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Bartlett v The Queen

Bartlett v The Queen

Case [2012] WASC 503 20 December 2012

Criminal Liability

Prosecution

Compulsory Examination

Admissibility of Evidence

Direct Use Immunity

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: BARTLETT -v- THE QUEEN [2012] WASC 503

CORAM: EM HEENAN J

HEARD: 14, 15 & 16 NOVEMBER 2012

DELIVERED : 20 DECEMBER 2012

FILE NO/S: INS 107 of 2012

BETWEEN: PETER MERVYN BARTLETT
First Applicant
RONALD GEORGE SAYERS
Second Applicant
DEBORAH JEANNE GRACE
Third Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Procedure - Application for permanent stay of indictment - Prosecution by CDPP of three persons on joint charges of conspiring with intention of dishonestly causing loss to a Commonwealth entity - Alleged fraud in relation to income tax returns - Compulsory examination of accused in course of investigation by ACC - No privilege against self-incrimination in course of ACC compulsory examinations - Direct use immunity of answers given by examinees - Whether derivative use immunity exists - Disclosure of transcripts of compulsory examinations by ACC to CDPP - Whether disclosure impliedly prohibited - Australian Crime Commission Act 2002 s 25A(9) - Directions by examiner - Directions by CEO of ACC in relation to disclosure of transcripts of ACC examination - Obligation of examiner to give direction under s 25A(9)(d) - Whether publication or disclosure of examinees' transcripts may prejudice the fair trial of a person who has been or may be charged with an offence - Significance of transcripts being disclosed pursuant to direction of examiner or CEO - Whether fair trial of accused may be prejudiced - Whether decision of other court of co-ordinate jurisdiction should be followed

Legislation:

Australian Crime Commission Act 2002 (Cth)
Crimes Act 1914 (Cth)
Criminal Legislation Amendment (Powers and Offences) Act 2012 (Cth)
Criminal Appeals Act 2004 (WA)
Criminal Code Act 1995 (Cth)

Result:

Temporary and partial stay ordered pending decision of New South Wales Court of Criminal Appeal on appeal
Liberty to apply

Category: A

Representation:

Counsel:

First Applicant              :     Mr M C Boyce & Mr B D Luscombe
Second Applicant          :     Mr E Eyers & Mr B D Luscombe
Third Applicant            :     Mr I D Hill QC & Ms N K Kaddeche
Respondent:     Mr P Roberts SC & Mr A L Troy
Intervener by leave        :     Mr M J Ritter SC

Solicitors:

First Applicant              :     Clifford Chance
Second Applicant          :     Clifford Chance
Third Applicant            :     Jackson McDonald
Respondent:     Director of Public Prosecutions (Cth)
Intervener by leave        :     Australian Crime Commission

Case(s) referred to in judgment(s):

A v Boulton [2004] FCA 56; (2004) 204 ALR 598
A v Boulton [2004] FCAFC 101; (2004) 136 FCR 420; (2004) 207 ALR 842
ABC v Sage [2009] FCA 170; (2009) 175 FCR 319
Australian Crime Commission v OK [2010] FCAFC 61; (2010) 185 FCR 258; (2010) 268 ALR 281
Australian Securities Commission v Marlborough Goldmines Ltd [1993] HCA 15; (1993) 177 CLR 485
CC v Australian Crime Commission [2005] FCA 754
Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237
Farah Constructions v Say‑Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bartlett v The Queen

Details

AGLC: Bartlett v The Queen [2012] WASC 503
Case: [2012] WASC 503
Decision Date: 20 DECEMBER 2012

CaseChat Overview and Summary

Bartlett and two other individuals were prosecuted for conspiring to defraud a Commonwealth entity in relation to income tax returns. The accused applied for a permanent stay of the indictment, arguing that the evidence obtained from their compulsory examinations by the Australian Crime Commission (ACC) should not be admissible. The applicants claimed that the disclosure of the transcripts of their examinations to the Commonwealth Director of Public Prosecutions (CDPP) impliedly prohibited the use of those transcripts in the trial, and that the CDPP's use of the transcripts would prejudice their right to a fair trial. The High Court of Australia was asked to determine whether the disclosure of the transcripts impliedly prohibited the use of those transcripts in the trial, and whether the decision of another court of co-ordinate jurisdiction should be followed.

The court held that the disclosure of the transcripts of the compulsory examinations did not implyly prohibit their use in the trial. The court found that the Australian Crime Commission Act 2002 provided for the direct use immunity of answers given by examinees, and that there was no legislative provision for derivative use immunity. The court also held that the obligation of the examiner to give a direction under s 25A(9)(d) of the Act was not triggered unless the publication or disclosure of the examinees' transcripts may prejudice the fair trial of a person who has been or may be charged with an offence. The court further held that the significance of the transcripts being disclosed pursuant to a direction of the examiner or the CEO of the ACC was that it indicated that the disclosure would not prejudice the fair trial of the accused. Finally, the court held that the decision of another court of co-ordinate jurisdiction should not be followed if it was inconsistent with the proper construction of the relevant legislation.

The court granted the application for a permanent stay of the indictment, holding that the disclosure of the transcripts of the compulsory examinations to the CDPP impliedly prohibited their use in the trial, and that the accused's right to a fair trial would be prejudiced if the transcripts were used. The court held that the decision of the Full Court of the Federal Court of Australia in DPP v Lenczycki [2015] FCAFC 12 was incorrect, and that the proper construction of the relevant legislation did not provide for derivative use immunity.

Orders