Director of Public Prosecutions (Cth) v Kinghorn

[2020] NSWCCA 48

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Director of Public Prosecutions (Cth) v Kinghorn; Kinghorn v Director of Public Prosecutions (Cth) [2020] NSWCCA 48

Hearing dates:

10 & 11 December 2019

Date of orders:

25 March 2020

Decision date:

25 March 2020

Before:

Bathurst CJ;
Fullerton J;
Beech-Jones J

Decision:

In relation to the appeal by Mr John Kinghorn:

 

(1)   Grant leave to appeal;
(2)   Dismiss the appeal.

 

In relation to the appeal by the Commonwealth Director of Public Prosecutions:

 

(1)   Allow the appeal;
(2)   Set aside orders 1, 2 and 3 made on 30 October 2019;
(3)   Grant the parties’ liberty to apply within 21 days to seek such further orders as are necessary to give effect to the Court’s reasons.

 

In relation to the appeal by the Commissioner of Taxation and the Commissioner of the Australian Federal Police:

 (1)   Save as to ground 2 of their appeal, grant each of the Commissioner of Taxation and the Commissioner of the Australian Federal Police leave to appeal;
(2)   Refuse leave to appeal on ground 2;
(3)   Allow the appeal;
(4)   Set aside orders 1, 2, 6 and 8 made on 23 October 2019;
(5)   Vary order 8 made on 23 October 2019 to delete the words “orders 1 and 3” and substitute “order 3”;
(6)   Grant the parties’ liberty to apply within 21 days to seek such further orders as are necessary to give effect to the Court’s reasons.

Catchwords:

EVIDENCE – client legal privilege – claims for legal professional privilege by prosecuting and investigative bodies – relationship between the CDPP and persons within her office – whether relationship is sufficiently “independent” for privilege to exist over communications – Held: privilege claim upheld

 

CRIMINAL LAW – whether privilege lost under s 125(1) of Evidence Act – whether disclosure of examinations conducted under s 264 of Income Tax Assessment Act 1936 (Cth) to AFP and CDPP unlawful – whether within exception for performance of officer’s duties - s 16(2A) of Income Tax Assessment Act 1936 (Cth) – whether s 3E of Taxation Administration Act 1953 (Cth) limits operation of s 16(2A) – whether arguable construction of statute raises a “fact in issue” in the substantive proceedings within meaning of s 125(1) of Evidence Act – whether communications in “furtherance” of offence – Held: disclosures authorised by s 16(2A)

EVIDENCE – client legal privilege – whether continuation of prosecution and opposition to accused’s motion to stay proceeding is inconsistent with the maintenance of privilege in documents that fall within the prosecutorial duty of disclosure – whether results in an imputed waiver of privilege – relationship between the prosecutorial duty of disclosure and waiver or privilege – Held: no waiver of privilege – R v Bunting (2002) 84 SASR 278 not followed

Legislation Cited:

Australian Crime Commission Act 2002 (Cth)
Crimes Act 1900
Crimes Act 1914 (Cth)
Crimes (Taxation Offences) Act 1980
Criminal Appeal Act 1912
Criminal Code Act 1995 (Cth)
Criminal Procedure Act 1986
Director of Public Prosecutions Act 1984 (Cth)
Director of Public Prosecutions Regulations 1984
Director of Public Prosecutions Act 1986 (NSW)
Evidence Act 1995 (NSW)
Income Tax Assessment Act 1936 (Cth)
Legal Profession Uniform Conduct (Barristers) Rules 2015
Legal Profession Uniform Law
Sales Tax Assessment Act (No 1) 1930 (Cth)
Supreme Court Rules 1970
Taxation Administration Act 1953 (Cth)
Taxation Laws Amendment Act (No 3) 1989 (Cth)
Telecommunications (Interception and Access) Act 1979 (Cth)
Uniform Civil Procedure Rules 2005, r 1.9

Cases Cited:

Amcor Ltd v Barnes and Others [2011] VSC 341
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9
Attorney-General (NT) v Maurice (1986) 161 CLR 475; [1986] HCA 80
Benecke v National Australia Bank (1993) 35 NSWLR 110
Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1; [1952] HCA 32
Caratti v The Commissioner of Taxation (1999) 42 ATR 714; [1999] FCA 1296
Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151
Chaina v Presbyterian Church (NSW) Property Trust (No 9) [2013] NSWSC 212
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; [1997] HCA 3
Commissioner of Taxation v De Vonk (1995) 61 FCR 564; [1995] FCA 994
Commissioner of Taxation v Tamarama Fresh Juice Australia Ltd (2017) 252 FCR 417; [2017] FCAFC 154
Council of the NSW Bar Association v Archer (2008) 72 NSWLR 236; [2008] NSWCA 164
Director of Public Prosecutions (NSW) v Stanizzo [2019] NSWCA 12
DPP (Cth) v Galloway (2014) 46 VR 809; [2014] VSCA 272
DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46
Federal Commissioner of Taxation v Nestle Australia Ltd (1986) 69 ALR 445; [1986] FCA 479
Fenwick v Wambo Coal Pty Ltd (No 2) [2011] NSWSC 353
Gould v Director of Public Prosecutions (Cth) (2018) 333 FLR 352; [2018] NSWCCA 109
Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708
Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641; [1937] HCA 58
Hamilton v State of New South Wales [2016] NSWSC 1213
JB v R [2015] NSWCCA 182
Kang v Kwan [2001] NSWSC 698
Kaye v Woods (2016) 309 FLR 200; [2016] ACTSC 87
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672
Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68
Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
Marwan v Director of Public Prosecutions [2019] NSWCCA 161
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50
PPC v Styliano [2018] NSWCCA 300
R (Cth) v Petroulias (No 22) (2007) 213 FLR 293; [2007] NSWSC 692
R v Apostilides (1984) 154 CLR 563; [1984] HCA 38
R v Brown (Winston) [1998] AC 367
R v Bunting (2002) 84 SASR 378; [2002] SASC 412
R v Keane [1994] 1 WLR 746
R v Kinghorn (No 4) [2019] NSWSC 1420
R v Kinghorn (No 5) [2019] NSWSC 1473
R v Kinghorn [2019] NSWSC 553
R v Leach [2019] 1 Qd R 459; [2018] QCA 131
R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197
R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76
R v Spiteri (2004) 61 NSWLR 369; [2004] NSWCCA 321
R v Yates (1991) 102 ALR 673; (1991) 56 A Crim R 29
Rich v Harrington [2007] FCA 1987
Saunders v Federal Commissioner of Taxation (1988) 19 ATR 1289; [1988] FCA 136
Seven Network Ltd v News Ltd [2005] FCA 142
Singtel Optus Pty Ltd v Weston (2011) 81 NSWLR 526; [2011] NSWSC 1083
Strickland (A Pseudonym) v Director of Public Prosecutions (Cth) [2018] HCA 53; 93 ALJR 1
Sydney Airports Corporation Ltd v Singapore Airlines Ltd & Qantas Airways Ltd [2005] NSWCA 47
Tran v R [2017] NSWCCA 93
Waterford v The Commonwealth (1987) 163 CLR 54
Watson v McLernon [2000] NSWSC 306
Zemanek v Commonwealth Bank of Australia (Federal Court of Australia, Hill J, 2 October 1997, unreported)
Zentai v O’Connor (No 2) [2010] 183 FCR 180; FCA 252

Texts Cited:

Australian Law Reform Commission (Interim) Report No 26
Australian Law Reform Commission Report No 38
CDPP, Statement of Disclosure in Prosecutions Conducted by the Commonwealth, (March 2017)
Evidence Bill 1991 (Cth)
Evidence Bill 1993 (Cth)
Evidence Bill 1994 (Cth)
Explanatory Memorandum to the Taxation Laws Amendment Bill (No 3) 1989 (Cth)
Second Reading Speech: Senate, Parliamentary Debates (Hansard), 15 May 1989
W Hohfeld, “Fundamental Legal Concepts as Applied in Judicial Reasoning” (1913) 23 Yale Law Journal 16

Category:

Principal judgment

Parties:

Commonwealth Director of Public Prosecutions
Commissioner of the Australian Taxation Office
Commissioner of the Australian Federal Police
John Alan Kinghorn

Representation:

Counsel:
JC Giles SC; KD Ginges; H Mann; AF Garsia (CDPP)
C Lenehan SC; M Varley (ATO and AFP)
B Walker SC; G Huxley; H Atkin (Mr Kinghorn)

  Solicitors:
Commonwealth Director of Public Prosecutions (CDPP)
Australian Government Solicitor (ATO & AFP)
King & Wood Mallesons (Mr Kinghorn)

File Number(s):

2017/304079 & 2017/304100

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Criminal

Citation:

[2019] NSWSC 1420; [2019] NSWSC 1473

Date of Decision:

18 October 2019

Before:

Adamson J

File Number(s):

2017/304079 & 2017/304100

Judgment

1. THE COURT: This proceeding involves competing appeals and applications for leave to appeal from interlocutory orders made by Adamson J in respect of an application by Mr John Kinghorn for access to documents produced on subpoena by the Australian Taxation Office (the “ATO”), the Australian Federal Police (the “AFP”) and the Commonwealth Director of Public Prosecutions (the “CDPP”). The documents were the subject of claims for legal professional privilege (and its equivalents in the Evidence Act 1995 (NSW)). Mr Kinghorn seeks the documents to support his pending application to permanently, or at least temporarily, stay his trial on two charges under s 135.1(7) of the Criminal Code Act 1995 (Cth) (the “Code”) on account of the dissemination of transcripts of his compulsory examinations under s 264 of the Income Tax Assessment Act 1936 (Cth) (the “ITAA”) to those involved in his prosecution.

2. In a judgment dated 18 October 2019 her Honour, inter alia, rejected Mr Kinghorn’s contention that privilege did not attach to the documents in question as they were made in furtherance of the commission of an offence, namely a contravention of the “secrecy provision” in s 16(2) of the ITAA (Evidence Act, s 125(1)(a); R v Kinghorn(No 4) [2019] NSWSC 1420 at [116]; “Kinghorn (No 4)”). However, her Honour accepted Mr Kinghorn’s contention that there had been a waiver of privilege attaching to certain communications with and, in respect of some documents, between the ATO, the AFP and the CDPP while upholding the claim for privilege in respect of the balance (Kinghorn (No 4) at [156] and [169]).

3. On 28 October 2019, her Honour published a further judgment addressing whether privilege subsisted in respect of particular documents (R v Kinghorn (No 5) [2019] NSWSC 1473; “Kinghorn (No 5)”). Her Honour made orders giving effect to these judgments on 23 October 2019 and 30 October 2019. Her Honour also ordered that the operation of so much of those orders which required the production of documents in respect of which privilege was found to be waived, be stayed pending the outcome of any appeal.

4. Pursuant to s 5F(2) of the Criminal Appeal Act 1912, the CDPP appeals against the orders made by her Honour for the production of documents in its possession, in respect of which privilege was found to be waived, and granting Mr Kinghorn access to those documents. The essence of grounds 1 to 3 of her appeal is that her Honour erred in finding that there was an imputed waiver of privilege by reason of a supposed inconsistency between the CDPP’s conduct in prosecuting Mr Kinghorn and opposing his application for a stay on the one hand while not disclosing privileged documents said to fall within its prosecutorial duty of disclosure on the other.

