Supreme Court New South Wales Medium Neutral Citation: Pratten v Commonwealth Director of Public Prosecutions [2013] NSWSC 594 Hearing dates: 19 November 2012 Decision date: 21 May 2013 Before: Rothman J Decision: (1)Summons dismissed; (2)Proceedings dismissed; (3)The plaintiff shall pay the defendants' costs of and incidental to the proceedings, as agreed or assessed; (4)Liberty is granted to the parties to apply to the Court, within seven days hereof, for a different or special order as to costs. Such application to be made in writing accompanied by submissions of no more than three (3) pages and, if made, the other parties may respond by submission of no more than three (3) pages within a further seven days. Catchwords: ADMINISTRATIVE LAW - jurisdiction of the Supreme Court under s 39B of the Judiciary Act - discussion of motion in arrest of judgment - jurisdiction to declare void or quash income tax assessment - application for mandamus and prohibition against Commonwealth officers in collateral attack on criminal proceedings in the Court - discretion where broader rights on appeal are available - whether determination of financial advantage in criminal proceedings was reliant upon tax assessment and as a consequence impermissible non-judicial act inconsistent with the Constitution Legislation Cited: Australian Federal Police Act 1979 (Cth) Australian Federal Police Regulations 1979 (Cth) Bankruptcy Act 1966 (Cth) Crimes (Sentencing Procedure) Act Crimes Act 1900 Crimes Act 1914 (Cth) Criminal Appeal Act 1912 Criminal Code Act 1995 (Cth) Criminal Procedure Act 1986 Income Tax Assessment Act 1936 (Cth) Judiciary Act 1903 (Cth) Supreme Court Act 1970 Cases Cited: ASIC v Rich [2005] NSWSC 62; (2005) 188 FLR 416 Australian Securities & Investments Commission v Marshall Bell Hawkins Limited [2003] FCA 833 Beckett v New South Wales [2013] HCA 17 Bond v Tuohy [1995] FCA 1085; (1995) 56 FCR 92 CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 Chief Executive Officer of Customs v Jiang [2001] FCA 145; (2001) 111 FCR 395 Clarkson v Director of Public Prosecutions [1990] VR 745 Coco v R [1994] HCA 15; (1994) 179 CLR 427 Commissioner of Taxation of the Commonwealth of Australia v Futuris Corporation Limited [2008] HCA 32; (2008) 237 CLR 146 Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2007] FCAFC 32; (2007) 157 FCR 260 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 Denlay v Federal Commissioner of Taxation [2011] FCA 1092; (2011) 83 ATR 858 Denlay v Federal Commissioner of Taxation [2011] FCAFC 63; (2011) 193 FCR 412 DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 Electrolux Home Products Pty Limited v The Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 Farah Constructions Pty Limited v Say-Dee Pty Limited [2007] HCA 22; (2007) 230 CLR 89 Ignjatic v R (1993) 68 A Crim R 333 International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 Likiardopoulos v The Queen [2012] HCA 37; (2012) 86 ALJR 1168 Marbury v Madison 5 (1 Cranch) US 137 (1803) Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 Moti v The Queen [2011] HCA 50; (2011) 245 CLR 456 Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 Plaintiff S3/2013 v Minister for Immigration and Citizenship [2013] HCA 22 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v Billington [1980] VR 625 R v Birks (1990) 19 NSWLR 677 R v Coldham; Ex parte Australian Workers' Union [1983] HCA 35; (1983) 153 CLR 415 R v Colling (1847) 2 Cox 184 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co [1910] HCA 33; (1910) 11 CLR 1 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Brisbane Tramways Company Limited [1914] HCA 15; (1914) 18 CLR 54 R v Cook; Ex parte Twigg [1980] HCA 36; (1980) 147 CLR 15 R v Cross [1973] QB 937; (1973) 57 Cr App R 660 R v Dunn (1843) 1 C & K 730 R v Gulbir Rana Singh [2003] EWCA Crim 3712 R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263 R v Hibble; Ex parte The Broken Hill Proprietary Company Limited [1920] HCA 83; (1920) 28 CLR 456 R v Howard (1992) 29 NSWLR 242 R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 R v Laming (1990) 90 Cr App R 450 R v Matthews (1863) 2 SCR (NSW) 227 R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union (Australian Section) [1951] HCA 3; (1951) 82 CLR 208 R v Nash (1855) 2 Legge 905 R v Stephens (1990) 48 A Crim R 323 R v Tang [2007] SADC 74 R v Waddington (1800) 1 East 143 R v Wylie, Howe & McGuire (1919) 83 JP 295 Re Jarman; Ex parte Cook (No 1) [1997] HCA 13; (1997) 188 CLR 595 Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Ridgeway v R [1995] HCA 66; (1995) 184 CLR 19 Rogers v R [1994] HCA 42; (1994) 181 CLR 251 Saffron v R (1988) 17 NSWLR 395 Solution 6 Holdings Limited v Industrial Relations Commission of New South Wales [2004] NSWCA 200; (2004) 60 NSWLR 558 Walkom v Cutcher & Neale Pty Ltd (1996) 31 ATR 603 Williams v Keelty [2001] FCA 1301; (2001) 111 FCR 175 Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 Texts Cited: PJ Richardson Archbold, Criminal Pleading, Evidence and Practice (2010) Thomson Reuters at paragraph 1-251 Category: Principal judgment Parties: Timothy Charles Pratten (Plaintiff) Commonwealth Director of Public Prosecutions (First Defendant) Federal Commissioner of Taxation (Second Defendant) Commissioner of the Australian Federal Police (Third Defendant) Gerard Fletcher (Fourth Defendant) Representation: Counsel: R L Seiden/P K Bruckner/T J Davy (Plaintiff) M A Wigney SC/B Hatfield (First Defendant) D Fagan SC/J S Gleeson SC (Second, Third and Fourth Defendants) Solicitors: AHA Taylor Lawyers (Plaintiff) Commonwealth Director of Public Prosecutions (First Defendant) Australian Government Solicitor (Second, Third and Fourth Defendants) File Number(s): 2012/277751 Publication restriction: None Judgment 1On 13 June 2012, a jury found the plaintiff, Timothy Charles Pratten, guilty of seven counts of tax fraud (formally, dishonestly obtaining a financial advantage from the Commonwealth by deception), contrary to s 134.2 of the Criminal Code Act 1995 (Cth) (hereinafter, "the Code"). The offences related to non-declaration of income received by (or paid to the benefit of) Mr Pratten from Vanuatu and the investigation was part of the investigation called "Project Wickenby". Mr Pratten seeks to challenge the documents and decisions preliminary, or fundamental, to that verdict in these separate civil proceedings. Mr Pratten has not yet been sentenced. 2By summons filed on 5 September 2012, Mr Pratten seeks the issue of writs of certiorari, prohibition and mandamus, together with declarations of various kinds, against the Commonwealth Director of Public Prosecutions (hereinafter, "DPP"), the Federal Commissioner of Taxation (hereinafter, "FCT") and the Commissioner of the Australian Federal Police (hereinafter, "Commissioner AFP"). 3One of the effects of those writs and declarations, if granted, would be to invalidate or to quash certain income tax returns, and to restrain reliance by the DPP and the FCT on the said tax returns. 4Further, Mr Pratten seeks to have the Court declare void the notices to produce documents purportedly issued by the FCT or by the Australian Taxation Office (hereinafter, "ATO") and to restrain the FCT and the ATO from relying on the documents produced as a consequence. 5Next, Mr Pratten seeks to have the Court declare that the provision by the Australian Federal Police (hereinafter, "AFP") to the ATO of documents, obtained by the AFP in execution of search warrants, in reliance on the aforesaid notices to produce issued by the ATO, was unlawful, and, consequently, to have the Court restrain the FCT or the ATO from relying on the documents produced by the AFP, including any derivative use of the documents produced (including any later consequently discovered or produced documents). 6By the summons, Mr Pratten also raises certain issues under the Constitution. He challenges the determination by the Court of "financial advantage" as being "an impermissible administrative act and ... contrary to the doctrine of separation of powers". 7Mr Pratten also seeks a declaration that "by equating the 'financial advantage' with the notional assessments that would issue, there was a shift in the burden of proof ... or it was impermissibly lowered", which was "contrary to s 80 of the [Constitution]" and a presumably future determination on sentence on the same basis would also be contrary to s 80 of the Constitution. The underlying assumption in that submission, although unstated in the summons, is that, as a consequence, the verdict is invalid or the trial unconstitutional. 8Mr Pratten also seeks orders (seemingly, although again unstated, as a consequence of the success of its argument summarised in the immediately preceding paragraph) restraining the DPP from "advancing the notional assessment as a proxy for the financial advantage" at sentence. It seeks the same order in relation to the trial, notwithstanding that the trial has concluded and had concluded at the date of the commencement of the proceedings. 9Separate or further orders are sought for a declaration that "the decision to prosecute" was an abuse of process and for writs restraining the DPP and AFP from further prosecuting. The summons does not specify whether the restraint is from prosecuting the present indictment or Mr Pratten more generally. 10Lastly in terms of "substantive" orders, Mr Pratten seeks mandamus requiring the DPP "to withdraw the prosecution and enter a nolle prosequi". Mr Pratten also seeks costs. The jurisdiction of the Court 11The jurisdictional basis for the above orders was never precisely identified. Particularly, the jurisdiction of this Court to issue some of the orders described above was not identified. Rather, the plaintiff referred variously to the original jurisdiction conferred by s 75(v) of the Constitution on the High Court of Australia (and conferred on other courts by s 39B of the Judiciary Act 1903 (Cth)) and otherwise to the inherent jurisdiction of the Court. 12The first (rather trite) proposition that must be noted is that each defendant is an officer of the Commonwealth and none is an officer of the State. Further, the decisions and conduct that are sought to be impugned are decisions and conduct of Commonwealth officers. 13I should also note that the summons does not seek to rely upon any jurisdiction of the Court in arrest of judgment, which would apply only to defects appearing on the face of the record: R v Matthews (1863) 2 SCR (NSW) 227. In this respect, "the face of the record" is not affected by the provisions of s 69 of the Supreme Court Act 1970 and would be more narrowly construed: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163. 14In those circumstances, it is necessary to consider whether the jurisdiction still exists, particularly given the existence of an appeal against verdict on any question of law alone (which must include an error on the face of the record) and, by leave, for any other error: see s 5 of the Criminal Appeal Act 1912. 15I also note that historically motions in arrest of judgment were motions in banc made after verdict but before judgment and their existence led to the inclusion on the record of more detail, enabling challenges to the verdict on a broader basis. The advent of appellate jurisdiction, such as that exercised by the Court of Criminal Appeal, led to motions in banc being eliminated. 16Further, by operation of s 17 of the Criminal Procedure Act 1986, a formal defect to an indictment on its face must be taken prior to the jury being sworn, either by demurrer or motion to quash the indictment. The foregoing did not apply to defects which invalidated the trial: R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10. 17The restrictions imposed by s 17 of the Criminal Procedure Act were originally promulgated as a section of the Crimes Act 1900 and have existed for a significant period, in one form or another. Notwithstanding those provisions, or because of them, a challenge to other errors on the face of the record (e.g. relating to the verdict itself) are not restricted thereby. Further, the provision does not prevent a challenge where the defect results in there having been no trial in accordance with law: see R v Janceski, supra; and R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263 at [31] - [34] and [52], per Bell J (with whom Simpson and Buddin JJ agreed). 18In R v Howard (1992) 29 NSWLR 242, the Court of Criminal Appeal discussed the circumstances in which proceedings on indictment may be terminated after arraignment at a time when s 20 of the Criminal Procedure Act (or its predecessor) (dealing with amendments to indictments) had not been promulgated. The Court (Gleeson CJ, Sheller JA and Lee AJ) commented: "The system that applies in New South Wales in relation to prosecutions is described in R v Hull (1989) 16 NSWLR 385 at 390-393. As Griffith CJ pointed out in Packer v Peacock (1912) 13 CLR 577 at 586, the procedure prescribed by law for bringing an accused person to trial is a continuous process, beginning with arrest (or summons) and ending with trial. Where a problem such as the present arises it may be necessary to distinguish between necessary legal formalities and matters of practice and procedure that are more flexible. There is a practice, sanctioned by regulation, pursuant to which the Director of Public Prosecutions provides an accused person, in advance of a trial, with a draft of the indictment proposed to be presented. That is used for various purposes in connection with pre-trial proceedings. However, the actual indictment, signed by the Crown Prosecutor, is normally handed up at the commencement of the trial. The trial judge's associate, acting as a clerk of arraigns, then arraigns the accused, taking what is usually a plea of either guilty or not guilty. If the plea is not guilty a jury will be empanelled." 