R v Kinghorn

995. 61 FCR 564; [1995] FCA 994 Director of Public Prosecutions (Cth) v Kinghorn; Kinghorn v Director of Public Prosecutions (Cth) [2020] NSWCCA 48 Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 Hammond v Commonwealth (1982) 152 CLR 188; [1982] HCA 42 Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 Macdonald v R; Maitland v R (2016) 93 NSWLR 736; [2016] NSWCCA 306 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 R v Independent Broad-Based Anti-Corruption Commissioner (2016) 256 CLR 459; [2016] HCA 8 R v Kinghorn (No 4) [2019] NSWSC 1420 R v Kinghorn (No 5) [2019] NSWSC 1473 R v Leach [2019] 1 Qd R 459; [2018] QCA 131 R v OC (2015) 90 NSWLR 134; [2015] NSWCCA 212 R v Ronen [2006] NSWCCA 123; (2006) 161 A Crim R 300 Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53 Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 326; [2018] HCA 53 X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 Category: Procedural rulings Parties: Regina John Alan Kinghorn (Accused) Representation: Counsel: D Staehli SC / K Ginges / K Curry (Crown) B Walker SC / G Huxley / H Atkin (Accused)

Solicitors: Commonwealth Director of Public Prosecutions (Crown) King & Wood Mallesons (Accused) File Number(s): 2017/304100

Introduction

1. John Kinghorn (the accused) stands charged on indictment with two offences contrary to s 135.1(7) of the Criminal Code Act 1995 (Cth) (the Code), namely that he represented that he did not control two companies, Kalomo Corporation Limited (count 1) and Kalomo Pacific Leasing Limited (count 2), with the intention of dishonestly influencing a public official, the Commissioner of Taxation (the Commissioner). The conduct the subject of the two counts is alleged to have occurred between about 6 March 2004 and 10 March 2007.
2. Over twelve years before he was charged, the accused was required to attend an examination pursuant to a notice issued by the Commissioner under s 264 of the Income Tax Assessment Act 1936 (Cth) (ITAA). He was required to answer questions and could not refuse to answer on the ground that his answers would tend to incriminate him. The charges referred to above are based, at least in part, on what he said in the examination, a transcript of which was provided by the Australian Taxation Office (ATO) to the Australian Federal Police (AFP) and the Commonwealth Director of Public Prosecutions (DPP). The contents of the transcript were used by the AFP and the DPP to investigate the charges, formulate them and compile a prosecution brief. The Crown intends to tender the transcript, or parts of it, at the trial of the accused for the charges referred to above.
3. The effect of the ATO's disclosure to, and use by, the AFP and DPP for the purpose of investigating crimes alleged to have been committed by the accused and charging him is at the heart of the determination of the separate questions to be determined in this hearing.

The questions to be answered

1. The questions for separate determination are: "Does the law as applied in R v Leach [2019] 1 Qd R 459, concerning the accusatorial principle, the companion rule and the application of those principles to answers compelled under taxation legislation, have the effect that investigative authorities and prosecuting authorities should not have disseminated and/or should not have had access to and/or should not have used the content of the accused's compulsory examination under s 264 of the Income Tax Assessment Act 1936 (Cth), where the prosecution of the accused for offences contrary to s 135.1(7) of the Commonwealth Criminal Code may possibly occur or will occur and where the offences allegedly involve a course of conduct that included false or misleading statements made during the s 264 examination? [the Leach question] In respect of use by the prosecutor, is the content of the s 264 examination admissible in the trial of the accused and, if so, what are the limits on its use? [the evidence questions]."
2. The accusatorial principle is the principle that the prosecution is to prove the guilt of an accused person. The companion rule is that an accused person cannot be required to testify or be compelled to assist in the discharge of the prosecutor's onus of proof: Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 at [32]-[33] (French CJ, Crennan, Kiefel, Bell and Keane JJ).
3. The accused submitted that the Leach question ought be answered "yes" and the evidence questions ought be answered "no" and "not applicable". The Crown submitted that the Leach question (after R v Leach [2019] 1 Qd R 459; [2018] QCA 131 (Leach)) ought be answered "no" and the evidence questions ought be answered "yes" and "limited to proof of the fact that the representations particularised were made and the terms of the representations".
4. I note that in a previous interlocutory hearing I was required to determine various pre-trial issues, which included the legality, or otherwise, of the disclosures made by the ATO to the DPP in R v Kinghorn (No 4) [2019] NSWSC 1420 (Kinghorn (No 4)). The effect of Leach on whether the disclosures were authorised was expressly reserved for subsequent determination: Kinghorn (No 4) at [117]. The accused's application for leave to appeal against my determinations was refused; the appeal by the DPP was allowed and the appeal by the ATO and AFP was allowed in part: Director of Public Prosecutions (Cth) v Kinghorn; Kinghorn v Director of Public Prosecutions (Cth) [2020] NSWCCA 48 (Kinghorn CCA). The Court of Criminal Appeal in Kinghorn CCA noted at [110] the agreed position of the parties that the effect of Leach was not a matter to be considered on appeal, as its effect had been reserved by the accused before me.

