Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: X7 v R [2014] NSWCCA 273 Hearing dates: 25 August 2014 Decision date: 28 November 2014 Before: Bathurst CJ at [1]; Beazley P at [113]; Hidden J at [116]; Fullerton J at [117]; R A Hulme J at [118] Decision: 1.Leave to appeal granted. 2.Appeal dismissed. Catchwords: CRIMINAL LAW - appeal - application for permanent stay - need to identify fundamental defect and unfair consequences or proceedings amount to abuse of process- illegal compulsory examination of charged person about charges - no evidence of actual unfairness caused - no access to transcript of examination Legislation Cited: Australian Crime Commission Act 2002 (Cth), ss 25A, 30, 46B and Div 2 Part II Constitution, Ch III Court Suppression and Non-Publication Orders Act 2010 (NSW) Criminal Appeal Act 1912 (NSW), s 5F Criminal Assets Recovery Act 1990 (NSW), ss 13A, 62 and 63 Criminal Code Act 1995 (Cth) New South Wales Crime Commission Act 1985 (NSW), s 13 Proceeds of Crime Act 2002 (Cth) Cases Cited: Algama v Minister for Immigration and Multicultural Affairs [2001] FCA 1884; (2001) 115 FCR 253 Attorney General for the Commonwealth v Finch (No 2) [1984] HCA 40; (1984) 155 CLR 107 Australian Crime Commission v OK [2010] FCAFC 61; (2010) 185 FCR 258 Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 Bird v Colonial Spark Plugs Proprietary Limited [1942] HCA 11; (1942) 66 CLR 43 Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 Ex parte Zietsch; Re Craig (1944) 44 SR (NSW) 360 Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 Hammond v The Commonwealth of Australia [1982] HCA 42; (1982) 152 CLR 188 Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196 Lee v The Queen [2014] HCA 20; (2014) 88 ALJR 656 Moevao v Department of Labour [1980] 1 NZLR 464 Mortimer v Brown [1970] HCA 4; (1970) 122 CLR 493 Moti v The Queen [2011] HCA 50; (2011) 245 CLR 456 North Ganalanja Aboriginal Corporation v The State of Queensland [1996] HCA 2; (1996) 185 CLR 595 R v CB; MP v R [2011] NSWCCA 264 R v Edwards [2009] HCA 20; (2009) 83 ALJR 717 R v Seller [2013] NSWCCA 42; (2013) 273 FLR 155 R v X [2014] NSWCCA 168 Rees v Kratzmann [1965] HCA 49; (1965) 114 CLR 63 Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 The King v Macfarlane; Ex parte O'Flanagan [1923] HCA 39; (1923) 32 CLR 518 The Queen v Glennon [1992] HCA 16; (1992) 173 CLR 592 Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 Zhao and Jin v The Commissioner of the Australian Federal Police [2014] VSCA 137 Texts Cited: Sir Anthony Mason, "The Use and Abuse of Precedent" (1988) 4 Aus Bar Rev 93 Category: Principal judgment Parties: X7 (Applicant) Crown (Respondent) Representation: Counsel: B W Walker SC / G D Wendler / P Meagher (Applicant) C P O'Donnell / J Single (Crown) Solicitors: John D Weller (Applicant) Commonwealth Director of Public Prosecutions (Crown) File Number(s): 2010/389509 Decision under appeal Date of Decision: 2014-02-21 00:00:00 Before: Hock DCJ File Number(s): 2010/389509 JUDGMENT 1BATHURST CJ: The applicant, (X7), seeks an extension of time to make an application for leave to appeal, and for leave to appeal under s 5F of the Criminal Appeal Act 1912 (NSW) against a refusal by the primary judge to permanently stay any further proceedings on an indictment. The indictment contains the following four counts. First, one count of conspiracy to traffic in a commercial quantity of cocaine, second, one count of conspiracy to import a commercial quantity of cocaine, third, one count of conspiracy to deal with the proceeds of crime and fourth, one count of attempting to possess a controlled drug. Each of the counts on the indictment were said to involve contraventions of the Criminal Code Act 1995 (Cth). 2The issues raised in the appeal are of general importance and both the extension of time and leave to appeal should be granted. Background 3Following his arrest and being charged with the conspiracy offences referred to above, X7 was summonsed to appear and give evidence at an examination under the Australian Crime Commission Act 2002 (Cth) (ACC Act). The legislative scheme under which such examination was to take place is summarised in the joint judgments of French CJ and Crennan J and that of Hayne and Bell JJ in X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 (X7 (No 1)) at [10]-[11] and [72]-[76]. It is unnecessary to repeat what was set out in those paragraphs. For present purposes it is sufficient to note the following matters. 4First, any person examined under the ACC Act is obliged to answer questions put to him or her by an examiner, and a refusal to do so constitutes an offence (ACC Act, s 30(2) and (6)). Second, if a person claims that an answer given or document produced might tend to incriminate him or her, the answer or document is not admissible against the person in criminal proceedings (ACC Act, s 30(4) and (5)). Third, an examination must be held in private (ACC Act, s 25A(3)) and the examiner may direct that evidence or the content of any document produced must not be published or published only to a limited class of persons (ACC Act, s 25A(9)). The latter subsection requires the examiner to make such a direction where a failure to do so may prejudice the fair trial of a person who has been charged with an offence. 5X7 attended the premises of the Australian Crime Commission (the ACC) on 1 February 2011 and gave evidence with respect to the offences for which he had been charged, claiming the privilege against self-incrimination. On the following day he attended with a lawyer and refused to answer questions put to him. He was informed he would be charged with failing to answer questions. The examiner made a direction under s 25A(9) of the ACC Act, which he clarified by stating that the officers of the Commonwealth DPP and police officers associated with the prosecution of the offences with which X7 was charged, were not to receive evidence given by X7. 6X7 subsequently commenced proceedings in the original jurisdiction of the High Court seeking certain declarations and injunctions. Gummow J reserved the following questions for consideration by the Full Court: 1. Does Division 2 of Part II of the ACC Act empower an examiner appointed under s 46B(1) of the ACC Act to conduct an examination of a person charged with a Commonwealth indictable offence where that examination concerns the subject matter of the offence so charged? 2. If the answer to Question 1 is "yes", is Div 2 of Part II of the ACC Act invalid to that extent as contrary to Ch III of the Constitution? 7A majority of the Court held the first question should be answered in the negative. The majority did not find it necessary to answer the second question. Subsequently, X7 applied to the District Court of NSW for a permanent stay of the criminal proceedings relating to the offences for which he had been charged. The primary judge refused to grant such a stay. The appeal is brought from that decision. The reasoning of the primary judge 8The primary judge noted that the evidence established that nobody associated with the investigation of X7 was present at the ACC hearing and that there was no evidence of any dissemination of material obtained at the hearing to anyone involved in the investigation of the charges or their prosecution. Her Honour held that the granting of the stay was discretionary and that the circumstances would usually have to be extreme for such relief to be given. She stated that the right of the applicant to a fair trial must be balanced against the right of the community to expect that people charged with serious offences will be brought to trial. 9The primary judge found that X7 had not demonstrated that he would suffer any actual prejudice were the trial to proceed. In the circumstances she refused to grant a stay. 10Although the notice of appeal raised an additional ground, the only ground ultimately relied upon was that the primary judge erred in the exercise of her discretion in declining to grant a stay. The principal authorities relied upon 11The submissions made on behalf of X7 involved a detailed analysis of four authorities: Hammond v The Commonwealth of Australia [1982] HCA 42; (1982) 152 CLR 188 (Hammond), X7 (No 1), Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196 (Lee (2013)) and Lee v The Queen [2014] HCA 20; (2014) 88 ALJR 656 (Lee (2014)). It is useful in understanding the submissions made in the appeal to have regard to the issues raised in these cases and what was said in them relevant to this appeal. (a) Hammond 12Hammond involved the claim for an interlocutory injunction seeking to restrain a Royal Commissioner from questioning the appellant on matters in respect of which he had been charged with criminal offences. 