R v Hutson[2021] QDCPR 78

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant (“applicant”) is charged on Indictment No. 156/21 with the following offences:

Two counts of dishonest use of position with intention of gaining an advantage, contrary to s. 184(2) of the Corporations Act 2001 (Cth) (‘Corporations Act’);

One count of fail to exercise powers or discharge duties for a proper purpose contrary to s. 184(1) of the Corporations Act;

One count of fraud as a director to the value of $30,000.00 or more contrary to s 408C(1)(a) of the Criminal Code (Qld);

Nine counts of false or misleading information to an operator of a financial market, contrary to ss. 1309(1) and (ii) of the Corporations Act; and

One count of attempting to pervert justice, contrary to s. 140 of the Criminal Code (Qld).

2. [2]
   She is also charged on Indictment No. 161/21 with 15 counts of give false or misleading information in the course of an examination, contrary to s. 64(1)(b) of the Australian Securities & Investments Commission Act 2001 (Cth) (‘ASIC Act’).
3. [3]
   In this application, the applicant is seeking an order of the court permanently staying all charges. 
4. [4]
   The Crown (respondent) opposes the application.

Summary of allegations

5. [5]
   The counts on Indictment 156/21 relate to allegations that the applicant:

• used her position as Director of G8 Limited (G8) for an improper purpose by facilitating a purchase of shares in Affinity Education Group Limited (Affinity) using G8 funds;
• used G8 funds to purchase shares in an unrelated company (ANZ Bank);
• authorised transfers of money in an attempt to conceal the purchases she facilitated;
• gave false market information to the Australian Securities Exchange in relation to G8’s interest in Affinity;
• created false documents and provided them to Mr Nigel Elias in an attempt to conceal from the Australian Securities & Investments Commission (ASIC) that G8 funds had been used to purchase the Affinity shares.

6. [6]
   The counts on Indictment 161/21 relate to allegations that the applicant gave false or misleading information when being examined by ASIC officers pursuant to s. 19.

The basis for the stay application

7. [7]
   The applicant has submitted that there are four principal reasons for the ordering a permanent stay of each of the charges:

   1. that ASIC investigators abrogated the applicant’s right to refuse to answer questions except under legal compulsion, by conducting unlawful compulsory examinations of her.  It is submitted that a stay of proceedings is necessary to “preserve the integrity of the trial process” as the compulsory examinations constitute “a fundamental defect which goes to the root of the trial” and which cannot be cured; ^[1]
   2. this fundamental alteration to the accusatorial process was compounded by ASIC’s failure to keep “clear records” of the investigation which makes it extremely difficult to assess how and by whom the examination product has been used to build the prosecution case or how it might inform prosecution witnesses’ responses to questions asked in cross-examination at trial.^[2]
   3. the s. 19 notice failed to comply with s. 19(3) of the ASIC Act; and
   4. section 19 does not authorise ASIC to indefinitely adjourn and then resume an examination.
8. [8]
   It is submitted that these failures, whether considered alone or in combination, give rise to an unacceptable forensic disadvantage to the applicant,^[3] to such an extent that the ordering of a permanent stay of proceedings is the only remedy.

Law in relation to permanent stays

9. [9]
   There is no dispute between the parties as to the principles relevant to permanent stays.  In Jago v District Court of New South Wales (‘Jago’) at [30], Mason CJ indicated his agreement with Richardson J in Moevao v Department of Labour (1980) 1 NZLR 464 at 482 that the justification for a stay is to prevent the court process being employed in a manner inconsistent with the recognised purpose of the administration of criminal justice and so constituting an abuse of process. 
10. [10]
    The principles which a court must apply when considering an application for a permanent stay of a criminal trial derive from the “inherent power of courts to prevent abuses of their process”.^[4]
11. [11]
    To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences.^[5]
12. [12]
    The power to grant a stay is not confined to cases where it has been demonstrated that any trial will necessarily be unfair.  In Walton v Gardiner (‘Walton’),^[6] Mason CJ, Deane and Dawson JJ, with reference to Jago at 519–520, said at 395–396 that:

“whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations.  Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.”

13. [13]
    In Moti v The Queen,^[7] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, stated at [57]:

“The third basic proposition is that, as pointed out in the joint reasons of four members of this Court in Williams v Spautz ((1992) 174 CLR 509 at 520; [1992] HCA 34), two fundamental policy considerations affect abuse of process in criminal proceedings.  First, ‘the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike’ (Williams v Spautz at 520).  Second, ‘unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice’ (Williams v Spautz at 520).  Public confidence in this context refers to the trust reposed constitutionally in the courts to protect the integrity and fairness of their processes.  The concept of abuse of process extends to a use of the court’s processes in a way that is inconsistent with those fundamental requirements.”

14. [14]
    In Williams v Spautz, Mason CJ, Dawson, Toohey and McHugh JJ, relevantly stated at 518–519:

“The jurisdiction to grant a stay of criminal prosecution has a dual purpose, namely, ‘to prevent an abuse of process for the prosecution of criminal proceedings…which will result in a trial which is unfair.’ (Barton (1980) 147 CLR at 95–96; Jago (1989) 168 CLR at 46).  This does not mean that the prosecution of proceedings in such a way as to make them an instrument of oppression which will result in an unfair trial stands outside the concept of abuse of process.  That term has been applied on various occasions to describe the situation just mentioned as well as the more traditional case where the prosecution is brought for an improper purpose.

However, in light of the particular object sought to be achieved by an exercise of the jurisdiction in each class of case, it is important to distinguish between them.  If a permanent stay is sought to prevent the accused from being subjected to an unfair trial, it is only natural that the court should refrain from granting a stay unless it is satisfied that an unfair trial will ensue unless the prosecution is stayed.  In other words, the court must be satisfied that there are no other available means, such as directions to be given by the trial judge, of bringing about a fair trial.  Jago was such a case.  Consequently, the judgments in that case gave emphasis to the necessity that the court should satisfy itself upon this point before granting the relief sought.”

15. [15]
    In Hui Chi Ming v The Queen,^[8] Lord Lowry described abuse of process as

“something so unfair and wrong that the court would not allow a prosecutor to proceed with what is in all other respects a regular proceeding”.^[9]

16. [16]
    In Rogers v The Queen,^[10] Mason CJ stated at 256:

“…there are two aspects to abuse of process: first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute.  This led the majority in Walton v Gardiner to state that the question whether criminal proceedings should be permanently stayed was to be determined by a weighing process involving a balancing of a variety of considerations ((12) (1993) 177 CLR at 394–396).  Those considerations, which reflect the two aspects of abuse of process outlined above, include ((13) ibid. at 396.):

‘the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice’.”

