R v Kinghorn

BATHURST CJ & PAYNE JA: The respondent, John Alan Kinghorn (the respondent) was charged on indictment dated 17 July 2018 with three offences, two of which were that, contrary to s 135.1(7) of the Criminal Code (Cth), he dishonestly represented to a public official that he did not control two companies incorporated in Jersey, namely Kalomo Corporation Ltd and Kalomo Pacific Leasing Ltd (collectively called Kalomo). The respondent had been served with a Court Attendance Notice in respect of those charges on 6 October 2017.

The Crown subsequently split the indictment into two indictments. On 8 October 2019 the respondent was arraigned by reference to the two dishonesty offences on an indictment dated 1 October 2019. The indictment relating to the third charge was discontinued.

Some 12 years prior to the laying of the charges, the respondent was examined by counsel engaged by the Australian Taxation Office (ATO) pursuant to the provisions of the then s 264 of the Income Tax Assessment Act 1936 (Cth) (ITAA 1936) (the s 264 examination). The examination covered, among other things, the respondent’s relationship with Kalomo. Particulars of the charge brought against him include making representations during the course of the s 264 examination concerning his involvement with Kalomo which were said to be false. The appellant proposes to tender portions of the transcript of the s 264 examination (the s 264 transcript) at the trial, solely for the purpose of proving that the representations were in fact made.

On 15 April 2019 the respondent filed a notice of motion seeking a stay of the proceedings. Prayer one sought a temporary stay pending disclosure of certain material including particulars of the dissemination of the s 264 transcript. Prayer two sought a permanent stay and prayer three sought, in the alternative, a temporary stay pending the appointment of a new prosecution team which had not listened to or read the transcript of the s 264 examination.

The prosecution of the charges has had a tortuous history. The respondent has claimed that the availability of the s 264 transcript to the investigating and prosecuting team responsible for the formulation of the charges resulted in a fundamental departure from the accusatorial nature of the criminal justice system such as to warrant the proceedings being permanently stayed or, at the very least, temporarily stayed until a new prosecution team replaced the persons who had access to the s 264 transcript: see X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 (“X7”); Do Young Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 (“Lee (2014)”).

One basis on which the stay was sought was that the decision of the majority of the Queensland Court of Appeal in R v Leach [2019] 1 Qd R 459; [2018] QCA 131 (“Leach”) demonstrated that it was inappropriate for the prosecution to have the s 264 transcript and that that of itself warranted a temporary stay pending the appointment of a new prosecution team. It will be necessary to deal with Leach in greater detail later in this judgment, but it should be noted for present purposes that in that case, prior to charges being laid, the appellant had been examined under the provisions of s 353-10 of Sch 1 to the Taxation Administration Act 1953 (Cth) (TAA), the successor provision to s 264 of the ITAA 1936. The appellant was charged subsequent to the examination with various dishonesty offences under the Criminal Code. The transcript of the examination was made available to the Commonwealth Director of Public Prosecutions (CDPP) as part of a brief of evidence and was used in formulating the charges and preparing the prosecution case. Part of the transcript was also tendered at the trial and relied on as lies evidencing consciousness of guilt.

The appellant’s conviction was quashed by the Queensland Court of Appeal, the majority of the Court (Sofronoff P and Philippides JA) concluding that the provision of the transcript to the CDPP and its subsequent use conflicted with the fundamental principle of the common law that the onus of proof rested on the prosecution, and with the companion principle, namely, that the prosecution cannot compel an accused to assist it.

Following the filing of the stay application, interlocutory proceedings were brought before Adamson J (the primary judge) concerning claims of privilege made in respect of documents subpoenaed by the applicant from the ATO, the Australian Federal Police (AFP) and the CDPP. Each of the parties sought leave to appeal from the orders made by her Honour in those proceedings: R v Kinghorn (No 4) [2019] NSWSC 1420; (2019) 348 FLR 281 (“Kinghorn (No 4)”). The appeals brought by the ATO, the AFP and the CDPP were allowed in part and the appeal by the respondent was dismissed: Director of Public Prosecutions (Cth) v Kinghorn; Kinghorn v Director of Public Prosecutions (Cth) (2020) 102 NSWLR 72; [2020] NSWCCA 48 (“Kinghorn (2020)”).

There are two matters which should be noted. The first is that Kinghorn (2020) proceeded on the assumption that the decision in Leach was correct, although its scope remained a matter for debate. The Court of Criminal Appeal recorded the position in the following terms (at [24]):

The second matter was that it was conceded by the CDPP that if the Leach point was decided adversely to it, then relief by way of temporary stay should be granted pending the appointment of a new prosecution team, and that if the prosecution was to continue, the CDPP would have to move to set the stay aside. The Court concluded in light of that concession that it was desirable to resolve the impasse over Leach as soon as possible and any debate about either the grant of a permanent stay or the lifting of a temporary stay, and that the granting of access to documents relevant to those matters would take place in a different context: Kinghorn (2020) at [182]-[183].

Following the delivery of judgment in Kinghorn (2020), the parties to the proceedings with some adjudication by the primary judge formulated three questions for her to answer. The questions and her Honour’s answers were as follows:

In reaching her conclusion as to the appropriate answers to the separate questions, the primary judge noted what she regarded as an express concession by the Crown that Leach was correctly decided. She made the following comments (R v Kinghorn (No 7) (2020) 103 NSWLR 63; [2020] NSWSC 1483 (“Kinghorn (No 7)”) at [85]):

The fact that such a concession was made also seems implicit in the formulation of the first question.

However, when the appeal was initially called on for hearing, senior counsel for the Crown stated that the only concession made was that the result in Leach was correct and the concession did not extend to conceding that the reasoning was correct or that this Court was bound to follow it. Senior counsel for the respondent disputed that this accurately stated the concession which was made and sought an adjournment which was granted to enable him to argue that if the legislation pursuant to which the transcripts were supplied to the CDPP and the AFP authorised such disclosure, as well as the use to which the transcript was to be put, the legislation to that extent was constitutionally invalid. The raising of that issue necessitated the giving of notice of the constitutional issue to the various Attorneys General for the Commonwealth, the States and the Territories pursuant to s 78B of the Judiciary Act 1903 (Cth). Notice was in fact given and the Attorneys General for the Commonwealth and New South Wales intervened in the appeal.

That gave rise to two difficulties. The first was that to the extent that the first question was based on an assumption or concession from which the Crown would be able to depart in the future, it was arguable the question was hypothetical and not one that the Court exercising federal jurisdiction should answer: Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334; [1999] HCA 9. Further, even if a problem of this nature did not arise, the question in those circumstances may have no utility.

However, as senior counsel for the respondent pointed out, the question was based on an agreed statement of facts which demonstrated beyond doubt that the s 264 transcript was given to the AFP and the CDPP and used by them in connection with the investigation of the alleged offences and the formulation of the charges. As he pointed out, if the disclosure or the use made of the s 264 transcript was not authorised, it would form the ground for an appeal against conviction. Thus, the question is not hypothetical. The fact that any conclusion may be based on a concession of law does not alter that fact. Any attempt to withdraw the concession would fall for consideration at the time an application for withdrawal is made.

