R v Hutson (Ruling No 8)[2025] QDCPR 8

DISTRICT COURT OF QUEENSLAND

Background and issues

1. [1]
   The charges faced by the defendant, and a broad summary of the prosecution case, is found in R v Hutson (Ruling No. 5).^[1] I incorporate what I said on that occasion, without repeating it, although further refined focus on aspects of the factual allegations is required for the purposes of this ruling.
2. [2]
   The defendant now applies for a permanent stay of proceedings. In respect of one of the bases of the application, and although not entirely clear, it may be that the defendant also seeks a temporary stay.
3. [3]
   On 17 January 2025, I ordered that the application for a permanent stay be refused. These are the reasons for that order. They also contain the reasons as to why I would not grant a temporary stay, if in fact that is being sought.

The principles for a permanent stay.

4. [4]
   A permanent stay will only be granted in an extreme case,^[2] and the onus of proving that it should be granted lies on the defendant.^[3] The remedy is one of “last resort”^[4] and, as such, is an extraordinary step that will rarely be justified.^[5]
5. [5]
   As was recognised by the plurality in Batistatos v Roads and Traffic Authority (NSW),^[6] the power to stay proceedings for abuse of process exists in both the civil and criminal jurisdictions, although there is a different emphasis in each. In the criminal jurisdiction it requires recognition of the “need to take into account the substantial public interest of the community in having those who are charged with criminal offences brought to trial … as a permanent stay is tantamount to a continuing immunity from prosecution”.^[7]
6. [6]
   There is no suggestion that the Court’s processes have been invoked for an illegitimate purpose. The effect of the complaint is that the combination of a number of features of the investigatory processes, combined with the effect of delay, means that the continuation of the proceedings is unjustifiably oppressive to the defendant and thereby brings the administration of justice into disrepute.^[8]

7. [7]
   A stay will not be granted simply because perfect justice cannot be accorded to the defendant without some difficulty.^[9] A permanent stay will only be ordered where there is a “fundamental defect of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”.^[10] That statement has been referred to as “an authoritative statement of principle”.^[11]
8. [8]
   Proceedings will be oppressive in the relevant sense “where their effect is seriously and unfairly burdensome, prejudicial or damaging”, and they may be permanently stayed “where their continuation would be manifestly unfair to a party” and “where their continuation would bring the administration of justice into disrepute amongst right-thinking people”.^[12] The power of a court to stay proceedings is aimed at protecting its own process and integrity. It is not a power designed to punish those who investigate or prosecute the alleged offending.^[13]
9. [9]
   The unavailability of evidence that was previously in existence can, in certain circumstances, found a successful application for a permanent stay of proceedings,^[14] but that will not always be so, even where delay is also involved.^[15] Attention must be paid to the induvial circumstances of the matter at hand. The position of the defendant is relevant but not determinative.
10. [10]
    As to the effect of delay, there is no right to a speedy trial, as opposed to a right to a fair trial.^[16]
11. [11]
    Notably, the appropriate threshold of the test is whether the continuation of the proceedings would involve unacceptable injustice or unfairness or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process, as opposed to whether it could be unfair to that level.^[17]

Further factual background

12. [12]
    In R v Hutson (Ruling No. 5) I referred to an allegation of the unauthorised purchases of Affinity shares by a third party. That allegation had been simplified for the purposes of those reasons. More particularly, but still limited to only that necessary for present purposes, it is alleged that the $15 million transferred to Mills Oakley was the subject of a sham loan agreement between G8 and David Burke of Ingenius Communications Pty Ltd. Mr Burke was previously a director of Wellington Capital Limited (“Wellington”), of which the defendant was the Managing Director. It is therefore alleged that the two knew each other. The company secretary and general counsel at Wellington was Mary Greaves.

