R v Kinghorn (No 4)

John Kinghorn (the accused) was arraigned on 3 August 2018 on an indictment (the Original Indictment) which charged him with three counts: the first, that he defrauded the Commonwealth by representing to the Commissioner of Taxation that he did not control any unlisted company outside Australia contrary to s 29D of the Crimes Act 1914 (Cth) (the defrauding charge); and the second and third, that he dishonestly represented that he did not control two companies, Kalomo Corporation Limited (Kalomo) (count 2) or Kalomo Pacific Leasing Limited (Kalomo Pacific) (count 3) with the intention of dishonestly influencing a public official, the Commissioner of Taxation, contrary to s 135.1(7) of the Criminal Code Act 1995 (Cth) (the false representation charges). The conduct the subject of the first count is alleged to have occurred between about 29 June 1997 and 1 July 1997 and the conduct the subject of the second and third counts is alleged to have occurred between about 6 March 2004 and 10 March 2007.

The particulars of the second and third charges included answers given by the accused in the course of compulsory examinations conducted over the course of five days between 4 May 2005 and 14 June 2005 by the Australian Taxation Officer (ATO) pursuant to s 264 of the Income Tax Assessment Act 1936 (Cth) (ITAA) (the s 264 examinations). The accused had no privilege against self-incrimination in such examinations, the privilege having been found to have been abrogated by necessary implication: Commissioner of Taxation v De Vonk (1995) 61 FCR 564 (De Vonk) at 583.

The accused contended that the Crown was obliged, in performance of its prosecutorial duty of disclosure, to disclose documents which showed when, by whom, and how, the contents of his s 264 examinations were disclosed to the Australian Federal Police (the AFP) and the Commonwealth Director of Public Prosecutions (the DPP) and the use to which the information had been put in investigating him and formulating the charges, and assembling the Crown case, against him. Some disclosure was made by the Crown of the occasions on which the s 264 information was disclosed by the ATO to the AFP and by both instrumentalities to the DPP. The sources of power which were alleged to authorise such disclosure were also identified.

On 15 April 2019 the accused filed a notice of motion seeking a permanent, or in the alternative, a temporary, stay of the prosecution on the basis of an irremediable breach of two related common law principles: first, that the onus of proof rests on the prosecution (the accusatory principle); and, second, that the prosecution cannot compel an accused to assist it to discharge the burden of proof (the companion principle). In order to establish the alleged breach, the accused contended that it was necessary for him to prove the nature and extent of the dissemination of the s 264 material and the manner and extent of its use by Commonwealth authorities in charging and prosecuting him. The accused relied on what the plurality (Kiefel CJ, Bell and Nettle JJ) said in Strickland (A Pseudonym) v Director of Public Prosecutions (Cth) [2018] HCA 53; (2018) 93 ALJR 1 (Strickland) at [80], [84] and [85] in support of the submission that it is for an applicant for a permanent stay to establish, in so far as it is within his power to do so, the factual foundation for such an order.

The accused contended that the Crown had not complied with its duty to disclose such documents and sought to obtain them by subpoenas issued to the Commissioner of Taxation and the Commissioner of the AFP (collectively, the Commissioners) and the DPP. The DPP and the Commissioners filed notices of motion to set aside the subpoenas (the subpoena motions), which were dismissed: R v Kinghorn [2019] NSWSC 553.

Subsequently, each of the Commissioners and the DPP filed notices of motion seeking that their respective objections to production of listed documents on the grounds of privilege be upheld (the privilege motions). It became apparent from the oral submissions made on behalf of the accused on the subpoena motions and from his written submissions on the privilege motions that the accused contended that the disclosure of his s 264 material to the AFP and the DPP was unlawful and that therefore privilege did not attach to it, relying on R v Cox & Railton (1884) 14 QBD 153 and Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 514 (Brennan J), 522 (Dawson J) and 556 (McHugh J); [1997] HCA 3. The accused also contended that the Crown’s opposition to his application for a stay was inconsistent with the maintenance of the privilege and that the Court should find that there was imputed waiver of the privilege in accordance with Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 at [28]-[35]. In respect of other documents, the accused contended that there had been partial waiver which ought lead to a finding that the documents were no longer privileged.

The privilege motions were listed for hearing on 31 July 2019 and 1 August 2019. On the morning of 1 August 2019, Dr Renwick SC, who appeared with Ms Garsia, on behalf of the DPP, applied for an adjournment to adduce evidence as to the legality of disclosures made by the Commissioners of the s 264 material. I granted the adjournment: R v Kinghorn (No 2) [2019] NSWSC 989. The hearing of the motions resumed on 8 October 2019.

On 8 October 2019, the Crown sought leave to substitute two indictments (the New Indictments) for the Original Indictment, the first containing, as counts 1 and 2, the false representation charges which had formerly been counts 2 and 3; and the second containing what had formerly been count 1, the defrauding charge. The Crown confirmed that the basis of its application was that it accepted that information obtained as a result of the s 264 examinations (the s 264 information) would not be admissible on the defrauding charge and accepted, in oral submissions, that it “might cause irremediable prejudice” to the accused’s right to a fair trial were the defrauding charge to be tried together with the false representation charges, in respect of which the Crown contended the s 264 information would be admissible. The Crown accepted that if statements made in the s 264 examinations were not relied on as a particular of the false representation charges, it could not use the s 264 examinations at all in the prosecution of the accused for those charges. I granted leave to the Crown pursuant to s 20 of the Criminal Procedure Act 1986 (NSW) to substitute the New Indictments for the Original Indictment. I understood that the Crown proposed to proceed first on the New Indictment which contained the false representation charges. The accused was arraigned on the New Indictments. He pleaded not guilty to each charge.

At the end of the hearing of the privilege motions on 10 October 2019, I reserved my decision.

On 16 October 2019 the Crown notified the Court and the parties by email that it proposed to withdraw the New Indictment which contained the defrauding charge. The matter was listed for mention on 17 October 2019, at which time the Crown filed a notice of discontinuance of that indictment in court and, at the accused’s request, confirmed that it had no intention of prosecuting that charge against the accused in the future. At that mention, each of the parties confirmed that the discontinuance of the indictment which contained the defrauding charge did not affect the privilege motions. No party sought to make any further submissions on the privilege motions as a consequence of the Crown’s filing the notice of discontinuance. The New Indictment which contains the false representation charges remains extant.

The issues to be determined on the privilege motions are, in substance, whether those objecting to access have discharged the evidentiary onus of establishing a prima facie claim for privilege; and, if so, whether the accused has established either that privilege did not attach or that privilege has been lost by reason of s 125 of the Evidence Act 1995 (NSW); waiver by partial disclosure; or imputed waiver by reason of inconsistent conduct. Subsidiary issues also arise for determination, including when the proceedings were anticipated for the purposes of litigation privilege; whether the common law or the Evidence Act applies to claims made by the DPP over production by the AFP and the ATO; and whether the DPP herself can claim privilege as a “client” over internal DPP documents. There are also questions about the extent to which the Court’s powers of inspection under s 133 of the Evidence Act ought be exercised.

Mr Walker SC, who appeared with Mr Buchen SC, Ms Huxley and Mr Atkin on behalf of the accused, took exception to the suggestion, implied by the separate representation of the Crown and the DPP, that their concerns were distinct. He contended that the true position is that the DPP brings charges on behalf of the Crown, being, in effect, the polity. He drew the distinction between the barrister appearing on behalf of the Crown, who is, by convention referred to, as in this case, as Mr Crown and the Crown itself. He submitted that as Mr Crown was the only person who was entitled to put the Crown case, regard ought be confined, in determining the Crown case, to what Mr Crown said since the other Commonwealth authorities had no authority to put the Crown case. Nonetheless, Mr Walker did not contend that there was any objection to the separate representation of the Commissioners, since he accepted that their interests were potentially distinct from those of the DPP and the Crown.

In many cases, the Crown, the DPP and the Commissioners adopted each other’s submissions. Where there is no particular reason to distinguish between these parties, they will be referred to collectively as “the Commonwealth authorities”. Questions relating to the relationship between the Commonwealth authorities and its effect on privilege will be addressed later in these reasons.

As referred to above, the s 264 examinations were conducted in May and June 2005. It was accepted that, at the commencement of the examination, the accused was sworn and informed that making a false or misleading statement was an offence under ss 8K or 8N of the Taxation Administration Act 1953 (Cth) (TAA) and that a refusal to answer a question was an offence under s 8D of the TAA. He was also informed that the privilege against self-incrimination would not excuse him for failing to answer a question.

The investigation of the accused’s taxation affairs, which continued for some years, took place as part of a project set up by the Commonwealth known as Project Wickenby. According to Berdj Tchakerian, a senior lawyer employed by the DPP, the project was “designed to enhance the strategies and capabilities of Australian and international agencies collectively to detect, deter, and deal with international tax avoidance and evasion”. The DPP, the ATO and the AFP participated in Project Wickenby.

Mr Walton was the officer at the ATO who, on 2 November 2006, received information related to the tax affairs of the accused. Mr Walton, who was a member of the ATO’s Serious Non-Compliance business line, became responsible for reviewing the available evidence and determining whether a criminal investigation of the accused ought be commenced. He decided that it would be prudent to seek the advice of the DPP. On 27 November 2006, officers of the ATO met with officers of the DPP. On 31 January 2007 Mr Walton asked the DPP to provide advice concerning the accused and, for that purpose, Mr Walton disclosed material, which included the s 264 information (the 2007 disclosure). This was the first occasion on which the s 264 information was disclosed to a party outside the ATO.

The Crown has provided the 2007 disclosure to the accused. The 2007 disclosure indicated that Mr Walton sought advice from the DPP “on potential cases for investigation”. The request also said:

In the 2007 disclosure, Mr Walton set out the accused’s denials that he was the beneficial owner of Kalomo and Kalomo Pacific and the “substantial circumstantial evidence” to the contrary. Mr Walton identified the following potential offences which were under consideration: s 29D of the Crimes Act (defraud the Commonwealth); s 134.2 of the Criminal Code Act (obtain a benefit by deception); s 8P of the TAA (knowingly make a false or misleading statement); and s 137.1 of the Criminal Code Act (false or misleading information). When making the 2007 disclosure, Mr Walton turned his mind to s 16(2A) of the ITAA and concluded that the disclosure fell within the performance of his duties as an officer.

A further disclosure was made by Mr Walton in October 2007, this time to the AFP, under cover of a document entitled “Referral to the AFP”.

The request for advice was allocated to Ms Shouldice, a solicitor at the DPP, who, on 5 February 2008, provided the DPP’s advice to the ATO (the Shouldice advice). Privilege has been claimed by the ATO, who was accepted to be, relevantly, the client. Parts of the advice appear from the following documents which have either been disclosed or produced in answer to a subpoena. In one such document (AFP.001.001.0038) the following passage appears:

On 6 June 2008 Ms Shouldice sent an email to the ATO, copied to the AFP and DPP, which attached a document (AFP.001.001.0029) which said, in part:

An ATO report forwarded to the AFP in July 2010 (AFP.001.001.0098) said:

On 26 February 2008, Mr Walton sought “Wickenby endorsement for s 3G TAA purposes” to the “Project Wickenby Call-Over Panel”. One of the purposes of the request was:

I accept that the Commonwealth authorities have established that such endorsement was granted.