The second question is whether the Crown was correct in stating that the concession in the Court below was limited to a concession that the conclusion in Leach was correct, but not the reasoning. As we have pointed out, that does not appear to be the way that it was viewed by the primary judge. However, senior counsel for the Crown pointed to the written submissions in the Court below. In those submissions the Crown accepted that the result in Leach was correct but submitted that the case could be distinguished and, “insofar as it may be regarded as containing authoritative statements of principle outside of its factual matrix, that such statements do not apply to the case against the Accused in these proceedings because of the nature of the charges he faces”. Importantly, the following submission was then made:

In these circumstances there seems to us to be sufficient uncertainty surrounding the extent of the concession to permit the Crown to argue that the reasoning which underpinned Leach should not be followed. The question is one of law and the adjournment of the proceedings gave those acting for the respondent sufficient opportunity to deal with it and to raise the constitutional issue.

The transcript of the s 264 examination and related material was disclosed to the AFP and the CDPP on a number of different occasions. Because the relevant legislation differed on the various dates the disclosures were made, it is convenient to summarise the position prior to considering that legislation.

The first disclosure (disclosure No 1) took place on 31 January 2007. On that date Mr Walton, an officer of the Criminal Investigation arm of the ATO, sent a minute requesting advice from the CDPP as to whether an investigation into the respondent was worth pursuing. It enclosed an electronic copy of the s 264 transcript.

The second disclosure (disclosure No 2) was a further disclosure by Mr Walton which took place on 15 October 2007. The disclosure was to the AFP as part of a formal referral for joint investigation into the respondent. It included references to the respondent’s answers at the s 264 examination but did not include the transcript.

On or about 22 January 2009 the ATO drafted a file note to the AFP summarising the contents of eight folders intended to be provided to the AFP (disclosure No 3). The documents included the Report of Counsel, the ATO’s Position Paper and the respondent’s answers. The Report of Counsel was a report by counsel who examined the respondent at the s 264 examination, which, according to the agreed statement of facts, recorded the following matters:

On 24 February 2010 the ATO provided electronic copies of the s 264 transcript to the AFP (disclosure No 4). This was the first full disclosure of the transcript to the AFP.

On 21 July 2010 the ATO provided further material to the AFP, including the Report of Counsel (disclosure No 5).

On 27 May 2015 an ATO officer disclosed to an AFP officer, Mr Andrew Hiscoe, documents including the s 264 transcript (disclosure No 6).

On or about 19 November 2015 the CDPP received a brief of evidence from Mr Hiscoe which included the s 264 transcript and the Report of Counsel (disclosure No 7). A further copy was provided to the CDPP on 17 March 2016 (disclosure No 8) and another on 13 December 2016 (disclosure No 9).

On 9 October 2017 the AFP sent further material to the CDPP, including the s 264 transcript (disclosure No 10). Further copies of the transcript and the Report of Counsel were provided by the ATO to the AFP on 6 November 2017 (disclosure No 11).

On 9 August 2018 the AFP served a full copy of the brief of evidence on the CDPP which included a further copy of the s 264 transcript (disclosure No 12).

On 21 August 2018 the ATO delivered to the CDPP a disc including copies of the s 264 transcript (disclosure No 13). A further copy of the transcript was supplied by the AFP to the CDPP on 6 August 2019 (disclosure No 14).

It should be noted that disclosures 10 to 14 were made after the respondent had been served with a Court Attendance Notice, while disclosures 12 to 14 took place after the respondent was initially arraigned. However, no separate argument was directed to this, presumably because it was apparent that all the documents of which complaint had been made had been disclosed to both the AFP and the CDPP well prior to the service of the Court Attendance Notice.

Section 264 of the ITAA 1936 was in the following terms at the time of the examination:

Section 264 formed part of a suite of information-gathering powers conferred on the Commissioner. They included the requirement in s 161 and s 162 of ITAA 1936 that taxpayers furnish annual returns and provide other information requested by the Commissioner. Section 263 empowered the Commissioner to enter premises and to make extracts from or copy books, documents or papers of a taxpayer. Section 8C of the TAA made it an offence to fail to comply with requests under a taxation law, whilst s 8D made failure to answer questions when attending before the Commissioner an offence.

Section 8K of the TAA, as it existed at the time of the s 264 examination, made it an offence to make a false or misleading statement to a taxation officer, punishable pursuant to s 8M by a fine not exceeding $2,000 for a first offence and not exceeding $4,000 for a second or subsequent offence.

Section 8N provided for the offence of recklessly making a false or misleading statement to a taxation officer punishable by a fine not exceeding $3,000 for a first offence or in certain circumstances, a fine not exceeding $5,000 and/or imprisonment for a period not exceeding 12 months.

Section 8ZA provided that a taxation offence that was punishable by a term of imprisonment not exceeding 12 months was punishable on summary conviction.

In Commissioner of Taxation v De Vonk (1995) 61 FCR 564; [1995] FCA 994 (“De Vonk”) the Full Court of the Federal Court of Australia held that the construction of s 264 of the ITAA 1936 combined with the terms of s 8C and s 8D of the TAA led to the conclusion that the privilege against self-incrimination had been abrogated in respect of s 264 examinations. That was not disputed on this appeal.

However, in De Vonk each of Foster J and Hill and Lindgren JJ concluded that s 264 of the ITAA 1936 and s 8C and s 8D of the TAA did not authorise compulsory examination when to do so might constitute a contempt of court or interference with the course of justice. These remarks were made in circumstances where the proposed examination was to take place after charges in respect of the subject matter of the proposed examination had been laid against the respondent. Justice Foster stated (at 568) that the investigative powers were given only for the purpose of obtaining information for the collection and protection of the revenue. His Honour stated that the use of those powers for the collateral purpose of obtaining evidence for use in a prosecution already launched would be an improper purpose and one which would vitiate the use of the power. His Honour went on to make the following remarks at 569:

In making these remarks Foster J placed particular reliance on what was said by Gibbs CJ and Deane J in Hammond v The Commonwealth (1982) 152 CLR 188; [1982] HCA 42 (“Hammond”). As the respondent in the present case placed considerable reliance on those remarks, it is convenient to set them out in full:

Justices Hill and Lindgren reached a similar conclusion: De Vonk at 588-589.

