R v Macdonald; R v Maitland (No 5) [2016] NSWSC 865

R v Macdonald; R v Maitland (No 5) [2016] NSWSC 865

The applications for permanent or temporary stays failed because the applicants had not established unlawful unfairness or a breach of the companion principle: no evidence was compelled from them after they were charged; the ICAC Act and s 15A of the DPP Act required or authorised disclosure of relevant information, including compelled evidence given or tendered in public, to the DPP; the DPP could use that information to decide whether charges should be laid and to prosecute, subject to the compelled evidence being inadmissible at trial where objection had been taken; and any prejudice flowed from the statutory scheme and was not a basis for a stay.

Jurisdiction
Australia
Judgment Date
23 June 2016
Procedural Posture
Criminal Proceedings on Indictment; Notices of Motion Seeking Permanent or Temporary Stay / Procedural Rulings Before Trial
Outcome
Both notices of motion dismissed.
Legal Topics
['application for Stay of Trial' 'permanent Stay' 'temporary Stay' 'privilege Against Self Incrimination' 'companion Principle' 'accusatorial System of Criminal Justice' 'icac Compelled Evidence' 'use of Public Inquiry Transcripts by Dpp']
['criminal Law' 'criminal Procedure' 'evidence' 'statutory Interpretation'] ['application for Stay of Trial' 'permanent Stay' 'temporary Stay' 'privilege Against Self Incrimination' 'companion Principle' 'accusatorial System of Criminal Justice' 'icac Compelled Evidence' 'use of Public Inquiry Transcripts by Dpp']

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Procedural Posture

Criminal Proceedings on Indictment; Notices of Motion Seeking Permanent or Temporary Stay / Procedural Rulings Before Trial

Legal Issues

  1. 1 ["Whether the applicants' criminal trials should be permanently stayed because the DPP and persons involved in the prosecution had read evidence compelled from the applicants by ICAC before charges were formulated." 'Whether, in the alternative, a temporary stay should be granted until persons with access to the compelled evidence were no longer involved in the prosecution and evidence prepared by such persons was not used.' 'Whether the ICAC Act and DPP Act authorised or required disclosure of compelled evidence to the DPP and permitted its use for formulating charges and preparing the prosecution case.' 'Whether the manner in which the applicants were examined at the ICAC public inquiry created unfairness warranting a stay.']

Ratio Decidendi

The applications for permanent or temporary stays failed because the applicants had not established unlawful unfairness or a breach of the companion principle: no evidence was compelled from them after they were charged; the ICAC Act and s 15A of the DPP Act required or authorised disclosure of relevant information, including compelled evidence given or tendered in public, to the DPP; the DPP could use that information to decide whether charges should be laid and to prosecute, subject to the compelled evidence being inadmissible at trial where objection had been taken; and any prejudice flowed from the statutory scheme and was not a basis for a stay.

Court Disposition

Both notices of motion dismissed.

Orders

  • ['Notice of motion filed in court on behalf of Mr Maitland on 9 May 2016 dismissed.' 'Notice of motion filed on behalf of Mr Macdonald on 16 May 2016 dismissed.']