Kinghorn v Commonwealth Director of Public Prosecutions; Kinghorn v Commissioner of Taxation

[2020] HCATrans 144

[2020] HCATrans 144

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S57 of 2020

B e t w e e n -

JOHN ALAN KINGHORN

Applicant

and

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Office of the Registry
  Sydney  No S58 of 2020

B e t w e e n -

JOHN ALAN KINGHORN

Applicant

and

COMMISSIONER OF TAXATION

First Respondent

COMMISSIONER OF AUSTRALIAN FEDERAL POLICE

Second Respondent

Applications for special leave to appeal

KIEFEL CJ
NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO CONNECTION TO MELBOURNE

ON FRIDAY, 11 SEPTEMBER 2020, AT 12.30 PM

Copyright in the High Court of Australia

____________________

MR B.W. WALKER, SC:   I appear for the applicants with my learned friends, MR S.J. BUCHEN, SC, MS G.K. HUXLEY, and MR H.M. ATKIN.  But I am sorry to intrude, a matter of logistics, your Honours do not appear on the screen at all.  (instructed by King & Wood Mallesons)

KIEFEL CJ:   I see.  Thank you for letting me know.  We will adjourn briefly until the visual aspects can be reconnected.

MR WALKER:   I am sorry, your Honours.

AT 12.31 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.33 PM:

KIEFEL CJ:   Hopefully order is re‑established, Mr Walker.

MR WALKER:   It appears to be so, yes, your Honours.

KIEFEL CJ:   Thank you.  We have your appearances, thank you.

MR WALKER:   Thank you.

MR J.C. GILES, SC:  May it please the Court, I appear with my learned friend, MS H.M. MANN, for the respondent in S57/2020.  (instructed by Director of Public Prosecutions (Cth))

MR C.L. LENEHAN, SC:   May it please the Court, I appear for the respondent with MR M.J.H. VARLEY, in S58/2020.  (instructed by Australian Government Solicitor)

KIEFEL CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, I will address nearly all of my remarks indifferently to both applications.  In our submission, it would be appropriate for the Court, if attracted by any of our arguments for special leave in the first of the applications, that is, against the Prosecutor, then for the reasons developed in writing the second application should also be permitted, those reasons in writing.

KIEFEL CJ:   Mr Walker, do you require an extension of time?

MR WALKER:   Yes, I do, your Honour, on the grounds of the evidence in the affidavit.

KIEFEL CJ:   I understand it is not opposed by the respondents?

MR LENEHAN:   That is correct.

MR GILES:   Not on my part, your Honour.

KIEFEL CJ:   Yes, you have that extension, Mr Walker.

MR WALKER:   I am obliged.  Thank you, your Honour.  Your Honours, the reasons why, if the first application be attractive, the second should also be granted, is that the connection between the issues of waiver and forensic conduct of a prosecutor, and other agencies of the prosecuting polity in relation to waiver, has not been the subject of any authority in this Court and, in our submission, would usefully be attended to for practical purposes in this case if the first application finds favour with your Honours.

Could I then set out the sequence of matters which, in our submission, throw up the occasion for the grant of special leave.  The sequence really commences with the compulsory examination without privilege against self‑incrimination.  The sequence then, jumping quite a few steps, produces what is the current form of pending prosecution, two charges under 135.1(7) of the Code of what might be paraphrased as criminal misrepresentation.

There have been evolutions of those charges, reductions and withdrawals of other charges in the history that does not cast any particular light on the present state of affairs, except to emphasise that the quite extraordinary delay between the events in question and today can certainly not be simply levelled at anything on the part of the accused.

There was, as one might expect in light of principle and authority in this Court, consideration given by the accused to the status or propriety of the prosecution, bearing in mind in particular the outcome of an argument for a stay in a similar, though not identical, case, the decision of Leach in the Queensland Court of Appeal.  Your Honours appreciate that that was a decision which is overtly based on a reading and understanding of authorities in this Court with which your Honours are familiar and which are not in question in this application.

Indeed, the correctness of Leach, as we understand it, forms no part of any forensic stance of the Crown in relation either to this application or generally.  So that what looms and is, alas, not embarked upon by way of a hearing is an application based upon Leach for either a permanent stay or a temporary stay pending what is sometimes called…..from prosecution and the investigation team.