A critical issue in the proceedings is whether the ATO was empowered to disclose the information to the AFP and the CDPP. The primary judge concluded following Leach that the exceptions to the secrecy provisions in the ITAA 1936 and the TAA were not such as to permit the disclosure of the s 264 transcript to the AFP and the CDPP (save perhaps for use in summary proceedings under s 8K or s 8N of the TAA). Her Honour’s conclusion was summarised in the following paragraph of her judgment (Kinghorn (No 7) at [136]):

Assuming that the accusatorial principle (namely, that the onus of proof rests at all times on the prosecution) and the companion rule (that the prosecution cannot compel an accused to assist it) applies to disclosure before charge, it is well established that the principle and the rule can be abrogated by express words or necessary intendment: X7 at [86]-[94], [124]-[125] per Hayne and Bell JJ, [160] per Kiefel J; Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 (“Lee (2013)”) at [3], [29]-[30] per French CJ, [126] per Crennan J, [176] per Kiefel J (dissenting), [313]-[314] per Gageler and Keane JJ; Lee (2014) at [31], [46]. Quite apart from the question of whether the companion rule has any operation to a pre-charge examination and disclosure, it is necessary to consider whether the relevant legislation in force at the time the disclosures were made abrogated these principles.

The appellant relied on s 16(2A) of the ITAA 1936 in respect of the ATO’s entitlement to make these disclosures. For reasons which are not entirely clear, whilst reliance was initially placed on s 3E of the TAA, that reliance was withdrawn in respect of these disclosures. Nevertheless, s 3E formed part of the legislative context which existed at the relevant time, and the relationship between s 16(2A) and that section needs to be considered. Although s 3G of the TAA was in existence at the time of disclosure No 2, it did not have any application to the respondent at that time as his matter had not been endorsed as a Project Wickenby matter. His matter was endorsed as a Project Wickenby matter on 26 February 2008.

Section 16 of the ITAA 1936 in force at the time of the first two disclosures was in the following terms:

Section 3E of the TAA in force at the time provided as follows:

It should be noted that an offence against s 135.1 of the Criminal Code is one of the tax-related offences defined in subs (11) of s 3E.

It should also be noted that the balance of s 16 of the ITAA 1936 contained express powers of disclosure to the prosecuting authorities of information in respect of tax-related offences as defined in s 16(1). Thus, s 16(4)(k) permitted disclosure of information to a Royal Commission whilst s 16(4A)(ba) permitted the Royal Commission to disclose the information to the CDPP or a special prosecutor if the Commission was of the opinion the information related or may have related to investigation of a tax-related offence. Similarly, s 16(4A)(b) empowered the Royal Commission to disclose information to the Commonwealth Attorney-General if the Commission was of the opinion that the information indicated that a person may have committed an offence punishable by imprisonment for a period exceeding six months. The Attorney-General in turn was permitted by s 16(4E) to communicate the information to the Commissioner of the AFP, whilst s 16(4JA) permitted disclosure of such information received by the AFP to another person in connection with the prosecution for a tax-related offence.

The exception to the secrecy provision contained in s 16(2A) has been given a liberal construction.

In Canadian Pacific Tobacco Company Ltd v Stapleton (1952) 86 CLR 1; [1952] HCA 32 (“Stapleton”) Dixon CJ took an expansive approach in interpreting the scope of the exception to secrecy contained in s 16(2A). As his Honour said at 6:

The decision in Commissioner of Taxation v Nestle Australia Ltd (1986) 12 FCR 257 (Nestle) is to the same effect. After referring to the judgment of Dixon CJ in Stapleton, the Court (consisting of Bowen CJ, Lockhart and Sheppard JJ) said at 262:

The Court did not turn its mind to whether the “judicial process”, which it may form part of an officer’s duty to support, includes criminal prosecutions.

Yates v R (1991) 102 ALR 673 (“Yates”) involved a dissemination to the AFP and the CDPP of material for use in the prosecution of a contravention of s 178BA of the Crimes Act 1900 (NSW); namely, dishonestly obtaining a financial advantage for a company by providing certain goods at a price excluding the sales tax payable by the vendor of the goods which would have otherwise been added to the sale price. In that context Priestley JA, with whom Wood and Finlay JJ agreed, stated that the disclosure was in the performance of the duty of the tax officer within the meaning of s 10(2) of the Sales Tax Assessment Act (No 1) 1930 (Cth), which relevantly was in the same terms as s 16(2A) of the ITAA 1936. In rejecting a submission similar to that made in the present case, namely, that the performance of any duty in s 10(2) should be limited to the carrying out of that duty in connection with a prosecution under Pt III of the TAA, Priestley JA quoted the judgment in Nestle and made the following remarks (at 677-678):

Yates was not referred to by the primary judge, nor for that matter by the Queensland Court of Appeal in Leach. Nevertheless, it is a decision binding on this Court unless we are of the view that it is plainly wrong.

It may be arguable that the presence in s 16 of the express provisions authorising disclosure of information to prosecuting and investigating authorities tends to the conclusion that the general words in s 16(2A) do not permit disclosure to prosecuting authorities of material obtained in compulsory examinations apart from those which were expressly authorised. That is consistent with the view expressed by Sofronoff P in Leach in dealing with the then equivalent section to s 16(2A) in the TAA, s 355-50 Sch 1, which was inserted into that Act following the repeal of s 16. It is, however, inconsistent with Yates.

It should be added that in our opinion the insertion of s 3E into the TAA does not support the proposition that the power to make disclosures in s 16(2A) is limited in the manner suggested by the primary judge or the majority in Leach. Such a proposition was expressly rejected in Yates: see Yates at 676-677. The relationship between the two provisions was explained in Kinghorn (2020) in the following terms:

What was said in those paragraphs, particularly at [98], is consistent with Yates and inconsistent with the conclusion in Leach and that reached by the primary judge.

However, for the purpose of considering the separate question it is not necessary to finally determine whether disclosure Nos 1 and 2 were authorised by the relevant legislation. This is because identical disclosures were subsequently made at the time when different exceptions to the secrecy provisions applied.

Disclosures Nos 3 to 5, which included disclosure of the s 264 transcript and the Report of Counsel, took place during the currency of s 3G of the TAA. That section so far as relevant was in the following terms:

The remaining disclosures took place under the legislative regime contained in Div 355 of Sch 1 to the TAA. Of relevance are the following provisions which at all relevant times provided:

As can be seen, s 3G(1) authorised the Commissioner to disclose information obtained under a taxation law to a Project Wickenby officer if satisfied the information was relevant to a purpose of the Project Wickenby taskforce. The effect of s 3G(2) and (3) was that the Commissioner was authorised to supply such information to officers of the AFP and the CDPP. Further, s 3G(7) in effect authorised disclosure between Project Wickenby taskforce agencies for the purposes of the Project Wickenby taskforce, while s 3G(8) empowered disclosure for the purposes of or in connection with an actual, proposed or possible criminal proceeding and voluntary communication to a court in the course of such a proceeding.

As we indicated, on 26 February 2008, prior to disclosure No 3, the respondent’s matter was endorsed as a Project Wickenby matter such that s 3G applied.

Section 3G was not referred to by the primary judge in the current proceedings. However, in her judgment from which the appeal in Kinghorn (2020) was brought, Kinghorn (No 4), her Honour noted (at [97]) that she accepted subject to the challenge on the basis of Leach that disclosure was authorised by s 3G or its successor, s 355-175 of the TAA.