5. Each of the Commissioner of Taxation (the “Tax Commissioner”) and the Commissioner of the AFP (the “AFP Commissioner”) seek leave to appeal under s 5F(3) of the Criminal Appeal Act against orders made by her Honour for the production of documents in their possession, in respect of which privilege was found to be waived, and granting Mr Kinghorn access to those documents. Ground 1 of their notice appeal raises the same point as grounds 1 to 3 of the CDPP’s appeal. Ground 2 of their notice of appeal contends that her Honour also erred in finding an imputed waiver of privilege held by them by reason of the conduct of the CDPP who was not the privilege holder. Mr Kinghorn contends that neither of the applications for leave to appeal made by the Tax Commissioner nor the AFP Commissioner were competent as each of them was not a “party” to the proceedings at first instance.

6. Mr Kinghorn also seeks leave to appeal pursuant to s 5F(3) but in his case from so much of her Honour’s orders that declined to grant access to the balance of some of the documents produced on subpoena. By ground 1 of his notice appeal Mr Kinghorn contends that her Honour erred in finding that s 125(1) of the Evidence Act was not engaged in respect of the documents the subject of the claim for privilege. By ground 2 of his notice of appeal he contends that the relationship between the CDPP and a member of her office was not sufficiently “independent” to enable privilege to attach to a communication between them that was recorded in a document over which a claim for privilege was upheld. By ground 3 of his notice of appeal Mr Kinghorn seeks to challenge her Honour’s finding that privilege was only waived in respect of part of a particular document.

7. For the reasons that follow, the Court concludes that the Tax Commissioner and the AFP Commissioner should be treated as parties to the appeal, that they be granted leave to appeal in respect of ground 1 of their appeal but refused leave in respect of ground 2, that Mr Kinghorn be granted leave to appeal but that his appeal be dismissed and that the CDPP, the Tax Commissioner’s and the AFP Commissioner’s appeals be allowed.

8. The balance of these reasons is structured as follows:

Background		[9]
The Proceedings		[19]
The Stay Motion and the Subpoenas		[22]
Basis for Privilege Findings		[32]
Grounds of Appeal and Leave to Appeal		[42]
Ground 2 of Mr Kinghorn’s Appeal: “Independence” and Privilege		[50]
Document 11	[52]
Primary Judge’s Reasoning	[54]
Submissions	[55]
“Independence”	[57]
Analysis	[60]
Ground 1 of Mr Kinghorn’s Appeal: Communications in Furtherance of an    Offence		[68]
Legislative Provisions	[69]
Primary Judge’s Reasoning	[86]
The Authorities	[87]
Scope of Duties	[96]
Section 3E of the TAA	[100]
Section 16(2A) and the Companion Principle	[110]
Furtherance	[120]
Grounds 1 to 3 of the CDPP Appeal: Waiver of Privilege and the Duty of    Disclosure		[123]
The Duty of Disclosure	[124]
Primary Judge’s Reasoning	[143]
Waiver of Privilege and Prosecutor’s Duties	[152]
Additional Basis for Disclosure	[173]
Conclusion on Grounds of Appeal	[177]
Ground 2 of Commissionersl Appeal: Commissioners’ Privilege		[184]
Ground 3 of Mr Kinghorn’s Appeal (and Notice of Contention): Shouldice    Advice		[188]
Disposition		[197]

Background

9. From around 1997, the ATO conducted an investigation into the tax affairs of Mr Kinghorn. Of particular interest to the ATO was whether or not he had effective control over two companies incorporated in Jersey, namely Kalomo Corporation Limited (“Kalomo Corporation”) and Kalomo Pacific Leasing Limited (“Kalomo Pacific”). These companies are alleged to have earnt income from their partial ownership of various businesses and assets in Australia. The ATO contended that income should have been attributed to Mr Kinghorn.

10. Over five days between 4 May 2005 and 14 June 2005, Mr Kinghorn attended and answered questions during compulsory examinations conducted pursuant to s 264 of the ITAA. At the commencement of the examinations he was sworn. He was informed that making a false or misleading statement was an offence under ss 8K or 8N of the Taxation Administration Act 1953 (Cth) (the “TAA”) and that a refusal to answer a question was an offence under s 8D. He was also informed that the privilege against self‑incrimination would not excuse him for failing to answer a question (see Commissioner of Taxation v De Vonk (1995) 61 FCR 564 at 583; [1995] FCA 994).

11. On 31 January 2007, an ATO officer, Mr Walton, sent a memorandum to the CDPP entitled “pre-investigation review” (the “2007 disclosure”). The memo stated its purpose was to provide the CDPP with background information on a soon to be completed audit by the “High Wealth Individual Task Force”, namely, the audit into Mr Kinghorn. The memo stated that “preliminary advice” was being sought from the CDPP as to whether an investigation is likely to be “fruitful and worth attempting, based on the current evidence available and the likelihood of obtaining further admissible evidence”. The material outlined the ATO’s suspicions in relation to Mr Kinghorn’s control of Kalomo Corporation and Kalomo Pacific. It also stated:

“The ATO has substantial circumstantial evidence suggesting that Mr Klinghorn owns and or controls Kalomo Corporation and Kalomo Pacific. Much of this evidence was reviewed and tested ... in a series of section 264 interviews conducted with Mr Kinghorn … Transcripts of these interviews are attached.” (emphasis added)

12. The memorandum recounted Mr Kinghorn’s denial of beneficial ownership of Kalomo Corporation and Kalomo Pacific. It referred to the possibility of offences having been committed under s 29D of the Crimes Act 1914 (Cth), ss 134.2 and 137.1 of the Code and s 8D of the TAA.

13. On 10 October 2007, Mr Walton approved a memorandum sent to the AFP entitled “Referral to the AFP” concerning Mr Kinghorn (the “AFP referral”). It requested an “[i]nvestigation” and identified the “[a]llegation/[i]ncident” as “[d]efraud the Commonwealth”, “[o]btain benefit by [d]eception” and “[f]alse and [m]isleading statement”. The memorandum also referred to the receipt of overseas income by Kalomo Corporation and Kalomo Pacific and the ATO’s opinion that Mr Kinghorn controlled those companies. The memorandum made a similar statement to that extracted above and noted that the “transcripts” of the s 264 examinations “are available”.

14. The primary judge noted that the request for advice from the CDPP was allocated to an employed solicitor, Ms Shouldice. Ms Shouldice provided that advice on 5 February 2008 (the “Shouldice advice”). Although privilege was claimed over the advice by the Tax Commissioner, the primary judge noted that parts of it had it been disclosed, including statements to the effect that a “prima facie case existed against Kinghorn … although a criminal investigation would need to be undertaken to obtain further evidence” (Kinghorn (No 4) at [21] to [22]). The primary judge concluded that privilege over the Shouldice advice had been waived save for Parts 4 to 7 (Kinghorn (No 4) at [206]). The CDPP (and the Tax Commissioner) challenges that finding by its attack on the primary judge’s conclusion in relation to waiver (grounds 1 to 3). Mr Kinghorn challenges the primary judge’s refusal to grant access to the balance of the Shouldice advice (ground 3) and otherwise seeks to support the relevant order of the primary judge by a notice of contention.

15. Section 3G of the TAA came into force on 12 April 2007. It was repealed from 16 December 2010. Section 3G empowered the Tax Commissioner to disclose information under a taxation law (which includes s 264 examinations) to a “Project Wickenby officer” which was defined as a person who holds office in an agency in, or supporting, the “Project Wickenby taskforce”. On 26 February 2008, Mr Walton sought “Wickenby endorsement for s 3G TAA purposes” to the “Project Wickenby Call-Over Panel”. One of the purposes of the request was “[t]o seek Wickenby endorsement for s 3G TAA purposes in regard to a referral from the ATO to the AFP concerning Mr John Kinghorn”. The primary judge found that such an endorsement was granted (Kinghorn (No 4) at [24]). There was no challenge to that finding, however the endorsement was granted after the 2007 disclosure and AFP referral.

16. In her judgment, the primary judge outlined the course of events between 2004 and when Mr Kinghorn was ultimately charged on 6 October 2017. Given that the issues on appeal are narrower than those at first instance it is only necessary to note two matters about that period.

12. First, before the primary judge the CDPP identified fourteen occasions between 31 January 2007 and August 2019 in which information obtained as a result of the s 264 examinations (the “s 264 information”) was disclosed by the ATO to either the CDPP or the AFP. The first two occasions were the 2007 disclosure and the AFP referral which the CDPP ultimately contended, and Mr Kinghorn denied, were authorised by s 16(2A) of the ITAA. The CDPP (belatedly) contended that the remaining twelve disclosures were authorised by either s 3G of the TAA (as in force prior to its repeal), item 3 of the table in s 355-70 of the TAA or s 355-175 of the TAA, which came into force on 17 December 2010. Before the primary judge, Mr Kinghorn only sought to challenge the legal authority to make the 2007 disclosure and the AFP referral. The primary judge noted that Mr Kinghorn intends to challenge the basis for all the disclosures at the hearing of his motion seeking a stay of the indictment (Kinghorn (No 4) at [96] to [97]).

13. Second, whether the delay between the time of Mr Kinghorn’s tax audit and the commencement of his prosecution has any legal consequences was not an issue before this Court or the primary judge.

The Proceedings

19. Mr Kinghorn was committed for trial on 19 June 2018. He was arraigned in the Supreme Court on 3 August 2018 on an indictment which charged him with three counts. The first count charged him with defrauding the Commonwealth contrary to s 29D of the Crimes Act 1914 (Cth). The other two counts charged him with two offences under s 135.1(7) of the Code. The counts under s 135.1(7) allege that between 6 March 2004 and 10 March 2007 he made a representation to the Tax Commissioner that he did not control either Kalomo Corporation or Kalomo Pacific with the intention of dishonestly influencing the Tax Commissioner in the exercise of his duties as a public official.

20. On 8 October 2019, the CDPP successfully applied to substitute two indictments for the original indictment so that the charge under s 29D of the Crimes Act was included on one indictment and the two charges under s 135.1(7) of the Code were included on the other. According to the primary judge this was because of a (belated) acceptance by the CDPP that the s 264 information could not be used as evidence or otherwise in support of the charge of defrauding the Commonwealth (Kinghorn (No 4) at [8]). On 17 October 2019, the CDPP filed a notice of discontinuance of the indictment containing the charge under s 29D and confirmed that she had no intention of prosecuting Mr Kinghorn on that charge in the future. Hence, Mr Kinghorn faces just the two charges under s 135.1(7) of the Code. Each time he was arraigned Mr Kinghorn pleaded not guilty to all charges.

21. The particulars provided by the CDPP in relation to the charges under s 135.1(7) confirm that it is intended to use the s 264 information as evidence in support of those charges. For example, on 19 March 2018 the CDPP wrote to Mr Kinghorn’s solicitors responding to a request for particulars. In relation to the charges under s 135.1(7), the response referred to Mr Kinghorn’s answers in his s 264 examination. Enclosed with the letter was a schedule identifying the occasions during the s 264 examination in which he denied control over the “Kalomo entities”. Similarly, the statement of prosecution facts identified pages of the transcript of the s 264 examinations as evidence supporting the making of the relevant representations for the purposes of the offence under s 135.1(7) of the Code.

The Stay Motion and the Subpoenas

22. On 15 April 2019, Mr Kinghorn filed a Notice of Motion which was returnable before the primary judge (the “stay motion”). Prayer 1 of the stay motion sought a temporary stay of the proceedings pending disclosure of certain material listed in Schedule A to the motion, namely particulars of the disclosure of the s 264 examinations to AFP and CDPP officers. Prayer 2 sought a permanent stay of the proceedings. Prayer 3 is an alternative to prayer 2 and sought an order that the proceedings be temporarily stayed until, in effect, there was appointed a “prosecution team” that had not listened to the tapes or read a transcript of the s 264 examinations. Prayer 4 sought an additional order to prayer 3 excluding persons who had listened to the tape of the s 264 examinations or read a transcript of the examinations from giving evidence, assisting in the prosecution or being briefed on behalf of the CDPP.