13The relevant legislation provided that it was an offence to refuse to answer any questions relevant to the inquiry. It also provided that no statement made by any person, in answer to any question before the Commission, should be admissible in any proceedings against him or her, nor be made the ground of any prosecution, action or suit against him or her. 14The ground of the application was that examination of Mr Hammond would constitute contempt of the court before which the criminal proceedings were pending. Gibbs CJ (with whom Mason J agreed) pointed out at 196 that to succeed Mr Hammond had to establish that there was a real risk, as opposed to a remote possibility, that the administration of justice would be interfered with if the Commission proceeded with the examination. 15Gibbs CJ held there was such a risk. His conclusion was expressed as follows at 198: "Once it is accepted that the plaintiff will be bound, on pain of punishment, to answer questions designed to establish that he is guilty of the offence with which he is charged, it seems to me inescapably to follow, in the circumstances of this case, that there is a real risk that the administration of justice will be interfered with. It is clear that the questions will be put and pressed. It is true that the examination will take place in private, and that the answers may not be used at the criminal trial. Nevertheless, the fact that the plaintiff has been examined, in detail, as to the circumstances of the alleged offence, is very likely to prejudice him in his defence. In the Builders Labourers' Case I expressed the opinion that, if during the course of a commission's inquiries into allegations that a person had been guilty of criminal conduct, a criminal prosecution was commenced against that person based on those allegations, the continuance of the inquiry would, generally speaking, amount to a contempt of court, and that the proper course would be to adjourn the inquiry until the disposal of the criminal proceedings." 16Brennan J reached the same conclusion. He stated at 202 that it was sufficient for the purpose of the case to appreciate the deep-rooted principle that the Crown may not subject any person to compulsory process to obtain answers upon the issue of the guilt of an offence with which he or she has been charged. 17Deane J reached the same conclusion, stating at 207 that subjecting the plaintiff to questioning and being charged for refusing to answer questions, of itself constitutes an injustice and prejudice to the plaintiff. He also stated at 208 that a person who is the subject of pending criminal proceedings in a court of law should not have their part in the proceedings investigated in a parallel inquisitorial inquiry. He stated that such an investigation constitutes an interference with the administration of justice. 18The decision in Hammond did not involve a finding that a particular question proposed to be asked or any use made of the answers would give rise to prejudice. Rather, the point was made that the fact of an examination on matters the subject of the charge gave rise to a real risk of interference with the administration of justice and was very likely to prejudice Mr Hammond in his defence. In X7 (No 1) this proposition was said to be correct. (b) X7 (No 1) 19In X7 (No 1), a majority of the High Court held that the provisions of the ACC Act, which I have summarised, did not authorise the examination by the ACC of a person in respect of matters for which he or she had been charged with criminal offences. 20Hayne and Bell JJ delivered a joint judgment. They stated at [70] that permitting the Executive to ask, and requiring an accused person to answer, questions about the subject matter of a pending charge would alter the process of criminal justice to a marked degree, whether or not the answers given by the accused are admissible at trial or kept secret from those investigating and prosecuting the charge. Their Honours explained at [71] that any admission made at the examination would hinder, even prevent, the accused from challenging at trial that aspect of the prosecution case. They stated that that would radically alter what would otherwise be a wholly accusatorial process in which the accused may simply test the sufficiency of the prosecution's evidence. They stated a statutory alteration of that nature would need to be expressed in clear terms. Their Honours emphasised this point again at [85] and [87]. 21Their Honours stated at [118] that every stage of the process of criminal justice is accusatorial. They stated that if the provisions of the ACC Act were to permit a compulsory examination of a person charged, they would effect a fundamental alteration to the process of criminal justice. 22Their Honours explained the impact on the accusatorial process in the following terms: "[124] Even if the answers given at a compulsory examination are kept secret, and therefore cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers, after being charged, would fundamentally alter the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial (and adversarial) trial in the courtroom. No longer could the accused person decide the course which he or she should adopt at trial, in answer to the charge, according only to the strength of the prosecution's case as revealed by the material provided by the prosecution before trial, or to the strength of the evidence led by the prosecution at the trial. The accused person would have to decide the course to be followed in light of that material and in light of any self-incriminatory answers which he or she had been compelled to give at an examination conducted after the charge was laid. That is, the accused person would have to decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to what answers he or she had given at the examination. The accused person is thus prejudiced in his or her defence of the charge that has been laid by being required to answer questions about the subject matter of the pending charge." The decision in Hammond was expressly affirmed: "[136] Two consequences follow. First, the actual decision in Hammond cannot be dismissed from consideration on the basis that it was decided in haste or improvidently. Secondly, the identification by Gibbs CJ of why continued examination of Mr Hammond would be a contempt is not to be treated as if expressed too loosely. Gibbs CJ said that: 'Once it is accepted that [Mr Hammond] will be bound, on pain of punishment, to answer questions designed to establish that he is guilty of the offence with which he is charged, it seems to me inescapably to follow, in the circumstances of this case, that there is a real risk that the administration of justice will be interfered with.' (Emphasis added) The 'circumstances of this case' to which Gibbs CJ referred were identified as including the fact 'that the examination will take place in private, and that the answers may not be used at the criminal trial'. But the interference with the administration of justice, and thus the contempt, was identified as lying in 'the fact that [Mr Hammond having] been examined, in detail, as to the circumstances of the alleged offence, is very likely to prejudice him in his defence'. It would prejudice him in his defence because he could no longer determine the course he would follow at his trial according only to the strength of the case that the prosecution proposed to, and did, adduce in support of its case that the offence charged was proved beyond reasonable doubt." (References omitted). 23Their Honours stated at [140] that Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 (Hamilton v Oades) and the cases which preceded it, Rees v Kratzmann [1965] HCA 49; (1965) 114 CLR 63 (Rees v Kratzmann) and Mortimer v Brown [1970] HCA 4; (1970) 122 CLR 493 (Mortimer v Brown), emphasised that the compulsory examinations would be conducted before a court which had the power to prevent abuse. They stated these cases depended upon the historical pedigree of the legislation there being considered. 24Kiefel J agreed with the reasons of Hayne and Bell JJ. Her Honour emphasised what she described at [159] as a fundamental principle of the common law, that the onus of proof rests upon the prosecution and its companion rule that an accused person cannot be required to testify to the commission of the offence charged. She also emphasised that the accusatorial nature of the system involves not only the trial itself but also pre-trial inquiries and investigations. 25It should be noted that Hayne and Bell JJ emphasised that their conclusions did not depend on classifying the trial after a secret and compulsory examination as an unfair trial. They stated at [89] that the relevant question was whether the accused would have a trial according to law. In this context they made the following comments: "[93] Thirdly, there may very well have been an antecedent question of policy: should the legislature provide for an examination of the kind described? That would have been a question for the legislature. And it is a question which may well have been affected by notions of what is 'fair' or 'unfair'. But in considering the first, and in this case determinative, question identified (has the legislature provided for an examination of the kind described?), debate about the fairness of the outcome would serve only to divert discussion into generally unproductive arguments of the kind which have attended discussion of the privilege against self-incrimination. More particularly, the debate would necessarily proceed from stated or unstated assumptions about how a balance should be struck in the criminal justice system between individual rights, privileges and immunities, and societal demands for the detection and punishment of crime, especially serious crime. It is neither right nor profitable to approach the questions of construction which must be decided in this case by describing one or other of the possible constructions as leading to 'unfair' or 'undesirable' results." 