R v Clarke (a pseudonym) (No 9)

[2025] QSCPR 17

SUPREME COURT OF QUEENSLAND

CITATION:	R v Clarke (a pseudonym) (No 9) [2025] QSCPR 17
PARTIES:	THE KING v JULIE CLARKE (a pseudonym) (defendant/applicant)
FILE NO/S:	SC425/25 DC1855/23
DIVISION:	Trial Division
PROCEEDING:	Application pursuant to s 590AA of the Criminal Code 1899 (Qld)
ORIGINATING	District Court at Brisbane
COURT:
DELIVERED ON:	3 October 2025
DELIVERED AT:	Brisbane
HEARING DATE:	28 November 2023; 5 December 2023; 29 January 2024; 9 February 2024; 23 February 2024; 26 April 2024; 14 June 2024; 15 July 2024; 22 July 2024; 2 September 2024; 18 September 2024; 20 September 2024; 8, 9, 10, 11 October 2024; 5 November 2024; 5 December 2024, 10 December 2024, 16, 17, 18, 19, 20 December 2024; 3, 4, 5, 6, 7 February 2025; 19 February 2025; 10 March 2025; 14 March 2025; 9 April 2025; 19, 20, 21, 22, 23 May 2025; 26, 27, 28, 29, 30 May 2025; 13 June 2025; 20 June 2025; 27 June 2025; 4 July 2025. Further written submissions of CDPP dated 10 July 2025. Further written submissions of the defendant dated 13 July 2025.
JUDGE:	Smith J
ORDER:	I stay the prosecution.

CATCHWORDS: CRIMINAL LAW – ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS – Abuse of process – whether compulsory taxation interview breached the defendant’s right to silence – whether prosecution should be stayed – where part of the true purpose of the interview was to use it in the criminal investigation against the defendant – whether the interview was involuntary and/or unfair – where the defendant was subjected to two prosecutions one of which was discontinued and if so is there an abuse of process – whether there was a case to answer on the State fraud prosecution – whether there has been oppression on the part of the prosecution – whether the ATO/CDPP complied with their disclosure obligations – whether the ATO officer altered an exhibit – whether ATO

officers engaged in misconduct concerning disclosure and other matters – whether the conduct has brought the administration of justice into disrepute

Criminal Code 1899 (Qld) ss 408 C, 590AA, 590AB, 590AL Criminal Code 1995 (Cth) ss 11.1, 134.2(1) Criminal Law Amendment Act 1894 (Qld) s 10 Evidence Act 1977 (Qld) s 130 Income Tax Assessment Act 1997 (Cth) ss 355-25, 355-100, 355-205, 995-1 Industry Research and Development Act 1986 (Cth) ss 27A, 28C Justices Act 1886 (Qld) s 104 Public Governance, Performance and Accountability Act 2013 (Cth) Taxation Administration Act 1953 (Cth) ss 3A, 8A, 8AAZLGA, 8C, 8D, 8ZJ, Sch 1 ss 353-10, 355-10, 355-50, 355-70, 355-175 Taxation Laws Amendment Bill 1984 (Cth) Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 [2022] HCA 38; (2022) 277 CLR 445, applied Bates v Post Office Limited (No 3) [2019] EWHC 606 (QB), applied Binetter v Deputy Commissioner of Taxation (No 3) [2012] FCA 704; (2012) 89 ATR 296, distinguished Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872, applied Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, applied Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, applied Callanan v B [2004] QCA 478; [2005] 1 Qd R 348, cited Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1, applied Coles Myer Finance Ltd v Federal Commissioner of Taxation [1993] HCA 29; (1993) 176 CLR 640, cited Commissioner of Taxation (Cth) v De Vonk [1995] FCA 994; (1995) 61 FCR 564, considered Commissioner of the Australian Federal Police v Clarke [2024] QSC 291, cited CUB Australia Holding Pty Ltd v Commissioner of Taxation [2021] FCA 43; (2021) 385 ALR 731, distinguished Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission [2002] HCA 49; (2002) 213 CLR 543, applied Deputy Commissioner of Taxation v Widdup [2022] FCA 1403, distinguished	Acts Interpretation Act 1901 (Cth) s 15AB cited
Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237, cited Federal Commissioner of Taxation v Australia & New Zealand Banking Group Ltd; Smorgon v Commissioner of Taxation (Cth) [1979] HCA 67; (1979) 143 CLR 499, applied Federal Commissioner of Taxation v CityLink Melbourne Ltd [2006] HCA 35; (2006) 228 CLR 1, cited Federal Commissioner of Taxation v Desalination Technology Pty Ltd [2015] FCAFC 96; (2015) 66 AAR 553, cited Federal Commissioner of Taxation v Tamarama Fresh Juices Australia Pty Ltd [2017] FCAFC 154; (2017) 252 FCR 471, distinguished Field v Commissioner for Railways (NSW) [1957] HCA 92; (1957) 99 CLR 285, applied George v Rockett [1990] HCA 26; (1990) 170 CLR 104, applied Hammond v The Commonwealth [1982] HCA 42; (1982) 152 CLR 188, applied Harman v Secretary of State for the Home Department [1983] 1 AC 280, considered Honeysett v Director of Public Prosecutions (NSW) [2023] NSWCCA 215, cited Geosam Investments Pty Ltd v Australia & New Zealand Banking Group Ltd (1979) 9 ATR 836; (1979) 25 ALR 445, applied Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, applied Jordan, Commissioner of Taxation v Second Commissioner of Taxation [2019] FCA 1602; (2019) 110 ATR 752, applied Karina Fisheries Pty Ltd v Mitson [1990] FCA 154; (1990) 26 FCR 473, considered Knuckey v Commissioner of Taxation (Cth) (1998) 87 FCR 187; (1998) 40 ATR 117, considered La Rocca v The King [2023] NSWCCA 45; (2023) 375 FLR 393, cited Le v The Queen [2019] WADC 11, considered Lego Australia Pty Ltd v Paraggio [1994] FCA 1286; (1994) 52 FCR 542; (1994) 124 ALR 225, applied LHRC v Federal Commissioner of Taxation [2015] FCAFC 184; (2015) 239 FCR 240; (2015) 329 ALR 431, applied Lighthouse Philatelics Pty Ltd v Commissioner of Taxation (Cth) FCAFC, 30 October 1991; (1991) 32 FCR 148; (1991) 103 ALR 156, cited Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125, applied McDermott v The King [1948] HCA 23; (1948) 76 CLR 501, applied McEwan v Office of the Australian Information Commissioner [2023] FCAFC 137, applied
(No 2) [2022] FCA 1488, cited Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants & Bars Pty Ltd [1999] QCA 276; [2001] 1 Qd R 276, applied Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13, cited Moreton Resources Ltd v Innovation and Science Australia [2019] FCAFC120; (2019) 271 FCR 211, cited Moti v The Queen [2011] HCA 50; (2011) 245 CLR 456, cited Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69, cited Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493, applied Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328, cited R v Gesa and Nona; ex parte Attorney-General [2000] QCA 111; [2001] 2 Qd R 72, cited R v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8; (2016) 256 CLR 459, distinguished R v Ireland [1970] HCA 21; (1970) 126 CLR 321, applied R v Jayaweera [2022] QCA 103; (2022) 307 A Crim R 296, cited R v Jell [1991] 1 Qd R 48, applied R v Kinghorn [2021] NSWCCA 313; (2021) 106 NSWLR 322; (2021) 396 ALR 154, considered R v Leach [2018] QCA 131; [2019] 1 Qd R 459; (2018) 381 FLR 117, cited R v Lee [1950] HCA 25; (1950) 82 CLR 133, applied R v Lyons [2021] QCA 136, cited R v Manna [1999] NSWCCA 314, cited R v Mirotsos [2022] QCA 76, applied R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562, cited R v Clarke; Ex parte Commonwealth Director of Public Prosecutions [2024] QCA 46; (2024) 381 FLR 213, applied R v Clarke (No 6) [2024] QDCPR 57, cited Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2004] WASC 264, cited Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19, applied Smethurst v Commissioner of Police (Cth) [2020] HCA 14; (2020) 272 CLR 177, applied Sorby v Commonwealth [1983] HCA 10; (1983) 152 CLR 281, applied State of South Australia v Slipper MP [2003] FCA 1414; (2003) 203 ALR 473, cited Strickland (a pseudonym) v Commonwealth Director of
McEwan v Office of the Australian Information Commissioner applied
Thompson v Randwick Corporation [1950] HCA 33; (1950) 81 CLR 87, applied Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, applied Watson v Commissioner of Taxation [1999] FCA 1796; (1999) 96 FCR 48, distinguished Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447, applied Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, applied X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92, applied Young v The King [2024] SASCA 47, considered

COUNSEL:	Ms P McDonald SC and Ms P Kinchina for the prosecution before 19 May 2025 Mr M Bonasia and Ms P Kinchina for the prosecution after 19 May 2025 The defendant appeared on her own behalf
SOLICITORS:	Director of Public Prosecutions (Commonwealth) for the Crown The defendant appeared on her own behalf

Table of Contents

INTRODUCTION .............................................................................................................. 10

OVERVIEW OF FINDINGS ............................................................................................. 10

CHARGE ............................................................................................................................	13
PARTICULARS .................................................................................................................	15
SUBMISSIONS ..................................................................................................................	18

Defence submissions ..................................................................................................... 18

CDPP Submissions ........................................................................................................ 28

DEFENCE EVIDENCE ..................................................................................................... 42

The Defendant ................................................................................................................ 42

Mr Collins ....................................................................................................................... 72

PROSECUTION EVIDENCE ........................................................................................... 76

Dr Monaghan .................................................................................................................. 76
Mr Mactaggart ................................................................................................................ 80
Mr Richard Hoult ........................................................................................................... 90
Mr Ashley Hill ................................................................................................................ 92
Ms Caulfield ................................................................................................................... 94
Mr Challans .................................................................................................................... 96
Ms Bagnato ................................................................................................................... 101
Ms Smith ...................................................................................................................... 105
Mr Rains ....................................................................................................................... 108
Mr Beale ....................................................................................................................... 157
Ms Zachat ..................................................................................................................... 159
Ms Grimes .................................................................................................................... 163
Ms Glaser ..................................................................................................................... 167
Mr Jory ......................................................................................................................... 168
Mr Montanez ................................................................................................................ 172
Mr Speldewinde ........................................................................................................... 174
Ms Ivar ......................................................................................................................... 175

Ms Albert ...................................................................................................................... 180

IMPORTANT DOCUMENTARY EVIDENCE .............................................................. 192

The compulsory interview ............................................................................................ 192

The investigation .......................................................................................................... 200

CENTRAL FACT FINDINGS ......................................................................................... 220

Did the Defendant honestly believe she could use the Apagein money? ..................... 221
Allegation that the defendant claimed to have invented DBH ..................................... 255
Misleading statements to the Queensland Bar.............................................................. 264
Akeroyd statement ........................................................................................................ 264
Lack of timely disclosure ............................................................................................. 278
Mr Rains’ involvement in the State charge .................................................................. 281
Failure to disclose exculpatory material to the QPS .................................................... 287
Obtaining without prejudice communications ............................................................. 289
Alleged lie during search warrant ................................................................................ 289
Failure to respond to inappropriate suggestions ........................................................... 290
Other payments ............................................................................................................. 290
Failure to include exculpatory evidence in the ATO fraud matter ............................... 291
Why would Mr Rains do this? ...................................................................................... 293
Compliance with ATO policies .................................................................................... 294
Other alleged illegality ................................................................................................. 297

SUMMARY OF FACTUAL FINDINGS ........................................................................ 299

Compulsory Interview .................................................................................................. 299

Investigation ................................................................................................................. 305

THE ISSUES .................................................................................................................... 314

COMPULSORY INTERVIEW ....................................................................................... 314

Involuntariness/Unfairness/Illegality/Public Policy ..................................................... 322

THE INVESTIGATION .................................................................................................. 323
CONCLUSION ................................................................................................................ 326