19It is the presentation of a valid indictment and an arraignment thereon that provides the Court with the jurisdiction to try the accused. The record includes the indictment and the judge's notes on the indictment formerly recognised in the District Court by Part 52, Rule 12 of the District Court Rules 1973. The indictment, once validly presented, resulting in the accused being arraigned thereon, is the record as are the judicial orders on the indictment, which then form part of the record: R v Billington [1980] VR 625; R v Cross [1973] QB 937; (1973) 57 Cr App R 660 cited with approval in R v Stephens (1990) 48 A Crim R 323 at 327, per Allen J (with whom Campbell J and Lusher AJ agreed). 20None of the issues raised by Mr Pratten in these proceedings deal with error on the face of the indictment such that the verdict would be invalid and subject to an order in arrest of judgment. 21The foregoing has been discussed, at more length than would ordinarily be necessary, given that an order in arrest of judgment was not sought by Mr Pratten, because orders in arrest of judgment, on ancient authority, are matters that a judge, on being alerted to a defect on the face of the record, had within her or his power and on which the Court was required to act of its own motion: R v Waddington (1800) 1 East 143 at 146; and R v Nash (1855) 2 Legge 905. 22Lastly, in relation to orders in arrest of judgment or verdict, such orders are discretionary where other remedy exists and, on some authority, it is uncertain whether an accused is still entitled to move in arrest of judgment at any time between verdict and sentence: see R v Gulbir Rana Singh [2003] EWCA Crim 3712, a judgment of the Court of Appeal (Criminal Division), per Lord Justice Auld, Grigson and Roderick Evans JJ at [72]. 23In R v Laming (1990) 90 Cr App R 450, a case where an issue arose after verdict, but before sentence, as to the validity of the indictment, the Court indicated that it was for the Court of Appeal, not the trial judge, to investigate it. These discretionary considerations depend upon the existence of a right of appeal, or a capacity to seek leave to appeal, on both issues of law and issues of fact. 24Even so, in Singh, supra, the English Court of Appeal said: "There may still be some life in exceptional cases for the procedure of moving in arrest of judgment between verdict and sentence, as the editors of the current edition of Archbold strongly argue ... However, we believe that its proper use nowadays would be likely to be confined to a formal error, such as a fundamental defect in the indictment that cannot be cured by the verdict ... We consider that it could not properly be resorted to where a contested issue is raised post-trial as to why an accused had been absent from it and as to the impact of that absence on the fairness of his trial." (Singh, supra, at [72], by the Court, judgment delivered by Auld LJ.) 25Leaving aside the jurisdiction of the Court to issue orders in arrest of judgment, Mr Pratten relies upon the jurisdiction conferred upon this Court by the provisions of s 39B of the Judiciary Act, which is relevantly in the following terms: "39B Original jurisdiction of Federal Court of Australia Scope of original jurisdiction (1) Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. (1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: (a) in which the Commonwealth is seeking an injunction or a declaration; or (b) arising under the Constitution, or involving its interpretation; or (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. Note: Paragraph (c) does not prevent other laws of the Commonwealth conferring criminal jurisdiction on the Federal Court of Australia. Jurisdiction for certain writs that relate to criminal prosecutions etc. (1B) If a decision to prosecute a person for an offence against a law of the Commonwealth, a State or a Territory has been made by an officer or officers of the Commonwealth and the prosecution is proposed to be commenced in a court of a State or Territory: (a) the Federal Court of Australia does not have jurisdiction with respect to any matter in which a person seeks a writ of mandamus or prohibition or an injunction against the officer or officers in relation to that decision; and (b) the Supreme Court of the State or Territory in which the prosecution is proposed to be commenced is invested with, or has conferred on it, jurisdiction with respect to any such matter. (1C) Subject to subsection (1D), at any time when: (a) a prosecution for an offence against a law of the Commonwealth, a State or a Territory is before a court of a State or Territory; or (b) an appeal arising out of such a prosecution is before a court of a State or Territory; the following apply: (c) the Federal Court of Australia does not have jurisdiction with respect to any matter in which the person who is or was the defendant in the prosecution seeks a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth in relation to a related criminal justice process decision; (d) the Supreme Court of the State or Territory in which the prosecution or appeal is before a court is invested with, or has conferred on it, jurisdiction with respect to any such matter. (1D) Subsection (1C) does not apply where a person has applied for a writ of mandamus or prohibition, or an injunction, against an officer or officers of the Commonwealth in relation to a related criminal justice process decision before the commencement of a prosecution for an offence against a law of the Commonwealth, or of a State or a Territory. (1E) Where subsection (1D) applies, the prosecutor may apply to the court for a permanent stay of the proceedings referred to in that subsection, and the court may grant such a stay if the court determines that: (a) the matters the subject of the proceedings are more appropriately dealt with in the criminal justice process; and (b) a stay of proceedings will not substantially prejudice the person. Jurisdiction for certain writs that relate to civil proceedings ... (1F) Subsections (1B), (1C), (1D), (1E) and (1EA) have effect despite anything in any other law. In particular: (a) neither the Jurisdiction of Courts (Cross-vesting) Act 1987, nor any other law, has the effect of giving the Federal Court of Australia jurisdiction contrary to subsection (1B), (1C) or (1EA); and (b) neither section 9 of the Administrative Decisions (Judicial Review) Act 1977, nor any other law, has the effect of removing from the Supreme Court of a State or Territory the jurisdiction given to that Court by subsection (1B), (1C) or (1EA). ... Definitions (3) In this section: 'civil proceeding' has the same meaning as in the National Security Information (Criminal and Civil Proceedings) Act 2004 . 'related civil proceeding decision', in relation to a civil proceeding, means: (a) a decision of the Attorney-General to give: (i) notice under section 6A of the National Security Information (Criminal and Civil Proceedings) Act 2004 in relation to the proceeding; or (ii) a certificate under section 38F or 38H of that Act in relation to the proceeding; or (b) a decision of the Minister appointed by the Attorney-General under section 6A of that Act to give: (i) notice under section 6A of that Act in relation to the proceeding; or (ii) a certificate under section 38F or 38H of that Act in relation to the proceeding. 'related criminal justice process decision', in relation to an offence, means: (a) a decision (other than a decision to prosecute) made in the criminal justice process in relation to the offence, including: (i) a decision in connection with the investigation, committal for trial or prosecution of the defendant; and (ii) a decision in connection with the appointment of investigators or inspectors for the purposes of such an investigation; and (iii) a decision in connection with the issue of a warrant, including a search warrant or a seizure warrant; and (iv) a decision requiring the production of documents, the giving of information or the summoning of persons as witnesses; and (v) a decision in connection with an appeal arising out of the prosecution; or (b) a decision of the Attorney-General to give a certificate under section 26 or 28 of the National Security Information (Criminal and Civil Proceedings) Act 2004 before or during a federal criminal proceeding (within the meaning of that Act) in relation to the offence." 26Notwithstanding, or despite, the heading given to the section, s 39B of the Judiciary Act (hereinafter, "s 39B"), enacted pursuant to s 77 of the Constitution, defines, in part, the jurisdiction of the Federal Court of Australia and the extent to which that jurisdiction is exclusive of the courts of the States. It also defines the jurisdiction of the courts of the States, in a manner that complements the conferral of Federal Court jurisdiction. That complementary State court jurisdiction is exclusive of the jurisdiction of the Federal Court. 27The provisions of s 39B must, like all legislation, be read in the context of the statute as a whole and in order to achieve harmonious goals: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. Most relevantly, the provisions of s 39B must be read as part of the scheme implemented by the promulgation of s 38, s 39 and s 39A. 28The provisions of s 38 are subjected to the provisions of s 39B and s 44 of the Judiciary Act but, otherwise, render the jurisdiction of the High Court in the matters there outlined exclusive of the jurisdiction of, relevantly, the Supreme Court of New South Wales. The matters outlined reflect, to some degree, the matters described within s 75 of the Constitution, with the relevant significant exception that, in relation to the terms of s 75(v) of the Constitution, the High Court is given, exclusively, jurisdiction in relation to matters in which a writ of mandamus or prohibition is sought, but not matters in which an injunction is sought against an officer of the Commonwealth. 29The provisions of s 39 of the Judiciary Act then grant to the State courts (including the Supreme Court of New South Wales) exclusive jurisdiction in all federal matters, other than those that are exclusively within the original jurisdiction of the High Court of Australia. By s 39A of the Judiciary Act, the federal legislature continues the jurisdiction of State courts conferred by other federal legislation. 30As is clear from the extract above, the heading to s 39B is somewhat misleading. Subsection 39B(1) gives original jurisdiction to the Federal Court of Australia in proceedings where a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. By the combined operation of the other subsections to s 39B, that original jurisdiction, together with the jurisdiction in certain other prescribed matters set out in s 39B(1A), is rendered exclusively within the jurisdiction of the Federal Court of Australia (as against the courts of the States). 31Those same provisions, however, render jurisdiction in relation to any matter in which a writ of mandamus or prohibition or injunction is sought against an officer or officers of the Commonwealth that is a related criminal justice process decision (including, for present purposes, the decision to prosecute) exclusively (subject to the jurisdiction of the High Court of Australia) within the jurisdiction of the relevant State or Territory, that is the State or Territory in which a prosecution has been or is proposed to be commenced. 32In that sense, s 39 of the Judiciary Act has a wider and more general operation than the provisions of s 39B. Save to the extent that the justiciable controversy or proceedings are those described in s 38 and, therefore, exclusively within the original jurisdiction of the High Court of Australia, s 39 is a grant of the jurisdiction of the High Court, without relevant qualification. (The qualifications that do exist relate to the denial of an appeal to the Privy Council and the availability of an appeal, subject to special leave, to the High Court of Australia and otherwise relate to limits as to locality, subject matter and like restrictions imposed by legislation establishing the State court). Even those matters for which the High Court is granted exclusive original jurisdiction are made subject to s 39B and s 44 of the Judiciary Act. For present purposes, the provisions of s 44 of the Judiciary Act are not relevant. 33Likewise the restriction on State courts exercising the jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (hereinafter, "the ADJR") is not relevant for two fundamental reasons: firstly, the exclusivity provisions contained in s 9 of the ADJR are overcome by the provisions of s 39B(1F)(b) of the Judiciary Act; and, secondly, the provisions of the ADJR are additional legislative bases for judicial review and do not limit the jurisdiction or power of any court to deal with prohibition, mandamus or certiorari (or orders in the nature thereof), assuming jurisdiction so to do otherwise exists. 34I turn then to the remedies sought in these proceedings and the jurisdiction of the Court to grant such remedies in light of the foregoing. That which immediately follows is not a discussion on the merits of any such orders, or the appropriateness of the orders. 35First, as already summarised, Mr Pratten seeks declarations. To the extent that the controversy between the parties, in that respect, is within the jurisdiction of the Court, the jurisdiction of the Court to grant a declaration is conferred by s 75 of the Supreme Court Act. Since the Judiciary Act grants jurisdiction in relation to "matters", which I will take to mean "justiciable controversies", the jurisdiction or power to grant a declaration as a proper remedy in a matter that is otherwise within jurisdiction must be accepted. 36The aforesaid declarations relate to a notice under s 264 of the Income Tax Assessment Act 1936 (Cth), which notice was served for the purpose of the ATO and, particularly, for the purpose of obtaining material relevant to the assessment of income tax payable by Mr Pratten. 