a proposed new indemnity. The first time I spoke to Mr. Dunn, out of court after he was stood down on 14 August 1990 was at about 9.50 am on Thursday 16 August 1990. Annexed hereto and marked "E1, E2 and E3" are copies of handwritten notes and a typed transcript of those notes of that conference made by Ms Beatrice Scheepers, a DPP solicitor who was my instructing solicitor in the case at that stage. I accept these notes as accurate. They have assisted my recall of when the conference occurred and what was said in it. In that conference, I explained both indemnities to Mr. Dunn. As to the first indemnity of 3 April 1990, I advised him that the last paragraph on page 1 was the important part, that the effect of that paragraph was that provided he complied with the conditions of the indemnity, he could not be prosecuted in connection with the bribery or associated offences which he would describe in his evidence. As to the second indemnity of 15 August 1990, I advised him this was an undertaking not a full indemnity and it meant that the evidence he gave of any child sexual assault offence could not be used against him. However I warned him that the protection did not cover him if someone in say 5 years time complained about incidents of child sexual assault committed by him. Prosecutors could not in such a case use his evidence in the ……. (X, Y and Z) …… proceedings against him, but they could use other evidence of those assaults against him. I stressed that it was not the intention of the Director of Public Prosecutions or me or his officers or of the Attorney General or his officers to trap him, otherwise we wouldn't have tried to have his name suppressed. It was not our practice to prosecute indemnified witnesses, unless they commit perjury. I advised that if he refused to give evidence he could still be prosecuted if there was other evidence. I told Mr. Dunn that if he wanted to get private legal advice, we could arrange it, that we didn't want the defendants' lawyers to arrange it. To the best of my recollection Mr. Dunn did not ask for us to arrange independent legal advice or say that he was seeking such advice. This was consistent with the instructions that I had earlier passed on to the Court, that he did not want independent legal advice. I re-emphasised that the DPP and Attorney General have total power as to whether a prosecution proceeds. I stressed that we didn't know of any charges being contemplated against him. This was my belief at the time. I warned him that I couldn't give him a cast-iron guarantee that he would not be prosecuted in the future, but it would be a very rare occurrence if he was. It was my belief based on my previous experience with indemnified witnesses that if Mr. Dunn gave his evidence truthfully and consistent with his statement there was only a very small chance that he would be prosecuted for any offences disclosed by that evidence, using the evidence as source material upon which to base an investigation. Mr. Dunn appeared satisfied by these explanations and indicated he was willing to give evidence in support of the charges." 49 The learned primary Judge, when he came to deal with this aspect of the evidence, made the following findings of fact: "In my view the existence of this contemporary record in the absence of any challenge to the notes by way of cross-examination of ……(the particular instructing solicitor) ……leads me to the firm conclusion that the evidence of Mr. Smith as to what took place is to be preferred to what appears in para 45 of the applicant's affidavit assuming of course that he is referring to the same incident. Even if he were referring to some other visit which he asserts took place between himself and Mr. Smith, I accept Mr. Smith's evidence that he gave no such blanket assurance to the applicant as is set forth in para 45 of the applicant's affidavit." 50 I see no basis upon which this Court would be entitled to hold that the learned primary Judge was not entitled to make those particular findings. 51 Bound up with the foregoing controversy about the meeting between Mr. Smith and his instructing solicitor with the appellant on the morning of 16 August 1990, was a further controversy arising from a suggestion made by the appellant in the Court below that he had been deprived of a proper opportunity of obtaining independent legal advice; and, in particular, that he had been wrongly prevented from taking advantage of an opportunity, then in fact available to him, to obtain such independent advice. 52 The learned primary Judge dealt with that controversy as follows: "I reject the suggestion that Mr. Smith may have been a party to any concerted attempt to deny the applicant the benefit of any independent legal advice which might have been available. This I find to be inconsistent with ……(the instructing solicitor's) …….note. The clear fact is, however, that having been told of his right to have legal advice by the learned Magistrate and having been offered to have independent legal advice arranged for him by counsel appearing for the Crown, the applicant, who in my view was capable fully of understanding the proceedings and their implications for him, made no attempt to himself raise the matter again with the learned Magistrate." 53 Once again, I see no basis upon which this Court could properly hold that such findings were not open to the learned primary Judge. 54 Against the foregoing background, the appellant gave, on 16 October and on subsequent days, evidence relevant to the substantive charges against X, Y and Z. In the course of giving that evidence, the appellant said that at the time of the raid on 21 August 1987, A had been at the premises, but had de-camped when told by the police to do so. The appellant gave evidence that there had then been eight or nine videos on top of the television set in the premises. He said that they included one video in particular which showed him engaging in homosexual acts with A. As to the seventeen videos which had been in his possession when arrested in October 1989, the appellant said that two only of them had been at the Ivy Street premises at the time of the raid on 21 August 1987. The appellant gave evidence that he and A were shown on both of those tapes in the course of performing various homosexual acts. No other particular minor other than A was identified in the appellant's evidence as having been involved with him in the performance of homosexual acts. 55 On 6 June 1991 X, Y and Z were committed for trial. X and Y were tried jointly; and Z was tried separately. The appellant gave evidence at both trials. X, Y and Z were all acquitted. 