17. [17]
    While the power to grant a stay is a discretionary decision, the discretion only relates to determining whether there is an abuse of process.  A court cannot grant a stay without finding an abuse of process and it cannot refuse to grant a stay after finding an abuse of process that cannot be cured by other means.^[11]
18. [18]
    A court invited to permanently stay a proceeding must balance the following public interest factors:

    1. the need to ensure that an accused receives a fair trial; and
    2. the need to hear and determine charges for serious offences.^[12]
19. [19]
    A permanent stay should only be granted in extreme or exceptional cases.^[13]  In considering whether a case is so exceptional, regard should be had to the public interest in cases of serious crimes being tried before the courts.^[14]

The investigative chronology

20. [20]
    From July 2015 ASIC began to monitor, and then investigate, the circumstances of a takeover bid for Affinity by G8.^[15]  The applicant was a director and chairperson of G8.  Shares in Affinity were purchased in tranches between 13 and 28 July 2015^[16] by a third company, West Bridge Holdings Pty Ltd (West Bridge). 
21. [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,^[17] authorised the transfer of other funds,^[18] authorised the purchase of shares with surplus funds,^[19]and, in a number of documents lodged with the Australian Stock Exchange, failed to accurately disclose G8’s “relevant interest” in Affinity.^[20]  The applicant denies each of those allegations.
22. [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. [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.^[21] 
24. [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).^[22]  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. [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.”^[23]

26. [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”.^[24]  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. [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”.^[25]
28. [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.^[26]
29. [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.^[27]
30. [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.^[28]
31. [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. [32]
    Following these examinations, ASIC continued to exercise what Bastianon described as its investigative powers.^[29]  Those powers included ASIC engaging in the following:

    1. interviewing three prospective witnesses pursuant to s. 19 (interviewed between 21 June 2017 and 12 March 2019);
    2. interviewing numerous other prospective witnesses voluntarily;
    3. issuing 16 notices requiring the production of documents (issued between 8 July 2016 and 27 March 2018);
    4. obtaining signed witness statements from 27 witnesses (obtained between 15 July 2016 and 12 March 2019);
    5. 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);
    6. reviewing, collating, copying and considering the documents produced as a result of each of the above steps; and
    7. preparing the brief of evidence for submission to the CDPP.
33. [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. [34]
    The applicant was charged in February 2018.^[30]

Relevant legislative provisions

35. [35]
    Part 3 of the ASIC Act is entitled “Investigations and information-gathering”.  Within that Part, the relevant Divisions are Div 1, which is entitled “Investigations”, Div 2, which is entitled “Examination of persons”, Div 5, which is entitled “Proceedings after an investigation”, Div 7, which is entitled “Offences”, and Div 9, which is entitled “Evidentiary use of certain material”.
36. [36]
    Within Div 1 (Investigations), ss. 13–15 set out ASIC’s powers to commence an investigation.  Relevantly, s. 13(1) provides ASIC with a general power to investigate suspected contraventions of certain laws:

“13 General powers of investigation

1. ASIC may make such investigation as it thinks expedient for the due administration of the corporations legislation (other than the excluded provisions) where it has reason to suspect that there may have been committed:

1. a contravention of the corporations legislation (other than the excluded provisions); or
2. a contravention of a law of the Commonwealth, or of a State or Territory in this jurisdiction, being a contravention that:
   1. concerns the management or affairs of a body corporate or managed investment scheme; or
   2. involves fraud or dishonesty and relates to a body corporate or managed investment scheme or to financial products.”

37. [37]
    It is unnecessary to set out ss. 13(2) – (6), (14) and (15) in full, other than to note that, unlike s. 13(1), s. 14 permits the Minister to direct ASIC to conduct investigations into matters other than alleged or suspected contraventions of a law.
38. [38]
    Within Div 2 of Pt 3 (Examination of persons), s. 19 is the operative provision.  It provides:

“19 Notice requiring appearance for examination

1. 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 Div 1.
2. ASIC may, by written notice in the prescribed form, given to the person, require the person:
   1. to give to ASIC all reasonable assistance in connection with the investigation; and
   2. to appear before a specified member or staff member for examination on oath and to answer questions.

Note: Failure to comply with the requirement made under this sub-section is an offence (see Section 63).

3. A notice given under sub-section (2) must:
   1. state the general nature of the matter referred to in sub-section (1); and
   2. set out the effect of sub-section 23(1) and section 68.”

39. [39]
    Where a s. 19 notice requires a person (an examinee) to appear before another person (an inspector) for examination, the remaining provisions of Div 2 apply.^[31]   Significantly, s. 21 empowers the inspector to require an examinee to take an oath or affirmation, and, having done so, to require the examinee to answer questions that are relevant to “a matter that ASIC is investigating…under Div 1.”  It is unnecessary to set out the balance of Div 2 (ss. 22–27) in full.
40. [40]
    Within Div 5 (Proceedings after an investigation), s. 49 is the relevant, operative provision.  Section 49 has two functions: first, to confer on ASIC a power to commence a prosecution; second, and relevantly, to confer a power on ASIC to require assistance from certain persons in connection with a proposed prosecution, whether before or after a prosecution is begun, where it suspects that a person may have committed an offence against the corporations legislation and that the person ought to be prosecuted for an offence.
41. [41]
    Section 49 provides as follows:

“49 ASIC may cause prosecution to be begun

1. this section applies where:
   1. as a result of an investigation; or
   2. from a record of an examination;

conducted under this Part, it appears to ASIC that a person:

3. may have committed an offence against the corporations legislation; and
4. ought to be prosecuted for the offence.

2. ASIC may cause a prosecution of the person for the offence to be begun and carried on.
3. If:
   1. ASIC, on reasonable grounds, suspects or believes that a person can give information relevant to a prosecution for the offence; or
   2. 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 has 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 sub-section is an offence (see Section 63).

(3A) An offence under sub-section 63(3) relating to sub-section (3) of this section is an offence of strict liability.

Note: For strict liability, see Section 6.1 of the Criminal Code.

4. Sub-section (3) does not apply in relation to:
   1. the person referred to in sub-section (1); or
   2. a person who is or has been that person’s lawyer.

Note: A defendant bears an evidential burden in relation to the matter in sub-section (4), see sub-section 13.3(3) of the Criminal Code.