37AFP's provision of the documents to the ATO was, similarly, a decision made, it seems, on the basis that the AFP was obliged to comply with the notice under s 264 to which reference has been made. 38The third declaration sought is a declaration that the assessments of income tax for certain years (being years that relate to the years for which charges were laid) were not assessments for the purposes of the Income Tax Assessment Act. 39Again, except in a peripheral manner, which I will later discuss, the assessments were not issued in connection with the investigation, committal for trial or prosecution of Mr Pratten, the appointment of investigators or inspectors for that purpose, the issuing of a warrant in relation to the offences or the production of documents, giving of information or summonsing of witnesses in relation to the offences or in relation to a decision in connection with an appeal arising out of the prosecution for the offences. In other words, the issuing of an income tax assessment was not, on its face, a related criminal justice process decision of a kind to which s 39B refers. 40The fact that the income tax assessments that issued were tendered in evidence in the criminal proceedings does not make the decision to issue the assessment nor the assessment itself a related criminal justice process decision. The assessment is required and issued under the Income Tax Assessment Act and is not part of the investigation or prosecution of the offence or offences. The Court will deal later with issues associated with the s 264 notice and the warrants that issued. 41I next deal with the question of certiorari. Prayer 7 of the summons seeks a writ of certiorari or orders in the nature of such a writ quashing the assessments under the Income Tax Assessment Act. For all the reasons above, the assessment does not seem to be a related criminal justice process decision, nor a decision to prosecute an offence. Nevertheless, I will deal with the question of whether the Court, as presently constituted, has power or jurisdiction to grant certiorari against a Commonwealth officer in such a matter. 42To the extent that the claim for certiorari depends upon the claims for declaration that the notice under s 264 of the Income Tax Assessment Act was invalid and could not be relied upon by the ATO in issuing an assessment, I have already remarked that the issuing of the assessment is not a related criminal justice process decision nor a decision to prosecute and, to the extent that it relies upon the jurisdiction conferred on the Court by s 39B, does not fall within the jurisdiction of the Court. 43Even if the issuing of the Income Tax Assessment Notice were a decision to prosecute or a related criminal justice process decision, certiorari is not a remedy by which the original jurisdiction of the Federal Court of Australia in s 39B(1) is defined, nor the jurisdiction of the State courts in s 39B(1B). 44In Walkom v Cutcher & Neale Pty Ltd (1996) 31 ATR 603, Bainton J remarked that the Supreme Court of New South Wales did not have the power to order that the ATO or the Commonwealth carry out its duty in relation to the issuing of assessments (nor the quashing of said decisions). 45I know of no authority that would suggest that the inherent jurisdiction of the Court to grant certiorari extends to the grant of certiorari against an officer of the Commonwealth. I am prepared to accept, without deciding, that the High Court jurisdiction conferred by s 39(1) of the Judiciary Act is a jurisdiction that includes the grant of certiorari. 46Notwithstanding the foregoing assumption, there is much authority, by which I am bound, to the opposite effect. While the authority generally discusses the jurisdiction and/or power to grant certiorari in the context of s 75(v) of the Constitution, it has generally been accepted that the High Court of Australia (and the Federal Court under s 39B) does not have jurisdiction to grant certiorari unless it is sought as an ancillary or adjunct order in proceedings that seek, otherwise than colourably, mandamus or prohibition: see Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372; Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2007] FCAFC 32; (2007) 157 FCR 260; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405, per McHugh J; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; R v Cook; Ex parte Twigg [1980] HCA 36; (1980) 147 CLR 15 at 25-26. 47There is a contrary view available that, for my part, I prefer, which relies on the fact that s 75 of the Constitution is a grant of jurisdiction not the grant of a power or remedy. Jurisdiction is granted under s 75(v) of the Constitution, being original jurisdiction of the High Court, by reference to matters involving mandamus and prohibition, inter alia. 48The grant of original jurisdiction for mandamus and prohibition was inserted to overcome the mischief that might otherwise be created without such a provision in light of the judgment of the US Supreme Court in Marbury v Madison 5 (1 Cranch) US 137 (1803), in which the US Supreme Court held that it did not have original jurisdiction to issue mandamus. 49Ironically, the US Supreme Court had determined that it does have the power to issue certiorari. A construction of s 75(v) which excluded certiorari has been the effect of judgments of the High Court of Australia. 50Mandamus requires an officer of the Commonwealth to perform an obligation that has not been performed and prohibition issues against an officer of the Commonwealth who has exceeded the jurisdiction conferred, in which case there is no validly performed act: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at 613, [46], per Gaudron and Gummow JJ, at 629 [96], [97], per Kirby J at 645 and at 643 [145] - [148], per Hayne J. 51Certiorari assumes, generally, an extant and operative act of the Commonwealth, calls it up and quashes it. As a consequence certiorari would, ordinarily, fall within the description of original jurisdiction in the High Court described by s 75(iii) of the Constitution. Moreover, at least following the judgment of the High Court of Australia in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531, the High Court of Australia, which is the "Federal Supreme Court" in which is vested the judicial power of the Commonwealth, would seem to have the inherent jurisdiction to grant certiorari: s 71 of the Constitution. 52Nevertheless, even if only obiter, the considered view of the High Court thus far expressed is that there would need to be non-colourable jurisdiction otherwise reposed in the Court to which certiorari would be an adjunct or ancillary remedy available to resolve the justiciable controversy between the parties completely. 53In this case, certiorari is sought quashing the Amended Assessments for tax (hereinafter, "the Amended Tax Assessments"), in circumstances where the justiciable controversy between the parties does not otherwise, other than colourably, impugn the assessments of income tax. 54As a consequence of the foregoing, the Court does not have jurisdiction to grant certiorari in relation to the Amended Tax Assessments. 55A writ of prohibition issued to restrain the DPP from performing an act in prosecuting proceedings would, in my view, clearly fall within the jurisdiction granted to the State courts by s 39B and the Court, as presently constituted, has jurisdiction to deal with the issue. The foregoing does no more than deal with the jurisdictional question. There are issues associated with the exercise of discretion that are obvious, even if the plaintiff, Mr Pratten, could otherwise satisfy the Court of jurisdictional error. 56The order of prohibition that is sought to restrain the ATO or the FCT from relying upon assessments in any proceedings, including tax recovery proceedings, is not a matter that, bearing in mind the qualification that mandamus and prohibition can only relate to a decision to prosecute and a related criminal justice process decision, obviously is within the jurisdiction of the Court. The FCT (or the ATO) have not sought to prosecute. The recovery of income tax is, generally, a civil proceeding. The Court's jurisdiction is confined, as aforesaid, and any order that went beyond that would be outside the jurisdiction of the Court. 57The order sought by Mr Pratten in prayer 10 of the summons is an order that, on its face, is directed at the actions of the DPP in a related criminal justice process decision, being a decision in connection with the prosecution of Mr Pratten. That analysis runs true for prayers 15, 16 (to the extent that it relates to jurisdictional error), 17 and, subject to what may follow, 18 of the summons. 58While one may be critical of the timing at which Mr Pratten sought to raise inconsistency with Chapter III of the Constitution by eliding or insufficiently distinguishing between the exercise of judicial power and an administrative act and by impermissibly implementing "a shift in the burden of proof", contrary to s 80 of the Constitution, the Court has the jurisdiction to determine whether a justiciable controversy that is before it is such as to be contrary to the Constitution. Background and facts 59The foregoing assumes some facts, which have yet to be summarised. The detailed facts giving rise to the offences need not be recited. Nor should the Court recite the evidence adduced in the criminal trial to which this civil application relates. 60Yet no judgment issues in a vacuum. It is necessary to recite, in very general terms, the basis upon which the Crown sought to prove the criminal proceedings and the circumstances giving rise to the acts which are sought to be impugned in these proceedings. 61Following certain investigations, search warrants were issued in or about 2008 and some at other times. Those search warrants were executed on or after 3 December 2008 at various places. The search warrants were executed in Australia and in Vanuatu. 62At least at the searches and seizure of property that were conducted and effected in Australia, certain officers of the ATO accompanied officers of the AFP. Those officers directed the AFP personnel to relevant or significant material and searched through and seized documents on the premises, giving them then to the AFP agent present, who was the warrant holder. 63There is no evidence before the Court, nor was there any evidence, that the ATO personnel were appointed assistants to the AFP for the purposes of the search warrants. There was some cross-examination, during the course of the criminal proceedings, on the circumstances that gave rise to the seizure of documents at various premises. At Transcript, 809 (lines 9 through to 19) the Court reminded counsel, then appearing for Mr Pratten, that if there were issues associated with the search and obtaining of documents, then the Court would conduct a voir dire and those facilities were available to the accused. That invitation or reminder was not utilised. 64After the seizure of the documents by the AFP, the documents were, as one would expect, held by the AFP. On 23 June 2009, the ATO issued a notice under s 264 of the Income Tax Assessment Act on AFP agent, Gerard Fletcher, in which the ATO requested "All documents seized under warrants executed by the Australian Federal Police relating to Timothy Charles Pratten, and any entities associated with Timothy Charles Pratten". 65The AFP, purportedly in compliance with the s 264 notice issued by the ATO, copied the material seized by the AFP and provided that copy (it was at that stage a digital record on compact disc) to the ATO (see Transcript, 1276). The Court, on being informed of the s 264 notice on the AFP and the AFP's compliance with the notice, expressed the preliminary view that it was "a little odd" to deal with documents under warrant in that way, but no objection was taken to the documents being adduced. The Court, during the course of that discussion, expressed the preliminary view that it seemed more of a problem in the tax assessment than in the criminal proceedings. 66During the course of the criminal proceedings, objection was taken to evidence that was to be adduced from an officer of the ATO. Final rulings on the evidence were not made. The Court indicated its preliminary view but decided that it was too early in the proceeding to determine precisely which part of the evidence of Mr Barnes (the ATO officer) should be admitted and which should not. 67As a consequence of the indication from the Court, the Crown significantly reduced the evidence to be adduced. That evidence was adduced orally. No substantial objection was taken to the evidence of Mr Barnes, once confined. 68During the course of the criminal trial objection was also taken, at least initially, to the proposal by the Crown in the trial to tender and rely upon the Amended Tax Assessments. A discussion occurred between Mr Pratten's counsel and the Court (see Transcript, 1273-1276 and 1519) and the Court directed the jury on the limited basis upon which it could use the Amended Tax Assessments. The Court issued written directions on what was described as "tax law" (Exhibit WD2). The Court gave directions to the effect that it was the jury's function to determine whether income, in the ordinary sense, was received and not declared by Mr Pratten; and the actual amount of income tax that would be payable is almost irrelevant. The Court then said: "You have received some evidence from the Australian Tax Office and in receiving it you received evidence of what they regarded as income tax that was owing on the money that they say is income in Mr Pratten's hands. Their view of the evidence is just that: it's their view of the income tax. But I should tell you that the Australian Taxation Office and the Tax Commissioner have powers that are relevant for their purposes and irrelevant for our purposes, and how they calculate it is in one sense just their opinion. So you will have to come to your own opinion as to whether income tax is payable, and whether income has been received, and, in that sense what is relevant about the tax department is they say some tax is payable and he hasn't paid all of his tax. That is relevant only because, were it otherwise, were the ATO of the view he owed no tax for those years, there could be no financial advantage." 69In other words, the Court admitted the tax assessments as evidence only of the fact that the Tax Commissioner held a view that tax was owed and therefore, there could be no suggestion that the Commonwealth considered that Mr Pratten did not owe them money. Were it otherwise (i.e. the Commonwealth, through the ATO, considered Mr Pratten owed them no money), there could be no criminal prosecution. 