26French CJ and Crennan J dissented. Their Honours pointed out at [36] that it was critical to appreciate that the injunctive relief in Hammond was granted in circumstances where the prosecution was to have access to evidence and information which was in contrast to the safeguards in the ACC Act. They emphasised at [38] that the right to a fair trial extends to the whole course of the criminal process. They pointed to the fact, referring to Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 (Jago) and Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 (Barton), that the power to prevent an abuse of process is an incident of the general power to ensure fairness. 27They stated at [53] that executive inquiries into offences under some statutory schemes are capable of prejudicing a fair trial of an accused person by giving the prosecutor an unfair forensic advantage, including making use of derivative evidence. 28Their Honours emphasised at [54] that given the onus on the prosecution to prove an offence, and the non-compellability of the accused, in the absence of a factor such as the independent sourcing of evidence, it is not possible to reconcile a fair trial with reliance on compulsorily obtained evidence (from the accused person). 29Their Honours concluded at [60] that the protective provisions in s 25A of the ACC Act were sufficient to demonstrate that the examination provisions did not authorise executive interference with the process of criminal trials. They stated that whether a direction under s 25A would be sufficient to prevent the prosecution from obtaining an unfair advantage could not be stated in a categorical or exhaustive fashion. They said it would be necessary to consider the nature of the evidence, as well as the role of the person who had access to such evidence and who might make use of it. (c) Lee (2013) 30Somewhat similar issues arose in Lee (2013). The case, like X7 (No 1), involved a question of statutory construction. The question was whether the provisions of the Criminal Assets Recovery Act 1990 (NSW) (CAR Act) authorised the compulsory examination of a person who had been charged with an offence in respect of the matters the subject of the charge. A majority of the High Court said that as a matter of construction, the CAR Act authorised such an examination. 31The legislative scheme contained in the CAR Act is set out in detail in the judgment of Crennan J at [92]-[110] and in the judgment of Gageler and Keane JJ at [271]-[290]. It is not necessary to do more than identify its principal features. 32The CAR Act empowers the Supreme Court to make orders, including confiscation and forfeiture orders, in respect of the property of a person, where it is found to be more probable than not that the person has engaged in serious crime related activities. Ancillary to those powers is a power conferred on the NSW Crime Commission to apply for a restraining order in respect of an interest in property. Importantly, the CAR Act also allows for the Supreme Court, at a time it makes a restraining order or at a later time, to make an order for examination before the Court of the owner of the interest in the property subject to the restraining order, or another person concerning the affairs of the owner. 33Section 13A of the CAR Act provides that a person cannot refuse to answer questions or produce a document on the ground of self-incrimination. However, s 13A(2) states that any such answer or document is not admissible in criminal proceedings against that person, if objection is taken at the time of answer or production. 34Section 63 of the CAR Act provides that the fact that criminal proceedings have commenced is not a ground to stay proceedings which are not criminal proceedings. Proceedings under the CAR Act themselves are not criminal proceedings. 35There is no specific provision in the CAR Act equivalent to s 25A(9) of the ACC Act. However, until its repeal in 2010, s 62 of the CAR Act permitted the Supreme Court to make orders with respect to the publication of any matter arising under the act. Since the repeal of that section the Court Suppression and Non-Publication Orders Act 2010 (NSW) provides the equivalent protection. 36French CJ said at [3] that courts do not interpret a statute to permit questioning of the nature of that complained of unless expressly authorised or permitted by necessary implication. 37His Honour stated at [25], after referring to The King v Macfarlane; Ex parte O'Flanagan [1923] HCA 39; (1923) 32 CLR 518, that as a general proposition the nature and extent of prejudice to a person required to answer questions concerning matters the subject of pending criminal charges, will depend in part on the statutory context and, in particular, the protections which the statute affords concerning the use which may be made of the answers. He also indicated that the prejudice may depend on whether the examination is conducted by a judicial officer and the extent of that officer's discretion to control the examination so as to limit prejudice. 38His Honour expressed the view at [36] that the decision in Hammond was of limited utility in the appeal before him, as it did not concern an examination subject to the judicial control and discretion of the kind available under the CAR Act. He stated at [43] that the case before the Court was much closer to Hamilton v Oades than to Hammond. He distinguished X7 (No 1) for the same reason, namely, that the examination in that case was not to be conducted by judicial officers, but officers of the ACC. In the circumstances, he held the CAR Act permitted the examination, emphasising that the question was one of power, not whether the discretion to order the examination should have been exercised. He concluded as follows: "[54] It may be accepted that the examination process under the CAR Act may, if it touches upon matters the subject of pending criminal charges against the examinee, affect the accusatorial character of the trial process. Even if the responses of the examinee to questions put to him or her were kept secret and were solely exculpatory or did no more than disclose defences to the charges, the examinee could be said to have suffered a forensic disadvantage. The nature of that disadvantage was discussed in the joint judgment of Hayne and Bell JJ in X7. I do not, with respect, disagree with anything their Honours said in the description of that disadvantage. [55] In my opinion, however, those considerations did not deprive the Court of Appeal of power to make the orders it did in this case. In so saying, I observe that the grounds of appeal for which special leave was granted do not raise any question whether the Court of Appeal's discretion miscarried when it made the orders it did. The question is one of power." (References omitted). 39The passage from X7 (No 1), referred to at [54] of the judgment of French CJ in Lee (2013), was the passage at [124] of the judgment of Hayne and Bell JJ in X7 (No 1), which I have set out above. 40Crennan J referred at [125] to what was said by French CJ and her in their joint judgment in X7 (No 1) in relation to the concept and importance of a fair trial, the principle that the onus of proof rests on the prosecutor whom the accused is not required to assist and the rule that the accused is not compellable at his or her trial. She stated at [126] that it was a settled principle that statutory provisions are not to be construed as abrogating fundamental rights or immunities in the absence of clear words or a necessary implication. 41Her Honour also accepted that without an immunity from derivative use, as well as direct use of evidence obtained in a compulsory examination, the accused is not in as good a position as he or she would have been if the privilege had not been abrogated. She stated at [137] that Meagher JA was correct in stating in his judgment in the Court of Appeal that in the present case derivative use was protected by requiring the examination to take place before a judicial officer, having the inherent power to ensure the proper administration of justice. She emphasised that the power to make restraining orders and ancillary orders was one that was to be exercised judicially. 42Her Honour said at [148] that the distinction drawn by Gibbs CJ in Hammond between a real risk and a remote possibility was longstanding, practical and familiar. She stated that under the provisions of the CAR Act the Court's power to control an examination can prevent the prosecution obtaining an unfair forensic advantage and the precise circumstances of Hammond can be avoided. She stated at [154] that if, notwithstanding those protections, there is a real risk of interference with pending criminal proceedings, it is impliedly authorised by the legislature. 