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R v Kinghorn (No 2)

R v Kinghorn (No 2)

Case [2019] NSWSC 989 1 August 2019

Adjournment

Admissibility of Evidence

Legality of Disclosure

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Kinghorn (No 2) [2019] NSWSC 989
Hearing dates: 1 August 2019
Date of orders: 01 August 2019
Decision date: 01 August 2019
Before: Adamson J
Decision:
(1) Adjourn the notice of motion filed by the Commissioner of Taxation on 16 July 2019, the notice of motion filed by the Commonwealth Director of Public Prosecutions on 22 July 2019 and the amended notice of motion filed by the Commissioner of the Australian Federal Police on 30 July 2019 to 6 September 2019.
(2) Reserve the costs of the adjournment.
Catchwords: CRIMINAL PROCEDURE – adjournment – legality of disclosures of compulsory examinations of accused a central issue – Crown conceded that it had identified incorrect sources of power in earlier correspondence – adjournment sought to permit Crown to adduce evidence of legality of disclosure – application granted – important that factual findings be soundly based
Legislation Cited: Criminal Procedure Act 1986 (NSW), s 29
Income Tax Assessment Act 1936 (Cth), s 264
Taxation Administration Act 1953 (Cth), ss 3E, 3G, 16, 355-70, 355-175
Cases Cited: Brown v West (1990) 169 CLR 195; [1990] HCA 7
Commissioner Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; [1997] HCA 3
Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20
Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
R v Bunting (2002) 84 SASR 378
R v Kinghorn [2019] NSWSC 553
R v Leach [2018] QCA 131; (2018) 334 FLR 224
R v Mosely (1992) 28 NSWLR 735
R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76
Strickland v Director of Public Prosecutions (Cth) [2018] HCA 53; (2018) 93 ALJR 1
Category: Procedural and other rulings
Parties: Regina
Commonwealth Director of Public Prosecutions (Applicant for adjournment, applicant on the motion filed 22 July 2019)
Commissioner of Taxation (Applicant on the motion filed 16 July 2019)
Commissioner of the Australian Federal Police (Applicant on the motion filed 30 July 2019)
John Alan Kinghorn (Accused)
Representation:
Counsel:
J Single/K Curry (Crown)
J Renwick SC/P Singleton/A Garsia (Commonwealth Director of Public Prosecutions)
R Bhalla (Commissioner of Taxation, Commissioner of the Australian Federal Police)
S Buchen SC/H Atkin (Accused)
Solicitors:
Office of the Commonwealth Director of Public Prosecutions (Crown, Commonwealth Director of Public Prosecutions)
Australian Government Solicitor (Commissioner of Taxation, Commissioner of the Australian Federal Police)
King & Wood Mallesons (Accused)

File Number(s): 2017/304079; 2017/304100

Judgment

Introduction

On 1 August 2019, the second day of the hearing of motions filed on behalf of the Commonwealth Director of Public Prosecutions (CDPP), the Commissioner of the Australian Federal Police (AFP) and the Commissioner of Taxation (the Commissioners) for adjudication of their claims for privilege (the Motions), the CDPP sought an adjournment. Mr Renwick SC appeared with Mr Singleton and Ms Garsia on behalf of the CDPP, but only for the purposes of the Motions. The basis of the CDPP’s application was that she…

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.

Continue reading R v Kinghorn (No 2)

Details

AGLC: R v Kinghorn (No 2) [2019] NSWSC 989
Case: [2019] NSWSC 989
Decision Date: 01 August 2019

CaseChat Overview and Summary

The case of R v Kinghorn (No 2) involved the Crown, acting as the prosecutor, and the respondent, Kinghorn, as the accused, in a matter before the Supreme Court of Victoria. The dispute centred on the admissibility of evidence obtained from compulsory examinations of the accused, with the Crown seeking an adjournment to permit the adduction of evidence regarding the legality of the disclosures. The Crown had previously identified incorrect sources of power in its correspondence, leading to the need for a reevaluation of the legal basis for the evidence. The central issue before the court was whether the adjournment was warranted to allow for the presentation of evidence to establish the legality of the disclosures, which were critical to the case against the accused.

The court was required to consider the legal principles governing adjournments in criminal proceedings, particularly those that pertain to the admissibility of evidence obtained through compulsory examinations. A key consideration was whether the Crown's concession of error in identifying the sources of power warranted an adjournment to rectify the situation and whether such an adjournment was necessary to ensure a fair trial. The court also had to balance the interests of the accused against the need for the Crown to present a legally sound case.

In granting the application for an adjournment, the court recognised that the factual findings underpinning the admissibility of the evidence were critical and needed to be soundly based. The court held that, given the Crown's concession and the importance of the legality of the disclosures, it was in the interests of justice to allow the Crown the opportunity to adduce evidence to establish the legality of the compulsory examinations. The court emphasised the importance of ensuring that the trial proceeded on a legally sound basis, particularly when it involved the admissibility of evidence obtained through compulsory examinations of the accused. The application for an adjournment was therefore granted to permit the Crown to address the identified issues.

Orders