Consideration
121The Court has already dealt, in the course of describing the submissions of Mr Pratten, with some of those submissions. Even some of those matters may require some further explanation.
122Firstly, I deal with the "lawfulness" of the Amended Tax Assessments. This is the basis upon which Mr Pratten seeks the issue of declarations and certiorari against the FCT and/or the ATO preventing them from relying on the documents produced by the AFP and declaring void the Amended Tax Assessments.
123It may be within jurisdiction (and I would assume so until the contrary is argued) to determine the validity of the Amended Tax Assessments if it were relevant to an issue otherwise within the jurisdiction of the Court. For example, were this issue to have been raised at the time that the documents were being admitted into evidence and the Court was required to determine whether there was a valid assessment issued in order to determine the admissibility of the Amended Tax Assessments then validity may be a matter within the jurisdiction of the Court.
124However, even if such a determination were within jurisdiction, it would be a determination confined to the question of validity only for the purpose of determining the admissibility of the documents. As a consequence, even in those circumstances, no declaration of invalidity or certiorari quashing the Amended Tax Assessments would issue from the Court.
125The foregoing circumstances are not the basis upon which Mr Pratten submits that the matters are within the jurisdiction of the Court. Rather, Mr Pratten seeks, by collateral challenge, independently of the criminal trial, to have the Court issue orders the effect of which would be to invalidate the Amended Tax Assessments.
126As earlier stated, the Amended Tax Assessments were issued by the ATO and were not a decision to prosecute or a related criminal justice process decision as defined in s 39B(3) of the Judiciary Act. The circumstance that the Amended Tax Assessments were tendered in evidence in a criminal trial does not convert the decision to issue the assessment into one which becomes a related criminal justice process decision. In any event, the decision to tender the assessments was not made by the ATO or the FCT, but by counsel, the Crown, instructed by the DPP.
127To the extent that the matter is within jurisdiction, and the foregoing is incorrect, for the reasons outlined at paragraphs [80] - [91], Mr Pratten has failed to convince the Court that the provision of the material was unlawful.
128Further, even if the provision of the material were unlawful, there is a fundamental aspect omitted by Mr Pratten from the analysis. Assuming, contrary to the foregoing findings, that the Court has jurisdiction, and that the provision of the material by the AFP to the ATO was unlawful, Mr Pratten would need to satisfy the Court that the reliance upon material, unlawfully obtained, vitiates the issuing of an income tax assessment by the ATO. This is particularly so, in circumstances such as the present, where the ATO did not understand (or there is no evidence that it understood) that the material had been unlawfully obtained.
129According to the Income Tax Assessment Act, the ATO is entitled to rely upon any material in its possession: s 166 of the Income Tax Assessment Act and Denlay v Federal Commissioner of Taxation [2011] FCAFC 63; (2011) 193 FCR 412 at [55] and [81]. There is no exception for material that was obtained unlawfully.
130Even if all of the foregoing bases for refusing relief were incorrect, I would consider that there were adequate discretionary reasons for not exercising the jurisdiction, if it were available. Those discretionary factors will be dealt with later in these reasons for judgment.
131The next matter with which it is necessary to deal is the effect of compliance with the s 264 notice by the AFP and the "validity" of the Amended Tax Assessments on the capacity of the DPP to rely upon the Amended Tax Assessments in the criminal proceedings.
132First, so much of the criminal proceedings as deals with guilt has been completed. In other words, prohibition issues only in circumstances where there is something left to be prohibited.
133As drafted, the prohibition would issue in relation to events that are completed, namely the trial. Of course, subject to any other issues, including discretion, prohibition could issue in relation to the reliance by the DPP on the Amended Tax Assessments in the sentence proceedings. Further, in determining whether the Court should rely upon the Amended Tax Assessments in the sentence proceedings, the Court could take into account the validity or otherwise, in its view, of the Amended Tax Assessments.
134However, these proceedings are a collateral attack on the criminal proceedings. The foregoing comment, relating to the capacity of the Court to take into account the validity or otherwise of the Amended Tax Assessments in determining whether reliance should be placed upon them in the sentencing proceedings, is a reference to the Court exercising the sentencing jurisdiction.
