2. The parties be heard as to the consequential orders to be made.
Catchwords:
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – permanent stay of the proceedings – compulsory examination of the accused by Australian Crime Commission before charged – examination transcripts provided to prosecutors – derivative use of examination material – privilege against self-incrimination – whether examination lawful – whether use of evidence for another trial lawful – whether accused deprived the right of a fair trial – whether an abuse of process to be charged following assertion accused would not be prosecuted if evidence given – whether improper or unlawful for investigating officers to be present at examination – whether a stay is justified if an abuse of process – application dismissed – stay not granted – necessary precautions ordered for trial not to suffer a fundamental defect
ADMINISTRATIVE LAW – STATUTORY AUTHORITY – Investigation of organised crime – outlaw motorcycle gangs – power of compulsory examinations – accused compulsorily examined – whether abrogation of self-incrimination is an abuse of process – Australian Crime Commission Act 2002 (ACT)
[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
AGLC
R v Will [2017] ACTSC 356
Case
[2017] ACTSC 356
Decision Date
CaseChat Overview and Summary
In the case of R v Will, the respondent applied for a permanent stay of proceedings against him on the basis that he had been compelled to give evidence before the Australian Crime Commission (ACC) under the Australian Crime Commission Act 2002. The respondent contended that the compulsory examination was unlawful, and that the use of his compelled evidence was an abuse of process, leading to a deprivation of his right to a fair trial. The respondent further argued that the ACC examination was conducted in an improper manner, with ACC investigators present, and that this rendered the examination unlawful.
The central legal issues before the court were whether the compulsory examination by the ACC was lawful and whether the derivative use of compelled evidence was an abuse of process. The court had to determine if the respondent's privilege against self-incrimination was breached and if the presence of ACC investigators during the examination was improper. Additionally, the court needed to decide if the respondent's right to a fair trial was compromised by the use of compelled evidence and if the promise not to prosecute him if he gave evidence constituted an abuse of process.
The court found that the compulsory examination was not unlawful, and the derivative use of compelled evidence did not amount to an abuse of process. The court determined that the respondent's privilege against self-incrimination was not breached, and that the presence of ACC investigators during the examination did not render it unlawful. The court also held that the respondent was not deprived of his right to a fair trial and that the promise made by the ACC did not constitute an abuse of process. Consequently, the application for a permanent stay of proceedings was dismissed, and the court ordered that necessary precautions be taken to ensure the trial would not suffer a fundamental defect.
The court further directed that the parties be heard regarding the consequential orders to be made in light of the dismissal of the stay application. This includes determining what steps need to be taken to safeguard the respondent's rights during the trial and to ensure that any evidence obtained from the ACC examination is properly managed and presented in court.
Orders
Orders of the court
1. The application for a stay is dismissed.
2. The parties be heard as to the consequential orders to be made.