70Again, on the foregoing basis, no objection was taken to the admission into evidence of the Amended Tax Assessments. In other words, once the Amended Tax Assessments were confined, for the purposes of the jury's deliberations, to be opinions that amounts were owing and nothing more, no objection was taken to the admissibility of the Assessments. 71The only other procedural issue that needs to be outlined is the issue relating to income as it was explained to the jury during the course of the criminal trial and as the parties dealt with it. The assumption, during the course of the criminal trial, the transcript and exhibits in which are before the Court in these proceedings, as is a draft of the summing up, was that the Crown case was put on the basis that the jury would determine, after direction from the Court, whether income, in the ordinary sense, was earned by Mr Pratten, but not declared. 72In dealing with that issue, the Crown case was put on the basis that income, in the ordinary sense of the term, could be used, but any "statutory income", being receipts that were not ordinarily income but were defined as income for the purposes of the Income Tax Assessment Act, could not be so used. In other words, for the purposes of the criminal proceedings, the jury were directed that income in the ordinary sense was to be considered and nothing else. 73The Crown was not relying on any extension of the meaning of the term "income" for the purposes of the Income Tax Assessment Act (or any other purpose). In that sense, "statutory income" that was not ordinary income was not included and was not considered by the jury. Again, directions to that effect were not the subject of objection during the course of the criminal proceedings. 74Obviously, there were significantly more facts adduced during the course of the trial than are outlined above. The criminal proceedings were heard over approximately 13 weeks, including some hearings on the voir dire, but not including the addresses and summing up. However, the foregoing outline is sufficient for the purpose of understanding the case of Mr Pratten in these civil proceedings and sufficient to understand these reasons for judgment. Plaintiff's submissions 75The foregoing summary of fact and discussion on jurisdiction probably renders obvious the nature of the submissions made by Mr Pratten, or on his behalf. 76Mr Pratten submits that s 264 of the Income Tax Assessment Act is not available for the purposes of obtaining material seized under search warrant and that the service of the notice under s 264 was an improper exercise of the power conferred by the Income Tax Assessment Act. Further, the AFP was incapable of copying and disseminating to the ATO the material seized under search warrant, and did so in contravention of s 3F(5) (as it then existed), s 3ZV and s 70 of the Crimes Act 1914 (Cth) and s 60A of the Australian Federal Police Act 1979 (Cth) and Regulation 13C of the Australian Federal Police Regulations 1979 (Cth). 77As a consequence of the foregoing, the FCT/ATO, relying upon the documents obtained under the s 264 notice, was acting unlawfully in preparing and issuing the Amended Tax Assessments. The Amended Tax Assessments were issued on 4 August 2010 and 1 December 2010 respectively. As a consequence, the FCT took into account material which was irrelevant or which had been unlawfully obtained and, therefore, the Amended Tax Assessments are "invalid, void and of no effect". 78Mr Pratten also submits that, as a consequence of the foregoing, the Amended Tax Assessments and other documents prepared by the FCT were not issued in good faith: see Commissioner of Taxation of the Commonwealth of Australia v Futuris Corporation Limited [2008] HCA 32; (2008) 237 CLR 146 at [12]-[13]; Denlay v Federal Commissioner of Taxation [2011] FCA 1092; (2011) 83 ATR 858. 79Mr Pratten further submits that any reliance by this Court on the Amended Tax Assessments, or other material derived from the documents produced in accordance with the s 264 notice, would constitute an abuse of process, because such reliance would bring the administration of justice into disrepute. This submission relies on the comments of Mason CJ in Rogers v R [1994] HCA 42; (1994) 181 CLR 251 at 255 and 256 and Moti v The Queen [2011] HCA 50; (2011) 245 CLR 456 at [10]. 80Section 3F(5) of the Crimes Act was repealed in February 2010 but effective at the time of the execution of the search warrants and the seizure of the material. It was also effective at the time that the AFP purportedly complied with the notice under s 264 of the Income Tax Assessment Act. Section 3F(5) of the Crimes Act was in the following terms: "If things are seized under a warrant, the warrant authorises the executing officer to make the things available to officers of other agencies if it is necessary to do so for the purpose of investigating or prosecuting an offence to which the things relate." 81On its face, the foregoing provision limits the purpose for which an executing officer is able to make the things seized under a search warrant available to officers of other Commonwealth agencies. It would be outside the purposes conferred by the foregoing subsection, and improper, for documents seized pursuant to a warrant to be used for purposes other than those comprehended by the warrant: Williams v Keelty [2001] FCA 1301; (2001) 111 FCR 175 at [233], per Hely J; Australian Securities & Investments Commission v Marshall Bell Hawkins Limited [2003] FCA 833, per Merkel J; ASIC v Rich [2005] NSWSC 62; (2005) 188 FLR 416 at [186] and [265], per Austin J. 82The difficulty with the foregoing is that it deals with conduct that is otherwise unauthorised or not required. In this case the ATO issued a notice under s 264 of the Income Tax Assessment Act. 83It is necessary to set out the provisions of s 263 and s 264 of the Income Tax Assessment Act. "263 Access to books etc. (1) The Commissioner, or any officer authorized by the Commissioner in that behalf, shall at all times have full and free access to all buildings, places, books, documents and other papers for any of the purposes of this Act, and for that purpose may make extracts from or copies of any such books, documents or papers. (2) An officer is not entitled to enter or remain on or in any building or place under this section if, on being requested by the occupier of the building or place for proof of authority, the officer does not produce an authority in writing signed by the Commissioner stating that the officer is authorised to exercise powers under this section. (3) The occupier of a building or place entered or proposed to be entered by the Commissioner, or by an officer, under subsection (1) shall provide the Commissioner or the officer with all reasonable facilities and assistance for the effective exercise of powers under this section. Penalty: 30 penalty units. Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit. 264 Commissioner may require information and evidence (1) The Commissioner may by notice in writing require any person, whether a taxpayer or not, including any officer employed in or in connexion with any department of a Government or by any public authority: (a) to furnish the Commissioner with such information as the Commissioner may require; and (b) to attend and give evidence before the Commissioner or before any officer authorized by the Commissioner in that behalf concerning the person's or any other person's income or assessment, and may require the person to produce all books, documents and other papers whatever in the person's custody or under the person's control relating thereto. (2) The Commissioner may require the information or evidence to be given on oath or affirmation and either verbally or in writing, and for that purpose the Commissioner or the officers so authorized by the Commissioner may administer an oath or affirmation. (3) The regulations may prescribe scales of expenses to be allowed to persons required under this section to attend." 84The provisions of s 264 make clear that the person upon whom a notice to provide information is served need not be a taxpayer and may include an officer of the Commonwealth employed in connection with any department of the Commonwealth or State Government. Further, s 263 of the Income Tax Assessment Act provides the FCT or officers of the ATO (authorised for that purpose) full and free access to all buildings, places, books and documents and may make copies of any books or documents. 85Thus, the FCT and/or ATO do not rely on some general ability to obtain copies of documents seized under warrant, but rely on a specific authority to serve any person (including government officers) with a notice to provide information in their possession. 86There are some tensions between the provisions of s 264 and the provisions of s 3F(5) of the Crimes Act. That tension may be overcome by construing the provisions of s 3F(5) of the Crimes Act in a manner which treated the provisions as one (and in the absence of any other the only one) basis upon which copies of documents can be provided by the executing officer. The provisions of s 264 of the Income Tax Assessment Act, and compliance with a notice under s 264, give an additional and supplementary power or requirement. 87The provisions of s 264 of the Income Tax Assessment Act should be compared with the provisions of s 77C of the Bankruptcy Act 1966 (Cth), which is in the following terms: "77C Power of Official Receiver to obtain information and evidence (1) The Official Receiver may, by written notice given to a person, require the person to do one or both of the following: (a) give the Official Receiver information the Official Receiver requires for the purposes of the performance of the functions of the Official Receiver or a trustee under this Act; (b) attend before the Official Receiver, or an officer authorised in writing by the Official Receiver to exercise powers under this paragraph, and do one or both of the following: (i) give evidence relating to any matters connected with the performance of the functions of the Official Receiver or a trustee under this Act; (ii) produce all books in the person's possession relating to any matters connected with the performance of the functions of the Official Receiver or a trustee under this Act. It does not matter whether or not the person is a bankrupt or is employed in or in connection with a Department, or an authority, of the Commonwealth or of a State or Territory. (2) The Official Receiver or authorised officer may require the information or evidence to be given on oath, and either orally or in writing, and for that purpose may administer an oath. (3) Notes taken down and signed by a person who attends before the Official Receiver or an authorised officer under paragraph (1)(b), and the transcript of the evidence given by the person at the attendance: (a) may be used in evidence in any proceeding under this Act whether or not the person is a party to the proceeding; and (b) may be inspected: (i) by the person, without fee; and (ii) if the notes and evidence relate to matters concerning the bankruptcy of the person or of another person--by the trustee and a person who states in writing that he or she is a creditor, without fee; and (iii) by any other person on payment of the fee determined by the Minister by legislative instrument." 88The foregoing provisions were described by Ryan J in Bond v Tuohy [1995] FCA 1085; (1995) 56 FCR 92 as language that "closely parallels that of s 264" of the Income Tax Assessment Act. With respect to Ryan J, I agree with that comment. 89In Bond v Tuohy, supra, Ryan J was dealing with a situation where the Official Receiver served notices under s 77C of the Bankruptcy Act on the AFP and the DPP for documents seized pursuant to search warrants. Leaving aside issues of privilege, which are not raised in these proceedings, nor in the criminal trial relating to Mr Pratten, Ryan J held that there was no implied limitation in s 77C that documents obtained by some coercive power are not required to be produced pursuant to a notice issued under the section. 90It is difficult to escape the analogy with s 264 of the Income Tax Assessment Act and, applying the same logic and construction as Ryan J, s 264 of the Income Tax Assessment Act could be used to obtain from the AFP documents seized under warrant. 91The difficulty with the foregoing is the effect on fundamental common law rights: see Coco v R [1994] HCA 15; (1994) 179 CLR 427; Electrolux Home Products Pty Limited v The Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309. Nevertheless it is difficult to imagine how service of a s 264 notice on the AFP for documents seized from a person could, subject to the issue of privilege, have a deleterious effect on the rights of the taxpayer (in this case Mr Pratten) in circumstances where, had the documents not been seized by the AFP, the notice could have been served on the taxpayer and the taxpayer would have been required to provide the documents to the ATO. 92The second aspect of the submissions of Mr Pratten deals with the decision of the DPP to prosecute. First, Mr Pratten submits that the decision to prosecute is justiciable and a court, assuming jurisdiction has been conferred on it, is capable of reviewing the decision of a prosecutor to commence proceedings. Mr Pratten relies upon a number of cases summarised most recently in Likiardopoulos v The Queen [2012] HCA 37; (2012) 86 ALJR 1168. 