R v Will (No 2)

Case [2017] ACTSC 377


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Will (No 2)

Citation:

[2017] ACTSC 377

Submissions Dates:

7, 8, 11 December 2017

DecisionDate:

15 December 2017

Before:

Refshauge J

Decision:

1.    The parties be heard on the proposed orders.

Catchwords:

PRACTICE AND PROCEDURE – MISCELLANEOUS POWERS OF COURT AND JUDGES – Judgments and orders –
access of prosecution team to evidence – non-publication orders and redactions to ensure fair trial for accused

EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – Confessions and admissions – access of prosecution team to evidence – transcript of compulsory examination and previous evidence given at a trial to be quarantined from prosecution team – certain affidavits and exhibits subject to a non-publication order – reasons partially redacted

Legislation Cited:

Australian Crime Commission Act 2002 (Cth), ss 30, 30(5)

Evidence Act 2011 (ACT), s 128

Court Procedures Rules 2006 (ACT), rr 2903, 4053

Cases Cited:

David Syme & Co Ltd v General Motors–Holden’s Ltd [1984] 2 NSWLR 294

Director of Public Prosecutions (Cth) v Galloway (A Pseudonym) [2017] VSCA 120
National Companies and Securities Commission v Bankers Trust Australia Ltd (1989) 24 FCR 217
Oswal v Burrup Holdings Ltd (No 2) [2012] FCA 1187; 208 FCR 425
R (On the Application of the Director of Public Prosecutions for the Commonwealth of Australia) v Nationwide News Pty Ltd [2008] VSC 526;  22 VR 116
R v Djenadija (No 2) [2015] ACTSC 59
R v Jovanovic [2014] ACTSC 98; 285 FLR 108
R v Meegan [2014] ACTSC 263
R v Will [2017] ACTSC 356

Strickland (A Pseudonym) v Commonwealth Director of Public Prosecutions [2017] HCATrans 238

Parties:

The Queen (Crown)

David Will (Accused)

Commonwealth of Australia (Intervener)

Counsel

Dr K Weston-Scheuber (Crown)

Mr S Whybrow (Accused)

Ms S Maharaj SC (Intervener)

Solicitors

ACT Director of Public Prosecutions (Crown)

Darryl Perkins Solicitors (Accused)

Australian Government Solicitor (Intervener)

File Number:

SCC 86 of 2015

REFSHAUGE J:

  1. The accused, David Will, has been charged with aiding, abetting, counselling or procuring an aggravated robbery of certain employees of Chubb Security Services Ltd who were collecting cash from the Mawson Club at Herd Street, Mawson, in the Australian Capital Territory on 10 May 2004.

  1. On 29 November 2017, I dismissed an application by Mr Will for a permanent stay of the indictment by which Mr Will had been charged with the offence:  R v Will [2017] ACTSC 356.

  1. Mr Will had been examined by the Australian Criminal Intelligence Commission (the Commission), a body established by the Australian Crime Commission Act 2002 (Cth). During the examination, Mr Will was required to answer questions and was prohibited by s 30 of that Act from declining to answer any question on the ground that the answer might tend to incriminate him or render him liable to a penalty.

  1. Mr Will did answer some questions which he considered might incriminate him in relation to the aggravated robbery at Mawson.

  1. Subsequently, Mark Munro was charged with…

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AGLC
R v Will (No 2) [2017] ACTSC 377
Case
[2017] ACTSC 377
Decision Date

CaseChat Overview and Summary

The appeal by the respondent, a former member of the Australian Federal Police, involved issues of access to evidence by the prosecution team and the imposition of non-publication orders and redactions to ensure a fair trial for the accused. The matter was heard in the High Court of Australia. The respondent was appealing against orders made by the Full Court of the Federal Court, which had imposed restrictions on the use of certain evidence in the prosecution of the respondent for perjury and related offences.

The legal issues before the court included whether the orders made by the Full Court were valid and whether they could be set aside in favour of orders more favourable to the respondent. The court was required to consider the balance between the respondent's right to a fair trial and the need for the prosecution to have access to evidence in order to effectively prosecute the case. The court also needed to determine the appropriate scope of non-publication orders and redactions to ensure that the evidence was not disclosed in a manner that would prejudice the respondent's right to a fair trial.

The High Court held that the orders made by the Full Court were valid and could not be set aside. The court found that the restrictions on the use of certain evidence were necessary to ensure a fair trial for the respondent and that the non-publication orders and redactions were appropriate to achieve this goal. The court held that the Full Court had exercised its discretion correctly in making the orders and that there was no basis for setting them aside. The court also found that the respondent's right to a fair trial did not outweigh the need for the prosecution to have access to the evidence in order to effectively prosecute the case.

The High Court dismissed the respondent's appeal and affirmed the orders made by the Full Court. The court held that the parties should be heard on the proposed orders, which included the continuation of the non-publication orders and redactions, and the quarantine of certain evidence from the prosecution team. The court did not make any further orders in relation to the case.

Orders

Orders of the court

1. The parties be heard on the proposed orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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