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6
Court of Criminal Appeal 16 December 2016

Macdonald v R; Maitland v R

[2016] NSWCCA 306

Also reported as (2016) 93 NSWLR 736
Public order & justice offences
CRIMINAL LAW APPEAL CRIMINAL PROCEDURE PRINCIPLE OF LEGALITY APPEAL

Citation: Macdonald v R; Maitland v R [2016] NSWCCA 306
Court: NSW Court of Criminal Appeal
Date: 16 December 2016
Judges: Bathurst CJ; R A Hulme J; Bellew J (unanimous)

Background

The Independent Commission Against Corruption (ICAC) conducted a public inquiry into the circumstances surrounding the grant of a mining exploration licence by a former State Minister (the first applicant) to a company associated with the second applicant. Both applicants were examined by ICAC and gave evidence under objection pursuant to s 37 of the Independent Commission Against Corruption Act 1988 (NSW) (the ICAC Act). Under s 37(3), evidence given at a compulsory examination or public inquiry over objection is not admissible against the person in civil or criminal proceedings, subject to limited exceptions.

Following the inquiry, transcripts of the public examination were published on ICAC's website. ICAC's 2013 report recommended that the DPP consider whether to prosecute the applicants. Junior Crown counsel and a DPP solicitor both downloaded and read portions of the compelled evidence. Separate advices were later provided to the Director of Public Prosecutions (DPP) that incorporated extracts from the applicants' compulsory evidence, and the first applicant was subsequently charged with two counts of wilful misconduct in public office. The second applicant was charged with two counts of aiding and abetting those offences.

The applicants sought a temporary stay of proceedings until those prosecution team members who had accessed the compelled evidence were removed from the case. The primary judge refused the stay, and the applicants appealed to the Court of Criminal Appeal.

  • Whether the ICAC Act, properly construed, abrogates the accusatorial principle so as to permit compelled evidence obtained from a person in a public examination (before any charge is laid) to be made available to the prosecution.
  • Whether the primary judge erred in finding that the written advices provided to the DPP were not prepared with respect to the charges then before the court (the par [84] finding).
  • Whether the primary judge erred in finding that prosecution team members had put the compelled evidence out of their minds to the extent they were able (the par [172] finding).
  • Whether a temporary stay of proceedings should have been ordered.

Decision

Abrogation of the accusatorial principle

The Court held that the ICAC Act, by necessary intendment, abrogates the accusatorial principle at least in the circumstances of public examinations conducted before the examinee is charged. Once a public inquiry is ordered, the answers given become part of the public domain unless ICAC exercises its powers under s 31(9) (to hold part of the inquiry in private) or s 112 (to restrict publication). Neither applicant challenged the public conduct of the hearings nor sought a direction under s 112.

The Court noted that s 37 renders compelled answers inadmissible but does not prohibit the prosecution from making use of such evidence in other ways, such as directing further investigations. Section 14 of the ICAC Act, which lists ICAC's functions including gathering evidence admissible in prosecutions, does not carry a negative implication that inadmissible material may not be supplied to the DPP. Further, the protection conferred by s 37 does not constitute a "privilege" within the meaning of s 15A(6) of the Director of Public Prosecutions Act 1986 (NSW). The statutory protections in ss 18 and 112 replace, rather than supplement, the common law accusatorial safeguards in this context.

The two factual findings challenged on appeal

The Court rejected both challenges. The primary judge's par [84] finding, that the advices were not prepared in respect of the current charges, was explicable as a reference to the DPP not having used the compelled evidence when deciding whether to press the misconduct charges (as distinct from potential charges under s 87 of the ICAC Act). No error vitiating the exercise of discretion was established. As to the par [172] finding, the primary judge had expressly acknowledged the possibility that the compelled evidence could subconsciously influence the prosecution team members, and had made a nuanced finding accordingly. The Court found no error in that approach.

Temporary stay

On the question of a temporary stay (discussed by the Court on an obiter basis given the factual findings), the Court noted the well-established inherent power to stay proceedings to prevent injustice. However, on the primary judge's unchallenged findings, no unfair consequences would arise from the relevant prosecution team members continuing their roles. The DPP had not used compelled evidence to decide whether to bring the charges; the prosecution team no longer had access to it; and the specific matters counsel and the solicitor recalled were not shown to be significant to either side's case. Accordingly, the Court indicated it would not have ordered a stay in any event.

Orders Made

  • Leave to appeal granted in each case.
  • Appeals dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the ICAC Act abrogates the accusatorial principle, at least where a public examination occurs before the examinee is charged, and that compelled evidence from such an examination may lawfully be provided to the DPP.
  • Section 37 of the ICAC Act operates as an admissibility bar, not a use prohibition: prosecution authorities may receive and act upon compelled evidence (for example, by directing further investigations) even though the evidence itself cannot be tendered against the accused.
  • The statutory protections in ss 18 and 112 of the ICAC Act, which allow ICAC to conduct proceedings in private or restrict publication where the public interest requires it, substitute for the common law accusatorial safeguards in this context; but neither provision is triggered automatically.
  • A temporary stay of criminal proceedings remains available as an exercise of inherent power to prevent unfairness, but the threshold requires demonstrated unfair consequences, not merely the theoretical possibility of subconscious influence on prosecution personnel.
  • No error was established in the primary judge's factual findings that the DPP did not use compelled evidence to decide whether to press the relevant charges, and that the prosecution team had put the compelled evidence from their minds to the extent they were able.

Legislation and Cases Referenced

Legislation
- Independent Commission Against Corruption Act 1988 (NSW), ss 14, 18, 26, 31, 37, 87, 112
- Director of Public Prosecutions Act 1986 (NSW), s 15A
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW)
- Mining Act 1992 (NSW)
- Australian Crime Commission Act 2002 (Cth)
- Crime Commission Act 2012 (NSW)

Cases
- X7 v Australian Crime Commission (2013) 248 CLR 92
- X7 v R [2014] NSWCCA 273
- Lee v NSW Crime Commission (2013) 251 CLR 196
- Lee v The Queen (2014) 253 CLR 455
- R v Independent Broad-Based Anti-Corruption Commission (2016) 256 CLR 459
- Jago v District Court of NSW (1989) 168 CLR 23
- Coco v The Queen (1994) 179 CLR 427
- House v The King (1936) 55 CLR 499
- R v OC (2015) 90 NSWLR 134
- Duncan v ICAC [2016] NSWCA 143
- Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125
- Medaris v Lars Halvorsen & Sons Pty Ltd (1943) 44 SR (NSW) 71
- A v Maughan (2016) 50 WAR 263