56 On 18 January 1992 the appellant was released from gaol upon the completion of his minimum term of 2 years and 3 months. 57 While the foregoing events were unfolding, and in particular during the period which elapsed between the date of committal and the date of trial of X, Y and Z, police were investigating actively and in depth the alleged homosexual paedophilia of a number of persons of whom the appellant was one. Those investigations brought to light material suggesting that the appellant had engaged in unlawful homosexual acts with two under-age boys who have been given for present purposes the pseudonyms V and H. The investigating police considered that the material available to them clearly implicated the appellant in offences of that character. The police were concerned, however, that the indemnity and undertaking which had been given to the appellant by the Attorney-General might entail that the appellant could not be prosecuted in respect of the offences involving V and H. The police sought, therefore, advice from the appropriate Crown sources. Several people, Mr. Smith among them, were asked for their views. The views thus expressed showed a very sharp divergence of opinion as to the nature and scope of the indemnity and of the undertaking. These matters are treated in detail in paragraph 34 of the judgment of the learned primary Judge, and it is not necessary for present purposes to repeat that detail here. 58 As it happens, it was decided not to prosecute the appellant in connection with the particular matters involving V and H. This was due, principally, to the fact that V and H both indicated that they did not wish to give evidence in any such proceedings brought against the appellant. 59 While the police investigations concerning the V and H matters were current, Chief Inspector Watson had a conversation with the appellant in connection with those current investigations. The appellant and Chief Inspector Watson, in their respective evidence given at the primary hearing, both accepted that there had been such a meeting between them. There was, however, a sharp divergence between their two versions as to what actually took place. These matters are canvassed in all necessary detail in paragraph 53 of the judgment of the learned primary Judge. Once again, it is not necessary to repeat for present purposes the fine detail of what is there set out. It is sufficient to understand that the version of the appellant propounded, essentially, three propositions: first, that Chief Inspector Watson had, in effect, counselled and encouraged him to refuse to answer any of the questions which Chief Inspector Watson was proposing to put to him about the V and H matters; secondly, that he, the appellant, made it perfectly clear to Chief Inspector Watson that he would regard any proceedings taken against him in connection with the V and H matters as being a breach of the engagements of the Attorney-General as witnessed by the indemnity and the undertaking that he had been given; and thirdly, that Chief Inspector Watson had repeatedly reassured him that he would not in fact be charged in connection with the V and H matters. 60 Of Chief Inspector Watson's version, it is sufficient to understand that it emphasised that the appellant had been advised that the decision as to any prosecution in connection with the V and H matters was entirely a matter for the Director of Public Prosecutions; and that Chief Inspector Watson denied flatly the substance of the things attributed to him by the appellant in the latter's version of their meeting. 61 The learned primary Judge, at the conclusion of paragraph 34 of his Honour's judgment, summed up as follows the views which his Honour had formed about the foregoing matters: "In the result no prosecution in respect of the V and H matters was constituted. The significance of this however is that up and until the applicant gave evidence in 1994 at the trials of X, Y and Z there was continuing controversy within the Office of the Director of Public Prosecutions of the scope of the indemnity of 3 April 1990 and the fact that Mr. Watson sought to question the applicant about the V and H matters gave clear indication to him before he gave evidence at the trial that he was at risk of prosecution in respect of some sexual matters although his evidence relating thereto could not be used against him." 62 In my opinion, this assessment was entirely open to his Honour on the evidence before him. 63 As previously indicated, the appellant gave evidence at the joint trial of X and Y and at the subsequent and separate trial of Z. Each of those trials was prosecuted for the Crown by Mr. C. Maxwell of Queen's Counsel. Both Mr. Maxwell and the appellant gave evidence of a conversation which they had had prior to the calling of the appellant as a witness in, as his Honour found by an inference which, in my opinion, was open to him, the first of those two trials. 64 Once again, there was a sharp divergence between the appellant and Mr. Maxwell as to what had passed between them. The appellant contended that Mr. Maxwell had asked him whether he understood the meaning of the indemnity that he had been given, and that he had responded in these terms: "Greg Smith has advised me about its meaning and effect, I believe that I cannot be prosecuted now or in the future." 65 According to the appellant, Mr. Maxwell had responded: "That is correct." 