Bathurst CJ and Payne JA at [1]; Bell P at [152]; Ward CJ in Eq at [153]; Bellew J at [154]
Decision:
(1) Appeal allowed;
(2) Set aside the answers given by Adamson J on 23 October 2020 to the separate questions for determination and substitute the following:
The Leach question
Question: Does the law as applied in R v Leach [2019] 1 Qd R 459, concerning the accusatorial principle, the companion rule and the application of those principles to answers compelled under taxation legislation, have the effect that investigative authorities and prosecuting authorities should not have disseminated and/or should not have had access to and/or should not have used the content of the accused’s compulsory examination under s 264 of the Income Tax Assessment Act 1936 (Cth), where the prosecution of the accused for offences contrary to s 135.1(7) of the Commonwealth Criminal Code may possibly occur or will occur and where the offences allegedly involve a course of conduct that included false or misleading statements made during the s 264 examination?
Answer: The accusatorial principle, the companion rule and the application of those principles to answers compelled under taxation legislation, do not have the effect that investigative authorities and prosecuting authorities should not have disseminated and/or should not have had access to and/or should not have used the content of the accused’s compulsory examination under s 264 of the Income Tax Assessment Act 1936 (Cth), where the prosecution of the accused for offences contrary to s 135.1(7) of the Commonwealth Criminal Code may possibly occur or will occur and where the offences allegedly involve a course of conduct that included false or misleading statements made during the s 264 examination.
The evidence questions
Question: In respect of use by the prosecutor, is the content of the s 264 examination admissible in the trial of the accused?
Answer: Yes.
Question: If so, what are the limits on its use?
Answer: To prove the fact that the representations particularised as made during the examination pursuant to s 264 of the Income Tax Assessment Act 1936 (Cth) were made by the accused (and the terms of those representations).
Catchwords:
CRIME – federal offences – dishonesty offences – where accused charged with two counts of dishonestly representing to a public official that he did not control certain companies – where particulars of the charges included that the accused made false representations during a compulsory examination about his involvement with the companies – Criminal Code (Cth), s 135.1(7)
STATUTORY INTERPRETATION – principle of legality – criminal proceedings – application of accusatorial principle and companion rule to answers compelled under taxation legislation – where accused compulsorily examined under s 264 of the Income Tax Assessment Act 1936 (Cth) 12 years prior to the laying of charges – whether dissemination and use of transcript…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
R v Kinghorn [2021] NSWCCA 313
Case
[2021] NSWCCA 313
Decision Date
CaseChat Overview and Summary
The case of R v Kinghorn involved the accused, who was charged with two counts of dishonestly representing to a public official that he did not control certain companies. The particulars of the charges included that the accused made false representations during a compulsory examination about his involvement with the companies. The accused challenged the admissibility of his answers given under compulsory examination as evidence in his criminal trial. The High Court of Australia was tasked with determining the admissibility of these answers in light of the statutory framework governing compulsory examinations and the principles of legality and fairness in criminal proceedings.
The central legal issues before the Court were whether the dissemination and use of the transcript of the accused's compulsory examination by investigative and prosecuting authorities was lawful both pre- and post-charge, and whether the principles of legality, particularly the accusatorial principle and the companion rule, required the exclusion of such evidence. The Court also had to consider whether these principles are constitutionally entrenched in such a way as to invalidate any legislative provision that might breach them.
The Court held that the dissemination and use of the transcript by authorities was lawful, as the legislative framework provided sufficient safeguards to ensure fairness. The Court emphasised that the accusatorial principle and the companion rule, while important, were not constitutionally entrenched in a manner that would invalidate legislation that might otherwise be in breach of these principles. The Court concluded that the statutory framework provided adequate protection against the unfair use of compelled testimony, and therefore, the evidence obtained from the compulsory examination could be used in the accused's criminal trial.
As a result of the Court's reasoning and determination, the charges against the accused were not dismissed on the grounds of the admissibility of the compelled testimony. The Court's decision upheld the legislative framework governing compulsory examinations and the use of compelled testimony in criminal proceedings. The accused's challenge to the admissibility of the compelled answers was therefore unsuccessful.