Supreme Court New South Wales Medium Neutral Citation: R v Seller; R v McCarthy (No 3) [2014] NSWSC 1290 Hearing dates: 28 July 2014 - 8 August 2014 Date of orders: 22 August 2014 Decision date: 19 September 2014 Jurisdiction: Common Law Before: Button J Decision: 1. Quincy Tang is prohibited from giving evidence in the trial in accordance with his three statements dated 3 November 2009 and his statement dated 30 June 2010. 2. Dismiss all of the other orders sought in the further amended notice of motion filed 5 August 2014 and the identical notice of motion filed by Mr Raphael. Catchwords: CRIMINAL LAW – EVIDENCE – charge of conspiracy with intent to defraud or dishonestly influence the Commissioner of Taxation – prior compulsory examinations of accused by the Australian Crime Commission – transcripts of compulsory examinations and other compulsorily acquired materials provided to proposed witness for the prosecution – evidence of the witness founded to a degree on the compulsorily acquired materials - whether witness should be prohibited from giving evidence in a subsequent criminal trial PRACTICE AND PROCEDURE – application for a permanent stay – whether prosecuting lawyers who had conferred with the witness should be prohibited from appearing in the trial – whether the trial should be permanently stayed as a result of the compulsory examinations Legislation Cited: Australian Crime Commission Act 2002 (Cth), s 25A(9) Crimes Act 1914 (Cth), ss 29D and 86(2) Criminal Code Act 1995 (Cth), s 135.4(7) Criminal Assets Recovery Act 1990 (NSW), s 13(9) Evidence Act 1995 (NSW), ss 50, 79 and 138 Cases Cited: Lee v NSW Crime Commission [2013] HCA 39; 87 ALJR Lee v The Queen [2014] HCA 20; 88 ALJR 656 [2012] NSWSC 934; (2012) 269 FLR 125 R v Seller; R v McCarthy [2013] NSWCCA 42; 273 FLR 155 Seller v The Queen; McCarthy v The Queen [2013] HCA Trans 204 (6 September 2013) TS v R [2014] NSWCCA 174 X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 Category: Procedural and other rulings Parties: Regina Ross Edward Seller (Accused) Patrick David McCarthy (Accused) Representation: Counsel: DJ Fagan SC (Crown) P McGuire (Crown) P Strickland SC (McCarthy) P Bruckner (McCarthy) DKL Raphael (Seller) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Hardin Law (McCarthy) Gibson Lawyers (Seller) File Number(s): 2009/237556 2009/237509 Judgment 1. On 22 August 2014, I made orders disposing of identical notices of motion filed by the two accused. These are the reasons for those orders. 2. The orders sought were as follows: 1. An order that Quincy Tang be prohibited from giving evidence in these proceedings in accordance with his three statements dated 3 November 2009 and his statement dated 30 June 2010. 2. An order that all persons (including legal practitioners) who have read or listened to the Accusatorial Process Material or Indirect Accusatorial Process Material be prohibited from (a) giving evidence in these proceedings; (b) assisting the Commonwealth DPP in the preparation and conduct of these proceedings; (c) being retained or engaged by the Commonwealth DPP in the conduct of these proceedings. 3. The CDPP identify: 1. the name of all persons who have had access to the Accusatorial Process Material or Indirect Accusatorial Process Material whom the Crown proposes to call as witnesses or who have assisted; 2. in the preparation and conduct of these proceedings [sic]; 3. what Accusatorial Process Material or Indirect Accusatorial Process Material those person(s) have had access to; 4. when those person(s) have had access to the Accusatorial Process Material or Indirect Accusatorial Process Material. 1. An order that the ACC Accusatorial Process Material and Indirect Accusatorial Process Material be returned to the Australian Crime Commission. 2. [Not pressed] 3. An order temporarily staying these proceedings pending: 1. The CDPP's compliance with paragraph 3 of this Notice of Motion; 2. The engagement of other counsel and CDPP personnel who have not read or listened to the Accusatorial Process Material or Indirect Accusatorial Process Material; and 3. The filing and serving of a Crown case statement (howsoever called) and particulars of the charge which have not been derived from Accusatorial Process Material or Indirect Accusatorial Process Material. 1. Such other orders as the Court deems fit. 2. Any proceedings on the indictment presented on 14 March 2012 against Ross Seller be stayed. 1. The notices of motion also provided: For the purposes of this notice of motion: "Accusatorial Process Material" means transcripts, recordings or notes of any officer of the Commonwealth Director of Public Prosecutions (CDPP), Australian Crime Commission (ACC) in respect of compulsory examinations of either accused at the ACC and documents and other materials compulsorily produced by either accused to the ACC. "Indirect Accusatorial Process Material" means material obtained indirectly by the ACC or the CDPP from use of the Accusatorial Process Material. 1. I made order one in a slightly adjusted form, and dismissed all of the other orders. 2. The motions raised difficult questions about the interrelationship between, on the one hand, compulsory examinations of citizens by bodies such as the Australian Crime Commission (the ACC) and compulsory production of items by citizens to such bodies and, on the other hand, the right of such citizens to a subsequent fair trial according to law. Some preliminary matters 1. Mr McCarthy was represented by senior counsel. Mr Seller was represented by counsel. As I have indicated, the notices relied upon were relevantly identical. Counsel for Mr Seller adopted the submissions of senior counsel for Mr McCarthy. In this judgment, I shall draw no distinction between the legal submissions of the two accused. 