R v Kinghorn (No 4)

[2019] NSWSC 1420

Supreme Court

New South Wales

Medium Neutral Citation:

R v Kinghorn (No 4) [2019] NSWSC 1420

Hearing dates:

31 July 2019, 1 August 2019, 8 – 10 October 2019

Decision date:

18 October 2019

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

Rulings on privilege made.

Catchwords:

PRACTICE – subpoenas – claims for legal professional privilege by prosecuting and investigative bodies – consideration of inconsistency – whether opposition by Crown to accused’s application for permanent stay affects privilege of investigative bodies – whether waiver imputed

 

LEGALITY – whether loss of privilege due to unlawful disclosure of examinations conducted under s 264 of Income Tax Assessment Act 1936 (Cth); whether within exception for performance of officer’s duties

 

PRACTICE AND PROCEDURE – construction of Uniform Civil Procedure Rules, r 1.9(4A) – whether objection taken by third party to production by recipient of subpoena governed by common law or Evidence Act 1995 (NSW)

  CRIMINAL LAW - parties – relationship between Director of Public Prosecutions, Crown, Australian Federal Police and Australian Taxation Officer – independent role of prosecutor – obligations of disclosure

Legislation Cited:

Acts Interpretation Act 1901 (Cth), s 15AB
Australian Crime Commission Act 2002 (Cth), s 30
Australian Federal Police Act 1979 (Cth) ss 6, 60A
Crimes Act 1914 (Cth), s 29D
Criminal Appeal Act 1912 (NSW), s 5F
Criminal Code Act 1995 (Cth), ss 134.2, 135.1, 137.1
Criminal Procedure Act 1986 (NSW), s 20
Director of Public Prosecutions Act 1983 (Cth), ss 6, 9
Director of Public Prosecutions Regulations 1984
Evidence Act 1995 (NSW), ss 117, 118, 119, 122, 125, 126, 131A, 133
Evidence Amendment Act 2007 (NSW)
Income Tax Assessment Act 1936 (Cth), ss 16, 264
Mutual Assistance in Criminal Matters Act 1987 (Cth)
Sales Tax Assessment Act (No. 1) 1930 (Cth), s 10
Taxation Administration Act 1953 (Cth), ss 3C, 3E, 3G, 4, 5, 8D, 8K, 8N, 8P, 8ZJ, 355-30, 355-50, 355-70, 355-75, 355-175
Taxation Laws Amendment Act (No 3) 1989 (Cth)
Uniform Civil Procedure Rules 2005 (NSW), r 1.9

Cases Cited:

Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9
Aouad v R; El-Zayet v R [2013] NSWSC 760
Armstrong Strategic Management & Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWCA 430; (2012) 295 ALR 348
Bailey v Director-General, Department of Land and Water Conservation (2009) 74 NSWLR 333; [2009] NSWCA 100
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9
Brown v West (1990) 169 CLR 195; [1990] HCA 7
Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1; [1952] HCA 32
Caratti v The Commissioner of Taxation [1999] FCA 1296; (1999) 42 ATR 714
Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151
Carter v The Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121; [1995] HCA 33
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; [1997] HCA 3
Commissioner of Taxation v De Vonk (1995) 61 FCR 564; [1995] FCA 994
Director of Public Prosecutions (NSW) v Stanizzo [2019] NSWCA 12
DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384
Esso Australia v The Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46
Filipowski v Nikolaos; Filipowski v Pontain Shipping Co Ltd [2004] NSWLEC 432; (2004) 136 LGERA 157
Glencore International AG v Commissioner of Taxation [2019] HCA 26; (2019) 93 ALJR 967
Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109; (2018) 333 FLR 352
Grant v Downs (1976) 135 CLR 674; [1976] HCA 63
Hamilton v State of New South Wales [2016] NSWSC 1213
Hammond v The Commonwealth (1982) 152 CLR 188; [1982] HCA 42
Hancock v Rinehart (Privilege) [2016] NSWSC 12
Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20
Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
New Cap Reinsurance Corp Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258
Propend Finance Pty Ltd v Commissioner, Australian Federal Police (No 2) (1994) 35 ALD 25
R v Bunting (2002) 84 SASR 378; [2002] SASC 412
R v Cox & Railton (1884) 14 QBD 153
R v Kinghorn [2019] NSWSC 553
R v Kinghorn (No 2) [2019] NSWSC 989
R v Leach [2019] 1 Qd R 459; [2018] QCA 131
R v Petroulias (No 22) (2007) 213 FLR 293; [2007] NSWSC 692
R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76
R v Yates (1991) 56 A Crim R 29
Saunders v Federal Commissioner of Taxation (1988) 19 ATR 1289; [1988] FCA 136
Singtel Optus Pty Ltd v Weston (2011) 81 NSWLR 526; [2011] NSWSC 1083
Strickland (A Pseudonym) v Director of Public Prosecutions (Cth) [2018] HCA 53; (2018) 93 ALJR 1
Waterford v Commonwealth (1987) 163 CLR 54; [1987] HCA 25
Watkins v State of Queensland [2008] 1 Qd R 564; [2007] QCA 430
X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29

Texts Cited:

Commonwealth Director of Public Prosecutions, Prosecution Policy of the Commonwealth
Commonwealth Director of Public Prosecutions, Statement on Disclosure, March 2017
Explanatory Memorandum, Taxation Laws Amendment Bill (No 3) 1989 (Cth)
Senate, Parliamentary Debates (Hansard), 25 May 1989

Category:

Procedural and other rulings

Parties:

Regina
Commonwealth Director of Public Prosecutions (Applicant on the privilege motion)
Commissioner of Taxation (Applicant on the privilege motion)
Commissioner of the Australian Federal Police (Applicant on the privilege motion)
John Alan Kinghorn (Accused)

Representation:

Counsel:
P Neil SC/K Ginges/K Curry (Crown)
J Renwick SC/A Garsia (Commonwealth Director of Public Prosecutions)
T Howe QC/P Melican (Commissioner of Taxation, Commissioner of the Australian Federal Police)
B Walker SC/S Buchen SC/G Huxley/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

1. John Kinghorn (the accused) was arraigned on 3 August 2018 on an indictment (the Original Indictment) which charged him with three counts: the first, that he defrauded the Commonwealth by representing to the Commissioner of Taxation that he did not control any unlisted company outside Australia contrary to s 29D of the Crimes Act 1914 (Cth) (the defrauding charge); and the second and third, that he dishonestly represented that he did not control two companies, Kalomo Corporation Limited (Kalomo) (count 2) or Kalomo Pacific Leasing Limited (Kalomo Pacific) (count 3) with the intention of dishonestly influencing a public official, the Commissioner of Taxation, contrary to s 135.1(7) of the Criminal Code Act 1995 (Cth) (the false representation charges). The conduct the subject of the first count is alleged to have occurred between about 29 June 1997 and 1 July 1997 and the conduct the subject of the second and third counts is alleged to have occurred between about 6 March 2004 and 10 March 2007.