The genesis of the separate questions

1. By notice of motion filed on 15 April 2019, the accused sought a permanent, or, in the alternative, a temporary, stay of the proceedings. The motion has, for reasons which follow, not yet been heard. The accused proposes to tender in support of his application for a stay, documents over which the Crown has claimed privilege. The accused submits that there has been an imputed waiver of privilege in relation to particular documents. I accepted that there had been an imputed waiver in respect of particular documents: Kinghorn (No 4) and R v Kinghorn (No 5) [2019] NSWSC 1473. The Court of Criminal Appeal allowed the Crown's appeal against my finding of imputed waiver, relevantly on the basis that it had not yet been determined whether the ATO's disclosure of the s 264 examination to the AFP and the DPP was, on the basis that such disclosure breached the accusatorial principle and companion rule, unauthorised.
2. In a hearing before the Court of Criminal Appeal (Bathurst CJ, Fullerton and Beech-Jones JJ) on 10 and 11 December 2019, the Crown accepted that there would be an imputed waiver if a separate question, referred to as the "Leach question" was decided in favour of the accused. The concession was referred to in Kinghorn CCA at [31] as follows: "At the hearing of this appeal, Mr Giles modified the DPP's position significantly from what was stated in her submissions concerning the stay motion that were before the primary judge as noted above (at [27]). Mr Giles accepted that, if the Leach issue was resolved against the DPP, then an "order in the nature of [prayer] 3 would follow", although no doubt, in that event, Mr Kinghorn would still press his claim for a permanent stay. In any event, Mr Giles' concession in this Court is not relevant to determining whether any aspect of the primary judgment was affected by error. It may, however, be relevant to the future disposition of the stay motion."
3. The Court said further: "[182] First, as noted, Mr Giles conceded that, if the Leach point was decided adversely to the DPP, then relief in the form of prayer 3 of the stay motion would follow; ie, a temporary stay would be granted pending the appointment of a new prosecution "team" (see [22] and [31]). If an order in the form of prayer 3 was made and if the prosecution was to continue, then the DPP would have to move the Court to set the stay aside. As Mr Giles also conceded, as the moving party on such an application it may be necessary for the DPP to make positive assertions about the exposure of the new prosecution team to the s 264 information and, in doing so, issues 'might' then arise as to whether there is a relevant inconsistency between any such assertion and the maintenance of privilege over the material the subject of this appeal. [183] Second, to date the DPP has resolutely resisted the suggestion that the accusatorial principle and companion principle are imperilled by the manner in which its prosecution of Mr Kinghorn for offences under s 135.1(7) of the Code is framed. For that reason, the DPP has insisted that the prosecutorial duty of disclosure was not engaged in relation to the material the subject of this appeal because, on the DPP's view of Leach, that material was not relevant. That approach led to an impasse between the DPP and Mr Kinghorn's attempts to gather material in support of his stay motion. Until the concession in relation to prayer 3 of the stay motion was made during this appeal, the only means of resolving that impasse was to decide the various applications that were made to produce and access documents which the primary judge did expeditiously. Now that the concession has been made there is an opportunity to resolve the impasse earlier rather than later by deciding the debate over Leach as soon as possible. If it is resolved in Mr Kinghorn's favour then relief in the form of prayer 3 will follow and any debate about either the grant of a permanent stay or the lifting of a temporary stay and, in particular, the granting of access to documents relevant to those matters will take place in a different context. If it is resolved in the DPP's favour then the debate the subject of these appeals will be otiose." [Emphasis added.]

The matters which do not arise for present determination

Whether the determination of the separate questions is premature

1. The accused continues to reserve his right to argue that the determination of the separate questions is premature as the factual substratum is not complete because the accused has not yet had access to privileged documents which will, if the Leach question is answered in the affirmative, be produced by the Crown on the basis of an imputed waiver. However, he accepted, through his counsel Mr Walker SC, who appeared with Ms Huxley and Mr Atkin, that this was not a question for me to determine. I understood it to be accepted that, in deciding the questions posed above, I am complying with what was envisaged in Kinghorn CCA.

Whether the s 264 examination was lawful

1. The accused expressly reserved his right to argue that the s 264 examination was conducted for an improper purpose. I understand the basis of this argument to be that the ATO's purpose in conducting it was to have the accused commit himself to a version of events on oath and that this was not a proper purpose. It was common ground that this question does not presently arise as I am to determine the separate questions on the assumption that the s 264 examination was lawfully conducted.

The genesis of the findings

1. The accused tendered a document entitled Substratum of Facts, which set out detailed facts about the use of the transcript of the s 264 examination by the ATO, the AFP and the DPP in the investigation of the accused, the formulation of charges against him, and the preparation of a prosecution brief. It is expected that, if the Leach question is answered in the affirmative, the documents produced by the Crown following their acceptance (on that basis) of imputed waiver of otherwise privileged documents will be added to the relevant factual matrix. This then is proposed to form the basis of the stay application which the accused proposes to press. Although the contents of the Substratum of Facts were largely agreed, the Crown objected to certain paragraphs (coloured purple in the exhibit version) on the grounds of relevance.
2. It was ultimately common ground that it was not necessary, for the purposes of determining the present questions, to descend into the detailed narrative set out in the Substratum of Facts. The parties agreed at the conclusion of the oral hearing on 20 October 2020 that it is sufficient, for the purposes of these reasons to outline the background facts in broad terms. On this basis it is not necessary to rule on the Crown's objections to particular passages in the Substratum of Facts.

The investigation into the accused

1. In or before 1997, the ATO, following its investigation of the Allco group, began an audit or review of the accused's taxation affairs.
2. In 2004 the ATO issued a position paper to the accused concerning the application of the capital gains tax provisions to the disposal of the accused's shares in Copeswell Industries Pty Ltd (Copeswell) to Kalomo Corporation Limited as agent for Kalomo Pacific Leasing Limited. By 29 July 2004, the ATO confirmed to Jack Thomas, who was representing the accused, that it was considering whether fraud and evasion on the part of the accused would entitle it to amend the accused's assessments. The ATO also informed Mr Thomas that it was considering a "formal interview" with the accused, which I understand to be a reference to a s 264 examination.
3. By 31 March 2005 the ATO had assembled a substantial quantity of material relating to the taxation affairs of the accused and other entities thought to be associated with him.

