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R v Seller; R v McCarthy

R v Seller; R v McCarthy

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Case Copied 17 August 2012 79 min read

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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…

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.

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Details

Case: [2012] NSWSC 934
Decision Date: 17 August 2012

CaseChat Overview and Summary

In the case of R v Seller; R v McCarthy, the appellants challenged the admissibility of evidence obtained from their examinations under the Australian Crime Commission Act 2002 (Cth). They argued that the admissibility of this evidence violated their right to a fair trial under the Constitution. The appellants were facing charges of conspiracy to dishonestly influence the Commissioner of Taxation, contrary to section 135.4(7) of the Criminal Code Act 1995 (Cth). The primary issue before the court was whether the appellants' constitutional right to a fair trial was compromised by the admissibility of the evidence obtained from their examinations.

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.

Orders