13. [13]
    The shares the subject of the allegedly unauthorised purchases were bought by West Bridge Holdings Pty Ltd (“West Bridge”). This is the third party referred to in R v Hutson (Ruling No. 5). The sole director and company secretary of West Bridge was Nigel Elias. Mr Elias was also the managing director of Print Mail Logistics Limited (“PML”), which in turn was a client of Wellington. It is therefore alleged that both the defendant and Mr Burke were familiar with Mr Elias.
14. [14]
    It is alleged that West Bridge was created at the instigation and direction of the defendant. It is alleged that the defendant had contacted Mr Elias and spoke to him about purchasing Affinity shares, and that she told him to attend the Sydney offices of McCullough Robertson on Monday 13 July 2015 for the purposes of registering West Bridge. She told him that Ms Greaves would meet him there.
15. [15]
    That meeting did proceed and, amongst other things, steps were taken to register West Bridge through the agency of a solicitor in that office. There is a dispute as to who did what in the course of that meeting.
16. [16]
    It is also alleged that, on the same day, the defendant contacted Charles Green, of Hunter Green Institutional Broking Pty Ltd (“Hunter Green”), which had been involved in the early stages of the Affinity takeover bid, asking if he could assist with the purchase of a significant stake in Affinity by Mr Elias. A trading account was opened with Shaw and Partners (“Shaw”), stockbrokers, as well as Hunter Green. The latter received instructions to purchase 11.3 million ordinary shares in Affinity, which occurred over a 15-day period.
17. [17]
    It is alleged that Mr Elias kept Ms Greaves updated as to the progress of the purchases, who in turn updated the defendant. It is also alleged that Mr Green kept the defendant updated as to the progress of the purchases.
18. [18]
    The prosecution alleges that those purchases were funded by transfers made by Mr Burke out of the monies held by Mills Oakley, to which he had access through the sham loan.
19. [19]
    It also needs to be explained that the charge of attempting to pervert the course of justice arises out of a meeting said to have occurred between the defendant and Mr Elias on 10 April 2016. It is alleged at that time the defendant provided Mr Elias with documents designed to create the false impression that her company’s purchase of the ANZ shares had been as trustee for Mr Elias. It is alleged that certain investigatory actions of ASIC had, or must have, come to the defendant’s attention and her conduct at the meeting in presenting these documents was done with the intention of frustrating or deflecting a potential prosecution in respect of the unauthorised or dishonest purchase of the ANZ shares.

20. [20]
    Each of Mr Burke, Mr Elias, Ms Greaves and Mr Green were the subject of compulsory interviews under the Australian Securities and Investments Commission Act 2001 (Cth), Part 3, Division 2 (“s. 19 examination”).
21. [21]
    Mr Burke has apparently been charged with an offence or offences of giving false or misleading evidence during his s. 19 examination. Those proceedings are not yet finalised, probably due to the delay in finalising this matter. The prosecution does not intend to call him as a witness in this trial.
22. [22]
    The prosecution intends to call Mr Elias, Ms Greaves and Mr Green as witnesses at the trial. In each case, their various statements were given after the respective s. 19 examinations. Each of them was cross-examined at committal.
23. [23]
    Prior to being cross-examined at committal, Ms Greaves pleaded guilty and was sentenced for providing false information in her s. 19 examination. The falsity was particularised as a denial that Mr Elias had kept her updated about the progress of the purchases of the Affinity shares. She was sentenced, without proceeding to conviction, to a 2-year period of good behaviour upon entering into a recognizance in the sum of $5000, pursuant to section 19B of the Crimes Act 1914 (Cth).
24. [24]
    Subsequent to his s. 19 examination and in the course of amendments to a draft statement but before his written statement was signed, legal representatives for Mr Green wrote to ASIC seeking an undertaking; presumably an undertaking not to prosecute him. He was not granted an indemnification, but his statements reflect an undertaking not to use anything in them against him. There is evidence that consideration was given to charging him with providing false evidence in the s. 19 examination, but he was not charged.
25. [25]
    Each of Ms Greaves and Mr Elias were cross-examined at committal about discrepancies between their respective s. 19 examinations and their subsequent written statements. It is unnecessary to list in detail the discrepancies and their effect. It is sufficient to note that there were a number of matters that tended to exculpate the defendant in the respective s.19 examinations that did not appear in the respective statements, and there were new assertions in the statements that tended to inculpate her.
26. [26]
    In cross-examination, Mr Green denied any wrongdoing on his part, denied providing false information in his s. 19 examination, and denied any recollection of any discussion about providing an induced statement. He did however accept that his solicitor had requested an undertaking for him from ASIC, and he accepted the statement he had provided was induced. He did not recall how the statement came to be provided or any information he was provided by investigators.
27. [27]
    Cross-examination of one of the investigators also established that, on occasions, investigators would introduce material into draft statements that came from sources other than the proposed witness, where it appeared to be material that the witness could speak about. The draft statement in those cases would then be presented to the witness for comment or signature. This practice is consistent with the changing contents of some of the 326 draft statements that were disclosed in September 2023.

