R v X

1. [1]

   SIMPSON J: I agree with Hidden J. I also agree with the additional observations of Hamill J.

2. [2]

   HIDDEN J: This is an appeal by the Director of Public Prosecutions, pursuant to s 5F(2) of the Criminal Appeal Act 1912, against the order of a District Court judge permanently staying proceedings on indictment against the respondent. He was to face trial upon charges of being an accessory before the fact to the manufacture of a large commercial quantity of a prohibited drug, methylenedioxyamphetamine (MDA), and supplying a large commercial quantity of the same drug.

3. [3]

   Put shortly, it is alleged that the respondent was involved with a number of men in the manufacture of a large quantity of the drug at a property at Werris Creek. As to the first count, it is the Crown case that in late November 2010 he took part in setting up a laboratory at that property, where the drug was manufactured by three other men. It is then alleged that on 15 December 2010 the drug and the equipment used to manufacture it were packed into three vans for transport from the site. The respondent drove one of those vans, which was stopped by police in the Quirindi area for a random breath test. Police searched the van and found the laboratory equipment, and a further search revealed a large amount of MDA, well in excess of the commercial quantity. This is the basis of the second count.

4. [4]

   On 15 December 2010, the respondent was charged with possessing drug manufacturing apparatus, to which he later pleaded guilty. However, on 17 December he was charged with manufacturing and supplying a large commercial quantity of MDA. In the District Court the charge of manufacturing the drug was changed to one of accessory before the fact of that offence.

5. [5]

   The respondent's trial was to commence on 10 September 2013. In the meantime, on 2 March 2011, a summons was issued requiring his attendance at the Australian Crime Commission for a compulsory examination under s 25A of the Australian Crime Commission Act 2002. The examination took place on 8 March 2011, and during it he was questioned about the subject matter of the charges against him. By s 30(2) of the Act he was required to answer those questions. However, the combined effect of subss (4) and (5) of that section is that any answer which he claimed might tend to incriminate him could not be used against him at his trial. He made that claim in respect of the whole of his evidence.

6. [6]

   Section 25A(9) of the Act provides:

7. [7]

   In the present case the examiner made a non-publication order under subs (9). The order was directed "to any person including New South Wales investigators who may be involved in the investigation of the matters relating to" the respondent, and also including "any member of the office of the New South Wales Director of Public Prosecutions and any member of the judiciary or judiciary staff of the court who might be involved in any way in the prosecution ... ." On 27 August 2013, the Chief Executive Officer varied that order so as to permit disclosure of the transcript of the examination to the respondent, his lawyers and the court. As a result, when the application for a permanent stay was heard the trial judge had access to the transcript, as did the respondent and his counsel and solicitor, but the Crown prosecutor and his instructing solicitor did not.

8. [8]

   It is because of that order (as varied) that the court was closed for the hearing of this appeal and the respondent is not named.

9. [9]

   The trial judge determined that the prosecution should be stayed in the light of the decision of the High Court in X7 v Australian Crime Commission [2013] HCA 29, 248 CLR 92. The plaintiff in that case had been charged with indictable Commonwealth offences and, while awaiting trial for them, he underwent an examination under the Australian Crime Commission Act (referred to in the judgments as the "ACC Act") in which he was asked and answered questions concerning the subject matter of the offences with which he had been charged. The examiner had given a direction under s 25A(9), so that prosecutors and police officers involved in the prosecution were not entitled to receive a copy of his evidence.

10. [10]

    The plaintiff commenced proceedings in the original jurisdiction of the High Court, seeking declaratory and injunctive relief. A case was stated for the consideration of the Full Court, raising several questions of law. The question which is material for present purposes asked whether the relevant provisions of the ACC Act empowered an examiner "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?" The court, by majority (Hayne, Bell and Kiefel JJ; French CJ and Crennan J dissenting), answered that question "No".

11. [11]

    In a joint judgment, Hayne and Bell JJ, with whom Kiefel J agreed in a separate judgment, said at [70]-[71] (127):

12. [12]

    The question was one of statutory interpretation. Their Honours applied the established rule of construction known as the principle of legality, drawn from Maxwell's On the Interpretation of Statutes, that the legislature should not be understood to have departed "from the general system of law" without expressing its intention "with irresistible clearness ...": [86] - [87] (131-2). Their Honours said that for this purpose questions of fairness "must be put to one side because they are not relevant": [90] (133).