66 Mr. Maxwell denied that any such conversation had passed between him and the appellant. His recollection was that he had not spoken to the appellant about the extent of the indemnity and of the undertaking. Mr. Maxwell's notes suggested to him that the appellant had, rather, told him that there had been a threat made to his, the appellant's, life, and that he, the appellant, wished to do something about it, feeling so strongly about the matter that he was prepared to go on to give evidence in the pending trial. 67 In February 1996 police came into possession of 72 video cassettes after the arrest of one David Miller, now deceased. Material on these cassettes showed the appellant engaged in homosexual activities with two under-age boys. These depicted activities are the subject of certain of the present charges. 68 On 10 April 1996 the police came into possession of 223 video cassettes taken from a location at Mildura in Victoria. Those videos included footage of the appellant engaging in homosexual activities with the complainants A, V and H and with other complainants who are named in certain of the present charges. 69 It remains, in order to round out the present summary of the relevant facts, to note that the appellant left Australia on 8 December 1995; failed, in March 1996 to respond to a summons to give evidence before the Royal Commission then current into the New South Wales Police Service; was arrested in Honduras on 10 November 1997 pursuant to warrants for his arrest which had issued on 1 August 1996; was returned to Australia on 31 March 1998 after extradition from the United States; and was committed for trial on 15 June 1998 upon 39 counts involving, variously, 10 named victims. 70 Before proceeding to a consideration of the particular grounds of appeal, there are three introductory points to be made: · Grounds of Appeal ii, iii and iv seem to me to express in three different ways a single proposition, namely: that the learned primary Judge either did not consider at all, or did not consider properly upon the evidence available to his Honour, a contention of the appellant that the relevant Crown authorities had engaged, quite independently of the Attorney-General's indemnity and undertaking, in a course of conduct such as to constitute the present prosecutions an abuse of process. I propose, therefore, to consider together those three grounds of appeal. · In connection with the consideration of any and all of the notified grounds of appeal, it is to be borne carefully in mind that the proper function of this Court is a limited one. The power of the learned primary Judge to grant the stay sought by the appellant was a discretionary power. It does not fall, now, to this Court to exercise afresh and for itself that discretion to stay the proceedings. The relevant principles are trite; and they are conventionally stated in the terms employed in the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 449 at 504, 505. Given the circumstances of the present appeal, and given the course of argument on the hearing of the appeal, it might be useful to re-state those principles in full and as follows: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." · It needs to be kept in mind that the foregoing summary of facts could not hope to, and does not purport to, reproduce or canvass the fine detail of the entirety of the very large amount of material that was placed before the Court in connection with the argument of the present appeal. The summary attempts to do no more than to give an intelligible resum of the salient features of that bulk of material. In the following consideration of the particular grounds of appeal, there will be reference, as the event requires, to additional particular relevant facts. Ground of Appeal i 71 The indemnity signed by the Attorney-General on 3 April 1990 is in the following form: "Indemnity WHEREAS proceedings are pending against ……(X, Y and Z) …… for offences arising out of the receipt of a sum of money or part thereof which was withdrawn from the bank account of ROBERT DUNN on or about 21st August 1987, contrary to the law of New South Wales; AND WHEREAS one ROBERT JOSEPH DUNN is required as a witness against the said ……..(X, Y and Z) ……. to adduce all the facts to his knowledge at the hearing of the said proceedings; AND WHEREAS in order to adduce such facts, the said ROBERT JOSEPH DUNN may render himself liable to prosecution for an offence under the law of New South Wales; AND WHEREAS I, John Robert Arthur DOWD; Her Majesty's Attorney General for the State of New South Wales, am satisfied that for the effective prosecution of the said …….(X, Y and Z) ……. and for the due administration of justice, it is necessary to have resort to the evidence of the said ROBERT JOSEPH DUNN and for that purpose the said ROBERT JOSEPH DUNN should be indemnified as hereinafter appears. NOW THEREFORE I, the said John Robert Arthur DOWD, DO HEREBY UNDERTAKE that no criminal proceedings in the nature of the offences aforesaid or any associated offences shall be had or taken against the said ROBERT JOSEPH DUNN in relation to any part had by him in the commission of the offences by the said ……. (X, Y and Z) ……. which may render the said ROBERT JOSEPH DUNN liable to prosecution and of which he might give evidence in the said proceedings; PROVIDED that the said ROBERT JOSEPH DUNN gives his active co-operation including the giving of evidence truthfully and frankly and without embellishment and withholding nothing of relevance in the proceedings aforementioned in which he is required to give evidence in relation thereto. Dated at Sydney, this 3 APR 1990 day of 1990" 72 The authority to grant an indemnity in those terms derived from section 13 of the Criminal Procedure Act 1986 (NSW). That section reads relevantly: "(1) The Attorney General may, if of the opinion that it is appropriate to do so, grant a person an indemnity from prosecution (whether on indictment or summarily) - (a) for a specified offence; or (b) in respect of specified acts or omissions. (2) If the Attorney General grants such an indemnity, no proceedings may thereafter be instituted or continued against the person in respect of the offence or the acts or omissions. (3) Such an indemnity may be granted conditionally or unconditionally." 