GLOSSARY

Terms
AAT – Administrative Appeals Tribunal
AFP – Australian Federal Police
AGIS – Australian Government Investigation Standards
ATO – Australian Taxation Office
BA – The Brisbane Angels (an investment group)
CEI – Chief Executive Instruction (an internal ATO instruction to staff members)
CDPP – Commonwealth Director of Public Prosecutions
DBH – (R)-3-hydroxybutyric acid
IP – Intellectual property
ITAA – Income Tax Assessment Act 1997 (Cth)
JAA – Joint Agency Agreement between the ATO and the QPS
JV052 – the expenses spreadsheet
LPP – Legal professional privilege
NCE – New Chemical Entity as defined in Schedule 9 Part 1 of the Therapeutic Goods
Regulations 1990 (Cth)
NDA – Non-disclosure agreement
PII – Public interest immunity
PGH – Private Groups High Wealth Individuals section of the ATO
QDPP – Queensland Director of Public Prosecutions
QPS – Queensland Police service
QP9 – Queensland police summary of facts for the Magistrates Court
Queensland Bar – The Bar Association of Queensland
R&D – Research and Development tax incentive
Siebel – the ATO’s file management software
SNC – Serious Non-Compliance section of the ATO
TAA – Taxation Administration Act 1953 (Cth)
TGA – Therapeutic Goods Administration
UQ – University of Queensland
VENIK00267 – The expenses spreadsheet edited by Mr Rains

WBC/Westpac – Westpac Banking Corporation

Companies involved in the matter
Apagein Biotech Pty Ltd (Apagein) – a company in which the defendant was a director
and shareholder
Arana Pty Ltd (Arana)– a company in which the defendant was involved
DHL – logistics company
Michael Johnson & Associates – Tax consultants engaged by the defendant
Venika Biotech Pty Ltd (Venika) – a company in which the defendant was involved

Xi’Zan Biotechnology (Xi’Zan) – alleged to be a Chinese drug development company

Individuals involved in the matter
Akeroyd, Sue – a consultant concerning TGA approvals for Apagein
Albert, Fiona – a CDPP prosecutor
Bagnato, Laura – head of the ATO audit team
Beale, Timothy – a lawyer employed by the ATO
Caulfield, Marie – an ATO auditor
Challans, Brett – an ATO auditor
Cheshire, Lisa – an ATO auditor
Collins, Bruce – a former Deputy Commissioner of Taxation called by the defence
Grimes, Demelza – an ATO auditor
Hill, Ashley – from GRT lawyers, the solicitor who acted for the Brisbane Angels
Holt, Adrian – a Queensland police officer
Hoult, Richard – a director of the Brisbane Angels
Ivar, Patricia – employed at AusIndustry
Lukin, Katie – a CDPP prosecutor
McGregor, Emily – a QDPP prosecutor
Mactaggart, John – Executive chairman of the Brisbane Angels
Micairan, Roman – a CDPP prosecutor
Monaghan, Alan – a consultant to the Brisbane Angels
Montanez, George – an Assistant Commissioner of Taxation called by the CDPP
Rains, Anthony – the lead ATO criminal investigator
Ross-Gowan, Ian – the R&D adviser engaged by the defendant
Shume, Murray - The defendant’s tax lawyer
Sibley, Justin – a lawyer acting for the defendant in the criminal proceedings
Smith, Jacqui – the regional director of criminal investigations of the ATO
Trembath, Justin – an AFP officer and associate of the defendant
Trembath, Melinda – wife of Justin Trembath, associate of the defendant
Williams, Jessica – a CDPP prosecutor
Zachat, Lucy – an ATO auditor
Zheng, Wu – associated with Xi’Zan Biotechnology in China
Groups involved in the matter
The audit team – includes the ATO civil audit staff involved in the investigation.
The crime team – includes the ATO criminal law staff involved in the investigation.

INTRODUCTION

1. Pursuant to section 590AA(2)(a) of the Criminal Code 1899 (Qld), the defendant applies for a stay of the prosecution brought against her on the grounds that the prosecution is an abuse of process. In essence, she argues that the case is on all fours with Strickland v Commonwealth Director of Public Prosecutions (Cth) (Strickland).[1]

[2]      She argues that the ATO has unlawfully and/or improperly conducted and misused a compulsory interview and a civil audit investigation against her in the subsequent criminal prosecutions, thus undermining her fundamental legal right to remain silent.

[1] [2018] HCA 53; (2018) 266 CLR 325.

1. A further aspect of the application is that the ATO and the CDPP have improperly brought two prosecutions against her such that the proceedings have become oppressive and both prosecutions have involved the use of an unlawful compulsory interview.

2. She also alleges that ATO officers have lied, manufactured evidence against her and engaged in other misconduct in both prosecutions.

   OVERVIEW OF FINDINGS

3. The defendant wished to develop a therapeutic using the chemical DBH to treat and/or manage conditions such as cancer, obesity, diabetes and Alzheimer’s. The BA are a group of investors interested in investing in such projects. The defendant and the BA began discussing a potential investment in 2016. In December 2016, the BA invested $185,000 into Apagein to conduct clinical trials using DBH as a weight loss product. Clinical trials were conducted. Ms Sue Akeroyd was engaged to advise as to the requirements for TGA approval.

4. Ultimately Ms Akeroyd advised that satisfying the requirements of TGA approval would be a protracted and expensive process. This was confirmed by a further two pro bono opinions. As a consequence, in August 2017 the BA decided to withdraw from the project and withdraw the balance of the investment.

5. In August 2017, the defendant prepared JV052[2], a spreadsheet which set out the expenses incurred from the $185,000. There was no objection taken by the BA to the expenses at the time. However, a civil dispute commenced between the BA and the defendant in which the BA wanted their money (the balance of the funds) and the defendant sought the return of the intellectual property.

   [2]              Exhibited to the defendant’s affidavit of 4 October 2024; Exhibit P2.

6. In the meantime, the defendant lodged an R&D application with the ATO in August 2017. It is alleged she claimed she had spent $11,138,900 on raw materials and produced documents to justify this. The ATO considered the claim to be false and that she had actually spent only about $11,138.90 on the materials and believed she had falsified an invoice to justify the higher amount. As a consequence, the audit team from the ATO became involved.

7. Ultimately, in early 2018 the defendant complained to the Inspector General of Taxation about the audit team’s conduct. Shortly after this, the audit team decided to conduct a compulsory tax interview with the defendant, under s 353-10 of the TAA, and to involve the crime team. At this stage, they suspected the defendant had attempted to commit fraud and had created false documents. Also Mr Challans wanted to avoid losing an AAT appeal over a disallowed claim.[3]

   [3]              Exhibit L page 144.

8. Despite the suspicion of fraud, Mr Challans from the audit team told the defendant that the interview was to “clarify gaps” in the evidence relating to her R&D application. As will be discussed, I find this to be misleading.

9. A meeting was held between the audit team and the crime team on 22 January 2018, the day before the compulsory interview was to commence. It was agreed at this meeting that the audit team would question the defendant as to the alleged fraud and would then meet the crime team after the interview concluded to discuss the matter and the interviews.

10. Mr Anthony Rains, an ATO criminal investigator, was nominated to be the lead investigating officer on 22 January 2018. The compulsory interviews took place on 23 and 25 January 2018.

11. At the interviews, the defendant was cross examined by audit team members about the alleged fraud. She was directed to answer questions and was advised that if she did not, she would be committing an offence. The defendant did not have a right to silence in this interview as it was purportedly conducted for a civil law purpose, namely administering taxation laws, and thus the right to protect oneself against self- incrimination was inapplicable. However, the court finds that the substantial purpose of the interview was to question the defendant about the alleged fraud - a criminal offence.

12. On the afternoon of 25 January 2018, the audit and crime teams met and discussed the details of what the defendant had said during the interview. Discussions between the defendant and her representatives continued after the audit. At this stage there was no disclosure by the ATO that there was a criminal investigation afoot. Notes prepared by Mr Ross-Gowan as to her responses in the interview were provided to the ATO audit team. Without her knowledge these notes were given to the crime team and later included in the brief given to the CDPP.

13. The court concludes that the defendant was unlawfully subjected to a hybrid audit/criminal interview because the audit team did not have the power to investigate a breach of the Commonwealth Criminal Code as agents of the crime team, or at all, and the crime team did not have the power to compel the defendant to answer questions put to her concerning the criminal matter. The court concludes that this undermined her fundamental right to silence. The court concludes that the defendant has thereby been deprived of her forensic choices in the way in which she can defend this criminal trial.

14. Mr Rains was given a transcript of the compulsory interview on 27 February 2018 and the court finds that this interview informed him in his investigation. The interview was also relied on to approve the criminal investigation and for the issue of the search warrants. There is no complete record kept as to the dissemination of the interview, the notes of it or of documents such as a position paper which refer to it.

15. Mr Rains obtained documents from the BA in April 2018. He claims he formed the view that the defendant had defrauded the BA of the $185,000, claiming the investment sum was spent on a personal loan, holidays etc. However, Mr Rains ignored the fact that funds were spent on legitimate Apagein expenses. He also ignored the fact that clause 4.6 of the shareholders agreement entitled the defendant to reimburse herself for business expenses incurred and to pay herself remuneration.

16. Despite Mr Rains’ claims to the contrary, the court finds he was heavily involved in the investigation into the alleged misappropriation of the BA investment, in addition to the ATO tax fraud. The court finds that Mr Rains referred the State fraud matter to the QPS in July 2018 without any complaint by the BA, and he failed to provide exculpatory material to the QPS, namely information which tended to show that the defendant was entitled to a consulting fee and other information showing that funds had been spent on legitimate Apagein expenses. The court also finds that Mr Rains engaged in the following misconduct during the investigation and subsequent prosecutions:

1.	He failed to disclose the existence of the 22 January 2018 meeting in his statement or in the ATO audit statements which he prepared.
2.	He failed to disclose documents which showed the existence of this meeting.
3.	He deliberately altered JV052 by leaving off words that the expenses had been approved by the Board and gave the altered document to the QPS, thus undermining the defence of the accused.
4.	He was involved in the preparation of a false statement from Ms Akeroyd stating she had not been paid, when in fact she had. This statement was placed on the brief of evidence.
5.	He provided misleading information in his statements and in affidavits to obtain search warrants, where he alleged the defendant claimed to have invented DBH. He thereby mislead numerous judicial officers.
6.	He failed to disclose relevant emails before the State fraud trial in September 2020, which proved that the defendant did not claim to have invented DBH.
7.	He lied in a briefing note to the Queensland Bar.
8.	He prepared a statement from Ms Ivar which falsely claimed that that the defendant claimed to have invented DBH.
9.	He failed to disclose emails between himself and the BA before the State fraud trial in September 2020, which bore on the nature of his relationship with Dr Monaghan.
10.	He failed to obtain potentially exculpatory evidence in the ATO fraud prosecution.

1. The court finds that numerous no case submissions were made by the defence to the CDPP to discontinue the State fraud charge, which were either not responded to or responded to in any meaningful way. The court finds there was no case to answer on the State charge as particularised. The CDPP was, several times, presented with compelling evidence that there was no case to answer but provided no answer to this. The trial was originally listed for 21 September 2020, but was adjourned due to the provision of new particulars on 9 September 2020. After the defendant wrote to the director of the CDPP herself, the State fraud charge was ultimately discontinued in May 2021. This was after the CDPP offered the defendant a plea arrangement, which she rejected. The court also finds that the State fraud complaint was continued by the BA for a collateral purpose, namely for the recovery of their money.

2. The ATO fraud charge was laid in April 2019, and the defendant then faced two prosecutions at the same time. The court finds she spent approximately $80,000 on legal expenses defending the State fraud charge. The defendant is now self- represented.

3. The court finds that the case of Strickland[4] is on all fours with the present case. The court finds that a stay of the prosecution should be ordered as the conduct of the ATO involving the compulsory interviews undermined the defendant’s fundamental right to remain silent.