13. [13]

    At [97] (134-5) ff their Honours examined the process of criminal justice, emphasising its accusatorial nature. At [99] (135) their Honours said:

14. [14]

    At [101] (136) their Honours added:

15. [15]

    After examining the privilege against self-incrimination and the "right to silence", and tracing the criminal process from charge to trial, their Honours said at [118] (140):

16. [16]

    After referring to some statutory modifications of the accusatorial process, their Honours said at [124] (142-3), in a passage cited by the trial judge in the present case:

17. [17]

    Their Honours went on to examine earlier decisions of the court which were relevant, albeit in different contexts, and the functions of the Australian Crime Commission set out in the ACC Act. There is, of course, in the Act no provision expressly authorising the examination of a person charged with an offence about the subject matter of that charge. The question was whether such authority might be found in the Act by necessary intendment. Their Honours concluded that it could not. After considering the Commission's investigative function, their Honours said at [147] (150):

18. [18]

    It should be pointed out that the decision in X7 was handed down on 26 June 2013, well after the compulsory examination of the respondent. To have examined him about matters in respect of which he had been charged, provided that the safeguards afforded by s 25A of the ACC Act were in place, was consistent with authority prevailing at that time: Australian Crime Commission v OK (Emmett & Jacobson JJ, Spender J dissenting) [2010] FCAFC 61, 185 FCR 258. The view of the majority in OK was subsequently adopted by this court in R v CB [2011] NSWCCA 264 and R v Seller & McCarthy [2013] NSWCCA 42.

19. [19]

    Of course, in X7 the court was not called upon to consider whether the consequence of the compulsory examination of a person awaiting trial for an offence about the subject matter of the charge should be a permanent stay of the prosecution. The trial judge in the present case said that X7 did not "create a class of persons who would be automatically entitled to a stay of proceedings" and that he was "still required to consider the case on its merits and to apply those principles relevant to taking the significant step of granting a stay of proceedings." (Although the principles stated by the majority were expressed to be referable to the trial of an indictable Commonwealth offence, that was simply a reference to the manner in which the question for the court had been framed. It was accepted before the trial judge that those principles were of general application.)

20. [20]

    His Honour referred to authority on the remedy of a permanent stay, particularly to prevent an abuse of process, including Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23. One of the cases to which he referred was the Canadian decision of R v Regan [2002] SCC 12, from which his Honour cited the following passage in the judgment of the majority at para 54:

21. [21]

    His Honour examined the transcript of the examination of the respondent, noting that it related to the matters charged "virtually in its entirety" and "was conducted at times in a forceful manner by counsel assisting the examiner ... ." He appears also to have been concerned that material in the examination may have come into the possession of investigating police, contrary to the examiner's non-publication order. He noted that there had been a previous examination of the respondent by the Crime Commission and said that it was "somewhat difficult to understand" why the examination in question was conducted, given that the respondent was only asked about the matters for which he was charged.

22. [22]

    He also noted that on 2 March 2011, the day upon which the summons requiring the respondent's attendance for compulsory examination was issued, two police officers had attended upon him in custody to question him about the charges but he had declined to be interviewed. His Honour said that there was no evidence that at that stage the police knew the whereabouts of the Werris Creek property where the manufacture of the drug was said to have been undertaken. At the examination on 8 March the respondent was questioned at some length about the location of the property.

23. [23]

    On 20 March, twelve days later, police went to the Werris Creek area and on the following day, after making enquiries in the area, ascertained the address of the property. They went there on 22 March and, armed with a warrant, searched it. Among items seized during that search was a cigarette butt on which was later found DNA consistent with the respondent's profile.

24. [24]

    His Honour noted a submission by counsel then appearing for the respondent that there was an "overwhelming inference" that information obtained during the examination about the whereabouts of the property had been passed on to investigators. The Crown prosecutor before him had argued that there was no proof "of anything like that occurring ... ." This material led his Honour to make these observations:

25. [25]

    Later in his Honour's reasons his Honour expressed his conclusion as follows:

THE APPEAL

1. [26]

   In this court the Crown was represented by the Crown Advocate, Ms Adams SC, appearing with Ms Namey, neither of whom had appeared in the District Court. The respondent was represented by Mr Molomby SC and Mr Longville. Mr Longville had represented the respondent in the District Court.

