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Bartlett v The Queen [No 6] [

Bartlett v The Queen [No 6] [

Case [2013] WASC 304 15 August 2013

Criminal Liability

Fraud

Judicial Review

Discovery & Disclosure

Compulsory Examination

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: BARTLETT -v- THE QUEEN [No 6] [2013] WASC 304

CORAM: EM HEENAN J

HEARD: 24, 27 & 28 JUNE 2013

DELIVERED : 15 AUGUST 2013

FILE NO/S: INS 107 of 2012

BETWEEN: PETER MERVYN BARTLETT
First Applicant
RONALD GEORGE SAYERS
Second Applicant
DEBORAH JEANNE GRACE
Third Applicant
GREGORY JOHN DUNN
First Accused
AND
THE QUEEN
Respondent
AUSTRALIAN CRIME COMMISSION
Intervener By Leave

Catchwords:

Criminal law - Procedure - Application for permanent stay - Prosecution by CDPP of four persons on joint charge of conspiring with the intention of dishonestly causing loss to a Commonwealth entity - Alleged fraud in relation to company minutes and documents - Compulsory examination of three accused in course of investigation by ACC - No privilege against self incrimination in the course of ACC compulsory examinations - Direct use immunity for examinees - 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 ACC examiner should have given a direction under s 25A(9) of the ACC Act that no transcripts or details of the compulsory examinations should be disclosed to the CDPP or to any persons associated with any investigation or prosecution of the applicants - Whether the fair trial of the applicants may be prejudiced - Whether disclosure of the results of the examinations to the CDPP resulted in irremediable prejudice to the applicants such that only a permanent stay of the prosecution against them is sufficient to avoid prejudice to the fairness of the proposed trial

Legislation:

Australian Crime Commission Act 2002 (Cth)
Commonwealth Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)

Result:

Applications for permanent stay of prosecution dismissed

Category: B

Representation:

Counsel:

First Applicant              :     Mr M C Boyce
Second Applicant          :     Mr M C Boyce
Third Applicant            :     Mr I D Hill QC & Ms M K Kaddeche
First Accused                :     No appearance
Respondent:     Mr P Roberts SC & Mr A L Troy
Intervener By Leave      :     Mr M T Ritter SC

Solicitors:

First Applicant              :     Clifford Chance
Second Applicant          :     Clifford Chance
Third Applicant            :     Jackson McDonald
First Accused                :     In person
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
Australian Crime Commission v Bartlett [2013] WASC 108
Bartlett v The Queen [2012] WASC 503
Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237
Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486
Hammond v Commonwealth of Australia [1982] HCA 42; (1982) 152 CLR 188
Jago v District Court of New South Wales (1989) HCA 46; (1989) 168 CLR 23
Lee, Do Young v R and Lee, Seong Won v…

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 6] [

Details

AGLC: Bartlett v The Queen [No 6] [ [2013] WASC 304
Case: [2013] WASC 304
Decision Date: 15 AUGUST 2013

CaseChat Overview and Summary

In Bartlett v The Queen [No 6], the applicants sought a permanent stay of the prosecution against them, alleging that the disclosure of transcripts of their compulsory examinations by the Australian Crime Commission (ACC) to the Commonwealth Director of Public Prosecutions (CDPP) would prejudice their right to a fair trial. The applicants, along with three others, were charged with conspiracy to commit fraud against a Commonwealth entity. The dispute centred on the propriety of the ACC's disclosure of the examination transcripts to the CDPP, which the applicants argued would result in irremediable prejudice, necessitating a permanent stay of the prosecution.

The primary legal issue before the court was whether the disclosure of the examinees' transcripts to the CDPP may prejudice the fair trial of the applicants. This involved an interpretation of section 25A(9) of the Australian Crime Commission Act 2002, which governs the disclosure of information obtained during compulsory examinations. The court needed to determine if the ACC examiner should have directed that no transcripts or details of the compulsory examinations should be disclosed to the CDPP or to any persons associated with the investigation or prosecution of the applicants. Furthermore, the court had to assess whether the disclosure to the CDPP resulted in irremediable prejudice to the applicants, warranting a permanent stay of the prosecution.

The court found that the disclosure of the examination transcripts to the CDPP did not, in itself, prejudice the applicants' right to a fair trial. The applicants had been granted direct use immunity, which protected them from being compelled to testify in the prosecution. The court reasoned that the applicants had not demonstrated that the disclosure resulted in any actual or apprehended prejudice to their right to a fair trial. The applicants had not shown that the disclosure of the transcripts would lead to any disadvantage in their defence, nor had they provided evidence that the content of the transcripts was prejudicial. The court concluded that the applicants' rights were adequately safeguarded by the immunity granted and that the disclosure did not prejudice their right to a fair trial.

The court dismissed the application for a permanent stay of the prosecution. The applicants were ordered to continue with their defence, with the understanding that any further issues regarding the examination transcripts could be addressed during the trial itself. The court emphasised that the applicants' right to a fair trial remained paramount and that any concerns about prejudice could be appropriately managed through the judicial process.

Orders