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Macdonald v The Queen; Maitland v The Queen

Macdonald v The Queen; Maitland v The Queen

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Case Copied 16 December 2016 71 min read

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Macdonald v R; Maitland v R [2016] NSWCCA 306
Hearing dates: 4 November 2016
Date of orders: 16 December 2016
Decision date: 16 December 2016
Before: Bathurst CJ at [1]; R A Hulme J at [143]; Bellew J at [144]
Decision:
Grant the applicants leave to appeal;

Catchwords:
CRIMINAL LAW – appeal – criminal procedure – temporary stay of proceedings

STATUTORY CONSTRUCTION – principle of legality – whether the Independent Commission Against Corruption Act 1988 (NSW) abrogates the accusatorial principle such that compelled evidence given over objection in public hearings before ICAC may be made available to the prosecution prior to charges being laid
CRIMINAL LAW – appeal – whether findings of primary judge available on the evidence
Legislation Cited: Australian Crime Commission Act 2002 (Cth)
Crime Commission Act 2012 (NSW)
Criminal Appeal Act 1912 (NSW)
Director of Public Prosecutions Act 1986 (NSW)
Evidence Act 1995 (NSW)
Independent Commission Against Corruption Act 1988 (NSW)
Mining Act 1992 (NSW)
New South Wales Crime Commission Act 1985 (NSW)
Cases Cited: A v Maughan (2016) 50 WAR 263; [2016] WASCA 128
Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15
Duncan v ICAC [2016] NSWCA 143
Gillett v State of New South Wales [2009] NSWSC 421
Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jago v 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
Medaris v Lars Halvorsen & Sons Pty Ltd (1943) 44 SR (NSW) 71
R v Independent Broad-Based Anti-Corruption Commission (2016) 256 CLR 459; [2016] HCA 8
R v OC (2015) 90 NSWLR 134; [2015] NSWCCA 212
X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29
X7 v R [2014] NSWCCA 273; (2014) 292 FLR 57
Category: Principal judgment
Parties: Ian Michael Macdonald (Applicant)
Representation:
Counsel:
S J Odgers SC / T S Corish (Applicant Macdonald)
D Jordan SC / E Kerkyasharian (Applicant Maitland)
N Williams SC / J E Davidson (Respondent)
Solicitors:
Bilbie Dan Solicitors and Attorneys (Applicant Macdonald)
Bob Whyburn Solicitors (Applicant Maitland)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/59940; 2015/59990
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

[2016] NSWSC 865

Date of Decision:

23 June 2016

Before:

Adamson J

File Number(s):

2015/59940; 2015/59990

HEADNOTE

[This headnote is not to be read as part of the judgment]

The Independent Commission Against Corruption (ICAC) conducted an inquiry into the circumstances surrounding the grant of an exploration licence by former State Minister, Ian Macdonald (the first applicant), to a company associated with John Maitland (the second applicant). Both applicants were examined by ICAC, with evidence given subject to objection taken pursuant to s…

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.

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Details

Case: [2016] NSWCCA 306
Decision Date: 16 December 2016

CaseChat Overview and Summary

The appeal in Macdonald v The Queen and Maitland v The Queen concerned the legality of evidence obtained through compulsory processes before the Independent Commission Against Corruption (ICAC) in New South Wales, and whether such evidence could be used by the prosecution prior to charges being laid. The appeal was heard in the High Court of Australia. The respondents were convicted of criminal offences following investigations by ICAC, and they argued that the use of compelled evidence obtained before ICAC violated their rights under the accusatorial principle. Specifically, they contended that the Independent Commission Against Corruption Act 1988 (NSW) did not abrogate the accusatorial principle, and thus compelled evidence obtained over objection in public hearings should not be made available to the prosecution prior to charges being laid.

The legal issues before the Court were whether the Independent Commission Against Corruption Act 1988 (NSW) abrogated the accusatorial principle, and if the findings of the primary judge were available on the evidence. The Court needed to determine if the compelled evidence obtained over objection in public hearings before ICAC could be made available to the prosecution prior to charges being laid, and whether the primary judge's findings were supported by the evidence. The respondents contended that the use of compelled evidence in this manner was a breach of their rights under the accusatorial principle, which requires that a person be given an opportunity to challenge the evidence against them before being convicted.

The Court held that the Independent Commission Against Corruption Act 1988 (NSW) did not abrogate the accusatorial principle, and that compelled evidence obtained over objection in public hearings before ICAC could not be made available to the prosecution prior to charges being laid. The Court found that the principle of legality required that the use of compelled evidence must be consistent with fundamental common law rights and principles, and that the accusatorial principle was such a fundamental principle. The Court also found that the primary judge's findings were available on the evidence, and that there was no error in the primary judge's approach to the evidence. The Court dismissed the appeals, holding that the evidence obtained before ICAC was properly admitted, and that the respondents' rights under the accusatorial principle were not breached.

Orders