R v Seller; R v McCarthy [2015] NSWCCA 76

R v Seller; R v McCarthy [2015] NSWCCA 76

The Crown appeal was competent because the order prohibiting Mr Tang from giving evidence was, in substance, an interlocutory order concerning a witness and not merely a decision on admissibility of evidence. However, the primary judge did not err in prohibiting Mr Tang from giving evidence: his proposed evidence would be the vehicle for much of the prosecution's documentary case, his understanding and investigation had been assisted by access to compulsory examination material and compulsorily acquired documents, and the respondents' cross-examination could be hindered by the need to avoid trespassing on that material. Allowing his evidence would therefore alter the accusatorial process...

Jurisdiction
Australia
Judgment Date
29 April 2015
Procedural Posture
Criminal Appeal Under S 5 F of the Criminal Appeal Act 1912 (nsw) From Interlocutory/pre Trial Orders / Court of Criminal Appeal Appeal and Applications for Leave to Appeal From Decisions of Button J in the Supreme Court, Common Law Division
Outcome
Crown appeal dismissed; respondents granted leave to appeal on grounds 1 and 3-9 inclusive but their appeal dismissed.
Legal Topics
['interlocutory Appeals Under S 5 F of the Criminal Appeal Act 1912 (nsw)' 'compulsory Examinations by the Australian Crime Commission' 'accusatorial Process and Fair Trial' 'prohibition on Prosecution Witness Giving Evidence' 'duties of Prosecutor and Disclosure' 'legal Professional Privilege and Imputed Waiver' 'permanent and Temporary Stay of Criminal Proceedings']
['criminal Law' 'evidence' 'criminal Procedure' 'legal Professional Privilege'] ['interlocutory Appeals Under S 5 F of the Criminal Appeal Act 1912 (nsw)' 'compulsory Examinations by the Australian Crime Commission' 'accusatorial Process and Fair Trial' 'prohibition on Prosecution Witness Giving Evidence' 'duties of Prosecutor and Disclosure' 'legal Professional Privilege and Imputed Waiver' 'permanent and Temporary Stay of Criminal Proceedings']

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Procedural Posture

Criminal Appeal Under S 5 F of the Criminal Appeal Act 1912 (nsw) From Interlocutory/pre Trial Orders / Court of Criminal Appeal Appeal and Applications for Leave to Appeal From Decisions of Button J in the Supreme Court, Common Law Division

Legal Issues

  1. 1 ['Whether the Crown appeal was competent under s 5F(2) of the Criminal Appeal Act 1912 (NSW), or was limited by s 5F(3A) as a decision on admissibility of evidence.' "Whether the primary judge erred in prohibiting Mr Quincy Tang from giving evidence at the respondents' trial after he had been present at compulsory examinations and had access to compulsorily acquired material." 'Whether the Crown bore a duty or evidential onus to show that compulsorily acquired material, or material indirectly obtained from it, had not materially assisted the prosecution and whether further identification or production orders should have been made.' "Whether the Crown's claim for legal professional privilege over communications involving former or current prosecutors and persons who had accessed compulsorily acquired material had been waived, or whether proceedings should be stayed until privilege was waived." 'Whether a permanent or temporary stay should have been granted because of unlawful dissemination of compulsorily acquired material, possible involvement of persons exposed to that material in formulating charges, or alleged improper purpose in conducting the compulsory examinations.']

Ratio Decidendi

The Crown appeal was competent because the order prohibiting Mr Tang from giving evidence was, in substance, an interlocutory order concerning a witness and not merely a decision on admissibility of evidence. However, the primary judge did not err in prohibiting Mr Tang from giving evidence: his proposed evidence would be the vehicle for much of the prosecution's documentary case, his understanding and investigation had been assisted by access to compulsory examination material and compulsorily acquired documents, and the respondents' cross-examination could be hindered by the need to avoid trespassing on that material. Allowing his evidence would therefore alter the accusatorial process...

Court Disposition

Crown appeal dismissed; respondents granted leave to appeal on grounds 1 and 3-9 inclusive but their appeal dismissed.

Orders

  • ['Dismiss the appeal brought by the Crown.' 'Grant each of Patrick David McCarthy and Ross Edward Seller leave to appeal on grounds 1, 3-9 inclusive of the further amended notice of application for leave to appeal filed by each of them on 3 October 2014, but dismiss the appeal.']