2. The particulars of the second and third charges included answers given by the accused in the course of compulsory examinations conducted over the course of five days between 4 May 2005 and 14 June 2005 by the Australian Taxation Officer (ATO) pursuant to s 264 of the Income Tax Assessment Act 1936 (Cth) (ITAA) (the s 264 examinations). The accused had no privilege against self-incrimination in such examinations, the privilege having been found to have been abrogated by necessary implication: Commissioner of Taxation v De Vonk (1995) 61 FCR 564 (De Vonk) at 583.

3. The accused contended that the Crown was obliged, in performance of its prosecutorial duty of disclosure, to disclose documents which showed when, by whom, and how, the contents of his s 264 examinations were disclosed to the Australian Federal Police (the AFP) and the Commonwealth Director of Public Prosecutions (the DPP) and the use to which the information had been put in investigating him and formulating the charges, and assembling the Crown case, against him. Some disclosure was made by the Crown of the occasions on which the s 264 information was disclosed by the ATO to the AFP and by both instrumentalities to the DPP. The sources of power which were alleged to authorise such disclosure were also identified.

4. On 15 April 2019 the accused filed a notice of motion seeking a permanent, or in the alternative, a temporary, stay of the prosecution on the basis of an irremediable breach of two related common law principles: first, that the onus of proof rests on the prosecution (the accusatory principle); and, second, that the prosecution cannot compel an accused to assist it to discharge the burden of proof (the companion principle). In order to establish the alleged breach, the accused contended that it was necessary for him to prove the nature and extent of the dissemination of the s 264 material and the manner and extent of its use by Commonwealth authorities in charging and prosecuting him. The accused relied on what the plurality (Kiefel CJ, Bell and Nettle JJ) said in Strickland (A Pseudonym) v Director of Public Prosecutions (Cth) [2018] HCA 53; (2018) 93 ALJR 1 (Strickland) at [80], [84] and [85] in support of the submission that it is for an applicant for a permanent stay to establish, in so far as it is within his power to do so, the factual foundation for such an order.

5. The accused contended that the Crown had not complied with its duty to disclose such documents and sought to obtain them by subpoenas issued to the Commissioner of Taxation and the Commissioner of the AFP (collectively, the Commissioners) and the DPP. The DPP and the Commissioners filed notices of motion to set aside the subpoenas (the subpoena motions), which were dismissed: R v Kinghorn [2019] NSWSC 553.

6. Subsequently, each of the Commissioners and the DPP filed notices of motion seeking that their respective objections to production of listed documents on the grounds of privilege be upheld (the privilege motions). It became apparent from the oral submissions made on behalf of the accused on the subpoena motions and from his written submissions on the privilege motions that the accused contended that the disclosure of his s 264 material to the AFP and the DPP was unlawful and that therefore privilege did not attach to it, relying on R v Cox & Railton (1884) 14 QBD 153 and Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 514 (Brennan J), 522 (Dawson J) and 556 (McHugh J); [1997] HCA 3. The accused also contended that the Crown’s opposition to his application for a stay was inconsistent with the maintenance of the privilege and that the Court should find that there was imputed waiver of the privilege in accordance with Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 at [28]-[35]. In respect of other documents, the accused contended that there had been partial waiver which ought lead to a finding that the documents were no longer privileged.

7. The privilege motions were listed for hearing on 31 July 2019 and 1 August 2019. On the morning of 1 August 2019, Dr Renwick SC, who appeared with Ms Garsia, on behalf of the DPP, applied for an adjournment to adduce evidence as to the legality of disclosures made by the Commissioners of the s 264 material. I granted the adjournment: R v Kinghorn (No 2) [2019] NSWSC 989. The hearing of the motions resumed on 8 October 2019.

8. On 8 October 2019, the Crown sought leave to substitute two indictments (the New Indictments) for the Original Indictment, the first containing, as counts 1 and 2, the false representation charges which had formerly been counts 2 and 3; and the second containing what had formerly been count 1, the defrauding charge. The Crown confirmed that the basis of its application was that it accepted that information obtained as a result of the s 264 examinations (the s 264 information) would not be admissible on the defrauding charge and accepted, in oral submissions, that it “might cause irremediable prejudice” to the accused’s right to a fair trial were the defrauding charge to be tried together with the false representation charges, in respect of which the Crown contended the s 264 information would be admissible. The Crown accepted that if statements made in the s 264 examinations were not relied on as a particular of the false representation charges, it could not use the s 264 examinations at all in the prosecution of the accused for those charges. I granted leave to the Crown pursuant to s 20 of the Criminal Procedure Act 1986 (NSW) to substitute the New Indictments for the Original Indictment. I understood that the Crown proposed to proceed first on the New Indictment which contained the false representation charges. The accused was arraigned on the New Indictments. He pleaded not guilty to each charge.

9. At the end of the hearing of the privilege motions on 10 October 2019, I reserved my decision.

10. On 16 October 2019 the Crown notified the Court and the parties by email that it proposed to withdraw the New Indictment which contained the defrauding charge. The matter was listed for mention on 17 October 2019, at which time the Crown filed a notice of discontinuance of that indictment in court and, at the accused’s request, confirmed that it had no intention of prosecuting that charge against the accused in the future. At that mention, each of the parties confirmed that the discontinuance of the indictment which contained the defrauding charge did not affect the privilege motions. No party sought to make any further submissions on the privilege motions as a consequence of the Crown’s filing the notice of discontinuance. The New Indictment which contains the false representation charges remains extant.

11. The issues to be determined on the privilege motions are, in substance, whether those objecting to access have discharged the evidentiary onus of establishing a prima facie claim for privilege; and, if so, whether the accused has established either that privilege did not attach or that privilege has been lost by reason of s 125 of the Evidence Act 1995 (NSW); waiver by partial disclosure; or imputed waiver by reason of inconsistent conduct. Subsidiary issues also arise for determination, including when the proceedings were anticipated for the purposes of litigation privilege; whether the common law or the Evidence Act applies to claims made by the DPP over production by the AFP and the ATO; and whether the DPP herself can claim privilege as a “client” over internal DPP documents. There are also questions about the extent to which the Court’s powers of inspection under s 133 of the Evidence Act ought be exercised.

12. Mr Walker SC, who appeared with Mr Buchen SC, Ms Huxley and Mr Atkin on behalf of the accused, took exception to the suggestion, implied by the separate representation of the Crown and the DPP, that their concerns were distinct. He contended that the true position is that the DPP brings charges on behalf of the Crown, being, in effect, the polity. He drew the distinction between the barrister appearing on behalf of the Crown, who is, by convention referred to, as in this case, as Mr Crown and the Crown itself. He submitted that as Mr Crown was the only person who was entitled to put the Crown case, regard ought be confined, in determining the Crown case, to what Mr Crown said since the other Commonwealth authorities had no authority to put the Crown case. Nonetheless, Mr Walker did not contend that there was any objection to the separate representation of the Commissioners, since he accepted that their interests were potentially distinct from those of the DPP and the Crown.