The examination of the accused under s 264

1. On 31 March 2005 a notice was issued to the accused pursuant to s 264 of the ITAA which required him to attend at the ATO's offices on 4 May 2005 to give evidence on oath concerning his income, his wife's income, the income of trustees and beneficiaries of the Kinghorn Family Trust and the income of various entities, which included Copeswell, RAMS Home Loans Pty Ltd and Kalomo Corporation Limited.
2. At the time the s 264 notice was issued, the accused had not been charged with any offence and was not the subject of any criminal investigation by the AFP.
3. An amended s 264 notice was issued on 27 April 2005. In answer to the notice, the accused attended and gave evidence on the following five separate days: 4 May 2005, 6 May 2005, 18 May 2005, 19 May 2005 and 14 June 2005 (the s 264 examination). It was common ground that an examination conducted under s 264 of the ITAA was a compulsory examination and that the privilege against self-incrimination was abrogated by necessary implication for the purposes of the examination, as established by Commissioner of Taxation v De Vonk (1995) 61 FCR 564; [1995] FCA 994 (De Vonk).
4. Those present at the s 264 examination of the accused included officers of the ATO, counsel briefed by the ATO, a solicitor instructed by the ATO and legal representatives for the accused. Each of the five persons present who were associated with the ATO are to be prosecution witnesses in the accused's trial. A transcript of the examination was taken.
5. At the commencement of the examination, the accused was informed that: 1. making a false or misleading statement in the examination was an offence under ss 8K or 8N of the Taxation Administration Act 1953 (Cth) (the TAA) and that he may be prosecuted; 2. refusing to answer a question is an offence under s 8D of the TAA and he may be prosecuted; and 3. the privilege against self-incrimination is not a defence for failing to answer a question in a s 264 examination.
6. During his examination, the accused was questioned about his alleged ownership or control of Kalomo Corporation Limited and Kalomo Pacific Leasing Limited.
7. On 18 October 2005, the ATO alleged in a position paper that it was not limited to the four-year limitation period for amended assessments as the Commissioner considered there to be sufficient basis to form the opinion that there had been avoidance of tax due to fraud and evasion.

The disclosure of the s 264 examination to the AFP and the DPP and its subsequent use for investigation and formulation of charges

1. In January 2007, the ATO disclosed the transcript of the s 264 examination to the DPP. The purpose of the disclosure appears from the covering minute from James Walton, an officer in the criminal investigation arm of the ATO, which said: "The purpose of this minute is to provide the DPP 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 DPP 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."
2. The minute also said: "The ATO has substantial circumstantial evidence suggesting that Mr Kinghorn owns and or controls Kalomo Corporation and Kalomo Pacific. Much of this evidence was reviewed and tested by Counsel (David McGovern SC and James Sheller) in a series of section 264 interviews conducted with Mr Kinghorn, Mr Walldov and four business associates of Mr Kinghorn. Transcripts of these interviews are attached."
3. The potential offences listed in the minute under the heading "Identification of Criminality involved" comprised s 29D of the Crimes Act 1914 (Cth) (defraud the Commonwealth); s 134.2 of the Code (obtain benefit by deception), s 8P of the TAA (knowingly make a false or misleading statement) and s 137.1 of the Code (false or misleading information). It is plain from the terms of the minute that the reference to an offence under s 8P of the TAA (which was repealed with effect from 14 December 2001) was intended to be considered in light of alleged false statements made by the accused in his tax returns and not to any answers he gave in his s 264 examination.
4. In an affidavit filed on 16 August 2019, Mr Walton deposed that he included the s 264 examination in the background material provided to the DPP in January 2007 because he wanted the DPP to provide privileged advice before the investigation commenced on potential areas of investigation and on the obtaining of admissible evidence, including through Mutual Assistance Request processes.
5. Subsequently, further disclosures of the s 264 examination were made, including to the AFP. These included a formal referral by Mr Walton to the AFP in October 2007 for a joint investigation of the accused.

The Court Attendance Notices

1. On 6 October 2017 the accused was served with Court Attendance Notices which charged three offences: sequence 1, dishonestly influence public official contrary to s 135.1(7) of the Code by representing that he did not control Kalomo Corporation Limited; sequence 2, dishonestly influence public official contrary to s 135.1(7) of the Code by representing that he did not control Kalomo Pacific Leasing Corporation Limited; and sequence 3, defraud the Commonwealth by representing that he did not control any company outside Australia thereby prejudicing the ability of the Commissioner of Taxation to assess his income tax liability.

The first indictment

1. On 17 July 2018 the first indictment, which contained the three charges referred to above was filed in this Court. On 3 August 2018 the accused was arraigned on the first indictment and pleaded not guilty to each of the three charges.
2. On 12 September 2019, the Crown informed the Court and the accused that it proposed to split the indictment into two indictments and have the fraud count tried separately from the two counts of dishonestly influence public official.

