R v Kinghorn [2021] NSWCCA 313

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Kinghorn [2021] NSWCCA 313 Hearing dates: 29-30 September 2021 Decision date: 21 December 2021 Before: Bathurst CJ and Payne JA at [1]; Bell P at [152]; Ward CJ in Eq at [153]; Bellew J at [154] Decision: (1) Appeal allowed; (2) Set aside the answers given by Adamson J on 23 October 2020 to the separate questions for determination and substitute the following: 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 accusatorial principle, the companion rule and the application of those principles to answers compelled under taxation legislation, do not 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. 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: Yes. Question: If so, what are the limits on its use? Answer: To prove the fact that the representations particularised as made during the examination pursuant to s 264 of the Income Tax Assessment Act 1936 (Cth) were made by the accused (and the terms of those representations). Catchwords: CRIME – federal offences – dishonesty offences – where accused charged with two counts of dishonestly representing to a public official that he did not control certain companies – where particulars of the charges included that the accused made false representations during a compulsory examination about his involvement with the companies – Criminal Code (Cth), s 135.1(7) STATUTORY INTERPRETATION – principle of legality – criminal proceedings – application of accusatorial principle and companion rule to answers compelled under taxation legislation – where accused compulsorily examined under s 264 of the Income Tax Assessment Act 1936 (Cth) 12 years prior to the laying of charges – whether dissemination and use of transcript of examination by investigative and prosecuting authorities lawful pre- and post-charge CONSTITUTIONAL LAW – Commonwealth Constitution – general principles – whether fair trial values constitutionally entrenched – whether accusatorial principle and companion rule constitutionally entrenched so as to invalidate any legislative provision said to be in breach of the principle or the rule Legislation Cited: Australian Crime Commission Act 2002 (Cth), s 25A Commonwealth Constitution, s 80 Crimes Act 1900 (NSW), s 178BA Criminal Code (Cth), s 135.1 Income Tax Assessment Act 1936 (Cth), ss 16, 16(2A), 161, 162, 263, 264 Income Tax Assessment Act 1997 (Cth), s 995-1(1) Independent Broad-based Anti-corruption Commission Act 2011 (Vic), s 144(2) Judiciary Act 1903 (Cth), s 78B New South Wales Crime Commission Act 1985 (NSW), s 13(9) Sales Tax Assessment Act (No 1) 1930 (Cth), s 10(2) Taxation Administration Act 1953 (Cth), ss 3E, 3G, 8C, 8D, 8K, 8M, 8N, 8ZA, Sch 1 s 353-10, Sch 1 Div 355, Sch 1 Div 355 Subdiv 355-B, ss 355-25, 355-50, 355-70, 355-175 Cases Cited: A v Maughan (2016) 50 WAR 263; [2016] WASCA 128 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7 Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15 Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334; [1999] HCA 9 Binetter v Deputy Commissioner of Taxation (2012) 206 FCR 37; [2012] FCAFC 126 Canadian Pacific Tobacco Company Ltd v Stapleton (1952) 86 CLR 1; [1952] HCA 32 Commissioner of Taxation v De Vonk (1995) 61 FCR 564; [1995] FCA 994 Commissioner of Taxation v Nestle Australia Ltd (1986) 12 FCR 257 Commonwealth v Helicopter Resources Pty Ltd [2020] HCA 16; (2020) 94 ALJR 466 Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; [2015] HCA 21 Director of Public Prosecutions (Cth) v Kinghorn; Kinghorn v Director of Public Prosecutions (Cth) (2020) 102 NSWLR 72; [2020] NSWCCA 48 Do Young Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; [1993] HCA 74 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Hammond v The Commonwealth (1982) 152 CLR 188; [1982] HCA 42 Huddart Parker & Co Pty Ltd v Moorehead (1908) 8 CLR 330; [1909] HCA 36 Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 Macdonald v R; Maitland v R (2016) 93 NSWLR 736; [2016] NSWCCA 306 Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333; [1912] HCA 69 R v Independent Broad-based Anti-corruption Commissioner (2016) 256 CLR 459; [2016] HCA 8 R v Kinghorn (No 4) [2019] NSWSC 1420; (2019) 348 FLR 281 R v Kinghorn (No 7) (2020) 103 NSWLR 63; [2020] NSWSC 1483 R v Leach [2019] 1 Qd R 459; [2018] QCA 131 R v OC (2015) 90 NSWLR 134; [2015] NSWCCA 212 R v Seller; R v McCarthy [2013] NSWCCA 42; (2013) 232 A Crim R 249 Sorby v The Commonwealth (1983) 152 CLR 281; [1983] HCA 10 South Australia v Totani (2010) 242 CLR 1; [2010] HCA 39 Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53 X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 Yates v R (1991) 102 ALR 673 Zanon v Western Australia (2016) 50 WAR 1; [2016] WASCA 91 Texts Cited: Tax Laws Amendment (2007 Measures No. 1) Bill 2007 (Cth) Category: Principal judgment Parties: Crown (Appellant) John Alan Kinghorn (Respondent) Commonwealth Attorney-General (Intervening) New South Wales Attorney-General (Intervening) Representation: Counsel: J Giles SC, K Ginges, H Mann (Crown) B Walker SC, S Buchen SC, G Huxley, H Atkin (Respondent) S Donaghue QC, J Davidson (Commonwealth Attorney-General) M Sexton SC, M Pulsford (New South Wales Attorney-General)