2. [27]

   A further variation of the non-publication order made by the ACC examiner, pursuant to s 25A(10) of the Act, was made on 10 April 2014 for the purpose of the appeal. This provided for disclosure to the members of this court and relevant registry staff, and to the staff and lawyers of the Director of Public Prosecutions involved in the appeal, only for confidential use in connection with it. For more abundant caution, by agreement with Mr Molomby, Ms Adams had access to the transcript of the examination but it has not been disclosed to her junior or to her instructing solicitor (even though that solicitor is dealing only with this appeal and is not involved in the prosecution in the District Court).

3. [28]

   The only ground of appeal is that the trial judge erred in permanently staying the prosecution. Put shortly, Ms Adams contended that the trial judge's finding that information from the respondent's examination may have been disclosed to the prosecution was not open on the evidence. Alternatively, if his Honour's decision was founded simply upon the fact that there had been a compulsory examination which, in the light of the decision in X7, was unlawful, he erred in concluding that there was no remedy available to ensure that the respondent received a fair trial.

4. [29]

   Mr Molomby argued that the evidence did justify the inference that material from the examination had been disclosed to investigating police but that, in the event, that was not a matter about which his Honour expressed any concluded view. His Honour ordered a stay because the compulsory examination was such a fundamental departure from the accusatorial process that the respondent could not have a fair trial.

5. [30]

   R v Seller & McCarthy (supra) was a successful appeal by the Crown against an order for the permanent stay of a trial after the disclosure of evidence in compulsory examinations under the ACC Act. The case was decided before X7 and, in any event, did not deal with the issue which arises in the present case. However, at [110] the Chief Justice expressed succinctly the principles relating to a permanent stay. After referring to the exposition of them by McClellan CJ at CL in CB (supra), his Honour said:

6. [31]

   Given that the trial judge in the present case referred to the Canadian decision of R v Regan (supra), it is appropriate to cite the expression of the relevant principles by the majority in that case. While the court there had regard to the Canadian Charter of Rights and Freedoms, the following passage at para 53 is a statement of the common law position:

7. [32]

   As I have said, the issue in X7 was the interpretation of the ACC Act, guided by the principle of legality. In all the judgments reference was made toHammond v The Commonwealth (1982) 152 CLR 188. In that case the plaintiff had been questioned at a Royal Commission about the subject matter of a charge in respect of which he had been committed for trial. The legislation governing the enquiry was the Royal Commissions Act 1902 (Cth) and theEvidence Act 1958 (Vic). The legislation required him to answer questions, making it an offence to refuse to do so, but it provided that any answers given were not admissible in any civil or criminal proceedings (except in proceedings for an offence against the Act in question). The High Court granted an injunction restraining any further examination of the plaintiff until the determination of his trial. The members of the court were unanimous in that decision.

8. [33]

   The plaintiff had sought an injunction on the basis that his further examination in the Commission would constitute a contempt of the court at which he was to be tried. It appears that, although the questioning of the plaintiff was to be undertaken in private, the investigating police officers were present and the transcript of the examination was to be made available to the prosecution. Thus, to adopt the current terminology used in X7, the legislation provided the plaintiff with a direct use immunity in respect of his evidence but did not prevent its derivative use by the prosecution.

9. [34]

   Gibbs CJ said (at 196) that to succeed the plaintiff had to establish "that there is a real risk, as opposed to a remote possibility, that justice will be interfered with" if his examination continued. The Chief Justice added that the "tendency of the proposed actions to interfere with the course of justice must be a practical reality - a theoretical tendency is not enough." In concluding that there was such a risk, his Honour said (at 198):

10. [35]

    Deane J (at 206) said that the "mere fact that proceedings are pending in a court of law does not mean that any parallel or related administrative inquiry, conducted for proper administrative purposes, constitutes an interference with the due administration of justice in that court." His Honour continued:

11. [36]

    It was the ambit of the principles expressed in that case which was the subject of consideration in X7. It is not necessary to examine their Honours' observations about this matter in any detail. It is sufficient to say that the majority found in the case support for their position: Hayne and Bell JJ at [127]-[136], Kiefel J at [161]; just as the minority, by distinguishing the case on its facts, did for theirs: French CJ and Crennan J at [31]-[36].

