R v Kinghorn - [2019] NSWSC 1420 - NSWSC 2019 case summary — Zoe

NSWNSWSC

R v Kinghorn

[2019] NSWSC 1420

Supreme Court of NSW|2019-07-31|Before: Adamson J

View original source

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2019-07-31

Before

Adamson J

Source

Original judgment source is linked above.

Judgment (78 paragraphs)

[1]

tions (NSW) v Stanizzo [2019] NSWCA 12 DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384 Esso Australia v The Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46 Filipowski v Nikolaos; Filipowski v Pontain Shipping Co Ltd [2004] NSWLEC 432; (2004) 136 LGERA 157 Glencore International AG v Commissioner of Taxation [2019] HCA 26; (2019) 93 ALJR 967 Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109; (2018) 333 FLR 352 Grant v Downs (1976) 135 CLR 674; [1976] HCA 63 Hamilton v State of New South Wales [2016] NSWSC 1213 Hammond v The Commonwealth (1982) 152 CLR 188; [1982] HCA 42 Hancock v Rinehart (Privilege) [2016] NSWSC 12 Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 New Cap Reinsurance Corp Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258 Propend Finance Pty Ltd v Commissioner, Australian Federal Police (No 2) (1994) 35 ALD 25 R v Bunting (2002) 84 SASR 378; [2002] SASC 412 R v Cox & Railton (1884) 14 QBD 153 R v Kinghorn [2019] NSWSC 553 R v Kinghorn (No 2) [2019] NSWSC 989 R v Leach [2019] 1 Qd R 459; [2018] QCA 131 R v Petroulias (No 22) (2007) 213 FLR 293; [2007] NSWSC 692 R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76 R v Yates (1991) 56 A Crim R 29 Saunders v Federal Commissioner of Taxation (1988) 19 ATR 1289; [1988] FCA 136 Singtel Optus Pty Ltd v Weston (2011) 81 NSWLR 526; [2011] NSWSC 1083 Strickland (A Pseudonym) v Director of Public Prosecutions (Cth) [2018] HCA 53; (2018) 93 ALJR 1 Waterford v Commonwealth (1987) 163 CLR 54; [1987] HCA 25 Watkins v State of Queensland [2008] 1 Qd R 564; [2007] QCA 430 X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 Texts Cited: Commonwealth Director of Public Prosecutions, Prosecution Policy of the Commonwealth Commonwealth Director of Public Prosecutions, Statement on Disclosure, March 2017 Explanatory Memorandum, Taxation Laws Amendment Bill (No 3) 1989 (Cth) Senate, Parliamentary Debates (Hansard), 25 May 1989 Category: Procedural and other rulings Parties: Regina Commonwealth Director of Public Prosecutions (Applicant on the privilege motion) Commissioner of Taxation (Applicant on the privilege motion) Commissioner of the Australian Federal Police (Applicant on the privilege motion) John Alan Kinghorn (Accused) Representation: Counsel: P Neil SC/K Ginges/K Curry (Crown) J Renwick SC/A Garsia (Commonwealth Director of Public Prosecutions) T Howe QC/P Melican (Commissioner of Taxation, Commissioner of the Australian Federal Police) B Walker SC/S Buchen SC/G Huxley/H Atkin (Accused)

[3]

Introduction

John Kinghorn (the accused) was arraigned on 3 August 2018 on an indictment (the Original Indictment) which charged him with three counts: the first, that he defrauded the Commonwealth by representing to the Commissioner of Taxation that he did not control any unlisted company outside Australia contrary to s 29D of the Crimes Act 1914 (Cth) (the defrauding charge); and the second and third, that he dishonestly represented that he did not control two companies, Kalomo Corporation Limited (Kalomo) (count 2) or Kalomo Pacific Leasing Limited (Kalomo Pacific) (count 3) with the intention of dishonestly influencing a public official, the Commissioner of Taxation, contrary to s 135.1(7) of the Criminal Code Act 1995 (Cth) (the false representation charges). The conduct the subject of the first count is alleged to have occurred between about 29 June 1997 and 1 July 1997 and the conduct the subject of the second and third counts is alleged to have occurred between about 6 March 2004 and 10 March 2007.
The particulars of the second and third charges included answers given by the accused in the course of compulsory examinations conducted over the course of five days between 4 May 2005 and 14 June 2005 by the Australian Taxation Officer (ATO) pursuant to s 264 of the Income Tax Assessment Act 1936 (Cth) (ITAA) (the s 264 examinations). The accused had no privilege against self-incrimination in such examinations, the privilege having been found to have been abrogated by necessary implication: Commissioner of Taxation v De Vonk (1995) 61 FCR 564 (De Vonk) at 583.
The accused contended that the Crown was obliged, in performance of its prosecutorial duty of disclosure, to disclose documents which showed when, by whom, and how, the contents of his s 264 examinations were disclosed to the Australian Federal Police (the AFP) and the Commonwealth Director of Public Prosecutions (the DPP) and the use to which the information had been put in investigating him and formulating the charges, and assembling the Crown case, against him. Some disclosure was made by the Crown of the occasions on which the s 264 information was disclosed by the ATO to the AFP and by both instrumentalities to the DPP. The sources of power which were alleged to authorise such disclosure were also identified.
On 15 April 2019 the accused filed a notice of motion seeking a permanent, or in the alternative, a temporary, stay of the prosecution on the basis of an irremediable breach of two related common law principles: first, that the onus of proof rests on the prosecution (the accusatory principle); and, second, that the prosecution cannot compel an accused to assist it to discharge the burden of proof (the companion principle). In order to establish the alleged breach, the accused contended that it was necessary for him to prove the nature and extent of the dissemination of the s 264 material and the manner and extent of its use by Commonwealth authorities in charging and prosecuting him. The accused relied on what the plurality (Kiefel CJ, Bell and Nettle JJ) said in Strickland (A Pseudonym) v Director of Public Prosecutions (Cth) [2018] HCA 53; (2018) 93 ALJR 1 (Strickland) at [80], [84] and [85] in support of the submission that it is for an applicant for a permanent stay to establish, in so far as it is within his power to do so, the factual foundation for such an order.
The accused contended that the Crown had not complied with its duty to disclose such documents and sought to obtain them by subpoenas issued to the Commissioner of Taxation and the Commissioner of the AFP (collectively, the Commissioners) and the DPP. The DPP and the Commissioners filed notices of motion to set aside the subpoenas (the subpoena motions), which were dismissed: R v Kinghorn [2019] NSWSC 553.
Subsequently, each of the Commissioners and the DPP filed notices of motion seeking that their respective objections to production of listed documents on the grounds of privilege be upheld (the privilege motions). It became apparent from the oral submissions made on behalf of the accused on the subpoena motions and from his written submissions on the privilege motions that the accused contended that the disclosure of his s 264 material to the AFP and the DPP was unlawful and that therefore privilege did not attach to it, relying on R v Cox & Railton (1884) 14 QBD 153 and Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 514 (Brennan J), 522 (Dawson J) and 556 (McHugh J); [1997] HCA 3. The accused also contended that the Crown's opposition to his application for a stay was inconsistent with the maintenance of the privilege and that the Court should find that there was imputed waiver of the privilege in accordance with Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 at [28]-[35]. In respect of other documents, the accused contended that there had been partial waiver which ought lead to a finding that the documents were no longer privileged.
The privilege motions were listed for hearing on 31 July 2019 and 1 August 2019. On the morning of 1 August 2019, Dr Renwick SC, who appeared with Ms Garsia, on behalf of the DPP, applied for an adjournment to adduce evidence as to the legality of disclosures made by the Commissioners of the s 264 material. I granted the adjournment: R v Kinghorn (No 2) [2019] NSWSC 989. The hearing of the motions resumed on 8 October 2019.
On 8 October 2019, the Crown sought leave to substitute two indictments (the New Indictments) for the Original Indictment, the first containing, as counts 1 and 2, the false representation charges which had formerly been counts 2 and 3; and the second containing what had formerly been count 1, the defrauding charge. The Crown confirmed that the basis of its application was that it accepted that information obtained as a result of the s 264 examinations (the s 264 information) would not be admissible on the defrauding charge and accepted, in oral submissions, that it "might cause irremediable prejudice" to the accused's right to a fair trial were the defrauding charge to be tried together with the false representation charges, in respect of which the Crown contended the s 264 information would be admissible. The Crown accepted that if statements made in the s 264 examinations were not relied on as a particular of the false representation charges, it could not use the s 264 examinations at all in the prosecution of the accused for those charges. I granted leave to the Crown pursuant to s 20 of the Criminal Procedure Act 1986 (NSW) to substitute the New Indictments for the Original Indictment. I understood that the Crown proposed to proceed first on the New Indictment which contained the false representation charges. The accused was arraigned on the New Indictments. He pleaded not guilty to each charge.
At the end of the hearing of the privilege motions on 10 October 2019, I reserved my decision.
On 16 October 2019 the Crown notified the Court and the parties by email that it proposed to withdraw the New Indictment which contained the defrauding charge. The matter was listed for mention on 17 October 2019, at which time the Crown filed a notice of discontinuance of that indictment in court and, at the accused's request, confirmed that it had no intention of prosecuting that charge against the accused in the future. At that mention, each of the parties confirmed that the discontinuance of the indictment which contained the defrauding charge did not affect the privilege motions. No party sought to make any further submissions on the privilege motions as a consequence of the Crown's filing the notice of discontinuance. The New Indictment which contains the false representation charges remains extant.
The issues to be determined on the privilege motions are, in substance, whether those objecting to access have discharged the evidentiary onus of establishing a prima facie claim for privilege; and, if so, whether the accused has established either that privilege did not attach or that privilege has been lost by reason of s 125 of the Evidence Act 1995 (NSW); waiver by partial disclosure; or imputed waiver by reason of inconsistent conduct. Subsidiary issues also arise for determination, including when the proceedings were anticipated for the purposes of litigation privilege; whether the common law or the Evidence Act applies to claims made by the DPP over production by the AFP and the ATO; and whether the DPP herself can claim privilege as a "client" over internal DPP documents. There are also questions about the extent to which the Court's powers of inspection under s 133 of the Evidence Act ought be exercised.
Mr Walker SC, who appeared with Mr Buchen SC, Ms Huxley and Mr Atkin on behalf of the accused, took exception to the suggestion, implied by the separate representation of the Crown and the DPP, that their concerns were distinct. He contended that the true position is that the DPP brings charges on behalf of the Crown, being, in effect, the polity. He drew the distinction between the barrister appearing on behalf of the Crown, who is, by convention referred to, as in this case, as Mr Crown and the Crown itself. He submitted that as Mr Crown was the only person who was entitled to put the Crown case, regard ought be confined, in determining the Crown case, to what Mr Crown said since the other Commonwealth authorities had no authority to put the Crown case. Nonetheless, Mr Walker did not contend that there was any objection to the separate representation of the Commissioners, since he accepted that their interests were potentially distinct from those of the DPP and the Crown.
In many cases, the Crown, the DPP and the Commissioners adopted each other's submissions. Where there is no particular reason to distinguish between these parties, they will be referred to collectively as "the Commonwealth authorities". Questions relating to the relationship between the Commonwealth authorities and its effect on privilege will be addressed later in these reasons.