135Here the submissions of Mr Pratten seek to have the Court, exercising its civil jurisdiction, interfere collaterally with the Court exercising its criminal jurisdiction. There is but one Court. And the jurisdiction of the Court (whether criminal, civil or appellate) is the jurisdiction of the whole Court: Re Jarman; Ex parte Cook (No 1) [1997] HCA 13; (1997) 188 CLR 595; DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226.
136At common law, a jury verdict could be set aside historically by a writ of error or otherwise by an application in banc for error on the face of the record. The application in banc, to which reference has just been made, is the equivalent of what may still exist as a motion in arrest of judgment or verdict. Otherwise, civil courts (or any courts) would not entertain fresh actions to set aside judgment, except by a motion in arrest of judgment made prior to completion of the proceedings by the entry of sentence or judgment (in civil proceedings): CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 at 197, per McHugh, Gummow and Callinan JJ.
137To the extent that prohibition is sought, which would have a retrospective effect invalidating the trial by restraining or prohibiting the use by the DPP of the Amended Tax Assessments, without an order quashing the admission of the Amended Tax Assessments, such prohibition would not lie.
138As to that part of prayer 8 in the summons dealing with the sentence proceedings, assuming that it does relate to the sentence proceedings, it is a matter for the sentencing judge to determine whether reliance should be placed upon the Amended Tax Assessments and not a matter for collateral attack on the proceedings. As to which, see the comments referring to Plaintiff S3/2013 v Minister for Immigration and Citizenship [2013] HCA 22 later in these reasons.
139Lest the foregoing be taken as limiting the conclusions reached earlier, I should reiterate that following the judgment of Ryan J, to which reference has been made, I do not consider that the s 264 notice was invalid nor compliance with it illegal, notwithstanding the limitations otherwise placed upon the dissemination of material obtained coercively by warrant.
140Further, for the discretionary reasons to which the Court will come, an order in the nature of prohibition ought not issue restraining the Commonwealth in the manner sought by prayer 8.
141Prayer 9 in the summons seeks a writ of prohibition restraining the FCT from relying upon the Amended Tax Assessments in any proceedings (of which, no doubt, the criminal proceedings is one). How it can possibly be argued, in light of the grant of exclusive jurisdiction in s 39B, that the Court, as presently constituted, has jurisdiction to deal with anything other than a decision to prosecute (which this is not) or a related criminal justice process decision is not immediately apparent. Certainly no attempt has been made to justify any such order.
142Confining, as one must, the application to be one restraining the FCT from relying upon the Amended Tax Assessments in the criminal proceedings before the Court, the factual basis for such an order does not exist. The FCT (or the ATO) does not rely upon anything in the criminal proceedings. The FCT and officers of the ATO may have provided evidence upon which the DPP relies, but the ATO, officers of the ATO or the FCT do not, themselves, rely upon the Amended Tax Assessments.
143Even if they were to be relying upon them in the criminal proceedings, the provisions of the Income Tax Assessment Act require that the Court, as presently constituted, take the Amended Tax Assessments as valid, unless and until they are set aside. Such a qualification does not relate to the appeal process within the Income Tax Assessment Act itself.
144Again, for the discretionary reasons to be dealt with at the conclusion of this judgment, as well as the foregoing reasons, a writ of prohibition, or orders in the nature thereof, should not issue against the FCT in relation to its "reliance" upon the Amended Tax Assessments.
145The foregoing analysis, in relation to prayer 9 in the summons, applies with equal force to the order sought in prayer 11 and for the same reasons (including the discretionary aspects) such an order will not issue.
146I next deal with the prayer for relief contained in paragraph 12 of the summons. As earlier stated, the provision by the AFP to the ATO of the documents seized by the AFP under the purported exercise of its coercive powers was in response to a request by the ATO/FCT under s 264 of the Income Tax Assessment Act. The documents were provided. As already explained, in my view, the provision of the documents was not unlawful. As a consequence of that finding there is no basis upon which the Court would order the return of the documents.