In 2008 the ATO asked the DPP to advise in relation to a request under the Mutual Assistance in Criminal Matters Act 1987 (Cth). Such advice was provided and, on about 30 January 2009, the Mutual Assistance Request (MAR) was transmitted to the Bailiwick of Jersey. The DPP undertook further work on issues arising from the MAR.

On about 7 July 2011 the AFP sent to the DPP a statement of facts and brief of evidence in relation to possible offences committed by the accused and requested advice as to potential charges which could be laid against the accused. By that stage, the investigation in relation to the accused had come to be known as “Operation Avenger”.

Between 2011 and 2014 there were further discussions between the DPP, ATO and AFP concerning the accused, which also involved the MAR. On 31 July 2013 the DPP retained Peter Neil SC to advise regarding possible charges against the accused. On 29 August 2013 and 25 September 2013, Mr Neil provided such advice. On 21 May 2014, Mr Neil provided further advice regarding what charges might be appropriate in light of the evidence that was then available. On 5 September 2014, Mr Neil provided a revised version of the earlier advice given on 21 May 2014. On about 15 September 2014, the DPP provided advice to the AFP about the charges which it might be appropriate to lay against the accused. In about December 2014, the AFP continued to collate material for the preparation of the brief, including from the material provided pursuant to the MAR.

On 5 May 2015 Federal Agent Andrew Hiscoe sent an email to a solicitor at the DPP, Tom Muir, in which he said:

The brief was not delivered until 19 November 2015. I accept Mr Tchakerian’s evidence that he considered, having regard to Federal Agent Hiscoe’s email of 5 May 2015, that the AFP investigation was largely complete by that date and there were no substantial investigative steps outstanding, although there were administrative tasks to be completed before finalisation of the brief. According to Mr Tchakerian, it was inevitable that, “based on the overriding consideration of general deterrence”, a prosecution of the accused would be regarded by the DPP as being in the public interest. He said that because the offence would be one tried on indictment, the DPP (on behalf of the Crown) and not the ATO would be the moving party in those proceedings.

The Commonwealth authorities contended, on the basis of Mr Tchakerian’s evidence, that proceedings were anticipated by the DPP at least by 5 May 2015. The accused accepted that, at the time the DPP reasonably anticipated committal proceedings, the criminal trial would also have been anticipated. The accused did not submit that anything turned on the DPP’s decision to prosecute in the name of the Queen, rather than in her official name, as she is entitled to do under s 9(1) of the Director of Public Prosecutions Act 1983 (Cth) (the DPP Act). The accused submitted that litigation was not contemplated until October 2017, being the commencement of the committal proceedings (see below). He submitted that the evidence adduced by the Commonwealth authorities was insufficient to establish an earlier date since, once the brief had been delivered, a reasonable time would have to be allowed for its review and assessment by the DPP before a decision was made to commence the committal proceedings.

Mr Tchakerian’s opinion as to the timing appears to have been based on Federal Agent Hiscoe’s expectation, expressed in his email to Mr Muir of the DPP extracted above, that the brief would be delivered to the DPP within a short time of 5 May 2015. Mr Tchakerian referred to the affidavit of Mr Murphy, Assistant Director of the DPP, sworn 24 May 2019. Mr Murphy currently supervises the legal team responsible for the conduct of the proceedings on behalf of the Crown. Mr Murphy deposed that litigation was anticipated by the DPP on 19 November 2015, being the date at which the brief was delivered. Mr Murphy said:

Mr Tchakerian said, after referring to Mr Murphy’s opinion and the email from Federal Agent Hiscoe to Mr Muir on 5 May 2015:

State agencies are expected to make “every” effort to adduce evidence in support of their claims for privilege that is both “adequate and compelling”: Bailey v Director-General, Department of Land and Water Conservation (2009) 74 NSWLR 333; [2009] NSWCA 100 at [45] (Tobias JA, Allsop P and Hodgson JA agreeing) (Bailey). There is a degree of speculation in Mr Tchakerian’s evidence, as is evident from his expression of an opinion said to be “from the Director’s perspective”. Further, Mr Tchakerian’s opinion, which is retrospective, is informed by Federal Agent Hiscoe’s expectation, which did not come to pass, based on what he had been told by an unidentified person at the ATO. The evidence does not exclude the inference that there was a material insufficiency in the evidence which had to be rectified before the brief was delivered to the DPP. This inference is consistent with the time taken from Federal Agent Hiscoe’s prediction and the date on which the brief was actually delivered.

The evidence of Mr Murphy is entitled to greater weight because it links the “established procedures of the Officer [of the DPP]” and the concrete act of “receipt of the brief by the Officer [of the DPP]”. The Commonwealth authorities bear the onus of establishing the date on which litigation was reasonably contemplated. In light of the difference between Mr Murphy and Mr Tchakerian, I am not satisfied that litigation was contemplated on a date earlier than the date on which the brief was delivered, namely 19 November 2015. On the basis of their evidence I am satisfied that it was contemplated by 19 November 2015. I reject the accused’s submission that the proceedings were not contemplated until the commencement of committal proceedings. I accept the Commonwealth authorities’ evidence and submissions that the DPP’s involvement in the matter in the period since 2007, which included the DPP’s briefing of senior counsel (Mr Neil), in 2014, to provide “pre-brief advice”, had the practical effect that litigation (in the form of a prosecution) was anticipated at the time of the delivery of the brief from the ATO through the AFP to the DPP on 19 November 2015.

On 6 October 2017 Federal Agent Hiscoe laid charges against the accused. The DPP acted for Federal Agent Hiscoe at the committal hearing. On 19 June 2018 the accused was committed for trial. As referred to above, on 3 August 2018 the accused was indicted on the Original Indictment.

By letter dated 30 January 2018, the accused sought particulars of the charges on the indictment. Of present relevance, the DPP informed the accused in a letter dated 19 March 2018 that the Crown would rely on the following representations (arranged in chronological order) in support of the false representation charge:

On 19 June 2018 the accused was committed to stand trial. From that time the prosecution was conducted by the DPP on behalf of the Crown. On 17 July 2018 the Original Indictment was filed in this Court.

On 2 August 2018 the DPP provided further particulars of the charges and identified references to the transcript pages of each of the five days the accused was examined pursuant to s 264 of the ITAA. On the same day, the Crown filed and served the outline of prosecution facts, which included the following:

By letters dated 17 and 21 December 2018, the accused’s solicitors wrote to the DPP and raised the effect of the decision of the Queensland Court of Appeal in R v Leach [2019] 1 Qd R 459; [2018] QCA 131 (Leach), which had been handed down on 22 June 2018. They asked the DPP to identify when the s 264 information had been disclosed to the AFP and the DPP and the authority for the disclosure. They also sought disclosure, in accordance with the prosecutor’s duty, of the nature and extent of any dissemination by the ATO of the s 264 information and what use had been made of any such disclosures.

In Leach, the appellant was compulsorily examined by the ATO pursuant to s 264. The appellant’s s 264 examination was included in the brief from the ATO to the DPP. The appellant was subsequently charged with various fraud offences. None of the charges was based on any alleged falsity of Leach’s answers in the s 264 examinations, although the Crown relied on those answers as amounting to a consciousness of guilt. The trial judge refused the appellant’s application for a permanent stay which had been made on the grounds that the release of his s 264 examination was unauthorised. The appellant was subsequently convicted of 19 counts of obtaining a financial advantage by deception, 3 counts of attempting to obtain such an advantage, 21 counts of knowingly using a false document with the intention of dishonestly obtaining a gain and one count of aggravated fraud.

The Court of Appeal quashed the convictions and ordered a re-trial. It held, on the basis of De Vonk; X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 (X7); and Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 (Lee (No 2)), that the disclosure to the DPP of the compulsory examination, its use by the DPP to prepare for the appellant’s prosecution and its admission as evidence at the appellant’s trial conflicted with the accusatory and companion principles.

Before me, the Commonwealth authorities confirmed their acceptance of the correctness of Leach, in respect of which no application for special leave to appeal to the High Court was filed.

In a response dated 19 March 2019, the DPP said that the s 264 information had been “lawfully disclosed” to the AFP and DPP and was admissible on counts 2 and 3 (of the Original Indictment) and that “incidental disclosure” of the s 264 information in relation to count 1 was “permitted”. The DPP identified the first disclosure as having occurred in 2007 and alleged that it had been made for the purpose of enabling the DPP to consider and subsequently prosecute offences concerning the falsity of answers given by the accused in the s 264 examinations. The DPP sought to distinguish Leach (who was charged with fraud offences) on this basis. The DPP contended that the accusatory principle was abrogated by the offence to make a false or misleading statement to a taxation officer (s 8K of the TAA) and that such abrogation extended to any offence based on the falsity of representations or statements made in a s 264 examination.

The DPP also contended, in the letter of 19 March 2019, that the 2007 disclosure was “permitted” by s 3E of the TAA; and that the disclosure in 2015 to the AFP was “permitted” under s 3G(1) and the on-disclosure to the DPP was “permitted” under s 3G(7). The DPP resisted the proposition that it had any duty to disclose more than already had been disclosed to the accused.

On 25 March 2019 the accused’s solicitors wrote to the DPP, requesting evidence to support the assertion that the 2007 disclosure was permitted by s 3E and other material relating to subsequent disclosures as part of the Crown’s duty of disclosure.

On 26 March 2019 the DPP responded that she did not consider that the requests fell within the Crown’s duty of disclosure. The DPP said, in addition:

On 15 April 2019, the accused filed a notice of motion seeking orders which included a temporary stay of proceedings pending provision of material set out in the schedule to the motion. The documents described in the schedule repeated the requests which the accused had earlier made in correspondence.

On 18 April 2019 the accused requested that subpoenas be issued to the ATO, the AFP and the DPP. By subpoena issued to the ATO, the accused sought production of documents which constituted, recorded, referred to or purported to authorise the disclosures in 2007 or 2015 or which referred to the purpose of such disclosures. By subpoenas issued to the AFP and the DPP, also on 18 April 2019, the accused sought production of documents in similar terms, as well as documents referring to requests for such disclosures.

In its submissions dated 29 April 2019, the Crown attached certain disclosures of the s 264 material, including the 2007 disclosure, and submitted as follows:

The Crown maintained its claims for privilege over the advice provided in answer to the disclosures to the DPP and the AFP.

By further subpoena issued to the DPP on 2 May 2019, the accused sought production of documents which:

As referred to above, on 10 May 2019 I heard and dismissed the subpoena motions.

On 25 July 2019 the DPP wrote to the accused’s solicitors and pointed out that she had confirmed that the 2007 disclosure was “permitted” rather than “authorised” under s 3E. The DPP continued:

This was the first occasion on which s 16(2A) had been identified as the source of the power for the disclosures in 2007.