The effect of the respondent’s argument is that despite s 3G and s 355-70 appearing specifically to authorise the dissemination by the ATO of compulsorily acquired material to the AFP and CDPP to investigate and prosecute serious offences, the accusatorial principle and the companion rule have the effect that upon their correct construction, those provisions did not permit pre-charge dissemination by the ATO to the AFP and the CDPP of the s 264 transcript.

We have set out the ultimate conclusion of the primary judge at [40] above. Her Honour in reaching that conclusion reviewed a number of authorities concerning the dissemination of compulsorily acquired material. In relation to X7, her Honour noted at [63] that it involved a proposed examination after X7 had been arrested and charged with criminal offences. The primary judge referred to what was stated by Hayne and Bell JJ that if an alteration to the accusatorial nature of the criminal justice system of that kind is to be made by statute, it must be done by express words or necessary implication: X7 at [125]. At [76], her Honour also referred to what was said by the Court in Lee (2014) at [51] that there was no legislative authority for the alteration in the respective positions of the prosecution and the accused which had been caused in that case by the prosecutor’s access to the accused’s evidence before the Commission. The relevance of those conclusions in the present case must be considered in light of the provisions of s 3G, s 355-70 and s 355-175.

Her Honour also referred to the decisions of this Court in R v OC (2015) 90 NSWLR 134; [2015] NSWCCA 212 and Macdonald v R; Maitland v R (2016) 93 NSWLR 736; [2016] NSWCCA 306, which she described as examples of where Parliament was found to have abrogated the accusatorial principle by express words or necessary implication. Her Honour stated (at [80]) that it was not suggested that there was any provision in the ITAA or TAA which was similar to the provisions considered in R v OC. The primary judge did not indicate why s 3G, s 355-70 or s 355-175 did not fall into this category.

Her Honour also referred to R v Independent Broad-based Anti-corruption Commissioner (2016) 256 CLR 459; [2016] HCA 8 (“IBAC”). Her Honour made the following comments in respect of that case:

The primary judge referred extensively to Leach. Her Honour stated (at [124]) that Leach held that the general words of taxation legislation (which she described as materially the same as in the present case), including its objects provisions, were insufficient to authorise disclosure by the ATO to the AFP and CDPP in breach of the accusatorial principle and the companion rule.

Her Honour then turned to consider whether s 135.1(7) of the Criminal Code was sufficient to abrogate the accusatorial principle and the companion rule. This apparently was on the basis that it was submitted that when the representation the subject of a charge under that section was made at a s 264 examination, the privilege against self-incrimination was abrogated to the extent it was necessary to prove the representation was made. Her Honour made the following remarks:

We respectfully agree with her Honour that s 135.1(7) would not be sufficient to abrogate the accusatorial principle and the companion rule to the extent those provisions were relevant to the power to disseminate compulsorily acquired material. However, the more relevant question is whether the exceptions to the secrecy provisions in the ITAA 1936 and the TAA which we have set out above permit such disclosure, at least prior to charge.

The Crown in its submissions identified the question in issue as whether the provisions of s 16(2A) of the ITAA 1936 and s 3G and s 355-70 of the TAA authorised the disclosure of the s 264 transcript or whether such disclosure was limited by reference to the accusatorial principle and the companion rule. Senior counsel for the Crown in submitting there was no such limitation in s 16(2A) referred to Yates and what was said by this Court in Kinghorn (2020) in the passage which we have referred to at [51] above.

In dealing with the accusatorial principle and the companion rule, senior counsel for the Crown submitted that X7 and Lee (2013) arose in a different context than the present case, namely, examination post-charge. He submitted that a different conclusion was reached in each of those cases because of the differing legislative regimes. He also contrasted the present case with Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53 (“Strickland”), which involved an unlawful examination. Senior counsel for the Crown submitted that the accusatorial principle and the companion rule were engaged when the person the subject of the compulsory examination had been charged. He submitted that proposition was supported by the decision of the High Court in IBAC.

IBAC involved a public examination of police officers alleged to have assaulted a woman at a police station. The officers had not been charged although they had been suspended on the basis that it was reasonably likely that they had assaulted the woman. It was contended that the relevant legislation (the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) (the IBAC Act)) on its true construction did not authorise an examination which might incriminate the examinee. That argument was rejected.

Senior counsel for the Crown referred to the statement by the plurality at [43] in IBAC that the companion rule is an adjunct to the rights of an accused person within the system of criminal justice. He also referred to the conclusion at [48] that the companion rule was not there engaged because the appellants had not been charged and there was no prosecution pending.

Senior counsel for the Crown submitted that subject to legislative control, use could be made of any material obtained pre-charge, provided the power by which such information was obtained was exercised for a proper purpose. He also referred to what was said by the plurality at [51] in IBAC that to apply the companion rule in anticipation of the commencement of criminal proceedings would fetter the pursuit and exposure of a lack of probity within the police force, which was stated to be an object of the IBAC Act. He also submitted that that submission was supported by two decisions of the Western Australian Court of Appeal subsequent to IBAC which were not referred to in Leach or by the primary judge: A v Maughan (2016) 50 WAR 263; [2016] WASCA 128 (“Maughan”); Zanon v Western Australia (2016) 50 WAR 1; [2016] WASCA 91 (“Zanon”).

Senior counsel for the Crown submitted that Strickland was not contrary to those submissions. He described Strickland as involving the post-trial effect of anterior unlawful conduct. He submitted that a lawful pre-charge examination did not become unlawful simply because there was subsequently a charge. He submitted that Strickland was explained in Commonwealth v Helicopter Resources Pty Ltd [2020] HCA 16; (2020) 94 ALJR 466 (“Helicopter Resources”) at [22] where the plurality stated that Strickland had nothing to do with the lawfulness of compulsory examination of potential third-party witnesses and that, as was made clear in IBAC, if a compulsory investigative procedure is sufficiently authorised by statute it may be invoked notwithstanding that as a matter of practical reality the result would fundamentally alter the ability of an accused to defend charges that may have been or may be levied against him or her.

In summary, senior counsel for the Crown submitted that the accusatorial principle and companion rule do not touch upon pre-charge disclosure because the principle and rule have no application pre-charge. He submitted that if that was incorrect, then the relevant statutory provisions permitted the disclosure.

The Solicitor-General for the Commonwealth, intervening in support of the Crown, identified what he described as two strands of the respondent’s argument. The first, he stated, was that the principle of legality requires that generally expressed statutory provisions such as s 3G or s 16(2A) be interpreted in such a way that the pre-charge dissemination of material to investigating or prosecuting authorities is unlawful at the time it occurs, even though charges have not been laid (and it may be added, may never be laid). He submitted that that was the basis of the decision in Leach and of the primary judge.