The two further indictments

1. On 8 October 2019, the accused was arraigned by reference to the two indictments. He maintained his plea of not guilty to the three charges. On 17 October 2019 the Crown filed a notice of discontinuance for the indictment which contained the single fraud count. The remaining indictment is currently before this Court.
2. As referred to above, the time period specified in the indictment for the two charges is from 6 March 2004 to 10 March 2007. The latest particulars of the representations are contained in a letter from the Crown to the accused's solicitors dated 29 June 2020. The Crown relies on the particularised representations as constituting a course of conduct which began before the s 264 examination occurred and concluded some years after it when the last particularised representation was made.

The proposed tender of the s 264 examination

1. The Crown has confirmed that it will seek, at the trial of the accused, to tender the s 264 examination to prove the statements made by the accused which it has particularised as having been made within the s 264 examination and which it alleges were false. It has also confirmed that it will not seek to rely on the s 264 examinations to prove the particulars of statements alleged to have been false which were not made within the s 264 examination. Further, the Crown has indicated that it will not rely on the s 264 examination to prove the falsity of any of the statements or any consciousness of guilt on the part of the accused. Nor will the Crown use the s 264 examination to impugn the credit of the accused.

Summary

1. The relevant effect of the narrative set out above may be shortly stated.
2. Prior to the charging of the accused, he was required to attend a compulsory examination conducted by the ATO during which he was obliged to answer questions whether or not they had a tendency to incriminate him. In early 2007 the transcript of this examination was disclosed by the ATO to the AFP and the DPP for the purposes of investigating potential offences committed by the accused and formulating charges against him. The transcript was also used to compile a brief of evidence in support of the actual, or putative, charges against him. The transcript of the s 264 examination was material (that is, not merely de minimus or trivial) to the investigation, charging and prosecution of the accused. As the Crown expressly conceded in the oral hearing on 19 October 2020, "the charges are based on the [s] 264 material".

The statutory framework

1. The relevant statutory provisions are as follows.

The offence provisions

1. Section 8C of the TAA makes it an offence of "absolute liability" to refuse, when and as required by a taxation law to do so to attend before the Commissioner or another person. Section 8D makes it an offence of "strict liability" to refuse or fail to answer a question when and as required pursuant to a taxation law to do so. The maximum penalty for a first offence of either of these provisions was, at the relevant time, a fine of $2,000 (s 8E(1)) and for a subsequent offence was a fine of $4,000 and, in more serious circumstances, a fine of $5,000 or imprisonment for a period not exceeding 12 months (s 8E).
2. Section 8K of the TAA makes it an offence to make a statement to a taxation officer that is false or misleading in a material particular. Section 8N makes it an offence to recklessly make a false or misleading statement to a taxation officer. Section 8J, which is the interpretation provision which covers ss 8K and 8N, provides that a reference to a statement made to a taxation officer is a reference to a statement made to a taxation officer, relevantly, orally, and includes a statement made in answer to a question asked of a person under or pursuant to a taxation law. It was common ground that "taxation law" included the ITAA and that s 8K or s 8N applied to a statement made in answer to a question asked in a s 264 examination.
3. The maximum penalty for a first offence under s 8K was, at the relevant time, a fine of $2,000 and for a subsequent offence a fine of $4,000: s 8M. The maximum penalty for a first offence under s 8N was a fine of $3,000 and for a subsequent offence was a fine of $5,000 or imprisonment for a period of 12 months or both.
4. Section 8ZJ provides for prosecution of a "prescribed taxation offence". The term "prescribed taxation offence" is defined by s 8A as meaning, relevantly, a taxation offence that is committed by a natural person and punishable by a fine and not by imprisonment. It follows that first offences under s 8K or s 8N are prescribed taxation offences. Such offences can be prosecuted by persons authorised by the Commissioner of Taxation under s 8ZJ(8).

The disclosure provisions

1. The version of the TAA which applied in Leach contained the following provisions in Division 355 Sch 1, which was inserted into the TAA in 2010 and therefore cover some of the disclosures made by the ATO to the AFP and the DPP, although not the 2007 disclosure, which was governed by s 16 of the ITAA (referred to below).
2. Section 353-10 confers power on the Commissioner to compel a person to give evidence on oath by notice. Section 355-25 makes it an offence for a taxation officer to disclose information obtained in the performance of his or her duties. This provision is subject to an exception: disclosures made in the performance of the officer's duties which include a disclosure "to any entity, court or tribunal … for the purpose of criminal … proceedings … that are related to a taxation law."
3. Section 355-10 provided that the objects of the new division were as follows: "(a) to protect the confidentiality of taxpayers' affairs by imposing strict obligations on taxation officers (and others who acquire protected tax information), and so encourage taxpayers to provide correct information to the Commissioner; and (b) to facilitate efficient and effective government administration and law enforcement by allowing disclosures of protected tax information for specific, appropriate purposes."

Income Tax Assessment Act 1936

1. Section 264 relevantly provided that the Commissioner may by written notice require any person, including a taxpayer, to attend and give evidence before any authorised officer concerning his or any other person's income or assessment and may require him to produce documents relating to such matters. The Commissioner may require the information or evidence to be given on oath or affirmation and either verbally or in writing.
2. Section 16(2) of the ITAA prohibited an officer (being an officer at the ATO), or former officer from making a record of, or divulging or communicating to any person any information respecting the affairs of any person acquired by the officer. Section 16(2A) provided that the prohibition does not apply to the extent that the tax officer makes a record of the information or divulges or communicates it in the performance of the person's duties as an officer.

The Code

1. At the relevant time, s 135.1(7) of the Code provided: "135.1 General dishonesty … (7) A person is guilty of an offence if: (a) the person does anything with the intention of dishonestly influencing a public official in the exercise of the official's duties as a public official; and (b) the public official is a Commonwealth public official; and (c) the duties are duties as a Commonwealth public official. Penalty: Imprisonment for 5 years."