Your Honours, I have just had my attention drawn to the fact that all of the image that I can see now appears to be frozen.  I am not quite sure what your Honours wish me to do, whether to simply to proceed on audio alone or not?

KIEFEL CJ:   We will have one further attempt at reconnection.  If it fails again we will switch to audio, Mr Walker.  We will adjourn briefly.

MR WALKER:   I am obliged; I am sorry.  Thank you.

AT 12.38 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.43 PM:

KIEFEL CJ:   Yes, Mr Walker.

MR WALKER:   Thank you, your Honours.  In the course of arguing that application for alternative forms of stay there will be raised arguments of what I might call doctrine - that may be a little grandiose.  By that I mean, Leach being correctly decided, nonetheless, what does it stand for, and in particular, may it be distinguished.  Those are not issues which have been confronted by either of the courts below, and it is not the subject matter of what we seek special leave to argue by way of an appeal.

Now, we accept that that immediately confronts us and the Court with the what might be called extremely interlocutory nature of what we are attempting in this Court.  We accept that figures of speech with which everyone is familiar, such as the fragmentation, excessively or otherwise, of criminal process, must loom large in your Honours’ decision in relation to special leave.  But for the following reasons, the circumstances of this case, and the nature of the issues for which we seek special leave, rather tend to outweigh what would otherwise be the considerable force of comments against our application based upon those considerations.

The course of authority in this Court, and the principle enunciated in them, choosing, by way of recent illustration only, the decision in Strickland, emphasises the extent to which the facts and circumstances pertaining to the particular proceedings before the Court, including the antecedent investigation and prosecutorial decision‑making, can never be put to one side so as to be, as it were, irrelevant to or immaterial for the purposes of, considering either the availability of or the proper exercise of the discretion in the Court, permanently or conditionally to stay criminal proceedings.

In particular, we submit that the course of authority and principle strongly support the position we have taken, one we understand to be contested by the Prosecutor, that it will always be appropriate for a court, entertaining such an application for a stay, to consider the facts, that is, the actual facts shown by evidence, if necessary, after a forensic contest between the parties, about the availability, the extent and the intensity of the use of the impugned material in a case said to raise the prospect of the accusatorial and companion principles being infringed.

In this case, of course, the basic foundation for that argument is the intended use by the prosecution in ways that probably do not need, at the moment, fully to be understood and may still be in the course of evolution within the thinking of the prosecution, of the material obtained by way of compulsory examination without protection of privilege against self‑incrimination.

It is well understood and encapsulated within the reasoning in Leach, as your Honours would have read in our written submissions, that points of so‑called distinction such as the illegalities of all anterior steps in Strickland – not points of distinction which, in our submission, will affect an argument about Leach in this case – Leach being a case where there was an anterior lawfulness but a later unlawfulness of the use of the material, and that is the issue which will be before the Court at first instance in the supervisory – important supervisory jurisdiction it will exercise if we are successful in the stay application. 

The evident importance – not merely to us as an accused but to the administration of justice – of the proper presentation and testing and full consideration of all proper matters factually to be taken into account in such an application can scarcely be overstated.  It is for those reasons, in our submission, that rather than there being an invidious fragmentation, this is, in our submission, a salutary cause to ensure that the machinery of the administration of justice does not continue in a case where, by definition, it should not – that is, where the interests of the administration of justice – such as actuated this Court in Strickland – have required that substantive proceedings not go on.

That is why we can see that the fragmentation – the woefully preliminary stage at which we present ourselves to this Court in relation to the whole sweep of hypothetical criminal proceedings – can be understood as really a function of the position taken by the Crown and Commonwealth agencies because, after considerable dealings between the parties, that is, the parties to the prosecution, concerning the scope of and what was necessary in order to discharge the duty of disclosure imposed in a continuing way on the prosecution and, we submit, including the full disclosure of the extent and intensity of the use of compulsorily acquired information without privilege against self‑incrimination, there was an impasse reached which, on the authorities in New South Wales and according to principle, in our submission, was addressed by the cutting of the Gordian knot and the issue of subpoenas. 