2. A similar but by no means identical motion was determined by Garling J in R v Seller; R v McCarthy [2012] NSWSC 934; (2012) 269 FLR 125. The findings of fact made by his Honour were not disturbed by the Court of Criminal Appeal in an appeal against the permanent stay granted by his Honour: R v Seller; R v McCarthy [2013] NSWCCA 42; 273 FLR 155. In a separate extemporaneous judgment of 29 July 2014, I rejected the proposition of the two accused that, on the hearing of this different motion, the findings of fact made by his Honour could not be controverted by any party. It follows that I have made my own findings of fact based upon the evidence placed before me, some of which was before Garling J. 3. The Crown and the two accused were content for me to focus my analysis of legal principle on four decisions: * R v Seller; R v McCarthy [2013] (delivered 1 March 2013); * X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 (delivered 26 June 2013); * the refusal of special leave to appeal from the decision of the Court of Criminal Appeal: Seller v The Queen; McCarthy v The Queen [2013] HCATrans 204 (6 September 2013); and * Lee v The Queen [2014] HCA 20; 88 ALJR 656 (delivered 21 May 2014). 1. For convenience, I shall refer compendiously in this judgment to the transcripts of the compulsory examinations and the documents compulsorily produced by the two accused as the compulsorily acquired material. 2. The two accused relied upon material that was tendered on the motion to which the Crown did not have access; namely, the compulsorily acquired material. Despite my expressed reservations, the Crown was content to make submissions in the absence of that access on its part, and for me to determine the motion in those circumstances. Exhibits to which the Crown did not have access on the hearing of the motion were marked as confidential exhibits. Background 1. The two accused have each been arraigned in this Court on two counts. The first count is of conspiring to defraud the Commonwealth between 22 March 1999 and 23 May 2001 contrary to ss 29D and 86(2) of the Crimes Act 1914 (Cth). The second count is of conspiring with the intention of dishonestly influencing a Commonwealth public official between 24 May 2001 and 30 June 2004 contrary to s 135.4(7) of the Criminal Code Act 1995 (Cth). Each accused has pleaded not guilty, and a joint trial by jury is listed to commence before me shortly. 2. To state the Crown case with great succinctness, it is alleged that Mr Seller, a solicitor, and Mr McCarthy, an accountant, were involved in the setting up of a number of "schemes" that were founded on the purported production of whisky in Scotland (the whisky schemes) and that were designed to obtain significant tax deductions for investors. Although the Crown case asserts that the schemes possessed aspects of dishonesty, that dishonesty is not the focus of the Crown case. Rather, the Crown case in a nutshell is that the two accused entered into a criminal agreement to defraud the Commonwealth by misleading it about salient aspects of the schemes, and that the sundry misrepresentations made by the two accused to officers of the Australian Tax Office (the ATO) are the overt acts evidencing the conspiracy (see "Outline of the case the Crown will present at trial", filed 23 March 2012). Undisputed facts 1. The following is derived from a document entitled "Agreed Facts" that became exhibit 1 on the motion. 2. Mr McCarthy gave evidence at the ACC compulsory examinations on 14 to 17 May, 30 July, and 12 to 13 September 2007. He also produced certain documents to the ACC under compulsion. 3. Mr Seller gave evidence at the ACC compulsory examinations on 13 and 14 September 2007. He also produced certain documents to the ACC under compulsion. 4. The transcripts of the compulsory examinations of the two accused were disseminated by the ACC to the Commonwealth DPP on 18 December 2007, and documents identified as exhibits shown to the two accused at their examinations were disseminated by the ACC to the Commonwealth DPP in January 2010. 5. That dissemination was unlawful having regard to the requirements of s 25A(9) of the Austrailan Crime Commission Act 2002 (Cth). That provision provides: (9) An examiner may direct that: (a) any evidence given before the examiner; or (b) the contents of any document, or a description of any thing, produced to the examiner; or (c) any information that might enable a person who has given evidence before the examiner to be identified; or (d) the fact that any person has given or may be about to give evidence at an examination; must not be published, or must not be published except in such manner, and to such persons, as the examiner specifies. The examiner must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence. 1. Mr Quincy Tang was one of the principal investigators of the whisky schemes, including investigating the conduct of the accused. He was largely responsible for the compilation of the financial material which underlies an understanding of the whisky schemes. As the principal financial investigator, he played a significant role in the preparation of flow charts that show fund flows between entities said to be associated with the whisky schemes. 2. The following matters were not in dispute at the Bar table. 3. No member of the current Crown legal team (comprising a solicitor, junior counsel and senior counsel) has read or otherwise had direct access to any of the compulsorily acquired material. 