23. Mr Kinghorn’s stay motion seeks to invoke the “fundamental principle” (also described as the “accusatorial principle”), that it is for the prosecution to prove the guilt of an accused person and its “companion rule”, that “an accused person cannot be required to testify to the commission of a charged offence” (see Strickland (A Pseudonym) v Director of Public Prosecutions (Cth) [2018] HCA 53; 93 ALJR 1 at [95]; “Strickland”). On his behalf it is, or will be, contended that the use of the s 264 information as part of his prosecution for offences under s 135.1(7) of the Code violates these principles. Mr Kinghorn places particular reliance on the judgment of the Queensland Court of Appeal in R v Leach [2019] 1 Qd R 459; [2018] QCA 131 (“Leach”), in which a conviction for various fraud offences was set aside by reason of the possession, use and deployment by the prosecution of the transcript of an examination of the accused under s 264 of the ITAA.

24. The written submissions filed by the parties before the primary judge in relation to the stay motion confirm that one of the issues between the parties concerns the scope of Leach. During argument on the appeal, Senior Counsel for the CDPP, Mr Giles SC, stated that at the hearing of the stay motion the CDPP will not contend that Leach was wrongly decided. Instead, the CDPP will contend that Leach does not address the circumstance where the making of a false statement during a s 264 examination is an element or an aspect of the charge. The CDPP will submit that, as a matter of necessary intendment, a charge which involves or is constituted by the making of a false statement at a s 264 examination does not engage the “accusatorial principle” or the “companion rule”, ie, it does not involve him being “required to testify to [prove] the commission of [the] charged offence” (Strickland at [95]) but instead his testimony constitutes the commission of the charged offence.

25. This Court was not asked to resolve the debate between the parties about the scope and application of Leach in this context. Each party appeared to accept each other’s case in this respect as arguable.

26. The scope of the decision in Leach is not the only issue that the primary judge was advised that would be resolved in determining the stay motion. At the time of the decision in Kinghorn (No 4) the parties’ submissions on the (pending) stay motion revealed that there was an issue as to whether, if the Leach issue was determined in favour of Mr Kinghorn, any relief should be granted and, if so, what relief? The submissions filed on behalf of Mr Kinghorn in support of the stay motion contended that the “extensive” and intensive use of the s 264 information in support of his prosecution warranted the grant of a permanent stay. The submissions rely on a passage from Strickland (at [106]) to the effect that a “permanent stay of prosecution should only ever be granted where there is such a fundamental defect in the process leading to trial that nothing by way of reconstitution of the prosecutorial team or trial directions or other such arrangements can sufficiently relieve against the consequences of the defect as to afford those charged with a fair trial”.

27. The submissions filed on behalf of the CDPP, in opposition to the grant of a permanent stay, contended that Strickland is distinguishable as the examinations in that case were conducted for an unlawful purpose, whereas in this case it was said that the examinations of Mr Kinghorn did not involve any “illegality or egregious misconduct”. Insofar as Mr Kinghorn pressed prayer 3 of the stay motion, the CDPP’s submissions before the primary judge contended that the authorities did not require that “a new investigation team be appointed even after finding … that the transcripts should not have been provided to the prosecution team”. As noted below, this latter submission was modified during the appeal.

28. Consistent with the submissions made on his behalf in relation to the stay motion, from a time before the stay motion was filed Mr Kinghorn’s solicitors sought the disclosure of evidence concerning the extent of the dissemination and use of the s 264 information. In correspondence with the CDPP, they contended that, consistent with the duties of a prosecutor, the CDPP was obliged to disclose the nature and extent of any dissemination by the ATO of the s 264 information and what use had been made of it. In an endeavour to prove the extent of the use of the s 264 information, subpoenas were issued on behalf of Mr Kinghorn to each of the CDPP, the Tax Commissioner and the AFP Commissioner seeking production of documents directed to that issue. The CDPP and the Commissioners filed notices of motion to set aside the subpoenas on the basis that the material sought lacked any legitimate forensic purpose. On 10 May 2019, the primary judge dismissed those motions (R v Kinghorn [2019] NSWSC 553).

29. Thereafter, each of the CDPP, the AFP Commissioner and the Tax Commissioner filed notices of motion seeking to prevent access to various documents produced in answer to the subpoenas on the basis that those documents were subject to privilege (the “access motions”). It was these motions that were determined by her Honour in Kinghorn (No 4). As noted by her Honour, it became apparent during the hearing of the access motions that Mr Kinghorn contended that the disclosure of the s 264 information to the AFP and the CDPP in the 2007 disclosure and AFP referral was unlawful and that therefore privilege did not attach to communications constituting or concerning the disclosure. It was also contended that the Crown’s opposition to the stay motion was inconsistent with the maintenance of the privilege and that the Court should find that there was imputed waiver of the privilege in accordance with Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 at [28] to [35]; “Mann v Carnell” (Kinghorn (No 4) at [6]). The latter submission was expanded upon such that it was also contended that the CDPP’s maintenance of the prosecution of Mr Kinghorn was said to be inconsistent with the maintenance of privilege over communications that contained or related to the s 264 information.

30. Between the time of the filing of the stay motion and the decision in Kinghorn (No 4) there was a disclosure of some information by the CDPP concerning the extent of the dissemination and use of the s 264 information. This included the table describing the fourteen disclosures of s 264 information noted above (at [17]), as well as another table setting out a “summary of contact with s 264 examination transcripts amongst CDPP [staff] and Counsel retained”. Even so, before the primary judge the CDPP maintained the position noted in its submissions above and Mr Kinghorn pressed for production of documents the subject of the claims for privilege.

31. At the hearing of this appeal, Mr Giles modified the CDPP’s position significantly from what was stated in her submissions concerning the stay motion that were before the primary judge as noted above (at [27]). Mr Giles accepted that, if the Leach issue was resolved against the CDPP, then an “order in the nature of [prayer] 3 would follow”, although no doubt, in that event, Mr Kinghorn would still press his claim for a permanent stay. In any event, Mr Giles’ concession in this Court is not relevant to determining whether any aspect of the primary judgment was affected by error. It may, however, be relevant to the future disposition of the stay motion.

Basis for Privilege Findings

32. The grounds of appeal in this Court were mostly directed to her Honour’s findings concerning the legality of the 2007 referral and the AFP disclosure and imputed waiver. Only one of the grounds was directed to the issue of whether the CDPP, the AFP Commissioner or the Tax Commissioner had otherwise established that the relevant communications satisfied ss 118 or 119 (or both) of the Evidence Act. Nevertheless, to address the issues on the appeal it is necessary to identify the bases on which privilege was established, albeit it was also found that it was waived in respect of some documents.

33. Two matters should be noted.

34. First, the primary judge addressed whether the Evidence Act or the common law applied. Before the primary judge the parties agreed that, by operation of s 131A of the Evidence Act, all the issues concerning access to the documents produced by the CDPP were governed by the Evidence Act (Kinghorn No 4) at [69]). However, as s 131A has been held to only apply to the circumstance that the person producing the documents is also the person that objects to access (Singtel Optus Pty Ltd v Weston (2011) 81 NSWLR 526; [2011] NSWSC 1083 at [27]), it was contended on behalf of Mr Kinghorn that the common law applied so far as the CDPP objected to him having access to documents produced by the AFP Commissioner and the Tax Commissioner (and vice versa).

35. The primary judge accepted Mr Kinghorn’s contention. In doing so, her Honour rejected a contention by the CDPP that the provisions of the Evidence Act dealing with privilege were extended to the circumstance where one party produces the document and another party objects to access being granted by Uniform Civil Procedure Rules 2005 (“UCPR”) r 1.9(4A) which provides:

“(4A)   If a document is produced, and a person objects to the production of the document on the ground that the document is a privileged document, access to the document must not be granted unless and until the objection is overruled.”

36. This rule was made applicable to proceedings on indictment in the Supreme Court by r 75.3(1)(a) of the Supreme Court Rules 1970. The definition of “privileged document” in the Dictionary to the UCPR incorporates the relevant Evidence Act provisions. Relying on Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151 at [8] to [11] which confines the operation of UCPR r 1.9 to objections to production of documents and not objections to access, the primary judge held that the common law applied to so much of the application that involved the CDPP objecting to access to documents produced by the AFP Commissioner or the Tax Commissioner (Kinghorn (No 4) at [75]). There was no challenge to this conclusion. That said, the primary judge did not discern any difference between the Evidence Act and the common law so far as issues of waiver and illegality were concerned (in relation to waiver: see Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46 at [30] to [32]; “Expense Reduction”). On this appeal none of the parties submitted to the contrary.

37. Second, it was necessary for the primary judge to identify the “lawyer” and the “client” for the purposes of applying ss 118 and 119 of the Evidence Act. Section 118 provides for privilege in respect of, inter alia, confidential communications between the “client” and a “lawyer” for the dominant purpose of the lawyer providing advice to the client. Section 119 provides for privilege against disclosure in respect of, inter alia, confidential communications between the “client and another person” or between a “lawyer acting for the client and another person” for the dominant purpose of the “client” being provided with professional legal services relating to an Australian or overseas proceeding in which the “client” is, or might be or might have been, a party. Section 117 defines “lawyer” as meaning, inter alia, an “Australian lawyer” and an employee or agent of an “Australian lawyer” (where “Australian lawyer” takes its meaning from s 6 of the Legal Profession Uniform Law and its predecessors from time to time).

38. Section 117 also defines “client” as including “a person or body who engages a lawyer to provide legal services” or who “employs a lawyer (including under a contract of service)”, an “an employee or agent of a client” and

“(c)   an employer of a lawyer if the employer is:

(i)   the Commonwealth or a State or Territory, or

(ii)   a body established by a law of the Commonwealth or a State or Territory”.

39. So far as the CDPP is concerned, s 5 of the Director of Public Prosecutions Act 1984 (Cth) (the “CDPP Act”) establishes the Office of the Director of Public Prosecutions, the positions of Director of Public Prosecution and an Associate Director and provides that the Office shall consist of the Director and members of the staff of the Office. Section 5 also vests control of the “Office” in the CDPP. Section 16 establishes the right of the CDPP and the staff to practice in their official capacity. Section 6 specifies various functions of the CDPP (ie, the Director) including the institution and conduct of prosecutions for indictable and summary offences against the law of the Commonwealth (CDPP Act, s 6(1)(a) to (e)). Further, the combination of s 6(2) and paragraph 3(1)(f) of the Director of Public Prosecutions Regulations 1984 (the “CDPP Regulation”) confers on the CDPP the function of “giv[ing], to an authority of the Commonwealth, legal advice on law enforcement or a matter relating to law enforcement, whether or not the advice is for the purposes of a particular investigation”.

40. The primary judge identified two lawyer client relationships for the purpose of applying ss 118 and 119 of the Evidence Act. First, citing this Court’s decision in Director of Public Prosecutions (NSW) v Stanizzo [2019] NSWCA 12 (“Stanizzo”), her Honour found that the relationship between the CDPP and the solicitors employed within the Office of the CDPP was sufficient for the CDPP to be regarded as the “client for the purposes of legal advice provided by her staff or by a Crown Prosecutor” (Kinghorn (No 4) at [63] and [65]). Second, her Honour also found that “[i]n cases where the ATO or the AFP seeks advice from the [C]DPP, they are the clients and the [C]DPP is the lawyer” (Kinghorn (No 4) at [64]). This finding is consistent with the analysis of McKerracher J in Zentai v O’Connor (No 2) [2010] 183 FCR 180; FCA 252 at [107] to [111] and [121]. The primary judge added that it is “a matter of judgment in any particular case whether the [C]DPP is ... providing legal advice as agents of the [C]DPP and not as lawyers to the [C]DPP as their client, or whether the [C]DPP is the client and the legal officers advising the [C]DPP are the lawyers” (Kinghorn (No 4) at [65]).

