R v Rogerson; R v McNamara (No 2) [2015] NSWSC 619

R v Rogerson; R v McNamara (No 2) [2015] NSWSC 619

The subpoena was set aside because the ACC established that the documents sought came into its custody or control through performance of duties under the Australian Crime Commission Act 2002 (Cth), and the accused did not establish an exception to the statutory immunity in s. 51(3). The word "prosecution" in s. 51(3)(b) meant the present prosecution of the accused, not the completed prosecution of the Lams. Mr Gray's affidavit showed that the present prosecutions were not instituted as a result of an ACC operation or investigation, and the evidence relied on by the accused did not establish that the investigation or prosecution of the Lams formed part of the Crown case against the...

Jurisdiction
Australia
Judgment Date
26 May 2015
Procedural Posture
Criminal Proceedings; Application to Set Aside Subpoena / Procedural Ruling on Australian Crime Commission Notice of Motion
Outcome
Subpoena set aside; timetable made for written costs submissions.
Legal Topics
['subpoena to Produce Documents' 'statutory Immunity From Production' 'australian Crime Commission Secrecy Provisions' 'cross Examination of Affidavit Deponent' 'meaning of "necessary" and "prosecution" in S. 51(3)(b) of the Australian Crime Commission Act 2002 (cth)']
['criminal Law' 'practice and Procedure' 'evidence'] ['subpoena to Produce Documents' 'statutory Immunity From Production' 'australian Crime Commission Secrecy Provisions' 'cross Examination of Affidavit Deponent' 'meaning of "necessary" and "prosecution" in S. 51(3)(b) of the Australian Crime Commission Act 2002 (cth)']

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Procedural Posture

Criminal Proceedings; Application to Set Aside Subpoena / Procedural Ruling on Australian Crime Commission Notice of Motion

Legal Issues

  1. 1 ['Whether the accused McNamara should be permitted to cross-examine the Acting Executive Director of Operations of the Australian Crime Commission on his affidavit supporting the application to set aside the subpoena.' 'Whether s. 51(3) of the Australian Crime Commission Act 2002 (Cth) gave immunity from production of documents sought by the subpoena.' 'Whether the exception in s. 51(3)(b) applied because production was necessary for the purposes of a prosecution instituted as a result of an operation or investigation carried out by the Australian Crime Commission.' 'Whether the word "prosecution" in s. 51(3)(b) referred to the prosecution of McNamara and Rogerson or could refer to the prosecution of the Lams.']

Ratio Decidendi

The subpoena was set aside because the ACC established that the documents sought came into its custody or control through performance of duties under the Australian Crime Commission Act 2002 (Cth), and the accused did not establish an exception to the statutory immunity in s. 51(3). The word "prosecution" in s. 51(3)(b) meant the present prosecution of the accused, not the completed prosecution of the Lams. Mr Gray's affidavit showed that the present prosecutions were not instituted as a result of an ACC operation or investigation, and the evidence relied on by the accused did not establish that the investigation or prosecution of the Lams formed part of the Crown case against the...

Court Disposition

Subpoena set aside; timetable made for written costs submissions.

Orders

  • ['The Subpoena issued on 24 April 2015 on behalf of the accused McNamara to the Australian Crime Commission is set aside.' 'Any submissions to be made on behalf of the Australian Crime Commission as to costs are to be provided to my Associate in writing on or before 1 June 2015, such submissions not to exceed two...