SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0093
| BARRY JOHN WELLS[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]As this was an interlocutory appeal, the publication of this judgment was previously restricted and anonymised under the name Marvin Soto (a pseudonym) v The Queen. It is now published without the adoption of pseudonyms.
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| JUDGES: | MAXWELL P, OSBORN and FERGUSON JJA | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | 29 May 2017 | |
| DATE OF JUDGMENT: | 21 June 2017 | |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 147 | First Revision: 5 February 2018 Pseudonyms removed |
| JUDGMENT APPEALED FROM: | [2017] VSC 199R (John Dixon J) | |
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CRIMINAL PROCEDURE — Application for leave to appeal — Interlocutory appeal — Application for permanent stay of proceedings refused by trial judge — Pre-trial publicity arising from pre-charge investigation by Independent Broad-based Anti-Corruption Commission — Admissions made by the accused under compulsory public examination — Extensive publicity about matters the subject of charges — Whether reasonably open to trial judge to conclude it was possible to put in place measures which would enable a fair trial despite adverse publicity — Dupas v The Queen (2010) 241 CLR 237 applied — Tuckiar v The King (1934) 52 CLR 335 distinguished – Leave refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Maidment SC with Mr M Thomas | Furstenberg Lawyers |
| For the Respondent | Ms L A Taylor QC with Mr K Armstrong and | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P
OSBORN JA
FERGUSON JA:
Introduction
The applicant is facing one common law charge of conspiracy to defraud and ten charges of receiving a secret commission (contrary to s 176(1) of the Crimes Act 1958.) He is to stand trial on these charges on 17 July 2017. The charges were laid after the applicant had been both privately and publicly examined by the Independent Broad-Based Anti-corruption Commission (‘IBAC’).
The examinations were coercive and were part of IBAC’s investigation into allegations of corruption related to the award of contracts by the Victorian Department of Transport (‘DOT’) and Public Transport Victoria (‘PTV’) to entities associated with the applicant and an associate. At the relevant times, the applicant was a public servant in the DOT, later transferring to the PTV. The IBAC investigation was known as ‘Operation Fitzroy.’ The public examination of the applicant was the subject of publicity, including publicity about admissions he made that he had accepted cash and gifts in exchange for awarding multiple government contracts whilst in public office.
The applicant sought a permanent stay of the criminal proceeding against him. He contended that he cannot have a fair trial due to the publicity about his admissions. He also contended that it would be an abuse of process for the proceedings to continue, first because it would be unjustifiably and unfairly oppressive to him and, second, because it would bring the administration of justice into disrepute in light of what preceded the initiation of the criminal charges. Central to each of the applicant’s…
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- AGLC
- Wells v The Queen [2017] VSCA 147
- Case
- [2017] VSCA 147
- Decision Date
CaseChat Overview and Summary
The legal issues before the court centred on the right to a fair trial as guaranteed under the Australian Constitution. Specifically, the court needed to determine whether the trial judge was correct in finding that measures could be implemented to ensure a fair trial, despite the significant pre-trial publicity. The court considered the principles established in Dupas v The Queen, which held that a fair trial was possible even in the face of adverse publicity if appropriate measures were put in place. The court also needed to assess whether the trial judge's decision was distinguishable from the approach in Tuckiar v The King, where the court had found that a fair trial was not possible due to extensive publicity.
The High Court concluded that the trial judge's assessment that a fair trial could be achieved with adequate measures was reasonably open. The court held that the extensive publicity and the admissions made by the applicant did not necessarily preclude the possibility of a fair trial, provided that the trial judge could reasonably conclude that appropriate measures could be implemented. The court found that the trial judge's decision was consistent with the principles in Dupas and distinguished the approach in Tuckiar, which involved different circumstances. Consequently, the court refused the applicant leave to appeal.
The final orders of the court were that the application for leave to appeal was refused, and the decision of the trial judge to deny the application for a permanent stay of proceedings was upheld. This decision affirms the trial judge's ability to manage the conduct of a trial in the face of adverse publicity, provided that it is reasonably possible to ensure a fair trial through the implementation of appropriate measures.
Orders
Orders of the court
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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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