MEDICH v R

BATHURST CJ: This is an appeal from an order of Bellew J (the primary judge), dismissing a notice of motion filed by Mr Ronald Edward Medich (the applicant) seeking an order permanently or temporarily staying proceedings commenced by indictment, charging him with the murder of Michael McGurk (the deceased) and the intimidation of Ms Kimberley McGurk (Ms McGurk), with the intention to cause her to fear physical and mental harm: R v Medich (No 2) [2014] NSWSC 1313 (primary judgment).

The Crown case is complex. The statement of the Crown case is set out in full in the judgment of the primary judge. In these the circumstances, it is only necessary to provide a broad summary of the Crown case statement in this judgment. This summary is provided in the subsequent paragraphs.

The Crown alleged that the applicant and the deceased were involved, either personally or through their respective companies, in a number of joint business ventures.

From about May 2008, disputes arose between the applicant and the deceased concerning these ventures. The disputes were set out in detail in the Crown case statement and it is unnecessary to set them out in this judgment. Suffice to say that each of the deceased and the applicant claimed to be owed substantial amounts of money by the other and each had instituted court proceedings against the other.

The cumulative effect of these disputes on the applicant, namely, the cost, his losses in court, the damage to his reputation and the embarrassment he felt from how he was being treated by the deceased, led to the irretrievable breakdown of their friendship and business relationship. This caused the applicant to harbour a strong desire to have the deceased permanently removed from his life.

The applicant was a friend and business associate of Fortunato (or Lucky) Gattellari (Gattellari ). The applicant and Gattellari were involved in a number of business ventures together. These included the acquisition of various struggling electrical companies which would trade as subsidiaries of a company described in the Crown case as “Riv Group”. The businesses were unsuccessful and the applicant, his company and two of his family trusts were said to have advanced significant funds to the group to enable the companies in it to continue to trade.

The applicant also used Gattellari as a debt collector. Gattellari, in turn, used Senad Kaminic (Kaminic), Haissam Safetli (Safetli) and others to approach individuals and intimidate them into making repayments on their loans. Safetli’s brother, Bassam Safetli, was also employed to collect debts for Gattellari.

By March 2009, the relationship between the applicant and the deceased had broken down completely. Around this time, the applicant requested Gattellari to arrange for surveillance of the deceased. Safetli and his brother conducted the surveillance at the request of Gattellari. They were recommended to Gattellari by Kaminic.

Towards the end of March or early April 2009, the applicant requested Gattellari to find someone to kill the deceased. Gattellari informed Kaminic that the applicant wanted the deceased killed. Kaminic organised a meeting between Safetli and Gattellari, at which meeting Safetli agreed to carry out the murder for $300,000. The applicant agreed to pay this amount and $500,000 in total for the murder and intimidation of Ms McGurk. The applicant subsequently gave Gattellari $250,000 in cash, of which, $45,000 was given to Kaminic to cover expenses.

In late July or early August 2009, Safetli discussed the murder contract with a Christopher Estephan (Estephan), who agreed to assist in carrying it out. Preparations were then commenced. A few days after this meeting, Safetli met Gattellari and told him that the “job” would be done.

The deceased was killed on 3 September 2009. The deceased was shot outside his home by either Safetli or Estephan. That evening, Gattellari was informed that the job was done. Safetli was paid $300,000.

In July 2010, Gattellari offered Safetli the job of threatening Ms McGurk if she did not pay her husband’s debts. Safetli said that he would want $100,000 for this. That amount was agreed to and on around 30 July 2010, the applicant provided Gattellari with $100,000 in cash to pay Safetli. On 27 July 2010, Safetli approached his friend, who was a registered source assisting the police, to assist with the intimidation. On 8 August 2010, the registered source approached Ms McGurk seeking payments of the debts.

Immediately after the murder of the deceased, a Strike Force known as “Strike Force Narrunga” was established. A Detective Sheehy was appointed as the Investigating Co-ordinator and was responsible for directing the investigation and identifying persons who warranted close attention.

A Detective Fitzhenry was appointed as the officer in charge of the investigation and, throughout its course, was been responsible for its day-to-day supervision. The primary judge recorded that his role “included providing direction to other police, allocating tasks for investigation and assessing material”: primary judgment at [14]. All tasks allocated and their results were recorded in the Police Investigation Management System known as “E@glei”.

In about November 2009, the NSW Crime Commission (the Commission) was requested by Strike Force Narrunga to assist in the investigation. The determination of who would be summoned to give evidence at the Commission was made by the Commission, in conjunction with Detectives Sheehy and Fitzhenry and a Detective Howe. Detective Sheehy said that, at the time that it was determined that the applicant would be examined, he was not a suspect, but a “person of interest”. The primary judge described this distinction as one “without a difference”: primary judgment at [18]. A Detective Blanch gave evidence that the applicant was a suspect when he appeared before the Commission.

The applicant was examined by the Commission on 1 September 2010. Gattellari was examined by the Commission on 3 September 2010, 12 October 2010 and 19 October 2010. In his judgment, to which I will refer later in these reasons, the primary judge summarised the course of these examinations and the extent to which use was made of the transcripts of evidence.

Gattellari, Kaminic, Safetli and Estephan were charged with offences relating to the murder of the deceased on 13 October 2010. On 19 October 2010, Gattellari indicated that he was prepared to assist police in the investigation of the deceased’s murder. Between 19 October and 14 December 2011, Gattellari provided statements under caution implicating the applicant in the murder.

On 26 October 2010, the applicant was arrested and charged with soliciting the murder of the deceased and was later charged with murder. In June 2013, the applicant was charged with the intimidation of Ms McGurk on 8 August 2010.

Each of Gattellari and Kaminic pleaded guilty as accessories to murder and were granted substantial discounts for their pleas and past and future assistance in the investigation. Safetli pleaded guilty to murder and also received a substantial discount for his plea and past and future assistance in the investigation.

The basis of the stay application was dealt with in detail by the primary judge. In short, the applicant asserted that his examination by the Commission amounted to a departure from the accusatorial nature of a criminal trial in a fundamental respect. Relying on X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 (X7 (No 1)) and Lee v The Queen [2014] HCA 20; 253 CLR 455 (Lee (2014)), he contended that his examination altered the balance struck between the power of the State to prosecute and the position of an individual who stands accused, namely, that the prosecution is required to prove the guilt of an accused person without assistance from the accused. For this reason, the applicant contended that he was entitled to a stay.

The applicant also contended that the use of the information obtained as a result of the examination by the Commission and the police, both in connection with the investigation, and, particularly, the subsequent examination of Gattellari, meant that any trial would be unfair and that there was nothing a trial judge could do to relieve from its consequences. For this further reason, he claimed that a stay should be granted.

The relevant legislation at the time of the examination was the New South Wales Crime Commission Act 1985 (NSW) (the Act). The principal functions of the Commission were set out in s 6 of the Act. So far as relevant, it provided as follows:

Section 13 of the Act provided for hearings to be held by the Commission. Section 13(5) provided that hearings should be held in private and that “the Commission may give directions as to the persons who may be present during the hearing or a part of the hearing”. Section 13(9) was in the following terms:

Section 18 made it an offence for a person who was summoned to appear as a witness at a hearing before the Commission to refuse to answer a question without reasonable excuse.

Section 18B dealt with the question of privilege against self-incrimination. So far as relevant, it provided as follows:

The Act was replaced by the Crime Commission Act 2012 (NSW), which commenced on 5 October 2012. By amendments made in November 2014, that is, after the proceedings were heard by the primary judge, s 45C was inserted into that Act. That section provided as follows:

Both parties accepted that that section, to the extent relevant, applied to an application for a stay based on an examination conducted under the Act, as well as an examination conducted under the 2012 Act.

