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R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions[2022] QCA 7

R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions[2022] QCA 7

SUPREME COURT OF QUEENSLAND

CITATION:

R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 7

PARTIES:

In CA No 91 of 2020:

R

v

LEACH, Philip Denis

(applicant)

In CA No 198 of 2020:

R

v

LEACH, Philip Denis

(respondent)

EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

(appellant)

FILE NO/S:

CA No 91 of 2020

CA No 198 of 2020

DC No 1479 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal) Reference under s 668A Criminal Code

ORIGINATING COURT:

District Court at Brisbane – [2020] QDC 42 (Smith DCJA)

DELIVERED ON:

9 February 2022

DELIVERED AT:

Brisbane

HEARING DATE:

22 and 23 July 2021

JUDGES:

Fraser, Morrison and Bond JJA

ORDERS:

In CA No 91 of 2020 and CA No 198 of 2020

  1. Until further order of the Court, publication of the Court’s reasons for judgment be limited to the parties and to their legal representatives in the proceedings before this Court.
  2. The parties are directed to file written submissions addressing the extent to which further publication of any part of these reasons should be limited within 14 days of the date on which the reasons are published to them.

In CA No 91 of 2020:

  1. Application dismissed. In CA No 198 of 2020:

In CA No 198 of 2020:

  1. The questions are answered as follows:

Question 1: Was Smith DJCA correct in ruling (at [318] of CDPP v Leach (No 3) [2020] QDC 20) that the Taxation Administration Act 1953 (Cth) (“the TAA”) and/or other legal principles make it unlawful for a taxation officer (within the meaning of that term in the TAA) to disclose information derived from a compulsory examination under s 353-10 of Schedule 1 of the TAA (conducted with the interviewee prior to any charges having been laid) in an application for a search warrant, seeking evidence in relation to an offence by the interviewee against the TAA or another Act, made to a person empowered under an Act to issue a search warrant?

Answer: No. The primary judge should have concluded that s 355-50(1) of the TAA applied to permit disclosure of the parts of the compulsory examination to the Magistrate in the course of the application for the search warrant made on 6 July 2011.

Question 2: If question one is answered “Yes”, if an application for a search warrant was founded in part upon information so derived, does the discretion described in Bunning v Cross (1978) 141 CLR 54 apply, such that a discretion would exist to permit evidence derived from such a search warrant to be adduced at trial?

Answer: The answer to question 1 makes it unnecessary to answer question 2.

CATCHWORDS:

CRIMINAL LAW APPEAL AND NEW TRIAL PARTICULAR  GROUNDS  OF  APPEAL  –  OTHER MATTERS where Mr Leach was compulsorily examined by auditors from the Australian Tax Office (ATO) where subsequent investigations by the ATO led to his examination being included as part of a brief of evidence to the Commonwealth Director of Public Prosecutions (CDPP) where Mr Leach applied for a permanent stay on the ground that the release of the compulsory examination to the CDPP was not authorised where the trial judge dismissed that application – where Mr Leach was subsequently convicted of Commonwealth tax offences and one count of fraud under the Criminal Code (Qld) where Mr Leach successfully appealed against his conviction – where the CDPP proposed to conduct the retrial in a way which would not use the material obtained under compulsion where Mr Leach was not satisfied with the proposal and filed a pre-trial application in the District Court of Queensland seeking that the indictment be quashed and/or permanently stayed – where, after a diversion to the High Court seeking declaratory relief on constitutional grounds, the primary judge quashed the indictment but refused to order a permanent stay or order declaratory relief – whether the primary judge erred in dismissing the constitutional matter and refusing the permanent stay

CRIMINAL LAW APPEAL AND NEW TRIAL PROCEDURE MISCELLANEOUS MATTERS QUEENSLAND CASE STATE AND REFERENCE OF QUESTION OF LAW – where the CDPP refers to this Court under s 668A Criminal Code (Qld) two questions for its consideration and opinion – where the first question regards whether the primary judge was correct in ruling that it is unlawful for a taxation officer to disclose information derived from a compulsory examination pursuant to his or her statutory power in an application for a search warrant – where, on the assumption that the first question is answered “yes”, the second question concerns whether there exists a discretion that would permit such derivative evidence to be adduced at trial – whether the taxation officer’s disclosure of an examinee’s compulsory examination fundamentally and irreparably alters the accusatorial nature of the examinee’s trial

Taxation Administration Act 1953 (Cth), s 353-10 sch 1, s 355-25, s 353-30, s 355-50, s 355-70

Binetter v Deputy Commissioner of Taxation (2012) 206 FCR 37; [2012] FCAFC 126, cited

Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22, considered

Commissioner of Taxation v De Vonk (1995) 61 FCR 564; [1995] FCA 994, cited

Commonwealth Director of Public Prosecutions v Brady (2016) 346 FLR 1; [2016] VSC 334, applied

Deputy Commissioner of Taxation v Shi (2020) 277 FCR 1; [2020] FCAFC 100, cited

Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20, cited

NS v Scott [2018] 2 Qd R 397; [2017] QCA 237, cited

R v Leach [2014] QDCPR 1, considered

R v Leach [2019] 1 Qd R 459; [2018] QCA 131, considered

R v Seller (2013) 232 A Crim R 249; [2013] NSWCCA 42, cited

Stergis v Boucher (1989) 86 ALR 174; [1989] FCA 120, cited Strickland (a pseudonym) v Director of Public Prosecutions (Cth) (2018) 266 CLR 325; [2018] HCA 53, followed

X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29, cited

COUNSEL:

P J Dunning QC, with B Blond, S Palaniappan and

J J Underwood, for the applicant in CA No 91 of 2020 and for the respondent in CA No 198 of 2020

L K Crowley QC, with B J Power, for the respondent in CA No 91 of 2020 and for the appellant in CA No 198 of 2020

SOLICITORS:

Pharmacis Canning for the applicant in CA No 91 of 2020 and for the respondent in CA No 198 of 2020

Director of Public Prosecutions (Commonwealth) for the respondent in CA No 91 of 2020 and for the appellant in CA No 198 of 2020

  1. [1]
    FRASER JA: I have had the advantage of reading the reasons for judgment of Bond JA. I agree with those reasons and with the orders proposed by his Honour.
  1. [2]
    MORRISON JA: I have had the advantage of reading the reasons for judgment of Bond JA. I agree with those reasons and with the orders proposed by his Honour.
  1. [3]
    BOND JA:

Introduction

  1. [4]
    In March 2010, Mr Leach was the subject of a compulsory examination by officers of the Australian Taxation Office (ATO). His attendance had been compelled by notice pursuant to s 353-10 Sch 1 of the Taxation Administration Act 1953 (Cth) (TAA). At the examination, Mr Leach was informed correctly that under the TAA it was an offence to refuse or fail to give the requested information, that it was an offence to fail to answer questions put at the compulsory examination, and that the privilege against self-incrimination was not a defence for failing to answer.[1]
  2. [5]
    In September 2011, officers of the ATO prepared a brief of evidence concerning Mr Leach and provided it to the Commonwealth Director of Public Prosecutions (CDPP). The transcript of the compulsory examination was included in the brief (among other information) and was used by the CDPP for the purpose of consideration whether charges should be laid against Mr Leach, for the purpose of the formulation of such charges, for the preparation of the prosecution case in relation to such charges, and as evidence at his criminal trial to prove his guilt.
  1. [6]
    Indictment 1479 of 2013 was presented on 10 October 2013 and charged Mr Leach with 44 dishonesty offences. A pre-trial application seeking a permanent stay of the indictment on the ground that the disclosure to the CDPP of the transcript of the compulsory examination was unlawful and its contemplated use in his trial constituted an abuse of process failed: see R v Leach [2014] QDCPR 1 (Leach No. 1). During the subsequent trial before Shanahan DCJ the prosecution used the material obtained under compulsion. Mr Leach was convicted on all counts on 15 May 2017 after a 13-day trial.
  1. [7]
    On 22 June 2018, the Court of Appeal (by majority) quashed the convictions and ordered a retrial: see R v Leach [2019] 1 Qd R 459 (Leach No. 2). The majority concluded that the use by the prosecution of the material obtained under compulsion constituted a miscarriage of justice and, as a result, the verdicts of guilty should be quashed and there should be a retrial.
  1. [8]
    The CDPP proposed to conduct the retrial in a way which would not use the material obtained under compulsion, including by briefing a new team of solicitors and counsel for the trial who would not know about that material. Mr Leach was not satisfied with the proposal and filed a pre-trial application in the District Court of Queensland seeking that the indictment be quashed and/or permanently stayed. After a diversion to the High Court seeking declaratory relief on constitutional grounds which led to a remitter back to the District Court, the application proceeded in the District Court before Smith DCJA (the primary judge), with judgment being obtained on 24 March 2020: see CDPP v Leach (No 3) [2020] QDC 42 (Leach No. 3).
  1. [9]
    The primary judge quashed the indictment but refused either to order a permanent stay or to order declaratory relief on constitutional grounds.
  2. [10]
    By his application to this Court in proceeding CA 91 of 2020, Mr Leach sought leave to appeal from the primary judge’s dismissal of the constitutional matter that had been remitted by Gageler J and sought to challenge the primary judge’s discretionary decision to not grant a permanent stay. He sought orders that the CDPP be permanently restrained from taking any further proceedings against him concerning the subject matter of the indictment, and/or that the subject matter of the indictment be permanently stayed.
  3. [11]
    In parallel, the CDPP referred to this Court two questions for its consideration and opinion under s 688A of the Criminal Code (Qld):
    1. (a)
      Was the primary judge correct in ruling that the TAA and/or other legal principles make it unlawful for a taxation officer (within the meaning of that term in the TAA) to disclose information derived from a compulsory examination under s 353-10 of Schedule 1 of the TAA (conducted with the interviewee prior to any charges having been laid) in an application for a search warrant, seeking evidence in relation to an offence by the interviewee against the TAA or another Act, made to a person empowered under an Act to issue a search warrant?
    2. (b)
      If question one is answered “Yes”, if an application for a search warrant was founded in part upon information so derived, does the discretion described in Bunning v Cross (1978) 141 CLR 54 apply, such that a discretion would exist to permit evidence derived from such a search warrant to be adduced at trial?
  4. [12]
    For reasons which follow, Mr Leach’s application should be dismissed, and the questions referred to this Court should be answered “No” and “Unnecessary to answer” respectively.