12. [37]

    In their joint judgment, French CJ and Crennan J examined the "protective provisions" of the ACC Act to be found in s 25A and s 30, and said at [57]:

13. [38]

    Their Honours concluded at [59]-[61]:

14. [39]

    Lee & Anor v New South Wales Crime Commission [2013] HCA 39, 302 ALR 363, was a decision of all seven justices of the High Court, handed down not long after the decision in X7. It arose from an application by the respondent Crime Commission for orders seeking the compulsory examination of the appellants pursuant to s 31D of the Criminal Assets Recovery Act 1990 (NSW). Both appellants had been charged with certain offences, and their examination would touch upon matters relevant to those charges. R S Hulme J had declined to order the examinations for that reason, but his Honour's decision was reversed in the Court of Appeal and that decision was upheld in the High Court.

15. [40]

    The High Court's decision was again by majority: French CJ and Crennan J in separate judgments, and Gageler and Keane JJ in a joint judgment. The minority comprised the justices who had been in the majority in X7: Hayne, Bell and Kiefel JJ, each of whom delivered separate judgments.

16. [41]

    Again, the question was one of construction of the relevant statute, in this case the Criminal Assets Recovery Act (referred to in the judgments as the "CAR Act"). The majority concluded that that Act did permit the examination of a person against whom criminal proceedings were pending about the subject matter of those proceedings, having regard to the purpose of the Act and its provisions, including the fact that the examination was conducted before the Supreme Court or a prescribed officer of the court. French CJ at [45] referred to the principles enunciated by the majority in X7, concluding "that the statute to which those principles were applied in that case differs materially from the statute to which they have to be applied in this case." His Honour set out succinctly at [47] what he saw as the relevant differences between the two Acts. The minority, on the other hand, saw the principles in X7 as directly applicable to the CAR Act.

17. [42]

    It is unnecessary for present purposes to examine the relevant provisions of the CAR Act and the majority's interpretation of them. Ms Adams suggested that there were "some live issues as to reconciliation of certain statements made by the court" in the two decisions. She referred to a number of passages inLee.

18. [43]

    At [54] French CJ expressly acknowledged the authority of the majority view in X7, saying:

19. [44]

    Crennan J said at [152]-[154]:

20. [45]

    Gageler and Keane JJ said at [322]-[324]:

21. [46]

    Both Hayne and Bell JJ, in dissent, responded to the last part of that passage. Hayne J said at [82]:

22. [47]

    It is convenient to refer to this decision as Lee v NSWCC. Those two appellants lived to fight another day in the High Court: Lee v The Queen [2014] HCA 20. That decision was handed down shortly after the present appeal was argued in this court. It is necessary to refer to it, although neither Ms Adams nor Mr Molomby has sought to make any further submissions arising from it.

23. [48]

    Broadly speaking, this last decision arises from the same investigation which was the subject of Lee v NSWCC. It was also concerned with the compulsory examination of the appellants by the State Crime Commission, but under different legislation and at an earlier stage of the investigation. Lee v NSWCCarose from an application by the Crime Commission in June 2010 for the examination of the appellants, whereas Lee v The Queen arose from the examination of both of them in 2009. It is not necessary to go to the detail of their lingering and somewhat complex encounter with the criminal justice system. A brief chronology of it is to be found in the joint judgment in Lee v The Queen at [2]-[7] and [11], supplemented by the judgment of Crennan J inLee v NSWCC at [111]-[116].

24. [49]

    In March 2011, at a trial in the District Court, both of them were found guilty of drug supply offences (and the first appellant, Jason Lee, was also found guilty of possessing a prohibited firearm). Their appeal to the Court of Criminal Appeal against those convictions was unsuccessful. Lee v The Queen was their appeal against that decision, and the High Court allowed the appeals and ordered a new trial. That decision was founded upon the separate examinations of each of them in 2009, those examinations exploring the subject matter of the prosecution. At the time of those examinations each of them had been charged with certain offences, but not those for which they were to face trial. Those charges were laid in the following year, the earlier charges (with some inconsequential exceptions) having been withdrawn and dismissed. The basis of the appeal was that prior to the trial the prosecution had had access to the transcripts of their evidence.