73 The undertaking signed by the Attorney General on 15 August 1990 is in the following form: "Indemnity WHEREAS proceedings are pending against …..(X, Y and Z) …. hereinafter called the defendants, for offences arising out of the receipt of a sum of money or part thereof which was withdrawn from the bank account of ROBERT DUNN on or about 21st August, 1987, contrary to the laws of New South Wales; AND WHEREAS one ROBERT JOSEPH DUNN is required as a witness against the said defendants, to adduce all the facts to his knowledge at the hearing of the said proceedings; AND WHEREAS in order to adduce such facts, the said ROBERT JOSEPH DUNN may render himself liable to prosecution for an offence under the Laws of New South Wales; AND WHEREAS I, John Robert Arthur DOWD, Her Majesty's Attorney General for the State of New South Wales, am satisfied that for the effective prosecution of the said defendants and for the due administration of justice, it is necessary to have to resort to the evidence of the said ROBERT JOSEPH DUNN and for that purpose the said ROBERT JOSEPH DUNN should be indemnified as hereinafter appears; NOW THEREFORE I, the said John Robert Arthur DOWD, DO HEREBY UNDERTAKE that any answer given, or statement or disclosure made, or the fact that the said ROBERT JOSEPH DUNN discloses or produces a document or other thing, in the proceedings first abovementioned against the said defendants will not be used in evidence against the said ROBERT JOSEPH DUNN. PROVIDED ALSO that the said ROBERT JOSEPH DUNN gives his active co-operation including the giving of evidence truthfully and frankly and without embellishment and withholding nothing of relevance in the proceedings aforementioned in which he is required to give evidence in relation thereto." DATED at Sydney, this Fifteenth day of August, 1990" 74 The authority of the Attorney-General to give such an undertaking derived from section 14 of the Criminal Procedure Act 1986. That section provided, relevantly: "(1) The Attorney General may, if of the opinion that it is appropriate to do so, give to a person an undertaking that - (a) an answer that is given, or a statement or disclosure that is made, by the person in the course of giving evidence in specified proceedings; or (b) the fact that the person discloses or produces a document or other thing in specified proceedings, being proceedings for an offence against a law of the State (whether an indictable offence or a summary offence), will not be used in evidence against the person. (2) If the Attorney General gives such an undertaking - (a) an answer that is given, or a statement or disclosure that is made, by the person in the course of giving evidence in the specified proceedings; or (b) the fact that the person discloses or produces a document or other thing in the specified proceedings, is not admissible in evidence against the person in any civil or criminal proceedings, other than proceedings in respect of the falsity of evidence given by the person. (3) Such an undertaking may be given conditionally or unconditionally." 75 The learned primary Judge approached the construction of these two documents of the Attorney-General by making at the outset a distinction between the indemnity granted pursuant to section 13, and the undertaking given pursuant to section 14. His Honour rejected a submission, which had been put for the appellant, that the combined effect of the two documents conferred the indemnity against prosecution for which the appellant was contending. At p 85 of his judgment, his Honour points out, correctly in my respectful opinion: "s 14 clearly provides not for an indemnity against prosecution but an undertaking that evidence given during the course of specified proceedings will not be used against the witness subsequently", The section 14 undertaking might have work to do in connection with the course of conduct on the part of the prosecuting authorities, which is crucial to grounds ii, iii and iv; but the undertaking cannot amount, in my opinion, to an indemnity against prosecution. So far as concerns indemnification against prosecution, in a precise sense, the appellant must rely, so far as the documents are concerned, on the section 13 indemnity. 76 As to the proper construction of the section 13 indemnity, his Honour reasoned as follows: "Nor do I accept what appears to be implicit in …..(counsel's) ……submissions that an indemnity pursuant to S13 of the Criminal Procedure Act may operate to indemnify the recipient for offences committed or acts done after the date which the written indemnity bears. This would be contrary to the terms of S13 which empowers the Attorney General to grant an indemnity "for a specified offence" or "in respect of specified acts or omissions". An offence not yet committed or an act not yet done cannot be a "specified" offence or act within S13. To so hold would be contrary to the policy of the law and grant what would in effect be a licence to break the law in the future ( D'Arrigo 58 ACR 71; Stead 62 A Crim R 40). The date of the indemnity pursuant to S13 of the Act in this case is 3 April 1990 and on this basis alone I hold that charges 35, 36 and 37 are not barred from prosecution by operation of S13 of the Criminal Procedure Act and it would only be in the exercise of discretion that the Crown might be precluded from pursuing those charges. It remains to consider however, the scope of the S13 indemnity. The document does not refer to any "specified" offence or offences in accordance with paragraph (a) of ss 1. Nor does it specify any acts of the applicant as provided in paragraph (b). Nothing of substance in my view however, turns on this. The important part of the document for present purposes appears at the bottom of the first page and reads: "Now therefore I, the said John Robert Arthur Dowd, do hereby undertake that no criminal proceedings in the nature of the offences aforesaid or any associated offences shall be had or taken against the said Robert Joseph Dunn in relation to any part had by him in the commission of the offences by the said "X, Y and Z" which may render the said Robert Joseph Dunn liable to prosecution and of which he might give evidence in the said proceedings." The substantial matter which arises for consideration under this aspect of ……..