Kinghorn v The Queen & Ors

[2022] HCATrans 80

[2022] HCATrans 080

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S11 of 2022

B e t w e e n -

JOHN ALAN KINGHORN

Applicant

and

THE QUEEN

First Respondent

ATTORNEY‑GENERAL OF THE COMMONWEALTH

Second Respondent

ATTORNEY GENERAL OF New South Wales

Third Respondent

Application for special leave to appeal

KEANE J
GORDON J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON THURSDAY, 5 MAY 2022, AT 9.30 AM

Copyright in the High Court of Australia

____________________

KEANE J:   In accordance with the Court’s protocol when sitting remotely, I will announce the appearances for the parties. 

MR B.W. WALKER, SC appears with MR S.J. BUCHEN, SC and MS G.E.L. HUXLEY for the applicant.  (instructed by King & Wood Mallesons)

MR J.C. GILES, SC appears with MS H.M. MANN for the first respondent.  (instructed by Commonwealth Director of Public Prosecutions)

KEANE J:   There is a submitting appearance for the second respondent and the third respondent has indicated that it will not be making submissions.  Yes, Mr Walker.

MR WALKER:   May it please your Honours.  Mr H.M. Atkin appears with us as well.

Your Honours, in our submission, this is an appropriate case for the grant of special leave for the following main reasons.  First, it arises from a decision, which is one of the attempts that have been essayed in courts below this Court to explain relations between important and relatively recent decisions of this Court concerning fundamental aspects of the system of the administration of criminal justice in this country, particularly the accusatorial principle and the companion rule.  Second, it follows from that matter that it is best for this Court to give the full consideration that only this Court can give to the proper resolution of what have been seen to be tensions arising from the various interpretations below this Court of those fundamentally important decisions.

The next matter as to why it is worthy of special leave is more particularly in relation to those attempts by courts below this Court.  We have the distinct, clear, but, in our submission, unsatisfactorily reasoned disagreement by the Court of Criminal Appeal of New South Wales with the Court of Appeal of Queensland.  I refer, of course, to the decision of Leach (2019) 1 Qd R 459.

In our submission, the reasoning, apposite as it is by analogy between different statutory texts, by Justice Sofronoff in that court are compellingly significant reasons for this Court to give its consideration to those matters.  There is no solecism, with great respect, that could sensibly be supposed to be found in Justice Sofronoff’s approach.  Certainly, his Honour fits within a long‑established and critically important aspect of such cases, namely applying what is sometimes called, as a canon of interpretation, the principle of legality to an interpretation of a statute.

In this case it is to be recalled that there are a number of interlocking statutory provisions and, at the very outset, there is section 264 of the Income Tax Assessment Act held in De Vonk to have implicitly, but nonetheless, of course, effectively abrogated the privilege against self‑incrimination.  Significantly, of course, such implicit abrogation does not obviously induce the usual explicit legislative consideration of trade‑offs in the nature, for example, of use immunity.  Then there are ‑ ‑ ‑

GORDON J:   Mr Walker, sorry to interrupt.  Could you identify for me, by reference to paragraphs 110 and following at application book 107, which part of the analysis of Chief Justice Bathurst and Justice Payne you do not agree with?  I say that for this reason - you are right, of course, to refer to De Vonk, but as I understood their Honours’ reasons, a lot of those propositions were not in dispute below. 

MR WALKER:   No, quite.  We do not disagree with anything that was said about De Vonk, far from it. 

GORDON J:   I was really more concerned with what follows all the way through to probably what is – maybe 145 – but what are the errors in the analysis in those paragraphs? 

MR WALKER:   Can I go first to page 113, paragraph 129.  There, there is a distinction producing a critical difference which, in our submission, erroneously does so.  It is simply not the case that the lawfulness of the pre‑charge conduct or its unlawfulness provides a sensible discrimen in understanding the outcome and reasoning of the cases in question.  This Court was at pains to point that out in one of the most important sources of the jurisprudence which, in our submission, is rendered more controversial than it should be by the Court of Criminal Appeal’s reasoning, including at 129.

Now, in Lee 253 CLR 455, and the passages I am about to paraphrase briefly are to be found at paragraphs 39, 43, 46 and 51, in the case of questioning before a charge, first of all, the Court was at pains to point out that the critical question was not whether the publication – that is, the subsequent dissemination of the lawfully compelled questioning – was itself unlawful. It happened to be, but that was not the critical question. The critical question was whether that publication produced a miscarriage of justice because the prosecution was armed with the accused’s evidence. That could not have been this Court’s approach if the critical question was whether that was lawful or not.

