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Judgment handed down in DPP (Cth) v Donald Galloway (a pseudonym) and Ors

25 May 2017

The Court of Appeal (President Maxwell, Justice Redlich and Justice Beach) today allowed an appeal by the Commonwealth Director of Public Prosecutions (‘CDPP’) against an order permanently staying the prosecutions of four individuals accused of committing offences against Commonwealth law (‘the respondents’).

Before the respondents were charged, they were each compulsorily examined by the Australian Crime Commission (‘ACC’) about the subject-matter of the allegations against them. The examinations were conducted at the request of the Australian Federal Police (‘AFP’), who had been investigating the allegations.

The ACC examiner permitted AFP officers to be present at the examinations, and permitted the transcripts to be disseminated to the AFP and the CDPP. The trial judge held that the examiner had been bound to prohibit publication of the examination material to the AFP and CDPP, in order to avoid the risk of prejudice to a fair trial. His failure to do so was unlawful. Her Honour held, further, that the failure was ‘reckless … to an unacceptable degree’.

Her Honour concluded that, as a result of the unlawful dissemination of the material, the respondents would be unable to receive a fair trial. She was satisfied that the material had been used unfairly in the assembly of the prosecution case and that the respondents would be unfairly constrained in the conduct of their defences.

Her Honour also upheld the respondents’ contention that the reckless unlawfulness, associated with the conduct of the examinations and the dissemination of the material, provided an additional basis for a stay. Thus she concluded that, in the ‘exceptional circumstances of the case’, a stay was warranted

not only as a result of the forensic disadvantage considerations, but also in order to protect confidence in the administration of justice.

The Court of Appeal agreed with the judge that the dissemination of the examination material was unlawful. The Court also upheld the respondents’ contention that the examinations were not authorised by the Act, and were conducted for an improper purpose. The Court found that the ACC was not conducting any investigation of its own and had instead made its coercive powers available to the AFP for the purpose of advancing the AFP’s - quite separate - criminal investigation.

The Court concluded, however, that the finding of recklessness could not stand. On the evidence, the Court said, the ACC examiner honestly believed that the dissemination of the material was lawful.

The Court also upheld the CDPP’s challenge to the judge’s finding that the respondents would be unable to receive a fair trial:

In our view, the respondents failed to demonstrate any material forensic disadvantage resulting from the conduct of the examinations. As  will appear, it was precisely because — as the respondents themselves had sought to demonstrate before the judge — the AFP’s investigation was so well advanced by the time the examinations were conducted that the unlawful dissemination of the examination material made so little difference to the preparation of the prosecution case

Read the Court's full judgment on Austlii (External link)

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