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Court of Criminal Appeal 8 September 2017

MAC v R

[2017] NSWCCA 219

DrugsPublic order & justice offences
CRIME APPLICATION FOR LEAVE TO APPEAL INTERLOCUTORY APPLICATION

Citation: MAC v R [2017] NSWCCA 219
Court: Court of Criminal Appeal, New South Wales
Date: 8 September 2017
Judges: Simpson JA (with Johnson J and Fagan J agreeing)

Background

The applicant was observed by Australian Federal Police (AFP) officers collecting two bags from a shipping container. Unknown to him, the bags had already been intercepted and their cocaine contents replaced with harmless substances. AFP officers invited him to attend their offices for an interview that same day, telling him he was not under arrest.

Shortly after he arrived at AFP offices, the Australian Crime Commission (ACC) issued a summons requiring him to attend a compulsory examination that same night concerning serious drug offences. ACC examinations are confidential, and it is a criminal offence to refuse to answer questions at one. Critically, however, evidence given at an ACC examination cannot be used directly against an examinee in criminal proceedings, provided the examinee first claims privilege against self-incrimination before answering. AFP officers who were actively involved in the investigation were permitted to watch the examination live via a stream into an ante-room.

Immediately after the examination, the applicant was arrested and charged with attempting to possess a border controlled drug (cocaine) in a commercial quantity. Information he disclosed during the examination led AFP officers to obtain further evidence, described throughout the proceedings as "derivative evidence." Two separate District Court judges had already refused, first, an application to exclude that derivative evidence and, second, an application for a permanent stay of the prosecution. The applicant sought leave to appeal the refusal of the permanent stay to the Court of Criminal Appeal.

  • Whether the primary judge (Woodburne DCJ) had prejudged the application for a permanent stay by relying too heavily on the earlier findings of Charteris DCJ.
  • Whether the proceedings constituted an abuse of process of a kind that warranted a permanent stay.
  • Whether the practical denial of the applicant's right to legal advice before the examination justified a permanent stay.
  • Whether the abrogation of the applicant's common law privilege against self-incrimination under s 30 of the Australian Crime Commission Act 2002 (Cth) could itself ground a permanent stay.
  • Whether the ACC's departure from its usual three-day notice practice constituted misconduct relevant to the stay application.
  • Whether AFP investigators having access to the examination transcript caused irredeemable prejudice that justified a permanent stay.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on all grounds, with Simpson JA delivering the leading judgment and Johnson J and Fagan J agreeing.

On the question of prejudgment, Simpson JA found that Woodburne DCJ had not improperly adopted the earlier findings of Charteris DCJ without independent consideration. The earlier factual findings about AFP impropriety, including that officers had acted "deliberately" and had obtained an "extraordinary advantage," were well-established and there was no error in the second judge building upon them.

On the abuse of process ground, Simpson JA distinguished the leading High Court authorities (Jago and Moti) and concluded that the misconduct, although serious, did not reach the threshold required for a permanent stay. The Court acknowledged that one consideration raised by Woodburne DCJ (that the derivative evidence could potentially be excluded at trial) may have been legally irrelevant, but found that this error did not affect the outcome of the application. The abrogation of the privilege against self-incrimination by statute was a matter Parliament had specifically authorised, and could not, without more, support a permanent stay.

On the question of prejudice flowing from AFP officers having seen the examination transcript, Simpson JA drew on the High Court's approach in Lee v The Queen (2014). That case had involved a similar problem and yet the High Court had ordered a new trial rather than a permanent stay, accepting that a "clean" prosecution team could be engaged for trial. The same reasoning applied here. Steps had already been taken to quarantine the tainted information from those who would conduct the trial, and the Court found no irredeemable prejudice.

Orders Made

• The appeal was dismissed

Key Takeaways

  • Serious and deliberate misconduct by investigating police during an ACC examination does not automatically justify a permanent stay of criminal proceedings; the applicant must demonstrate irremediable prejudice or a sufficiently fundamental abuse of process.
  • Statutory abrogation of the privilege against self-incrimination, as authorised by s 30 of the Australian Crime Commission Act 2002, does not of itself give rise to a permanent stay, even where the practical effect was that an accused was denied an opportunity to seek legal advice before being compelled to answer questions.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the approach taken by the High Court in Lee v The Queen (2014) is directly applicable: where investigating officers have improperly accessed compulsory examination evidence, the appropriate remedy may be engagement of a separate prosecution team rather than a permanent stay.
  • A ground of appeal based on conduct not raised before the primary judge (here, the ACC's departure from its three-day notice practice) will generally not succeed on appeal, as the judge below cannot be faulted for failing to consider a matter that was never put to her.
  • The threshold for a permanent stay remains a high one: courts will consider whether procedural remedies short of a stay, including exclusion of evidence at trial or the use of a clean prosecution team, are capable of addressing any unfairness.

Legislation and Cases Referenced

Legislation
- Australian Crime Commission Act 2002 (Cth), ss 7B, 7C, 24A, 25A, 28, 30
- Criminal Code (Cth), ss 11.1(1), 307.5(1)
- Evidence Act 1995 (NSW), ss 138, 139
- Criminal Procedure Act 1986 (NSW), ss 130A, 139
- Criminal Appeal Act 2012 (NSW), s 5F
- Crimes Act 1914 (Cth), s 23L, Pt 1C
- Criminal Assets Recovery Act 1990 (NSW)

Cases
- X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29
- Lee v NSW Crime Commission (2013) 251 CLR 196; [2013] HCA 39
- Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20
- Jago v The District Court of NSW (1989) 168 CLR 23; [1989] HCA 46
- Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50
- Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66
- Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5
- R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76
- X7 v R (2014) 292 FLR 57; [2014] NSWCCA 273
- R v Independent Broad-based Anti-corruption Commissioner (2016) 256 CLR 459; [2016] HCA 8
- Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63
- Hammond v Commonwealth (1982) 152 CLR 63; [1982] HCA 42
- DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63