Next, the Court was at pains to point out that what was concerned was the very nature – and I stress very nature – of the criminal trial and its requisites in our system and next, of course, that what was held in Lee to have produced a miscarriage by conviction represented a departure in a fundamental respect from the requirement of a fair trial for the prosecution to be armed with the accused’s evidence.  It denied the character of the requisite trial according to our system when that occurs.  Those are not matters which obviously turned upon simply a question to be dealt with, perhaps, by Bunning v Cross.

Next in Lee, the Court…..the matter as involving the wrongful release and possession of evidence – a reference that might have given some comfort to the notion that these courts turned upon anterior illegality.  But in paragraph 51 the Court was at pains to dispel that notion demonstrating what, in our submission, is the clear…..in paragraph 129 of the Court of Criminal Appeal.  This Court in Lee said that the effects cannot be equated with the use of evidence illegally or improperly obtained.  What had happened had altered the position of the prosecution vis‑à‑vis the accused and therefore affected the trial in a fundamental respect.  

By way of bookend, in IBAC 256 CLR 459, upon which, in our submission, so much misplaced emphasis is to be found, not only in the argument against us but in the reasoning sought thereby to be defended, and drawing particularly from its paragraph 28, your Honours will recall the description of Lee as having turned on the non‑observance of statutory provisions directed to preserving the forensic balance between prosecution and accused protected by the common law.  It is not a formulation which merely says this is a common or garden case of illegality. 

Then, in IBAC, in that same dictum, the Court making it clear that, in the issues before the Court in IBAC, where there had not been a charge and the question was raised as to the availability of the plainly legislated power of compelled self‑incrimination, that no such issue – that is, an issue concerning the balance between prosecution and accused protected by the common law – no such issue was raised in that case of IBAC. 

It is for those reasons, in our submission, that one can see the pivotal sorting of the binding authorities before the Court of Criminal Appeal – exemplified in paragraph 129 – is wrongly based on a completely inapposite distinction.

In paragraph 131, in further answer to Justice Gordon, it can be seen that it is put as bluntly as this – that Justice Sofronoff is criticised as having reached a conclusion inconsistent with IBAC.  Bearing in mind what I have just drawn to attention IBAC says about itself and drawing in mind that IBAC in no way can be seen as having overruled or even revisited so as to produce a modification of the holdings and reasoning in Lee, it is, in our submission, also to be seen in paragraph 131 that their Honours have – that is, in the Court of Criminal Appeal – mistaken the proper relation jurisprudentially between such an important authority as Lee, on the one hand, and such a quite different case as IBAC on the other hand.

KEANE J:   Mr Walker, is the burden of your argument that all the ink that has been spilled in the cases about the difference between the extraction of evidence from an accused post‑charge and the extraction of such evidence pre‑charge has basically been a waste of ink?

MR WALKER:   Your Honour, with great respect, will not be able to tempt me to describe cases that I have - in which we would include very much so Lee - in such a fashion.  No, there is no waste of ink.  Simply case by case and, according to the material features of cases as they are successively presented to this Court and according to the requirements, therefore, of real - that is concrete adjudication in each case – a general principle, antecedent of course in our jurisprudence and derived from the common law concerning the requisite of a fair trial, there can be seen to emerge.

There is no waste of ink, in particular, in pointing out that there can be lawful compulsion of self‑incrimination pre‑charge, that matter entirely valid in legislative creation – and perfectly proper, therefore, in administration – not casting any light one way or the other on matters arising thereafter and in different circumstances, namely, the proposal, say, to tender such material after charge and at trial of a person so compelled.

There is no case that gives any support for the proposition that the clear anterior authority so to question produces the effect of open slather on tender after a charge and at trial.  That is impossible to understand in relation to Lee ‑ ‑ ‑

STEWARD J:   Mr Walker, I am sorry to interrupt you.  Can I ask just a question for clarification, for me at least?  Do you contend that any of the disclosures that were made by the Tax Office prior to charge were in breach of the Taxation Administration Act?

MR WALKER:   That remains an open question…..aware that there is a pending stay application which we are eager to progress, and that has several times noted the fact that that is an outstanding question.  I am sorry, your Honour, the short answer is yes, but that does not arise by reason of any adjudication of that question that has occurred to date. 

