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Court of Criminal Appeal 13 August 2015

REGINA v OC (Oliver Curtis)

[2015] NSWCCA 212

Also reported as (2015) 90 NSWLR 134
Fraud & dishonesty
STATUTORY INTERPRETATION PRINCIPLES LEGAL ASSUMPTIONS NON ALTERATION OF COMMON LAW DOCTRINES PRINCIPLE OF LEGALITY

Citation: Regina v OC (Oliver Curtis) [2015] NSWCCA 212
Court: NSW Court of Criminal Appeal
Date: 13 August 2015
Judges: Bathurst CJ; R A Hulme J; Bellew J

Background

The respondent was charged in February 2014 with conspiracy to commit insider trading under the Corporations Act 2001 (Cth). Before the charge was laid, in March 2009, ASIC had compulsorily examined him under s 19 of the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act) in connection with an investigation into suspected contraventions of the relevant legislation. The examination covered matters directly relevant to the subsequent charge, including matters necessary to prove it and matters relevant to the respondent's defence. Throughout that examination, the respondent answered questions under a claim of privilege against self-incrimination.

A transcript of the examination, or a summary of it, was subsequently provided to or read by officers of the Commonwealth Director of Public Prosecutions (CDPP) and prosecuting counsel. The respondent applied to the Supreme Court for a temporary stay of the criminal proceedings against him.

The primary judge granted that stay, requiring the removal from the prosecution team of any person who had accessed the examination transcript, directly or derivatively, and the substitution of a fresh team with no such exposure. The CDPP appealed against that order. The central question on appeal was whether the ASIC Act permitted the examination transcript to be provided to, and used by, those responsible for prosecuting the respondent.

  • Whether the ASIC Act, properly construed, authorised the provision of a compulsory examination transcript under s 19 to persons involved in the prosecution of the examinee.
  • Whether such provision fundamentally altered the accusatorial process, and if so, whether the legislation clearly enough authorised that alteration.
  • Whether the principle of legality, which requires clear statutory language before fundamental common law rights are displaced, prevented that authorisation from being implied.
  • Whether the primary judge's grant of a temporary stay was a lawful exercise of discretion once the question of statutory construction was resolved.

Decision

Bathurst CJ, with R A Hulme J and Bellew J agreeing, allowed the appeal and set aside the stay. The Chief Justice began from the established principle that the accusatorial system of criminal justice requires the prosecution to discharge its onus of proof without compelling the accused to assist. That principle persists even where the privilege against self-incrimination has been partly or wholly abrogated by statute. Providing an examination transcript to those responsible for the prosecution fundamentally alters this accusatorial process, and such a fundamental alteration can only be achieved by clear statutory words or necessary intendment.

The Court applied the principle of legality, which requires that statutory provisions affecting fundamental rights be construed, as far as the language permits, to minimise displacement of those rights. General words alone will rarely suffice. However, the principle of legality may be displaced by necessary implication where, without that implication, legislation would become inoperative or meaningless, or its objects would be frustrated. A merely desirable implication is not sufficient.

Applying those principles to the ASIC Act, the Court held that the Act, read as a whole, discloses by necessary intendment that prosecutors may be given access to the examination transcript. Section 76 makes examination statements admissible in criminal proceedings, subject only to the protection against direct use of self-incriminating material in s 68(3). The admissibility question arises at the point of tender, not earlier. Sections 17, 18, 27, and 49 together reveal that ASIC's investigative and prosecutorial roles are intertwined, and that the legislature intended transcripts could be used to formulate and prosecute charges, subject to the s 68 protections.

The legislative history reinforced that conclusion. Since colonial-era companies legislation, the statute book has provided for executive compulsory examinations outside court supervision, with transcripts available for use in proceedings, subject to whatever self-incrimination protections the legislature chose to confer. Against that background, the primary judge erred in exercising a "residual discretion" to deprive the prosecution of access to the transcript once the statutory construction question was resolved in the prosecution's favour.

Orders Made

  • Appeal allowed.
  • The stay ordered by the primary judge on 10 October 2014 set aside.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the fundamental accusatorial principle requiring the prosecution to discharge its onus without compelling the accused to assist remains operative even where the privilege against self-incrimination has been abrogated by statute.
  • Providing a compulsory examination transcript to a prosecution team constitutes a fundamental alteration of the accusatorial process, meaning clear statutory words or necessary intendment are required before such provision is authorised.
  • Under the ASIC Act, the admissibility protections in s 68 operate at the point of tender, not at the earlier stage of access; this structural feature, combined with ss 17, 18, 27, and 49, disclosed by necessary intendment that prosecutors may access and use examination transcripts to formulate and prosecute charges.
  • The principle of legality can be displaced by necessary implication, but only where the implication is genuinely necessary to prevent legislation becoming inoperative or its objects being frustrated. A merely desirable implication does not meet that threshold.
  • Once statutory construction established that the prosecution was entitled to the transcript, no residual judicial discretion remained to effectively deprive the prosecution of access to it by way of a stay.

Legislation and Cases Referenced

Legislation
- Australian Securities and Investments Commission Act 2001 (Cth), ss 13, 17, 18, 19, 27, 49, 68, 76
- Corporations Act 2001 (Cth), ss 1043A(1)(d), 1311(1)
- Criminal Appeal Act 1912 (NSW), s 5F(2)
- Companies Act 1874 (NSW); Companies Act 1961 (NSW) (and various predecessor and related legislation)

Key Cases
- X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92
- Lee v R [2014] HCA 20; 308 ALR 252
- Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196
- Coco v The Queen (1993) 179 CLR 427
- Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; 213 CLR 543
- Johns v Australian Securities Commission [1993] HCA 56; 178 CLR 408
- Bropho v State of Western Australia [1990] HCA 24; 171 CLR 1
- Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; 221 CLR 309
- Momcilovic v The Queen [2011] HCA 34; 245 CLR 1
- Potter v Minehan [1908] HCA 63; 7 CLR 277
- Mortimer v Brown [1970] HCA 4; 122 CLR 493
- Hamilton v Oades [1989] HCA 21; 166 CLR 486