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Supreme Court 23 June 2016

R v Macdonald; R v Maitland (No 5)

[2016] NSWSC 865

Public order & justice offences
CRIMINAL LAW APPLICATION FOR STAY OF TRIAL APPLICATION FOR PERMANENT STAY OF TRIAL NO UNLAWFUL PREJUDICE APPLICATION DISMISSED CRIMINAL LAW 248 CLR 92

Citation: R v Macdonald; R v Maitland (No 5) [2016] NSWSC 865
Court: Supreme Court of New South Wales
Date: 23 June 2016
Judge: Adamson J

Background

Two accused faced trial in the Supreme Court on charges arising from findings of corrupt conduct made by the Independent Commission Against Corruption (ICAC). One accused faced two counts of misuse of public office; the other faced two counts of aiding, abetting, counselling and procuring that offence. The charges followed a public ICAC inquiry at which both men had given evidence under compulsion.

Before the trial commenced, the DPP and senior members of the prosecution team had downloaded and read transcripts of the compelled ICAC evidence, which ICAC had posted publicly on its website. The prosecution lawyers read that material for the purpose of advising the DPP whether charges ought to be laid, before any charges were formally brought.

The accused brought notices of motion seeking either a permanent stay of their criminal proceedings or, alternatively, a temporary stay until anyone who had read their compelled evidence was removed from the prosecution. They also ultimately sought exclusion of evidence gathered by investigators who had had access to the compelled material.

  • Whether the DPP's access to compelled ICAC evidence, before charges were laid, infringed the accusatorial "companion principle" (the principle that the prosecution cannot compel an accused to assist in discharging its burden of proof)
  • Whether the prosecution's use of that compelled evidence to formulate charges and guide investigations gave rise to grounds for a permanent stay
  • Whether a temporary stay or exclusion of witness evidence was warranted to remedy any resulting unfairness
  • Whether the Independent Commission Against Corruption Act 1988 (NSW) (the ICAC Act) authorised or required disclosure of compelled evidence to the DPP, and whether it abrogated the privilege against self-incrimination or affected the companion principle in that context

Decision

Adamson J dismissed both notices of motion. Her Honour found that the relevant provisions of the ICAC Act authorised, and in relevant respects required, ICAC to furnish compelled evidence to the DPP. The disclosure was consistent with ICAC's statutory functions of investigating, exposing and preventing corruption, and with its obligation to communicate investigation results to appropriate authorities. Parliament had clearly expressed an intention that compelled evidence gathered at public hearings could be disclosed to and used by the prosecution, at least where that evidence had already entered the public domain.

Her Honour carefully analysed the companion principle as explained in X7 v Australian Crime Commission (2013) 248 CLR 92, Lee v The Queen (2014) 253 CLR 455 and R v OC (Oliver Curtis) [2015] NSWCCA 212. The court found that the companion principle was not engaged at the time the compelled evidence was given, because no charges had yet been laid against either accused. No evidence was compelled from either man after charges were brought. The court held that the potential prejudice the applicants identified was precisely the kind contemplated and permitted by the statute, and therefore did not constitute unlawful prejudice warranting a stay.

On the facts, Adamson J was not satisfied that the prosecution lawyers' exposure to the compelled evidence had materially shaped the prosecution case. The lawyers who had read the transcripts did so only to advise on whether charges should be laid. They were instructed to put the compelled evidence out of their minds when conducting the prosecution, and the court accepted, on the evidence including cross-examination, that they had done so to the extent they were able. For each aspect of the investigation or advice said to have been prompted by compelled evidence, an independent and at least equally plausible explanation was established.

The court declined to grant a permanent stay, which is reserved for exceptional circumstances, or a temporary stay, finding that no unlawful prejudice had been demonstrated. The exclusion of witness evidence gathered by those who had seen the compelled material was also refused.

Orders Made

  • Notice of motion filed on behalf of the first accused (9 May 2016) dismissed.
  • Notice of motion filed on behalf of the second accused (16 May 2016) dismissed.

Key Takeaways

  • The companion principle (that the prosecution cannot compel an accused to assist in proving its case) operates from the point charges are laid; it does not extend retrospectively to evidence compelled before any charges were brought.
  • Where Parliament has clearly expressed an intention in legislation such as the ICAC Act, that legislation may abrogate or modify the privilege against self-incrimination and affect the companion principle, even where those are fundamental common law protections.
  • Compelled evidence given at a public ICAC inquiry, while inadmissible at trial, may lawfully be disclosed to and used by the DPP for the purposes of deciding whether to prosecute, at least where the evidence was given or tendered publicly and was made available on ICAC's public website.
  • A permanent stay of criminal proceedings requires exceptional circumstances; where the potential unfairness is contemplated and permitted by the governing statute, no unlawful prejudice arises and a stay will not be granted.
  • In dismissing the motions, the Supreme Court confirmed that requiring the prosecution to act as though publicly available compelled evidence does not exist would be artificial, and that the legislative scheme did not demand that outcome.

Legislation and Cases Referenced

Legislation:
- Independent Commission Against Corruption Act 1988 (NSW), especially ss 2A, 8, 9, 13, 14, 16, 17, 18, 21, 22, 26, 30, 31, 35, 37, 38, 53, 73, 74, 74A, 74B, 87, 111, 112
- Australian Crime Commission Act 2002 (Cth), ss 25A, 28, 30
- Australian Securities and Investments Commission Act 2001 (Cth), ss 13, 17, 18, 19, 49, 63, 64, 68, 76
- Crime Commission Act 2012 (NSW), s 80
- Criminal Procedure Act 1986 (NSW), ss 3, 14, 14A, 128, 173
- Director of Public Prosecutions Act 1986 (NSW), ss 7, 15A
- New South Wales Crime Commission Act 1985 (NSW), ss 13, 16
- Supreme Court Act 1970 (NSW), s 69

Key Cases:
- X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92
- Lee v The Queen [2014] HCA 20; 253 CLR 455
- R v OC (Oliver Curtis) [2015] NSWCCA 212; 90 NSWLR 134
- Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196
- D'Amore v Independent Commission Against Corruption [2013] NSWCA 187
- Jago v The District Court of New South Wales (1989) 198 CLR 23 (permanent stay principles)
- Lazarus v Director of Public Prosecutions [2015] NSWCA 47
- R v Independent Broad-based Anti-Corruption Commissioner [2016] HCA 8; 90 ALJR 433
- Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477
- Hammond v The Commonwealth (1982) 152 CLR 188