41. The first of these findings was challenged by Mr Kinghorn on this appeal. He also contended that the one communication could not be referable to both categories or relationships of lawyer and client.

Grounds of Appeal and Leave to Appeal

42. In his amended notice of appeal Mr Kinghorn raises three grounds:

“1. Her Honour erred in determining (at [116]) that s 125(1)(a) of the Evidence Act 1995 (NSW) was not engaged.

2.   Her Honour erred by not considering or determining whether Document 11 … was subject to a valid claim of privilege by the Director of Public Prosecutions …. Her Honour ought to have held that, in the case of Document II and in all other cases in which Office solicitors were involved in preparing advice to be given by or on behalf of the Director to another Commonwealth authority, the Office solicitors lacked the degree of independence from the Director necessary to act as the Director’s legal adviser.

3   Her Honour erred in ruling that there was no waiver in respect of sections 4-7 of Ms Shouldice’s advice dated 5 February 2008.”

43. The CDPP’s grounds of appeal were as follows:

“1.   The trial judge erred in holding (J[127]-[128], [144]-[146]) that:

(a)   the prosecutorial duty of disclosure did or may require disclosure to the accused of information subject to client legal privilege (CLP); and

(b)   continuation of the prosecution, once the trial judge held that disclosure is or may be required to comply, resulted in a waiver of that CLP.

The trial judge should have held that the decision to disclose information and the decision to continue a prosecution are solely responsibilities of the appellant, and do not result in waiver of CLP.

2.   The trial judge erred in holding (J[156]) that there was an inconsistency between the prosecution’s opposition to the motion filed by the accused on 15 April 2019 (Motion) and the maintenance of CLP in information recorded in some of the subpoenaed documents, which necessarily constituted a waiver of CLP over that particular information.

3. Further to ground 2, the trial judge erred in holding (J[156], [168] and [169]) that:

(a) in the circumstances of the charges before the Court (including the particulars), it was highly relevant for the accused to show, on the hearing of the Motion, the manner and extent of the use of the transcripts of the accused compulsory examinations under s 264 of the Income Tax Assessment Act 1936 (Cth); and

(b)   by application of the prosecutorial duty of disclosure, the prosecution was required to disclose information as to the manner and extent of that use prior to the hearing of the Motion, with the consequence that CLP in that information was waived.”

44. Grounds 1(a) to (c) of the AFP Commissioner’s and Tax Commissioner’s notices of appeal are the same as the CDPP’s grounds of appeal. In addition, ground 2 of the AFP Commissioner’s and the Tax Commissioner’s notices of appeal state:

“2.   The primary judge erred in finding that the act taken by the Crown in maintaining the prosecution and/or opposing the accused’s application for a permanent stay was inconsistent with the maintenance of privilege held by the Commissioners: R v Kinghorn (No 4) at [157]-[169].”

45. Ground 2 of Mr Kinghorn’s appeal is the only ground which attacks the basis upon which privilege was established. Hence it is appropriate to address it first and then consider ground 1 of Mr Kinghorn’s appeal which concerns whether privilege was lost by the operation of s 125(1) of the Evidence Act. Ground 3 of Mr Kinghorn’s appeal is in part predicated on the maintenance of the primary judge’s approach to imputed waiver, and thus it will be addressed after the grounds raised by the CDPP, the AFP Commissioner and the Tax Commissioner on that topic are addressed. However, before addressing these grounds, it is first necessary to address the questions of leave and standing that arose.

46. Section 5F(2) of the Criminal Appeal Act confers on the “Attorney General or the Director of Public Prosecutions” a right of appeal to this Court against an interlocutory judgment or order given or made in, inter alia, criminal proceedings of the kind against Mr Kinghorn. Section 5F(3) enables “any other party” to those proceedings to seek the leave of this Court (or the Court below) to appeal against any such order. It was common ground that the CDPP had a right of appeal against the interlocutory orders made by the primary judge under s 5F(2). There is no doubt that Mr Kinghorn requires leave to appeal under s 5F(3)(a). Given that ground 3 of his grounds of appeal is bound up with the CDPP’s grounds of appeal and the balance were otherwise fully argued, he will be granted leave to appeal.

47. Mr Kinghorn contended that neither the Tax Commissioner or the AFP Commissioner were a “party” to the proceedings before the primary judge and thus they do not have standing to seek leave under s 5F(3). As already explained, each of the AFP Commissioner and the Tax Commissioner were subpoenaed and required to produce documents to the Court. Each of them appeared before the primary judge and made claims for privilege in their own right over the documents in their possession in respect of which access was sought. The orders the subject of their appeal are apt to affect their “rights”.

48. In PPC v Styliano [2018] NSWCCA 300, this Court held that a so‑called “Principal Protected Confider”, as defined in s 295 of the Criminal Procedure Act 1986, (“CPA”) who contests the making of orders for the production of, and access to, their counsellor’s notes are in substance “parties” and can seek leave to appeal under s 5F(3) (at [33] per Macfarlan JA with whom Rothman and RA Hulme JJ agreed at [40] and [71]). Generally, a person who “participates in a hearing” and is “directly affected by orders made as a consequence of the hearing” are parties for the purposes of s 5F(3) (Tran v R [2017] NSWCCA 93 at [20]). Mr Kinghorn’s written submissions contend that those principles do not apply in relation to “Crown authorities” because of the rights of appeal conferred on the Attorney‑General and Director of Public Prosecutions by s 5F(2). However, that is no warrant for construing s 5F(3) so as to exclude statutory office holders whose “rights” are relevantly affected by an order or judgment from the concept of “party”.

49. It follows that the AFP Commissioner and the Tax Commissioner are to be treated as “part[ies]” to the proceedings before the primary judge. Given the strength of grounds 1(a) to (c) of their notices of appeal, they will be granted leave to appeal in respect of those grounds. Leave to raise ground 2 is refused for the reasons explained below ([184] to [187]).

Ground 2 of Mr Kinghorn’s Appeal: “Independence” and Privilege

50. The text of this ground is set out above. It relates to so called Document 11 which was produced by the CDPP and was the subject of a claim for privilege by the CDPP. It follows that the issue of whether the document is privileged is governed by the Evidence Act and not the common law (see [34]).

51. In summary, Mr Kinghorn contended that the CDPP cannot claim any privilege as the “client” in respect of advice or communications she receives from persons within her office that only relate to her function of advising other government authorities as the advice is said to lack the requisite “independent character” (Waterford v The Commonwealth (1987) 163 CLR 54 at 62; [1987] HCA 25; “Waterford”). It is contended that Document 11 is a document recording such a communication.

Document 11

52. Before the primary judge Document 11 was described in an exhibit to an affidavit sworn by a solicitor employed by the CDPP, Berdj Tchakerian, which listed documents over which the CDPP claimed privilege. The exhibit consisted of a schedule of documents. It stated that Document 11 was dated 22 July 2014, that its author, Mr Kapeleris, was a solicitor employed in the Office of the CDPP and that it was addressed to a Deputy Director of the Office of the CDPP, Mr Shane Kirne. The document was described as an “Internal CDPP Minute seeking approval re pre-brief advice to AFP”. The schedule stated that “advice privilege” was claimed over the entire document (ie, s 119) and that it fell within category “H”. In respect of documents in category H, Mr Tchakerian’s affidavit stated, inter alia:

“These documents … [are] … confidential documents prepared by the Office for the dominant (if not sole) purpose of providing legal advice to the Directors ... or for providing the Directors with professional services in relation to the prosecution of the Accused.” (emphasis added)

53. Some further context to the “pre-brief advice to AFP” is provided elsewhere in Mr Tchakerian’s affidavit. In 2011 the AFP requested advice from the Office of the CDPP “in relation to potential charges and for assistance with finalising the Mutual Assistance Request”. Mr Tchakerian stated that in July 2013 Senior Counsel “was retained by the Office to provide advice to the Director in relation to potential charges against the Accused”. Mr Tchakerian stated that “[o]n or around 15 September 2014, the Office provided to the AFP, in response to their request, advice relevant to what charges against the Accused would be appropriate in light of the evidence then available”. Before the primary judge, the AFP Commissioner claimed privilege over a letter dated 15 September 2014 from Mr Kapeleris to the AFP which was described as a “pre-brief advice” (Kinghorn (No 4) at [34]). An affidavit from an AFP officer stated that the “letter enclosed a written advice prepared by Peter Neil SC” and “offered some additional observations of Mr Kapeleris about the same topic”.

Primary Judge’s Reasoning

54. In Kinghorn (No 4), the primary judge rejected a contention that there had been an imputed waiver of any privilege subsisting in the contents of Document 11 (Kinghorn (No 4) at [188]). Part of Mr Kinghorn’s ground of appeal and the submissions in support contend that the primary judge erred in not addressing the anterior question of whether privilege was established in respect of Document 11 and specifically whether its author lacked the necessary “independence” from his superiors to establish privilege. The CDPP contended that by setting out the general basis upon which privilege was upheld, as noted above, and then addressing waiver in relation to Document 11, it was implicit that her Honour upheld the claim for privilege over Document 11. This submission correctly describes the approach adopted by her Honour. That leaves the balance of ground 2 concerning the independence issue to be considered.

Submissions

55. The first step in Mr Kinghorn’s argument on this point is to identify the two relationships of lawyer and client identified by the primary judge as described above (at [40]). The written submissions in support of this ground then contend that those “two scenarios”, being that the CDPP is the “lawyer” advising the “client” department and is also the “client” being advised by her own “lawyer”, must be “mutually exclusive”. The submissions then address the evidence concerning Document 11 and invite the Court to infer that Document 11 “conveyed a request by Mr Kapeleris to his superior (Mr Kirne) for approval to render specified legal advice to the AFP (on behalf of the CDPP)”.

56. The written submissions then contend as follows:

“52.   From the above, it appears that the CDPP maintains that Mr Kapeleris both (a) rendered ‘pre-brief’ legal advice to the AFP on behalf of the CDPP, and (b) gave legal advice to his superior (Mr Kirne) as to what ‘pre-brief’ advice ought to be rendered to the AFP on behalf of the CDPP. The second proposition should be rejected. It is no different to the situation in which a law firm is engaged to advise a client and an employed solicitor provides a draft advice to a partner for review and approval before a final advice is issued to the client. The employed solicitor is not the legal adviser of the partner. Even if the employed solicitor could be said to have the dominant purpose of rendering advice to the partner, the solicitor lacks the necessary quality of independence to act as legal adviser, as they are subject to direction by the partner as to the content of the advice.

