R v Seller R v McCarthy [2012] NSWSC 934

R v Seller R v McCarthy [2012] NSWSC 934

The conduct of the Crime Commission and CDPP in distributing and making derivative use of compulsorily obtained examination material, in contravention of or without lawful variation of s 25A(9) confidentiality directions, resulted in a real risk that the applicants could not receive a fair trial. The balance of public and private interests mandated that the proceedings against the applicants be stayed as an abuse of process to protect the integrity of the criminal justice system.

Parties
Applicant: Ross Edward Seller; Applicant: Patrick David McCarthy; Respondent: Crown; Amicus Curiae: Australian Crime Commission
Jurisdiction
Australia
Judgment Date
17 August 2012
Procedural Posture
Criminal / Application for Permanent Stay of Proceedings
Outcome
Permanent stay granted. Costs awarded to applicants (with certain exceptions).
Legal Topics
Permanent Stay, Self Incrimination, Privilege Against Self Incrimination, Abuse of Process, Australian Crime Commission Act, Right to Fair Trial, Derivative Use Immunity
Criminal Law Procedure Permanent Stay Self Incrimination Privilege Against Self Incrimination Abuse of Process Australian Crime Commission Act Right to Fair Trial +1 more

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Parties

Ross Edward Seller

Applicant

Patrick David McCarthy

Applicant

Crown

Respondent

Australian Crime Commission

Amicus Curiae

Procedural Posture

Criminal / Application for Permanent Stay of Proceedings

Legal Issues

  1. 1 Whether the derivative use of compulsorily obtained material by the prosecution in breach (or purported variation) of confidentiality directions justifies a permanent stay of criminal proceedings against the applicants
  2. 2 Whether the distribution and use of transcript and evidence from compulsory examinations compromised the fairness of the applicants' criminal trial

Ratio Decidendi

The conduct of the Crime Commission and CDPP in distributing and making derivative use of compulsorily obtained examination material, in contravention of or without lawful variation of s 25A(9) confidentiality directions, resulted in a real risk that the applicants could not receive a fair trial. The balance of public and private interests mandated that the proceedings against the applicants be stayed as an abuse of process to protect the integrity of the criminal justice system.

Court Disposition

Permanent stay granted. Costs awarded to applicants (with certain exceptions).

Orders

  • Any proceedings on the indictments presented on 14 March 2012 against Ross Edward Seller and Patrick David McCarthy are stayed.
  • The Commonwealth Director of Public Prosecutions to pay the applicants' costs of the applications, except the costs of preparing and copying Exhibits PH5, PH6 and PH7.