Detailed factual background

  1. [13]
    During the period of 2006 to 2009, Mr Leach who was a solicitor in private practice with the firm Gateway Lawyers[2] – had lodged quarterly business activity statements (BAS) with the ATO which claimed GST refunds on behalf of the Trustee for the No 88 Trust and on behalf of the Trustee for the R & M No 88 Unit Trust.
  1. [14]
    The Risk and Strategy section of the ATO and subsequent profiling work had identified the need for compliance verification work. That work commenced in [3] In the years following and up until the compulsory examination on 18 March 2010, Mr Leach had voluntarily responded to enquiries by ATO officers including by providing various documents to those officers.[4] Third party verification of invoices presented to the ATO in support of the claims resulted in the ATO concluding that some invoices were false, thereby warranting audit.[5]
  1. [15]
    On 21 October 2009, Ms Belinda McDonald, an auditor in the Indirect Tax – GST Serious Evasion area of the ATO was tasked with the conduct of the audits in relation to the claims for GST refunds which Mr Leach had advanced on behalf of the two trustees.[6] Ms McDonald established the following from the ATO records:
    1. (a)
      The Trustee for the No 88 Trust was registered with its main business activity listed as property investment. The Trustee for the R & M No 88 Unit Trust was also registered with the main business activity listed as commercial property, landlord and sales.
    2. (b)
      Mr Leach was the authorised contact person for both trusts and Gateway Lawyers’ Trust Account was the bank account which had been nominated for electronic payment of GST refunds.[7]
    3. (c)
      The total of the claims which had been made for GST refunds was $693,657 in respect of the Trustee for the No 88 Trust and $878,524 in respect of the Trustee for the R & M No 88 Unit Trust.[8]
    4. (d)
      The ATO had remitted a total of $614,956 to the Trustee for the No 88 Trust and a total of $696,805 to the Trustee for the R & M No 88 Unit Trust, in each case withholding payment of the balance pending the outcome of the audit.[9]
  2. [16]
    On 13 November 2009,[10] Ms McDonald made telephone contact with Mr Leach, explained that she was conducting an audit in respect of the trustees for the two trusts with respect to BAS for particular quarterly tax periods; informed him that any voluntary disclosures made prior to the commencement of the audit might qualify for significantly reduced penalties; and asked him if he had any voluntary disclosures to make. He advised her that he did not. She advised that she would forward letters confirming the audits and made an appointment to visit his offices on 7 December 2009.
  1. [17]
    On 16 November 2009, Ms McDonald delivered audit letters to Mr Leach’s offices.[11]
  2. [18]
    During the audit period up to February 2010, Mr Leach voluntarily provided a great deal of documentation   to   the   ATO.[12]  Amongst   other things   he   provided Ms McDonald with Deeds of Appointment which showed that Mr Zheng Fu had been appointed as the trustee of the No 88 Trust and of the R & M No 88 Unit Trust.[13] By letter dated 8 March 2010, he provided her with the current details of the current trustee, including his date of birth and address.[14] Ms McDonald and other ATO officers examined those documents and carried out other audit verification work, including by conducting enquiries into the veracity of invoices that had previously been produced, and obtaining bank account statements from the Commonwealth Bank in relation to Gateway Lawyers’ Trust Account and general account.
  1. [19]
    On 12 February 2010, Ms McDonald issued to Mr Leach notices pursuant to s 353-10 of Schedule 1 of the TAA requiring Mr Leach to attend the premises of Gateway Lawyers on 18 March 2010 and to give answer to questions on oath or affirmation and to produce documents.[15] It is convenient to refer to that attendance as the compulsory examination.
  1. [20]
    On 16 March 2010, Mr Leach forwarded two cheques to the ATO totalling $1,083,271, which represented a partial repayment of the GST refunds previously claimed on behalf of the trustee of the two trusts and which, on their behalf, had been paid into Gateway Lawyers’ Trust Account. The cheques were drawn on the Gateway Lawyers’ Trust Account.[16]
  1. [21]
    On 18 March 2010, the compulsory examination proceeded as scheduled. Prior to attending the examination, Ms McDonald had formed a belief as to the falsity of two invoices relevant to the claims which had been made on behalf of the trustees,[17] and she held suspicions that the trustees of the two trusts were not entitled to claim the GST refunds, but she said that she had not then formed the belief that Mr Leach or any other person had committed a criminal offence in relation to the BAS which had been submitted.[18]
  2. [22]
    Ms McDonald and Mr Warren Heath (who was employed by the ATO as a team leader in the Indirect Tax – GST Serious Evasion area) conducted the compulsory examination over the course of about three hours and made a digital recording of it. As mentioned, Mr Leach was informed at the outset that it was an offence to knowingly make a false statement, that refusal to answer a question constituted an offence and that privilege against self-incrimination was not a defence for failing to answer a question.
  3. [23]
    Relevantly for present purposes, and amongst   other things,   Mr Leach   told Ms McDonald and Mr Heath:[19]
    1. (a)
      [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23].
    2. (b)
      [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23].
    3. (c)
      [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23].
  1. (d)
    [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23].
  2. (e)
    [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23].
  1. [24]
    Following the compulsory examination, Ms McDonald continued with the audit work. Amongst other things:[20]
    1. (a)
      She issued a s 353-10 notice to Mr Leach’s employee responsible for data entry,

Ms Colleen Hoy, and conducted a compulsory examination of her.[21]

  1. (b)
    She made enquiries with the Department of Immigration regarding the movements of Mr Fu and made unsuccessful attempts to contact Mr Fu on 15 and 16 March 2010, 31 May 2010, and 1 June 2010.[22]
  2. (c)
    She continued to make verification enquiries regarding the expenses allegedly incurred by the trustee of the two trusts and the invoices which had been provided to support the trustee’s claims for GST refunds.[23]
  1. [25]
    Ultimately, Ms McDonald referred the matter to the Serious Non-Compliance section of the ATO for further investigation.[24] In the referral, she specifically alleged that Mr Leach had committed fraud.[25] She referred to the compulsory examination and noted: “We believe Mr Leach has fraudulently claimed GST refunds through the above two entities.”[26]
  2. [26]
    On 12 November 2010, Ms Toni O'Bryan, an investigator in the Serious Non-Compliance section of the ATO, was tasked with investigating the business activities of the two trusts, including whether Mr Leach had committed any offences. She examined relevant ATO files, including files   which she   obtained from Ms McDonald pertaining to her audit. On 17 November 2010, she obtained the digitally recorded disk of the compulsory examination and arranged for its transcription. She obtained a copy of the transcription on 22 November 2010.
  1. [27]
    Investigative steps taken by her involved: interviewing potential witnesses, particularly in relation to expenses alleged to have been incurred by the trustees of the two trusts; taking witness statements; obtaining documents, including by, in some instances, the use of search warrants; searching public records; and obtaining information from Banks and instrumentalities like the Australian Securities and Investments Commission. She obtained and reviewed the accounting records of the Gateway Lawyers’ Trust Account and General Account. Amongst other potential witnesses, Ms O'Bryan contacted Mr Fu, Mr De Graff and, his brother, Mr Marcus Lincoln-Smith.
  1. [28]
    As to Mr Fu:
  1. (a)
    Ms O'Bryan successfully made contact with Mr Fu. Her communications with Mr Fu occurred as follows:
    1. On 15 March 2011, she received a telephone call from Mr Fu, in relation to an email she had previously sent him.[27] [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23].
    2. On 16 March 2011, she received a further email from him confirming the need for translation into Chinese of questions she wished to ask.[28]
    3. On 21 March 2011, Ms O'Bryan emailed to Mr Fu a list of 57 questions which had been translated into the Chinese language, together with supporting documentation.[29]
    4. On 23 March 2011, Ms O'Bryan received a message from Mr Fu and she forwarded an email response to him.[30] She also received a telephone call from him in which he again said [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23].[31]
  1. (v)
    On 30 March 2011, she received the completed list of questions from Mr Fu.[32] [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23].[33]
  2. (vi)
    On 6 April 2011, she had a further telephone conversation with Mr Fu in which, amongst other things, he again said [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23].[34]
  1. (vii)
    On 27 May 2011, and with the assistance of a Chinese speaking ATO officer, Ms O'Bryan had a telephone conversation with Mr Fu, and made an audio recording of the questions and answers, including the translations made by the Chinese speaking ATO officer.[35]   She caused a transcription to be produced on 16 June 2011, obtaining the transcription on 21 June 2011.[36]
  2. (viii)
    The primary judge inferred from the documentary records: “It is clear to me that a discussion took place before the interview commenced. I infer a specific discussion took place about what the defendant had alleged in his interview. Also, that which the defendant had alleged in his interview was directly put to the witness.”[37]
  1. (ix)
    As is apparent from the foregoing, the primary judge was correct to conclude that there had been previous discussions between Ms O'Bryan and Mr Fu, and, in particular, that there had already been some discussion in which Mr Fu had [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23]. Parts of what Mr Leach had said in his compulsory interview were put to Mr Fu specifically. I do note that that was done without identifying Mr Leach as the source of the propositions put.[38]
  2. (x)
    It is certainly clear that a number of times before and during the interview, Ms O'Bryan had established that Mr Fu [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23].[39] [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23].[40] [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23],[41] [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23].[42] [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23].[43]
  3. (xi)
    On 12 and 15 August 2011, in company with the same Chinese speaking ATO officer, Ms O'Bryan rang and had a further conversation with Mr Fu.[44]
  4. (xii)
    On 29 August and 2 September 2011, in company with the same Chinese speaking ATO officer, Ms O'Bryan had further conversation with Mr Fu.[45]
  1. (b)
    Ultimately a statement by Mr Fu dated 24 October 2011 was produced.[46] Mr Fu stated that he was a Chinese citizen who travelled to Australia on 5 July 2003 for the purpose of studying and last departed from Australia on 31 May 2010.[47] [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23].[48] [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23].[49] He made similar statements about many other documents shown to him concerning the two trusts.[50]
  2. (c)
    Mr Fu gave evidence at the trial of Mr Leach before Shanahan DCJ consistently with the statement that he had given [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23].[51]

[Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23].[52]

  1. (d)
    The primary judge made some observations concerning the extent to which the evidence obtained from Mr Fu turned on the information obtained by the compulsory examination.[53]   His   Honour noted   that it   was   clear that Ms McDonald knew of Mr Fu prior to the compulsory examination and that information which suggested he was the current trustee and details of his date of birth and address had been obtained from Mr Leach before the compulsory examination occurred.[54] He formed the view that Mr Fu was always going to be spoken to by the ATO at some point.[55] He concluded, however, that at least some of the questions which were asked of Mr Fu came from information provided by Mr Leach in his interview.[56] However, he also found that many of the questions which were asked of him would have been asked anyway and that it was improbable to suggest that Mr Fu would have given a different answer.[57] To the extent that there was any disclosure to Mr Fu of any part of the information which had been obtained from Mr Leach during the compulsory examination, the primary judge found that it was minor.[58]
  1. [29]
    As to Mr De Graff:
    1. (a)
      On 14 July 2011, Ms O'Bryan rang Mr Robert Bax, solicitor representing Mr De Graff, and explained that she was trying to verify [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23].[59] (As will shortly appear, by this time, Mr De Graff and his brother had already and independently retained Mr Bax because of their concerns that Mr Leach had taken monies out of their mother’s estate without authorisation.)
    2. (b)
      On 18 July 2011, Ms O'Bryan was advised that the Queensland Law Society had appointed receivers to Gateway Lawyers.[60] That had occurred on 14 July 2011.[61]
    3. (c)
      On 18 July 2011, Mr Bax called Ms O'Bryan representing Mr De Graff and advised that he had received instructions and could confirm [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23].[62]
    4. (d)
      On 1 and 8 August 2011, she attempted to contact Mr Bax with a view to organising an interview with Mr De Graff.[63]
  1. (e)
    On 11 August 2011, Ms O'Bryan had a telephone conversation with Mr De Graff, and he confirmed that [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23]. He said that Mr Bax had advised him not to be involved in the ATO matter “due to his Law Society matters”. She explained that she just required a statement to negate [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23]. He said that she should send something to Mr Bax and if Mr Bax said it was okay, then he would co-operate.[64]
  2. (f)
    On 23 August 2012, Ms O'Bryan attended the offices of Mr Bax where she met with him and Mr De Graff. She conducted an interview with Mr De Graff and subsequently obtained a statement from him.[65]
  3. (g)
    Mr De Graff’s statement was dated 5 October 2012. He stated as follows:
    1. He had used Mr Leach’s law firm, Gateway Lawyers, to handle his legal affairs until approximately mid-2010. The firm was appointed to handle the estate of his late mother, Mrs Audrey De Graff, who passed away in September 2009. He and his brother Mr Lincoln-Smith were executors of her will, although he said that Mr Leach generally dealt with him for authorisation concerning disbursement of funds in accordance with the will.[66]
    2. The estate was to be divided equally between he and his brother with some monies distributed to grandchildren. Following disbursement of some monies, he and his brother left approximately $4.3 million with Mr Leach to be retained in an interest-bearing deposit in the name of Gateway Lawyers.[67]
    3. He related that he and his brother had first sought to obtain release of monies back to them from Mr Leach in March 2010 but were unable to achieve that goal.[68]
    4. In March 2011 Mr Leach gave his brother’s accountant what purported to be a bank statement in the name of Gateway Lawyers’ Trust Account which recorded a balance of $4,283,421.12, but Mr De Graff checked with the bank and was informed that the statement was a forgery. That caused him to retain Mr Bax as his solicitor and have no further dealings with Mr Leach.[69]
    5. [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23].[70] [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23].[71]
  4. (h)
    Mr De Graff gave evidence at the trial of Mr Leach before Shanahan DCJ broadly consistently with the statement that he had given, save that he thought that approaches to Mr Leach to obtain release of monies were made later than March 2010.[72]
  1. (i)
    The primary judge made some observations concerning the extent to which the evidence obtained from Mr De Graff turned on the information obtained by the compulsory examination. He concluded that there was no evidence that the ATO was aware of Mr De Graff before the compulsory interview.[73] He noted that during the questioning, Ms O'Bryan had disclosed that [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23].[74] [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23].[75] The primary judge found that the ATO had learned about the existence of Mr De Graff and his brother, Mr Lincoln-Smith, and of the facts which formed the basis of the fraud count concerning them by reason of the disclosures made by Mr Leach in the compulsory examination.[76] The primary judge also found that the information was lawfully obtained by the ATO and lawfully given to Ms O'Bryan and that Ms O'Bryan was entitled to use the interview to continue her investigations into the matter.[77] She was entitled to speak to Mr De Graff and his brother, but the primary judge found that she was not entitled to disclose the contents of the interview to either Mr De Graff or his brother.[78]
  1. [30]
    As to Mr Lincoln-Smith:
    1. (a)
      Between 20 September and 5 October 2012, Ms O'Bryan said she had communications with Mr Lincoln-Smith and subsequently attended the offices of Mr Bax, where she met with Mr Bax and Mr Lincoln-Smith. She conducted an interview and subsequently obtained a statement from Mr Lincoln-Smith.[79]
    2. (b)
      Mr Lincoln-Smith’s statement was dated 11 January 2013.
      1. He corroborated what Mr De Graff had stated concerning monies of the order of $4.3 million being left with Mr Leach to be retained in an interest-bearing deposit in the name of Gateway Lawyers. He did not recall having difficulty obtaining the monies in March 2010. His recollection was that he and his brother were persuaded by Mr Leach to leave the money with Gateway Lawyers to ensure that they had monies to address any tax liability they may have had consequent upon the distributions from their mother’s estate.[80]
      2. He corroborated his brother’s statement concerning the purported bank statement produced in March 2011. He stated that he spoke to Mr Leach about the monies on about 6 July 2011 and Mr Leach told him that there was a problem with the money, he was being blackmailed and could not pay it back to the estate at that time; he had a business venture which he was developing that would allow him to pay the money back; and he sought time to repay the monies. That conversation caused Mr Lincoln- Smith and his brother to retain Mr Bax and to have no further dealings with Mr Leach.[81]
  1. (iii)
    [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23]. He specifically stated that he had not authorised any transfer of monies from   the   Estate   of Mrs De Graff to Gateway Lawyers’ Trust Account and denied ever authorising Mr Leach to use monies from the estate for any purpose other than in accordance with her will.[82]
  1. (c)
    Mr De Graff gave evidence at the trial of Mr Leach before Shanahan DCJ broadly consistently with the statement that he had given.
  2. (d)
    The observations made by the primary judge concerning the connection between the disclosures made during the compulsory examination and the obtaining of evidence from Mr De Graff apply equally to the evidence obtained from Mr Lincoln-Smith.[83]
  1. [31]
    On 6 July 2011, Ms O'Bryan also successfully obtained a search warrant under s 3E of the Crimes Act 1914 (Cth) in order to search two premises (namely Mr Leach’s residence and Gateway Lawyers’ business premises) and four vehicles connected to Mr Leach for evidential material reasonably suspected to provide evidence of Commonwealth offences committed by Mr Leach.[84] Ms O'Bryan swore the affidavit which was relied upon to obtain the warrant.[85]
  2. [32]
    In that affidavit:
    1. (a)
      She suggested that the evidential material which she suspected might be found at the premises the subject of the proposed warrant would relate, amongst other things to the two trusts, the Gateway Lawyers’ Trust Account, the Gateway Lawyers’ General Account, and Mr Fu and would include BAS, working papers relating to the preparation of BAS, business records, banking records, invoices and computer records.
    2. (b)
      She argued that there were reasonable grounds for suspecting that evidential material at the premises the subject of the proposed warrant would afford evidence as to the commission by Mr Leach of various Commonwealth offences involving, obtaining or attempting to obtain a financial advantage from the Commonwealth in the form of GST refunds from the ATO and also using false documents with the intention of gaining such an advantage from the ATO by dishonestly inducing a public official to accept the false documents as genuine.
    3. (c)
      She related in broad chronological order steps which had been taken in the compliance verification work, audit work and some investigative work and identified information which had been obtained thereby. She included specific reference to the fact of the compulsory examination and she described statements made by Mr Leach during the compulsory examination in these terms:

[Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23].