   [4]

4. Further or alternatively, the court finds that the conduct of the ATO during the investigation and prosecution of both sets of charges, and a continuation of the prosecution of the State fraud charge and the ATO fraud charge at the same time[5], amounts to oppression of the defendant. A stay should also be ordered on this ground.

   [5]              The defendant was charged with the State fraud on 22 August 2018 and the ATO fraud on 4 April

5. In summary, the court finds that the conduct of the ATO has brought the administration of justice into disrepute and has the tendency of undermining the integrity of the court.

   CHARGE

6. The defendant is charged with the following count which alleges an offence contrary to ss 11.1 and 134.2(1) of the Criminal Code (Cth) (Criminal Code (Cth)):

   “That between on or about 24 August 2017 and on or about 14 February 2018, the defendant by a deception attempted to dishonestly obtain a financial advantage from a Commonwealth entity.”

7. The allegation against the defendant is that on or about 24 August 2017, she authorised the lodgement of an R&D tax offset claim for the financial year 2016/2017 on behalf of Venika. It is alleged that this R&D claim falsely stated that Venika had incurred $8,456,800 in expenditure and sought a refund from the ATO in the sum of $3,678,708.

8. It is alleged that between 13 September 2017 and 14 February 2018 during a review of the R&D claim by the ATO, the defendant provided and/or authorised provision of material to the ATO in support of false statements made in the R&D claim.

9. The particulars are Exhibit K which I have taken into account.

10. In summary- the CDPP alleges:

(a)	The R&D claim alleged Venika had incurred and paid $8,456,800 in respect of R&D activities.
(b)	Venika had not incurred these deductions and the defendant knew this.
(c)	In the material provided by the defendant there was an invoice from Xi’Zan to Arana dated 17 March 2017 for $7,985,900 for manufacturing pharmaceuticals.
(d)	Mr Ross-Gowan on behalf of the defendant supplied a tax invoice of $11,138,900 from Xi’Zan to Arana.
(e)	The defendant knew these invoices were false as Venika had not incurred expenses of $8,456,900.
(f)	The circumstances relied on are in Table 2.

DEFENCE

1. It may also be said that the defendant has a defence to the charge. Her case is that there was expenditure of core activities,[6] the $11m expense was not just for drugs but for product development and the method of manufacture was valid as an NCE.[7]

   [6]              Ms Bagnato Transcript day 31 (30 May 2025) page 21.11; Ms Zachat Transcript day 29 (28 May 2025) page 97.

   [7]              Ms Ivar Transcript day 31 (30 May 2025) pages 29-30. Also see Exhibit CZ page 26 (submission by Mr Ross-Gowan) which noted that the claim for development is $12,200,900.

2. Frequently, those involved in the R&D system do not have an income against which a deduction may be claimed, and the expectation is that a profit will be made in the future. The scheme provides for immediate tax relief against a tax which would be otherwise due.[8] The defendant says that is the case here.

   [8]              Federal Commissioner of Taxation v Desalination Technology Pty Ltd [2015] FCAFC 96; (2015) AAR 553 at [7].

3. She also submits that the scheme is to encourage industry to conduct research and development activities and the object of the scheme is to provide a tax incentive to industry to conduct experimental activities which generate new knowledge.[9]

   [9]              Moreton Resources Ltd v Innovation and Science Australia [2019] FCAFC 120; (2019) 271 FCR 211 at [153].

4. She says she was legitimately developing and researching the product with UQ, Icon Cancer Centre and Bayer.[10]

   [10]             Transcript day 22 (19 May 2025) pages 75.35 and 94; Transcript day 31 (30 May 2025) page 58.45.

5. She submits there does not have to be an actual expense - it can be a liability incurred.[11] The total costs being claimed were those necessary to create or support the creation of new knowledge once all the activities were complete. In fact, Mr Rains knew she was claiming the R&D offset to enable Venika to continue with its clinical trial arrangements with UQ and Icon.[12]

   [11]             ITAA s 355-205.

   [12]             Mr Rains Transcript day 22 (19 May 2025) page 75.35.

6. She relies on Federal Commissioner of Taxation v Desalination Technology Pty Ltd.[13] This is authority for the proposition that “incurring” R&D expenditure can relate to a “presently existing liability” to which the taxpayer is definitely committed. It was noted that a liability to pay money can constitute a loss or outgoing which is incurred notwithstanding the amount is not payable until a future time.[14] She submitted this in a letter to the ATO on 2 January 2018.[15]

   [13] [2015] FCAFC 96; (2015) 66 AAR 553.

   [14]             Also see Coles Myer Finance Ltd v Federal Commissioner of Taxation [1993] HCA 29; (1993) 176 CLR 640 at p 670 and Federal Commissioner of Taxation v CityLink Melbourne Ltd [2006] HCA 35; (2006) 228 CLR 1 at [123]-126]. Also see email from Ms Caulfield to Mr Rains dated 25 June 2018 at 8.35am advising him there can be a constructive payment (exhibit EI).

   [15]             Exhibit L page 132.

7. She also says that the ATO was bound by the determination made by AusIndustry.[16]

   [16] Industry Research and Development Act 1986 (Cth) ss 27A and 28C. Also see Ms Caulfield Committal transcript 9 May 2023 pages 80 and 90; Ms Bagnato Transcript day 31 (30 May 2025) page 12.35; Ms Zachat Transcript day 29 (28 May 2025) page 97.35; Transcript day 30 (29 May 2025) pages 19-20. Moreton Resources Ltd v Innovation and Science Australia [2019] FCAFC 120; (2019) 271 FCR 211 at [5].

8. The defendant submits that AusIndustry determined that the registration described by her was eligible for R&D activities under s 355.25 of the ITAA.[17] She also says that the ATO failed to disclose a statement from a witness, which said that her method of manufacture was valid as an NCE and was eligible for R&D activities, until forced to when it realised the witness would have to give evidence.

   [17]             Exhibit CX.

9. She says that Mr Rains at one point sought evidence as to the cost of such development[18] but he declined to proceed further with this inquiry as this evidence would have been exculpatory.

   [18]             Email from Mr Rains to Ms Ivar 6 June 2018. Mr Rains Transcript day 22 (19 May 2025) page 37.20.

10. The defendant says that she never asked anyone to alter an invoice.[19]

    [19]             Ms Black Transcript day 29 (28 May 2025) pages 87.45 and 89.35. Contrast exhibit J paragraph 5.12 (Ms Black statement).

11. She says she was prepared to meet the ATO to explain the issues, but they did not do so and jumped to a compulsory interview and criminal prosecution. This was to avoid the consequences of a complaint made by her to the Inspector General of Taxation and to avoid an AAT appeal.[20]

    [20]             Exhibit L page 144 (Email Mr Challans dated 10 January 2018).

12. She says that Mr Rains failed to produce relevant documents as to the likely cost of such development, failed to include relevant documents from the UQ, Icon Cancer Centre and Bayer in his affidavits. He also failed to make proper inquiries with Mr Zheng as to the drug development.

13. In those circumstances, she says there was a valid claim for an R&D deduction under the ITAA and the prosecution is misconceived. She says that Venika was entitled to the deduction under s 355.100 of the ITAA.

    PARTICULARS OF THE STAY APPLICATION

14. In her particulars for the stay application, the defendant relies on a number of grounds.[21]

    [21]             Exhibit EQ.

    Compulsory interview

15. The first ground relates to the use of compulsorily obtained material. The compulsory interview was conducted on 23 and 25 January 2018. Her case is that she was tricked into attending the compulsory interview for taxation purposes when it was in truth to be used for a criminal investigation. She submits that, as a direct consequence of this interview, the ATO and CDPP came into possession of notes of the interview, authored by Mr Ross Gowan, and the transcript of the interview, both which show clear lines of defence.

16. She submits that the ATO has withheld evidence concerning the meeting on 22 January 2018, which evidence was finally disclosed on 30 August 2024 as a result of court order. It is submitted that the CDPP assisted the ATO to conceal this evidence. It is submitted that prosecutors have failed to act in good faith concerning disclosure.

17. The defendant also submits there has been cross-contamination between the ATO audit and the ATO criminal team.

18. Insofar as the compulsorily obtained documentary documents are concerned, she submits that there has been untracked dissemination of the s 353-10 TAA material, and unlawful disclosure of s 353-10 TAA material, including bank statements.

19. It is submitted that the charges are unlawfully based on the s 353-10 TAA material.

    Misconduct

20. The second basis for the stay application concerns alleged misconduct on the part of the ATO and/or the CDPP.

21. The particulars of the allegation are:

(a)	Mr Rains formed a close relationship with the BA. He instructed them to keep conversations off emails because of the requirements of disclosure.
(b)	Mr Rains failed to make timely disclosure of relevant material.
(c)	The CDPP opposed the defendant’s applications for disclosure and for the issue of various subpoenas.
(d)	Mr Rains obtained untrue witness statements:

(i)       Mr Rains was involved in the drafting of a statement of Ms Akeroyd which falsely alleged she had not been paid. This statement was on both briefs of evidence.

(ii)      Mr Rains drafted a misleading statement of Ms Ivar which excluded exculpatory evidence.

(iii)     Mr Rains’ own statement contains untrue allegations that the defendant claimed to have invented DBH.

(iv)     The statements of Mr Rains and Mr Challans do not mention the meeting on 22 January 2018.

(v)      The statement of Ms Black is incorrect.

(e)	The ATO and/or the CDPP failed to disclose documents relating to the 22 January 2018 meeting until after court order.
(f)	Mr Rains lied to Mr Trembath in a conversation on 23 August 2018.
(g)	Mr Rains lied when giving evidence in the Magistrates Court on 17 January 2022, where he claimed he did not disclose any information or documents to the BA.
(h)	Mr Rains lied when he said he told Mr Hoult about the State fraud.

(i)       Mr Rains lied when he told the defendant he had no knowledge about R&D on 14 March 2018.

(j)	Mr Rains was the architect of the State fraud charge. He knew, as did the BA, that the costs incurred were legitimate and in accordance with investor agreements. Despite this he effectively instituted the prosecution with the JAA.
(k)	Mr Rains falsely created Exhibit VENIK00267 by deleting exculpatory material.
(l)	The CDPP never held evidence to support the State charge, but held exculpatory evidence yet continued to prosecute the defendant.
(m)	The CDPP has ignored the evidence of Ms Ivar in drafting the particulars.
(n)	Mr Rains concealed evidence about his dealings concerning the manufacturer of the drug in a briefing note to the Queensland Bar and in search warrant affidavits.
(o)	Mr Rains otherwise lied in affidavits to obtain warrants and misled the Queensland Bar.
(p)	The ATO concealed evidence from Ms Ivar that the NCE was eligible for R&D.
(q)	There has been noncompliance with AGIS and investigation guidelines.

1. The defendant submits that the Commissioner of Taxation did not authorise Mr Rains to lay the complaint and summons of 4 April 2019.

2. In an unrelated ground, it is submitted that the ATO acted beyond power by “hijacking” the powers of AusIndustry.

3. The defendant ultimately submits that the use of the court’s procedures has been oppressive and unfair, and has brought the administration of justice into disrepute. Such oppression of an individual by federal government agencies would diminish public confidence. She submits that in those circumstances, a stay should be granted.

4. I note some other issues were raised in the course of evidence and submissions and I have dealt with these throughout the judgment. I am satisfied the CDPP has been apprised of the central allegations of misconduct involving officers of the ATO and the CDPP over the course of this lengthy hearing. I also note this is not a civil case where the parties are bound by the pleadings.

5. On example relates to the JAA. The CDPP in its submissions points out that this is not referred to in the particulars.[22] But there was extensive cross examination about this document of Mr Rains and the defendant made submissions about it which the CDPP was able to answer.[23] I also note that it was Mr Rains who produced the JAA in his material[24] in response to the defendant’s material in an attempt to justify an assertion he did not investigate the State fraud.

   [22]             Exhibit EU page 23.

   [23]             Exhibit ER annexure A pages 58, 63, 64, 65, 66, 72, 73, 79, 80.

   [24]             Affidavit of Mr Rains dated 22 November 2024.