On 31 July 2019, the first day of the hearing of the privilege motions, the DPP wrote to the accused’s solicitors referring to previous correspondence and to the accused’s submissions, before continuing:

It was common ground that s 3G was not in force at the time of the 2015 disclosures and, accordingly, could not have authorised them.

As referred to above, on 1 August 2019, the DPP sought an adjournment to adduce evidence as to the legality of disclosures made by the Commissioners of the s 264 material in accordance with the statements made in the DPP’s letter of 31 July 2019. Dr Renwick tendered a further letter, dated 1 August 2019, in which the DPP confirmed her new position regarding the authorisation for the disclosures:

Dr Renwick submitted that this evidence was required to answer the accused’s submission that there had been unlawful disclosure of the accused’s s 264 information such as would cause privilege either not to attach or to be lost under s 125 of the Evidence Act. As referred to above, the motions were adjourned and were resumed on 8 October 2019.

The DPP has identified 14 disclosures of the s 264 information. These are set out below in a table which indicates by whom and to whom each disclosure was made and the power relied on by the DPP to authorise the disclosure.

Before turning to the substantive issues of privilege it is necessary to address the relationship between the Commonwealth authorities. As is apparent from the appearances, the Crown, the DPP and the Commissioners were separately represented for the purposes of the privilege motions, as they were for the motions to set aside the subpoenas. It is common ground that the only parties to the accused’s motion for a stay are the accused and the Crown. Various questions have arisen about the status of the DPP vis-à-vis the Commissioners and the Crown which makes it necessary to address the relationship between the Commonwealth authorities.

Dr Renwick submitted that the DPP was, when she was seeking advice from her own officers, the client and, when acting on the instructions of the Commissioners, the lawyer. Dr Renwick contended that, in both cases, legal professional privilege attached to the communications.

Mr Walker submitted that it would be as inappropriate to regard the DPP as the “client” and her employed solicitors as her “lawyers”, as it would be to regard the partner of a firm as being the “client” and the employed solicitors as the partner’s lawyers. He contended that when the DPP is providing advice to instrumentalities such as the ATO and the AFP, the DPP is the lawyer and they are the clients. Thus the dominant purpose test would apply to confer privilege on communications for the dominant purpose of providing advice to the clients.

The relationship between the DPP and employed officers within the office of the DPP has been considered by this Court in a number of decisions which have held that the DPP is regarded as being the client for the purposes of legal advice provided by her staff or by a Crown Prosecutor. In Director of Public Prosecutions (NSW) v Stanizzo [2019] NSWCA 12, the Court (Basten and Payne JJA and Sackville AJA), citing R v Petroulias (No 22) (2007) 213 FLR 293; [2007] NSWSC 692 (Petroulias), Aouad v R; El-Zayet v R [2013] NSWSC 760 at [31] (Price J) and Hamilton v State of New South Wales [2016] NSWSC 1213 at [38]-[40] (Beech-Jones J), held:

The ATO and the AFP may also, relevantly, be “clients” within s 117(1)(c) of the Evidence Act since they are employers of lawyers and are bodies “established by the law of the Commonwealth”: s 6 of the Australian Federal Police Act 1979 (Cth) and ss 4 and 5 of the TAA. The Commissioners may also be “clients” because each is a “person … who engages a lawyer to provide legal services or who employs a lawyer”: s 117(1)(a) of the Evidence Act. In cases where the ATO or the AFP seeks advice from the DPP, they are the clients and the DPP is the lawyer. Paragraph 3(1)(e) of the Director of Public Prosecutions Regulations 1984 expressly conferred on the DPP the function of providing advice as follows: “giv[ing], to an authority of the Commonwealth, legal advice on law enforcement or a matter relating to law enforcement, whether or not the advice is for the purposes of a particular investigation”.

It will be a matter of judgment in any particular case whether the DPP is, relevantly, the lawyer, as in Bailey, at [52], where the legal officers within the DPP were providing legal advice as agents of the DPP and not as lawyers to the DPP as their client, or whether the DPP is the client and the legal officers advising the DPP are the lawyers. However, as the authorities referred to above establish, there is no reason in principle why the DPP ought not, in some cases, be regarded as a client for the purposes of legal professional privilege and ss 117 and 119 of the Evidence Act.

The question whether alleged inconsistent conduct such as would give rise to imputed waiver must be that of the privilege holder or can be, as is alleged in the present case, that of the DPP, as agent for the Crown is addressed below.

The parties raised an antecedent question about which law applies to questions of privilege. The issue was whether the Evidence Act or the common law applied where the producing party was not the party objecting to access (third party objection).

The Crown authorities submitted that the Evidence Act applied to all situations, including third party objections. They submitted, accordingly, that ss 122 (loss of privilege by consent), 125 (loss of privilege by misconduct) and 126 (loss of client privilege: related communications and documents) governed the question whether privilege had been lost or would be found to have been waived in all cases for determination in these proceedings. The accused submitted that the common law applied to third party objections (being, relevantly, the objections by the DPP to production by the Commissioners).

It was common ground that the relevant law that governed a party’s objections to production of a subpoena issued to that party was the Evidence Act 1995 (NSW) by reason of s 131A of the Evidence Act (which was enacted to overcome the effect of Esso Australia v The Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67).

The resolution of this issue turns on the wording of Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 1.9. It was accepted that, before the addition of UCPR, r 1.9(4A)-(4C), s 131A of the Evidence Act had the effect that, where the person required to produce a document on subpoena objected to production, the Evidence Act applied: Singtel Optus Pty Ltd v Weston (2011) 81 NSWLR 526; [2011] NSWSC 1083 at [27] (White J). White J said, at [28], that s 131A did not apply where a claim for privilege was made by someone other than the producing party and that, in those circumstances, the common law applied.

It was common ground that the relevant sub-rule is UCPR, r 1.9(4A). However, it is convenient to set out the surrounding sub-rules to provide the necessary context:

As the Explanatory Note recorded, UCPR, r 1.9(4A), (4B) and (4C) were introduced to ensure that a party which produced documents to the Court under cover of a claim for privilege, would not thereby be taken to have waived privilege. Such production, prior to the amendment, had been held by Brereton J in Hancock v Rinehart [2016] NSWSC 12 to constitute waiver.

The Commonwealth authorities argued that it was plain from the use of the indefinite article before “person” in UCPR, r 1.9(4A), that the rule was apt to cover production, not only by the objector, but also by a person other than the person objecting. They contended that, if the provision intended to distinguish between the producing party and the objecting party, the draftsperson would have said “if a document is produced by a person, and that person objects to production”. They also submitted that such a construction of UCPR, r 1.9 tended to promote the purpose of s 131A of the Evidence Act, which was to bring pre-trial procedures regarding privilege into line with the rules of evidence at a trial.

The accused submitted that the wording of UCPR, r 1.9(4A) did not apply to a situation where Party A (such as the DPP) objected to access being given to Party B (the accused) on the grounds that documents produced by Party C (the Commissioners) were “privileged documents”. He submitted that, although the indefinite article in UCPR, r 1.9(4A) tended to support such a construction (for the reasons advanced by the Commonwealth authorities), UCPR, r 1.9(3) is addressed only to the person required to produce (in the example, the Commissioners) and not to a third party objector (such as the DPP in respect of documents produced by the Commissioners), as is plain from the heading of the rule and UCPR, r 1.9(1)(a) which sets out when the rule applies. The construction for which the accused contended is consistent with Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 1151 at [8]-[11] (Brereton J).

There is much to be said for the purposive construction for which the Commonwealth authorities contended. There would appear to be no conceivable reason why a distinction ought be drawn between the law applicable to documents produced by Party C and documents produced by Party A in the example given above. However, I regard the law as having been settled by Carbotech Australia Pty Ltd v Yates, which I consider accords with the plain meaning of the words, although it does not necessarily advance their purpose. It follows that the common law governs the law relating to privilege claims made by the DPP in respect of documents produced by the Commissioners in answer to subpoenas issued to them and the Evidence Act applies to privilege claims by the DPP in respect of documents subpoenaed from the DPP. I am not, however, persuaded that there is necessarily any difference in the result in so far as ss 122, 125 and 126 are concerned. I note that s 122 was amended by the Evidence Amendment Act 2007 (NSW) to include a reference to inconsistent conduct. The Explanatory Note to the Amending Bill recorded that the new s 122 was to be “aligned more closely with the common law test for loss of privilege set out in Mann v Carnell (1999) 201 CLR 1” and to provide that “evidence may be adduced if the client or party concerned has acted in a way that is inconsistent with the maintenance of the privilege”.

I am, however, persuaded that there is a potentially significant difference between the ambit of the privilege at common law and that under s 119 of the Evidence Act. Section 119(b) of the Evidence Act extended litigation privilege beyond the limits of the privilege under the common law since the common law is concerned with communications, whereas s 119(b) extends to documents “whether delivered or not”: New Cap Reinsurance Corp Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258 at [18]-[20] (White J). It follows from my construction of UCPR, r 1.9(4A) above that s 119 applies to documents where the producing party is the objecting party and the common law applies where the objecting party is not the producing party.

In case I am wrong about the applicable law and the Evidence Act applies in both cases, I propose to address, where necessary, both sources of law. For this reason I will refer to legal professional privilege (the language of the common law), or simply privilege, rather than advice privilege (s 118) and litigation privilege (s 119).

It was common ground that the party objecting to access must prove that the document in question was privileged: Grant v Downs (1976) 135 CLR 674; [1976] HCA 63 at 689 (Stephen, Mason and Murphy JJ).

It was also common ground that the accused bore the onus of proving that the privilege did not attach (because of illegality) or was either lost or waived whether the issue was to be determined by the common law or under the Evidence Act.

The Commonwealth authorities have adduced evidence, which includes the affidavits of Mr Tchakerian, Alison Macdonald (General Counsel of the AFP), Jonathan Todd (General Counsel and Assistant Commissioner of the ATO), that the documents in issue are privileged.

The starting point is the general proposition that, if privilege subsists, a recipient of a subpoena is not obliged to provide access to documents, even though they may establish the innocence of an accused person or may materially assist in his defence: Carter v The Managing Partner, Northmore Hale Davy & Leake (1995) 183 CLR 121; [1995] HCA 33 (Carter), which was recently cited with approval in Glencore International AG v Commissioner of Taxation [2019] HCA 26; (2019) 93 ALJR 967. In Carter, the subpoena was issued to a third party and not to the prosecutor. Thus no question of disclosure arose.

The question in the present case is whether the privilege subsists.

I note that the accused is prepared to accept the legality of the s 264 examinations for the purposes of the privilege argument but expressly reserves his position on this question for the purposes of his application for a stay of the criminal proceedings. Accordingly, it is not necessary to consider the material contained in the affidavit of Craig Jardine affirmed on 3 October 2019.

Section 264 of the ITAA relevantly provided:

Section 16(2) of the ITAA provided:

The maximum criminal sanction for a breach of s 16(2) was “$10,000 or imprisonment for two years or both.”