[6]

The 2007 disclosure

Mr Walton was the officer at the ATO who, on 2 November 2006, received information related to the tax affairs of the accused. Mr Walton, who was a member of the ATO's Serious Non-Compliance business line, became responsible for reviewing the available evidence and determining whether a criminal investigation of the accused ought be commenced. He decided that it would be prudent to seek the advice of the DPP. On 27 November 2006, officers of the ATO met with officers of the DPP. On 31 January 2007 Mr Walton asked the DPP to provide advice concerning the accused and, for that purpose, Mr Walton disclosed material, which included the s 264 information (the 2007 disclosure). This was the first occasion on which the s 264 information was disclosed to a party outside the ATO.
The Crown has provided the 2007 disclosure to the accused. The 2007 disclosure indicated that Mr Walton sought advice from the DPP "on potential cases for investigation". The request also said: "The purpose of this minute is to provide the CDPP with background information and material on a soon to be completed audit by the High Wealth Individuals Taskforce. SNC Investigations is seeking some preliminary advice from the CDPP as to whether an investigation into this matter is likely to be fruitful and worth attempting, based on the current evidence available and the likelihood of obtaining further admissible evidence." [Emphasis added.]
In the 2007 disclosure, Mr Walton set out the accused's denials that he was the beneficial owner of Kalomo and Kalomo Pacific and the "substantial circumstantial evidence" to the contrary. Mr Walton identified the following potential offences which were under consideration: s 29D of the Crimes Act (defraud the Commonwealth); s 134.2 of the Criminal Code Act (obtain a benefit by deception); s 8P of the TAA (knowingly make a false or misleading statement); and s 137.1 of the Criminal Code Act (false or misleading information). When making the 2007 disclosure, Mr Walton turned his mind to s 16(2A) of the ITAA and concluded that the disclosure fell within the performance of his duties as an officer.
A further disclosure was made by Mr Walton in October 2007, this time to the AFP, under cover of a document entitled "Referral to the AFP".
The request for advice was allocated to Ms Shouldice, a solicitor at the DPP, who, on 5 February 2008, provided the DPP's advice to the ATO (the Shouldice advice). Privilege has been claimed by the ATO, who was accepted to be, relevantly, the client. Parts of the advice appear from the following documents which have either been disclosed or produced in answer to a subpoena. In one such document (AFP.001.001.0038) the following passage appears: "The issues were referred to the Commonwealth Director of Public Prosecutions ('CDPP') who advised that an investigation will need to be undertaken before the CDPP would be in a position to confidently assert that there are reasonable prospects of conviction of … Kinghorn … for offences arising out of … alleged failures to disclose income and/or overseas assets in relevant tax returns."
On 6 June 2008 Ms Shouldice sent an email to the ATO, copied to the AFP and DPP, which attached a document (AFP.001.001.0029) which said, in part: "No charges laid to date. Investigations currently being undertaken by the [AFP]. The [DPP] has stated in a preliminary advice that if evidence becomes available that reveals that Kinghorn … held beneficial interests in the subject Jersey companies there is a prima facie case against either or both of them for defrauding the Commonwealth."
An ATO report forwarded to the AFP in July 2010 (AFP.001.001.0098) said: "On 5 February 2008 the [DPP] advised the ATO that a prima facie case existed against Kinghorn … although a criminal investigation would need to be undertaken to obtain further evidence."

[8]

Further evidence gathering

In 2008 the ATO asked the DPP to advise in relation to a request under the Mutual Assistance in Criminal Matters Act 1987 (Cth). Such advice was provided and, on about 30 January 2009, the Mutual Assistance Request (MAR) was transmitted to the Bailiwick of Jersey. The DPP undertook further work on issues arising from the MAR.
On about 7 July 2011 the AFP sent to the DPP a statement of facts and brief of evidence in relation to possible offences committed by the accused and requested advice as to potential charges which could be laid against the accused. By that stage, the investigation in relation to the accused had come to be known as "Operation Avenger".
Between 2011 and 2014 there were further discussions between the DPP, ATO and AFP concerning the accused, which also involved the MAR. On 31 July 2013 the DPP retained Peter Neil SC to advise regarding possible charges against the accused. On 29 August 2013 and 25 September 2013, Mr Neil provided such advice. On 21 May 2014, Mr Neil provided further advice regarding what charges might be appropriate in light of the evidence that was then available. On 5 September 2014, Mr Neil provided a revised version of the earlier advice given on 21 May 2014. On about 15 September 2014, the DPP provided advice to the AFP about the charges which it might be appropriate to lay against the accused. In about December 2014, the AFP continued to collate material for the preparation of the brief, including from the material provided pursuant to the MAR.
On 5 May 2015 Federal Agent Andrew Hiscoe sent an email to a solicitor at the DPP, Tom Muir, in which he said: "As an update, ATO have advised they should have everything to me at the end of the week. Which probably means I'll be able to pick it up next week, collate it and get it to you ideally Thursday."
The brief was not delivered until 19 November 2015. I accept Mr Tchakerian's evidence that he considered, having regard to Federal Agent Hiscoe's email of 5 May 2015, that the AFP investigation was largely complete by that date and there were no substantial investigative steps outstanding, although there were administrative tasks to be completed before finalisation of the brief. According to Mr Tchakerian, it was inevitable that, "based on the overriding consideration of general deterrence", a prosecution of the accused would be regarded by the DPP as being in the public interest. He said that because the offence would be one tried on indictment, the DPP (on behalf of the Crown) and not the ATO would be the moving party in those proceedings.

[9]

When proceedings were anticipated

The Commonwealth authorities contended, on the basis of Mr Tchakerian's evidence, that proceedings were anticipated by the DPP at least by 5 May 2015. The accused accepted that, at the time the DPP reasonably anticipated committal proceedings, the criminal trial would also have been anticipated. The accused did not submit that anything turned on the DPP's decision to prosecute in the name of the Queen, rather than in her official name, as she is entitled to do under s 9(1) of the Director of Public Prosecutions Act 1983 (Cth) (the DPP Act). The accused submitted that litigation was not contemplated until October 2017, being the commencement of the committal proceedings (see below). He submitted that the evidence adduced by the Commonwealth authorities was insufficient to establish an earlier date since, once the brief had been delivered, a reasonable time would have to be allowed for its review and assessment by the DPP before a decision was made to commence the committal proceedings.
Mr Tchakerian's opinion as to the timing appears to have been based on Federal Agent Hiscoe's expectation, expressed in his email to Mr Muir of the DPP extracted above, that the brief would be delivered to the DPP within a short time of 5 May 2015. Mr Tchakerian referred to the affidavit of Mr Murphy, Assistant Director of the DPP, sworn 24 May 2019. Mr Murphy currently supervises the legal team responsible for the conduct of the proceedings on behalf of the Crown. Mr Murphy deposed that litigation was anticipated by the DPP on 19 November 2015, being the date at which the brief was delivered. Mr Murphy said: "Based [on] the established procedures of the Officer and my experience as a senior employee in the Officer, the receipt of the brief by the Office, on behalf of the Director gave rise to an anticipation of litigation, namely a prosecution of the Accused."
Mr Tchakerian said, after referring to Mr Murphy's opinion and the email from Federal Agent Hiscoe to Mr Muir on 5 May 2015: "For the reasons set out above, I am of the view that from the Director's perspective there was a real prospect of litigation before then [19 November 2015], and at least from the time when it became clear that the brief from the AFP was substantially prepared and intended to be delivered as soon as it was finalised."
State agencies are expected to make "every" effort to adduce evidence in support of their claims for privilege that is both "adequate and compelling": Bailey v Director-General, Department of Land and Water Conservation (2009) 74 NSWLR 333; [2009] NSWCA 100 at [45] (Tobias JA, Allsop P and Hodgson JA agreeing) (Bailey). There is a degree of speculation in Mr Tchakerian's evidence, as is evident from his expression of an opinion said to be "from the Director's perspective". Further, Mr Tchakerian's opinion, which is retrospective, is informed by Federal Agent Hiscoe's expectation, which did not come to pass, based on what he had been told by an unidentified person at the ATO. The evidence does not exclude the inference that there was a material insufficiency in the evidence which had to be rectified before the brief was delivered to the DPP. This inference is consistent with the time taken from Federal Agent Hiscoe's prediction and the date on which the brief was actually delivered.
The evidence of Mr Murphy is entitled to greater weight because it links the "established procedures of the Officer [of the DPP]" and the concrete act of "receipt of the brief by the Officer [of the DPP]". The Commonwealth authorities bear the onus of establishing the date on which litigation was reasonably contemplated. In light of the difference between Mr Murphy and Mr Tchakerian, I am not satisfied that litigation was contemplated on a date earlier than the date on which the brief was delivered, namely 19 November 2015. On the basis of their evidence I am satisfied that it was contemplated by 19 November 2015. I reject the accused's submission that the proceedings were not contemplated until the commencement of committal proceedings. I accept the Commonwealth authorities' evidence and submissions that the DPP's involvement in the matter in the period since 2007, which included the DPP's briefing of senior counsel (Mr Neil), in 2014, to provide "pre-brief advice", had the practical effect that litigation (in the form of a prosecution) was anticipated at the time of the delivery of the brief from the ATO through the AFP to the DPP on 19 November 2015.

[11]

On 19 June 2018 the accused was committed to stand trial. From that time the prosecution was conducted by the DPP on behalf of the Crown. On 17 July 2018 the Original Indictment was filed in this Court.
On 2 August 2018 the DPP provided further particulars of the charges and identified references to the transcript pages of each of the five days the accused was examined pursuant to s 264 of the ITAA. On the same day, the Crown filed and served the outline of prosecution facts, which included the following: "85. On 4, 6 and 18 May 2005 and 14 June 2005, Kinghorn attended interviews with the ATO pursuant to section 264 of the Income Tax Assessment Act 1936 (Cth) (the ITAA). 86. In those interviews, Kinghorn denied that he had control over the affairs of [Kalomo] and [Kalomo Pacific]. 87. In his interview on 6 May 2005, Kinghorn gave the following responses: [extracts from the s 264 examination were set out] 88. Mr Walldov states: a. At no time did he have any control over [Kalomo] or any of its subsidiaries; b. that he had no communication with Mr Kinghorn in relation to Kalomo after 22 March 1994; c. that he never arranged for Ben Warner to conduct any kind of financial transaction. 89. Mr Sundstrom states that he had not heard of [Kalomo] until 2005, nor had he heard of Walbrook [sic]. 90. The answers given by Kinghorn on 6 May 2005 were also inconsistent with an affidavit Kinghorn swore in the Redfern proceedings dated 15 July 1998. For instance at paragraphs 48, 82, 83 and 114 of the affidavit, he stated: '[48] At the request of Mr Anders Waldorf [sic] (President of AMCO Finance AB) I agreed to act as non-executive Chairman of the RAMS Joint Venture … [82] Through July 1996 I held a number of telephone conversations with Anders Waldorf [sic] and Magnus Sundstrom of AMCO Finance AB in Sweden. I also held telephone conversations with Ben Warner and John Alcock of [Kalomo] … [83] While I cannot remember the exact words spoken, agreement was reached between myself, Anders Waldorf [sic], Magnus Sundstrom, John Alcock and Ben Warner during 1996 to the effect that: … [Kalomo] would entertain and give consideration to a "management buyout proposal" if I could generate one. … [114] On 31 March 1997 Anders Waldorf [sic] of AMCO Finance AB told me that [Kalomo] would be prepared to consider an offer of $46,572,206 for the RAMS home loan business.'"

[13]

The DPP's response to Leach

Before me, the Commonwealth authorities confirmed their acceptance of the correctness of Leach, in respect of which no application for special leave to appeal to the High Court was filed.
In a response dated 19 March 2019, the DPP said that the s 264 information had been "lawfully disclosed" to the AFP and DPP and was admissible on counts 2 and 3 (of the Original Indictment) and that "incidental disclosure" of the s 264 information in relation to count 1 was "permitted". The DPP identified the first disclosure as having occurred in 2007 and alleged that it had been made for the purpose of enabling the DPP to consider and subsequently prosecute offences concerning the falsity of answers given by the accused in the s 264 examinations. The DPP sought to distinguish Leach (who was charged with fraud offences) on this basis. The DPP contended that the accusatory principle was abrogated by the offence to make a false or misleading statement to a taxation officer (s 8K of the TAA) and that such abrogation extended to any offence based on the falsity of representations or statements made in a s 264 examination.
The DPP also contended, in the letter of 19 March 2019, that the 2007 disclosure was "permitted" by s 3E of the TAA; and that the disclosure in 2015 to the AFP was "permitted" under s 3G(1) and the on-disclosure to the DPP was "permitted" under s 3G(7). The DPP resisted the proposition that it had any duty to disclose more than already had been disclosed to the accused.
On 25 March 2019 the accused's solicitors wrote to the DPP, requesting evidence to support the assertion that the 2007 disclosure was permitted by s 3E and other material relating to subsequent disclosures as part of the Crown's duty of disclosure.
On 26 March 2019 the DPP responded that she did not consider that the requests fell within the Crown's duty of disclosure. The DPP said, in addition: "11. Paragraph 4 of your letter also seems to suggest that we contended that both the 2007 and 2015 disclosures were authorised, under section 3E of the Taxation Administration Act 1953 (Cth) (TAA). For the avoidance of doubt, we note that paragraph 6 of our letter only stated that the 2007 disclosure was permitted under this provision. The 2015 disclosure from the AFP to the CDPP was permitted under section 3G(7) of the TAA."