5. Nothing in this section affects the operation of the Director of Public Prosecutions Act 1983.”

42. [42]
    Within Div 7 (Offences), ss. 63, 64 and 68 are the relevant provisions.  Section 63 makes it an offence to fail to comply with a requirement made by ASIC under provisions such as ss. 19, 21 and 49(3).  Section 64 makes it an offence to provide false information in purported compliance with a requirement made under such a provision. 
43. [43]
    Section 68 partially abrogates the privilege against self-incrimination.  In substance, s. 68(1) provides that it is not a reasonable excuse for failing to give information in accordance with a requirement made of the examinee under provisions such as ss. 19, 21 and 49(3) that the information might tend to incriminate the person.  Section 68(3) provides that where an examinee claims before making a statement that it might tend to incriminate them, the statement will not be admissible in evidence against the person in a criminal proceeding.  That is why the abrogation of the privilege is “partial”: because, where it applies, s. 68(3) in effect prohibits “direct” use of such statements in criminal proceedings but does not prohibit “derivative” or indirect use.^[32]
44. [44]
    Within Div 9 (Evidentiary use of certain material), s. 76 provides, relevantly, that where ss. 68(2) and (3) do not apply, a statement made by a person at an examination of that person is admissible in evidence against the person in a proceeding.

Complaint 1: Section 19 did not authorise the examinations

Applicant’s submissions

45. [45]
    The applicant submits that the examinations of her in May and June 2016 were not authorised by s. 19 of the ASIC Act because:

    1. section 19 does not authorise ASIC to compulsorily examine a person once “it appears to ASIC that [that] person may have committed an offence against the corporations legislation and that the person, ought to be prosecuted for that offence”.  These circumstances are prescribed by s. 49(1) and are the circumstances that factually existed at the relevant time in this matter;
    2. the ASIC Act distinguishes between ASIC’s investigative and prosecutorial functions and between powers conferred for investigative and prosecutorial purposes.  Whereas s. 49 permits ASIC to require assistance from persons other than the person it proposes to prosecute “in connection with the prosecution”, s. 19 is conferred for an investigative purpose.  Therefore, the examination of the applicant for the purpose of “putting to her that she had committed criminal offences” and “to try and head off any defences that she might advance and to make sure that the prosecution covers any holes that she identified”,^[33] was an exercise conducted for the improper purpose of obtaining a forensic advantage in the proposed prosecution by locking the applicant into a version and ascertaining how she was going to conduct her defence;
    3. the s. 19 notice did not authorise the June examination because the questions regarding the alleged attempts to pervert justice did not fall within the “general nature of the matter” stated in the notice, as required by s. 19(3)(a); and
    4. the s. 19 notice did not authorise the June examination because the ASIC Act does not provide ASIC with a power to “adjourn” indefinitely and “resume” an examination.  A fresh s. 19 notice should have been issued.
46. [46]
    It is submitted that because the compulsory examinations were unlawful, the process that was required by law to have governed the applicant’s trial has been fundamentally and irreparably altered and that the only remedy is that the proceedings should be permanently stayed.

Respondent’s submissions

47. [47]
    The respondent has submitted that both the May and June examinations were lawful pursuant to s. 19 of the ASIC Act, which had application at those times.  The respondent has recognised though that in other cases considering compulsory examination powers, other than ASIC’s s. 19 powers, it has been held that the dissemination of compulsory examination answers of defendants to prosecuting authorities, offends both the accusatorial and companion principles^[34] in such a way that the trial process has been fundamentally altered, and that permanent and/or temporary stays have been ordered where such disclosures have occurred.^[35]
48. [48]
    It is submitted that whilst the accusatorial and companion principles are fundamental common law principles, they can nevertheless be modified or removed by statute, although such modification must be provided expressly, or by “necessary intendment”.^[36]
49. [49]
    It is submitted that s. 19 expressly provides for such modification and that it was lawfully applied at the time of the May and June examinations.

Evidentiary basis for applicant’s submissions

50. [50]
    The applicant’s submission that the examinations occurred at the “prosecutorial” stage rather than during the “investigation” is based on the following:

    1. when cross-examined at committal, ASIC investigators conceded that, by the time the s. 19 notice was issued, the applicant was not considered by them to be a witness or a potential witness.^[37]  Instead, the position was that:
       1. Bastianon suspected that the applicant had committed criminal offences,^[38] and believed that there was “sufficient evidence to support the suspicion”;^[39]
       2. both Bastianon and Paleologos had determined that the applicant should be prosecuted by the CDPP;^[40]
       3. the investigators were preparing a brief for the CDPP in which it was intended to provide the proposed charges against the applicant;^[41] and
       4. the investigators had identified the specific charges that it would propose^[42] and that those charges are the very same charges that now cover the majority of the substantive offending in these proceedings.
    2. In affidavit material filed in support of a separate application by ASIC to set aside or narrow subpoenas issued by the applicant, both Bastianon and Paleologos have stated that draft witness statements were being prepared by them at a time well before the May examination in preparation for “anticipated litigation” – namely, the commencement of criminal proceedings against the applicant.^[43]
    3. On 5 April 2016 Bastianon emailed Caridi, copying in Paleologos and stated:

“We will, of course, need to examine Hutson and then review her evidence to see what holes need to be covered as a result of what we are told and to assess any possible defences.”^[44]

4. Bastianon agreed that this email was a response to “a request as to when a (prosecution) brief would be provided to the CDPP.”^[45]

Evidentiary basis for respondent’s submissions

51. [51]
    The respondent has submitted that ASIC continued to exercise its investigative powers following the s. 19 examinations by engaging in the further investigative steps as listed in paragraph [ 32] above.
52. [52]
    The respondent has emphasised that it was only following the completion of the investigation that ASIC referred the brief of evidence to the CDPP to enable the Crown to consider whether the applicant should be charged and if so, what charges should be laid.  That brief was forwarded on 22 November 2016, some five months after the s. 19 examinations had been completed.^[46]
53. [53]
    The respondent also relies on evidence given by both Bastianon and Paleologos at the committal hearing and submits that the applicant has adopted a rather selective approach when identifying the evidence upon which she relies, which does not give a true, fair or accurate account of the evidence given.
54. [54]
    In that regard, the respondent relies upon the following evidence from Bastianon when he was questioned about the email he sent to Paleologos and Caridi on 5 April 2016:

“We were considering at that stage…a number of possible offences that had been committed, but we had not concluded our investigation.  There were still additional steps that we had to undertake, additional documents we had to consider.”^[47]

…

“Well they would either confirm our suspicions or not and would provide us with further evidence that we could consider as to what offences may have been committed.”^[48]

…

“I mean, we’re – we’re going through a process Your Honour, of evaluating the evidence.  We have our suspicions, of course, as to what offences may have been committed and by whom, but we’re still in the course of that process and we are yet to examine Ms – Ms Hutson.”^[49]

55. [55]
    The respondent also notes that, whilst the applicant has placed significant weight on the evidence given by Paleologos, that, at the time of the examinations, he believed ASIC’s view was that the application ought to be prosecuted,^[50] it must be remembered that he also made it clear that ASIC were intending to refer a brief to the CDPP before the charges were commenced^[51] and that he believed the examinations were authorised as there were still some “enquiries to make”.^[52]

