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New South Wales |
Case Name: | REGINA v OC (Oliver Curtis) |
Medium Neutral Citation: | [2015] NSWCCA 212 |
Hearing Date(s): | 25 March 2015 |
Date of Orders: | 13 August 2015 |
Decision Date: | 13 August 2015 |
Before: | Bathurst CJ at [1]; R A Hulme J at [126]; Bellew J at [127] |
Decision: | Appeal allowed. |
Catchwords: | STATUTORY INTERPRETATION – principles – legal assumptions – non-alteration of common law doctrines - principle of legality – privilege against self-incrimination – principles of accusatorial system of criminal justice – principle that prosecution must discharge onus and cannot compel accused to assist it – whether the ASIC Act permitted provision of the transcript of an accused’s examination under s 19 to persons involved in prosecuting the accused |
Legislation Cited: | Australian Securities and Investment Commission Act 2001 (Cth) |
Cases Cited: | [2014] NSWSC 1392 |
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- AGLC
- R v OC [2015] NSWCCA 212
- Case
- [2015] NSWCCA 212
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CaseChat Overview and Summary
The primary legal issues before the court were whether the ASIC Act permitted the provision of examination transcripts under section 19 to the prosecution team and whether the court should grant a temporary stay of proceedings pending the appointment of a new prosecution team. The court had to determine whether the provision of such transcripts violated the fundamental principles of the accusatorial system of criminal justice, including the principle that the prosecution cannot compel the accused to assist it in discharging the onus of proof.
The court's reasoning was grounded in the principles of statutory interpretation, particularly the principle of legality, which requires that fundamental rights be construed to minimize displacement unless clearly intended by the legislature. The court held that the provision of examination transcripts fundamentally altered the accusatorial judicial process, which begins with the laying of a charge and culminates in a criminal trial. Such a fundamental alteration can only be made by clear words or necessary intendment. The court found that the ASIC Act did not explicitly or necessarily imply a change to the fundamental rights of the accused in this regard. Therefore, the provision of the transcripts was deemed to be in violation of the accusatorial system of criminal justice.
In conclusion, the High Court of Australia ruled that the ASIC Act did not permit the provision of examination transcripts under section 19 to persons involved in prosecuting the accused. The court granted a temporary stay of proceedings pending the appointment of a new prosecution team to ensure compliance with the fundamental principles of the accusatorial system of criminal justice.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The CDPP further submitted that if there was a legal error as it contended, there was no alternate discretionary basis on which the conclusion of the trial judge could be justified.Consideration It was not disputed by the CDPP that it is a fundamental principle of the accusatorial system of criminal justice that the prosecution must discharge the onus of proof and that the prosecution cannot compel the accused to assist it in the discharge of this onus: X7 at [101]-[102], [124], [159]; Lee (No 2) at [32]-[33]. Further, the principle remains even if the privilege against self-incrimination has been wholly or partly abrogated: Lee (No 2) at [33]. It was also accepted that the privilege against self-incrimination remains, at least so far as direct use of the self-incriminatory material is concerned. However, the provision of the transcript of a s 19 examination to those responsible for the prosecution of an examinee fundamentally alters the accusatorial judicial process, which begins with the laying of a charge and culminates in a criminal trial: X7 at [124]. A fundamental alteration of this nature made by legislation can only be made by clear words or necessary intendment: X7 at [125]; Potter v Minehan [1908] HCA 63; 7 CLR 277 at 304; Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; 221 CLR 309 (Electrolux Home Products) at [19]-[21]. As was pointed out by Crennan and Kiefel JJ in Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 at [512], the principle of legality at common law requires that a statutory provision effecting such fundamental rights (in that case the presumption of innocence) be construed, so far as the language of the provision allows, to minimise or avoid displacement of the principle: see also French CJ at [43]. It has been pointed out on a number of occasions that general words will rarely be sufficient to alter such rights if they do not specifically deal with the question: Bropho v State of Western Australia [1990] HCA 24; 171 CLR 1 at 18; Coco v The Queen (1993) 179 CLR 427, 437-438. In Coco, the majority stated that the principle may be displaced by necessary implication “if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless”: at 438. In Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; 213 CLR 543, McHugh J pointed out, at [43], that courts will hold that legislation alters such rights by necessary implication if the object of the provision would be largely frustrated if the right, freedom or immunity was to be preserved. In Lee (No 1), Gageler and Keane JJ, after citing the passages from Electrolux Home Products to which I have referred above in par [99], stated that while the principle of legality extends to the protection of fundamental principles, it should not be extended beyond its rationale “to protect from inadvertent and collateral alteration [of] rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government”: at [313]. They went on to make the following remarks:“[314] The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that ‘[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve’.” [Internal citations omitted]