Hutson v Australian Securities and Investments Commission
[2023] QCA 167
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- Hutson v Australian Securities and Investments Commission[2023] QCA 167
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Hutson v Australian Securities and Investments Commission[2023] QCA 167
Reported at (2023) 17 QR 21
Hutson v Australian Securities and Investments Commission[2023] QCA 167
Reported at (2023) 17 QR 21
SUPREME COURT OF QUEENSLAND
CITATION: | Hutson v Australian Securities and Investments Commission & Anor [2023] QCA 167 |
PARTIES: | JENNIFER JOAN HUTSON (appellant) v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION (first respondent) JUDGE FARR SC (second respondent) |
FILE NO/S: | Appeal No 15498 of 2022 SC No 14915 of 2021 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Brisbane – [2022] QSC 243 (Crowley J) |
DELIVERED ON: | 22 August 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 17 April 2023; 18 April 2023 |
JUDGES: | Mullins P, Dalton JA and Henry J |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – DECLARATIONS – CRIMINAL PROCEEDINGS – GENERALLY – where the appellant was charged on two indictments in the District Court alleging contraventions of the Corporations Act 2001 (Cth) and counts contrary to the Criminal Code (Qld) – where the second indictment contains counts of giving false or misleading information in compulsory examinations of the appellant by ASIC contrary to the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act) – where the appellant applied to the District Court for a pre-trial ruling under s 590AA of the Code for a permanent stay of both indictments on the basis that ASIC’s purported exercise of power under s 19 of the ASIC Act to compulsorily examine the appellant was unlawful – where the District Court dismissed the stay application – where the appellant applied to the Supreme Court for declaratory relief that the compulsory examinations were unlawful and that the pre-trial ruling erred in concluding the compulsory examinations were lawful and in the construction of s 49(1) of the ASIC Act – where the Supreme Court exercised its supervisory jurisdiction by determining issues of law and fact including the construction and application of s 19 and s 49(1) of the ASIC Act – whether it is in the interests of justice that issues of law and fact should be determined by means of declaratory relief in the exercise of the Supreme Court’s supervisory jurisdiction over criminal proceedings where like issues were the subject of the pre-trial ruling Australian Securities and Investments Commission Act 2001 (Cth), s 19, s 49, s 63, s 68 Criminal Code (Qld), s 590AA, s 668A, s 669A Anderson v Attorney-General (NSW) (1987) 10 NSWLR 198, considered Emanuel Exports Pty Ltd v Department of Primary Industries and Regional Development [2023] WASCA 36, cited Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43, cited Grierson v The King (1938) 60 CLR 431; [1938] HCA 45, cited Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10, cited Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20, cited R v Chardon [2017] 1 Qd R 148; [2016] QCA 50, cited R v Long (No 1) [2002] 1 Qd R 662; [2001] QCA 318, cited R v PV; Ex parte Attorney-General [2005] 2 Qd R 325; [2004] QCA 494, cited Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43, considered |
COUNSEL: | N J Clelland KC, with S J Webster, for the appellant M T Brady KC, with C J Tran and S L Walpole, for the first respondent |
SOLICITORS: | Gilshenan & Luton Legal Practice for the appellant Australian Government Solicitor for the first respondent |
- [1]MULLINS P: The appellant is the former chairperson of G8 Education Limited and is charged on two indictments presented in the District Court in January 2021 (156/21 and 161/21). The first indictment contains 12 counts alleging contraventions of the Corporations Act 2001 (Cth) (Act) (of which there are two counts of dishonest use of position with intention of gaining an advantage, one count of fail to exercise powers or discharge duties for a proper purpose and nine counts of giving false or misleading information to an operator of a financial market) and one count of fraud as a director to the value of $30,000 or more contrary to s 408C(1)(a) of the Criminal Code (Qld) (Code) in connection with takeover bids by G8 for Affinity Education Group Ltd in July 2015 and August 2015 (the Affinity takeovers). There is a further count on the first indictment of attempting to pervert justice alleged to have been committed on 10 April 2016 contrary to s 140 of the Code. The second indictment contains 15 counts of giving false or misleading information in compulsory examinations of the appellant before officers of the Australian Securities and Investments Commission on 25 May and 22 June 2016 contrary to s 64(1)(b) of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act).
- [2]The appellant applied to his Honour Judge Farr SC of the District Court pursuant to s 590AA(2)(a) of the Code for a permanent stay of both indictments (the stay application) on the basis that the compulsory examinations of her were unlawful. This involved the construction and application of the relevant provisions of the ASIC Act and the factual conclusions that Judge Farr SC reached on the course of ASIC’s investigation of the Affinity takeovers. Judge Farr SC dismissed the stay application on 16 November 2021: R v Hutson [2021] QDCPR 78 (the pre-trial ruling).
- [3]Judge Farr SC noted (at [61] of the pre-trial ruling) that for s 49(1) of the ASIC Act to apply, the position (that it appeared to ASIC that a person may have committed an offence against the corporations legislation and ought to be prosecuted for the offence) must be reached “as a result of an investigation”. His Honour decided (at [67] of the pre-trial ruling) that “[t]he term, ‘as a result of an investigation’ connotes a viewpoint being reached at or near the end of an investigation”. Judge Farr SC concluded (at [82] of the pre-trial ruling) that the investigation was still continuing at the time of the examinations.
- [4]The appellant’s solicitors foreshadowed to the Commonwealth Director of Public Prosecutions that the appellant would apply to the Supreme Court for declaratory relief that the compulsory examinations of the appellant were unlawful and invited the CDPP instead to refer to the Court of Appeal under s 668A(1) of the Code a point of law that had arisen in relation to the pre-trial ruling about whether the expression “as a result of an investigation” in s 49(1) of the ASIC Act connoted that the state of mind must be “reached at or near the end of an investigation”. The CDPP declined to make that reference.