13. In many cases, the Crown, the DPP and the Commissioners adopted each other’s submissions. Where there is no particular reason to distinguish between these parties, they will be referred to collectively as “the Commonwealth authorities”. Questions relating to the relationship between the Commonwealth authorities and its effect on privilege will be addressed later in these reasons.

Factual background

The period up until the delivery of the brief by the AFP to the DPP on 19 November 2015

The s 264 examinations of the accused

14. As referred to above, the s 264 examinations were conducted in May and June 2005. It was accepted that, at the commencement of the examination, the accused was sworn and informed that making a false or misleading statement was an offence under ss 8K or 8N of the Taxation Administration Act 1953 (Cth) (TAA) and that a refusal to answer a question was an offence under s 8D of the TAA. He was also informed that the privilege against self-incrimination would not excuse him for failing to answer a question.

15. The investigation of the accused’s taxation affairs, which continued for some years, took place as part of a project set up by the Commonwealth known as Project Wickenby. According to Berdj Tchakerian, a senior lawyer employed by the DPP, the project was “designed to enhance the strategies and capabilities of Australian and international agencies collectively to detect, deter, and deal with international tax avoidance and evasion”. The DPP, the ATO and the AFP participated in Project Wickenby.

The 2007 disclosure

16. Mr Walton was the officer at the ATO who, on 2 November 2006, received information related to the tax affairs of the accused. Mr Walton, who was a member of the ATO’s Serious Non-Compliance business line, became responsible for reviewing the available evidence and determining whether a criminal investigation of the accused ought be commenced. He decided that it would be prudent to seek the advice of the DPP. On 27 November 2006, officers of the ATO met with officers of the DPP. On 31 January 2007 Mr Walton asked the DPP to provide advice concerning the accused and, for that purpose, Mr Walton disclosed material, which included the s 264 information (the 2007 disclosure). This was the first occasion on which the s 264 information was disclosed to a party outside the ATO.

17. The Crown has provided the 2007 disclosure to the accused. The 2007 disclosure indicated that Mr Walton sought advice from the DPP “on potential cases for investigation”. The request also said:

“The purpose of this minute is to provide the CDPP with background information and material on a soon to be completed audit by the High Wealth Individuals Taskforce. SNC Investigations is seeking some preliminary advice from the CDPP as to whether an investigation into this matter is likely to be fruitful and worth attempting, based on the current evidence available and the likelihood of obtaining further admissible evidence.”

[Emphasis added.]

18. In the 2007 disclosure, Mr Walton set out the accused’s denials that he was the beneficial owner of Kalomo and Kalomo Pacific and the “substantial circumstantial evidence” to the contrary. Mr Walton identified the following potential offences which were under consideration: s 29D of the Crimes Act (defraud the Commonwealth); s 134.2 of the Criminal Code Act (obtain a benefit by deception); s 8P of the TAA (knowingly make a false or misleading statement); and s 137.1 of the Criminal Code Act (false or misleading information). When making the 2007 disclosure, Mr Walton turned his mind to s 16(2A) of the ITAA and concluded that the disclosure fell within the performance of his duties as an officer.

19. A further disclosure was made by Mr Walton in October 2007, this time to the AFP, under cover of a document entitled “Referral to the AFP”.

20. The request for advice was allocated to Ms Shouldice, a solicitor at the DPP, who, on 5 February 2008, provided the DPP’s advice to the ATO (the Shouldice advice). Privilege has been claimed by the ATO, who was accepted to be, relevantly, the client. Parts of the advice appear from the following documents which have either been disclosed or produced in answer to a subpoena. In one such document (AFP.001.001.0038) the following passage appears:

“The issues were referred to the Commonwealth Director of Public Prosecutions (‘CDPP’) who advised that an investigation will need to be undertaken before the CDPP would be in a position to confidently assert that there are reasonable prospects of conviction of … Kinghorn … for offences arising out of … alleged failures to disclose income and/or overseas assets in relevant tax returns.”

21. On 6 June 2008 Ms Shouldice sent an email to the ATO, copied to the AFP and DPP, which attached a document (AFP.001.001.0029) which said, in part:

“No charges laid to date. Investigations currently being undertaken by the [AFP]. The [DPP] has stated in a preliminary advice that if evidence becomes available that reveals that Kinghorn … held beneficial interests in the subject Jersey companies there is a prima facie case against either or both of them for defrauding the Commonwealth.”

22. An ATO report forwarded to the AFP in July 2010 (AFP.001.001.0098) said:

“On 5 February 2008 the [DPP] advised the ATO that a prima facie case existed against Kinghorn … although a criminal investigation would need to be undertaken to obtain further evidence.”

Section 3G of the TAA

23. On 26 February 2008, Mr Walton sought “Wickenby endorsement for s 3G TAA purposes” to the “Project Wickenby Call-Over Panel”. One of the purposes of the request was:

“To seek Wickenby endorsement for section 3G TAA purposes in regard to a referral from the ATO to the AFP concerning Mr John Kinghorn.”

24. I accept that the Commonwealth authorities have established that such endorsement was granted.

Further evidence gathering

25. In 2008 the ATO asked the DPP to advise in relation to a request under the Mutual Assistance in Criminal Matters Act 1987 (Cth). Such advice was provided and, on about 30 January 2009, the Mutual Assistance Request (MAR) was transmitted to the Bailiwick of Jersey. The DPP undertook further work on issues arising from the MAR.

26. On about 7 July 2011 the AFP sent to the DPP a statement of facts and brief of evidence in relation to possible offences committed by the accused and requested advice as to potential charges which could be laid against the accused. By that stage, the investigation in relation to the accused had come to be known as “Operation Avenger”.

27. Between 2011 and 2014 there were further discussions between the DPP, ATO and AFP concerning the accused, which also involved the MAR. On 31 July 2013 the DPP retained Peter Neil SC to advise regarding possible charges against the accused. On 29 August 2013 and 25 September 2013, Mr Neil provided such advice. On 21 May 2014, Mr Neil provided further advice regarding what charges might be appropriate in light of the evidence that was then available. On 5 September 2014, Mr Neil provided a revised version of the earlier advice given on 21 May 2014. On about 15 September 2014, the DPP provided advice to the AFP about the charges which it might be appropriate to lay against the accused. In about December 2014, the AFP continued to collate material for the preparation of the brief, including from the material provided pursuant to the MAR.