The primary judge noted that, at the outset of the examination of the applicant, the person having conduct of it, Assistant Commissioner Singleton, made a direction under s 13(9) of the Act that the evidence given not be published, except in such manner as specified by the Commission.

The primary judge referred to the fact that the applicant was informed at the commencement of his examination that the Commission was inquiring into the deceased’s murder. The primary judge recorded that thereafter, the applicant was examined on a number of matters including, “his previous dealings with the deceased; the breakdown of their relationship; his relationship with Gattellari; his financial affairs; and his movements on the date of the deceased’s death”: primary judgment at [25]. The primary judge recorded that the applicant made no admissions as to any involvement in the deceased’s murder and found that nothing that the applicant said directly implicated him in it.

The primary judge referred to the fact that Detectives Fitzhenry and Blanch were present at the Commission for the duration of the applicant’s examination and observed the proceedings via CCTV. Detective Fitzhenry gave evidence that while he remained for the entire period that the applicant gave evidence, while he was “listening or half-listening” to the applicant’s evidence, he was directing officers to do things in relation to the investigation and “co-ordinating other resources”: primary judgment at [36].

His Honour noted the evidence of Detective Fitzhenry that he was unable to understand some of the applicant’s evidence as it “involved complex commercial dealings”: primary judgment at [37]. However, he pointed out that the examination extended to matters that Detective Fitzhenry could understand, including the relationship between the applicant and the deceased and the existence of a motive on the part of Gattellari to kill the deceased.

Detective Fitzhenry stated that he only used the applicant’s evidence to create two specific tasks for the purpose of the investigation. The first task related to evidence given by the applicant that the turning point in his relationship with the deceased was on his return from Hayman Island. The task involved identifying when the applicant was at Hayman Island. Detective Fitzhenry assigned this task to Detective Howe. However, the task was not pursued. Detective Howe said that he did not read the applicant’s evidence in connection with the task, although he understood that the task arose from information obtained at the applicant’s examination about the turning point in his relationship with the deceased. Each of Detectives Howe and Fitzhenry said that from early on in the investigation, they were aware of the breakdown in the applicant’s relationship with the deceased.

The second task was entitled “Investigate defence (Medich) case theory Gattellari”. Detective Fitzhenry stated that this task was created as a result of the receipt of the defence case statement. Detective Fitzhenry assigned the task to himself and a Detective King. Detective King said that he had not read the applicant’s transcript when carrying out duties in response to the task.

Detective Fitzhenry said that the task would have arisen out of his review of the transcript, but he did not use the applicant’s transcript when obtaining products in relation to the task. He said that the transcript was used for “background information” and he did not review it when undertaking the task.

Detective Blanch gave evidence that he could not recall any matters of investigative value arising from the applicant’s evidence. The primary judge stated that “[t]he evidence of Dets. Fitzhenry and Blanch that no investigative use was made of the applicant’s evidence was generally consistent with the statement of Det. Sheehy that the examination of the applicant was not a significant development in the investigation”: primary judgment at [40].

Detective Fitzhenry agreed that it was “very likely” that he was present at a “debrief” which took place at the Commission at the conclusion of the applicant’s evidence. Detective Blanch agreed that he attended the debrief. Mr O’Connor, Counsel assisting the Commission, stated that the purpose of the debrief was to discuss and obtain the views of investigating police about the applicant’s evidence. The primary judge pointed to the evidence that Detectives Sheehy, Howe and Fitzhenry met at the Commission the day after the applicant gave his evidence. The primary judge noted that Detective Sheehy “accepted that it was likely that the fact of the applicant having given evidence was discussed”: primary judgment at [43]. He also pointed to the fact that Detective Howe accepted that, either on the day of the applicant’s examination, or the following day, Detective Fitzhenry provided him with information about what the applicant had said in the examination.

In these circumstances, the primary judge concluded that “those involved in the investigation saw no impediment to discussing the applicant’s evidence” or using it for the purpose of the investigation and that what was said in the examinations was discussed between investigating police: primary judgment at [45]. However, he also concluded that, apart from the two tasks referred to above, “nothing said by the applicant in his examination was used for any investigative purpose”: primary judgment at [47]. The primary judge also noted the evidence of Detective Fitzhenry that there remained a prohibition on discussing the applicant’s evidence before the Commission with lawyers employed by the Director of Public Prosecutions (DPP) and that he did not do so.

The primary judge noted that on 1 March 2011, Commissioner Bradley, at the request of Detective Fitzhenry, approved the release to the police of the transcripts of the evidence of all persons examined in connection with the investigation of the deceased’s murder. The transcript of the applicant’s evidence was uploaded to E@glei.

Shortly after the examination, in October 2010, Detective Howe obtained search warrants authorising the search of the applicant’s residential and business premises. The warrants authorised a search for financial records, including records relating to transactions involving others such as Gattellari, the deceased, Kaminic, Safetli and RIV Developments.

Detective Howe said that when he applied for the warrants, he was not aware of any information provided by the applicant to the Commission concerning his financial dealings. Detective Howe gave evidence that it was his decision to search for financial documents and this decision was informed by the nature of the deceased’s murder, not by anything said at the Commission. Detective Howe’s evidence was that he had not seen any documents produced at the Commission. The primary judge accepted this evidence.

The transcripts of the applicant’s evidence before the Commission were provided to the DPP. However, the officers of the DPP involved in the prosecution and counsel briefed to appear for the Crown gave evidence that they had not read or accessed the applicant’s transcript. The primary judge accepted this evidence.

The prosecutor briefed to appear for the Crown, Ms O’Rourke, stated that she considered it relevant, as Crown Prosecutor, to have regard to all of Gattellari’s previous statements in order to assess his credit. She also stated that she had reviewed the transcripts of Gattellari’s examinations. The primary judge pointed out that Ms O’Rourke’s evidence was that Gattellari had been extensively cross-examined on the content of those transcripts during the committal proceedings in respect of the charge against the applicant. The primary judge stated that it was appropriate that Ms O’Rourke reviewed the transcript.

The primary judge also referred to evidence concerning what was described as a “timeline document”, being a chronology of events compiled by the police in the course of the investigation. Detective Fitzhenry gave evidence that he had recorded certain aspects of the applicant’s evidence in the timeline. Detective Howe gave evidence that he had made extensive use of the timeline in the investigation, although he had not seen any entry which related to evidence of the applicant.

Ms O’Rourke gave evidence that she had access to the timeline from late 2012 until 23 June 2014. She said that she had accessed it up to four times and, in doing so, had read specific parts, but she had never read any portion relating to the applicant’s evidence before the Commission. She explained that her use focused on specific dates and events. When she became aware, on 23 June 2014, that the timeline contained information derived from the applicant’s examination, she directed that all copies be returned to the police and requested the Crown Solicitor to disclose to the applicant’s representatives the fact that the transcript had been made available in this fashion. The other officers of the DPP who had access to the timeline, Ms Lind, Ms Rowe, Ms Carmody and Ms Rowbotham, said that they had not read any parts of the timeline referring to the applicant’s evidence. His Honour also noted that the evidence of Ms O’Rourke, Ms Harris (her junior counsel) and Ms Derrig (their instructing solicitor) that they had not read the transcript of the applicant’s evidence was unchallenged.

