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Court of Criminal Appeal 9 December 2011

R v CB; MP v R

[2011] NSWCCA 264

Drugs
CRIMINAL APPEAL S5F CRIMINAL APPEAL ACT 1912 (NSW) CB EXAMINED BY ACC AFTER BEING CHARGED PERMANENT STAY NOT JUSTIFIED CROWN APPEAL SUCCESSFUL MP APPEAL DISMISSED.

Citation: R v CB; MP v R [2011] NSWCCA 264
Court: Court of Criminal Appeal, NSW
Date: 9 December 2011
Judges: McClellan CJ at CL, Buddin J, Johnson J

Background

Two accused persons, referred to as CB and MP, were charged in 2009 with conspiracy to manufacture a commercial quantity of methamphetamine under the Criminal Code 1995 (Cth). MP faced an additional charge of conspiracy to import a commercial quantity of a border controlled precursor. After charges were laid, CB was summoned to give evidence before the Australian Crime Commission (ACC), a body with compulsory examination powers. The examination was terminated partway through following a Federal Court decision that cast doubt on the legality of such examinations.

Both accused applied to the District Court for a permanent stay of their prosecutions, arguing the ACC examination had constituted an abuse of process. The District Court judge granted the stay to CB but refused it to MP, finding that the examination of CB had constituted a serious interference with the administration of justice, subverted the adversarial trial process, and effectively amounted to a contempt of court.

The Director of Public Prosecutions appealed the stay granted to CB under section 5F of the Criminal Appeal Act 1912 (NSW). MP cross-appealed, arguing the District Court had erred in declining to extend the stay to him as a co-accused.

  • Whether the ACC had standing to participate as an intervener, given the possibility that a contempt referral could be made against it.
  • Whether the District Court erred in finding that examining CB after he had been charged constituted a serious interference with the administration of justice.
  • Whether the District Court was entitled to decline to follow the Full Federal Court decision in Australian Crime Commission v OK [2010] FCAFC 61 on the basis that it was plainly wrong.
  • Whether a permanent stay was justified in the circumstances, given the absence of the examination transcript and no proof of dissemination of information obtained during the examination.
  • Whether MP, who had not been examined before the ACC, was entitled to a permanent stay based on the examination of his co-accused CB.

Decision

The Court of Criminal Appeal allowed the Crown appeal and dismissed MP's appeal, with all three judges in agreement.

On standing, the Court held that the ACC was entitled to intervene because the trial judge had found it had engaged in conduct amounting to contempt of court, and the possibility of a contempt referral gave the ACC a sufficient interest to be heard.

On the question of whether the District Court could depart from the Full Federal Court decision in ACC v OK, the Court held that it was not open for the District Court judge to treat that decision as plainly wrong. Intermediate appellate court decisions bind lower courts unless plainly wrong, and the District Court had no proper basis for that conclusion here.

Critically, the examination transcript had never been produced before the District Court or the Court of Criminal Appeal. In the absence of the transcript, the Court found it was impossible to conclude that the questions asked of CB, or the answers he gave, would deprive him of a fair trial. Without evidence that the administration of justice had been or would be interfered with in a way that denied CB a fair trial, a permanent stay, which is an exceptional remedy of last resort, could not be justified. MP's claim for a stay was entirely derivative of CB's position, and given CB's stay was quashed, MP's appeal necessarily failed.

Orders Made

  • The appeal by the Director of Public Prosecutions is upheld.
  • The order granting a permanent stay to CB is quashed and the matter is remitted to the District Court for trial.
  • The appeal by MP is dismissed.

Key Takeaways

  • A permanent stay of criminal proceedings remains an exceptional remedy of last resort; without evidence that the conduct complained of would deprive an accused of a fair trial, the remedy is not available regardless of how improper the relevant conduct may have been.
  • Where an examination transcript is not placed before the court, a finding that questions asked or answers given during that examination would make a fair trial impossible cannot be supported on the evidence.
  • The Court of Criminal Appeal confirmed that a lower court cannot depart from a Full Federal Court decision on the basis that it is plainly wrong unless there are proper grounds for reaching that conclusion; it was not open to the District Court to do so in this case.
  • The possibility that a contempt referral could be made against the ACC was sufficient to give it standing to intervene in the stay application.
  • In dismissing MP's appeal, the Court confirmed that a co-accused who was not himself examined has no independent foundation for a permanent stay where the basis for that stay derives entirely from the position of the examined co-accused.

Legislation and Cases Referenced

Legislation:
- Australian Crime Commission Act 2002 (Cth)
- Criminal Code 1995 (Cth)
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995, s 17

Key Cases:
- Australian Crime Commission v OK [2010] FCAFC 61; 185 FCR 258
- Jago v The District Court of NSW [1989] HCA 46; 168 CLR 23
- Barton v The Queen [1980] HCA 48; 147 CLR 75
- Hammond v The Commonwealth [1982] HCA 42
- Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89
- Dupas v The Queen [2010] HCA 20; 267 ALR 1
- Hamilton v Oades [1989] HCA 21; 166 CLR 486
- Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485