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 was charged with offences under the insider trading prohibitions contained in the Corporations Act in February 2011. Mr Catena's examination was conducted under s 19 of the ASIC Act. An examinee may be compelled to answer questions put by the examiner during such an examination. That is so even if the answer to be given to a question may incriminate the examinee: see s 21(3) and s 68(1) of the ASIC Act.
An examinee may claim privilege over a statement that is to be made in answer to a question put in an examination. The claim is made under s 68(2) of the ASIC Act on the ground of self‑incrimination. Mr Catena claimed privilege over many of the answers that he gave during his examination.
In R v CB, the primary judge had granted a stay of a prosecution in circumstances where the Australian Crime Commission (ACC) had commenced to examine the respondent compulsorily after he had been charged. The New South Wales Court of Appeal held that the mere fact that an examination of the accused had occurred in those circumstances could not justify a permanent stay. That appears at [128] of the court's reasons. The court further held that (at [128]):
Even if, and the evidence does not establish this fact - it was the case that questions were asked which required the appellant to disclose his defence, this would not of itself have the consequence that the appellant would be denied a 'fair trial'. Only if it can be shown that either the relevant information has been, or there is a real risk that it would be communicated to the prosecution, could it be concluded that the exceptional step of granting a permanent stay should be taken.
Earlier in his reasons McClellan CJ observed:
Provided the knowledge of the proceedings and the Commission are adequately protected an accused person's entitlement to a fair trial in accordance with the adversarial process will be ensured. The situation is no different whether at the time of the Commission hearing a charge has not been laid or the criminal process has commenced. The right to a fair trial will only be compromised if information relevant to a person's defence in any form, including any derivative information, is available to the prosecution [111].
In Bartlett v The Queen, E M Heenan J granted a temporary stay of prosecutions in circumstances where each of the accused had been compulsorily examined by the ACC prior to charges being laid. Materials generated by the examinations were provided by the ACC to the CDPP prior to and following the charges. His Honour concluded at [124]:
The critical point for consideration remains whether or not when a person who has been compulsorily examined under s 30 [Australian Crime Commission Act 2002 (Cth)] and whose privilege against self-incrimination has been abrogated, comes to be charged with an offence and the details of that examination, whether pursuant to and in conformity with a direction given under s 25A(9) or (10) or not, are supplied to prosecuting authorities involved in the examinee's trial, that would, of itself, constitute prejudice to that person's fair trial such as would justify the grant of a permanent stay. I have to accept that in [128] of R v CB; MP v R, McClellan CJ at common law plainly contemplated that it would.
Mr Catena places particular emphasis on the passages in R v CB and Bartlett v The Queen to which I have referred in support of his application. The CDPP admits that it has been provided with a copy of the s 19 examination of Mr Catena conducted by ASIC. Mr Rasool is a senior lawyer employed by ASIC. He made an affidavit that was received as evidence solely for the purpose of Mr Catena's application. He stated in his affidavit that a copy of the transcript of Mr Catena's examination was provided to the CDPP on 16 May 2008 as part of a brief of evidence. A copy of the examination transcript was attached to his affidavit. I was invited by senior counsel for Mr Catena to read the transcript, the contention being that this would reveal that the possible prejudice to the fair trial of the charges brought against Mr Catena was not merely hypothetical.
It is necessary to first consider the submissions made by the CDPP regarding the proper construction of the ASIC Act. The point of those submissions was to contend that the relevant provisions of the ASIC Act were materially different to those considered by the Federal Court, the New South Wales Supreme Court, the New South Wales Court of Appeal and E M Heenan J on the effect of providing transcripts of examinations conducted by the ACC under the Australian Crime Commission Act 2002 (Cth) (the ACC Act) to a prosecuting authority such as the CDPP.
There is, in my view, a critical difference between the statutory schemes created by the ASIC Act and the ACC Act for the immunity from the use of compulsorily acquired information. Sections 30(4) and 30(5) of the ACC Act provide for the use that may be made of an answer given by an examinee during a compulsory examination conducted by the ACC where privilege against self‑incrimination is claimed. Those sections are headed 'Use immunity available in some cases if self‑incrimination claimed'. They provide that:
(4)Subsection (5) limits the use that can be made of any answers given at an examination before an examiner, or documents or things produced at an examination before an examiner. That subsection only applies if:
(a)a person appearing as a witness at an examination before an examiner:
(i)answers a question that he or she is required to answer by the examiner; or
(ii)produces a document or thing that he or she is required to produce by a summons under this Act served on him or her as prescribed; and
(b)in the case of the production of a document that is, or forms part of, a record of an existing or past business - the document sets out details of earnings received by the person in respect of his or her employment and does not set out any other information; and
(c)before answering the question or producing the document or thing, the person claims that the answer, or the production of the document or thing, might tend to incriminate the person or make the person liable to a penalty.
(5)The answer, or the document or thing, is not admissible in evidence against the person in:
(a)a criminal proceeding; or
(b)a proceeding for the imposition of a penalty;
other than:
(c)confiscation proceedings; or
(d)a proceeding in respect of:
(i)in the case of an answer - the falsity of the answer; or
(ii)in the case of the production of a document - the falsity of any statement contained in the document.
