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R v CB; MP v R

R v CB; MP v R

Case [2011] NSWCCA 264 9 December 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v CB; MP v R [2011] NSWCCA 264
Hearing dates: 27 July 2011
Decision date: 09 December 2011
Before: McClellan CJ at CL at [1]
Buddin J at [137]
Johnson J at [138]
Decision:
1. The appeal by the Director of Public Prosecutions is upheld.
2.The order granting a permanent stay to CB is quashed and the matter is remitted to the District Court for trial.
3. The appeal by MP is dismissed.

Catchwords: CRIMINAL APPEAL - s5F Criminal Appeal Act 1912 (NSW) - permanent stay granted in District Court in respect of CB but not MP - possibility of contempt referral gives ACC standing - CB examined by ACC after being charged - information obtained in examination was not disclosed - not open for District Court judge to find decision in ACC v OK [2010] FCAFC 61 was plainly wrong - permanent stay not justified - Crown appeal successful - MP appeal dismissed.
Legislation Cited: Australian Crime Commission Act 2002 (Cth)
Criminal Code 1995 (Cth)
Criminal Appeal Act 1912 (NSW)
Evidence Act 1995
Cases Cited: A v Boulton [2004] FCA 56; (2004) 204 ALR 598
ABC v Sage [2009] FCA 170;175 FCR 319
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Australian Competition and Consumer Commission v Telstra Corporation Ltd (2009) 176 FCR 203
Australian Crime Commission v OK [2010] FCAFC 61; [2010] 185 FCR 258
Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485
Barton v The Queen [1980] HCA 48; 147 CLR 75 at 111
CC v Australian Crime Commission [2005] FCA 754
Clough v Leahy (1904) 2 CLR 139
Commissioner of Police v Tanos (1958) 98 CLR 383
Commonwealth Superannuation Scheme Board of Trustees v Kitching (2004) 139 FCR 272
Dupas v The Queen [2010] HCA 20; 267 ALR 1
Environment Protection Authority v Caltex Refining Co Pty Limited [1993] HCA 74;178 CLR 447
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89
Federal Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Limited [2007] 158 FCR 325
Fleming v White [1981] 2 NSWLR 719
Hamilton v Oades [1989] HCA 21; 166 CLR 486
Hammond v The Commonwealth [1982] HCA 42
Insurance Exchange of Australasia v Dooley (2000) 50 NSWLR 222
Jago v The District Court of NSW [1989] HCA 46; 168 CLR 23
Johns v Australian Securities Commission (1993) 178 CLR 408
Mansfield v Australian Crime Commission [2003] FCA 1059; (2003) 132 FCR 251 is Hak Song Ra v Australian Crime Commission [2004] FCA 416; (2004) 138 FCR 51, Loprete v Australian Crime Commission [2004] FCA 1476
McGuinness v AG of Victoria [1940] HCA 6; 63 CLR 73
Mortimer v Brown [1970] HCA 4; 112 CLR 493
NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252; 72 NSWLR 456
OK v…

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 CB; MP v R

Details

AGLC: R v CB; MP v R [2011] NSWCCA 264
Case: [2011] NSWCCA 264
Decision Date: 09 December 2011

CaseChat Overview and Summary

In the matter of R v CB and MP v R, the respondents, CB and MP, appealed against their convictions in the District Court of New South Wales. The respondents were convicted for separate but related criminal matters. The central dispute concerns the use of information obtained from CB during an examination by the Australian Crime Commission (ACC) and its admissibility in the District Court proceedings. Specifically, the respondents argued that the District Court judge erred in admitting the undisclosed information obtained from CB during the ACC examination.

The legal issues before the court were whether the District Court judge was correct in admitting the information obtained from CB during the ACC examination and whether the court was justified in granting a permanent stay of proceedings against CB but not against MP. The court had to determine whether the decision in ACC v OK [2010] FCAFC 61, which was relied upon by the District Court, was plainly wrong and whether the respondents had standing to appeal due to the potential for a contempt referral.

The court found that the District Court judge did not err in admitting the information obtained from CB during the ACC examination. The court held that it was not open to the judge to find the decision in ACC v OK [2010] FCAFC 61 was plainly wrong, as the examination in that case was conducted under different circumstances. Furthermore, the court determined that the possibility of a contempt referral gave the ACC standing to appeal, which was sufficient to challenge the admission of the undisclosed information. Consequently, the court dismissed the appeal of MP and allowed the Crown appeal in respect of CB, setting aside the permanent stay of proceedings against CB. The court did not grant a permanent stay against MP, as it found that the evidence was sufficient to support the conviction.

Orders