6. I also note that all almost all of the documents relevant to this matter are the ATO/CDPP documents not the defendant’s. Many of these are on exhibit EI which the CDPP chose to tender. I accept the CDPP’s submission that exhibit EI may be regarded as a precise and accurate document.[25]

   [25]             Exhibit EU [76]-[78].

7. Also it has been said previously that a judge is not required to mention every fact or argument relied on by a losing party as relevant to an issue.[26]

   [26]             Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447 at [62].

   SUBMISSIONS

   Defence submissions[27]

   [27]             Exhibit ER.

8. In her submissions, the defendant submits that the prosecution is terminally infected by several abuses of process.

9. Paragraph 3 of the submission relates to the validity of the prosecution for the ATO fraud. As the CDPP has not consented to the matter being argued on the depositions, I do not propose to deal with those issues.

   Background

10. By way of background, the defendant submits that she was a director and majority shareholder of companies created to develop and market a safe, non-invasive therapeutic product using a compound that naturally induces and sustains human metabolic ketosis. She registered IP companies on the advice of the BA and Mr Murdoch. Venika was set up to exploit the drug in respect of the treatment of cancer. The core activities listed were to develop an improved method of manufacture for DBH that would produce a NCE to be used as an ingredient for four therapeutic indications safe for human consumption.

11. The defendant refers to her background in sales. She says that a clinical trial was planned for late 2015 but did not proceed at that point. In June 2016, she first contacted the BA seeking a funder for cancer trials. The BA were not interested in advancing the cancer IP but would consider her if she developed a weight loss drug. Two pilot studies were conducted in October and November 2016 and the BA invested $185,000. The initial trials were promising.

12. It is submitted that Ms Bagnato, Mr Challans and Mr Rains in their evidence all acknowledged that the defendant intended to conduct clinical trials. It is also submitted the ATO knew that she was conducting research studies through UQ, and through her companies engaged others to develop and manufacture a patentable human safe version of the DBH to use as an ingredient. They also knew she had imported a shipment of the raw materials to be used in the clinical trials.

13. She submits that the State fraud charge was brought for a collateral purpose, namely for the BA to get their money back. She submits she was falsely prosecuted for misappropriating $185,000 when the BA was aware the money was spent legitimately. The defendant submits that any dispute arising between herself, or Venika, and the BA is ultimately commercial in nature, not criminal.

    Compulsorily obtained material

14. The defendant submits that a court has the power to grant a stay where the administration of justice is brought into disrepute. The courts must protect their integrity and fairness.

15. The defendant submits that the case of Strickland28 is on all fours with the present case. She submits that the High Court decided that a defendant who has already been compelled to reveal his or her account compulsorily can no longer decide the course which he or she should adopt at any subsequent trial. It is submitted that this principle applies at all stages of the trial process, whether charged or not.[29] She submits that even if her answers are kept secret, the requirement to give answers fundamentally alters the judicial process.[30]

    [29]             Strickland [2018] HCA 53; (2018) 266 CLR 325at [101].

    [30]             X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 at [124].

16. She submits that the relief should not be confined to cases of deliberate and knowing misconduct.

17. It is further submitted that the s 353-10 TAA material could not be lawfully disclosed to the CDPP for use in a prosecution against her. She argues that the egg cannot be unscrambled.

18. The use of a “clean team” is no answer to the forensic disadvantage occasioned by the use of compulsorily acquired material. It is submitted that the cases of R v Independent Broad Based Anti-Corruption Commission;[31] Kinghorn v CDPP[32] and R v Leach (No 2)[33] can be distinguished.

    [31] [2016] HCA 8; (2016) 256 CLR 459.

    [32] [2021] NSWCCA 313; (2021) 106 NSWLR 322.

    [33] [2022] QCA 7; (2022) 10 QR 40.

19. It is submitted that criminal investigators should be shut off from recourse to civil audit in this case. She submits that Ms Bagnato and Mr Montanez both gave evidence that a s 353-10 TAA interview could only be used for the purposes of a taxation law and for no other purpose – certainly not for the Criminal Code (Cth).

20. It is also submitted that the nature of the tax system protects confidentiality, and a taxpayer has a legitimate and reasonable expectation that material provided to the ATO will not be communicated to persons outside the ATO without procedural fairness.

21. The defendant submits that the use of the compulsory interview gives rise to questions as to whether there has been a contempt of court.

22. It is further submitted that s 353 TAA cannot be employed by the ATO to override the implied undertaking principle established in Harman v Secretary of State for Home Department.[34] It is submitted the court would accept that ATO criminal investigators should not have recourse to the ATO’s civil information gathering powers. She submits documents obtained this way are inadmissible.

    [34] [1983] 1 AC 280.

23. It is submitted that Mr Collins’ evidence that there are significant risks of cross- contamination should be accepted. There is also a risk of derivative use evidence problems in this regard.

24. It is submitted that records ought to have been kept of the meeting of 22 January 2018. It is submitted that the ATO Corporate Management Practice Statement PS CM 2005/27 sets out a requirement for ATO officers to keep records.

25. With respect to the sharing of information with the QPS, the ATO only gave Mr Rains approval to share verbal information with one QPS officer, and the approval was for the period 10 April 2018 until 23 May 2018. It is submitted this document did not authorise the disclosure of documents beyond the period mentioned. It is also noted the approval was signed three days after the expiration of the approval.

26. Also, Mr Montanez gave evidence that an ATO officer must obtain the approval from the Information Disclosure Team prior to disclosing documents to an external agency, which did not happen here. In this regard, ATO officers are bound by ATO secrecy laws.

27. The defendant also submitted that the ATO refused to meaningfully engage with respect to Venika’s claim.

28. It is submitted the compulsory examination was used by the ATO audit team to confirm their suspicion of fraud. This, it is submitted, is unlawful.[35]

    [35]             In reliance on Ms Bagnato’s evidence; Transcript day 31 (30 May 2025) page 63.25.

[78]     In this regard the defendant notes the ATO documentation and internal communications leading up to the interview. She submits it was clear they suspected fraud before the interview and that was what the interview was about.

1. She submits that the crime team was engaged at the meeting on 22 January 2018. Mr Challans took in the evidence folders when he met the crime team. Ms Glaser received the briefing note on 22 January 2018 and pre-empted a referral.

2. At this meeting there was a discussion about the invoice, about the courier and customs. Mr Rains commenced his engagement that day.

3. During the interview itself, Mr Challans mislead the defendant that the interview would be kept secret because immediately following the examination, on 25 January 2018, there was a meeting between the criminal and civil teams. Mr Challans handed Mr Rains two folders of civil audit material, including s 353-10 TAA material.

4. It is submitted the interview was not conducted for the operation or administration of a taxation law. It was clearly conducted to gather evidence and compel the defendant to answer questions to confirm a suspicion of fraud.

5. The interview was provided to AusIndustry by Ms Caulfield, and Mr Rains gave the interview to other ATO officers and the CDPP. The full extent of the dissemination cannot be known because no records were kept of this.

6. With respect to the criminal referral, the evidence reveals this occurred on 25 January 2018.

7. It is further submitted that the ATO failed to make appropriate inquiries as to offers to meet with the ATO prior to the issuing of the s 353-10 TAA notice.

   The investigation (including the State fraud charge)

8. It is submitted that on the information provided by Mr Rains, the State fraud charge was laid against the defendant and continued by the CDPP without comprehending key evidence or speaking with the complainant/s.

9. It is submitted that Mr Rains made no inquiries about drug development with Kerui or Mr Zheng, even though Kerui had provided a statement. He also failed to follow up on inquiries on the value of a similar project.

10. It is also submitted he lied to the defendant on 14 March 2018, claiming he did not know much about R&D.

11. The submission notes that AusIndustry’s role is to assess the eligibility of a claim, purely on its technical aspect, and that decision is binding on the Commissioner. On or before 8 March 2018, Mr Rains contacted Ms Ivar regarding Venika’s claim. He was told several times that the defendant did not claim to have invented DBH. He was also told that there was a valid claim as an NCE. Despite this, Mr Rains disregarded these emails and approached the TGA and Dr Crane to provide evidence.

12. The defendant submits that the first statement of Ms Ivar dated February 2019 was designed to be false and misleading and excludes key exchanges between Mr Rains and her. The court would not accept Ms Ivar’s evidence on this point. In early April 2024, the CDPP requested the ATO obtain a further statement from Ms Ivar on whether the claims involving an NCE made by the defendant may be eligible for the R&D refund, and if so whether the NCE referred to in the R&D claim could have formed the basis of such a refund.

13. In an addendum statement dated 30 April 2024[36], Ms Ivar confirmed that Venika’s claim met the requirements and would be eligible as an R&D activity. This statement was withheld by the ATO until Friday, 16 May 2025. It is submitted that the CDPP was a party to the concealment of this statement.

    [36]             Exhibit CX.

14. With respect to the State fraud charge, the defendant refers to the meetings between Mr Rains, Dr Monaghan and Mr Mactaggart and notes that the JAA was prepared by Mr Rains.

15. It is submitted the JAA is misleading, particularly when Mr Rains was in possession of JV052 which approved the expenses. This was not mentioned in the JAA. It was submitted without a complaint by the BA. Indeed, the defendant submits that Mr Mactaggart’s complaint is that he did not receive shares rather than any misappropriation of investment funds.

16. It is submitted that Mr Hill and Mr Mactaggart knew that the basis of the State fraud charge was false and yet they took no steps to correct the situation.

17. The defendant submits it is relevant that Mr Rains emailed the CDPP prosecutor asking why there was talk of the State prosecution being discontinued. This shows the level of his involvement in the State fraud charge.

18. It was also submitted that Mr Rains breached the ATO secrecy laws by disclosing banking transactions in writing.

19. The defendant points out that on the Sunday just before the committal, Officer Holt obtained an addendum statement from Mr Mactaggart alleging that the defendant was not entitled to any consulting fees, relying on a hearsay conversation.

20. It is submitted that key evidence was not tendered at the committal by the prosecutor, namely JV052 and the financial models document.

21. It is further submitted that three no case submissions were presented to the CDPP, which were not accepted. Mr Mactaggart and Mr Hoult made no allegation that they did not receive shares in their statements. Both were instrumental in maintaining the prosecution. The BA used this prosecution to retrieve their money. This is clear from the QP9.

22. It is further submitted that Mr Rains falsified VENIK00267 to remove exculpatory words. Mr Rains’ evidence kept changing. The court would accept, on the balance of probabilities, Mr Rains deliberately altered the document to support the fraud case against the defendant.

23. It is further submitted that Mr Rains was involved in drafting a false statement of Ms Akeroyd stating that she was not paid and placed this on both briefs of evidence. He knew she had been paid. He also drafted a false statement from Ms Ivar.

[102]    The defendant submits that Ms Black’s statement is false. At no stage did the defendant approach DHL to change the shipping value.

[103]    Mr Rains falsely claimed in his statements that the defendant claimed to have invented DBH and the drug is an anti-cancer drug. He omitted to refer to the emails he received to the contrary.

1. Both Mr Rains and Mr Challans omitted to say in their statements that there was a meeting on 22 January 2018.

   Annexure A

2. The defendant submits that the drafting by Mr Rains of Ms Ivar’s statement was misleading and omitted exculpatory evidence. The emails of Ms Ivar are not referred to and were omitted. She also submits that several paragraphs of Ms Ivar’s statement are contrary to scientific evidence. The defendant examines the statement and submits that there are misleading statements made in it.

[106]    The defendant submits that the statement taken from Ms Black at DHL is also misleading. The statement alleges that the defendant wrote to her and asked her to amend the shipping value to $11,138,900. Under cross examination, Ms Black admitted the defendant did not say this.

1. The defendant submits that the statement taken from Dr Crane is also misleading when read in the context of the statement of Ms Ivar.

2. It is submitted that Mr Rains’ statements to Mr Trembath referred to in the email dated 23 August 2018 are misleading as well.