Section 16(2A) of the ITAA provided for an exception in the following terms:

Section 16(1) defined “officer” as follows:

Section 3C was inserted into the TAA by the Taxation Laws Amendment Act 1984 (Cth). The definition of officer was in similar terms to that in s 16(1) of the ITAA. Section 3C(2) contained a similar prohibition as appears in s 16(2) of the ITAA. The exception in s 16(2A) was contained within the portion of s 3C(2) (as enacted) highlighted below as follows:

Section 3C was amended after its enactment, including to double the penalty for infringement of the prohibition in s 3C(2) in line with a corresponding amendment to s 16(2) of the ITAA. For the period 14 September 2006 to 17 September 2009 (which covers the disclosures for which the Commonwealth authorities rely on s 16(2A), being disclosures 1 and 2 in the table above), the form of s 3C was amended to make it congruent with ss 16(2) and 16(2A), namely the relevant prohibition on disclosure was in s 16(2) and s 3C(2) and the relevant exception for performance of duties was in s 16(2A) and s 3C(2A).

Section 3C is relevant because it was referred to in Caratti v The Commissioner of Taxation [1999] FCA 1296; (1999) 42 ATR 714 (Caratti), which was the subject of submissions on the question of construction of s 16(2A) of the ITAA and is considered below. It is also relevant because it is in the same Act as s 3E, referred to below.

Section 3E(1), which was inserted into the TAA by the Taxation Laws Amendment Act (No 3) 1989 (Cth) and came into force on 30 June 1989, provided:

The term “serious offence” in s 3E was defined as an indictable offence. As indicated in the table above, the Commonwealth authorities initially identified s 3E of the TAA as “permitting” disclosures 1 and 2. Although the DPP identified s 3E as permitting the disclosure, the DPP submitted that she had never intended to represent that the disclosure was authorised by s 3E. It is difficult to understand why the DPP identified s 3E as permitting the disclosure if s 3E was not relied upon to authorise it. Whatever might have been the reason for the wording of the letter of 19 March 2019, whether sophistic or otherwise, it is plain from subsequent submissions that the DPP does not rely on s 3E as authority for disclosures 1 and 2 but does rely on s 16(2A) of the ITAA.

Section 3E is, however, relevant because the accused relies on its enactment as evincing a legislative intention that the exception in s 16(2A) be read down so as to give meaning and effect to s 3E and to promote its evident purpose.

Section 3G of the TAA, which came into force on 12 April 2007 and was repealed from 16 December 2010, empowered the ATO Commissioner to disclose information under a taxation law (which includes s 264 examinations) to a “Project Wickenby officer” which was defined as a person who holds office in an agency in, or supporting, the Project Wickenby taskforce.

As referred to above, s 3G is relied upon to authorise disclosures 3, 4 and 5 in the table above. Its statutory successor, item 3 in the table in s 355-70 of the TAA (which is in similar terms), is relied on to support disclosures 5, 11 and 13 in the table above. Disclosures 6-10, 12 and 14 are said to be authorised by s 355-175, which came into force on 17 December 2010. This provision authorises “on-disclosure for original purpose”. The potential “original purposes” listed in s 355-175 include a “purpose of the Project Wickenby taskforce”.

I understand that the accused challenges all disclosures on the basis of Leach, but presses a discrete challenge in relation to disclosures 1 and 2. The challenges to disclosures 1 and 2 rest on the proposition that they were not authorised by s 16(2A) of the ITAA and therefore constitute an offence under s 16(2). In order to address this argument, it is necessary to consider these provisions and the authorities concerning their interpretation. I understand that the accused does not maintain such a challenge to disclosures 3-15 on the same basis, as he accepted that they were authorised by ss 3G or 355-175.

It was common ground that the s 264 information would fall within the prohibition in s 16(2). The Commonwealth authorities contended that the exception in s 16(2A) applied to permit the disclosure of the information to the AFP and the DPP because the duties of the relevant ATO officers entitled them to disclose such information to investigating and prosecuting authorities, including for the purpose of obtaining legal advice. They relied on affidavit evidence from the persons in the ATO who made the disclosures (identified in the table above) to the effect that they regarded themselves as acting in the performance of their duties as tax officers to disclose the s 264 information. They contended that, once it was accepted that a false statement made in the course of a s 264 examination could be the subject of criminal prosecution, the authority to disclose the s 264 information to investigating and prosecuting authorities was necessarily implied and, further, that s 16(2A) was intended to provide that authority. They contended that, in this way, the accusatory and companion principles had been, to that extent, abrogated.

The Commonwealth authorities also relied on R v Yates (1991) 56 A Crim R 29 (Yates) in which the Court of Criminal Appeal held that the relevant secrecy provisions did not prevent officers of the ATO from giving evidence in proceedings involving breaches of taxation law. They submitted that no assistance could be gained from s 3E of the TAA since the Court in Yates held that s 3E of the TAA did not have the effect that s 10(2) of Sales Tax Assessment Act (No. 1) 1930 (Cth) (SATA) (which was analogous to s 16 of the ITAA) ought be read down.

Mr Walker submitted that there was a circularity in assuming that s 16(2A) of the ITAA authorised all non-private disclosures made by tax officers in the course of what they considered to be their duties. He contended that such a construction would be at odds with the clear legislative intention to create a secrecy regime with strictly confined exceptions. He also relied on the circumstance that the Commission of Taxation is empowered, by s 8ZJ of the TAA, to bring prosecutions under s 8K of the TAA and submitted that, in these circumstances, it could not be said that implication of authority to disclose to the DPP was necessary. He contended that the only necessary implication of authority to disclose arose from s 9(5) of the DPP Act, which entitles the DPP to take over prosecutions instituted by another person for offences against Commonwealth laws. He accepted that, when the DPP was considering taking over such a prosecution, officers would be authorised to disclose to the DPP information otherwise protected by s 16(2).

Mr Walker submitted that s 16(2A) of the ITAA ought to be read down so as to give meaning and effect to s 3E and that Yates, properly analysed, did not decide to the contrary. He contended that, while the ITAA and the TAA were separate pieces of legislation, they were plainly cognate and, in some respects, were expressly cross-linked. He submitted that the modern approach to statutory interpretation, which was both contextual and purposive, permitted regard to be had to how a related statute dealt with a particular topic to arrive at a coherent view of the body of law. He submitted that, in light of these general principles, s 3E ought be regarded as a specific power and s 16(2A) as a general power (albeit in the form of an exception), thereby attracting the principle (the Hordern principle) expressed in the following passage from Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9 at 7 (Gavan Duffy CJ and Dixon J):

In reply to Mr Walker’s submission, the Commonwealth authorities submitted that the Hordern principle did not apply when the two provisions did not appear in the same piece of legislation and that therefore s 3E could not limit s 16(2A).

Before addressing the parties’ submissions I propose to consider the cases to which I have been referred.

In Saunders v Federal Commissioner of Taxation (1988) 19 ATR 1289; [1988] FCA 136 (Saunders) the question arose whether, although s 16(2) of the ITAA did not, in express terms, authorise officers to disclose information to the DPP, such disclosure was nonetheless authorised for the purposes of receiving legal advice or action. It was accepted that a finding that the disclosure was unauthorised would put the officer in breach of s 16(2) and liable to criminal penalty. Northrop J, at 1298-1300, held that officers were, by necessary implication, authorised to make such disclosures for that purpose. Of present relevance his Honour said, at 1300:

His Honour expressly left open the question of the use of the information in criminal proceedings in the following terms:

The purpose of the disclosure by the ATO to the DPP in Saunders was, at the stage at which the question was determined, to obtain legal advice rather than to use it in legal proceedings.

In Yates, tax officers obtained information in the course of their duties about the tax affairs of the appellant which was passed onto members of the AFP and officers of the DPP who gave evidence which included this information during the appellant's committal proceedings for multiple offences of obtaining a financial advantage by deception or fraud. The relevant secrecy provision in Yates, s 10(2) of the SATA, was in similar terms to s 16(2) of the ITAA. At the time the officers gave evidence, s 3E of the TAA had not yet come into force, although s 3C was part of the TAA (as set out above). The Court rejected the appellant’s argument that the divulging of information by giving of evidence at a committal hearing was a criminal breach by the officers of the provisions of s 10(2) of the SATA and that, were they to give evidence at the trial, it would also amount to a criminal offence. At 31, Priestley JA (Wood and Finlay JJ agreeing) described s 16 of the ITAA as a “similar provision” and referred to Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1; [1952] HCA 32 in which Dixon CJ (who was relevantly the trial judge from whose judgment the appeal was dismissed by McTiernan, Williams and Kitto JJ) held that the functions and proper actions of the public officials included giving evidence. Of the construction of the exception to the prohibition in s 16 of the ITAA, such as was subsequently contained in s 16(2A), his Honour said, at 6:

The Court in Yates held that, as s 3E was not in force at the time of the conduct, it could not be used to read down the exception in s 10 of SATA. However, Priestley JA said at 32:

The relationship between ss 16(2) and 16(2A) and ss 3C and 3E arose in Caratti. Unlike in Yates, in Caratti s 3E had come into force by the time the relevant conduct occurred. The applicant, Caratti, argued that an ATO officer was in breach of s 16(2) when he disclosed the applicant’s tax information, including information compulsorily obtained from him, to the DPP. French J, citing Saunders, concluded at 723 that there was no basis for excluding from the scope of the duty of an officer of the ATO, the provision to the DPP of information, including information compulsorily acquired from the taxpayer, “relevant to possible court proceedings for offences related to the defrauding of the revenue”. Although the reasons do not indicate that a submission was made that s 3E confined the effect of s 16(2A) or that its enactment would render Saunders and Yates no longer good law, his Honour referred to s 3C (the prohibition in the TAA which contained the exception for disclosure in the performance of the person’s duties) and s 3E (which provided an exception to the “tax secrecy provision”) in the following passage at 722-723:

I regard Caratti as having addressed the same question of construction as arose in the present case. It is of significance that French J did not consider that the limitations in s 3E narrowed the construction of the words “in the performance of a person’s duties as an officer”, whether in s 16(2A) of the ITAA or s 3C(4) of the TAA. The reason for that is that s 3E (and s 16(2)) commences with the words, “Notwithstanding any taxation secrecy provision”. There is no doubt that, if the Hordern principle applied, it would apply to ss 3C and 3E since they appear in the same enactment. French J did not consider that it did. I note that the parties before me did not address the significance of s 3C.

