McBride v Commonwealth Director of Public Prosecutions
[2021] ACTSC 68
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | McBride v Commonwealth Director of Public Prosecutions |
Citation: | [2021] ACTSC 68 |
Hearing Date: | 23 April 2021 |
DecisionDate: | 23 April 2021 |
Before: | Elkaim J |
Decision: | See [17] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Application to Vacate Hearing Dates – Civil matter with criminal implications |
Legislation Cited: | Public Interest Disclosure Act 2013 (Cth) |
Parties: | Commonwealth Department of Public Prosecutions (Applicant) David William McBride (Respondent) Commonwealth Attorney-General (Interested Party) |
Representation: | Counsel N Papas QC (Applicant) M Davis (Respondent) A Berger QC (Interested Party) |
| Solicitors Commonwealth Director of Public Prosecutions (Applicant) Xenophon Davis (Respondent) Australian Government Solicitor (Interested Party) | |
File Number: | SC 119 of 2021 |
ELKAIM J:
Mr McBride is facing five charges included in an indictment filed on 15 October 2019.
He says he should not be facing this indictment because he is entitled to immunity from prosecution pursuant to the Public Interest Disclosure Act 2013 (Cth).
Under the terms of the above Act the establishment of immunity must be ascertained separately and, logically, before any criminal trial.
The immunity hearing was originally listed to commence on 2 March 2020. That date was vacated because Mr McBride obtained new legal representation.
The matter was listed again for hearing to commence on 29 September 2020. This date was vacated on 1 September 2020 due to the COVID pandemic.
Also on 1 September 2020 I allocated a fresh hearing date for the immunity hearing, namely 3 May 2021. The hearing of the criminal trial, if necessary, was set down to commence on 14 June 2021. Obviously this trial would not proceed if Mr McBride was able to establish his entitlement to immunity under the Act.
The Commonwealth Director of Public Prosecutions (the CDPP) has now filed an Application in Proceeding seeking orders to vacate the above hearing dates and to set a new timetable.
The application is supported by an affidavit of Ms von Forell, affirmed on 21 April 2021. Ms von Forell says that the plaintiff told her that he cannot file his originating application and supporting documents by 19 March 2021 as required by the court’s current orders.
The plaintiff requested an extension of time, which was the subject of agreement. In the meantime the plaintiff has served on the CDPP a number of documents which include an encrypted USB and some expert reports. Unfortunately the USB was so well encrypted that it could not be opened by the CDPP.
10.Ultimately, on 12 April 2021 the CDPP was served with sealed copies of the plaintiff’s Originating Application and supporting documents.
11.Ms von Forell also lists a number of logistical problems the CDPP has encountered, mainly with complying with the requirements of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth).
12.Further, says Ms von Forell, she has been very busy trying to prepare the matter in accordance with the current timetable. Unfortunately she has not been able to speak to all of the potential witnesses the defendant might rely upon. Some of them are deployed overseas. As a result the defendant cannot file the necessary evidence in time.
13.Ms von Forell told the plaintiff’s solicitor about the problems she was having and her view that the case would not be ready by 3 May 2021. Mr Davis, who is the plaintiff’s solicitor, agreed to the vacation of the forthcoming hearing dates. The Australian Government Solicitor, who appears in the proceedings as an interested party, also does not oppose the delay.
14.Notwithstanding the consent of the plaintiff and the consent of the Australian Government Solicitor, I listed the defendant’s application today to emphasise to the parties that notwithstanding the difficulties described by Ms von Forell, the court views the vacation of long-held hearing dates, and in particular where criminal proceedings are involved, as requiring substantial reasons.
15.I appreciate the imposition on the parties of the complicated requirements of the National Security Information Act. These provisions are also being imposed on the Court.
16.Ultimately I am compelled to recognise that if a matter proceeds without full preparation the likelihood of a fair result is diminished. I’m therefore prepared to grant the adjournment but stress that further adjournments, absent exceptional circumstances, are unlikely.
17.I make the following orders:
a.The hearing dates for the immunity hearing of 3 May 2021 and for the criminal trial of 14 June 2021 respectively are vacated.
b.The immunity hearing is listed to commence on 20 September 2021, with an estimate of 6 days.
c.The date for a criminal trial is to be set at a later date.
d.All parties have liberty to restore the matter on 24 hours’ notice to the Court and the other parties.
e.Bail is to continue until further order or if such an order cannot be made until 20 September 2021.
18.I note that the parties will confer on an appropriate timetable and consent orders will be made if there is agreement.
| I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 27 April 2021 |
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Amendments
27 April 2021
Delete “Commonwealth of Australia” as the Respondent’s name in the case title and replace with “Commonwealth Director of Public Prosecutions”
Delete “Commonwealth of Australia” as the party identified as the Applicant and replace with “Commonwealth Director of Public Prosecutions”
Delete “Australian Government Solicitor” as the Interested Party and replace with “Commonwealth Attorney-General”
Delete “SCC 119 of 2021” as the file number and replace with “SC 119 of 2021”
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