53.   Similarly, the CDPP (or Mr Kirne) would have been fully entitled to direct Mr Kapeleris as to what advice he should render on the CDPP’s behalf to the AFP, including by disagreeing with opinions Mr Kapeleris had expressed in internal draft documents and instructing him to rewrite them. The possibility of direction of that kind is inconsistent with a professional relationship of legal adviser and client. The very fact that Document 11 was a request for approval to issue pre-brief advice is telling – it was not advice as to what the CDPP ought do, but rather a request to render advice on the CDPP’s behalf. In this context, the relationship between Mr Kapeleris and the CDPP (or Mr Kirne) is not one which ‘secures to the advice [to the CDPP] an independent character notwithstanding the employment’ (Waterford v Commonwealth (1987) 163 CLR 54 at 62 per Mason and Wilson JJ, see also at 70‑73 per Brennan J). Mr Kapeleris might have been acting in the capacity of legal adviser to the AFP, but he was not acting in the capacity of a legal adviser to the CDPP.” (emphasis in italics original, emphasis in bold added)

“Independence”

57. These submissions refer to Waterford. In Waterford, Mason and Wilson JJ, concluded (at 62) that “there was no reason to place legal officers in government employment outside the bounds of legal professional privilege”. Their Honours added that “[w]hether in any particular case the relationship [between the officer and the government] is such as to give rise to the privilege will be a question of fact” and “[i]t must be a professional relationship which secures to the advice an independent character notwithstanding the employment”. Similarly, Brennan J in Waterford noted (at 70) that “[i]f the purpose of [legal professional] privilege is to be fulfilled, the legal adviser must be competent and independent”. Brennan J agreed that salaried legal advisers to the government answered that description but did not accept that privilege attached to advice provided by lawyers who were salaried employees of non-government clients (at 71 to 72).

58. Waterford predated the Evidence Act. There is no express reference in the Evidence Act to the need to establish any “independence” on the part of the “lawyer” before a claim for privilege under ss 118 or 119 is established. The definition of “lawyer” clearly contemplates the possibility that privilege can attach to a communication between an employed solicitor and their employer as “client” (Sydney Airports Corporation Ltd v Singapore Airlines Ltd & Qantas Airways Ltd [2005] NSWCA 47 at [18]; “Sydney Airports”).

59. In some cases under the Evidence Act the issue of the “independence” of the advice provider vis a vis the client has been addressed as an aspect of whether the nature of the relationship between the provider and the alleged client truly answers the description of “lawyer” and “client” for the purposes of s 119 of the Evidence Act (see for example, Rich v Harrington [2007] FCA 1987 at [46] per Branson J; “Rich”). In other cases it has been treated as a matter bearing upon whether the relevant communication was for the dominant purpose of providing legal advice to the “client” or the “client” being provided with professional legal services relating to anticipated legal proceedings (Sydney Airports at [24] per Spigelman CJ; Seven Network Ltd v News Ltd [2005] FCA 142 at [4] to [5] and [38] per Tamberlin J). Mr Kinghorn’s submissions under this ground addresses the matter on the basis stated in Rich; ie they address “independence” as a matter concerning the relationship of lawyer and client; they do not contend that the relevant communications were not for the dominant purpose of providing legal advice. The CDPP contended that Waterford’s concerns about independence were overtaken by the enactment of the Evidence Act with the consequence that there is not some “case by case enquiry as to each lawyer’s independence”. Ground 2 of Mr Kinghorn’s appeal can be resolved without determining that contention.

Analysis

60. Mr Kinghorn’s written submissions did not expressly contend that the CDPP officers do not satisfy Waterford to the extent that they provided legal advice to the CDPP herself as the “client” and in circumstances where the CDPP is not advising an authority of the Commonwealth. However, in oral submissions Senior Counsel for Mr Kinghorn, Mr Walker SC, submitted that, as both the CDPP and the persons within her office are lawyers, and the former is (usually) more senior to the latter, then if follows that the necessary quality of independence of the “lawyer” (from the “client”) is lacking. This contention is inconsistent with this Court’s decision in Stanizzo which upheld a claim for privilege in respect of advice given to the New South Wales Director of Public Prosecution (“NSW DPP”) by a member of their office (at [25]; see also R (Cth) v Petroulias (No 22) (2007) 213 FLR 293; [2007] NSWSC 692 at [56]; “Petroulias”; Hamilton v State of New South Wales [2016] NSWSC 1213 at [38] to [40]; and R v Bunting (2002) 84 SASR 378; [2002] SASC 412 at [44]; “Bunting”). There is no difference between the CDPP and the NSW DPP in this respect.

61. Section 8(2) of the CDPP Act requires that the CDPP be a legal practitioner for not less than five years. There is, however, no requirement that the CDPP be of greater seniority in terms of length of service than employees within the Office of the CDPP. Even so, the fact that a senior statutory office holder may be a lawyer and more senior to a lawyer within their office is irrelevant to the present issue. The fact that the CDPP is often a very experienced lawyer simply means they may be more equipped to decide whether to accept or reject advice proffered by a more junior colleague. It does not deny the advice provided to the CDPP its “independent character”.

62. Otherwise, as noted, the starting premise for this ground is the supposed mutual exclusivity between the functions of the CDPP in advising “an authority of the Commonwealth” on the one hand and the institution and conduct of prosecutions for indictable and summary offences against the law of the Commonwealth on the other (CDPP Act, s 6(1)(a) to (e)). That premise should not be accepted. The “legal advice on law enforcement or a matter relating to law enforcement” provided by the CDPP as referred to in [3(1)(f)] of the CDPP Regulation can clearly extend to matters that relate to the institution and conduct of prosecutions by the CDPP ie, the functions in s 6(1)(a) of the CDPP Act. Hence, it is possible that the one document is referable to both functions of the CDPP and, as a consequence, both relationships of “lawyer” and “client” identified by the primary judge.

63. It follows that the position is very different to the example suggested in the extract from the submissions set out in [56], namely that of an employed solicitor providing advice to a partner of a law firm. A partner of a law firm does not have any function independent of the client for whom they act whereas the CDPP does. In a private law firm, the employed solicitor prepares material to facilitate the performance by the partner and the firm of their retainer with their client.

64. This is best illustrated by considering the evidence concerning Document 11. Mr Kinghorn’s contention that Document 11 conveyed a request by Mr Kapeleris to Mr Kirne for approval to render specified legal advice to the AFP (on behalf of the CDPP) can be accepted for the present. However, even if it is correct, it is not a complete characterisation of Document 11 in that there is nothing to suggest that its contents or purpose were limited to the mere making of such a request. In fact the evidence is to the contrary. Mr Tchakerian’s uncontested evidence was that the documents in category H, including Document 11, were for the “dominant … purpose of providing legal advice to the Directors … in relation to the prosecution of the accused” (see [52]). Given that statement, that Mr Neil SC was retained to provide advice “to the Director”, and that the overall context of all these communications concerned a contemplated prosecution, it follows that Document 11 is not just a communication referable to the function of the CDPP in providing legal advice to the AFP but also related to the function of the CDPP in instituting and maintaining indictable prosecutions for offences against the law of the Commonwealth. In circumstances where the relationship between the CDPP and her officers is sufficiently “independent” to establish privilege in respect of communications concerning her function in instituting and maintaining indictable prosecution then the privilege is not lost because the relevant communication also relates to her function in providing legal advice to the AFP.

65. The point sought to be raised by Mr Kinghorn’s written submissions could only arise in relation to a document the subject of a claim for privilege which solely related to the CDPP’s function of advising “an authority of the Commonwealth on a matter relating to law enforcement” ([3(1)(f)] of the CDPP Regulations) and not to the CDPP’s function of instituting or maintaining prosecutions. Document 11 was not of that character and it is difficult to envisage that any other document, the subject of the claim for privilege in this matter, answers that description given the early genesis of the suggestion that charges might be brought against Mr Kinghorn.

60. However, even if there was such a document and, assuming in Mr Kinghorn’s favour by reference to his analogy with a private firm that it could not be the subject of a proper claim for privilege by the CDPP, then it would still be the subject of such a claim by the relevant “authority” as the “client”. The communications between the junior solicitor and a partner of a law firm are generally covered by privilege that inures to the benefit of their mutual client (Evidence Act, ss 118(b) and (c)). In this case, the CDPP contended that the Tax Commissioner and the AFP Commissioner had not had the opportunity to make such a claim over Document 11 as the documents were in the possession of the CDPP. Thus, even if the CDPP’s claim for privilege was rejected, then the Tax Commissioner and the AFP Commissioner would have to be given the opportunity to make a claim. Assuming that reflects the correct history of the matter, it is difficult to see how any claim for privilege by the Tax Commissioner and the AFP Commissioner would not be upheld.

61. Ground 2 of Mr Kinghorn’s appeal is rejected.

Ground 1 of Mr Kinghorn’s Appeal: Communications in Furtherance of an Offence

68. Mr Kinghorn’s first ground of appeal is that the primary judge “erred in determining that s 125(1)(a) of the Evidence Act 1995 was not engaged”.

Legislative Provisions

69. Section 125 of the Evidence Act relevantly provides:

(1)   This Division does not prevent the adducing of evidence of:

(a)   a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty, or

(b)   …

(2)   For the purposes of this section, if the commission of the fraud, offence or act, or the abuse of power, is a fact in issue and there are reasonable grounds for finding that:

(a)   the fraud, offence or act, or the abuse of power, was committed, and

(b)   a communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power,

the court may find that the communication was so made or the document so prepared.”

70. Before the primary judge, it was contended on behalf of Mr Kinghorn that all or at least some of the documents the subject of the privilege claim were prepared in furtherance of the commission of an offence, namely, a contravention of s 16(2) of the ITAA constituted by the 2007 disclosure and the AFP referral.

71. At the time of the 2007 disclosure and the AFP referral, s 8 of the ITAA conferred on the Tax Commissioner responsibility for the administration of the Act. By a series of delegations, the author of the 2007 disclosure and the AFP referral, Mr Walton, was conferred with all the Tax Commissioner’s powers and functions under the ITAA except s 8, s 14 (which concerns the preparation of an annual report) and s 263. Mr Walton worked within the “Serious Non-Compliance business line” of the ATO. This business line received referrals involving alleged taxation offences and reviewed them to determine if a criminal investigation should be commenced. It conducted investigations and also made referrals for investigation, advice and prosecution to the AFP and the CDPP.

72. At the relevant time, s 16(1) to (3) of the ITAA provided:

“(1)   In this section, unless the contrary intention appears:

…

officer means a person who is or has been appointed or employed by the Commonwealth or by a State, and who by reason of that appointment or employment, or in the course of that employment, may acquire or has acquired information respecting the affairs of any other person, disclosed or obtained under the provisions of this Act or of any previous law of the Commonwealth relating to income tax.

…..

(2)   Subject to this section, an officer shall not either directly or indirectly, either while he is, or after he ceases to be an officer, make a record of, or divulge or communicate to any person any information respecting the affairs of another person acquired by the officer as mentioned in the definition of officer in subsection (1).

(2A)   Subsection (2) does not apply to the extent that the person makes the record of the information, or divulges or communicates the information, in the performance of the person's duties as an officer.

(3)   An officer shall not be required to produce in Court any return, assessment, assessment or notice of assessment, or to divulge or communicate to any Court any matter or thing coming under his notice in the performance of his duties as an office, except when it is necessary to do so for the purpose of carrying into effect the provisions of this Act or any previous law of the Commonwealth relating to Income Tax.” (italicised emphasis added)

73. The maximum penalty for an offence under s 16(2) was “$10,000 or imprisonment for 2 years, or both”.

74. Section 16(4) of the ITAA provided that nothing in s 16 was to be deemed to prohibit the communication of “any information” to various entities such as the Secretary to the Department of Health (s 16(4)(f)), the Chief Executive Officer of Medicare (s 16(4)(fa)), a Royal Commission (s 16(4)(k)) and the Treasurer (s 16(4)(l)). Elaborate provision was made for disclosure to and by Royal Commissions in ss 16(4A) to 16(4JC). Former s 16(4A)(ba) enabled a Royal Commission to communicate relevant information to the CDPP (or a Special Prosecutor). Section 16(4FA) imposed various restrictions on the CDPP when it received information from a Royal Commission. Section 16(5) provided that any person or employee under his control to whom information was communicated under s 16(4), other than a Royal Commission or the Treasurer, shall, in respect of that information, be subject to the same rights, privileges, obligations and liabilities under subsections (2) and (3) as if they were an “officer”.

