SUPREME COURT OF QUEENSLAND
CITATION: R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 7 PARTIES: In CA No 91 of 2020:
R
vLEACH, Philip Denis
(applicant)In CA No 198 of 2020:
R
vLEACH, Philip Denis
(respondent)EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(appellant)
FILENO/S: CA No 91 of 2020
CA No 198 of 2020
DC No 1479 of 2013DIVISION: Court of Appeal PROCEEDING: Application for Leave s 118 DCA (Criminal) Reference under s 668A Criminal Code ORIGINATINGCOURT: District Court at Brisbane – [2020] QDC 42 (Smith DCJA)
DELIVEREDON: 9 February 2022 DELIVEREDAT: Brisbane HEARINGDATE: 22 and 23 July 2021 JUDGES: Fraser, Morrison and Bond JJA ORDERS: In CA No 91 of 2020 and CA No 198 of 2020
1. Until further order of the Court, publication of the Court’s reasons for judgment be limited to the parties and to their legal representatives in the proceedings before this Court.
2. The parties are directed to file written submissions addressing the extent to which further publication of any part of these reasons should be limited within 14 days of the date on which the reasons are published to them.
In CA No 91 of 2020:
3. Application dismissed. In CA No 198 of 2020:
4. The questions are answered as follows:
Question 1: Was Smith DJCA correct in ruling (at [318] of CDPP v Leach (No 3) [2020] QDC 20) that the Taxation Administration Act 1953 (Cth) (“the TAA”) and/or other legal principles make it unlawful for a taxation officer (within the meaning of that term in the TAA) to disclose information derived from a compulsory examination under s 353-10 of Schedule 1 of the TAA (conducted with the interviewee prior to any charges having been laid) in an application for a search warrant, seeking evidence in relation to an offence by the interviewee against the TAA or another Act, made to a person empowered under an Act to issue a search warrant?
Answer: No. The primary judge should have concluded that s 355-50(1) of the TAA applied to permit disclosure of the parts of the compulsory examination to the Magistrate in the course of the application for the search warrant made on 6 July 2011.
Question 2: If question one is answered “Yes”, if an application for a search warrant was founded in part upon information so derived, does the discretion described in Bunning v Cross (1978) 141 CLR 54 apply, such that a discretion would exist to permit evidence derived from such a search warrant to be adduced at trial?
Answer: The answer to question 1 makes it unnecessary to answer question 2.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – OTHER
MATTERS – where Mr Leach 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…
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- Case
- [2022] QCA 7
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the compulsory examination could be used in the retrial of Mr Leach. This issue arose because, although Mr Leach's conviction was quashed on appeal, the CDPP proposed to conduct the retrial in a manner that would not use the material obtained under compulsion. Mr Leach, however, was not satisfied with this proposal and filed a pre-trial application in the District Court of Queensland seeking that the indictment be quashed and/or permanently stayed. The court had to determine the admissibility and appropriateness of using the compulsory examination material in the retrial, considering both statutory provisions and the constitutional implications.
The court, after considering the arguments, determined that the compulsory examination could be used in the retrial but only under specific conditions. The reasoning involved a careful examination of the statutory framework governing compulsory examinations and the constitutional rights of the accused. The court held that while the compulsory examination was admissible, its use must be restricted to ensure fairness and adherence to procedural rights. The court also considered the implications of the CDPP's proposal and Mr Leach's objections, ultimately concluding that the examination could be used but must be handled in a manner that protects Mr Leach's rights. The court's decision balanced the need for effective law enforcement with the protection of individual rights under the law.
In the final orders, the court limited the publication of its reasons to the parties and their legal representatives, pending further submissions on the extent of publication. The parties were directed to file written submissions within 14 days of the reasons being published to them, to address the appropriate scope of public disclosure.
Orders
Orders of the court
In CA No 91 of 2020 and CA No 198 of 2020
1. Until further order of the Court, publication of the Court’s reasons for judgment be limited to the parties and to their legal representatives in the proceedings before this Court.
2. The parties are directed to file written submissions addressing the extent to which further publication of any part of these reasons should be limited within 14 days of the date on which the reasons are published to them.
In CA No 91 of 2020:
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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