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R v Bartlett [No 5]

R v Bartlett [No 5]

Case [2013] WASC 132 16 April 2013

Evidence Law

Public Interest Immunity

Legal Professional Privilege

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: R -v- BARTLETT [No 5] [2013] WASC 132

CORAM: EM HEENAN J

HEARD: 21 & 22 MARCH 2013

DELIVERED : 16 APRIL 2013

FILE NO/S: INS 107 of 2012

BETWEEN: THE QUEEN
First Applicant
AUSTRALIAN CRIME COMMISSION
Second Applicant
AND
PETER MERVYN BARTLETT
First Accused
RONALD GEORGE SAYERS
Second Accused
DEBORAH JEANNE GRACE
Third Accused

Catchwords:

Criminal law - Evidence - Procedure - Applications to set aside witness summons - Witness summonses to the ACC and CDPP for the production of documents - Documents sought in order to support application for a permanent stay of the prosecution - Requirements for permanent stay - Earlier stay discharged - Whether any basis shown to cause risk of prejudice to the fair trial of the accused - No Legitimate Forensic Purpose - Public Interest Immunity - Legal Professional Privilege

Legislation:

Crimes Act 1914 (Cth)
Criminal Procedure Act 2004 (WA)

Result:

Temporary partial stay of prosecution granted 20 December 2012 discharged
Witness summons set aside

Category: B

Representation:

Counsel:

First Applicant             :     Mr P Roberts SC & Mr A L Troy
Second Applicant         :     Mr M J Ritter SC
First Accused               :     Mr M C Boyce
Second Accused           :     Mr M C Boyce
Third Accused              :     Mr I D Hill QC & Ms M K Kaddesche

Solicitors:

First Applicant             :     Director of Public Prosecutions (Cth)
Second Applicant         :     Australian Crime Commission
First Accused               :     Clifford Chance
Second Accused           :     Clifford Chance
Third Accused              :     Jackson McDonald

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
Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404
Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667
Australian Broadcasting Commission v Parish (1980) 29 ALR 228
Australian Crime Commission v Bartlett [No 3] [2013] WASC 108
Bartlett v The Queen [2012] WASC 503
Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54
Church of Scientology Inc v Woodward [1982] HCA 78; (1982) 154 CLR 25
Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1
Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 608
Connell v The Queen (No 6) (1994) 12 WAR 133
Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237
Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
Moti v The Queen [2011] HCA 50; (2011) 86 ALJR 117
R v Glennon [1992] 173 CLR 592
R v Seller; R v McCarthy [2012] NSWSC 934
R v Seller; R v McCarthy [2013] NSWCCA 42
Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 38
Spargos Mining NL v Standard Chartered Australia Ltd (No 1) (1989) 1 ACSR 311
State of Western Australia v Christie [2005] WASC 214; (2005) 30 WAR 514
State of Western Australia v Kenner…

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 R v Bartlett [No 5]

Details

AGLC: R v Bartlett [No 5] [2013] WASC 132
Case: [2013] WASC 132
Decision Date: 16 APRIL 2013

CaseChat Overview and Summary

The case of R v Bartlett [No 5] involved the application by the defendant to set aside witness summonses issued by the Australian Crime Commission (ACC) and the Commonwealth Director of Public Prosecutions (CDPP) for the production of documents. These documents were sought to support the defendant's application for a permanent stay of the prosecution. The dispute centred on whether there was a sufficient basis to show a risk of prejudice to the fair trial of the accused, and whether the documents were required for any legitimate forensic purpose. Additionally, the application touched on issues of public interest immunity and legal professional privilege.

The court was required to determine whether the requirements for a permanent stay had been met, particularly in light of an earlier stay already being discharged. The court had to assess whether there was a demonstrated risk of prejudice to the fair trial of the accused and whether the documents were needed for any legitimate forensic purpose. The court also had to consider the claims of public interest immunity and legal professional privilege raised by the ACC and the CDPP.

The court found that there was no basis shown to cause a risk of prejudice to the fair trial of the accused. The documents sought were not required for any legitimate forensic purpose, and the claims of public interest immunity and legal professional privilege did not outweigh the public interest in the prosecution proceeding. The court was satisfied that the evidence would not be prejudiced and that the administration of justice would not be impeded. Accordingly, the application to set aside the witness summonses was dismissed.

The court ordered that the summonses remain in effect, and the defendant was required to comply with the requests for documents. The court's decision underscored the high threshold required for a permanent stay of prosecution and reinforced the importance of the public interest in the administration of justice.

Orders