Consideration

1. It was common ground that the facts of the present case - where a single offence of dishonestly making a representation relied on particulars which alleged that the representation was made not only in the course of a compulsory examination but also outside the compulsory examination - had not been specifically considered in any authority. Nonetheless each party argued that an analysis of the authorities supported the approach for which he, in the case of the accused, or it, in the case of the Crown, contended.
2. For this reason, before addressing the two separate questions, it is convenient to review the authorities, in summary form, to ascertain what they decide and to extract the principles which are relevant to the determination of the present questions. As the law in this area is developing, I propose to review them in chronological order with particular emphasis on decisions of the High Court since decisions of intermediate courts may no longer be good law in light of recent developments in the jurisprudence in the High Court.
3. The parties by their submissions implicitly 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 accusatorial principle and the companion rule 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 Commonwealth (1982) 152 CLR 188; [1982] HCA 42 (Hammond), were more fully articulated in subsequent decisions of the High Court, including those referred to below.

Hammond v Commonwealth (1982)

1. In Hammond, the accused, Hammond, had been committed for trial in April 1982 on a charge of conspiracy. In June 1982 he was called before a Royal Commission and asked questions about the conspiracy. The Royal Commissions Act 1902 (Cth) made it an offence for a witness before a Commission to refuse to answer any question relevant to the inquiry but s 6DD provided that any answer would not be admissible in evidence against the witness in civil or criminal proceedings.
2. It was assumed that a witness before a Royal Commission was not entitled to refuse to answer a question on the ground that the answer might incriminate him or her. On this basis, the Court held that although the accused's answers would not be admissible against him, his examination would interfere with the due administration of justice. Accordingly, orders were made restraining his examination until after the trial.

Commissioner of Taxation v De Vonk (1995)

1. In De Vonk, as in Hammond, the individual was summoned to a compulsory examination after he had been charged. De Vonk had been charged with indictable offences involving fraud against the Commonwealth. After he had been charged, but before he had been tried, the Commissioner of Taxation purported to issue a notice to him under s 264. De Vonk sought judicial review of the decision to issue the notice. He argued that he could not be compelled to answer questions in the s 264 examination on the ground that it might incriminate him. He also alleged that if the Commissioner proceeded with his s 264 examination, the Commissioner would be in contempt of court.
2. On appeal, the Full Federal Court (Foster, Hill and Lindgren JJ) held that, on its true construction, s 264 of the ITAA, when read with ss 8C and 8D of the TAA, led to the conclusion that the privilege against self-incrimination had been abrogated by necessary implication. Hill and Lindgren JJ (Foster J agreeing) said at 583D: "If the argument were to prevail that the privilege against self-incrimination was intended to be retained in tax matters, it would be impossible for the Commissioner to interrogate a taxpayer about sources of income since any question put on that subject might tend to incriminate the taxpayer by showing that the taxpayer had not complied with the initial obligation to return all sources of income. Such an argument would totally stultify the collection of income tax."
3. The Court also held that the legislature ought not to be taken in s 264 and ss 8C and 8D to have authorised the compulsory examination of persons in circumstances which might constitute an interference with the administration of justice and could amount to contempt. On this basis the Court made orders which permitted the parties to apply to a judge of the Court if the s 264 examination commenced and objection was taken to specific questions in order that they could be ruled upon by the Court.
4. Foster J noted at 576G that the Commissioner had informed the Court that, if the Court held that De Vonk was entitled to rely on the doctrine of contempt, the Commissioner would not seek to examine De Vonk during the pendency of the criminal proceedings.
5. Foster J also said, at 568, that if a notice under s 264 were issued for the purpose of obtaining evidence for use in a prosecution of charges which had already been laid, this would amount to an improper purpose which would vitiate the power: see also Hill and Lindgren JJ at 578.

X7 v Australian Crime Commission (2013)

1. In X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 (X7), the appellant, X7, had been arrested in November 2010 and charged with conspiracies involving drugs under the Code. While he was in custody awaiting trial, he was served with a summons to appear and give evidence before the Australian Crime Commission (the ACC). On the first day, he attended the compulsory examination and answered questions that related to the very matters that gave rise to the charges. On the following day, he refused to answer any further questions of that nature. As a consequence, he was told that he would be charged with failing to answer questions.
2. By ss 30(4) and (5) the Australian Crime Commission Act 2002 (Cth) (the ACC Act) made the answers inadmissible in evidence against the examinee in a criminal proceeding or a proceeding for the imposition of a penalty (other than in a confiscation proceeding or a proceeding for perjury) as long as the privilege against self-incrimination had been asserted before the question had been answered. This was referred to by French CJ and Crennan J at [10] as "direct use immunity": that is, the the examinee would be protected against the direct use, by tender as evidence, of the compelled material.
3. The High Court by majority (Hayne and Bell JJ (in a joint judgment) and Kiefel J (in a separate judgment), French CJ and Crennan J dissenting), held that to permit the executive to ask, and compel answers to, questions about the subject matter of a pending charge (irrespective of what use might be made of those answers at the trial of an accused person) would "fundamentally alter the process of criminal justice" ([85]). Their Honours held that to construe the ACC Act as the ACC contended would "alter to a marked degree the accusatorial nature of the criminal justice system" ([87]) because it would cause forensic prejudice to the accused. The prejudice would be that the accused would be deprived of the opportunity of deciding the forensic course by reference only to the strength of the prosecution's case since the accused, on that scenario would have to take into account in making such forensic choices any self-incriminating answer he or she had been compelled to give at the examination ([124]). Hayne and Bell JJ said, at [125]: "As has been explained, if an alteration of that kind is to be made to the criminal justice system by statute, it must be made clearly by express words or by necessary intendment. If the relevant statute does not provide clearly for an alteration of that kind, compelling answers to questions about the subject matter of the pending charge would be a contempt."