3. It is submitted that Mr Rains’ statement in his affidavit dated 25 August 2022 that he was not engaged until after the audit stage is false.

4. It is submitted that Mr Challans’ statement is misleading, namely where he omits from his statement that he had meetings with Ms Smith and Mr Rains on 22 January 2018.

5. It is submitted that Mr Mactaggart provided a hearsay statement to the QPS which was false.

6. With respect to the Strickland bundle,[37] the defendant points out that as at 10 January 2018, Mr Challans formed the view that false documents had been provided by the defendant. As of 11 January 2018, Mr Challans was emailing the ministerial team advising of the false documents and the potential false evidence would be referred to tax crime.

   [37]             Exhibit L.

7. The defendant submits that she wrote to Senator Cash about these issues on 9 January 2018. On 11 January 2018 Ms Caulfield issued the s 353-10 TAA notice.

8. The defendant points out that on 12 January 2018, Mr Challans sent an email to Ms Zachat concerning action items for the audit investigation. These action items included having tax crime on standby.

9. The defendant refers to the email on 22 January 2018 at 4.51pm from Ms Zachat to ATO audit about the meeting with criminal investigations. There is another email at 4.58pm which read “thanks for meeting with us earlier today to discuss this case.” The interview questions were amended and sent by Ms Zachat to Mr Challans and Mr Beal at 6.48pm on 22 January 2018. There is also an email on 22 January 2018 at 5.34pm concerning a meeting between the criminal team and the audit team at a workshop.

10. The defendant refers to the email from Mr Challans on 24 January 2018 at 9.38am which refers to the details of conversations with criminal investigations on 22 January 2018. She also refers to the minutes of the workshop on 25 January 2018 which noted that the preliminary work by the crime team had already commenced.

11. The defendant refers to the fact that on 8 February 2018, Mr Rains was given the index to the audit documents by Ms Grimes. She also points out the distribution of the compulsory interview.

12. In oral submissions, the defendant submitted:

(a)	That the ATO/CDPP concealed evidence, namely Exhibit CX. The ATO concealed the material relating to the 22 January 2018 meeting. I should infer this was deliberate because the material was favourable to the defendant.
(b)	That Ms Black’s evidence is she never spoke to the defendant about amending the invoice. This is contrary to the allegation in the particulars.[38] This is misconduct by the CDPP.
(c)	That the CDPP knew that the interview could not be used and the law in Leach[39] is binding. I might say I did not accept this point. In my view I need to apply the applicable law as at present.
(d)	That the dissemination of the s 353 TAA material to the crime team was unlawful.
(e)	That I would reject Mr Rains’ evidence that he spoke to Mr Hoult about the QPS matter.
(f)	That the emails Ms Ivar sent to Mr Rains are not in her statement. I would reject Mr Rains’ evidence that “bespoke” meant that she claimed to have invented the drug. In any event, AusIndustry’s view is binding. The CDPP has continued this false allegation in the statement of facts.
(g)	As to the Akeroyd statement, Mr Rains knew it was false as he knew in March 2018 that Ms Akeroyd had been paid. The statement was in both briefs of evidence and painted a picture of fraud.
(h)	As to VENIK00267, I would reject Mr Rains’ account of how the exculpatory words went missing. It was entirely different to the version given to Mr Micairan. It is submitted I can use propensity evidence in this case to conclude this was deliberately done. The defendant pointed out that the correct expenses sheet (JV052) is not in the log in Exhibit DN. The defendant pointed out that the altered document was the one tendered by Ms McGregor at the committal.
(i)	The financial models document was not tendered at the committal. The QDPP did not seem to have it in Exhibit DN, yet Ms McGregor had been given it.
(j)	I should conclude that Ms McGregor did not disclose these two documents to her superiors. They were significant exculpatory documents. She also refused to tender them as part of the crown case.
(k)	It is to be noted that the “false” Akeroyd statement, VENIK00267 and the allegation that the defendant claimed to have invented DBH were used in both prosecutions.
(l)	As to the JAA, this was a misleading document. Mr Rains engaged the QPS dishonestly because he knew as early as 12 April 2018 that the expenses had been incurred with approval of the Board. He did not refer to the Board’s approval in the JAA.
(m)	It is submitted that no corrective action was taken by the BA concerning the false allegation of misappropriating $185,000. It was not the complaint of the BA. Also, Ms McGregor relied on the hearsay evidence from Mr Mactaggart at the committal. Ms McGregor failed to draw the Magistrate’s attention to the fact that Ms Akeroyd was paid $18,700 and that some $20,000 was spent on raw materials when there was reference to the sum of $43,000.
(n)	The inference should be drawn that Mr Rains was involved with the decision that the State fraud matter should proceed.
(o)	It is submitted that the true dispute between the BA and the defendant was the BA not receiving their shares.
(p)	Further, as to VENIK00267 Mr Rains deleted the relevant exculpatory words to support the allegation that the defendant had misappropriated the money.
(q)	The defendant submits that there was oppression of her as she faced two prosecutions at the one time with Mr Rains as the architect of both. One of them was started without a complainant. Also, the State fraud was brought for a collateral purpose i.e. for the BA to get their money back and was part of an ATO disruption strategy. Being prosecuted as well for the State fraud “crippled” the defendant and she ultimately became self-represented.
(r)	The BA never corrected the injustice and indeed Mr Mactaggart’s statement was “cooked up” on 9 December 2019 to keep the prosecution alive. The fact is Mr Mactaggart said in his evidence the expenses appeared legitimate. Also, no addendum statement was taken from Dr Monaghan referring to the financial models.
(s)	It is also submitted that Mr Hill was instrumental in the prosecution.
(t)	The defendant submitted that I would not accept Mr Rains’ evidence he did not recognise the financial models.
(u)	The defendant also submitted that exhibit R page 547 was also not referred to in Mr Rains or Dr Monaghan’s statement and this was a key document.
(v)	Also, at the time of the JAA Mr Rains had possession of the terms sheet, shareholders agreement, correct expenses sheet (JV052), Dr Monaghan’s draft statement referring to the expenses and knew of the Akeroyd payment, and yet none of this was referred to. Mr Rains lied in the JAA. The Monaghan invoices were not mentioned either. It was also submitted that the authority (exhibit DO) did not give Mr Rains authority to disclose matters to the QPS like he did. The document was backdated.
(w)	There was no evidence that the majority of shareholders did not authorise the expenses.
(x)	It was submitted that Mr Rains cherry picked documents for disclosure.
(y)	It was submitted that the disclosure of the s 353 TAA documents to the QPS was unlawful and breached the PGH instruction.
(z)	With respect to the compulsory interview, it is submitted that the ATO concealed evidence relating to this.
(aa)	It is submitted that it would be readily concluded that the interview was to ask questions about the fraud.
(bb)	The defendant submits that if she had been told it was a criminal interview she would have exercised her right to silence.
(cc)	It is submitted the court would conclude that Mr Rains lied when he denied attending the meeting on 22 January 2018. It was not mentioned in the statements. It would be inferred that he knew the meeting was a problem and this is why it was not mentioned. It would be inferred he deliberately tried to conceal the meeting.

[38]             Exhibit K (page 13).

[39] [2018] QCA 131; [2019] 1 Qd R 459.

1. On 20 June 2025, the defendant submitted:

(a)	The audit documents should not have been disclosed to the crime team or the QPS. This is because they could only be used for a taxation law.[40] Also, the relevant approvals were not obtained prior to the disclosure to the QPS.
(b)	The compulsory interview could not be used for a criminal investigation.
(c)	That exhibit ET supported her argument that she never asked DHL to amend the invoice and this allegation in the particulars is wrong.
(d)	The material supported the contention that in reality, the compulsory interview was a criminal one. The crime team was on standby as early as 12 January 2018. The questions were clearly about the alleged false invoices.
(e)	Mr Challans mislead her on 10 January 2018 that he just wanted her to clarify gaps in the evidence relating to the R&D claim, when he knew that the crime team was going to be involved.
(f)	In such circumstances, Strickland[41] directly applies and a stay should be ordered. The principle applies at all stages of the process not just when someone is charged.[42]
(g)	The case of IBAC[43] is to be distinguished as the powers there were used lawfully. Kinghorn[44] concerned giving false evidence and should be distinguished.
(h)	The decision to involve the crime team was also for the improper purpose of shutting down her complaint.
(i)	It is not just a matter of excluding evidence in this case as it is impossible to unscramble the egg and the defendant can no longer decide what course to adopt at trial.[45]
(j)	Mr Rains, who knew of the interview, compiled the brief and laid the charges.
(k)	There was no record of the dissemination of the interview. As a result, it is no answer to appoint a “clean team.”[46] Also, the audit witnesses knew of the contents of the interview.
(l)	It was clear the interview was a criminal one. Mr Challans took three folders of evidence with him to discuss this with the crime team.
(m)	The court would find that Mr Rains was at the meeting on 22 January 2018 and he lied when he denied being there. He deliberately tried to hide the existence of this meeting by not referring to it in his statement. This was also to mislead the court.
(n)	Even if there was no bad faith, Strickland says this does not matter.[47]
(o)	The court would find the criminal investigation commenced on 22 January 2018. Mr Challans gave this evidence. The minutes of 25 January 2018 support this as well. The referral to tax crime was in train from 10 January 2018.
(p)	The court would find that Mr Rains breached AGIS by failing to keep notes of the meeting and of his conversations with Dr Monaghan and Mr Mactaggart.
(q)	Also, Mr Rains lied in his affidavits to obtain the search warrants and the evidence obtained by them should at least be excluded.
(r)	Mr Rains interfered with witness statements namely Ms Ivar’s and his email of 31 March 2021 showed that he wanted to keep contact free from disclosure.
(s)	As to the provision of the Ross-Gowan notes, the defendant submitted that at the time she thought they were auditing the matter. She was never told there was a criminal investigation. They provided that material in good faith. The same applies to the position paper dated 14 February 2018. All this material provides clear lines of defence. Equally there is no record of dissemination of the notes. One should also bear in mind that Mr Challans told her that secrecy provisions applied. This was a lie because the material was immediately given to the crime team.
(t)	Mr Challans used the interview power and the referral to the crime team was to shut down the referral to the AAT. It is submitted this is a contempt of court.
(u)	The defendant submits that she should have been informed that she was being questioned about a criminal matter so that she could exercise her right to decline to answer questions.[48] When one looks at the email dated 24 January 2018, it was clear the interview was being used for a criminal purpose. The meeting between the two teams was arranged for 25 January 2018 and the interview details immediately discussed. The fraud referral started the same day.
(v)	The court would not accept Ms Ivar’s evidence. She was perfectly capable of giving evidence. She was prepared to sign a false statement prepared by Mr Rains. There was also deliberate non-disclosure of the statement of April 2024 for some twelve months.
(w)	The court would reject Ms Albert’s evidence that the CDPP did not know about the statement.
(x)	It is also part of the misconduct claim that Ms Albert ignored the Ivar emails for the statement of facts. The claim for misconduct includes the false VENIK00267, the false Akeroyd statement and the lies in the affidavits. It is submitted that Mr Rains perverted the course of justice.
(y)	It should be noted Mr Rains did not swear an affidavit as to the VENIK00267 issue or the Akeroyd issue. It should be inferred this was a deliberate decision to avoid being pinned down to an explanation.

[40]             Commissioner of Taxation v Tamarama Fresh Juices Australia Pty Ltd [2017] FCAFC 154; (2017) 252 FCR 471.

[41] [2018] HCA 53; (2018) 266 CLR 325 at [61].

[42] [2018] HCA 53; (2018) 266 CLR 325 at [95] and [101].

[43] [2016] HCA 8; (2016) 256 CLR 459.

[44] [2021] NSWCCA 313; (2021) 106 NSWLR 322.

[45] [2018] HCA 53; (2018) 266 CLR 325 at [78].

[46] [2018] HCA 53; (2018) 266 CLR 325 at [80].

[47] [2018] HCA 53; (2018) 266 CLR 325 at [99]-[102].

[48]             Pyneboard v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328 at page 341.