STEWARD J:   Do you say that – I think there must have been some disclosures after he was charged – do you contend that they were made illegally or invalidly?

MR WALKER:   There are two parts to my answer.  Yes, for the same reason that we have pointed out, that has not yet been adjudicated, would not be before this Court.  Second, in any event, we submit that the principle in order to permit effectuation of the adversarial rule and its companion rule – the accusatorial rule and its companion rule, that those principles are infringed by such use thereafter – after a charge, yes.

STEWARD J:   So, your case is, it does not really matter whether what the Tax Office did was legal or not for the purpose of this application, your case is that this is really a fetter on the power of the DPP to do something, namely, seek admissibility of the transcript.

MR WALKER:   Ultimately, yes.  Now, at that point, recognising it has a double edge, of course it is impossible not to refer to the approach taken by this Court in Strickland.  The outstanding thing about Strickland – I might even burst into Latin and say egregious – was the illegality that permeated at so many turns, including pre‑charge, the conduct in that case – the compulsory questioning.  I accept that.

KEANE J:   Also, Mr Walker, in Strickland, the statutory context that made it clear that the intent of the statute was that the material obtained was obtained in circumstances which were such that the statute contemplated – or that the use of that material forensically was contrary to the intent of the statute.

MR WALKER:   Absolutely, your Honour.  I intended to capture that – there was thoroughgoing, at multiple stages, breach of explicit statutory safeguards – we accept that about Strickland.  That is the issue ‑ ‑ ‑

GORDON J:   So, to pick that up, Mr Walker, if one comes back to the statutory provisions we are dealing with here, we have to – do you not, face up to the fact that you – as I had understood – you do not challenge the lawfulness of the examination, you do not challenge the transcript.  Then you have to deal with and face the express language adopted in both 3G as well as in section 355‑50, giving rise to the offence provision.

MR WALKER:   Yes.

GORDON J:   This is not Strickland.  We are not in the Strickland territory, are we?

MR WALKER:   No, that is why I introduced Strickland with the trepidation I indicated.  But I cannot avoid it – I have to take that into account in pressing your Honours with the claim for special leave, which is, this is a matter that remains in terms of the requisite resolution of these important matters of principle that can only be done case by case.

It remains unfinished business in this Court, and there are unsatisfactory features that we have sought to identify in the Court of Criminal Appeal’s approach to that very important exercise because it fundamentally determines the course that will be followed by those considering the laying of the charge, those considering post‑charge the assembly of prosecution material, and those of course presenting prosecution material with the answering responsibilities of those defending, and ultimately of course the responsibilities of a judge in conducting a fair trial.

It is difficult to overstate the significance of the matters of principle, bearing in mind the frequent use of words such as “fundamental” in all the cases concerning the features of the administration of justice affected by these various provisions.  The provisions are various in their particular aspects but if one takes, for example, at application book 167, in paragraph 3G of the Taxation Administration Act thus, for example, subsection (5)(d) and the subject matters following in paragraphs (e) and following, one can see that the authorisation in subsection (1) of disclosure is not, with respect, anything like plain words so as to extend to the tender of compelled self‑incriminatory material. 

I pick up “tender” because it is to be recalled that there is a spectrum, or more accurately a continuum of conduct, which is aimed at, by us, in our arguments concerning the nefarious nature of the prosecution intending to continue – without the conditions that, say, a temporary stay might impose – with respect to access to this material.  That is why it does not matter whether the material was pre‑charge legally or illegally obtained for this argument.  What matters is that there is nothing in the plain words.  I return to Justice Sofronoff’s basic, in our submission, profoundly important foundation, for his reasoning, namely, one requires plain words to depart from that aspect of an accusatorial trial.

That is why in Forge 228 CLR 45, at paragraph 64 – which we have cited in our written submissions – when Chief Justice Gleeson was at pains to counsel against seeking a single all‑embracing statement of the defining characteristics of a court, his Honour was, nonetheless, equally at pains specifically to say, however, that an important element in the institutional

characteristics of a court was its capacity to administer the common law system of adversarial trial. 

The accusatorial principle and its companion rule are at the very heart of that system, hitherto, plainly, as our friends correctly point out, not regarded in the course of cases – none of which has had this scrutiny before them – to be, in the jargon, constitutionalised. 