43Gageler and Keane JJ reached a similar conclusion. Their Honours summarised the argument advanced by the appellant in the following terms: "[305] In support of that refocused argument, it was put for the appellants that (even if answers given and documents produced in an examination could be quarantined from all knowledge or use by the prosecution) the compulsory examination on oath of a person against whom criminal proceedings are pending on a matter touching or concerning the subject matter of those criminal proceedings is inherently prejudicial to the person's conduct of those proceedings. That was said to be because the answers given and documents produced by the person in the examination would inevitably constrain the instructions on which the legal representatives of the person could act in the criminal proceedings: the legal representatives would be ethically bound not to lead evidence or cross-examine or make submissions to suggest a version of the facts which contradicted that given by their client on oath in the examination." 44Their Honours rejected the proposition that that argument compelled the conclusion that the CAR Act did not authorise the compulsory examination of a charged person. They stated at [322] that Hammond is not authority for the proposition that a real risk to the administration of justice necessarily, or presumptively, arises, by reason only of the exercise of a statutory power to compel the examination on oath of a person, against whom criminal proceedings have commenced but not been completed, where the subject matter of the examination will overlap with the subject matter of the proceedings. They stated that X7 (No 1) did not embrace such a proposition. 45Their Honours then made the following remarks: "[323] There is a variety of ways in which, as a matter of practical reality, the examination on oath of a person against whom criminal proceedings have been commenced may have a tendency to give rise to unfairness amounting to an interference with the due course of justice in a particular case. The deprivation of a legitimate forensic choice available to the person in those proceedings may be one of those ways. However, we are unable to regard as the deprivation of a legitimate forensic choice a practical constraint on the legal representatives of the person leading evidence or cross-examining or making submissions in the criminal proceedings to suggest a version of the facts which contradicted that given by their client on oath in the examination. The legal representatives would, of course, be prevented from setting up an affirmative case inconsistent with the evidence but they would not be prevented from ensuring that the prosecution is put to proof or from arguing that the evidence as a whole does not prove guilt. [324] The notion that any subtraction, however anodyne it might be in its practical effect, from the forensic advantages enjoyed by an accused under the general law necessarily involves an interference with the administration of justice or prejudice to the fair trial of the accused is unsound in principle and is not consistent with Hamilton v Oades. To accept that a criminal trial 'does not involve the pursuit of truth by any means' is not to condone as legitimate the pursuit of falsehood. The words of Lord Scarman in R v Sang, concerning the judicial discretion to exclude legally admissible evidence on the ground of unfairness, resonate more widely: 'The test of unfairness is not that of a game: it is whether ... the evidence, if admitted, would undermine the justice of the trial. Any closer definition would fetter the sense of justice, upon which in the last resort all judges have to rely: but any extension of the discretion ... would also undermine the justice of the trial. For the conviction of the guilty is a public interest, as is the acquittal of the innocent. In a just society both are needed.'" (References omitted). 46Hayne, Kiefel and Bell JJ dissented. Hayne J agreed with the reasoning of Kiefel J. He stated that Hammond was not confined to its own facts and was not overtaken by the decision in Hamilton v Oades. He stated at [69] that there was no relevant difference between the provisions of the CAR Act and the legislation in X7 (No 1). He stated any difference in opinion as to what was decided in Hammond and Hamilton v Oades was settled by X7 (No 1). He stated that the only thing which had changed since X7 (No 1) was a change in the composition of the Court, which was not a reason for overruling the earlier decision. 47Kiefel J stated at [163] that there could be little doubt that the material the subject of the examination would be made available to the prosecuting authorities. However, she stated that in addition there was a real risk, if not the likelihood, that aspects of the appellant's trial would differ from a criminal trial as it is ordinarily conducted, especially in its accusatorial aspects. She stated that rather than the prosecutor being required to prove the case without assistance from the appellant, the examination was likely to result in the prosecution being advantaged in the conduct of its case and the appellant being prejudiced. 48Her Honour described the principle that the prosecution must discharge the onus of proof and cannot compel the accused to give evidence for it, as "the fundamental principle" of the common law, stating that it was an essential aspect of the criminal justice system. She said that as stated in X7 (No 1), it was the fundamental principle and accusatorial system of criminal justice to which attention must be directed in construing a statute which requires a person charged with an offence to answer questions concerning that offence. 49Her Honour stated at [182] that the fundamental principle is best understood in the context of the accusatorial system of criminal justice, which reflects the balance struck between the power of the state to prosecute an individual and the position of the individual who stands accused. 50Her Honour referred to the conclusion reached in Hammond in the following terms: "[213] The conclusion that was reached in Hammond was that an examination of an accused person risks an interference with the administration of justice because it may prejudice the person in his or her defence. It follows that if general legislation which provides for compulsory examination was to be read as permitting the examination of an accused person, the principle fundamental to the accusatorial system of justice would be altered. That proposition was accepted and applied by a majority of this Court in X7. Hammond is not to be distinguished on the basis that the legislation there in question concerned an examination by the executive, whereas the CAR Act involves an examination by the executive before the Supreme Court or an officer of the Court. As will be explained later in these reasons, the same conclusion as to the risk to the administration of justice is reached in each case. Given the need for continuity and consistency in judicial decisions, X7 should be followed." (References omitted). 51Her Honour stated at [241]-[249] that cases such as Hamilton v Oades and bankruptcy legislation, which provides for compulsory examination, should not be extended to areas of law where the fundamental principle operates. She stated at [249] that the trilogy of bankruptcy and corporation liquidation cases, Rees v Kratzman, Mortimer v Brown and Hamilton v Oades, resulted from a historical anomaly. 52Bell J agreed with the orders proposed by Kiefel J and her Honour's reasons. She noted at [258] that the respondent did not submit that X7 (No 1) was wrongly decided. She stated at [264] that the idea, that compelling a person to give an account of circumstances of a criminal charge pending before the courts creates a real risk to the administration of justice, is not a novel one. She stated that the prejudice flowing from an examination of the nature of that in question is not remote or fanciful. (d) Lee (2014) 53Whereas X7 (No 1) and Lee (2013) concerned the construction of the ACC Act and the CAR Act respectively, Lee (2014) involved a case where transcripts of examinations of the appellants conducted under the provisions of the New South Wales Crime Commission Act 1985 (NSW) were made available to the prosecution authorities in contravention of s 13(9) of that act. The examination in that case took place prior to charges being laid for one appellant, whilst the other appellant had been charged with an offence prior to the examination. 54The Court, following X7 (No 1), held that such disclosure constituted a departure in a fundamental respect from a criminal trial to which an accused person is entitled. The Court stated at [19] that in those circumstances the Court of Criminal Appeal should have made orders quashing the conviction and ordering a retrial. 