- [5]The appellant then applied to the Supreme Court of Queensland for a declaration to the effect that the purported exercise by ASIC of the power contained in s 19 of the ASIC Act to compulsorily examine the appellant on 25 May and 22 June 2016 was unlawful because s 49(1) of the ASIC Act applied at the time of the purported exercise of the power. The appellant also applied for a declaration that the expression “as a result of an investigation” in s 49(1) of the ASIC Act did not connote that the state of mind described in that section must be “reached at or near the end of an investigation” and that Judge Farr SC erred in concluding that ASIC’s purported exercise of the power to examine the applicant compulsorily was lawful and that the expression “as a result of an investigation” in s 49(1) of the ASIC Act connotes that the state of mind described in that section must be “reached at or near the end of an investigation”.
- [6]ASIC applied for summary dismissal of the appellant’s application for declaratory relief on the basis the Supreme Court proceeding was an abuse of process. The dismissal application proceeded on the assumption that the Supreme Court did have jurisdiction to grant declaratory relief and that the appellant had an arguable case to make on her substantive legal point on the proper construction of the relevant provisions of the ASIC Act. Kelly J concluded that the appellant had reasonably arguable grounds for contending that it was necessary and in the interests of justice that the Court should make the declarations sought in the Supreme Court proceeding and that ASIC had not discharged the burden of showing that it was an abuse of process to pursue the same issues in the Supreme Court proceeding as were dealt with in the pre-trial ruling. On 29 April 2022, the application of summary dismissal of the Supreme Court proceeding was therefore dismissed: Hutson v ASIC [2022] QSC 68.
- [7]The appellant filed an amended originating application in the Supreme Court that joined Judge Farr SC as the second respondent pursuant to the order made by Kelly J on 4 May 2022. Judge Farr SC was excused from appearing on the stay application (save as to the question of costs).
- [8]The appellant’s stay application was then heard by the learned primary judge and was dismissed: Hutson v Australian Securities and Investments Commission & Anor [2022] QSC 243 (the reasons). The stay application was not limited to the construction of the relevant provisions of the ASIC Act but depended on the inferences drawn from the evidence before the primary judge as to the course of the ASIC investigation of the Affinity takeovers and the appellant.
- [9]The primary judge decided (at [88] of the reasons), contrary to the submission made by ASIC, that s 590AA(4) of the Code did not oust the Supreme Court’s jurisdiction to grant declaratory relief in respect of a matter that had been the subject of a ruling or decision made pursuant to an application brought under s 590AA(1) in respect of criminal proceedings in the District Court.
- [10]Consistent with the order of the appellant’s submissions before the primary judge, the primary judge noted (at [97] of the reasons) that his Honour would consider whether the appellant had established a proper basis for the declaratory relief and, if that were established, then consider whether it was appropriate in the exercise of discretion to grant such relief.
- [11]The appellant had conceded before the primary judge that ASIC’s investigations of the Affinity takeovers did continue beyond the compulsory examinations of the appellant (to which reference was made by the primary judge at paragraph (d) of [99] of the reasons). The primary judge noted (at [100]-[107] of the reasons) the differing submissions made by the parties as to the construction of s 49 of the ASIC Act and its relationship with s 19 of the ASIC Act and the differing submissions as to whether the evidence demonstrated that s 49(1) was satisfied at the time of the appellant’s compulsory examinations.
- [12]In dealing with the statutory construction of s 49 of the ASIC Act, the primary judge considered (at [136] of the reasons) that the composite state of mind specified by paragraphs (c) and (d) of s 49(1) of the ASIC Act may be formed by ASIC because of, or following, its consideration of either of the matters specified in paragraphs (a) or (b) of s 49(1) and that “[a]n investigator may hold a suspicion or belief, or may have formed an opinion or conclusion, as a result of an investigation into a matter, notwithstanding that the investigation is continuing and is yet to conclude”. The primary judge also stated (at [140] of the reasons) that the relevant composite state of mind within paragraphs (c) and (d) of s 49(1) must be formed by an ASIC delegate as a precondition to the exercise of a power under either s 49(2) or (3) and (at [143] of the reasons) that the phrase “ought to be” in paragraph (d) requires ASIC to have decided that a person should be prosecuted which is anterior to the performance of the function and the exercise of the power in s 49(2) to cause a prosecution to be begun.
- [13]In relation to the conditions in s 49(1) of the ASIC Act, the primary judge concluded (at [195]-[196] of the reasons) that the person who must hold the requisite state of mind required by s 49(1) must be the ASIC delegate who exercises the power in s 49(2). The primary judge found (at [223]-[225] of the reasons) that the conditions in s 49(1) had not been satisfied at the respective times when the appellant was examined under s 19 of the ASIC Act and that the compulsory examinations were lawful. The primary judge then considered (at [226]-[238] of the reasons) the position, if the primary judge were wrong in the proper construction of s 49 of the ASIC Act and the facts established by the relevant evidence, and concluded that he would not on discretionary grounds have granted the declaratory relief sought by the appellant.
- [14]The primary judge reached the same ultimate conclusion as to the lawfulness of the compulsory examinations as Judge Farr SC did, although there were differences in each of their approaches to the construction of s 49 of the ASIC Act. Importantly, as Judge Farr SC’s ultimate conclusion depended on his Honour’s conclusion on the facts of the state of the ASIC investigation of the Affinity takeovers when the compulsory examinations of the appellant were held, the primary judge’s ultimate conclusion also depended on his Honour’s conclusion on the facts.
Grounds of appeal
- [15]There are multiple and extensive grounds of appeal that were distilled by the appellant into three broad areas:
- the questions of construction which arise in relation to s 19 and s 49 of the ASIC Act;
- the proper application of s 49 of the ASIC Act in the appellant’s matter; and
- the exercise of the discretion to grant declaratory relief.
- [16]ASIC filed an amended notice of contention seeking to affirm the primary judge’s decision on a ground other than a ground relied on by the primary judge. The first ground is that the primary judge ought to have dismissed the appellant’s application as beyond the power of the Supreme Court exercising federal jurisdiction as it was, in substance and effect, an appeal from a determination of Judge Farr SC contrary to the limitations on such criminal appeals provided for in s 590AA(4) of the Code. The second ground is that, even if the appellant’s construction of s 49 of the ASIC Act were correct and s 49 of the ASIC Act limits the operation of s 19 of the ASIC Act, the evidence before the primary judge did not permit a conclusion that s 49 applied because, as a result of its investigation, it did not appear to ASIC that the appellant ought to be prosecuted at the respective times of her compulsory examinations.