  1. (d)
    She stated that she suspected that the evidentiary material sought would provide evidence of, amongst other things, the following:
    1. Submission of BAS in the names of the two trusts.
    2. Falsification of tax invoices.
    3. Falsified Trust Deeds pertaining to the two trusts.
    4. Bank records to prove the receipt and disposition of monies remitted as GST refunds.
    5. Evidence of association between Mr Leach and Mr Fu.
  1. [33]
    The search warrant was executed on 7 July 2011.[86] The circumstances of the execution of the warrant at both premises were described in detail in Ms O'Bryan’s statement dated 23 September 2011.[87] Documents and a computer hard drive were seized from Mr Leach’s residence.[88] Gateway Lawyers’ business premises had suffered extensive fire damage in a fire which occurred in the early morning on the day of execution of the search warrant. Nevertheless, Ms O'Bryan was able to seize documents and computer hard drives from the Gateway Lawyers’ business premises.[89] Amongst other computer exhibits in execution of the search warrant was a computer exhibit marked “PDL00482” and it was provided to an ATO forensic officer for forensic analysis.[90] Analysis of files extracted from that evidence item PDL00482 enabled Ms O'Bryan to obtain accounting documents concerning Gateway Lawyers’ Trust Account and General Accounts in July 2012.[91] Mr Leach’s written submissions before this Court refer to the relevant material as “trust ledgers” and it is convenient to adopt that shorthand reference.
  2. [34]
    By letters on behalf of the Acting Deputy Commissioner of Taxation dated 16 September 2011 and Ms O'Bryan dated 24 October 2011,[92] the ATO provided a brief of evidence to the CDPP concerning Mr Leach, recommending his prosecution for the following charges under the Criminal Code (Cth):
    1. (a)
      obtaining a financial advantage from the Commonwealth by deception [s. 134.2];
    2. (b)
      attempting to obtain a financial advantage from the Commonwealth by deception [ss. 11.1 and 134.2]; and
    3. (c)
      using false documents within the intention of obtaining a gain from the Commonwealth [s 145.1].
  3. [35]
    Amongst other things, the letters specifically adverted to information obtained via the compulsory examination, [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23]. The primary judge concluded that the interview could be thought to be an important part of the referral as it was adverted to in both letters.[93]
  1. [36]
    The CDPP case officer was Ms Murphy. She reviewed the brief of evidence provided by the ATO including witness statements, the transcript of the compulsory examination and documents seized during the execution of the search warrant referred to above, including the trust ledgers.[94] She did not disclose to the Queensland Police Service any part of the transcript of the compulsory examination, but she did provide a copy to Counsel who had been engaged by the Crown for the purpose of the prosecution.[95] The primary judge found that it was clear that the compulsory examination was important to Ms Murphy in the framing of the charges.[96]
  2. [37]
    Mr Leach was charged on 23 March 2012. Indictment 1479 of 2013 was presented on 10 October 2013 and charged Mr Leach with the following offences:
    1. (a)
      19 counts of obtaining a financial advantage by deception contrary to s 134.2(1) of the Criminal Code (Cth);[97]
    2. (b)
      21 counts of using false documents contrary to s 145.1(1) of the Criminal Code (Cth);[98]
  1. (c)
    3 counts of attempting to obtain a financial advantage by deception contrary to ss 11.1(1) and 134.2(1) of the Criminal Code (Cth); and
  2. (d)
    1 count of fraud contrary to s 408C(1)(a) of the Criminal Code 1899 (Qld).[99]
  1. [38]
    Mr Leach filed a pre-trial application seeking a permanent stay of the indictment on the ground that the disclosure to the CDPP of the transcript of the compulsory examination was unlawful and its contemplated use in his trial constituted an abuse of process.  That application was refused: see Leach No. 1.
  2. [39]
    The Crown case at trial was that over the period from January 2007 to December 2009, Mr Leach had lodged numerous BAS with the ATO claiming GST refunds on behalf of the trustees of the two trusts on the basis of his dishonest assertions that they had incurred expenses which he knew in fact had not been incurred. It was alleged that by that mechanism the ATO caused $1,311,761 to be paid into the Gateway Lawyers’ Trust Account and then Mr Leach caused those monies to be transferred into other accounts held or controlled by him. It was alleged that he attempted to obtain payment of a further $260,420. It was further alleged that, during the process of responding to enquiries by ATO officers engaged in the audit review, Mr Leach had used false documents with the intention of inducing those officers to accept the documents as genuine, and if they did, dishonesty obtaining a gain. Finally, it was alleged that Mr Leach had dishonestly applied to his own use $1,083,271 held in his firm’s trust account on behalf of the executors of the estate of Mrs De Graff by using those funds to pay the refund to the ATO referred to at [15] above. At trial, part of the prosecution's case involved reliance upon the statements made by Mr Leach during the compulsory examination as lies told by Mr Leach demonstrating a consciousness of guilt. In that regard, the prosecution elicited evidence from Mr De Graff and Mr Lincoln-Smith to negate the statements made by Mr Leach concerning [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23].
  1. [40]
    The evidence relied on by the prosecution at the trial included the following:
    1. (a)
      The BAS which were the subject of the charges and which had been lodged by Mr Leach with the ATO.
    2. (b)
      Invoices and other documents supplied by Mr Leach during the ATO investigative process but prior to the compulsory interview, some of which were the subject of the charges.
    3. (c)
      Evidence, through Ms McDonald, about the conduct of the ATO audit, including the contents of the compulsory interview.
    4. (d)
      Evidence, through Ms O'Bryan, about the conduct of subsequent investigations by the ATO.
    5. (e)
      Evidence from the purported suppliers and developers which was relied on to demonstrate the falsity of various invoices and documents supplied to the ATO by Mr Leach.
    6. (f)
      Evidence from Mr Fu regarding [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23].
    7. (g)
      Evidence from Mr De Graff and Mr Lincoln-Smith regarding [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23].
    8. (h)
      Documents seized under warrant from Mr Leach’s home and business premises including Gateway Lawyers’ trust ledgers.
    9. (i)
      Documents obtained from various banks showing the movements of funds, and other public records such as ASIC records and RP data records.
  2. [41]
    On 15 May 2017, Mr Leach was convicted of all charges and on 11 August 2017, received an effective head sentence of eight years’ imprisonment, with a non-parole period of four years.
  3. [42]
    Mr Leach appealed against his conviction on the basis that it was impermissible for the CDPP to have used the transcript of his compulsory examination to prepare for and prove its case. Before identifying how this Court dealt with the appeal, it is appropriate to identify the relevant legislative framework in a little more detail.
  4. [43]
    It will be recalled that it was on 6 July 2011 that Ms O'Bryan disclosed information obtained from the compulsory examination to a Magistrate in her affidavit in support of an application for a search warrant. And it was on 16 September 2011 and 24 October 2011 that the ATO provided a brief of evidence to the CDPP concerning Mr Leach, recommending his prosecution. The information obtained from the compulsory examination formed part of the brief of evidence which was provided to the CDPP. Accordingly, the following discussion identifies the relevant provisions of the TAA as in force from 1 July 2011 to 7 September 2011. The sections in question have not substantially changed since that time.
  5. [44]
    Schedule 1 of the TAA deals with the collection and recovery of income tax and other liabilities, including GST. Chapter 5 of Schedule 1 provides for Administration. Within that chapter, Division 353 gives the Commissioner power to obtain information and evidence. Section 353-10 confers power to require a person, by notice in writing, to attend and give evidence before an authorised individual for the purpose of the administration or operation of Schedule 1. Failing to comply with a notice under s 353-10 could be an offence under ss 8C or 8D. However, the fact that the provision of the information may tend to incriminate a person is not reason for the person to refuse to comply with the notice or to answer questions when asked.[100]
  1. [45]
    Although s 353-10 must be taken to contemplate that the taxation officers who obtain information consequent upon a person attending and giving evidence are authorised to use the information for the purpose of the administration or operation of Schedule 1, the section does not otherwise explicitly constrain such officers’ ability to use the information which has been obtained. The legislation leaves that task to be performed by Division 355 which imposes constraints on the ability of a taxation officer to disclose information obtained consequent upon such an exercise of power. Division 355 does this by making it an offence to disclose information about taxpayer affairs except in certain specified circumstances.
  2. [46]
    Section 355-10 states the objects of the Division:

Objects of Division

The objects of this Division are:

  1. (a)
    to protect the confidentiality of taxpayers’ affairs by imposing strict obligations on *taxation officers (and others who acquire protected tax information), and so encourage taxpayers to provide correct information to the Commissioner; and
  2. (b)
    to facilitate efficient and effective government administration and law enforcement by allowing disclosures of protected tax information for specific, appropriate purposes.”
  1. [47]
    Section 355-30 defines protected information and taxation officer as:

Meaning of protected information and taxation officer

  1. (1)
    Protected information means information that:
    1. was disclosed or obtained under or for the purposes of a law that was a *taxation law (other than the Tax Agent Services Act 2009) when the information was disclosed or obtained; and
    2. relates to the affairs of an entity; and
    3. identifies, or is reasonably capable of being used to identify, the entity.