Although I regard Caratti as persuasive authority, for completeness I propose to have regard to the purpose of s 3E and associated provisions, as expressed in the Second Reading Speech and Explanatory Memorandum: s 15AB of the Acts Interpretation Act 1901 (Cth). The Second Reading Speech (Senate, Parliamentary Debates (Hansard), 25 May 1989 at 2642) identified the purpose of s 3E and associated provisions as follows:

The Explanatory Memorandum to the Taxation Laws Amendment Bill (No 3) 1989 (Cth) which, when enacted, introduced s 3E said:

The extrinsic material set out above appears to be premised on the footing that s 3E would, subject to the conditions in the section, permit disclosure which had previously been prohibited. However, it does not follow from the enactment of s 3E that the exception in s 16(2A) or s 3C(2) ought be read down to make illegal those disclosures (such as were considered in Yates and Saunders) which had previously been permitted under that exception. It will always be a question of construction whether provisions either in the same enactment or different enactments ought, when read together, have that effect. Parliament can be taken to have been aware of how s 16(2A) was construed in Saunders (which would apply to s 3C, which was in similar terms) when it enacted s 3E. There is no express indication, either in the text of s 3E or in the extrinsic materials, of a legislative intention to confine the exception in either s 3C or s 16(2A), which is limited by the ambit of the duties of the tax officers, to the strictures set out in s 3E. Caratti involved the construction of the same provisions as are under consideration here in a broadly similar context (although in that case, the taxpayer’s application was made in the Federal Court rather than in the court in which he had been tried or the Court of Criminal Appeal). No material legislative change was made after Caratti to alter its effect. As referred to above, I regard Caratti as persuasive authority. I am not persuaded that I ought depart from French J’s construction of the relevant provisions in that case.

For completeness I should add that I do not regard it as relevant that the tax officers, when making disclosures 3 and 4 (which were made before s 16(2A) was repealed on 17 December 2010), saw fit to fulfil the conditions to meet the requirements of s 3G, rather than to rely on s 16(2A). Their cautionary approach cannot affect the construction of s 16(2A).

I am satisfied that the exception in s 16(2A) of the ITAA authorised disclosures 1 and 2 in the table above. Officers in the position of Mr Walton ought, in my view, be regarded as being authorised as a part of the performance of their duties to seek advice from the DPP on matters which might result in criminal investigation or prosecution. There is a public interest in public officials being able to seek legal advice: Waterford v Commonwealth (1987) 163 CLR 54; [1987] HCA 25 at 62 (Mason and Wilson JJ). In the fiscal context, the seeking of advice from the DPP as to a potential prosecution would appear to be central to the duties of such officers. It is not to the point that (as set out in the narrative above) the DPP earlier identified incorrect or inapplicable sources of power for the disclosures, reliance on which was later withdrawn. Reference to an incorrect source of power does not affect the exercise of that power if it can be supported by another statutory provision: Brown v West (1990) 169 CLR 195 at 203; [1990] HCA 7.

For these reasons, I am not satisfied that the first and second disclosures were made in furtherance of a criminal offence, since, subject to the matter referred to below, I am not persuaded that the disclosure did not fall within the exception in s 16(2A). In these circumstances, the conduct would not prevent privilege attaching under the common law. Section 125(1)(a) of the Evidence Act, which was the portion of s 125 relied upon by the accused, is not engaged.

I have not dealt with the accused’s alternative argument that the s 16(2A) exception ought be read down so as not to authorise disclosure in contravention of the accusatory and companion principles enunciated in Leach. Nor have I dealt with the Commissioners’ submission that, even if the accused’s analysis of the effect of the principles were right, there is no necessary infringement of the accusatory and companion principles if a brief which includes the s 264 information is sent to the DPP. The reason for my refraining from addressing these questions is that the parties have agreed that I am not, in determining the privilege motions, to determine the effect of these principles (that being a matter to be determined after full argument on the accused’s motion for a stay).

The next question is whether the maintenance of the privilege is inconsistent with the Crown’s continued prosecution of the accused and its opposition to the permanent stay. Before turning to the questions of privilege and imputed waiver, it is necessary to set out the parties’ positions concerning the effect of the accusatory and companion principles in the present case, not for the purposes of determining them, but in order to frame the context in which the questions of privilege are to be decided.

It was common ground that the answers given by the accused in the s 264 examinations would be admissible in proof of a charge that he had made a false statement or representation in the course of such examinations. To that extent, the accusatory principle was accepted to have been abrogated. The issue between the parties was the extent of any abrogation beyond this.

I note at the outset that the Commonwealth authorities acknowledged, in accordance with well-established principle, that the courts articulate the common law rather than make it. They accepted that the High Court’s articulation of the effects of the accusatory and companion principles in recent cases applies to all disclosures and use of the s 264 examinations notwithstanding that the first disclosure occurred in 2007, before these principles, which had been recognised in Hammond v The Commonwealth (1982) 152 CLR 188; [1982] HCA 42, were more fully articulated in cases such as X7, Lee (No 2) and Strickland.

The Commonwealth authorities sought to distinguish Leach on the basis of the charges laid and the use to which the s 264 information could be put. They relied on the circumstances that, in Leach, no false representation charges had been laid and that the s 264 answers were sought to establish a consciousness of guilt. They contended that the ratio of Leach is as follows:

On this basis, the Crown (and the DPP) contended that the abrogation of the accusatory and companion principles was not confined to prosecutions where the only false statements alleged to have been made were made within a s 264 examination but extended to prosecutions for false representations, such as the present, where answers given in a s 264 examination formed part of a course of conduct which also included statements made by the accused voluntarily.

The Commonwealth authorities also sought to distinguish R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76 (Seller) and foreshadowed that the Crown will contend at the motion for a stay that the Commonwealth authorities were entitled, not only to disseminate and use the compulsorily obtained material, but also, at an eventual trial of the proceedings (if it is not stayed), to tender parts of it in evidence.

The accused contended that the accusatory and companion principles had the effect that the s 264 examinations could only be used by the DPP in a prosecution of the accused for a charge which was limited to the falsity of statements made in the s 264 examinations and could not be used in connection with the prosecution of the accused for a charge which went beyond that, or for any other charge. Mr Walker submitted that, once it was accepted that his submission as to the effect of the accusatory and companion principles was arguable, the accused was entitled to material which evidenced the use and dissemination of the s 264 examinations, for the purposes of his application for a stay.

The Crown authorities accepted that the accused’s contention as to the effect of the principles was arguable, although they contended it to be incorrect on the basis set out above.

The Commonwealth authorities submitted, on the basis of Petroulias, that questions of privilege were distinct from questions of the Crown’s duty of disclosure. They contended that, if the DPP chose not to disclose privileged documents, the Crown could not be compelled by the Court to disclose them since the Crown’s duty of disclosure could not be enforced by the court except by a stay of proceedings.

I reject this submission. The principles of imputed waiver of legal professional privilege apply with at least as much force to the Crown and the DPP as its agent as they do to any other party to legal proceedings. The Crown is however, in a special position in that the concept of fairness against which any alleged inconsistency with the maintenance of the privilege is to be assessed, includes the requirement for a fair trial of the accused which may, in some cases, make relevant the Crown’s duty of disclosure. If the Crown fails to comply with its duty of disclosure (as the accused alleged occurred in the present case), it is open to the accused to have subpoenas issued for production of the documents which he contended ought to have been disclosed by the Crown: Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109; (2018) 333 FLR 352 at [14], [18] and [19] (Basten JA, Johnson and Adamson JJ agreeing).

Once a subpoena has issued (which has not been set aside on the ground of improper purpose or read down on the ground that it is oppressive), a party is relieved of the obligation to produce and provide access to any document falling within the subpoena only if there is a claim for privilege which is either accepted or, if challenged, upheld. By requiring production of documents falling within a subpoena where there has been, for example, imputed waiver of legal professional privilege, the Court is doing no more than enforcing the subpoena, as it is entitled to do, and ought not thereby be taken to be enforcing the duty of disclosure which, as the Commonwealth authorities correctly submitted, can only be enforced by a stay.

I do not regard Petroulias, which is considered below, as deciding to the contrary. It turned on documents which were found to retain the privilege, no imputed waiver having been found. The question of subpoenas did not arise in Seller, which is also considered below. There was no issue about whether the duty of disclosure had been complied with.

Before turning to the question of inconsistency in the present case, it is necessary to address the decisions of R v Bunting (2002) 84 SASR 378; [2002] SASC 412 (Bunting), Petroulias and Seller which were the subject of extensive submissions. The relationship between the prosecutor’s duty of disclosure and the maintenance of legal professional privilege squarely arose in Bunting and Petroulias and was addressed in Seller. Seller is also significant because, as in the present case, the accused had been compulsorily examined before he had been charged.

In Bunting, Mr Vlassakis had been jointly charged with the accused, Bunting, on five counts of murder. He was subsequently arraigned on an indictment which charged him with four of the five counts, to which he pleaded guilty. The Crown discontinued the fifth count against him. Mr Bunting sought production of various categories of documents concerning Mr Vlassakis, over which the Crown claimed legal professional privilege. Mr Bunting argued that the documents were no longer privileged, either because of voluntary or imputed waiver.

Martin J addressed the issue of inconsistency in the Mann v Carnell sense between the prosecutor’s maintenance of the privilege and the prosecutor’s conduct. As the common law applied in South Australia, the Evidence Act did not arise. His Honour considered that if the maintenance of the prosecution, with its attendant duty of disclosure, was inconsistent with the maintenance of the privilege, there would be an imputed waiver. His Honour observed at [74] that:

Martin J accepted that legal professional privilege was capable of applying to communications to which the DPP and staff were parties. His Honour considered the various categories of documents sought and made rulings, including the following:

Martin J addressed the question of disclosure of privileged documents as a general matter as follows at [81]:

In Petroulias, a claim for privilege was made by the Crown in the context of a subpoena issued in criminal proceedings. The documents over which privilege was claimed were notes taken by staff of the DPP in conferences with witnesses. The accused argued there had been an imputed waiver of privilege under s 122 of the Evidence Act 1995 (Cth) or the common law by reason of the Crown’s calling the witnesses at committal proceedings and at earlier trials of the accused. Although Mann v Carnell had been decided, s 122 of the Evidence Act had not yet been amended to reflect the concept of inconsistency. Johnson J found that no waiver of privilege over such documents, either at common law or pursuant to s 122 of the Evidence Act, ought be imputed from the serving of witness statements or the calling of witnesses. His Honour said, obiter, at [63]-[64]:

In Seller, the Australian Crime Commission conducted an examination of the accused pursuant to s 30 of the Australian Crime Commission Act 2002 (Cth) (the ACC Act) at which Mr Tang, a tax officer, and Ms Simpkin, the case officer at the Australian Crime Commission, were present. The examiner had made directions prohibiting the publication of the examination. The two accused were subsequently charged with participating in a conspiracy with the intention of dishonestly influencing a Commonwealth public official in the exercise of his duties. The transcript of the examination, which dealt with matters that were central to the charge and to the defence to the charge, was given to the DPP and was read by certain officers. The ACC Act expressly prohibited the use of the material as evidence. It was not suggested that there was any other material difference between the ACC Act and the relevant provisions of the ITAA, including s 264.

The accused applied for a stay of the prosecution on the ground that officers of the DPP had been privy to the transcripts of the compulsory examinations. Notwithstanding that the Crown contended that it had derived no forensic benefit from the examinations and that the prospect that it had was no more than speculation, the primary judge granted the stay. On appeal, the Crown assured the Court of Criminal Appeal that no one involved in the prosecution of the accused had either been privy to the examinations or had access to the transcripts. The single exception, Mr Tang, had prepared an expert report which had been served on the accused and there was at least a prospect that he would be called as a witness at trial. The Court of Criminal Appeal allowed the appeal and set aside the stay.