147Even if the Court were wrong as to the lawfulness of the provision of the documents by the AFP to the ATO/FCT, further issues arise in relation to the ordering that the documents be returned. Firstly, as already explained, the ATO's issuing of the s 264 notice, and the AFP's compliance therewith, was not a decision to prosecute or a related criminal justice process decision. In other words, again as previously explained, the decision to issue the s 264 notice was a decision made for the purpose of the ATO and its duties under the Income Tax Assessment Act. It was not a decision in connection with the investigation, committal for trial or prosecution of Mr Pratten; the appointment of investigators or inspectors for the purpose of such an investigation; the issue of a warrant; requiring the production of documents, giving of information or the summing of persons as witnesses in the criminal prosecution; nor in connection with an appeal arising out of the prosecution. The fact the Amended Tax Assessments relied upon documents produced by the AFP and were ultimately tendered in evidence in the prosecution does not render the service of the s 264 notice or the compliance with that notice (whether lawful or otherwise) a related criminal justice process decision.
148Apart from the discretionary reasons to which the Court will come and which are relevant, once more, to this prayer or the issue of orders in the nature of mandamus, Mr Pratten would need to show a statutory duty to return the documents before mandamus would issue. Mr Pratten has not satisfied the Court that any such statutory duty exists.
149Next the Court will deal with the prayer for relief in paragraph 18 of the summons being a prayer for an order in the nature of mandamus requiring the DPP to withdraw the prosecution or enter a nolle prosequi. For relevant purposes no distinction is drawn between the withdrawal of the prosecution (whatever that may mean) or the entry of a nolle prosequi. Certainly, the submissions of Mr Pratten drew no such distinction.
150It is necessary to state some fundamental propositions. First, the jurisdiction of the Supreme Court of New South Wales is an inherent jurisdiction arising as it does, in its last emanation, from a Third Charter of Justice, proclaimed on 17 May 1824. (There were first and second Charters of Justice, which are currently irrelevant.) The jurisdiction of the Court to hear and determine federal criminal offences derives, predominantly, from the Judiciary Act.
151Subject to a limitation imposed by the legislation conferring jurisdiction, the jurisdiction to conduct a trial depends upon a valid indictment upon which the accused is arraigned and to which the accused pleads. (I leave aside, for present purposes, the placing of the accused in the charge of a jury.)
152Once an indictment is preferred, upon which the accused has been arraigned and to which the accused has pleaded, the effect, if any, of the decision of the DPP to initiate a prosecution has no more work to do.
153An entry of a nolle prosequi by the Crown can be effected only after the bill of indictment is signed and before judgment: R v Dunn (1843) 1 C & K 730; R v Colling (1847) 2 Cox 184; and see generally PJ Richardson Archbold, Criminal Pleading, Evidence and Practice (2010) Thomson Reuters at paragraph 1-251. It is entered after the indictment has been preferred: R v Wylie, Howe & McGuire (1919) 83 JP 295. See now, also, Beckett v New South Wales [2013] HCA 17 at [3], [44] and [45], per French CJ, Hayne, Crennan, Kiefel and Bell JJ; and at [61], per Gageler J.
154The fundamental difficulty faced by Mr Pratten in an attempt to seek mandamus, or orders in the nature of mandamus, requiring the DPP to withdraw the prosecution and enter a nolle prosequi, is that the withdrawal of a prosecution and the entering of a nolle prosequi is an exercise of discretion. The withdrawal or entry of nolle prosequi is without prejudice, ordinarily, to the conduct of further trials. It would be inconsistent with fundamental principle for such a withdrawal or the entry of a nolle prosequi to be able to be effected after verdict.
155The foregoing does not suggest that the Court, in its inherent jurisdiction, would not preclude or prohibit a subsequent trial where a verdict had been reached in an earlier trial (but not overturned), but points to a significant bar to the proposition that the nolle prosequi or a withdrawal of prosecution can be effected after a verdict has been reached. To use but one example, if an accused were charged with murder and a jury returned a verdict of not guilty of murder but guilty of manslaughter, the entry of a nolle prosequi would, absent the exercise of the Court's other powers, not prevent a subsequent trial again for murder.