Even they were subject to what I might call interlocutory arrest in the course of seeking to get to an end of all of this by first of all unsuccessful attempts to have the subpoenas set aside, an argument which focused upon legitimate forensic purpose, an argument which failed legitimate forensic purpose being resoundingly found by Justice Adamson at first instance and not the subject of any challenge thereafter.  That legitimate forensic purpose, of course, is to produce material which goes to the extent and intensity of the manner of use of the material which I will simply call for convenience the impugned material, the 264 transcripts. 

Now, having failed to set aside the subpoenas there then became the occasion, including adjournments, not sought by us, for a claim of privilege, legal professional privilege, with respect to material in the hands of our three sets of opposing parties.  It suffices to say that the issue then became one as to whether on various grounds the claim of privilege would be allowed so as to deny us access to material accepted to fall within the subpoena, we submit, therefore, manifestly accepted to be but for the privilege properly disclosable to us and usable by us for what it may be worth in the advancement of our client’s cause in the application for a stay. 

Now, what then happened, as your Honours have seen, is that there was argument across a number of fronts.  The one which we seek to advance following a grant of special leave, concerns a waiver of privilege by reason of the forensic stance and conduct of the Prosecutor. 

As I said in relation to the second application, the only other comment I want to make about it, it does raise an important question of a kind likely to recur about which, therefore, this Court could as a matter of general importance decide an issue between the parties presently before the Court in both applications in a way useful for the administration of criminal justice generally, namely, whether ‑ ‑ ‑

KIEFEL CJ:   Mr Walker, are the facts necessary for a conclusion as to waiver of privilege before the Court in some final form?

MR WALKER:   Yes, they are.  The findings concerning the commencement and maintenance and answer to the linked point by the Crown are all before the Court.  I need to qualify that in one regard.  I do not mean to give evidence from the Bar table and I hope my friends will correct me if I have gone wrong, but I think there are still provisional…..to the position the Crown takes about what would happen if we win the so-called Leach point.  I will come to that in just a moment.

Your Honours will have seen reference to that in the Court of Criminal Appeal.  My friend, Mr Giles, as their Honours record, made what I had understood to be the currently extant position – I do not mean that unkindly but I note that their Honours called it “a concession” – that if we were to win the Leach point then there should be a temporary or conditional stay, a position which the Court of Criminal Appeal envisaged could mean that it would only be upon the Director assuming a kind of onus that there would be a lifting of that stay.

KIEFEL CJ:   The Court of Appeal I think said that that offered some kind of pathway to resolve the dispute without needing to decide further issues.  Is that right?

MR WALKER:   Absolutely, that is exactly right in the way I am about to try and explain.  That is something I have to confront in terms of what I might call either the prematurity – it is not really premature – or the fragmenting quality of our application.  It is no use me disguising the fact that what we seek to do is to have an appeal heard in this Court on a matter which has to do with our attempts to gather evidence and present evidence for an interlocutory application in the nature of a stay of criminal proceedings.  Simply, the framework ‑ ‑ ‑

KIEFEL CJ:   I cannot quite follow from the orders sought, set out in the application for special leave, what the orders sought from this Court would be and how they would in practical terms cascade to the point that you need.

MR WALKER:   In practical terms, your Honour, they would cascade to the point that privilege would be held to be waived – that is, her Honour’s reasoning would be upheld in that regard, subject to qualifications we express in our process, accepting the correctness of the Court of Appeal’s factual modification of the application of those principles that her Honour had applied to particular documents.  So we accept the outcome for particular documents in a way that need not concern this Court.

As to the body of the documents for which we seek access, the effect, were we to be given special leave and to succeed in the appeal to the extent we urge, would be to provide us with access to documents enabling us to show in detail the extent and intensity of use by investigators and prosecutors in advancing their case of criminal liability against our client for the purpose of the permanent or, alternatively, conditional stay application that we wish to mount.

Now, the way through, your Honours appreciate, was for the Court of Criminal Appeal to identify, by reference to the prehistory of the matter before it reached the Court of Criminal Appeal, the lynch point was one upon which the parties were at loggerheads, that is, it required to be determined after adversarial argument what Leach stood for, it being accepted to be correct, what it stands for and how that might apply, if it all, to the circumstances of our case. 