Bathurst CJ (Fullerton and Bellew JJ agreeing) said that it was important to consider the manner in which the Crown put its case to determine whether there was an inconsistency. His Honour said, at [164]:

Fullerton J (Bellew J agreeing), who agreed with the reasons of Bathurst CJ, addressed the impact of such principles on the Crown’s duty of disclosure, including in relation to privileged documents. Her Honour said:

The Commonwealth authorities submitted that I ought follow what Johnson J said in Petroulias, namely that the duty of disclosure is not affected by privilege and not what Martin J said in Bunting, which was that the duty of disclosure might have the effect that a prosecutor whose conduct of the proceedings was inconsistent with the maintenance of the privilege would be compelled to disclose otherwise privileged documents. They contended that Bunting was plainly wrong and was, in any event, distinguishable since it was decided on the basis of the common law rather than the Evidence Act which the Commonwealth authorities submitted applied for the reasons given above. Further, they submitted that maintenance of a prosecution cannot, as a matter of principle, be inconsistent with the maintenance of the privilege.

The Commonwealth authorities also referred to Watkins v State of Queensland [2008] 1 Qd R 564; [2007] QCA 430 in which Keane JA said (Jerrard JA and McKenzie J agreeing), when considering imputed waiver under the common law:

The accused contended that Bunting was correctly decided and that the reasoning of Martin J was available and applicable to the present case. Mr Walker also relied on the passages from Seller set out above.

I do not regard the alleged inconsistencies between Petroulias and Bunting to arise from a fair reading of the reasons in those cases. Where Martin J used the language of ranking (“prevails”), his Honour did so parenthetically to indicate that it was not a question of priority, or “balancing”, but rather, as is the case, consistency. Pain J did not follow Bunting in Filipowski v Nikolaos; Filipowski v Pontain Shipping Co Ltd [2004] NSWLEC 432; (2004) 136 LGERA 157. However, in that case the defendant submitted, incorrectly, that Bunting was authority for the proposition that a privileged document would have to be disclosed by the Crown if it could assist the defence, whether or not there had been (as was found in Bunting itself) imputed waiver. In following Carter, Pain J did not advert to the important distinction which was that in Carter a third party, and not the prosecutor, was the recipient of the subpoena.

In Petroulias, Johnson J (who cited Bunting with approval) was satisfied that there had been no imputed waiver. Therefore the point was moot as the duty of disclosure did not require production of privileged documents where there was no inconsistency or other basis for waiver. I regard Fullerton J in [242] of Seller as echoing what Martin J said at [81] in Bunting, namely: where the maintenance of the prosecution in the particular circumstances was inconsistent with the maintenance of the privilege in the context of a criminal trial, there would be an imputed waiver and the duty of disclosure would require the documents to be disclosed to the accused. If the duty of disclosure would require the documents to be provided to the accused, then it is self-evident that the accused would be entitled to access to such documents if produced on subpoenas issued at the request of an accused following an alleged breach of the duty of disclosure.

I regard the submission made by the Commissioners but adopted by the DPP and the Crown that maintenance of a prosecution cannot be inconsistent with the maintenance of the privilege to be at odds with what Fullerton J said in [240]-[242] above.

In summary, the Crown is obliged, by the common law and by s 122 of the Evidence Act, to disclose documents which would otherwise be protected by legal professional privilege, if waiver of the privilege has been imputed by reason of an inconsistency between the maintenance of the privilege and the Crown’s conduct of the proceedings.

The relevant test for imputed waiver on the grounds of inconsistency was expressed in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46 at [30]:

In order to address the question of inconsistency in the present case, it is necessary to consider the way in which the Crown case is put: Seller at [162]. This requires a consideration of the use to which the s 264 information has been put in the investigation, the framing of charges and the prosecution of the accused and the forensic use to which it is proposed to put the s 264 information in the trial of the accused.

Each false representation charge relates to a representation regarding a company, Kalomo or Kalomo Pacific. The particulars of each false representation charge identify separate occasions on which it is said that a false statement (that the accused did not control the company) was made. Each of the particulars is said to be part of a course of conduct. It is an element of the offence that the representation was made with the intention of influencing a public official. The Crown explained that the case was to be run as a course of conduct case in order to strengthen the evidence to support the element of “influence” since it accepted that one or two false statements might not be sufficient to prove the charge.

The Crown contended that there could be no objection to including the accused’s answers in the s 264 examination as particulars of the false representation charges. The Crown submitted that the answers would be used to prove the representation. However, it said that they would not be used for the purposes of establishing a consciousness of guilt; for a “general attack on credit”; or “to prove the falsity of the representations”. For present purposes, it is not necessary to consider how, as a practical matter, a direction could be given to the jury which would have the effect of confining the use of the answers in the manner proposed by the Crown, since this is a matter which will arise on the accused’s motion for a stay.

The Crown’s position, as summarised in its written submissions, was:

The Crown authorities accepted that the investigators and prosecutors have had access to, and used, the s 264 information. However, they contended that, by reason of the false representation charges, such access and use did not infringe the accusatory or companion principles. The Crown and the DPP contended that all that was required of them was to disclose “the circumstances in which those transcripts were provided to the prosecution and then to take necessary steps to ensure that it [the transcripts] did not affect the trial” (see the extract from the Crown’s submissions on 29 April 2019 set out above). They contended that, by providing the documents under cover of which the s 264 information had been disclosed by the ATO to the AFP and the DPP, they had fulfilled the first part of that obligation. They submitted that, in so far as the false representation charges in the present case were founded on answers given in the s 264 examination, they would be proved by the tender of such transcripts. They contended further that, if any further steps were required to be taken to ensure the fair trial of the accused, the assurances the Crown had given as to the limited use to which the s 264 examinations would be put (summarised above) ought be accepted and would suffice for that purpose. The correctness of these submissions must await consideration at the hearing of the application for a stay.

The Commonwealth authorities submitted that the accused could rely on their acknowledgement of dissemination and use, and the documents which evidenced the disclosures (set out in the table above) for the purposes of his application for a stay. They contended that the maintenance of privilege was, accordingly, not inconsistent with the Crown’s opposition to a stay. They submitted that, if the Court were to order a stay on the basis that such access and use infringed those principles, the Crown could then decide whether to pursue the prosecution with a “clean team” of persons who had not been privy to the s 264 information or to take whatever other course might be advised. They relied on judicial observations regarding the importance of legal professional privilege: DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384 (Allsop J) at [24]; cited with approval in Armstrong Strategic Management & Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWCA 430; (2019) 295 ALR 348 at [93] (Campbell JA, Macfarlan JA and Sackville AJA agreeing). They submitted that, in light of the significance of the privilege I ought be cautious about finding imputed waiver on the grounds of inconsistency which is, by definition, involuntary.

Mr Walker contended that the duty of disclosure required that material, including privileged material, be disclosed. He contended that there was an inconsistency between the maintenance of the prosecution of the accused on the Original Indictment and the New Indictments (and the associated opposition to the permanent stay) and the maintenance of the privilege such that the court would order its production. I do not understand his argument to be affected by the subsequent discontinuance of one of the New Indictments. He relied on the passage set out above about the duty of disclosure by Fullerton J (Bellew J agreeing) in Seller. Mr Walker submitted that the subpoenas had been drafted to require the production of documents to prove the matter referred to by the plurality in Strickland at [80], namely: “how and by whom the examination product has been used to build the prosecution case”. Of the importance of a concrete foundation for the accused’s application for a permanent stay, Mr Walker submitted orally:

In Seller, the Court of Criminal Appeal was positively satisfied that the prosecuting and investigating authorities had derived no forensic benefit from the compulsory examination of the accused. By contrast, in the present case, the Crown proposes to use the s 264 examinations in the prosecution of the accused for two charges, each of which is said to involve a course of conduct, of which the answers in the s 264 examination form a part. It acknowledged, in a table, entitled “Summary of Contact with s 264 examination transcripts amongst CDPP and counsel retained” provided to me for this purpose, that every member of its current prosecution team has either read the s 264 transcripts or a detailed summary of them or has read what is revealed about their contents by the Statement of Prosecution Facts.

I accept Mr Walker’s submission that the material over which privilege has been claimed is potentially highly relevant to show the manner and extent of the use of the s 264 material by the Commonwealth authorities. Upholding the claim for privilege would make it impossible for the accused to prove the manner and extent of such use and leave this Court in a position whereby it was considering the accused’s application for a permanent stay of proceedings on incomplete information limited to what the Commonwealth authorities chose to disclose or admit about the disclosure and use, rather than evidence as to the actual use. I am satisfied that there has been imputed waiver on this basis.

The further question arises as to whether the inconsistency must be created by the act of the privilege holder or whether the inconsistent conduct may be that of a third party. In many cases, this question admits of a relatively straightforward answer. In a civil case, a forensic decision by the lawyer is imputed to the client on the assumption that the lawyer has the client’s express or implied instructions for that course. In such cases there is no difficulty in a forensic choice by the lawyer being attributed to the client and being found to be inconsistent with the maintenance of privilege by the client. The present case is more difficult because of the number of “parties” involved: the ATO, the AFP, the DPP and the Crown. In the case of some documents, the privilege is that of the ATO or the AFP. Once the accused has been committed for trial, it is the DPP who has conduct of the proceedings on behalf of the Crown. The DPP makes prosecutorial decisions (including to decline to proceed further in the prosecution: s 9(4) of the DPP Act). The AFP and the ATO are no longer “clients” in accordance with whose instructions the DPP is bound to act.

In the present case, the act relied on by the accused as creating the inconsistency with the maintenance of the privilege is the Crown’s opposition to the accused’s application for a stay. The accused submitted that, such was the relationship between the Crown (and the DPP) and the Commissioners, that the Commissioner’s privilege was affected by the conduct of the Crown under the doctrine of imputed waiver.

I propose to address briefly the position of the DPP and the Crown. Mr Crown contended that the Crown was in the same position as the accused in that the Crown had not been privy to the documents over which privilege had been claimed. Although I am bound to accept that Mr Crown personally had not been privy to those documents, “the Crown” is the legal person for whom the DPP acts as agent. Knowledge of the DPP’s documents is attributed to the Crown, whether or not the natural person appearing for the Crown on the instructions of the DPP has been privy to them. The prosecutor’s duty of disclosure and decision to maintain privilege and to oppose the accused’s motion for a stay are each matters where the Crown and the DPP are, as Mr Crown accepted, relevantly indistinguishable. While there may be practical reasons why the DPP has been separately represented from the Crown on the subpoena motion and the privilege motions, the separate representation does not affect the legal position that the DPP brings the proceedings on behalf of the Crown. Thus, if there is a relevant inconsistency between the Crown’s opposition to the stay and the DPP’s maintenance of privilege, imputed waiver will arise.

The Commissioners are in a somewhat different position. The Commissioners relied on the circumstances that they are neither parties to the criminal proceedings, nor can control whether the DPP maintains the present prosecution, nor whether the DPP continues to oppose a stay: ss 6(1)(a) and (b) and s 9(4) of the DPP Act. The Commissioners also relied on the Prosecution Policy of the Commonwealth, which relevantly provides:

The Commissioners argued that the DPP’s decision to maintain the prosecution and oppose the stay cannot constitute an act of the Commissioners for the purposes of the imputed waiver principle either under s 122(2) of the Evidence Act or Mann v Carnell.

