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R v Kinghorn (No 7)

R v Kinghorn (No 7)

Case [2020] NSWSC 1483 23 October 2020

Criminal Liability

Mens Rea & Intention

Statutory Interpretation

Criminal Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Kinghorn (No 7) [2020] NSWSC 1483
Hearing dates: 19, 20 October 2020
Decision date: 23 October 2020
Jurisdiction: Common Law
Before: Adamson J
Decision:
The answers to the separate questions are determined as follows:
The Leach question
Question:   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 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 s 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?
Answer:   The answer to each part of the question is yes.
The evidence questions
Question:   In respect of use by the prosecutor, is the content of the s 264 examination admissible in the trial of the accused?
Answer:   No.
Question:   If so, what are the limits on its use?
Answer:   This question does not arise, having regard to the previous answer.

Catchwords:
CRIME — Federal offences — Offences of dishonesty — Separate question — Compulsory examination of accused — Where accused was compulsorily examined by taxation officers pursuant to statutory powers compelling answers whether incriminatory or not before charges laid — Where transcript of interview provided to investigative and prosecuting authorities — Where transcript was used to investigate accused, formulate charges and prepare prosecution case — Whether dissemination and subsequent use of transcript violates accusatorial principle and companion rule — Whether such disclosure and use was prohibited — Whether transcript admissible in trial of the accused — Effect of R v Leach [2019] 1 Qd R 459
STATUTORY INTERPRETATION — Legal presumptions — Presumption against alteration of fundamental common law rights — Right to criminal trial in accordance with accusatorial principle and companion rule — Whether statutory scheme expressly or by necessary implication authorised dissemination and use of transcript — Income Tax Assessment Act 1936 (Cth) — Taxation Administration Act 1953 (Cth) — Criminal Code Act 1995 (Cth) s 135.1(7)

Legislation Cited:
Acts Interpretation Act 1901 (Cth), s 15AA
Australian Crime Commission Act 2002 (Cth), s 30
Australian Securities and Investments Commission Act 2001 (Cth), ss 18, 19, 76
Crimes Act 1914 (Cth), s 29D
Criminal Code Act 1899 (Qld)
Criminal Code Act 1995 (Cth), ss 134.2, 135.1, 136.1
Income Tax Assessment Act 1936 (Cth), ss 16, 264
Independent Broad-based Anti-corruption Commission Act 2011 (Vic), s 144
Independent Commission Against Corruption Act 1988 (NSW)
Interpretation Act 1987 (NSW), s 33
NSW Crime Commission Act 1985 (NSW), s 13
Royal Commissions Act 1902 (Cth), s 6DD
Taxation Administration Act 1953

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 7)

Details

AGLC: R v Kinghorn (No 7) [2020] NSWSC 1483
Case: [2020] NSWSC 1483
Decision Date: 23 October 2020

CaseChat Overview and Summary

In the case of R v Kinghorn (No 7), the respondent, Kinghorn, was being tried for federal offences of dishonesty. The dispute centred around the admissibility of a transcript of a compulsory examination conducted by taxation officers under statutory powers. The examination compelled Kinghorn to provide answers regardless of their incriminatory nature, before any charges were laid. The transcript of the interview was provided to investigative and prosecuting authorities, who subsequently used it to investigate Kinghorn, formulate charges, and prepare the prosecution case. Kinghorn argued that the dissemination and use of the transcript violated the accusatorial principle and its companion rule, which protect the right to a fair trial, and that such disclosure and use were prohibited.

The legal issues before the court involved interpreting the statutory scheme to determine whether it expressly or by necessary implication authorised the dissemination and subsequent use of the transcript in the prosecution of Kinghorn. The court considered the Income Tax Assessment Act 1936 (Cth), the Taxation Administration Act 1953 (Cth), and the Criminal Code Act 1995 (Cth), particularly section 135.1(7). The court also examined the effect of the decision in R v Leach [2019] 1 Qd R 459, which addressed similar issues.

The court found that the statutory scheme did not expressly or by necessary implication authorise the dissemination and use of the transcript in the prosecution of Kinghorn. It held that the right to a criminal trial in accordance with the accusatorial principle and its companion rule was a fundamental common law right that could not be altered without clear statutory authority. The court emphasised the presumption against altering such rights and concluded that the use of the transcript in this manner was prohibited. The court ordered the exclusion of the transcript from the evidence in Kinghorn's trial, upholding his right to a fair trial.

Orders