25. [50]

    These examinations were conducted under the New South Wales Crime Commission Act 1985. In respect of the first appellant the Crime Commission had given a direction under s 13(9) of that Act, the effect of which was that the prosecution should not have had access to the transcript of his evidence. No such direction was given in respect of the second appellant, the son of the first appellant, but for the purpose of the appeal it was common ground that it should have been. In disregard of that protective provision, albeit inadvertently, the Commission had furnished transcripts of their evidence, together with documents produced by the first appellant, to the police and the Director of Public Prosecutions. It appears that that material disclosed to some extent matters which might be raised in defence of the charges.

26. [51]

    The Court of Criminal Appeal had given judgment before the decision in X7. Put shortly, as the High Court recorded in the joint judgment at [40], that court had dismissed the appeals principally on the basis that there had been no "practical unfairness" to the appellants arising from the publication of the transcripts of their evidence. The High Court at [41] questioned that conclusion in the light of the facts of the case but, more importantly, added at [43]:

27. [52]

    Earlier, at [31]-[33], the court affirmed the basic principles governing the criminal justice system to which consideration had been given in X7, and at [45], after noting that the Court of Criminal Appeal's decision predated the judgment in X7, said, "Attention was therefore not directed to the principle of the common law respecting proof by the prosecution, unaided by the accused, which was in that case confirmed as fundamental to our system of criminal justice." Their Honours continued at [46]:

28. [53]

    In X7 and Lee v NSWCC the differences of opinion between the members of the High Court are clear enough. Nevertheless, X7 constitutes binding authority for the proposition that the examination under the ACC Act of a person who has been charged with an offence about the subject matter of the charge is not authorised by the Act and is, accordingly, unlawful. It is the consequences for the pursuit of the prosecution of a person who has been subjected to such an unlawful examination which is the crucial question in the present case. That was not a question which needed to be addressed in X7or Lee v NSWCC. Nor was it in Lee v The Queen, which was concerned with whether a miscarriage of justice had been occasioned by the unlawful disclosure to the prosecution of evidence obtained at an examination.

29. [54]

    As noted above, the trial judge observed that the lengthy examination of the respondent was directed almost entirely to the subject matter of the charges he faces. As I have said, Mr Molomby's primary position was that, as a result of that unlawful examination, the respondent could not have a fair trial because of the fundamental alteration of the accusatorial process effected by it. He described the statements of principle by the majority in X7, particularly in [124] quoted above, as "a shift in the tectonic plates" of this area of the law. In effect, he argued, such an unlawful examination creates presumptive prejudice to the trial process, a prejudice which endures whether or not information from the examination has been disseminated. Accordingly, in such a case the remedy of a permanent stay, exceptional as it is, should be granted.

30. [55]

    Ms Adams, on the other hand, submitted that the fact that a person has been subjected to an examination of the kind found to be unlawful in X7 does not necessarily mean that that person is entitled to a permanent stay of his or her trial. Rather, it is necessary to examine the circumstances of the case at hand to determine whether prejudice has been occasioned and, if so, whether it can be remedied in such a way as to ensure a fair trial. It is in this context that she relied upon the observations of French CJ and Crennan J in both X7 and Lee v NSWCC, and those of Gageler and Keane JJ in the latter case. In particular, she noted what the Chief Justice and Crennan J had to say in X7 about s 25A of the ACC Act, submitting that the protection of evidence at an examination from disclosure to the prosecution is an important matter in determining whether a stay should be granted.

31. [56]

    There is no denying the importance of the principles governing the trial process expounded by the majority in X7. Nevertheless, Ms Adams' submissions on this aspect appear to me to be consonant with the authorities on the permanent stay of a criminal trial and should be accepted. In this context the following observations of Hayne J in Lee v NSWCC at [79]-[81] should be noted:

32. [57]

    These observations highlight the fact that in that case, as in X7, the question for the court was whether an examination of a person about the subject matter of charges brought against him should be allowed to proceed. What his Honour said at [80] recognises that, where such an examination has occurred, its effect on that person's trial will depend upon the circumstances of the case at hand. In the present case, of course, there has not yet been a trial. However, the examination has been completed and, presumably, its effect on the trial can be assessed and measures to guard against such prejudice as it might cause can be considered.

