AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 10 October 2014

Curtis v R

[2014] NSWSC 1392

Fraud & dishonesty

Citation: Curtis v R [2014] NSWSC 1392
Court: Supreme Court of NSW
Date: 10 October 2014
Judge(s): Fullerton J

Background

The accused faced a charge of conspiring to commit insider trading, contrary to the Corporations Act 2001 (Cth). His trial was listed to commence on 17 November 2014 in the Supreme Court.

Before the charge was laid, ASIC had compulsorily examined the accused under s 19(2) of the ASIC Act. A transcript of that examination existed, and members of the prosecution team, including ASIC officers and CDPP counsel, had either directly or derivatively accessed it.

The accused applied for a temporary stay of his trial. He sought an assurance that all prosecution team members who had accessed the examination transcript be removed from any further involvement in his case, arguing that their continued involvement created a real risk of an unfair trial.

Legal Issues

  • Whether provisions of the ASIC Act (particularly ss 18(2), 49, 68, 76 and 79) authorised the CDPP and its counsel to receive and use the accused's compulsory examination transcript in connection with a criminal prosecution on indictment.
  • Whether, even if the ASIC Act authorised such access in principle, the dissemination of the transcript in this case was actually referable to any of those provisions.
  • Whether the principles established by the High Court in Lee v The Queen [2014] HCA 20 applied, such that the prosecution team's access to the transcript risked displacing the fundamental accusatorial balance and producing an unfair trial.
  • Whether the Court should exercise its discretion to grant a temporary stay pending replacement of the prosecution team.

Decision

Issue 1: Whether the ASIC Act authorised prosecution access to the s 19 transcript

Fullerton J accepted the accused's construction of the ASIC Act. The general words of the provisions relied upon by the CDPP did not, on their proper construction, derogate from the fundamental common law principle that the Crown must prove its case without compelled assistance from the accused. Applying the statutory construction principle drawn from Daniels Corporation and Coco v The Queen, the Court held that general statutory language will not be read as displacing fundamental rights and immunities unless the context points irresistibly to that conclusion. The provisions of ss 76 and 79 of the ASIC Act did not meet that stringent test in the context of criminal proceedings prosecuted on indictment.

Issue 2: Whether the dissemination of the transcript was justified in the circumstances

Even setting aside the construction question, Fullerton J found that the CDPP had not sought to explain the circumstances in which the examination transcript was provided to the prosecution team, nor had it advanced any case that it intended to make evidential use of the non-privileged portions of the transcript at trial. The privileged portions could not be used in any event.

Issue 3: Application of Lee v The Queen and risk of unfair trial

The Court was satisfied that the principles in Lee v The Queen were engaged. That High Court decision had held that wrongful release of compulsorily obtained evidence to the prosecution, without legislative authority, produced a miscarriage of justice. Here, the legislative authority was not established, and no legitimate forensic purpose for the dissemination had been demonstrated. Unless the prosecution team was replaced, there was a real risk of an inappropriate displacement of the necessary accusatorial balance, producing an unfair trial.

Issue 4: Scope of the stay

Fullerton J noted that the grant of a temporary stay would not be available to every accused who had undergone a s 19 examination. The stay was warranted here by the specific combination of unexplained dissemination, absence of any stated forensic purpose for access, and the inability to use the privileged portions of the transcript. The Court exercised its discretion to stay the indictment pending replacement of the prosecution team with persons who had no direct or derivative access to the examination transcript.

Orders Made

  • The indictment was temporarily stayed pending:
  • Removal from the prosecution team of any person who had had direct or derivative access to the accused's s 19 examination transcript (including ASIC officers, CDPP officers, and briefed counsel); and
  • Engagement of persons not privy, directly or derivatively, to that examination transcript.

Key Takeaways

  • The Supreme Court held that the general provisions of the ASIC Act relied upon by the CDPP did not, on their proper construction, authorise the prosecution's use of a compulsorily obtained examination transcript in criminal proceedings on indictment, because general statutory words do not displace fundamental accusatorial rights and immunities without clear, irresistible legislative intention.
  • A temporary stay of criminal proceedings may be warranted where prosecution team members have accessed a compulsory examination transcript, the Crown cannot explain the circumstances of that access, and no legitimate forensic purpose for the dissemination is advanced.
  • The High Court's reasoning in Lee v The Queen (2013) extended, in Fullerton J's analysis, to the ASIC Act context: legislative authority for disclosure to the prosecution is necessary to avoid the risk of miscarriage of justice where compelled self-incriminatory material reaches those conducting the trial.
  • Not every accused who has undergone a s 19 ASIC examination will be entitled to a temporary stay; the decision turned on the particular circumstances, including the unexplained dissemination and the absence of any claimed or permissible evidential use.
  • Where an accused elects to rely upon statements in their own examination transcript, no infringement of accusatorial principle arises, and an application for access to the transcript in that scenario remains open to be made to the trial judge.

Legislation and Cases Referenced

Legislation
- Australian Crime Commission Act 2002 (Cth)
- Australian Securities and Investment Commission Act 2001 (Cth)
- Corporations Act 2001 (Cth)
- Crime Commission Act 2012 (NSW)
- Criminal Code (Cth)
- Director of Public Prosecutions Act 1983 (Cth)
- Freedom of Information Act 1982 (Cth)
- Judiciary Act 1903 (Cth)
- Trade Practices Act 1974 (Cth)

Cases
- Bartlett v The Queen (No 10) [2014] WASC 277
- Coco v The Queen (1994) 179 CLR 427
- Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission [2002] HCA 49; 213 CLR 543
- Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; 214 CLR 269
- Lee v The Queen [2014] HCA 20; 308 ALR 252
- Lehman Brothers Holdings Inc v City of Swan [2010] HCA 11; 240 CLR 509
- R v Catena (No 3) 2013 WASC 97
- R v Seller [2013] NSWCCA 42; 273 FLR 155
- R v X [2014] NSWCCA 168
- Rich v Australian Securities and Investments Commission [2004] HCA 42; 220 CLR 129
- Smith v The Queen [2007] WASCA 163; 35 WAR 201; 175 A Crim R 528
- X7 v Australian Crime Commission [2013] HCA 29, (2013) 248 CLR 92