93Following a number of judgments, in both the immigration and industrial area, it would be difficult to imagine that the decision of any Commonwealth officer could not be the subject of proceedings in the High Court (and to the extent conferred by statute in other courts) for mandamus and prohibition (leaving aside a Governor or Governor-General, if they be Commonwealth officers), given the jurisdiction conferred by the provisions of s 75(v) of the Constitution: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 at [98], per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; R v Coldham; Ex parte Australian Workers' Union [1983] HCA 35; (1983) 153 CLR 415 at 418 per Mason ACJ and Brennan J; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co [1910] HCA 33; (1910) 11 CLR 1 at 83; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Brisbane Tramways Company Limited [1914] HCA 15; (1914) 18 CLR 54 at 63, per Griffiths CJ, at 68, per Barton J, at 83, per Gavan Duffy and Rich JJ and at 86, per Powers J. 94The foregoing comment assumes that a basis for the issuing of the writ is made out. There are restrictions on the circumstances that would give rise to a court, assuming jurisdiction, issuing mandamus or prohibition in relation to certain acts. 95Nevertheless, having asserted that the decision to prosecute is justiciable and having put submissions in support of that proposition, Mr Pratten submits that the decision to prosecute, having been heavily influenced by the view of officers of the ATO, which views relied upon unlawful information, took into account irrelevant material. 96Mr Pratten submits, supported by evidence to which reference was made in the submission, that the case officer at AFP was the person who made the decision to charge Mr Pratten (Transcript, 1358, 1378 and 1200) and so doing relied upon the Position Paper prepared by the FCT (Transcript, 1366) and did not investigate "alternative explanations of the taxation liabilities which were canvassed in the Position Paper" (Transcript, 1378). 97As a consequence of the foregoing, it is submitted that the decision to prosecute was influenced by unlawful conduct by the ATO, or influenced by tainted ATO views, and, therefore, was not in good faith, was founded upon illegality and was invalid. 98Mr Pratten further submits that the power to stay (I note that a stay is not sought in the summons) is not confined to actions pre-verdict. The submissions assert that there is no merger of the decision to prosecute and conviction, such that the decision to prosecute is no longer able to be attacked and is subject to orders in proceedings conferred on the Court by s 39B. The submissions on behalf of Mr Pratten rely upon Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, Moti v The Queen, supra, and International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 to submit that the basis for such an order is not only unfairness but the risk that the administration of justice might be brought into disrepute. 99Further, the submissions assert that a writ could issue after verdict, and would have some utility, because such an order would prevent enforcement: R v Hibble; Ex parte The Broken Hill Proprietary Company Limited [1920] HCA 83; (1920) 28 CLR 456 at 463. The submissions argue, by analogy, that there is, therefore, something left to prohibit and prohibition is still available. In relation to the second aspect, the submission of Mr Pratten further states that the proceedings have been taken at "a relevantly early stage". 100Next, Mr Pratten submits that there are complex questions, important to the outcome and important to the sentencing process, that are yet to be determined including the extent to which allegedly undisclosed income was not ordinary income, the amount of the financial advantage and, possibly, the level of deductions available (which may be a subset of the foregoing). Mr Pratten submits that for the Court to "continue to rely upon material that ought to have been excluded at trial, or to continue to sentence when the prosecutorial decision is tainted is to perpetuate error". 101One of the difficulties associated with the foregoing submission is that the material that is now said should have been excluded was not the subject of objection during the trial. If counsel should have objected, but did not, and the admission of the objectionable material led to a miscarriage of justice, that may be a basis for a ground of appeal, but otherwise it is material admitted without objection. 102Further, Mr Pratten submits that if the evidence of certain witnesses and the documents provided by the ATO, including the Amended Tax Assessments, are excluded on the grounds of their illegitimacy then "the prosecution can no longer succeed" and the DPP "should enter a nolle prosequi". If it does not do so, the continuation of the proceedings is oppressive and vexatious and an abuse of process: Ridgeway v R [1995] HCA 66; (1995) 184 CLR 19 at 41. 103Penultimately, the plaintiff, Mr Pratten, analyses the appeal mechanism and onus provisions in the Income Tax Assessment Act relating to reviews and appeals against an assessment that had been issued and states, correctly, that the taxpayer bears the onus in such proceedings to establish the true position. The submissions then assert that the Crown, "by defining the financial advantage by reference to a taxation assessment, has effectively shifted the burden of proof" to Mr Pratten on the sentencing proceedings. 104The submissions further assert that if findings are made "on sentence" they may be binding on the Administrative Appeals Tribunal (hereinafter, "AAT") as to taxable income and tax payable on that income and, as a consequence, one of two protections has been breached, namely, either Mr Pratten's right to challenge the tax under the appeal proceedings in the Income Tax Assessment Act or his right to silence. 105The foregoing submission assumes significant facts, which, on the evidence, and in relation to the conduct of the appeal proceedings, are not borne out. Firstly, it assumes that the assessment by the FCT and/or ATO is accepted by the Court as something other than an opinion that some money is owed. Secondly, it assumes the AAT would be bound by the findings made by the Court on sentence. I do not understand how that would occur. The parties in these proceedings are different from who would be before the AAT and the issues are different. 106The jury (and the Court on sentence) is concerned with dishonest deception of the Commonwealth for a financial advantage. The Crown has put its case in a manner that is confined to asserting ordinary income has not been declared and should have been declared. Ordinary income for that purpose does not include any statutory extension of income or the statutory treatment of other receipts in a manner that is different from its "ordinary meaning". 107Further, the Crown's case asserts that Mr Pratten knew that the amounts were income and knew that they should have been declared in his income tax return. That is an essential element (leaving aside recklessness for some purposes) in the Crown case. It is not an issue, as I understand it, in any review of the assessment for the purposes of the Income Tax Assessment Act. 108Further, income will be treated (or could be treated) very differently in any tax proceedings than it would be treated under the confined manner in which the Commonwealth has put its case in these proceedings. 109To take one stark example: the Crown case before the jury depended upon monies received from Vanuatu, from accounts held by International Finance Trust Company (IFTCO) and Vanuatu International Trust Company (VITCO), being monies of Commercial Pacific Insurance Limited (hereinafter, "CPI"), paid to Mr Pratten for services rendered. The onus to prove that assertion rested on the Crown. 110In proceedings on review of the assessment under Part IVC of the Income Tax Assessment Act, no such onus is borne by the ATO and it would be unnecessary to prove that the monies were paid by CPI to Mr Pratten (or to his benefit) for services rendered, and "income" could include distributions of trust, certain internal loans and other matters treated by the Income Tax Assessment Act as income, but not included in any case for the DPP in these charges. 111It seems that the submission in relation to the onus of proof depends upon a situation where the Court accepted the Amended Tax Assessments as correctly stating the financial advantages for the purposes of the criminal proceedings. That proposition is inconsistent with the way in which the Crown put its case in the prosecution, inconsistent with the directions to the jury and inconsistent with the decisions of the Court that gave rise to an acceptance by counsel, then appearing for Mr Pratten, that no objection would be taken to the evidence. 112Lastly, Mr Pratten argues that the charges (each of them) are duplicitous. The submission depends, as I understand it, on the proposition that in respect to each year (and therefore each charge) the income that the Crown alleges was not declared, but should have been, fell into different categories. As a consequence, Mr Pratten submits that the mental element in relation to each charge is different depending upon the items of income that were not declared and that, therefore, each charge is duplicitous. 113Much authority is relied upon as to the attitude of the Court to duplicitous charges. Very little submission is put on whether the charges are duplicitous. There is but one charge in relation to each year. Each charge depends upon the non-declaration of income and related to one act, being the filing of an income tax return, in circumstances where Mr Pratten knew that the income tax return did not correctly state what he understood to be income (and which was in law income) thereby dishonestly deceiving the Commonwealth to obtain a financial advantage. 114The fact that the income that was not declared falls into a number of categories does not detract from the fact that it was one act that gave rise to the criminal conduct, which act was known to the defendant and is disclosed in the charge. The criminal act was the filing, knowingly, of an incorrect and understated income tax return, by which dishonesty Mr Pratten deceived the Commonwealth and obtained a financial advantage. 115While I have dealt with each of the major aspects of the submissions, in summary form, above, there are further aspects to each of the submissions that have not been dealt with. Two of them need to be summarised. First, Mr Pratten submits that the provisions of s 3F(5) of the Crimes Act have been contravened in another respect unrelated to the provision to the ATO of the material it sought. 116The warrant under which the AFP seized documents and material sets out a number of charges, none of which are the charges ultimately preferred in the indictment. Further the warrants were issued on 2 December 2008 and executed shortly thereafter and the material seized was used in relation to the prosecution of offences that occurred after the issuing and execution of the search warrants. 117Mr Pratten asserts that a warrant cannot be issued in respect of an offence which may be committed at some future time: R v Tang [2007] SADC 74 at [21] and documents seized for one purpose under a warrant cannot be held pending the commission of some future offence: ibid. 118As a consequence, Mr Pratten submits that once the AFP had formed the view that the offences related to the years of income ending 30 June 2006, 2007 and 2008 would not be maintained, the retention of the documents seized was unlawful and they could not be used for the purposes of other charges. Particularly they could not be used for the purposes of counts 4, 5, 6 and 7 on the indictment, which allege offences after the dates upon which the documents were seized. 119It is not absolutely clear where Mr Pratten's seeks to take that submission but it seems it is used for the purpose of challenging the Amended Tax Assessments and for no other purpose. 120The second aspect of the additional matters to which mention should be made is that there is a submission that the Court does not have jurisdiction to sentence because the charges in the indictment are duplicitous and were formulated in reliance upon material which was unlawfully obtained. As a consequence, the proceedings are "fundamentally flawed" and the Court (presumably in the criminal proceedings) cannot proceed to sentence. Consideration 121The Court has already dealt, in the course of describing the submissions of Mr Pratten, with some of those submissions. Even some of those matters may require some further explanation. 122Firstly, I deal with the "lawfulness" of the Amended Tax Assessments. This is the basis upon which Mr Pratten seeks the issue of declarations and certiorari against the FCT and/or the ATO preventing them from relying on the documents produced by the AFP and declaring void the Amended Tax Assessments. 123It may be within jurisdiction (and I would assume so until the contrary is argued) to determine the validity of the Amended Tax Assessments if it were relevant to an issue otherwise within the jurisdiction of the Court. For example, were this issue to have been raised at the time that the documents were being admitted into evidence and the Court was required to determine whether there was a valid assessment issued in order to determine the admissibility of the Amended Tax Assessments then validity may be a matter within the jurisdiction of the Court. 124However, even if such a determination were within jurisdiction, it would be a determination confined to the question of validity only for the purpose of determining the admissibility of the documents. As a consequence, even in those circumstances, no declaration of invalidity or certiorari quashing the Amended Tax Assessments would issue from the Court. 125The foregoing circumstances are not the basis upon which Mr Pratten submits that the matters are within the jurisdiction of the Court. Rather, Mr Pratten seeks, by collateral challenge, independently of the criminal trial, to have the Court issue orders the effect of which would be to invalidate the Amended Tax Assessments. 126As earlier stated, the Amended Tax Assessments were issued by the ATO and were not a decision to prosecute or a related criminal justice process decision as defined in s 39B(3) of the Judiciary Act. The circumstance that the Amended Tax Assessments were tendered in evidence in a criminal trial does not convert the decision to issue the assessment into one which becomes a related criminal justice process decision. In any event, the decision to tender the assessments was not made by the ATO or the FCT, but by counsel, the Crown, instructed by the DPP. 127To the extent that the matter is within jurisdiction, and the foregoing is incorrect, for the reasons outlined at paragraphs [80] - [91], Mr Pratten has failed to convince the Court that the provision of the material was unlawful. 