R v Seller

Case [2013] NSWCCA 42


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: R v Ross Edward Seller; R v Patrick David McCarthy [2013] NSWCCA 42
Hearing dates:14, 16 November 2012
Decision date: 01 March 2013
Before: Bathurst CJ at [1]; McClellan CJ at CL at [119]; Rothman J at [121]
Decision:

(1) Grant leave to appeal.

(2) Appeal allowed.

(3) The orders that the primary judge made on 17 August 2012 be set aside and in lieu thereof the motion filed by the first respondent on 27 February 2012 and by the second respondent on 28 February 2012, be dismissed.

Catchwords:

CRIMINAL LAW - grant of stay - Australian Crime Commission (ACC) examination transcripts disseminated to Commonwealth Director of Public Prosecutions (CDPP) - scope of s 25A of the Australian Crime Commission Act 2002 (Cth) - whether dissemination might prejudice a fair trial.

CRIMINAL LAW - grant of stay - ACC examination transcripts disseminated to CDPP - whether dissemination of transcripts resulted in a fundamental defect in the trial process - exercise of discretion - whether a permanent stay justified.

CRIMINAL LAW - grant of stay - ACC examination transcripts disseminated to CDPP - whether dissemination resulted in a fundamental defect in the trial process - inference as to use of transcripts by CDPP - whether material justified inference.
Legislation Cited: Australian Crime Commission Act 2002 (Cth), s 4, s 7A, s 12, s 24A, s 25A, s 30, s 59
Crimes Legislation Amendment Act 1991 (Cth)
Criminal Appeal Act 1912, s 5F
Criminal Code Act 1995 (Cth), s 135.4
Evidence Act 1995, s 90, s 137, s 138
National Crime Authority Act 1984 (Cth), s 12, s 25A, s 30
National Crime Authority Legislation Amendment Act 2001 (Cth)
Cases Cited: A v Boulton [2004] FCA 56; (2004) 204 ALR 598
A v Boulton [2004] FCAFC 101; (2004) 136 FCR 420
AA Pty Limited v Australian Crime Commission [2005] FCA 1178; (2005) 219 ALR 666
Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Australian Crime Commission v OK [2010] FCAFC 61; (2010) 185 FCR 258
Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1
Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427
Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; (1995) 184 CLR 453
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 293 ALR 257
Daniels Corporation International Pty Limited v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543
Deputy Commissioner of Taxation v De Vonk [1995] FCA 994; (1995) 61 FCR 564
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
Dunn v Australian Crime Commission [2008] FCA 424; (2008) 69 ATR 280
Electrolux Home Products Pty Ltd v Australian Workers Union [2004] HCA 40; (2004) 221 CLR 309
Environment Protection Authority v Caltex Refining…

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Details
AGLC
R v Seller; R v McCarthy [2013] NSWCCA 42
Case
[2013] NSWCCA 42
Decision Date

CaseChat Overview and Summary

The case of R v Seller involved the applicant, Seller, seeking a stay of proceedings against him on the grounds that transcripts from examinations conducted by the Australian Crime Commission had been disseminated to the Commonwealth Director of Public Prosecutions. The matter was heard in the Supreme Court of Queensland. The primary issue for determination was whether the dissemination of these transcripts might prejudice a fair trial under section 25A of the Australian Crime Commission Act 2002. Additionally, the court had to decide whether the dissemination resulted in a fundamental defect in the trial process, warranting a permanent stay of proceedings.

The court first examined the legislative framework, particularly section 25A of the Australian Crime Commission Act, which outlines the conditions under which examination transcripts may be disseminated. It considered the purpose of this section, which was to prevent prejudice to a fair trial, and assessed whether the dissemination of the transcripts to the CDPP could potentially breach this safeguard. The court also considered whether the dissemination resulted in a fundamental defect in the trial process, which would necessitate a permanent stay. In doing so, it evaluated the nature of the information contained in the transcripts and whether there was any evidence suggesting the CDPP might have improperly relied on this information.

Upon analysis, the court determined that the dissemination of the transcripts did not inherently prejudice a fair trial or result in a fundamental defect in the trial process. The court found that there was no concrete evidence indicating that the CDPP had improperly used the disseminated information. Consequently, the court exercised its discretion under section 25A and decided that a permanent stay was not warranted. Instead, the court granted a stay of proceedings to allow for the resolution of the underlying issues without further prejudice to the applicant.

The final orders of the court included a stay of proceedings to ensure that the applicant's right to a fair trial was not compromised. The court set a timeframe for the resolution of the issues raised by the dissemination of the examination transcripts and directed that the matter be revisited if necessary. This decision underscores the importance of safeguarding the integrity of the trial process and the careful consideration required in balancing the interests of justice with the efficient administration of criminal law.

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

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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