Consideration

56. [56]
    There is no dispute between the parties that if s. 49 had application at the time of the examinations, then the applicant could not have been lawfully compulsorily examined pursuant to s. 19.^[53]
57. [57]
    The question for determination is whether, at the time of the examinations, s. 49(4) had application, that is, that “as a result of an investigation, it appeared to ASIC that the applicant may have committed an offence against the corporations legislation and ought to be prosecuted for the offence”.
58. [58]
    That is a question of fact, although it may also involve the determination of a question of law when deciding it.
59. [59]
    For the purposes of this decision, I will infer that Bastianon and Paleologos are each ASIC delegates pursuant to s. 102(1) of the ASIC Act.   I note that there is evidence that Caridi is such a delegate.^[54]  No submissions were made on this issue, but it seems to me, adopting an approach most favourable to the applicant ie: that Bastianon and Paleologos and, to a lesser extent Caridi, constituted the eyes, ears and thoughts of ASIC for the purposes of this matter, is appropriate.  It would be an affront to justice if ASIC were able to claim that it did not hold the view identified in s. 49(1) simply because the principal investigators in the matter, who were not delegates, had kept their views to themselves thus allowing ASIC to avoid the protective effect of s. 49(4).  And to be clear, I note that this application has been effectively conducted on this inferred basis.
60. [60]
    The applicant has argued that s. 49(1) has application when it appears to ASIC that a person may have committed an offence against the corporations legislation and ought to be prosecuted for the offence.  The applicant has submitted, that when that stage is reached, s. 19 no longer has relevance.
61. [61]
    That argument however, overlooks the requirement that, for s. 49(1) to apply, that position must be reached “as a result of an investigation”.
62. [62]
    There can be no doubt that s. 19 authorises a fundamental alteration to the accusatorial process - that is, a suspect’s right to silence.  The High Court has regularly stressed that the accusatorial process is protected from alteration by the principle of legality:^[55]

“Inasmuch, however, any restriction on the right to silence pro tanto a denial of liberty, the rule of law, and in particular the principle of legality, mandates that any statutory provision that purports to restrict the common law right to silence must be perspicuously expressed and strictly construed.”

63. [63]
    There is no doubt that in relation to s. 19 and s. 49, Parliament has abrogated the accusatorial principle and the companion rule by express words or necessary implication.^[56]
64. [64]
    It may be accepted that a purpose of s. 19 is to facilitate the investigation of certain types of crime.  But as Gleeson CJ stated in Carr v Western Australia, “legislation rarely pursues a single purpose at all costs.”^[57]  Accordingly, like other statutory regimes which confer powers of compulsory examination, the ASIC Act provides for safeguards.^[58]  As the High Court stated in Lee, those safeguards demonstrate that Parliament has sought to balance provisions which abrogate fundamental rights and privileges in the pursuit of one public interest – the facilitation of the investigation of white collar crime – against the need to “protect the fair trial of a person who might be charged with offences.”  The “limited” power provided by s. 49 is one way in which the ASIC Act achieves that balance.  Together, ss. 19 and 49 evince a clear legislative intent to grant ASIC a power of compulsory examination when it is more likely to be necessary from an investigative perspective, and less likely to prejudice an accused, but to withdraw that power once the prerequisites identified in s. 49(1) are met.
65. [65]
    The wording of s. 49(4) is perspicuously expressed and requires a strict construction.  That construction requires the phrase “as a result of an investigation” to be considered and interpreted. 
66. [66]
    It is immediately apparent that that phrase does not mean that s. 19 authorises the examination of a person once “it appears to ASIC that [that] person may have committed an offence against the corporations legislation and that that person ought to be prosecuted for that offence.  Yet, that was the applicant’s submission as to the meaning of s. 49(1).^[59]  The word “once”, in this submission, is inconsistent with the section and suggests that s. 19 ceases to have effect at whatever point during an investigation the s. 49(1) criteria are met.  That is not what the section says.  If in fact, that had been the intention of Parliament, then unambiguous wording would have been both necessary and easily achievable. 
67. [67]
    The term, “as a result of an investigation” connotes a viewpoint being reached at or near the end of an investigation.  It is difficult to discern the result of something until that thing has concluded, or has reached such a stage that the obvious conclusion is inevitable.
68. [68]
    Such an interpretation is consistent with the following statement of Brennan J (as he then was) in Environment Protection Authority v Caltex Refining Co Pty Ltd,^[60] where His Honour said:

“When an investigative power to require the giving of information is conferred by statute, the power will ordinarily be construed as exhausted when criminal proceedings to which the information relates have been commenced and are pending.  That is because the power is understood to be conferred for the purpose of the performance of the administrative function of determining whether proceedings should be instituted.”

69. [69]
    In A v Boulton,^[61] the ACC examiner had decided it was not improper to examine the applicant despite his claim that he was likely to be charged with offences relating to the subject matter of the examination.  There, Weinberg J rejected the submission that the principle stated in Hammond v The Commonwealth,^[62] should be extended to persons about to be charged.  His Honour pointed out there was no certainty that a person about to be charged would be charged, and further, that there could not an interference with the administration of justice or contempt of court when proceedings were not on foot.  His Honour stated at [128] and [129] that:

“…there is no material difference between a person who has been charged with an offence, and a person who may be ‘about to be charged’.  There can never be any certainty that a person ‘about to be charged’ will in fact be charged.

I am unable to accept [the applicant’s] submission that the use of coercive powers to question a person ‘about to be charged’ necessarily amounts to an interference with the administration of justice.”

70. [70]
    In ASIC v Elm Financial Pty Ltd,^[63] Austin J rejected a contention that s. 19 of the ASIC Act was not available to be invoked after commencement of a civil penalty proceeding.  He did not accept an argument that the headings to Part 3 of the ASIC Act confined the powers contained therein to information gathering prior to penalty proceedings.  He drew attention to the heading at the commencement of Div 5 “Proceedings After an Investigation” and noted the heading to Div 5 did not purport to deal comprehensively with all kinds of proceedings that ASIC could initiate, but only with prosecutions commenced by ASIC pursuant to s. 49.  At [57] to [59] His Honour stated:

“In summary, ASIC’s investigatory powers under ss. 19 and 32A may be exercised for a variety of purposes not dependent upon or connected with the commencement of legal proceedings for contravention.  That makes it unlikely that the legislature intended those powers to come to an end upon the commencement of a civil proceeding for contravention.

