R v Seller; R v McCarthy (No 3) [2014] NSWSC 1290

Supreme Court New South Wales

Medium Neutral Citation: R v Seller; R v McCarthy (No 3) [2014] NSWSC 1290 Hearing dates: 28 July 2014 - 8 August 2014 Date of orders: 22 August 2014 Decision date: 19 September 2014 Jurisdiction: Common Law Before: Button J Decision: 1. Quincy Tang is prohibited from giving evidence in the trial in accordance with his three statements dated 3 November 2009 and his statement dated 30 June 2010. 2. Dismiss all of the other orders sought in the further amended notice of motion filed 5 August 2014 and the identical notice of motion filed by Mr Raphael. Catchwords: CRIMINAL LAW – EVIDENCE – charge of conspiracy with intent to defraud or dishonestly influence the Commissioner of Taxation – prior compulsory examinations of accused by the Australian Crime Commission – transcripts of compulsory examinations and other compulsorily acquired materials provided to proposed witness for the prosecution – evidence of the witness founded to a degree on the compulsorily acquired materials - whether witness should be prohibited from giving evidence in a subsequent criminal trial

PRACTICE AND PROCEDURE – application for a permanent stay – whether prosecuting lawyers who had conferred with the witness should be prohibited from appearing in the trial – whether the trial should be permanently stayed as a result of the compulsory examinations Legislation Cited: Australian Crime Commission Act 2002 (Cth), s 25A(9) Crimes Act 1914 (Cth), ss 29D and 86(2) Criminal Code Act 1995 (Cth), s 135.4(7) Criminal Assets Recovery Act 1990 (NSW), s 13(9) Evidence Act 1995 (NSW), ss 50, 79 and 138 Cases Cited: Lee v NSW Crime Commission [2013] HCA 39; 87 ALJR Lee v The Queen [2014] HCA 20; 88 ALJR 656 [2012] NSWSC 934; (2012) 269 FLR 125 R v Seller; R v McCarthy [2013] NSWCCA 42; 273 FLR 155 Seller v The Queen; McCarthy v The Queen [2013] HCA Trans 204 (6 September 2013) TS v R [2014] NSWCCA 174 X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 Category: Procedural and other rulings Parties: Regina Ross Edward Seller (Accused) Patrick David McCarthy (Accused) Representation: Counsel: DJ Fagan SC (Crown) P McGuire (Crown) P Strickland SC (McCarthy) P Bruckner (McCarthy) DKL Raphael (Seller)