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10
Court of Criminal Appeal 1 March 2013

R v Ross Edward Seller; R v Patrick David McCarthy

[2013] NSWCCA 42

Also reported as (2013) 232 A Crim R 249
Fraud & dishonestyPublic order & justice offences
CRIMINAL LAW GRANT OF STAY GRANT OF STAY EXERCISE OF DISCRETION GRANT OF STAY WHETHER MATERIAL JUSTIFIED INFERENCE.

Citation: R v Ross Edward Seller; R v Patrick David McCarthy [2013] NSWCCA 42
Court: NSW Court of Criminal Appeal
Date: 1 March 2013
Judge(s): Bathurst CJ; McClellan CJ at CL; Rothman J

Background

Two respondents faced charges on indictment that between 2001 and 2002 they conspired with others to dishonestly influence the Commissioner of Taxation in the exercise of his duties, contrary to the Criminal Code Act 1995 (Cth). Both had previously given evidence under compulsion before the Australian Crime Commission (ACC), and transcripts of that evidence were subsequently disseminated to the Commonwealth Director of Public Prosecutions (CDPP).

In August 2012, the primary judge permanently stayed the criminal proceedings. The basis for that stay was that the ACC's disclosure of the examination transcripts to the CDPP had compromised the respondents' right to a fair trial conducted in accordance with adversarial process, and allowing the trial to proceed would constitute "an offence to the administration of justice."

The CDPP appealed, arguing the permanent stay was not warranted. The appeal raised questions about the proper interpretation of the Australian Crime Commission Act 2002 (Cth), the limits of the ACC's non-publication powers, and the correct test for granting a permanent stay.

  • Whether the dissemination of ACC examination transcripts to the CDPP fell within or contravened the scope of s 25A of the Australian Crime Commission Act 2002 (Cth)
  • Whether the dissemination of those transcripts resulted in a fundamental defect in the trial process sufficient to justify a permanent stay
  • Whether the primary judge was correct to infer that the CDPP had actually used the transcripts in a way that prejudiced a fair trial
  • Whether the evidence before the primary judge justified the inference on which the stay was based
  • Whether the exercise of discretion to permanently stay the proceedings was sound

Decision

Statutory framework and the scope of s 25A

Bathurst CJ examined the legislative history of the ACC Act and its predecessor, the National Crime Authority Act 1984 (Cth). His Honour found that s 25A(9) imposes a mandatory obligation on an examiner to direct that evidence not be published where failure to do so might prejudice a fair trial. Section 25A(11) prevents the ACC's CEO from revoking such a direction if doing so would carry the same risk. The Court held that these provisions are directed at controlling publication of examination material, but they do not of themselves define or limit the separate jurisdiction of a court to ensure a fair trial.

Whether the dissemination caused a fundamental defect

The Court of Criminal Appeal found that the primary judge had not established, on the evidence available, a sufficient factual basis for concluding that the CDPP had actually used the transcripts in a manner that prejudiced or would prejudice the respondents' fair trial. The inference drawn by the primary judge that the transcripts had been improperly used to advance the prosecution case was not supported by the material before the court. Without that factual foundation, a permanent stay could not be justified.

The proper test for permanent stay and the role of the trial court

Bathurst CJ confirmed that a permanent stay is an exceptional remedy, available only where the trial process would be so fundamentally flawed that no other remedy could suffice. The Court emphasised that a trial judge retains ample tools to address the effects of improperly obtained or prejudicial material at trial, including the discretionary exclusionary provisions in ss 90, 137, and 138 of the Evidence Act 1995. Rothman J added that the ACC's powers under s 25A provide a mechanism to ameliorate potential unfairness, but the final determination of fairness rests with the court, not the Commission.

Derivative use and the money trail

Rothman J addressed the argument that any benefit the prosecution derived from the transcripts (such as identifying the money trail) was tainted. His Honour expressed the view that the discovery of the money trail was in any event inevitable, given that the relevant documents had already been independently obtained by the prosecution. This rendered the derivative-use concern less weighty in the circumstances of this case.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • The primary judge's orders of 17 August 2012 (including the permanent stay and the costs order) set aside
  • The stay motions filed by both respondents dismissed

Key Takeaways

  • A permanent stay of criminal proceedings is an exceptional remedy. It is not available merely because ACC examination transcripts have been disseminated to a prosecuting authority; there must be a sound evidentiary foundation for concluding that the dissemination caused, or will cause, actual unfair prejudice at trial.
  • Under s 25A(9) of the Australian Crime Commission Act 2002 (Cth), an examiner is obliged to direct non-publication of examination material where failure to do so might prejudice a fair trial. However, that obligation does not displace or constrain a court's own jurisdiction to ensure a fair trial.
  • The Court of Criminal Appeal confirmed that the ACC's non-publication regime and the court's jurisdiction to grant a stay operate on different planes. The Commission's determinations about publication do not bind the court, which retains its own ultimate power to prevent an unfair trial.
  • Where examination transcripts are disseminated and their use by a prosecutor is alleged to have caused prejudice, the discretionary exclusionary provisions of the Evidence Act 1995 (ss 90, 137, 138) are available at trial as an alternative to the extreme remedy of a permanent stay.
  • Rothman J noted that the doctrine of inevitable discovery is relevant where derived material would have been uncovered regardless of the impugned disclosure, aligning the approach with well-established principles in comparable jurisdictions.

Legislation and Cases Referenced

Legislation
- Australian Crime Commission Act 2002 (Cth), ss 4, 7A, 12, 24A, 25A, 30, 59
- Crimes Legislation Amendment Act 1991 (Cth)
- Criminal Appeal Act 1912, s 5F
- Criminal Code Act 1995 (Cth), s 135.4
- Evidence Act 1995, ss 90, 137, 138
- National Crime Authority Act 1984 (Cth), ss 12, 25A, 30
- National Crime Authority Legislation Amendment Act 2001 (Cth)

Key Cases
- Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
- Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
- Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427
- A v Boulton [2004] FCAFC 101; (2004) 136 FCR 420
- Australian Crime Commission v OK [2010] FCAFC 61; (2010) 185 FCR 258
- Gedeon v Commissioner of New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120
- Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486
- Daniels Corporation International Pty Limited v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543
- John Fairfax Publications Pty Limited v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344