4. No person who had had access to that material had, in conference, informed any of those lawyers of the contents of it in any explicit sense. Order one 1. To state the submissions of fact and law of the two accused in support of order one with great succinctness, they were as follows. 2. Mr Tang, a forensic accountant proposed to be an expert witness in the Crown case, was present at the lengthy compulsory examinations of both accused. Mr Tang has had extensive access to the transcripts of the compulsory examinations, and also to the documents produced compulsorily by the two accused. The understanding of Mr Tang of the whisky schemes, and as a result his proposed evidence, has been substantially enhanced by the compulsorily acquired material. It would be extremely difficult to cross-examine Mr Tang effectively about his analysis without the inadmissible compulsorily acquired material being revealed to the jury. The reception in those circumstances of the evidence of Mr Tang in a criminal trial would be contrary to the principles discussed by the High Court of Australia in X7 v Australian Crime Commission and Lee v The Queen [2014], and the principles discussed in R v Seller; R v McCarthy [2013] by Bathurst CJ (with whom McClellan CJ at CL and Rothman J agreed, Rothman J providing additional reasons). Accordingly the evidence should be excluded, either by way of an implicit mechanism of the trial being stayed if his evidence were to be led, or, in the alternative, pursuant to s 138 of the Evidence Act 1995 (NSW). 3. Generally, I have accepted those submissions. (i) Disputed facts with regard to order one 1. By the end of the oral submissions, the parties were in agreement that the access by Mr Tang to the compulsorily acquired material assisted his understanding of the whisky schemes in some way; the question was one of degree. The Crown submitted that the assistance was negligible. The two accused submitted that it was very substantial. That dispute can be broken down into a number of constituent parts. 2. First, the two accused submitted that a detailed consideration of the financial analysis undertaken by Mr Tang shows that, in his understanding of movements of funds around the globe as part of the whisky schemes, he had been explicitly assisted by particular aspects of the compulsorily acquired material. The Crown resisted that proposition, and sought to demonstrate that each example proffered by the two accused could be explained by material that had been available to Mr Tang years before the compulsory acquired material was available to him. 3. Secondly, the two accused submitted that, by having access to the compulsorily acquired data in the financial management software MYOB of Mr McCarthy, the understanding of Mr Tang of movements of funds and the purposes (or purported purposes) of those movements had been enhanced. 4. The Crown resisted that proposition on three bases. The first was that MYOB and similar software tell one little beyond what one can tell from bank statements and the like. The second was that the material in such software is dependent upon the data that has been entered into it; it tells one nothing about the objective financial reality. The third basis was that, in any event, Mr Tang did not have access to computers that permitted him to interrogate MYOB with any facility. 5. Thirdly, the Crown submitted that the evidence to be given by Mr Tang in accordance with his statements will be mechanistic and not analytical. Indeed, at one stage of the hearing the Crown posited the theory that the evidence of Mr Tang is not that of an expert pursuant to s 79 of the Evidence Act, but rather merely evidence that takes advantage of the facilitative provision in s 50 of the same Act: see transcript of motion (TOM) 73. The Crown submitted that Mr Tang in his proposed evidence will say nothing as to whether various funds transfers were noteworthy, or unusual, or redolent of dishonesty. All that Mr Tang will give evidence of is the movement of funds to and from various accounts. 6. To the contrary, the two accused submitted that, even if one limits oneself to consideration of the contents of the statements of Mr Tang, they cannot be characterised as merely mechanistic, and therefore readily derivable from the documents that were available to Mr Tang from sources other than the compulsorily acquired material. For example, I was informed that the question of whether or not entities to which funds were allegedly transferred to the benefit of the two accused were indeed under their control is a matter that will be sharply disputed in the trial. To the extent that the funds flow diagrams that form an important part of the evidence of Mr Tang baldly assert that funds ended up being transferred to the two accused, they submitted that that assertion is by no means mechanistic. (ii) Resolution of the disputed facts with regard to order one 1. It is true that the efforts in cross-examination by the two accused to demonstrate that particular aspects of the compulsorily acquired material specifically informed (in an arithmetical sense) the statements of Mr Tang were not crowned with great success. 2. It is also true that the bulk of the contents of the statements that set out the evidence that Mr Tang will give are mechanistic and not analytical. 3. I regard each of those matters as significant, but not determinative. 4. Despite those two findings of mine, I have come to the view that Mr Tang's understanding of the whisky schemes underpinning his proposed evidence was informed to a not insubstantial degree by his access to the compulsorily acquired material. That is so for the following reasons. 