However, in our submission, this is a case which, in its incremental fashion of adding one more case to the archive, provides this Court with a proper opportunity, which should be taken, to consider whether or not such a fundamental alteration of the balance – including by tender of pre‑trial compelled material against a person later charged – is to be countenanced when a statute says nothing about it.  That is Justice Sofronoff’s powerful point, not answered by the reasoning of the New South Wales Court of Criminal Appeal.  May it please your Honours.

KEANE J:   Thanks, Mr Walker.  Yes, Mr Giles.

MR GILES:   May it please.  We recognise that our learned friend’s starting point that there are important principles conceivably at play is correct.  However, in this case they ultimately do not arise as matters other than statutory construction, that is, informing the statutory construction. 

Their Honours in the Court of Criminal Appeal at application book 115, paragraph 138, commence with words of assumption, that is, assumption that the accusatorial principle and the companion rule did apply to the pre‑charge disclosure and use, and then reasoned in a conventional way, in our submission, that the language of the statute – whether it be section 3G of the Income Tax Assessment Act or its replacement, in effect, albeit broader replacement, section 355‑50 and 355‑175 permitted the disclosure even viewed through the prism of those principles being brought to bear to the construction exercise. 

The sections themselves are set out and are clear.  If I could ask your Honours to take up page 90 of the application book, the convenient spot in the judgment.  Section 355‑70 commences at the foot of page 90, supplying the prohibition on disclosure.  Subsection (1)(a) your Honours see, and then in the form of legislation now adopted, a table, item 1 relevantly identifying an “authorised law enforcement agency officer” – that is disclosure 2 – for a purpose of – and your Honours see (a) or (b).

“Law enforcement agency” is defined at the foot of the page and over onto page 92 to include, relevantly, the AFP and the Office of the Director of Public Prosecutions.  It is that permission or, as we suggest, disapplication of the prohibition, which permitted what have been described as disclosures 6 through to 14.  That is the language of clarity, and we part company with our learned friend’s argument in suggesting that those words can be read even bearing in mind the principles in a way to have a meaning short of that which they express in terms. 

Similarly, the disclosures under section 3G – section 3G commences at page 86 – and while our learned friend, Mr Walker, has just taken your Honours to it, conveniently set out at page 87 of the book one sees that there is a permission and we think it is perhaps in 3G correctly described as a permission when one sees section 3G(1) ‑ but a permission over in subsection (3) for disclosures to the two relevant agencies, and a purpose of the agencies, which clearly carry with it a purpose for use of the disclosed material, 5(c) “investigate” and 5(d):

enforce the law relating to -

Then your Honours see the universe of subject matter:

(e)      tax avoidance or evasion;

. . . 

(g)      criminal activity in the nature of fraud or obtaining benefits . . . 

(i)       concealing income or assets.

All of that is apt, in the sense of permitted with clarity, to permit that which has been done and to allow both the disclosure, whether pre‑charge or post‑charge, and then use of the compulsorily acquired material.  Consequently, while bearing in mind that the principles are of importance, as we accept, that is, the common law principles our learned friend relies on – and we do not deny that – this is a case in which the Court of Criminal Appeal was correct as a matter of construction of the statute. 

GORDON J:   Just so I am clear, Mr Giles, is that – paragraphs 118 at application book 109 and following – is that what we are referring to?

MR GILES:   Yes, your Honour. 

GORDON J:   Thank you. 

MR GILES:   In our submission, the debate about the distinction between pre‑charge application, such as it is, of the companion principle and the accusatorial principle, in comparison to post‑charge – that is, the alternative way of framing the argument is also answered and does not raise a question suitable for special leave because it was answered in this Court’s judgment in IBAC 256 CLR 459 in the passage which is extracted from the plurality’s judgment at paragraph 123 of the Court of Criminal Appeal’s judgment at application book 111 – and your Honours see at application book 111 in the quoted passage, the first sentence of paragraph 48 with the reasoning that follows.

KEANE J:   Mr Giles, am I right in thinking that this passage from IBAC, and, indeed, the provisions of section 355‑25 and following that you have taken us to, were not adverted to in the reasons in Leach?

MR GILES:   With one exception, that is correct, your Honour.  The exception is that section 355‑25 was adverted to ‑ ‑ ‑ 

KEANE J:   Yes.