  1. (2)
    Taxation officer means:
    1. the Commissioner or a Second Commissioner; or
    2. an individual appointed or engaged under the Public Service Act 1999 and performing duties in the Australian Taxation Office.

….”

  1. [48]
    Section 355-25(1) creates the offence for the disclosure of protected information by taxation officers.

Offence—disclosure of protected information by taxation officers

  1. (1)
    An entity commits an offence if:
    1. the entity is or was a *taxation officer; and
    2. the entity:
      1. (i)
        makes a record of information; or
      1. (ii)
        discloses information to another entity (other than the entity to whom the information relates or an entity covered by subsection (2)) or to a court or tribunal; and
    3. the information is *protected information; and
    4. the information was acquired by the first-mentioned entity as a taxation officer.”
  1. [49]
    However, s 355-50 creates certain exceptions to the prohibition in s 355-25 as follows:

Exception—disclosure in performing duties

  1. (1)
    Section 355-25 does not apply if:
    1. the entity is a *taxation officer; and
    2. the record or disclosure is made in performing the entity’s duties as a taxation officer.
  2. (2)
    Without limiting subsection (1), records or disclosures made in performing duties as a *taxation officer include those mentioned in the following table [items 2 and 4 to 9 omitted]:

Records or disclosures in performing duties

Item

The record is made for or the disclosure is to …

and the record or disclosure

1

any entity, court or tribunal

is for the purpose of administering any *taxation law.

3

any entity, court or tribunal

is for the purpose of criminal, civil or administrative proceedings (including merits review or judicial review) that are related to a *taxation law.

  1. [50]
    Section 355-70 creates a further exception to the prohibition in s 355-25 in the context of disclosure to law enforcement agencies as follows:

Exception—disclosure for law enforcement and related purposes

  1. (1)
    Section 355-25 does not apply if:
    1. the entity is the Commissioner or a *taxation officer authorised by the Commissioner to make the record or disclosure; and
    2. an item in the table in this subsection covers the making of the record or the disclosure; and
    3. if the entity is not the Commissioner, a Second Commissioner or an SES employee or acting SES employee of the Australian Taxation Office—one of the following has agreed that the record or disclosure is covered by the item:
      1. (i)
        the Commissioner;
      1. (ii)
        a Second Commissioner;
      1. (iii)
        an SES employee or acting SES employee of the Australian Taxation Office who is not a direct supervisor of the taxation officer.”
  1. [51]
    The relevant part of the table referred to in subsection 355-70(1) is set out below (items 2 to 6 omitted).

Records or disclosures for law enforcement and related purposes

Item

The record is made for or the disclosure is to …

and the record or disclosure

1

an *authorised law enforcement agency officer, or a court or tribunal

is for the purpose of:

  1. (a)
    investigating a *serious offence; or
  1. (b)
    enforcing a law, the contravention of which is a serious offence; or
  2. (c)
    the making, or proposed or possible making, of a *proceeds of crime order.
  1. [52]
    Definitions relevant for its application were set out elsewhere but were set out in subsequent subsections as follows:

“(3) Authorised law enforcement agency officer means:

  1. (a)
    the head of a *law enforcement agency; or
  1. (b)
    an officer of a law enforcement agency, or a person engaged by, or otherwise performing services for, a law enforcement agency, authorised in writing by the head of the agency to perform the functions of an authorised law enforcement agency officer under this Act.
  1. (4)
    Law enforcement agency means:
    1. the Australian Federal Police; or
    2. the police force of a State or Territory; or
    3. the Office of the Director of Public Prosecutions established by section 5 of the Director of Public Prosecutions Act 1983; or

  1. (10)
    Serious offence means an offence against an *Australian law that is punishable by imprisonment for a period exceeding 12 months.”
  1. [53]
    An Explanatory Memorandum sets out the objectives of the 2010 amendments to the TAA which introduced these sections. It identifies that the primary objective of the new framework was to protect the confidentiality of taxpayer information. However, the Explanatory Memorandum also acknowledges that notwithstanding that emphasis on privacy, disclosures for the purpose of law enforcement are permitted in certain circumstances.
  1. [54]
    On 22 June 2018, the Court of Appeal by majority quashed the convictions and ordered a retrial: see Leach No. 2. Sofronoff P (with whom Philippides JA agreed) characterised the question which arose on the appeal in this way:[101]

“…whether the legislation implicitly authorises the disclosure to and use by the DPP of the content of a s 353-10 Sch 1 examination for the purpose of a consideration of charges against the examinee, for the purpose of the formulation of such charges, for use in the preparation of the prosecution case in relation to such charges and as evidence at a criminal trial to prove the guilt of the examinee.”

  1. [55]
    On that question, Sofronoff P (with whom Philippides JA agreed) held:[102]
    1. (a)
      At 484 [85], after quoting from the reasons for judgment of the District Court judge, who, in Leach No. 1, had rejected the stay application and had expressed the view that Schedule 1 of the TAA was “… an explicit legislative scheme that abrogates an individual’s right to incriminate himself or herself” and was also “… an explicit scheme permitting the use of material so obtained on the trial of an individual providing the use does not amount to an abuse of process”:

“I can discern nothing in the legislation which could implicitly authorise the use of such material in this way. It must not be forgotten that what is required in this case is a manifestation in the text of the statute of an intention to create a unique regime for tax related prosecutions. According to such a regime the Commissioner of Taxation could interrogate a taxpayer, who has no right to refuse to answer questions on the ground that the answers might tend to incriminate and, indeed, would be under express threat of prosecution for any refusal to answer or for giving any false answers; and he could then deliver the evidence extracted in that way to the DPP so that the information could be used to consider whether to prosecute the examinee, to formulate charges, to anticipate defences and ultimately to use as evidence to incriminate the accused person.[103]

  1. (b)
    At 485 [88] to [91], after citing with approval High Court authorities which emphasised the fundamental importance of the presumption of legality:

“The abrogation, by implication, of the privilege against self- incrimination does not answer the question whether such evidence can then be used when its use would interfere with the administration of justice. The respondent's submission to the contrary, made on this appeal, is in conflict with De Vonk.

Unlike the considerations involved in considering the abrogation of self-incrimination privilege, it cannot be said, either from any textual indications or from any impingement upon the utility of the statutory power, that authority to use the evidence in the way in which it was used in this case was necessarily implied by the terms of the statute. The respondent did not submit that the purposes of the Act would be frustrated to any degree if evidence could not be disclosed or used in the way it was disclosed and used in this case. Information obtained from people under compulsion may be used in many ways in pursuit of statutory objects even if an examinee remains immune from its use in criminal proceedings. Information obtained by compulsory interrogation may be used in order to recover unpaid tax by demand and by civil process even if the defendant is the examinee. Interrogation may dig into the commission of serious offences by an examinee alone or in conjunction with others. Such information may be disclosed to aid the DPP’s prosecution of offenders other than the examinee.

It must also be remembered that the information that is dealt with by Div 355 Sch 1 is not limited to that which can be obtained under s 353-10 Sch 1. The definition of “protected information” in s 355-30 Sch 1 is very wide. Section 355-50 Sch 1 has much work to do even if the information in this case could not be disclosed. The BAS statements in this case, for example, constitute protected information that might be disclosed for the purpose of criminal proceedings against the appellant.

The legislation does not render it necessary, if the statute is to be effective in reaching its objects, for the evidence of an examinee to be made available to future prosecutors of the examinee nor that such prosecutions would be frustrated or even hampered by a denial of access to the information.”

  1. (c)
    At 487 [97] to [98]:

“Consistently with the decisions of the High Court in [X7 v Australian Crime Commission (2013) 248 CLR 92] and [Lee v The Queen (2014) 253 CLR 455], the decision of the New South Wales Court of Criminal Appeal in [R v Seller (2013) 232 A Crim R 249] and the decision of the Full Court of the Federal Court in De Vonk, the disclosure to the DPP of the evidence given under compulsion in this case, and its subsequent use by the DPP to prepare for the appellant’s prosecution and its admission as evidence at the appellant’s trial, conflicted with the “fundamental principle of the common law”[104] that the onus of proof rests on the prosecution and conflicts with its “companion principle” that the prosecution cannot compel an accused to assist it.[105]

In each of X7 and De Vonk the appellants had already been charged when it was sought to question them. In each case it was held that questioning about the subject matter of existing charges was not authorised by the legislation. In Seller and [Lee v The Queen (2013) 232 A Crim R 337] the appellants were questioned before they had been charged. The material so obtained was not to be available to the prosecution when charges were later laid.”