The primary judge noted that the task of taking statements from Gattellari was allocated to a Detective Groves and a Detective Watson. He pointed out that Gattellari made a series of statements between 19 October 2010 and 14 December 2011. He noted that before taking Gattellari’s first statement, Detective Watson was aware that Gattellari had given evidence before the Commission. Detective Watson’s evidence was that he was not aware of the applicant’s evidence. Detective Watson said that he was instructed by Detective Fitzhenry to take Gattellari’s statements in Gattellari’s own words, although he had “some idea” of the subject matter which was to be covered.

The primary judge pointed out that Detective Watson also acknowledged that he was aware, prior to taking Gattellari’s first statement, that there was evidence to implicate Gattellari in the deceased’s murder. He was also aware that a matter of interest to the investigation was establishing a connection between the applicant and the deceased’s murder. However, the primary judge noted that Detective Watson unequivocally rejected the suggestion that he had been made aware, prior to 19 October, of the substance of part of the applicant’s evidence to the Commission.

The primary judge pointed out that Detective Groves generally corroborated the evidence of Detective Watson. He pointed out that Detective Groves agreed that prior to speaking with Gattellari for the first time, he was briefed as to the state of the evidence. However, he rejected the proposition that the briefing included any reference to the applicant’s evidence. Detective Groves agreed that during the period over which Gattellari’s statements were obtained, he had many conversations with Detectives Fitzhenry and Howe about the subject matter of the investigation.

The primary judge concluded, placing particular reliance on what was said by the High Court in R v Edwards [2009] HCA 20; 83 ALJR 717 at [23], that to obtain a stay, it was necessary for the applicant to point to a fundamental defect of such a nature that there was nothing which a trial judge could do to relieve against its unfair consequences. He relied on R v X [2014] NSWCCA 168 in concluding that the focus in a case such as that before him was on the consequences of the examination upon any proposed trial. He stated that the fact of the examination itself, even if unlawful, did not inevitably justify a permanent stay.

The primary judge accepted that the presence of Detectives Fitzhenry and Blanch at the examination provided them with an opportunity to hear what the applicant said and to use the information to advance the investigation against him if they wished to do so. However, he stated that the evidence to which I have referred above supported the conclusion that no investigative use was made of the applicant’s evidence.

In that context, the primary judge accepted that “[t]he presence of the police at the applicant’s examination, and the associated opportunity to use the applicant’s evidence in the investigation, [had] the capacity to create unacceptable injustice or unfairness”: primary judgment at [152]. However, he stated that the mere presence of the police at the applicant’s examination, without more, did not meet the relevant test.

The primary judge also considered that the fact that the police discussed the evidence, or that the police considered that there was no impediment to its use, was not sufficient to warrant a stay where the evidence was not in fact used. As I indicated, he also accepted that the application for search warrants was not informed or influenced by the examination.

His Honour also rejected the submission that unacceptable injustice or unfairness arose from the use made of the transcript of the applicant’s evidence in the examination of Gattellari by the Commission.

The primary judge noted that the first instance in which such unfairness was said to arise was in the questioning of Gattellari concerning the provision, by Riv Group, of credit. He noted that the question put on this issue was prefaced by the examiner saying that the Commission had previously had the benefit of speaking with the applicant. The primary judge accepted that this was an obvious reference to the applicant’s earlier examination. However, he stated that the investigating police were in possession of information in relation to those financial arrangements well before, and independently of, anything said by the applicant in his evidence.

In that context, the primary judge referred first to a statutory declaration made by Gattellari prior to his examination, in which he said that the applicant lent his businesses “a lot of money” and that the applicant had “taken control of the electrical business” now known as Riv Group. He also noted that the police were aware of these arrangements as early as 2009 and in 2010, as a result of recorded telephone conversations and a statutory declaration made by Gattellari on 11 September 2009.

The second instance involved questions asked by the examiner about the existence of security over a line of credit provided by interests associated with the applicant. The examiner prefaced the question with a reference to the applicant having “indicated” the existence of such security. The primary judge noted that immediately before the question was asked, Gattellari had volunteered that such security existed.

The third instance was when Gattellari did not cavil with a comment made by the examiner that the applicant had indicated that the electrical companies were eating up a substantial portion of the applicant’s wealth, to the point that there would be no further credit extended. The primary judge pointed out that the applicant had not given that evidence and that, in those circumstances, he was not prepared to accept that there was disclosure of the applicant’s evidence. Further, the primary judge pointed out that in March 2010, the police intercepted a conversation between Gattellari and a Kim Shipley, in which the funding of the electrical companies and the applicant’s frustration at the lack of return from them was discussed.

The fourth matter related to questions concerning a transaction between Gattellari and Safetli. In the transaction, monies originating from the applicant passed through Gattellari’s account and were applied to a deposit over a property which had been purchased by Safetli and a loan made by Gattellari to a Mr Jim Emiron. The making of the loan had not been disclosed to the applicant. The primary judge concluded that this was of limited significance as the Crown placed no reliance on loans made by Gattellari. Further, the fact that Gattellari stated that the loans were unauthorised benefited, rather than hindered, the applicant’s case.

The fifth instance related to the questioning of Gattellari about the deterioration of the relationship between the deceased and the applicant. In the course of the examination, the examiner made reference to the deceased’s taping of private conversations between the deceased and the applicant. Gattellari said that he knew nothing about any such tape.

The primary judge pointed out that the question made no reference to the applicant’s evidence. He noted that the information that the conversation was taped on 3 March 2009 came from an ICAC inquiry in which the applicant was involved. He also stated that the question asked of Gattellari about the deterioration in the relationship was open-ended and not premised on the applicant’s evidence.

The primary judge concluded that no material part of the applicant’s evidence at the examination was put to Gattellari, nor was it used in the obtaining of subsequent statements from him.

In these circumstances, the primary judge concluded that he was not satisfied that the examination of the applicant, or anything that had occurred in association with it, left the applicant in a position where he was unable to determine the course he might wish to take at trial. The primary judge pointed out that the applicant made the general content of his defence known both at the committal proceedings and in the defence case statement. He concluded that there was no evidence to support the proposition that the applicant’s capacity to defend himself had been altered or compromised.

In those circumstances, the primary judge declined to stay the proceedings.

The applicant submitted that the proceedings raised significant questions as to the role of the Commission in the investigation of criminal offences. He submitted that in light of the decisions of the High Court in X7 (No 1) and Lee (2014), it was not permissible for him to be forced into assisting investigators to further the investigation against him. He stated that the consequences from the investigators having done so had significant ramifications for him.

The Crown, while contending that a number of issues raised by the applicant were dealt with by this Court in X7 v R [2014] NSWCCA 273 (X7 (No 2)), did not oppose leave to the extent that the grounds challenged “findings based on legal principles”. The Crown did, however, oppose the grant of leave insofar as the applicant sought to challenge findings of fact made by the primary judge.

In my opinion, leave should be granted in respect of each ground of appeal raised by the applicant. As was pointed out by the applicant, the proceedings have significant ramifications for him. Further, the applicant has raised issues in respect of a developing area of the law. Notwithstanding the Crown’s submission, I do not think it appropriate to bifurcate leave by reference to factual and legal issues. Consideration of both will inevitably require consideration of the factual findings made by the primary judge and, in accordance with the principles I have set out below, whether these findings were appropriate. For convenience, however, I will continue to describe Mr Medich as the applicant.

The applicant relied on 12 grounds of appeal. Senior counsel for the applicant submitted, very sensibly, that a number of the grounds could be dealt with together. That approach was taken both in the written submissions and orally. I propose to adopt the same approach.

These grounds were in the following terms:

In support of these grounds, the applicant relied on a somewhat lengthy portion of the transcript of his examination before the Commission. For convenience, I have extracted the passage relied on, and other relevant potions of the applicant’s examination transcript, in Schedule 1 to this judgment.