33. [58]

    Putting aside the question of the Werris Creek property, it is not apparent from the trial judge's reasons that that assessment was undertaken. As I have said, his Honour did say that X7 did not create a class of persons automatically entitled to a stay and that he was still required to consider the case on its merits. However, the decisive passage from his reasons quoted at [25] above conveys that it was the fact of the unlawful examination, without more, which was the basis of his decision. I might add that any assessment his Honour might have made of the prejudice caused to the respondent by the examination, and of any measures which might have remedied it, was complicated by the fact that the prosecutor could make no useful contribution to the debate as he was not permitted access to the transcript of the examination.

34. [59]

    As to the finding and search of the property, the focus of the argument was not upon the fact that the respondent was required to answer questions about the matter but rather upon the inference for which Mr Longville had contended that, contrary to the direction under s 25A(9) of the ACC Act, his evidence had been made available to the investigating police. Mr Longville mounted that argument by a careful examination of the evidence in the prosecution brief, including the statements of the police officers who located the property, and the chronology of the investigation which that material disclosed.

35. [60]

    The evidence about this matter was not satisfactory. There was no oral evidence. The allegation that the police had unauthorised access to the terms of the respondent's examination is serious, the more so if the contention was that the examination had been conducted for that collateral purpose. This should have been the subject of cross-examination of relevant witnesses. Here also, of course, the prosecutor was ill equipped to deal with the issue. That said, I agree with Mr Molomby that the trial judge, while expressing concern about this matter, does not appear to have made a finding about it.

36. [61]

    In all the circumstances I am satisfied that in granting the application for a permanent stay his Honour's discretion miscarried. The matter calls for re-examination and, perhaps, further evidence. This court is not in a position to undertake that task. Ms Adams sought an order that the matter be remitted to the District Court, which I consider to be the appropriate course. Obviously, it would be desirable for the Crown to be represented by counsel and solicitor other than those who have the carriage of the prosecution and for a further variation of the direction under s 25A(9) of the ACC Act to be made for that purpose.

37. [62]

    Accordingly, I would allow the appeal and remit the matter to the District Court for redetermination.

38. [63]

    HAMILL J: I agree with Hidden J that the appeal should be allowed and the matter remitted to the District Court for further consideration of the respondent's application for a permanent stay of proceedings. I agree with his Honour's reasons for that conclusion.

39. [64]

    However, I should record that I do not accept the appellant's submission that it was denied procedural fairness in the proceedings before Judge Williams.

40. [65]

    That submission was based on the fact that its counsel did not have access to the transcript of the proceedings before the Australian Crime Commission (ACC) and on the ground that the trial Judge made a finding (that there was "unlawful collusion" between police investigating the matter and officers of the ACC) in circumstances where there was no warning to the prosecutor that such a finding might be made. I note that the suggestion in the written submissions (not prepared by the learned Crown Advocate who appeared on the hearing of the appeal) that "it was not open to the Crown to call evidence to rebut that contention" was not pressed.

41. [66]

    Counsel for the appellant was on notice that the respondent relied on the transcript of the hearing before the ACC. Counsel for the respondent had sought, and received, an exemption from the non-publication orders made by the ACC. The appellant could have applied for a similar exemption and, if necessary, sought an adjournment to enable such an application to be made. That is the course that Ms Adams SC took in order to prepare for the hearing of the appeal. I accept that particular complications arose because counsel for the appellant was also briefed to appear at the trial. However, those complications do not mean that the appellant was denied the right to be heard.

42. [67]

    The requirement for natural justice is a requirement that a party be given the opportunity to be heard. The appellant was afforded that opportunity. As Gleeson JA said in Jamal v Director of Public Prosecutions [2013] NSWCA 355:

43. [68]

    As to the second part of the appellant's natural justice submission, when the matter came on for hearing, counsel for the appellant provided extensive written submissions and a chronology. Whilst the version of the written submissions provided to the appellant was redacted in compliance with the non-publication orders made by the ACC, it was clear that counsel was inviting the primary Judge to conclude from the timing of various events that there must have been some communication or interaction between the investigating police and officers of the ACC. This was based around the following parts of the chronology:

44. [69]

    There are two temporal coincidences that arise from this chronology. First, the summons requiring the respondent's compulsory examination was issued by the ACC on the same day that the respondent declined to be interviewed by investigating police. Second, having failed to locate the Werris Creek property in the three months since the respondent's arrest, investigating police located that property twelve days after the respondent gave evidence of its location to the ACC.

