Beckett v The Queen - [2014] NSWCCA 305

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Beckett v R [2014] NSWCCA 305
Hearing dates: 17 April 2014
Decision date: 12 December 2014
Before: Beazley P at [1];
R A Hulme J at [189];
Bellew J at [190]
Decision:
(1) Grant leave to appeal;
(2) Order that count 1 on the indictment be permanently stayed;
(3) Otherwise dismiss the appeal.

Catchwords:
CRIMINAL LAW - appeal against interlocutory judgment or order - Criminal Appeal Act 1912, s 5F - appeal from dismissal of application for permanent stay

STAY OF PROCEEDINGS - permanent stay of proceedings - abuse of process - whether proceedings commenced or maintained mala fides - compelled questioning under the Taxation Administration Act 1996, s 72 - whether information or evidence obtained pursuant to s 72 can be used for the purposes of a prosecution under a taxation law only

STAY OF PROCEEDINGS - permanent stay of proceedings - abuse of process - whether proceedings commenced or maintained mala fides - compulsory questioning under the Taxation Administration Act 1996, s 72 - whether officers had intention to trick, deceive or mislead

CRIMINAL LAW - offences - perverting the course of justice - Crimes Act 1900, s 319 - meaning of "course of justice" - conduct prior to invocation of the jurisdiction of a court

CRIMINAL LAW - right to silence - privilege against self-incrimination - whether abrogated by Taxation Administration Act 1996, ss 72, 82, 84 and 85 - implied abrogation - permissible use of information obtained in compelled interview
EVIDENCE - admissions - Evidence Act 1995, s 90
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Taxation Administration Act 1996
Duties Act 1997
Evidence Act 1995
Legal Profession Act 2004
Director of Public Prosecutions Act 1986
Cases Cited: A v Boulton [2004] FCAFC 101; 136 FCR 420
Attorney-General (NT) v Kearney [1985] HCA 60; 158 CLR 500
Baff v New South Wales Commissioner of Police [2013] NSWSC 1205
Calleija v The Queen [2012] NSWCCA 37; 223 A Crim R 391
Coco v R [1994] HCA 15; 179 CLR 427
Cunneen v Independent Commission Against Corruption [2014] NSWCA 421
Cunneen v Independent Commission Against Corruption [2014] NSWSC 1571
Daniels Corporation International Pty Ltd & Anor v ACCC [2002] HCA 49; 213 CLR 543
DPP v Attallah [2001] NSWCA 171
Edwards v R [1993] HCA 63; 178 CLR 193
Elias v R [2013] HCA 31; 248 CLR 483
Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; 178 CLR 477
Gedeon v R [2013] NSWCCA 257; 280 FLR 275
Hamilton v Oades [1989] HCA 21; 166 CLR 486
Hammond v Commonwealth [1982] HCA 42; 152 CLR 188
Higgins v R [2007] NSWCCA 56
Jago v District Court of NSW [1989] HCA 46; 168 CLR 23
Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196
Lee v The Queen [2014] HCA 20; 88 ALJR 656
Magaming v R [2013] HCA 40; 87 ALJR 1060
Moti v The Queen [2011] HCA 50; 245 CLR 456
Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494
Police v Zammitt [2007] SASC 37
Potter v Minahan [1908] HCA 63; 7 CLR 277
R v Adam [1999] NSWCCA 189; 106 A Crim R 510
R v Cornwell [2003] NSWSC 97; 57 NSWLR 82
R v Dellapatrona (1993) 31 NSWLR 123
R v Einfeld [2008] NSWCCA 215; 71 NSWLR 31
R v Esposito (1998) 45 NSWLR 442; 105 A Crim R 27
R v Frangulis [2006] NSWCCA 363
R v G [2005] NSWCCA 291
R v Horton (1998) 45 NSWLR 426; 104 A Crim R 306
R v Matovski (1989) 15 NSWLR 720
R v OM [2011] NSWCCA 109; 212 A Crim R 293
R v R.W.O. [2002] NSWCCA 133
R v Rogerson [1992] HCA 25; 174 CLR 268
R v Sandford (1994) 72 A Crim R 160
R v Seller; R v McCarthy [2013] NSWCCA 42; 232 A Crim R 249
R v Small (1994) 33 NSWLR 575
R v Taylor (unreported, Court of Criminal Appeal NSW, 18 April 1995)
R v Vreones [1891] 1 QB 360
Ridgeway v The Queen [1995] HCA 66; 184 CLR 19
Sorby v Commonwealth [1983] HCA 10; 152 CLR 281
Walton v Gardiner [1993] HCA 77; 177 CLR 378
X7 v ACC [2013] HCA 29; 248 CLR 92
Category: Principal judgment
Parties: Barbara Maria Martha Beckett (Applicant)
Regina (Respondent)
Representation: Counsel:
W G Roser SC (Applicant)
S Dowling SC (Respondent)
Solicitors:
Matthew Hammond Solicitors (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2011/399953
Decision under appeal

Jurisdiction:

9101

Citation:

R v Barbara Maria Martha Beckett

Date of Decision:

2013-12-13 00:00:00

Before:

Sweeney DCJ

File Number(s):

2011/399953

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was committed for trial on indictment in the District Court on the charge of perverting the course of justice pursuant to the Crimes Act 1900, s 319, or in the alternative with making false statement under oath pursuant to the Crimes Act, s 330. By notice of motion, the applicant sought that the indictment be quashed and that there be a permanent stay of the prosecution as an abuse of process. Sweeney DCJ dismissed the notice of motion. The applicant sought leave to appeal under the Criminal Appeal Act 1912, s 5F.

The conduct the subject of the charges occurred during the course of a compelled interview of the applicant by investigators from the Office of State Revenue (OSR), pursuant to the Taxation Administration Act 1996, s 72. During the interview, the applicant provided copies of two cheques on which the issue dates had been altered, and knowingly made a false statement to the investigators. The applicant was charged by the OSR with various offences under the Taxation Administration Act. However, the prosecution was taken over by the Director of Public Prosecutions, who filed an indictment containing the two alternative charges under the Crimes Act.

On appeal from Sweeney DCJ's judgment dismissing the notice of motion, five issues arose for determination.

(1) Whether the proceedings were commenced and maintained mala fides;

(2) Whether the representations made by the applicant were made in "the course of justice" within the meaning of s 319;

(3) Whether the Taxation Administration Act, s 72, abrogated the right to silence and the privilege against self-incrimination;

(4) Whether the information obtained in the compelled interview could be used, including by way of evidence in criminal proceedings in proof of an offence under the Crimes Act;

(5) Whether the answers given by the applicant in the compelled interview were admissible as admissions pursuant to the Evidence Act 1995, s 90;

The Court allowed the appeal and ordered that count 1 on the indictment be permanently stayed.

Issue (1): Mala fides

1. There is no requirement, under s 71 or otherwise, that evidence given or information obtained pursuant to a compulsory examination under s 72 be used only for the purposes of a prosecution under a taxation law: [52].

2. There was no abuse of process in the manner in which the interview was conducted. The applicant was not deceived or tricked into believing that she was not in any way liable to be exposed to other aspects of the criminal law by the OSR investigators: [53]-[54].

3. An inadvertent misstatement by an investigating officer to a witness is not, for that reason alone, improper for the purpose of the Evidence Act, s 138: [69].

Ridgeway v The Queen [1995] HCA 66; 184 CLR 19; Gedeon v R [2013] NSWCCA 257; 280 FLR 275; Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494; R v Cornwell [2003] NSWSC 97; 57 NSWLR 82

Issue (2): "Course of justice"

4. A "course of justice" for the purposes of the Crimes Act, s 319, does not commence until the jurisdiction of a court or competent judicial tribunal is invoked.

R v Rogerson [1992] HCA 25; 174 CLR 268; R v Einfeld [2008] NSWCCA 215; 71 NSWLR 31; The Queen v OM [2011] NSWCCA 109; 212 A Crim R 293 (disapproved)

5. As the conduct engaged in by the applicant, if proved, occurred prior to the invocation of the jurisdiction of a court or competent judicial tribunal, it was incapable of constituting an offence under the Crimes Act, s 319. Count 1 of the indictment must accordingly be permanently stayed.

Issue (3): Abrogation of the right to silence and privilege against self-incrimination

6. The privilege against self-incrimination is impliedly abrogated by the Taxation Administration Act, s 72. This follows from the general terms used to express the requirement to attend and answer questions, and the provision made in ss 82, 84 and 85 for disclosure to a wide range of persons and entities: [142]-[144].

Sorby v Commonwealth [1983] HCA 10, 152 CLR 281; R v Seller; R v McCarthy [2013] NSWCCA 42; A v Boulton [2004] FCAFC 101; 136 FCR 420

Issue (4): Permissible use of information obtained in the compelled interview

7. The disclosure of the information obtained in the compelled interview to the Crown Solicitor was permitted under the Legal Profession Act 2004, s 110(1)(e). The Crown Solicitor was acting as the agent of the OSR: [164].

Attorney-General (NT) v Kearney [1985] HCA 60; 158 CLR 500.

8. The disclosure of the information obtained in the compelled interview to the Crown Solicitor was permitted under the Taxation Administration Act, s 82(d), being a disclosure made in accordance with the requirement imposed by the Director of Public Prosecutions Act 1986, s 17.

Issue (5): Admissions

9. The false statements provided by the applicant were not "admissions" within the meaning of the Evidence Act, s 90. They were not "representations", but rather are the subject matter of the charges on the indictment.

R v Horton (1998) 45 NSWLR 426, 104 A Crim R 306 (distinguished); R v Esposito (1998) 45 NSWLR 442; 105 A Crim R 27 (distinguished).

Judgment

BEAZLEY P: The applicant has been committed for trial on indictment in the District Court on the charge of perverting the course of justice pursuant to the Crimes Act 1900, s 319 (the offence). She has also been charged, in the alternative, with the offence of making false statements under oath pursuant to the Crimes Act, s 330 (the alternative offence).

The conduct alleged to constitute the offence under s 319 occurred on 28 September 2010, when during the course of a tax investigation undertaken by the Office of State Revenue (OSR), the applicant provided to officers of the OSR copies of two cheques bearing the issue date of 26 September 2009, which were in fact issued on 27 September 2010, and knowingly made false statements to officers of the OSR. The conduct alleged to constitute the alternative offence was the making of a false statement on 28 September 2010 relating to the two bank cheques.

By notice of motion dated 4 December 2013, the applicant sought orders that the indictment be quashed; for a permanent stay of the prosecution as an abuse of process; that the record of an interview conducted with her by officers of the OSR and a file note made by one of those officers be ruled inadmissible; and that all records obtained by the OSR as a result of its taxation investigation into the practice of the applicant be ruled inadmissible.

On 13 December 2013, Sweeney DCJ dismissed the notice of motion.

Issues on the appeal

The applicant seeks leave to appeal, pursuant to the Criminal Appeal Act 1912, s 5F from the dismissal of the notice of motion. The application for leave to appeal and the appeal have been heard concurrently. The proposed appeal raised 15 grounds. Ground 1 was a catchall ground that her Honour erred in not quashing the indictment or permanently staying the proceedings. It does not require separate consideration. Ground 2 was abandoned by the applicant in the course of oral argument. The issues (defined broadly) raised by the remaining grounds were as follows:

(1) Whether the proceedings were commenced and maintained mala fides: grounds 4, 12, and 14.

(2) Whether the representations made by the applicant were made in "the course of justice" within the meaning of s 319: grounds 3 and 13.

(3) Whether the Taxation Administration Act 1996, s 72 abrogated the right to silence and the right against self-incrimination: ground 5.

(4) Whether the information obtained by compulsion pursuant to the Taxation Administration Act by the officers of OSR could be used, including by way of evidence in the criminal proceedings, by the prosecuting authority, in proof of an offence under the Crimes Act, s 319: grounds 6, 7, 8 and 9.

(5) Whether the answers given by the applicant in the compelled interview of 28 September 2010 were admissible as admissions: ground 10.

Background

The applicant is a solicitor. She was authorised by the OSR to use a scheme called Electronic Duties Returns (the EDR scheme) established under the Taxation Administration Act, s 37. The scheme allows approved persons to assess duties electronically and to pay duty by periodic remittance. Under the scheme, the applicant was approved to stamp transfers of real property using accountable stamps issued by the OSR. The Directions for the EDR scheme published by the OSR in April 2007 included the following:

"Settlement Policy

An approved person must have the duty payable available to them prior to processing transactions online. This is the case for all EDR transactions except those where the duty payable will be collected at settlement."