The issue of which party’s inconsistent conduct is relevant was not addressed in Seller. Nor did it arise in Bunting or Petroulias. Accordingly, it is necessary to approach the question as a matter of principle.

The DPP’s Statement on Disclosure, March 2017 (on which the accused relied), provides, in [5] that:

It is of significance, as is summarised in the passage extracted above, that no distinction is drawn, for the purposes of the duty of disclosure between, relevantly, the Crown on whose behalf the DPP prosecutes the charges and the investigative agencies, such as, in the present case, the ATO and the AFP. The positions of the ATO and the AFP are to be contrasted with the third party recipient of the subpoena in Carter, who was found to be entitled to maintain the privilege. While the ATO and the AFP are separate from the DPP and the Crown, the ATO and the AFP are relevantly investigatory bodies, the fruits of whose investigations provide the basis for the formulation of charges, which were laid, in the first instance, by the AFP (following, in this case, advice from the DPP and from counsel retained by the DPP). It is their endeavours which produce and assemble the evidence on which the accused was committed for trial and upon which he is to be tried.

Thus, for these purposes, the ATO, AFP and DPP are related since the conduct of any of them in connection with the investigation, charging and prosecution of the accused attracts the accusatory and companion principles. As Doyle CJ said in the passage extracted by Martin J in Bunting set out above, “the court will be alert to prevent the prosecution manipulating legal professional privilege to escape its duty of disclosure”. While this dicta was directed to the Crown’s duty of disclosure, there would appear to be no reason why the aggregation of investigative and prosecuting authorities for the purposes of the duty of disclosure ought be either undone or found to be irrelevant in the context of subpoenas, particularly where they have been issued for the purpose of requiring the DPP to comply with what the accused asserts to be an unfulfilled duty of disclosure.

The matter can be tested as follows. Say the ATO used the accused’s s 264 examinations as the basis for its investigation into whether he should be charged and with what offence. The ATO might, for instance, have gone through each answer given by the accused and sought evidence elsewhere to test its veracity and to prove its falsity (an inference that this occurred is open from the Outline of Prosecution Facts). If the s 264 examinations were used in this way, then, if the accused’s argument about the effect of Leach is correct, the accused could not have a fair trial unless this process were undone and begun again by investigators who had no knowledge of the content of the s 264 examinations. This would be so even if the ATO gave the AFP and the DPP only the fruits of its investigation, being the evidence garnered to show that the accused’s answers were false, and not the s 264 examinations.

Where, as here, the ATO, as an investigative agency which is regarded as included within “the prosecution”, can be taken to have used the s 264 examinations in the investigation of the accused that led to the laying of charges by the AFP and his prosecution by the DPP, it would, if the accused is correct, defeat the accused’s rights reflected in the accusatory and companion principles if the ATO could maintain the privilege on these documents by arguing that it was the DPP’s conduct in opposing the stay and not its (the ATO’s) conduct which was inconsistent with the maintenance of privilege.

For these reasons I consider that the DPP’s opposition to the stay is inconsistent with the maintenance of privilege over documents not only by the DPP but also by both the investigative authorities, the ATO and the AFP, in so far as those documents show the extent of the dissemination and use of such documents in the investigation, charging and prosecution of the accused. The maintenance of the Commonwealth authorities’ claims for privilege would deprive the accused of the opportunity to prove the factual substratum to support his application for a stay, which might fail as a consequence: Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 at [52]–[53]. The accused’s right to argue that he is entitled to a permanent stay of proceedings on the basis of the extent of the dissemination by Commonwealth authorities and use by the prosecution of answers compulsorily obtained from him would be substantially compromised if the accused were denied access to the very documents which tended to show the manner, nature and extent of the use to which his answers had been put.

It follows that, as a consequence of having conducted an evaluative assessment such as was described in Seller, I am satisfied that there has been an imputed waiver of the privilege of the Commonwealth authorities, by reason of the inconsistency between the maintenance of privilege and the Crown’s opposition to the accused’s application for a permanent stay. The accused is entitled to access to any documents, which were subject to this privilege, which tend to show the dissemination, and use, of the s 264 information as there has been an imputed waiver of privilege by the Commonwealth authorities.

It does not follow from these reasons that the accused is entitled to access to all prosecution documents to dissect the way in which the whole Crown case against him was constructed. Much of the Crown case does not relate to, or rely on, statements made by the accused in the s 264 examinations. He has, in his dealings with the ATO, consistently denied that he controlled Kalomo and Kalomo Pacific, both before and after the s 264 examinations. The documents reveal inquiries being made as to that question as a matter of fact which do not depend on, or refer to, his s 264 examinations, but to other representations. It follows that imputed waiver of part of a document does not give rise to imputed waiver of the whole where the part affected by the s 264 examinations or referring to them does not affect the balance of the document.

Various suggestions were made in the course of the privilege motions as to whether I ought inspect documents and whether it was necessary for me to make rulings on some documents and not others (given the number of documents over which privilege has been claimed by the DPP). The DPP suggested that I could give reasons which would guide another person (such as a judge, registrar or agreed independent person) to review all the documents in dispute and make rulings in accordance with the procedure suggested by Davies J in Propend Finance Pty Ltd v Commissioner, Australian Federal Police (No 2) (1994) 35 ALD 25 at 42. I am not yet persuaded that such an option is necessary since it may be that the disclosure required by these reasons obviates the need for further rulings.

In making the rulings set out below, I use the expression “imputed waiver”, except where otherwise stated, as shorthand for the reasons I have given above as to the inconsistency between the Crown’s opposition to the stay and the maintenance of the privilege over those documents which tend to show the dissemination and use of the s 264 information.

The documents sought by the subpoenas over which privilege has been claimed have been divided by the DPP into the following categories:

It is apparent from the nature and subject matter of the documents the subject of claims, as well as the evidence, that the documents fall within the definition of “confidential communication” or “confidential document” for the purposes of s 117 of the Evidence Act: see also Hamilton v State of New South Wales at [38]-[39]. The documents falling within categories A and B will be affected by my finding as to the date at which the proceedings were anticipated.

Dr Renwick informed me that if I found imputed waiver on the basis of Leach, this would lead to further production of a significant number of documents to the accused. I note the assurance by the Commonwealth authorities that they will abide by my reasons and rulings in considering other documents to which the accused is entitled access.

Ultimately, the Crown and the DPP have asked me to rule on sample documents which I assume have been chosen for their representative qualities. The 20 documents are contained in a folder marked for identification (MFI) 12. The documents are confidential but the index has been disclosed to the accused. The accused does not accept the validity of the sample approach or that he is bound by any such rulings beyond the particular documents chosen as representative samples. The accused has provided a schedule of privilege claims made by the DPP which he challenges (MFI 6).

Although at the outset, there appeared to be an assumption that I would inspect at least some documents in certain confidential exhibits to the affidavits read in support of the privilege motions, I understand that this assumption has been superseded, in the case of the claims by the DPP, by the selection of the documents in various categories referred to above in respect of which a ruling is sought and which are set out below. If this assumption is incorrect, the matter can be re-listed for that purpose.

Privilege has been established and has not been lost. The maintenance of privilege in this document, which relates to general case preparation, is not inconsistent with the Crown’s opposition to the stay application.

The covering email (AFP.001.001.0291) retains privilege. The attachment contains material which tends to indicate the use to which the s 264 was, and will be, put. The document, which is a draft statement of facts, was privileged but waiver is imputed as to that part of the document on page AFP.001.001.0292_0019 from “Between 4 May 2005…” to “acted on his direction [footnote 140]” as the maintenance of privilege is inconsistent with the Crown’s opposition to the stay application. The balance retains privilege.

The document attracts privilege because it relates to a draft witness statement. There has been an imputed waiver of the discrete passage on the first page (CDP.501.001.3139) entitled “S. 264 interviews”.

The emails, which are privileged, do not include the attachments. As such, they do not appear, in themselves, to be inconsistent with the maintenance of privilege.

As this spreadsheet is in category C, I infer that it was produced by the ATO or the AFP for the DPP. It attracts privilege. To the extent to which it refers to the accused’s interview transcripts (such as at items at Tabs 716-720), there has been imputed waiver.

This document is a statement of facts (which I assume to be in draft). It is covered by the same ruling as to imputed waiver as document 2 above.

The document comprises email communications with potential witnesses and advisers and attracts privilege, waiver of which is not imputed. The document refers to but does not contain an attachment. Accordingly, the ruling covers only the email exchanges.

The document describes categories of ATO documents which have been disclosed to the accused as well as those which have not and the reason why documents in the latter have not been disclosed. There is no imputed waiver. As the documents referred to in the table are not within the sample documents, no ruling is made as to whether there has been imputed waiver of those documents, although this conclusion may follow from the reasons given above.

The maintenance of privilege in this document is not inconsistent with the Crown’s opposition to a stay, although documents referred to in the email exchange may be the subject of imputed waiver. As the attachments do not fall within MFI 12, no ruling is made on those documents.

Although the email chain attracts privilege, the topic of concern is largely administrative. There is no imputed waiver.

The author of this document, which is dated 22 July 2014, was Dimitrios Kapeleris, the case officer at the DPP at the relevant time. According to the schedule provided to me, he did not read the s 264 examinations other than what is contained in the Outline of Prosecution Facts, to which there is no reference in the document. For this reason, I am not satisfied that there has been imputed waiver on the ground of inconsistency, except in so far as that fact is recorded in [5] of the document (CDP.001.002.0609).

The author was the case officer at the DPP at the relevant time. It was accepted in the DPP schedule that he had probably read the s 264 examination, as is evident from document 12 itself. I am persuaded that there is imputed waiver of part of the document, being [6](q) on page CDP.006.001.0169 and [31], including footnote 26 on page CDP.006.001.0175.

The document is an internal ATO file note dated 25 January 2019 which relates to a request by the DPP for information regarding disclosure of compulsory examination information. It post-dates the disclosures by some years and contains nothing of assistance to the accused. The maintenance of the privilege is not inconsistent with the Crown’s opposition to the stay application.

These emails relate to draft submissions for the accused’s motion for a stay. There is no imputed waiver of privilege.

These emails relate to the respective claims for privilege by the ATO and the AFP. There is no imputed waiver.

The author of the advice, Mr Ginges, has read the s 264 transcripts, according to the schedule provided. There are three specific references to the s 264 examinations in the advice (dated 16 October 2016) which relates to proposed charges to be laid. I do not consider that the imputed waiver ought be limited to these references. I am persuaded that there is imputed waiver of the whole advice which would otherwise be privileged.

The document is privileged. I am not persuaded that there has been any imputed waiver.

This email chain relates to the formulation of charges and pre-dates, by a short period, the actual laying of charges. I am persuaded that it would be inconsistent for the privilege to be maintained over the whole document having regard to the Crown’s opposition to the stay application. Although there is no express reference to the s 264 examinations, there would appear to be a necessary implication as to their importance in paragraph 1(c) on page CDP.501.001.7867_0002. Accordingly, I am persuaded that there is imputed waiver of that paragraph.