…

There is nothing in the cases, and no principle I can discern, that would justify reading down the plain words of s. 19 so as to prevent it from being used against a person other than the defendant in a civil penalty proceeding, just because the civil penalty proceeding has commenced.  The same analysis applies to s. 32A, although it is a more recent addition to the ASIC Act.”

71. [71]
    In relation to criminal prosecutions, Austin J observed at [49]:

“It may be (although it is unnecessary for me to decide) that ASIC’s investigatory powers under Pts 3, Divs 1, 2 and 3 are spent once it commences a criminal prosecution under s. 49, and thereafter its entitlement to assistance is governed by ss. 49(3) and (4) – under which, though it is entitled to receive assistance from eligible persons (including officers, employees and certain agents of a body corporate), the defendant in the criminal proceeding is not required to assist.”

72. [72]
    Furthermore, I note that s. 19 is not stated to be subject to s. 49.  The two provisions relate to two very different stages in the investigative and prosecutorial processes.  Section 19 relates to ASIC’s powers at the “investigation” stage, whereas s. 49 relates to its more limited powers at the prosecutorial stage.
73. [73]
    The applicant has also submitted that ASIC’s purpose for conducting the examinations, as evidenced by the contents of the email dated 5 April 2016 from Bastianon to Paleologos and Caridi was not to further the investigation, but rather to obtain a forensic advantage in a prosecution by forcing the applicant to disclose how she will conduct her defence and to identify any potential holes in the prosecution case.
74. [74]
    It is submitted, that these purposes are evidence of the fact that the examinations were conducted unlawfully because:

    1. they did not fall within the provisions of s. 19; and/or
    2. they are indicative (together with the answers given at committal by Bastianon and Paleologos) of the fact that the investigative stage had already ended.
75. [75]
    However, I agree with the respondent’s submission that the investigation of potential criminal offences is not limited merely to gathering prima facie evidence to support a particular charge.  It is appropriate, in any investigation, to look for evidence to fill any gaps in a particular case theory and to assess or evaluate any possible defences (be it to negate them, or to assess whether a defendant who would otherwise have a prima facie case to answer, in fact has a defence available to him/her).^[64]
76. [76]
    Further, an investigation cannot be said to cease immediately upon a particular investigator forming a belief that a particular suspect had likely committed an offence.  An investigator who refers a brief to the CDPP for assessment as to whether charges can be proved, is likely to have formed a belief that the particular suspect has committed the relevant offence.  However, it is common and appropriate for the Commonwealth Director, having been provided a brief of evidence, to advise that further evidence should be obtained before charges are to be commenced.  It could not be suggested, in those circumstances, that a determination that a brief of evidence should be sent to the Director in some way brings an investigation to an end.
77. [77]
    It follows then that the mere fact that Bastianon formed a belief that the applicant had committed offences did not bring an end to the ASIC investigation.  At the time the s. 19 notice was sent, a brief to consider charges had not been referred to the CDPP and no charges had been laid.  On Bastianon’s evidence, he believed that the applicant could give information relevant to the investigation of the potential offending.
78. [78]
    Furthermore, I note that in the email of 5 April 2016,^[65] Bastianon spoke of the investigative steps which had yet to be undertaken but were nevertheless necessary.  The whole of that email was therefore relevant to properly contextualise the paragraph regarding the proposed examination of the applicant.  It reads as follows:

“Dear Brendan

Peter and my best estimate for when a brief to the CDPP (or, alternatively, a NFA recommendation) will be ready is by 15 July.

Our estimate is based on the following practical realities:

1. We are in the process of issuing notices to a number of persons to produce documents directly relevant to the proposed charge under s. 1309 based on the revised scope (which have not previously been obtained), for example, to the ASX, brokers and Affinity.  We will require time to review these documents once they are produced to see if there is anything else we need to obtain.  Further documents from G8 may also need to be obtained under notice.
2. We have commenced drafting witness statements, however, a large number will incorporate the documents currently being sought under notice.  These statements will not be able to [sic] finalised until we have reviewed what is produced.
3. We will, of course, need to examine Hutson and then review her evidence to see what ‘holes’ need to be covered as a result of what we are told and to assess any possible defences.  We may also take the opportunity to examine a couple of other minor witnesses to close off a couple of issues (these will not take a lot of time, and can be done at the same time as Hutson, as they are based in Brissy).

Once all this is done, and before a preparing a final brief, as discussed, it may be useful to seek advice from CLO about the CDPP’s appetite in relation to the proposed charges (which may take a little time to obtain).  After that a brief (or NFA memo) will be prepared.  Please let Peter and me know if you have any queries about our estimate timetable and if you wish to discuss this further.

Regards

Mat”

79. [79]
    The term “NFA” is an acronym for No Further Action.^[66]
80. [80]
    In relation to the potential of No Further Action being the outcome, Bastianon gave this evidence at committal:^[67]

“Why did you include the NFA recommendation as an alternative in this memo?---

We were considering, at that stage, Your Honour, a number of possible offences that had been committed, but we had not concluded our investigation.  There was [sic] additional steps that we had to undertake, additional documentation that we had to consider.  And of course, at that stage we had not yet been able to speak to Ms Hutson.

Well, was the NFA recommendation a genuine option at that time?---

No, at that time our – our view was that a few offences may have been committed.  Maybe not the totality of – we were considering at the time, but certainly that some offences had been committed.

You set out in the memo a range of things that needed to be done?---

Yes.

Would the outcome of the things that needed be done have had any bearing on the two options that you posed in the first sentence of that memorandum?---

Yes.

In what way?  Can you explain?---

Well they would either confirm or (our) suspicions or – or – or – or not – and would provide us with further evidence that we could consider as to what offences may have been committed.”

81. [81]
    Notwithstanding that Bastianon’s belief was that the outcome of the investigation would not result in ASIC taking no further action, the mere fact that such an outcome was identified, at that stage, as a potential, however remote, is evidence that the investigation was still ongoing.
82. [82]
    When that is considered together with the list of further things done in the investigation, after the examinations and the timeline of such events, it is clear that the investigation was, in fact, still continuing at the time of the examinations.
83. [83]
    In fact, the applicant has effectively acknowledged that fact in paragraph [120] of her written submissions where this was said:

“As its correspondence of 5 April 2016 demonstrates, ASIC’s stated purpose for examining Ms Hutson, was ‘to see what holes need to be covered’.  Following the examinations, ASIC continued to build the prosecution case.  It issued dozens of further statutory notices.  It compulsorily examined a number of further witnesses…and examined others for a second time… .  It continued to draft witness statements: the draft statement schedule indicates that hundreds of drafts of witness statements were produced after the May compulsory examination.  The second statement of (a witness) and the statements of at least five other witnesses) were all finalised after Ms Hutson was examined.”