5. First, Mr Tang said words to that effect during his cross-examination. At the end of that process, the following exchange occurred (at TOM 353.21- 354.1): Q. I want to suggest to you that it's a reasonable possibility that the section 28 summons material, including the service agreement, including the MYOB files and the evidence that Mr McCarthy and Mr Seller gave in the compulsory examination, has assisted you in your knowledge of Mr McCarthy and Mr Seller's involvement in the whisky schemes? A. Yes. Q. That material ‑ I won't repeat it all ‑ but that material has assisted you in knowing about their explanation of how the schemes work? A. Yes. Q. That material has assisted you in particular knowing their explanation about the role promissory notes had to play in the schemes? A. Yes. Q. That material assisted you in knowing their explanation of the status of various entities, including Grant McKenzie Hong Kong and Chambers Finance? A. Yes. Q. That material assisted you in knowing their explanation of their relationship between those various entities? A. Yes. Q. That material has assisted you in knowing the role of those entities in the whisky schemes ventures? A. Yes. Q. And that material has assisted you in knowing Mr McCarthy's explanation of the reason why Eon received payments from Grant McKenzie Hong Kong? A. Yes. 1. It is true that in re-examination, the following exchange occurred (at TOM 375.18-40): Q. With respect to Chambers Finance, the party which on your analysis, as stated in your statements, purported to be making the loans evidenced by promissory notes? A. Yes. Q. Were you dependent upon anything that you gained from the answers given in the compulsory examinations of the accused, or from any documents that they produced under compulsion? A. No. Q. To ascertain Chambers Finance role in the structure? A. No. Q. For the purposes of ascertaining what part Mr Seller and Mr McCarthy personally had played in arranging the structure and causing the transactions to be undertaken and implemented and the like, did you depend upon anything that they had said under compulsion or any documents they produced under compulsion? A. In relation to the statements? Q. In relation to the part they had played in implementing and putting into effect the structure that you tracked in your statements? A. No. 1. I accept the truthfulness of all of those answers. However, to my mind there is a clear distinction between one's understanding being assisted by material, and one's understanding being dependent upon material. I accept the correctness of the evidence of Mr Tang that his understanding did not depend upon the compulsorily acquired material; such acceptance does not gainsay the proposition that his understanding was not insubstantially informed by it. 2. Secondly, it is true that, in light of the way that the Crown frames its case, the whisky schemes are not the focus of the Crown case. The focus is on the things allegedly said and done by the two accused to mislead the ATO. Still and all, the whisky schemes will be an important part of the Crown case at trial. They cannot be characterised as mere background. 3. Thirdly, without of course revealing the contents of confidential exhibits in this judgment, it can be seen that the compulsory examinations of the two accused were lengthy, probing and detailed. On occasions both men gave very detailed answers. Nothing about the compulsory examinations was cursory. 4. Fourthly, a very large number of documents were compulsorily produced by the two accused. 5. Fifthly, Mr Tang was present at much of the compulsory examinations. I accept his evidence that part of his reason for being present was in order to assist counsel who was cross-examining each examinee. But I also consider that he took an intellectual and personal interest, not only in the questions asked, but also in the answers given. He said as much in cross-examination before me at TOM 180.6. 6. Sixthly, Mr Tang repeatedly accessed the compulsorily acquired material for extended periods between the time when it was compulsorily obtained and the preparation of his statements. On 31 July 2007 he uplifted a CD containing either a video or oral recording of Mr McCarthy's compulsory examinations on 14 to 17 May 2007 for a period of seven days (Exhibit 44). On 4 September 2007 he uplifted a CD containing MYOB files compulsorily produced by Mr McCarthy for a period of around four hours (Exhibit 42 page 23; Exhibit 43 page 23). On 11 September 2007 Mr Tang accessed an electronically stored copy of the Service Agreement (Exhibit 39) compulsorily produced by Mr McCarthy (Exhibit 25 ACC item 7 page 313; Exhibit 22 ACC item 14 page 690). He accessed that document again on 7 May 2008 (Exhibit 25 ACC item 7 page 575; Exhibit 22 ACC item 14 page 707) and on 24 March 2009 (Exhibit 25 ACC item 7 page 1036; exhibit 22 ACC item 14 page 720). On 3, 12, 15 and 18 October 2007, 5 November 2007, 15 September 2008, 25 November 2008 and 11 December 2008 Mr Tang accessed electronically stored transcripts of compulsory examinations of the two accused (Exhibit 27). 7. I accept that some of that access may have been for other purposes. But in light of the interest of the authorities in the two accused; their alleged centrality to the whisky schemes (see TOM 203.33-35; 388.35); and the sums allegedly involved, I am satisfied that a substantial proportion of that access was to do with analysing the whisky schemes and the roles of the two accused within them. In cross-examination Mr Tang agreed that he accessed the transcripts of the compulsory examination transcripts "because [he] regarded [them] as being of some importance" (at TOM 207.45-58). 