CDPP Submissions[49]

[49]             Exhibit EU.

Compulsory Interview

1. The Crown submits that the merits of the ATO prosecution have not been called into question and the application should proceed on the assumption the prosecution has merit. It is submitted that the stay application should be refused as the defendant has not discharged the heavy onus of establishing that a stay should be granted.[50] It is submitted this is not a case where the defendant was tricked into the compulsory interview or that the interview was unlawful.

   [50]             Dupas v R [2010] HCA 20; (2010) 241 CLR 237 at [18].

[121] Section 353-10 TAA permits the issuing of notices requiring a person to give information, evidence and produce documents for the purpose of the administration or operation of a taxation law. The term “taxation law” is defined as an act or part of an act of which the Commissioner has general administration[51]. The power to issue a notice under s 353-10 is broad and wide ranging[52]. The only limitation on the exercise of this power is that it must be exercised for the purpose of the administration or operation of a taxation law.[53] The Commissioner is entitled to make a roving enquiry into the income or assessment of a particular taxpayer.

[51]             ITAA s 995-1.

[52]             Deputy Commission of Taxation v Widdup [2022] FCA 1403 at [7].

[53]             CUB Australia Holding Pty Ltd v Commissioner of Taxation [2021] FCA 43; (2021) 385 ALR 731 at [98-99].

1. The power to issue the notice must be exercised in good faith and proof of bad faith will only occur in rare and extreme cases. It is submitted that the following legal principles apply when considering whether the exercise of the power should be found to be invalid:

(a)	the alleged improper purpose must be substantial[54];
(b)	what was the operative subjective purpose of the decision maker[55];
(c)	an improper purpose will not be lightly inferred[56];
(d)	the purpose must be the operative subjective purpose of the decision maker[57];
(e)	the question of the relevant purpose is a question of fact to be determined on the evidence[58].

[54]             Thompson v Council of Municipality of Randwick [1950] HCA 33; (1950) 81 CLR 87 at 105-106.

[55]             Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2004] WASC 264.

[56]             Knuckey v Commissioner of Taxation (1997) 87 FCR 187.

[57]             Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2004] WASC 264.

[58]             South Australia v Slipper MP [2003] FCA 1414; (2003) 203 ALR 473.

1. In this case the factual context in which the compulsory power was exercised needs to be considered. On the 24 August 2017, the defendant authorised the lodgement of the R&D claim which stated that Venika had incurred $8,456,800 in expenditure in the 2016-2017 financial year. A refund of $3,678,708 was sought. Between September 2017 and July 2018, the ATO considered the R&D claim. The key issue being investigated was the apparent inability by Venika to explain and substantiate the expenditure in respect of the drug that was being developed.

2. Paragraph 11 of the submissions points out some examples of the inconsistencies. Once the R&D claim was lodged, the Commissioner had a duty to administer all provisions of the taxation law relevant to the assessment. The Commissioner had to consider and determine the refund sought in the R&D claim in accordance with Division 355 of the ITAA; the application of any administrative penalties and the exercise of his discretion to retain the refund while information was being verified.

3. Between September 2017 and 10 January 2018, the defendant directly and via her representatives voluntarily provided information and material to support the R&D claim. The audit team prepared a document entitled “Exercise of the Commissioner’s discretion under s 8AAZLGA of the TAA 1953”. This related to the discretion to retain funds while the Commissioner verified information. The document referred to the inconsistency in explanations and evidence provided; the failure to provide explanations and evidence; a concern the Xi’Zan invoice was falsified; the allegation the taxpayer might be involved in fraud and the fact there was not enough information to assess the refund. Accordingly, it was said “we are not in a position to make an assessment.”

4. On 5 December 2017, the Commissioner issued a s 353-10 TAA notice to DHL, from which documents were produced. On 15 January 2018, the Commissioner issued a s 353-10 TAA notice to the defendant requiring her to give evidence. This interview was conducted on 23 and 25 January 2018. Prior to the issuing of the notice on 15 January 2018, detailed submissions were prepared by the audit team explaining the basis for the notice including a concern that the Xi’Zan invoice was falsified.

5. On 5 July 2018, the Commissioner issued a position paper which referred to the information and evidence gathered during the investigation. It stated the Commissioner had determined that Venika was not entitled to the R&D tax offset due to inconsistencies in information and documents provided to support the R&D claim. The Commissioner considered the expenditure was not incurred and the Commissioner considered that false or misleading statements were made. The Commissioner considered these alleged falsities led to a shortfall that resulted from intentional disregard of a taxation law and steps were taken to prevent or obstruct the Commissioner and thus imposition of substantial administrative penalties was warranted.

6. These tasks were undertaken on behalf of the Commissioner by the audit team. The functions required the audit team to consider the accuracy of the information, the failure to provide explanations and evidence, the making of false and misleading statements, fraud or evasion, the intentional disregard of the taxation law and steps taken to obstruct the Commissioner.

7. It is submitted the Commissioner would have failed to perform his statutory duty in the operation and administration of a taxation law if this was not done. Nothing in the legislation required the Commissioner to suspend or cease the performance of these functions simply because referral was made to the crime team.

8. It is submitted the exercise of the power to issue the notice and conduct the interview was done for proper purposes of the administration or operation of a taxation law.

9. It is further submitted that powers under s 353-10 TAA can be exercised in respect of evidence and information gathered for certain criminal offences. Section 8ZJ TAA permits the Commissioner to institute the prosecution of a “prescribed taxation offence”. This includes an offence against Division 136 and 137 of the Criminal Code (Cth). These divisions create offences for the provision of false and misleading statements and applications and the provision of false and misleading documents and information to Commonwealth entities. It is submitted that it was permissible for the notice to be issued for the purpose of his undertaking his statutory function under s 8ZJ TAA.

10. It is submitted that the evidence before the court supports the conclusion that the audit team issued the notice because of concerns it had in respect of the false and misleading statements made in the R&D claim and the documents provided to support it. It is submitted that the fact that the members of the audit team may not have been aware that powers could be used for the purpose of investigating these criminal offences does not impact on the conclusion that they could. Even though there were two different teams, the relevant Acts do not distinguish between them.

11. It is submitted the ATO’s guidelines required the audit team to consider a referral to the crime team concerning dishonest claims of tax deductions, refunds, falsification of invoices etc. They were required to contact PGH through the “Tax Crime business line partner gatekeeper” if in doubt about whether a suspicion of crime was correct. This overlapped the proper functions the audit team was already undertaking. It was also consistent with the functions of the Commissioner to prosecute offences under Divisions 136 and 137 of the Criminal Code (Cth) .

12. It is submitted there was no evidence that the crime team was involved with the decision to issue the s 353 TAA notice; in the preparation for questions for the interview or in the interview itself. At most, the crime team was contacted and attended a brief meeting where the matter was broadly outlined.

13. It is submitted the information and evidence gathered in the review was extensive and technical in nature. The crime team could not have gained a proper understanding of the case in one meeting nor contributed in any meaningful way. There is no inference or evidence that the audit team was intentionally doing the bidding of the crime team in conducting the interview.

14. The sole purpose of the interview was to carry out their duties in respect of the tax assessment. Also, the contents of the two-day interview when considered in its entirety supports the conclusion the sole purpose or at least the dominant one was to conduct an audit to determine the veracity of the R&D claim. There was nothing improper in the audit team conducting a compulsory interview to alleviate or confirm their suspicions and there was nothing improper in the audit team having a high-level conference or seeking guidance about the appropriateness of the referral. The fact they held suspicions and were considering a formal referral to the crime team does not mean the interview was conducted for an improper purpose. Their actions were consistent with the performance of their statutory functions and internal policies and procedures.

15. It is submitted therefore that Strickland does not apply as the interview here was conducted for a proper purpose and was lawful.

    State fraud charge

16. It is submitted that this aspect of the permanent stay application ought not to be determined by a strict reference to the case as particularised at December 2020. The Crown is not bound by these particulars. The Crown could have sought to amend the particulars.

17. It is submitted that this Court is not concerned with hearing the State fraud charge and does not have all the evidence which supported the case.[59] The prosecution is not required to prove there was a case to answer. It is further submitted that it is not correct to say there was no evidence to support the State fraud charge. It is submitted the State fraud charge survived committal and did so over several no case submissions.

    [59]             As regards this submission, the CDPP was on notice from early in these proceedings that the State charge was not a valid one and this formed part of the stay application (see transcripts of 9 February 2024 page 135.35; 14 June 2024 page 57.10; 2 September 2024 pages 88-89, 99 and 101; Day 4 transcript pages 69-71.). Also see Exhibit EQ (Defence particulars para 3(i)).

18. It is submitted that the defendant was selective in what evidence from the State fraud brief was placed before this Court. It is submitted that the QDPP submissions at the State fraud committal and the documents referred to therein provided some evidence of the charge. It is submitted that the finding of some deficiency would not rationally lead to a permanent stay of the ATO proceedings.

19. It is accepted that a finding that the evidence was so deficient that the prosecution ought not to have commenced may give rise to an inference of some sort of impropriety, but the defendant needs to establish that the prosecution case would inevitably fail. Even if that finding was made, it would be necessary to establish a relevant nexus from that finding which would justify a permanent stay of the ATO charge. There is no proper basis for drawing an inference from the presentation of the nolle prosequi. There may be many reasons why a prosecuting authority might choose to discontinue a proceeding.

20. It is submitted that even if the court found some impropriety with respect to the State fraud charge, this still would not justify a stay of these proceedings.

21. The Crown submitted there is a strong public interest in the accused being tried on the ATO prosecution. It is submitted that a stay should not be ordered for the purpose of punishing or disciplining prosecutorial or police misconduct. It is submitted that the continuation of the State fraud charge at the same time as the ATO prosecution does not give rise to an oppression such that it can be concluded there was an abuse of process. The ATO prosecution involves a different charge and separate conduct. There is nothing impugning the merits and strength of the ATO prosecution, and it is a far leap to conclude that there is some deficiency in respect of one prosecution and this can found the basis for a permanent stay on another.

22. Also, the fact that the defendant has spent money on defending the State fraud charge should be considered in the context that she was eligible for legal aid and was variously represented until she sacked her legal representatives. There is no Dietrich application.[60]

    [60]             Dietrich v R [1992] HCA 57; (1992) 177 CLR 292.

    Statements of Ms Ivar

23. The Crown submits that paragraph 9 of Ms Ivar’s first statement dated 6 February 2019 is not misleading, and that her second statement dated 30 April 2024 was not concealed by the prosecution.

24. With respect to the first Ivar statement, the Crown submits that it should be accepted that the amendments made by Mr Rains were limited to formatting and presentation only and he did not alter its substance. It is submitted that the correspondence between Ms Ivar and Mr Rains is consistent with their evidence. It is suggested that if one reads paragraph 9 in context, this relates to the period between September to December 2017.[61] It is then submitted that if one reads the following paragraphs, that relates to personal communications with the defendant in February and March 2018.

    [61]             The difficulty with this submission is that it ignores the actual claim for R & D made by the defendant on 25 August 2017 made it clear it was for a method of manufacture not for the invention of a drug (see Exhibit L page 236).

[2678]          See discussion with CDPP 4 July 2025 at page 9.

[2054]  I have considered the principles contained in Bunning v Cross.[2679] Although it is a serious charge, the court cannot be seen to tolerate the use of compulsory interviews for an ulterior unlawful purpose; particularly where there was an attempt to conceal the existence of the meeting.

[2679] [1978] HCA 22; (1978) 141 CLR 54.

[2055] As was said in R v Ireland:[2680]

[2680] [1970] HCA 21; (1970) 126 CLR 321 at p 335.

“On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price.”

THE INVESTIGATION

[2056]  I now turn to the second “plank” of the stay application and that is the issue of the investigation. I do note that some of the misconduct I have found by Mr Rains also relates to the Federal charge.

[2057]  I consider Mr Rains exceeded his authority by being heavily involved in the investigation of the State charge and it is doubtful there was ever a case to answer as alleged. I have found an abuse of process occurred here.