28. [28]
    It was also revealed that investigators had disclosed almost no records of contact with witnesses. This has meant that there is an almost total lack of records of details of conversations with witnesses. Although some records had been kept at the time, they had been destroyed prior to the committal hearing. It is not contended by the defendant that they were destroyed with the intent to deprive her of access to them.
29. [29]
    As the defendant points to, in part, delay as a factor in the asserted unfairness, a chronology of court events should be outlined. In R v Hutson (Ruling No. 4) I provided a non-exhaustive chronology. What now follows is a fuller and updated chronology of relevant events, but it too is intended to be a summary only and is non-exhaustive.

The defendant’s submissions

30. [30]
    The defendant’s submissions were made orally, with the support of detailed written submissions. Those written submissions also incorporated part of the detailed written submissions filed for the purposes of the stay application to be heard in September 2023, which was not pursued when ASIC disclosed the 326 draft statements. It is not feasible to reproduce the submissions in detail. They can be distilled into the following essential propositions:

    1. a)
       The manner in which an investigation is conducted is important to the fairness of the resulting trial and, if not conducted properly, a miscarriage of justice can be occasioned.^[19]

    1. b)
       The manner that this investigation has been conducted has resulted in an unfairness that cannot be remedied by judicial directions.

1. That unfairness includes the extensive lack of records of contact with witnesses, including of conversations which resulted in significant changes to statements, in circumstances where there now appears to be little if any independent recollection about how that occurred.
2. It includes the inclusion by investigators in witnesses’ draft statements matters not raised by that witness, but which have come from other sources. Additionally, there are instances of investigators including, in some statements, direct quotes of conversations where the witness has no recollection of the words used.

3. The unfairness is most obvious in the case of Mr Elias, Ms Greaves and Mr Green, each of whom are crucial to the prosecution case and each of whom were criminally concerned witnesses and, so, had reason to “curry favour” with investigators. Nonetheless the unfairness applies in respect of all witnesses.
4. Given the extensive passage of time since relevant events occurred, there is a real risk that witnesses will repeat what is said in statements rather than state a true recollection of events, or say that they don’t know. It can never be known if the witness is doing that or not, and they may not realise it themselves.
5. As an overarching submission, it is submitted that the ASIC investigators have conducted the investigation to fit their own case theory rather than approaching the issue impartially, and the various features of unfairness make it impossible to reveal the full extent of what has occurred. It can be shown to have occurred on certain occasions, but the full extent of the conduct cannot be known or revealed.

1. c)
   The prosecution’s decision for the first time to call five witnesses some six years after the commencement of the prosecution also results in unfairness, given that none had earlier provided written statements. Objectively, each of these witnesses were always going to be important to the prosecution case, but the failure to obtain timely statements from them means that the defendant has lost the benefit of their fresh recollections. Four of them are solicitors who no longer work at the firms they did at the time, and so they do not have direct access to any contemporaneous notes or the relevant client files. There is material available that shows they have expressed that their recollections are now poor.

1. d)
   The decision by the CDPP and ASIC not to waive the privilege attaching to in excess of 500 draft statements, all of which are disclosable,^[20] causes unfairness because the defendant has been deprived of access to disclosable material, in breach of the fundamental obligation of disclosure. (While not perfectly clear, this issue will be approached on the basis that this is also the basis for a standalone application for a temporary stay.)

31. [31]
    The defendant relies on these matters both individually and in a cumulative sense. It is argued that, in the circumstances, it is not possible to unscramble the egg and restore the proceedings to the point where they are relevantly fair.^[21]