55In reaching that conclusion the Court at [31]-[32] explained the principle to be derived from X7 (No 1) in the following terms: "[31] In X7, a majority of this Court held that the powers of compulsory examination given to the Australian Crime Commission were not to be construed as applying to persons already charged with offences the subject of the examination. To do so would be to depart from the accusatorial nature of the criminal justice system in a fundamental respect. Clear words or those of necessary intendment were therefore necessary and neither were present in the legislation in question. As such, it was not necessary for the majority in X7 to consider the protective purpose of a provision similar to s 13(9). However, French CJ and Crennan J, who were in dissent, did so. It was a matter of some significance to their Honours' reasoning that the legislation, in providing for a direction regarding non-publication, did so in order to safeguard the examined person's trial as fair. [32] Our system of criminal justice reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person. This was accepted as fundamental in X7. The principle is so fundamental that 'no attempt to whittle it down can be entertained' albeit its application may be affected by a statute expressed clearly or in words of necessary intendment. The privilege against self-incrimination may be lost, but the principle remains. The principle is an aspect of the accusatorial nature of a criminal trial in our system of criminal justice." (References omitted). 56The Court pointed out at [41], again referring to X7 (No 1), that an accused person may be prejudiced because he or she can no longer determine the course to take at trial according only to the strength of the prosecution case. It was emphasised at [43] that the appeal did not fall to be decided by whether "practical unfairness" was demonstrated, but rather the case was one concerning the very nature of a criminal trial and its requirements in our system of justice. The concluding sentence of that paragraph stated that the appellants' trial was altered in a fundamental respect by the prosecution having the appellants' evidence before the NSW Crime Commission. 57The Court stated at [44] that the prosecution should have alerted the trial judge to the situation so steps could be taken to ensure the trial was not affected. The Court said that the trial judge could have ordered a temporary stay while another prosecutor and other DPP personnel, not privy to the evidence, were engaged. The Court expressed this conclusion in the following terms: "[46] In X7, it was held that the compulsory examination of a person with respect to an offence with which the person stands charged would be a departure, in a fundamental respect, from that principle. X7 was ultimately concerned with questions of statutory construction. Nevertheless, the point it makes about what may amount to a fundamental departure from a criminal trial as it is comprehended by our system of criminal justice is relevant to this case. It is a breach of the principle of the common law, and a departure in a fundamental respect from a criminal trial which the system of criminal justice requires an accused person to have, for the prosecution to be armed with the evidence of an accused person obtained under compulsion concerning matters the subject of the charges. It cannot be said that the appellants had a trial for which our system of criminal justice provides and which s 13(9) of the NSWCC Act sought to protect. Rather, their trial was one where the balance of power shifted to the prosecution." (References omitted). The parties' submissions (a) X7 58In written submissions filed on behalf of X7, it was submitted that the interrogation was a contempt of court and an abuse of the accusatorial process. It was also said to be an interference with the exercise of Commonwealth judicial power. Ultimately, no constitutional issue was raised in the proceedings. 59It was submitted that the focus in Lee (2014) was not on a demonstration of practical unfairness but rather upon the "transmogrification of the adversarial system of criminal justice". 60It was submitted that the primary judge erred by requiring that actual prejudice be demonstrated before a stay be ordered. The submissions referred to Moti v The Queen [2011] HCA 50; (2011) 245 CLR 456 (Moti v The Queen) as an example of a case where a stay was granted for an abuse of process despite the trial being otherwise fair. It was submitted that the examination after charge must entail some legal consequences, which can only be expressed as a termination of the prosecution. 61In the written submissions, it was put that it was not possible to reconcile an open accusatorial system of criminal justice with a situation where accused persons are placed in a position where they are left with a mere assurance from the executive government that the trial is not unfair. This submission, which seemed to be based on the proposition that it would not be possible to ascertain whether derivative use had been made of any evidence obtained during the investigation, ignored the finding by the primary judge that there was no evidence of dissemination of any of the relevant material to investigating or prosecuting authorities. This was accepted by senior counsel for X7 at the hearing, who put his client's case on a more fundamental basis. 62The submissions at the hearing focused on the authorities to which I have referred in pars [11]-[57] above. Senior counsel for X7 based his argument essentially on the following propositions. First, X7 (No 1) concluded that there was no power to examine X7 after he was charged. Second, the examination was a contempt of court resulting in a fundamental alteration of the accusatorial judicial process. Third, there was nothing which could be done by the trial judge to remedy what had taken place. In these circumstances, it was submitted that the only option available to the Court was to permanently stay the proceedings. 63Senior counsel for X7 submitted that it was erroneous to regard the possibility of a fair trial as the only or governing criterion. He submitted that what is required is a trial according to law. 64In his opening submissions, senior counsel for X7 emphasised that the trial judge could do nothing about the fact that the examination had occurred and that it should not be the case that an applicant for a stay has to provide actual rather than assumed examples of prejudice. 65Senior counsel for X7 submitted that consequent on the decision in X7 (No 1), it was not possible to entertain argument that Hammond contains nothing binding on this Court by way of rules or principle. He repeated the submission that at the heart of the matter was the necessity for the trial to be a trial according to law. He pointed to Moti v The Queen as an example of where a stay was granted, not because of unfairness in the process, but to vindicate lawfulness in such process. 66Senior counsel for X7 submitted that the Court in Lee (2014) ordered a retrial rather than a permanent stay as there was no stay application "live" in that matter. He submitted that the order for a retrial put the process of criminal justice back in motion, including the right of the prosecutor to file a nolle prosequi or the applicant to apply for a stay. 67Senior counsel for X7 submitted that Lee (2014) supported his propositions, notwithstanding the remarks at [46] of the judgment to the effect that it was a fundamental departure from a criminal trial, as comprehended by our system of justice, for the prosecutor to be armed with evidence of an accused (see par [57] above). He submitted that although that was the particular factual situation which confronted the Court in Lee (2014), the Court's approval of X7 (No 1) indicated acceptance that the fundamental departure lay in the questioning, rather than in the disclosure. He submitted that that was made clear from the passages in X7 (No 1), specifically cited in Lee (2014), particularly at [124] of X7 (No 1) referred to in par [22] above. He also submitted that what was said at [32] of the judgment in Lee (2014) was to similar effect. 68Senior counsel for X7 noted that in Lee (2014) the Court stated at [41] that an accused person may be prejudiced because he or she can no longer determine the course to take at trial according to the strength of the prosecution case, citing [124] and [136] of X7 (No 1) (see par [22] above). He submitted that the decision of the trial judge in the present case was based on "unfairness", contrary to what was said by the Court in Lee (2014) at [43]. 69Senior counsel for X7 also submitted that the reference to a temporary stay at [44] of Lee (2014) did not undermine his argument. He submitted that that passage had to be read in conjunction with what was said at [45] of the judgment, which pointed out that the decision of the Court of Criminal Appeal in that case was delivered before the decision in X7 (No 1) was handed down. It was not made entirely clear how this fact influenced what was said by the Court at [44]. 