He submitted that the second strand was what he described as the crystallisation argument. He said that this accepted, consistently with IBAC, that the dissemination was lawful but once charges were laid no further use could be made of the material and the whole basis on which the prosecution was built could no longer be used. He accepted that this proposition depended on the construction of the legislation. He submitted that the question of legality had to be considered at the time the act of dissemination occurred.

The Solicitor-General for the Commonwealth submitted that although IBAC was a judicial review case, it was not irrelevant. He submitted that it involved a question of statutory construction and that the submission that it was irrelevant was irreconcilable with the reasoning in that case. He also pointed out that X7, like IBAC, was a case where the question was whether the examination should be permitted to proceed. He submitted that IBAC explained (at [28]) that Lee (2014) was based on unlawfulness in the dissemination of the material.

He said that what was said by Martin CJ and McLure P in Maughan at [58]-[63] and at [162]-[163] was consistent with his submissions. He submitted that it was also consistent with the decision of the Western Australian Court of Appeal in Zanon.

So far as the crystallisation argument was concerned, the Solicitor-General submitted that it was consistent with IBAC in that the dissemination leading up to the laying of the charges was lawful. However, the effect was that after charges, not only could the material not be tendered but it could also not be in the hands of the prosecutors at all, including anything derived from the compelled evidence. He submitted that that effectively rendered the coercive investigation power valueless. He accepted that an investigative power to require the giving of information will ordinarily be construed as exhausted when criminal proceedings have been commenced or are pending, referring to Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; [1993] HCA 74 (“Caltex”) at 516-517 and Lee (2013) at [325]. He submitted that Zanon supported the proposition that the companion rule does not limit the use of the material disseminated prior to charge, even after charges have been laid.

He submitted, referring to Strickland at [77], that that case was concerned with expressing a principle that applies when there has been an unlawful exercise of compulsory powers prior to charge.

He accepted that it would be unlawful to disseminate material after charge unless the legislation was sufficiently clear to displace the companion rule.

The Solicitor-General for the Commonwealth stated that his submissions could be distilled into four propositions. First, because the companion rule does not operate prior to charge, it has nothing to say in respect of material disseminated prior to that time. Second, unlike the companion rule, the right to silence is relevant pre-charge but the right is based on a common law principle, and if the examination and dissemination is lawful it overrides the right to silence. Third, if charges are laid the companion rule will be relevant in respect of any further exercise of statutory power. Fourth, whilst pre-charge disclosure does not attract the companion rule, the court retains its ordinary powers to prevent unfairness in a criminal trial.

Although senior counsel for the respondent accepted that it was necessary to deal with the construction issue prior to dealing with the constitutional argument, he submitted that his argument on the construction issue had what could be described as a constitutional underpinning. Thus, he stated at the outset of his submissions that this case presented for the first time the question of whether the accusatorial principle and its companion rule are part and parcel of the administration of justice insofar as crime is concerned, so as “to deny the capacity for legislative effect or alteration or modification of aspects of criminal justice trespassing beyond a relevant line”.

He accepted that there had been some amendments to a traditional trial by, for example, reversal of the onus of proof or ease of proof by averment, but submitted that in every case it was a question of whether upon a proper scrutiny of the legislation it has gone further than the administration of justice properly understood in constitutional terms can allow. He referred in that context to the different outcomes in South Australia v Totani (2010) 242 CLR 1; [2010] HCA 39 and Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7, each of which depended on the construction of the challenged legislation.

Senior counsel for the respondent submitted that in considering the present case it was necessary to take into account that s 264 was not a provision which expressly abrogated the privilege against self-incrimination, nor as a consequence were there any protections against direct or derivative use of incriminating material obtained. He stated that this was not a case where there was illegality or unlawfulness constituted by a contravention of either a direction given by the person supervising the examination or by a general statutory provision applying to all such examinations.

He submitted the constitutional principle was that to the extent that provisions such as s 16(2A) of the ITAA 1936 and s 3G of the TAA purport to permit the tender and use of the s 264 transcript in criminal proceedings, they are beyond the power of the Parliament because they thereby detract materially from the nature of a proposed trial as a trial within the meaning of s 80 of the Constitution, pursuant to the exercise of judicial power by a court.

In dealing with the construction issue, senior counsel for the respondent pointed to the fact that the generality of the purposes for which the power conferred by s 264 can be used tells very strongly against the notion that there is an implied abrogation of the accusatorial principle and the companion rule in respect of the product resulting from the exercise of the power. He emphasised that none of the disclosure provisions relied upon specifically directed themselves to dissemination of information obtained in a s 264 examination.

So far as the tender of the allegedly false answer is concerned, he accepted that it could be tendered in a prosecution under s 8K or s 8N of the TAA; sections which he described as being enacted by Parliament for that purpose. He submitted that this involved no departure from the accusatorial principle.

In relation to s 3G of the TAA and its successor provisions, senior counsel for the respondent accepted that an aspect of the enforcement of the law is criminal prosecution. He submitted that that was a much larger area of endeavour than the prosecution of an examinee, and that there was considerable scope for the questions and answers to be used without abrogation of the accusatorial principle, which would require plain words. He submitted that s 264 should not be understood as producing material the only purpose of which could be to prosecute the examinee.

Senior counsel for the respondent referred to IBAC and Strickland. He noted that in IBAC there was no prosecution before the court either in the sense of pre-trial supervision or post-trial post-conviction appeal. He stated that the question in IBAC was whether or not the power enacted in express terms to compel co-operation by police officers in investigations of possible police misconduct was unavailable by reason of the accusatorial principle and the companion rule.

He referred in that context to what he submitted was the plurality’s explanation of IBAC in Strickland, particularly the remarks at [95] that the companion rule is not engaged unless and until an accused is charged. He submitted that that was contrary to the proposition that there was no scope for the principle to operate as long as the compulsory questioning occurred before charge. He emphasised that in that paragraph the plurality emphasised that nothing said in IBAC was contrary to the learning in X7.

In dealing with IBAC, senior counsel for the respondent referred to [28] of the judgment of the plurality which stated that Lee (2014) turned upon non-observance of statutory provisions directed to preserve the forensic balance between the prosecution and the accused protected by the common law and that no such issue arose in that case. He submitted, first, that the protection of the common law could not be abrogated by statute and second, that the present case was in the Lee area and not the IBAC area.

He also referred to the statement by the plurality in IBAC at [41] in which the plurality stated that the decision in X7 turned on the circumstance that the person to be examined had been charged with an offence and as a result, was subject to the accusatorial judicial process. He stated that that had to be read subject to what was later said in Strickland at [95].

He also referred to [48] of the judgment of the plurality where it was said the companion rule was not engaged because the appellant had not been charged and there were no proceedings pending. He submitted that in light of [95] of Strickland, the passage should be read as if the word “yet” was inserted before “because”. He submitted that it did not mean that there were no limits derived from the accusatorial principle or the companion rule on the dissemination, deployment and use of the material provided.