28. On 5 May 2015 Federal Agent Andrew Hiscoe sent an email to a solicitor at the DPP, Tom Muir, in which he said:

“As an update, ATO have advised they should have everything to me at the end of the week. Which probably means I’ll be able to pick it up next week, collate it and get it to you ideally Thursday.”

29. The brief was not delivered until 19 November 2015. I accept Mr Tchakerian’s evidence that he considered, having regard to Federal Agent Hiscoe’s email of 5 May 2015, that the AFP investigation was largely complete by that date and there were no substantial investigative steps outstanding, although there were administrative tasks to be completed before finalisation of the brief. According to Mr Tchakerian, it was inevitable that, “based on the overriding consideration of general deterrence”, a prosecution of the accused would be regarded by the DPP as being in the public interest. He said that because the offence would be one tried on indictment, the DPP (on behalf of the Crown) and not the ATO would be the moving party in those proceedings.

When proceedings were anticipated

30. The Commonwealth authorities contended, on the basis of Mr Tchakerian’s evidence, that proceedings were anticipated by the DPP at least by 5 May 2015. The accused accepted that, at the time the DPP reasonably anticipated committal proceedings, the criminal trial would also have been anticipated. The accused did not submit that anything turned on the DPP’s decision to prosecute in the name of the Queen, rather than in her official name, as she is entitled to do under s 9(1) of the Director of Public Prosecutions Act 1983 (Cth) (the DPP Act). The accused submitted that litigation was not contemplated until October 2017, being the commencement of the committal proceedings (see below). He submitted that the evidence adduced by the Commonwealth authorities was insufficient to establish an earlier date since, once the brief had been delivered, a reasonable time would have to be allowed for its review and assessment by the DPP before a decision was made to commence the committal proceedings.

31. Mr Tchakerian’s opinion as to the timing appears to have been based on Federal Agent Hiscoe’s expectation, expressed in his email to Mr Muir of the DPP extracted above, that the brief would be delivered to the DPP within a short time of 5 May 2015. Mr Tchakerian referred to the affidavit of Mr Murphy, Assistant Director of the DPP, sworn 24 May 2019. Mr Murphy currently supervises the legal team responsible for the conduct of the proceedings on behalf of the Crown. Mr Murphy deposed that litigation was anticipated by the DPP on 19 November 2015, being the date at which the brief was delivered. Mr Murphy said:

“Based [on] the established procedures of the Officer and my experience as a senior employee in the Officer, the receipt of the brief by the Office, on behalf of the Director gave rise to an anticipation of litigation, namely a prosecution of the Accused.”

32. Mr Tchakerian said, after referring to Mr Murphy’s opinion and the email from Federal Agent Hiscoe to Mr Muir on 5 May 2015:

“For the reasons set out above, I am of the view that from the Director’s perspective there was a real prospect of litigation before then [19 November 2015], and at least from the time when it became clear that the brief from the AFP was substantially prepared and intended to be delivered as soon as it was finalised.”

33. State agencies are expected to make “every” effort to adduce evidence in support of their claims for privilege that is both “adequate and compelling”: Bailey v Director-General, Department of Land and Water Conservation (2009) 74 NSWLR 333; [2009] NSWCA 100 at [45] (Tobias JA, Allsop P and Hodgson JA agreeing) (Bailey). There is a degree of speculation in Mr Tchakerian’s evidence, as is evident from his expression of an opinion said to be “from the Director’s perspective”. Further, Mr Tchakerian’s opinion, which is retrospective, is informed by Federal Agent Hiscoe’s expectation, which did not come to pass, based on what he had been told by an unidentified person at the ATO. The evidence does not exclude the inference that there was a material insufficiency in the evidence which had to be rectified before the brief was delivered to the DPP. This inference is consistent with the time taken from Federal Agent Hiscoe’s prediction and the date on which the brief was actually delivered.

34. The evidence of Mr Murphy is entitled to greater weight because it links the “established procedures of the Officer [of the DPP]” and the concrete act of “receipt of the brief by the Officer [of the DPP]”. The Commonwealth authorities bear the onus of establishing the date on which litigation was reasonably contemplated. In light of the difference between Mr Murphy and Mr Tchakerian, I am not satisfied that litigation was contemplated on a date earlier than the date on which the brief was delivered, namely 19 November 2015. On the basis of their evidence I am satisfied that it was contemplated by 19 November 2015. I reject the accused’s submission that the proceedings were not contemplated until the commencement of committal proceedings. I accept the Commonwealth authorities’ evidence and submissions that the DPP’s involvement in the matter in the period since 2007, which included the DPP’s briefing of senior counsel (Mr Neil), in 2014, to provide “pre-brief advice”, had the practical effect that litigation (in the form of a prosecution) was anticipated at the time of the delivery of the brief from the ATO through the AFP to the DPP on 19 November 2015.

The charging of the accused, the committal proceedings and the arraignment of the accused

35. On 6 October 2017 Federal Agent Hiscoe laid charges against the accused. The DPP acted for Federal Agent Hiscoe at the committal hearing. On 19 June 2018 the accused was committed for trial. As referred to above, on 3 August 2018 the accused was indicted on the Original Indictment.

36. By letter dated 30 January 2018, the accused sought particulars of the charges on the indictment. Of present relevance, the DPP informed the accused in a letter dated 19 March 2018 that the Crown would rely on the following representations (arranged in chronological order) in support of the false representation charge:

Date	Source of representation
9 June 2004	Letter sent to the ATO by Jack Thomas, a partner of Deloitte Touche Tohmatsu, alleged to be the accused’s tax adviser
28 October 2004	Notice of Objection signed by the accused
4 May 2005	Answers given by accused in s 264 examination
6 May 2005
18 May 2005
14 June 2005
21 December 2005	Letter sent to the ATO from Minter Ellison on behalf of the accused, responding to the ATO’s position paper
8 August 2006	Letter sent to the ATO from Minter Ellison (Mr Beath) on behalf of the accused
7 March 2007	Representations made in the Deed of Settlement entered into between the ATO and the accused

37. On 19 June 2018 the accused was committed to stand trial. From that time the prosecution was conducted by the DPP on behalf of the Crown. On 17 July 2018 the Original Indictment was filed in this Court.

38. On 2 August 2018 the DPP provided further particulars of the charges and identified references to the transcript pages of each of the five days the accused was examined pursuant to s 264 of the ITAA. On the same day, the Crown filed and served the outline of prosecution facts, which included the following:

“85. On 4, 6 and 18 May 2005 and 14 June 2005, Kinghorn attended interviews with the ATO pursuant to section 264 of the Income Tax Assessment Act 1936 (Cth) (the ITAA).