In July 2009, the applicant wrote to the OSR seeking that a transfer of a unit in Darling Point dated 1 December 2005 from a family trust to a beneficiary, Mr Lopresti, be stamped as requiring only nominal duty because it fell within the exemption in the Duties Act 1997, s 55(1)(b). Mr Lopresti had been occupying the property as his principal place of residence. In March 2010, the applicant was informed that the transfer did not qualify and that it was liable to ad valorem duty.

On 11 June 2010, the applicant, utilising the EDR scheme, raised an online notice of assessment of duty payable for the property. The assessment thus raised was for duty in the sum of $29,240 plus penalty interest of $17,416 calculated from the date of the transfer. The applicant stamped the transfer.

The duty and interest, totalling $46,656.29, payable to the OSR by 17 June 2010, was not paid. By letter dated 25 August 2010, received by the applicant on 10 September 2010, the OSR informed the applicant that her firm's approval to use the EDR scheme had been suspended as of 28 August 2010 due to the failure of her firm to make payment for the transaction processed on 11 June 2010. The letter advised that interest was accruing on the amount outstanding and requested that payment be arranged within 14 days of the date of the letter. The letter also stated that the applicant's reinstatement as an EDR-approved user would only be considered once the outstanding payment had been made and once written confirmation that she would meet all conditions as an EDR-approved user in the future was provided.

Subsequently, by letter dated 17 September 2010, the applicant was informed that a "taxation investigation ('audit')" was to be undertaken of her practice under the Taxation Administration Act and the Duties Act. The letter advised that should any breaches of those Acts be found, prosecution action may be considered by the OSR. The letter was signed by Paul Reid, a Senior Investigator at the OSR.

On 21 September 2010, the applicant had a phone conversation with David Morse, a Senior Prosecutions Officer at the OSR. Mr Morse's file note of that conversation recorded that the applicant stated that the bank had lost the two cheques she had drawn for payment of the stamp duty assessed on the transfer of the Darling Point unit. Mr Morse requested that the applicant attend an interview on 28 September 2010 at the OSR office in Parramatta.

Also on 21 September 2010, Mr Reid issued notices under the Taxation Administration Act, s 72 requiring the applicant to attend and give evidence on 28 September 2010 and to produce her files in relation to the transfer of the Darling Point unit. The notice included the following statement:

"The purpose of the examination is to determine if there have been any breaches pursuant to the Duties Act, 1997 and Taxation Administration Act, 1996."

A notice to produce documents was issued on the same day, pursuant to the Taxation Administration Act, s 72. That notice stated that:

"Failure to comply with this Notice is an offence under Section 72 of the Act and may make you liable to a penalty of up to 100 penalty units ($11,000)."

The interview on 28 September (the compelled interview) was conducted by Mr Reid and Mr Morse. At the commencement of the interview, the applicant was informed of the procedures relating to the interview and was given certain warnings. The terms of the advice and warnings are of particular relevance to the issues raised on the application. Relevantly, the applicant was advised that "any information or documentation obtained from this interview may be referred to the Crown Solicitor". She confirmed that there had been no threat, promise or inducement to take part in the interview apart from the serving of the s 72 notice. The applicant also agreed that she had been provided with a copy of the Taxation Administration Act, ss 55, 56, 67, 68 and 72, and that she had read those sections and understood them. Mr Reid then stated:

"Mr Reid: For the record, I advise you it's an offence to make a statement to a taxation officer knowing that the statement or information is false or misleading in a material particular. Do you understand?

Ms Beckett: Yes.

Mr Reid: It is also an offence to refuse or fail, without reasonable excuse, to comply with the requirement to answer questions relevant to an investigation. You will now be cautioned:

You do not have to say or do anything that may tend to incriminate you, but anything you say or do may be used in evidence. Do you understand?"

The applicant produced the file for the transfer of the Darling Point property which contained photocopies of two bank cheques in favour of the OSR bearing the date 26 September 2009. During the course of the compelled interview, the applicant acknowledged the liability for stamp duty and penalty interest in respect of the transfer of the Darling Point property. She informed the OSR officers that she would arrange for a bank cheque in the sum of $27,240 to be couriered to the OSR the following day and that she would arrange for payment of $10,000 in part payment of the interest owing by forwarding a cheque drawn on her trust account the next afternoon or the following morning.

The essential allegation against the applicant upon which the charges are based is that the year date on the two cheques she contended had been drawn for payment of stamp duty had been altered from 2010 to 2009, so that by production of the photocopies of the cheques and in statements made to Mr Reid and Mr Morse, the applicant represented, contrary to the fact, that the cheques were available to her to pay the stamp duty payable on the property before she stamped the transfer document for that property. This representation was of fundamental importance, because if the cheques were not available to pay the stamp duty prior to stamping the transfer, she would have been in breach of the EDR system.

A notice was also served on Mr Lopresti pursuant to the Taxation Administration Act, s 72. On 12 October 2010, Mr Reid and Mr Morse interviewed Mr Lopresti. Prior to interview, Mr Lopresti was served with the same sections of that Act as the applicant.

The indictment

The matter was referred to the Crown Solicitor for advice and the applicant was subsequently charged on indictment with an offence under the Crimes Act, s 319, for producing the copies of the two cheques on which the date had been falsified, and for making false statements. The indictment was laid by the Director of Public Prosecutions. The terms of the indictment were as follows:

"On 29 May 2013, the Director of Public Prosecutions on behalf of Her Majesty charges that

BARBARA MARIA MARTHA BECKETT

1. On 28 September 2010, at Parramatta, in the State of New South Wales, did an act, namely, provided copies of two bank cheques purportedly issued on 26 September 2009 which were in fact issued on 27 September 2010, and made false statements which she knew to be false during an interview with investigators from the Office of State Revenue, thereby intending to pervert the course of justice.

Section 319 Crimes Act1900

Law Part Code: 1062

AND the Director of Public Prosecutions FURTHER CHARGES IN THE ALTERNATIVE that

BARBARA MARIA MARTHA BECKETT

2. On 28 September 2010, at Parramatta, in the State of New South Wales, during an interview with investigators from the Office State Revenue, made a false statement, namely that two bank cheques were available to her for the payment of stamp duty payable to the Office of State Revenue upon a transfer of property at 9/78 New Beach Road, Darling Point in New South Wales to Pasquale Lopresti before she generated a Notice of assessment of such duty, on oath, knowing the statement to be false.

Section 330 Crimes Act 1900

Law Part Code: 1085"

Relevant legislation

The Crimes Act 1900

The following provisions of the Crimes Act are relevant to the disposition of the appeal:

"312 Meaning of 'pervert the course of justice'

A reference in this Part to perverting the course of justice is a reference to obstructing, preventing, perverting or defeating the course of justice or the administration of the law.

...

319 General offence of perverting the course of justice

A person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years.

...

330 False statement on oath not amounting to perjury

A person who makes on oath any false statement knowing the statement to be false or not believing it to be true, if it is not perjury, is liable to imprisonment for 5 years."

The Taxation Administration Act 1996

The long title to the Taxation Administration Act is "[a]n Act to make general provision with respect to the administration and enforcement of the other taxation laws". "Taxation laws" are those specified in s 4 and include, relevantly, the Duties Act. The Duties Act provides for the imposition of tax on various transactions, including on the transfer of land.

The Taxation Administration Act, s 7 states the purpose of the Act and its relationship with the other taxation laws. It provides:

"7 Purpose of Act and relationship with other taxation laws

(1) The purpose of this Act is to make general provision with respect to the administration and enforcement of the other taxation laws.

(2) The other taxation laws include provisions with respect to:

(a) the imposition of tax and its payment, and

(b) exceptions to and exemptions from liability to the tax, and

(c) entitlements to refunds."

Sections 41, 42, 55, 56, 71, 72 and 125 of the Taxation Administration Act as at December 2011, being the date when the applicant was charged under ss 41, 42 and 55 of the Act provide, relevantly, as follows:

"41 Effect of approval

(1) If an approval is given under this Division to a specified taxpayer, the conditions of the approval are binding on the taxpayer and the taxpayer is guilty of an offence if any of the conditions is contravened.

Maximum penalty: 100 penalty units.

(2) If:

(a) an approval is given under this Division to a specified agent on behalf of a specified taxpayer or taxpayers of a specified class, and

(b) the agent acts on behalf of that taxpayer or a taxpayer of that class in relation to a tax liability to which the approval applies,

the conditions of the approval are binding on the agent and the taxpayer and the agent and the taxpayer are each guilty of an offence if any of the conditions is contravened in relation to that tax liability.

Maximum penalty: 100 penalty units.

(3) However, if the provisions of a taxation law from which a taxpayer is exempted by an approval under this Division are complied with in relation to a tax liability, subsections (1) and (2) do not apply to the taxpayer or an agent of the taxpayer in relation to that tax liability.

42 Stamping of instruments

(1) If:

(a) an approval under this Division provides for an exemption from a requirement for the stamping of an instrument, and

(b) the instrument is endorsed in accordance with the conditions of the approval,

the instrument is taken to be duly stamped but without affecting liability for the payment of tax in relation to the instrument under the relevant taxation law.

(2) A person who endorses an instrument otherwise than under and in accordance with an approval under this Division so as to suggest or imply that the instrument is properly so endorsed and as a result is taken to be duly stamped is guilty of an offence.

Maximum penalty: 100 penalty units.

...

55 Knowingly giving false or misleading information

A person must not:

(a) make a statement, orally or in writing, to a tax officer, or

(b) give information, orally or in writing, to a tax officer,

knowing that it is false or misleading in a material particular.

Maximum penalty: 100 penalty units.

56 Deliberately omitting information

A person must not omit from a statement made to a tax officer any matter or thing without which the statement is, to the person's knowledge, false or misleading in a material particular.

Maximum penalty: 100 penalty units.

...

71 Circumstances in which investigative powers may be exercised

A function conferred under this Division may be exercised only for the purposes of a taxation law.

["Function" is defined in s 3 to include a power, authority or duty.]

72 Power to require information, instruments and records, and attendance

(1) The Chief Commissioner may require a person, by written notice, to do any one or more of the following:

(a) to provide to the Chief Commissioner (either orally or in writing) information that is described in the notice,

(b) to attend and give evidence before the Chief Commissioner or an authorised officer,

(c) to produce to the Chief Commissioner an instrument or record in the person's custody or control that is described in the notice.

(2) The Chief Commissioner must, if the requirement is made of a person to determine that person's tax liability, indicate in the notice that the requirement is made for that purpose, but the Chief Commissioner is not otherwise required to identify a person in relation to whom any information, evidence, instrument or record is required under this section.

...

(4) The Chief Commissioner may require evidence that is given orally to be given on oath or by affirmation and for that purpose the Chief Commissioner or an authorised officer may administer an oath or affirmation.

...

(8) The person to whom the notice is given must comply with the notice within such period as is specified in the notice or such extended period as the Chief Commissioner may allow.

Maximum penalty (subsection (8)): 100 penalty units.

...

125 Proceedings for offences

(1) Proceedings for an offence against a taxation law may be dealt with before the Local Court or before the Supreme Court in its summary jurisdiction.

(2) Proceedings for an offence against a taxation law may be commenced at any time within 3 years after the date on which it is alleged the offence was committed.

(3) If proceedings for an offence against a taxation law are taken before the Local Court, the maximum monetary penalty that the Court may impose is, despite any provision of a taxation law to the contrary, 100 penalty units or the maximum monetary penalty provided by the taxation law for the offence, whichever amount is the smaller.

(4) If proceedings for an offence against a taxation law are taken before the Supreme Court, the Court may impose a penalty not exceeding the maximum penalty provided by the taxation law for the offence."

Reference should also be made to ss 67 and 68, copies of which the officers had provided to the applicant prior to the interview. Those provisions provide for the delegation of the Chief Commissioner's powers and functions and for the appointment of authorised officers.

