R v Kinghorn (No 7) [2020] NSWSC 1483

Supreme Court New South Wales

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 (Cth), ss 8A, 8C, 8D, 8E, 8J, 8K, 8M, 8N, 8P, 8ZJ, 353-10, 355-25, 355-50 Cases Cited: Commissioner of Taxation v De Vonk (1995) 61 FCR 564; [1995] FCA 994 Director of Public Prosecutions (Cth) v Kinghorn; Kinghorn v Director of Public Prosecutions (Cth) [2020] NSWCCA 48 Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 Hammond v Commonwealth (1982) 152 CLR 188; [1982] HCA 42 Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 Macdonald v R; Maitland v R (2016) 93 NSWLR 736; [2016] NSWCCA 306 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 R v Independent Broad-Based Anti-Corruption Commissioner (2016) 256 CLR 459; [2016] HCA 8 R v Kinghorn (No 4) [2019] NSWSC 1420 R v Kinghorn (No 5) [2019] NSWSC 1473 R v Leach [2019] 1 Qd R 459; [2018] QCA 131 R v OC (2015) 90 NSWLR 134; [2015] NSWCCA 212 R v Ronen [2006] NSWCCA 123; (2006) 161 A Crim R 300 Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53 Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 326; [2018] HCA 53 X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 Category: Procedural rulings Parties: Regina John Alan Kinghorn (Accused) Representation: Counsel: D Staehli SC / K Ginges / K Curry (Crown) B Walker SC / G Huxley / H Atkin (Accused)