  1. (d)
    At 488 [101] to [103]:

“No part of the criminal process imposes any obligation upon an accused person to assist the prosecution to prove its case. Even the statutory requirement to give notice of alibi does not descend to that for it obliges notice be given of exculpatory material, not of incriminatory material, but even that change was made by an express provision.[106]

It cannot matter whether an accused’s assistance is demanded by the prosecution after charges have been laid, as in X7 and De Vonk, or whether it becomes available fortuitously because an accused had earlier been compelled to give incriminating answers for some other purpose. The effect upon the administration of justice will, in each case, be exactly the same, as X7 and Lee (2014) demonstrate.

The express objects of Div 355 Sch 1 and the general language of s 355-50 Sch 1 do not give rise to a necessary implication that the fundamental principle identified in X7 has been abrogated. For tax related offences there is no indication that the objects of the legislation, as expressed in s 355-10 Sch 1 or as implied by the text of Div 355 Sch 1 itself, would be defeated if the general language of s 355-50 Sch 1 were read as not permitting the use by the prosecution in this case of the evidence obtained from the accused about the subject matter of what later became the charges against him[107] and, as I have said, no such submission was advanced by the respondent on appeal.”

  1. [56]
    In response to Leach No. 2, the CDPP took a number of steps to ensure that the disclosure of the transcript of the compulsory examination by the ATO to the CDPP would not impact upon the retrial. The primary judge ultimately summarised those steps in this way:[108]

“Firstly, the CDPP has appointed a new team of prosecutors with no previous knowledge or connection with the matter to conduct the re- trial without access or regard to the compulsory interview or any related material.

Secondly, the CDPP will not rely upon any part of the compulsory interview as part of its case.

Thirdly, the CDPP has removed or redacted all material relating to the compulsory interview from the brief of evidence.

Fourthly, the CDPP has quarantined all physical and electronic copies of recordings of the compulsory interview, transcripts and summaries of the interview and all other material relating to the interview. I am satisfied on the evidence that all such material is stored securely and can only be accessed by officers not involved in the continued prosecution of the defendant, and cannot be accessed by other staff or external persons.

Fifthly, the decision to re-try the defendant on the charges contained in the indictment was taken in accordance with prosecution policy of the Commonwealth without reliance upon or regard to the compulsory interview material. Whilst the particulars of the charges remain the same, the sufficiency of the particulars have also been reconsidered without any reliance upon or regard to the compulsory interview material.”

  1. [57]
    On 10 April 2019, Mr Leach filed a pre-trial application in the District Court of Queensland seeking a permanent stay of the indictment, or alternatively, orders that the CDPP proceed without any forensic advantage from the direct or indirect use of the transcript of the compulsory examination.
  2. [58]
    Shortly thereafter and prior to the hearing of that pre-trial application, Mr Leach filed a writ in the original jurisdiction of the High Court of Australia seeking:
    1. (a)
      a declaration that the continued prosecution of Mr Leach on the charges relating to Commonwealth indictable offences is impermissible as it is not possible to provide Mr Leach his entitlement under the Constitution to a fair trial, being one that is accusatorial in character; and
    2. (b)
      a declaration that a trial of Mr Leach’s on any of the charges would require the District Court of Queensland to conduct a criminal trial which was incapable of being a fair trial, being one that is accusatorial in character, and would thereby involve the District Court of Queensland in an activity repugnant to its

role as a court invested with the judicial power of the Commonwealth pursuant to Chapter III of the Constitution.

  1. [59]
    On 25 June 2019, Gageler J remitted that proceeding to the District Court of Queensland for determination pursuant to s 44 of the Judiciary Act 1903 (Cth). His Honour’s reasons for reaching that conclusion were as follows:

“…the jurisdiction of this Court to entertain a proceeding for a declaration in relation to a pending criminal proceeding is exercised only in the most exceptional circumstances. The concern is not just to avoid fragmentation of the criminal process, but to preserve the integrity of the appellate structure and to ensure the appropriate use of this Court’s limited resources. … In this case it is apparent that the relief sought by the plaintiff is founded on a substratum of fact which is not wholly uncontested. It is also apparent that the substratum of fact overlaps substantially, if not entirely, with the substratum of fact for the permanent stay which the plaintiff is currently seeking in the District Court. That Court is plainly in a position to make such findings of contested fact as may be required and, in the first instance, to undertake the requisite evaluation of whether the retrial can be fair.”

  1. [60]
    Following that decision, two applications by Mr Leach were put before the District Court for determination: first, a pre-trial application for a permanent stay under s 590AA of the Criminal Code (Qld); and second, an application to be decided under s 39 of the Judiciary Act 1903 (Cth) for declaratory relief that Mr Leach’s continued prosecution was incompatible with s 80 of the Constitution. The primary judge was also asked to consider whether the documents seized from Mr Leach’s residence under the search warrant should be excluded.
  1. [61]
    The pre-trial application was heard over several days between December 2019 and February 2020. Further written submissions were provided on or around 20 March 2020 and the reasons for judgment were delivered on 24 March 2020: see Leach No. 3.
  1. [62]
    The primary judge quashed the indictment on the basis that the unlawful disclosure and use of the interview transcript breached Mr Leach’s fundamental right to a fair trial. However, he refused to exercise his discretion to order a permanent stay or to grant declaratory relief on constitutional grounds as he did not consider the matter to be “irrevocably lost”. The essential part of his reasoning may be summarised in the following way.
  1. [63]
    The primary judge considered first the legality of the disclosure of the contents of the compulsory examination. He followed Leach No. 2 to conclude that Ms O'Bryan’s disclosure of the transcript to the CDPP and its use by the CDPP was not authorised. He then turned to consider whether its disclosure to Ms O'Bryan for the purposes of her investigation was authorised, noting that Mr Leach contended that it was not and the CDPP contended that it was permissible. He construed the applicable sections to conclude that it would be an absurd result if other officers in the ATO could not use the results of the compulsory examination.   He concluded that the disclosure to Ms O'Bryan was lawful as she was a taxation officer performing her duties. He considered that that interpretation best achieved the purpose or object of the Act and that this view was strengthened by the contents of the Explanatory Memorandum to the Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2010.
  1. [64]
    The primary judge then turned to an examination of relevant authority, ultimately summarising applicable principle in the following manner:[109]

“The following principles may be distilled from the cases:

  1. (a)
    The prosecution ought not be provided with, nor make any use of, any evidence or information from compelled evidence which may tend to show that any documents or transactions, apparently regular on their face, in fact tend to support the charges;[110]
  2. (b)
    The prosecution ought not be provided with, nor make any use of, any defences disclosed by the accused by compelled evidence;[111]
  3. (c)
    The evidence which the prosecution is to call is not to be influenced by compelled evidence;[112]
  4. (d)
    The accused can decide the course he or she will adopt at trial and answer to the charge only according to the strength of the evidence able to be led by the prosecution at the trial unaided by any of the matters identified in (a) to (c) above;[113]
  5. (e)
    The accused is not to be compromised in the decision referred to in (d) by the unlawful subsequent use by the prosecutor of compelled evidence;[114]
  6. (f)
    The prosecutor must prove the guilt of the accused and the accused may not be by compelled evidence, forced in any way, to confess his or her guilt;[115] and
  7. (g)
    Consequently, the process for investigation, charge, prosecution and trial of the indictable offence is entirely accusatorial.[116]
  1. [65]
    The primary judge then considered issues concerning the use which could be made of derivative evidence.[117]
  2. [66]
    So far as the disclosures which Ms O'Bryan made in her interviews with Mr Fu, Mr De Graff and Mr Lincoln-Smith, I have identified the findings which the primary judge made at [28](d), [29](i) and [30](d) above. The primary judge acknowledged that Ms O'Bryan was entitled to use the information obtained from the compulsory examination for the purposes of her investigation, but concluded that she was not entitled to disclose the contents of the examination to the witnesses. He considered the impact of the illegality of whether the evidence should be excluded from use at the retrial. He applied Bunning v Cross and regarded as relevant that there was no flagrant or dishonest breach of the law by Ms O'Bryan, the illegality had not affected the cogency of the evidence, the same evidence would have been legally collected without the impugned disclosures, the seriousness of the offence, the seriousness of the unlawful conduct by the authorities, the intention of the parliament and the public interest in bringing to conviction those who have committed offences. He did not consider that Mr Leach had lost any forensic advantages. He concluded that the evidence of those witnesses should not be entirely excluded.
  1. [67]
    The primary judge took a different view in relation to the evidence obtained by the search warrant to which I have referred at [31] to [33] above (namely financial records including the trust ledgers), finding:[118]

“I find that the search warrant was obtained in part by reason of the [compulsory examination]. Documents seized during the search are referred to in the witness statements, were relied on at the trial and are still referred to in the evidence matrix, exhibit 11B. The evidence obtained pursuant to the search warrant should be excluded, as it was unlawfully obtained in breach of the High Court principles.