Your Honours have heard me already emphasise the extent to which all such applications for stay, including as to consequences of the finding of any relevant infringement of the relevant principles, is fact rich, case specific, circumstantial.  In our submission, the way through, I am afraid, presently stands as being the next step in the Supreme Court being an argument which, without any disrespect to anybody, I venture to suggest may have the character, in some aspects, of a seminar on – a seminar because it will be bereft of the factual material that we have not been allowed to have except by the discretionary, uncontrolled choice of the prosecution and that, in our submission, is the key to why we should get special leave to ensure that if we are entitled to obtain the material for which privilege we say has wrongly been sought, we will have a distinctly different record or resource to draw to the courts attention concerning the application of Leach including, very importantly, what form of order should result were we to succeed in any aspects of the application of Leach to our proceedings.

It is for those reasons, in our submission, that as to the point for special leave in relation to waiver of privilege, could I take your Honours in the application papers to page 185 where their Honours’ reasoning against us culminates in their Honours paragraph 155.  Your Honours are of course familiar with what might be called in this case the talismanic phrasing of paragraph 29 of Mann v Carnell, the almost dismissive phrasing at the end of that paragraph:

not some overriding principle of fairness operating at large. 

In our submission it simply cannot be said that there is anything nebulous, let alone merely operating at large concerning matters of forensic conduct governed by principles, strictures and rules of a kind described as fundamental in the not unrelated consideration reached by this Court in paragraph 26 of Nguyen about prosecutors.  It focuses, rather than diffuses, the matter to say that the point we wish to raise about waiver and a duty of disclosure comes about because of the prosecutor belonging to a special, peculiar kind of litigant.  That is the first thing.  Mann v Carnell in the famous paragraph 29, is speaking more generally, of course. 

Second, there is nothing merely at large about the unfairness that we call in aid triggered by the inconsistency between there being a continuing duty of disclosure that is not doubted and a claim of privilege.  Your Honours know there are variants of the argument that we advanced below and would wish to advance in this Court, but they all end up at this position, that either the Crown by a successful claim to legal professional privilege trumping, so to speak, a duty of disclosure strengthens, perhaps clinches, a case for a permanent stay or, alternatively, as we would prefer to put it, the imposition and incidence of that duty of disclosure bring about the waiver for which we unsuccessfully contended below.

Those are the reasons why, in our submission, notwithstanding first appearances, this is a case that urgently needs attention now so that the

proceedings do not go in a fundamentally flawed direction.  May it please the Court.

KIEFEL CJ:   Yes, thank you, Mr Walker.  Yes, Mr Giles.

MR GILES:   May it please the Court.  We oppose the application on two bases.  First, the premise of our learned friend Mr Walker’s argument is that the prosecutorial duty of disclosure operates in relation to identified communications, here, communications which are otherwise the subject of client legal privilege.

The premise that the duty is engaged in relation to those communications is in dispute, that is the dispute which the Court of Criminal Appeal thought should be resolved by the trial judge as the anterior question.  That anterior question is, in our submission, appropriately determined prior to the dispute about whether the communications remain the subject of the privilege.  I will come back to explain why.

The second reason we submit that the application should be dismissed is that accepting that the content of the prosecutorial duty of disclosure raises an important question in the right circumstances, the proposed appeal raises a slightly different point.  The issue in the proposed appeal is a resolution of the intersection between the duty of disclosure, in effect, assumed by reference to the relevant documents and client legal privilege.

In our submission, resolution of that intersection was correctly decided by the Court of Criminal Appeal for the reasons given, that is, in effect, the duty does not derogate from the privilege, albeit that a prosecutor may be required to elect between expressly waiving the privilege and maintaining the prosecution in some circumstances.

Turning then to the first point, our learned friend Mr Walker has explained, in effect, why there is an anterior question by reference to the background.  As your Honours know, the applicant, the accused, attended an interview over some five days under the old section 264 of the
1953 Income Tax Assessment Act.  At that interview, the privilege against self‑incrimination was abrogated.  The interview, the questions and answers, were transcribed.

The applicant was subsequently charged with two offences against section 135.1(7) of the Criminal Code.  Importantly, those charges are each particularised as involving a course of conduct of making false representations to the Commissioner of Taxation on occasions prior to, at and after the interviews.  It is, in that circumstance, proposed to tender at least part of the transcripts of the interviews at the trial. 