- [17]Judge Farr SC was excused from appearing in the appeal except as to the question of costs.
Factual background
- [18]The primary judge adopted (at [18] of the reasons) ASIC’s investigative chronology set out at [20]-[34] of the pre-trial ruling (with footnotes omitted) as follows:
“[20] From July 2015 ASIC began to monitor, and then investigate, the circumstances of a takeover bid for Affinity by G8. The applicant was a director and chairperson of G8. Shares in Affinity were purchased in tranches between 13 and 28 July 2015 by a third company, West Bridge Holdings Pty Ltd (West Bridge).
[21] The substantive charges, representing Counts 1 – 13 on Indictment 156/21, in substance allege that between 13 July 2015 and 2 September 2015 the applicant breached provisions of the Corporations Act and Criminal Code (Qld) when she acquired a sum of money from G8 to fund West Bridge’s purchase of Affinity shares, authorised the transfer of other funds, authorised the purchase of shares with surplus funds, and, in a number of documents lodged with the Australian Stock Exchange, failed to accurately disclose G8’s ‘relevant interest’ in Affinity. The applicant denies each of those allegations.
[22] Although an investigation was not formally ‘commenced’ under s. 13 of the ASIC Act until 12 January 2016, ASIC began monitoring the applicant’s activities in around July 2015 as part of a Takeovers Panel investigation. Her actions were referred for criminal investigation within ASIC in November 2015.
[23] From August 2015, ASIC issued numerous statutory notices compelling relevant persons and entities to provide information, personal and company records and to furnish written statements, and, in turn, filed this material with the Takeovers Panel in support of its submissions. By September 2015, those statutory notices referred to ASIC’s allegations of contraventions of the Corporations Act. And by 9 October 2015, ASIC set out the extensive nature of its ‘investigative effort’ in its submissions on costs to the Takeovers Panel.
[24] The Takeovers Panel made its decision on 5 October 2015 and delivered written findings shortly thereafter. Following the release of the Takeovers Panel draft written reasons, members of ASIC’s Markets Enforcement Team referred the matter to the Corporations and Corporate Governance Enforcement Team (CCG). That referral, dated 2 November 2015, alleged that, on the basis of ‘useful and relevant evidence from relevant parties’ that ASIC had already acquired, the ‘key documents’ returned under statutory notices issued by ASIC, and the ‘key assessments of the facts relevant to this referral’ in the Takeovers Panel’s draft reasons, G8 and its directors had, respectively, contravened ss. 606 and 184(2)(a) of the Corporations Act.
[25] On 13 November 2015, Ms Kelly Rogers, senior lawyer within the CCG, recommended the acceptance of the referral. In support of that recommendation she noted that,
ASIC has the benefit of the Panel’s decision and legal analysis and the evidence and submissions put to the Panel by the parties, which reduces the extent of the ‘fact finding’ that needs to be undertaken.
[26] On 12 January 2016 a s. 13 file note signed by a Mr Brendan Caridi (Caridi), as delegate of ASIC, recorded the formal ‘commencement’ of an investigation ‘re trading in the securities of Affinity Education Group between 2 July and 21 October 2015’. In the days and weeks that followed, ASIC issued dozens more statutory notices. Between 26 February 2016 and 24 March 2016, ASIC compulsorily examined six different people.
[27] By 5 April 2016, ASIC investigators noted in email correspondence that they had commenced drafting witness statements for inclusion in a brief of evidence to the Commonwealth Director of Public Prosecutions (CDPP). In affidavit evidence now filed in this Court, investigators state that these witness statements were prepared for the purpose of ‘the commencement of criminal proceedings against the defendant’ and ‘were not created for any other purpose’.
[28] On 29 April 2016, ASIC investigators wrote to the applicant offering her a cautioned record of interview. On 5 May 2016, the applicant exercised her common law right to decline to participate in that interview.
[29] On 6 May 2016, ASIC officers Matthew Bastianon (Bastianon), Peter Paleologos (Paleologos) and Caridi issued a notice to the applicant, pursuant to s. 19 of the ASIC Act (the s. 19 notice) requiring her to attend and participate at a compulsory examination. ASIC informed the applicant that a failure to comply with the s. 19 notice constituted a criminal offence.
[30] On 25 May 2016, the examination took place (the May examination). At the conclusion of the May examination, the examiner adjourned the examination to a date to be fixed.
[31] On 6 June 2016, by email, ASIC notified the applicant, via her lawyers, that ASIC sought to resume the previously adjourned examination. The examination was resumed on 22 June 2016 and concluded that day (the June examination).
[32] Following these examinations, ASIC continued to exercise what Bastianon described as its investigative powers. Those powers included ASIC engaging in the following:
- interviewing three prospective witnesses pursuant to s. 19 (interviewed between 21 June 2017 and 12 March 2019);
- interviewing numerous other prospective witnesses voluntarily;
- issuing 16 notices requiring the production of documents (issued between 8 July 2016 and 27 March 2018);
- obtaining signed witness statements from 27 witnesses (obtained between 15 July 2016 and 12 March 2019);
- obtaining and executing seven s. 3A Crimes Act search warrants (executed on 18 August 2016 on the residences and vehicles of the applicant and another and on the business premises of Wellington Capital Limited);
- reviewing, collating, copying and considering the documents produced as a result of each of the above steps; and
- preparing the brief of evidence for submission to the CDPP.
[33] ASIC referred the brief of evidence to the CDPP on 22 November 2016 to enable the Director to determine whether the applicant should be charged, and, if so, what charges should be laid.
[34] The applicant was charged in February 2018.”