[14]

The accused's motion for a stay and the subpoena motions

On 15 April 2019, the accused filed a notice of motion seeking orders which included a temporary stay of proceedings pending provision of material set out in the schedule to the motion. The documents described in the schedule repeated the requests which the accused had earlier made in correspondence.
On 18 April 2019 the accused requested that subpoenas be issued to the ATO, the AFP and the DPP. By subpoena issued to the ATO, the accused sought production of documents which constituted, recorded, referred to or purported to authorise the disclosures in 2007 or 2015 or which referred to the purpose of such disclosures. By subpoenas issued to the AFP and the DPP, also on 18 April 2019, the accused sought production of documents in similar terms, as well as documents referring to requests for such disclosures.
In its submissions dated 29 April 2019, the Crown attached certain disclosures of the s 264 material, including the 2007 disclosure, and submitted as follows: "11. The Director maintains that she has complied with her disclosure obligations, according to the circumstances as she perceives them to be. However, in order to assist the Court in determining the matters identified in the accused's Notice of Motion and Kinghorn's submissions, but not so as to concede that they are otherwise disclosable, the following documents are attached to these submissions: a. unredacted 2007 referral from the ATO, dated 29 November 2006 but received by the CDPP on 31 January 2007; b. partially redacted 2015 referral from the AFP, dated 19 November 2015; c. unredacted record of receipt in relation to the 2015 service of the brief of evidence on the CDPP by the AFP, dated 19 November 2015; d. unredacted record of receipt in relation to the 2016 service of the brief of evidence on the CDPP by the AFP, dated 17 March 2016; and e. partially redacted email dated 21 August 2018 from Tania Griffin of the ATO to Kiri Purchase of the CDPP. … 15. The documents attached show that, as Mr Kinghorn's lawyers have been advised by the Director in her correspondence to them, the 2007 referral from the ATO and 2015 referral from the AFP included seeking advice as to offences concerning the falsity of Mr Kinghorn's evidence in the s 264 examinations, including potential offences of giving false information in course of his s 264 examinations. … 34. The reliance by Mr Kinghorn on the High Court's decision in Lee v The Queen is, respectfully, misplaced. The criticism of the prosecution referred to in the extract at [26] of Kinghorn's submissions was its failure to inquire as to the circumstances in which those transcripts came to be provided to the prosecution and then to take necessary steps to ensure it did not affect the trial. That situation is entirely distinguishable from the present, where the prosecution has inquired as to the circumstances in which the transcripts were provided to it, has assessed whether they were lawfully received, and has concluded (and communicated to Mr Kinghorn's lawyers) the opinion that they were. … 38. Despite there being no obligation to disclose it, and there being in existence layers of advice privilege and litigation privilege, the CDPP has attached (with the consent of the AFP and ATO) copies of redacted correspondence and records received from the ATO and AFP at or around the time the s 264 examination transcripts were provided to the CDPP. These documents should put beyond doubt any concern Mr Kinghorn or his lawyers have about the circumstances in which they were disseminated."
The Crown maintained its claims for privilege over the advice provided in answer to the disclosures to the DPP and the AFP.
By further subpoena issued to the DPP on 2 May 2019, the accused sought production of documents which: "(a) Constitute, record, or refer to the correspondence from the Commonwealth Director of Public Prosecutions referred to in the letter sent by Federal Agent Andrew Hiscoe to the Commonwealth Director of Public Prosecutions dated 19 November 2015 to the attention of Thomas Muir titled 'Prosecution of John Alan Kinghorn' in the following passage on page 2 of the document: Transcripts of interview (TABS 716 to 720) between ATO officers and John KINGHORN were undertaken in 2005 using coercive powers. These transcripts have been included in the Har[d] copy and electronic brief as a result of correspondence from CDPP confirming inclusion of this material was not an issue. (b) Constitute, record, or refer to any request by the Australian Federal Police that the Commonwealth Director of Public Prosecutions advise or confirm whether inclusion of the transcripts of the Kinghorn 264 Examinations could or should be included in a brief in connection with the correspondence in (a) above."
As referred to above, on 10 May 2019 I heard and dismissed the subpoena motions.

[15]

Identification of the legislative authority for the disclosure of the s 264 examinations

On 25 July 2019 the DPP wrote to the accused's solicitors and pointed out that she had confirmed that the 2007 disclosure was "permitted" rather than "authorised" under s 3E. The DPP continued: "The Australian Taxation Office (ATO) advises that the 2007 Disclosure was made pursuant to s 16(2A) of the [ITAA]."
This was the first occasion on which s 16(2A) had been identified as the source of the power for the disclosures in 2007.
On 31 July 2019, the first day of the hearing of the privilege motions, the DPP wrote to the accused's solicitors referring to previous correspondence and to the accused's submissions, before continuing: "2. By way of correspondence dated 19 March 2019, the Crown stated erroneously at [6] that: ...the 2015 Disclosure to the AFP was permitted under sub-section 3G(1), and the on-disclosure by the AFP to the CDPP was permitted under sub-section 3G(7). 3. The 2015 disclosure to the AFP and the 2015 on-disclosure to the CDPP were authorised as follows: a. the s264 Examinations were disclosed by the ATO to the AFP under subsection 355-70(1), for the purpose of a Project Wickenby taskforce (item 3 of table in the subsection); and b. the AFP on-disclosed the 264 Examinations to the CDPP pursuant to sub-section 355-175(2)."
It was common ground that s 3G was not in force at the time of the 2015 disclosures and, accordingly, could not have authorised them.
As referred to above, on 1 August 2019, the DPP sought an adjournment to adduce evidence as to the legality of disclosures made by the Commissioners of the s 264 material in accordance with the statements made in the DPP's letter of 31 July 2019. Dr Renwick tendered a further letter, dated 1 August 2019, in which the DPP confirmed her new position regarding the authorisation for the disclosures: "2007 Disclosure 2. In correspondence dated 19 March 2019 and 26 March 2019, we advised that it was the position of the Crown that the 2007 Disclosure was permitted as a matter of law by s 3E of the Taxation Administration Act 1953 (Cth) (TAA), but not authorised in fact under that provision. 3. As noted in correspondence on 25 and 26 July, on 22 May 2019 the Australian Taxation Office (ATO) confirmed to this Office that the 2007 disclosure was authorised under s 16(2A) of the income Tax Assessment Act 1936 (Cth). 4. The Crown apologises for not correcting the position between 22 May and 25 July 2019. 2015 Disclosure 5. In correspondence dated 19 March 2019, this Office, on behalf of the Crown, incorrectly stated that the disclosure by the ATO to the AFP, and the on-disclosure to the CDPP, in 2015 were permitted under subss 3G(1) and 3G(7) of the TAA, respectively. 6. As noted in our correspondence of 31 July, these disclosures were in fact authorised under subss 355-70(1) and 355-175(2) of the TAA, respectively. This Office was advised of the finding of the authorising documentation on 31 July 2019. 7. The error in the 19 March 2019 correspondence regarding the 2015 Disclosure was inadvertent. The Crown apologises for this error and that it was not corrected earlier."
Dr Renwick submitted that this evidence was required to answer the accused's submission that there had been unlawful disclosure of the accused's s 264 information such as would cause privilege either not to attach or to be lost under s 125 of the Evidence Act. As referred to above, the motions were adjourned and were resumed on 8 October 2019.
The DPP has identified 14 disclosures of the s 264 information. These are set out below in a table which indicates by whom and to whom each disclosure was made and the power relied on by the DPP to authorise the disclosure. No Date Person What disclosed To whom Evidence Power relied on 1 31.1.07 James Walton Documents including transcript of s 264 examination DPP (for advice) James Walton 16.8.19 S 16(2A) of ITAA. (ATO) Earlier reliance on s 3E of TAA was withdrawn. 2 10/ James Walton (ATO) Formal referral for joint investigation of Kinghorn matter to AFP; included documents which referred to Kinghorn's answers in s 264 examinations AFP James Walton 16.8.19 S 16(2A) of ITAA. 15.10.07 Earlier reliance on s 3E of TAA was withdrawn. 3 19.2.10/ Mark Gosling (ATO) Documents including transcript of s 264 examination AFP (Wills-Johnson) Mark Gosling 16.8.19 S 3G(2) of TAA 24.2.10 (Project Wickenby) 4 21.7.10 Michael O'Neill (ATO) John Clingan disclosed information (background and summary) AFP Michael O'Neill 16.8.19 S 3G of TAA (Project Wickenby) 5 27.5.15 Joanne Elias, authorised by Phillip Jones Complete copy including ATO's examinations of Kinghorn AFP (Hiscoe) Phillip Jones 15.8.19 Item 3 of Table in s 355-70 of TAA; s 355-50(1) (ATO) 6 3.6.15 Tania Griffin (ATO) Documents including transcript of s 264 examination AFP Andrew Hiscoe, 16.8.19 S 355-175 TAA 7 19.11.15 Andrew Hiscoe (AFP) Documents including transcript of s 264 examination as brief of evidence DPP Andrew Hiscoe, 16.8.19 S 355-175 TAA 8 17.3.16 Andrew Hiscoe (AFP) Ditto and further documents DPP Andrew Hiscoe, 16.8.19 S 355-175 TAA 9 13.12.16 Andrew Hiscoe (AFP) Ditto and further documents (full brief) DPP Andrew Hiscoe, 16.8.19 S 355-175 TAA 10 9.10.17 Andrew Hiscoe (AFP) Full copy of brief DPP Andrew Hiscoe, 16.8.19 S 355-175 TAA 11 6.11.17 Tania Griffin (ATO) Complete copy of ATO's examinations of Kinghorn and report from McGovern and Sheller (external counsel) regarding examinations (Hard copy and compact disc) AFP (Hiscoe) Tania Griffin, 16.8.19 Item 3 of Table in s 355-70 of TAA; s 355-50(1) 12 9.8.18 Andrew Hiscoe (AFP) Further copy of brief of evidence DPP Andrew Hiscoe, 16.8.19 S 355-175 TAA 13 21.8.18 Tania Griffin (ATO) Complete copy of ATO's examinations of Kinghorn DPP Tania Griffin, 16.8.19 Item 3 of Table in s 355-70 of TAA; s 355-50(1) 14 6.8.19 Andrew Hiscoe (AFP) Examinations DPP Andrew Hiscoe, 16.8.19 S 355-175 TAA + s 60A AFP Act 1979 (Cth)

[16]

The relationship between the Commonwealth authorities

Before turning to the substantive issues of privilege it is necessary to address the relationship between the Commonwealth authorities. As is apparent from the appearances, the Crown, the DPP and the Commissioners were separately represented for the purposes of the privilege motions, as they were for the motions to set aside the subpoenas. It is common ground that the only parties to the accused's motion for a stay are the accused and the Crown. Various questions have arisen about the status of the DPP vis-à-vis the Commissioners and the Crown which makes it necessary to address the relationship between the Commonwealth authorities.
Dr Renwick submitted that the DPP was, when she was seeking advice from her own officers, the client and, when acting on the instructions of the Commissioners, the lawyer. Dr Renwick contended that, in both cases, legal professional privilege attached to the communications.
Mr Walker submitted that it would be as inappropriate to regard the DPP as the "client" and her employed solicitors as her "lawyers", as it would be to regard the partner of a firm as being the "client" and the employed solicitors as the partner's lawyers. He contended that when the DPP is providing advice to instrumentalities such as the ATO and the AFP, the DPP is the lawyer and they are the clients. Thus the dominant purpose test would apply to confer privilege on communications for the dominant purpose of providing advice to the clients.
The relationship between the DPP and employed officers within the office of the DPP has been considered by this Court in a number of decisions which have held that the DPP is regarded as being the client for the purposes of legal advice provided by her staff or by a Crown Prosecutor. In Director of Public Prosecutions (NSW) v Stanizzo [2019] NSWCA 12, the Court (Basten and Payne JJA and Sackville AJA), citing R v Petroulias (No 22) (2007) 213 FLR 293; [2007] NSWSC 692 (Petroulias), Aouad v R; El-Zayet v R [2013] NSWSC 760 at [31] (Price J) and Hamilton v State of New South Wales [2016] NSWSC 1213 at [38]-[40] (Beech-Jones J), held: "[25] In this case, the Director was the "client" as defined in s 117 of the Evidence Act under subss (a) and (c) of that definition. The Director is "a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service)": subs (a). The Director is also "an employer of a lawyer if the employer is … a body established by a law of the …. State": subs (c). Ms Rallis was employed in the public service to enable the Director and Solicitor for Public Prosecutions to exercise his or her functions. Mr Barr was appointed as a Crown Prosecutor performing the functions in s 5 of the Crown Prosecutors Act. In conducting the conferences with witnesses and preparing notes of the conferences, both were persons providing legal services to the Director as the client. [26] Accordingly, pursuant to ss 117 and 119 of the Evidence Act, the Director, as the client, was entitled to object to the production of the conference notes prepared by a lawyer, Ms Rallis, on the ground of client legal privilege…"
The ATO and the AFP may also, relevantly, be "clients" within s 117(1)(c) of the Evidence Act since they are employers of lawyers and are bodies "established by the law of the Commonwealth": s 6 of the Australian Federal Police Act 1979 (Cth) and ss 4 and 5 of the TAA. The Commissioners may also be "clients" because each is a "person … who engages a lawyer to provide legal services or who employs a lawyer": s 117(1)(a) of the Evidence Act. In cases where the ATO or the AFP seeks advice from the DPP, they are the clients and the DPP is the lawyer. Paragraph 3(1)(e) of the Director of Public Prosecutions Regulations 1984 expressly conferred on the DPP the function of providing advice as follows: "giv[ing], to an authority of the Commonwealth, legal advice on law enforcement or a matter relating to law enforcement, whether or not the advice is for the purposes of a particular investigation".
It will be a matter of judgment in any particular case whether the DPP is, relevantly, the lawyer, as in Bailey, at [52], where the legal officers within the DPP were providing legal advice as agents of the DPP and not as lawyers to the DPP as their client, or whether the DPP is the client and the legal officers advising the DPP are the lawyers. However, as the authorities referred to above establish, there is no reason in principle why the DPP ought not, in some cases, be regarded as a client for the purposes of legal professional privilege and ss 117 and 119 of the Evidence Act.
The question whether alleged inconsistent conduct such as would give rise to imputed waiver must be that of the privilege holder or can be, as is alleged in the present case, that of the DPP, as agent for the Crown is addressed below.

