Medium Neutral Citation: R v Seller; R v McCarthy [2015] NSWCCA 76
Hearing dates: 17 October 2014
Decision date: 29 April 2015
Before: Bathurst CJ at [1]; Fullerton J at [228]; Bellew J at [243]
Decision:
1. Dismiss the appeal brought by the Crown.
2. Grant each of Patrick David McCarthy and Ross Edward Seller leave to appeal on grounds 1, 3-9 inclusive of the further amended notice of application for leave to appeal filed by each of them on 3 October 2014, but dismiss the appeal.

Catchwords:
APPEAL – appeal under s 5F(2) of the Criminal Appeal Act 1912 (NSW) against interlocutory orders – limitation under s 5F(3A) for appeals against decisions on admissibility of evidence - whether Crown can appeal against order prohibiting a person from giving evidence – whether order prohibiting a person from giving evidence is an interlocutory order or a decision on the admissibility of evidence

CRIMINAL LAW – evidence – witnesses – proposed witness for prosecution present at compulsory examinations – proposed evidence of witness informed by compulsorily acquired materials – whether witness should be prohibited from giving evidence in a subsequent criminal trial – whether respondents would be hindered or limited in cross-examination of witness

CRIMINAL LAW – duties of prosecutor - dissemination of compulsorily acquired material to prosecution authorities – where dissemination disclosed and current prosecution team had not read the material – whether prosecutor satisfied duties of disclosure and to present case properly and with fairness to the accused

CRIMINAL LAW – legal professional privilege – imputed waiver of privilege – inference to be drawn from the maintenance of privilege – whether maintenance of privilege inconsistent with contention that compulsorily acquired material did not give Crown forensic advantage – whether maintenance of privilege inconsistent with denial of indirect disclosure of compulsorily acquired material – whether proceedings should be stayed until privilege is waived

CRIMINAL LAW – grant of stay – considerations for granting a permanent stay - unlawful dissemination of compulsorily acquired material – whether dissemination altered the accusatorial process such as to warrant a permanent stay

CRIMINAL LAW – grant of stay – whether the fact that persons present during compulsory examinations may have been party to the formulation of charges against the respondents warranted a permanent or temporary stay
CRIMINAL LAW – grant of stay – compulsory examination for improper purpose or abuse of power – whether stay should be granted where proceedings do not depend on examination and compulsorily acquired material is not admissible in evidence
Legislation Cited: Australian Crime Commission Act 2002 (Cth)
Criminal Appeal Act 1912 (NSW)
Criminal Code Act 1995 (Cth)
Evidence Act 1995 (NSW)
National Crime Authority Act 1984 (Cth)
New South Wales Crime Commission Act 1985 (NSW)
Telecommunications (Interception and Access) Act 1979 (Cth)
Cases Cited: Attorney-General (NT) v Emmerson [2014] HCA 13; 88 ALJR 522
Australian Securities and Investment Commission v Hellicar [2012] HCA 17; 247 CLR…

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 Seller

Details

AGLC: R v Seller; R v McCarthy [2015] NSWCCA 76
Case: [2015] NSWCCA 76
Decision Date: 29 April 2015

CaseChat Overview and Summary

In the case of R v Seller, the appellant sought an appeal against interlocutory orders made by the Supreme Court of New South Wales. The respondents opposed the appeal, arguing that it was barred by a limitation period under section 5F(3A) of the Criminal Appeal Act 1912 (NSW). The appeal raised several legal issues, including whether the Crown could appeal against an order prohibiting a person from giving evidence, and if such an order constituted an interlocutory order or a decision on the admissibility of evidence. The appeal also concerned the duties of the prosecutor in relation to the dissemination of compulsorily acquired material, the implications of legal professional privilege, and the circumstances under which a stay should be granted.

The court examined the nature of the interlocutory orders and whether they were appealable. It found that the prohibition on a person giving evidence in a subsequent trial was not an interlocutory order for the purposes of section 5F(2) of the Act. The court concluded that the prohibition order was a decision on the admissibility of evidence, which was not appealable under the limitation period of section 5F(3A). The court further considered the implications of the dissemination of compulsorily acquired material and the duties of the prosecutor. It held that the prosecutor had not satisfied their duties of disclosure and to present the case properly and with fairness to the accused. The court also addressed the issue of legal professional privilege, finding that the maintenance of privilege did not necessarily imply an indirect disclosure of compulsorily acquired material.

The court held that the appeal against the interlocutory orders was not permitted under section 5F(3A) of the Criminal Appeal Act 1912 (NSW). The court also found that the dissemination of compulsorily acquired material did not warrant a permanent stay of proceedings. However, the court granted a temporary stay to allow the parties to address the issues of privilege and the fairness of the proceedings. The court emphasised the importance of ensuring that the accusatorial process was not undermined by the unlawful dissemination of material and the potential for witnesses to be party to the formulation of charges against the respondents.

The court made an order dismissing the appeal and granting a temporary stay of the proceedings. The court directed the parties to address the issues of privilege and fairness in the proceedings. The stay was to remain in effect until the parties had an opportunity to address these issues and the court was satisfied that the proceedings could proceed fairly.

Orders