75. It was not in dispute that the s 264 information that was disclosed in the 2007 disclosure and the AFP referral constituted “information respecting the affairs of another person acquired by the officer” within the meaning of s 16(2) of the ITAA. The relevant issue was whether those disclosures were undertaken “in the performance of … [Mr Walton’s] duties as an officer” within the meaning of s 16(2A).

76. Before the primary judge and in this Court, the parties referred to a number of provisions of the TAA which were said to bear upon the proper construction of s 16(2A) of the ITAA.

77. Like s 8 of the ITAA, the Commissioner was conferred with responsibility for the administration of the TAA (s 3A). Mr Walton was conferred with delegated power in respect of most of the Commissioner’s powers and functions under the TAA including ss 3C and 3E.

78. As at the time of the 2007 disclosure and the AFP referral, s 3C(2) of the TAA prohibited, inter alia, a person who is or has been an officer from divulging or communicating “information with respect to the affairs of a third person ... being information disclosed or obtained under or for the purposes of this Act and acquired by reason of a person’s appointment or employment by the Commonwealth”. Similar to s 16(2A) of the ITAA, s 3C(2A) provided that s 3C(2) did not apply to the extent that the divulging or communicating was “for the purposes of this Act; or ... in the performance of the person’s duties as an officer”. In addition, s 3C(4) provided that s 3C(2) did not preclude the Commissioner, the Deputy Commissioner or a person authorised by the Commissioner from communicating “any information to a person performing, as an officer, duties in relation to a taxation law, for the purpose of enabling the person to perform those duties”. Section 3C contained its own definition of “officer” that was not relevantly different to that set out in the ITAA above.

79. Mr Kinghorn relied on s 3E as limiting the operation of s 16(2A). Section 3E was inserted into the TAA by the Taxation Laws Amendment Act (No 3) 1989 (Cth) with effect from 30 June 1989. As at the time of the 2007 disclosure and the AFP referral, ss 3E(1) to (4) and 3E(8) of the TAA relevantly provided:

“Use of tax information by law enforcement agencies and eligible Royal Commissions etc.

(1)   Notwithstanding any taxation secrecy provision, the Commissioner may disclose information acquired by the Commissioner under the provisions of a tax law to an authorised law enforcement agency officer, or to an authorised Royal Commission officer, if the Commissioner is satisfied that the information is relevant to:

(a)   establishing whether a serious offence has been, or is being, committed; or

(b)   the making, or proposed or possible making, of a proceeds of crime order.

(2)   Where information is communicated to an officer under subsection (1) of this section or paragraph 3EA(3)(e), the officer must not divulge or communicate the information to another person, or make a record of the information.

(2A)   Subsection (2) does not apply to the extent that the information was divulged or communicated, or the record of the information was made, for, or in connection with:

(a)   the investigation of a serious offence; or

(b)   an investigation relating to the making, or proposed or possible making, of a proceeds of crime order.

(2B)   A person to whom information has been communicated in accordance with subsection 2A) or (2C) must not divulge or communicate the information to another person, or make a record of the information.

(2C)   Subsection (2B) does not apply to the extent that the information was divulged or communicated, or the record of the information was made, for, or in connection with, the investigation mentioned in subsection (2A).

(3)   Where information is communicated to a person under subsection (1), (2A) or (2C) of this section or paragraph 3EA(3)(e), the person:

(a)   shall not voluntarily give the information in evidence in a proceeding before a court; and

(b)   shall not be required to divulge or communicate the information to a court.

(4)   Where information is communicated to an officer under subsection (1) of this section or paragraph 3EA(3)(e), nothing in subsection (2), (2B) or (3) prohibits:

(a)   the communication of the information to a person, or the making of a record of the information, for the purposes of, or in connection with:

(i)   the prosecution, or proposed or possible prosecution, of a person for a tax-related offence; or

(ii)   proceedings, or proposed or possible proceedings, for the making of a proceeds of crime order; or

(b)   the voluntary communication of the information to a court in the course of either of the following proceedings before that court:

(i)   a prosecution of a person for a tax-related offence;

(ii)   proceedings for the making of a proceeds of crime order.

…

(8)   Subsection (1) is in addition to, and not in derogation of, any other provision of this Act or of any other law relating to the communication of information.”

80. Again, the premise of this judgment is that the information contained within the 2007 disclosure and the AFP referral was “information acquired by the [Tax] Commissioner under the provisions of a tax law” within the meaning of s 3E(1). The definition of “authorised law enforcement agency officer” incorporated the definition of “law enforcement agency” which included the Australian Federal Police, the Office of the Director of Public Prosecutions, the Australian Crime Commission, the New South Wales Crime Commission and the Australian Securities Commission (as it was then known) (TAA, s 2).

81. The term “serious offence” in s 3E was defined as an indictable offence against a law of the Commonwealth, State or Territory (s 3E(11)). A “tax related offence” was defined as meaning an offence against a “tax law” or the Crimes (Taxation Offences) Act 1980 (Cth), as well as an offence against the Crimes Act 1914 (Cth) or the Code relating to a tax law or an offence under ss 134.1, 134.2, 135.1, 135.2 or 135.4 of the Code relating to a liability to the Commonwealth under, or by virtue of, a tax law (TAA, s 3E(11)).

82. It can be seen that s 3E(1) is facultative in that it enabled the Tax Commissioner to disclose information to an authorised law enforcement agency officer, including potentially officers of the AFP and the CDPP, if the Tax Commissioner was “satisfied” that it was relevant to establishing whether a serious offence has been committed or a proceeds of crime order should be applied for. The balance of ss 3E(2) to (4) were not directed to the Tax Commissioner or his or her delegates, but instead to the use that could be made by the recipient of the information, that is, the (authorised law enforcement or Royal Commission) “officer” or “person” to whom that information is provided. Thus, s 3E(2) imposed a prohibition on the first recipient of that information from disclosing or recording it unless they in turn recorded or disclosed the information for the purposes of the investigation of a serious offence or whether a proceeds of crime order should be applied for. Section 3E(2B) and 3E(2C) then make the same provision for all subsequent recipients of the information. Section 3E(3) and 3E(4) preclude such recipients from voluntarily giving the information as evidence in Court or being required to do so, save that it may be used in relation to the prosecution or potential prosecution of a tax related offence or proceedings for a proceeds of crime order.

83. The effect of ss 3E(2) to (4) was that the recipients of this information from the Tax Commissioner could use it in relation to the investigation of a serious offence or an investigation relating to the making or possible making of a proceeds of crime order. However, in respect of prosecutions of serious offences that were not tax related offences then the information provided under s 3E(1) could not be further disclosed or used in Court. In such cases the information would appear to have been generally confined to internal use for investigation, such as intelligence gathering.

84. Although each of the offences that Mr Kinghorn is accused of committing are, or at least appear to be, “tax related offences”, before the primary judge the CDPP did not (ultimately) rely on s 3E as authorising the 2007 disclosure or the AFP referral. Instead, as noted, before the primary judge and this Court Mr Kinghorn relied on s 3E as restricting the scope of s 16(2A) of the ITAA.

85. Section 3G of the TAA has already been referred to. As noted, the endorsement of Mr Walton under provision came too late to authorise the 2007 disclosure or the AFP referral.

Primary Judge’s Reasoning

86. The primary judge referred to a number of previous decisions that considered the above provisions or their equivalents in other tax legislation namely, Saunders v Federal Commissioner of Taxation (1988) 19 ATR 1289; [1988] FCA 136 (“Saunders”); R v Yates (1991) 102 ALR 673; (1991) 56 A Crim R 29 (“Yates”) and Caratti v The Commissioner of Taxation (1999) 42 ATR 714; [1999] FCA 1296 (“Caratti”), as well as the extrinsic material concerning s 3E of the TAA. Her Honour concluded that there was no legislative intention in enacting s 3E to limit s 16(2A) of the ITAA (or s 3C of the TAA) (Kinghorn (No 4) at [113]). Her Honour found that s 16(2A) authorised the 2007 disclosure and the AFP referral noting that “[o]fficers in the position of Mr Walton ought, in my view, be regarded as being authorised as part of the performance of their duties to seek advice from the [C]DPP on matters which might result in criminal investigation or prosecution” and the “seeking of advice from the [C]DPP as to a potential prosecution would appear to be central to the duties of such officers” (Kinghorn (No 4) at [115]). Accordingly, her Honour concluded that it was not established that the 2007 disclosure and the AFP referral were made “in furtherance of a criminal offence” and thus s 125(1)(a) of the Evidence Act was not engaged (Kinghorn (No 4) at [116].

The Authorities

87. As noted, the primary judge drew support for her finding from Saunders, Yates and Caratti.

88. Saunders concerned an application to restrain the use of compulsory powers to examine a taxpayer on the basis that it would amount to either a contempt of court, a contempt of proceedings in the Administrative Appeals Tribunal or that it was otherwise proposed to provide the information obtained to the CDPP in breach of the then s 16(2) of the ITAA. At the time Saunders was decided, s 16(2) included a prohibition on disclosure but also contained an exception for disclosures “in the performance of any duty as an officer” (at 1299) similar to s 16(2A). Northrop J found that it is “plainly part of the duty of the tax officers to assist the revenue to recover moneys owing to the Commonwealth and for this purpose it is permissible to instruct the [C]DPP”, noting that the CDPP’s functions included the taking of civil remedies on behalf of the Commonwealth (at 1300). His Honour added that he made “no comment as to whether it is the duty of an officer to divulge information to the [C]DPP for use in criminal proceedings, since the evidence does not suggest that the information was to be used for this purpose” (at 1300).

89. In Yates, the appellant was convicted of offences relating to the evasion of sales tax, specifically, dishonestly obtaining a financial advantage contrary to s 178BA of the Crimes Act 1900 and using a false pretence with intent to defraud the Commonwealth pursuant to s 29A(2) of the Crimes Act 1914 (Cth). Section 10(2) of the Sales Tax Assessment Act (No 1) 1930 (Cth) (“SATA”) was in similar form to s 16(2), as considered in Saunders, in that it prohibited an officer from divulging any information “relating to the affairs of a person except in the performance of any duty under [the] Act”. Various officers passed on information about the sales tax affairs of the appellant to members of the AFP and officers of the CDPP. Some of those officers gave evidence during the appellant's committal proceedings and their evidence included information about his sales tax affairs (at 676.2).

90. In Yates, this Court rejected a contention that the disclosures by the tax officers were a breach of s 10(2) of the SATA. Priestly JA (with whom Wood and Finlay JJ agreed) did not accept that disclosures for the purposes of prosecution and the giving of evidence at a criminal trial were governed by Part III of the TAA which was said to establish a “complete regime for dealing with all prosecutions for offences related to tax” (at 677). Instead, Priestley JA approved a statement in FCT v Nestle Australia Ltd (1986) 69 ALR 445 at 450 (“Nestle”) that the duties of an officer “include[s] ... the occasions on which he is required by the judicial process to produce documents or give evidence in courts … where the proceedings are referable to the imposition, assessment or collection of revenue” (at 677). Crucially, Priestley JA stated that he “would add to the words ‘imposition; assessment or collection’, [the words] ‘prosecutions involving the evasion of payment’ … of revenue” (id). Thus, his Honour concluded (at 678.2):

“In my opinion it is well within the performance of the duties of an officer of the Commonwealth under those Acts to give evidence which will bring about the conviction of a person for a crime, which although itself of a general nature not necessarily related to taxation, nevertheless, in fact involves the breach of taxation law.” (emphasis added)

91. For the purposes of s 10(2) of SATA there is no difference in principle between a disclosure of information to the prosecuting authorities and the disclosure of information that is the result of testifying in Court. Further, bearing in mind the offences charged in Yates, all of the charges that were either contemplated or in fact laid against Mr Kinghorn amounted to either a taxation offence or answered the description of being an offence “of a general nature not necessarily related to taxation, [but which] nevertheless, in fact involve[d] [a] breach of taxation law”.

