Police overreach dooms trials

Banking Day staff Finance regulation

Four finance executives, including a CEO, will no longer face a criminal trial, following a High Court ruling yesterday.

All four worked for either a subsidiary or an associated company of an enterprise unable to be named as more than a dozen non-publication orders are still in force, including one from the High Court in relation to its full reasons.

Likewise, the four defendants cannot be named, as a prosecution of at least one more defendant is still to work its way through the court system.

The names of the accused have often been in the media, and the outline of an affair in which they were central characters will be known to many readers.  

The explosive highlights that give context to these charges cannot be reported.

The High Court summary of its reasons (which are in the public domain) centre on the cynical methods used in the investigation of alleged crimes dating from the mid 2000s.

In a ruling that serves as a restraint on the misuse of coercive powers, the High Court found the appellants faced “forensic disadvantage and [that the] consequent prejudice to the fair trials of the appellants were incurable.”

Having exercised their rights to decline to participate in a cautioned record of interview with the Australian Federal Police, investigators called in the Australian Crime Commission to collaborate.

As the summary of the judgment explains, “the ACC may conduct a special investigation into matters relating to federally relevant criminal activity and an examiner may conduct an examination of a witness for the purposes of that investigation.”

“A person appearing as a witness at such an examination is prohibited from refusing to answer a question that the examiner requires the person to answer.”

The court supplied the chronology.

“The ACC did not undertake any investigation of its own but instead referred the allegations to the Australian Federal Police and offered to allow the AFP to utilise for the AFP's own purposes the ACC's coercive powers to examine witnesses.

“In 2010, the ACC compulsorily examined the appellants.

“Prior to their examinations, each appellant had declined to participate” in a cautioned interview.

“Several AFP officers watched each examination from a nearby room and their presence was not disclosed to the appellant under examination.

“Following each examination, the examiner appointed under the ACC Act made orders permitting the dissemination of examination material to the AFP and the Commonwealth Director of Public Prosecutions. The ACC then provided audio recordings of the examinations to both the AFP and the CDPP.”

The appellants were later charged with Commonwealth and Victorian offences.

After marathon hearings centred on the “reckless” conduct of the ACCC examiner, a justice of the Supreme Court of Victoria eventually concluded that the proceedings on each charge be permanently stayed as an abuse of process.

The Court of Appeal last year overturned that ruling, and the DPP resumed criminal proceedings from scratch, the work allocated to prosecutors and solicitors with no prior knowledge of the contaminated material.

The High Court has now ruled, unanimously, “that the ACC had acted unlawfully - the ACC had not conducted a special investigation … or matters otherwise relevant to the examination of the appellants, but had acted at all times simply as a facility for the AFP to cross-examine the appellants under oath for the AFP's own purposes.”

A majority of the Court held that the appellants' prosecutions ought to be stayed, “as, in the circumstances of the case, to allow the prosecutions to proceed would bring the administration of justice into disrepute.”

The ACC since 2016 has been known as the Australian Criminal Intelligence Commission.