(counsel's) …….. submissions, relates to the scope of the phrase "any associated offences" it being clear that the Crown does not suggest the applicant is criminally liable for any of his acts relating to the actual payment of the monies to the allegedly corrupt police officers. In this connection the Crown submits that the indemnity in addition, properly and benevolently construed further extends to protect the applicant from any offence relating to the harbouring of Mr. Wain or relating to the possession of commercial pornographic videos. The Crown also concedes, at least as a possibility, that the S13 indemnity includes also sexual activity with A as depicted on the "Sherlock Holmes" video, but not with any of the other complainants B, C, D, E, F, G, H, or I. In my view the indemnity issued pursuant to S13 of the Criminal Procedure Act encompasses all alleged offences involving complainant A when considered against the background of the Crown's case on committal and in particular the Crown opening on the applicant's sexual activity with A and leading from the applicant evidence in chief of that sexual activity as an essential part of the allegedly corrupt bargain with the police officers, X, Y and Z (see paras 23 and 30 hereof). Accordingly, proceedings on all of the charges numbered 1 - 11 in the proposed indictment are barred by operation of S13(2) of the Criminal Procedure Act. " (Judgment:86, 87,88) 77 It was submitted for the appellant that this process of reasoning is wrong. Great reliance was placed upon the decision of Ormiston J in R v Georgiadis [1984] VR 1030. 78 Georgiadis propounds a number of propositions. It is not necessary to canvass in the present case the detail of all of them. One of those propositions is that a document of the kind here in question should be interpreted in much the same way as an ordinary contractual engagement, but with the rider that the document should be given a benevolent construction in favour of the person to whom it was given. This approach is said to be required in order to vindicate the considerations of public policy which are accepted conventionally as justifying the grant at all of an indemnity of the kind here in question. Davidson DCJ accepted and adopted these propositions drawn from the decision in Georgiadis. 79 The practical application of those principles of benevolent construction to the facts in Georgiadis was governed, of course, by the terms of the indemnity there being considered. That particular indemnity is set out on page 1031 of the report. It is not necessary to set it out here. 80 What is important to make clear for present purposes is that the form of the indemnity which was in issue in Georgiadis is significantly different from the form of the indemnity with which this Court is now concerned. The third recital in the Georgiadis indemnity, upon the terms of which recital the decision in that case really turned, is differently worded from the corresponding recital in the indemnity given to the present appellant. More importantly, the expression in the Georgiadis document of the substantive indemnification, when read in conjunction with the third recital, is significantly different in form and in substance from the corresponding portions of the indemnity given to the present appellant. Those differences are, in my opinion, such as to entail that the reasoning in Georgiadis as to the particular facts of that case cannot simply be transposed indiscriminately to the different facts of the present case, thereby entailing that the present case should be decided in the way in which Ormiston J decided Georgiadis. 81 It is trite that the proper construction of such a document as the indemnity given to the present appellant requires that the document be read sensibly as a whole. The focus of the entire document, read in that way, seems to me to be the unlawful conduct of the three police officers in connection with the alleged corrupt payment to them of the amount paid over on 21 August 1987. That focus of the document, read sensibly as a whole, colours necessarily the proper construction of the words "or any associated offences". It seems to me to be clear that the "associated offences" are offences actually committed by the appellant that are intertwined, in a real and proximate sense, with the corrupt and unlawful conduct, the proper prosecution of which is the imperative of the "due administration of justice" which is said to justify the grant at all of such an indemnity. 82 In my respectful opinion, the reasoning of Davidson DCJ in connection with the section 13 indemnity and the section 14 undertaking was correct. It follows that, in my opinion, ground of appeal i has not been established by the appellant. Grounds of Appeal ii, iii and iv 83 The appellant does not contend, as I followed the submissions put at the hearing of the appeal, that Davidson DCJ misapprehended either the nature of his relevant discretion, or the basic relevant principles of law. The submissions of the appellant concentrated, rather, upon the proposition that the relevant reasoning in the judgment of his Honour was wrong in fact. 84 Davidson DCJ commenced the relevant section of his Honour's judgment by noting that the submissions which had been put to his Honour on behalf of the appellant really postulated two propositions: first, that the appellant had in fact believed at all material times that he was, in the words of the submission, "fully immune from prosecution"; and secondly, that such belief, held in fact by the appellant, had been induced by a course of conduct on the part of the prosecuting authorities such that it would be an abuse of process to allow the proposed prosecutions to proceed to trial. 