156Moreover, as earlier explained, mandamus is an order issued by the Court to require an officer of the state to perform a duty required of the officer by statute. Where, as here, the withdrawal of the prosecution or the entry of a nolle prosequi is discretionary, mandamus will not issue, unless the statutory discretion is required to be performed on the satisfaction of certain conditions, which have been satisfied. While it is a given that the DPP has not exercised the power to withdraw or enter a nolle prosequi, Mr Pratten is required to establish that the DPP has a duty, being a public duty, that is required to be performed.
157Further, the jurisdiction of the Court to sentence arises from a valid indictment upon which the accused has been arraigned and a verdict of guilty of some offence that requires a sentence to be imposed. It is doubtful whether the DPP could do anything, after verdict (and again assuming the validity of arraignment and verdict), that would have the effect of excusing the Court from its duty to impose a sentence, following verdict. A decision of the DPP to present no evidence or no submissions on sentence may make the imposition of a sentence more difficult, but it would still not relieve the Court of its duty to impose a sentence (including, for that purpose, s 10 of the Crimes (Sentencing Procedure) Act or, relevantly for the current discussion, s 19B of the Code).
158The claim for orders in the nature of mandamus to require the DPP to enter a nolle prosequi, or withdraw the prosecution, is without merit. Apart from the foregoing difficulties associated with the issuing of such an order to require such conduct, the application rests upon the primary premise that the conduct of AFP and the ATO and the use of the Amended Tax Assessments vitiated the trial.
159There are, further, the discretionary reasons to which reference will shortly be made.
160I then turn to the "constitutional question", being a submission that the Court is not entitled to determine the meaning of the term "financial advantage" or whether a "financial advantage" has occurred, because it would constitute "an impermissible administrative act and be contrary to the doctrine of separation of powers". The submission has two aspects. The first is, as I understand it, that the determination of "financial advantage" is an administrative decision reposed in the ATO or FCT by the Income Tax Assessment Act. The second aspect is that the Court, by equating the "financial advantage" with the amount owing under the Amended Tax Assessments has either made the tax "an unconstitutional tax" by denying the right of appeal or challenge, or abrogated Mr Pratten's right to silence and altered the burden of proof in the criminal trial.
161The submission is untenable. Firstly it has no factual basis. The Court, during the course of the criminal proceedings, was at pains to ensure that the Amended Tax Assessments could be used only for the purpose of disclosing that the Commonwealth did not take the view that Mr Pratten did not owe the money arising from his conduct. In other words, the amount of the tax assessments that had issued was irrelevant. It was a matter for the Court (the jury properly instructed) to determine whether an amount was owing on the basis of the Crown case, not otherwise, and certainly not on the basis of the Amended Tax Assessments.
162Further the fact, if it were the fact, that the Court defined financial advantage by reference to the Amended Tax Assessments would not abrogate the right of Mr Pratten to challenge those assessments under the review provisions in the Income Tax Assessment Act.
163Moreover, even if the Court were to define financial advantage by reference to the Amended Tax Assessments, the burden of proof does not in any way shift (wholly or in part, whatever "part shift of burden" may mean). It would remain, even in those circumstances (which circumstances did not apply) for the Crown to prove that Mr Pratten gained a financial advantage. In other words, the Crown would have, in those circumstances, been required to prove, beyond a reasonable doubt, that the Amended Tax Assessments were accurate.
164But, I reiterate, the Amended Tax Assessments were never used to define the financial advantage. As the Court made clear to the jury (and was made clear during the course of the Crown case), that which formed part of the assessment was relevant to the criminal trial only to the extent that it showed that the Commonwealth had not come to a view that Mr Pratten did not owe any money.
165The Court, in the criminal proceedings, confined the jury's deliberations to income in the ordinary concept and whether Mr Pratten filed a tax return knowingly failing to declare income, in its ordinary concept, and did so dishonestly in order to deceive the Commonwealth and gain a financial advantage: apart from the previous references, see [114] of the draft summing up.
166The foregoing paragraph reference in the draft summing up also made clear that apart from the explanation proffered by Mr Pratten to the ATO as part of the review process, which explanation was tendered in the trial by Mr Pratten, the review and appeal stages internal to the ATO were separate and irrelevant to the function performed by the jury and the Court.