86.   In those interviews, Kinghorn denied that he had control over the affairs of [Kalomo] and [Kalomo Pacific].

87.   In his interview on 6 May 2005, Kinghorn gave the following responses:

[extracts from the s 264 examination were set out]

88.   Mr Walldov states:

a.   At no time did he have any control over [Kalomo] or any of its subsidiaries;

b.   that he had no communication with Mr Kinghorn in relation to Kalomo after 22 March 1994;

c.   that he never arranged for Ben Warner to conduct any kind of financial transaction.

89.   Mr Sundstrom states that he had not heard of [Kalomo] until 2005, nor had he heard of Walbrook [sic].

90.   The answers given by Kinghorn on 6 May 2005 were also inconsistent with an affidavit Kinghorn swore in the Redfern proceedings dated 15 July 1998. For instance at paragraphs 48, 82, 83 and 114 of the affidavit, he stated:

‘[48]    At the request of Mr Anders Waldorf [sic] (President of AMCO Finance AB) I agreed to act as non-executive Chairman of the RAMS Joint Venture …

[82]    Through July 1996 I held a number of telephone conversations with Anders Waldorf [sic] and Magnus Sundstrom of AMCO Finance AB in Sweden. I also held telephone conversations with Ben Warner and John Alcock of [Kalomo] …

[83]    While I cannot remember the exact words spoken, agreement was reached between myself, Anders Waldorf [sic], Magnus Sundstrom, John Alcock and Ben Warner during 1996 to the effect that:

…

[Kalomo] would entertain and give consideration to a "management buyout proposal" if I could generate one.

…

[114]    On 31 March 1997 Anders Waldorf [sic] of AMCO Finance AB told me that [Kalomo] would be prepared to consider an offer of $46,572,206 for the RAMS home loan business.’”

The accused’s reliance on R v Leach

39. By letters dated 17 and 21 December 2018, the accused’s solicitors wrote to the DPP and raised the effect of the decision of the Queensland Court of Appeal in R v Leach [2019] 1 Qd R 459; [2018] QCA 131 (Leach), which had been handed down on 22 June 2018. They asked the DPP to identify when the s 264 information had been disclosed to the AFP and the DPP and the authority for the disclosure. They also sought disclosure, in accordance with the prosecutor’s duty, of the nature and extent of any dissemination by the ATO of the s 264 information and what use had been made of any such disclosures.

40. In Leach, the appellant was compulsorily examined by the ATO pursuant to s 264. The appellant’s s 264 examination was included in the brief from the ATO to the DPP. The appellant was subsequently charged with various fraud offences. None of the charges was based on any alleged falsity of Leach’s answers in the s 264 examinations, although the Crown relied on those answers as amounting to a consciousness of guilt. The trial judge refused the appellant’s application for a permanent stay which had been made on the grounds that the release of his s 264 examination was unauthorised. The appellant was subsequently convicted of 19 counts of obtaining a financial advantage by deception, 3 counts of attempting to obtain such an advantage, 21 counts of knowingly using a false document with the intention of dishonestly obtaining a gain and one count of aggravated fraud.

41. The Court of Appeal quashed the convictions and ordered a re-trial. It held, on the basis of De Vonk;  X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 (X7); and Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 (Lee (No 2)), that the disclosure to the DPP of the compulsory examination, its use by the DPP to prepare for the appellant’s prosecution and its admission as evidence at the appellant’s trial conflicted with the accusatory and companion principles.

The DPP’s response to Leach

42. Before me, the Commonwealth authorities confirmed their acceptance of the correctness of Leach, in respect of which no application for special leave to appeal to the High Court was filed.

43. In a response dated 19 March 2019, the DPP said that the s 264 information had been “lawfully disclosed” to the AFP and DPP and was admissible on counts 2 and 3 (of the Original Indictment) and that “incidental disclosure” of the s 264 information in relation to count 1 was “permitted”. The DPP identified the first disclosure as having occurred in 2007 and alleged that it had been made for the purpose of enabling the DPP to consider and subsequently prosecute offences concerning the falsity of answers given by the accused in the s 264 examinations. The DPP sought to distinguish Leach (who was charged with fraud offences) on this basis. The DPP contended that the accusatory principle was abrogated by the offence to make a false or misleading statement to a taxation officer (s 8K of the TAA) and that such abrogation extended to any offence based on the falsity of representations or statements made in a s 264 examination.

44. The DPP also contended, in the letter of 19 March 2019, that the 2007 disclosure was “permitted” by s 3E of the TAA; and that the disclosure in 2015 to the AFP was “permitted” under s 3G(1) and the on-disclosure to the DPP was “permitted” under s 3G(7). The DPP resisted the proposition that it had any duty to disclose more than already had been disclosed to the accused.

45. On 25 March 2019 the accused’s solicitors wrote to the DPP, requesting evidence to support the assertion that the 2007 disclosure was permitted by s 3E and other material relating to subsequent disclosures as part of the Crown’s duty of disclosure.

46. On 26 March 2019 the DPP responded that she did not consider that the requests fell within the Crown’s duty of disclosure. The DPP said, in addition:

“11. Paragraph 4 of your letter also seems to suggest that we contended that both the 2007 and 2015 disclosures were authorised, under section 3E of the Taxation Administration Act 1953 (Cth) (TAA). For the avoidance of doubt, we note that paragraph 6 of our letter only stated that the 2007 disclosure was permitted under this provision. The 2015 disclosure from the AFP to the CDPP was permitted under section 3G(7) of the TAA.”

The accused’s motion for a stay and the subpoena motions

47. On 15 April 2019, the accused filed a notice of motion seeking orders which included a temporary stay of proceedings pending provision of material set out in the schedule to the motion. The documents described in the schedule repeated the requests which the accused had earlier made in correspondence.

48. On 18 April 2019 the accused requested that subpoenas be issued to the ATO, the AFP and the DPP. By subpoena issued to the ATO, the accused sought production of documents which constituted, recorded, referred to or purported to authorise the disclosures in 2007 or 2015 or which referred to the purpose of such disclosures. By subpoenas issued to the AFP and the DPP, also on 18 April 2019, the accused sought production of documents in similar terms, as well as documents referring to requests for such disclosures.

49. In its submissions dated 29 April 2019, the Crown attached certain disclosures of the s 264 material, including the 2007 disclosure, and submitted as follows:

“11.   The Director maintains that she has complied with her disclosure obligations, according to the circumstances as she perceives them to be. However, in order to assist the Court in determining the matters identified in the accused's Notice of Motion and Kinghorn's submissions, but not so as to concede that they are otherwise disclosable, the following documents are attached to these submissions:

a.    unredacted 2007 referral from the ATO, dated 29 November 2006 but received by the CDPP on 31 January 2007;

b.    partially redacted 2015 referral from the AFP, dated 19 November 2015;

c.    unredacted record of receipt in relation to the 2015 service of the brief of evidence on the CDPP by the AFP, dated 19 November 2015;

d.    unredacted record of receipt in relation to the 2016 service of the brief of evidence on the CDPP by the AFP, dated 17 March 2016; and

e.    partially redacted email dated 21 August 2018 from Tania Griffin of the ATO to Kiri Purchase of the CDPP.