Mala fides: grounds 4, 12 and 14

The applicant's challenge to the trial judge's finding that the proceedings were not affected by mala fides was brought on three bases. The first was a general allegation of mala fides: ground 4. The second basis was that the trial judge erred in finding that "the taxation investigator, Mr Reid, was 'mistaken in his recollection' when he put falsehoods in an interview with Mr Lopresti": ground 12. The third basis was that her Honour erred in finding that the taxation investigators, Mr Reid and Mr Morse, did not have an intention to trick, deceive or mislead the applicant of what the applicant would expose herself to if she told untruths in the compelled interview of 28 September 2010: ground 14. Grounds 4 and 14 are conveniently dealt with together.

First and third bases: that the trial judge erred in finding that: (a) the proceedings had not been commenced or maintained mala fides: ground 4; and (b) that the OSR officers did not have an intention to trick, deceive or mislead the applicant: ground 14

The first basis upon which the applicant alleged mala fides raises the question whether the prosecution brought against the applicant under the Crimes Act is an abuse of process in circumstances where the conduct alleged to constitute the offence under s 319, or alternatively under s 330, occurred during the course of a compelled interview under the Taxation Administration Act and in the absence of any warning other than in respect of offences under that Act.

Sweeney DCJ rejected the applicant's contention that the Crown case was affected by mala fides. The primary judge found that the compelled interview was conducted in accordance with s 71 of the Taxation Administration Act, only for the purposes of a taxation law, and in accordance with s 72, after notices under s 72 had been regularly issued.

Her Honour also held that the earlier telephone conversation with Mr Morse on 21 September was not a compelled statement and that there was no impropriety in it. In particular, her Honour held that it was not necessary that a caution be given to the applicant in that conversation as at that stage the investigation was in its early and exploratory stages.

Her Honour found that:

"There is no evidence of any concealment, deliberate or otherwise, by the investigators of their intention during the interview to prosecute Ms Beckett for offences under the Crimes Act, as is asserted by the accused. There is no evidence that they had such an intention at that time. In fact the evidence is to the contrary."

After reviewing the evidence of Mr Morse, which her Honour accepted, she found that:

"... his contemplation of possible Crimes Act offences as distinct from possible breaches of the Taxation Administration Act provisions occurred after Ms Beckett's interview. There is not demonstrated any deception, trick or mala fides by Officers Reid and Morse in their conduct of the interview with Ms Beckett."

Her Honour found that the giving of a warning about the Taxation Administration Act, s 55 at the start of the applicant's interview did not constitute a representation that only that section would be resorted to in relation to the prosecution of false statements. Sweeney DCJ found, after seeing both Mr Morse and Mr Reid give evidence and be cross-examined, that she could not discern:

"... [any] intention by them to trick, trap, deceive or mislead Ms Beckett in that way, or any intention to hold out the representation which is contended for by their reference to s 55."

Her Honour held that there was "no evidence of mala fides or improper purpose by the tax officers of the Crown".

The essential challenge to her Honour's finding that the proceedings were not brought and maintained mala fides was that the OSR only had the power to investigate and prosecute breaches of taxation law. The applicant contended that this limitation was to be found in the express terms of s 71 and s 72 of the Taxation Administration Act. The applicant also relied upon the terms of s 7, which states the purpose of the Act. The full terms of these provisions are set out above at [21] ff.

Sections 71 and 72 are contained in Pt 9 of the Act, entitled "Tax officers, investigation and secrecy provisions". Div 2 of Pt 9 deals with "Investigation". Section 71 provides that a function conferred under the division may be exercised only for the purposes of a taxation law. Section 72 specifies the powers of the Chief Commissioner to require a person to provide information, including by the production of documents and by compelling persons to attend and give evidence on oath. The applicant relied on s 72(2) in particular, which provides that if the requirement to provide information, attend and give evidence or to produce documents is to "determine that person's tax liability", that must be stated in the notice.

This submission, insofar as it was based on s 72(2), was directed, presumably, to the fact that in this case the applicant had no liability to pay duty on the Darling Point transfer. Her obligation was to ensure payment of duty on that transfer if she processed it through the EDR scheme. However, the submission misstates the effect of s 72 in general and s 72(2) in particular. Section 72(2) imposes a requirement for a person to be notified in a notice given under the section, if they are being investigated in respect of their own taxation liability. Section 72 does not in terms or by implication limit the OSR's investigative powers to a person's own tax liability.

However, the applicant's wider submission remains, namely that the powers of investigation under the Taxation Administration Act may only be used in relation to a taxation law. On this submission, the OSR officers had no power to lay charges for an offence under some other law, so that the laying of charges against the applicant under the Crimes Act was not authorised. The applicant pointed out that if the officers were investigating an offence under the Crimes Act, they had no power to compel her to attend and answer questions and produce documents under threat of punishment. The applicant contended that the OSR officers had exceeded their powers by conducting a general investigation.

The applicant submitted that the legislature had made a clear policy determination to confine the prosecutorial function of authorised officers exercising coercive disclosure powers to breaches of the Taxation Administration Act, s 72(8) if disclosure was not made. This was to be contrasted with the investigation of offences under the Crimes Act, where there was no power to compel a person to attend and answer questions or produce documents.

The applicant also pointed out that the legislature had differentiated in respect of the type of prosecution that may be brought. An offence under a taxation law may be dealt with summarily in the Local Court or in the Supreme Court in its summary jurisdiction: s 125(1). The maximum penalty was 100 penalty points or the maximum penalty provided by the taxation law, whichever was the lower. Pursuant to the Crimes (Sentencing Procedure) Act 1999, the monetary equivalent of 100 penalty points is $11,000. By contrast, the offence under s 319 with which the applicant is charged is an indictable offence and carries a maximum penalty of 14 years imprisonment. The alternative charge under s 330 carries a maximum penalty of 5 years imprisonment.

The applicant further submitted that it was apparent from the conduct of the authorised officers, in providing to her copies of sections of the Taxation Administration Act at the commencement of the record of interview, that they knew the limitations of their power. At no time was the applicant provided with copies of the Crimes Act or warned that charges might be laid under the Crimes Act. Likewise, the manner in which the interview was conducted, including the warning she was given that it was an offence to make a statement to a taxation officer knowing that the statement or information is false or misleading in a material particular, indicated that the OSR officers were proceeding only under the Taxation Administration Act. In this regard, the applicant challenged Sweeney DCJ's finding, at 16, that the investigators did not conceal an intention to prosecute the applicant for offences under the Crimes Act: see [28] above.

The applicant contended that the warning she was given (being the first of the warnings reproduced at [14] above), which reflected the language of s 55, was a warning that a breach of that section was an offence. It was not a warning in respect of any other offence and in particular was not a warning in relation to an offence under the Crimes Act, s 319. The applicant submitted that the clear intention of the investigators in only giving her this warning was that if the applicant told any material untruth, she may expose herself to sanction under the Taxation Administration Act, s 55. The applicant submitted that in preferring the counts on the indictment, instead of proceeding under s 55, the Crown has acted with 'mala fides'.

The applicant submitted, alternatively, that the investigators' intention in confining the warning to s 55 was to trick, deceive or mislead her into an understanding that any action against her would be under the Taxation Administration Act. She contended that the investigators obtained an advantage in doing so because the applicant did not exercise her fundamental right to silence and/or against self-incrimination in answering the questions asked and in providing the material from her file. More particularly, the applicant submitted that as she was questioned under compulsion, she had no right to silence and no privilege against incrimination. Accordingly, the applicant challenges the primary judge's finding that the taxation investigators did not have an intention to trick, deceive or mislead the applicant as to what the applicant would expose herself to if she told untruths in the compelled taxation audit interview of 28 September 2010.

The applicant further submitted that it was apparent from the transcript of the compelled interview that the focus of the OSR was on recovering the duty and penalty interest payable in respect of the transfer of the Darling Point property and that there was no attempt to conduct a general 'audit'. The applicant referred to portions of the transcript of the interview which were directed to ascertaining from the applicant how and when she was going to attend to payment of the duty and interest owing on the transfer and in advising her that the OSR could look to her for indemnity if the monies were not otherwise forthcoming.

The Crown submitted that the critical aspect of this case is that the offence under s 319 was committed during the interview conducted on 28 September, after the applicant was cautioned that she did not have to say anything that may tend to incriminate her but that anything she said may be used in evidence against her. The Crown accepted that the purpose of the interview was to investigate the possible breach of the applicant's obligations under the EDR scheme, the Duties Act and/or the Taxation Administration Act. The Crown submitted, however, that during the course of the interview, the applicant made the allegedly false statements and produced the photocopies of the cheques which, if proved, involved a criminal act of a different complexion. The Crown also submitted that there is no evidentiary foundation for the applicant's submission that the investigator, in the manner in which they conducted themselves, exercised "general investigative powers".

The Crown submitted that the decision whether to prosecute and on what basis was a matter solely within the prosecutor's discretion: Magaming v R [2013] HCA 40; 87 ALJR 1060 at [20]; Elias v R [2013] HCA 31; 248 CLR 483 at [34]-[35], and that there was nothing that precluded the OSR from prosecuting the applicant for the offence for which she has been charged.

The Crown also submitted that the evidence did not support the applicant's contention that the OSR 'only' wanted to recover the outstanding duty and interest. The Crown referred to the terms of the letter of 17 September 2010 and the s 72 notice, neither of which were confined to the Darling Point transfer but encompassed "stamp duty transactions and dealings" and "possible breaches" of the Duties Act and the Taxation Administration Act. The Crown also referred to Mr Morse's questioning of the applicant, in which he stated:

"Today I'll be asking you questions in respect of a conveyancing transaction between DLC Investments Pty Limited, the vendor, and Pasquale Lopresti, the purchaser, in respect of the property at ... Darling Point ... plus I'll be asking you questions about your firm, being an electronic duties return client for the Office of State Revenue ..."

Consideration

It is appropriate in the first instance to consider the circumstances in which the court will permanently stay a prosecution.

The Court will only order a permanent stay of proceedings in an exceptional case. In Jago v District Court of NSW [1989] HCA 46; 168 CLR 23, Mason CJ stated, at [34]:

"To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences' ..." (citation omitted)

See also Gaudron J at [75]-[76].

As I observed in Calleija v The Queen [2012] NSWCCA 37; 223 A Crim R 391 at [29], Mason CJ considered that underlying the power of the court to grant a permanent stay was the court's inherent jurisdiction to prevent an abuse of its processes.

The power of a court to grant a permanent stay was again considered by the High Court in Moti v The Queen [2011] HCA 50; 245 CLR 456 where French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, identified three considerations necessary to have regard to before making a decision as to an abuse of process. Only the third is of present relevance. In that respect, their Honours observed, at [57]:

"The third basic proposition is that, as pointed out in the joint reasons of four members of this Court in Williams v Spautz, two fundamental policy considerations affect abuse of process in criminal proceedings. First, 'the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike'. Secondly, 'unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice'. Public confidence in this context refers to the trust reposed constitutionally in the courts to protect the integrity and fairness of their processes. The concept of abuse of process extends to a use of the courts' processes in a way that is inconsistent with those fundamental requirements." (citations omitted)

See also R v R.W.O. [2002] NSWCCA 133 at [62]-[63]; Calleija at [28] ff.

In the present case, it was contended that the officers of the OSR may only exercise their functions for the purpose for which they were conferred, namely, for the purposes of a taxation law: see Taxation Administration Act, s 71. It followed on this submission that where information was obtained during the course of the exercise of the powers conferred by s 72, the only prosecution that could be brought as a result of information so obtained was a prosecution under a taxation Act.

This submission raises two issues. First, what is the operation and effect of s 71? And secondly, when a person engages in conduct during the course of an investigation under the Taxation Administration Act that not only constitutes a breach of a taxation Act but also a breach of some other Act, including the Crimes Act, do the provisions of the Taxation Administration Act constrain the usual exercise of prosecutorial discretion such that any prosecution is confined to a breach of that Act or another taxation Act?

Section 71 is clear in its terms. It provides that a function under Pt 9, Div 2 may only be exercised for the purposes of a taxation law. One of the powers that the Chief Commissioner, by his authorised officers, has under Div 2 is the power to require a person to attend and give evidence. That power, in accordance with s 71, may only be exercised for the purposes of a taxation law. The notice issued to the applicant stated that the purpose of the examination was to determine if there had been any breach of the Duties Act and the Taxation Administration Act. Accordingly, the requirement for the applicant to attend to give evidence was exercised for the purposes of a taxation law.