The applicant, invoking the accusatorial principle and companion principle says that it is impermissible to do that and that the prosecution should be stayed.  We disagree.  That is the so‑called Leach point, which is expressed by the Court of Criminal Appeal in paragraph 24 of the judgment at application book 138, lines 10 to 20.  In effect, our submission is that where the charge involves alleged misstatements at the compulsory interview the accusatorial principle and companion principle, by necessary intendment, do not prevent use of the transcripts of those interviews. 

Whether we are right or not is the anterior question, and if we are right about the Leach point then, in our submission, the duty of disclosure is not engaged in relation to this…..the documents are subject to the privilege.  That, in effect, as a case management decision, is the point, or one of the points with which the Court of Criminal Appeal agree and the court suggested it should be determined sooner rather than later at application book 196, line 30 and that is to happen. 

It is not, as our learned friend suggests, to be something of a seminar, but rather, there is a pressed issue dependent upon the nature of the charge, the particulars, and no doubt the statement of the Crown’s case and that is how we will seek to distinguish Leach, which is a case in which the offence related to conduct external to the interview.

In our submission, the early resolution of the Leach point, so to speak, is directed to the scope of the duty of disclosure, not to the content of the duty.  By that we mean it will identify those documents or communications the subject of the duty of disclosure.

In contrast, our learned friend’s application to this Court assumes that they are either right about the Leach point or relies on the proposition that because they might be right the duty of disclosure is consequently engaged.  In our submission, neither is an adequate basis to proceed for the purpose of the substantive issue sought to be identified.  That is because whether and why the duty of disclosure is engaged informs a question of the effect or application of that duty and informs the intersection between the duty of disclosure and the privilege.

That is, in our submission, the point of the principle sought to be identified is best determined in our case when the duty of disclosure is known to be engaged instead of somewhat in the abstract where it might be or we add, for that matter, might not be so engaged.

Our learned friend’s reliance on Strickland, in our submission, is no answer to that proposition.  This is not a case of illegality or egregious wrongdoing.  Indeed, in our submission, it is not a case of illegality at all.  The Court of Criminal Appeal held, on one of our learned friend’s arguments below, that subject to a point reserved by our learned friends the examinations and the dissemination of the transcript was lawful.  That finding is not challenged. 

At that point the analogy with Strickland, in our submission, fails and in the present case, at least if we are correct in relation to how I put the Leach point the use of the transcripts for the purpose of prosecuting the particular charge is permissible and there is no cause to investigate the nature and extent of the dissemination of the transcripts, which is what the underlying issue goes to.  That is the first reason, in our submission, that special leave should be refused.

Turning then to the second, the question raised on the application involves, as we say, the intersection of the prosecutorial duty of disclosure and legal professional privilege.  Whether the resolution of that intersection is approached through the framework of waiver as a privilege or the framework of the existence of the privilege, as is raised in our learned friend’s written submissions, the Court of Criminal Appeal resolves that question correctly and for conventional reasons. 

We embrace judgment paragraph 155 to which our learned friends took your Honours.  The approach to inconsistency in that paragraph is the approach required by section 122(2) of the Evidence Act, bearing in mind this application by reason of the rules applicable in New South Wales is to be determined, at least from the perspective of the Commonwealth Director’s claim to privilege, by reference to the Evidence Act.

The court in paragraph 155 focused on the quality of the Commonwealth Director’s conduct.  I think…..Mr Walker’s – indeed Mr Walker may have just dropped out, your Honours. 

KIEFEL CJ:   Mr Walker, can you hear us?  Mr Walker?  Thank you for drawing that to my attention, Mr Giles.  We will adjourn until we can establish at least audio connection.

MR GILES:   May it please.

AT 1.11 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.13 PM:

KIEFEL CJ:   Yes, Mr Giles.

MR GILES:   Thank you, your Honours.  I was in the course of saying that the communications – the documents over which privilege is claimed – that are alleged to be the subject of the duty of disclosure arise on the applicant’s motion for a stay – that is, by reference to our learned friend Mr Walker’s contention that the nature and extent of the dissemination and use is sufficiently relevant. 