[2058]  It is my opinion that the evidence concerning the conduct of the prosecution is relevant to the stay application in a general sense as the investigation and prosecution of this flowed on from the unlawfully obtained interview.

[2059]  The defendant on the evidence was put to considerable stress and expense in having to defend the State charge whilst at the same time defending the commonwealth charge/s. On my assessment, insufficient or no consideration was given to the no case submissions made by her and on her behalf or to the exculpatory evidence.

[2060]  The defendant must have been absolutely fearful of being unjustly convicted on the State fraud charge which would carry a sentence of several years in jail and she must have felt that no-one was listening to her, including the courts with the CDPP submitting that she was making unfounded and spurious allegations.[2681]

[2681]          See e.g. CDPP submissions to Magistrate Nolan on 8 May 2023 pages 597 and 876 - Exhibit EW.

[2061]  In summary, I have found:

(a)	The State fraud charge was continued for an unlawful collateral purpose.
(b)	Reasonable no case submissions (on the State charge) were ignored or were given insufficient consideration. There was no case to answer on that charge as particularised. No or insufficient consideration was given to the exculpatory evidence.
(c)	There was also a failure to disclose relevant documents to the defence before the State fraud trial listing.
(d)	Mr Rains deliberately left exculpatory documents out of the BA statements and the JAA.
(e)	Mr Rains altered a relevant part of the acquittal sheet (JV052) to undermine the defence case and this was tendered as an exhibit at the State fraud committal.
(f)	Mr Rains gave misleading information to the QPS in the JAA.
(g)	Mr Rains formed an inappropriate relationship with Dr Monaghan.
(h)	Mr Rains lied about claims that in his affidavits and statements as to the invention of DBH and failed to disclose contrary evidence in his possession.
(i)	Judicial officers have been mislead.
(j)	Mr Rains failed to disclose his contact with Kerui in the search warrant affidavits.
(k)	Mr Rains was involved in the preparation of a false statement from Ms Akeroyd and caused it to be placed in the brief of evidence with the intention of inducing a prosecutor to believe that she had not been paid.
(l)	Mr Rains drafted a misleading statement of Ms Ivar and used this to justify his own and Mr Challans’ misleading statements.
(m)	Mr Rains deliberately left out reference to the 22 January 2018 meeting from his statement and Mr Challans’ statement, and deliberately failed to disclose documents relevant to this meeting.
(n)	Courts were repeatedly misled by being told that full disclosure had been made when disclosure of crucial documents was withheld.
(o)	Mr Rains failed to follow up on potentially exculpatory evidence in the ATO fraud case. He even asked the CDPP whether “we” should hide evidence from the defence.
(p)	There was also scant regard given to the policies which applied to the ATO officers which has significantly affected the accountability of the ATO.
(q)	An exculpatory statement from Ms Ivar taken in April 2024 was not disclosed to the defence until she was about to give evidence a year later, in May 2025.

[2062]  As a direct result of Ms Rains’ conduct, a number of witnesses provided misleading statements which were tendered in court. The false exhibit VENIK00267 was tendered.

[2063]  It is my opinion that when one considers the conduct of the prosecution as set out above, this significantly strengthens the defendant’s argument for a stay of the prosecution on the present charge.

[2064]  In Jago it was noted:

(a)	The courts have the power to prevent abuse of their process (25, 46, 71).
(b)	This power is not confined to closed categories (26, 74).
(c)	There is a power to safeguard an accused person from oppression. It is not the purpose of the criminal law to punish the guilty at all costs (30, 56 and 71).
(d)	The focus is on the misuse of the court’s processes by those responsible for law enforcement (30).
(e)	The power is exceptional (31).
(f)	Other options should be considered before granting a stay (77-78).

[2065]  In Walton v Gardiner[2682] it was noted:

[2682] [1993] HCA 77; (1993) 177 CLR 378.

(a)	There is an inherent jurisdiction in a court to stay its proceedings as an abuse of process and this extends to all cases where the process and procedure of the court may be converted into instruments of injustice or unfairness (393).
(b)	For example, proceedings foredoomed to fail will constitute an abuse of process (393).
(c)	There is a weighing process involved namely fairness to the accused, the legitimate public interest in the disposition of serious charges and in the conviction of the guilty and the need to maintain public confidence in the administration of justice (393).

[2066]  In Williams v Spautz[2683] it was said that proceedings used for a purpose for which they are not designed or to obtain some collateral advantage beyond what the law offers are an abuse or process.

[2683] [1992] HCA 34; (1992) 174 CLR 509.

[2067]  It is my view that the conduct concerning the State charge, the motives behind it and the pursuance of the Commonwealth charge at or about the same time amounts to undue oppression of the accused person here such that it should not be tolerated by the court. The court itself became the instrument of oppression by having that charge before it. That is wrong and not consistent with the rule of law or justice.

[2068]  The court should not tolerate this type of conduct by this ATO investigator or the ATO more broadly, or any government authority for that matter.

[2069]  This conduct relates to both the State and Federal charges. Indeed, if Mr Rains was to be accepted, it mostly relates to the ATO fraud charge as he did not investigate the State one.

1. Unless the courts can rely on the integrity of government investigators and institutions then our system of justice is put at significant risk. In this case, justice has been put at risk.

2. I find that this conduct offends the integrity and functions of the court, particularly so when I consider some of this false evidence was relied on at both committals and is proposed to be relied on at the trial.[2684] A stay should only be ordered in an exceptional case. I find this is such a case.

   [2684]          See e.g. La Rocca v R [2023] NSWCCA 45; (2023) 306 A Crim R 301; (2023) 375 FLR 393.

[2072] I uphold the defendant’s second ground for a stay.

1. Even if I was wrong in my findings concerning this ground, I still would have stayed the prosecution by reason of my findings concerning the legality of the interview. Equally if I was wrong in my findings concerning the legality of the interview, I would have stayed the matter on the misconduct grounds.

2. Finally, I make it clear that if I had not ordered a stay, I would exclude the compulsory interview and all of the evidence obtained by Mr Rains during his investigation and all of the evidence obtained by search warrants and any evidence relying on that evidence.

   CONCLUSION

[2075] For the reasons given, I stay the prosecution.

Annexure A

Transcript References

Day Date Day Date

A	28 Nov 23	21	9 Apr 25
B	5 Dec 23	22	19 May 25
C	29 Jan 24	23	20 May 25
D	9 Feb 24	24	21 May 25
E	23 Feb 24	25	22 May 25
F	26 Apr 24	26	23 May 25
G	14 Jun 24	27	26 May 25
H	15 Jul 24	28	27 May 25
I	22 Jul 24	29	28 May 25
J	2 Sep 24	30	29 May 25
K	18 Sep 24	31	30 May 25
L	20 Sep 24	32	13 June 25
1	8 Oct 24	33	20 June 25
2	9 Oct 24	34	27 June 25
3	10 Oct 24	35	4 July 25
4	11 Oct 24
5	5 Nov 24
6	5 Dec 24
7	10 Dec 24
8	16 Dec 24
9	17 Dec 24
10	18 Dec 24
11	19 Dec 24
12	20 Dec 24
13	3 Feb 25
14	4 Feb 25
15	5 Feb 25
16	6 Feb 25
17	7 Feb 25
18	19 Feb 25
19	10 Mar 25
20	14 Mar 25

Annexure B

“Interview Affected Spreadsheet” – Tendered by the Crown through Exhibit EI

Document title Document Date To From Description

Type

ATO AUDIT EMAILS

Affidavit - Ness Avenue_docm	Email	22/05/2018	Anthony Rains	Maree Caulfield	Affidavit for warrant to
_DLM_Sensitive_.msg	search premises.
Draft Statement - Discussion	Email	22/02/2019	Anthony Rains	Scott Parkinson	Email regarding Scott
with Ian Ross Gowan	(CC: Julie Glaser,	Parkinson's statement
_DLM_Sensitive_.msg	Scott Parkinson)	relating to a conversation he had with Ian Ross Gowan. Email Attachments: Parkinson Scott - Statement.doc; Telephone Conversation_20180214 - Venika.docx
FW_ 20191128_PW	Email	29/11/2019	Anthony Rains	Maree Caulfield	Maree asking Anthony for
Exec_Issue brief_Venika_docx	confirmation of the status
_DLM_Sensitive_.msg	of the charges, in order to provide an updated briefing on Venika to the Exec.
FW_ Interview under section	Email	27/02/2018	Anthony Rains	Demelza Grimes	Email providing the
353-10 of the TAA 1953 with	transcripts for the Formal
Julie Clarke 23_1_2018 -	Interview on 23/01/2018
Reissue _DLM_Sensitive_.msg	with Julie Clarke.
FW_ Interview under section	Email	27/02/2018	Anthony Rains	Demelza Grimes	Email providing the
353-10 of the TAA 1953 with	transcripts for the Formal
Julie Clarke 25_1_2018 -	Interview on 25/01/2018
Reissue 1	with Julie Clarke.
_DLM_Sensitive_.msg
FW_ Interview under section	Email	27/02/2018	Anthony Rains	Demelza Grimes	Email providing the
353-10 of the TAA 1953 with	transcripts for the Formal
Melinda Trembath 24_1_2018	Interview on 24/01/2018
- Reissue	with Melinda Trembath.
_DLM_Sensitive_.msg
Melinda Trembath	Email	20/02/2018	Anthony Rains	Maree Caulfield	Email update on a phone
_DLM_Sensitive_.msg	(CC: Brett	call between Maree
Challans)	Caulfield and Melinda Trembath.
Position	Email	23/11/2020	Anthony Rains	Maree Caulfield	Email providing Anthony
paper_Evidence_v2_xlsx	(CC: Demelza	with an excel document of
_SEC_OFFICIAL_Sensitive_.	Grimes)	position paper evidence.
msg
RE_ Amended Draft Affidavit	Email	4/05/2018	Anthony Rains	Liana Cheshire	Email providing Anthony
- Westpac Bank	with the Amended Draft
_SEC_UNCLASSIFIED_	Affidavit for Westpac
_DLM_Sensitive_.msg	Bank.
RE_ Affidavit - Westpac Bank	Email	3/05/2018	Anthony Rains	Liana Cheshire	Update regarding Westpac
_SEC_UNCLASSIFIED_	Bank Affidavit.
(151).msg
RE_ Affidavit - Westpac Bank	Email	3/05/2018	Liana Cheshire	Anthony Rains	Email chain regarding
_SEC_UNCLASSIFIED_.msg	above email titled: RE_ Affidavit - Westpac Bank _SEC_UNCLASSIFIED_ (151).msg
RE_ ASIC documents lodged -	Email	19/12/2018	Demelza Grimes,	Maree Caulfield	Email chain update
Venika and associated	Anthony Rains	regarding ASIC Documents
companies _DLM_For-	which were lodged
Official-Use-Only_ (105).msg	showing a name change for Apagein Holdings (now Bionaturals Pty Ltd), Julie ceased to be a director, and Peter Clarke was appointed as a director.
RE_ Constructive Payments	Email	25/06/2018	Anthony Rains	Maree Caulfield	Email chain relating to
_SEC_UNCLASSIFIED_	Constructive Payments.
(138).msg
RE_ Constructive Payments	Email	25/06/2018	Maree Caulfield	Anthony Rains	Email chain relating to
_SEC_UNCLASSIFIED_	Constructive Payments.
(139).msg
RE_ Constructive Payments	Email	25/06/2018	Anthony Rains	Maree Caulfield	Email chain relating to
_SEC_UNCLASSIFIED_	Constructive Payments.
(140).msg
RE_ Constructive Payments	Email	25/06/2018	Maree Caulfield	Anthony Rains	Email chain relating to
_SEC_UNCLASSIFIED_.msg	Constructive Payments.
RE_ DBH query	Email	30/04/018	Anthony Rains	Demelza Grimes	Email chain regarding
_DLM_Sensitive_ (157).msg	documents obtained from AUSTRAC/DHL and Customs, and the status of the position paper.
RE_ DBH query	Email	30/04/2018	Demelza Grimes	Anthony Rains	Email chain regarding
_DLM_Sensitive_ (158).msg	documents obtained from AUSTRAC/DHL and Customs, and the status of the position paper.
RE_ DBH query	Email	30/04/2018	Anthony Rains	Demelza Grimes	Email chain regarding
_DLM_Sensitive_ (159).msg	(CC: Maree	documents obtained from
Caulfield)	AUSTRAC/DHL and Customs
RE_ DBH query	Email	1/05/2018	Anthony Rains	Maree Caulfield	Email chain regarding
_DLM_Sensitive_.msg	(CC: Demelza	documents obtained from
Grimes)	AUSTRAC/DHL and Customs, and the status of the position paper.
RE_ Document Request_	Email	25/07/2018	Maree Caulfield,	Demelza Grimes	Email chain outlining
9424282	Laura Bagnato	corporate restructuring
_SEC_UNCLASSIFIED_	(CC: Anthony	undertaken by JVE.
_DLM_Sensitive_.msg	Rains)
RE_ Melinda Trembath	Email	20/02/2018	Maree Caulfield	Anthony Rains	Email update on a phone
_DLM_Sensitive_.msg	call between Maree Caulfield and Melinda Trembath.
RE_ STATEMENT	Email	14/01/2019	Anthony Rains	Demelza Grimes	Email chain regarding
_SEC_UNCLASSIFIED_	Demelza's statement.
_DLM_Sensitive_.msg
RE_ Venika documents	Email	4/12/2020	Maree Caulfield	Anthony Rains	Discussion regarding
_SEC_OFFICIAL_Sensitive_	Venika documents, and
(1).msg	redacted Interview transcripts that were provided to AusIndustry R&D registrations.
RE_ Venika documents	Email	4/12/2020	Maree Caulfield	Anthony Rains	Discussion regarding
_SEC_OFFICIAL_Sensitive_	Venika documents, and
(2).msg	redacted Interview transcripts that were
provided to AusIndustry R&D registrations.
RE_ Venika documents	Email	4/12/2020	Anthony Rains	Maree Caulfield	Discussion regarding
_SEC_OFFICIAL_Sensitive_	Venika documents, and
(3).msg	redacted Interview transcripts that were provided to AusIndustry R&D registrations.
RE_ Venika documents	Email	4/12/2020	Maree Caulfield	Anthony Rains	Discussion regarding
_SEC_OFFICIAL_Sensitive_	Venika documents, and
(4).msg	redacted Interview transcripts that were provided to AusIndustry R&D registrations.
RE_ Venika documents	Email	4/12/2020	Anthony Rains	Maree Caulfield	Discussion regarding
_SEC_OFFICIAL_Sensitive_.	Venika documents, and
msg	redacted Interview transcripts that were provided to AusIndustry R&D registrations.
RE_ Venika Position Paper	Email	28/08/2018	Anthony Rains	Maree Caulfield	Email providing Anthony
_SEC_UNCLASSIFIED_	with a copy of the Venika
_DLM_Sensitive_ (121).msg	position paper.
RE_ Venika Position Paper	Email	28/08/2018	Demelza Grimes	Anthony Rains	Email providing Anthony
_SEC_UNCLASSIFIED_	with a copy of the Venika
_DLM_Sensitive_.msg	position paper.
Ross-Gowan phone call with	Email	12/07/2018	Maree Caulfield	Anthony Rains	Email to Maree, regarding
Scott Parkinson 14_2_2018	a phone conversation
_SEC_UNCLASSIFIED_.msg	between Ross-Gowan and Scott Parkinson.
Venika - Draft statement -	Email	8/01/2019	Anthony Rains	Demelza Grimes	Email regarding updates to
Demelza Grimes	Demelza's witness
_SEC_UNCLASSIFIED_	statement.
_DLM_Sensitive_.msg
Venika R&D Activities	Email	16/03/2018	Anthony Rains	Maree Caulfield	Email providing a word
_DLM_Sensitive_.msg	(CC: Demelza	document titled:
Grimes)	20180316_Venika Summary of Activities.docx.