70Senior counsel for X7 accepted that the concern of the dissenting judges at [53] and [54] in X7 (No 1), to which I have referred in pars [27] and [28] above, focused on disclosure. However, he submitted that the judgment of Hayne and Bell JJ made it clear that the fundamental departure from the requirement of a fair trial according to law is the questioning rather than the disclosure. He referred to the emphasis of this point at [85] of X7 (No 1), which was cited with approval in Lee (2014) at [46], fn 31. 71In that context, senior counsel asked rhetorically, how could it be said that, notwithstanding what was said at [44] of Lee (2014), something which is not a trial according to law can be something which in the administration of justice is allowed to proceed. He submitted it was time for a court to say that a contempt of this nature is not of a kind which can be purged so as to bring about the practical equivalent at trial of the secrecy that the High Court was at pains in X7 (No 1) to say was not to the point. He emphasised what was said at [124] in X7 (No 1) and at [136] of that judgment concerning Hammond. 72Senior counsel for X7 submitted that the distinguishing feature in Lee (2013) was that it involved the exercise of discretion by a judicial officer and was thus no authority on any issue in the present proceedings. He accepted his submission was contrary to what was said by Gageler and Keane JJ at [323] and [324] of their judgment in Lee (2013). However, he stated those passages were contrary to what was said in X7 (No 1) and did not form part of the ratio in Lee (2013). He submitted taking practical injustice as the criterion on which a stay should be granted was contrary to what was said at [43] of Lee (2014). 73Senior counsel for X7 further submitted that what was said by Gageler and Keane JJ at [323] and [324] of their judgment in Lee (2013), was contrary to what was said by French CJ in that case at [54] (see par [38] above). He also submitted that it was not supported by what was said by Crennan J in her judgment. 74So far as Hammond was concerned, senior counsel for X7 referred to that part of the judgment of Gibbs CJ to which I have referred in par [15]. He also emphasised that the Chief Justice in that case said that the fact of questioning would give rise to a real risk of interference with the administration of justice. He referred to the remarks of Deane J to which I have also referred, submitting that if what occurred was injustice and would result in a trial differing in the fundamental respect from what was required, it must produce an entitlement to a stay. 75Senior counsel accepted his submissions were contrary to a recent decision of this Court in R v X [2014] NSWCCA 168 (R v X), but submitted that case was wrongly decided. (b) The Crown 76The Crown emphasised that the power to stay criminal proceedings is reserved for the most exceptional circumstances. It was submitted that actual prejudice going to the root of the trial must be shown before a stay will be granted. It was submitted that X7 (No 1) is not authority for the proposition that the fact of an examination grounds a permanent stay of the charges. 77The Crown submitted that in reaching its conclusion concerning the correct construction of the ACC Act in X7 (No 1), the majority reasoning was confined to the question of construction and drew no conclusion about the actual effect of the unlawful questioning by the ACC. 78The Crown referred to the fact that in Lee (2014) at [3] the Court noted that the majority in X7 (No 1) did not consider the protective purposes of s 25A(9) of the ACC Act, but that this provision was of some significance to the reasoning of the dissentients, in that the legislation provided for a direction regarding non-publication in order to safeguard a person's right to a fair trial. The Crown emphasised that in Lee (2014) the Court ordered a retrial, not an acquittal or a permanent stay. It was submitted that Lee (2014) suggested the appropriate order was not a permanent stay but rather a temporary stay, whilst quarantined prosecution personnel are engaged, or where a trial has been infected by unlawful dissemination, a retrial conducted by quarantined personnel. 79The Crown submitted that this approach was consistent with the decisions of this Court in R v CB; MP v R [2011] NSWCCA 264 (R v CB) and R v Seller [2013] NSWCCA 42; (2013) 273 FLR 155 (R v Seller). In respect of the former, the High Court, on a special leave application, stated that the basis of the decision of the Court of Criminal Appeal was not affected by the subsequent decision in X7 (No 1). In respect of the latter case, special leave was refused, the refusal of leave taking place subsequent to the decision in X7 (No 1). 80The Crown submitted that Hammond did not determine that it would be appropriate to permanently stay the proceedings. However, it must be remembered that in that case Mr Hammond had declined to answer any questions. 81The Crown also submitted that at [323]-[324] of the judgment of Gageler and Keane JJ in Lee (2013), their Honours made it clear that they did not regard a pre-trial examination of an accused as resulting in a necessary deprivation of legitimate forensic choice to the accused. 82Counsel for the Crown pointed out that in X7 (No 1) Hayne and Bell JJ stated at [93] that their decision did not depend on classifying the trial as an unfair trial. He submitted that the majority's decision did not contradict the proposition in earlier authorities that actual prejudice, going to the root of the proceedings, that cannot be ameliorated by the trial judge, must be demonstrated in order to obtain a permanent stay. He submitted that X7 (No 1) did not bind this Court in determining whether or not a stay should be granted. Consideration 83None of the cases to which I referred above considered the question of whether, and in what circumstances, a permanent stay should be granted if examination of a charged person, unauthorised by statute, took place, or the content of an authorised examination had been transmitted to prosecuting authorities contrary to a direction designed to protect the accused person against derivative use of the answers and other material obtained as a result of the examination. It is necessary to consider this question both having regard to what was decided in the cases referred to above and the principles surrounding the grant of a stay in criminal proceedings. 84In Barton, which concerned an application for a stay of proceedings commenced by ex officio indictment, Gibbs ACJ and Mason J stated at [95] that in exercising its power to prevent an abuse of process, the Court will on rare occasions be required to consider whether a prosecution should be permitted to continue. They stated at [96] that there was ample authority for the proposition that the courts possess all necessary powers to prevent an abuse of process and to ensure a fair trial. 85In Jago, Mason CJ at 30 referred with approval to what was said, by Richardson J in Moevao v Department of Labour [1980] 1 NZLR 464 at 482, to be the rationale for the exercise of the power to stay a prosecution: "The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor ... that the Court processes are being employed for ulterior purposes or in such a way ... as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognized purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court." 86Mason CJ emphasised at 30-31 that the public interest in holding a trial does not warrant the holding of an unfair trial. However, he stated the power to stay proceedings will be exercised only in an extreme circumstance. He stated at 34, referring to what was said by Wilson J in Barton at 111, that to justify a permanent stay in criminal proceedings there must be a fundamental defect, which goes to the root of the trial and is of such a nature that there is nothing that the trial judge can do in the conduct of the trial to relieve against its unfair consequences: see also Brennan J at 47-48 and Gaudron J at 75. 87In The Queen v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 605 Mason CJ and Toohey J repeated the statement made by Mason CJ in Jago at 34. This statement, made in the context of an application for a stay based on adverse pre-trial publicity, was said by the High Court in Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 (Dupas v The Queen) at [18] to be an authoritative statement of principle. 88In Dupas v The Queen the Court stated at [35] that describing a case as extreme or singular recognises the rarity of the situation in which the unfair consequences cannot be relieved against by the trial judge during the course of the trial. The Court stated the question to be asked is not whether the case can be described as extreme, but rather, whether the apprehended defect is of such a nature that nothing a trial judge can do will relieve against its unfair consequences. 