It may be that a fresh investigator without knowledge of the interview could be appointed and could ‘re-obtain’ documents based on material known before the interview but not as a result of it.”

  1. [68]
    He then considered the fact that the compulsory examination had been used by the CDPP to formulate the charges and concluded that the fact there was a new prosecution team and that documents had been quarantined did not change that the charges before the court were based on the disclosures made in the compulsory examination.[119] Based on Leach No. 2, he concluded that a prosecution on the charges so formulated was compromised. It was for this reason that he ultimately decided that the indictment should be quashed. But it was because of the fact that there was other evidence, which he regarded to have been lawfully obtained, which might be lawfully forwarded to the CDPP and used for a prosecution on the subject matter of those charges, that he refused a permanent stay.
  1. [69]
    Mr Leach advanced three grounds of appeal.
  1. [70]
    Ground 1 asserted that the primary judge erred in failing to determine the necessary question of whether Mr Leach had an entitlement to a fair trial of a kind entrenched by the Constitution, which once compromised, entitled him to a permanent stay or injunction in respect of the subject matter of the indictment as follows:
    1. (a)
      having correctly held at [244] that the concept of a fair trial according to law is constitutionally entrenched;
    2. (b)
      having correctly identified at [274] the essential or irreducible requirements of such a fair trial;
    3. (c)
      having correctly found at [327] that Mr Leach’s fundamental right to a fair trial on indictment 1479 of 2013 (and thus the subject matter of the indictment) had been breached; and, at [328], that the accusatorial nature of the trial on the subject matter of the indictment had been fundamentally altered;

the learned primary judge erred at [330] in concluding that he did not need to determine the constitutional issue or the relief that flowed from it in light of the findings set out above, or on the material before him generally.

  1. [71]
    Ground 2 was advanced in addition to, or in the alternative to, the constitutional ground raised by ground one. It contended that the primary judge erred in refusing to grant a permanent stay of the subject matter of the indictment on the basis that Mr Leach is unable to receive a fair trial, as follows:
    1. (a)
      the primary judge having correctly identified at [274] the essential or irreducible requirements of a fair trial -
      1. erred in taking into account the irrelevant consideration that the dissemination to Ms O'Bryan within the ATO was lawful   when Mr Leach was subsequently charged, and compulsorily acquired material obtained directly or derivatively was unlawfully disclosed to the CDPP to be used in the prosecution against him: cf [36], [240], [242], [292(b)], [294]-[297], [305], [349]; and
      2. erred in finding that “Ms O'Bryan was entitled to use the interview to continue her investigations into this matter ... [and] was entitled to speak to those witnesses and, if necessary, bring a charge;”; [295], cf [274], [292(b), (c), (f)-(h) and (l)]; and, “the ATO has the authority under s 355-50 and/or s 355-70 of the TAA to forward relevant documents to the CDPP”, aside from solely the compulsory interview itself: cf [345]; and
    2. (b)
      further, where the learned trial judge correctly found that the accusatorial nature of the trial had been fundamentally altered (at [328]), he erred in making an order that was insufficient to ensure such a fair trial: eg at [343], [350], and instead should have made the only order reasonably open to him, and as sought by Mr Leach below and by this appeal.
  1. [72]
    Ground 3 was advanced in addition to, or in the alternative to grounds 1 and 2. It contended that the primary judge erred in not permanently staying count 44, as follows:
    1. (a)
      having correctly found at [95], [189] and [293] that the existence of Mr de Graff and Mr Lincoln-Smith was only known to the ATO because of the defendant’s compulsory interview;
    2. (b)
      having correctly found at [106]-[107], that Ms O'Bryan, the ATO investigator, put to both Mr De Graff and Mr Lincoln-Smith that [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23];
    3. (c)
      having correctly found at [114] and [191] that Ms O'Bryan’s discussion with Mr De Graff was consequent on what was said by Mr Leach during his compulsory interview;
    4. (d)
      having correctly, at least to this extent, accepted at [303] that Mr Leach’s real complaint was that the ATO did not know about the witnesses;
    5. (e)
      the learned trial judge erred –
      1. in taking into account at   [302] the irrelevant   consideration that Ms O'Bryan could have achieved the same result by asking the questions Mr De Graff and Mr Lincoln-Smith without divulging what Mr Leach said in the interview;
  1. (ii)
    in failing to take into account that the matters in (a) to (c) above meant that Mr Leach had been compelled to disclose his defence, and that that disclosure was unlawfully used to obtain the evidence of Mr De Graff and Mr Lincoln-Smith to pre-emptively attack that defence; and thus erred in failing to find that Mr Leach was unable to get a fair trial in relation to count 44.
  1. [73]
    Ground 1 amounted to a challenge to the primary judge’s dismissal of the constitutional matter that had been remitted by Gageler J. Mr Leach submitted that this ground was civil in nature; accordingly, it was brought under s 118(3) of the District Court of Queensland Act 1967 (Qld), and the prohibition against appeals from interlocutory criminal rulings did not apply. Grounds 2 and 3 challenged the primary judge’s discretionary decision to not grant a permanent stay. Mr Leach submitted that the prohibition against interlocutory criminal appeals did not apply because the decision appealed against was final. He submitted that grounds 2 and 3 were brought under s 29(3) of the Supreme Court of Queensland Act 1991 (Qld), there being no other avenue of review for final determinations of criminal matters that result in neither a conviction nor acquittal.
  1. [74]
    Before this Court Mr Leach sought orders to this effect:
    1. (a)
      the appeal be allowed; and
    2. (b)
      in addition to the order made by the primary judge that indictment 1479 of 2013 be quashed:
      1. a further order be made that the CDPP be permanently restrained from taking any further proceedings against Mr Leach concerning the subject matter of the indictment, and/or the subject matter of the indictment be permanently stayed; or
      2. alternatively, the CDPP be permanently restrained from taking any further proceedings against the defendant concerning the subject matter of the indictment in relation to count 44, and/or such matters be permanently stayed.
  1. [75]
    The Crown did not accept that grounds 2 and 3 of the appeal could be validly brought directly to the Court of Appeal without there being another legitimate, related ground of appeal; see: Mathews v Legal Services Commissioner [2016] QCA 22 and R v Chardon [2017] 1 Qd R 148. However, as the Crown conceded that ground 1 properly founded an appeal, and as all grounds of appeal relied upon the contention that Mr Leach could not receive “a fair trial”, the respondent accepted that it was open to this Court to consider and determine these related grounds of appeal. Accordingly, it is not necessary to resolve any procedural objection to Mr Leach’s appeal.
  1. [76]
    In respect of the documents seized by reason of the search warrant (which includes the trust ledgers), I have recorded that the primary judge had ruled that the evidence be excluded as it was unlawfully obtained in breach of the principles laid down by the High Court. The CDPP filed a Notice of Crown Law Officer’s reference under s 688A of the Criminal Code (Qld) referring to this Court the two questions identified at [11] above.
  1. [77]
    As to that application, Mr Leach says:
    1. (a)
      First, that question 1 is unnecessary to decide because it arises from a misreading of the primary judge’s reasons.
    2. (b)
      Second, that if question 1 was considered, it should be answered affirmatively, because the TAA does not permit the ATO to disclose the contents of an examinee’s compulsory examination in circumstances where doing so has the ultimate effect of fundamentally altering the accusatorial nature of the examinee’s trial.
    3. (c)
      Third, that the second question should be answered negatively, because the disclosure of Mr Leach’s compulsory examination fundamentally and irreparably altered the accusatorial nature of his trial, with the result that his trial could not proceed, and any question as to the discretionary inclusion of the search warrant evidence was moot.
  1. [78]
    The first submission may be disposed of at the outset. The Crown submitted to this Court, and I agree, that the primary judge’s conclusion that the evidence was “unlawfully obtained” must be taken to involve a conclusion by the primary judge that Chapter 5 of Schedule 1 of the TAA did not authorise the disclosure of information compulsorily obtained in an application for a search warrant. Thus it is necessary at least to answer question 1.

Consideration of appeal grounds 2 and 3

  1. [79]
    Leach No. 2 concerned the use by the CDPP of the content of Mr Leach’s compulsory examination for the purpose of a consideration of charges against him, for the purpose of the formulation of such charges, for use in the preparation of the prosecution case in relation to such charges and as evidence at a criminal trial to prove his guilt. In that case, this Court (by majority) found that such use conflicted with the “fundamental principle of the common law” that the onus of proof rests on the prosecution and conflicted with its “companion principle” that the prosecution cannot compel an accused to assist it. Having regard to the principle of legality, this Court (by majority) concluded that such an outcome could not be regarded as having been authorised by the general words of the TAA, and, accordingly the TAA should not be construed to have authorised that conduct. Nevertheless, this Court ordered that there be a retrial.
  2. [80]
    The situation is now different to the situation considered in Leach No. 2. No direct use of the compulsory examination is proposed for either the preparation for or the conduct of the retrial. No challenge has been advanced as to the order made by the primary judge quashing the indictment. That means that the prosecution could only proceed if the new CDPP team (which has not had and will not have the results of the compulsory examination) having regard to the other evidentiary material, formulates charges, presents a new indictment and proceeds to trial based on that evidence. But, contends Mr Leach, a fair trial is now impossible for four reasons:

“First, a s 80 trial is a fair trial, being one that is accusatorial in character. Second, a defining feature of an accusatorial trial is that the prosecution cannot compel an accused person to assist it. Third, a trial of Mr Leach will lack that defining feature because key prosecution witnesses have been unlawfully compromised by being sought out and encouraged to controvert Mr Leach’s compelled account, and, more generally, his compelled testimony has been directly and unlawfully deployed to attack his defence—all with the colour of the State. Fourth, the situation is unsalvageable because these witnesses, and the Crown case more generally, cannot now undo the unlawful conduct of the ATO.”