- [19]On the application before the primary judge, the appellant relied on affidavits filed by her solicitor Mr Quinn that put before the primary judge documents from the criminal proceedings that were relevant to the stay application. Further documents relevant to the stay application and the relationship between ASIC and the CDPP were set out in the affidavits of ASIC’s solicitor Ms Lewis that were put before the primary judge by ASIC. ASIC also relied on an affidavit of Mr Bastianon, a senior lawyer in the Corporations and Corporate Governance (CCG) enforcement team within ASIC who had been involved in ASIC’s investigation of the acquisition of securities in the Affinity takeovers and the investigation of the appellant. The extent and nature of the material before the primary judge was largely, but not completely, the same as that before Judge Farr SC on the stay application.
- [20]On the basis of the number of witnesses who had provided statements to ASIC, the documents referred to by those witnesses in their witness statements, the documents within the brief of evidence which were not referred to in witness statements about which Mr Quinn expected the witnesses would need to give evidence and the time taken for witnesses to be cross-examined at the committal hearing where their evidence in chief was given by way of witness statement, Mr Quinn stated in his affidavit sworn on 15 June 2022 that he estimated the trial on the first indictment would take approximately eight weeks and the trial on the second indictment would take approximately four weeks.
- [21]Ms Lewis stated in her affidavit affirmed on 13 July 2022 that the CDPP estimated the length of each trial to be 10 days and the length would be affected by any admissions and whether there was evidence adduced in the defence case. Ms Lewis also described in that affidavit (without dividing the witnesses between the two trials) that 26 witnesses had given statements of whom eight were civilian witnesses who would give evidence of events that were relevant to the proceedings, five were investigators or analysts from ASIC or the Queensland Police Service who would give evidence of events relevant to the proceedings and the investigation including the production of documents, seven were from financial institutions to produce bank records, five were civilian witnesses who would produce documents or evidence, and one was an expert forensic accountant.
- [22]To assist in resolving the factual issues on the application, the primary judge set out at [205]-[219] of the reasons the chronology post February 2018 and extracts from the evidence given at the appellant’s committal hearing by Mr Bastianon and Mr Paleologos who is also a lawyer and investigator in the CCG enforcement team.
Relevant statutory provisions
- [23]Part 3 of the ASIC Act (s 13 – s 93AA) is entitled “Investigations and information-gathering”. Section 19 of the ASIC Act is in Division 2 (Examination of persons) of Part 3 and provides:
“19 Notice requiring appearance for examination
- This section applies where ASIC, on reasonable grounds, suspects or believes that a person can give information relevant to a matter that it is investigating, or is to investigate, under Division 1.
- ASIC may, by written notice in the prescribed form given to the person, require the person:
- to give to ASIC all reasonable assistance in connection with the investigation; and
- to appear before a specified member or staff member for examination on oath and to answer questions.
Note: Failure to comply with a requirement made under this subsection is an offence (see section 63).
- A notice given under subsection (2) must:
- state the general nature of the matter referred to in subsection (1); and
- set out the effect of subsection 23(1) and section 68.”
- [24]Section 49 of the ASIC Act is in Division 5 (Proceedings after an investigation) of Part 3 and provides:
“49 ASIC may cause prosecution to be begun
- This section applies where:
- as a result of an investigation; or
- from a record of an examination;
conducted under this Part, it appears to ASIC that a person:
- may have committed an offence against the corporations legislation; and
- ought to be prosecuted for the offence.
- ASIC may cause a prosecution of the person for the offence to be begun and carried on.
- If:
- ASIC, on reasonable grounds, suspects or believes that a person can give information relevant to a prosecution for the offence; or
- the offence relates to matters being, or connected with, affairs of a body corporate, or to matters including such matters;
ASIC may, whether before or after a prosecution for the offence is begun, by writing given to the person, or to an eligible person in relation to the body, as the case may be, require the person or eligible person to give all reasonable assistance in connection with such a prosecution.
Note: Failure to comply with a requirement made under this subsection is an offence (see section 63).
(3A) An offence under subsection 63(3) relating to subsection (3) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
- Subsection (3) does not apply in relation to:
- the person referred to in subsection (1); or
- a person who is or has been that person’s lawyer.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4), see subsection 13.3(3) of the Criminal Code.
- Nothing in this section affects the operation of the Director of Public Prosecutions Act 1983.”
- [25]Section 63(1)(a) of the ASIC Act is in Division 7 (Offences) of Part 3 and makes it an offence for a person to intentionally or recklessly fail to comply with a requirement made under s 19 of the ASIC Act.
- [26]Section 68 of the ASIC Act is also in Division 7 of Part 3 and provides:
“68 Self-incrimination
- For the purposes of this Part, of Division 3 of Part 10, and of Division 2 of Part 11, it is not a reasonable excuse for a person to refuse or fail:
- to give information; or
- to sign a record; or
- to produce a book;
in accordance with a requirement made of the person, that the information, signing the record or production of the book, as the case may be, might tend to incriminate the person or make the person liable to a penalty.
- Subsection (3) applies where:
- before:
- making an oral statement giving information; or
- signing a record;
pursuant to a requirement made under this Part, Division 3 of Part 10 or Division 2 of Part 11, a person (other than a body corporate) claims that the statement, or signing the record, as the case may be, might tend to incriminate the person or make the person liable to a penalty; and
- the statement, or signing the record, as the case may be, might in fact tend to incriminate the person or make the person so liable.
- The statement, or the fact that the person has signed the record, as the case may be, is not admissible in evidence against the person in:
- a criminal proceeding; or
- a proceeding for the imposition of a penalty;
other than a proceeding in respect of:
- in the case of the making of a statement—the falsity of the statement; or
- in the case of the signing of a record—the falsity of any statement contained in the record.”
- [27]It was not in contention on this appeal that s 63 and s 68 of the ASIC Act were effective to alter the appellant’s common law right to silence by compelling her to answer questions and modify the privilege against self-incrimination in a compulsory examination under s 19 of the ASIC Act, if the compulsory examinations were conducted lawfully under s 19. See Strickland v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325 at [95].
