R v Seller; R v McCarthy

[2014] NSWSC 1287

Supreme Court

New South Wales

Medium Neutral Citation:	R v Seller; R v McCarthy [2014] NSWSC 1287
Hearing dates:	29 July 2014
Decision date:	29 July 2014
Jurisdiction:	Common Law
Before:	Button J
Decision:	I do not propose to uphold any objection to the adduction of evidence by the Crown on the basis that it would be an abuse of process to call into question the findings of fact made by Garling J.
Catchwords:	CRIMINAL LAW – EVIDENCE – admission of evidence - whether it would amount to an abuse of process to permit the admission of evidence that contradicts findings of fact made in a previous determination with regard to different orders sought
Legislation Cited:	Do Young Lee v The Queen; Seong Won Lee v The Queen [2014] HCA 20; 88 ALJR 656 R v Edwards [1998] 2 VR 354; 94 A Crim R 204 R v Seller; R v McCarthy [2012] NSWSC 934 R v Seller; R v McCarthy [2013] NSWCCA 42 Rippon v Chilcotin Pty Ltd and Others [2001] NSWCA 142; 53 NSWLR 198 Rogers v The Queen (1994) 181 CLR 251 X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92
Cases Cited:	Do Young Lee v The Queen; Seong Won Lee v The Queen [2014] HCA 20; 88 ALJR 656 R v Edwards [1998] 2 VR 354; 94 A Crim R 204 R v Seller; R v McCarthy [2012] NSWSC 934 R v Seller; R v McCarthy [2013] NSWCCA 42 Rippon v Chilcotin Pty Ltd and Others [2001] NSWCA 142; 53 NSWLR 198 Rogers v The Queen (1994) 181 CLR 251 X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92
Category:	Procedural and other rulings
Parties:	Ross Edward Seller (Accused) Patrick David McCarthy (Accused)
Representation:	Counsel: DJ Fagan SC (Crown) P McGuire (Crown) P Strickland SC (McCarthy) P Bruckner (McCarthy) DKL Raphael (Seller) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Hardin Law (McCarthy) Gibson Lawyers (Seller)
File Number(s):	2009/237556 2009/237509

EX TEMPORE Judgment

1. Senior counsel for Mr McCarthy has submitted that it would be an abuse of process for the Crown to be permitted to adduce evidence that contradicts findings of fact made by Garling J not interfered with by the Court of Criminal Appeal. Counsel for Mr Seller has joined in that application.

2. To state the background with great succinctness, this trial starkly raises the question of the interaction in practice between inquisitorial and adversarial processes in Australia: X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92; Do Young Lee v The Queen; Seong Won Lee v The Queen [2014] HCA 20; 88 ALJR 656. That is because the accused, each of whom has been arraigned on a count alleging, in short, conspiracy to defraud, submit that an important witness in the Crown case had extensive access to oral and documentary material produced under compulsion by them to the Australian Crime Commission.

3. Before Garling J a permanent stay was obtained: R v Seller; R v McCarthy [2012] NSWSC 934. In the Court of Criminal Appeal that order was quashed: R v Seller; R v McCarthy [2013] NSWCCA 42. The matter was remitted for further hearing to this Court. Currently an amended notice of motion of Mr McCarthy, in which Mr Seller joins, is being heard by me before the trial by jury some months from now.

4. Senior counsel for Mr McCarthy, correctly in my opinion, disavows in his submission that issue estoppel has a role to play in the criminal law: Rogers v The Queen (1994) 181 CLR 251 at 254 and 276.

5. However, he and his junior submit that it would be an abuse of process that would scandalise the administration of justice and that could lead to the unseemly result of inconsistent verdicts to permit the Crown to tender evidence that contradicts the extant findings of Garling J. It was accepted that it is for Mr McCarthy, as the moving party, to establish that proposition.

6. I respectfully reject the submission. I do so on the following bases.

7. First, an examination of the orders sought in the amended notice of motion before me, and the orders sought before Garling J, shows that, although factually related to a degree, they are actually rather different.

8. Secondly, as one would expect in those circumstances, the issues requiring determination by me are different from those requiring determination by Garling J.

9. Thirdly, senior counsel for Mr McCarthy has submitted that he should be permitted to tender supplementary evidence in support of the motion that was not before Garling J. To my mind, it would be an odd result if Mr McCarthy, but not the Crown, were afforded that flexibility with regard to adding to or revisiting the findings made by Garling J.

10. Fourthly, whether the Crown accepted the correctness of the findings of Garling J in the Court of Criminal Appeal in whole or in part is, to my mind, relevant but not determinative. The fact is, as I have said, that the relief sought and therefore the nature of the proceedings, has now altered.

11. Fifthly, to a degree the amended motion constitutes an application for an evidentiary ruling, in that reliance is placed in part on s 138 of the Evidence Act 1995 (NSW). It is well known that evidentiary rulings are not set in stone and can be revisited during a trial if the state of the evidence changes. Again, that state of affairs, to my mind, argues in favour of flexibility.

12. Sixthly, to the extent that the "verdict" of Garling J granting a permanent stay was quashed, there is no question of inconsistent verdicts in the true sense. As I have said, the matter is proceeding by way of a further hearing of the same trial before me.

13. Seventhly, without delving into a detailed comparison of the facts, to my mind the circumstances here are very far removed from those that were held to be an abuse of process by the High Court of Australia in the leading case about revisitation of findings of fact leading to an abuse of process in the criminal context: Rogers v The Queen.

14. Eighthly, although it plays a small role in my determination, I consider it possible that the Crown was not in a position to litigate with completeness before Garling J the question of the role of the witness under consideration, namely Mr Tang, that it now seeks to revisit: Rippon v Chilcotin Pty Ltd and Others [2001] NSWCA 142; 53 NSWLR 198 at 204.

15. Ninthly, senior counsel for Mr McCarthy has, with the usual candour of counsel, invited my attention to the decision of the Victorian Court of Appeal in R v Edwards [1998] 2 VR 354, 94 A Crim R 204. That decision is simply to the effect that evidentiary interlocutory determinations in the same criminal proceedings are not binding on a subsequent judge hearing those same proceedings. I have no reason to doubt that that is a correct statement of the law of New South Wales as well.

16. It is for those reasons that I do not propose to uphold any objection to the adduction of evidence by the Crown on the basis that it would be an abuse of process to call into question the findings of fact made by Garling J.

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