[17]

The applicable law: whether the Evidence Act or the common law applies to third party objections

The parties raised an antecedent question about which law applies to questions of privilege. The issue was whether the Evidence Act or the common law applied where the producing party was not the party objecting to access (third party objection).
The Crown authorities submitted that the Evidence Act applied to all situations, including third party objections. They submitted, accordingly, that ss 122 (loss of privilege by consent), 125 (loss of privilege by misconduct) and 126 (loss of client privilege: related communications and documents) governed the question whether privilege had been lost or would be found to have been waived in all cases for determination in these proceedings. The accused submitted that the common law applied to third party objections (being, relevantly, the objections by the DPP to production by the Commissioners).
It was common ground that the relevant law that governed a party's objections to production of a subpoena issued to that party was the Evidence Act 1995 (NSW) by reason of s 131A of the Evidence Act (which was enacted to overcome the effect of Esso Australia v The Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67).
The resolution of this issue turns on the wording of Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 1.9. It was accepted that, before the addition of UCPR, r 1.9(4A)-(4C), s 131A of the Evidence Act had the effect that, where the person required to produce a document on subpoena objected to production, the Evidence Act applied: Singtel Optus Pty Ltd v Weston (2011) 81 NSWLR 526; [2011] NSWSC 1083 at [27] (White J). White J said, at [28], that s 131A did not apply where a claim for privilege was made by someone other than the producing party and that, in those circumstances, the common law applied.
It was common ground that the relevant sub-rule is UCPR, r 1.9(4A). However, it is convenient to set out the surrounding sub-rules to provide the necessary context: "1.9 Objections to production of documents and answering of questions founded on privilege (cf SCR Part 36, rule 13; DCR Part 28, rule 16) (1) This rule applies in the following circumstances: (a) if the court orders a person, by subpoena or otherwise, to produce a document to the court or to an authorised officer, … … (3) A person may object to producing a document on the ground that the document is a privileged document or to answering a question on the ground that the answer would disclose privileged information. (4) A person objecting under subrule (3) may not be compelled to produce the document, or to answer the question, unless and until the objection is overruled. (4A) If a document is produced, and a person objects to the production of the document on the ground that the document is a privileged document, access to the document must not be granted unless and until the objection is overruled. (4B) The production of a document to the court under a claim for privilege does not constitute a waiver of privilege. (4C) Subrules (4A) and (4B) extend to documents produced before the commencement of those subrules."
As the Explanatory Note recorded, UCPR, r 1.9(4A), (4B) and (4C) were introduced to ensure that a party which produced documents to the Court under cover of a claim for privilege, would not thereby be taken to have waived privilege. Such production, prior to the amendment, had been held by Brereton J in Hancock v Rinehart [2016] NSWSC 12 to constitute waiver.
The Commonwealth authorities argued that it was plain from the use of the indefinite article before "person" in UCPR, r 1.9(4A), that the rule was apt to cover production, not only by the objector, but also by a person other than the person objecting. They contended that, if the provision intended to distinguish between the producing party and the objecting party, the draftsperson would have said "if a document is produced by a person, and that person objects to production". They also submitted that such a construction of UCPR, r 1.9 tended to promote the purpose of s 131A of the Evidence Act, which was to bring pre-trial procedures regarding privilege into line with the rules of evidence at a trial.
The accused submitted that the wording of UCPR, r 1.9(4A) did not apply to a situation where Party A (such as the DPP) objected to access being given to Party B (the accused) on the grounds that documents produced by Party C (the Commissioners) were "privileged documents". He submitted that, although the indefinite article in UCPR, r 1.9(4A) tended to support such a construction (for the reasons advanced by the Commonwealth authorities), UCPR, r 1.9(3) is addressed only to the person required to produce (in the example, the Commissioners) and not to a third party objector (such as the DPP in respect of documents produced by the Commissioners), as is plain from the heading of the rule and UCPR, r 1.9(1)(a) which sets out when the rule applies. The construction for which the accused contended is consistent with Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151 at [8]-[11] (Brereton J).
There is much to be said for the purposive construction for which the Commonwealth authorities contended. There would appear to be no conceivable reason why a distinction ought be drawn between the law applicable to documents produced by Party C and documents produced by Party A in the example given above. However, I regard the law as having been settled by Carbotech Australia Pty Ltd v Yates, which I consider accords with the plain meaning of the words, although it does not necessarily advance their purpose. It follows that the common law governs the law relating to privilege claims made by the DPP in respect of documents produced by the Commissioners in answer to subpoenas issued to them and the Evidence Act applies to privilege claims by the DPP in respect of documents subpoenaed from the DPP. I am not, however, persuaded that there is necessarily any difference in the result in so far as ss 122, 125 and 126 are concerned. I note that s 122 was amended by the Evidence Amendment Act 2007 (NSW) to include a reference to inconsistent conduct. The Explanatory Note to the Amending Bill recorded that the new s 122 was to be "aligned more closely with the common law test for loss of privilege set out in Mann v Carnell (1999) 201 CLR 1" and to provide that "evidence may be adduced if the client or party concerned has acted in a way that is inconsistent with the maintenance of the privilege".
I am, however, persuaded that there is a potentially significant difference between the ambit of the privilege at common law and that under s 119 of the Evidence Act. Section 119(b) of the Evidence Act extended litigation privilege beyond the limits of the privilege under the common law since the common law is concerned with communications, whereas s 119(b) extends to documents "whether delivered or not": New Cap Reinsurance Corp Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258 at [18]-[20] (White J). It follows from my construction of UCPR, r 1.9(4A) above that s 119 applies to documents where the producing party is the objecting party and the common law applies where the objecting party is not the producing party.
In case I am wrong about the applicable law and the Evidence Act applies in both cases, I propose to address, where necessary, both sources of law. For this reason I will refer to legal professional privilege (the language of the common law), or simply privilege, rather than advice privilege (s 118) and litigation privilege (s 119).

[20]

Relevant legislative provisions

Section 264 of the ITAA relevantly provided: "264 Commissioner may require information and evidence (1) The Commissioner may by notice in writing require any person, whether a taxpayer or not, including any officer employed in or in connexion with any department of a Government or by any public authority: (a) to furnish the Commissioner with such information as the Commissioner may require; and (b) to attend and give evidence before the Commissioner or before any officer authorized by the Commissioner in that behalf concerning the person's or any other person's income or assessment, and may require the person to produce all books, documents and other papers whatever in the person's custody or under the person's control relating thereto. (2) The Commissioner may require the information or evidence to be given on oath or affirmation and either verbally or in writing, and for that purpose the Commissioner or the officers so authorized by the Commissioner may administer an oath or affirmation. …"
Section 16(2) of the ITAA provided: "Subject to this section, an officer shall not either directly or indirectly, either while he is, or after he ceases to be an officer, make a record of, or divulge or communicate to any person any information respecting the affairs of another person acquired by the officer as mentioned in the definition of officer in subsection (1). Note: A defendant bears an evidential burden in relation to the matters in subsection (2A), see subsection 13.3(3) of the Criminal Code."
The maximum criminal sanction for a breach of s 16(2) was "$10,000 or imprisonment for two years or both."
Section 16(2A) of the ITAA provided for an exception in the following terms: "Subsection (2) does not apply to the extent that the person makes the record of the information, or divulges or communicates the information, in the performance of the person's duties as an officer."
Section 16(1) defined "officer" as follows: "officer means a person who is or has been appointed or employed by the Commonwealth or by a State, and who by reason of that appointment or employment, or in the course of that employment, may acquire or has acquired information respecting the affairs of any other person, disclosed or obtained under the provisions of this Act or of any previous law of the Commonwealth relating to income tax."
Section 3C was inserted into the TAA by the Taxation Laws Amendment Act 1984 (Cth). The definition of officer was in similar terms to that in s 16(1) of the ITAA. Section 3C(2) contained a similar prohibition as appears in s 16(2) of the ITAA. The exception in s 16(2A) was contained within the portion of s 3C(2) (as enacted) highlighted below as follows: "(2) Subject to sub-section (4), a person who is or has been an officer shall not, except for the purposes of this Act or otherwise than in the performance of the person's duties as an officer, directly or indirectly- (a) make a record of any information with respect to the affairs of a second person; or (b) divulge or communicate to a second person any information with respect to the affairs of a third person, being information disclosed or obtained under or for the purposes of this Act and acquired by the person by reason of the person's appointment or employment by the Commonwealth or in the course of such employment, or by reason of the delegation to the person of powers or functions by the Commissioner, or in the course of the exercise of such powers or the performance of such functions, as the case may be. Penalty: $5,000 or imprisonment for 12 months, or both." [Emphasis added.]
Section 3C was amended after its enactment, including to double the penalty for infringement of the prohibition in s 3C(2) in line with a corresponding amendment to s 16(2) of the ITAA. For the period 14 September 2006 to 17 September 2009 (which covers the disclosures for which the Commonwealth authorities rely on s 16(2A), being disclosures 1 and 2 in the table above), the form of s 3C was amended to make it congruent with ss 16(2) and 16(2A), namely the relevant prohibition on disclosure was in s 16(2) and s 3C(2) and the relevant exception for performance of duties was in s 16(2A) and s 3C(2A).
Section 3C is relevant because it was referred to in Caratti v The Commissioner of Taxation [1999] FCA 1296; (1999) 42 ATR 714 (Caratti), which was the subject of submissions on the question of construction of s 16(2A) of the ITAA and is considered below. It is also relevant because it is in the same Act as s 3E, referred to below.
Section 3E(1), which was inserted into the TAA by the Taxation Laws Amendment Act (No 3) 1989 (Cth) and came into force on 30 June 1989, provided: "Use of tax information by law enforcement agencies and eligible Royal Commissions etc. (1) Notwithstanding any taxation secrecy provision, the Commissioner may disclose information acquired by the Commissioner under the provisions of a tax law to an authorised law enforcement agency officer, or to an authorised Royal Commission officer, if the Commissioner is satisfied that the information is relevant to: (a) establishing whether a serious offence has been, or is being, committed; or (b) the making, or proposed or possible making, of a proceeds of crime order."
The term "serious offence" in s 3E was defined as an indictable offence. As indicated in the table above, the Commonwealth authorities initially identified s 3E of the TAA as "permitting" disclosures 1 and 2. Although the DPP identified s 3E as permitting the disclosure, the DPP submitted that she had never intended to represent that the disclosure was authorised by s 3E. It is difficult to understand why the DPP identified s 3E as permitting the disclosure if s 3E was not relied upon to authorise it. Whatever might have been the reason for the wording of the letter of 19 March 2019, whether sophistic or otherwise, it is plain from subsequent submissions that the DPP does not rely on s 3E as authority for disclosures 1 and 2 but does rely on s 16(2A) of the ITAA.
Section 3E is, however, relevant because the accused relies on its enactment as evincing a legislative intention that the exception in s 16(2A) be read down so as to give meaning and effect to s 3E and to promote its evident purpose.
Section 3G of the TAA, which came into force on 12 April 2007 and was repealed from 16 December 2010, empowered the ATO Commissioner to disclose information under a taxation law (which includes s 264 examinations) to a "Project Wickenby officer" which was defined as a person who holds office in an agency in, or supporting, the Project Wickenby taskforce.
As referred to above, s 3G is relied upon to authorise disclosures 3, 4 and 5 in the table above. Its statutory successor, item 3 in the table in s 355-70 of the TAA (which is in similar terms), is relied on to support disclosures 5, 11 and 13 in the table above. Disclosures 6-10, 12 and 14 are said to be authorised by s 355-175, which came into force on 17 December 2010. This provision authorises "on-disclosure for original purpose". The potential "original purposes" listed in s 355-175 include a "purpose of the Project Wickenby taskforce".
I understand that the accused challenges all disclosures on the basis of Leach, but presses a discrete challenge in relation to disclosures 1 and 2. The challenges to disclosures 1 and 2 rest on the proposition that they were not authorised by s 16(2A) of the ITAA and therefore constitute an offence under s 16(2). In order to address this argument, it is necessary to consider these provisions and the authorities concerning their interpretation. I understand that the accused does not maintain such a challenge to disclosures 3-15 on the same basis, as he accepted that they were authorised by ss 3G or 355-175.