MR GILES:   ‑ ‑ ‑ but what I have referred to as the permission ‑ ‑ ‑ 

KEANE J:   Yes, the exception. 

MR GILES:   The exception, quite.  Similarly, the passage – and, of course, I have to accept - one says this with a degree of embarrassment, given the Commonwealth Director was in Leach, but IBAC does not…..been referred to the Court of Appeal in Leach, and it was not referred to or adverted to in the judgment. 

For those reasons in substance, the judgment below is correct and ultimately does not turn on matters of important principle, but rather the construction of bespoke sections, some of which – albeit not all – have been repealed, this, in our submission, is not a case which warrants the grant of special leave.

In saying that, I have not said anything about the, so to speak, constitutionalisation argument.  I should say just this.  As we observe in writing, the principles have been described repeatedly as being common law principles, and the difficulty in seeking to find a constitutional principle that may fall out from them, and why it is correct that they are common law principles, so to speak, is demonstrated by our learned friend’s written submissions in identifying that the fair trial values as expressed, although not defined, may be varied but not abrogated. 

That, ultimately, is an invitation to adopt, by way of, so to speak, constitutionalisation, a principle that is amorphous in content and in expression, and unsupported by authority.  In our submission, that final

ground also raises no point warranting the grant of special leave.  May it please.

KEANE J:   Thanks, Mr Giles.  Mr Walker, anything in reply.

MR WALKER:   Yes, may it please the Court.  In Leach (2019) 1Qd R 459, at paragraph [38], Justice Sofronoff concludes by observing there is no express provision in any legislation which makes the questions and answers admissible as evidence at a trial to prove the criminal guilt of the examinee. That is, of course, part of the intended use here. In paragraph [79] in Leach, Justice Sofronoff does recognise in closing that paragraph, a submission that if disclosure were to be permitted, it would have to be a disclosure made under the provisions in Schedule 1 of section 355‑70, referring specifically to disclosures to the Commonwealth Director of Public Prosecution.  In other words, a matter in the nature of a permission.

His Honour goes on to say it is not necessary to consider this last argument because of reasoning to be found throughout concerning the lack of…..sufficient as was noted in paragraph [38] of his Honour’s reasons to authorise the tender of such compelled material.

So, in our submission, though we endorse what my learned friend said in answer to Justice Keane’s question concerning what is not to be seen in Leach, we make two comments.  I hope, not churlishly, we join in our friend’s observation concerning the adversarial role of the DPP, obviously, in the argument of Leach – and if there be a question raised by Leach’s failure to include consideration of what, if any, implication the reasoning in IBAC might have to the arguments there presented – then that is surely a proper question for the attention of this Court.  That is the first thing. 

The second thing is, one surely could not go so far as to say that the force of the reasoning in Leach – which derives, ultimately, of course, from Potter v Minahan, is a matter which is shown to be per incuriam by reason of the matters that have been raised.  There is no part of our argument, as is clear from the way we have written it and as is recorded of our arguments below, which refers to the engagement of the accusatorial principle or the companion rule pre‑charge.  That, of course, is one of the reasons why this Court in Strickland – paragraph 95 of 266 CLR 325 – used the emphatic and clear expression, “unless and until”, to describe the effect of a charge upon the application, or engagement, of those fundamental features.

In our submission, it is critically…..text of this case and what is entailed in its reasoning seems to leave open, in a way that has never been presaged by previous cases, the notion of a deliberate timing of matter which much more specific statutory provision which would pick it up – as

is found, not universally, but sometimes in these trade‑off provisions – would permit the authorities – the Executive, collectively – tax authorities, …..commissions, DPP – to time their use of compulsory process so as to remove fundamental features of the proper balance between prosecution and accused in proceedings which do not commence until shortly thereafter and deliberately so timed.  Those are, in our submission, matters which distinctly call for this Court’s intervention.  This case, in our submission, presents it in a fully concrete form.  May it please the Court.

KEANE J:   Thanks, Mr Walker. The Court will adjourn to consider the course it will take in the matter. Adjourn the Court, please.

AT 10.06 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.08 AM:

KEANE J:   Given the statutory context in which the issues said to warrant the grant of special leave arise in this case, there is no reason to doubt the correctness of the decision of the Court of Criminal Appeal of New South Wales.  Accordingly, the application for special leave is dismissed.

Adjourn the Court, please.

AT 10.09 AM THE MATTER WAS CONCLUDED