The question then arises whether any evidence given or information produced pursuant to a requirement to do so under s 72, can only be used for the purposes of a prosecution under a taxation law. In my opinion, a prosecution is not so confined. Section 71 relates to the exercise of a function under the Division. The Commissioner has, as a function under s 72, the power to require a person to do certain things. There is nothing in the wording of s 71, nor in the powers conferred by s 72, that prescribes or delimits what may be done with information that is obtained during the course of or as a result of the exercise of such powers. Accordingly, I would reject ground 4.

The applicant also contended that there was an abuse of process in the manner in which the interview was conducted. In my opinion, that contention should also be rejected. Although prior to the interview the applicant's attention was only drawn to the provisions of the Taxation Administration Act, she was told, prior to any reference to the provisions of that Act, that any information or documentation obtained from the interview may be referred to the Crown solicitor. The applicant was then warned in the terms of both s 55 and s 72 of the Act. The applicant was also advised in terms that preserved her right against self-incrimination.

The applicant complains, however, that she was led to believe that her interview was only in relation to taxation matters and that she was not in any way liable to be exposed to other aspects of the criminal law. She alleged that this was a deliberate trick or deceit by the OSR officers. I do not agree. The officers gave evidence before the trial judge to the contrary of this assertion and that evidence was accepted by her Honour.

I would reject this ground of appeal.

Second basis: interview with Mr Lopresti: ground 12

The applicant seeks to have the record of interview of Mr Lopresti excluded as evidence in the trial on two principal bases. The first was that the officers acted improperly in having Mr Lopresti attend for the interview. The applicant submitted that there was no power to compel him to attend because the applicant had already acknowledged that duty and interest were payable and a timetable for payment of the outstanding amount had been agreed. The second basis was that the officers of the OSR engaged in trickery and deceit in the course of that interview.

The trial judge held that:

"... the investigation did not have to conclude when agreement was reached and a timetable agreed between the [applicant] and the [OSR] for payment of the duty and interest and the money was paid ..."

In coming to this conclusion, her Honour noted that there was nothing in the Taxation Administration Act that required the investigation to end once arrangements had been made for payment. Her Honour also referred to the evidence of Mr Reid and Mr Morse that the investigation was not only for the purpose of having the duty paid but also to determine whether the applicant had committed any breaches of the Taxation Administration Act.

There was no error in her Honour's finding on this question. As her Honour indicated, there was nothing in the Act that compelled the conclusion that the investigation was complete. Nor was there anything in the transcript of the compelled interview that indicated that the investigation was complete. Accordingly, this aspect of the applicant's submission should be rejected.

That leaves the second basis upon which the applicant contended that the transcript of Mr Lopresti should not be admissible, namely, that it was obtained by deceit and trickery. During the course of the interview between the OSR officers and Mr Lopresti, Mr Reid asked Mr Lopresti questions as to whether he had given the applicant a cheque for $43,000 which the applicant said she had used to obtain two cheques for that sum for the stamp duty.

The questions that the applicant sought to have excluded from evidence were as follows:

"Q. Listen to the date, the 20 - around about September 2009, see, you gave Barbara one cheque which was deposited into her trust account for $43,200 and from that trust account, she's gone down to two banks, one Westpac Sandy Bay and the other ANZ Bank Sandy Bay and got two different amounts, one for $27,240 and the other for $16,000, both cheques adding up to $43,200, both were in - allegedly in favour of OSR. You don't know anything about those?

A. I can't - I can't answer the question - that question. I'm not aware of -- .

...

Q. -- and the Lopresti Trust, might tell us a story that she's forwarded - you're forwarded her funds and that she's split those funds that add up to that $43,000 odd?

A. No.

Q. And that that was for the payment of duty and that one of those has been presented by the bank and the other cheque has been lost?

A. No. I'm not aware of that. I wasn't aware that, you know, that's what had happened."

In his cross-examination on the voir dire in the proceedings before the trial judge, Mr Reid accepted that the premise upon which these questions were framed, namely that information to that effect was provided by the applicant, was not correct. He stated, however, that that was his recollection of her interview, albeit that he was mistaken in his recollection. He also conceded that the questions had been formulated prior to the interview from the record of interview of the applicant. Mr Morse also said that the questions for Mr Lopresti's interview had been formulated from the transcript of the applicant's interview and he did not correct the errors in the questions asked of Mr Lopresti.

Mr Reid's evidence in cross-examination was as follows:

"Q. Recollection from where?

A. From Barbara Beckett's interview.

Q. She never mentioned anything like that, did she?

A. No.

Q. And you knew that when you put this question?

A. Well, I believed that to be the case when I put that question, that was my recollection.

Q. You had her interview.

A. Yes, I did.

Q. And not only that but you formulated questions well before the interview in relation to this matter.

A. Yes, I did.

Q. And you look through the interview of hers prior to formulating those questions?

A. Yes.

Q. And when you did you knew full well that she'd never said anything of the sort?

A. I've missed the context of the interview.

Q. Well, you went further than that, didn't you? The question is 'do you know any reason why your solicitor would tell you - us a story that you forwarded her funds'?

A. Yes, well, I've made a mistake in my recollection.

Q. But you made a mistake twice, didn't you?

A. Yes."

Sweeney DCJ rejected the applicant's contention that the questions put to Mr Lopresti were motivated by an intention to trick, trap, deceive or mislead him. Sweeney DCJ accepted the evidence of Mr Reid. Her Honour found that "he did not make a knowingly false statement to Mr Lopresti to trap him in some way" and placed significance on the fact "that no evidence was obtained from Mr Lopresti by the impugned questions".

The Crown submitted that, in an application under the Criminal Appeal Act, s 5F, the applicant's challenges to the factual findings of the primary judge contained in grounds 12 and 14 must be judged according to whether the findings were reasonably open to the primary judge: R v Matovski (1989) 15 NSWLR 720 and 723 per Gleeson CJ. The Crown submitted that it was a matter for her Honour to accept or reject the evidence of Mr Reid that he had been mistaken and that the applicant had had failed to demonstrate that the finding was not reasonably open. In this regard, the Crown also noted that the propositions put to Mr Lopresti were not surprising because it accorded with standard conveyancing practice and the applicant's account of the cheques was extremely vague, confusing and seemed to suggest that the cheques had been drawn at Mr Lopresti's direction.

Consideration

Her Honour was considering a question of admissibility of evidence. Having found that the interview was properly conducted in the course of an investigation, the question became whether the evidence was otherwise improperly obtained or obtained as a result of some impropriety. This raised the question of the application of the Evidence Act 1995, s 138. That section provides that a court must not admit evidence that was obtained improperly or in consequence of an impropriety unless the desirability of admitting the evidence outweighs the undesirability of admitting it.

It is accepted that "improper", for the purposes of s 138, bears the meaning of conduct falling below "the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement": see Ridgeway v The Queen [1995] HCA 66; 184 CLR 19 at 36; Gedeon v R [2013] NSWCCA 257; 280 FLR 275 at [91]. It includes conduct which is not in accordance with truth or which is incorrect, inaccurate, erroneous or wrong, being the dictionary meaning of the words 'improper' and 'impropriety': see Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494 at [29]; Gedeon at [163]. See also R v Cornwell [2003] NSWSC 97; 57 NSWLR 82 where Howie J, at [19], considered that the legislature intended that the words be given their normal meaning. (Cornwell was the subject of an appeal to the High Court, but not on this issue.)

Her Honour did not refer to s 138 at this point of her reasons. However, she had referred to the section earlier in her judgment, albeit when referring to the challenge made to the admissibility of the transcript of the applicant's evidence. As I would understand her Honour's reasons, it was not necessary to conduct the evaluative and balancing exercise required by s 138, because she did not accept that the questions had been asked as a deliberate falsehood.

I see no error in this conclusion. An inadvertent misstatement by an investigating officer to a witness is unlikely, for that reason alone, to be regarded as improper for the purpose of s 138: Cornwell at [24] per Howie J. In circumstances where her Honour had found that Mr Reid had not made a knowingly false statement to trap Mr Lopresti and it was not shown that her Honour erred in so finding, I am of the opinion that there was no basis for the operation of s 138 in respect of Mr Lopresti's evidence.

I would reject ground 14 of the appeal.

Second issue: course of justice/false swearing: grounds 3 and 13

(i) Introduction

By ground 3 of the draft notice of appeal, the applicant contended that her Honour erred in finding that a "course of justice" had commenced during the interview with the applicant on 28 September 2010. Ground 13 was a general pleading that the trial judge erred in finding that the admissible evidence was sufficient to satisfy a prima facie case and to prove the case beyond reasonable doubt. No separate submissions were advanced in support of ground 13.

The Crown case was that during the compelled interview the applicant had produced the falsely dated cheques and made false statements to the OSR officers so as to deflect the OSR officers from prosecuting her for breaches of ss 41 and 42 of the Taxation Administration Act (as at December 2010). Those offences respectively involve the contravention of a person's conditions of approval under the EDR scheme and the endorsing of an instrument contrary to the conditions of approval under that scheme. The question in issue before her Honour was whether there was a 'course of justice' within the meaning of s 319, that the applicant intended to pervert by engaging in that conduct: see R v Rogerson [1992] HCA 25; 174 CLR 268; R v OM [2011] NSWCCA 109; 212 A Crim R 293.

(ii) Primary judge's reasoning

The trial judge approached this question by "taking the evidence at its highest", that is, by determining whether the evidence established the elements of the offence on a prima facie basis. Her Honour concluded that the evidence upon which the Crown proposed to rely to establish this element of the offence, if accepted, was sufficient to establish a prima facie case that "a course of justice existed during the interviews" with the applicant for the purposes of s 319. It is not clear whether the reference to "interviews" was a typographical error, or whether her Honour also meant to include the conversation with Mr Morse on 21 September 2010. However, for the reasons which follow, nothing turns on this point.

In coming to this conclusion, her Honour distinguished the position of conduct engaged in during the course of administrative and revenue collection systems by officers enforcing those systems: see R v Einfeld [2008] NSWCCA 215; 71 NSWLR 31, from the situation here, where the applicant had been warned "of possible prosecution action as one aspect of the tax investigation that was being conducted". Her Honour considered, therefore, that it could be inferred that possible prosecution was in the applicant's contemplation when she attended for the compelled interview and produced her file containing the photocopied cheques upon which the date had been altered. Sweeney DCJ also held that the evidence was capable of establishing a prima facie case in respect of the alternative count on the indictment that the applicant had made a false statement on oath knowing it to be false.

(iii) Submissions

(a) Applicant's submissions

The applicant submitted that the reason for the compelled interview was to recover the unpaid duty and interest. Given that circumstance and the fact that arrangements were made at the interview for the payment of the duty, the investigation was properly characterised as administrative: see Police v Zammitt [2007] SASC 37. She contended that there was no evidence that at the time of the interview the officers were suspicious that offences had been committed under the Taxation Administration Act, ss 41 and 42 and that her conduct had been intended to deflect them from investigating those matters. The applicant sought to gain support for this submission by reference to the fact that subsequent to her compelled interview the officers had interviewed Mr Lopresti to ascertain whether there had been a breach of those provisions.

The applicant also submitted that, contrary to the primary judge's finding, there was "no evidence whatsoever" that she contemplated court proceedings at the time of the interview. The applicant also submitted there was no admissible evidence that she made any 'false statement'. Hence, the Crown was relying on irrelevant and inadmissible evidence. The applicant submitted, therefore, that the Crown case was "foredoomed to fail" and that both counts on the indictment should be quashed or permanently stayed: Walton v Gardiner [1993] HCA 77; 177 CLR 378 at 392-3; Ridgeway; and Calleija at [35].

(b) Crown submissions

The Crown resisted the suggestion that the investigation conducted by the OSR officers was confined to recovering the outstanding duty and interest and rejected the contention that there was no evidence that prosecution was a possible outcome. Both the letter of 17 September 2010 and the s 72 notice identified that the purpose of the investigation was to identify possible breaches of the Duties Act and the Taxation Administration Act and contained a warning that prosecution might be considered.

The Crown also submitted that it was not necessary that the applicant had it in contemplation that proceedings might be taken against her. Rather, it was only necessary for the Crown to prove that there was evidence that an investigation into the transaction could lead to a prosecution for some offence: see Rogerson per Mason CJ at 278. In this regard, the Crown noted that the potential for curial proceedings is expressly provided for by the Taxation Administration Act, s 125 that deals with proceedings for offences against a "taxation law". The Crown contended that whether or not to bring curial proceedings involved the exercise of prosecutorial discretion.