…

15. The documents attached show that, as Mr Kinghorn's lawyers have been advised by the Director in her correspondence to them, the 2007 referral from the ATO and 2015 referral from the AFP included seeking advice as to offences concerning the falsity of Mr Kinghorn's evidence in the s 264 examinations, including potential offences of giving false information in course of his s 264 examinations.

…

34.   The reliance by Mr Kinghorn on the High Court's decision in Lee v The Queen is, respectfully, misplaced. The criticism of the prosecution referred to in the extract at [26] of Kinghorn's submissions was its failure to inquire as to the circumstances in which those transcripts came to be provided to the prosecution and then to take necessary steps to ensure it did not affect the trial. That situation is entirely distinguishable from the present, where the prosecution has inquired as to the circumstances in which the transcripts were provided to it, has assessed whether they were lawfully received, and has concluded (and communicated to Mr Kinghorn's lawyers) the opinion that they were.

…

38. Despite there being no obligation to disclose it, and there being in existence layers of advice privilege and litigation privilege, the CDPP has attached (with the consent of the AFP and ATO) copies of redacted correspondence and records received from the ATO and AFP at or around the time the s 264 examination transcripts were provided to the CDPP. These documents should put beyond doubt any concern Mr Kinghorn or his lawyers have about the circumstances in which they were disseminated.”

50. The Crown maintained its claims for privilege over the advice provided in answer to the disclosures to the DPP and the AFP.

51. By further subpoena issued to the DPP on 2 May 2019, the accused sought production of documents which:

“(a)   Constitute, record, or refer to the correspondence from the Commonwealth Director of Public Prosecutions referred to in the letter sent by Federal Agent Andrew Hiscoe to the Commonwealth Director of Public Prosecutions dated 19 November 2015 to the attention of Thomas Muir titled ‘Prosecution of John Alan Kinghorn’ in the following passage on page 2 of the document:

Transcripts of interview (TABS 716 to 720) between ATO officers and John KINGHORN were undertaken in 2005 using coercive powers. These transcripts have been included in the Har[d] copy and electronic brief as a result of correspondence from CDPP confirming inclusion of this material was not an issue.

(b)   Constitute, record, or refer to any request by the Australian Federal Police that the Commonwealth Director of Public Prosecutions advise or confirm whether inclusion of the transcripts of the Kinghorn 264 Examinations could or should be included in a brief in connection with the correspondence in (a) above.”

52. As referred to above, on 10 May 2019 I heard and dismissed the subpoena motions.

Identification of the legislative authority for the disclosure of the s 264 examinations

53. On 25 July 2019 the DPP wrote to the accused’s solicitors and pointed out that she had confirmed that the 2007 disclosure was “permitted” rather than “authorised” under s 3E. The DPP continued:

“The Australian Taxation Office (ATO) advises that the 2007 Disclosure was made pursuant to s 16(2A) of the [ITAA].”

54. This was the first occasion on which s 16(2A) had been identified as the source of the power for the disclosures in 2007.

55. On 31 July 2019, the first day of the hearing of the privilege motions, the DPP wrote to the accused’s solicitors referring to previous correspondence and to the accused’s submissions, before continuing:

“2.   By way of correspondence dated 19 March 2019, the Crown stated erroneously at [6] that:

...the 2015 Disclosure to the AFP was permitted under sub-section 3G(1), and the on-disclosure by the AFP to the CDPP was permitted under sub-section 3G(7).

3.   The 2015 disclosure to the AFP and the 2015 on-disclosure to the CDPP were authorised as follows:

a. the s264 Examinations were disclosed by the ATO to the AFP under subsection 355-70(1), for the purpose of a Project Wickenby taskforce (item 3 of table in the subsection); and

b. the AFP on-disclosed the 264 Examinations to the CDPP pursuant to sub-section 355-175(2).”

56. It was common ground that s 3G was not in force at the time of the 2015 disclosures and, accordingly, could not have authorised them.

57. As referred to above, on 1 August 2019, the DPP sought an adjournment to adduce evidence as to the legality of disclosures made by the Commissioners of the s 264 material in accordance with the statements made in the DPP’s letter of 31 July 2019. Dr Renwick tendered a further letter, dated 1 August 2019, in which the DPP confirmed her new position regarding the authorisation for the disclosures:

“2007 Disclosure

2. In correspondence dated 19 March 2019 and 26 March 2019, we advised that it was the position of the Crown that the 2007 Disclosure was permitted as a matter of law by s 3E of the Taxation Administration Act 1953 (Cth) (TAA), but not authorised in fact under that provision.

3. As noted in correspondence on 25 and 26 July, on 22 May 2019 the Australian Taxation Office (ATO) confirmed to this Office that the 2007 disclosure was authorised under s 16(2A) of the income Tax Assessment Act 1936 (Cth).

4.   The Crown apologises for not correcting the position between 22 May and 25 July 2019.

2015 Disclosure

5. In correspondence dated 19 March 2019, this Office, on behalf of the Crown, incorrectly stated that the disclosure by the ATO to the AFP, and the on-disclosure to the CDPP, in 2015 were permitted under subss 3G(1) and 3G(7) of the TAA, respectively.

6. As noted in our correspondence of 31 July, these disclosures were in fact authorised under subss 355-70(1) and 355-175(2) of the TAA, respectively. This Office was advised of the finding of the authorising documentation on 31 July 2019.

7.   The error in the 19 March 2019 correspondence regarding the 2015 Disclosure was inadvertent. The Crown apologises for this error and that it was not corrected earlier.”

58. Dr Renwick submitted that this evidence was required to answer the accused’s submission that there had been unlawful disclosure of the accused’s s 264 information such as would cause privilege either not to attach or to be lost under s 125 of the Evidence Act. As referred to above, the motions were adjourned and were resumed on 8 October 2019.

59. The DPP has identified 14 disclosures of the s 264 information. These are set out below in a table which indicates by whom and to whom each disclosure was made and the power relied on by the DPP to authorise the disclosure.