167Lastly, on this issue, although not the subject of separate submissions, it should be noted that the term "financial advantage" is a term derived from the Crimes Act and, in that context, has no place in the determination of administrative functions under the Income Tax Assessment Act. There is no basis for the proposition that the determination by the Court that there was a "financial advantage" was the exercise of administrative tasks, inconsistent with the exercise of judicial power.
168The next matter with which the Court will deal is the submission that the charges on the indictment are bad for duplicity. It should be noted, before embarking upon this discussion, that there does not seem to be any application in the summons, which raises such an issue. No prayer for relief seeks to quash the indictment. No ground upon which Mr Pratten relied in the summons deals with duplicity. Nevertheless, the Court will deal with the issue.
169Mr Pratten's submission, while dealing at some length with the power of the Court to ensure appropriate orders are made to overcome duplicity, and general notions of duplicity and its meaning, does not, other than by bold assertion, seek to establish the fundamental basis upon which it is said the charge is duplicitous. It is necessary to set out some trite propositions.
170First, an indictment may contain more than one charge. Each charge on an indictment must allege one offence. A charge (or count) on an indictment is not bad for duplicity, if the details set out in that charge or count allege only a single offence: Archbold, supra, at paragraph 1-137.
171Often, the difficulty with a charge and the issue of duplicity will depend upon the construction of the statute contravention of which is the offence. Therefore, for example, if an offence is created of "assault or resist a police officer in the execution of his duty" a charge that reflected the offence, in those terms, would be duplicitous because each of "assault" and "resist" are separate offences requiring separate elements.
172The charges in this case each refer to one offence only. It is dishonestly obtaining a financial advantage by deception. That offence is committed, on the Crown case accepted by the jury, by the filing of a tax return that knowingly and dishonestly deceived the Commonwealth and thereby obtained a financial advantage. The offence charged, and the Crown case in support of it, required only one act. That act was the filing of a knowingly incorrect (and understated) income tax return. The mental element for the obtaining of the financial advantage remained the same.
173It mattered not whether Mr Pratten knew that each item of income that formed the basis of the Crown case ought to have been declared as income. If, on the Crown case, Mr Pratten did not know that a particular item was income and should have been declared in his income tax return then, in respect to that item, Mr Pratten could not be found guilty.
174Duplicity has not been established and relief on the basis of duplicity (whatever relief that may be) is denied. As a consequence of the foregoing, there is no duplicity in any of the charges on the indictment and this ground of attack, to the extent that it is raised by the summons or otherwise, must fail.
175Lastly I deal with the issues raised in the relief sought in paragraphs 10, 15, 16 and 17 of the summons. I have, in relation to other prayers for relief, already commented on the submission that the s 264 notice was unlawful. I have commented on the consequential issue that the provision by the AFP to the FCT of the documents was also unlawful and, arising from that, the appropriateness or lawfulness of the DPP relying upon the Amended Tax Assessments in the criminal prosecution.
176The submissions in support of the orders sought in paragraphs 10, 15, 16 and 17 relate to the alleged unlawfulness of the provision of the documents by the AFP, the consequential unlawfulness in the ATO relying upon the documents and the unlawfulness, unfairness or inappropriateness of the DPP relying upon the Amended Tax Assessments in the prosecution. The submission forms the basis for orders in the nature of prohibition restraining the DPP from relying upon documents obtained from the FCT/ATO, which in turn relied upon documents produced by the AFP.
177It also forms the basis for a writ of prohibition restraining the DPP from advancing the Amended Tax Assessments "as a proxy" for the financial advantage at the trial or at sentencing.
178Thirdly, it forms the basis for an order in the nature of prohibition against the DPP restraining it from prosecuting further.
179Lastly it forms the basis for a declaration that the "decision to prosecute was an abuse of process".
180As earlier stated, the decisions that are sought to be impugned are decisions which the Court accepts are either decisions to prosecute or related criminal justice process decisions amenable to writs of mandamus or prohibition pursuant to the jurisdiction conferred on the Supreme Court of New South Wales in relation to this matter by s 39B of the Judiciary Act.
