Macdonald v R; Maitland v R

(2016) 93 NSWLR 736; [2016] NSWCCA 306

NSW Court of Criminal Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Criminal procedure
3. › Stay of proceedings
4. › Temporary stay
5. › Compelled evidence given before ICAC made available to prosecution
6. › Whether unfair consequences warranting stay
7. › Independent Commission Against Corruption Act 1988 (NSW), ss 18, 31, 37, 112
1. Statutory Construction
2. › Principle of legality
3. › Abrogation of fundamental rights
4. › Accusatorial principle
5. › Whether ICAC Act abrogates accusatorial principle by necessary intendment
6. › Public examinations before charge laid
7. › Whether compelled evidence may be made available to DPP
8. › Independent Commission Against Corruption Act 1988 (NSW), ss 14, 18, 26, 31, 37, 112
9. › Director of Public Prosecutions Act 1986 (NSW), s 15A
1. Criminal Law
2. › Appeal
3. › Appeal against interlocutory decision
4. › Refusal of stay of proceedings
5. › Whether findings of primary judge available on the evidence
6. › House v The King error
7. › Criminal Appeal Act 1912 (NSW), s 5F(3)

Quick Take

The ICAC Act abrogates the accusatorial principle by necessary intendment, at least where public examinations occur before the examinee is charged. Compelled evidence given at ICAC public hearings may lawfully be made available to the DPP, and the DPP is not precluded from having officers who have read such evidence participate in the prosecution. The protection against admissibility in s 37 of the ICAC Act does not constitute a 'privilege' for the purposes of s 15A(6) of the DPP Act. Persons examined at ICAC public inquiries who wish to protect their position should apply under s 31(9) for evidence to be taken in private or under s 112 for a non-publication order.