Supreme Court of Queensland at Brisbane – Date of Conviction: 15 May 2017 (Shanahan DCJ)
DELIVERED ON:
22 June 2018
DELIVERED AT:
Brisbane
HEARING DATE:
7 February 2018
JUDGES:
Sofronoff P and Philippides JA and Applegarth J
ORDERS:
1. Appeal allowed.
2. Convictions quashed.
3. Retrial ordered.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – OTHER MATTERS – where the appellant was compulsorily examined by auditors from the Australian Tax Office (“ATO”) – where subsequent investigations by the ATO led to his examination being included as part of a brief of evidence to the Commonwealth Director of Public Prosecutions (“CDPP”) – where the appellant was subsequently charged with Commonwealth tax offences and also a count of fraud under the Criminal Code (Qld) for misappropriating funds held in a solicitor’s trust account on behalf of an estate – where money from trust account used to repay ATO – where the appellant applied for a permanent stay on the grounds that the release of his compulsorily obtained examination to the CDPP was unauthorised – whether the primary judge erred in law in not granting a permanent stay of the prosecution, or in not making orders to ensure that the prosecution proceed without any advantage from the compulsorily obtained evidence
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – OTHER MATTERS – where the primary judge refused to order separate trials for the State fraud count and the Commonwealth offences – whether the primary judge erred in refusing the application
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant contends that the trial judge erred in not leaving a defence under exculpatory provisions s 22 of the Criminal Code (Qld) and ss 9.1, 9.2 and 9.5 of the Criminal Code (Cth) to the jury – where proof of the appellant’s dishonesty displaced the exculpatory provisions – whether the trial judge was required to direct the jury in terms of those provisions
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant contends that a miscarriage of justice occurred when the trial judge told the jury that the prosecution had to prove that the appellant took money without the authority of “one of the executors”, instead of without the authority “of an executor” – where no request for a further direction – whether, in context of the trial, the direction was sufficient to instruct the jury on the issue of authority
Criminal Code (Qld), s 22, s 590AA Criminal Code (Cth), s 9.1, s 9.2, s 9.5 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.
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AGLC
R v Leach [2018] QCA 131
Case
[2018] QCA 131
Decision Date
CaseChat Overview and Summary
The case of R v Leach involves the appellant appealing against his conviction for Commonwealth tax offences and a count of fraud under the Criminal Code (Qld). The appellant was initially examined by the Australian Tax Office (ATO) in March 2010, and subsequent investigations by the ATO led to his examination being included in a brief of evidence to the Commonwealth Director of Public Prosecutions (CDPP). The appellant was subsequently charged and tried on the basis of evidence obtained during the compulsory examination. The appeal raises several grounds, including the legality of the compulsory examination, the use of the evidence in the trial, and the refusal to order separate trials for the state fraud count and the Commonwealth offences.
The legal issues before the court included whether the compulsory examination was lawfully conducted and disclosed, and if the evidence obtained should have been excluded from the trial. The court considered whether the primary judge erred in law by not granting a permanent stay of the prosecution, or by not making orders to ensure that the prosecution proceed without any advantage from the compulsorily obtained evidence. Additionally, the court examined whether the primary judge erred in refusing the application for separate trials, and if the trial judge misdirected the jury regarding the exculpatory provisions and the requirement to prove the appellant took money without the authority of "one of the executors."
The court found that the compulsory examination was conducted lawfully and for a proper purpose, and the disclosure of the examination to the CDPP was authorised by s 355-50 of the TAA. The court held that the evidence obtained was lawfully disclosed and admissible at trial. The court further found that the primary judge did not err in refusing to order separate trials, and that the trial judge's direction to the jury, though not perfect, was sufficient in the context of the trial. Consequently, the court concluded that the primary judge did not misdirect the jury regarding the exculpatory provisions.
The examination was conducted in March 2010 for a proper purpose and was not improperly conducted. It occurred when no criminal charges were pending against the appellant. The subsequent disclosure in September 2011 of the examination to the CDPP of the purpose of a contemplated criminal proceeding, based upon extensive further investigations by the ATO, was authorised by s 355-50 of the TAA. The appellant has not shown a basis upon which the evidence of the examination was rendered inadmissible in the exercise of a discretion to exclude.Conclusion – first ground of appeal In summary:1.The appellant was lawfully compelled to answer questions by ATO auditors on 10 March 2010.2.The audit examination was conducted for a proper purpose, and at a time when the appellant was not facing any criminal charges. The appellant has not demonstrated that the conduct of the examination was improper.3.The appellant was required to answer questions, even if the answers incriminated him.4.The legislation which abrogated his right to silence and the privilege against self-incrimination did not provide that the answers so obtained were inadmissible in a subsequent proceeding. Instead, s 355 of the TAA regulated the disclosure of the contents of his examination and, by way of exception to a general prohibition on disclosure of such “protected information”, authorised disclosure of the compulsory examination to the CDPP for the purpose of criminal proceedings related to a taxation law.5.The disclosure of the examination by the ATO to the CDPP in September 2011 was for such a purpose, and the use of the examination in the contemplated criminal proceedings was thereby authorised.6.The use of the evidence at the appellant’s trial was not prohibited on the basis that the disclosure of the evidence for use in criminal proceedings was unauthorised, contrary to a statute or order restricting such disclosure or otherwise unlawful. To the extent the disclosure and use of the evidence prejudiced the appellant’s defence, by providing evidence of lies or his explanation for transactions related to the taxation affairs of two trusts on whose behalf he obtained GST refunds, the disclosure and use was authorised by s 350-50 of the TAA.7.The evidence was lawfully obtained and lawfully disclosed to the CDPP. No basis existed for its discretionary exclusion at trial.8.The voluntariness rule, if applicable to statements which appear exculpatory but which are in fact incriminating, does not apply to statements obtained under lawful and proper compulsion.9.The relevant evidence, though compulsorily obtained, was admissible at the appellant’s trial.10.The 2014 application for a stay or other orders to ensure the prosecution proceed without the advantage of the compulsorily obtained evidence was properly refused. The appellant has failed to establish his first ground of appeal. If the appellant had succeeded in establishing that the compulsorily obtained evidence should not have been used at his trial and, as a consequence, a miscarriage of justice occurred, the appropriate order would have been for a re-trial. The prosecution of the appellant did not depend only upon the evidence obtained at the compulsory examination.II. The appeal against the refusal to order separate trials