The pre-trial ruling
- [28]The effect of the pre-trial ruling is that for the purpose of the respective trials on the indictments, the question of whether the appellant had been lawfully examined pursuant to s 19 of the ASIC Act has been determined unless the judge presiding at one of the trials or another pre-trial hearing in respect of either trial for special reason gives leave to reopen the ruling, as provided for by s 590AA(3) of the Code. Section 590AA(4) of the Code provides that a ruling must not be subject to interlocutory appeal but may be raised as a ground of appeal against conviction or sentence.
- [29]The appellant is therefore not without a right to appeal against the pre-trial ruling, if convicted after trial on the first indictment.
The Supreme Court’s supervisory jurisdiction over criminal trials
- [30]The jurisdiction that the appellant sought to invoke before the primary judge to interfere with a criminal proceeding by means of declaratory relief is an exceptional jurisdiction: see Sankey v Whitlam (1978) 142 CLR 1 at 25-26, 80 and 82, Anderson v Attorney-General for New South Wales (1987) 10 NSWLR 198 at 200 and 206 and Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120 at [23]. As the primary judge noted (at [66]ff of the reasons) the issue of whether s 590AA(4) of the Code precluded the Supreme Court exercising the supervisory jurisdiction over a criminal proceeding that was exercised in Sankey was not authoritatively determined in R v Long (No 1) [2002] 1 Qd R 662 at [44] and [53] where it was recognised that if the Court did have supervisory jurisdiction to make declaratory relief in respect of the correctness of interlocutory orders made in proceedings upon indictment, it could only be exercised in the most exceptional circumstances. Although Margaret McMurdo P recognised in R v Chardon [2017] 1 Qd R 148 at [2] that this Court has the jurisdiction exercised in Sankey to make declarations concerning a right, duty or obligation in criminal proceedings where there are exceptional or special circumstances, Gotterson JA (with whom Morrison JA agreed) observed (at [22]) that it was far from clear that this Court had the jurisdiction to grant declaratory relief recognised in Sankey in respect of the application for change of venue and for a trial by a judge sitting without a jury when the applicant had been unsuccessful in s 590AA applications for the same relief and refrained from making a determination on the issue without the benefit of full argument.
- [31]On this appeal, ASIC conceded that the Supreme Court had jurisdiction to make the declaratory relief sought by the appellant by virtue of s 58 of the Constitution of Queensland 2001 (Qld) and s 39 of the Judiciary Act 1903 (Cth) and instead submitted that, in accordance with the first ground of the notice of contention, by virtue of s 590AA(4) of the Code the Supreme Court did not have the power to make declarations that were inconsistent with the pre-trial ruling.
- [32]In making this submission, ASIC relied on statements found in High Court authorities, such as Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 at [6] and [69], as to the distinction between the existence of jurisdiction which is anterior to the existence of the power to grant particular relief.
- [33]ASIC’s submission was based on what was described as the clear legislative intention reflected by s 590AA(4) to exclude interlocutory appeals by a defendant in respect of a pre-trial ruling which also must exclude the power of the Supreme Court in its supervisory jurisdiction to make a declaration on the application of a defendant that was inconsistent with a pre-trial ruling. The essence of ASIC’s submission is that by the appellant’s invocation of the supervisory jurisdiction of the Supreme Court, the appellant was seeking to unwind the binding effect of the pre-trial ruling and that was tantamount to an appeal which was impliedly excluded by s 590AA(3) and (4).
- [34]The introduction of the provision which is now s 590AA of the Code was one of the reforms to update and streamline the Code effected by the Criminal Law Amendment Act 1997 (Qld) (the 1997 Act). Section 590AA regulates the practice and procedure for pre-trial directions and rulings. Its purpose was to facilitate pre-trial directions and rulings about the admissibility of evidence and the conduct of the trial after the indictment was presented and to reform the then current practice “of empanelling a jury and then sending them away or locking them up while questions of law are determined”. See the note on clause 108 in the Explanatory Notes for the Bill that was enacted as the 1997 Act. Any right of appeal in a criminal matter must be found in a statute: Grierson v The King (1938) 60 CLR 431 at 435-436 and Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [56]. Section 590AA(4) regulates interlocutory appeals by a defendant in respect of a pre-trial direction or ruling by excluding interlocutory appeals and conferring the right to raise the direction or ruling as a ground of appeal against conviction or sentence.
- [35]Prior to the introduction of the procedure for pre-trial directions or rulings in advance of the trial in 1997, s 669A of the Code did facilitate the reference by the Crown to the Court of Appeal of a point of law that had arisen at the trial upon indictment where the person charged had been acquitted or discharged in respect of the charge where the prosecution, as a result of the determination of the court of trial on that point of law, had informed the court that the Crown would not proceed further upon the indictment in relation to that charge. When s 590AA was enacted in 1997, there was also no provision for interlocutory appeals by the Crown in respect of a pre-trial direction or ruling (given before arraignment) other than s 669A(1A) that was also inserted in the Code by the 1997 Act pursuant to which the Crown could appeal against an order staying proceedings or further proceedings on an indictment.
- [36]The amendments made by the 1997 Act meant that where a pre-trial ruling under s 590AA resulted in a case being discontinued before the trial had commenced, the prosecution had no remedy to challenge that pre-trial ruling. See R v PV; Ex parte Attorney-General [2005] 2 Qd R 325 at [4]-[5]. This resulted in further reform by the insertion of s 668A into the Code by s 30 of the Evidence (Protection of Children) Amendment Act 2003 (Qld) (the 2003 Act). Section 668A(1) confers a power on a Crown Law Officer to refer to the Court of Appeal for its consideration and opinion on a point of law that has arisen in relation to a direction or ruling under s 590AA given by another court as to the conduct of a trial or pre-trial hearing. The Legislature intentionally confined the application of s 668A to the Crown, as the Explanatory Notes for the Bill that became the 2003 Act stated:
“The accused is not being given the same right of appeal, although he or she does have a right to be heard on the reference [under s 668A]. While the defence may also have cause to complain about pre-trial rulings, the accused may be acquitted notwithstanding those rulings, but if convicted can appeal against that conviction, including by challenging the ruling.”