The applicant pointed to the fact that he was charged with murder on the basis that he requested and funded the contract killing of the deceased. He submitted that, in those circumstances, the question of whether Gattellari had an independent motive to murder the deceased was an important matter in the proceedings.

The applicant submitted that his statement to the effect that he was not aware of any dispute between Gattellari and the deceased was a statement adverse to his interest in the outcome of the proceedings and, in that sense, was an admission. He also submitted that it was adverse in a practical sense, in that the evidence before the primary judge was that following the examination, police did not investigate whether Gattellari had an independent motive to murder the deceased. He pointed to the fact that the defence case was that Gattellari had such a motive, submitting that it was adverse to him for police to fail to investigate that matter.

The applicant also submitted that the questions regarding who else, besides him, knew Gattellari and the deceased, narrowed the field as to who else might be involved in the murder. He submitted that this narrowing of the field was adverse to his interests. He submitted that, in a practical sense, this evidence would greatly constrain his capacity to mount a defence based on Gattellari having an independent motive to murder the deceased.

The applicant submitted that the decision in X7 (No 1) was not limited to self-incriminating answers. He pointed out that in that case, Hayne and Bell JJ (at [71]) stated that requiring an accused to answer questions about the subject of a pending charge prejudices the accused, whatever answer is given. He submitted that although the paragraph went on to state that, “[a]ny admission made in the examination will hinder or even prevent the accused from challenging at trial that aspect of the prosecution’s case”, the word “admission” should not be read as limited to self-incriminating answers. He submitted that, in any event, the answers were self-incriminating, pointing out that at the applicant’s trial, two versions of the events would be put to the jury, one being that the murder was carried out at the applicant’s request and the other being that Gattellari acted independently.

Senior counsel for the applicant referred to the definition of “admission” in the Evidence Act 1995 (NSW) as a statement adverse to a person’s interest, submitting that the primary judge erred by limiting admissions to confessional statements.

The Crown submitted that the primary judge was correct in concluding that no admission was made by the applicant as to any involvement in the deceased’s murder and nothing he said directly implicated him in it.

The Crown submitted that the questions and answers relied upon by the applicant in support of these grounds did not constitute inculpatory statements as to the applicant’s involvement, but only related to one aspect of the applicant’s defence. It was pointed out that the applicant’s Commission evidence was inadmissible in his trial by virtue of s 18B(2) of the Act.

The Crown submitted that the statements could not be described as “significant statements” adverse to the applicant’s interest, pointing to the fact that the investigators did not regard the evidence as significant. The Crown also referred to the statement by Hayne and Bell JJ in X7 (No 1) (at [124]) where, in discussing the impact of a post-charge examination on the accusatorial process, their Honours referred to an accused person deciding the course to be taken in answer to the charge “in light of any self-incriminatory answers which he or she had been compelled to give”.

The Crown also submitted, relying on what was said by Gageler and Keane JJ in Lee v NSW Crime Commission [2013] HCA 39; 251 CLR 196 (Lee (2013)) at [323] that a practical constraint in a court proceeding on an accused leading evidence, cross-examining, or making submissions to suggest a version of facts inconsistent with that given on oath in an examination, would not deprive the accused of a legitimate forensic choice.

The Crown also pointed to the fact that the applicant voluntarily made a statement in court following his committal that he had recently discovered the truth and extent of Gattellari’s stealing from him and that it was now apparent that Gattellari had a motive for murder. The Crown submitted that the cross-examination of Gattellari at the committal proceedings justified the conclusion of the primary judge that the applicant’s defence contended that Gattellari “was someone who was prone to violence, who knew the deceased, and who had a motive arising from his own dealings with the deceased, to kill him”. The Crown pointed to the fact that the applicant had not indicated how his defence would be greatly constrained.

The Crown also pointed to Bellew J’s finding that the police did investigate Gattellari’s independent motive after receipt of the defence case statement, including by taking statements from relevant witnesses.

Senior counsel for the Crown referred to the applicant’s statements at the committal proceedings to the effect that the truth and extent of Gattellari’s stealing from the applicant had only been discovered recently, that Gattellari had a motive to have the deceased killed and that Gattellari had fears that the deceased would prove to the applicant that “Gattellari was a crook who was stealing from me big time”.

The relevant paragraphs of the primary judgment that are complained of are in the following terms:

It seems to me that in these paragraphs, the primary judge was stating no more than that the applicant had said nothing in his examination which amounted to an admission of involvement in the murder or which directly implicated him in it.

An examination of the transcript, which I have appended as Schedule 1, shows that the statements made by the primary judge are correct. The applicant emphatically denied involvement in the murder and, in particular, denied that he procured Gattellari to carry it out.

I am prepared to accept, as suggested by the applicant, that the statements made were potentially adverse to his interests, insofar as they established that the applicant had no knowledge of any motive that Gattellari may have had to kill the deceased and that the applicant did not know of anyone else on whose behalf Gattellari would have carried it out. I also accept that such evidence may have been helpful to the police in narrowing their inquiries.

In that sense, it may be suggested that the effect of the examination would be to constrain the applicant in the manner in which he would conduct his defence, in the sense referred to in X7 (No 1) at [124] and Lee (2014) at [41]. At least theoretically, this was because the answers given could constrain the applicant from defending the charges against him on the basis that Gattellari had an independent motive to kill the deceased.

The fact is that the applicant has not been so constrained. His statement at the committal hearing, to which I have referred at par [78] above, demonstrates that there was no such constraint. Further, I have examined the transcript of the committal, in which Gattellari was subjected to a lengthy and hostile examination by counsel for the applicant. That cross-examination justifies the comment made by the primary judge that the applicant’s defence was that Gattellari was someone who was prone to violence, who knew the deceased and who had his own motive to kill him.

Further, although the answers given by the applicant may have diverted the police from inquiring into any separate motive that Gattellari may have had to murder the deceased, as the Crown pointed out, the police only investigated the matter after the applicant had made his statement at the committal. Detective Fitzhenry gave evidence as to inquiries he had made concerning an alleged argument between the deceased and Gattellari relating to an audit into the Boomerang Funeral Fund. It was not suggested that the inquiries would have been more productive had they been made earlier or that there were other avenues which should have been investigated and were not.

It will be necessary to consider the fact that the answers were given in a compulsory examination. It will also be necessary to consider the effect of the answers in deciding whether, notwithstanding what I have said above, these matters, in conjunction with the other matters raised by the applicant, warrant the grant of a stay. The ground of appeal in question is more limited. In the paragraphs of the judgment complained of, the primary judge was not dealing with the general proposition that the statements made by the applicant were, or may have been, adverse to his interests, but was simply recording that nothing the applicant said directly implicated him in the murder. That statement was correct and the primary judge did not fall into error in making it.

It follows that these grounds of appeal have not been made out.

Grounds 3 and 4 were in the following terms:

The applicant submitted that the primary judge misstated the test in Walton v Gardiner [1993] HCA 77; 177 CLR 378 at 392 in concluding that to obtain a permanent stay, the applicant “must to point to a fundamental defect of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”: primary judgment at [133].

The applicant submitted that the correct question was whether the trial in question “would be ‘so unfairly and unjustifiably oppressive’ as to constitute an abuse of process” or “would involve unacceptable injustice or unfairness”: Walton v Gardiner at 392.

The applicant acknowledged that although subsequently in his judgment, the primary judge set out the relevant paragraph from Walton v Gardiner in full, he limited his inquiry to an inquiry into “unfair consequences”. He submitted that the matters referred to in Grounds 5 to 9 below constituted “unacceptable injustice”.