[21]

The parties' submissions

It was common ground that the s 264 information would fall within the prohibition in s 16(2). The Commonwealth authorities contended that the exception in s 16(2A) applied to permit the disclosure of the information to the AFP and the DPP because the duties of the relevant ATO officers entitled them to disclose such information to investigating and prosecuting authorities, including for the purpose of obtaining legal advice. They relied on affidavit evidence from the persons in the ATO who made the disclosures (identified in the table above) to the effect that they regarded themselves as acting in the performance of their duties as tax officers to disclose the s 264 information. They contended that, once it was accepted that a false statement made in the course of a s 264 examination could be the subject of criminal prosecution, the authority to disclose the s 264 information to investigating and prosecuting authorities was necessarily implied and, further, that s 16(2A) was intended to provide that authority. They contended that, in this way, the accusatory and companion principles had been, to that extent, abrogated.
The Commonwealth authorities also relied on R v Yates (1991) 56 A Crim R 29 (Yates) in which the Court of Criminal Appeal held that the relevant secrecy provisions did not prevent officers of the ATO from giving evidence in proceedings involving breaches of taxation law. They submitted that no assistance could be gained from s 3E of the TAA since the Court in Yates held that s 3E of the TAA did not have the effect that s 10(2) of Sales Tax Assessment Act (No. 1) 1930 (Cth) (SATA) (which was analogous to s 16 of the ITAA) ought be read down.
Mr Walker submitted that there was a circularity in assuming that s 16(2A) of the ITAA authorised all non-private disclosures made by tax officers in the course of what they considered to be their duties. He contended that such a construction would be at odds with the clear legislative intention to create a secrecy regime with strictly confined exceptions. He also relied on the circumstance that the Commission of Taxation is empowered, by s 8ZJ of the TAA, to bring prosecutions under s 8K of the TAA and submitted that, in these circumstances, it could not be said that implication of authority to disclose to the DPP was necessary. He contended that the only necessary implication of authority to disclose arose from s 9(5) of the DPP Act, which entitles the DPP to take over prosecutions instituted by another person for offences against Commonwealth laws. He accepted that, when the DPP was considering taking over such a prosecution, officers would be authorised to disclose to the DPP information otherwise protected by s 16(2).
Mr Walker submitted that s 16(2A) of the ITAA ought to be read down so as to give meaning and effect to s 3E and that Yates, properly analysed, did not decide to the contrary. He contended that, while the ITAA and the TAA were separate pieces of legislation, they were plainly cognate and, in some respects, were expressly cross-linked. He submitted that the modern approach to statutory interpretation, which was both contextual and purposive, permitted regard to be had to how a related statute dealt with a particular topic to arrive at a coherent view of the body of law. He submitted that, in light of these general principles, s 3E ought be regarded as a specific power and s 16(2A) as a general power (albeit in the form of an exception), thereby attracting the principle (the Hordern principle) expressed in the following passage from Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9 at 7 (Gavan Duffy CJ and Dixon J): "When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power."
In reply to Mr Walker's submission, the Commonwealth authorities submitted that the Hordern principle did not apply when the two provisions did not appear in the same piece of legislation and that therefore s 3E could not limit s 16(2A).
Before addressing the parties' submissions I propose to consider the cases to which I have been referred.

[22]

Saunders v Federal Commissioner of Taxation

In Saunders v Federal Commissioner of Taxation (1988) 19 ATR 1289; [1988] FCA 136 (Saunders) the question arose whether, although s 16(2) of the ITAA did not, in express terms, authorise officers to disclose information to the DPP, such disclosure was nonetheless authorised for the purposes of receiving legal advice or action. It was accepted that a finding that the disclosure was unauthorised would put the officer in breach of s 16(2) and liable to criminal penalty. Northrop J, at 1298-1300, held that officers were, by necessary implication, authorised to make such disclosures for that purpose. Of present relevance his Honour said, at 1300: "In applying these principles to the facts before me, I am of the opinion that the tax officers have acted and would be acting in the performance of their duties in disclosing information to the DPP. It is plainly part of the duty of the tax officers to assist the revenue to recover moneys owing to the Commonwealth and for this purpose it is permissible to instruct the DPP. Indeed, s 6(1)(fa) of the Director of Public Prosecutions Act 1983 makes it a function of the director to take or supervise the taking of civil remedies on behalf of and in the name of the Commonwealth and authorities of the Commonwealth. Further, it is noted that s 16 does not in express terms authorise tax officers to disclose information to the Australian Government Solicitor for the purpose of receiving legal advice or action. Information so disclosed would not be in breach of s 16 of the Tax Act."
His Honour expressly left open the question of the use of the information in criminal proceedings in the following terms: "I make no comment as to whether it is the duty of an officer to divulge information to the DPP for use in criminal proceedings, since the evidence does not suggest that the information was to be used for this purpose; compare Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460 at 468; 43 ALR 449 per Gibbs CJ at 468."
The purpose of the disclosure by the ATO to the DPP in Saunders was, at the stage at which the question was determined, to obtain legal advice rather than to use it in legal proceedings.

[23]

Yates

In Yates, tax officers obtained information in the course of their duties about the tax affairs of the appellant which was passed onto members of the AFP and officers of the DPP who gave evidence which included this information during the appellant's committal proceedings for multiple offences of obtaining a financial advantage by deception or fraud. The relevant secrecy provision in Yates, s 10(2) of the SATA, was in similar terms to s 16(2) of the ITAA. At the time the officers gave evidence, s 3E of the TAA had not yet come into force, although s 3C was part of the TAA (as set out above). The Court rejected the appellant's argument that the divulging of information by giving of evidence at a committal hearing was a criminal breach by the officers of the provisions of s 10(2) of the SATA and that, were they to give evidence at the trial, it would also amount to a criminal offence. At 31, Priestley JA (Wood and Finlay JJ agreeing) described s 16 of the ITAA as a "similar provision" and referred to Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1; [1952] HCA 32 in which Dixon CJ (who was relevantly the trial judge from whose judgment the appeal was dismissed by McTiernan, Williams and Kitto JJ) held that the functions and proper actions of the public officials included giving evidence. Of the construction of the exception to the prohibition in s 16 of the ITAA, such as was subsequently contained in s 16(2A), his Honour said, at 6: "… the words 'except in the performance of any duty as an officer' ought to receive a very wide interpretation. The word 'duty' there is not, I think, used in a sense that is confined to a legal obligation, but really would be better represented by the word 'function'. The exception governs all that is incidental to the carrying out of what is commonly called 'the duties of an officer's employment'; that is to say, the functions and proper actions which his employment authorises."
The Court in Yates held that, as s 3E was not in force at the time of the conduct, it could not be used to read down the exception in s 10 of SATA. However, Priestley JA said at 32: "Later legislation may well give insights to the meaning of earlier provisions, and the amended statute as a whole may require a different interpretation of the earlier provision after the inclusion of the new. If this happens, it will be the result of a court's assessment of the meaning of the statute in its new form as a whole."

[24]

Caratti v The Commissioner of Taxation

The relationship between ss 16(2) and 16(2A) and ss 3C and 3E arose in Caratti. Unlike in Yates, in Caratti s 3E had come into force by the time the relevant conduct occurred. The applicant, Caratti, argued that an ATO officer was in breach of s 16(2) when he disclosed the applicant's tax information, including information compulsorily obtained from him, to the DPP. French J, citing Saunders, concluded at 723 that there was no basis for excluding from the scope of the duty of an officer of the ATO, the provision to the DPP of information, including information compulsorily acquired from the taxpayer, "relevant to possible court proceedings for offences related to the defrauding of the revenue". Although the reasons do not indicate that a submission was made that s 3E confined the effect of s 16(2A) or that its enactment would render Saunders and Yates no longer good law, his Honour referred to s 3C (the prohibition in the TAA which contained the exception for disclosure in the performance of the person's duties) and s 3E (which provided an exception to the "tax secrecy provision") in the following passage at 722-723: "[25] …In my opinion there is no basis for excluding from the scope of the duty of an officer of the Commissioner the provision of information to the DPP relevant to possible court proceedings for offences related to defrauding of the revenue. It is a separate issue whether, in the circumstances of a particular case, the collection of such information by the Commissioner would constitute an interference with the criminal justice process and whether the use of such information by the DPP would be unfair or oppressive or furthering an improper purpose. But this application, so far as it is based upon alleged communications between the officers of the Commissioner and the DPP in breach of s 16, is not tenable on the facts pleaded. The same comment applies to Ms Rajan in her capacity as a consultant to the DPP. [26] Reference should also be made in this connection to s 3E of the TAA which authorises the Commissioner "Notwithstanding any taxation secrecy provision" to disclose information acquired by the Commissioner under the provisions of a tax law to an authorised law enforcement agency officer if the Commissioner is satisfied that the information is relevant to establishing whether a serious offence has been, or is being committed. So far as the application alleges a breach of s 3C of the TAA, it faces the same difficulties as in relation to s 16(2) which saves the disclosure of information 'in the performance of a person's duties as an officer'." [Emphasis added.]
I regard Caratti as having addressed the same question of construction as arose in the present case. It is of significance that French J did not consider that the limitations in s 3E narrowed the construction of the words "in the performance of a person's duties as an officer", whether in s 16(2A) of the ITAA or s 3C(4) of the TAA. The reason for that is that s 3E (and s 16(2)) commences with the words, "Notwithstanding any taxation secrecy provision". There is no doubt that, if the Hordern principle applied, it would apply to ss 3C and 3E since they appear in the same enactment. French J did not consider that it did. I note that the parties before me did not address the significance of s 3C.

[25]

Extrinsic material: s 3E of the TAA

Although I regard Caratti as persuasive authority, for completeness I propose to have regard to the purpose of s 3E and associated provisions, as expressed in the Second Reading Speech and Explanatory Memorandum: s 15AB of the Acts Interpretation Act 1901 (Cth). The Second Reading Speech (Senate, Parliamentary Debates (Hansard), 25 May 1989 at 2642) identified the purpose of s 3E and associated provisions as follows: "The taxation secrecy provisions are to be amended to allow the Commissioner of Taxation to disclose tax information to specified law enforcement agencies in certain circumstances, and to the Australian Customs Service. … Amendments to the taxation secrecy provisions contained in this Bill will permit the Commissioner of Taxation to provide taxation information to certain law enforcement agencies. The authorised law enforcement agencies are the Australian Federal Police, State and Northern Territory police forces, the Director of Public Prosecutions, the National Crime Authority and State and Territory Corporate Affairs Commissions. The legislation contains tight controls on the use that may be made of any information provided by the Commissioner. The amendments will allow the Commissioner to disclose taxation information to authorised law enforcement agency officers only where he considers that the information is relevant to establishing whether a serious offence-that is, an indictable offence-has been committed. …"
The Explanatory Memorandum to the Taxation Laws Amendment Bill (No 3) 1989 (Cth) which, when enacted, introduced s 3E said: "The Taxation Administration Act 1953 will be amended to allow the Commissioner of Taxation to provide taxation information relating to serious offences to certain law enforcement agencies, and to restrict the use that may be made of the information. The amendments will permit the Commissioner at his discretion to provide the information if he is satisfied that the information is relevant to determining whether a serious offence - that is an indictable offence - has been or is being committed or is relevant to proceeds of crime proceedings. ...."

