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7
Court of Criminal Appeal 28 November 2014

X7 v R

[2014] NSWCCA 273

Also reported as (2014) 246 A Crim R 402
Drugs
CRIMINAL LAW APPEAL APPLICATION FOR PERMANENT STAY NO EVIDENCE OF ACTUAL UNFAIRNESS CAUSED NO ACCESS TO TRANSCRIPT OF EXAMINATION

Citation: X7 v R [2014] NSWCCA 273
Court: NSW Court of Criminal Appeal
Date: 28 November 2014
Judges: Bathurst CJ (with whom Beazley P, Hidden J, Fullerton J, and R A Hulme J agreed)

Background

The appellant (X7) faced four counts on a federal indictment: conspiracy to traffic a commercial quantity of cocaine, conspiracy to import a commercial quantity of cocaine, conspiracy to deal with proceeds of crime, and attempting to possess a controlled drug. After being charged, X7 was compulsorily examined under the Australian Crime Commission Act 2002 (Cth) (ACC Act) about matters directly related to those charges.

The High Court had earlier held in X7 v Australian Crime Commission (2013) 248 CLR 92 that the ACC Act did not authorise the examination of a person already charged with a Commonwealth indictable offence about the subject matter of those charges. That examination had therefore occurred without lawful authority.

Armed with that High Court finding, X7 applied to the District Court of NSW for a permanent stay of the criminal proceedings. The primary judge refused the stay, finding no evidence of actual prejudice. X7 then sought leave to appeal to the Court of Criminal Appeal.

  • Whether the primary judge erred in the exercise of her discretion in declining to grant a permanent stay.
  • What threshold must be met before a permanent stay will be granted for an unlawful compulsory examination of a charged person.
  • Whether the absence of evidence about the content of the examination, and the absence of dissemination of that material to prosecutors, was sufficient to warrant a stay.
  • Whether the unlawfulness of the examination alone, without demonstrated actual unfairness, was enough to ground a permanent stay.

Decision

Bathurst CJ, delivering the principal judgment, confirmed that a permanent stay is reserved for extreme cases. The test requires that there be a fundamental defect of such a nature that the trial judge cannot, in the conduct of the trial, relieve against its unfair consequences, or that the continuation of proceedings would amount to an abuse of process.

Although the examination of X7 was conducted without lawful authority, the Court found that no evidence established any actual dissemination of the examination material to investigators or prosecutors. The direction made under s 25A(9) of the ACC Act had expressly prohibited Commonwealth DPP officers and police associated with the prosecution from receiving X7's evidence. The Court emphasised that it had no access to the transcript of the examination and therefore could not assess the nature or extent of any prejudice flowing from it.

Because the content of the examination was unknown, the Court was unable to determine whether any prejudice had actually resulted, or whether a trial judge could address any unfairness during the trial itself. The unlawfulness of the examination, standing alone, did not establish that the proceedings had reached the threshold of a fundamental defect with unfair consequences that could not be remedied.

Beazley P, in a concurring judgment, observed that the questions asked may have been confined to identity or background, potentially entirely unrelated to the charged offences. The Court could not rule out that the material was, in the words of Hayne J in Lee v New South Wales Crime Commission, "anodyne in effect" so far as the criminal trial was concerned.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A permanent stay of criminal proceedings will only be granted in extreme cases, where there is a fundamental defect whose unfair consequences a trial judge cannot remedy, or where continuation of proceedings would amount to an abuse of process.
  • Unlawfulness of an examination conducted under compulsory powers does not automatically entitle an accused person to a permanent stay; demonstrated actual prejudice, or at minimum an inability of the trial court to relieve against unfair consequences, must be established.
  • Where the content of an examination remains inaccessible and undisclosed, a court may be unable to assess whether any prejudice actually flowed from it, which weighs against granting a stay.
  • In dismissing the appeal, the Court confirmed that the absence of any dissemination of examination material to investigators or prosecutors was a significant factor in the exercise of the discretion to refuse a stay.
  • The Court of Criminal Appeal noted that the issues raised were of general importance, reflecting the broader significance of the earlier High Court ruling in X7 v Australian Crime Commission (2013) 248 CLR 92 on the limits of ACC examination powers over charged persons.

Legislation and Cases Referenced

Legislation:
- Australian Crime Commission Act 2002 (Cth), ss 25A, 30, 46B and Div 2 Part II
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Code Act 1995 (Cth)
- Constitution, Ch III
- Court Suppression and Non-Publication Orders Act 2010 (NSW)
- New South Wales Crime Commission Act 1985 (NSW), s 13
- Criminal Assets Recovery Act 1990 (NSW), ss 13A, 62 and 63
- Proceeds of Crime Act 2002 (Cth)

Key Cases:
- X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92
- Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196
- Lee v The Queen [2014] HCA 20; (2014) 88 ALJR 656
- Hammond v The Commonwealth of Australia [1982] HCA 42; (1982) 152 CLR 188
- Moti v The Queen [2011] HCA 50; (2011) 245 CLR 456
- Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237
- Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
- Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
- Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75
- R v Seller [2013] NSWCCA 42; (2013) 273 FLR 155