Consideration

The common law offence of perverting the course of justice has been described as the doing of an act which has a tendency and is intended to pervert the administration of justice: see R v Vreones [1891] 1 QB 360 at 369 per Pollock B. The question of what constituted the "course of justice" for the purposes of the common law offence of perverting the course of justice was considered by the High Court in Rogerson. That case involved a charge of attempt to pervert the course of justice. More particularly, the question was whether interference with police investigations was an aspect of the "course of justice" for the purposes of that offence.

The majority of the Justices of the High Court held that the "course of justice" did not commence until the jurisdiction of a court or competent judicial body was invoked: Mason CJ at 276-277; Brennan and Toohey JJ at 280, 283; McHugh J at 303. In criminal proceedings, that does not occur until the arrest of the person or a court attendance notice has been issued: McHugh J at 303. It followed, on the reasoning of each of their Honours, that investigations by police officers of actual or suspected crimes were not part of the course of justice for the purposes of common law offences concerned with perverting the course of justice: Mason CJ at 276; Brennan and Toohey JJ at 283. As Mason CJ pointed out, adopting the language of Pollock B in Vreones at 369, "the course of justice" was "synonymous with the expression 'the administration of justice'". His Honour further observed that "in no relevant sense do the police administer justice". See also Brennan and Toohey JJ at 283; Deane J at 293; and McHugh J at 303, who observed that the "investigation of an actual or suspected crime was not part of the 'course of justice'".

The majority of the Court also distinguished between the substantive offence of pervert the course of justice and the offence of attempt. Their Honours accepted that, unlike the position where the substantive offence was charged, it was well established that the offence of attempt to pervert the course of justice could be committed at a time when no curial proceedings were on foot. Nor was it necessary that any particular curial proceedings be in the accused person's contemplation for the purpose of the offence of attempt to pervert the course of justice: Deane J at 294; McHugh J at 305. It was enough for the offence of attempt to pervert the course of justice if there was conduct that had a tendency and was intended to frustrate or deflect the course of curial or tribunal proceedings that were "imminent, probable or even possible": Mason CJ at 277; see also Brennan and Toohey JJ at 280; 283; Deane J at 293-294; McHugh J at 301.

McHugh J, at 303, stressed that a false statement made to an officer of the law during an investigation of an actual, alleged or suspected offence was not by itself a common law misdemeanour (McHugh J's emphasis). For the offence of attempt to pervert the course of justice, it was necessary that the false statement had a tendency to pervert the course of judicial proceedings and was made with the intention to do so: McHugh J at 305. His Honour further observed that a statement made before the commencement of judicial proceedings cannot amount to a contempt of those proceedings: "such a statement will be an attempt to pervert the course of justice if the relevant intent and tendency are present".

McHugh J at 304, referred to the consequences of giving to the phrase "course of justice" a wider meaning:

"... if, contrary to history and principle, this Court now declared that the common law misdemeanour of attempting to pervert the course of justice was established simply by the making of a wilfully false statement in relation to an alleged, actual or suspected crime, it is difficult to see how the offence could be limited to investigations by police officers. Many government officials, besides police officers, are today charged with the duty of investigating breaches of the law. Indeed, any wilfully false statement made to any person investigating whether curial proceedings should be instituted in respect of an actual or supposed civil or criminal wrong would also be arguably within the ambit of the offence. In the result, conduct which for hundreds of years had not been in breach of the criminal law would become so without legislative authority. Whether conduct which intentionally misleads police officers and other government officials should be punishable as an offence, and, if so, to what extent, must remain a matter for the legislature and not the courts."

Before leaving Rogerson, more detailed reference needs to be made to two passages in the joint judgment of Brennan and Toohey JJ. The first passage occurs at 283, where their Honours expressly rejected the proposition that the course of justice commenced prior to the jurisdiction of a court or other competent judicial body was invoked. Their Honours stated:

"The course of justice does not begin until the jurisdiction of some court or competent judicial authority is invoked. As McHugh J. shows, there is no historical support for an extension of the 'course of justice' in the way which commended itself to the English Court of Appeal in Reg. v Selvage where it was said that 'a course of justice must have been embarked upon in the sense that proceedings of some kind are in being or are imminent or investigations what could or might bring proceedings about are in progress' ... Neither the police nor other investigative agencies administer justice in any relevant sense."

In the second passage, at 284, their Honours observed that conduct calculated to mislead police during investigations may amount to an attempt to pervert the course of justice. Their Honours continued, at 284:

"An act which has a tendency to deflect the police from prosecuting a criminal offence or instituting disciplinary proceedings before a judicial tribunal or from adducing evidence of the true facts is an act which tends to pervert the course of justice and, if done with intent to achieve that result, amounts to an attempt to pervert the course of justice.

...

The gravamen of the offence of an attempt to pervert the course of justice is an interference with the due exercise of jurisdiction by courts and other competent judicial authorities. As the courts exercise their necessary and salutary jurisdiction to hear and determine charges of offences against the criminal law only when their jurisdiction is invoked, an act which has a tendency to deflect the police from invoking that jurisdiction when it is their duty to do so is an act which tends to pervert the course of justice. Subject to a limited discretion not to prosecute, it is the duty of the police to prosecute when offences are committed." (emphasis added)

The common law offence of pervert the course of justice has now been replaced by the offence under s 319 and is subject to the statutory definition of "pervert the course of justice" in s 312. The offence carries a maximum penalty of 14 years. Those provisions were considered by this Court in Einfeld. The conduct said to constitute the s 319 offence in that case was the making of a false statutory declaration in response to a penalty notice issued in respect of a traffic offence. The Court of Criminal Appeal, constituted by Bell JA, Hulme and Latham JJ, observed that ss 312 and 319 were contained within Pt 7 of the Crimes Act entitled "Public justice offences". The Court observed, at [65], that Pt 7 "codified a part of the common law dealing with offences relating to the integrity of curial proceedings and criminal justice".

Their Honours considered that the effect of Pt 7 was threefold. First, it introduced a number of offences dealing with conduct that at common law had constituted the offences of perverting or attempting to pervert the course of justice, for example, tampering with evidence: s 317; corruption of witnesses and jurors: s 321; and threatening or intimidating judges or witnesses: s 322.

Secondly, Pt 7 introduced offences concerned with criminal investigation, for example, making an accusation intending a person to be the subject of investigation for an offence, knowing that person to be innocent of the offence: s 314; doing anything intending to hinder the investigation of a serious indictable offence committed by another person: s 315; and concealing a serious indictable offence. The first two of the aforementioned offences carry a maximum penalty of 7 years imprisonment, while the last carries a maximum penalty of 2 years imprisonment.

Thirdly, s 319, Pt 7 enacted the general offence of perverting the course of justice (see the Court's discussion at [66]-[68]).

The Court, at [89], considered that the phrase "the administration of the law" in s 312 did not readily describe the role of the police in the investigation of crime. Their Honours considered that Parliament would more aptly have used some other expression such as "enforcement of the law" or the "investigation of crime" had it intended to include within the offence created by s 319, conduct involving the obstruction or perversion of a police investigation if an offender did not have curial proceedings in contemplation at the time of engaging in the conduct in question. The Court concluded that, having regard to the structure of Pt 7, particularly the exactitude with which ss 315 and 316 relating to serious indictable criminal offences were drafted, police investigations did not fall within the meaning of "the course of justice" for the purpose of the offence of perverting the course of justice. As their Honours observed, at [89]:

"It would seem anomalous, given the provision for these specific offences involving conduct intended to obstruct the police in the investigation of serious crime, if the Court were to construe s 319, by reason of the definition in s 312, as including any conduct intended to obstruct the police in the discharge of any function involving, applying or enforcing any law of the State."

Relevantly for the purposes of this case, which involved a taxation investigation by the public officials of the OSR, the Court, by reference to the point made by McHugh J in Rogerson at 304 (set out above at [83]) stated, at [90]:

"We do not see how the expression 'the administration of the law' could be interpreted to apply to the police investigation of crime without also applying to the activities of other public officials whose functions include applying and enforcing the laws of the State. A wilfully false statement made to a State Revenue Transit Protection Officer about the circumstances in which a weekly bus pass was lost would on such an interpretation of the provision be a perversion of the course of justice punishable by a maximum of 14 years' imprisonment."

The Court concluded, at [99], that the expression "the administration of the law" in s 312 meant "the administration of the civil and criminal law by courts and tribunals". In effect, the Court accepted that the expression bore the same meaning as was given to the phrase "course of justice" in Rogerson. In stating this conclusion, the Court again emphasised that in codifying public justice offences, the legislature had carefully defined offences and ranked them in order of relative seriousness, reflected in the maximum penalties prescribed. Most of the offences in Pt 7 may be dealt with summarily, in which case the maximum penalty is 2 years: see Criminal Procedure Act 1986 s 260. However, an offence under s 319 may not be dealt with summarily. This caused the Court to observe, at [98], that Parliament had reserved the offence under s 319 "as among the most serious of the public justice offences". Their Honours noted:

"Notable is the absence in Pt 7 of an offence or offences dealing, in terms, with the obstruction of public officials or government bodies in the administration of the law."

In OM, this Court confirmed, at [48], that the scope of the statutory offence created by s 319 does not differ in relevant respects from the scope of the common law offence of pervert the course of justice, so that the relevant parameters of the statutory offence were those identified in Rogerson in respect of the common law offence. So much may be accepted. However, their Honours' conclusion in OM, which picked up certain of the language used by Brennan and Toohey JJ extracted above, calls for critical examination.

In OM, the respondent was charged with the offence under the Crimes Act, s 195(1)(a) of intentionally damaging property and with two offences under s 319. The alleged facts, which were relevantly straightforward, commenced with a road rage incident. A car cut in front of a taxi, whereupon the driver of the taxi sounded the taxi's horn. Further on at a set of lights, at which both the car and the taxi had stopped, the respondent got out of the car, went up to the taxi and struck the driver's side window causing it to shatter. The respondent ran back to the car, which drove off. The passenger in the taxi recorded the registration number of the car and the police were called.

The car was registered in the name of a Mr Ullah who, on inquiry by the police, advised that his daughter was the driver of the car on the day in question. Mr Ullah informed his daughter of the police inquiry. The daughter rang the respondent and asked him about the malicious damage to the taxi that the police were asking about. The respondent told Ms Ullah to tell the police that another person was in the car with her. Ms Ullah subsequently attended the police station and gave a statement in which she said that she was the driver on the day and that another person, Mr Sundarjee, was with her. She claimed that she was unaware of any damage to the taxi. Some months later, Ms Ullah admitted to the police that the respondent had been with her and that the respondent had smashed the window.

Mr Sundarjee was questioned by the police about two weeks after the incident. Prior to his police interview, the respondent had contacted Mr Sundarjee and also told him to give a false statement to the police. Mr Sundarjee gave the false account to the police and maintained that account in a later conversation with the police. Subsequently, he too admitted to the police that his statement was false and that he had been encouraged by the respondent to make the false statement.

Six months later, the respondent was charged with the damage to property offence and the two offences under s 319. An application was made at his trial that the defendant had no case to answer in respect of the s 319 offences, on the basis that an offence under s 319 did not lie where the conduct alleged to constitute the perversion of the course of justice occurred during a police investigation, prior to an arrest or charge being laid. The trial judge ruled that the conduct, if proved, could not amount to an offence under the section.

On appeal to the Court of Criminal Appeal, the Court reviewed the decisions in Rogerson and Einfeld. Whealy JA, who wrote the principal judgment, referred to those passages in Rogerson which pointed out that the "course of justice" for the purposes of the s 319 offence did not commence until the jurisdiction of the Court had been invoked. His Honour, at [46], quoted that part of McHugh J's statement where his Honour noted that a statement before the commencement of proceedings will be an attempt if the relevant intent and tendency are present. Whealy JA, at [47], then stated that McHugh J, at 307, expressed a qualification to that statement. According to Whealy JA, the qualification was contained in the following passage from the judgment of McHugh J at 307:

"Unless the prosecution proves that the course of justice as a continuing process has been perverted or proves facts which show that an identifiable person has committed an identifiable crime, it is difficult to see how the prosecution can prove that the conduct of the accused interfered with the course of justice ... Leaving aside the continuous process cases, proof of the offence will require evidence that the accused has engaged in conduct which prevented or might have prevented the prosecution of a particular offence or that the accused has engaged in conduct which had the tendency to change or did change evidence which would otherwise have been put before a judicial tribunal or which had the tendency to prevent or did prevent evidence from being put before that tribunal. If the evidence does not establish what proceedings would have been commenced or what proceedings were interfered with, the conduct of the accused cannot be shown to have the tendency to pervert the course of justice ... It is not enough that the conduct of the accused has misled an investigation into whether a person has committed any offence against the law."