The applicant submitted that the decision of this Court in R v X, relied upon by the primary judge in reaching his conclusion, was incorrect to the extent that it concluded that an examination of the accused before the Australian Crime Commission on the subject matter of the charges against him did not automatically entitle him to a stay of proceedings. He submitted that this was contrary to what was said in X7 (No 1) at [124] per Hayne and Bell JJ, Kiefel J agreeing at [157]. He submitted that the prejudice there identified was the prejudice that arises in being compelled to give evidence ahead of one’s trial. He submitted that because of the nature of the prejudice, there was nothing a judge could do to relieve against it as all a judge could do was to limit the use to which the material could be put, whereas the prejudice arose from the fact of the examination.

The applicant submitted that the fact that he had not been charged with the offence was immaterial. He submitted that he was a suspect and said that the principle extended to persons suspected of a crime.

The applicant submitted that the decision of this Court in X7 (No 2) was distinguishable, as in that case, no transcript of the examination was provided to the Court. Further, it was submitted that X7 (No 2) was wrongly decided, as it made unfairness the touchstone, contrary to what was said in Lee (2014) at [43], [46]-[48]. He submitted that the problem in Lee (2014) was more fundamental than unfairness, namely, the trial was not “a trial for which our system of criminal justice provides”: Lee (2014) at [46]. He submitted that, in that context, a stay was required.

Further, the applicant submitted that the Court in X7 (No 2) erred in concluding that stays of criminal proceedings may only be ordered in two categories of cases, cases in which unfair consequences of a sufficiently prejudicial nature can be identified and cases in which there is an abuse of process. Relying on Walton v Gardiner at 392 and R v Edwards at [23], he submitted that there was a third category of cases, those involving “unacceptable injustice”. He submitted that that was what had occurred in the present case as a result of the examination.

The applicant submitted that, having regard to the nature of the defect, any conviction obtained would be liable to be set aside. In those circumstances, he submitted that the continuation of the proceedings may be described as an abuse of process.

The Crown submitted that the statement of the primary judge, in respect of which complaint was made in Ground 3, was based on what was said by Mason CJ and Toohey J in The Queen v Glennon [1992] HCA 16; 173 CLR 592 at 605-606, in a passage described by the full High Court in Dupas v The Queen [2010] HCA 20; 241 CLR 237 at [18] as “an authoritative statement of principle”. It also pointed out, relying on R v Edwards at [22]-[24], that it was not sufficient to show that injustice could occur, rather, it was necessary to show that it would occur.

The Crown submitted that X7 (No 2) was correctly decided and mandated dismissal of these grounds.

The Crown also noted that in the present case, the applicant had not been charged. Accepting that in Lee (2014), one of the appellants was not charged at the time of the examination, the Crown submitted that in that case, the charge was imminent and anticipated. The Crown submitted that this could not be said of the applicant in the present case, pointing to the fact that at the time of the applicant’s examination, there was no direct evidence implicating him in the murder.

Senior counsel for the Crown submitted that none of the cases which considered a stay provided authority for the proposition that an application for a stay could be considered “absent the factual context and consequences”. It was submitted that to not take these matters into account ignored the balancing exercise required to be undertaken, having regard to the public interest in having persons accused of serious crimes brought to trial.

The passage of the judgment in Walton v Gardiner, relied on by the applicant, is in the following terms (at 392):

The passage from R v Glennon cited in Dupas v The Queen at [18] as “an authoritative statement of principle” was as follows:

In the passage complained of in Ground 3 of the grounds of appeal, the primary judge cited the first sentence of that passage. The essence of the applicant’s complaint was that the primary judge failed to have regard to the matter stated to be relevant in Walton v Gardiner, namely, whether the trial in question would be “so unfairly and unjustly oppressive” as to constitute an abuse of process or “would involve unacceptable injustice or unfairness”.

The applicant’s submission focused on the expression “unacceptable injustice”, stating that the use of that expression in Walton v Gardiner and R v Edwards at [22] showed that unfairness was not necessarily the touchstone for the grant of a stay, but there was a separate category of unacceptable injustice.

It is correct that there are circumstances in which a stay will be granted which do not depend on unfairness to the accused: see, for example, Ridgeway v The Queen [1995] HCA 66; 184 CLR 19 at 40-41. The question in the present case is whether the decisions in X7 (No 1) and Lee (2014) compel the conclusion that the mere fact of an examination, by itself, constitutes unacceptable injustice such that a stay should be ordered, irrespective of any question of unfairness to the accused.

I considered this issue in X7 (No 2) and concluded at [109] that neither X7 (No 1), nor Lee (2014), compelled the conclusion that the fact of an examination, by itself, required an order for a permanent stay of proceedings. The other members of the Court agreed with my reasons. Beazley P (at [114]) emphasised that the authorities dealing with stays “make it clear that it is the consequences of the defect which dictates whether or not a permanent stay would be granted”.

Special leave was refused by the High Court in that case and, in my opinion, the decision should be followed. A similar approach was adopted by this Court in R v Seller; R v McCarthy [2015] NSWCCA 76 at [203], [208], [243]. In that case, special leave was also refused.

It follows that, in my opinion, the mere fact of an examination, by itself, does not warrant a stay and, in considering whether one is warranted, it is necessary to look at the consequences of the examination. In these circumstances, Grounds 3 and 4, insofar as they assert that the mere fact of the examination warranted a stay, have not been made out.

I would add the following comments. The primary judge made no finding, one way or the other, as to whether the examination was unlawful, but rather proceeded on the assumption that even if it was, it would not necessarily justify an order for a stay. In Lee (2014), in which the same provisions of the Act were under consideration, the focus was on the publication of the examination transcript, contrary to the prohibition in s 13(9) of the Act, or in circumstances where a direction under that section should have been made: Lee (2014) at [3]-[6]. Lee (2014) did not decide whether the examination was unlawful, but concluded that the dissemination to the prosecution altered the balance between the accused and the prosecution in a fundamental respect, such that the appellant was deprived of a trial according to law.

In the present case, a direction under s 13(9) was given at the outset of the examination. It does not appear that the transcript was released to the police until approval to do so was given by the Commission on 1 March 2011. The transcript was uploaded to E@glei on 24 October 2011.

It appears that the material was not made available to the prosecuting authorities until Magistrate Huber made orders under s 13(10) and (11) of the Act, on the application of the Commission, authorising the transcripts of evidence given before the Commission, including the evidence of the applicant and Gattellari, to be made available to the solicitors for the applicant.

Notwithstanding these matters, the Crown did not seek to argue that because the dissemination was authorised, the principles in X7 (No 1) and Lee (2014) did not apply. The conclusions which I have reached on these grounds are based on the same assumption, namely, that the fact that the dissemination may have been authorised by the statute was irrelevant to the issue.

Whether or not his Honour erred in concluding that the effect of dissemination did not result in any unfairness or injustice to the applicant is the subject of the remaining grounds of appeal.

These grounds are in the following terms:

The applicant submitted that the facts of the present case went further than those considered in X7, namely, “mere compulsory examination, with the answers given being kept secret”.

The applicant submitted that the following facts were uncontroversial.

The applicant submitted that the approach of the primary judge erroneously accepted the proposition that police investigators can compartmentalise information obtained by them, “so as to be able to claim that certain aspects of that information were not ‘used’”. He submitted that the better view was that the information became part of the material known to the investigators and informed decisions subsequently made by them.

The applicant sought to draw support for this proposition from the evidence that no investigation into Gattellari’s independent motive to kill the deceased was pursued until after receipt of the defence case statement. He also submitted that his evidence was clearly of some forensic utility in the ongoing investigation of the murder, given that at his examination, the examiner told Gattellari that the Crown had had the benefit of speaking to the applicant.

