Citation: R v Seller; R v McCarthy [2014] NSWSC 1287
Court: Supreme Court of New South Wales
Date: 29 July 2014
Judge(s): Button J
Background
The two accused faced charges of conspiracy to defraud. A central issue in the proceedings concerned a Crown witness who, the accused alleged, had extensive access to material they had been compelled to produce to the Australian Crime Commission, raising significant questions about the interaction between inquisitorial and adversarial processes in Australian law.
At an earlier stage of the same proceedings, Garling J had granted a permanent stay of the trial. The Court of Criminal Appeal subsequently quashed that order and remitted the matter for further hearing. The matter came before Button J on an amended notice of motion brought by one accused, in which the other joined, seeking to resolve further questions before the jury trial proceeded.
At this interlocutory hearing, senior counsel for the accused argued that the Crown should not be permitted to adduce evidence contradicting the factual findings previously made by Garling J, on the basis that doing so would constitute an abuse of process.
Legal Issues
- Whether it would constitute an abuse of process to allow the Crown to adduce evidence contradicting findings of fact made by Garling J in earlier proceedings concerning different orders
- Whether the principles from Rogers v The Queen (1994) 181 CLR 251 regarding the revisitation of findings of fact in criminal proceedings applied on the facts
- Whether issue estoppel had any role in the criminal law context
Decision
Button J rejected the abuse of process submission, setting out nine distinct reasons for doing so. His Honour noted at the outset that senior counsel properly accepted that issue estoppel plays no role in criminal law, consistent with the High Court's analysis in Rogers v The Queen.
The central reason for rejecting the submission was that the orders sought in the current motion differed, at least in nature, from those before Garling J. Because the relief sought had changed, so too had the issues requiring determination, meaning the factual findings of Garling J were not directly binding in the present application.
Button J also observed several practical considerations pointing against rigidity. The accused themselves sought to tender supplementary evidence not before Garling J, making it anomalous to afford only one party that flexibility. Further, to the extent that Garling J's permanent stay had been quashed on appeal, there was no risk of truly inconsistent verdicts. The matter remained a continuation of the same trial, not a fresh proceeding.
His Honour also noted that evidentiary rulings are not fixed and can be revisited as the state of evidence changes, and that the Victorian Court of Appeal's approach in R v Edwards, which he accepted as correctly stating the law in New South Wales, confirmed that interlocutory evidentiary determinations in the same criminal proceedings are not binding on a subsequent judge in those same proceedings.
Orders Made
No orders were made in this decision.
Key Takeaways
- Interlocutory evidentiary determinations made by a judge in criminal proceedings are not binding on a subsequent judge hearing the same proceedings, consistent with the Victorian Court of Appeal's analysis in R v Edwards [1998] 2 VR 354, which Button J accepted as correctly stating New South Wales law.
- Issue estoppel does not apply in the criminal law context, as confirmed by the High Court in Rogers v The Queen (1994) 181 CLR 251.
- Where the orders sought in a later motion differ in nature from those considered by an earlier judge, the factual findings made by that earlier judge do not bind the Crown in the subsequent proceeding.
- Allowing the Crown to adduce evidence contradicting earlier factual findings will not necessarily constitute an abuse of process; whether it does so depends heavily on the nature of the relief sought and the specific circumstances, measured against the stringent standard established in Rogers v The Queen.
- The quashing of an earlier permanent stay on appeal removes any concern about inconsistent verdicts arising from fresh findings of fact in the remitted proceedings.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 138
Cases
- Rogers v The Queen (1994) 181 CLR 251
- X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92
- Do Young Lee v The Queen; Seong Won Lee v The Queen [2014] HCA 20; 88 ALJR 656
- R v Seller; R v McCarthy [2012] NSWSC 934
- R v Seller; R v McCarthy [2013] NSWCCA 42
- Rippon v Chilcotin Pty Ltd and Others [2001] NSWCA 142; 53 NSWLR 198
- R v Edwards [1998] 2 VR 354; 94 A Crim R 204