Macdonald v R; Maitland v R [2016] NSWCCA 306

Macdonald v R; Maitland v R [2016] NSWCCA 306

The ICAC Act, by necessary intendment, abrogates the accusatorial principle at least where a public examination occurs before the examinee is charged, and substitutes the statutory protections in s 18 and s 112. In the absence of a s 112 non-publication order, it was open to ICAC to make the transcript of the public examination available to the DPP. The primary judge made no material error in the challenged findings concerning the advices or the possible influence of compelled evidence, and the factual findings did not warrant a temporary stay.

Jurisdiction
Australia
Judgment Date
16 December 2016
Procedural Posture
Criminal Appeal / Application for Leave to Appeal Under S 5 F(3) of the Criminal Appeal Act 1912 (nsw) From Refusal of a Stay of Proceedings
Outcome
Leave to appeal granted; appeals dismissed.
Legal Topics
['temporary Stay of Proceedings' 'independent Commission Against Corruption Public Inquiry' 'compelled Evidence' 'accusatorial Principle' 'principle of Legality' 'privilege Against Self Incrimination']
['criminal Law' 'criminal Procedure' 'statutory Construction'] ['temporary Stay of Proceedings' 'independent Commission Against Corruption Public Inquiry' 'compelled Evidence' 'accusatorial Principle' 'principle of Legality' 'privilege Against Self Incrimination']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Appeal / Application for Leave to Appeal Under S 5 F(3) of the Criminal Appeal Act 1912 (nsw) From Refusal of a Stay of Proceedings

Legal Issues

  1. 1 ['Whether the ICAC Act abrogates the accusatorial principle so as to permit evidence compulsorily obtained from an accused in a public examination before charge to be made available to the prosecution before charge' 'Whether the primary judge erred in finding that the advices of 24 June 2014 and 7 October 2014 were not prepared with respect to the charges the subject of the proceedings' "Whether the primary judge erred in finding that the evidence went only so far as to suggest that it was possible that Mr English's advice and Mr Walkowiak's requisitions might have been affected by the compelled evidence" 'Whether a temporary stay of proceedings should be ordered']

Ratio Decidendi

The ICAC Act, by necessary intendment, abrogates the accusatorial principle at least where a public examination occurs before the examinee is charged, and substitutes the statutory protections in s 18 and s 112. In the absence of a s 112 non-publication order, it was open to ICAC to make the transcript of the public examination available to the DPP. The primary judge made no material error in the challenged findings concerning the advices or the possible influence of compelled evidence, and the factual findings did not warrant a temporary stay.

Court Disposition

Leave to appeal granted; appeals dismissed.

Orders

  • ['Grant the applicants leave to appeal' 'Dismiss the appeals']