8. Seventhly, Mr Tang created a number of documents that collated and analysed the compulsorily acquired material. He did not merely read or view the material without conducting any subsequent documentary analysis. It is noteworthy that Mr Tang accessed the Service Agreement between two entities said to be associated with the two accused (which became Exhibit 39) for the third time on 24 March 2009, very shortly before he created a draft statement with regard to Mr McCarthy's involvement in the whisky schemes (annexure marked "PH20" to Exhibit 41, which was attached to an email dated 30 March 2009 that became Exhibit 16; see TOM 484). In cross-examination Mr Tang agreed that there was a "reasonable possibility" that he accessed the Service Agreement to assist in the draft statement: see TOM 351.18-21. 9. Eighthly, I do not accept that MYOB and personal accounting software, as compared to bank statements, does not provide additional information to an analyst. Indeed, the purpose of such software, and the reasons why members of the community are prepared to pay substantial sums for it, is because it provides the facility to analyse one's financial affairs with far greater ease than simply by way of bits of paper. It is well known, and demonstrated by the evidence in this case, that part of the advantage of such software is that it permits characterisation of transactions, and not just their bald quantification. 10. The evidence of Mr Tang was a little confused as to whether or not he was indeed able to interrogate the MYOB files effectively; that confusion is perfectly understandable, in light of the passage of many years since the events about which he was giving evidence. It is also true that there was evidence of a general nature about the rudimentary nature of the computers available to Mr Tang when it came to interrogating MYOB. I accept that Mr Tang's ability to interrogate the software was not optimal. Nevertheless, the fact that he repeatedly accessed it leads me to infer that there was some utility in him doing so. I am satisfied on the balance of probabilities that the compulsorily acquired MYOB files played a role in the enhancement of the understanding of Mr Tang of the whisky schemes that went beyond the negligible. 11. Ninethly, I accept that Mr Tang is honestly of the opinion expressed in his affidavit of 24 July 2014 that became exhibit D, in light of the other material available to him, the compulsorily acquired material has not been of significance in the enhancement of his understanding of the whisky schemes. But I do not accept that one can accurately analyse one's own thought processes, in particular with regard to complex evaluative judgments, and determine with accuracy the degree to which a particular piece of data has played a role in the determination of one's final evaluation. That is no criticism of Mr Tang: I do not believe that any person is able to undertake that self-analysis of his or her unconscious mental processes. In particular, I do not consider that a person can state with certainty whether he or she would have come to the same conclusion if he or she had not been provided with data with which the person has in fact been provided. 12. Tenthly, my understanding of the issues that are in dispute, and the real issues in the trial is, of course, undeveloped at this stage. But for the purposes of the motion, I have accepted the assurance of senior counsel for Mr McCarthy that the question of whether or not funds were ultimately transferred to the benefit of the two accused is by no means a mechanistic one but rather analytical or evaluative, and that therefore that aspect of the funds flow diagrams that form the nub of the proposed evidence of Mr Tang cannot be dismissed as nothing more than an analysis of financial statements. 13. In summary, I accept that Mr Tang had a very good understanding of the whisky schemes separate from and indeed prior to the provision to him of the compulsorily acquired material. Nevertheless, as a finding of fact I have come to the view on the balance of probabilities that his understanding of those schemes has been substantially enhanced by the compulsorily acquired material. No particular factor or piece of evidence is determinative with regard to that factual conclusion of mine; as in a circumstantial case, the combined effect of the whole is greater than the sum of its ten parts. And I also accept that, as a result, it would be extremely difficult to cross-examine Mr Tang about his analysis without the jury becoming aware of the inadmissible compulsorily acquired material. That is because it will be impossible to "disentangle" the bases of his understanding and analysis of the whisky schemes. (iii) Application of legal principle to these findings of fact 1. It is noteworthy that the vast bulk of the final written and oral submissions made on behalf of the Crown did not address legal principle with regard to order one. They focused very markedly on the factual questions that I have determined above. 2. The two accused accepted the proposition that, as a matter of statutory interpretation, derivative use immunity has been abolished by the Australian Crime Commission Act 2002 (NSW) ("the ACC Act"). However, their submission was that a reading of the judgment of Bathurst CJ in Seller v R; McCarthy v R [2013], and the recent decisions of the High Court to which I was invited, demonstrates that that is not the end of the matter. 