[26]

Consideration

The extrinsic material set out above appears to be premised on the footing that s 3E would, subject to the conditions in the section, permit disclosure which had previously been prohibited. However, it does not follow from the enactment of s 3E that the exception in s 16(2A) or s 3C(2) ought be read down to make illegal those disclosures (such as were considered in Yates and Saunders) which had previously been permitted under that exception. It will always be a question of construction whether provisions either in the same enactment or different enactments ought, when read together, have that effect. Parliament can be taken to have been aware of how s 16(2A) was construed in Saunders (which would apply to s 3C, which was in similar terms) when it enacted s 3E. There is no express indication, either in the text of s 3E or in the extrinsic materials, of a legislative intention to confine the exception in either s 3C or s 16(2A), which is limited by the ambit of the duties of the tax officers, to the strictures set out in s 3E. Caratti involved the construction of the same provisions as are under consideration here in a broadly similar context (although in that case, the taxpayer's application was made in the Federal Court rather than in the court in which he had been tried or the Court of Criminal Appeal). No material legislative change was made after Caratti to alter its effect. As referred to above, I regard Caratti as persuasive authority. I am not persuaded that I ought depart from French J's construction of the relevant provisions in that case.
For completeness I should add that I do not regard it as relevant that the tax officers, when making disclosures 3 and 4 (which were made before s 16(2A) was repealed on 17 December 2010), saw fit to fulfil the conditions to meet the requirements of s 3G, rather than to rely on s 16(2A). Their cautionary approach cannot affect the construction of s 16(2A).
I am satisfied that the exception in s 16(2A) of the ITAA authorised disclosures 1 and 2 in the table above. Officers in the position of Mr Walton ought, in my view, be regarded as being authorised as a part of the performance of their duties to seek advice from the DPP on matters which might result in criminal investigation or prosecution. There is a public interest in public officials being able to seek legal advice: Waterford v Commonwealth (1987) 163 CLR 54; [1987] HCA 25 at 62 (Mason and Wilson JJ). In the fiscal context, the seeking of advice from the DPP as to a potential prosecution would appear to be central to the duties of such officers. It is not to the point that (as set out in the narrative above) the DPP earlier identified incorrect or inapplicable sources of power for the disclosures, reliance on which was later withdrawn. Reference to an incorrect source of power does not affect the exercise of that power if it can be supported by another statutory provision: Brown v West (1990) 169 CLR 195 at 203; [1990] HCA 7.
For these reasons, I am not satisfied that the first and second disclosures were made in furtherance of a criminal offence, since, subject to the matter referred to below, I am not persuaded that the disclosure did not fall within the exception in s 16(2A). In these circumstances, the conduct would not prevent privilege attaching under the common law. Section 125(1)(a) of the Evidence Act, which was the portion of s 125 relied upon by the accused, is not engaged.
I have not dealt with the accused's alternative argument that the s 16(2A) exception ought be read down so as not to authorise disclosure in contravention of the accusatory and companion principles enunciated in Leach. Nor have I dealt with the Commissioners' submission that, even if the accused's analysis of the effect of the principles were right, there is no necessary infringement of the accusatory and companion principles if a brief which includes the s 264 information is sent to the DPP. The reason for my refraining from addressing these questions is that the parties have agreed that I am not, in determining the privilege motions, to determine the effect of these principles (that being a matter to be determined after full argument on the accused's motion for a stay).

[28]

The contest as to the effect of the accusatory and companion principles

The next question is whether the maintenance of the privilege is inconsistent with the Crown's continued prosecution of the accused and its opposition to the permanent stay. Before turning to the questions of privilege and imputed waiver, it is necessary to set out the parties' positions concerning the effect of the accusatory and companion principles in the present case, not for the purposes of determining them, but in order to frame the context in which the questions of privilege are to be decided.
It was common ground that the answers given by the accused in the s 264 examinations would be admissible in proof of a charge that he had made a false statement or representation in the course of such examinations. To that extent, the accusatory principle was accepted to have been abrogated. The issue between the parties was the extent of any abrogation beyond this.
I note at the outset that the Commonwealth authorities acknowledged, in accordance with well-established principle, that the courts articulate the common law rather than make it. They accepted that the High Court's articulation of the effects of the accusatory and companion principles in recent cases applies to all disclosures and use of the s 264 examinations notwithstanding that the first disclosure occurred in 2007, before these principles, which had been recognised in Hammond v The Commonwealth (1982) 152 CLR 188; [1982] HCA 42, were more fully articulated in cases such as X7, Lee (No 2) and Strickland.
The Commonwealth authorities sought to distinguish Leach on the basis of the charges laid and the use to which the s 264 information could be put. They relied on the circumstances that, in Leach, no false representation charges had been laid and that the s 264 answers were sought to establish a consciousness of guilt. They contended that the ratio of Leach is as follows: "If the only relevance of a compulsory transcript is to prove a tax related fraud offence against that examinee then the Crown cannot use and should not keep or further disclose the transcript to consider the charges to formulate them to prepare the prosecution case or to use it in evidence against the examinee in a criminal trial."
On this basis, the Crown (and the DPP) contended that the abrogation of the accusatory and companion principles was not confined to prosecutions where the only false statements alleged to have been made were made within a s 264 examination but extended to prosecutions for false representations, such as the present, where answers given in a s 264 examination formed part of a course of conduct which also included statements made by the accused voluntarily.
The Commonwealth authorities also sought to distinguish R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76 (Seller) and foreshadowed that the Crown will contend at the motion for a stay that the Commonwealth authorities were entitled, not only to disseminate and use the compulsorily obtained material, but also, at an eventual trial of the proceedings (if it is not stayed), to tender parts of it in evidence.
The accused contended that the accusatory and companion principles had the effect that the s 264 examinations could only be used by the DPP in a prosecution of the accused for a charge which was limited to the falsity of statements made in the s 264 examinations and could not be used in connection with the prosecution of the accused for a charge which went beyond that, or for any other charge. Mr Walker submitted that, once it was accepted that his submission as to the effect of the accusatory and companion principles was arguable, the accused was entitled to material which evidenced the use and dissemination of the s 264 examinations, for the purposes of his application for a stay.
The Crown authorities accepted that the accused's contention as to the effect of the principles was arguable, although they contended it to be incorrect on the basis set out above.

[29]

The court's jurisdiction

The Commonwealth authorities submitted, on the basis of Petroulias, that questions of privilege were distinct from questions of the Crown's duty of disclosure. They contended that, if the DPP chose not to disclose privileged documents, the Crown could not be compelled by the Court to disclose them since the Crown's duty of disclosure could not be enforced by the court except by a stay of proceedings.
I reject this submission. The principles of imputed waiver of legal professional privilege apply with at least as much force to the Crown and the DPP as its agent as they do to any other party to legal proceedings. The Crown is however, in a special position in that the concept of fairness against which any alleged inconsistency with the maintenance of the privilege is to be assessed, includes the requirement for a fair trial of the accused which may, in some cases, make relevant the Crown's duty of disclosure. If the Crown fails to comply with its duty of disclosure (as the accused alleged occurred in the present case), it is open to the accused to have subpoenas issued for production of the documents which he contended ought to have been disclosed by the Crown: Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109; (2018) 333 FLR 352 at [14], [18] and [19] (Basten JA, Johnson and Adamson JJ agreeing).
Once a subpoena has issued (which has not been set aside on the ground of improper purpose or read down on the ground that it is oppressive), a party is relieved of the obligation to produce and provide access to any document falling within the subpoena only if there is a claim for privilege which is either accepted or, if challenged, upheld. By requiring production of documents falling within a subpoena where there has been, for example, imputed waiver of legal professional privilege, the Court is doing no more than enforcing the subpoena, as it is entitled to do, and ought not thereby be taken to be enforcing the duty of disclosure which, as the Commonwealth authorities correctly submitted, can only be enforced by a stay.
I do not regard Petroulias, which is considered below, as deciding to the contrary. It turned on documents which were found to retain the privilege, no imputed waiver having been found. The question of subpoenas did not arise in Seller, which is also considered below. There was no issue about whether the duty of disclosure had been complied with.

[31]

Bunting

In Bunting, Mr Vlassakis had been jointly charged with the accused, Bunting, on five counts of murder. He was subsequently arraigned on an indictment which charged him with four of the five counts, to which he pleaded guilty. The Crown discontinued the fifth count against him. Mr Bunting sought production of various categories of documents concerning Mr Vlassakis, over which the Crown claimed legal professional privilege. Mr Bunting argued that the documents were no longer privileged, either because of voluntary or imputed waiver.
Martin J addressed the issue of inconsistency in the Mann v Carnell sense between the prosecutor's maintenance of the privilege and the prosecutor's conduct. As the common law applied in South Australia, the Evidence Act did not arise. His Honour considered that if the maintenance of the prosecution, with its attendant duty of disclosure, was inconsistent with the maintenance of the privilege, there would be an imputed waiver. His Honour observed at [74] that: "In that sense the duty of disclosure 'prevails' over legal professional privilege." [Emphasis added.]
Martin J accepted that legal professional privilege was capable of applying to communications to which the DPP and staff were parties. His Honour considered the various categories of documents sought and made rulings, including the following: "[84] The first general category involved communications between the Director or DPP practitioners and the legal advisers of Vlassakis concerning the pleas of guilty and the provision of information by Vlassakis to the police. Privilege was waived by both the Director and Vlassakis in respect of written communications with the exception of those passages which relate to the security of Vlassakis. The Director continued to maintain the claim for privilege in respect of notes made by DPP practitioners of oral communications with Vlassakis' legal advisers. However, regardless of imputed waiver discussed earlier in these reasons, as privilege had been waived in respect of written communications on the same topics, I was of the view that waiver should be imputed in respect of oral communications: Mann v Carnell . For those reasons, subject to excision of entries recording discussions concerning the security of Mr Vlassakis, I ordered that the Director disclose a number of the notes of oral communications. Having inspected the notes, I declined to order production of those notes which were irrelevant and of no assistance to the accused. A decision as to whether I would require disclosure of communications concerning the security of Vlassakis was deferred until Vlassakis was giving evidence."
Martin J addressed the question of disclosure of privileged documents as a general matter as follows at [81]: "… if information that would otherwise be disclosed is withheld by reason of legal professional privilege, that fact must be made known to the court and to the accused. The duty to ensure a fair trial requires nothing less. The court will then be in a position to determine whether the information should be examined by the court and whether the failure to disclose the information might result in an unfair trial. As Doyle CJ observed in a different context in Reci, 'the court will be alert to prevent the prosecution manipulating legal professional privilege to escape its duty of disclosure … ' (at 104). Those words apply equally to the police and other investigating authorities. If failure to disclose will result in an unfair trial, the court has ample powers to prevent an unfair trial proceeding: Adams."

[33]

Seller

In Seller, the Australian Crime Commission conducted an examination of the accused pursuant to s 30 of the Australian Crime Commission Act 2002 (Cth) (the ACC Act) at which Mr Tang, a tax officer, and Ms Simpkin, the case officer at the Australian Crime Commission, were present. The examiner had made directions prohibiting the publication of the examination. The two accused were subsequently charged with participating in a conspiracy with the intention of dishonestly influencing a Commonwealth public official in the exercise of his duties. The transcript of the examination, which dealt with matters that were central to the charge and to the defence to the charge, was given to the DPP and was read by certain officers. The ACC Act expressly prohibited the use of the material as evidence. It was not suggested that there was any other material difference between the ACC Act and the relevant provisions of the ITAA, including s 264.
The accused applied for a stay of the prosecution on the ground that officers of the DPP had been privy to the transcripts of the compulsory examinations. Notwithstanding that the Crown contended that it had derived no forensic benefit from the examinations and that the prospect that it had was no more than speculation, the primary judge granted the stay. On appeal, the Crown assured the Court of Criminal Appeal that no one involved in the prosecution of the accused had either been privy to the examinations or had access to the transcripts. The single exception, Mr Tang, had prepared an expert report which had been served on the accused and there was at least a prospect that he would be called as a witness at trial. The Court of Criminal Appeal allowed the appeal and set aside the stay.
Bathurst CJ (Fullerton and Bellew JJ agreeing) said that it was important to consider the manner in which the Crown put its case to determine whether there was an inconsistency. His Honour said, at [164]: "[164] An imputed waiver of the nature raised in the present case will arise when conduct is inconsistent with the maintenance of the confidentiality the privilege is intended to protect. What brings about the waiver is the inconsistency which the courts, informed by considerations of fairness, perceive between the conduct of the client and maintenance of the confidentiality, not some overriding principle of fairness operating at large: Mann v Carnell [1999] HCA 66; 201 CLR 1 at [29]; Osland v Secretary, Department of Justice [2008] HCA 37; 234 CLR 275 at [45]. As the plurality observed in the latter case at [49], this is a question of fact and degree. [165] Applying these principles, it does not seem to me that the assertion of indirect disclosure by the respondents and its rejection by the Crown, in the manner to which I have referred, compels the conclusion that privilege in the documents has been waived. A denial of such indirect communications is not inconsistent with the maintenance of privilege. Nor, having regard to the manner in which the case was conducted by the Crown, is there any unfairness in the maintenance of the privilege."
Fullerton J (Bellew J agreeing), who agreed with the reasons of Bathurst CJ, addressed the impact of such principles on the Crown's duty of disclosure, including in relation to privileged documents. Her Honour said: "[240] … As Mr Fagan SC submitted, and as the Chief Justice emphasised in his Honour's analysis of the question, if the documents protected by the privilege revealed, whether patently or by necessary inference, that there had been communication of the content of the compulsory examinations or of the material compulsorily acquired from the respondents to anybody in the Crown prosecution team, including independent counsel retained by the CDPP, then that material would have to have been disclosed in discharge of prosecuting counsel's overriding duty of disclosure. The respondents do not submit that Mr Fagan SC was in breach of this duty. To the contrary. [241] In addition, I consider that there is some force in the Crown submission that the arguments advanced by the respondents' counsel in support of ground 3, and its association with ground 4, have overlooked the independent role of prosecuting counsel. It was not in issue that it was Crown counsel, properly instructed, not the investigators, including Mr Tang and Ms Simpkin, who had the ultimate responsibility in this case to frame the charges to be prosecuted at trial and to settle the Crown case statement in elaboration of the charges. It was also not in serious contention that that was done referable to the evidence considered to be available and admissible at trial exclusive of the information which was wrongly disseminated. [242] In my view, the respondents' submission in support of the fourth ground of appeal also suffers from the same lack of scrutiny of the role of prosecuting counsel. If there were a plausible connection, or a real and not speculative possibility, that the wrongly disseminated compulsorily acquired information was either within the privilege material or, by necessary inference, based upon it, that information would have to be revealed, irrespective of its privilege status, in discharge of the prosecutor's duty of disclosure." [Emphasis added.]

