JUDGE:	Hollingworth J
WHERE HELD:	Melbourne
DATE OF HEARING:	25-26, 28-29 August; 1-5, 8-9, 15, 23 September; 30 October; 5-7, 10-14, 17-21, 28 November; 8 December 2014; 12, 16-20, 23-27 February; 18-22, 25-28 May; 1, 4, 9-11 June 2015
DATE OF JUDGMENT:	17 June 2016
CASE MAY BE CITED AS:	CDPP v Brady and Ors
MEDIUM NEUTRAL CITATION:	[2016] VSC 334 (Second revision 14 October 2016)

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CRIMINAL LAW - Persons charged with Commonwealth offences – Bribing foreign public officials – ss 11.5(1) and 70.2(1) Criminal Code Act 1995 (Cth) – Australian Federal Police investigation into alleged offences of foreign bribery committed in Nepal, Indonesia and Malaysia – Persons charged with Victorian offences – False accounting – s 83(1)(a) Crimes Act 1958 (Vic) – AFP investigation into alleged offences of false accounting committed in relation to business activities in Nepal and Malaysia

CRIMINAL LAW – Australian Crime Commission Special Investigation Authorisation and Determination (Financial Crimes) 2008 – Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering) 2010 – Validity of determinations – Meaning of special ACC operation/investigation – Breadth of determinations – Compliance with requirements of s 7C(3) Australian Crime Commission Act 2002 (Cth)

CRIMINAL LAW – ACC coercive examinations – Examinations for the purpose of a special ACC operation/investigation: s 24A – Summoning of persons: s 28 – The examination of suspects – Privacy of examinations: s 25A(3) – Informing witnesses of presence of persons at examination: s 25A(7) – Members of ACC staff: s 4(1)

CRIMINAL LAW – Non-publication directions – Requirements of s 25A(9) – Whether examiner complied with requirements

PRACTICE AND PROCEDURE – Application for permanent stay – Forensic disadvantage – Use of examination material – “Locking in” accused – Locating documents – Obtaining witness statements – Compilation of briefs – Voluntary disclosure – Inability to quarantine ACC material from indirect use – Whether fair trial possible – Whether stay should be granted

CONSPIRACY – General principles – Foreign bribery offence – Co-conspirator’s rule – Availability of substantive offences – Duplicity – Conspiracy between a company and a director – Adequacy of particulars of charge – Criminal Code Act 1995 (Cth) ss 11.5, 70.2.

DISMISSAL IN THE INTERESTS OF JUSTICE – Meaning of interests of justice – Onus of proof – Nature of relief – Whether factors relevant to dismissal must be related to conspiracy charges – Possible alternative charges – Aiding and abetting – Commission by proxy – Territoriality provisions – Whether alternative charges are sufficient and effective – Other relevant considerations - Criminal Code Act 1995 (Cth) ss 11.2, 11.3, 11.5, 70.2, 70.5.

STAY OF PROCEEDINGS – Abuse of process – Right to a fair trial – Deficiencies or malpractice in investigation – Delay – Prejudicial publicity.

APPEARANCES:

Counsel

Solicitors

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 CDirector of Public Prosecutions v Brady

Details

AGLC: CDirector of Public Prosecutions v Brady [2016] VSC 334
Case: [2016] VSC 334
Decision Date: 17 June 2016

CaseChat Overview and Summary

The case of CDirector of Public Prosecutions v Brady involved the Director of Public Prosecutions and the accused, Brady. The dispute was multifaceted, involving charges under both federal and Victorian criminal law, including allegations of bribing foreign public officials and false accounting. The court addressed the validity of certain Australian Crime Commission (ACC) determinations, the propriety of ACC coercive examinations, the application of non-publication directions, and issues related to the fair trial rights of the accused.

The primary legal issues before the court included the validity of ACC determinations and coercive examinations, whether the accused's right to a fair trial had been compromised, and the application of the co-conspirator's rule in conspiracy charges. The court was required to determine whether the ACC determinations complied with statutory requirements and whether the examinations were conducted lawfully. Additionally, the court had to consider whether the accused's right to a fair trial was prejudiced by the use of ACC material, and whether the charges met the necessary particularity.

The court found that the ACC determinations were valid and that the examinations were conducted in accordance with the law. It was held that the accused's right to a fair trial had not been compromised due to adequate safeguards and the absence of prejudice. The court also ruled that the charges were sufficiently particularised under the Criminal Code. The co-conspirator's rule was deemed inapplicable, and the court concluded that the interests of justice warranted dismissal of the conspiracy charges, with potential for alternative charges.

The final orders included the dismissal of conspiracy charges in the interests of justice, with the possibility of alternative charges being pursued. The court also addressed issues of publication and the use of ACC material, affirming that the accused's rights were protected. The ruling was made in a manner that ensured the integrity of the legal process and the rights of the accused.

Orders