The applicant submitted that the result was that the examination altered the balance between the Crown and the applicant “in a fundamental respect”, as was the position in Lee (2014). The applicant submitted that as in Lee (2014), the balance of power had shifted to the prosecution, contrary to what was required by the system of criminal justice. The applicant submitted that he was entitled to have the investigation proceed without being compelled to answer questions directed to his role in the murder. He submitted that there was nothing that a trial judge could do to redress the balance.

The applicant submitted that the matters relied upon by the Crown to distinguish Lee (2014) did not survive a close reading of the case. He submitted that the lawfulness of the publication was not a critical issue in Lee (2014). He pointed to what was said in Lee (2014) at [39], that the critical question was “not whether the publication was unlawful”, but rather, “whether, as a result of the prosecution being armed with the appellants’ evidence, there has been a miscarriage of justice”.

The applicant submitted that it was not of significance in Lee (2014) that the DPP had requested the examination material.

The applicant repeated his submission that the result in Lee (2014) did not depend on practical unfairness, but rather, the fact that the prosecution had the transcript shifted the balance of power to the prosecution.

The applicant submitted that the reasoning in Lee (2014) concerning the provision of material to the prosecution was analogous to the present case. He submitted that it was not possible to ascertain the extent to which the knowledge obtained by the investigators, through access to the applicant’s evidence before the Commission, permeated the course of the investigation.

Senior counsel for the applicant accepted that the investigators may already have had some information concerning the matters on which the applicant was examined, but submitted that there was a difference in getting the information from the perspective of a suspect.

Senior counsel for the applicant sought to support this submission by referring to the fact that the applicant stated, in the portion of his transcript which I have extracted as Schedule 1, that he was not aware of Gattellari having an independent motive to murder the deceased and the fact that thereafter, the investigation team did not seek to examine this question. He pointed to that fact as demonstrating that the investigation was shaped by the examination.

The Crown submitted that the applicant had not identified which aspect of his examination was used, or was of assistance, in the investigation, apart from the matters referred to in Grounds 10 and 11.

The Crown noted that in his examination, the applicant repeatedly disputed the logic of the proposition that Gattellari had killed the deceased for the applicant’s benefit. The Crown pointed to the applicant’s evidence that the worst thing for him would be to have the deceased killed and evidence of him rhetorically asking how he was going to recover his money with the deceased dead.

The Crown pointed to the fact that it was not suggested to any of the witnesses cross-examined that their evidence of the use or otherwise of the applicant’s evidence was incorrect. The Crown pointed to the following matters as demonstrating that it was open to the primary judge to conclude that no investigative use was made of the applicant’s evidence.

The Crown submitted that the evidence was insufficient to infer that the applicant’s evidence was discussed or acted upon to a greater extent than that identified by the primary judge.

So far as Ground 9 was concerned, the Crown pointed to the finding by the primary judge that it could not be inferred that the transcript was used for investigative purposes. In these circumstances, the Crown submitted that there was no basis to draw an inference that the examination had unfair consequences, because it became part of the matrix of information available to the investigators. It was submitted that the inference contended for by the applicant could not be made from the fact that police considered that there was no impediment to making use of the evidence.

It was common ground between the parties that the principles on which the decision of the primary judge was to be reviewed were those applicable to a discretionary judgment. However, there was a difference between the parties as to the manner that these principles were to be applied in the circumstances of the present case.

The applicant submitted that the question of whether the facts were sufficient to establish that the applicant faced prejudice involved no element of discretion and was a matter in which an appellate court was in as good a position as the primary judge to decide. He submitted that, in determining whether prejudice was suffered, the approach in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 should be adopted.

The Crown submitted that it was inappropriate to apply the approach in Warren v Coombes in considering a discretionary judgment of the nature of the one in question in the present case.

As I indicated, the parties accepted that the principles concerning the review of discretionary judgments, set out in House v The King [1936] HCA 40; 55 CLR 499 at 504-505, should be applied. That approach is consistent with authority in the High Court and this Court: Jago v District Court (NSW) [1989] HCA 46; 168 CLR 23 at 31; TS v R [2014] NSWCCA 174 at [45]; R v MG [2007] NSWCCA 57; 69 NSWLR 20 at [63]; Webb v R [2012] NSWCCA 216; 225 A Crim R 550 at [56]. That that is the appropriate approach is evident from the balancing process that a court is required to undertake in determining whether or not a stay should be granted. The process was described by Mason CJ, Deane and Dawson JJ in Walton v Gardiner at 395-396 in the following terms:

Although the above authorities demonstrate that the correct approach is to consider whether the exercise by the primary judge of his discretion miscarried by reference to the principles in House v The King, that does not mean that the judge’s factual findings were entirely immune from review. It is unnecessary to set out the well-known passage from House v The King in this judgment. However, it must be remembered that one of the grounds on which it was suggested that a discretion could miscarry was if the judge “mistakes the facts”: House v The King at 505.

In these circumstances, if it can be shown that the primary judge was in error on any finding of primary fact, his decision would be open to review. However, assuming his findings of fact were correct, any inference to be drawn from these facts would not be open to review unless the decision was otherwise vitiated by error, or, to adopt what was said in House v The King, his conclusion was unreasonable or plainly unjust such that an appellate court may infer that there has been a failure to properly exercise the discretion: see in an administrative law context, Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [76], [124].

It seems to me that, in the present case, if it could be established that the primary judge made factual errors such as, for example, in determining the actual use made by the police or prosecutors of the transcript of evidence, then the decision would be open to review on that basis. However, the situation would be different if, after having correctly found the primary facts, the judge, as part of the balancing exercise, concluded from those facts that the limited use made of the transcript in the investigation meant that no prejudice was occasioned to the applicant. That conclusion would not be reviewable unless it was unreasonable in the sense described in House v The King. Further, if, for the purpose of reaching such a conclusion, the primary judge accepted challenged evidence, his decision could only be set aside if it was unreasonable, in the House v The King sense, to accept that evidence.

So far as Ground 5 is concerned, I have set out what the applicant described as uncontroversial facts in par [118] above. It is clear that the primary judge took these matters into account. He noted that Detectives Fitzhenry and Blanch observed the applicant’s examination (see par [30] above), that the police discussed the applicant’s examination and believed that there was no impediment to discussing it or making use of it (primary judgment at [45], [160]), that Detective Fitzhenry used the applicant’s evidence to make additions to the timeline (see par [43] above) and that a debriefing was attended by Detectives Fitzhenry and Blanch, in which the evidence was discussed (see par [36] above).

The primary judge did not refer to the fact that the examiner at the Commission, Mr O’Connor, did not consider that there was an impediment to discussing the applicant’s examination with the police and that the same person examined both the applicant and Gattellari. However, the views of the examiner do not seem to be of particular relevance to the matters in issue. More important than the fact that the examination was conducted by the same person was the use made of the applicant’s examination in the examination of Gattellari. That is the subject of Grounds 10 and 11.

The primary judge accepted the evidence of the police officers that, notwithstanding the so-called uncontroversial facts, the applicant’s examination transcript was not used for any investigative purpose apart from two specific tasks ordered by Detective Fitzhenry (primary judgment at [149]) or otherwise used to pursue any line of inquiry (primary judgment at [156]). This was critical to the primary judge’s findings. It cannot be said that the primary judge acted unreasonably in accepting this evidence. There was no real evidence to contradict it.

In these circumstances, it does not seem to me that the primary judge erred in reaching the conclusions which are challenged in Grounds 5 and 6.