Lee v The Queen (2014)

1. In Lee v The Queen, the appellants, Jason and Seong Lee, who were father and son, were compulsorily examined before being charged (as was the accused in the present case). They stood trial on various drug and firearm offences. At the father's compulsory examination, the NSW Crime Commission had given a direction pursuant to s 13(9) of the NSW Crime Commission Act 1985 (NSW) prohibiting the publication of evidence (except as specified) on the basis that publication might prejudice his trial if he were charged. The son was also examined by the Commission before charge. After they were charged, the transcripts of their evidence before the Commission were provided to the DPP, contrary to the direction pursuant to s 13(9).
2. In the course of a pre-trial hearing in November 2010, the prosecutor accepted that, although he could not rely on the material provided to the Commission because of the "use" immunity, he intended to use the material derivatively because it provided the Crown with considerable insight into the nature of the defence case.
3. After a trial by jury in the District Court both appellants were convicted of drug and firearm offences. In a unanimous judgment, the High Court held that the criminal trial of the appellants had been affected in a fundamental respect because the provision of the transcripts to the Crown "altered the position of the prosecution vis-à-vis the accused" ([51]). The convictions were quashed and a new trial ordered. The Court held that the question was not whether the publication of the transcripts to the DPP was unlawful or wrongful but whether, as a result of the Crown obtaining the appellants' evidence, there was a miscarriage of justice.
4. The Court (French CJ, Crennan, Kiefel, Bell and Keane JJ) articulated the substance of the accusatorial principle and the companion rule as follows: "[32] Our system of criminal justice reflects a balance struck between the power of the state to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person. This was accepted as fundamental in X7. The principle is so fundamental that 'no attempt to whittle it down can be entertained' albeit its application may be affected by a statute expressed clearly or in words of necessary intendment. The privilege against self-incrimination may be lost, but the principle remains. The principle is an aspect of the accusatorial nature of a criminal trial in our system of criminal justice. [33] The companion rule to the fundamental principle is that an accused person cannot be required to testify. The prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof. Recognising this, statute provides that an accused person is not competent to give evidence as a witness for the prosecution, a protection which cannot be waived."

R v OC (2015)

1. In R v OC (2015) 90 NSWLR 134; [2015] NSWCCA 212, the accused, OC, was examined by the Australian Securities and Investments Commission (ASIC) pursuant to s 19 of the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act). He was subsequently charged with conspiring to commit insider trading. A summary of his examination was given to officers of the DPP and counsel appearing for the Crown in the prosecution. The summary was used not only to formulate a charge but also to prepare the prosecution case. It was held by the Court of Criminal Appeal (Bathurst CJ, R A Hulme and Bellew JJ agreeing) that ASIC officers could make use of the transcript to obtain advice from the DPP as to whether to charge the examinee and institute proceedings. This consequence was regarded as deriving from ASIC's power under s 18(2)(c) to supply a copy of the report to the DPP and include a record of the examination.
2. The issue on appeal was whether the prosecution could have access to the compelled evidence to prepare the prosecution case, as distinct from providing advice on the charge. The trial judge had decided that the prosecution could not have access to the compelled evidence and ordered a temporary stay in order that a new prosecution team could be engaged for the purposes of his prosecution. The Crown appeal was allowed and the stay set aside. Bathurst CJ referred to s 76 of the ASIC Act which provides that a statement made in an examination is, in certain circumstances, admissible in evidence against a person in a proceeding. His Honour said: "[119] Once it is accepted that statements made during a s 19 examination are admissible in criminal proceedings, unless the two preconditions in s 68(2) are met, and that the time for determining whether these conditions are satisfied is at the time the statements are sought to be tendered in evidence, it follows, as a matter of necessary implication, that the DPP officers responsible for the conduct of the proceedings are entitled to have access to the examination transcripts, not only to formulate charges, but to prosecute them. This access would enable DPP officers to consider whether the privilege was properly claimed on any answer and whether the transcript could be tendered. Her Honour, with respect, erred in reaching a contrary conclusion. [120] … [T]he ASIC Act, particularly s 49, in conjunction with s 68, s 76 and s 77, in my view, discloses, by necessary intendment, that if a prosecution is caused to be commenced or carried out by ASIC, the prosecutors may be given access to the transcript of a s 19 examination and, subject only to the prohibition against the direct use of self-incriminating material in s 68, can use it for the purpose of the prosecution."