No	Date	Person	What disclosed	To whom	Evidence	Power relied on
1	31.1.07	James Walton (ATO)	Documents including transcript of s 264 examination	DPP (for advice)	James Walton 16.8.19	S 16(2A) of ITAA. Earlier reliance on s 3E of TAA was withdrawn.
2	10/ 15.10.07	James Walton (ATO)	Formal referral for joint investigation of Kinghorn matter to AFP; included documents which referred to Kinghorn’s answers in s 264 examinations	AFP	James Walton 16.8.19	S 16(2A) of ITAA. Earlier reliance on s 3E of TAA was withdrawn.
3	19.2.10/ 24.2.10	Mark Gosling (ATO)	Documents including transcript of s 264 examination	AFP (Wills-Johnson)	Mark Gosling 16.8.19	S 3G(2) of TAA (Project Wickenby)
4	21.7.10	Michael O’Neill (ATO)	John Clingan disclosed information (background and summary)	AFP	Michael O’Neill 16.8.19	S 3G of TAA (Project Wickenby)
5	27.5.15	Joanne Elias, authorised by Phillip Jones (ATO)	Complete copy including ATO’s examinations of Kinghorn	AFP (Hiscoe)	Phillip Jones 15.8.19	Item 3 of Table in s 355-70 of TAA; s 355-50(1)
6	3.6.15	Tania Griffin (ATO)	Documents including transcript of s 264 examination	AFP	Andrew Hiscoe, 16.8.19	S 355-175 TAA
7	19.11.15	Andrew Hiscoe (AFP)	Documents including transcript of s 264 examination as brief of evidence	DPP	Andrew Hiscoe, 16.8.19	S 355-175 TAA
8	17.3.16	Andrew Hiscoe (AFP)	Ditto and further documents	DPP	Andrew Hiscoe, 16.8.19	S 355-175 TAA
9	13.12.16	Andrew Hiscoe (AFP)	Ditto and further documents (full brief)	DPP	Andrew Hiscoe, 16.8.19	S 355-175 TAA
10	9.10.17	Andrew Hiscoe (AFP)	Full copy of brief	DPP	Andrew Hiscoe, 16.8.19	S 355-175 TAA
11	6.11.17	Tania Griffin (ATO)	Complete copy of ATO’s examinations of Kinghorn and report from McGovern and Sheller (external counsel) regarding examinations (Hard copy and compact disc)	AFP (Hiscoe)	Tania Griffin, 16.8.19	Item 3 of Table in s 355-70 of TAA; s 355-50(1)
12	9.8.18	Andrew Hiscoe (AFP)	Further copy of brief of evidence	DPP	Andrew Hiscoe, 16.8.19	S 355-175 TAA
13	21.8.18	Tania Griffin (ATO)	Complete copy of ATO’s examinations of Kinghorn	DPP	Tania Griffin, 16.8.19	Item 3 of Table in s 355-70 of TAA; s 355-50(1)
14	6.8.19	Andrew Hiscoe (AFP)	Examinations	DPP	Andrew Hiscoe, 16.8.19	S 355-175 TAA + s 60A AFP Act 1979 (Cth)

Consideration

The relationship between the Commonwealth authorities

60. Before turning to the substantive issues of privilege it is necessary to address the relationship between the Commonwealth authorities. As is apparent from the appearances, the Crown, the DPP and the Commissioners were separately represented for the purposes of the privilege motions, as they were for the motions to set aside the subpoenas. It is common ground that the only parties to the accused’s motion for a stay are the accused and the Crown. Various questions have arisen about the status of the DPP vis-à-vis the Commissioners and the Crown which makes it necessary to address the relationship between the Commonwealth authorities.

61. Dr Renwick submitted that the DPP was, when she was seeking advice from her own officers, the client and, when acting on the instructions of the Commissioners, the lawyer. Dr Renwick contended that, in both cases, legal professional privilege attached to the communications.

62. Mr Walker submitted that it would be as inappropriate to regard the DPP as the “client” and her employed solicitors as her “lawyers”, as it would be to regard the partner of a firm as being the “client” and the employed solicitors as the partner’s lawyers. He contended that when the DPP is providing advice to instrumentalities such as the ATO and the AFP, the DPP is the lawyer and they are the clients. Thus the dominant purpose test would apply to confer privilege on communications for the dominant purpose of providing advice to the clients.

63. The relationship between the DPP and employed officers within the office of the DPP has been considered by this Court in a number of decisions which have held that the DPP is regarded as being the client for the purposes of legal advice provided by her staff or by a Crown Prosecutor. In Director of Public Prosecutions (NSW) v Stanizzo [2019] NSWCA 12, the Court (Basten and Payne JJA and Sackville AJA), citing R vPetroulias (No 22) (2007) 213 FLR 293; [2007] NSWSC 692 (Petroulias), Aouad v R; El-Zayet v R [2013] NSWSC 760 at [31] (Price J) and Hamilton v State of New South Wales [2016] NSWSC 1213 at [38]-[40] (Beech-Jones J), held:

“[25] In this case, the Director was the “client” as defined in s 117 of the Evidence Act under subss (a) and (c) of that definition. The Director is “a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service)”: subs (a). The Director is also “an employer of a lawyer if the employer is … a body established by a law of the …. State”: subs (c). Ms Rallis was employed in the public service to enable the Director and Solicitor for Public Prosecutions to exercise his or her functions. Mr Barr was appointed as a Crown Prosecutor performing the functions in s 5 of the Crown Prosecutors Act.In conducting the conferences with witnesses and preparing notes of the conferences, both were persons providing legal services to the Director as the client.

[26] Accordingly, pursuant to ss 117 and 119 of the Evidence Act, the Director, as the client, was entitled to object to the production of the conference notes prepared by a lawyer, Ms Rallis, on the ground of client legal privilege…”

64. The ATO and the AFP may also, relevantly, be “clients” within s 117(1)(c) of the Evidence Act since they are employers of lawyers and are bodies “established by the law of the Commonwealth”: s 6 of the Australian Federal Police Act 1979 (Cth) and ss 4 and 5 of the TAA. The Commissioners may also be “clients” because each is a “person … who engages a lawyer to provide legal services or who employs a lawyer”: s 117(1)(a) of the Evidence Act. In cases where the ATO or the AFP seeks advice from the DPP, they are the clients and the DPP is the lawyer. Paragraph 3(1)(e) of the Director of Public Prosecutions Regulations 1984 expressly conferred on the DPP the function of providing advice as follows: “giv[ing], to an authority of the Commonwealth, legal advice on law enforcement or a matter relating to law enforcement, whether or not the advice is for the purposes of a particular investigation”.

65. It will be a matter of judgment in any particular case whether the DPP is, relevantly, the lawyer, as in Bailey, at [52], where the legal officers within the DPP were providing legal advice as agents of the DPP and not as lawyers to the DPP as their client, or whether the DPP is the client and the legal officers advising the DPP are the lawyers. However, as the authorities referred to above establish, there is no reason in principle why the DPP ought not, in some cases, be regarded as a client for the purposes of legal professional privilege and ss 117 and 119 of the Evidence Act.

66. The question whether alleged inconsistent conduct such as would give rise to imputed waiver must be that of the privilege holder or can be, as is alleged in the present case, that of the DPP, as agent for the Crown is addressed below.