Having quoted from that passage, Whealy JA posed the question whether the primary judge had fallen into error in refusing the no case application. As noted above, his Honour accepted that the parameters of the offence under s 319 were those stated in Rogerson. His Honour referred to the observations of the Court in Einfeld at [89] referred to above at [90]. His Honour concluded, at [49]:

"In other words, if the Crown, in the present matter, could establish that the respondent's actions were intended to deflect the police from prosecuting him for the criminal offence that he had allegedly committed, or from adducing evidence of the true facts relating to the alleged offence, the prosecution was clearly capable of being maintained. The fact that no judicial proceedings had been commenced at the time when the respondent spoke to Ms Ullah and Mr Sundarjee, did not preclude the finding of a prima facie case. Nor would it preclude a subsequent determination by a jury that, subject to proof of all the elements of the offence beyond reasonable doubt, that each offence had been committed. Had his Honour quashed the two counts in the indictment, as he indicated he was contemplating doing, there is no doubt that this court would have been entitled to make an order pursuant to section 5C of the Criminal Appeal Act , setting the orders aside. Similarly, had his Honour made an order staying the proceedings, there is no doubt that this court would have been entitled to make an order pursuant to section 5F(2), setting the stay order aside." (emphasis added)

It will be immediately apparent that the reference by his Honour to proof of the respondent's actions being "intended to deflect the police from prosecuting him for the criminal offence that he had allegedly committed", or "from adducing evidence of the true facts relating to the alleged offence, the prosecution was clearly capable of being maintained", reflects the language of Brennan and Toohey JJ, set out above at [85]. However, those comments were made in the context of considering proof of the offence of attempt to pervert the course of justice, not in respect of the offence of pervert the course of justice. As already noted, the High Court was unanimous in Rogerson that the substantive offence was not available where the impugned conduct occurred prior to the jurisdiction of a court or competent judicial authority being invoked.

Whealy JA, as I understand his Honour's judgment, derived support for the conclusion reached at [49] from what he considered to be a qualification made by McHugh J in Rogerson at 307 to the clear statements otherwise made that the "course of justice" did not commence until the court's jurisdiction had been invoked. In my opinion, the passage from McHugh J's judgment at 307 did not carry the qualifying implication or effect ascribed to it by Whealy JA. McHugh J's reasoning in Rogerson leading to this passage relevantly commenced at 304. His Honour, in that part of his judgment, was dealing with the common law misdemeanour of attempting to pervert the course of justice. His Honour expressly stated as part of that reasoning, at 305:

Seller; McCarthy also concerned the Australian Crime Commission Act. In addition to the provisions of s 30, considered in A v Boulton, the Court was concerned with s 25A of the Act, which made provision for the conduct of an examination under the Act. Section 25A(9) provided that a direction may be made that evidence given in the examination was not to be published or was only to be published to such persons as the examiner specified. The examiner was required to give a direction for non-publication or limited publication under subs (9) if the failure to do so might prejudice the fair trial of a person who had been or who may be charged with an offence.

Directions had been made whereby some of the material obtained at the examination was provided to the prosecuting authorities. Bathurst CJ (McClellan CJ at CL and Rothman J agreeing) held, at [80], that, by necessary implication, there had been an abrogation of the privilege against self-incrimination, including the privilege against indirect or derivative self-incrimination.

The Chief Justice noted, at [101]-[104], that whilst the purpose of s 25A was to preserve the right to a fair trial, the section would not prohibit all derivative use of the material. His Honour drew a distinction between the use of information obtained in the course of an examination to obtain admissible evidence and the use of information that disclosed defences or which tended to support the proposed charges. While his Honour considered that the former use was not such as to prejudice a fair trial, he considered that use of the information in this latter way would be contrary to the principle stated by Gibbs CJ in Sorby "that the onus was on the Crown to prove its case and that the prosecution must prove it without reliance on incriminating answers": see also Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; 178 CLR 477.

Bathurst CJ considered, at [103], that s 25A would not preclude the Australian Crime Commission from carrying out the investigatory function imposed on it by the Act. His Honour emphasised, at [106], that whether the dissemination of material would prejudice a fair trial would depend upon the nature of the material disseminated, the function of the person or body to whom the material was disseminated and, in some cases, the timing of the dissemination.

As I have indicated, the applicant relied on Baff v New South Wales Commissioner of Police. Mr Baff, a police officer, had been given a notice to attend for a non-criminal investigation relating to an allegation that he used unreasonable force and disobeyed a reasonable direction during the course of his police duties. The legislation under consideration was the Police Act 1990 (NSW), s 201 and the Police Regulations 2008 (NSW), cl 8. Section 201 provided that an officer who neglected or refused to obey any lawful order was guilty of an offence. Clause 8 required a police officer to comply strictly with the Police Act and with all lawful orders from those in authority over them. Mr Baff had taken an oath of service required of police officers upon appointment to the service and had signed a document stating that he would comply with the Police "Code of Conduct", which included a provision that an officer would comply with any lawful and reasonable direction given by a person in authority.

The question in issue was whether the privilege against self-incrimination had been impliedly abrogated by these provisions. Adamson J held, at [111], that the common law privilege against self-incrimination (including the wider privilege not to answer any questions) was a substantive right available to a person suspected of but not charged with an offence. Her Honour concluded that the privilege had not been abrogated by the legislation or the regulations. There is nothing in Baff which is of particular assistance in this case. Adamson J correctly applied the principles of statutory interpretation to the legislation under consideration. The trial judge in this case was not in error in failing to apply it.

The trial judge in the present case rejected X7 and Lee (2013) as being of assistance. Those cases were not directly concerned with the question whether the privilege against self-incrimination had been impliedly abrogated. Rather, they were concerned with whether it was lawful for an authority to compulsorily examine persons in respect of matters with which they had been charged. Reference should also be made to Lee (2014), which was decided after her Honour's decision in this matter. In Lee (2014), the question arose as to the use that can be made of information obtained in the course of a compelled interview in circumstances where the person interviewed had not been charged with any offences. Again, it was not in issue whether the privilege against self-incrimination had been abrogated.

In the present case, there is a question as to whether the transcript of the compelled interview is admissible even if the privilege against self-incrimination has been abrogated. Accordingly, it will be necessary to return to those cases. It is convenient at this point, however, to note that, in determining whether the transcripts can be used, regard will need to be had to two further factors. The first is that the applicant was given a caution. The second is that the offences on the indictment which are the subject of the issues before the court arose out of the false answers she allegedly gave in the compelled interview.

Has the privilege been abrogated?

In determining whether the privilege has been abrogated, it is necessary to return to the legislation. The provisions of the Taxation Administration Act, ss 7, 71 and 72 are set out above at [21]. In brief, the purpose of the Act is to make provision for the administration and enforcement of taxation laws: s 7. Functions conferred by the Act may only be exercised only for the purpose of a taxation law: s 71. Section 72 then confers on the Chief Commissioner power to require information, the production of documents and the like: s 72. Relevantly for the purposes of this case, power is vested in the Commissioner by s 72 to require a person by notice to provide information and to attend to give evidence including on oath. A person given a notice must comply with it. A penalty is provided for non-compliance: s 72(8). There is no provision such as is found in other legislation that a person is not excused from answering on the ground of self-incrimination: see, for example, the Companies (New South Wales) Code, s 541(12), considered in Hamilton v Oades. Nor is there any use immunity in the Taxation Administration Act whereby incriminating answers may not be used in evidence against the person.

Part 9, Div 3, ss 81-85A of the Taxation Administration Act provides for the secrecy of information obtained under the compellable provisions of s 72. There are, however, significant exceptions. Pursuant to s 81, a tax officer must not disclose information obtained under or in relation to the administration of a taxation law, except as permitted by the Division. Section 82 provides for disclosure to specified persons and entities, including:

"82 Permitted disclosures - to particular persons

A tax officer may disclose information obtained under or in relation to the administration of a taxation law:

...

(b) in connection with the administration or execution of the following laws (including for the purpose of any legal proceedings arising out of any of those laws or a report of any such proceedings):

(i) a taxation law,

(ii) the First Home Owner Grant Act 2000 or a corresponding law of another State or a Territory,

(iii) the Unclaimed Money Act 1995,

(iv) a recognised revenue law,

(v) the Fines Act 1996,

(vi) the Regional Relocation Grants (Skills Incentive) Act 2011,

...

(d) in accordance with a requirement imposed, or authorisation conferred, by or under an Act, or

...

(h) to the Commissioner of the Australian Federal Police, or a member of the Australian Federal Police designated by the Commissioner, for the purpose of enforcing a law of the Commonwealth that creates an offence, or

...

(k) to any of the following persons or a person authorised by any of the following persons:

(i) the Ombudsman,

(ii) the State Records Authority of New South Wales,

(iii) the Australian Statistician,

(iv) the Auditor-General,

(v) the Valuer-General,

(vi) a member of the Public Service acting in the execution or administration of the Regional Development Act 2004, or

(vii) the WorkCover Authority,

(viii) the Legal Services Commissioner, a member of the Law Society Council, an investigator appointed under section 267 of the Legal Profession Act 2004 or an external examiner appointed under Division 4 of Part 3.1 of that Act,

(ix) the Head of a Department of the Public Service or the holder of a statutory office if the information relates to land, including its description, ownership and value,

(x) the Hardship Review Board constituted under Division 5 of Part 10 or a member of that Board,

(xi) the Director-General of the Department of Education and Communities,

(xia) the Director-General of the Department of Trade and Investment, Regional Infrastructure and Services,

(xii) (Repealed)

(xiii) the Director-General of the Department of Transport, for the purposes of administration of the Parking Space Levy Act 2009,

(xiv) the Commissioner of Police,

(xv) the Commissioner for Vocational Training,

(xvi) the Independent Commission Against Corruption,

(xvii) the Commissioner of Fire and Rescue NSW or the Commissioner of the NSW Rural Fire Service ..."

As can be seen from the range of Acts referred to in para (b), the disclosure permitted under para (d), where some other Act authorises or requires the disclosure and the disparate persons and entities to whom disclosure may be made, there is no homogeneity in the persons to whom disclosure may be made and no discernible cohesive purpose in permitting disclosure to be made. However, it is apparent that disclosure can be made to persons concerned with the investigation of criminal conduct. It will be necessary to return to the provisions of s 82, and subs (d) in particular, in relation to the consideration of grounds 6-9.

Despite the wide range of persons and circumstances in which disclosure may be made under s 82, s 84 places a restriction on the disclosure that may so be made. It provides that a person must not disclose any information obtained from a tax officer in accordance with Pt 9, unless the disclosure is made with the consent of the Chief Commissioner, or so as to enable the person to exercise a function conferred on the person by law for the purpose of the enforcement of law or protecting the public revenue.

Section 83 provides that the Chief Commissioner may disclose information obtained under or in relation to the administration of a taxation law, unless that information will, or is likely to, directly or indirectly identify a particular taxpayer or disclose matters concerning the personal affairs of the taxpayer. In accordance with the principles of statutory construction, the general provision made in s 83 does not restrict the particular disclosure that may be made under s 82.

Section 85 places restrictions on disclosure to a court in the following terms:

"85 Further restrictions on disclosure

(1) A person who is or was a tax officer is not required to disclose or produce in any court any information obtained under or in relation to the administration of a taxation law except:

(a) if it is necessary to do so for the purposes of the administration or execution of a taxation law, or

(b) if the requirement is made for the purposes of enabling a person who is specified for the time being to be an authorised recipient to exercise a function conferred or imposed on the person by law.

(2) In this section:

authorised recipient means a person to whom information may be disclosed under section 82."

