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

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Seller; R v McCarthy [2015] NSWCCA 76 Hearing dates: 17 October 2014 Decision date: 29 April 2015 Before: Bathurst CJ at [1]; Fullerton J at [228]; Bellew J at [243] Decision: 1. Dismiss the appeal brought by the Crown. 2. 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. Catchwords: APPEAL – appeal under s 5F(2) of the Criminal Appeal Act 1912 (NSW) against interlocutory orders – limitation under s 5F(3A) for appeals against decisions on admissibility of evidence - whether Crown can appeal against order prohibiting a person from giving evidence – whether order prohibiting a person from giving evidence is an interlocutory order or a decision on the admissibility of evidence

CRIMINAL LAW – evidence – witnesses – proposed witness for prosecution present at compulsory examinations – proposed evidence of witness informed by compulsorily acquired materials – whether witness should be prohibited from giving evidence in a subsequent criminal trial – whether respondents would be hindered or limited in cross-examination of witness

CRIMINAL LAW – duties of prosecutor - dissemination of compulsorily acquired material to prosecution authorities – where dissemination disclosed and current prosecution team had not read the material – whether prosecutor satisfied duties of disclosure and to present case properly and with fairness to the accused

CRIMINAL LAW – legal professional privilege – imputed waiver of privilege – inference to be drawn from the maintenance of privilege – whether maintenance of privilege inconsistent with contention that compulsorily acquired material did not give Crown forensic advantage – whether maintenance of privilege inconsistent with denial of indirect disclosure of compulsorily acquired material – whether proceedings should be stayed until privilege is waived