84. [84]
    Finally, regard must also be had to the Note to s. 49(4) which provides that the applicant bears the evidential burden in relation to the matter in sub-section (4).
85. [85]
    Taking all matters into account, I am not persuaded that the applicant, at the time of the May and June examinations was a person to which s. 49(1) applied.  It follows that such examinations were conducted lawfully, in that s. 19 had application.
86. [86]
    I am also of the view, for the reasons already identified, that ASIC did not seek to conduct the examinations for an improper purpose.  The evidence given at committal, along with the email of 5 April 2016 demonstrate that the examinations were sought as part of the pre-charge investigation process.  There is nothing improper in seeking, as part of an investigation, the applicant’s version of events nor in seeking to assess any defences that might be available.  These are fundamental steps in a criminal investigation and are permitted by s. 19.  The fact that they were achieved using compulsory powers does not make it improper or change their investigative character, in circumstances where compulsory interviews are explicitly provided for by statute as an available investigative tool. 
87. [87]
    This conclusion also answers the second basis upon which the applicant submits that a permanent stay should be ordered i.e.: that the fundamental alteration to the accusatorial process by abrogating the applicant’s right to silence, was then compounded by ASIC’s failure to keep clear records which in turn makes it extremely difficult to asses how and by whom the examination product has been used to build a prosecution case or how it might inform prosecution witnesses’ answers in cross-examination.
88. [88]
    Such a submission of course depends on a finding that the compulsory examinations were conducted unlawfully.  If that is not established, then it is well-established that in the case of the ASIC Act and s. 19 examinations, the statute has by necessary intendment modified the relevant principle that would otherwise apply,^[68] such that it is permissible for s. 19 transcripts containing answers of a defendant to be provided to prosecuting authorities.  In R v OC,^[69] Bathurst SC said at [119] and [120]:

“[119] Once it is accepted that statements made during a s. 19 examination are admissible in criminal proceedings, unless the two preconditions in s. 68(2) are met, and that the time for determining whether those conditions are satisfied is at the time the statements are sought to be tendered in evidence, it follows, as a matter of necessary implication, that the DPP officers responsible for the conduct of the proceedings are entitled to have access to the examination transcripts, not only to formulate charges, but to prosecute them.  This access would enable DPP officers to consider whether the privilege was properly claimed on any answer and whether the transcript could be tendered.

[120] …[T]he ASIC Act, particularly s. 49, in conjunction with s. 68, s. 76 and s. 77, in my view, disclose, by necessary intendment, that if a prosecution is caused to be commenced or carried out by ASIC, the prosecutors may be given access to the transcript of a s. 19 examination and, subject only to the prohibition against the direct use of self-incriminating material in s. 68, can use it for the purpose of the prosecution.”

89. [89]
    This conclusion is consistent with the following passage in ASIC v Plymin (No. 2),^[70] at [14], [15] and [17]:

“...s. 76(1) provides that a statement that a person makes at a s. 19 examination is admissible in evidence against the person in a ‘proceeding’.  ‘Proceeding’ is defined by s. 5(1) to include a proceeding in a court or in a tribunal whether the proceeding is of a civil, administrative, disciplinary or other nature.  Section 76(1) provides that a statement is not admissible where inter alia it is inadmissible because of s. 68(3) or is irrelevant or is privileged.  Thus s. 76 provides a qualified but express authority for the use of material obtained on a s. 19 examination in any proceeding.  If statements made in a s. 19 examination may be admissible in evidence in a proceeding against the person making the statement, it would be an absurd construction of the Act to find that such material could not be utilised in deciding whether to launch such a proceeding.

…

In support of the foregoing constructional approach, reference should also be made to the objects of the ASIC Act (s. 1(1)) and the aims of the Commission (s. 1(2)).  In particular, s. 1(2)(g) of the ASIC Act requires the Commission to strive to take whatever action it can take, and is necessary, in order to enforce and give effect to the laws that confer functions and powers on it, and the Act has effect and is to be interpreted accordingly (s. 1(3)). 

…

Reference was made on both sides to Johns v Australian Securities Commission (1993) 178 CLR 408.  In my opinion, a number of statements by the members of the High Court in that case support the construction advanced by the Commission on this application.  I refer to what was said by Brennan J (as he then was) at 424 – 425, and in particular, the following: “as investigations are but some of the functions of the A.S.C….the Act contemplates that information acquired on examinations under s. 19 may be used and disclosed for the purpose of the performance or exercise of any of the functions of the A.S.C.”

Complaint 2: the s. 19 notice failed to comply with s. 19(3) of the ASIC Act

Applicant’s submissions

90. [90]
    The applicant has submitted that the “resumed” examination of 22 June 2016 was unlawful because the examination about the alleged attempt to pervert justice did not fall within the “general nature of the matter’ which was required to be identified in the preamble to the s. 19 notice by s. 19(3)(a) of the ASIC Act.
91. [91]
    It is submitted that the s. 19 notice failed to comply with s. 19(3) of the ASIC Act for three principal reasons:

    1. Section 19(3)(a) required the notice to identify the specific law(s) that was/were suspected to have been contravened and about which Ms Hutson was to be compulsorily examined.  It did not.

There was no reason to depart from the usual rule that a proper description of the matter will include a reference to the specific law being contravened.  There was nothing “incidental” about the compulsory examination into the alleged attempt to pervert the course of justice.  That allegation was of a discreet, and very serious, indictable offence that investigators had identified as warranting “sustained questioning” at the examination on 22 June 2016.  Investigators stated that the ‘purpose” of this sustained examination was to see whether Ms Hutson had committed the offence of attempting to pervert the course of justice. 

2. Even if a statement of the specific law was not required by s. 19(3)(a), the alleged perversion of the course of justice could not be said to fall within the “general ambit” of the s. 19 notice.  That is for the obvious reason that it fell outside the conduct and dates specified in the s. 19 notice. 
3. Having identified with some particularity that the subject of the examination was different conduct between different dates and which was suspected to be contrary to different statutory provisions, the notice positively conveyed to the reader that the alleged attempt to pervert the course of justice was not to be the subject of the examination.  In that sense, the notice not only did not assist Ms Hutson, the recipient, to “perceive the general ambit of the subject matter” of the examination but misled her as to its subject.  Ms  Hutson was unable to prepare for the examination. 

92. [92]
    As a result of these issues, the applicant submits that the s. 19 notice failed to comply with s. 19(3) of the ASIC Act and was therefore invalid and thus rendered the examination on 22 June 2016 unlawful.