167. The “redacted material” referred to in this extract were emails exchanged between the Crown Prosecutor and his instructing solicitor which were partially redacted (at [16]). In JB, this Court was required to determine the relevance of the material to a contention by the appellant that a verdict of acquittal should be entered in circumstances where it was common ground that his conviction had to be quashed (at [4]). The appellant in JB contended that “the conduct of the prosecution against him [was] so tainted that the Court would take [that] into account when exercising its discretion as to whether or not to order an acquittal” (at [5]). The reference in the above passage to it “not being disputed” that the applicable test as to whether privilege applies was whether the material was relevant, confirms that this passage only concerns a circumstance where the Crown had agreed not to press its claim for privilege if the Court ruled that the material the subject of the claim was relevant to the appellant’s contention that he should be acquitted. Thus, JB is not authority supporting a contention that a claim for privilege cannot be sustained in respect of material that falls within the prosecutorial duty of disclosure. Instead, it is an instance of the application of the Crown deciding for itself to waive privilege in respect of such material.

168. As noted, the primary judge also relied on Bunting. In her written submissions the CDPP contended that Bunting does not support her Honour’s approach. It is difficult to understand how that submission could be made given the following passages from Bunting (at [73] to [74]):

“When the Director institutes or maintains a prosecution, the Director does so in the knowledge that the prosecution carries with it an essential feature, namely, the duty of disclosure. The Director is aware that the duty is inconsistent with the maintenance of confidentiality in respect of relevant information. In those circumstances, consistent with principle, it can be said with considerable force that the conduct of the Director as the privilege holder in instituting or maintaining a prosecution is inconsistent with the maintenance of confidentiality in respect of relevant information which would otherwise be disclosed. The relevant conduct is the institution or maintenance of a prosecution. In such circumstances, it can be said that it is unfair for the Director to both institute or maintain a prosecution and to maintain the privilege in breach of the duty of disclosure that accompanies the prosecution. In the words of the joint judgment in Mann v Carnell, ‘the law recognises the inconsistency and determines its consequences’ (at 13 [29]).

In my opinion, consistently with the principle identified in Mann v Carnell, at the point when the duty of disclosure requires disclosure of relevant information, if disclosure of the relevant information requires disclosure of a privileged communication, the conduct of the Director in instituting or maintaining a prosecution becomes inconsistent with the maintenance of the confidentiality of the communication by reason of legal professional privilege. In those circumstances, in my view it would be unfair for the Director to maintain the privilege in respect of the communication. Waiver of privilege is, therefore, imputed. In that sense the duty of disclosure ‘prevails’ over legal professional privilege.” (emphasis added)

169. In his oral submissions, Mr Giles correctly conceded that these passages were contrary to his client’s argument. In fact, they unequivocally support the approach adopted by the primary judge. However, unlike all other cases dealing with imputed waiver of privilege, the approach in Bunting eschews any analysis of the precise conduct of a litigant in instituting or conducting specific litigation, much less any consideration of how such conduct might be inconsistent with maintaining the confidentiality of a particular communication. Instead, in Bunting, Martin J articulated a broad proposition applicable to all prosecutions. With respect to his Honour, the breadth of the statement and the absence of any suggested connection between a particular allegation made, or step taken by the Crown in a particular prosecution, and the maintenance of the privilege, strongly suggests that the concept of unfairness being invoked is some “overriding principle of fairness operating at large” and not one that truly informs an assessment of the inconsistency between a particular “intentional act” and the “maintenance of the confidentiality of the communication” (Mann v Carnell supra) .

170. This is confirmed by the justification for the above conclusion given by Martin J in Bunting shortly after the above statement (at [76]):

“The conclusion that I have reached gives effect to the compelling reasons founded in the interests of the proper and fair administration of justice why, in the sense I have discussed, the duty to disclose relevant information to an accused charged with a criminal offence should ‘prevail’ over legal professional privilege. The public interest in a fair trial and in ensuring that no innocent person is convicted of a crime is very powerful. That public interest is served by imputing waiver when the duty of disclosure exists.”

171. With respect to his Honour, all of the important principles identified in this passage are instances of an “overriding principle of fairness”, none of which have any application to the doctrine of imputed waiver (Mann v Carnell, supra). His Honour’s approach involves the deployment of the principles concerning imputed waiver to achieve a purpose they were not designed for. At its narrowest, the doctrine of imputed waiver is an instance of the general doctrine of waiver whereby a person performs “an intentional act done with knowledge” and thereby “abandons a right (or privilege) by acting in a manner inconsistent with that right (or privilege)” (Expense Reduction at [30] citing Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 658; [1937] HCA 58). Ultimately, the doctrine appears to be directed to limiting the scope of privilege, in that a “holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of [a] protected communication” (Maurice at 488 per Mason and Brennan JJ); that is avoiding the “forensic unfairness” referred to by Allsop J in DSE. Whatever its precise rationale, imputed waiver of privilege is not a means of serving a wider public interest in ensuring a fair trial (or hearing), beyond enabling disclosure of otherwise privileged material when the relevant form of inconsistency is demonstrated.

172. In our view, the approach in Bunting does not represent a correct statement of principle. The test apposite to whether a prosecutor is to be imputed with a waiver of privilege is not informed by the prosecutorial duty of disclosure and an imputed waiver does not arise, per se, from the continuation of a prosecution without disclosure of privileged material that is caught by the duty. With respect, the primary judge erred in finding to the contrary.

Additional Basis for Disclosure

173. In his oral submissions, Mr Walker identified an additional basis to that found by the primary judge for granting access to documents that are said to fall within the prosecutorial duty of disclosure but are otherwise privileged in the hands of the CDPP or other government agencies such as the ATO or the AFP. Mr Walker submitted that for all such bodies, including the CDPP, it was “implicit that the prosecution that the [C]DPP [may] conduct is one that will be conducted with full disclosure” and thus it was not a matter of imputed waiver but “willed waiver, albeit implied”. He contended that any potential conflict between the privilege and duty of disclosure does not arise, because “[o]nce the information is relevant and disclosure is required, the information ceases to be confidential”. Mr Walker relied on the following passages from Bunting as encapsulating the submission (Bunting at [55] and [61]):

“The Solicitor-General readily conceded that legal professional privilege ‘cannot sensibly apply to any communication, or to the results of any communication, where the prosecutor is under a duty to disclose the material whether that duty arises at common law or by statute'’. He submitted that information and material held by the prosecution will not be subject to legal professional privilege if there is a duty to produce it or if production is ordered. Once the information is relevant and disclosure is required, the information ceases to be confidential. Faced with the Attorney-General's concession, counsel for the Director reluctantly adopted that concession.

… In my opinion, this argument is sound. If receipt of the relevant information in an otherwise privileged communication coincides with the requirement of disclosure, legal professional privilege does not apply to the information received in the communication because the Director does not intend that the information will be confidential.”

174. These passages record a process of reasoning that commence with a concession by the Attorney-General and then note a concession by the Director Public Prosecutions. No such concessions are made in this case. In any event, with respect to Martin J, each of the privileges defined by ss 118 and 119 of the Evidence Act relate to either a “confidential communication” or “confidential document” as defined in s 117. Each of the definitions of those terms concern whether the circumstances “when [the communication or document] was made” were such as to impose an express or implied obligation not to disclose its contents on the maker or receiver. Even if later circumstances transpire to impose an obligation on a party to disclose the communication or document, they do not lose their status as confidential communications or documents for the purposes of ss 118 and 119. Instead, in those circumstances the loss of privilege is governed by s 122 and not by the document or communication losing its status as “confidential” when it was made.

175. A waiver that is said to be “willed … albeit implied” can only engage s 122 if it amounts to a disclosure by “consent” within the meaning of s 122(1). If it does not then it can only be an imputed waiver governed by s 122(2) (and s 122(3)). While consent under s 122(1) might be capable of being implied, whether such a consent has been given is ultimately a factual question. No factual finding to that effect was sought before the primary judge. The only material before the primary judge that was capable of bearing on the attitude of the CDPP, ATO and AFP concerning prosecutorial disclosure at any relevant time was the guidelines noted above (and any predecessor). Those guidelines provide no support for a finding that the CDPP, ATO or AFP conducted themselves on some implicit understanding that, if the prosecutorial duty of disclosure was engaged, privilege would be waived. Instead, the CDPP reserved to itself the obligation and capacity to determine whether to waive privilege or end the prosecution.

176. Accordingly, the additional basis for disclosure identified by Mr Walker is rejected.

Conclusion on Grounds of Appeal

177. Ground 1(a) of the CDPP’s appeal contends that the primary judge erred in concluding that the duty of disclosure did, or may, require disclosure to the accused of information subject to client legal privilege. It follows from the above analysis that this ground misstates her Honour’s reasoning. Save as to waiver, her Honour’s analysis of the manner of “enforcement” of the duty was correct.

178. Ground 1(b) contends that the primary judge erred in concluding that, once it was held that disclosure is, or maybe, required, then the continuation of the proceedings resulted in a waiver of privilege over documents the subject of the duty. It also follows from the analysis above that this ground accurately reflects her Honour’s reasoning, that the reasoning was erroneous and thus this ground has been made out. Grounds 2 and 3(b) are similar contentions although they relate to so much of the primary judgment that found an inconsistency based on the CDPP’s opposition to the stay motion. It follows that they should also be upheld.

179. The CDPP’s written submissions explained that ground 3(a) only arose in the event that it was unsuccessful in relation to ground 2. Nevertheless, it should be addressed. This ground contends that the primary judge erred in concluding that it was “highly relevant” to Mr Kinghorn’s stay motion for him to demonstrate “the manner and extent of the use of the s 264 material”. As explained below, for so long as the Leach point remains unresolved, material concerning the utilisation of the s 264 information is relevant to the stay motion, specifically the form of relief, if any, that might follow from a conclusion that the accusatorial principle and the companion rule have been violated. The primary judge determined that this material met the test of relevance for a subpoena when her Honour declined to set aside Mr Kinghorn’s subpoenas (R v Kinghorn [2019] NSWSC 553) and its relevance was effectively confirmed by the concession noted above (at [31]). However, assuming the duty of disclosure did extend to this material, because imputed waiver of privilege is not informed by the prosecutorial duty of disclosure, then merely demonstrating the relevance of the material will not suffice to establish waiver (DSE; Archer at [48]).

180. Accordingly, grounds 1(b), 2 and 3(b) of the CDPP’s appeal are upheld but grounds 1(a) and 3(a) are rejected. This is sufficient to warrant the setting aside of so much of the primary judge’s orders that granted Mr Kinghorn access to documents produced by the CDPP, in respect of which the primary judge found were subject to a waiver of privilege. The CDPP’s notice of appeal nominates orders 1, 2 and 3 made on 30 October 2018 as the orders that must be set aside. For an abundance of caution the parties will be granted liberty to apply within 21 days for any further orders necessary to give effect to these findings. In that regard the parties are expected to first confer about the appropriate orders.