It will be seen that the use immunity created by s 30(5) of the ACC Act is conferred solely on the examinee claiming privilege against self-incrimination.
The equivalent provisions in the ASIC Act are to be found in s 68. Section 68(1) provides:

(1)[I]t is not a reasonable excuse for a person to refuse or fail:
(a)to give information …
in accordance with a requirement made of the person, that the information … might tend to incriminate the person …

Section 68 provides:
(2)Subsection (3) applies where:
(a)before:
(i)making an oral statement giving information; or
(ii)signing a record;
pursuant to a requirement made under this Part … a person (other than a body corporate) claims that the statement, or signing the record, as the case may be, might tend to incriminate the person or make the person liable to a penalty; and
(b)The statement, or the signing the record, as the case may be, might in fact tend to incriminate the person or make the person so liable.
(3)The statement, or the fact that the person has signed the record, as the case may be, is not admissible in evidence against the person in:
(a)a criminal proceeding; or
(b)a proceeding for the imposition of a penalty;
other than a proceeding in respect of:
(c)in the case of making a statement - the falsity of the statement.
By contrast to s 30(4) and s 30(5) of the ACC Act, s 68(2) and s 68(3) confer an immunity from use on two conditions being fulfilled. First, the person required to provide the information - in this instance, the examinee in a s 19 examination - claims privilege against self‑incrimination. Second, a finding that the statement that is said to be inadmissible in evidence might, in fact, tend to incriminate the person.
In Smith v The Queen [2007] WASCA 163; 35 WAR 201, Pullin and Buss JJA held that the question of whether a statement made by a person under compulsion and after claiming privilege pursuant to the ASIC Act might, in fact, tend to incriminate the person was to be determined when the court was required to decide whether the statement could be led in evidence in a proceeding: [5] (Pullin JA); [71] (Buss JA).
Their Honours rejected the submission made by the CDPP that the tendency of the statement was to be determined at the time that the statement was made and by reference to the circumstances then prevailing. Buss JA observed:
In my opinion, the better view is that the determination is to be made as at the date on which the Court determines admissibility, and by reference to the facts and circumstances existing at that time, including, significantly, by reference to the allegations made against the person in the relevant proceeding. It is the better view in that:
(a)the 'limited use' immunity relates solely to the admissibility of the statement in evidence against the person in a proceeding of the kind described in section 68(3) [of the ASIC Act]; and
(b)the Court in which that proceeding is pending determines whether the statement is admissible;
and, in those circumstances, it is more likely that Parliament intended that any propensity, in fact, of the statement to incriminate the person, in the context of the pending proceeding, should be determined by reference to the facts and circumstances existing at that time [71].
Similarly, Pullin JA said:
Like Buss JA, I consider that the determination must be made when the Court is required to determine whether the statement may be led in evidence in relation to a 'proceeding'. This determination will have to be made because of the provisions of s 76(1) and s 68(3) of the Australian Securities and Investments Commission Act 2001 (Cth) … The procedure to be followed in order to obtain the determination is set out in s 79 of the ASIC Act [5].
Section 76(1) of the ASIC Act provides:
(1) A statement that a person makes at an examination of the person is admissible in evidence against the person in a proceeding unless:
(a)because of subsection 68(3), the statement is not admissible in evidence against the person in the proceeding; or
(b)the statement is not relevant to the proceeding and the person objects to the admission of evidence of the statement; or
(c)the statement is qualified or explained by some other statement made at the examination, evidence of the other statement is not tendered in the proceeding and the person objects to the admission of evidence of the first-mentioned statement; or
(d)the statement discloses matter in respect of which the person could claim legal professional privilege in the proceeding if this subsection did not apply in relation to the statement, and the person objects to the admission of evidence of the statement.
Section 79 of the ASIC Act provides:
(1) A party (the adducing party ) to a proceeding may, not less than 14 days before the first day of the hearing of the proceeding, give to another party to the proceeding written notice that the adducing party:
(a)will apply to have admitted in evidence in the proceeding specified statements made at an examination; and
(b)for that purpose, will apply to have evidence of those statements admitted in the proceeding.
(2)A notice under subsection (1) must set out, or be accompanied by writing that sets out, the specified statements.
(3)Within 14 days after a notice is given under subsection (1), the other party may give to the adducing party a written notice:
(a) stating that the other party objects to specified statements being admitted in evidence in the proceeding; and
(b) specifies, in relation to each of those statements, the grounds of objection.
(4)The period prescribed by subsection (3) may be extended by the court or tribunal or by agreement between the parties concerned.
(5)On receiving a notice given under subsection (3), the adducing party must give to the court or tribunal a copy of:
(a)the notice under subsection (1) and any writing that subsection (2) required to accompany that notice; and
(b) the notice under subsection (3).
(6)Where subsection (5) is complied with, the court or tribunal may either:
(a)determine the objections as a preliminary point before the hearing of the proceeding begins; or
(b)defer determination of the objections until the hearing.