Respondent’s submissions

93. [93]
    The respondent has submitted that the s. 19 notice complied with s. 19(3) as the general nature of the matter which was the subject of the investigation was stated in the notice, namely the applicant’s role in the trading of Affinity and ANZ shares and the applicant’s attempts to cover up or conceal her role in those trades was factually intrinsically linked to that subject matter.
94. [94]
    It is submitted that the particulars contained in the notice enabled her and her lawyers to perceive the general ambit of the subject matter of the investigation, and therefore complied with the requirements of s. 19(3). 

Relevant evidence

95. [95]
    On 6 May 2016, ASIC served the s. 19 notice on the applicant, requiring her to attend for examination by ASIC on oath or affirmation and to provide ASIC all reasonable assistance in connection with the investigation.^[71]  The preamble to the s. 19 notice stated that this requirement was made:

“in relation to an investigation of suspected contraventions of ss. 184, 606, 671B and 1309 of the Corporations Act 2001 in relation to trading in the securities of Affinity Education Group Limited (“Affinity”) (ACN 163 864 195) between 2 July 2015 and 21 October 2015 and ss. 184 and 209 of the Corporations Act 2001 arising out of trading in the securities of Australia and New Zealand Banking Group Limited (“ANZ”) between 7 August and 9 September 2015…”

96. [96]
    The applicant was examined by ASIC on 25 May 2016.  By email of 6 June 2016, ASIC advised her that it wished “to resume the examination…on Wednesday, 22 June 2016”.  The examination “resumed” on that date.  On that occasion, ASIC examined the applicant on the subject of the alleged attempt to pervert the course of justice. 
97. [97]
    When asked at committal “what part of the investigation into those identified offences in the notice … was the resumption of the further examination dealing with”, Bastianon replied:

“Again, without seeing the transcript, I assume that we covered those – some or all of those suspected offences.  606 wouldn’t have been covered, because that was not in contemplation; 671B, no, because that’s really covered by the s. 1309 offences; s. 84, yes; and then, of course, the attempt to pervert the course of justice – we would have covered that.”^[72]

98. [98]
    Paleologos gave, in substance, the same evidence.  He agreed that during the 22 June 2016 examination there was

“sustained questioning about what were suggested to be improper approaches or conversations between the applicant and other persons who had been, or were expected to be, examined by ASIC.”^[73]

He agreed that the

“purpose of that questioning was directed to the issue of whether the applicant may have committed an offence of or similar to attempting to pervert the course of justice”.^[74]

Consideration

99. [99]
    Section 19(3) provides, inter alia, that a s. 19 notice must “state the general nature of the matter referred to in sub-section (1)”.  There is no explicit requirement that a particular offence or offences be identified. 
100. [100]
     In Johns v Australian Securities Commission (No. 2) (‘Johns’),^[75] Black CJ and von Doussa J stated:

“A matter into which investigation is made under s. 13 will be the possible contravention of a specific law and a proper description of that matter in a notice given under s. 19 will usually include a reference to that law.”

101. [101]
     In Kennedy v Australian Securities and Investments Commission (‘Kennedy’),^[76] the Full Court of the Federal Court of Australia considered the nature of the requirement that a s. 19 notice “state the general nature” of “the matter” that ASIC investigates when it investigates under s. 13(1) of the ASIC Act.
102. [102]
     Affirming earlier decisions of the Federal Court in Boys v Australian Securities Commission,^[77] Johns v Connor,^[78] and Johns v Australian Securities Commission,^[79] the Full Court stated unanimously that:

“…the notice must identify the matter in such a way that the recipient can ‘perceive the general ambit of the subject matter of the investigation that is being undertaken’.”^[80]

103. [103]
     As to “the matter” referred to in s. 19, the Full Court stated:

“‘the matter’ referred to in s. 19(3) is the matter the subject of the s. 13 investigation, which is whether the contravention of the kind to which the section is directed may have been committed”.^[81]

104. [104]
     Despite citing the above passage from Johns, the court in Kennedy ultimately upheld the s. 19 notice as valid as it “enable[d] the recipient to perceive the general ambit of the subject matter of the investigation”.^[82]
105. [105]
     It cannot be that a failure to make specific reference on a s. 19 notice to a particular offence provision being investigated, means that the person cannot be charged with that offence.  Section 19 examinations are part of the investigative process and, as occurred in this matter, very frequently the decision to charge and the selection of charges are processes undertaken by the CDPP subsequent to the investigation. 
106. [106]
     Ultimately, the applicant has been indicted on counts which include alleged contraventions of ss. 184 and 1309 of the Corporations Act 2001 (Cth).  The s. 140 Criminal Code (Qld) charge arises from the same broad set of facts and circumstances as those charges.
107. [107]
     In my view, the fact that part of the June examination related to the specific dealings which gave rise to the s. 140 charge does not invalidate the notice, as the general ambit of that which was being investigated was consistent with that listed on the notice.  As the respondent submitted, the applicant’s alleged attempts to cover up or conceal her role in the subject trades is factually intrinsically linked to that subject matter. 
108. [108]
     Relevantly, I also note that the applicant was legally represented at the June examination and her lawyers did not raise any objection to questions being asked about the issue of her attempting to pervert justice.  I infer that that lack of objection was due to the fact that the particulars in the notice enabled the applicant and her lawyers to perceive the general ambit of the subject matter of the investigation. 
109. [109]
     It follows, that in my view the notice complied with s. 19(3). 
110. [110]
     Even if I am wrong in that regard, this is not an issue which should result in the court taking the rare step of ordering a permanent stay of proceedings in relation to the s. 140 charge.  There may well be other less dramatic remedies, such as the exercise of discretion to exclude the evidence of the applicant’s answers on examination relating to that charge.

Complaint 3: s. 19 does not authorise ASIC to indefinitely “adjourn” and then “resume” an examination