Senior counsel for the respondent emphasised that although the second question answered by the primary judge concerned the use made of the material at trial, his main argument was that its availability and the use of it pre-charge (including preparing a prosecution brief, charging and assembling a case), culminating in a trial, was contrary to the accusatorial principle and the companion rule. He emphasised that the crux of the case lay not in what may be tendered at trial but whether the material should have been available to the prosecution at all.

Senior counsel for the respondent submitted that his submission was supported by what was said by this Court in R v Seller; R v McCarthy [2013] NSWCCA 42; (2013) 232 A Crim R 249 at [117] that no further use should be made by the Crown of transcripts of the examinations of the respondents by the Australian Crime Commission. That case concerned the dissemination of the transcripts contrary to a direction given by the examiner under s 25A of the Australian Crime Commission Act 2002 (Cth). This Court set aside an order of the primary judge granting a permanent stay. The remarks relied upon were made in that context. They provide very little assistance in the present case.

Senior counsel for the respondent also referred to the judgment of French CJ and Crennan J in X7. He referred to their remarks at [53] to the effect that some administrative or executive inquiries into offences are capable of prejudicing a fair trial when the prosecution obtains an unfair advantage, namely, an advantage which would not be obtained under the ordinary rules of criminal procedure. He also referred to their remarks at [54] that it was not possible to reconcile a fair trial with reliance on evidence against a person at trial which derives from compulsorily obtained material establishing that person’s guilt or disclosing defences. He submitted that although the forensic balance can be altered, it cannot be altered in such a way as to depart from “fair trial values”.

He also referred to the remarks by French CJ and Crennan J at [59] in X7 to the effect that if there was some failure to employ the protective provisions, such that the prosecution would obtain an unfair forensic advantage, a trial court’s inherent power to punish for contempt, including a power to restrain a threatened contempt as in Hammond, would be available. He described Hammond as an important cardinal decision.

He also submitted that his submission was supported by the judgment of Hayne and Bell JJ in X7. He referred in particular to [71], which he stated was binding on this Court. The passage was in the following terms:

He submitted that the decision of Sofronoff P in Leach reflected what was said in that passage, namely that the accusatorial process will not be altered by a statute cast in general terms. He also submitted that in the present case there were no safeguard provisions such as those relied upon by French CJ and Crennan J in X7.

Senior counsel for the respondent also referred to [85] of the judgment of Hayne and Bell JJ in X7 where their Honours stated that permitting the Executive to ask, and compel answers to, questions about the subject matter of pending charges fundamentally alters the process of criminal justice.

He submitted that the remarks made by Hayne and Bell JJ in X7 at [87] to the effect that the compulsory examination would affect the defining characteristic of the criminal justice system and, in particular, alter to a marked degree the accusatorial nature of the criminal justice system supported his constitutional argument. However, those remarks were immediately followed by the statement that such an alteration could not be derived from general words. This demonstrates that their Honours were focusing on construction rather than any constitutional issue.

In relation to s 3G of the TAA, senior counsel for the respondent submitted that the provision and similar provisions in the TAA did not condescend to talk about the accusatorial principle or access to material, or to examinations designed to lock an accused in or find out what their answer is. He again submitted that the provision was not stultified because it could be used other than as against the examinee. He submitted that limiting the use of material so that it could not be used against an examinee could simply be put into effect by a protocol.

Senior counsel for the respondent submitted that the approach which he contended to be the correct one was consistent with the approach taken by Sofronoff P in Leach at [36]-[38], [89]-[90] and [103]. He submitted that it was the correct approach.

He also referred to Lee (2014), which he described as a case where the examination was lawful but publication was unlawful. He pointed out that unlike the present case, the legislation under consideration in Lee (2014) had a safeguard against dissemination (s 13(9) of the New South Wales Crime Commission Act 1985 (NSW)). He referred to the statement in the judgment of the Court at [19] that there had been a miscarriage of justice in a fundamental respect. He also referred to the comments made by the Court at [31] that the majority in X7 stated that legislation of the nature of that in question was not to be construed as to apply to persons already charged, because to do so would be to depart from the accusatorial nature of the criminal justice system in a fundamental respect. He submitted that the Court was there referring to something which he described as a transcendent aspect of the criminal process, namely, the need to preserve the balance struck between the power of the State to prosecute and the position of an individual who stands accused. He also referred to the remarks of the Court in Lee (2014) at [32] to the effect that the principle was fundamental and any attempt to whittle it down cannot be entertained, albeit its application might be affected by a statute expressed clearly or in words of necessary intendment. He accepted that those words were against him on the constitutional point but submitted that the constitutionality of the provisions was not considered in that case.

Senior counsel for the respondent submitted that there was no case, including IBAC, which stated that lawful questioning and lawful dissemination expels the accusatorial principle and the companion rule. He stated that the Court in Lee (2014) at [39] made it clear that the critical question is not whether the publication was lawful or wrongful but rather whether as a result of the prosecution being armed with the appellant’s evidence, there has been a miscarriage of justice in the eyes of the law. He submitted that that demonstrated that if the provisions in the present case were to be interpreted as abolishing the protection of the accusatorial principle and the companion rule, then they have gone further than the Constitution permits.

In dealing with Leach, senior counsel for the respondent again emphasised that IBAC had nothing to do with a miscarriage of justice by departure from the fundamentals of the accusatorial principle and the companion rule. He said IBAC had nothing to do with a prosecution. He submitted in those circumstances that it was going too far to say that Sofronoff P was per incuriam IBAC. He submitted that there has been no case which held that a dissemination provision generally expressed carries with it this “massive alteration of fair trial values” and for that reason it follows even more powerfully that Sofronoff P was not per incuriam and also not plainly wrong.

He submitted that the Western Australian cases of Maughan and Zanon suffered the same fallacies concerning IBAC as those contained in the submissions of the Crown in the present case.

There are a number of matters which should be noted at the outset.

First, the respondent did not seek to challenge the now well-established proposition that the privilege against self-incrimination was abrogated by necessary implication by s 264 of the ITAA 1936. The respondent did not call into question this aspect of the decisions of the Full Court of the Federal Court of Australia in De Vonk (Foster, Hill and Lindgren JJ) or Binetter v Deputy Commissioner of Taxation (2012) 206 FCR 37; [2012] FCAFC 126, where Edmonds, Perram and Jagot JJ expressly affirmed and followed De Vonk at [30].

Second, the respondent did not challenge the lawfulness of his s 264 examination in this case. Although the respondent has reserved his right to argue in some future application that the s 264 examination was conducted for an improper purpose, these separate questions proceeded on the basis that the s 264 examination was lawfully conducted.

Third, the decision in Leach is inconsistent with what was said by this Court in Yates in the passage to which we have referred at [51] above and with what was said by this Court in Kinghorn (2020) at [98] (see at [54] above). It is also inconsistent with the decisions of the Court of Appeal of Western Australia in Maughan and Zanon (as to which, see below). In these circumstances, where there are differing decisions on the issue by various intermediate appellate courts, the Court is not constrained by the principles laid down in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 and Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15 to follow Leach unless convinced it is plainly wrong.