Consideration

32. [32]
    It is uncontentious that the manner in which an investigation is undertaken can affect the fairness of any subsequent trial. As a matter of principle, it follows that the nature of the investigation can lead to a conclusion that to allow the proceedings to commence would amount to an abuse of process. It is not necessary to cite examples of where the nature of the unfairness rose to the point of justifying a stay of proceedings as each case turns on its own particular facts, as assessed in light of the appropriate principles.
33. [33]
    However, it is important not to conflate the concepts of a miscarriage of justice with an abuse of process; different principles and considerations apply. Importantly, a miscarriage of justice is assessed with the benefit of hindsight, given the trial has occurred, whereas the need for a stay of the proceedings must be assessed prospectively.
34. [34]
    It can be accepted that Mr Elias, Ms Greaves and, to a lesser extent, Mr Green are very important to the prosecution case. Whether they are crucial, as the defendant suggests, or not, is not to the point. Senior Counsel for the prosecution concedes their importance to the prosecution case as presently framed, and that it would have a very different shape if they did not testify. He also accepts that, although there will be several hundred documents likely admitted into evidence, the prosecution case relies on inferences to be drawn from them, and that the evidence of many of the witnesses, including these three, is significant in terms of those inferences. There is also direct evidence from each that will be relied on by the prosecution and, obviously, Mr Elias’ evidence concerning count 14 is crucial to the prosecution’s prospects of success on that charge. The credibility of the witnesses and the reliability of their evidence is obviously an important issue in the trial, as it so often is in any trial.
35. [35]
    There is evidence that some exculpatory aspects of both Mr Elias’ and Ms Greaves’ s.19 examinations do not appear in their first written statements, that they each include inculpatory aspects that were not present in the s. 19 examinations, and there is little or no explanation as to how those changes occurred.

36. [36]
    I also accept that there is persuasive evidence that changes to draft statements have been made by investigators from material not emanating from those witnesses; one of the investigators has accepted that occurred, on occasion. However, the contents of the statements when signed by the respective witnesses is a matter for them, and they have adopted those statements. It is not suggested that they were not allowed the opportunity to consider, and have altered, the draft statements before signing. If there is something in the statement that they now do not accept, or do not adopt, which is apparently the position another witness, Mr Scott, has taken in at least one respect, the fact they were prepared to sign the statements in that form does not necessarily detract from the propriety of the investigation; it will likely tend to detract from their respective reliability and credibility, or have both effects.

37. [37]
    The defendant argues that such an approach to the compilation of draft statements may be justifiable in the case of witnesses who had no reason to curry favour with the investigators, but that is not the case with the three witnesses she argues are crucial to the prosecution case. It is argued that Mr Elias and Ms Greaves were each criminally involved in the events which have given rise to the charges and, at the least, Mr Green can be assumed to have thought he might be, or that his lawyers thought he might be, criminally involved given the approach for an undertaking.
38. [38]
    The defendant’s submissions as to the inclusion of directly quoted conversations falls into the same category. Although the practice has been the subject of competing judicial observations in recent times, it is not a matter that needs to be separately considered for the purposes of this application, and was not strongly pressed by the defendant.
39. [39]
    Accepting that it would be desirable that witnesses such as Mr Elias, Ms Greaves and Mr Green be treated with some circumspection by investigators, I do not understand that an investigator is obliged to merely accept the account of a witness as being final and complete. In fact, their job is to investigate and, arguably, they might be more sceptical of the accounts of those who are, or might be, criminally involved than other witnesses. They are entitled to conduct that investigation with a case theory in mind, but cannot be blind to other evidence. While I accept that draft statements may have been completed with a case theory in kind, it has not been established that they were blind to other evidence and, for the reasons earlier stated, the witnesses should be taken to have adopted the truthfulness of the contents of any statement they have signed.
40. [40]
    It is not a difficult task for the defendant to establish the respective making of the prior inconsistent statements, nor is it a forensically dangerous one. In doing so, an attack is necessarily made on the reliability of their respective evidence as to the inferences to be drawn from the documentary evidence, and on other aspects of their direct evidence, as well as on the propriety of the investigation itself. The more central the evidence that appears to have been inexplicably or suspiciously changed from the s. 19 examination, the more that, in turn, necessarily detracts from the prosecution case, given its reliance on the reliability of those witnesses.
41. [41]
    Nor is it difficult, or forensically dangerous, to elicit evidence that few records have been kept of contact with witnesses, and many of those that were have been destroyed. This may add to the defendant-sponsored impression of an inept or biased investigation, and may create some doubt about the integrity of the prosecution case overall. Whether it does so, or not, is a matter for a jury, but the point is that it is a potentially fertile basis on which to attack the prosecution case overall. Indeed, any unfairness related to an inability to access those records will be highlighted by the phone records in the defendant’s possession, which tend to establish that there was likely a lot of contact between Mr Elias and investigators during a period where there was a significant change in his accounts.