As the Court of Criminal Appeal reasoned, for the prosecution to oppose that notion does not, in effect, force a waiver on the Director because, as is established in the authorities to which the Court of Criminal Appeal referred, to oppose a motion or an application is not relevantly inconsistent with maintaining the privilege, whether one uses inconsistency within the language of section 122 or at common law.   

We add two further points.  First, necessarily as enunciated, the applicant’s contention elevates the obligation of disclosure by the prosecution over what was otherwise the fundamental right protected by the privilege with the effect that the privilege will necessarily be waived if the duty is engaged or here may be engaged.  That is a proposition which is not found in authority. 

It also has the consequence, which we describe as an odd consequence, that the underlying public policy of the privilege stated at a level of abstraction, that is, in the interests of society that people take and act on legal advice, does not apply to a prosecutor or at least does not apply to the same extent.  One might think, in our submission, that encouraging a prosecutor to obtain and act on legal advice is rather an a fortiori example of the policy and should not be discouraged. 

Secondly, the applicant’s contention ultimately reduces to an argument, in our submission, that the communications may be relevant to his motion with the consequence of errors of waiver.  But that is to raise the privilege defeasible by reference to a contention advanced by someone other than the person with the benefit of the privilege, a proposition which on analysis, in our submission, is inconsistent with the fundamental character of the privilege.

NETTLE J:   Mr Giles, do you reject the proposition that because the documents fall within the scope of the subpoena they are relevant for the stay application?

MR GILES:   Yes.  The fact that the documents fall within the subpoena and the subpoena was not set aside carries with it a necessary conclusion that they meet the test of relevance for the purpose of the subpoena.  That is a different conception either to the documents being for the subject of the duty of disclosure - after all at our end we know the content of the documents and on the subpoena is the usual circumstance of the documents being described by way of category - and, secondly, because in our submission the so‑called Leach point arises at a point of principle we part company with our learned friend Mr Walker’s contention that documents showing the nature and extent of dissemination are, so to speak, presently implied.

NETTLE J:   I suppose it depends upon the scope of the Leach principle, if any?

MR GILES:   Quite, if the debate which the Court of Criminal Appeal has suggested, we suggest appropriately, be determined by the trial judge.

NETTLE J:   Mr Walker says that he would be aided, at least conceivably, in the prosecution of the Leach argument if he could demonstrate to the Court the nature that is sought to be concealed?  What do you say as to ‑ ‑ ‑

MR GILES:   We say that is wrong because the accusatorial principle has no application, in our submission, to these charges where the conduct as the examination is the subject of the charges in part, and secondly, we say that that contention elevates the duty of disclosure such that the contention of the documents may be relevant requires disclosure and necessarily defeats the privilege.  We say that that is wrong and inconsistent with the nature of the privilege and the cases on it and the mere contention that the document is made irrelevant is insufficient to bring us within section 122(2) of the Evidence Act, namely that there be inconsistency in our conduct.

NETTLE J:   Is that stance consistent or inconsistent with Mr Justice Martin’s reasoning in Bunting?

MR GILES:   It is inconsistent with Justice Martin’s reasoning.

NETTLE J:   Which has been followed in other jurisdictions in the country.

MR GILES:   But not precisely on that point.  The extent to which it is followed is not the point as for the intersection between the privilege and the obligation of disclosure.

NETTLE J:   Thank you.

MR GILES:   I was about to move on to our learned friend’s second way of putting the argument to which ground 2 is directed and that is the argument which primarily directs attention to a condition to the existence of the privilege – that is that the communications must be confidential and, if viewed through the prism of the Evidence Act, that is whether one is speaking in section 118, advice privilege, or section 119, litigation privilege.

NETTLE J:   We have lost Mr Walker again, I think – at least I have.

KIEFEL CJ:   I think the arrangement, Justice Nettle, is that Mr Walker’s instructors will advise if they have lost audio as well.

NETTLE J:   Thank you.

KIEFEL CJ:   We will proceed until we hear to the contrary.

MR GILES:   I am grateful, your Honours.  The proposition, as we understand it, is that the communications are not confidential because they may become – that is, the communications when entered into, that is, when the Commonwealth Director first took advice or first gave advice, are not confidential in the requisite sense because of the potential for those documents to later, that is those communications to be later the subject of the prosecutorial duty of disclosure.

