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R v Macdonald; R v Maitland (No 5)

R v Macdonald; R v Maitland (No 5)

Case [2016] NSWSC 865 23 June 2016

Stay of Proceedings

Compelled Evidence

Prosecution

Privilege Against Self-Incrimination

Accusatorial System

Principles of Criminal Justice

Criminal Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Macdonald; R v Maitland (No 5) [2016] NSWSC 865
Hearing dates: 15 June and 17 June 2016
Decision date: 23 June 2016
Jurisdiction: Common Law - Criminal
Before: Adamson J
Decision:
(1) Notice of motion filed in court on behalf of Mr Maitland on 9 May 2016 dismissed.
(2) Notice of motion filed on behalf of Mr Macdonald on 16 May 2016 dismissed.
Catchwords:
CRIMINAL LAW – application for stay of trial – applicants charged with criminal offences following finding of corrupt conduct by Independent Commission Against Corruption (ICAC) – Director of Public Prosecutions (DPP) downloaded transcripts from public inquiry from ICAC’s website, which contained the applicants’ compelled evidence – DPP and others involved in prosecution read compelled evidence before formulating charges against accused – companion principle and privilege against self-incrimination can be affected if legislative intention is clear – duty of law enforcement officers, including ICAC, to provide DPP with information assisting prosecution or defence except where privileged or covered by immunity – privileges abrogated by ICAC Act and compelled evidence made public – compelled evidence, whilst inadmissible in trial, can be used by DPP for purposes of prosecution at least where given or tendered in public
CRIMINAL LAW – application for permanent stay of trial – permanent stay only granted in exceptional circumstances – where potential unfairness can be remedied temporary stay may be granted or evidence excluded – potential prejudice identified contemplated and permitted by statute – no unlawful prejudice – application dismissed
CRIMINAL LAW – principles of accusatorial system of criminal justice – principle that prosecution must discharge onus of proof and cannot compel accused to assist – evidence taken under compulsion before charges were laid – analysis of principles in X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92; Lee v The Queen [2014] HCA 20; 253 CLR 455 and R v OC (Oliver Curtis)[2015] NSWCCA 212; 90 NSWLR 134 – objects and purpose of ICAC Act – disclosure of compelled evidence permitted by and part of purpose of ICAC Act – evidence inadmissible in trial but can be used by prosecution – no evidence compelled from accused after charges laid
Legislation Cited:
Australian Crime Commission Act 2002 (Cth), ss 25A, 28, 30
Australian Securities and Investment Commission Act 2001 (Cth), ss 13, 17, 18, 19, 49, 63, 64, 68, 76
Crime Commission Act 2012 (NSW), s 80
Criminal Code Act 1995 (Cth)
Criminal Procedure Act 1986 (NSW), ss 3, 14, 14A, 128, 173
Director of Public Prosecutions Act 1983 (Cth), s 9, 12
Director of Public Prosecutions Act 1986 (NSW), ss 7, 15A
Independent Broad-based Anti-Corruption Commission Act 2011 (Vic), s 70
Independent Commission Against Corruption Act 1988 (NSW), ss 2A, 8, 9, 13, 14, 16, 17, 18, 21, 22, 26, 30, 31, 35, 37, 38, 53, 73, 74, 74A, 74B, 87, 111, 112
Mining Act 1992 (NSW)
New South Wales Crime Commission Act 1985…

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 Macdonald; R v Maitland (No 5)

Details

AGLC: R v Macdonald; R v Maitland (No 5) [2016] NSWSC 865
Case: [2016] NSWSC 865
Decision Date: 23 June 2016

CaseChat Overview and Summary

The applicants, Macdonald and Maitland, were charged with criminal offences and sought a stay of their trial, citing the use of their compelled evidence from a public inquiry conducted by the Independent Commission Against Corruption (ICAC). The transcripts of the compelled evidence, which were accessible on ICAC's website, were downloaded by the Director of Public Prosecutions (DPP) and read by the prosecution team before formulating the charges against the applicants. The applicants argued that their compelled evidence should not be used due to the breach of their privilege against self-incrimination and the companion principle, which ensures the prosecution cannot compel the accused to assist in their own prosecution.

The court was required to determine whether the compelled evidence obtained by ICAC and made public could be used by the prosecution for the purposes of the trial. This involved examining the legislative framework of the ICAC Act, the principles of the accusatorial system, and the objects and purpose of the ICAC Act itself. The court also needed to assess whether the privilege against self-incrimination and the companion principle were violated and, if so, whether the prejudice caused could be remedied through a temporary stay or exclusion of evidence, or if a permanent stay was warranted.

The court found that the compelled evidence, while inadmissible in the trial, could be used by the prosecution for the purposes of the trial, as permitted by the ICAC Act. The court reasoned that the privilege against self-incrimination and the companion principle were abrogated by the ICAC Act and that the compelled evidence had been made public. The court further held that the potential prejudice to the applicants was contemplated and permitted by the statute, and there was no unlawful prejudice. The court dismissed the application for a permanent stay, stating that such a stay would only be granted in exceptional circumstances, and in this case, the potential unfairness could be remedied through a temporary stay or exclusion of evidence.

The court concluded that the applicants were not entitled to a permanent stay of the trial. The final orders of the court were to dismiss the application for a permanent stay of the trial, leaving the trial to proceed with the use of the compelled evidence for the purposes of the prosecution, as permitted by the ICAC Act. The court emphasised that the evidence inadmissible in the trial could still be used by the prosecution, provided it was not evidence compelled from the accused after charges were laid.

Orders