Fourth, it must be borne in mind that the legislative provision considered in Leach was s 355-50 of Sch 1 to the TAA. That section, whilst cast in general terms in a manner similar to s 16(2A), sets out in tabular form a number of items in respect of which disclosure is permitted. They include disclosure to any entity, court or tribunal for the purpose of criminal, civil or administrative proceedings that are related to a taxation law. Taxation laws are defined in s 995-1(1) of the Income Tax Assessment Act 1997 (Cth) in the following terms:

Thus in the present case the issue so far as Leach is concerned is whether the approach taken by Sofronoff P is applicable to s 16(2A), which is cast in somewhat different terms, and importantly, to the very different provisions under which disclosure Nos 3 to 14 were made.

Fifth, although Sofronoff P stated in Leach at [38] that there was no provision in any legislation which expressly authorised the disclosure to prosecutors of answers to questions given in an examination under s 353-10, s 355-70 at all relevant times provided that the secrecy provisions in s 355-25 did not prevent disclosure to an authorised law enforcement agency officer for the purpose of investigating a serious offence or enforcing a law, the contravention of which is a serious offence.

Sixth, no reference was made to IBAC by the Queensland Court of Appeal. That is not to suggest that Leach was decided per incuriam IBAC, but simply that if this Court is of the view that IBAC compels a different result to that reached in Leach it must apply that decision.

The ATO disclosed all the material complained of during the currency of s 3G or s 355-70. The material disclosed prior to that time (disclosure Nos 1 and 2) formed part of the material which was subsequently disclosed. Thus s 3G of the TAA is critical to this issue.

The Explanatory Memorandum to the Bill which led to the introduction of s 3G, the Tax Laws Amendment (2007 Measures No. 1) Bill 2007 (Cth), referred to Project Wickenby and explained the introduction of s 3G in that context:

We have set out s 3G at [57] above. The first thing to note is that it empowers disclosure of information obtained under a taxation law. We have also set out the definition of taxation law at [114] above. It would plainly include matters and information obtained in an examination under s 264 of the ITAA 1936. Section 3G(3) includes the AFP and the CDPP as Project Wickenby taskforce agencies. The purposes of Project Wickenby included both the investigation and enforcement of laws, not only relating to tax avoidance and evasion but also to other offences which might be described as financial crimes. The fact that one of the purposes is enforcement of such laws means that material can be disclosed for the purpose of a prosecution. The fact that the CDPP is a prescribed agency makes this clear.

On its face, that provision would extend to the disclosure of information obtained in the course of a s 264 examination and to its use for the investigation and prosecution of the examinee for the offences described in s 3G(5). The thrust of the respondent’s submission to the contrary essentially boils down to the following propositions. First, the relevant provisions, namely s 3G and s 264, should be construed having regard to the accusatorial principle or, more importantly, the companion rule so as to prohibit the disclosure and use of that material in the investigation and prosecution of the examinee. This was particularly the case where s 264 did not contain any prohibition against direct or derivative use of self-incriminating material. It was submitted that this was consistent with what was said in Hammond in the passages relied upon by Foster J in De Vonk (see at [38] above).

Second, it was submitted that nothing said in IBAC was contrary to this approach. It was suggested that IBAC did not limit what had been said in earlier cases on the accusatorial principle and the companion rule, particularly Hammond, X7 and Lee (2014). Particular reliance was placed on Leach in support of this proposition. Third, it was said that material obtained in a s 264 examination could be used in the investigation or prosecution of persons other than the examinee and, in these circumstances, the section still had work to do.

We do not think these propositions are correct. First, in our opinion, IBAC established that the companion rule has no application prior to charges being laid. The plurality explained the position in the following paragraphs:

The second and fourth matters referred to in those paragraphs are of particular relevance to the present case. So far as the second is concerned, it may well be that when information is supplied there would be uncertainty as to who, if anyone, committed an offence. In those circumstances there would be real difficulty in ascertaining when material could not be used in relation to an examinee particularly if examinees were being investigated for joint offences. So far as the fourth matter is concerned, it would place a significant fetter on the investigating powers of Project Wickenby, which was specifically created and authorised to investigate and prosecute financial crimes in the interests of the community generally.

Contrary to what was said by the primary judge, the limited use immunity provided for in s 144(2) of the IBAC Act did not play any part in the plurality’s reasoning.

As we have pointed out, senior counsel for the respondent submitted that what was said in Strickland made it clear that IBAC did not in any way qualify the extent of the accusatorial principle and the companion rule as stated in X7. There are two things that may be said in respect of this submission. First, although Strickland involved a pre-charge examination purportedly conducted by the Australian Crime Commission for the purpose of a special investigation, there being no investigation on foot, the examination was in fact conducted for an extraneous unlawful purpose of assisting the AFP to compel the appellants to give answers to questions about offences of which they were suspected and in respect of which they had declined to be interviewed.

The plurality in Strickland stated (at [77]) that the principle referred to by Hayne and Bell JJ in X7 in relation to an unlawful compulsory examination conducted post-charge applies when a person is unlawfully subjected to a pre-charge compulsory examination. The plurality emphasised the word “unlawfully”. In [95] of the judgment they distinguished IBAC on the basis that the compulsory powers in that case were exercised lawfully for the purpose for which they were conferred (again emphasising “lawfully”). They stated in that paragraph that the companion rule is a principle which governs the conduct of curial proceedings and is thus not engaged until an accused is charged. It was in that context that the plurality stated that nothing in IBAC ran counter to the learning explicated by the majority in X7. They did not state that IBAC should be limited in any way.

It follows in our view that nothing that was said by the plurality in Strickland in any way limits what was said in IBAC at [48].

It should be noted that apart from Leach, none of the cases relied on by the respondent in support of the proposition that the companion rule applied involved a lawful pre-charge examination. Hammond, De Vonk and X7 involved proposed examinations post-charge. Lee (2014), Strickland and R v Seller; R v McCarthy each involved either an examination for an improper purpose (Strickland) or the improper distribution of material (Lee (2014); R v Seller; R v McCarthy).

So far as Leach is concerned, we have already pointed out that Sofronoff P confined his attention to s 355-25 and s 355-50 of Sch 1 to the TAA. Accordingly, his Honour’s statement (at [37]) that s 355-50 says nothing at all about the use of the material by the recipient, and his statement (at [38]) that there is no provision in any legislation which expressly authorises the disclosure to prosecutors of answers given under s 353-10 Sch 1, needs to be considered in light of s 3G, s 355-70 Sch 1 and s 355-175 Sch 1. In our opinion for the reasons set out at [119]-[121] above and at [131] below, these provisions compel a different answer to that reached by Sofronoff P in Leach at [37]-[38] of his Honour’s judgment.

