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Wells v The Queen

Wells v The Queen

Case [2017] VSCA 147 21 June 2017

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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 A Sharp

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…

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.

Continue reading Wells v The Queen

Details

AGLC: Wells v The Queen [2017] VSCA 147
Case: [2017] VSCA 147
Decision Date: 21 June 2017

CaseChat Overview and Summary

The case of Wells v The Queen involved the applicant, Mr. Wells, seeking leave to appeal against the refusal of an application for a permanent stay of criminal proceedings against him. The matter was heard in the High Court of Australia, which was asked to decide whether the trial judge was correct in concluding that it was reasonably possible to hold a fair trial despite the extensive pre-trial publicity that had occurred. The publicity stemmed from a pre-charge investigation by the Independent Broad-based Anti-Corruption Commission and included admissions made by Mr. Wells during a compulsory public examination.

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