ADMINISTRATION DOCUMENTS

20180130_Venika_Fraud	PDF Document	30/01/2018	N/A	N/A	Fraud referral fro Venika
Referral_.pdf	Biotech Pty Ltd
Complex investigation plan -	PDF Document	N/A	N/A	N/A	PGH Investigation plan for
Julie CLARKE.pdf	Julie CLARKE.
HV Findings report.pdf	PDF Document	N/A	N/A	N/A	PGH CI - Findings Report and Preliminary Investigation Plan for Clarke and Trembath

AFP EMAILS

Affidavit and warrant	Email	12/03/2018	SHERET	RAINS	Attaching affidavit and
_SEC_UNCLASSIFIED_ (56)	warrant for Welwyn Crescent
Affidavit and warrant	Email	19/06/2018	MICHELMORE	RAINS	Change to affidavit -
_SEC_UNCLASSIFIED_	attached.
RE_ Search Warrant	Email	15/06/2018	MICHELMORE	RAINS	Attached search warrant
_SEC_UNCLASSIFIED_	affidavit
RE_ Trembath Warrant	Email	20/08/2018	PUCHALA	RAINS	Contains reference to
_DLM_For-Official-Use-	information in Trembath
Only_	interview
_SEC_UNCLASSIFIED_
RE_ Trembath Warrant	Email	14/08/2018	PUCHALA	RAINS	Contains reference to
_DLM_For-Official-Use-	information in Trembath
Only_	interview
RE_ Update _DLM_For-	Email	6/09/2018	Anthony Rains	Tim Puchala	Email chain updates on
Official-Use-Only_.msg	(Tim.Puchala@af	Trembath and Clarke
p.gov.au)	matters
RE_ Warrant Activity	Email	31/05/2018	Adrian Smith	Anthony Rains	Email chain regarding the
_SEC_UNCLASSIFIED_	(Adrian.Smith@a	execution of search
(34).msg	fp.gov.au)	warrants.

AUSINDUSTRY

ATO Interview_R&D-	Email	21/01/2019	Anthony Rains	Patricia Ivar	Email providing Anthony
IRG_pdf	(Patricia.Ivar@in	with interview notes from
_DLM_Sensitive_.msg	dustry.gov.au)	the S 353 Interview with JVE on 23 & 25 Jan 2018 prepared by Ian Ross- Gowan.
FW_ Statement	Email	25/01/2019	Anthony Rains	Patricia Ivar	Email chain regarding
_DLM_Sensitive_.msg	(Patricia.Ivar@in	Patricia Ivar's witness
dustry.gov.au)	statement.
RE_ Query re (R)-3-	Email	8/03/2018	Anthony Rains	Patricia Ivar	Email chain discussing the
Hydroxybutyrate	(Patricia.Ivar@in	chemicla compound (R) - 3
_DLM_Sensitive_ (29).msg	dustry.gov.au)	- Hydroxybutyrate. Attachment: 20180214_Annexure B_Letter from Murray Shume.pdf
RE_ re jig _DLM_Sensitive_	Email	6/02/2019	Patricia Ivar	Anthony Rains	Email chain reagrding
_SEC_UNCLASSIFIED_.msg	(Patricia.Ivar@in	updates to Patricia's
dustry.gov.au)	statement.
RE_ Venika _DLM_Sensitive_	Email	21/01/2019	Anthony Rains	Patricia Ivar	Email chain regarding
(13).msg	(Patricia.Ivar@in	Patricia's statement -
dustry.gov.au)	Attached is the email correspondence with JVE and notes made during the phonecalls.
RE_ Venika _DLM_Sensitive_	Email	21/12/2018	Anthony Rains	Patricia Ivar	Email chain regarding
(16).msg	(Patricia.Ivar@in	Patricia's statement -
dustry.gov.au)	attached is Patricia's statement
Statement	Email	6/02/2019	Patricia Ivar	Anthony Rains	Attachment - Patricia's
_SEC_UNCLASSIFIED_.msg	(Patricia.Ivar@in	witness statement.
dustry.gov.au)
Venika Biotech Pty Ltd_	Email	15/03/2018	Julie Clarke	Patricia Ivar	Email to JVE, providing a
Statement of understanding	(Patricia.Ivar@in	Statement of
_DLM_Sensitive_.msg	dustry.gov.au)	Understanding, which is a document theat AusIndustry provide to companies to show their understanding of a project and then allow the company to correct any misunderstandings.

QPOL EMAILS

Clarke	Email	31/07/2018	PASKIN	RAINS	Attaching Venika position
_SEC_UNCLASSIFIED_ (53)	paper
Clarke	Email	31/07/2018	PASKIN	RAINS	Attaching Venika position
_SEC_UNCLASSIFIED_ (54)	paper

WARRANT AFFIDAVITS

Affidavit - Brisbane	PDF Document	N/A	N/A	N/A	Affidavit for warrant to
Angels.pdf	search premises and conveyances. - Level 9, ANL House 110 Eagle Street, Brisbane.
Affidavit - Cognitive Financial	PDF Document	N/A	N/A	N/A	Affidavit for warrant to
Planning.pdf	search premises. - Level 1/22 Baildon Street, Kangaroo Point, Brisbane.
Affidavit - Sean Hegarty.pdf	PDF Document	N/A	N/A	N/A	Affidavit for warrant to search premises. - MSI Taylor Business Services
Pty Ltd, Level 9, Toowong Tower, 9 Sherwood Road, Toowong.
Affidavit - Welwyn Crescent &	PDF Document	N/A	N/A	N/A	Affidavit for warrant to
MJA.pdf	search premises and conveyances. - First Premises: 4 Welwyn Crescent, Coorparoo, Queensland 4151. Second
Premises: Michael Johnson Associates, Suite 4, 332 Darling Street, Balmain NSW 2041.
Affidavit - Westpac Bank	PDF Document	N/A	N/A	N/A	Affidavit for warrant to
#2.pdf	search premises. - Westpac Bank - 260 Queen Street Brisbane, Queensland.
Copy signed Westpac	PDF Document	N/A	N/A	N/A	Signed copy of the
Warrant.pdf	Westpac Warrant to search 260 Queen Street Brisbane, Queensland.
MSI Taylor warrant endorsed	PDF Document	N/A	N/A	N/A	Endorsed search warrant
AFP.pdf	for MSI Taylor Business Services Pty Ltd, Level 9, Toowong Tower, 9 Sherwood Road, Toowong.
Ross-Gowan warrant _001.pdf	PDF Document	N/A	N/A	N/A	Signed search warrant for Michael Johnson Associates, Suite 4, 332 Darling Street, Balmain NSW 2041.
Search Warrant U1, 22 Baildon	PDF Document	N/A	N/A	N/A	Signed search warrant for
St, Kangaroo Point, QLD.pdf	Level 1/22 Baildon Street, Kangaroo Point, Brisbane.
Sword Affidavit - Ness	PDF Document	N/A	N/A	N/A	Affidavit for warrant to
Avenue.pdf	search premises and conveyances. - 167 Ness Road, Salisbury, Queensland 4107 and Ford Territory motor vehicle, Queensland registration number 000YAC.
Warrant - Ness Avenue.pdf	PDF Document	N/A	N/A	N/A	Search warrant for search of a premises and conveyance. - 167 Ness Road, Salisbury, QLD,
4107, and Ford Territory motor vehcile, Qld registration number 000YAC
Warrant endorsed - BA.pdf	PDF Document	N/A	N/A	N/A	Endorsed search warrant for Level 9 - ANL House 110 Eagle Street, Brisbane.
Westpac QPOL notice.pdf	PDF Document	N/A	N/A	N/A	QPOL located evidence list/property receipt.

[2018] HCA 53; (2018) 266 CLR 325.5 The defendant was charged with the State fraud on 22

August 2018 and the ATO fraud on 4 April 2019.

21 [2018] HCA 53; (2018) 266 CLR 325.29 Strickland [2018] HCA 53; (2018) 266 CLR 325at

[101].

1. Exhibit P2 (JV089).