Nor with the greatest respect can we agree with his Honour’s conclusion at [102] in Leach that it cannot matter whether an accused’s assistance is demanded by the prosecution after charges have been laid or whether it becomes available fortuitously because an accused had earlier been compelled to give incriminating answers for some other purpose. In our opinion, assuming the examination is for a proper purpose and the dissemination is permitted by statute, that conclusion is inconsistent with IBAC. The authorities relied on by Sofronoff P in reaching his conclusions are the ones relied on by the respondent in the present case. We have dealt with these above.

We are fortified by the fact that the conclusion we have reached is consistent with the two decisions of the Western Australian Court of Appeal in Maughan and Zanon.

In Zanon, Mitchell J (Buss JA agreeing) cited IBAC as authority for the proposition that:

Shortly after Zanon, the same Court handed down its decision in Maughan. In separate judgments, each member of the Court held that, following IBAC, the accusatorial principle and companion rule are not engaged before charges are laid and do not affect the interpretation given to a statute providing for the dissemination and use of information obtained under compulsion. Chief Justice Martin said:

President McLure came to the same conclusion, saying:

To the same effect, Corboy J held:

In these circumstances, in our opinion, neither the accusatorial principle nor the companion rule operated to limit the power of disclosure conferred by s 3G, s 355-70 Sch 1 or s 355-175 Sch 1.

Even if the accusatorial principle and the companion rule had any application pre-charge, in our opinion s 3G, s 355-50 and s 355-175 exhibited a necessary intention to permit disclosure and use of compulsorily acquired material notwithstanding the accusatorial principle and the companion rule. Although answers given in a s 264 examination are not specifically referred to in s 3G, such answers are clearly incorporated within the expression “information acquired under a taxation law”. Having regard to the nature of the disclosure provisions and the purpose of the legislation as stated in the Explanatory Memorandum, it seems to us that the legislature necessarily intended such material to fall within the disclosure regime. The cases to which we have referred at [41] make it clear that the legislature has power to take this step.

As the Solicitor-General for the Commonwealth pointed out, this argument assumes that the initial disclosure was lawful but that no further use could be made of the material once the charges were laid. We are unable to accept this proposition for the following reasons.

First, if as this argument assumes the initial disclosure was lawful, then it will be necessary to find a legislative constraint on use to be made post-charge. There is nothing in the legislation which suggests such a limitation. Indeed, it is contrary to s 3G(5) which stated that the purposes of the Project Wickenby taskforce included enforcement of law relating to financial crimes. Section 355-70 Sch 1 is to the same effect.

Second, if the respondent’s crystallisation argument were correct, this would result in the improbable consequence that dissemination and use of material acquired in a compulsory examination could only take place in circumstances where the examinee could not thereafter be prosecuted in connection with that material. Investigating and prosecuting authorities would be prohibited from any continued use of information which they lawfully possessed and by which they lawfully investigated and formulated the criminal charges, upon the laying of those same charges. Such a result would undermine the very purpose of the statutory information-gathering powers.

The High Court has previously recognised that coercive powers are commonly conferred for the purpose of determining whether proceedings should be instituted: Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333; [1912] HCA 69; Huddart Parker & Co Pty Ltd v Moorehead (1908) 8 CLR 330; [1909] HCA 36 (“Huddart Parker v Moorehead”). It is for that reason that such coercive powers are commonly construed as being exhausted upon the laying of charges, since their purpose is spent at the point when those charges are laid. As stated by Brennan J in Caltex at 516-517, quoted by Gageler and Keane JJ in Lee (2013) at [325]:

However, if the respondent’s crystallisation argument were correct, then it would defeat that recognised legislative purpose in conferring a coercive power. The laying of criminal charges, the investigation and prosecution of which the powers are intended to facilitate, would destroy the usefulness of that information in that prosecution. On the respondent’s argument, upon the laying of charges, not only is the material incapable of being tendered at trial, but it cannot be in the hands of the prosecution team at all. That view is inconsistent with the established role of coercive powers in facilitating investigations of criminal charges to protect the revenue, as was explained in Yates.

Finally, the crystallisation argument is inconsistent with intermediate appellate authority which we find persuasive. In Zanon, the Western Australian Court of Appeal considered the application of the accusatorial principle and companion rule after charges were laid, but in relation to material compulsorily obtained and disclosed before those charges. Referring to the High Court’s decision in IBAC, McLure P said at [144]:

To the extent it is suggested that such a result is fortuitous depending on whether the answers were compelled pre- or post-charge, the remarks made by Gageler J in IBAC at [76]-[77] are apposite:

On the assumption that the accusatorial principle and the companion rule were engaged, neither is constitutionally entrenched so as to invalidate any legislative provision said to be in breach of either the principle or the rule. The High Court has repeatedly described the accusatorial principle and companion rule as common law principles that are subject to statutory modification: see X7 at [123]-[125]; Lee (2013) at [3], [126], [313]; Lee (2014) at [32], [51]; IBAC at [28], [48]; Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; [2015] HCA 21 at [36]; Helicopter Resources at [22].

Nor does Hammond lend any support to the proposition that fair trial values are constitutionally entrenched. In the passages which we have cited at [38] above, it was made clear that the injunction restraining the post-charge examination was granted on the basis that the examination would be an interference with the administration of justice amounting to a contempt of court. The grant of the injunction did not rest on any constitutional principle. That was made clear in Sorby v The Commonwealth (1983) 152 CLR 281; [1983] HCA 10, decided some six months after Hammond. In that case Gibbs CJ at 298 stated that the privilege against self-incrimination is not protected by the Constitution, and like other rights and privileges of equal importance, may be taken away by legislative action: see also Mason, Wilson and Dawson JJ at 309.

Acceptance of the proposition that fair trial values are constitutionally entrenched would erect a constitutional rule in an area that has been accepted as appropriate for legislative judgment. The respondent’s contention that the accusatorial principle and companion rule are necessary features of the exercise of judicial power under Ch III and of a trial under s 80 of the Constitution, effectively converts the principle and rule into a constitutionally entrenched protection or immunity. Having regard to the authorities to which we have referred above, it would be quite inappropriate for an intermediate Court of Appeal to hold that these principles are constitutionally entrenched.

Finally, it is clear that s 80 of the Constitution does not invalidate the impugned provisions. In Huddart Parker v Moorehead the High Court rejected the contention that the conduct of a compulsory examination infringed the right to trial by jury in s 80 of the Constitution, even though the examination occurred after the examiner had formed the opinion that the examinee had committed an indictable offence. The function of the jury as the tribunal of fact, and the structural role of s 80 in mandating trial by jury, are unaffected by any of the impugned provisions.

It follows that we respectfully disagree with the answers given to the separate questions by the primary judge.

For the foregoing reasons we propose the following orders:

BELL P: I agree with Bathurst CJ and Payne JA.

WARD CJ in EQ: I agree with Bathurst CJ and Payne JA.

BELLEW J: I agree with Bathurst CJ and Payne JA.