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Court of Criminal Appeal 22 August 2014

R v X

[2014] NSWCCA 168

DrugsPublic order & justice offences
CRIMINAL LAW

Citation: R v X [2014] NSWCCA 168
Court: NSW Court of Criminal Appeal
Date: 22 August 2014
Judge(s): Simpson J, Hidden J, Hamill J

Background

The respondent faced trial in the District Court on charges of being an accessory before the fact to the manufacture of a large commercial quantity of methylenedioxyamphetamine (MDA), and of supplying a large commercial quantity of the same drug. The charges arose from events in late 2010 involving the alleged setup and operation of a drug laboratory at a rural property, and the respondent's subsequent interception by police while driving a van containing the manufactured drug and laboratory equipment.

Before trial, in March 2011, the respondent was compelled to attend an examination before the Australian Crime Commission (ACC) under s 25A of the Australian Crime Commission Act 2002 (Cth). He was questioned about the very subject matter of the pending charges. Under the Act, any answers he claimed might tend to incriminate him could not be used against him at trial, and he made that claim over his entire evidence. A non-publication direction was made covering, among others, the Crown prosecutor and police involved in the prosecution.

The trial judge permanently stayed the proceedings, relying on the High Court's decision in X7 v Australian Crime Commission [2013] HCA 29. The Director of Public Prosecutions appealed that stay to the Court of Criminal Appeal under s 5F(2) of the Criminal Appeal Act 1912.

  • Whether the High Court's decision in X7 established that a compulsory ACC examination of a charged person about the subject matter of pending charges automatically warrants a permanent stay of those proceedings.
  • Whether the trial judge erred by treating the mere fact of the examination as sufficient to justify the stay, without examining the particular circumstances of the case.
  • What approach a court should take when considering a stay application arising from an unlawful ACC examination.

Decision

The Court of Criminal Appeal allowed the Crown's appeal. Hidden J, with whom Simpson J agreed, held that X7 decided a question of statutory construction, namely that the ACC Act did not authorise the compulsory examination of a charged person about the subject matter of pending charges. However, X7 did not establish any automatic entitlement to a permanent stay of proceedings simply because such an examination had occurred.

The Court confirmed that whether a stay should be granted remains a discretionary determination governed by established principles, most importantly those in Jago v The District Court of New South Wales (1989) 168 CLR 23. A stay is a remedy of last resort, warranted only where no other remedy can prevent an unfair trial or where the continuation of proceedings would constitute an abuse of process.

Hamill J added that the subsequent High Court decision in Lee v The Queen [2014] HCA 20 was instructive. In that case, even where there had been both an unlawful examination and dissemination of the examination material to the prosecuting authority, the High Court ordered a new trial rather than an acquittal or permanent stay. This contemplated that a fair trial could still be possible in such circumstances.

The trial judge's discretion had therefore miscarried by proceeding on an assumption that a fair trial was impossible as a matter of course. The case was remitted to the District Court for further consideration of the stay application in accordance with the correct legal framework.

Orders Made

  • The Crown appeal was allowed.
  • The permanent stay of proceedings was set aside.
  • The matter was remitted to the District Court.

Key Takeaways

  • The Court of Criminal Appeal confirmed that X7 v Australian Crime Commission is a decision about statutory construction, not a ruling that an unlawful ACC examination automatically entitles an accused to a permanent stay of criminal proceedings.
  • A permanent stay remains a remedy of last resort under Jago, available only where no other means can secure a fair trial or where the continuation of proceedings would constitute an abuse of process.
  • Where a stay application arises from an unlawful ACC examination, the circumstances of the particular case must be examined, including the content and reach of any non-publication direction and the extent to which prosecuting authorities have been exposed to the examination material.
  • Lee v The Queen [2014] HCA 20 indicated that an unlawful examination, even one accompanied by dissemination of material to prosecutors, does not necessarily foreclose the possibility of a fair trial.
  • In remitting the matter, the Court of Criminal Appeal left open for the District Court to conduct a proper, fact-specific assessment of whether the respondent's trial could proceed fairly.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F(2)
- Australian Crime Commission Act 2002 (Cth), ss 25A, 30

Cases
- X7 v Australian Crime Commission [2013] HCA 29, 248 CLR 92
- Lee v The Queen [2014] HCA 20
- Lee & Anor v New South Wales Crime Commission [2013] HCA 39, 302 ALR 363
- Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23
- R v CB [2011] NSWCCA 264
- R v Seller & McCarthy [2013] NSWCCA 42
- Australian Crime Commission v OK [2010] FCAFC 61, 185 FCR 258
- Jamal v Director of Public Prosecutions [2013] NSWCA 355
- DPP v Shirvanian (1998) 44 NSWLR 129
- Hammond v The Commonwealth (1982) 152 CLR 188
- R v Littler [2001] NSWCCA 173