[34]

Analysis of the effect of Bunting, Petroulias and Seller on the present case

The Commonwealth authorities submitted that I ought follow what Johnson J said in Petroulias, namely that the duty of disclosure is not affected by privilege and not what Martin J said in Bunting, which was that the duty of disclosure might have the effect that a prosecutor whose conduct of the proceedings was inconsistent with the maintenance of the privilege would be compelled to disclose otherwise privileged documents. They contended that Bunting was plainly wrong and was, in any event, distinguishable since it was decided on the basis of the common law rather than the Evidence Act which the Commonwealth authorities submitted applied for the reasons given above. Further, they submitted that maintenance of a prosecution cannot, as a matter of principle, be inconsistent with the maintenance of the privilege.
The Commonwealth authorities also referred to Watkins v State of Queensland [2008] 1 Qd R 564; [2007] QCA 430 in which Keane JA said (Jerrard JA and McKenzie J agreeing), when considering imputed waiver under the common law: "[55] …It is in the nature of things that a party who enjoys a right to keep information relevant to a forensic contest confidential will also enjoy an advantage over that party's opponent: the mere existence of that advantage cannot be a reason for the abrogation of the right. It is the abuse of the right by conduct apt to confuse or deceive the opponent which is the basis for an imputed waiver of privilege. … [57] The basis on which a waiver of legal professional privilege may be imputed to a party by operation of law has been explained in terms of a concern about 'fairness' to the other party. In this context, 'fairness' has not been treated as requiring that the other party should have all the information available to the party claiming privilege, but as requiring that that party should not abuse privilege so as to disadvantage the other party forensically."
The accused contended that Bunting was correctly decided and that the reasoning of Martin J was available and applicable to the present case. Mr Walker also relied on the passages from Seller set out above.
I do not regard the alleged inconsistencies between Petroulias and Bunting to arise from a fair reading of the reasons in those cases. Where Martin J used the language of ranking ("prevails"), his Honour did so parenthetically to indicate that it was not a question of priority, or "balancing", but rather, as is the case, consistency. Pain J did not follow Bunting in Filipowski v Nikolaos; Filipowski v Pontain Shipping Co Ltd [2004] NSWLEC 432; (2004) 136 LGERA 157. However, in that case the defendant submitted, incorrectly, that Bunting was authority for the proposition that a privileged document would have to be disclosed by the Crown if it could assist the defence, whether or not there had been (as was found in Bunting itself) imputed waiver. In following Carter, Pain J did not advert to the important distinction which was that in Carter a third party, and not the prosecutor, was the recipient of the subpoena.
In Petroulias, Johnson J (who cited Bunting with approval) was satisfied that there had been no imputed waiver. Therefore the point was moot as the duty of disclosure did not require production of privileged documents where there was no inconsistency or other basis for waiver. I regard Fullerton J in [242] of Seller as echoing what Martin J said at [81] in Bunting, namely: where the maintenance of the prosecution in the particular circumstances was inconsistent with the maintenance of the privilege in the context of a criminal trial, there would be an imputed waiver and the duty of disclosure would require the documents to be disclosed to the accused. If the duty of disclosure would require the documents to be provided to the accused, then it is self-evident that the accused would be entitled to access to such documents if produced on subpoenas issued at the request of an accused following an alleged breach of the duty of disclosure.
I regard the submission made by the Commissioners but adopted by the DPP and the Crown that maintenance of a prosecution cannot be inconsistent with the maintenance of the privilege to be at odds with what Fullerton J said in [240]-[242] above.
In summary, the Crown is obliged, by the common law and by s 122 of the Evidence Act, to disclose documents which would otherwise be protected by legal professional privilege, if waiver of the privilege has been imputed by reason of an inconsistency between the maintenance of the privilege and the Crown's conduct of the proceedings.

[35]

The evaluation of whether there is an inconsistency such as results in an imputed waiver

The relevant test for imputed waiver on the grounds of inconsistency was expressed in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46 at [30]: "According to its strict legal connotation, waiver is an intentional act done with knowledge whereby a person abandons a right (or privilege) by acting in a manner inconsistent with that right (or privilege). It may be expressed or implied. In most cases concerning waiver, the area of dispute is whether it is to be implied. In some cases waiver will be imputed by the law with the consequence that a privilege is lost, even though that consequence was not intended by the party losing the privilege. The courts will impute an intention where the actions of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect."
In order to address the question of inconsistency in the present case, it is necessary to consider the way in which the Crown case is put: Seller at [162]. This requires a consideration of the use to which the s 264 information has been put in the investigation, the framing of charges and the prosecution of the accused and the forensic use to which it is proposed to put the s 264 information in the trial of the accused.
Each false representation charge relates to a representation regarding a company, Kalomo or Kalomo Pacific. The particulars of each false representation charge identify separate occasions on which it is said that a false statement (that the accused did not control the company) was made. Each of the particulars is said to be part of a course of conduct. It is an element of the offence that the representation was made with the intention of influencing a public official. The Crown explained that the case was to be run as a course of conduct case in order to strengthen the evidence to support the element of "influence" since it accepted that one or two false statements might not be sufficient to prove the charge.
The Crown contended that there could be no objection to including the accused's answers in the s 264 examination as particulars of the false representation charges. The Crown submitted that the answers would be used to prove the representation. However, it said that they would not be used for the purposes of establishing a consciousness of guilt; for a "general attack on credit"; or "to prove the falsity of the representations". For present purposes, it is not necessary to consider how, as a practical matter, a direction could be given to the jury which would have the effect of confining the use of the answers in the manner proposed by the Crown, since this is a matter which will arise on the accused's motion for a stay.
The Crown's position, as summarised in its written submissions, was: "53. In this case, where the false answers given in the examination are both a particular of the offence and evidence of it, use by the prosecution of the answers do[es] not breach the accusatorial principle in X7. They do not 'arm the prosecution with the accused's defence'; the disclosure and use of the material must be authorised by necessary intendment, without which the abrogation of the privilege against self-incrimination (which concept is not subject to challenge) would be entirely unfeasible and ineffective. 54. For these reasons Leach has no application to the prosecution of proposed counts 1 and 2 in the new indictment."
The Crown authorities accepted that the investigators and prosecutors have had access to, and used, the s 264 information. However, they contended that, by reason of the false representation charges, such access and use did not infringe the accusatory or companion principles. The Crown and the DPP contended that all that was required of them was to disclose "the circumstances in which those transcripts were provided to the prosecution and then to take necessary steps to ensure that it [the transcripts] did not affect the trial" (see the extract from the Crown's submissions on 29 April 2019 set out above). They contended that, by providing the documents under cover of which the s 264 information had been disclosed by the ATO to the AFP and the DPP, they had fulfilled the first part of that obligation. They submitted that, in so far as the false representation charges in the present case were founded on answers given in the s 264 examination, they would be proved by the tender of such transcripts. They contended further that, if any further steps were required to be taken to ensure the fair trial of the accused, the assurances the Crown had given as to the limited use to which the s 264 examinations would be put (summarised above) ought be accepted and would suffice for that purpose. The correctness of these submissions must await consideration at the hearing of the application for a stay.
The Commonwealth authorities submitted that the accused could rely on their acknowledgement of dissemination and use, and the documents which evidenced the disclosures (set out in the table above) for the purposes of his application for a stay. They contended that the maintenance of privilege was, accordingly, not inconsistent with the Crown's opposition to a stay. They submitted that, if the Court were to order a stay on the basis that such access and use infringed those principles, the Crown could then decide whether to pursue the prosecution with a "clean team" of persons who had not been privy to the s 264 information or to take whatever other course might be advised. They relied on judicial observations regarding the importance of legal professional privilege: DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384 (Allsop J) at [24]; cited with approval in Armstrong Strategic Management & Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWCA 430; (2019) 295 ALR 348 at [93] (Campbell JA, Macfarlan JA and Sackville AJA agreeing). They submitted that, in light of the significance of the privilege I ought be cautious about finding imputed waiver on the grounds of inconsistency which is, by definition, involuntary.
Mr Walker contended that the duty of disclosure required that material, including privileged material, be disclosed. He contended that there was an inconsistency between the maintenance of the prosecution of the accused on the Original Indictment and the New Indictments (and the associated opposition to the permanent stay) and the maintenance of the privilege such that the court would order its production. I do not understand his argument to be affected by the subsequent discontinuance of one of the New Indictments. He relied on the passage set out above about the duty of disclosure by Fullerton J (Bellew J agreeing) in Seller. Mr Walker submitted that the subpoenas had been drafted to require the production of documents to prove the matter referred to by the plurality in Strickland at [80], namely: "how and by whom the examination product has been used to build the prosecution case". Of the importance of a concrete foundation for the accused's application for a permanent stay, Mr Walker submitted orally: "Of course, the Court, asked to arrest its own processes put in motion in the form of a criminal proceeding, can hardly proceed upon a fiction concerning the significance and substance and quality of the dissemination and use of impugned material."
In Seller, the Court of Criminal Appeal was positively satisfied that the prosecuting and investigating authorities had derived no forensic benefit from the compulsory examination of the accused. By contrast, in the present case, the Crown proposes to use the s 264 examinations in the prosecution of the accused for two charges, each of which is said to involve a course of conduct, of which the answers in the s 264 examination form a part. It acknowledged, in a table, entitled "Summary of Contact with s 264 examination transcripts amongst CDPP and counsel retained" provided to me for this purpose, that every member of its current prosecution team has either read the s 264 transcripts or a detailed summary of them or has read what is revealed about their contents by the Statement of Prosecution Facts.
I accept Mr Walker's submission that the material over which privilege has been claimed is potentially highly relevant to show the manner and extent of the use of the s 264 material by the Commonwealth authorities. Upholding the claim for privilege would make it impossible for the accused to prove the manner and extent of such use and leave this Court in a position whereby it was considering the accused's application for a permanent stay of proceedings on incomplete information limited to what the Commonwealth authorities chose to disclose or admit about the disclosure and use, rather than evidence as to the actual use. I am satisfied that there has been imputed waiver on this basis.