85 The conclusions reached by Davidson DCJ did not require his Honour to deal in any particular way with the second of those two contentions. His Honour's conclusions entailed the rejection of the first of the two contentions. His Honour grouped into five categories, evidence and findings the combined effect of which entailed, in his Honour's ultimate finding, that the appellant had not established on the probabilities that he had in fact held at the material times the belief that he was then "fully immune from prosecution". 86 It is convenient to consider separately each of those five categories of evidence and findings. It is to be borne in mind, however, that it is upon the combined effect of such of the findings as are sustainable that the ultimate conclusion stands or falls. a) It commences with the clear statement made by Mr. Watson to the applicant on 15 January 1990 to the effect that if any immunity from prosecution was to be forthcoming it had to come from the Director of Public Prosecutions or the Attorney General and not from the police (see para 12 hereof) 87 The facts thus stated by his Honour are, with respect, plainly correct. The appellant contends, however, that his Honour has misunderstood the import of what transpired on 15 January. The reactions of the appellant, it is contended, are consistent, and only consistent, with his having then been of the mind that the need for a reference to the Director of Public Prosecutions and the Attorney-General was a mere formality, and that he would be safe, simply and comprehensively, from any prosecution of any kind in respect of anything that he might say in the interview in which he agreed to take part. 88 I do not accept those submissions. First, it needs to be borne in mind that the appellant was, at all material times, a man of mature years with a vocational background of school teaching. He was, obviously, a man of the world. Davidson DCJ expressed the view, having had the opportunity of seeing and of listening to the appellant in person, that the appellant was "a highly intelligent, well educated man". Secondly, Chief Inspector Watson could hardly have expressed himself more plainly than he did in question 5 of the recorded interview of 15 January 1990. The appellant, asked whether he understood what he had thus been told simply and clearly, did not respond by saying anything indicative of his being of the opinion that he was being told that the necessary consents of the Director of Public Prosecutions and the Attorney-General were mere formalities. The appellant responded, rather, and without any qualification: "Yes Sir". 89 The written submissions put in for the appellant ask a number of rhetorical questions, the substance of which can be summed up as: Why would the appellant have cooperated to the extent to which he did cooperate, had it not been for his firm conviction that he was, simply and comprehensively, protected against prosecution in respect of anything that he might say? 90 There is no simple and comprehensive way of answering rhetorical questions of that character when they arise in such a context as that of the present case. An assessment of the appellant's processes of reasoning at any particular time cannot depend, simply and undiscriminatingly, upon what the appellant now says on the topic. What can be said is that the appellant, at the time he gave the interview on 15 January, - and, if it comes to the point, the subsequent interviews on 16 and 17 January, - was in custody facing serious drug-related charges of which he was, on his own admission, guilty. He had an obvious interest, on that account alone, in cooperating with Chief Inspector Watson in such a way as would maximise the latter's intervention in aid of obtaining for the appellant a sentence, in respect of the admitted drug-related criminal conduct, significantly more lenient than the sentence that he might have otherwise justly have received. b) On the opening day of the committal proceedings and before he gave any substantive evidence, the intervention of the learned magistrate and Mr. Beale of counsel made it clear to him that whatever assumption the applicant had made up to that point of time in relation to his protection from prosecution, the scope of it was at least questionable (see para 24 hereof). He indicated that he well understood the distinction between an indemnity from prosecution and an undertaking not to use evidence given. To my observation of him the applicant is a highly intelligent, well educated man who is likely to have clearly understood that distinction. Although, whilst acknowledging his understanding of this distinction before the learned magistrate, he nevertheless insisted in stating that he thought he was immune from prosecution, I regard this as self serving in the context in which the assertion was made (see para 28 hereof) 91 Statements of fact made by his Honour in this passage are, in my opinion and with respect, faithful to the evidence. His Honour's description of the appellant as "a highly intelligent, well educated man who is likely to have clearly understood that distinction", was, in my opinion and with respect, clearly open to his Honour as the tribunal of fact. 92 The written submissions of the appellant make a number of pointed attacks on various aspects of this passage in the judgment. Two in particular call for present consideration. 93 The submissions point, first, to the events on 15 August 1990 when there was first produced in Court the section 14 undertaking. Attention is drawn, in particular, to the question put to the appellant by cross-examining counsel: "and it is not an immunity from prosecution for acts of paedophilia, you understand that don't you?" and to the appellant's response: "No Sir I don't. I was under the impression I was immune.". 94 The written submissions put the following propositions: "A critical element is that this courtroom exchange is not contested by Smith. The question and answer, and Smith's silence, demonstrate that both the appellant and Smith believe that he is protected to a far greater extent than police bribery and his evidence. They believe that he is protected for 'acts of paedophilia'. ……………………… His Honour ……..