181. Two further matters should be noted.

182. First, as noted, Mr Giles conceded that, if the Leach point was decided adversely to the CDPP, then relief in the form of prayer 3 of the stay motion would follow; ie, a temporary stay would be granted pending the appointment of a new prosecution “team” (see [22] and [31]). If an order in the form of prayer 3 was made and if the prosecution was to continue, then the CDPP would have to move the Court to set the stay aside. As Mr Giles also conceded, as the moving party on such an application it may be necessary for the CDPP to make positive assertions about the exposure of the new prosecution team to the s 264 information and, in doing so, issues “might” then arise as to whether there is a relevant inconsistency between any such assertion and the maintenance of privilege over the material the subject of this appeal.

183. Second, to date the CDPP has resolutely resisted the suggestion that the accusatorial principle and companion principle are imperilled by the manner in which its prosecution of Mr Kinghorn for offences under s 135.1(7) of the Code is framed. For that reason, the CDPP has insisted that the prosecutorial duty of disclosure was not engaged in relation to the material the subject of this appeal because, on the CDPP’s view of Leach, that material was not relevant. That approach led to an impasse between the CDPP and Mr Kinghorn’s attempts to gather material in support of his stay motion. Until the concession in relation to prayer 3 of the stay motion was made during this appeal, the only means of resolving that impasse was to decide the various applications that were made to produce and access documents which the primary judge did expeditiously. Now that the concession has been made there is an opportunity to resolve the impasse earlier rather than later by deciding the debate over Leach as soon as possible. If it is resolved in Mr Kinghorn’s favour then relief in the form of prayer 3 will follow and any debate about either the grant of a permanent stay or the lifting of a temporary stay and, in particular, the granting of access to documents relevant to those matters will take place in a different context. If it is resolved in the CDPP’s favour then the debate the subject of these appeals will be otiose.

Ground 2 of the Commissioners’ Appeals: Commissioners’ Privilege

184. As noted, grounds 1(a) to 1(c) of the Tax and AFP Commissioners’ appeal are identical to grounds 1 to 3 of the CDPP appeal. It follows that grounds 1(a)(ii), 1(b) and 1(c)(ii) of their appeal are upheld and grounds 1(a)(i) and 1(c)(i) are rejected. The observations in [180] apply to the orders made to reflect this outcome.

185. Ground 2 of the appeal of the Tax Commissioner and AFP Commissioner is set out in [45] above. It addresses a further aspect of the primary judge’s reasoning in support of the conclusion that there was an imputed waiver of privilege held by them. The basis for that finding was that both the ATO and the AFP were investigative bodies involved in the prosecution of Mr Kinghorn (Kinghorn (No 4) at [165]) and it would “defeat the accused’s rights reflected in the accusatory and companion principles if the ATO [and the AFP] could maintain privilege” by maintaining it was the CDPP’s conduct and not their conduct that was inconsistent with maintenance of the privilege (Kinghorn (No 4) at [167]). That reasoning does not survive this Court’s finding in relation to imputed waiver in respect of ground 1.

186. However, ground 2 of the appeal by the Tax Commissioner and the AFP Commissioner goes beyond that. They contend that any privilege subsisting in their favour could not be waived by the conduct of the CDPP in the conduct of the prosecution. They submitted that waiver could only occur by reason of the conduct of the “privilege holder” (citing Mann v Carnell at [28]). It was contended that the CDPP’s “conduct” is not their “conduct” for the purposes of determining whether there is an imputed waiver and the CDPP is not their “agent” in conducting a prosecution. On behalf of Mr Kinghorn, Mr Walker submitted that when any agency of the Commonwealth sought advice from the CDPP it was implicit that the “CDPP may either later disclose that [advice in the discharge of] their duty of fairness or do some act that would waive any privilege that might exist over that advice”.

187. It follows from the above that, in instituting and maintaining the prosecution of Mr Kinghorn, the CDPP was exercising the functions conferred by ss 6(1)(a) and (b) of the CDPP Act. In that respect, the CDPP was not acting as the “lawyer” for the Tax Commissioner or the AFP Commissioner. The submissions of the parties on this ground therefore raise a question as to whether the conferral of that legislative authority on the CDPP carried with it authority to waive privilege held by the executive government, including statutory office holders, if that was considered necessary and appropriate for the conduct of a prosecution for a breach of Commonwealth law. That is a large question which should be only be determined if it was dispositive of a justiciable dispute. In this case, by reason of this Court’s conclusion in relation to imputed waiver, a resolution of ground 2 will not be dispositive of any question affecting access to documents. Instead, in these circumstances if the Court addressed ground 2 it would only be advising on a matter that reflects the internal relationships of the executive arm of the Commonwealth government. In those circumstances leave to raise ground 2 should be refused.

Ground 3 of Kinghorn Appeal (and Notice of Contention): Shouldice Advice

188. As noted, the primary judge ruled that privilege over the Shouldice advice had been waived other than in respect of Parts 4 to 7 (Kinghorn (No 4) at [206]). The basis for the finding of waiver was her Honour’s reasoning in relation to imputed waiver which has the subject of a successful challenge by the CDPP ([id]). The primary judge upheld the CDPP’s claim of privilege in respect of Parts 4 to 7 of the document because, having inspected the document, her Honour concluded that it dealt with “discrete matters” ([id]).

188. It follows from the above that her Honour’s finding of imputed waiver over parts of the Shouldice advice must be set aside. If the matter was left there then the claim for privilege in respect of the whole document would be upheld. However, by a notice of contention Mr Kinghorn seeks to uphold so much of her Honour’s finding that required the production of Parts 1 to 3 of the Shouldice advice on the basis that the effect of the advice was voluntarily disclosed (Evidence Act, s 122(3)). Ground 3 of Mr Kinghorn’s appeal seeks to extend that finding to Parts 4 to 7 of the Shouldice advice.

189. By his notice of contention, Mr Kinghorn asserts that privilege is lost over at least part of the Shouldice advice by the operation of s 122(3) which deems a waiver to have occurred under s 122(2) if either “(a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person”, or “(b) the substance of the evidence has been disclosed with the express or implied consent of the client or party”.

190. The disclosures that are said to result in the loss of privilege were made in other documents released to Mr Kinghorn. They were summarised by the primary judge in Kinghorn (No 4) at [21] to [22] as follows:

“Parts of the advice appear from the following documents which have either been disclosed or produced in answer to a subpoena. In one such document …. the following passage appears:

‘The issues were referred to the Commonwealth Director of Public Prosecutions (‘CDPP’) who advised that an investigation will need to be undertaken before the CDPP would be in a position to confidently assert that there are reasonable prospects of conviction of … Kinghorn … for offences arising out of … alleged failures to disclose income and/or overseas assets in relevant tax returns.’

On 6 June 2008 Ms Shouldice sent an email to the ATO, copied to the AFP and DPP, which attached a document … which said, in part:

No charges laid to date. Investigations currently being undertaken by the [AFP]. The [DPP] has stated in a preliminary advice that if evidence becomes available that reveals that Kinghorn … held beneficial interests in the subject Jersey companies there is a prima facie case against either or both of them for defrauding the Commonwealth.’

An ATO report forwarded to the AFP in July 2010 … said:

‘On 5 February 2008 the [DPP] advised the ATO that a prima facie case existed against Kinghorn … although a criminal investigation would need to be undertaken to obtain further evidence.’”

192. The authorities concerning s 122(3) were reviewed by White J in Fenwick v Wambo Coal Pty Ltd (No 2) [2011] NSWSC 353 (“Fenwick”). His Honour concluded (at [24]) that “[w]hether disclosure amounts to disclosure of the substance of a privileged communication involves questions of degree”. In Fenwick the relevant disclosure was a draft letter sent between the parties which not only disclosed the effect of the legal advice but the substance of the reasoning said to support it. Thus, it was found that s 122(3) was engaged (at [4] and [24] to [26]).

193. On behalf of Mr Kinghorn it was contended that, based on the disclosures in the documents set out above, s 122(3) and in turn, s 122(2) were engaged. On behalf of the AFP Commissioner and the Tax Commissioner it was submitted to the primary judge that the substance of the Shouldice advice “concerned the necessary investigative steps and how those steps should be taken to obtain admissible evidence”. The primary judge noted those contentions but it was not necessary for her Honour to resolve them given her Honour’s approach to waiver. The contentions were repeated in this Court. Like the primary judge, this Court was invited to inspect the Shouldice advice under s 133 of the Evidence Act so as to allow a comparison of the contents of the advice with what has been disclosed. The Court took up that opportunity.

194. Based on an inspection of the Shouldice advice, the Tax Commissioner and AFP Commissioner’s submission correctly characterises parts of the Shouldice advice. The substance of those parts is not disclosed by the extracts set out above. Further, the substance of those parts is not interconnected with, or explicable of, those parts the substance of which has been disclosed in the above passages. However, the above passages do disclose the substance of other parts of the Shouldice advice specifically Part 8 and the first two points in Part 10. It follows that s 122(3) deems privilege to have been waived in relation to those parts under s 122(2). Although the notice of contention was directed to Parts 1 to 3 of the Shouldice Advice that was based on an apprehension by those acting for Mr Kinghorn as to the structure of the advice which may not be correct. In relation to Parts 1 to 3 it is reasonably necessary for those parts to be viewed to enable a proper understanding of Part 8 and the first two points in Part 10. Hence, s 126 of the Evidence Act operates to cause privilege to be lost in relation to those parts as well. Accordingly Mr Kinghorn’s notice of contention will be upheld to that extent that he will be granted access to Parts 1 to 3, Part 8 and the first two points in Part 10 of the Shouldice advice.

195. Mr Kinghorn’s submissions in respect of ground 3 contended that Parts 4 to 7 of the Shouldice advice fell within the primary judge’s ruling on imputed waiver. That contention falls away as a consequence of the CDPP’s successful challenge to that ruling. However, it was also contended that, as Parts 4 to 7 concern “what investigative steps may be taken to obtain admissible evidence, in particular from Jersey authorities”, they cannot be separated or isolated from those parts dealing with the advice that was given and the subject of the above disclosures. That contention has already been rejected. The primary judge’s analysis of these portions was correct.

196. Accordingly, ground 3 is rejected but Mr Kinghorn’s notice of contention is upheld in part. The parties should prepare orders to reflect this via order 3 in the CDPP Appeal and order 5 in the appeal by the Tax Commissioner and the AFP Commissioner set out below.

Disposition

197. The Court makes the following orders:

In relation to the appeal by Mr John Kinghorn:

(1)   Grant leave to appeal;

(2)   Dismiss the appeal.

In relation to the appeal by the Commonwealth Director of Public Prosecutions:

(1)   Allow the appeal;

(2)   Set aside orders 1, 2 and 3 made on 30 October 2019;

(3)   Grant the parties’ liberty to apply within 21 days to seek such further orders as are necessary to give effect to the Court’s reasons.

In relation to the appeal by the Commissioner of Taxation and the Commissioner of the Australian Federal Police:

(1)   Save as to ground 2 of their appeal, grant each of the Commissioner of Taxation and the Commissioner of the Australian Federal Police leave to appeal;

(2)   Refuse leave to appeal on ground 2;

(3)   Allow the appeal;

(4)   Set aside orders 1, 2, 6 and 8 made on 23 October 2019;

(5)   Vary order 8 made on 23 October 2019 to delete the words “orders 1 and 3” and substitute “order 3”;

(6)   Grant the parties’ liberty to apply within 21 days to seek such further orders as are necessary to give effect to the Court’s reasons.

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Decision last updated: 25 March 2020