Section 85A relates to disclosure under other laws. It provides:

"85A Disclosures under other laws

(1) This Division does not prevent the disclosure of information obtained under or in relation to the administration of a non-taxation law, in the exercise of functions conferred or imposed by or under that law, even if those functions are exercised in conjunction with functions exercised under a taxation law.

(2) However, this section does not authorise the disclosure of any such information in contravention of the non-taxation law under which the functions are exercised.

(3) In this section:

non-taxation law means any law of this State that is not a taxation law."

In my opinion, the privilege against self-incrimination has been impliedly abrogated by the provisions of the Taxation Administration Act. First, the requirement upon a person to attend and answer questions is stated in general terms. This was the very circumstance in which the majority in Sorby stated, at 310-311, that the legislation "was consistent only with a legislative intention to abrogate the privilege". Further, there was no compensatory use immunity of which the majority spoke in Sorby.

Secondly, the Act, in ss 82 and 84, makes provision for disclosure to a wide range of persons and entities including law enforcement authorities for the purpose of law enforcement, not confined to the enforcement of laws protecting revenue.

Thirdly, whilst s 85 is expressed in terms of a restriction on disclosure, it permits, by way of exception, a tax officer to disclose information obtained under, relevantly, s 72, to a court, if the disclosure is for the purpose of enabling a person specified in s 82 to exercise a function conferred or imposed on the person by law. Thus, a police officer prosecuting an offence (including offences other than taxation offences) could subpoena the transcript of a compelled interview.

Accordingly, the taxation officers were entitled to question the applicant and the applicant was required to answer questions, notwithstanding that the answers might incriminate her.

Use that could be made of the information obtained in the compelled interview: grounds 6, 7, 8, 9 and 10

Trial judge's reasons

Sweeney DCJ rejected the applicant's contention that the disclosure of information and material obtained in the course of its investigation to the Crown Solicitor and Director of Public Prosecutions and its production in court was prohibited by the Taxation Administration Act, ss 82 and 85. Sweeney DCJ held:

"I am satisfied that s 82(b) permitted the Office of State Revenue officers to disclose the material obtained in the course of their investigation to the Crown Solicitor, to the DPP and to this court for the purpose of any legal proceedings arising out of the administration of a tax law, which must include consideration of whether to commence such proceedings and acts ancillary to the preparation and conduct of such proceedings, such as these proceedings."

Her Honour observed:

"I note that s 82(b)'s terms do not place a limit on 'any legal proceedings arising out of a taxation law' and therefore do not preclude these proceedings under the Crimes Act from its application. Section 82(b) does not say 'legal proceedings for a breach of a taxation law' and should not be read as so limited. Had the Parliament, giving consideration to the secrecy requirements necessary for the relevant taxation laws, wished to so limit the disclosure of information, it could have said so, but it did not. Section 85 does not say that tax officers are not permitted to disclose or produce relevant information in court. It says they are not required to. That secrecy provision is in my view, directed differently and for a different purpose. Section 85 must be read together with s 82, they coexisting in the same division. Section 85 does not restrict the ability of tax officers to disclose relevantly obtained information to a court for the purpose of legal proceedings such as these arising out of a taxation law. Therefore, the disclosure by the Office of State Revenue of the information and material obtained in its investigation of Ms Beckett and her legal practice was not unlawful."

Applicant's submissions

The applicant submitted that Sweeney DCJ erred in construing the secrecy provisions of the Taxation Administration Act and finding that material obtained in the compelled interview could be distributed to authorities who were not authorised to receive the material under the Taxation Administration Act. The applicant submitted that ss 82 and 85 of the Taxation Administration Act exhaustively list the permitted disclosures and that the Crown Solicitor and the Director of Public Prosecutions are not included in the list of persons to whom disclosure may be made. The applicant submitted that the investigators had breached the Taxation Administration Act in disclosing the product of their investigation to the Crown Solicitor and Director of Public Prosecutions for the purpose of this criminal investigation.

The applicant submitted that, contrary to the findings of the trial judge, Parliament has placed a limitation on who could receive compelled material under the Taxation Administration Act and that the regime of the Act is limited to taxation law and does not have general application. The applicant submitted that the purpose of this limitation is that for any proceedings to be preferred against a citizen, other than a proceeding under the Taxation Administration Act, it is required to be conducted by a proper independent authority such as the Police. The applicant submitted that this is a reflection of the views expressed by McHugh J in Rogerson and the Court of Criminal Appeal in Einfeld.

Crown submissions

The Crown submitted that these grounds of appeal must fail for a number of reasons. The Crown pointed out that the OSR had retained the Crown Solicitor for the purposes of advice, as was authorised by the Legal Profession Act 2004, s 110. That section provides that the Crown Solicitor may, in his or her official capacity, act as solicitor for an officer or employee of the Public Service or any other service of the State of New South Wales or of a body established by an Act or other law of New South Wales: s 110(1)(e).

The Crown contended that the provision of information to the Crown Solicitor by the OSR pursuant to a retainer for legal advice is not a "disclosure" within the meaning of the Taxation Administration Act. It noted that a solicitor retained by a client is the client's agent and is bound by the same obligations of confidentiality and privilege as bind the client. In this regard, the relationship between the Crown Solicitor and the government client bears the same characteristics as between a private solicitor and client: Attorney-General (NT) v Kearney [1985] HCA 60; 158 CLR 500.

The Crown further submitted that, in this case, the disclosure of information to the Director of Public Prosecutions by the OSR was made pursuant to a request under the Director of Public Prosecutions Act, s 17(2), compliance with which is compulsory, and thus fell within s 82(d) as a disclosure made "in accordance with a required imposed, or an authorisation conferred, by or under an Act".

The Crown next submitted, as the primary judge found, that the disclosure was not prohibited because it was made for the purpose of obtaining advice in relation to the institution of legal proceedings arising out of a taxation law: s 82(b). In this regard, the Crown submitted that the prosecution of criminal conduct committed in the course of an investigation of breaches of a taxation law, and for the purpose of thwarting that investigation, is properly characterised as such a proceeding.

Finally, the Crown submitted that the applicant's submission that all non-Taxation Administration Act proceedings are to be preferred by the New South Wales Police rather than the OSR should be rejected. The Crown referred to the Criminal Procedure Act, s 14 which allows a prosecution to be instituted by any person unless the right is expressly conferred on a specified person, a limitation which is not applicable for breaches of the Crimes Act, ss 319 and 330.

Consideration

In my opinion, the applicant's submission advanced in support of grounds 6-9 should be rejected. Whilst under s 71 a function conferred by the investigation provisions of Div 2, including s 72, may only be exercised for the purposes of a taxation law, the information which is obtained as a result of such an investigation may be disclosed to the persons and for the purposes identified in s 82. This has already been discussed above at [140]-[141].

The further point should be made that whilst the provision of information to certain of the persons and entities specified in s 82 is restricted to a particular purpose: see subparas (ix) and (xiii), there is no similar restraint in respect of the provision of information to the other persons and entities identified, including the Commissioner of Police, although the use that those persons and entities could make of the information would be constrained by the legislation which governs their functions. This would also be the case in respect of material provided pursuant to s 82(d), which is expressed in general terms.

At this point it is necessary to return to some history and to some further legislative provisions.

In December 2011, acting in his official capacity, Mr Morse, pursuant to the Criminal Procedure Act, s 14, laid charges against the applicant in the Local Court by way of court attendance notices. The charges were laid pursuant to the Taxation Administration Act alleging breaches of ss 41(2), 42(2) and 55(b) of that Act. A charge of perverting the course of justice under the Crimes Act, s 319 was also laid. The laying of the charges by Mr Morse was authorised by the Criminal Procedure Act, s 14.

On 12 March 2013, the applicant was committed for trial in the District Court on the s 319 offence. The Criminal Procedure Act, s 8(1) provides, relevantly, that all indictable offences are "punishable by information (to be called an indictment) in ... the District Court ... in the name of ... the Director of Public Prosecutions".

On 15 March 2013, the applicant and the OSR were informed that the Director of Public Prosecutions had, pursuant to the Director of Public Prosecutions Act 1986, s 9, taken over the prosecution in the matter. Section 9 provides:

"9 Taking over prosecutions or proceedings

(1) If a prosecution or proceeding in respect of an offence (whether it is an indictable offence or a summary offence) has been instituted by a person other than the Director, the Director may take over the matter and:

(a) carry on the prosecution or proceeding ...

...

(4) If the Director takes over a matter under this section:

(a) the Director shall, as from the time when the Director complies with section 10 (1) in relation to the matter, be deemed to be the prosecutor in connection with the prosecution or proceeding concerned, and

(b) the Director may decline to proceed further in the prosecution or to carry the proceeding further ..."

The Director of Public Prosecutions Act, s 17 provides:

"17 Provision of information to Director

(1) If a prosecution for an offence has been instituted by a person other than the Director and:

(a) the Director informs the person that the Director is considering taking over the prosecution,

(b) the Director takes over the prosecution, or

(c) the person considers that the Director should take over the prosecution,

the person shall furnish to the Director the relevant information or material.

(2) The relevant information or material is:

(a) a full report of the circumstances of the matter,

(b) a copy of the statements of any witnesses,

(c) each material document in the possession of the person, and

(d) such other information or material as the Director requires."

On 21 June 2013, the Director of Public Prosecutions filed the indictment containing the two alternative charges under the Crimes Act in the District Court. According to the Crown's submissions, the Taxation Administration Act offences were referred to the District Court as backup or related charges pursuant to the Criminal Procedure Act, s 166, although no reference was otherwise made to those charges in the application before the Court. The applicant was arraigned on the indictment on 9 December 2013 and pleaded not guilty to both charges on the indictment.

I have referred above to the circumstances in which a tax officer may disclose information obtained as a result of an examination under s 72. The Director of Public Prosecutions is not named as a person or entity to whom disclosure may be made. However, as the Crown correctly submitted, the information was provided to the Crown Solicitor for the purposes of obtaining legal advice in relation to the prosecution of the applicant as is permitted by the Legal Profession Act, s 110(1)(e). In so acting, the Crown Solicitor was acting as the agent of the OSR: see Attorney-General (NT) v Kearney & Northern Land Council. The provision of information to the Crown Solicitor in those circumstances was not prohibited by s 81.

I also accept the Crown submission that disclosure to the Director of Public Prosecutions was authorised by s 82(d), being a disclosure made "in accordance with a requirement imposed, or an authorisation conferred, by or under an Act" namely, the Director of Public Prosecutions Act, s 17, set out above at [165]. It is sufficient to note that if the Director takes over a prosecution the person who instituted the prosecution is required to furnish the relevant information and material documents it has in its possession.

Admissions: grounds 10 and 11

Primary judge's reasoning

The primary judge found that the compelled interview of the applicant was admissible pursuant to the Evidence Act, ss 55 and 58 because it contained statements relied on by the Crown to prove both offences and were clearly relevant to those offences. Her Honour also found that the evidence was not otherwise excluded by the Evidence Act. In this regard, her Honour's primary view was that the Evidence Act, s 90 did not apply to exclude the interview and its contents because the statements made in the interview were "not admissions but are primary evidence relied on by the Crown as proof of the offences charged". Section 90 only relates to admissions.

In the alternative, Sweeney DCJ held that if any of the statements in the compelled interview were admissions, she would not exclude them under the Evidence Act, s 90. According to her Honour:

"... the decision in Attallah would seem to preclude the use of the interview in the trial being considered unfair to [the applicant] simply because it was obtained pursuant to the coercive power in s 72 Taxation Administration Act." (at 21)

Sweeney DCJ stated that she did not consider DPP v Attallah [2001] NSWCA 171:

"... is restricted to the specific statutory provision in [the Independent Commission Against Corruption Act 1988] under consideration therein, as [the applicant] contended, or to the situation there that the compulsory requirement to answer and the prosecution for false evidence both arose under the provisions of the same act, [the Independent Commission Against Corruption Act]. The principle cannot be so narrowly confined in my view."

Relevant legislation

The Evidence Act, s 90 provides:

"90 Discretion to exclude admissions

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:

(a) the evidence is adduced by the prosecution, and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence."

The Dictionary of the Evidence Act states:

"admission means a previous representation that is:

(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and

(b) adverse to the person's interest in the outcome of the proceeding."