[36]

Whether it is only the conduct of the privilege holder than can create the inconsistency for the purposes of imputed waiver

The further question arises as to whether the inconsistency must be created by the act of the privilege holder or whether the inconsistent conduct may be that of a third party. In many cases, this question admits of a relatively straightforward answer. In a civil case, a forensic decision by the lawyer is imputed to the client on the assumption that the lawyer has the client's express or implied instructions for that course. In such cases there is no difficulty in a forensic choice by the lawyer being attributed to the client and being found to be inconsistent with the maintenance of privilege by the client. The present case is more difficult because of the number of "parties" involved: the ATO, the AFP, the DPP and the Crown. In the case of some documents, the privilege is that of the ATO or the AFP. Once the accused has been committed for trial, it is the DPP who has conduct of the proceedings on behalf of the Crown. The DPP makes prosecutorial decisions (including to decline to proceed further in the prosecution: s 9(4) of the DPP Act). The AFP and the ATO are no longer "clients" in accordance with whose instructions the DPP is bound to act.
In the present case, the act relied on by the accused as creating the inconsistency with the maintenance of the privilege is the Crown's opposition to the accused's application for a stay. The accused submitted that, such was the relationship between the Crown (and the DPP) and the Commissioners, that the Commissioner's privilege was affected by the conduct of the Crown under the doctrine of imputed waiver.
I propose to address briefly the position of the DPP and the Crown. Mr Crown contended that the Crown was in the same position as the accused in that the Crown had not been privy to the documents over which privilege had been claimed. Although I am bound to accept that Mr Crown personally had not been privy to those documents, "the Crown" is the legal person for whom the DPP acts as agent. Knowledge of the DPP's documents is attributed to the Crown, whether or not the natural person appearing for the Crown on the instructions of the DPP has been privy to them. The prosecutor's duty of disclosure and decision to maintain privilege and to oppose the accused's motion for a stay are each matters where the Crown and the DPP are, as Mr Crown accepted, relevantly indistinguishable. While there may be practical reasons why the DPP has been separately represented from the Crown on the subpoena motion and the privilege motions, the separate representation does not affect the legal position that the DPP brings the proceedings on behalf of the Crown. Thus, if there is a relevant inconsistency between the Crown's opposition to the stay and the DPP's maintenance of privilege, imputed waiver will arise.
The Commissioners are in a somewhat different position. The Commissioners relied on the circumstances that they are neither parties to the criminal proceedings, nor can control whether the DPP maintains the present prosecution, nor whether the DPP continues to oppose a stay: ss 6(1)(a) and (b) and s 9(4) of the DPP Act. The Commissioners also relied on the Prosecution Policy of the Commonwealth, which relevantly provides: [1.3] The [DPP] Act has also ensured that there is a separation of the investigative and prosecutorial functions in the Commonwealth criminal justice system. Prosecution decisions will be made independently of those who were responsible for the investigation. If a prosecution is commenced by arrest and charge, once it has been referred to the DPP, the decision whether to proceed with that prosecution is made by the DPP. … [3.4] … Although an AFP or other Commonwealth officer has authority to make the initial decision to prosecute, the Director has the responsibility under the Act to determine whether a prosecution, once commenced, should proceed. It is therefore generally desirable wherever practicable that matters be referred to the DPP prior to the institution of a prosecution. … [3.8] In deciding whether or not a prosecution is to be instituted or continued and, if so, on what charge or charges, any views put forward by the AFP, or the department or agency responsible for the administration of the law in question, are carefully taken into account. Ultimately, however, the decision is to be made by the DPP having regard to the considerations set out earlier. [3.9] Pursuant to section 6(1) of the Act the Director may either institute summary or committal proceedings in the Director's own name or carry on such proceedings that have been instituted by another. In virtually all cases the DPP in fact carries on proceedings in which an AFP or other Commonwealth officer is the informant or complainant as the case may be. Only in exceptional cases will summary or committal proceedings be instituted in the Director's own name. … [4.3] The final decision whether or not a prosecution proceeds rests with the DPP. Consistent with the objective of ensuring that only fit and proper cases are brought before the Courts, the DPP will discontinue a prosecution if appropriate. … [6.22] After the defendant has been committed for trial the question may arise, either on the initiative of the DPP lawyer involved in the prosecution or as a result of an application by the defence, whether the defendant should be indicted, or, if an indictment has already been presented, whether the trial on that indictment should proceed. In this regard, pursuant to section 9(4) of the Act the Director may decline to proceed further in the prosecution of a person under commitment or who has been indicted."
The Commissioners argued that the DPP's decision to maintain the prosecution and oppose the stay cannot constitute an act of the Commissioners for the purposes of the imputed waiver principle either under s 122(2) of the Evidence Act or Mann v Carnell.
The issue of which party's inconsistent conduct is relevant was not addressed in Seller. Nor did it arise in Bunting or Petroulias. Accordingly, it is necessary to approach the question as a matter of principle.
The DPP's Statement on Disclosure, March 2017 (on which the accused relied), provides, in [5] that: "A precondition for prosecution disclosure is that the material is in the possession of, or the information is known by, the prosecution. For the purposes of this disclosure policy and at common law there is no distinction between the prosecuting agency and the investigative agency. The courts generally regard the investigative agency and the prosecuting agency as "the prosecution". Consequently, the CDPP largely depends on the investigative agency to inform it of the existence of material which should be disclosed to the defence, whether the investigative agency holds it or is aware it is held by a third party including a Commonwealth, State or Territory agency, private entity or individual." [Footnotes omitted and emphasis added.]
It is of significance, as is summarised in the passage extracted above, that no distinction is drawn, for the purposes of the duty of disclosure between, relevantly, the Crown on whose behalf the DPP prosecutes the charges and the investigative agencies, such as, in the present case, the ATO and the AFP. The positions of the ATO and the AFP are to be contrasted with the third party recipient of the subpoena in Carter, who was found to be entitled to maintain the privilege. While the ATO and the AFP are separate from the DPP and the Crown, the ATO and the AFP are relevantly investigatory bodies, the fruits of whose investigations provide the basis for the formulation of charges, which were laid, in the first instance, by the AFP (following, in this case, advice from the DPP and from counsel retained by the DPP). It is their endeavours which produce and assemble the evidence on which the accused was committed for trial and upon which he is to be tried.
Thus, for these purposes, the ATO, AFP and DPP are related since the conduct of any of them in connection with the investigation, charging and prosecution of the accused attracts the accusatory and companion principles. As Doyle CJ said in the passage extracted by Martin J in Bunting set out above, "the court will be alert to prevent the prosecution manipulating legal professional privilege to escape its duty of disclosure". While this dicta was directed to the Crown's duty of disclosure, there would appear to be no reason why the aggregation of investigative and prosecuting authorities for the purposes of the duty of disclosure ought be either undone or found to be irrelevant in the context of subpoenas, particularly where they have been issued for the purpose of requiring the DPP to comply with what the accused asserts to be an unfulfilled duty of disclosure.
The matter can be tested as follows. Say the ATO used the accused's s 264 examinations as the basis for its investigation into whether he should be charged and with what offence. The ATO might, for instance, have gone through each answer given by the accused and sought evidence elsewhere to test its veracity and to prove its falsity (an inference that this occurred is open from the Outline of Prosecution Facts). If the s 264 examinations were used in this way, then, if the accused's argument about the effect of Leach is correct, the accused could not have a fair trial unless this process were undone and begun again by investigators who had no knowledge of the content of the s 264 examinations. This would be so even if the ATO gave the AFP and the DPP only the fruits of its investigation, being the evidence garnered to show that the accused's answers were false, and not the s 264 examinations.
Where, as here, the ATO, as an investigative agency which is regarded as included within "the prosecution", can be taken to have used the s 264 examinations in the investigation of the accused that led to the laying of charges by the AFP and his prosecution by the DPP, it would, if the accused is correct, defeat the accused's rights reflected in the accusatory and companion principles if the ATO could maintain the privilege on these documents by arguing that it was the DPP's conduct in opposing the stay and not its (the ATO's) conduct which was inconsistent with the maintenance of privilege.
For these reasons I consider that the DPP's opposition to the stay is inconsistent with the maintenance of privilege over documents not only by the DPP but also by both the investigative authorities, the ATO and the AFP, in so far as those documents show the extent of the dissemination and use of such documents in the investigation, charging and prosecution of the accused. The maintenance of the Commonwealth authorities' claims for privilege would deprive the accused of the opportunity to prove the factual substratum to support his application for a stay, which might fail as a consequence: Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 at [52]-[53]. The accused's right to argue that he is entitled to a permanent stay of proceedings on the basis of the extent of the dissemination by Commonwealth authorities and use by the prosecution of answers compulsorily obtained from him would be substantially compromised if the accused were denied access to the very documents which tended to show the manner, nature and extent of the use to which his answers had been put.
It follows that, as a consequence of having conducted an evaluative assessment such as was described in Seller, I am satisfied that there has been an imputed waiver of the privilege of the Commonwealth authorities, by reason of the inconsistency between the maintenance of privilege and the Crown's opposition to the accused's application for a permanent stay. The accused is entitled to access to any documents, which were subject to this privilege, which tend to show the dissemination, and use, of the s 264 information as there has been an imputed waiver of privilege by the Commonwealth authorities.
It does not follow from these reasons that the accused is entitled to access to all prosecution documents to dissect the way in which the whole Crown case against him was constructed. Much of the Crown case does not relate to, or rely on, statements made by the accused in the s 264 examinations. He has, in his dealings with the ATO, consistently denied that he controlled Kalomo and Kalomo Pacific, both before and after the s 264 examinations. The documents reveal inquiries being made as to that question as a matter of fact which do not depend on, or refer to, his s 264 examinations, but to other representations. It follows that imputed waiver of part of a document does not give rise to imputed waiver of the whole where the part affected by the s 264 examinations or referring to them does not affect the balance of the document.

[64]

Category A: the Shouldice advice dated 5 February 2008 and associated documents (tabs 1-14 of the Bundle of Outstanding Claims)

As referred to above, legal advice dated 5 February 2008 was given by Ms Shouldice (the Shouldice advice) to the ATO, following a request by Mr Walton. The accused accepted that the document was created and communicated for the dominant purpose of giving legal advice and was therefore prima facie privileged under s 118 of the Evidence Act and the common law. The accused submitted that the Commonwealth authorities have divulged the substance of the Shouldice advice (in documents extracted in Exhibit D1, passages from which are set out above) and are therefore to have been taken to have waived privilege on the whole. In support of his submission that there had been waiver by partial disclosure, the accused relied on the disclosure of Mr Walton's request for advice. They also submitted that a number of documents had been disclosed which conveyed the gist of the Shouldice advice.
The accused submitted further that the document falls within the category of documents in which privilege ought be found to be the subject of imputed waiver. The accused also relied on the fact that the DPP had disclosed Mr Walton's request for advice to him (with the concurrence of the ATO and the AFP) for the forensic purpose of supporting her submission that the disclosure by the ATO to the DPP was lawful and fell within the exception in s 16(2A) of the ITAA (as appears from the extract of the Crown's submissions dated 29 April 2019 set out above).
The ATO claimed privilege on the Shouldice advice and argued, for the reasons given above, that it had done nothing which was inconsistent with the maintenance of the privilege and that, accordingly, there could be no imputed waiver. The Commissioner for the ATO contended that there was nothing about the Crown's use of Mr Walton's request for advice (disclosure 1) which deprived the accused of the opportunity to test its legality.
The Commissioner also contended that the parts of the Shouldice advice which had been disclosed included the conclusions (described by the Commissioner as "unsurprising") that an investigation is needed to establish that the accused held beneficial interests in the relevant companies and, if an investigation establishes that beneficial interests are held, this would indicate a criminally wrongful misrepresentation. The Commissioner contended that these matters did not amount to the substance of the advice. He submitted that the substance of the advice "concerned the necessary investigative steps and how those steps should be taken to obtain admissible evidence" and that these matters of substance have not been disclosed. The Commissioner invited me to look at the Shouldice advice pursuant to s 133 of the Evidence Act for the purposes of determining the privilege claim.
Whether waiver is to be imputed does not turn on the question, as was put on behalf of the Commissioner above, whether the dissemination of the s 264 examination by Mr Walton to Ms Shouldice was "lawful" (since I have decided on the basis set out above, and subject to Leach, that it was because it fell within the exception in s 16(2A)). Rather, the larger question is whether the Shouldice advice tends to reveal the use made of the s 264 examination in the investigation, such as would give rise to imputed waiver.
I regard the Shouldice advice as falling squarely within my reasons concerning imputed waiver set out above. Ms Shouldice was, in effect, the first recipient of the s 264 examinations. As is evident, she was provided with the s 264 examinations for the purposes of providing advice to the ATO "as to whether an investigation into this matter is likely to be fruitful". As such, the Shouldice advice falls within the category of documents where the maintenance of privilege by the Commissioner constitutes an abuse which disadvantages the accused forensically (to borrow the language of Keane J in Watkins v State of Queensland in the extract set out above) because he will be unable to establish the manner and extent of the use of the s 264 examinations without it. So much can be discerned without inspecting the advice itself. On inspection, it became apparent that sections 4, 5, 6, and 7 of the Shouldice advice deal with discrete matters which fall into a separate category. I consider there to have been imputed waiver of the Shouldice advice except for sections 4, 5, 6 and 7.
It is also necessary to consider the accused's further submission that such disclosure of the advice as there has been has the effect that privilege has been lost on the whole. I accept the Commissioner's submission that the advice, in substance, falls into two discrete parts. I am persuaded that the disclosures that have been made of the first part are not such as to require disclosure of the second part (being sections 4, 5, 6 and 7).
The ruling on the Shouldice advice covers other documents in category A.

R v Kinghorn

At a glance

Court

Decision date

Before

Source

Judgment (78 paragraphs)

Parties

Legislation Cited (18)

Cases Cited (67)

Cited By (6)