In our submission, that is wrong.  One directs attention to the point in time of the communication and we do observe that in relation to all confidential communications those communications come with the potential, greater or lesser as the case may be, that the confidence will be lost because of future events.

We add that the second way of putting the case, that is that there is no privilege because the documents may become the subject of the duty of disclosure, returns to the consequence that a prosecutor will rarely – I cannot say never because one can imagine - there is no limit to one’s imagination, in a sense, but a prosecutor will rarely have the benefit of client legal privilege because if one looks at it through the prism commended, almost necessarily the communication might at some stage in the future become the subject of the duty of disclosure.

In that…..our learned friend’s second way of putting the case, ground 2, it is contrary to the policy underlying the privilege, it is not supported by authority and it is one which should not attract the grant of leave.  For those reasons, in our submission, special leave should be refused, both because of the way in which the dispute arises in this Court and, secondly, the Court of Criminal Appeal were right for the reasons given.  May it please.

KIEFEL CJ:   Thank you.  Mr Walker, I take it that you have no further submissions in relation to the Commissioner of Taxation?  We might have lost audio as well.  We will have to adjourn and in that process find out whether audio was lost while Mr Giles was speaking as well.

AT 1.23 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.28 PM:

KIEFEL CJ:   Mr Walker, I did not think that you had heard me when I asked whether or not you had any further submissions respecting the Commissioner of Taxation.

MR WALKER:   In fact I had heard your Honour, I tried to answer, but it obviously was not transmitted to your Honours.  I did have nothing to add beyond what I had already said concerning the other Commissioners.

KIEFEL CJ:   Yes, thank you.  Yes, Mr Lenehan.

MR LENEHAN:   Your Honours, then I can be brief.  As your Honours have seen we adopt the submission put by our friends led by Mr Giles in the other matter.  We make two further points specific to the application in our matter.  The first concerns Mr Walker’s - he calls it the first additional basis for disclosure, that is, the confidentiality of documents is necessarily qualified from the outset by the duty of disclosure and Mr Giles has already made some submissions to you on that, and we adopt those.

Can I say this in addition?  Your Honours know that Mr Walker puts that on the basis of a different aspect to what was said by Justice Martin in Bunting.  But at least as it applies to my client, we say what his Honour there said is in fact at odds with Mr Walker’s submission.  His Honour there accepted a concession that communications with the DPP taking place after criminal proceedings commenced, that is, after the duty of disclosure had arisen, may lack the requisite degree of confidentiality.  It may do so, his Honour said, because one might then infer that the parties to the communications did not intend that the communication remain confidential.

But his Honour also accepted in Bunting that the position is quite different when one is dealing with a case where the communications take place before the duty of disclosure is in line with it and, at least with regard to my client, all relevant communications by which they claim privilege either fall within that category or are copies of such communications. 

As his Honour observed, the question of whether a communication is privileged, including whether they had that requisite character of confidentiality, is to be determined as at the time that the communication is made, and the Court of Criminal Appeal made a similar point.  So the possibility of the later engagement of the duty of disclosure in a yet to be commenced prosecution, something that is neither known nor inevitable, could not suggest that there is some sort of inherent qualification to any obligation of confidence.

As the Court of Criminal Appeal said, that issue rather turns upon evidence as to the facts and circumstances that ascertained when those communications were made and your Honours know that this argument was really only put in the Court of Criminal Appeal.  Had it been put in issue before the primary judge those matters could have been further explored in evidence, but we say there is no basis for now saying that there is some across the board award of confidentiality in all of our communications over which we claim privilege. 

Both we and Mr Giles make a similar point as regards the evidentiary foundation for Mr Walker’s second additional basis for disclosure and we say that those factual difficulties suggest that this is not a convenient vehicle in which those issues can be explored by this Court. 

Now, my second point then concerns my client’s additional argument regarding the waiver, that is, even if the conduct of Mr Giles’ client amounted to some sort of imputed waiver, there was no such conduct on the part of my clients.  Can I just very briefly say this.  Those issues of course only potentially arise on the assumption that Mr Walker’s client otherwise succeeds in his proposed appeal.  So, the fact that those issues are of undoubted importance and interest adds little to his client’s argument if the Court were otherwise of the view that he ought not to be granted leave.  On the reasons advanced by Mr Giles we say your Honours should refuse to give leave.  Those are the submissions of my client. 

