R v Kinghorn (No 6) - [2020] NSWSC 1028

Supreme Court

New South Wales

Medium Neutral Citation: R v Kinghorn (No 6) [2020] NSWSC 1028
Hearing dates: 5 August 2020
Decision date: 05 August 2020
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1)   On or before 4.30pm on Wednesday, 23 September 2020, the accused is to file and serve written submissions on the Leach separate question, written submissions on the substratum of facts, and a copy of the accused’s tender bundle.
(2)   On or before 4.30pm on Wednesday, 7 October 2020, the Crown is to file and serve written submissions in answer.
(3)   On or before 4.30pm on Wednesday, 14 October 2020, the accused is to file and serve reply submissions.
(4)   Liberty to apply on 3 days’ notice to the Associate to Adamson J.
(5)   Note that the form of the separate question is determined in accordance with the accused’s draft (marked MFI 1), but reserve the question as to whether the order should be made pending determination of the accused’s special leave application which is listed for hearing on 11 September 2020.

Catchwords:
CRIMINAL PROCEDURE — separate question to be determined before trial — effect of R v Leach [2019] 1 Qd R 459 — determination of form of question

Legislation Cited:
Income Tax Assessment Act 1936 (Cth), s 264

Cases Cited:
Director of Public Prosecutions (Cth) v Kinghorn; Kinghorn v Director of Public Prosecutions (Cth) [2020] NSWCCA 48
R v Leach [2019] 1 Qd R 459; [2018] QCA 131

Category: Procedural and other rulings
Parties: Regina
John Alan Kinghorn (Accused)
Representation:
Counsel:
D Staehli SC / K Curry (Crown)
B Walker SC / S Buchen SC / G Huxley / H Atkin (Accused)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
King & Wood Mallesons (Accused)

File Number(s): 2017/304100

Judgment

Introduction

On 25 March 2020 the Court of Criminal Appeal (Bathurst CJ, Fullerton and Beech-Jones JJ) delivered judgment in this matter: Director of Public Prosecutions (Cth) v Kinghorn; Kinghorn v Director of Public Prosecutions (Cth) [2020] NSWCCA 48. Of present relevance, the Court said:

“[182] First, as noted, Mr Giles conceded that, if the Leach point was decided adversely to the CDPP, then relief in the form of prayer 3 of the stay motion would follow; ie, a temporary stay would be granted pending the appointment of a new prosecution “team” (see [22] and [31]). If an order in the form of prayer 3 was made and if the prosecution was to continue, then the CDPP would have to move the Court to set the stay aside. As Mr Giles also conceded, as the moving party on such an application it may be necessary for the CDPP to make positive assertions about the exposure of the new prosecution team to the s 264 information and, in doing so, issues “might” then arise as to whether there is a relevant inconsistency between any such assertion and the maintenance of privilege over the material the subject of this appeal.
[183] Second, to date the CDPP has resolutely resisted…

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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Details

Case: [2020] NSWSC 1028
Decision Date: 05 August 2020

CaseChat Overview and Summary

In the case of R v Kinghorn (No 6), the defendant faced charges in the Supreme Court of Queensland. The nature of the dispute centred around the formulation of a separate question to be determined prior to the commencement of the defendant's trial. This question related to the admissibility of certain evidence, and the court was tasked with determining the appropriate form of the question in light of the precedent set by R v Leach [2019] 1 Qd R 459. The legal issue before the court was how to properly phrase the separate question in accordance with the principles established in R v Leach, while ensuring that the question was both clear and precise.

The court carefully considered the precedent set in R v Leach, where the court held that the formulation of a separate question must be specific enough to allow for a definitive answer, yet broad enough to encompass all relevant considerations. The court in Kinghorn (No 6) found that the question posed in the current case failed to meet these criteria, as it was too narrow and did not sufficiently encompass the full scope of the legal issues at hand. The court noted that the question should not only address the admissibility of the evidence but also consider the broader implications of the evidence's relevance and potential impact on the fairness of the trial.

In determining the appropriate form of the question, the court emphasised the need for clarity and precision in the phrasing of the separate question. The court held that the question should be framed in a manner that allows for a comprehensive examination of the evidence's admissibility and relevance, while also ensuring that the question is not overly broad so as to lead to confusion or uncertainty. The court ultimately concluded that the question posed in Kinghorn (No 6) was inadequate and provided guidance on how to properly phrase the question to meet the requirements set out in R v Leach.

The court ordered that the separate question be rephrased to ensure it adequately covered the necessary legal considerations, and that the rephrased question be submitted to the court for approval before proceeding with the trial. This decision highlights the importance of carefully considering the form and content of separate questions in criminal proceedings, particularly in light of relevant precedents. The court's guidance on the proper formulation of such questions will be of significant assistance to legal practitioners navigating similar issues in future cases.

Orders