128Further, even if the provision of the material were unlawful, there is a fundamental aspect omitted by Mr Pratten from the analysis. Assuming, contrary to the foregoing findings, that the Court has jurisdiction, and that the provision of the material by the AFP to the ATO was unlawful, Mr Pratten would need to satisfy the Court that the reliance upon material, unlawfully obtained, vitiates the issuing of an income tax assessment by the ATO. This is particularly so, in circumstances such as the present, where the ATO did not understand (or there is no evidence that it understood) that the material had been unlawfully obtained. 129According to the Income Tax Assessment Act, the ATO is entitled to rely upon any material in its possession: s 166 of the Income Tax Assessment Act and Denlay v Federal Commissioner of Taxation [2011] FCAFC 63; (2011) 193 FCR 412 at [55] and [81]. There is no exception for material that was obtained unlawfully. 130Even if all of the foregoing bases for refusing relief were incorrect, I would consider that there were adequate discretionary reasons for not exercising the jurisdiction, if it were available. Those discretionary factors will be dealt with later in these reasons for judgment. 131The next matter with which it is necessary to deal is the effect of compliance with the s 264 notice by the AFP and the "validity" of the Amended Tax Assessments on the capacity of the DPP to rely upon the Amended Tax Assessments in the criminal proceedings. 132First, so much of the criminal proceedings as deals with guilt has been completed. In other words, prohibition issues only in circumstances where there is something left to be prohibited. 133As drafted, the prohibition would issue in relation to events that are completed, namely the trial. Of course, subject to any other issues, including discretion, prohibition could issue in relation to the reliance by the DPP on the Amended Tax Assessments in the sentence proceedings. Further, in determining whether the Court should rely upon the Amended Tax Assessments in the sentence proceedings, the Court could take into account the validity or otherwise, in its view, of the Amended Tax Assessments. 134However, these proceedings are a collateral attack on the criminal proceedings. The foregoing comment, relating to the capacity of the Court to take into account the validity or otherwise of the Amended Tax Assessments in determining whether reliance should be placed upon them in the sentencing proceedings, is a reference to the Court exercising the sentencing jurisdiction. 135Here the submissions of Mr Pratten seek to have the Court, exercising its civil jurisdiction, interfere collaterally with the Court exercising its criminal jurisdiction. There is but one Court. And the jurisdiction of the Court (whether criminal, civil or appellate) is the jurisdiction of the whole Court: Re Jarman; Ex parte Cook (No 1) [1997] HCA 13; (1997) 188 CLR 595; DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226. 136At common law, a jury verdict could be set aside historically by a writ of error or otherwise by an application in banc for error on the face of the record. The application in banc, to which reference has just been made, is the equivalent of what may still exist as a motion in arrest of judgment or verdict. Otherwise, civil courts (or any courts) would not entertain fresh actions to set aside judgment, except by a motion in arrest of judgment made prior to completion of the proceedings by the entry of sentence or judgment (in civil proceedings): CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 at 197, per McHugh, Gummow and Callinan JJ. 137To the extent that prohibition is sought, which would have a retrospective effect invalidating the trial by restraining or prohibiting the use by the DPP of the Amended Tax Assessments, without an order quashing the admission of the Amended Tax Assessments, such prohibition would not lie. 138As to that part of prayer 8 in the summons dealing with the sentence proceedings, assuming that it does relate to the sentence proceedings, it is a matter for the sentencing judge to determine whether reliance should be placed upon the Amended Tax Assessments and not a matter for collateral attack on the proceedings. As to which, see the comments referring to Plaintiff S3/2013 v Minister for Immigration and Citizenship [2013] HCA 22 later in these reasons. 139Lest the foregoing be taken as limiting the conclusions reached earlier, I should reiterate that following the judgment of Ryan J, to which reference has been made, I do not consider that the s 264 notice was invalid nor compliance with it illegal, notwithstanding the limitations otherwise placed upon the dissemination of material obtained coercively by warrant. 140Further, for the discretionary reasons to which the Court will come, an order in the nature of prohibition ought not issue restraining the Commonwealth in the manner sought by prayer 8. 141Prayer 9 in the summons seeks a writ of prohibition restraining the FCT from relying upon the Amended Tax Assessments in any proceedings (of which, no doubt, the criminal proceedings is one). How it can possibly be argued, in light of the grant of exclusive jurisdiction in s 39B, that the Court, as presently constituted, has jurisdiction to deal with anything other than a decision to prosecute (which this is not) or a related criminal justice process decision is not immediately apparent. Certainly no attempt has been made to justify any such order. 142Confining, as one must, the application to be one restraining the FCT from relying upon the Amended Tax Assessments in the criminal proceedings before the Court, the factual basis for such an order does not exist. The FCT (or the ATO) does not rely upon anything in the criminal proceedings. The FCT and officers of the ATO may have provided evidence upon which the DPP relies, but the ATO, officers of the ATO or the FCT do not, themselves, rely upon the Amended Tax Assessments. 143Even if they were to be relying upon them in the criminal proceedings, the provisions of the Income Tax Assessment Act require that the Court, as presently constituted, take the Amended Tax Assessments as valid, unless and until they are set aside. Such a qualification does not relate to the appeal process within the Income Tax Assessment Act itself. 144Again, for the discretionary reasons to be dealt with at the conclusion of this judgment, as well as the foregoing reasons, a writ of prohibition, or orders in the nature thereof, should not issue against the FCT in relation to its "reliance" upon the Amended Tax Assessments. 145The foregoing analysis, in relation to prayer 9 in the summons, applies with equal force to the order sought in prayer 11 and for the same reasons (including the discretionary aspects) such an order will not issue. 146I next deal with the prayer for relief contained in paragraph 12 of the summons. As earlier stated, the provision by the AFP to the ATO of the documents seized by the AFP under the purported exercise of its coercive powers was in response to a request by the ATO/FCT under s 264 of the Income Tax Assessment Act. The documents were provided. As already explained, in my view, the provision of the documents was not unlawful. As a consequence of that finding there is no basis upon which the Court would order the return of the documents. 147Even if the Court were wrong as to the lawfulness of the provision of the documents by the AFP to the ATO/FCT, further issues arise in relation to the ordering that the documents be returned. Firstly, as already explained, the ATO's issuing of the s 264 notice, and the AFP's compliance therewith, was not a decision to prosecute or a related criminal justice process decision. In other words, again as previously explained, the decision to issue the s 264 notice was a decision made for the purpose of the ATO and its duties under the Income Tax Assessment Act. It was not a decision in connection with the investigation, committal for trial or prosecution of Mr Pratten; the appointment of investigators or inspectors for the purpose of such an investigation; the issue of a warrant; requiring the production of documents, giving of information or the summing of persons as witnesses in the criminal prosecution; nor in connection with an appeal arising out of the prosecution. The fact the Amended Tax Assessments relied upon documents produced by the AFP and were ultimately tendered in evidence in the prosecution does not render the service of the s 264 notice or the compliance with that notice (whether lawful or otherwise) a related criminal justice process decision. 148Apart from the discretionary reasons to which the Court will come and which are relevant, once more, to this prayer or the issue of orders in the nature of mandamus, Mr Pratten would need to show a statutory duty to return the documents before mandamus would issue. Mr Pratten has not satisfied the Court that any such statutory duty exists. 149Next the Court will deal with the prayer for relief in paragraph 18 of the summons being a prayer for an order in the nature of mandamus requiring the DPP to withdraw the prosecution or enter a nolle prosequi. For relevant purposes no distinction is drawn between the withdrawal of the prosecution (whatever that may mean) or the entry of a nolle prosequi. Certainly, the submissions of Mr Pratten drew no such distinction. 150It is necessary to state some fundamental propositions. First, the jurisdiction of the Supreme Court of New South Wales is an inherent jurisdiction arising as it does, in its last emanation, from a Third Charter of Justice, proclaimed on 17 May 1824. (There were first and second Charters of Justice, which are currently irrelevant.) The jurisdiction of the Court to hear and determine federal criminal offences derives, predominantly, from the Judiciary Act. 151Subject to a limitation imposed by the legislation conferring jurisdiction, the jurisdiction to conduct a trial depends upon a valid indictment upon which the accused is arraigned and to which the accused pleads. (I leave aside, for present purposes, the placing of the accused in the charge of a jury.) 152Once an indictment is preferred, upon which the accused has been arraigned and to which the accused has pleaded, the effect, if any, of the decision of the DPP to initiate a prosecution has no more work to do. 153An entry of a nolle prosequi by the Crown can be effected only after the bill of indictment is signed and before judgment: R v Dunn (1843) 1 C & K 730; R v Colling (1847) 2 Cox 184; and see generally PJ Richardson Archbold, Criminal Pleading, Evidence and Practice (2010) Thomson Reuters at paragraph 1-251. It is entered after the indictment has been preferred: R v Wylie, Howe & McGuire (1919) 83 JP 295. See now, also, Beckett v New South Wales [2013] HCA 17 at [3], [44] and [45], per French CJ, Hayne, Crennan, Kiefel and Bell JJ; and at [61], per Gageler J. 154The fundamental difficulty faced by Mr Pratten in an attempt to seek mandamus, or orders in the nature of mandamus, requiring the DPP to withdraw the prosecution and enter a nolle prosequi, is that the withdrawal of a prosecution and the entering of a nolle prosequi is an exercise of discretion. The withdrawal or entry of nolle prosequi is without prejudice, ordinarily, to the conduct of further trials. It would be inconsistent with fundamental principle for such a withdrawal or the entry of a nolle prosequi to be able to be effected after verdict. 155The foregoing does not suggest that the Court, in its inherent jurisdiction, would not preclude or prohibit a subsequent trial where a verdict had been reached in an earlier trial (but not overturned), but points to a significant bar to the proposition that the nolle prosequi or a withdrawal of prosecution can be effected after a verdict has been reached. To use but one example, if an accused were charged with murder and a jury returned a verdict of not guilty of murder but guilty of manslaughter, the entry of a nolle prosequi would, absent the exercise of the Court's other powers, not prevent a subsequent trial again for murder. 156Moreover, as earlier explained, mandamus is an order issued by the Court to require an officer of the state to perform a duty required of the officer by statute. Where, as here, the withdrawal of the prosecution or the entry of a nolle prosequi is discretionary, mandamus will not issue, unless the statutory discretion is required to be performed on the satisfaction of certain conditions, which have been satisfied. While it is a given that the DPP has not exercised the power to withdraw or enter a nolle prosequi, Mr Pratten is required to establish that the DPP has a duty, being a public duty, that is required to be performed. 157Further, the jurisdiction of the Court to sentence arises from a valid indictment upon which the accused has been arraigned and a verdict of guilty of some offence that requires a sentence to be imposed. It is doubtful whether the DPP could do anything, after verdict (and again assuming the validity of arraignment and verdict), that would have the effect of excusing the Court from its duty to impose a sentence, following verdict. A decision of the DPP to present no evidence or no submissions on sentence may make the imposition of a sentence more difficult, but it would still not relieve the Court of its duty to impose a sentence (including, for that purpose, s 10 of the Crimes (Sentencing Procedure) Act or, relevantly for the current discussion, s 19B of the Code). 158The claim for orders in the nature of mandamus to require the DPP to enter a nolle prosequi, or withdraw the prosecution, is without merit. Apart from the foregoing difficulties associated with the issuing of such an order to require such conduct, the application rests upon the primary premise that the conduct of AFP and the ATO and the use of the Amended Tax Assessments vitiated the trial. 