Applicant’s submissions

111. [111]
     At the conclusion of the May examination, investigators purported to adjourn “the examination indefinitely” and to “reserve the right to recall (Ms Hutson) without the need for … a further notice to be issued”. 
112. [112]
     Then, on 6 June 2016 ASIC purported to “recall” the applicant to attend at a “resumed” examination on 22 June 2016.
113. [113]
     The applicant has submitted that the “resumed” examination was unlawful because the ASIC Act does not provide ASIC with a power to indefinitely “adjourn” s. 19 examinations while “reserving its right” to “resume” that examination.  It is submitted that in such circumstances a fresh s. 19 notice would need to be issued.
114. [114]
     It is submitted that the inference that Parliament did not intend ASIC to have a power to indefinitely “adjourn” and then “resume” an examination is confirmed by the form prescribed for s. 19 notices.  Prior to the enactment of the ASIC Act, the prescribed form contained in the Australian Securities and Investments Commission Regulations 1990 (Cth) notified the recipient expressly of the date on which they were required to attend for examination and on which the requirement was to be satisfied.  It did not notify a person that they were required to attend on a particular date and, thereafter, at such other time as the examiner directed.  That prescribed form was in force at the time of the enactment of the ASIC Act in 2001 and was re-enacted, contemporaneously, in the Australian Securities and Investments Commission Regulations 2001 (Cth) (‘the ASIC Regulations’).  It had not been relevantly amended by the time of the date of issue of the applicant’s s. 19 notice in 2016.
115. [115]
     The applicant submits that s. 19(2) picks up and requires compliance with the contents of the prescribed form in that s. 19(2) is inter-dependent with the ASIC Regulations, which, in relevant part, pre-existed and were re-introduced contemporaneously with the ASIC Act.  It is further submitted that regulations may function as a direct aid to the construction of an ambiguous provision, where the contemporaneous Act, may establish an inter-dependent scheme.^[83]  Here, the prescribed form indicates that Parliament contemplated that the examination would take place on the date specified in the notice and that if Parliament had intended that ASIC have the power to “adjourn” and “resume” a s. 19 examination, then the notice would have made provision for adjournments.
116. [116]
     Finally, the applicant submits that it is highly unlikely that having provided for a rigorous scheme of notice requirements, Parliament intended that ASIC could simply give a formal s. 19 notice and thereafter, and for all time, retain a power to continuously require a person to attend for compulsory examination without formally giving notice to that person of the “general nature of the matter’ which was to be the subject of the examination under s. 19(3).  The requirement that ASIC serve a s. 19 notice each time it wishes to exercise the power of compulsory examination ensures that, on each occasion, ASIC turns its mind to whether the notice allows the recipient to perceive the general nature of the matter ASIC is investigating at that point in time. 

Respondent’s submission

117. [117]
     The respondent has submitted that no express power to adjourn or resume is necessary and that the power to conduct examinations pursuant to s. 19 is sufficient for examinations once commenced to be adjourned or resumed to suit the convenience of the parties, without a fresh exercise of the s. 19 power and without the need for a fresh s. 19 notice on each occasion.
118. [118]
     The respondent also submits that it is highly relevant that the applicant, through her legal representatives, did not object to the “adjournment” at the end of the May examination or the “resumption” of it in June.

Consideration

119. [119]
     The respondent referred the court to ASIC v Sigalla (No. 2),^[84] which involved an examinee who was sent a notice, in the prescribed form, on 9 September 2009, requiring attendance on that same day for examination.  The notice also required him to provide all reasonable assistance in connection with the investigation (as did the applicant’s notice).  Subsequent to the examination on 9 September 2009, Sigalla was examined on two further days.^[85]
120. [120]
     On 19 October 2009, after the examinations occurred, an ASIC officer sent an email to Sigalla’s lawyers, requiring Sigalla to attend again upon ASIC officers for the purposes of signing documents.  The email did not attach a fresh s. 19 notice.^[86]
121. [121]
     Sigalla did not attend upon officers in response to that email but did send documents to them.  He objected to the documents being tendered and subsequent proceedings, on the basis that the email of 19 October 2009 did not comply with s. 19(3) in so far as it did not set out the effect of s. 68 of the ASIC Act (which detailed treatment of the privilege against self-incrimination under the Act).
122. [122]
     In this regard, White J stated:

“I do not accept that it was incumbent on ASIC on each occasion on which it required Mr Sigalla to give ASIC all reasonable assistance in connection with the investigation for it to serve a fresh notice in the prescribed form…

The prescribed form does not require ASIC to specify the particular assistance it requires in connection with the investigation.  Rather, what is contemplated is that a person who may be required to provide such assistance is to be given notice in the prescribed form, which notice is to include a statement as to the effect of ss. 23(1) and 68 of the ASIC Act.  Once a notice in that form is given the recipient’s attention is drawn to the relevant sections.  The form of the notice contemplates that after service of the notice ASIC may make particular requests for assistance.  Provided the notice is given in respect of the same investigation, there is no reason, either as a matter of policy or legislative requirement, that the information already given need be repeated.  The construction advanced by counsel for Mr Sigalla would be inconsistent with interpreting the Act consistently with ASIC’s ‘[administering] the laws that confer functions and powers on it effectively and with a minimum of procedural requirements’ (s. 1(2)(d) and (3)).”^[87]

123. [123]
     Whilst Sigalla involved a requirement to render assistance, as opposed to a requirement to present for examination, White J’s comments are apposite in the present case. 
124. [124]
     In my view, in circumstances where the applicant had been advised of her rights and obligations by the s. 19 notice provided before the May examination and the general ambit of the matter to be investigated remained the same, it would be inconsistent with ASIC’s legislative obligation to administer its powers “with a minimum of procedural requirements”^[88] to require a new but essentially duplicate notice to be served on her prior to the resumption of the examination in June.  This is particularly so where the applicant was legally represented throughout the relevant examination proceedings and no objection was taken or complaint made about the adjournment or resumption. 
125. [125]
     In the context of this application, I should also note that even if I had determined that a fresh s. 19 notice should have been issued, I would not have ordered a permanent stay of any of the charges as the breach would have been procedural only and occasioned no real prejudice to the applicant and did not alter the trial process.

Complaint 4: the investigation generally

126. [126]
     The applicant has also submitted that the alleged fundamental alteration of the accusatorial process by ASIC conducting unlawful compulsory examinations of the applicant was compounded by a lack of clear record-keeping during the investigation.
127. [127]
     As I have already concluded that there was no fundamental alteration of the accusatorial process, I need not deal with that submission.
128. [128]
     It seems to me though that the applicant has further submitted that the alleged lack of clear record-keeping, in and of itself, would justify an order for a permanent stay of proceedings.^[89]
129. [129]
     In that regard, heavy reliance is placed on R v Ernst.^[90]
130. [130]
     The facts in Ernst were vastly different to this case though.  Importantly, the investigating police officer in Ernst received potentially crucial information favourable to the defence case well before the trial commenced but did not pass that information on to the prosecutor or to the defendant in a clear breach of disclosure obligations.
131. [131]
     That was a situation much removed from the position in this matter.  Factors identified by the applicant in this matter such as sloppy record-keeping or changes in witness’ testimony over time, are factors which are regularly dealt with by way of cross- examination of the investigators and relevant witnesses and may result in directions to the jury to overcome any unfair prejudice.^[91]

Conclusion

132. [132]
     The applicant has not demonstrated that the s. 19 examination was conducted unlawfully or for an improper purpose.  The displacement of the accusatorial process in so far as both the May and June examinations are concerned was permitted by the ASIC Act.
133. [133]
     No failing has been identified that would render the proceedings “unfair and unjustifiably oppressive” such as to constitute an abuse of process.^[92]
134. [134]
     Accordingly, the application is dismissed.