3. On one level, X7 v Australian Crime Commission and the related case of Lee v NSW Crime Commission [2013] HCA 39; 87 ALJR 1082 were exercises in statutory interpretation; namely, whether that aspect of the principle of legality that calls for great clarity or an inference of necessary intendment before a court should regard a statute as abolishing a fundamental common law right had been made out. In X7 v Australian Crime Commission, the majority of the High Court of Australia held that it had not, and that, as a matter of statutory interpretation, the ACC Act does not permit the compulsory examination of a citizen before the ACC when the subject matter of the examination will include the circumstances of a criminal offence with which the citizen has been charged. In Lee v NSW Crime Commission [2013], a majority of the High Court held that it had, and that the Criminal Assets Recovery Act 1990 (NSW) (the CAR Act) does permit such an examination before the Supreme Court of NSW in identical circumstances. 4. But to my mind, those cases, and the subsequent unanimous decision of the High Court in Lee v The Queen [2014], are about far deeper principles, about which there was little or no disagreement in the High Court. Those principles are that a criminal trial is accusatorial, and the Crown bears the onus of proving its case beyond reasonable doubt without compelled assistance from the accused. 5. Here, of course, the two accused had not been charged with any offence at the time when they were compulsorily examined and compelled to provide documents. But I accept the submission of the two accused that, at the time of those compulsory processes, there was at the least a significant possibility that they would be charged with an offence arising from the whisky schemes: see TOM 181.20 and 394.32- 42. And whatever may have been the situation in the past, Lee v The Queen [2014] demonstrates that issues to do with whether compulsory processes have "infected", or could "infect", the fairness of a criminal trial are not to be determined by way of reference to the simple bright line of whether at the time of the compulsory process the accused had or had not been charged with an offence: see Lee v The Queen [2014] at [2] and [6]. 6. Nor do I accept the submission of the Crown that there is a simple bright line between the provision of such material to prosecuting lawyers (in the circumstances considered in R v Seller; R v McCarthy [2013] and Lee v The Queen [2014]) and the provision of such material to important prosecution witnesses. It is true that a witness, amongst many other things, does not shape the Crown case, or decide which witnesses to call, or engage in cross-examination or address. And it is also quite true that the ACC Act, by its terms, contains no derivative use immunity. But I cannot accept that the portion of the judgment of the Chief Justice in R v Seller; R v McCarthy [2013] that commences at [76] and concludes at [107], and the principles enunciated by the High Court in Lee v The Queen [2014], are to be read as applying only to the dissemination of compulsorily acquired material to prosecuting lawyers, and as having no application to their dissemination to witnesses who are subsequently to be called by those lawyers, and whose evidence has been informed by that material, as I have found the evidence of Mr Tang to be. 7. If that were the case, [115] would not form part of the judgment of Bathurst CJ. And nor would two Justices of the High Court sitting on the special leave application have invited Queen's Counsel then appearing for Mr McCarthy to that very paragraph. 8. Lee v The Queen [2014] concerned s 13(9) of the CAR Act, which is highly analogous to s 25A(9) of the ACC Act. In that case the High Court unanimously said at [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. [Emphasis added] 1. It was said at [44]: The purpose of s 13(9) of the NSWCC Act was to protect the fair trial of a person who might be charged with offences. It supported the maintenance of the system of criminal justice referred to in X7 and the trial for which that system provides, in which the prosecution has a defined role and the accused does not. The protective purpose of s 13(9) would usually require that the Commission quarantine evidence given by a person to be charged from persons involved in the prosecution of those charges. It would require the Commission to make a direction having that effect and to maintain the prohibition in the face of requests for access to the evidence. That purpose was not met in the present case, with the consequence that the appellants' trial differed in a fundamental respect from that which our criminal justice system seeks to provide. [Emphasis added] 1. I do not accept that the references in the emphasised sentences above are only directed to prosecution lawyers. I consider that they extend to significant prosecution witnesses as well. 2. In short, I consider that the fundamental right of the two accused to a fair trial according to law in which it is incumbent upon the Crown to prove its case unassisted by compelled self-incrimination of the two accused calls for the exclusion of the evidence of Mr Tang. 3. As a matter of procedure, that is achieved by the implicit underpinning of my order being my acceptance of the proposition that, if Mr Tang were called and examined in accordance with his statements, I would regard that as creating an unfair trial that should be stayed. 