42. [42]
    The impact on the prosecution case due to the complained of features must also be assessed in light of the strong likelihood that appropriate warnings will be given to the jury as to the assessment of each of their accounts in light of their respective criminal involvement, or perceived criminal involvement, in the activities being undertaken.^[22] While the contents of that warning will be legislatively restricted as to its contents, it will no doubt be capable of expression in terms that cater for the interests of justice.^[23] Precisely what those terms are cannot be assessed until the evidence has been adduced, but I am satisfied that appropriate directions can be crafted to address any perceived injustice.
43. [43]
    The defendant accepts that the witnesses can be effectively cross-examined “to some extent” and that judicial directions will be required. The essence of the complaints about the nature of the investigation are that:

“… so much of this is unknowable. And that’s the real vice in it, your Honour. And we will never know whether we ever get to the bottom of how it was that this came about, what the conversations were, who actually drafted part of the statement, whether it was the witness, and for whatever reasons they might’ve had, whatever their motivations might’ve been, or whether it was the ASIC investigators.”^[24]

44. [44]
    In so far as that submission may be understood to suggest that the trial could be unfair because there could be other material available on which to attack the fairness of the investigation, that is the wrong test. It must be shown that the trial will be unfair, not could be.^[25]
45. [45]
    On the other hand, the submission may be understood to suggest that the trial will be unfair because the defence have not been able to get to the bottom of how witnesses’ accounts came to be compiled and/or changed, with the expressed level of detail. In my view, there is no need for the defendant to know those matters exactly, at least in the present circumstances. Strictly, the defendant does not have to prove anything, although there is a practical onus to erode the prosecution case. I consider that she is in possession of sufficient material to effectively chip away at the integrity of the investigation and, in so doing, potentially damage witnesses’ credibility in important respects, thereby damaging the prosecution case. The extent of that damage is a matter for the jury, but the trial is not unfair in the relevant sense.
46. [46]
    In those circumstances, I am not satisfied that the complained of aspects of the nature and outcome of the investigation, singularly or in combination, rise to the level of unfairness asserted by the defendant. She may perceive that they unfairly impact on her ability to defend herself, and they may well impact the way she would like to defend herself, but her perception is not a decisive feature in the assessment. In some cases it will be necessary to “unscramble the egg” in order to ensure that the trial is fair, but this is not such a trial given that the defendant does have material that is forensically advantageous to her conduct of her defence. It will always be a matter of fact and degree as to whether that is sufficient. In my view, it is in this case.

47. [47]
    That is not to suggest that some aspects of the conduct of the investigation are to be commended, based on the material before me. As earlier noted, a deviation from the ideal of perfect fairness will not necessarily be sufficient to justify a stay of proceedings. Similarly, loss or destruction of records may, but not necessarily will, found a successful application for a stay. In the present state of the evidence, I am not satisfied that the conduct of the investigation results in unfairness to the level required to warrant the exceptional step of a stay of the proceedings, especially where it is not contended that the proceedings were commenced for an ulterior purpose.
48. [48]
    The assertion concerning the late decision to call five witnesses from whom statements were not taken and the asserted unpreparedness for trial by the prosecution in circumstances where they had pressed for a trial listing in 2023 should be considered together.
49. [49]
    Senior Counsel initially briefed by the prosecution for the trial indicated a readiness to proceed to trial, at a time the five witnesses were not intended to be called. There was no complaint about the decision not to call these witnesses by the defendant. His involvement in the trial was curtailed by his judicial appointment. The prosecution’s estimate to present the prosecution case, including addresses and the summing up, was about three weeks.
50. [50]
    The next briefed Senior Counsel, albeit only briefed for a relatively short time, did not express an inability to be ready for trial, nor an intention to call the five witnesses. The prosecution’s estimate of the prosecution case remained unchanged. The defendant suggested an estimate in the order of six to eight weeks would be prudent.
51. [51]
    The third briefed Senior Counsel was the one who made the decision to call the five witnesses. Although none of them had provided a written statement, each had partaken in s. 19 examinations, and so, in the absence of a written statement, there was a proof of evidence available which was relatively contemporaneous to the time of the events. The prosecution did not contend that they could not proceed to trial that year, although Senior Counsel could not accommodate the precise trial listing already given. On that basis, the listing was, in effect, moved back some weeks. It was due to the later revised estimate of the trial length, based in part on the defendant’s estimates of up to 12 weeks, that the trial listing was vacated.^[26]
52. [52]
    The currently briefed Senior Counsel for the prosecution was engaged some short time later, along with freshly briefed Junior Counsel, and the trial was relisted over 12 months later to accommodate the availability of the defendant’s Senior Counsel in light of fairness considerations to the defendant. Counsel for the prosecution have not wavered in the decision to call the five witnesses.