(7)Where a notice has been given in accordance with subsections (1) and (2), the other party is not entitled to object at the hearing of the proceeding to a statement specified in the notice being admitted in evidence in the proceeding, unless:
(a)the other party has, in accordance with subsection (3), objected to the statement being so admitted; or
(b)the court or tribunal gives the other party leave to object to the statement being so admitted.
Those provisions concern an objection to admission of statements made in an examination conducted under the ASIC Act. They set out the procedure to which Pullin JA referred in Smith v The Queen.
Two points should be emphasised regarding the statutory regime created by s 68, s 76 and s 79 of the ASIC Act. First, as the passage from the judgment of Buss JA in Smith v The Queen cited above indicates, s 68(3) is concerned with the admissibility of evidence. Second, the conclusion that the time at which the admissibility of a statement made compulsorily under a claim of privilege was to be determined was when it was sought to tender the statement as evidence reflected the meaning and effect of s 68 of the ASIC Act properly construed. The conclusion did not reflect the application of a rule of evidence or the exercise of a discretion. It was the result of a process of statutory construction.
In my view, the effect of s 68 of the ASIC Act, as interpreted by the Court of Appeal in Smith v The Queen, is that, by necessary implication, the section contemplates that the statements made by an accused person during a s 19 examination could be provided by ASIC to a person responsible for conducting the prosecution of an alleged contravention of the Corporations Act against that person. The prosecutor could be provided with a transcript of the examination for the purpose of determining whether statements made by the accused, as an examinee, were admissible in the trial having regard to the offence alleged and all other relevant circumstances prevailing at the time of the trial, including circumstances that might arise from the manner in which the trial was conducted. Accordingly, the mere provision of the transcript to the prosecutor could not, in itself, be regarded as likely to prejudice the fair trial of an accused who had been previously compelled to answer questions and who had claimed privilege over the answers given during an examination conducted under s 19 of the ASIC Act having regard to the provisions of s 68.
I accept the submission made by senior counsel for the CDPP that this conclusion is consistent with the statutory scheme created by the ASIC Act. In particular, s 49 of the Act provides that ASIC may cause the prosecution of a person for an offence to be begun and carried on where it appears to the Commission as a result of an investigation or from a record of an examination that a person may have committed an offence against the corporations legislation and that person ought to be prosecuted for the offence. That is, ASIC is expressly required to consider the record of an examination in determining whether to institute and carry on a prosecution.
Considerations concerning the ability of a person suspected of having committed an offence against the Corporations Act to obtain a fair trial must condition the decision to prosecute and the conduct of the prosecution. However, s 49 clearly indicates that the legislature considered that the record of an examination conducted by ASIC under s 19 was an elemental source of information for the purpose of determining whether a prosecution should be initiated and for the conduct of a prosecution once commenced. Further, s 76 and s 79 of the ASIC Act support the conclusion that it was contemplated that a prosecutor could be provided with a transcript of a s 19 examination under the scheme for investigating and prosecuting alleged contraventions of corporations legislation created by the ASIC Act.

I have read the transcript of the s 19 examination of Mr Catena. Questions put to Mr Catena during the examination are of a kind that would be expected to be posed, having regard to the subject matter of the examination. The transcript contains the type of information that, in my view, Parliament contemplated ASIC might possess for the purpose of commencing and carrying on prosecutions under s 49. I infer from Mr Rasool's affidavit that the transcript was first provided to the CDPP for the purpose of taking advice on whether a prosecution should be commenced. The disclosure of the transcript for that purpose was consistent with s 49 of the ASIC Act.
The transcript also contains the type of information that a prosecuting authority, such as the CDPP, might possess for the purpose of making decisions about the admissibility of evidence when preparing for and conducting the prosecution of an offence against the Corporations Act. Accordingly, the provision of the transcript for Mr Catena's examination by ASIC to the CDPP was, in my view, authorised by the ASIC Act.
It follows that I consider that there is a significant difference between the use of immunity provisions of the ASIC Act and the ACC Act and that there is no reasonably arguable basis for granting a temporary stay of the prosecution against Mr Catena on the grounds identified by E M Heenan J in Bartlett v The Queen; that is, that a temporary stay should be granted pending the determination by the New South Wales Court of Appeal of the appeal in R v Seller; R v McCarthy.
I should add that discretionary considerations strongly favour the trial of the charges brought against Mr Catena proceeding without further delay. The matters relevant to the exercise of the court's discretion to grant a stay were briefly mentioned in argument on 11 February 2013. The charges were laid in February 2011. They concern events that allegedly occurred in 2006. A trial listing has been previously vacated. The prosecution propose to call a number of witnesses and considerable expense and inconvenience would be incurred by the prosecution and the accused if the trial was again deferred. Further delay would also subvert the effective use of the court's limited resources and the public interest in ensuring that criminal trials are conducted as soon as conveniently possible after charges have been laid.
For all of those reasons I would dismiss the application for a temporary stay of the prosecution against Mr Catena.