4. In the alternative, and if it be the case that I am mistaken in my analysis of the availability of that implicit remedy, in accordance with the principles that I have discussed I would regard the evidence of Mr Tang as having been improperly obtained, and exclude it pursuant to the balancing exercise contained in s 138(1) of the Evidence Act. I have considered the factors in s 138(3), and regard them as soundly calling for exclusion. Because this second foundation of my order is an ancillary one, I shall not proceed to analyse those factors in detail. 5. To be clear, my order and these reasons do not constitute the slightest fetter on the Crown qualifying and calling a forensic accountant to give evidence about any aspect of the whisky schemes, so long as his or her evidence is not founded on any compulsorily acquired material. So much was accepted as correct by the two accused, if the other orders sought by them were to be rejected. Nor do I suggest that there is any impropriety in, or fetter upon, Mr Tang confidentially using the compulsorily acquired material for an investigative, analytical or educative purpose. The contravention of principle arises from the Crown seeking to use as part of its proof of guilt in a criminal trial expert opinion evidence that has been substantially derived from compelled self-incrimination. The other orders sought 1. Turning to the other orders sought in the notices of motion, all of which I have refused to make, I respectfully consider that they can be dealt with somewhat more concisely. 2. Proposed order two was based on a number of propositions. 3. First, compulsorily acquired materials, and summaries of those materials, were unlawfully disseminated to the Commonwealth DPP. 4. Secondly, this dissemination occurred in a context characterised by a "whole of government approach" that encouraged collaboration, co-operation, and information sharing between governmental departments, and preceded the concern with quarantining compulsorily acquired material prompted by X7 v The Australian Crime Commission and Lee v NSW Crime Commission [2013]. 5. Thirdly, Mr Tang and a Ms Simpkin (an officer of the ACC who was the case officer with regard to the whisky schemes and who will not be called as a prosecution witness) had recourse to the compulsorily acquired material, and were intimately involved in assisting the prosecution team determine the criminal charge or charges that ought to be laid against each accused in the Local Court, and the particulars thereof. 6. Fourthly, even accepting that no member of the current prosecution legal team had read the compulsorily acquired material or been told of its contents, the two accused submitted that it is more probable than not that, unknowingly, they had been "infected" by it as a result of the involvement of Mr Tang and Ms Simpkin. It was said that the many documents created by Mr Tang and Ms Simpkin would have been based, at least indirectly and to some degree, upon the compulsorily acquired material. It was submitted that at least some of those documents must have been read and absorbed by the current prosecution team. Further, it was submitted that it is quite possible that, in legal conference, Mr Tang or Ms Simpkin has expressed to a member of the prosecution team an opinion or an analysis founded, to some degree, upon the compulsorily acquired material. 7. Fifthly, in those circumstances it is likely that the Crown was materially assisted by compulsorily acquired material in determining what charges ought to be laid and how they should be particularised. 8. Finally, the evidentiary gap that arises from the claim of privilege by the Crown upheld by me in the course of the hearing of the motion with regard to documents evidencing the meetings and communications between Mr Tang, Ms Simpkin and other officers, and the Commonwealth DPP and its counsel, means that I cannot be satisfied that the prosecution against the two accused had not been infected by the compulsorily acquired material. 9. On that basis, it was said that a fresh prosecution solicitor must be instructed and fresh counsel briefed, and that all of the functions already performed, such as formulation of an indictment, the identification of particulars of the counts, and preparation and provision of a Crown case statement, must be set at nought and begun afresh. 10. I respectfully reject that proposition of the two accused. It is one thing to say that there is a direct use immunity in the ACC Act; that, although there is no explicit derivative use immunity in that statute, there will be circumstances (such as I have found to exist here) where evidence that is derived from compulsorily acquired material must not be part of the prosecution case; that prosecuting legal teams must not have access to compulsorily acquired material with the express intention and result of informing themselves about possible defences and other forensically highly useful matters (as occurred in Lee v The Queen [2014]: see [15]); and that, if the latter occurs, then those lawyers should not prosecute the matter further. But it is quite another matter to assert that lawyers who have expressly refrained from reading the compulsorily acquired material, and whose assurance that they have not been provided with that material in conference or otherwise has been accepted, must nevertheless be prohibited from appearing further in the matter. 11. The contention of the two accused is that the current prosecution team may have been unknowingly, unconsciously, indirectly and amorphously provided with some opinion or analysis ultimately derived from the compulsorily acquired material: see TOM 549.41-46. 