(says)………that the appellant indicated that he well understood the distinction between the indemnity and the undertaking at the committal. The ……..(above quoted)………..question and answer indicate that this finding by his Honour was wrong. If the appellant understood the distinction his answer ……….must have been yes." 95 The validity of these submissions depends, in the first place, on what is to be understood by the cross-examiner's reference in the quoted question to "acts of paedophilia". The cross-examiner's question is not precise. Let it be assumed, however, that the cross-examiner intended his question to be understood by the appellant as referring to any and all acts of paedophilia committed at any and all times in the past; and that the appellant so understood the question. 96 The first thing then to be said is that the appellant cannot be thought, taking a sensible view of his intelligence and worldly wisdom, to have thought genuinely that the section 14 undertaking gave him a simple and comprehensive immunity from any future prosecution for any act of paedophilia whensoever and wheresoever previously committed by him. The appellant cannot have thought that he had such an immunity arising from the section 13 indemnity, for it was plainly expressed doubts about the scope of that immunity which had led to the obtaining from the Attorney-General of the section 14 undertaking. Nor can the appellant seriously have thought that the section 14 undertaking itself, in so far as it extended whatever protection he had been given by the section 13 indemnity, went so far as to give him the simple and comprehensive immunity that he was asserting. 97 The second thing to be said is that it does not at all follow, in my opinion, that "if the appellant understood the distinction his answer to the ……..question must have been yes". The appellant, by the time he came to give that answer, was undoubtedly well aware of the implications of the differing opinions that he had heard canvassed as to the extent of the protection from prosecution that he was being given by the prosecuting authorities. He had every interest to assert a belief that he was simply and comprehensively protected. It does not at all surprise me that the learned primary Judge was of the opinion that the answer had about it the character of a self-serving statement. That is the impression that I, too, have of it. 98 The written submissions of the appellant are very critical of Mr. Smith in the context now being discussed. It is submitted that Mr. Smith, had he been of the opinion that the appellant was not simply and comprehensively protected in the way that the appellant was then asserting, "would have jumped to his feet to correct the record"; and that it would have been "a gross dereliction of duty for ….(him) …… to have remained silent". 99 In considering what Mr. Smith should or should not have done in these circumstances, it is necessary to keep in mind Mr. Smith's own evidence as to his conversation with the appellant as to the effect of both the section 13 indemnity and the section 14 undertaking. According to that version, nothing was said to the appellant which would have justified him in thinking that he had, in effect, a cast-iron guarantee against any future prosecution for any and all prior acts of paedophilia. 100 It is not clear to me what exactly it is thought Mr. Smith should have done against such a background. He could not object to the answer as non-responsive to the question. He could not give evidence from the Bar table contradictory of what the witness was saying in cross-examination. Had he attempted to re-examine so as to suggest that the answer was quite misconceived, he would have been met with the entirely proper objection that that was not the proper function of re-examination. I suppose that he could have asked for a short adjournment and for an opportunity to confer further with the appellant about the assertion made in that answer. It is not difficult to imagine what would have been said then, and what would have been said now, about the sinister inferences to be drawn from such an application. 101 In my opinion, the criticisms advanced in connection with this particular portion of the judgment have not been made good. c) In January 1992 the applicant was approached by Mr. Watson with an indication that the Director of Public Prosecutions then proposed to proceed against him in respect of matters involving V and H (see para 34 hereof). I reject the applicant's assertion that he was invited by Mr. Watson to make no comment on the basis that it is improbable that Mr. Watson did so. Even if however, this did occur the important matter to note is that well before he gave evidence at either of the trials, the applicant was put on notice that the prosecuting authorities were intent on proceeding against him in respect of at least these aspects of his paedophilic history. 102 The gravamen of the criticisms now levelled against this portion of the judgment can be found in the following, and concluding, portion of the written submissions of the appellant made in connection with the paragraph quoted above from the judgment: "The conclusion reached by his Honour is, with respect, based on a false premise. His Honour states that the appellant was put on notice in 1992. This is well after the committal in August 1990. The indemnities have already been used and the appellant has already kept his part of the bargain. The protection of the indemnities and promises of the police have taken effect . They cannot be withdrawn at any time subsequent unless he refused to give proper evidence at the trials. At best, any notice in 1992 can only affect the use of the indemnities in 1994 for the charges said to have occurred between the alleged notice in January 1992 and the trials." 