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Bartlett v The Queen (No 10)

Bartlett v The Queen (No 10)

Case [2014] WASC 277 30 July 2014

Appeal

Compulsory Examinations

Miscarriage of Justice

Criminal Law

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: BARTLETT -v- THE QUEEN [No 10] [2014] WASC 277

CORAM: EM HEENAN J

HEARD: 28 JULY 2014

DELIVERED : 30 JULY 2014

FILE NO/S: INS 107 of 2012

BETWEEN: PETER MERVYN BARTLETT
First Applicant
RONALD GEORGE SAYERS
Second Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Procedure - Application for partial stay of prosecution - Prosecution by CDPP of two persons on joint charge of conspiracy with intention of dishonestly causing a loss to a Commonwealth entity - Compulsory examination of both accused in the course of investigation by ACC - Compulsory examinations conducted long before accused were charged - No privilege against self-incrimination in the course of the ACC compulsory examinations - Disclosure of transcripts of compulsory examinations by ACC to CDPP - Australian Crime Commission Act 2002 s 25A(9) - Whether disclosure of examinees' transcripts may prejudice the fair trial of a person who may be charged with an offence - Whether the fair trial of the applicants may be prejudiced - Whether disclosure of examinees' transcripts was a departure in a fundamental respect from basic procedure for a criminal trial - Whether the disclosure of transcripts shifted the balance of power in favour of the prosecution, contrary to the purpose of s 25A(9) so that a trial at which the prosecuting counsel and solicitors were aware of the contents of the examinations would be a departure in a fundamental respect by having the prosecution armed with the evidence of the accused person obtained under compulsion - Application for stay of proceedings unless or until new prosecuting counsel and solicitors are engaged to conduct the prosecution who have no knowledge or access to the transcripts of the accused's compulsory examinations - Discretionary factors - Miscarriage of justice

Legislation:

Australian Crime Commission Act 2002 (Cth)
Criminal Assets Recovery Act 1990 (NSW)
New South Wales Crime Commission Act 1985 (Repealed)

Result:

Applications for partial stay of prosecution dismissed.

Category: A

Representation:

Counsel:

First Applicant              :     Mr M C Boyce
Second Applicant          :     Mr D A Staehli SC
Respondent:     Mr P Roberts SC & Mr A L Troy

Solicitors:

First Applicant              :     Clifford Chance
Second Applicant          :     Clifford Chance
Respondent:     Director of Public Prosecutions (Cth)

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
Bartlett v The Queen [2012] WASC 503
Bartlett v The Queen [No 6] [2013] WASC 304
Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486
Hammond v The Commonwealth (1982) 152 CLR 188; (1982) 152 CLR 188
Lee v New South Wales Crime Commission [2013] HCA 39
Lee v The Queen [2013] NSWCCA 68
Lee v The Queen; Lee v The Queen [2014] HCA 20; (2014) 308 ALR 252
QAAB v Australian Crime Commission [2014] FCA 747
R v Bartlett [No 5] [2013] WASC 132
R v Seller; R v McCarthy [2013] NSWCCA 42

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 (No 10)

Details

AGLC: Bartlett v The Queen (No 10) [2014] WASC 277
Case: [2014] WASC 277
Decision Date: 30 JULY 2014

CaseChat Overview and Summary

Bartlett and two other persons applied to the Court for a partial stay of proceedings against them. They were facing charges of conspiracy with the intention of dishonestly causing a loss to a Commonwealth entity. The Commonwealth Director of Public Prosecutions had brought the charges against them. The applicants sought to stay the proceedings on the basis that the Australian Crime Commission had conducted compulsory examinations of them in the course of its investigation, prior to the charges being laid. The Commission had disclosed the transcripts of the examinations to the prosecution. The applicants submitted that this disclosure may prejudice their fair trial. The applicants sought a stay of proceedings unless or until new prosecuting counsel and solicitors were engaged to conduct the prosecution who had no knowledge or access to the transcripts of the accused's compulsory examinations.

The Court had to determine whether the disclosure of the examinees' transcripts may prejudice the fair trial of a person who may be charged with an offence. It also had to decide whether the disclosure of examinees' transcripts was a departure in a fundamental respect from basic procedure for a criminal trial. In addition, the Court had to consider whether the disclosure of transcripts shifted the balance of power in favour of the prosecution, contrary to the purpose of the statute, so that a trial at which the prosecuting counsel and solicitors were aware of the contents of the examinations would be a departure in a fundamental respect by having the prosecution armed with the evidence of the accused person obtained under compulsion. The Court noted that the prosecution was not using the contents of the examinees' statements, but was relying on other evidence. The Court held that the disclosure of the examinees' statements to the prosecution was not a departure in a fundamental respect from basic procedure for a criminal trial. The Court rejected the applicants' submissions that the disclosure of the examinees' statements may prejudice their fair trial. It also held that the disclosure of the examinees' statements did not shift the balance of power in favour of the prosecution, contrary to the purpose of the statute.

The Court dismissed the applicants' application for a partial stay of proceedings. The Court found that the applicants had not established that the disclosure of the examinees' statements to the prosecution was a departure in a fundamental respect from basic procedure for a criminal trial, or that it may prejudice their fair trial. The Court held that the applicants had not demonstrated a miscarriage of justice.

Orders