- [37]These express provisions of s 590AA(4) and s 668A(1) of the Code were respectively enacted against the background of the recognition in Sankey and Anderson of the exceptional nature of the jurisdiction of the courts of superior jurisdiction such as the Supreme Court of a State to interfere with a criminal proceeding by a means of declaratory relief. There is nothing in the legislation that inserted s 590AA or s 668A into the Code or the relevant Explanatory Notes that in any way supports a conclusion that, as a matter of statutory construction, these provisions impliedly excluded the exercise of the power associated with the supervisory jurisdiction of the Supreme Court as a superior court of record in relation to criminal proceedings.
- [38]It was not essential for giving full effect to the statutory regime created by s 590AA and s 668A of the Code that the application of the Supreme Court’s supervisory jurisdiction in relation to criminal proceedings (which by its nature would rarely be exercised) be modified. The existence of the statutory regime for reviewing pre-trial rulings does not exclude the power of the Supreme Court otherwise in its supervisory jurisdiction to make a declaration that may have the consequence of interfering with a criminal proceeding. The existence of a specific statutory regime for the purpose of reviewing and appealing against pre-trial rulings is a powerful discretionary reason for not exercising that power but does not preclude the possibility of the exercise of that power in an exceptional case. ASIC does not succeed on the first ground of its notice of contention.
- [39]In Sankey, the plaintiff had laid information on 20 November 1975 against the former Prime Minister, Mr Whitlam, and three former Ministers of his government. One of the charges alleged a conspiracy “to effect a purpose that was unlawful under a law of the Commonwealth” which was an offence against s 86 of the Crimes Act 1914 (Cth). The Magistrate in the Court of Petty Sessions ruled that the information charged an offence known to the law. There were hearings involving legal argument and questions of jurisdiction. There was also a dispute between the parties over production of documents. The plaintiff commenced a Supreme Court proceeding in relation to the production of documents in respect of which the Magistrate had accorded privilege in a decision given on 3 November 1977. Mr Whitlam cross-claimed in the Supreme Court proceeding in which he sought a declaration that the first charge did not disclose an offence. Upon the application of the Attorney-General of the Commonwealth, the proceeding was removed from the Supreme Court into the High Court and the proceeding was heard in March 1978. All members of the High Court were agreed that the charge as laid did not disclose an offence under s 86 of the Crimes Act 1914 and was therefore bad in law. Four members of the Court were agreed that the Magistrate was in error in upholding the objections taken by the Commonwealth to the production and disclosure of certain Cabinet documents.
- [40]On the issue of whether the Court had power to grant declaratory relief in respect of a committal proceeding, four members of the Court in Sankey decided that there was power but that it should be exercised sparingly in criminal cases. Gibbs ACJ observed at 24 that “the court has power to declare that a charge brought against an accused person is one not known to the law, since the accused has a ‘right’ not to be exposed to proceedings that have no legal substance”. Gibbs ACJ considered at 25 that “when an informant has properly required the production on subpoena of an admissible document, and the Commonwealth has objected to the production of the document on the ground that the public interest requires that it should not be disclosed, it is possible to regard the Commonwealth as asserting, against the informant as well as against the court, a ‘right’ to withhold production of the document, and that in those circumstances the court has power to grant declaratory relief if the objection is held to be untenable”. Gibbs ACJ stated at 26:
“Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order.”
- [41]One of the circumstances that made Sankey “most exceptional” was identified by Gibbs ACJ at 26 as “the very fact that the questions have been argued in this Court after the proceedings have already been long delayed is a cogent reason for putting them finally to rest”. Stephen J at 80 based the exercise of the discretion to grant the declaratory relief by reference to the particular circumstances of that case which arose from the opportunity for the High Court to resolve questions of law that were first raised years ago in the Magistrate’s Court and which have continued to trouble the parties and the courts, noting that “[i]n many like cases an exercise of discretion in the contrary sense may be called for so as to avoid interference with the due and orderly administration of the law and with the proper exercise by magistrates of their functions in committal proceedings”. Mason J at 82-83 noted that the committal proceedings had been “fragmented and inordinately delayed” and due to that “unsatisfactory and exceptional situation” the Court should grant the declaratory relief that “will facilitate the committal proceedings and finally put beyond doubt important and difficult issues of law”. Aickin J at 103 noted his general agreement with Stephen J. Declarations were made as to the error made by the Magistrate in upholding the objections of the Commonwealth to the production of documents and that the information alleged an offence that was bad in law.
- [42]The successful invocation of such jurisdiction in the New South Wales Court of Appeal in Anderson v Attorney-General for New South Wales (1987) 10 NSWLR 198 also exemplifies the exceptional nature of the jurisdiction.
- [43]The Crown in Anderson had presented an indictment in the District Court of New South Wales against 31 accused persons that alleged in the one count against all accused that between the dates and at the place specified with other persons unknown riotously assembled together to the disturbance of the public. The prosecution had provided particulars that the riotous assembly took place between 8.07 pm on 6 April 1985 and 4.30 am on 7 April 1985 and a schedule that particularised the offence in respect of each accused at different times over that period of about eight hours and showed that some accused had been arrested before the involvement of other accused. The trial was estimated to take six months. Prior to the commencement of the trial, the trial judge ruled that the indictment was not bad for duplicity and rejected the claimants’ application for separate trials. The application for declaratory relief was made direct to the Court of Appeal within the fortnight prior to the date set for commencement of the trial.
- [44]Each member of the Court in Anderson joined in declaring to the effect that, except in the case of a person alleged to have incited others to engage in a riotous assembly, the claimants were not guilty of the same offence of riot unless at some definite point of the time while assembled together for a common purpose and with intent to assist each other by force or violence in the execution of that purpose, they displayed force or violence sufficient to put in fear a reasonable person in the course of executing or beginning to execute their purpose. In effect, the Court found that except in the case of a person alleged to have incited others to engage in a riotous assembly, the charge as particularised against the 31 accused persons did not disclose the same offence against each of them. This was a ruling on the law relating to the offence of riot that was fundamental to the charge that was before the District Court and where the Court of Appeal expressed a different view as to the state of the law than had been adopted by the trial judge.
