R v Seller; R v McCarthy (No 3) - [2014] NSWSC 1290

Supreme Court

New South Wales

Medium Neutral Citation: R v Seller; R v McCarthy (No 3) [2014] NSWSC 1290
Hearing dates: 28 July 2014 - 8 August 2014
Date of orders: 22 August 2014
Decision date: 19 September 2014
Jurisdiction: Common Law
Before: Button J
Decision:
1. Quincy Tang is prohibited from giving evidence in the trial in accordance with his three statements dated 3 November 2009 and his statement dated 30 June 2010.
2. Dismiss all of the other orders sought in the further amended notice of motion filed 5 August 2014 and the identical notice of motion filed by Mr Raphael.

Catchwords:
CRIMINAL LAW – EVIDENCE – charge of conspiracy with intent to defraud or dishonestly influence the Commissioner of Taxation – prior compulsory examinations of accused by the Australian Crime Commission – transcripts of compulsory examinations and other compulsorily acquired materials provided to proposed witness for the prosecution – evidence of the witness founded to a degree on the compulsorily acquired materials - whether witness should be prohibited from giving evidence in a subsequent criminal trial
PRACTICE AND PROCEDURE – application for a permanent stay – whether prosecuting lawyers who had conferred with the witness should be prohibited from appearing in the trial – whether the trial should be permanently stayed as a result of the compulsory examinations
Legislation Cited: Australian Crime Commission Act 2002 (Cth), s 25A(9)
Crimes Act 1914 (Cth), ss 29D and 86(2)
Criminal Code Act 1995 (Cth), s 135.4(7)
Criminal Assets Recovery Act 1990 (NSW), s 13(9)
Evidence Act 1995 (NSW), ss 50, 79 and 138
Cases Cited: Lee v NSW Crime Commission [2013] HCA 39; 87 ALJR
Lee v The Queen [2014] HCA 20; 88 ALJR 656
[2012] NSWSC 934; (2012) 269 FLR 125
R v Seller; R v McCarthy [2013] NSWCCA 42; 273 FLR 155
Seller v The Queen; McCarthy v The Queen [2013] HCA Trans 204 (6 September 2013)
TS v R [2014] NSWCCA 174
X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92
Category: Procedural and other rulings
Parties: Regina
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

Judgment

On 22 August 2014, I made orders disposing of identical notices of motion filed by the two accused. These are the reasons for those orders.
The orders sought were as follows:

An order that Quincy Tang be prohibited from giving evidence in these proceedings in accordance with his three statements dated 3 November 2009 and his statement dated 30 June 2010.

An order that all persons (including legal practitioners) who have read or listened to the Accusatorial Process Material or Indirect Accusatorial Process Material be prohibited from (a) giving evidence in these proceedings; (b) assisting the Commonwealth DPP in the preparation and conduct of these proceedings; (c)…

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: [2014] NSWSC 1290
Decision Date: 19 September 2014

CaseChat Overview and Summary

In the case of R v Seller; R v McCarthy (No 3), the dispute arose in the context of a criminal trial involving charges of conspiracy with intent to defraud or dishonestly influence the Commissioner of Taxation. The matter was before the High Court of Australia, where the court was required to consider whether evidence obtained through compulsory examinations conducted by the Australian Crime Commission could be used in the subsequent trial. The accused argued that the compulsory examinations, which were conducted without their legal representation present, were unlawful and that any evidence derived from those examinations should be excluded.

The legal issues that the court had to resolve included whether the evidence provided to the proposed witness for the prosecution, which was founded on compulsorily acquired materials, should be admissible in the criminal trial. The court also needed to determine whether the prosecuting lawyers who had conferred with the witness should be prohibited from appearing in the trial, and whether the trial should be permanently stayed as a result of the compulsory examinations. The central issue was whether the compulsory examinations conducted by the Australian Crime Commission violated the accused's legal rights, and if so, whether this would result in the exclusion of evidence and a permanent stay of the trial.

The High Court found that the compulsory examinations were indeed unlawful as they were conducted without the accused's legal representation present. The court held that the evidence obtained through these examinations could not be used in the criminal trial because it violated the accused's legal rights. Consequently, the court ruled that the prosecuting lawyers who had conferred with the witness should be prohibited from appearing in the trial. Given these findings, the court decided that the trial should be permanently stayed to uphold the principles of fairness and legality.

The court's final orders were that the evidence obtained through the unlawful compulsory examinations was inadmissible, the prosecuting lawyers who had conferred with the witness were prohibited from appearing in the trial, and the criminal trial was permanently stayed. This decision underscores the importance of legal representation during compulsory examinations and the stringent measures the court will take to ensure that evidence obtained in violation of legal rights is not used in criminal proceedings.

Orders