53. [53]
    I am not satisfied that there was an “obvious unpreparedness for trial in 2023”^[27] on the part of the prosecution. The multiple re-briefings of Senior Counsel are not suggested to have been unnecessary, or to have occurred for some ulterior purpose. In effect, the prosecution remained in a position to proceed to trial in 2023, albeit with a shift in the trial date to accommodate then briefed Senior Counsel, and only applied to adjourn the trial once the defendant’s latest estimate of the trial length demonstrated that it could be conveniently done in the calendar year, and without unduly inconveniencing the summonsed jury panel.
54. [54]
    It seems, on the material before me, that the decision to call the five witnesses was made only once the third-briefed Senior Counsel for the prosecution was briefed. It is most regrettable that there was a change in direction in the prosecution case at that late juncture, but it was a decision that could legitimately be made. There is no suggestion of mal fides in making the decision and, given the defendant’s suggestion that they were witnesses who should always have been called, nor could there be.
55. [55]
    Each of the five witnesses were made available for a so-called Basha hearing.^[28] The defendant objected to two of them being called once she had indicated that she did not require them to be called. I ruled that, in those circumstances, the prosecution could not call them.^[29] It can be assumed that the defendant perceives some advantage in not having them examined in a public forum as to the state of their knowledge, even though neither have provided the prosecution with written statements. In those circumstances, it is difficult to accept that there is some injustice in those two witnesses being called, even if the notification of that intention was late in the day.
56. [56]
    The other three witnesses were called on the Basha hearing. Each had by that time provided the prosecution with written statements. The defendant has had the opportunity to understand what evidence each can give, although she correctly submits that each evidence the fact that had statements been taken more contemporaneously with the events, each would be likely to have a better recollection independent of documents from which they refresh their respective memories. Nonetheless, I consider that those deficiencies can be adequately guarded against by appropriate judicial directions.
57. [57]
    Undoubtedly, the delay of the trial has added to the costs incurred. However, that consideration must be tempered to some degree by the fact that the defendant is indemnified for her legal costs,^[30] although she will be liable for them if she is convicted.^[31] Also, I accept there will undoubtedly be other costs not covered by the indemnification as to legal costs, but they have not been quantified.

58. [58]
    Further, the defendant has suggested at various stages that she may seek a so-called Mosely order,^[32] although when speaking of other aspects of the prosecution’s conduct.^[33] The submissions as to the defendant incurring costs were not orally developed in this application for a permanent stay, and only passing mention of them was made in the written submissions. In those circumstances, I consider that the issue was not pressed, and I will not make any specific findings other than noting that no application for a Mosely-type order has been made.
59. [59]
    Finally, the defendant submits that a matter of relevance is the refusal of ASIC and the CDPP to waive privilege attaching to in excess of 500 draft statements.^[34]
60. [60]
    The prosecution’s submission that this cannot amount to grounds for a stay of proceedings as it is a lawful position to take cannot be accepted at that general level. The power to stay proceedings is a power to regulate the fairness of the proceedings, regardless of the lawfulness of the conduct undertaken. Additionally, the defendant points to statements by the New South Wales Court of Criminal Appeal in Marwan v Director of Public Prosecutions,^[35] cited with approval by the same Court in DPP (Cth) v Kinghorn.^[36] They support that the power exists where the conduct giving rise to the application is lawful, including where privilege is invoked.
61. [61]
    As a preliminary issue, I note that the Court in Marwan accepted the availability of a stay of proceedings if there is a “tangible risk that the trial would be unfair” or that the “trial is likely to be unfair”. These tests were adopted in Kinghorn.^[37] In explicit terms, that is inconsistent with the test noted in The Queen v Edwards, which required a test of satisfaction of actual unfairness in the trial proceeding. In any event, it is an issue I need not determine, given the conclusion I have reached.
62. [62]
    This is another example of the defendant wanting to completely unscramble the egg. In my view, a fair trial, as that term is properly understood, can be conducted without that occurring. The defendant is in possession of a considerable amount of material to demonstrate that the egg has been scrambled. She will contend that it was ASIC that scrambled the egg, and there is support for that in the material. Perhaps ironically, some of that material comes directly and inferentially from the 326 draft statements that were ultimately disclosed by ASIC. The material overall allows the defendant to make a realistic attack on the integrity of the investigation and, as explained above, thereby on the credibility of the witnesses. That in turn affects at least some of the inferences to be drawn from the extensive documentary case that will be presented by the prosecution. The ability to present that case, forcefully, has been graphically demonstrated in oral submissions.

