R v Macdonald; R v Maitland (No 5) [2016] NSWSC 865

Supreme Court New South Wales

Medium Neutral Citation: R v Macdonald; R v Maitland (No 5) [2016] NSWSC 865 Hearing dates: 15 June and 17 June 2016 Decision date: 23 June 2016 Jurisdiction: Common Law - Criminal Before: Adamson J Decision: (1) Notice of motion filed in court on behalf of Mr Maitland on 9 May 2016 dismissed.

(2) Notice of motion filed on behalf of Mr Macdonald on 16 May 2016 dismissed. Catchwords: CRIMINAL LAW – application for stay of trial – applicants charged with criminal offences following finding of corrupt conduct by Independent Commission Against Corruption (ICAC) – Director of Public Prosecutions (DPP) downloaded transcripts from public inquiry from ICAC's website, which contained the applicants' compelled evidence – DPP and others involved in prosecution read compelled evidence before formulating charges against accused – companion principle and privilege against self-incrimination can be affected if legislative intention is clear – duty of law enforcement officers, including ICAC, to provide DPP with information assisting prosecution or defence except where privileged or covered by immunity – privileges abrogated by ICAC Act and compelled evidence made public – compelled evidence, whilst inadmissible in trial, can be used by DPP for purposes of prosecution at least where given or tendered in public

CRIMINAL LAW – application for permanent stay of trial – permanent stay only granted in exceptional circumstances – where potential unfairness can be remedied temporary stay may be granted or evidence excluded – potential prejudice identified contemplated and permitted by statute – no unlawful prejudice – application dismissed CRIMINAL LAW – principles of accusatorial system of criminal justice – principle that prosecution must discharge onus of proof and cannot compel accused to assist – evidence taken under compulsion before charges were laid – analysis of principles in X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92; Lee v The Queen [2014] HCA 20; 253 CLR 455 and R v OC (Oliver Curtis)[2015] NSWCCA 212; 90 NSWLR 134 – objects and purpose of ICAC Act – disclosure of compelled evidence permitted by and part of purpose of ICAC Act – evidence inadmissible in trial but can be used by prosecution – no evidence compelled from accused after charges laid Legislation Cited: Australian Crime Commission Act 2002 (Cth), ss 25A, 28, 30 Australian Securities and Investment Commission Act 2001 (Cth), ss 13, 17, 18, 19, 49, 63, 64, 68, 76 Crime Commission Act 2012 (NSW), s 80 Criminal Code Act 1995 (Cth) Criminal Procedure Act 1986 (NSW), ss 3, 14, 14A, 128, 173 Director of Public Prosecutions Act 1983 (Cth), s 9, 12 Director of Public Prosecutions Act 1986 (NSW), ss 7, 15A Independent Broad-based Anti-Corruption Commission Act 2011 (Vic), s 70 Independent Commission Against Corruption Act 1988 (NSW), ss 2A, 8, 9, 13, 14, 16, 17, 18, 21, 22, 26, 30, 31, 35, 37, 38, 53, 73, 74, 74A, 74B, 87, 111, 112 Mining Act 1992 (NSW) New South Wales Crime Commission Act 1985 (NSW), ss 13, 16 Supreme Court Act 1970 (NSW), s 69 Cases Cited: Australian Securities Commission v Bell (1991) 32 FCR 517 D'Amore v Independent Commission Against Corruption [2013] NSWCA 187 Cunneen v Independent Commission Against Corruption [2014] NSWCA 421 Environment Protection Authority v Caltex Refining Co. Pty Ltd (1993) 178 CLR 477 Hammond v The Commonwealth (1982) 152 CLR 188 Independent Commission Against Corruption v Cunneen [2015] HCA 14; 89 ALJR 475 Jago v The District Court of New South Wales (1989) 198 CLR 23 Lazarus v Director of Public Prosecutions [2015] NSWCA 47 Lazarus v Director of Public Prosecutions [2015] NSWSC 1116 Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196 Lee v The Queen [2014] HCA 20; 253 CLR 455 Potter v Minahan [1908] HCA 63; 7 CLR 277 R v Edwards [2009] HCA 20; 83 ALJR 717 R v Independent Broad-based Anti-Corruption Commissioner [2016] HCA 8; 90 ALJR 433 R v OC (Oliver Curtis) [2015] NSWCCA 212; 90 NSWLR 134 Redacted Judgment [2015] NSWCCA 281 Rogan v Hyde (1995) 84 A Crim R 519 TS v R [2014] NSWCCA 174 United States v Fisher 6 US 358 (1805) X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 X7 v R [2014] NSWCA 273; 292 FLR 57 Category: Procedural rulings Parties: Regina Ian Michael Macdonald John William Maitland Representation: Counsel: N Williams SC / J Davidson (Crown) S Odgers SC (Accused Macdonald) D Jordan SC/ E Kerkyasharian (Accused Maitland)