KIEFEL CJ:   Thank you, Mr Lenehan.  Anything in reply, Mr Walker?

MR WALKER:   Thank you, your Honour, yes.  In answer to my learned friend Mr Lenehan, in our submission, as perhaps my friend has come some way to accept, there is real general importance and doctrinal significance in understanding whether, for personages like the Commissioner of the Australian Federal Police and the Commissioner of Taxation, communications with which, between whom and with the CDPP, were treated as they were for the purposes of subsection 16(2A)’s authority to disseminate, whether there could be any point in saying that a communication as to its privilege is not affected by a duty of disclosure, a duty of disclosure appertaining to a prosecution, the possibility of which would appear to be essential to the justification for the dissemination in the first place.  That, in our submission, does bespeak the appropriateness of special leave.  We accept, however, that the second application does not sensibly stand on its own.  It should accompany the first application. 

As to the first application, I would simply say this.  It is clear from the very opening of the important paragraph 155 at application book at 185 that the Court of Criminal Appeal was willing to proceed on the basis that the material in question may have been relevant, as they put it, or even crucial to the stay motion.  The same approach can be seen at pages 194, 195 of the application book in their Honours’ paragraph 179.  At the foot of page 194 their Honours make this point:

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.

At one point in our learned friend Mr Giles’ argument, the awful prospect opened up of hearing something more or less in the abstract concerning Leach and if and only if the CDPP were unsuccessful in that, then to proceed to consider questions concerning the manner, that is, extent and intensity of use, of the 264 information in ways infringing the two principles.  In our submission, that is really not to be thought of and mistakes the nature of a duty of disclosure as being a means by which parties can fairly conduct an argument.  It is not foreclosed by one party saying that they are bound to win that argument. 

Your Honours, it remains simply to emphasise that the importance of the statement of principle in Bunting was well and truly appreciated by their Honours in the Court of Criminal Appeal.  Hence the high significance about which we have written in support of our application, of this Court attending to the question whether Mr Justice Martin was correct in detecting that the particular forensic position of a prosecutor who commences and

maintains proceedings ought to be treated, as it was treated in the Court of Criminal Appeal in this case, as simply some general notion of unfairness at large.

In our submission, simply to state that question is to indicate not only the importance of the point but also the real merit of the argument which we seek to put to this Court.  It is to be remembered, as in Bunting, that it is not a question, as Justice Allsop had considered in his well‑known reasons in DSE Holdings, noted by the Court of Criminal Appeal in 154 – it is not a matter of seeing a waiver produced by some chess‑like movement of a response, even by way of a blank denial, to an assertion by the party seeking the waiver of privilege.  That is not the position.

It is the anterior position that somebody like a prosecutor has engaged in all of the attributes of the prosecution, including the continuing duty of disclosure.  It is, as Mr Justice Martin pointed out in Bunting, truly to be characterised as an assertion, not an answer, by a prosecutor, which is the reason why there ought to be the imputed or implied waiver.

That is a familiar principle in the law.  One thinks only of what happens civilly in the case of a plaintiff suing or a defendant defending or cross‑claiming by asserting the existence of undue influence and the effect that that will have on the waiver by reason of simply taking that forensic stance in the nature of an assertion with respect to legal professional privilege of advice sought or given on the subject matter of the alleged undue influence.

It is for those reasons, in our submission, that they are important matters, that it is no making of ours, have been the subject of such fragmentation to date in these proceedings.  It is of the highest public importance that the propriety of the conduct of prosecutions be guarded and guarded by the courts after an appropriate contest between parties.  That is what we seek a proper opportunity to do.  May it please the Court.

KIEFEL CJ:   The Court will adjourn to consider the course that it will take.

AT 1.39 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.42 PM:

KIEFEL CJ:   These matters are interlocutory by nature.  We consider that it is premature for this Court to consider the point of principle sought to be raised in them.  Special leave is refused in each matter.

AT 1.43 PM THE MATTERS WERE CONCLUDED