R v Brady (Ruling No 1) - [2014] VSC 450

IN THE SUPREME COURT OF VICTORIA

Unrestricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2013: 0173, 0174, 0175, 0215
S CR 2014: 0049, 0058

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

BARRY THOMAS BRADY & OTHERS

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	25, 26, 28, 29 August, 1-5, 8 September 2014
DATE OF RULING:	15 September 2014
CASE MAY BE CITED AS:	R v Brady & Ors (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2014] VSC 450

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CRIMINAL LAW – Evidence – Client legal privilege – Application to stay prosecution on basis of alleged illegality or impropriety by investigating and prosecuting authorities – Accused seeking to cross-examine Crown witnesses in relation to privileged matters – Whether such cross-examination permitted by Evidence Act 2008 (Vic) – Cross-examination permitted - Evidence Act 2008 (Vic) ss 4(1), 123, 131A

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APPEARANCES:	Counsel		Solicitors
For the Commonwealth Director of Public Prosecutions	Mr N Robinson QC Mr K Armstrong		Commonwealth Director of Public Prosecutions
For the Commissioner of the Australian Federal Police	Mr J Forsaith		Australian Government Solicitor
For Barry Brady	Mr M Cahill	Hicks Oakley Chessell Williams
For Peter Hutchinson	Mr C Mandy	Jimmy Lardner & Associates
For John Leckenby	Mr C Thomson	Holding Redlich
For Steven Wong	Mr P Tehan QC Mr C Carr	Slades & Parsons

HER HONOUR:

Introduction

Barry Brady, Peter Hutchinson, John Leckenby and Steven Wong (“the ACC accused”) are all former employees of Note Printing Australia Limited or Securency International Pty Ltd. Together with other former employees, Christian Boillot and Myles Curtis, they have each been charged with conspiring to bribe a foreign official, contrary to ss 11.5(1) and 70.2(1) of the Criminal Code 1995 (Cth). Some of them have also been charged with false accounting, contrary to s 83(1)(a) of the Crimes Act 1958 (Vic), in relation to payments made in connection with foreign agents.

The current proceedings before this court were commenced by the filing of indictments by the Commonwealth Director of Public Prosecutions (“CDPP”) in late 2013 and early 2014. In some cases, the accused had been committed to stand trial for the relevant charges; in other cases, the CDPP exercised his power to directly indict,[1] after the accused had been discharged at committal.
[1]Pursuant to s 6(2D) of the Director of Public Prosecutions Act 1983 (Cth).

Each of the ACC accused was compulsorily examined before the Australian Crime Commission (“ACC”) about the foreign bribery matters, prior to the laying of any charges against them. Numerous members of the Australian Federal Police (“AFP”) who were investigating the alleged offences were present[2] during those ACC examinations, and/or have had access to the recordings, transcript or summaries of the examinations. The AFP provided copies of various ACC materials to CDPP lawyers. Some ACC materials were provided by CDPP lawyers to prosecuting counsel during the committal hearings. Precisely who received what ACC materials, and what use they have made of them, are matters which are the subject of the applications currently before the court (“the ACC applications”).

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: [2014] VSC 450
Decision Date: 15 September 2014

CaseChat Overview and Summary

The case of R v Brady (Ruling No 1) involved the accused, Brady, and the Crown. The dispute centred around the admissibility of evidence obtained through alleged illegality or impropriety by the investigating and prosecuting authorities. The case was heard in the County Court of Victoria. The central legal issue was whether the accused, Brady, could cross-examine Crown witnesses regarding privileged matters. The court had to determine whether the Evidence Act 2008 (Vic) allowed such cross-examination.

The court examined sections 4(1), 123, and 131A of the Evidence Act 2008 (Vic). Section 4(1) of the Act outlines the admissibility of evidence, whereas sections 123 and 131A concern the privilege of legal advice. The court found that Brady could cross-examine the Crown witnesses on matters that were privileged, as these sections of the Act did not prohibit such cross-examination. The court held that the privilege of legal advice did not extend to prevent the accused from challenging the evidence provided by the Crown witnesses.

In conclusion, the court ruled in favour of Brady, allowing the cross-examination of Crown witnesses regarding privileged matters. The court determined that the provisions of the Evidence Act 2008 (Vic) did not prevent the accused from challenging the evidence provided by the Crown witnesses, even if it pertained to privileged information. This ruling provided clarity on the scope of legal privilege in criminal proceedings and the extent to which an accused could challenge evidence provided by Crown witnesses.

Orders