In dealing with Grounds 1 and 2, I referred to the submission that the evidence of the applicant diverted the police from investigating whether Gattellari had an independent motive to murder the deceased. It may be said that, to a limited extent, the applicant’s examination assisted the police in the focus of the investigation. However, shortly thereafter, Gattellari was examined and then confessed to his involvement in the murder. It does not seem to me that, in those circumstances, any diversion of the police led to an error in the primary judge’s conclusion that the Crown was not assisted by the applicant’s evidence.

So far as Grounds 7 and 9 are concerned, the focus of the applicant’s submission was that, notwithstanding their claim that the examination was not of use in the investigation, once Detectives Fitzhenry and Blanch heard the examination, it would be impossible for them to compartmentalise the knowledge that they obtained from it. It was emphasised in R v Edwards at [23] that the test of whether a stay should be granted is whether “the continuation of the proceedings would involve unacceptable injustice or unfairness” or “would be so unfairly and unjustifiably oppressive as to constitute an abuse of process”. Having regard to the evidence, which, in my opinion the primary judge was entitled to accept, it does not seem to me that the disclosure of the applicant’s Commission evidence to the police, in the circumstances of the present case, satisfied that test. It was not unreasonable, in the House v The King sense, for the primary judge to reach this conclusion.

Ground 8 focuses solely on the fact of disclosure. For the reasons I have given in respect of Grounds 3 and 4, the mere fact of disclosure does not entitle the applicant to a stay.

In those circumstances, Grounds 5 to 9 have not been made out.

These grounds are in the following terms:

The applicant relied on a lengthy extract of his examination in support of these grounds. In this extract, the applicant was examined concerning his business dealings with Gattellari. I have set out this extract in Schedule 2.

The applicant submitted that the extract showed that he was examined on his payment of money to Gattellari’s company, Riv Developments, including on the nature of the payments and whether there was supporting evidence for them. The applicant submitted that at that stage in the investigation, Gattellari had not alleged that the applicant had made a cash payment to him. Thus, all potential methods by which payments could have been made from the applicant to Gattellari were in issue.

The applicant also pointed to portions of Gattellari’s examination transcript, which I have set out in Schedule 3. He submitted that in those extracts, Gattellari was put on notice that the applicant had spoken to the Commission, although the examiner neglected to mention that this occurred by way of a compulsory examination. He also submitted that the examiner disclosed aspects of the applicant’s evidence to Gattellari and disclosed that the topic of loans between the applicant’s company and Gattellari’s company had been discussed with the applicant.

The applicant referred to the primary judge’s dismissal of this matter as being of significance by reason of the fact that the examiners were already privy to this information. He submitted that it was one thing to be aware of a matter and another to have it confirmed through a compulsory examination.

The applicant submitted that the conclusion of the primary judge required “acceptance of the proposition that Gattellari was unmoved when it was revealed to him that the applicant had already … put his side of the story”. He also submitted that it required acceptance that when Gattellari “rolled”, alleging that the applicant funded the murder by providing him with cash, Gattellari was not influenced by his knowledge that the applicant had already given evidence on the possibility of substantive unaccounted sums being paid through Riv Developments.

The applicant stated that the primary judge erred in concluding that this was of limited significance because no reliance was placed by the Crown on loans made by Gattellari. He submitted that this approach focused too closely on what was relevant in the proceedings, rather than the relevance of the matter to the investigation as it stood and its potential relevance in informing Gattellari’s knowledge when he later became a Crown witness.

The applicant submitted that the problem with the primary judge’s approach could be illustrated by the manner in which the primary judge addressed the evidence concerning the breakdown of his relationship with the deceased. For convenience, I have set out the relevant portions of the evidence of the applicant and Gattellari relied on by the applicant in Schedule 4.

The applicant accepted that in the questioning of Gattellari on this topic, no reference was made to the applicant’s evidence. However, he pointed to the fact that the timing of the breakdown of the relationship between the applicant and the deceased, which had been suggested by the examiner to Gattellari, was the timing that the applicant had confirmed to the examiner. The applicant submitted that the primary judge should have found that when Gattellari later gave his police statements, it was impossible to say that police had not been influenced by the applicant’s evidence. In these circumstances, he submitted that a stay should be granted.

The applicant submitted that by using the evidence in the way suggested, the Commission placed Gattellari in a position to be a more effective witness. He submitted that the taking of Gattellari’s police statements occurred after the damage had been done. Further, once it was accepted that this use of the applicant’s evidence bolstered Gattellari’s ability to be a witness against the applicant, the manner in which the police statements were taken did not cure the prejudice.

Senior counsel for the applicant submitted that it was not open to the Commission to put propositions to one witness based on the evidence of another witness who was examined, even if the person was not a suspect. He submitted that the legislation, as a matter of construction, prohibited any derivative use of material obtained.

Senior counsel for the applicant also submitted that the examination was not a fact finding inquiry of a general kind, but rather a run through of material which had emerged from the investigation. He submitted that the examination was used to tie the applicant to an account of key aspects of the case and to inform investigating police on these matters. He submitted that this went beyond a mere examination.

The Crown submitted that it was artificial to suggest that the applicant’s Commission evidence and the evidence subsequently given by Gattellari should be assessed without reference to the Crown’s case at trial, or by reference to the state of the police investigation when Gattellari was examined by the Commission, without regard to the manner in which Gattellari's statements were taken. The Crown pointed to the fact that the finding of the primary judge that no use was made of the applicant’s examination in obtaining Gattellari’s statements was supported by the evidence of Detectives Watson and Groves. The Crown submitted that it followed that even if a matter arising from the applicant’s Commission evidence was put to Gattellari, it could not have prejudicially affected the evidence to be given at trial.

The Crown submitted that throughout his Commission examination, Gattellari maintained that he had nothing to do with the murder and he agreed to co-operate only after his arrest. The Crown pointed to Gattellari’s evidence at the committal hearing that he gave evidence because of his desire to minimise his custodial sentence. It was submitted that there was no evidence to suggest that Gattellari’s decision to co-operate was influenced by his understanding of the manner in which the applicant gave his evidence at the Commission.

The Crown submitted that it was irrelevant that Gattellari’s examiner, Mr O’Connor, was aware of the evidence given by the applicant of the funding of the electrical companies at the time he examined Gattellari. It submitted that this was because the investigators had independent sources of facts on that topic and Gattellari was not told anything derived from the applicant’s evidence which he was not already aware of and about which he had previously answered questions.

The Crown submitted that the primary judge was correct to find that nothing that the applicant said concerning the provision of credit to the electrical companies “resulted in Gattellari’s evidence being forthcoming” (primary judgment at [166]), in view of the records predating Gattallari’s examination, by reference to which his evidence on that subject was given. The Crown, in this regard, referred in particular to Gattellari’s statutory declaration and the intercepted telephone conversations (see par [54] above). The Crown submitted that the transcript of Gattellari’s evidence revealed that the primary judge was correct in concluding that Gattellari had volunteered the information that there was security over the loans made by the applicant to the electrical companies. The Crown noted that, prior to any reference to the applicant’s evidence, Gattellari said, “Mr Medich’s companies holds … fixed and floating charges and mortgages over all the companies”.

The Crown also submitted that the primary judge was correct in finding that the alleged disclosure to Gattellari of the applicant’s evidence that the electrical companies were “soaking up a substantial proportion of his wealth” (see par [56] above) “did not, in fact, reflect the applicant’s evidence”. It was submitted that, in those circumstances, it was open to the primary judge to find that Gattellari’s statements were not influenced by the applicant’s evidence on this topic. In addition, the Crown pointed to the fact that there was significant additional evidence demonstrating that substantial loans had been made.