103 It is not clear to me quite what is supposed to be the asserted false premise. The text of the judgment of Davidson DCJ, as originally furnished to this Court as part of the Appeal papers, contained a misprint in the paragraph quoted above, the misprint being "1990" instead of "1992". It is, however, the case that in paragraph 34 of the judgment, to which Davidson DCJ makes specific reference, the correct date appears. It is, therefore, improbable, to say the very least, that the reasoning in paragraph c) proceeds upon the false premise of a mistaken date. 104 My understanding of this paragraph is that it simply adds another piece to the evolving pattern of evidence, as his Honour saw it, of the appellant's not having had, at times material for his Honour's purposes, the belief which he said he had at those times concerning the nature and scope of his protection from prosecution for paedophilia. 105 In my opinion, the criticisms of paragraph c) of the judgment have not been made good. d) When questioned by the investigative officers attached to the Royal Commission he stated that Mr. Watson had not given him any assurance that he would not be charged (see para 5 hereof). Whilst it may well be that Mr. Watson quite properly cultivated a relationship with the applicant which would be conducive to his giving evidence in the proceedings against X, Y and Z, I reject as implausible the applicant's assertion that he maintained his stance before the Royal Commission officers because he wished to protect Watson. I find it inconceivable that he would risk prosecution for serious sexual offences for this reason. 106 The reference on the third line of the above quotation to paragraph 5 of the judgment is a misprint. It should be a reference to paragraph 57 of the judgment. 107 The submissions now made for the appellant attack as misconceived the finding expressed in the concluding sentence of the paragraph quoted above. It is submitted that the appellant told deliberate lies to the officers of the Royal Commission; that he did so, as he asserts, in order to assist Chief Inspector Watson in the latter's hour of need; and that he gave nothing away by so exculpating Chief Inspector Watson, because he had in hand the indemnity and the undertaking, and believed that they gave him a simple and comprehensive protection from prosecution for his past activities as a paedophile. 108 In my opinion the learned primary Judge was entitled to reject the appellant's explanation as "implausible". I myself would have thought that it was highly implausible. First, the telling of deliberate lies to the officers of the Royal Commission exposed the appellant to the risk of prosecution, not for his past sexual activities, but for contempt of the Royal Commission. It is to be noted that the appellant does not submit that he thought that he could lie with impunity to the officers of the Royal Commission; and, for my own part, I would take a great deal of persuading that the appellant did think he could so lie without taking some risk that he would be found out in his lies and punished for them. 109 Secondly, it is true that the appellant, by telling lies about his dealings with Chief Inspector Watson, did not thereby give away whatever protection against prosecution he had by reason of the indemnity and the undertaking. But he did give away the possibility of running the very argument upon which he now so greatly relies, namely, that, quite independently of the indemnity and the undertaking, he had de facto protection, simply and comprehensively, against prosecution for his sexual activities because he had been led by Chief Inspector Watson, in particular, to believe that such would be the effect of his cooperating with the investigating police in the way that he did. 110 I do not accept the submission that the concluding finding in the passage above quoted is misconceived. 111 It would follow, as it seems to me, that the learned primary Judge was entitled to take the view, - and I infer that his Honour did in fact take the view, - that the things said by the appellant to the officers of the Royal Commission cast, at the very least, a significant shadow over his credit in what he was now saying about the course of his dealings with Chief Inspector Watson, and about the consequences of those dealings in terms of their effect upon his perception as to his simple and comprehensive protection from prosecution in respect of his activities as a paedophile. e) When interviewed by the journalist on the 60 Minutes programme (see para 58 hereof) he asserted that he had always thought that he might be charged with such offences. This in itself is a clear admission against interest on a matter vital to his application. 112 I see nothing wrong with what is said by his Honour in this passage of the judgment. 113 If what the appellant told the journalist was substantially true, then it must follow that significant parts of what he now says are false. If what he told the journalist was false, then there is, so far as I can see, no plausible explanation for the falsity. In either event, the appellant's credit is damaged in connection with matters of great significance to the way in which he frames his present case. 114 It will be apparent from what I have thus far said that I do not accept the substantive criticisms made of the five particular steps in the process of reasoning by which his Honour reached the conclusion that the appellant had not demonstrated on the probabilities the belief essential to the maintenance of his present claim to protection. 115 If that ultimate finding was reasonably open to his Honour, as in my respectful opinion it was, then his Honour was, with respect, undoubtedly correct in the view that nothing more was needed to dispose of the application before him by the making of the orders now under appeal. 116 In my opinion, none of the grounds of appeal has been sustained. I would dismiss the appeal, and affirm the order of the learned primary Judge. 117 FOSTER AJA: I agree with the orders proposed by Sully J and with his Honour's reasons. 118 CARRUTHERS AJ: I agree with Sully J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.