159There are, further, the discretionary reasons to which reference will shortly be made. 160I then turn to the "constitutional question", being a submission that the Court is not entitled to determine the meaning of the term "financial advantage" or whether a "financial advantage" has occurred, because it would constitute "an impermissible administrative act and be contrary to the doctrine of separation of powers". The submission has two aspects. The first is, as I understand it, that the determination of "financial advantage" is an administrative decision reposed in the ATO or FCT by the Income Tax Assessment Act. The second aspect is that the Court, by equating the "financial advantage" with the amount owing under the Amended Tax Assessments has either made the tax "an unconstitutional tax" by denying the right of appeal or challenge, or abrogated Mr Pratten's right to silence and altered the burden of proof in the criminal trial. 161The submission is untenable. Firstly it has no factual basis. The Court, during the course of the criminal proceedings, was at pains to ensure that the Amended Tax Assessments could be used only for the purpose of disclosing that the Commonwealth did not take the view that Mr Pratten did not owe the money arising from his conduct. In other words, the amount of the tax assessments that had issued was irrelevant. It was a matter for the Court (the jury properly instructed) to determine whether an amount was owing on the basis of the Crown case, not otherwise, and certainly not on the basis of the Amended Tax Assessments. 162Further the fact, if it were the fact, that the Court defined financial advantage by reference to the Amended Tax Assessments would not abrogate the right of Mr Pratten to challenge those assessments under the review provisions in the Income Tax Assessment Act. 163Moreover, even if the Court were to define financial advantage by reference to the Amended Tax Assessments, the burden of proof does not in any way shift (wholly or in part, whatever "part shift of burden" may mean). It would remain, even in those circumstances (which circumstances did not apply) for the Crown to prove that Mr Pratten gained a financial advantage. In other words, the Crown would have, in those circumstances, been required to prove, beyond a reasonable doubt, that the Amended Tax Assessments were accurate. 164But, I reiterate, the Amended Tax Assessments were never used to define the financial advantage. As the Court made clear to the jury (and was made clear during the course of the Crown case), that which formed part of the assessment was relevant to the criminal trial only to the extent that it showed that the Commonwealth had not come to a view that Mr Pratten did not owe any money. 165The Court, in the criminal proceedings, confined the jury's deliberations to income in the ordinary concept and whether Mr Pratten filed a tax return knowingly failing to declare income, in its ordinary concept, and did so dishonestly in order to deceive the Commonwealth and gain a financial advantage: apart from the previous references, see [114] of the draft summing up. 166The foregoing paragraph reference in the draft summing up also made clear that apart from the explanation proffered by Mr Pratten to the ATO as part of the review process, which explanation was tendered in the trial by Mr Pratten, the review and appeal stages internal to the ATO were separate and irrelevant to the function performed by the jury and the Court. 167Lastly, on this issue, although not the subject of separate submissions, it should be noted that the term "financial advantage" is a term derived from the Crimes Act and, in that context, has no place in the determination of administrative functions under the Income Tax Assessment Act. There is no basis for the proposition that the determination by the Court that there was a "financial advantage" was the exercise of administrative tasks, inconsistent with the exercise of judicial power. 168The next matter with which the Court will deal is the submission that the charges on the indictment are bad for duplicity. It should be noted, before embarking upon this discussion, that there does not seem to be any application in the summons, which raises such an issue. No prayer for relief seeks to quash the indictment. No ground upon which Mr Pratten relied in the summons deals with duplicity. Nevertheless, the Court will deal with the issue. 169Mr Pratten's submission, while dealing at some length with the power of the Court to ensure appropriate orders are made to overcome duplicity, and general notions of duplicity and its meaning, does not, other than by bold assertion, seek to establish the fundamental basis upon which it is said the charge is duplicitous. It is necessary to set out some trite propositions. 170First, an indictment may contain more than one charge. Each charge on an indictment must allege one offence. A charge (or count) on an indictment is not bad for duplicity, if the details set out in that charge or count allege only a single offence: Archbold, supra, at paragraph 1-137. 171Often, the difficulty with a charge and the issue of duplicity will depend upon the construction of the statute contravention of which is the offence. Therefore, for example, if an offence is created of "assault or resist a police officer in the execution of his duty" a charge that reflected the offence, in those terms, would be duplicitous because each of "assault" and "resist" are separate offences requiring separate elements. 172The charges in this case each refer to one offence only. It is dishonestly obtaining a financial advantage by deception. That offence is committed, on the Crown case accepted by the jury, by the filing of a tax return that knowingly and dishonestly deceived the Commonwealth and thereby obtained a financial advantage. The offence charged, and the Crown case in support of it, required only one act. That act was the filing of a knowingly incorrect (and understated) income tax return. The mental element for the obtaining of the financial advantage remained the same. 173It mattered not whether Mr Pratten knew that each item of income that formed the basis of the Crown case ought to have been declared as income. If, on the Crown case, Mr Pratten did not know that a particular item was income and should have been declared in his income tax return then, in respect to that item, Mr Pratten could not be found guilty. 174Duplicity has not been established and relief on the basis of duplicity (whatever relief that may be) is denied. As a consequence of the foregoing, there is no duplicity in any of the charges on the indictment and this ground of attack, to the extent that it is raised by the summons or otherwise, must fail. 175Lastly I deal with the issues raised in the relief sought in paragraphs 10, 15, 16 and 17 of the summons. I have, in relation to other prayers for relief, already commented on the submission that the s 264 notice was unlawful. I have commented on the consequential issue that the provision by the AFP to the FCT of the documents was also unlawful and, arising from that, the appropriateness or lawfulness of the DPP relying upon the Amended Tax Assessments in the criminal prosecution. 176The submissions in support of the orders sought in paragraphs 10, 15, 16 and 17 relate to the alleged unlawfulness of the provision of the documents by the AFP, the consequential unlawfulness in the ATO relying upon the documents and the unlawfulness, unfairness or inappropriateness of the DPP relying upon the Amended Tax Assessments in the prosecution. The submission forms the basis for orders in the nature of prohibition restraining the DPP from relying upon documents obtained from the FCT/ATO, which in turn relied upon documents produced by the AFP. 177It also forms the basis for a writ of prohibition restraining the DPP from advancing the Amended Tax Assessments "as a proxy" for the financial advantage at the trial or at sentencing. 178Thirdly, it forms the basis for an order in the nature of prohibition against the DPP restraining it from prosecuting further. 179Lastly it forms the basis for a declaration that the "decision to prosecute was an abuse of process". 180As earlier stated, the decisions that are sought to be impugned are decisions which the Court accepts are either decisions to prosecute or related criminal justice process decisions amenable to writs of mandamus or prohibition pursuant to the jurisdiction conferred on the Supreme Court of New South Wales in relation to this matter by s 39B of the Judiciary Act. 181Such a statement relates only to the jurisdiction to issue orders, not to whether a proper basis has been made out for such orders. 182Essentially the submission relates to two different aspects, each of which in turn relates to the illegality or lack of good faith associated with the reliance upon the documents produced by the AFP to the ATO and the subsequent Amended Tax Assessments. 183Apart from the previously mentioned reasons why, in my view, the s 264 notice was lawful and the provision of the documents by the AFP to the ATO in compliance therewith was also lawful, it should be noted that the restrictions on the provision of material seized under warrant and contained in s 3F(5) of the Crimes Act allowed for an exception, at the time that the documents were provided to the ATO, in what was then the terms of s 3F(5) of the Crimes Act. That provision enabled the executing officer of a warrant to make that which was seized under the warrant available to officers of other agencies "if it is necessary to do so for the purpose of investigating or prosecuting an offence to which the things relate". 184No one has suggested, given the lack of familiarity of the officers of the AFP with the Income Tax Assessment Act and the requirements to declare income, that consultation and information from the ATO was not "necessary ... for the purpose of investigating or prosecuting" the offences. In other words, even the provisions of s 3F of the Crimes Act, as they existed at the time that the information was provided by the AFP to the ATO, allowed for the documents to be provided for the purpose of the investigation or prosecution of the offence. 185The difficulty with such an analysis is that the ATO used the documents for purposes which only peripherally facilitated the investigation or prosecution of the offence. In other words, the documents provided by the AFP to the ATO were used for a number of purposes. 186These purposes were: first, the ATO officers assisted the AFP in the investigation and prosecution of the offence; secondly, the ATO officers issued Amended Tax Assessments utilising the documents obtained from the AFP; and thirdly, those Amended Tax Assessments were utilised as evidence in the prosecution of the offences with which Mr Pratten was charged, albeit for a very limited purpose. 187While the ATO may have used the documents impermissibly (assuming everything else the Court has decided were incorrect), nevertheless the AFP were authorised to provide the documents to the ATO to the extent they were satisfied that it was necessary so to do for the purpose of investigating or prosecuting the offence. Plainly, they were so satisfied. 188However, the provision of the material was done in compliance with the notice under s 264 of the Income Tax Assessment Act and not, on its face, for the purpose described in s 3F(5) of the Crimes Act, as it then was. 189Further, assuming, contrary to the foregoing, that the FCT/ATO possessed the documents "unlawfully", the submissions on behalf of Mr Pratten do not deal with the effect, if any, of that "unlawful possession" on the validity of the tax assessment. The submissions made on behalf of Mr Pratten assume, once the Amended Tax Assessments relied upon material obtained "unlawfully", that the Amended Tax Assessments are invalid. The underlying assumption in that proposition is that the FCT/ATO is not entitled to rely upon material obtained unlawfully. I leave aside issues associated with mala fides, as there is no attempt to argue mala fides in these proceedings. 190However, s 166 of the Income Tax Assessment Act imposes a duty on the FCT to issue an assessment of the amount of tax payable on the taxable income of any taxpayer from "the returns and from any other information in the [FCT's] possession". 191There is no allegation, nor could there be on the evidence before the Court, that the powers exercised either by the ATO or by the AFP have been exercised corruptly or with deliberate disregard to the scope of those powers: Commissioner of Taxation of the Commonwealth of Australia v Futuris Corporation Limited [2008] HCA 32; (2008) 237 CLR 146, per Gummow, Hayne, Heydon and Crennan JJ at [60]. There is no suggestion that the ATO/FCT knew they had no power to issue a notice under s 264 in relation to these documents. 192Secondly, there is no suggestion that the AFP knew that it did not have the power to disseminate the material to the ATO. The foregoing assumes that the earlier statements of the Court that the power existed and there was nothing unlawful in the dissemination of material to the ATO are incorrect. 