89In Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 520 Mason CJ, Dawson, Toohey and McHugh JJ identified two fundamental policy considerations affecting abuse of process in criminal proceedings: "The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice." See also Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 at [8]. 90In Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 (Walton v Gardiner) the majority at 392 approved the statement by Gleeson CJ and Kirby P in the Court of Appeal; namely, that the Court had power to stay proceedings if satisfied the proceedings would be unfairly and unjustifiably oppressive so as to constitute an abuse of process. They also approved the statement of Mahoney JA that the question was whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness: see also R v Edwards [2009] HCA 20; (2009) 83 ALJR 717 (R v Edwards) at [22]-[23]. 91These authorities demonstrate three matters. First, the power to grant a permanent stay is one that rarely will be exercised. That is unsurprising as in criminal proceedings there are significant countervailing considerations, namely, the interests of the community and the victims of crime in the enforcement of the criminal law: see, for example, Jago at 54 per Brennan J. 92Second, a stay will be ordered where there is a fundamental defect of such a nature that there is nothing a judge can do in the conduct of the trial to relieve against its unfair consequences. Implicit in that proposition is that it is necessary to identify both the fundamental defect and the unfair consequences. In that context, it is important to bear in mind that in considering what was said in Walton v Gardiner, the Court in R v Edwards emphasised at [22]-[23] the use of the words "would" be unfairly or unjustifiably oppressive as distinct from "could" be unfairly or unjustifiably oppressive. In each of the cases to which I have referred, the nature of the prejudice was identified to be either that there was delay in the bringing of the proceedings, adverse pre-trial publicity or the proceedings were brought for an improper purpose. That is not to say the categories where such a stay is granted are closed, but merely that in each case particular prejudice to the applicant for a stay was sought to be demonstrated. 93Third, irrespective of whether or not unfairness is demonstrated, a stay may be granted if the proceedings in question are an abuse of process in the sense that the use of the court proceedings brings the administration of justice into disrepute: Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 at 286 and Moti v The Queen at [10]. 94In three cases this Court has declined to order a stay in circumstances somewhat similar to the present. The first was R v CB. CB had been examined under the provision of the ACC Act after being charged. The Court concluded at [108], following the judgment of the majority of the Full Federal Court in Australian Crime Commission v OK [2010] FCAFC 61; (2010) 185 FCR 258 (OK), that the ACC Act permitted an examination to continue on a matter the subject of a pending criminal charge so long as the protective provisions in s 25A were invoked. That conclusion was incorrect having regard to the decision in X7 (No 1). 95The Court declined to grant a stay. In that context McClellan CJ at CL, with whom Buddin and Johnson JJ agreed, made the following comments at [128]: "[128] Although I accept that questions were asked of the appellant during his examination relating to matters relevant to the charges, accepting as I do that the majority decision in OK should be followed, provided the information obtained was effectively protected as the Commission acknowledged it should be, the mere fact that an examination has occurred could not justify a permanent stay. Even if, and the evidence does not establish this fact, it was the case that questions were asked which required the appellant to disclose his defence, this would not of itself have the consequence that the appellant would be denied 'a fair trial'. Only if it can be shown that either the relevant information has been, or there was a real risk that it would be communicated to the prosecution, could it be concluded that the exceptional step of granting a permanent stay should be taken." 96Care must be taken with this conclusion having regard to the reliance on OK. However, as I indicated, a special leave application subsequent to X7 (No 1) was refused. French CJ, who heard the special leave application with two other justices, made the following remarks in dismissing the application: "This application turns upon the question whether the Court of Criminal Appeal erred in quashing the decision of the trial judge to grant a permanent stay of criminal proceedings pending against the applicant. The basis of the decision of the Court of Criminal Appeal was not affected by the subsequent decision of this Court in X7 v Australian Crime Commission & Anor [2013] HCA 29. No question warranting the reopening of the application for special leave is disclosed. The application to reopen the application for special leave is dismissed." 97These remarks do not constitute any precedent binding on this Court: Attorney General for the Commonwealth v Finch (No 2) [1984] HCA 40; (1984) 155 CLR 107 at 115 and North Ganalanja Aboriginal Corporation v The State of Queensland [1996] HCA 2; (1996) 185 CLR 595 at 643. However, they provide "guidance" to this Court, Bird v Colonial Spark Plugs Proprietary Limited [1942] HCA 11; (1942) 66 CLR 43 at 47, amounting to "dicta", Ex parte Zietsch; Re Craig (1944) 44 SR (NSW) 360 at 368, and which has persuasive value: Sir Anthony Mason, "The Use and Abuse of Precedent" (1988) 4 Aus Bar Rev 93 at 97 and Algama v Minister for Immigration and Multicultural Affairs [2001] FCA 1884; (2001) 115 FCR 253 at [62]. At the very least, it indicates that the issue presently before this Court is not concluded by X7 (No 1). 98R v Seller was a case where the examination took place before the charges were laid, the charges being laid after dissemination of material the subject of the examination to prosecuting authorities. The decision is not in those circumstances of direct relevance to this case. However, a stay was refused because, as stated at [114]-[115], the material had not been disseminated to the particular people responsible for the prosecution, the situation which obtains in the present case. Once again special leave to appeal was refused. 99R v X was decided following the decision in X7 (No 1), Lee (2013) and Lee (2014). That case involved an examination under the ACC Act after charges had been laid against the respondent. A direction under s 25A(9) of the ACC Act had been given, preventing dissemination to investigators and prosecutors. The trial judge had determined the criminal proceedings should be stayed. Hidden J, with whom Simpson and Hamill JJ agreed, recognised at [53] that X7 (No 1) constituted binding authority for the proposition that the examination was unlawful. 100Hidden J referred to the dissenting judgment of Hayne J in Lee (2013) at [80], that it was theoretically possible that at the end of a trial it may be said that the deprivation of those choices (to test the prosecution case) was anodyne in effect. Hidden J stated that that passage recognised that where an examination has occurred, its effect on a trial will depend on the circumstances of the case in question. He concluded at [57] that the effect on the trial could be assessed and measures could be considered to guard against any prejudice which would otherwise occur. In these circumstances he quashed the order imposing the stay but remitted the matter for further examination of the question, whether unauthorised access to material had been obtained and whether any prejudice which had resulted could be guarded against at a trial. 101In R v X, Hidden J noted that consideration of both issues in the District Court had been complicated by the fact that, while the judge and the respondent's legal representatives had access to the transcript of the examination, the Crown prosecutor did not. The Court sought to remedy this situation by recommending that at the re-hearing the Crown be represented by counsel and solicitors other than those conducting the trial. 