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R v Kinghorn (No 4)

R v Kinghorn (No 4)

Case [2019] NSWSC 1420 18 October 2019

Legal Professional Privilege

Unlawful Disclosure

Obligations of Disclosure

Criminal Law

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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

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 4)

Details

AGLC: R v Kinghorn (No 4) [2019] NSWSC 1420
Case: [2019] NSWSC 1420
Decision Date: 18 October 2019

CaseChat Overview and Summary

In the matter of R v Kinghorn (No 4), the court was presented with issues surrounding the application of legal professional privilege in the context of subpoenas issued by both prosecuting and investigative bodies. The case involved a dispute regarding the disclosure of certain documents, with the central question being whether the opposition by the Crown to the accused's application for a permanent stay of proceedings would affect the privilege of the investigative bodies. Additionally, the court examined whether the privilege was waived due to the unlawful disclosure of examinations conducted under the Income Tax Assessment Act 1936 (Cth).

The legal issues before the court encompassed whether the loss of privilege resulted from the unlawful disclosure of examinations conducted under section 264 of the Income Tax Assessment Act 1936 (Cth), and whether this fell within the exception for the performance of an officer's duties. Furthermore, the court needed to determine the proper construction of Uniform Civil Procedure Rules, rule 1.9(4A), specifically whether an objection taken by a third party to the production by the recipient of a subpoena is governed by the common law or the Evidence Act 1995 (NSW). The relationship between the Director of Public Prosecutions, the Crown, the Australian Federal Police, and the Australian Taxation Officer was also scrutinized, as was the independent role of the prosecutor and their obligations of disclosure.

The court ruled that the privilege of the investigative bodies was not affected by the Crown's opposition to the accused's application for a permanent stay of proceedings. It found that there was no imputation of waiver due to the unlawful disclosure of examinations conducted under the Income Tax Assessment Act 1936 (Cth), as this disclosure was within the exception for the performance of an officer's duties. In terms of the construction of Uniform Civil Procedure Rules, rule 1.9(4A), the court held that the objection taken by a third party to the production by the recipient of a subpoena is governed by the Evidence Act 1995 (NSW). The court also clarified the independent role of the prosecutor and their obligations of disclosure, finding that they were not compromised in this case.

The final orders of the court involved the denial of the accused's application for a permanent stay of proceedings, the upholding of the privilege of the investigative bodies, and the dismissal of the claim for unlawful disclosure of examinations conducted under the Income Tax Assessment Act 1936 (Cth). The court's decision clarified the interplay between the various parties involved in criminal proceedings, the proper application of legal professional privilege, and the construction of relevant rules and acts.

Orders