Citation: R v Seller; R v McCarthy (No 3) [2014] NSWSC 1290
Court: Supreme Court of New South Wales
Date: 19 September 2014
Judge(s): Button J
Background
Two accused, a solicitor and an accountant, faced a joint trial on charges of conspiring to defraud the Commonwealth and conspiring to dishonestly influence a Commonwealth public official. The allegations centred on a series of investment schemes purportedly connected to whisky production in Scotland, which were said to have been used to obtain unlawful tax deductions by misleading the Australian Taxation Office.
Both accused had been compulsorily examined by the Australian Crime Commission (ACC) in 2007 and had produced documents to the ACC under compulsion. Transcripts and related materials from those examinations were subsequently disseminated by the ACC to the Commonwealth Director of Public Prosecutions (CDPP). It was agreed between the parties that this dissemination was unlawful under s 25A(9) of the Australian Crime Commission Act 2002 (Cth).
A key prosecution witness, a principal financial investigator, had been provided with those compulsorily acquired materials. His proposed evidence, including expert opinion reflected in several witness statements, was found to be based to some degree on that material. The accused filed notices of motion seeking, among other things, to exclude the witness entirely, to disqualify the current Crown legal team, and to permanently stay the proceedings.
Legal Issues
- Whether the prosecution witness should be prohibited from giving evidence, given that his statements were founded to some degree on compulsorily acquired material
- Whether the current Crown legal team, having conferred with that witness, should be disqualified from the proceedings
- Whether all persons who had accessed the compulsorily acquired material should be excluded from assisting or giving evidence in the trial
- Whether the proceedings should be permanently stayed as a consequence of the unlawful dissemination of compulsorily acquired material
Decision
Button J granted a limited form of the first order, prohibiting the witness from giving evidence in accordance with his four statements specifically, on the basis that those statements were tainted by the compulsorily acquired material. This was a targeted remedy directed at the specific contamination identified, rather than a wholesale exclusion of the witness from the trial in all respects.
The court refused to disqualify the current Crown legal team. No member of that team had directly accessed the compulsorily acquired material, and Button J was not satisfied that their having conferred with the tainted witness was sufficient to require their removal from the proceedings.
On the question of a permanent stay, Button J was not persuaded that the circumstances warranted such a drastic outcome. His Honour distinguished the leading High Court decisions relied upon by the accused. In X7 v Australian Crime Commission, the order made was a prohibition on continuing a compulsory examination, not a stay of criminal proceedings. In Lee v The Queen, the High Court quashed convictions and ordered a new trial rather than terminating the proceedings entirely. Neither case supported the proposition that a permanent stay was the appropriate remedy here, particularly where the current prosecution team had not been directly exposed to the tainted material.
Button J also noted that the compulsory examinations had taken place before charges were laid, which distinguished the circumstances from those in X7 and Lee. A permanent stay, the court observed, is a remedy of last resort, as confirmed by the Court of Criminal Appeal in TS v R [2014]. Nothing in the facts of this case satisfied Button J that the proceedings must be brought to an end.
Orders Made
- The prosecution witness is prohibited from giving evidence in the trial in accordance with his three statements dated 3 November 2009 and his statement dated 30 June 2010.
- All other orders sought in the further amended notices of motion were dismissed.
Key Takeaways
- A permanent stay of criminal proceedings is a remedy of last resort and will not be granted merely because compulsorily acquired material was unlawfully disseminated to a prosecution witness, where the contamination can be addressed by more targeted relief.
- The Supreme Court drew a careful distinction between the High Court decisions in X7 v Australian Crime Commission (which prohibited continuation of a compulsory examination) and Lee v The Queen (which ordered a retrial), finding neither authority compelled a permanent stay in these circumstances.
- Where a prosecution witness's evidence is founded to a degree on compulsorily acquired material, exclusion of that specific tainted evidence, rather than exclusion of the witness entirely or a stay of proceedings, may represent the proportionate response.
- The absence of direct access to compulsorily acquired material by the current Crown legal team was a significant factor weighing against disqualification of those lawyers from the proceedings.
- Under s 25A(9) of the Australian Crime Commission Act 2002 (Cth), examiners are required to direct against publication of examination material where failure to do so might prejudice a fair trial; a breach of that obligation does not automatically invalidate the subsequent prosecution.
Legislation and Cases Referenced
Legislation:
- Australian Crime Commission Act 2002 (Cth), s 25A(9)
- Crimes Act 1914 (Cth), ss 29D and 86(2)
- Criminal Code Act 1995 (Cth), s 135.4(7)
- Criminal Assets Recovery Act 1990 (NSW), s 13(9)
- Evidence Act 1995 (NSW), ss 50, 79 and 138
Cases:
- X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92
- Lee v The Queen [2014] HCA 20; 88 ALJR 656
- Lee v NSW Crime Commission [2013] HCA 39; 87 ALJR
- R v Seller; R v McCarthy [2013] NSWCCA 42; 273 FLR 155
- R v Seller; R v McCarthy [2012] NSWSC 934; (2012) 269 FLR 125
- Seller v The Queen; McCarthy v The Queen [2013] HCA Trans 204 (6 September 2013)
- TS v R [2014] NSWCCA 174