181Such a statement relates only to the jurisdiction to issue orders, not to whether a proper basis has been made out for such orders.
182Essentially the submission relates to two different aspects, each of which in turn relates to the illegality or lack of good faith associated with the reliance upon the documents produced by the AFP to the ATO and the subsequent Amended Tax Assessments.
183Apart from the previously mentioned reasons why, in my view, the s 264 notice was lawful and the provision of the documents by the AFP to the ATO in compliance therewith was also lawful, it should be noted that the restrictions on the provision of material seized under warrant and contained in s 3F(5) of the Crimes Act allowed for an exception, at the time that the documents were provided to the ATO, in what was then the terms of s 3F(5) of the Crimes Act. That provision enabled the executing officer of a warrant to make that which was seized under the warrant available to officers of other agencies "if it is necessary to do so for the purpose of investigating or prosecuting an offence to which the things relate".
184No one has suggested, given the lack of familiarity of the officers of the AFP with the Income Tax Assessment Act and the requirements to declare income, that consultation and information from the ATO was not "necessary ... for the purpose of investigating or prosecuting" the offences. In other words, even the provisions of s 3F of the Crimes Act, as they existed at the time that the information was provided by the AFP to the ATO, allowed for the documents to be provided for the purpose of the investigation or prosecution of the offence.
185The difficulty with such an analysis is that the ATO used the documents for purposes which only peripherally facilitated the investigation or prosecution of the offence. In other words, the documents provided by the AFP to the ATO were used for a number of purposes.
186These purposes were: first, the ATO officers assisted the AFP in the investigation and prosecution of the offence; secondly, the ATO officers issued Amended Tax Assessments utilising the documents obtained from the AFP; and thirdly, those Amended Tax Assessments were utilised as evidence in the prosecution of the offences with which Mr Pratten was charged, albeit for a very limited purpose.
187While the ATO may have used the documents impermissibly (assuming everything else the Court has decided were incorrect), nevertheless the AFP were authorised to provide the documents to the ATO to the extent they were satisfied that it was necessary so to do for the purpose of investigating or prosecuting the offence. Plainly, they were so satisfied.
188However, the provision of the material was done in compliance with the notice under s 264 of the Income Tax Assessment Act and not, on its face, for the purpose described in s 3F(5) of the Crimes Act, as it then was.
189Further, assuming, contrary to the foregoing, that the FCT/ATO possessed the documents "unlawfully", the submissions on behalf of Mr Pratten do not deal with the effect, if any, of that "unlawful possession" on the validity of the tax assessment. The submissions made on behalf of Mr Pratten assume, once the Amended Tax Assessments relied upon material obtained "unlawfully", that the Amended Tax Assessments are invalid. The underlying assumption in that proposition is that the FCT/ATO is not entitled to rely upon material obtained unlawfully. I leave aside issues associated with mala fides, as there is no attempt to argue mala fides in these proceedings.
190However, s 166 of the Income Tax Assessment Act imposes a duty on the FCT to issue an assessment of the amount of tax payable on the taxable income of any taxpayer from "the returns and from any other information in the [FCT's] possession".
191There is no allegation, nor could there be on the evidence before the Court, that the powers exercised either by the ATO or by the AFP have been exercised corruptly or with deliberate disregard to the scope of those powers: Commissioner of Taxation of the Commonwealth of Australia v Futuris Corporation Limited [2008] HCA 32; (2008) 237 CLR 146, per Gummow, Hayne, Heydon and Crennan JJ at [60]. There is no suggestion that the ATO/FCT knew they had no power to issue a notice under s 264 in relation to these documents.
192Secondly, there is no suggestion that the AFP knew that it did not have the power to disseminate the material to the ATO. The foregoing assumes that the earlier statements of the Court that the power existed and there was nothing unlawful in the dissemination of material to the ATO are incorrect.
