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

1. 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 the suggestion that the accusatorial principle and companion principle are imperilled by the manner in which its prosecution of Mr Kinghorn for offences under s 135.1(7) of the Code is framed. For that reason, the CDPP has insisted that the prosecutorial duty of disclosure was not engaged in relation to the material the subject of this appeal because, on the CDPP’s view of Leach, that material was not relevant. That approach led to an impasse between the CDPP and Mr Kinghorn’s attempts to gather material in support of his stay motion. Until the concession in relation to prayer 3 of the stay motion was made during this appeal, the only means of resolving that impasse was to decide the various applications that were made to produce and access documents which the primary judge did expeditiously. Now that the concession has been made there is an opportunity to resolve the impasse earlier rather than later by deciding the debate over Leach as soon as possible. If it is resolved in Mr Kinghorn’s favour then relief in the form of prayer 3 will follow and any debate about either the grant of a permanent stay or the lifting of a temporary stay and, in particular, the granting of access to documents relevant to those matters will take place in a different context. If it is resolved in the CDPP’s favour then the debate the subject of these appeals will be otiose.”

[Emphasis added.]

2. In order to implement the proposal made by the Court of Criminal Appeal, I conducted directions hearings with a view to the parties formulating an appropriate question for the consideration of this Court. The accused resisted such formulation on the basis that he had applied for special leave to appeal to the High Court and preferred to await the outcome of the application before formulation of the question. I decided that it was preferable to advance the matter before me and leave open the possibility that the determination of the separate question would no longer be appropriate if the High Court granted special leave.

The remaining issue

3. The parties engaged in fruitful discussion about the form of the question. The only difference between them is highlighted in the following question (with the additional words added by the Crown), which is otherwise agreed:

“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 (other than the ATO) 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 section 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?”

4. Mr Walker SC, who appeared with Mr Buchen SC, Ms Huxley and Mr Atkin on behalf of the accused, contended that the words in parentheses would deprive the question of any real utility. He contended that the accused relied on R v Leach [2019] 1 Qd R 459; [2018] QCA 131 (Leach), a decision of the Queensland Court of Appeal in support of the proposition that dissemination by the Australian Taxation Office (ATO) of material obtained from an accused compulsorily in an examination conducted under s 264 of the Income Tax Assessment Act 1936 (Cth) could not be used in the investigation of the accused for criminal offences, other than for the offence of making a false statement in the course of a s 264 examination. The material in question in the present case was obtained from the accused by the ATO compulsorily through the mechanism of s 264. Mr Walker submitted that, in these circumstances, there was no point having a question which excepted the ATO from consideration since the ATO was the investigative authority in both Leach and in the present case. He argued that to include the words in parentheses would cause prejudice to the accused, who would have no interest in the question being answered, but to exclude them would not disadvantage the Crown, since the Crown could still argue that Leach was distinguishable from the present case.

5. The Crown submitted that the purpose of the words in parentheses was to allow the Crown to argue that Leach did not affect the prosecution of accused charged with offences for the provision of false or misleading information provided to tax officers. I understood the Crown to submit, on this basis, that Leach, which concerned offences of obtaining money by deception, had no relevance to the present case, notwithstanding general statements in the judgment which would appear to make it applicable to tax offences generally.

6. There is nothing to be gained by the addition of the words in parentheses and much to be lost. For me to be required to decide the position for investigative authorities other than the ATO would be an arid exercise. The question in the form proposed by the accused is sufficient to accommodate the propositions for which the accused contends and those of the Crown and is apposite to the circumstances of the present case.

7. I understand that the parties wish to reserve their position pending the determination of the accused’s application for special leave to appeal against the decision of the Court of Criminal Appeal referred to above. For that reason, I will defer ordering that the question in the form determined (that is, without the words in parentheses) be determined separately pending the outcome, which is expected to follow the hearing of the application on 11 September 2020. I expect that the parties will provide my Associate with a draft order after the outcome is known. If there are issues which remain between the parties, they have liberty to apply.

8. At the conclusion of the hearing on 5 August 2020, I made the following orders for the hearing of the separate question, on the assumption that an order for the separate determination of the question will be made:

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.

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Decision last updated: 06 August 2020