R v Independent Broad-Based Anti-Corruption Commissioner (2016)

1. In R v Independent Broad-based Anti-corruption Commissioner (2016) 256 CLR 459; [2016] HCA 8 (IBAC), the Commissioner commenced an investigation into the conduct of police officers, R and M, in relation to the assault of a woman. A summons was issued which required the police officers to attend an examination to give evidence in relation to the investigation. R argued that he could not be compelled to give evidence in the investigation. The Commissioner rejected the argument. R and M commenced proceedings for judicial review of the Commissioner's decision and sought orders in the nature of certiorari and prohibition to prevent the Commissioner from holding the examinations, or from holding the examinations in public.
2. The High Court held that the Independent Broad-based Anti-corruption Act 2011 (Vic) (the IBAC Act) authorised the examinations, that the accusatorial principle and companion rule were not engaged because there was no prosecution pending and that the IBAC Act had abrogated the privilege against self-incrimination with the effect that R and M were obliged to answer the questions put to them.
3. It is important to note that the Court in IBAC was not required to address the use of information obtained in the course of the compulsory examinations before the examinees were charged. Further, as in X7, in IBAC there was a provision in the IBAC Act, s 144(2), which conferred limited use immunity by providing that any answer that might tend to incriminate the examinee was not admissible in evidence against the examinee in court except in proceedings for perjury or giving false information, an offence under the IBAC Act or a disciplinary process or action: IBAC at [26].

R v Leach (2018)

1. Leach must be examined in some detail because it is at the heart of the separate questions. Leach was relied on by the accused. The Crown sought to distinguish it. The Crown is bound by its concession that Leach is correct. It was common ground that I am bound by it, to the extent to which it applies to the present case.
2. In Leach, Leach was served pursuant to s 353-10 Sch 1 of the TAA (which is in similar terms to s 264 of the ITAA) with a notice to give evidence. The notice set out penalties for non-compliance and referred to ss 8C and 8D of the TAA. He was compulsorily examined by the ATO in 2010 pursuant to s 353-10 Sch 1 of the TAA. He was informed that knowingly making a false statement in such an examination is an offence under s 136.1 of the Code.
3. The transcript of his examination was included in the brief provided by the ATO to the DPP. He was subsequently charged with offences of dishonesty under the Code. He applied for a permanent stay on grounds that the release of his examination was unauthorised. In the alternative, he sought a temporary stay to permit the engagement of a fresh prosecution team who had not been privy to the transcript of his examination. He also sought a ruling that the transcript of the examination was inadmissible. The primary judge refused to order a stay and ruled that the examination was admissible.
4. At the trial, the Crown presented an indictment which charged 19 counts of obtaining money by deception, 3 counts of attempt to obtain such an advantage and 21 counts of knowingly use a false document with the intention of dishonestly obtaining a gain (all under the Code), as well as a further count of fraud under the Criminal Code Act 1899 (Qld). The transcript of his examination was tendered by the prosecution at trial. The Crown alleged that there were six separate lies in the examination which established a consciousness of guilt. In the summing up, the trial judge directed the jury about the use of such evidence as evincing a consciousness of guilt.
5. Leach was convicted. He appealed against his conviction. The Queensland Court of Appeal by majority, (Sofronoff P, Philippides JA agreeing, Appelgarth J dissenting) allowed the appeal, quashed the convictions and ordered a new trial. The reasoning of the majority appears in the judgment of Sofronoff P.
6. His Honour recited the relevant provisions from Division 355 Sch 1 of the TAA, which is summarised above. His Honour noted, at [36], that the objects in s 355-10 "do not expressly include the alteration of the fundamental principles according to which the system of criminal justice is administered". His Honour also observed at [38] that there was no provision which expressly authorised the disclosure to a prosecutor of answers given to questions asked under s 353-10 Sch 1 for the purpose of formulating or proving charges against the examinee or which made the answers admissible in evidence at trial to prove the guilt of the examinee.

Strickland v DPP (2018)

1. In Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53 (Strickland), the AFP approached the ACC to ask it to use their compulsory powers to examine the appellants. AFP officers watched the examination from a nearby room.
2. The High Court by majority held that since there was no special ACC investigation which would have authorised the use of compulsory powers, the examination was "profoundly unlawful". The Court found that the prosecution had obtained the forensic advantage of locking the appellants into a version from which they could not as a practical matter depart during the trial.
3. A permanent stay of the criminal proceedings was granted on the basis that "[t]o condone such grossly negligent disregard of statutory protections and fundamental rights as occurred in these cases would be to encourage further negligent infractions of the strict statutory requirements of Div 2 of Pt II of the ACC Act and thus of the common law right to silence": [107].

The parties' submissions

1. Mr Walker submitted that the prohibition on disclosure of a person's tax affairs in s 16(2) of the ITAA applied to prohibit disclosure by the ATO of the accused's s 264 examination to the AFP and the DPP. He submitted that the exception to the prohibition in s 16(2A) for disclosures in the performance of the person's duties as an officer could not be construed as applying to a disclosure for the purposes of potential criminal proceedings against an examinee since the principle of legality required that clear language be used to displace the fundamental common law rights conferred by the accusatorial principle and the companion rule, as was found in Leach.
2. Mr Walker submitted it followed from Leach that the ATO's disclosure of the accused's s 264 examination to the AFP and the DPP and their use of the examination for the purposes of investigating, charging or prosecuting him for any offence, including an offence contrary to s 135.1(7) of the Code, constituted a breach of the accusatorial principle and the companion rule which was not authorised by statute.
3. Mr Walker accepted, as a matter of principle, that the authorisation for disclosure and use of a s 264 examination or other compelled material could be found in an offence-creating provision but that it would be a matter of statutory construction in each case to discern whether, and to what extent, the common law principles had been abrogated by the legislature.
4. Mr Walker instanced the focussed language of the offences under s 8K and s 8N of the TAA and submitted that the express words of the offence-creating provisions (ss 8K and 8N), in the context of the requirements that an examinee answer questions on oath (in ss 8C and 8D), were sufficient to indicate that Parliament had directed its attention to criminalising the making of a false or misleading statement in a s 264 examination. He accepted that at least those parts of the s 264 examination which were said to amount to false statements could be used in the prosecution of an examinee for offences under ss 8K and 8N. He also accepted that to construe the TAA as excluding such a prosecution would be tantamount to granting immunity to an examinee in a s 264 examination to lie and that this cannot be taken to have been intended. He submitted that, as the ATO itself could prosecute an examinee for a first offence under these provisions, the ATO had no authority to disclose the s 264 examination to the AFP or the DPP for the prosecution of an examinee for a first-time offence.

