O'Flaherty v McBride [1920] HCA 60

Rees

OF AUSTRALIA. 283

(HIGH COURT OF AUSTRALIA.)

MMAR ON. wf CCS RELA; " Iwrormanr,

AND

"MoBRIDE . . . . . . . .. RESPONDENT. Derenpant,

ON APPEAL FROM A SPECIAL MAGISTRATE OF SOUTH AUSTRALIA.

Bvidence—Privilege—Disclosure contrary to public policy—Production in Court of H.C. or A. official communications—Income Tax Assessment Act 1915-1918 (No. 34 of 1920. 1915—No. 18 of 1918), sec. 9 (4). pe ADELAIDE, See. 9 (4) of the Income Tax Assessment Act 1915-1918 provides that "an Sept. 23, 27. officer shall not be required to produce in any Court any return, assessment, —_ or notice of assessment, or to divulge or communicate to any Court any matter K4QEC3-

or thing coming under his notice in the performance of his duties under this Ga*an Duty

Act, except as may be necessary for the purpose of carrying into effect the provisions of this Act,"" bs

Held, that the section does not weaken the rule of common law that evidence of affairs of State is excluded when its admission would be against public policy.

Held, therefore, that where on a prosecution for making a false return under the Act, the head of the Income Tax Department objected on the ground of public policy to the production of reports made to him by officers of the Department, an order to produce one of the reports, the production of which was called for by the defendant, was improperly made, and a dismissal of the prosecution consequent upon the refusal to comply with the order was also erroneous.

H. C. oF A. 1920. —S

O FLAHERTY

v.

McBrive.

HIGH COURT (1920.

Appa by, way of case stated.

An information was heard by a Special Magistrate of South Aus- tralia whereby Michael John O'Flaherty charged that Gerald Bede McBride did make a return of income derived by Bradbury & Co. Ltd. from all sources in Australia during the twelve months from 1st October 1917 to 30th September 1918 which was false in a certain particular, namely, that the surplus net profit derived by Bradbury & Co. Ltd. from personal exertion was in the return stated to be £16,469 17s. 1d. whereas in fact it was more than that sum. The Magistrate, having dismissed the information, on the application of the informant stated a case for the determination of the High Court. The case stated shortly that at the hearing Stanley McKeller White, Deputy Federal Commissioner of Income Tax for South Australia, who had control of the Federal Income Tax Department in South Australia, objected to the production of any reports relating to income tax matters and investigations between officers of the Department ; that the appellant during his cross-examination was asked, in reference to a certain conversation, to refresh his memory by looking at a report made by him to the Chief Clerk or Deputy Commissioner, and refused to do so; that counsel for the defendant thereupon called for the production of the report, and, its production having been refused, the Special Magistrate thereupon ruled that the informant should produce it ; that counsel for the defendant there- upon applied for a dismissal of the information, and that the Magistrate thereupon dismissed the information with £23 2s. costs.