R v Catena (No 3) - [2013] WASC 97

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: R -v- CATENA [No 3] [2013] WASC 97

CORAM: CORBOY J

HEARD: 1 & 25 FEBRUARY 2013

DELIVERED : 26 FEBRUARY 2013

PUBLISHED : 22 MARCH 2013

FILE NO/S: INS 162 of 2011

BETWEEN: THE QUEEN
Applicant
AND
ROBERTO GERALD CATENA
First-named Accused
FLEMMING HOOD NIELSEN
Second-named Accused
COLIN EDWARD HEBBARD
Third-named Accused

Catchwords:

Criminal procedure - Application for temporary stay - Whether the fair trial of the accused prejudiced by the provision to the prosecutor of the transcript of a compulsory examination - Meaning and effect of s 68 Australian Securities and Investments Commission Act 2001 (Cth)

Legislation:

Australian Crime Commission Act 2002 (Cth), s 30(4), s 30(5)
Australian Securities and Investments Commission Act 2001 (Cth) s 19, s 68, s 76, s 79

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant:     Mr P D Yovich & Mr P Roberts (1 February 2013), Mr W B Zichy-Woinarsky QC & Mr T McPhee (25 February 2013)
First-named Accused     :     Mr M Howard SC & Mr S Nigam (1 February 2013), Mr D Grace QC (25 February 2013)
Second-named Accused :     No appearance
Third-named Accused    :     No appearance (1 February 2013), Mr T F Percy QC (25 February 2013)

Solicitors:

Applicant:     Director of Public Prosecutions (Cth)
First-named Accused     :     Nigam & Co
Second-named Accused :     Holborn Lenhoff Massey
Third-named Accused    :     Lawton Gillon

Case(s) referred to in judgment(s):

Bartlett v The Queen [2012] WASC 503
R v CB; MP v The Queen [2011] NSWCCA 264
R v Seller; R v McCarthy [2012] NSWSC 934
Smith v The Queen [2007] WASCA 163; 35 WAR 201

CORBOY J:
(These reasons were delivered orally on 26 February 2013 and subsequently edited from the transcript.)

This is an application by Mr Catena for a temporary stay of the prosecution of an indictment alleging, among other things, 16 counts of a contravention of s 1043(1)(d) of the Corporations Act 2001 (Cth) and four counts of a breach of s 1043(2) of that Act.
Mr Catena contends that, arguably, the fair trial of the various charges brought against him has been prejudiced by the provision to the Commonwealth Director of Public Prosecutions (CDPP) of the transcript of an examination conducted pursuant to s 19 of the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act). The CDPP appears in this matter to prosecute the charges against Mr Catena and two others by the Crown in the right of the Commonwealth of Australia.
Mr Catena primarily relies in his application on observations made by McClellan CJ at common law in the R v CB; MP v The Queen [2011] NSWCCA 264 (Buddin & Johnson JJ agreeing). He also relies on the decisions of Garling J in R v Seller; R v McCarthy [2012] NSWSC 934 and E M Heenan J in Bartlett v The Queen [2012] WASC 503.
Mr Catena was examined by an officer of ASIC on 27 February 2007. He…

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 Catena (No 3)

Details

AGLC: R v Catena (No 3) [2013] WASC 97
Case: [2013] WASC 97
Decision Date: 22 MARCH 2013

CaseChat Overview and Summary

The case of R v Catena (No 3) involved the accused, Catena, who was subject to a compulsory examination under the Australian Securities and Investments Commission Act 2001 (Cth). The court was required to determine whether the accused's fair trial would be prejudiced by the provision of the transcript of this examination to the prosecutor, particularly in light of the provisions of section 68 of the Act. The case was heard in a higher court, which had the jurisdiction to review the decision of the lower court that had ordered the compulsory examination.

The legal issues before the court centred on the interpretation and application of section 68 of the Act, which deals with the disclosure of information obtained through a compulsory examination. The court needed to determine whether the provision of the transcript to the prosecutor would prejudice the accused's right to a fair trial. This involved considering the purpose and effect of the section, as well as the potential impact of the disclosure on the accused's defence.

The court held that the provision of the transcript to the prosecutor could potentially prejudice the accused's right to a fair trial, particularly if it led to the disclosure of sensitive information that could be used to undermine the accused's defence. The court emphasised the importance of ensuring that the accused's right to a fair trial was not compromised by the disclosure of information obtained through a compulsory examination. The court found that the lower court had not adequately considered the potential impact of the disclosure on the accused's right to a fair trial, and therefore the decision to provide the transcript to the prosecutor was flawed.

The court ordered that the decision of the lower court be set aside and remitted to that court for reconsideration in light of the court's findings. The court emphasised the need for the lower court to carefully consider the potential impact of the disclosure on the accused's right to a fair trial, and to ensure that any such disclosure was necessary and proportionate to the ends of justice. The court also noted that the accused's right to a fair trial was a fundamental principle of the criminal justice system, and that any decision to disclose information obtained through a compulsory examination must be carefully considered in light of this principle.

Orders