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MAC v The Queen

MAC v The Queen

Case [2017] NSWCCA 219 8 September 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: MAC v R [2017] NSWCCA 219
Hearing dates: 17 February 2017
Date of orders: 27 March 2017
Decision date: 08 September 2017
Before: Simpson JA at [1]; Johnson J at [132]; Fagan J at [133]
Decision:
(1) Leave to appeal granted;
(2) Appeal dismissed.
Catchwords: CRIME – application for leave to appeal – interlocutory application – application for a permanent stay of proceedings – where applicant was compulsorily examined at the Australian Crime Commission before being charged – where impropriety on behalf of investigating police officers – whether irremediable prejudice occasioned to the applicant – whether impropriety rendered the proceedings an abuse of process
Legislation Cited: Australian Crime Commission Act 2002 (Cth), ss 7B, 7C, 24A, 25A, 28, 30
Crimes Act 1914 (Cth), s 23L, Pt 1C
Criminal Appeal Act 2012 (NSW), s 5F
Criminal Assets Recovery Act 1990 (NSW)
Criminal Code (Cth), ss 11.1(1), 307.5(1)
Criminal Procedure Act 1986 (NSW), ss 130A, 139
Customs Act 1901 (Cth), s 233BABA
Evidence Act 1995 (NSW), ss 138, 139
New South Wales Crime Commission Act 1985 (NSW)
Cases Cited: Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5
DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63
Hammond v Commonwealth (1982) 152 CLR 63; [1982] HCA 42
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jago v The District Court of NSW (1989) 168 CLR 23; [1989] HCA 46
Lee v NSW Crime Commission (2013) 251 CLR 196; [2013] HCA 39
Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20
Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50
Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63
R v Bailey (1988) 36 A Crim R 30
R v Independent Broad-based Anti-corruption Commissioner (2016) 256 CLR 459; [2016] HCA 8
R v Powch (1988) 14 NSWLR 136
R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76
R v X [2014] NSWCCA 168
Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66
Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42
Steffan v R (1993) 30 NSWLR 633
X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29
X7 v R (2014) 292 FLR 57; [2014] NSWCCA 273
Category: Principal judgment
Parties: MAC (Applicant)
Regina (Respondent)
Representation:
Counsel:
M Thangaraj SC (Applicant)
P McDonald SC (Respondent)
Solicitors:
Elie Rahme and Associates Pty Ltd (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2010/315977
Publication restriction: Non-publication of any information or material that may lead to the identification of the applicant (Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7)
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

02 December 2016

Before:

Woodburne DCJ

File Number(s):

2010/315977

HEADNOTE

[This headnote is not to…

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 MAC v The Queen

Details

AGLC: MAC v The Queen [2017] NSWCCA 219
Case: [2017] NSWCCA 219
Decision Date: 08 September 2017

CaseChat Overview and Summary

In the case of MAC v The Queen, the applicant sought leave to appeal against an interlocutory decision in which the application for a permanent stay of proceedings was dismissed. The applicant, who had been charged with various criminal offences, argued that the proceedings should be permanently stayed due to impropriety on the part of the investigating police officers. The applicant claimed that he had been compulsorily examined at the Australian Crime Commission prior to being charged and that this had caused him irreparable prejudice. The primary legal issues before the court were whether the alleged impropriety of the police officers rendered the proceedings an abuse of process and whether the applicant had suffered irreparable prejudice as a result of the examination.

The court considered the principles surrounding abuse of process and the requirements for a permanent stay of proceedings. It was noted that the alleged impropriety must have been so serious as to render the proceedings an abuse of process. The court found that the applicant had not demonstrated that the alleged impropriety was of such a nature that it would amount to an abuse of process. Furthermore, the court held that the applicant had not shown that he had suffered irreparable prejudice as a result of being compulsorily examined at the Australian Crime Commission. The court emphasised the importance of ensuring that the process of investigation and prosecution was not subverted by claims of impropriety, and that the alleged impropriety must be of a serious nature to warrant a permanent stay of proceedings.

As a result of the court's reasoning, the application for leave to appeal was dismissed, and the interlocutory decision dismissing the application for a permanent stay of proceedings was upheld. The court held that the alleged impropriety on the part of the investigating police officers did not render the proceedings an abuse of process, and that the applicant had not demonstrated that he had suffered irreparable prejudice as a result of being examined at the Australian Crime Commission. The court's decision underscores the high threshold that must be met for a permanent stay of proceedings to be granted, and the importance of ensuring that the criminal justice system is not undermined by unsubstantiated claims of impropriety.

No orders were made as to costs.

Orders