REGINA v OC (Oliver Curtis) [2015] NSWCCA 212

REGINA v OC (Oliver Curtis) [2015] NSWCCA 212

The ASIC Act, particularly s 49 in conjunction with ss 68 and 76, discloses by necessary intendment that where ASIC causes a prosecution to be commenced or carried on, prosecutors may be given access to the transcript of a s 19 examination and, subject only to the prohibition against direct use of self-incriminating material in s 68, may use it for the prosecution. Because the prosecution was entitled to the transcript, the primary judge erred in law in granting a temporary stay requiring removal of persons with direct or derivative access to it.

Jurisdiction
Australia
Judgment Date
13 August 2015
Procedural Posture
Criminal Appeal / Appeal Pursuant to S 5 F(2) of the Criminal Appeal Act 1912 (nsw) From an Interlocutory Temporary Stay of Criminal Proceedings
Outcome
Appeal allowed; temporary stay set aside.
Legal Topics
['privilege Against Self Incrimination' 'accusatorial System of Criminal Justice' 'asic Compulsory Examinations Under S 19 of the Australian Securities and Investment Commission Act 2001 (cth)' 'temporary Stay of Proceedings' 'use and Disclosure of Examination Transcripts to Prosecutors' 'principle of Legality']
['criminal Law' 'statutory Interpretation' 'corporations Law' 'evidence'] ['privilege Against Self Incrimination' 'accusatorial System of Criminal Justice' 'asic Compulsory Examinations Under S 19 of the Australian Securities and Investment Commission Act 2001 (cth)' 'temporary Stay of Proceedings' 'use and Disclosure of Examination Transcripts to Prosecutors' 'principle of Legality']

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Procedural Posture

Criminal Appeal / Appeal Pursuant to S 5 F(2) of the Criminal Appeal Act 1912 (nsw) From an Interlocutory Temporary Stay of Criminal Proceedings

Legal Issues

  1. 1 ["Whether the Australian Securities and Investment Commission Act 2001 (Cth) permitted provision of the transcript of the respondent's compulsory examination under s 19 to persons involved in prosecuting the respondent." 'Whether the primary judge erred in granting a temporary stay pending removal of persons from the prosecution team who had direct or derivative access to the examination transcript.' 'Whether ss 49, 68, 76 and related provisions of the Australian Securities and Investment Commission Act 2001 (Cth) authorised the prosecution team to use the examination transcript, subject to direct use immunity for self-incriminating material.']

Ratio Decidendi

The ASIC Act, particularly s 49 in conjunction with ss 68 and 76, discloses by necessary intendment that where ASIC causes a prosecution to be commenced or carried on, prosecutors may be given access to the transcript of a s 19 examination and, subject only to the prohibition against direct use of self-incriminating material in s 68, may use it for the prosecution. Because the prosecution was entitled to the transcript, the primary judge erred in law in granting a temporary stay requiring removal of persons with direct or derivative access to it.

Court Disposition

Appeal allowed; temporary stay set aside.

Orders

  • ['Appeal allowed.' 'The stay ordered by the primary judge on 10 October 2014 be set aside.']