R v Seller; R v McCarthy (No 3) [2014] NSWSC 1290

R v Seller; R v McCarthy (No 3) [2014] NSWSC 1290

Mr Tang's proposed evidence was substantially enhanced by compulsorily acquired material from the accused's compulsory ACC examinations and documents, and the required separation between compelled self-incrimination and the prosecution case was breached. Permitting his evidence would render the trial unfair and infringe the accusatorial process, requiring exclusion of his evidence. There was no sufficient basis to disqualify prosecution counsel or order a permanent stay, as the current prosecution team did not have access to the compulsorily acquired material.

Jurisdiction
Australia
Judgment Date
19 September 2014
Procedural Posture
Criminal / Ruling on Pre Trial Motions Before Trial
Outcome
Partial grant of motion; balance dismissed
Legal Topics
['exclusion of Evidence' 'use of Compulsorily Acquired Material' 'right to Fair Trial' 'derivative Use Immunity' 'permanent Stay of Proceedings']
['criminal Law' 'evidence' 'practice and Procedure'] ['exclusion of Evidence' 'use of Compulsorily Acquired Material' 'right to Fair Trial' 'derivative Use Immunity' 'permanent Stay of Proceedings']

Case Brief

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Procedural Posture

Criminal / Ruling on Pre Trial Motions Before Trial

Legal Issues

  1. 1 ['Whether witness (Quincy Tang) should be prohibited from giving evidence informed by compulsorily acquired material in a criminal trial' 'Whether prosecuting lawyers or the trial should be stayed due to exposure to such material' 'Appropriate scope of derivative use immunity and impact on trial fairness']

Ratio Decidendi

Mr Tang's proposed evidence was substantially enhanced by compulsorily acquired material from the accused's compulsory ACC examinations and documents, and the required separation between compelled self-incrimination and the prosecution case was breached. Permitting his evidence would render the trial unfair and infringe the accusatorial process, requiring exclusion of his evidence. There was no sufficient basis to disqualify prosecution counsel or order a permanent stay, as the current prosecution team did not have access to the compulsorily acquired material.

Court Disposition

Partial grant of motion; balance dismissed

Orders

  • ['Quincy Tang is prohibited from giving evidence in the trial in accordance with his three statements dated 3 November 2009 and his statement dated 30 June 2010.' 'All of the other orders sought in the further amended notice of motion filed 5 August 2014 and the identical notice of motion filed by Mr Raphael are...