102Zhao and Jin v The Commissioner of the Australian Federal Police [2014] VSCA 137 (Zhao and Jin) involved an application to restrain forfeiture proceedings under the Proceeds of Crime Act 2002 (Cth), brought against the appellants, pending determination of criminal charges against the second appellant. The Court granted the stay. The Court stated it was bound by Lee (2014) and said that that case was authority for the following propositions: "[53] ... Although it was concerned with compulsory examination, and so in a sense only with a situation where the privilege against self-incrimination is expressly abrogated by statute, logically the High Court's reasoning in Lee No 2 appears to dictate that: a) the privilege against self-incrimination consists as much of the right of an accused to require the Crown to prove its case without the accused's assistance as it does of the accused's right to refuse to answer incriminating questions; b) as a constituent of the privilege against self-incrimination, the right to require the Crown to prove its case without the accused's assistance, like the right to refuse to answer incriminating questions, may only be abrogated by statute; and c) perforce of the principle of legality, as a constituent of the privilege against self-incrimination the right to require the Crown to prove its case without the assistance of the accused may only be abrogated by express statutory terms or clear necessary statutory implication. [54] The failure of the non-publication order to quarantine evidence given by Lee from persons involved in the prosecution of the charges against him reinforced the importance of these principles. We do not consider the principles stated to be at odds with the majority's reasoning in Lee No 1, including the reasoning of Gageler and Keane JJ, because all of the members of the Court in Lee No 1 viewed the privilege against self-incrimination as incorporating the right of an accused to require the Crown to prove its case without the assistance of the accused or saw the 'right to silence', while neither singular nor immutable, as including the right of any person who believes that he or she is suspected of a criminal offence to remain silent when questioned by any person in authority about the occurrence of an offence, and attached some significance to the principle of legality. The emphasis placed by Gageler and Keane JJ on the apparent availability of ancillary measures under the control of the Court to avoid an interference with the administration of justice meant that, when the failure of those measures was revealed in Lee No 2, the principles to which they had subscribed mandated the result. Moreover, given that Lee No 2 is the latest decision of the High Court in point, and a unanimous decision of five members of the Court including French CJ, Crennan and Keane JJ, we consider that we are bound to follow and apply it as best we can." (References omitted). 103In the result, the Court concluded that it was bound to do what it could to protect the accused's right to require the Crown to prove its case against the second appellant. It stated at [58] that the only way in which that could be done was to stay the forfeiture proceedings pending the determination of the criminal proceedings. This did not involve a permanent stay. 104The High Court has granted special leave to appeal from this judgment. 105X7 (No 1) in my opinion is authority for the following propositions. First, as a matter of construction the ACC Act did not permit an examination of a charged person about the matters for which they had been charged. This was because such an examination fundamentally altered the accusatorial judicial process. The accused could no longer decide the course to adopt according only to the strength of the prosecution's case, but rather also in light of any self-incriminating answer he or she had been compelled to give at the examination. Second, such an examination constituted a contempt of court. Third, the conclusion did not depend on the fairness or otherwise of the trial, as what was required was a trial according to law. 106The Court in X7 (No 1) did not consider what consequences for the criminal proceedings arose from their conclusion. That is not surprising as the only issue before the Court was the separate questions referred to it by Gummow J. However, Hayne and Bell JJ emphasised that their conclusion did not depend on stated or unstated assumptions of how a balance should be struck between individuals' rights, privileges and immunities and societal demands for the detection and punishment of crime. Those questions, however, are relevant in considering whether it is appropriate to grant a permanent stay: Jago at 54, Dupas v The Queen at [37] and Moti v The Queen at [11]. 107The propositions for which X7 (No 1) is authority were reaffirmed in Lee (2014). I do not regard the fact that a retrial was ordered as indicating that the Court considered that a permanent stay was inappropriate. However, two matters should be noted. First, the Court contemplated at [44] that the position could be remedied by a temporary stay. Second, the Court emphasised at [51] that the appeal concerned the effect of the prosecution being armed with the appellants' evidence, stating this affected the criminal trial in a fundamental respect, because it altered the position of the prosecution vis-à-vis the accused. It should be noted, however, that it was not suggested in that case that the examination was not authorised by the relevant statute. The complaint related to dissemination. 108In considering the question of a stay I do not think that the reasoning of the majority in Lee (2013) can be ignored. Gageler and Keane JJ at [323] stated that the deprivation of a legitimate forensic choice available to a person may be one of the ways that unfairness amounting to an interference with the due course of justice could arise in a particular case. The reference to a particular case in my opinion is not inconsistent with the views expressed by the other members of the majority in Lee (2013) or what was said in X7 (No 1). Rather, it emphasises the fact that the conduct of the examination may have different consequences depending on its nature and extent in any given case. 109In these circumstances, it does not seem to me that either the decision in X7 (No 1) or in Lee (2014) compels the conclusion that the fact of an unauthorised examination, on its own, requires an order that there be a permanent stay of criminal proceedings relating to the matters the subject of the examination. To grant a stay in such a case would be to grant one without regard to the nature and extent of the unfairness which results. It would also fail to take into account the interests of the community in the prosecution of serious criminal offences. 110If in fact the examination was productive of actual unfairness, it seems to me the person affected would be able to establish that fact without suffering further unfairness or injustice. In the present case an application could be made under s 25A(10) of the ACC Act to vary the direction previously made, so that the content of the examination could be released to a judge hearing the application for a stay, to enable it to be determined if there was any actual unfairness in the particular case. This was the course adopted in R v Seller at [35] and R v X at [7]. 111In reaching the conclusion that a permanent stay should not be granted, I am conscious that what occurred was a contempt of court which cannot be purged. However, there is nothing to suggest that the examination was not conducted by the ACC in the bona fide belief that it was authorised by the ACC Act. In these circumstances it does not seem to me that the continuation of the criminal proceedings would bring the administration of justice into disrepute or that a stay was necessary to protect the court process from abuse. 112In the result, I would make the following orders: (1)Leave to appeal granted. (2)Appeal dismissed. 113BEAZLEY P: I have had the advantage of reading in draft the detailed reasons of the Chief Justice. 114I agree with his Honour's reasons and the orders he proposes. As his Honour has explained, a permanent stay will only be granted in "an extreme case" and only in circumstances where it has been established that there is a fundamental defect of such a nature that the trial judge, in the conduct of the trial, cannot relieve against its unfair consequences: The Queen v Glennon [1992] HCA 16; 173 CLR 592; Dupas v The Queen [2010] HCA 20; 241 CLR 237; and Moti v The Queen [2011] HCA 50; 245 CLR 456. These authorities make it clear that it is the consequences of the defect which dictates whether or not a permanent stay will be granted. 115In the present case, it is known that the applicant answered questions put to him by officers of the Australian Crime Commission on the first day that he attended, in response to a compulsory process to attend and to give evidence. However, the Court is unaware of the extent or nature of the questions asked or the answers given on that occasion. The questions may have been directed to no more than X7's identity and background, which may have nothing to do with the crime in respect of which he is to be tried, or as Hayne J observed in Lee v New South Wales Crime Commission [2013] HCA 39; 87 ALJR 1082, at [80], the information provided, so far as its impact on his criminal trial is concerned, may be anodyne in effect. The result is that this Court is left in the position that it is unable to determine whether a judge, in the conduct of the trial, would be able relieve against the unfair consequences (if any) flowing from the compulsory examination of the applicant. It follows that the applicant has not made out a case for the relief he seeks by way of a permanent stay. 116HIDDEN J: I agree with Bathurst CJ. 117FULLERTON J: I agree with Bathurst CJ. 118R A HULME J: I agree with Bathurst CJ. ********** 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: 28 November 2014