193Mr Pratten submits that the facts giving rise to the unlawful conduct were known to each of the ATO and AFP and therefore there was conduct other than in good faith. In Denlay v Federal Commissioner of Taxation [2011] FCAFC 63; (2011) 193 FCR 412, the Full Court of the Federal Court of Australia (Keane CJ, Dowsett and Reeves JJ) referred to the proper interpretation of s 166 of the Income Tax Assessment Act and said, at [81]: "[81] We are unable to interpret s 166 of the ITAA 1936 in the way urged by the taxpayers. Section 166 imposes a duty upon the Commissioner. The interpretation of s 166 urged by the taxpayers would limit the performance of that duty to cases where the Commissioner is able to satisfy himself that his officers had not infringed any law in the gathering of the available information. It would be a remarkable state of affairs if the Commissioner were entitled, and indeed obliged, to refrain from doing what is expressed to be his duty by the terms of s 166 of the ITAA 1936 by reason of a suspicion on his part, even a reasonable suspicion, that some illegality on the part of his officers may have occurred in the course of gathering the information. A clear expression of legislative intention so to qualify the duty imposed on the Commissioner would be required to relieve him of his duty under s 166. We are unable to see that such a limitation is consistent with the unqualified language in which the duty is cast upon the Commissioner and the high importance of making an assessment based on the information available to the Commissioner. The expense and inconvenience of casting such a burden on the Commissioner, and the difficulty of defining precisely the kinds of unlawful conduct which might preclude the Commissioner from doing the duty cast on him by the unqualified language of s 166, are further reasons why the interpretation propounded by the taxpayers should be rejected." 194Even if I were possessed of the authority to depart from the foregoing (see Farah Constructions Pty Limited v Say-Dee Pty Limited [2007] HCA 22; (2007) 230 CLR 89), I would not. It would strike me as extremely odd if the fact that documents or material (leave aside information) was given to the FCT unlawfully precluded the FCT from relying upon the material in the assessment of income tax. 195One has to think of only one example. Assume a company conducts an entertainment enterprise and, in the course of conducting that enterprise, has two sets of books, one accurate and one for the ATO. Assume further that one of the officers of the company (or an employee of the company) provides to the ATO a copy of the "accurate books". Is it seriously suggested that the FCT must ignore that material in determining the tax payable? See for example the circumstances described (albeit that this issue was not directly discussed) in Saffron v R (1988) 17 NSWLR 395. 196Assuming, against the foregoing, that the FCT/ATO were not able to utilise material obtained unlawfully, it seems to make little or no difference to the case at trial. The DPP relied upon the Amended Tax Assessments only to prove that the Commonwealth did not take the view that Mr Pratten owed nothing to it. That view was expressed, one way or another, orally. 197If the information were obtained unlawfully, then the matter would be required to be dealt with under s 138 of the Evidence Act 1995 (Cth). Nevertheless the material was adduced, ultimately, without objection. 198These proceedings are not concerned with the Amended Tax Assessments in so far as they impose a liability on Mr Pratten to pay tax. They are concerned only with miscarriages of justice that are said to have arisen in the course of the criminal trial and the "validity" of the Amended Tax Assessments arise only as a means of satisfying the Court that orders ought to be made the effect of which would be to undermine the validity of the trial and verdict. 199However, certiorari, prohibition and mandamus do not generally, or at all, go to a superior court: R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union (Australian Section) [1951] HCA 3; (1951) 82 CLR 208 at 241, per Latham CJ. Thus it has been necessary for Mr Pratten to seek to undermine the verdict otherwise than by a direct approach. This has been done a number of ways, most of which I have described above. 200One of the other means by which the verdict was attacked was, once more, to attack the use of the documents seized under warrant by alleging a breach of s 3ZV of the Crimes Act namely retaining or utilising the documents for a purpose other than that for which they were seized. However, there is no evidence to support the proposition that, at the time when either the charges that were ultimately preferred or the documents were provided to the ATO, the AFP officers were in a situation that required that the documents be returned to the owner thereof under s 3ZV of the Crimes Act. 201In short, I take the view that there has been no lack of good faith on the part of the officers of the ATO or of the AFP and certainly none by officers of the DPP such as to vitiate or render inappropriate the use of the Amended Tax Assessments in the proceedings or the continuation of those proceedings. Exercise of discretion 202It is now trite that the issue of constitutional writs described in s 75(v) of the Constitution, and jurisdiction for which is granted to this Court for decisions to prosecute or related criminal justice process decisions, is discretionary: Re Refugee Review Tribunal; Ex parte Aala, supra, at 89, 105-109, 136-137, 144; Re McBain, supra, at CLR 394, 410, 415-423, 454, 465-466. The same discretionary issues relate to declaratory relief, if such declaratory relief were within jurisdiction. 203I have previously mentioned the reluctance of courts to interfere collaterally with criminal proceedings: see Chief Executive Officer of Customs v Jiang [2001] FCA 145; (2001) 111 FCR 395. 204While there has been, in the past, some controversy as to the exercise of the discretion to refuse certiorari, mandamus or prohibition, that controversy has been dispelled. Nevertheless, where there is a clear jurisdictional defect and no alternative remedy, there would need to be strong reasons to refuse an order made in excess or want of jurisdiction: see Solution 6 Holdings Limited v Industrial Relations Commission of New South Wales [2004] NSWCA 200; (2004) 60 NSWLR 558 at 593-595. 205In the case of criminal proceedings, the reluctance to interfere by way of collateral proceedings is entrenched and relates to the necessary delay created by such a process and the interference with the finality of a jury verdict: see Jiang, supra; Clarkson v Director of Public Prosecutions [1990] VR 745. 206The reluctance to interfere with the criminal processes is augmented where there is an appropriate remedy that provides at least as much relief as that which is sought in the proceedings. 207The verdict of guilty that was delivered in the criminal proceedings relating to Mr Pratten gives rise to the necessity of the Court to sentence. Some of the issues (although not many) raised in these proceedings could be or were raised in the proceedings for sentence. Once the sentence has been passed and conviction entered, Mr Pratten has a right of appeal on any ground which involves a question of law alone and a right to seek leave of the Court of Criminal Appeal for an appeal against conviction on any ground which involves a question of fact, a question of mixed law and fact or any other ground which appears sufficient to the Court of Criminal Appeal or against sentence. 208Were an appeal agitated against conviction and/or sentence, that appeal against conviction must be allowed, if the Court of Criminal Appeal were of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the Court of trial should be set aside on the ground of a wrong decision on a question of law or that, on any other ground whatsoever, there was a miscarriage of justice. In other words, all points raised in these proceedings could be the subject of grounds of appeal and, if successful, would allow the Court of Criminal Appeal to quash the conviction. 209Further, a miscarriage of justice ground includes a miscarriage of justice occasioned by the incompetence of counsel (if that be the case), allowing the agitation of matters that may not have been agitated at trial in those circumstances. Otherwise, the parties are bound by their conduct at trial. 210In circumstances where s 5 and s 6 of the Criminal Appeal Act provide a full remedy and a remedy that is more substantial and better fitted to the issues raised, as well as a number of other issues that may not have been raised in these collateral proceedings, the discretion to refuse relief in these proceedings becomes overwhelming. 211Whether, in such an appeal, leave is granted to depart from Rule 4 of the Criminal Appeal Rules in relation to objections is not relevant to whether the discretion should be exercised in the manner here outlined. The discretion to depart from the conduct of counsel is a discretion which is exercised on the basis of whether the conduct of counsel has resulted in a miscarriage of justice: see R v Birks (1990) 19 NSWLR 677; Ignjatic v R (1993) 68 A Crim R 333. 212Nevertheless, the discretion available and the power and jurisdiction available to the Court of Criminal Appeal on appeal under the Criminal Appeal Act is significantly broader than the jurisdiction and powers which Mr Pratten seeks the Court to exercise in this application. Further, it does not suffer from the issues associated with a collateral attack on the criminal process, nor issues associated with whether the error arises on the face of the record or otherwise. 213In my view, even if the Court, as presently constituted, were entirely incorrect in the analysis of the jurisdiction and/or jurisdictional errors associated with the issues raised by Mr Pratten in these proceedings, it is far better for those issues to be determined on appeal by the Court of Criminal Appeal than by collateral attack on the criminal procedure. For that reason, even if otherwise orders would be available, the Court declines to make the orders sought in the summons. 214It is therefore unnecessary to deal with issues of abuse of process being the collateral attack on concluded proceedings in which there is a full right of appeal. Nevertheless, the following is a timely reminder: "[9] In University of Wollongong v Metwally (No 2) the High Court unanimously stated: Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. [10] In D'Orta-Ekenaike v Victoria Legal Aid, the joint judgment of four members of the High Court described '[a] central and pervading tenet of the judicial system': 'controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances'. Their Honours continued: The tenet ... finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding. (footnotes omitted) ... [12] The same principle was, in substance, subsequently expressed by Lord Bingham of Cornhill in terms quoted with approval by French CJ in Aon Risk Services Australia Ltd v Australian National University. Lord Bingham of Cornhill said: The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. [13] The jurisdiction statutorily conferred on the Federal Magistrates Court by s 476 of the Migration Act to review a decision of the Refugee Review Tribunal is relevantly co-extensive with the jurisdiction of the High Court to review a decision of that Tribunal under s 75(v) of the Constitution. The exercise of statutorily conferred jurisdiction of that nature is an exercise of the judicial power of the Commonwealth to quell a controversy about existing legal rights and legal duties. To permit an unsuccessful applicant for review in the Federal Magistrates Court simply to start again in the original jurisdiction of the High Court would be inconsistent with the nature of the power already exercised by the Federal Magistrates Court. It would be subversive of the processes that exist for appeal under statute from that court to the Federal Court and ultimately, by special leave, to the High Court under s 73 of the Constitution." (Footnotes omitted.) (Plaintiff S3/2013 v Minister for Immigration and Citizenship [2013] HCA 22, per Gageler J.) Conclusion 215As is clear from the foregoing, the Court does not consider that it has jurisdiction to issue certiorari to quash the Amended Tax Assessments. Nor does it have jurisdiction to make declarations as to their invalidity. It could decide their invalidity in the course of determining whether to admit them or to rely upon them. That is not the context in which those issues are raised. 216Further, the Court does not consider that the issuing of the s 264 notice was unlawful or compliance with it was unlawful. Even if the issue of the s 264 notice were unlawful, that does not necessitate the finding that compliance with it was unlawful. In neither case is mala fides disclosed or evident. 217As a consequence and for the other reasons outlined above, I do not consider that the decision to prosecute is vitiated by error or is amenable to the writs sought in the summons. Further, I do not consider that any of the charges in the indictment are bad for duplicity nor any of the conduct of the ATO or DPP vitiated for illegality. 218The jurisdiction of the Court to sentence arises from a valid trial and a return of a guilty verdict. The Court needs no other jurisdiction. 219There is no undermining of s 80 of the Constitution or merging of administrative and judicial functions in determining a financial advantage and the factual basis for such an argument is lacking. 220Ordinarily, orders of a superior court of general inherent jurisdiction are not amenable to certiorari, mandamus or prohibition and the verdict of the jury in the criminal proceedings and the process of the criminal proceedings are effective until quashed by an order of the Court (or another court with jurisdiction to make such an order). As a consequence, the sentencing of Mr Pratten must proceed. 221As has been made clear, the orders sought should not be made because full remedies (and further and broader remedies) are available on appeal from the outcome of any criminal proceedings under the Criminal Appeal Act and, as an exercise of discretion, a collateral attack by way of civil remedy or writ, in those circumstances, ought not be allowed. 222The Court makes the following orders: (1)Summons dismissed; (2)Proceedings dismissed; (3)The plaintiff shall pay the defendants' costs of and incidental to the proceedings, as agreed or assessed; (4)Liberty is granted to the parties to apply to the Court, within seven days hereof, for a different or special order as to costs. Such application to be made in writing accompanied by submissions of no more than three (3) pages and, if made, the other parties may respond by submission of no more than three (3) pages within a further seven days. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 May 2013