Supreme Court
New South Wales
Medium Neutral Citation: R v Seller R v McCarthy [2012] NSWSC 934 Hearing dates: 29/03/2012-30/03/2012, 02/04/2012 Decision date: 17 August 2012 Jurisdiction: Common Law - Criminal Before: Garling J Decision: (1) Order that any proceedings on the indictments presented on 14 March 2012 against Ross Edward Seller and Patrick David McCarthy, be, and hereby are, stayed.
(2) Order that the Commonwealth Director of Public Prosecutions pay the applicants' costs of the applications, except the costs of preparing and copying Exhibits PH5, PH6 and PH7.
(3) Order that the Australian Crime Commission pay its own costs of the proceedings.
Catchwords: PRACTICE AND PROCEDURE - Application for permanent stay - Charge of conspiracy with intention of dishonestly influencing Commission of Taxation - Criminal Code Act s 135.4(7) - Examination pursuant to s 28 of Australian Crime Commission Act 2002 - Claim for self-incrimination under s 30 - Non-publication direction given - Transcripts of examinations provided to CDPP contrary to direction for one accused - Transcripts contained factual matters central to criminal charge - Evidence solicitor for CDPP did not read transcripts - Other communication between CDPP and ACC - Updates, advice, briefing papers -- Principal ATO investigator attended examinations and read transcripts - Significant and central witness at future trial - Whether real risk that relevant ACC information communicated to the prosecution - Whether fair trial possible - Whether permanent stay should be granted - Stay granted Legislation Cited: Australian Crime Commission Act 2002 (Cth)
International Covenant on Civil and Political Rights
Bill of Rights Act 1990 (NZ)
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)
Mutual Assistance in Criminal Matters Act 1987 (Cth)Cases Cited: A v Boulton [2004] FCA 56; (2004) 204 ALR 598
A v Boulton [2004] FCAFC 101; (2004) 136 FCR 240
Australian Crime Commission v OK [2010] FCAFC 61; (2010) 185 FCR 258
Batistatos v Roads and Traffic Authority of NSW (NSW) [2006] HCA 27; (2006) 226 CLR 256
Blatch v Archer (1774) 1 Cowp 63; 98 ER 969
Collins v R [1975] HCA 60; (1975) 133 CLR 120
Dupas v R [2010] HCA 20; (2010) 241 CLR 237
Environment Protection Authority v Caltex Refining Company Pty Ltd [1993] HCA 74; (1993) 178 CLR 477
Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486
Hammond v The Commonwealth [1982] HCA 42; (1982) 152 CLR 188
Huddart Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330
Mansfield v Australian Crime Commission [2003] FCA 1059; (2003) 132 FCR 251
Moevao v Department of Labour [1980] 1 NZLR 464
Moti v R [2011] HCA 50; (2011) 86 ALJR 117
MP v R; CB v R [2012] HCA Trans 162 (22 June 2012)
North Ganalanja Aboriginal Corporation & The Waanyi People v Queensland [1996] HCA 2; (1996) 185 CLR 595
NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252; (2008) 72 NSWLR…
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- Case
- [2012] NSWSC 934
- Decision Date
CaseChat Overview and Summary
The court considered whether the non-publication direction issued under section 30 of the Australian Crime Commission Act 2002 (Cth) was effectively enforced. Transcripts of the examinations, which contained factual matters central to the criminal charge, were provided to the Crown prosecutor contrary to the direction. Although the solicitor for the Crown prosecutor did not read the transcripts, the principal Australian Taxation Office investigator attended the examinations, read the transcripts, and was a significant and central witness at the future trial. The court had to determine if there was a real risk that relevant information from the Australian Crime Commission was communicated to the prosecution, and if so, whether a fair trial was possible.
The court concluded that there was a real risk that relevant information from the Australian Crime Commission was communicated to the prosecution, which could prejudice the appellants' right to a fair trial. Given the central role of the principal investigator, the court found that the admissibility of the evidence obtained from the examinations would compromise the appellants' right to a fair trial. Therefore, the court granted a permanent stay of the proceedings, ruling that the appellants' constitutional rights were at stake. The court's decision ensured that the appellants' right to a fair trial was upheld, despite the evidential advantages that the prosecution might gain from the examination transcripts.
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