45. [70]

    In any event, as Hidden J concludes at [60], while the primary Judge expressed concern as to the chronology he did not make a clear finding on the subject.

46. [71]

    The absence of a clear finding on this issue, the unsatisfactory nature of the evidence on the subject and the extreme nature of the remedy invoked are the matters that lead me to agree with Hidden J that the discretion in the primary Judge miscarried.

47. [72]

    The circumstances in which a permanent stay might be granted in cases of serious criminal prosecutions are not capable of categorisation in advance. The concept of "abuse of process covers a multiple of ills": DPP v Shirvanian (1998) 44 NSWLR 129 at 134A per Mason P. However, what is clear is that a permanent stay is an exceptional remedy granted only in extreme cases: see, for example, Jago v The District Court of New South Wales [1989] HCA 46; 168 CLR 23 at 76, R v CB, R v MP [2011] NSWCCA 264, R v Seller and McCarthy [2013] NSWCCA 42 and R v Regan [2002] SCC 12.

48. [73]

    This Court has granted or upheld permanent stays in cases where the accused person was able to establish a circumstance or circumstances which meant that they were unable to have a fair trial. For an example in R v Littler [2001] NSWCCA 173, the Court (Hodgson JA, James and Adams JJ) granted a stay of proceedings to a 74-year-old man who had memory problems and was called upon to answer allegations of offences alleged to have occurred between 38 and 46 years earlier. It was held that directions were not capable of curing the prejudice and ensuring him a fair trial.

49. [74]

    Similarly, in R v Westley [2004] NSWCCA 192 the Court ordered a permanent stay of proceedings where the accused was 77 years of age and charged with offences that occurred when he was "about 46 or 47". The evidence was not capable of establishing the precise age of the complainant and would be statute barred if she was aged between 14 and 16. It was held therefore that the prosecution was "doomed to failure".

50. [75]

    In those cases the focus of the Court was not on the conduct of prosecuting authorities but on the ability of the accused person to receive a fair trial.

51. [76]

    I refer to and gratefully adopt Hidden J's analysis of the cases of X7 v ACC [2013] HCA 29; 248 CLR 92, Lee v NSW Crime Commission [2013] HCA 39 andLee v The Queen [2014] HCA 20. The present case was decided after the decision in X7 but before the decisions in Lee v NSW Crime Commission andLee v The Queen.

52. [77]

    The language used by the primary Judge and his reference to his "view that the accusatorial process has been fundamentally flawed" suggest that his Honour was greatly influenced by the judgment in X7 and particularly the language employed by Hayne and Bell JJ at [124]. The respondent relied heavily on that passage in the arguments before this Court.

53. [78]

    Given the strength of the language in paragraph [124], it is easy to see how one could conclude that a stay of proceedings would follow from an unlawful and compulsory examination of the kind involved in the present case. However, the High Court is yet to consider a case where the remedy sought in such circumstances was the permanent stay of serious criminal proceedings. Further the orders made in Lee v The Queen, seen in the light of arguments addressed to the High Court on the hearing of the appeal, suggest that a remedy short of a permanent stay may be available depending on the circumstances of the case.

54. [79]

    The following arguments were made on the hearing of the appeal in Lee v The Queen (Lee v The Queen; Lee v the Queen [2014] HCATrans 69):

55. [80]

    The High Court did not, in terms, address these arguments in its judgment. However, the Court ordered a new trial. That was in circumstances where there had clearly been a dissemination of the material to the prosecuting authority.

56. [81]

    The final chapter of what Hidden J has described as the Lees' "lingering and somewhat complex encounter with the criminal justice system" is yet to be written. However, the orders made by the High Court in Lee v The Queen contemplate that a trial that is relevantly "fair" may be possible even in circumstances where there has been both an unlawful examination and a dissemination of the material.

57. [82]

    Insofar as the primary Judge appeared to act on a contrary assumption, his Honour's discretion miscarried.

58. [83]

    For these reasons, as well as those given by Hidden J, I agree that the appeal must be allowed and the case remitted to the District Court.