- [45]It was pivotal to the decision in Anderson that both the Crown and the accused requested the Court to deal with the issue, even though they were not agreed as to what the answer ought to be, and that it was highly desirable to avoid the risk that the trial anticipated to last some six months might prove abortive because the indictment as presented was based on an erroneous view of the law and the jury would be misdirected, if directed in accordance with the propositions of law in the trial judge’s ruling.
- [46]In Anderson, Kirby P noted (at 201) that the charge was a rare charge and that the language in which it was expressed and the “antiquity of the authorities” relating to the charge demonstrated “the relative unfamiliarity of the body of the law” with which the trial judge was dealing and that clarification of the law by the Court of Appeal served a purpose for the trial judge and the jury. Kirby P also noted (at 202) that there was a practical and urgent reason for making a declaration at that stage of the criminal proceeding as it may result in the Crown charging the accused by separate counts, although in the one indictment. Samuels JA noted (at 204) that the grounds upon which the declaratory relief was sought “differ markedly from those cases in which this Court has been asked and has refused to make declarations designed merely to regulate questions of the admissibility of evidence and procedural matters of that kind”. McHugh JA noted (at 209) that, despite the antiquity of the offence, the precise elements of the offence of riot were not settled. After considering the authorities, McHugh JA concluded (at 211) that it would not be a proper exercise of the Court’s power to declare the common law by redefining the offence of riot so as to omit an element which courts and text writers had treated as essential for a lengthy period of time which meant that all accused must have been present together for them to be found guilty of the offence charged in the indictment, subject to the exception of an accused who was removed from the scene but encouraged or incited the others to continue the riotous assembly.
- [47]As these seminal cases show, there are important public policy reasons for limiting the exercise of the Supreme Court’s supervisory jurisdiction over criminal trials to exceptional or special cases. One of the most significant reasons recognised in Sankey at 26 is to avoid the fragmentation of criminal proceedings which otherwise detracts from the efficiency of the criminal process. If it were not the case that the supervisory jurisdiction was confined to exceptional or special cases, there would be the potential of multiplicity of proceedings on the same issue in the anticipation by a defendant to a criminal proceeding that a judge in the exercise of the Supreme Court’s supervisory jurisdiction in advance of the criminal trial might look favourably on the question sought to be determined outside the processes that apply to a criminal proceeding. The broad test that applies to whether a defendant in a criminal proceeding should be permitted to invoke the supervisory jurisdiction of the Supreme Court is whether it is in the interests of justice. The interests of justice is not confined to what is in the interests of the particular defendant but is a broader question involving efficient and fair use of resources available in the criminal justice system and the interests of the administration of justice generally. Where the defendant is unsuccessful in invoking the Supreme Court’s supervisory jurisdiction, there will be consequential delay to the criminal proceeding which is not in the interests of the administration of justice.
- [48]The importance of limiting the fragmentation of the criminal trial process to exceptional cases is illustrated by Emanuel Exports Pty Ltd v Department of Primary Industries and Regional Development [2023] WASCA 36. Emanuel was facing charges in the Magistrates Court of Western Australia that it was cruel to animals by transporting them in a way that caused or was likely to cause them unnecessary harm. The particulars concerned the transport of 63,804 sheep on enclosed decks of the named ship travelling from Fremantle to the port of Jebel Ali in the United Arab Emirates via other ports in Qatar and Kuwait. Emanuel had a constitutional defence that contended to the extent that s 19 of the Animal Welfare Act 2002 (WA) supported the charges, it was inconsistent with the Export Control (Animals) Order 2004 (Cth) made under the Export Control Act 1982 (Cth). Before the trial of the charges began, Emanuel applied to the Magistrates Court to determine the inconsistency as a question of law. The Magistrate determined the question against Emanuel. Emanuel did not have a right of appeal against that determination until after the trial and unless convicted. Emanuel applied for judicial review of the Magistrate’s decision pursuant to s 36 of the Magistrates Court Act 2004 (WA) to the Supreme Court of Western Australia. An order was made in the Supreme Court that the review order be heard by the Court of Appeal.
- [49]The Court of Appeal (Buss P and Mitchell and Beech JJA) decided that the Court would exercise the discretion conferred by s 36(4) of the Magistrates Court Act 2004 against granting relief without deciding the substantive issue raised by the application. One of the factors relied on by the Court to exercise the discretion against granting relief was that, even apart from the constitutional validity question, the extent of the operation of s 19 of the Animal Welfare Act 2002 was to be contested at the trial as whether s 19 did prohibit the conduct that was the subject of the charges was a matter in dispute at trial which meant the analysis on which the parties invited the Court to embark had “a significant hypothetical element to it”. As was explained at [34]:
“Rather the court is asked to assume that the State law validly has a certain operation (which operation will be in dispute at trial) and to find that, if it did have that operation, then the State law would be inconsistent with a Commonwealth law.”
- [50]The most significant factor on which the Court relied to refuse to exercise the discretion to grant relief was that the exercise of the judicial review jurisdiction would involve the fragmentation of pending criminal proceedings and reference was made to the discussion in Gedeon at [23]-[24].
- [51]The Court in Emanuel noted (at [41]) that a determination of the constitutional question would likely create further delay in the trial of the charges and jeopardise the hearing of the trial on the listed dates in November and December 2023, particularly if the dissatisfied party were inclined to apply for special leave to appeal to the High Court. The Court therefore concluded (at [42]) that the interests of justice favoured allowing the trial to proceed on its ordinary course and leaving the constitutional question to be resolved on any appeal against a decision to convict or acquit Emanuel.
Should the primary judge have embarked on a consideration of the construction and application of s 49 of the ASIC Act?
- [52]The focus of the appellant’s submissions on the appeal was the proper construction of s 49 of the ASIC Act and its application to the appellant and ASIC in the circumstances that applied to the appellant when the s 19 examinations took place. No doubt the fact that the second indictment only alleges offences arising out of the answers that the appellant gave in the compulsory examinations gave impetus to the appellant’s pursuit of the declaratory relief after the unsuccessful pre-trial ruling.