Applicant's submissions

In respect of ground 10, the applicant submitted that the primary judge erred in finding that the allegedly stated falsehoods were not admissions, having erroneously adopted a semantic distinction between an admission and "primary evidence". The applicant contended that the evidence relied on by the Crown were admissions by the applicant against interest. The applicant submitted that the courts have taken a broad view of the term "admission", extending it to facts inferred from words or conduct: R v Horton (1998) 45 NSWLR 426, 104 A Crim R 306 at 317; R v Esposito (1998) 45 NSWLR 442; 105 A Crim R 27 at 42; R v Adam [1999] NSWCCA 189; 106 A Crim R 510. The applicant submitted that if the statements were not admissions against interest then this material was irrelevant and not probative of any issue in any trial of the applicant.

In respect of ground 11, the applicant submitted that the primary judge erred in her interpretation and application of the principle in Attallah. The applicant submitted that the issue in Attallah was whether compelled evidence given before the Independent Commission Against Corruption (ICAC) could be used in a prosecution under the Independent Commissions Against Corruption Act 1988, s 87. The applicant accepted that whilst material obtained under compulsion may be used for the purposes of charges brought under the enabling Act, it cannot be used for the purposes of charges under other Acts. In this regard, the applicant submitted that on a correct application of Attallah to this case, the compelled record of interview could be used by authorities for a prosecution under the Taxation Administration Act but not for a prosecution under the Crimes Act.

Crown's submissions

The Crown submitted that the primary judge's characterisation of the statements as primary evidence and not as admissions was correct. The Crown submitted that the false documents and the statements made in the interview are the conduct the subject of the charge. The Crown submitted that just as CCTV footage of an offence is not regarded as an "admission", the applicant's acts and statements were not "representations" in the manner used in the Evidence Act. The Crown contended that to treat them as an "admission" would distort the meaning of both those words: see R v G [2005] NSWCCA 291 at [19] ff.

The Crown submitted that if the conduct and statements were capable of being admissions, the primary judge did not err in in the exercise of her discretion in refusing to exclude the evidence under s 90 because the circumstances did not make it unfair to use the evidence. The Crown emphasised that the applicant is a solicitor, that she was cautioned, that she was told that she may be referred to the Crown Solicitor, that it was an offence to give false or misleading information, and that she did not exercise her right to silence. The Crown submitted that, as was the case in R v Frangulis [2006] NSWCCA 363 and Higgins v R [2007] NSWCCA 56, there was no evidence that the applicant was led to believe that what she said in the interview could not be used against her.

The Crown also submitted that Attallah is authority for the proposition that where there is a statutory scheme which permits questioning under compulsion and in the same statute makes provision for prosecution for false statements made during that questioning, s 90 will not operate in the absence of some unfairness other than the operation of the statutory scheme. The Crown also submitted that a difference in the choice of charge cannot of itself give rise to the type of unfairness to which s 90 is directed.

Consideration

In my opinion, there was no error in her Honour's characterisation of the statements made by the applicant in the course of the compelled interview, that the two bank cheques were available to her for payment of stamp duty prior to the generation of the notice of assessment of stamp duty, as the primary evidence upon which the Crown seeks to rely. Those statements were allegedly false statements as to when she had obtained the cheques and are the subject matter of the charge on the second count in the indictment. The authorities to which the applicant referred all involved statements made by an accused person charged with an offence that did not involve the falsity of the statement itself. Rather, the statements made were said to be exculpatory, and therefore to constitute a consciousness of guilt of the offence charged.

Horton provides an example. The appellant in that case was convicted of murdering the deceased by stabbing him in the chest. The principal issue concerned the intent of the appellant, who was heavily intoxicated with alcohol. The police constable who had attended the scene of the crime gave evidence that, when he asked the appellant what had happened, she had replied that the deceased "fell on the knife". That statement was not recorded. The Crown relied upon that evidence to show that, despite the quantity of alcohol that had been consumed, the appellant was not particularly affected by it as she was capable of furnishing an exculpatory statement and so was functioning cognitively.

The issue on appeal was whether the statement ought to have been excluded under the Crimes Act, s 424A(2) which provided that evidence of an admission was not admissible without a tape recording of that admission or an adoption of that admission in a later interview, unless the prosecution could establish a reasonable excuse as to why such a tape recording could not be made. That raised the question whether the statement made to the police constable was an "admission".

Wood CJ at CL, with whom Sully and Ireland JJ agreed, looked to the meaning of "admission" in the Evidence Act, which he considered to be cognate with the meaning of "admission" in the Crimes Act. His Honour noted that the definition in the dictionary to the Evidence Act was wide enough to include any form of representation, whether by conduct or by oral or written statement, so long as it was adverse to the maker's interest in the outcome of the proceedings. His Honour also resisted a narrow construction of the expression on the basis that the provision was protective legislation. His Honour therefore concluded that the term "admission" included exculpatory statements that may turn out to be harmful for the defence, and accordingly that the evidence of the appellant's statement to police should not have been admitted. The Court quashed the conviction and ordered a new trial. See also Esposito at 458 per Wood CJ at CL, James and Adams JJ agreeing on this point.

Esposito also involved a murder charge and also concerned statements that were relied upon as "constituting an implied admission of guilt, even though they were on their face exculpatory". The appellant was charged with the murder of the deceased. The Crown case was that the appellant, in the company of two other men, stabbed the deceased while committing a robbery. At issue in the trial was the appellant's ability to form the relevant intention given her consumption of a large quantity of drugs. The appellant gave a statement to the police in which she denied being in Kings Cross at about the time of the stabbing or to knowing anything about it. The answers were relied upon as admissions by conduct, in that by providing an exculpatory account for the night's events, she had lied and displayed a consciousness of guilt.

Both Horton and Esposito are an example of the principle stated in Edwards v R [1993] HCA 63; 178 CLR 193 where Deane, Dawson and Gaudron JJ had held, at 210, that:

"Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof."

See also R v Taylor (unreported, Court of Criminal Appeal NSW, 18 April 1995) per Hunt CJ at CL; R v Dellapatrona (1993) 31 NSWLR 123 at 150; R vSandford (1994) 72 A Crim R 160 at 181; R v Small (1994) 33 NSWLR 575 at 596.

The Crown referred to authorities of this Court where the principle in Edwards has been applied. It is not necessary to discuss that line of authority, which involved the application of the principle to the particular facts. This case is different, as I have explained, in that the applicant's allegedly false statements are the subject of the charge itself.

As I have concluded that the statements made by the applicant which are the subject of the charge were not admissions, it is not necessary to determine whether her Honour erred in her interpretation of the decision in Attallah which her Honour only considered should it be found that the statements made by the applicant which are the subject of the charge were not admissions. I would only make the observation that I am of the opinion that it is apparent from the wide range of persons to whom information obtained in the course of a compelled investigation under the Taxation Administration Act may be disclosed, that should an 'admission' be made in the course thereof it would not necessarily be inadmissible in proceedings for a different offence.

I would reject grounds 10 and 11.

Conclusion

In the result, I consider the charge laid under s 319 should be permanently stayed but that the appeal should otherwise be dismissed. Accordingly, I propose the following orders.

(1) Grant leave to appeal;

(2) Order that count 1 on the indictment be permanently stayed;

(3) Otherwise dismiss the appeal.

R A HULME J: I agree with Beazley P.

BELLEW J: I agree with Beazley P.

**********

Decision last updated: 12 December 2014

Medium Neutral Citation:	Beckett v R [2014] NSWCCA 305
Hearing dates:	17 April 2014
Decision date:	12 December 2014
Before:	Beazley P at [1]; R A Hulme J at [189]; Bellew J at [190]
Decision:	(1) Grant leave to appeal; (2) Order that count 1 on the indictment be permanently stayed; (3) Otherwise dismiss the appeal.
Catchwords:	CRIMINAL LAW - appeal against interlocutory judgment or order - Criminal Appeal Act 1912, s 5F - appeal from dismissal of application for permanent stay STAY OF PROCEEDINGS - permanent stay of proceedings - abuse of process - whether proceedings commenced or maintained mala fides - compelled questioning under the Taxation Administration Act 1996, s 72 - whether information or evidence obtained pursuant to s 72 can be used for the purposes of a prosecution under a taxation law only STAY OF PROCEEDINGS - permanent stay of proceedings - abuse of process - whether proceedings commenced or maintained mala fides - compulsory questioning under the Taxation Administration Act 1996, s 72 - whether officers had intention to trick, deceive or mislead CRIMINAL LAW - offences - perverting the course of justice - Crimes Act 1900, s 319 - meaning of "course of justice" - conduct prior to invocation of the jurisdiction of a court CRIMINAL LAW - right to silence - privilege against self-incrimination - whether abrogated by Taxation Administration Act 1996, ss 72, 82, 84 and 85 - implied abrogation - permissible use of information obtained in compelled interview EVIDENCE - admissions - Evidence Act 1995, s 90
Legislation Cited:	Crimes Act 1900 Criminal Appeal Act 1912 Taxation Administration Act 1996 Duties Act 1997 Evidence Act 1995 Legal Profession Act 2004 Director of Public Prosecutions Act 1986
Cases Cited:	A v Boulton [2004] FCAFC 101; 136 FCR 420 Attorney-General (NT) v Kearney [1985] HCA 60; 158 CLR 500 Baff v New South Wales Commissioner of Police [2013] NSWSC 1205 Calleija v The Queen [2012] NSWCCA 37; 223 A Crim R 391 Coco v R [1994] HCA 15; 179 CLR 427 Cunneen v Independent Commission Against Corruption [2014] NSWCA 421 Cunneen v Independent Commission Against Corruption [2014] NSWSC 1571 Daniels Corporation International Pty Ltd & Anor v ACCC [2002] HCA 49; 213 CLR 543 DPP v Attallah [2001] NSWCA 171 Edwards v R [1993] HCA 63; 178 CLR 193 Elias v R [2013] HCA 31; 248 CLR 483 Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; 178 CLR 477 Gedeon v R [2013] NSWCCA 257; 280 FLR 275 Hamilton v Oades [1989] HCA 21; 166 CLR 486 Hammond v Commonwealth [1982] HCA 42; 152 CLR 188 Higgins v R [2007] NSWCCA 56 Jago v District Court of NSW [1989] HCA 46; 168 CLR 23 Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196 Lee v The Queen [2014] HCA 20; 88 ALJR 656 Magaming v R [2013] HCA 40; 87 ALJR 1060 Moti v The Queen [2011] HCA 50; 245 CLR 456 Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494 Police v Zammitt [2007] SASC 37 Potter v Minahan [1908] HCA 63; 7 CLR 277 R v Adam [1999] NSWCCA 189; 106 A Crim R 510 R v Cornwell [2003] NSWSC 97; 57 NSWLR 82 R v Dellapatrona (1993) 31 NSWLR 123 R v Einfeld [2008] NSWCCA 215; 71 NSWLR 31 R v Esposito (1998) 45 NSWLR 442; 105 A Crim R 27 R v Frangulis [2006] NSWCCA 363 R v G [2005] NSWCCA 291 R v Horton (1998) 45 NSWLR 426; 104 A Crim R 306 R v Matovski (1989) 15 NSWLR 720 R v OM [2011] NSWCCA 109; 212 A Crim R 293 R v R.W.O. [2002] NSWCCA 133 R v Rogerson [1992] HCA 25; 174 CLR 268 R v Sandford (1994) 72 A Crim R 160 R v Seller; R v McCarthy [2013] NSWCCA 42; 232 A Crim R 249 R v Small (1994) 33 NSWLR 575 R v Taylor (unreported, Court of Criminal Appeal NSW, 18 April 1995) R v Vreones [1891] 1 QB 360 Ridgeway v The Queen [1995] HCA 66; 184 CLR 19 Sorby v Commonwealth [1983] HCA 10; 152 CLR 281 Walton v Gardiner [1993] HCA 77; 177 CLR 378 X7 v ACC [2013] HCA 29; 248 CLR 92
Category:	Principal judgment
Parties:	Barbara Maria Martha Beckett (Applicant) Regina (Respondent)
Representation:	Counsel: W G Roser SC (Applicant) S Dowling SC (Respondent) Solicitors: Matthew Hammond Solicitors (Applicant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2011/399953
Decision under appeal	Jurisdiction: 9101 Citation: R v Barbara Maria Martha Beckett Date of Decision: 2013-12-13 00:00:00 Before: Sweeney DCJ File Number(s): 2011/399953