The Leach question

1. The answer to the Leach question turns on the application of two related common law principles: first, that the onus of proof rests on the prosecution (the accusatorial principle); and, second, that the prosecution cannot compel an accused to assist it to discharge the burden of proof (the companion rule). The consequence of the principles is that, unless Parliament has, by express words or necessary implication, authorised the disclosure to, and use by, investigating and prosecuting authorities of answers compelled from an accused to questions asked of him in the course of a compulsory examination, such disclosure and use will be prohibited. Breach of the prohibition may result in a stay, whether permanent (as in Strickland) or temporary, of criminal proceedings against the accused person. If the accused person has already been tried and convicted, breach of the prohibition may result in a quashing of the conviction on the basis that the accused has not had a trial in accordance with the law (as was held in Leach).
2. There are several factual similarities between the appellant's position in Leach and the accused's position in the present case. These include: 1. both Mr Leach and the accused were compulsorily examined before they were charged; 2. neither was charged with an offence of making a false or misleading statement in a compulsory examination under s 8K or s 8N of the TAA; 3. the transcript of the examinee's s 264 examination was disclosed by the ATO to the AFP and the DPP and was used in the preparation of the Crown case; 4. at least one of the ATO officers who conducted, or was present at, the examination was (in Leach) or is proposed to be (in the present case) a witness for the prosecution; 5. the prosecution alleged (in its case in Leach) and alleges (in the particulars of charge in the present case) that the answers given by the examinee in the s 264 examination were false; and 6. at least part of the transcript of the s 264 examination was (in Leach) or is proposed to be (in the present case) tendered in evidence as part of the Crown case.
3. There are differences between the facts of Leach and the present case. First, in Leach the contents of the examination do not appear to have been used in the investigation of the commission of the offences, although they were used in the examinee's prosecution. Here, the ATO provided the s 264 examination to the DPP and the AFP to obtain advice and assistance in the investigation of the accused and the subsequent formulation of charges against him. Second, the accused in the present case maintains his contention (which, as referred to above, has been reserved for a future, unspecified occasion) that the s 264 examination itself was unlawful.

The evidence questions

1. For the reasons given above, the unauthorised provision of the transcript of the accused's s 264 examination to the DPP and the AFP altered the balance between the Crown and the accused in a fundamental way such as to breach the accusatorial principle and companion rule.
2. In these circumstances, there is no basis on which the s 264 examination could be admitted into evidence in the trial of the accused. It was plainly compelled and therefore involuntary. It is no answer to say that the particulars which rely on false statements alleged to have been made in the s 264 examination cannot be proved unless it is tendered. Parliament cannot be said to have spoken in vain since it has spoken through ss 8K and 8N of the TAA which criminalise false statements in s 264 examinations.
3. In these circumstances it is not necessary to address the further question of the limits on the use of the s 264 examination if it were tendered. Nor is it necessary to address any directions which might be required to direct the jury on the limits of such use since I am satisfied that it is inadmissible.

Conclusion

1. In summary, the law as applied in and established by Leach concerning the accusatorial principle, the companion rule and the application of those principles to answers compelled under taxation legislation, has the following effects, in the circumstances of the present case: 1. the ATO was not entitled to disclose the accused's s 264 examination to the AFP or the DPP; 2. the AFP and the DPP were not entitled to have access to the s 264 examination since the ATO had no entitlement to disclose it to them; and 3. the ATO, the AFP and the DPP were not entitled to use the s 264 examination to investigate, formulate charges or prosecute the accused.
2. The s 264 examination is inadmissible in the trial of the accused for the offences charged on the indictment.

Answers to the separate questions

1. The answers to the separate questions are as follows:

The Leach question Question: Does the law as applied in R v Leach [2019] 1 Qd R 459, concerning the accusatorial principle, the companion rule and the application of those principles to answers compelled under taxation legislation, have the effect that investigative authorities and prosecuting authorities should not have disseminated and/or should not have had access to and/or should not have used the content of the accused's compulsory examination under s 264 of the Income Tax Assessment Act 1936 (Cth), where the prosecution of the accused for offences contrary to s 135.1(7) of the Commonwealth Criminal Code may possibly occur or will occur and where the offences allegedly involve a course of conduct that included false or misleading statements made during the s 264 examination? Answer: The answer to each part of the question is yes.

The evidence questions Question: In respect of use by the prosecutor, is the content of the s 264 examination admissible in the trial of the accused? Answer: No. Question: If so, what are the limits on its use? Answer: This question does not arise, having regard to the previous answer.

Amendments 24 February 2021 - [4], quote - "section" replaced by "s" [6] - citation for Leach inserted [10] - citation for Leach deleted [52] - insert "At the relevant time,"; "provides" replaced by "provided" [52], quote - "commits" replaced by "is guilty of"; "10 years" replaced by "5 years" [59] - second reference to "ITAA" replaced by "TAA" [101] - "(a pseudonym)" inserted after "Strickland" [109] - second reference to "AFP" replaced by "DPP" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 February 2021