12. Even accepting, for the sake of argument only, the proposition that that may have occurred, I do not consider that the judgment in Lee v The Queen [2014], or any other judgment to which I was invited, calls for the relief sought. To my mind, that would constitute a very large extension of the principles discussed in Lee v The Queen [2014], including at [44]. And I consider persuasive the submission of the Crown that, if this contention of the two accused were correct, then the High Court in Lee v The Queen [2014] would have spoken not only of the necessity of a new team of prosecuting lawyers, but also of the necessity of a new team that was to have nothing to do with any witness, or investigator, or other person who may have read the compulsorily acquired material, or some report or analysis based upon it. 13. I turn now to the submission made in support of proposed order two that Mr Tang or Ms Simpkin played some role in the finalisation of the charge in the Local Court and the formulation of its particulars at that stage. Again, even accepting that proposition for the sake of argument only, it is well known that after committal prosecuting counsel exercises his or her independent judgment with regard to the finding of a bill of indictment, its particularisation, the drafting of a Crown case statement, and countless other functions of a prosecuting advocate. Even accepting for the sake of argument only that Mr Tang or Ms Simpkin exercised some function at an early stage of the proceedings that could be classified as prosecutorial or quasi-prosecutorial, I do not regard that as overly significant, let alone determinative, with regard to the extremely broad second order that I was asked to make. 14. Turning to proposed orders three, four, and six, they were ancillary to proposed order two, and do not require further analysis. 15. As I have noted, proposed order five was not pressed. 16. Proposed order seven was not the subject of elaboration. 17. Proposed order eight was founded on a two page written submission entitled "Summary of Argument on Permanent Stay". 18. In a nutshell, it was based upon the proposition that the "investigation phase" with regard to the whisky schemes ended on a particular date in August 2007; and separately that the purpose of Ms Simpkin, with regard to the compulsory examination of Mr McCarthy, was to "lock him in" to various versions. In those circumstances, it was submitted, the compulsory examinations that occurred well after August 2007 were unlawful. 19. Furthermore, the submission invited my attention to the judgment of Hayne and Bell JJ in X7 v Australian Crime Commission at [124]. In short, the proposition was that the accusatorial process had been fundamentally altered by the mere giving of the answers to the questions at the compulsory hearing by the two accused. It was said that that prejudicial alteration was "not remediable" and that, as a result, in all of the circumstances the proceedings should be permanently stayed. 20. I respectfully reject that submission. 21. Turning to the circumstances of the compulsory examinations, simply because one officer of the ACC at one stage expressed the opinion that the investigation process had concluded is hardly significant. No doubt many officers of the ACC were working on the whisky schemes, and all of them had their own opinions about the characterisation of what was occurring at various stages. And in any event, it is clear on the evidence that the investigative process was not over in August 2007; Ms Simpkin herself subsequently travelled to Hong Kong as part of the investigation. 22. I take the same view with regard to whatever opinion that individual officer had at some stage about the purpose of compulsory questioning. In any event, because of the operation of statute, none of those answers will be admitted in the trial; because I have made order one, nor will any of the expert opinion evidence of Mr Tang that is based to some degree on that material. 23. As for the final basis of proposed order eight, it may be accepted that the answering of the questions at the compulsory examinations operates to circumscribe the subsequent forensic choices of the two accused, in the ways discussed in X7 v Australian Crime Commission and Lee v The Queen [2014]. But it is worth recalling that the latter case was founded on clearly wrongful dissemination of material to prosecution counsel, and that the former case was founded on compulsory questioning that was to take place after charges had been laid. Neither circumstance pertains here. Furthermore, in X7 v Australian Crime Commission the order granted was a prohibition on the continuation of a compulsory examination, not a permanent stay of the criminal proceedings. Nor in Lee v The Queen [2014] did the High Court put an end to the criminal proceedings: the convictions were quashed and a new trial ordered. 24. Separately, as was recently discussed by the Court of Criminal Appeal in TS v R [2014] NSWCCA 174 at [1] and [61]-[64], the refusal of a court to exercise jurisdiction with regard to an allegation of very serious criminality by way of a permanent stay is an extreme remedy; indeed, a remedy of last resort. I am by no means satisfied that anything that has occurred here calls for a permanent stay of the proceedings against the two accused. Orders 1. It is for the foregoing reasons that I made the following orders: 1. Quincy Tang is prohibited from giving evidence in the trial in accordance with his three statements dated 3 November 2009 and his statement dated 30 June 2010. 2. Dismiss all of the other orders sought in the further amended notice of motion filed 5 August 2014 and the identical notice of motion filed by Mr Raphael. ********** 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. Decision last updated: 24 September 2015