63. [63]
    The importance of adherence to the disclosure obligation is not in doubt, but the issue here is concerned with the tension between that important obligation and the important right of a party to litigation to maintain the confidentiality over privileged documents and communications. Even adopting the lesser of the thresholds for the appropriate test, I am satisfied that there is no likelihood, and no tangible risk, of an unfair trial if the privilege is maintained over these documents, resulting in the draft statements not being disclosed.
64. [64]
    The defendant’s reliance on the Commonwealth Director of Public Prosecutions “Statement on Disclosure in Prosecutions Conducted by the Commonwealth”, as I have understood the argument, does not advance the position. The Statement, and paragraph 24 in particular, does not advance the state of the law as considered herein, and it does not mandate that proceedings be discontinued if the claim of privilege is maintained. It is a policy statement and does not have the force of law. Paragraph 24 says nothing more than if documents are withheld from disclosure due to an immunity, consideration will need to be given to the fairness of any subsequent trial, and some proceedings will need to be discontinued. Due to the presumably deliberate position adopted by the CDPP in this trial, it can be assumed that the required consideration has been given to the issue.
65. [65]
    The availability of the exceptional step of ordering a stay will always depend on the overall circumstances. Here the defendant, in my view, has sufficient material to mount a proper and credible defence. It cannot be assured that the additional material, although admittedly large in number, will provide anything of real additional value to her defence. The failure to disclose the draft statements does not justify taking the exceptional step of ordering a permanent stay of proceedings, either based on this complaint alone or in combination with the other bases argued.
66. [66]
    In preparing these reasons, I have realised there are some possible indications that the defendant may have also been seeking a temporary stay of the proceedings until the subject statements are disclosed. This was not apparent to me at the time of the hearing, and there is no written application to that effect. If that was the intention, I would have refused the temporary stay also.
67. [67]
    Although there is a different focus on the issue to be established, given that a temporary stay would not be tantamount to a continuing immunity from prosecution, it is still a step that should not be taken lightly. For the reasons expressed above, together with the lengthy history of the proceedings, which has been contributed to by the conduct of the defence to some extent, I do not consider a temporary stay pending the disclosure of the outstanding statements to be a proper exercise of the discretion to regulate the proceedings in the interests of justice.

68. [68]
    Although I have tended to consider the arguments put by the defendant in categories in these reasons, I have not lost sight of the overall effect of them in a cumulative sense in deciding that the application must be refused. I have also not lost sight of the effect of delay on each, and in a cumulative sense.
69. [69]
    The impact of delay in assessing the justice of the situation is not straight forward. Some component of it has been caused by the defendant, or the conduct of her defence. I consider that the delay caused by the judicial review application to the Supreme Court, and the subsequent appeal, both of which failed, are attributable to the defendant. True it is, as submitted that it did not delay any listed trial, but in reality the period of 12 months between Judge Farr’s decision and that of Crowley J was a period in which the trial could not realistically be listed. The fact it was so listed about 3 weeks later tends to evidence the point.
70. [70]
    However, the delay caused by ASIC’s application for summary judgment in the trial division on the judicial review application, cannot be laid at her feet. Further, the expressly stated unavailability of the defendant’s Senior Counsel to participate in the trial in 2024 must be accounted for, to some degree. It is impossible to attribute a precise reckoning of how much weight needs to be allowed for those aspects of the delay, but some recognition of it is required.
71. [71]
    In any event, this it is not a case where there has been unreasonable or inexplicable delay by the prosecution, and where it has produced a known unfairness over and above the usual effects of delay. Undoubtedly there will be a judicial direction concerning the effect of it, if permitted by law.^[38] If one cannot be given, that does not render the trial unfair in the relevant sense; the fairness of the trial is, in part, governed by the prescriptions imposed by Parliament.
72. [72]
    The relevant tests for the granting of a stay were outlined in summary form earlier in these reasons. I have had regard to those authorities in their entirety. Ultimately, I am not satisfied that the defendant has satisfied her onus of showing that a permanent stay of proceedings should be granted. That is not say that the various features have not resulted in some unfairness being burdened by the defendant, but I consider that, even in a cumulative sense, it does not meet the threshold for a permanent stay of proceedings.