193Mr Pratten submits that the facts giving rise to the unlawful conduct were known to each of the ATO and AFP and therefore there was conduct other than in good faith. In Denlay v Federal Commissioner of Taxation [2011] FCAFC 63; (2011) 193 FCR 412, the Full Court of the Federal Court of Australia (Keane CJ, Dowsett and Reeves JJ) referred to the proper interpretation of s 166 of the Income Tax Assessment Act and said, at [81]:
"[81] We are unable to interpret s 166 of the ITAA 1936 in the way urged by the taxpayers. Section 166 imposes a duty upon the Commissioner. The interpretation of s 166 urged by the taxpayers would limit the performance of that duty to cases where the Commissioner is able to satisfy himself that his officers had not infringed any law in the gathering of the available information. It would be a remarkable state of affairs if the Commissioner were entitled, and indeed obliged, to refrain from doing what is expressed to be his duty by the terms of s 166 of the ITAA 1936 by reason of a suspicion on his part, even a reasonable suspicion, that some illegality on the part of his officers may have occurred in the course of gathering the information. A clear expression of legislative intention so to qualify the duty imposed on the Commissioner would be required to relieve him of his duty under s 166. We are unable to see that such a limitation is consistent with the unqualified language in which the duty is cast upon the Commissioner and the high importance of making an assessment based on the information available to the Commissioner. The expense and inconvenience of casting such a burden on the Commissioner, and the difficulty of defining precisely the kinds of unlawful conduct which might preclude the Commissioner from doing the duty cast on him by the unqualified language of s 166, are further reasons why the interpretation propounded by the taxpayers should be rejected."
194Even if I were possessed of the authority to depart from the foregoing (see Farah Constructions Pty Limited v Say-Dee Pty Limited [2007] HCA 22; (2007) 230 CLR 89), I would not. It would strike me as extremely odd if the fact that documents or material (leave aside information) was given to the FCT unlawfully precluded the FCT from relying upon the material in the assessment of income tax.
195One has to think of only one example. Assume a company conducts an entertainment enterprise and, in the course of conducting that enterprise, has two sets of books, one accurate and one for the ATO. Assume further that one of the officers of the company (or an employee of the company) provides to the ATO a copy of the "accurate books". Is it seriously suggested that the FCT must ignore that material in determining the tax payable? See for example the circumstances described (albeit that this issue was not directly discussed) in Saffron v R (1988) 17 NSWLR 395.
196Assuming, against the foregoing, that the FCT/ATO were not able to utilise material obtained unlawfully, it seems to make little or no difference to the case at trial. The DPP relied upon the Amended Tax Assessments only to prove that the Commonwealth did not take the view that Mr Pratten owed nothing to it. That view was expressed, one way or another, orally.
197If the information were obtained unlawfully, then the matter would be required to be dealt with under s 138 of the Evidence Act 1995 (Cth). Nevertheless the material was adduced, ultimately, without objection.
198These proceedings are not concerned with the Amended Tax Assessments in so far as they impose a liability on Mr Pratten to pay tax. They are concerned only with miscarriages of justice that are said to have arisen in the course of the criminal trial and the "validity" of the Amended Tax Assessments arise only as a means of satisfying the Court that orders ought to be made the effect of which would be to undermine the validity of the trial and verdict.
199However, certiorari, prohibition and mandamus do not generally, or at all, go to a superior court: R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union (Australian Section) [1951] HCA 3; (1951) 82 CLR 208 at 241, per Latham CJ. Thus it has been necessary for Mr Pratten to seek to undermine the verdict otherwise than by a direct approach. This has been done a number of ways, most of which I have described above.
200One of the other means by which the verdict was attacked was, once more, to attack the use of the documents seized under warrant by alleging a breach of s 3ZV of the Crimes Act namely retaining or utilising the documents for a purpose other than that for which they were seized. However, there is no evidence to support the proposition that, at the time when either the charges that were ultimately preferred or the documents were provided to the ATO, the AFP officers were in a situation that required that the documents be returned to the owner thereof under s 3ZV of the Crimes Act.
201In short, I take the view that there has been no lack of good faith on the part of the officers of the ATO or of the AFP and certainly none by officers of the DPP such as to vitiate or render inappropriate the use of the Amended Tax Assessments in the proceedings or the continuation of those proceedings.