MAC v R [2017] NSWCCA 219

MAC v R [2017] NSWCCA 219

Although there was deliberate impropriety by AFP officers and procedural deficiencies in the handling of the compulsory examination of the applicant, the derivative evidence would have been obtained by legitimate means regardless, and the applicant had not established irremediable prejudice such as to justify a permanent stay. The legal test for a permanent stay was not met, and alternative measures short of stay (such as exclusion of evidence) were available or had been addressed.

Jurisdiction
Australia
Judgment Date
08 September 2017
Procedural Posture
Criminal Appeal / Application for Leave to Appeal – Judgment on Interlocutory Application for a Permanent Stay of Proceedings
Outcome
Leave to appeal granted; appeal dismissed
Legal Topics
['permanent Stay of Proceedings' 'abuse of Process' 'improperly or Illegally Obtained Evidence' 'privilege Against Self Incrimination' 'derivative Evidence' 'procedural Fairness' 'police Misconduct' 'application of Coercive Powers' 'right to Legal Representation']
['criminal Law'] ['permanent Stay of Proceedings' 'abuse of Process' 'improperly or Illegally Obtained Evidence' 'privilege Against Self Incrimination' 'derivative Evidence' 'procedural Fairness' 'police Misconduct' 'application of Coercive Powers' 'right to Legal Representation']

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 – Judgment on Interlocutory Application for a Permanent Stay of Proceedings

Legal Issues

  1. 1 ['Whether the conduct of AFP and ACC officers, including the denial of legal representation, improper haste in compulsory examination, and dissemination of examination evidence, justified a permanent stay of proceedings.' 'Whether derivative evidence obtained as a result of the compulsory examination should be excluded for impropriety or illegality.' 'Whether the abrogation of the right against self-incrimination and right to silence, or denial of access to lawyers, was sufficient to warrant a permanent stay.' 'Whether the proceedings amounted to an abuse of process due to misconduct by law enforcement.']

Ratio Decidendi

Although there was deliberate impropriety by AFP officers and procedural deficiencies in the handling of the compulsory examination of the applicant, the derivative evidence would have been obtained by legitimate means regardless, and the applicant had not established irremediable prejudice such as to justify a permanent stay. The legal test for a permanent stay was not met, and alternative measures short of stay (such as exclusion of evidence) were available or had been addressed.

Court Disposition

Leave to appeal granted; appeal dismissed

Orders

  • ['Leave to appeal is granted.' 'The appeal is dismissed.']