This email chain relates to procedural matters in the current proceedings. I am not persuaded that the maintenance of the privilege is inconsistent with the Crown’s opposition to the stay application. There is no imputed waiver.

This minute relates to an aspect of the proceedings which does not touch on the s 264 examinations. I am not persuaded that the maintenance of the privilege is inconsistent with the Crown’s opposition to the stay application.

I note that Mr Howe SC, who appears with Mr Melican for the Commissioners, confirmed that no part of the Commissioners’ claims for privilege is “based on rulings by reference to samples”. I apprehend, accordingly, that the documents contained within MFI 12 are those over which the Crown and the DPP claim privilege. The Commissioners have provided me with a Bundle of Outstanding Claims, contained within two folders and invited me to inspect such documents and to make rulings on these documents, by reference to categories.

The Commissioner of Taxation has identified the following categories of documents over which he claims privilege:

I have inspected each of the documents referred to below.

As referred to above, legal advice dated 5 February 2008 was given by Ms Shouldice (the Shouldice advice) to the ATO, following a request by Mr Walton. The accused accepted that the document was created and communicated for the dominant purpose of giving legal advice and was therefore prima facie privileged under s 118 of the Evidence Act and the common law. The accused submitted that the Commonwealth authorities have divulged the substance of the Shouldice advice (in documents extracted in Exhibit D1, passages from which are set out above) and are therefore to have been taken to have waived privilege on the whole. In support of his submission that there had been waiver by partial disclosure, the accused relied on the disclosure of Mr Walton’s request for advice. They also submitted that a number of documents had been disclosed which conveyed the gist of the Shouldice advice.

The accused submitted further that the document falls within the category of documents in which privilege ought be found to be the subject of imputed waiver. The accused also relied on the fact that the DPP had disclosed Mr Walton’s request for advice to him (with the concurrence of the ATO and the AFP) for the forensic purpose of supporting her submission that the disclosure by the ATO to the DPP was lawful and fell within the exception in s 16(2A) of the ITAA (as appears from the extract of the Crown’s submissions dated 29 April 2019 set out above).

The ATO claimed privilege on the Shouldice advice and argued, for the reasons given above, that it had done nothing which was inconsistent with the maintenance of the privilege and that, accordingly, there could be no imputed waiver. The Commissioner for the ATO contended that there was nothing about the Crown’s use of Mr Walton’s request for advice (disclosure 1) which deprived the accused of the opportunity to test its legality.

The Commissioner also contended that the parts of the Shouldice advice which had been disclosed included the conclusions (described by the Commissioner as “unsurprising”) that an investigation is needed to establish that the accused held beneficial interests in the relevant companies and, if an investigation establishes that beneficial interests are held, this would indicate a criminally wrongful misrepresentation. The Commissioner contended that these matters did not amount to the substance of the advice. He submitted that the substance of the advice “concerned the necessary investigative steps and how those steps should be taken to obtain admissible evidence” and that these matters of substance have not been disclosed. The Commissioner invited me to look at the Shouldice advice pursuant to s 133 of the Evidence Act for the purposes of determining the privilege claim.

Whether waiver is to be imputed does not turn on the question, as was put on behalf of the Commissioner above, whether the dissemination of the s 264 examination by Mr Walton to Ms Shouldice was “lawful” (since I have decided on the basis set out above, and subject to Leach, that it was because it fell within the exception in s 16(2A)). Rather, the larger question is whether the Shouldice advice tends to reveal the use made of the s 264 examination in the investigation, such as would give rise to imputed waiver.

I regard the Shouldice advice as falling squarely within my reasons concerning imputed waiver set out above. Ms Shouldice was, in effect, the first recipient of the s 264 examinations. As is evident, she was provided with the s 264 examinations for the purposes of providing advice to the ATO “as to whether an investigation into this matter is likely to be fruitful”. As such, the Shouldice advice falls within the category of documents where the maintenance of privilege by the Commissioner constitutes an abuse which disadvantages the accused forensically (to borrow the language of Keane J in Watkins v State of Queensland in the extract set out above) because he will be unable to establish the manner and extent of the use of the s 264 examinations without it. So much can be discerned without inspecting the advice itself. On inspection, it became apparent that sections 4, 5, 6, and 7 of the Shouldice advice deal with discrete matters which fall into a separate category. I consider there to have been imputed waiver of the Shouldice advice except for sections 4, 5, 6 and 7.

It is also necessary to consider the accused’s further submission that such disclosure of the advice as there has been has the effect that privilege has been lost on the whole. I accept the Commissioner’s submission that the advice, in substance, falls into two discrete parts. I am persuaded that the disclosures that have been made of the first part are not such as to require disclosure of the second part (being sections 4, 5, 6 and 7).

The ruling on the Shouldice advice covers other documents in category A.

The Commissioner of Taxation maintains a claim privilege over the following documents in category D:

I have inspected document (1) which is a file note made by the DPP of a conference with the ATO about the accused’s tax affairs. I accept that the document attracted legal professional privilege but I consider that imputed waiver of part of it applies for the same reasons as for the Shouldice advice. In so far as the file note records matters relating to the topics in the Shouldice advice which I have found are not the subject of imputed waiver, there is no imputed waiver in respect of such topics in this document.

Document (2) is the same document (albeit from a different source) as document 16 in the DPP’s sample bundle (MFI 12). I accept that the document attracted legal professional privilege but, for the reasons given above, there has been imputed waiver of the whole advice.

The Commissioner of Taxation maintains a claim for privilege over the following documents in category F:

Both documents (1) and (2) attracted legal professional privilege. Document (1) at tab 17 refers to aspects of the Shouldice advice which relates to parts which I have found not to be the subject of imputed waiver. Accordingly, there has been no imputed waiver in respect of the claimed parts of document (1).

Parts of the document (2) at tab 18 are the subject of imputed waiver: the first, second and fourth paragraphs. The balance retains privilege.

The Commissioner of the AFP has identified categories of documents over which he claimed, and the accused challenged, privilege, as follows:

The Commissioner of the AFP continues to claim privilege over 9 documents in this category (tabs 19-27 of the Bundle of Outstanding Claims). These documents attracted privilege but imputed waiver applies since the advice sought and given concerned whether the s 264 examinations can be relied upon and for what purpose and whether they ought be included in the brief and the statement of facts.

The documents in category B had been divided into sub-categories as follows by reference to the accused’s challenges to these claims:

Document CDP.001.002.0166 (tab 48) retains its privilege. The part over which privilege is claimed on CDP.001.002.0167 is the subject of imputed waiver because it relates to the formulation of charges over which the s 264 examinations may have had an influence.

There is imputed waiver of part of the document at tab 49 in respect of which privilege is claimed on page CDP.002.004.0012 from “[Someone from the AFP....” to “no connection to KG”. The same ruling applies to the document at tab 51, which is a copy of the document at tab 49.

The Commissioner retains the privilege over the documents at tabs 52, 53, 54, 55, 56, 57, 59, 60, 61 and 63 (which is the same as document 57) as there has been no imputed waiver. There is an imputed waiver of the part of the document at tab 62 under the heading “Charges” down to, but not including the heading, “Draft Statement of Facts”.

Parts of the document at tab 36 are covered by my reasons regarding imputed waiver. The Commissioner of the AFP ought grant access to those parts which relate to, bear upon or evidence the use of the accused’s s 264 examinations. This ruling includes the passage on AFP.500.001.1436 from “On 20 October 2005…” up to and including the reference to footnote 136 and the footnote itself.

There has been imputed waiver of part of the covering letter of 15 September 2014 (in tab 34), being the date and addressee and the first paragraph on the first page (AFP.500.001.0001) and the paragraphs commencing “Relevantly, I note that…” and “I have reviewed the material…” on page 2 (AFP.500.001.0002). The balance of the letter retains privilege.

There has been imputed waiver of part of the document at tab 34 (the advice which commences at AFP.500.001.0005), being that part from the heading “Opinion” to the end of paragraph [100] of the document. The balance retains privilege. This ruling also applies to the document at tab 37 (ATO.500.005.0003) and the document at tab 39 (ATO.500.005.0080).

With respect to the document at tab 38 (commencing at ATO.500.005.0042) there has been an imputed waiver of only those two paragraphs in the highlighted section which specifically refer to the s 264 examinations, being the paragraph on ATO.500.005.0043 commencing “The ATO had previously provided…” and the paragraph on ATO.500.005.0044 commencing “The material provided by the AFP…”.

There has been imputed waiver of the highlighted portions of the document at tab 47 (CDP.001.002.0107).

The document at tab 73 (CDP.505.001.1934), being email exchanges between Federal Agent Hiscoe and Mr Muir on 6 May 2015, retains privilege. The documents at tabs 74 and 75 are in the same category and retain privilege.

The documents at tab 30 of the Bundle of Outstanding Claims comprise email communications between Federal Agent Hiscoe, Mr Muir and various officers from the ATO. In these emails the DPP is seeking factual information about the dissemination of the s 264 examinations and the identification of the power pursuant to which the dissemination occurred. They do not, on proper analysis, simply comprise requests for advice as to whether the s 264 examinations ought be included in the brief.

The requests by the DPP, which would ordinarily have attracted privilege, are the subject of imputed waiver. They are the type of requests which a prosecutor is bound to make to ascertain how material compulsorily obtained from the accused came into its possession, as the High Court said in the following passage in Lee (No 2) at [44] (French, CJ Crennan, Kiefel, Bell and Keane JJ):

These documents are the subject of imputed waiver. The documents at tabs 43 and 65 are a continuation of this email chain and are also the subject of imputed waiver.

The documents considered above do not constitute all of the documents included in the Bundle of Outstanding Claims. I have made rulings on those identified by Mr Howe as being documents in respect of which a claim for privilege was understood to be still the subject of challenge. If there are further documents in this bundle which require rulings, the parties can re-list the matter for that purpose.

The ATO seeks to be excused from producing the whole of the document (at tab 76 of the Bundle of Outstanding Claims), being ATO.001.001.0015 (except in redacted form) by reason of s 355-75 of Sch 1 of the TAA, which relevantly provides:

Section 355-30 of Sch 1 of the TAA relevantly provides:

I accept the evidence of Mr Todd that part of document ATO.001.001.0015 contains protected information since it identifies an entity and relates to the affairs of an entity. Mr Todd also deposed that the entity is unrelated to these proceedings. In these circumstances, the effect of the provisions extracted above is that the ATO is entitled to redact document ATO.001.001.0015 so that it does not reveal the protected information.

The Commonwealth authorities have asked me to refrain from making orders for access to allow time for the consideration of these reasons and, if necessary, an appeal under s 5F of the Criminal Appeal Act 1912 (NSW). The only order which I would propose to make in any event is that the Commonwealth authorities provide access to the accused over documents in accordance with these reasons. However, the matter can be relisted for consideration of the form of the appropriate orders and for further directions.