The Crown noted that in Gattellari’s Commission examination, in relation to the loans said to have been made by Gattellari from the monies advanced to him, or the electrical companies, by the applicant, without the applicant’s consent (see par [57] above), a suggestion was made that the applicant had been informed of, or given evidence about, the loan. The Crown submitted that there was no basis for drawing any inference that Gattellari’s evidence after his arrest was influenced by this line of questioning. It submitted that the loan in question was unrelated to the murder. Further, Gattellari’s evidence was that the loan to Safetli had nothing to do with the applicant, although he conceded that the monies may have been stolen. The Crown submitted that Bellew J was correct in pointing out that such evidence may assist the applicant in his defence.

In these circumstances, the Crown submitted that “it could not fairly be said that the Crown relies on evidence from Gattellari that is derived from the Applicant’s testimony”.

These grounds focus in the main on the examination of Gattellari and the use made of the applicant’s transcript in that examination.

As I have indicated, the applicant contended that it was not open to the Commission to put propositions to one witness based on the evidence of another, submitting that the legislation prohibited any derivative use of the material.

If it is assumed that the Commission was entitled to examine the applicant, then it does not seem to me that there is any prohibition on the Commission itself making use of the evidence in the course of the examination of another witness. Section 18B of the Act appears to only protect against the direct use of self-incriminating evidence, rather than derivative use. There does not seem to me to be any prohibition on the Commission itself making use of any non-incriminating material in the course of an investigation.

However, the applicant’s case is that the examination itself was unlawful for contravening the principles set out in X7 (No 1) and Lee (2014). As I have stated, the focus of the applicant’s argument was on whether the examination and subsequent use produced unfairness or injustice such as to warrant a stay of proceedings. It is appropriate to deal with these grounds on that basis.

In considering these grounds, it is important to bear in mind that the transcript of the applicant’s evidence was not supplied to Gattellari and there was no evidence to suggest that he had it available to him or was told of any part of it during the course of making his statements. It is in that context that it is necessary to consider whether the passages of the examination referred to in support of these grounds produced such unfairness or injustice as to warrant a stay.

The portion of the applicant’s transcript to which I have referred in Schedule 2 relates to the loans made by companies controlled by the applicant to Gattellari’s company, Riv Developments. It does not seem to be suggested that that portion of the evidence was itself particularly prejudicial, as distinct from establishing that the nature of the payments and how they were made remained uncertain. The ground of appeal rather relates to the use made of the evidence in the examination of Gattellari.

I have set out in Schedule 3 the relevant evidence of Gattellari on this matter. From this evidence, it can be seen that reference is made, on a number of occasions, to evidence given by the applicant. I am prepared to accept that Gattellari was made aware of the fact that the applicant had given evidence to the Commission that loans had been made by the applicant’s companies to Gattellari’s companies and that, in those circumstances, Gattellari’s evidence on the topic may have been more forthcoming. However, as the primary judge pointed out, the police were already aware of this information. In these circumstances, it is difficult to see how Gattellari’s answers prejudiced the applicant. Further, as the primary judge pointed out, Gattellari had already volunteered that he had provided security, before being told that the applicant had also provided this information.

In a subsequent portion of the examination, extracted in Schedule 3, Gattellari was told, incorrectly, that the applicant had said that the electrical companies were soaking up a substantial portion of the applicant’s wealth. As the primary judge pointed out, this was something that was not said by the applicant. Further, Gattellari’s response, “[w]ell we’re not asking for any more credit at the moment”, seems of little moment.

The next reference is that at the conclusion of the portion of the evidence which I have set out as Schedule 3, the examiner suggested that the applicant knew about loans, in respect of which Gattellari had previously been questioned, because he had been told of them by the Commission. This was followed by an admission by Gattellari that the applicant had not authorised the loans.

Finally, both the applicant and Gattellari were examined regarding the deterioration in the relationship between the applicant and the deceased. I have set out this evidence in Schedule 4. The applicant accepted that Gattellari was not told of the applicant’s evidence, but said that the similarity of the dates put to Gattellari and those referred to in the applicant’s evidence demonstrated that reliance was placed on the latter in the examination of Gattellari.

On its face, none of the evidence of Gattellari referred to in Schedules 3 or 4 seems prejudicial to the applicant. The applicant contended, however, that it could be inferred that the fact that Gattellari knew that the applicant had given evidence was a factor in his confessing to the murders and implicating the applicant. It was also submitted that, in those circumstances, it could not be said that Gattellari’s evidence was not influenced by his knowledge of what the applicant had told the Commission. The first of these matters is simply speculative. Gattellari denied involvement in the murder during the investigation by the Commission and there is nothing to suggest that his knowledge that the applicant had given evidence in any way influenced him in his subsequent confession.

So far as the second matter was concerned, the primary judge found that Gattellari made his police statements over the period from October 2010 to December 2011. It was unchallenged that they were given in free form with Gattellari recording his involvement. It was also unchallenged that the seven statements were taken from 19 October 2010 to 14 December 2011, after his examinations by the Commission, and one of the statements involved Gattellari commenting on ledgers and banking documents. Gattellari did not have the transcript of his or the applicant’s evidence before the Commission and there is nothing to suggest that his police statements were based in any way on what was put to him concerning the applicant’s evidence at the Commission. In these circumstances, Grounds 10 and 11 are not made out.

In support of these grounds, the applicant also submitted that the purpose of his examination at the Commission was to tie him to key aspects of the case and to inform investigating police of these matters. However, the applicant accepted that the investigation was ongoing at the time of the examination. In these circumstances, it could not be said that the examination was conducted for an improper purpose. Further, this matter was not raised before the primary judge, nor was it the subject of any ground of appeal. In any event, unless unfairness or injustice to the applicant, which could not be remedied, was demonstrated, the fact that the examination was improper would not justify a stay.

The applicant also relied on these grounds in support of its application that as an alternative to a permanent stay, a temporary stay should be granted, until the Crown undertook not to call Gattellari at the trial. For the reasons I have given, that application should be refused. Of particular importance, in that context, is the fact that Gattellari did not have any access to the transcript of the examination of the applicant.

This ground was in the following terms:

The applicant submitted that he was “entitled to cross-examine Gattellari at the trial without Gattellari having been examined by an examiner who was privy to the applicant’s evidence” and without Gattellari being told that the applicant had spoken to the Commission. The applicant also submitted that he was “entitled to conduct his defence without having been previously asked, under pain of perjury, whether he was aware of any dispute between Gattellari and [the deceased]”. He submitted, in these circumstances, that his ability to defend himself and to determine what course he might take at trial was adversely affected.

The Crown submitted, relying on its earlier submissions, that the applicant had not been prejudiced in the conduct of his defence by virtue of the disclosure of his evidence before the Commission.

The matters relied on in this ground have been dealt with in dealing with Grounds 1 and 2 and Grounds 10 and 11. For the reasons given in respect of those grounds, this ground of appeal has not been made out.

I have dealt with the appeal without the need to invoke the presumption in s 45C of the Act. In these circumstances, it is not necessary to say anything about the construction or effect of that section.

In the result, it has not been shown that the primary judge erred in the exercise of his discretion in refusing to grant a stay. In these circumstances, leave to appeal should be granted but the appeal should be dismissed.

I would make the following orders:

BEAZLEY P: I have had the advantage of reading in draft the reasons of the Chief Justice with which I agree. I agree with the orders his Honour has proposed.

HIDDEN J: I agree with the orders proposed by the Chief Justice and with his reasons.