- [53]In the circumstances applicable to this case, the threshold question for the primary judge was whether it was in the interests of justice that the issues of law and fact agitated by the appellant in seeking declaratory relief from the Supreme Court should be determined in the exercise of its supervisory jurisdiction of criminal proceedings rather than allowing the criminal proceedings to follow the usual course.
- [54]The strongest factor in support of the Supreme Court’s embarking on the substantive issues of law and fact raised on the application for declaratory relief is that, if this Court concluded that the compulsory examinations of the appellant were unlawful and allowed the appeal, that would in practical terms make it untenable for the CDPP to proceed with the charges on the second indictment and consideration would need to be given by the CDPP whether it was possible to pursue any of the charges on the first indictment. There is a mass of evidence that has been gathered in relation to the charges on the first indictment and the effect of unlawful compulsory examinations of the appellant would need to be evaluated in relation to the continuation of the criminal proceeding for those charges. Another factor in support of the Supreme Court’s exercising its supervisory jurisdiction to determine substantive issues raised by the application for declaratory relief is that there is a significant public interest in obtaining a definitive construction of s 49(1) of the ASIC Act.
- [55]It is relevant that any trial on the second indictment can proceed only after there has been a trial on the first indictment where the trial may give rise to an opportunity to reopen the pre-trial ruling but, if not, and the appellant were to be convicted of any of the charges on the first indictment, there would be the opportunity, if the appellant were so advised, to appeal against conviction on the basis the pre-trial ruling was in error. That is another course open to address the significant public interest in the construction of s 49(1) of the ASIC Act.
- [56]The appellant also relies on the complexity of the evidence and the expense of a lengthy trial in support of the pursuit of declaratory relief. The length of the trial is unclear. Even though Mr Quinn conservatively estimates the trial on the first indictment at eight weeks that is in contrast to a much more modest estimate from the CDPP of ten days (without any defence evidence) for the first trial and does not seem to have taken any account of the likelihood of mutual admissions in relation to uncontroversial documents and evidence.
- [57]As identified in [37] above, the existence of a specific statutory regime under s 590AA and s 668A of the Code for the purpose of reviewing and appealing against pre-trial rulings is a powerful discretionary reason for the Supreme Court not to exercise its supervisory jurisdiction in relation to criminal proceedings other than in an exceptional case.
- [58]It is also relevant that the construction of s 49 of the ASIC Act is not the end of the questions on the appellant’s application for declaratory relief as the appellant cannot succeed on her application unless she also succeeds on her contentions as to the factual aspects of the investigations to which s 49 is applied. In view of the nature and extent of the evidence that is anticipated by Mr Quinn to be adduced at the trial which has not yet been the subject of evidence (such as putting documents to witnesses who did not refer to those documents in their witness statements) there is a hypothetical element to the application of s 49(1) of the ASIC Act to the evidence relied on in the application for declaratory relief. This can be contrasted to the position after the first trial, when any appeal against any conviction that put in issue the pre-trial ruling would be determined in the context of all the evidence adduced at the appellant’s trial.
- [59]It is not unique to the appellant’s case that a pre-trial ruling raises an issue of statutory construction. There should not be a lower bar for determining whether exceptional circumstances apply to justify declaratory relief outside the usual criminal process because the charges allege “white collar” crime rather than other types of crime.
- [60]As Sankey emphasises, avoidance of the fragmentation of the criminal trial process with the consequential delays is an important public policy consideration and explains why a defendant in a criminal trial should only seek declaratory relief from the Supreme Court in the exercise of its supervisory jurisdiction of criminal proceedings in exceptional cases.
- [61]When all the relevant factors are considered, the conclusion in this case is overwhelmingly against the threshold question being determined in favour of the appellant. It would have therefore been preferable for that threshold question to have been determined by the primary judge without embarking on a detailed consideration of the substantive issues raised by the appellant as to the construction and application of s 49 of the ASIC Act. No doubt the manner in which both the appellant and ASIC argued the issues on the application before the primary judge was not conducive to the primary judge focusing on the threshold question before embarking on the substantive issues.
- [62]Generally, if the threshold question is not considered before the substantive issues raised by an application for declaratory relief, defendants in criminal trials will be encouraged to challenge a ruling made under s 590AA of the Code by seeking declaratory relief and, if the result was not what was sought on the substantive issues, to pursue an appeal to obtain an advisory opinion from this Court. That is not in the interests of the efficient and fair administration of the criminal justice system.
- [63]During the hearing of this appeal when it was apparent that the Court may decline to deal with the appeal on the substantive issues of law and fact determined by the primary judge, the appellant urged that it would be “useful” for the Court to clarify the construction of s 49(1) of the Act. That is inconsistent with the criminal trial process which for the reasons set out above should be followed in respect of the criminal proceedings against the appellant.
- [64]The appellant’s counsel suggested at the hearing of this appeal that if the Court did take the course of resolving the appeal on the basis that the appellant’s claim for declaratory relief should have been refused on discretionary grounds without embarking on the issues of construction and application of s 49 of the ASIC Act, then this Court should indicate that any appeal against conviction on any of the charges on the first indictment should be heard prior to any trial on the second indictment. Whether a postponement of the trial on the second indictment was appropriate, if there were convictions on the first indictment and an appeal filed on grounds that could affect the course of the trial on the second indictment, should be determined in the circumstances relevant to the exercise of the discretion at the time of any application for an adjournment of the second trial.
Orders
- [65]Even though this appeal concerns criminal proceedings, it has been brought in the civil jurisdiction of the Court. ASIC sought an order for costs in its written submissions. As the appellant has been unsuccessful on the appeal, there is no reason why the costs as between the appellant and ASIC should not follow the event. The orders which should be made are:
- Appeal dismissed.
- The appellant must pay the first respondent’s costs of the appeal.
- [66]DALTON JA: I agree with the orders proposed by Mullins P and with her reasons.
- [67]HENRY J: I agree with the reasons of the President and the orders her Honour proposes.