The applicable law: whether the Evidence Act or the common law applies to third party objections

67. The parties raised an antecedent question about which law applies to questions of privilege. The issue was whether the Evidence Act or the common law applied where the producing party was not the party objecting to access (third party objection).

68. The Crown authorities submitted that the Evidence Act applied to all situations, including third party objections. They submitted, accordingly, that ss 122 (loss of privilege by consent), 125 (loss of privilege by misconduct) and 126 (loss of client privilege: related communications and documents) governed the question whether privilege had been lost or would be found to have been waived in all cases for determination in these proceedings. The accused submitted that the common law applied to third party objections (being, relevantly, the objections by the DPP to production by the Commissioners).

69. It was common ground that the relevant law that governed a party’s objections to production of a subpoena issued to that party was the Evidence Act 1995 (NSW) by reason of s 131A of the Evidence Act (which was enacted to overcome the effect of Esso Australia v The Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67).

70. The resolution of this issue turns on the wording of Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 1.9. It was accepted that, before the addition of UCPR, r 1.9(4A)-(4C), s 131A of the Evidence Act had the effect that, where the person required to produce a document on subpoena objected to production, the Evidence Act applied: SingtelOptus Pty Ltd v Weston (2011) 81 NSWLR 526; [2011] NSWSC 1083 at [27] (White J). White J said, at [28], that s 131A did not apply where a claim for privilege was made by someone other than the producing party and that, in those circumstances, the common law applied.

71. It was common ground that the relevant sub-rule is UCPR, r 1.9(4A). However, it is convenient to set out the surrounding sub-rules to provide the necessary context:

“1.9   Objections to production of documents and answering of questions founded on privilege

(cf SCR Part 36, rule 13; DCR Part 28, rule 16)

(1)  This rule applies in the following circumstances:

(a)  if the court orders a person, by subpoena or otherwise, to produce a document to the court or to an authorised officer,

…

…

(3)  A person may object to producing a document on the ground that the document is a privileged document or to answering a question on the ground that the answer would disclose privileged information.

(4)  A person objecting under subrule (3) may not be compelled to produce the document, or to answer the question, unless and until the objection is overruled.

(4A)  If a document is produced, and a person objects to the production of the document on the ground that the document is a privileged document, access to the document must not be granted unless and until the objection is overruled.

(4B)  The production of a document to the court under a claim for privilege does not constitute a waiver of privilege.

(4C)  Subrules (4A) and (4B) extend to documents produced before the commencement of those subrules.”

72. As the Explanatory Note recorded, UCPR, r 1.9(4A), (4B) and (4C) were introduced to ensure that a party which produced documents to the Court under cover of a claim for privilege, would not thereby be taken to have waived privilege. Such production, prior to the amendment, had been held by Brereton J in Hancock v Rinehart [2016] NSWSC 12 to constitute waiver.

73. The Commonwealth authorities argued that it was plain from the use of the indefinite article before “person” in UCPR, r 1.9(4A), that the rule was apt to cover production, not only by the objector, but also by a person other than the person objecting. They contended that, if the provision intended to distinguish between the producing party and the objecting party, the draftsperson would have said “if a document is produced by a person, and that person objects to production”. They also submitted that such a construction of UCPR, r 1.9 tended to promote the purpose of s 131A of the Evidence Act, which was to bring pre-trial procedures regarding privilege into line with the rules of evidence at a trial.

74. The accused submitted that the wording of UCPR, r 1.9(4A) did not apply to a situation where Party A (such as the DPP) objected to access being given to Party B (the accused) on the grounds that documents produced by Party C (the Commissioners) were “privileged documents”. He submitted that, although the indefinite article in UCPR, r 1.9(4A) tended to support such a construction (for the reasons advanced by the Commonwealth authorities), UCPR, r 1.9(3) is addressed only to the person required to produce (in the example, the Commissioners) and not to a third party objector (such as the DPP in respect of documents produced by the Commissioners), as is plain from the heading of the rule and UCPR, r 1.9(1)(a) which sets out when the rule applies. The construction for which the accused contended is consistent with Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151 at [8]-[11] (Brereton J).

75. There is much to be said for the purposive construction for which the Commonwealth authorities contended. There would appear to be no conceivable reason why a distinction ought be drawn between the law applicable to documents produced by Party C and documents produced by Party A in the example given above. However, I regard the law as having been settled by Carbotech Australia Pty Ltd v Yates, which I consider accords with the plain meaning of the words, although it does not necessarily advance their purpose. It follows that the common law governs the law relating to privilege claims made by the DPP in respect of documents produced by the Commissioners in answer to subpoenas issued to them and the Evidence Act applies to privilege claims by the DPP in respect of documents subpoenaed from the DPP. I am not, however, persuaded that there is necessarily any difference in the result in so far as ss 122, 125 and 126 are concerned. I note that s 122 was amended by the Evidence Amendment Act 2007 (NSW) to include a reference to inconsistent conduct. The Explanatory Note to the Amending Bill recorded that the new s 122 was to be “aligned more closely with the common law test for loss of privilege set out in Mann v Carnell (1999) 201 CLR 1” and to provide that “evidence may be adduced if the client or party concerned has acted in a way that is inconsistent with the maintenance of the privilege”.

76. I am, however, persuaded that there is a potentially significant difference between the ambit of the privilege at common law and that under s 119 of the Evidence Act. Section 119(b) of the Evidence Act extended litigation privilege beyond the limits of the privilege under the common law since the common law is concerned with communications, whereas s 119(b) extends to documents “whether delivered or not”: New Cap Reinsurance Corp Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258 at [18]-[20] (White J). It follows from my construction of UCPR, r 1.9(4A) above that s 119 applies to documents where the producing party is the objecting party and the common law applies where the objecting party is not the producing party.

77. In case I am wrong about the applicable law and the Evidence Act applies in both cases, I propose to address, where necessary, both sources of law. For this reason I will refer to legal professional privilege (the language of the common law), or simply privilege, rather than advice privilege (s 118) and litigation privilege (s 119).

(b) an individual appointed or engaged under the Public Service Act 1999 and performing duties in the Australian Taxation Office.”

233. I accept the evidence of Mr Todd that part of document ATO.001.001.0015 contains protected information since it identifies an entity and relates to the affairs of an entity. Mr Todd also deposed that the entity is unrelated to these proceedings. In these circumstances, the effect of the provisions extracted above is that the ATO is entitled to redact document ATO.001.001.0015 so that it does not reveal the protected information.

Proposed orders

234. The Commonwealth authorities have asked me to refrain from making orders for access to allow time for the consideration of these reasons and, if necessary, an appeal under s 5F of the Criminal Appeal Act 1912 (NSW). The only order which I would propose to make in any event is that the Commonwealth authorities provide access to the accused over documents in accordance with these reasons. However, the matter can be relisted for consideration of the form of the appropriate orders and for further directions.

**********

Decision last updated: 21 October 2019