  1. [81]
    The result, contends Mr Leach, is that there should be a permanent stay of any further proceedings on the subject matter of the quashed indictment.
  2. [82]
    The principles governing Mr Leach’s application for a permanent stay are not in doubt. They were comprehensively summarised by reference to relevant High Court authority by Hollingworth J in Commonwealth Director of Public Prosecutions v Brady (2016) 346 FLR 1 in these terms (at 16-18 [46] to [56], footnotes in original):

“The power to stay proceedings is a discretionary power, which derives from the court’s inherent power to protect the integrity of its processes, where the administration of justice so requires.    It is a remedy that is invoked to prevent an abuse of process.

The grounds upon which a stay may be ordered include delay,[120] oppression,[121] prosecutorial misconduct,[122] destruction or loss of evidence,[123] where the court’s procedures are invoked for an illegitimate purpose, or use of the court’s procedures would bring the administration of justice into disrepute.[124] The possible grounds are not capable of exhaustive definition.

The test is whether there is “a fundamental defect which goes to the root of a trial, of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences” then the discretion to stay is enlivened, and may be exercised to prevent the accused being tried unfairly.[125]

A proceeding will only rarely be stayed permanently, because it is in essence a power to refuse to exercise jurisdiction. The underlying principle is that the conferral of jurisdiction imports a prima facie right in the person invoking the jurisdiction to have it exercised.[126] Thus it has been said that the power is exercisable only in “exceptional cases”,[127] or “sparingly and with the utmost caution”.[128]

The policy considerations behind limiting the exercise of the power to exceptional cases were explained by Brennan J in Jago v District Court (NSW) (Jago). He noted that if permanent stay orders were to become commonplace “it would not be long before courts would forfeit public confidence. The granting of orders for permanent stays would inspire cynicism, if not suspicion in the public mind”.[129]

The power cannot be exercised where a court merely forms the view that the prosecution should not have been commenced or continued. The initiation and continuation of the prosecution is a matter for the executive. A court will not interfere in a decision to charge an accused person in a particular way “save to prevent an abuse of process”.[130] The focus of the power is upon the process or the proceeding, and not upon the general merits of the case.

In determining whether an application for a stay for abuse of process should succeed, a court will have regard to whether a fair trial can nevertheless be held. In particular a court will consider the capacity of the trial judge to rule on the admissibility of evidence and to give appropriate directions to the jury, to ensure that all the relevant factual issues arising from an alleged unfairness are placed before the jury sufficient to cure the unfairness that would otherwise arise.[131]

Nonetheless, there is a fundamental right of an accused not to be tried unfairly. Where the defect is so serious that the continuation of a criminal trial will culminate in an unfair trial regardless of any efforts by the trial judge, then the court’s processes will have been misused, such as to constitute an abuse of process, because the public interest in holding a trial does not warrant the holding of an unfair trial.[132]

There is a strong public interest in the prosecution of serious offences and the conviction of offenders. There is also a strong public interest in ensuring that judicial processes are not abused, and that the trials of accused persons are fair to them, that innocent persons are not convicted, and that public confidence in the administration of justice is maintained.[133]

The application of the test involves an evaluation of the seriousness of the defect that remains after any prospect of remedy has been discounted. It also involves a balancing exercise directed at determining where the interests of justice lie and, if appropriate, exercising the power to prevent injustice or to protect against unfairness. There can be no precision as to what factors must be weighed in the balance; they must necessarily vary according to the facts of the particular case.

There is no dispute that the accused carry the burden of establishing that any stay should be granted, and the evidentiary basis for it. Any facts in dispute need to be proved on the balance of probabilities.”

  1. [83]
    That the proper exercise of the discretion requires an evaluation of the significance of the suggested defects in process and of the likely efficacy of the measures which have and can be taken to relieve against their consequences so as to afford the accused a fair trial, bearing in mind the fundamental principles identified in the authorities was also emphasised in the later case of Strickland (a pseudonym) v Director of Public

Prosecutions (Cth) (2018) 266 CLR 325 per Kiefel CJ, Bell and Nettle JJ in the following passage:[134]

“Certainly, as this Court has stated repeatedly,[135] a permanent stay of a criminal prosecution is an extraordinary step which will very rarely be justified. There is a powerful social imperative for those who are charged with criminal offences to be brought to trial and, for that reason, it has been said that a permanent stay of prosecution should only ever be granted where there is such a fundamental defect in the process leading to trial that nothing by way of reconstitution of the prosecutorial team or trial directions or other such arrangements can sufficiently relieve against the consequences of the defect as to afford those charged with a fair trial. But, as this Court has also stated,[136] there is, too, a fundamental social concern to ensure that the end of a criminal prosecution does not justify the adoption of any and every means for securing a conviction and, therefore, a recognition that in rare and exceptional cases where a defect in process is so profound as to offend the integrity and functions of the court as such, it is necessary that proceedings be stayed in order to prevent the administration of justice falling into disrepute.”

  1. [84]
    I make the following observations concerning the considerations which should inform the exercise of the discretion in the present case.
  1. [85]
    First, it does not automatically follow from the fact that there has been a trial which miscarried because the prosecution had access to the results of a pre-charge compulsory examination and used them in the manner impugned in Leach No. 2, that there could never thereafter be a fair trial. That such a trial might be possible was contemplated by the fact that this Court ordered a retrial in Leach No. 2. That the briefing of a trial team not privy to the evidence might be a step which would permit such an outcome was also explicitly contemplated in Lee v The Queen (2014) 253 CLR 455 per French CJ, Crennan, Kiefel, Bell and Keane JJ at 470-471 [44]. For the purposes of the retrial the prosecution will be denied the forensic advantage of having access to the results of the compulsory examination and will not be able to use the compulsory examination in the manner which was impugned in Leach No. 2. The primary judge considered the steps which were proposed and found that the steps which had been taken were apt to ensure a fair trial with new charges and with evidence untainted by the compulsory examination.[137]
  1. [86]
    Second, in this case Mr Leach was not the subject of compulsory examination after being charged. Nor was he the subject of an unlawful pre-charge compulsory examination, there being no suggestion that the power to require him to attend and to participate in a compulsory examination was exercised other than in accordance with the TAA and for the purpose for which it was conferred by the TAA. The fact of the compulsory examination having occurred does not of itself mean that any subsequent use of the information so obtained must be assessed by the application of the principles under discussion. As the plurality in Strickland (a pseudonym) v Director of Public Prosecutions (Cth) explained:[138]

“In substance, [R v Independent Broad-Based Anti-Corruption Commissioner (2016) 256 CLR 459] held that, where compulsory powers were exercised lawfully in accordance with the statute under which they were conferred for the purpose for which they were conferred, the examiner was not prevented by the fundamental principle (scil that it is for the prosecution to prove the guilt of an accused person) or the companion rule (scil that an accused person cannot be required to testify to the commission of a charged offence) from compelling persons suspected of offences who had not been charged to answer questions concerning the offences of which they were suspected. That was so, however, because the companion rule is a principle which governs the conduct of curial criminal proceedings and is thus not engaged until and unless an accused is charged.”

  1. [87]
    Third, of course if evidence had been obtained in an unlawful way – in this case if the use of the information compulsorily obtained was unlawful - a question would arise as to whether some or all of the evidence should be excluded by virtue of that illegality. The extent to which critical evidence should be excluded because it was tainted by illegality would be an obviously relevant consideration in relation to the question of whether there should be a permanent stay. As to this:
    1. (a)
      It is axiomatic that the lawfulness or otherwise of the disclosures made by Ms O'Bryan must be determined as at the time that the disclosures were made.
    2. (b)
      The question of lawfulness as at the time the disclosures were made is a question of statutory construction. The relevant statutory provisions are identified at [44] to [52] above.
    3. (c)
      Ms O'Bryan made some disclosure of the contents of the compulsory examination to Messrs Fu, Mr De Graff and Mr Lincoln-Smith: see [28] to [30] above. As we have seen, the relevant disclosures occurred before Mr Leach was charged.[139] The primary judge found that the disclosure made to the witnesses was unlawful, but applied Bunning v Cross to conclude that evidence from those witnesses should not be excluded from use at the retrial. The question whether the primary judge was correct to conclude that the disclosure made to the witnesses was unlawful is not before this Court, although it will appear that there is reason to doubt its correctness. As he determined that the evidence should not be excluded, it is not necessary to address this question further.
  1. (d)
    Ms O'Bryan, made explicit disclosure of parts of the compulsory examination in the affidavit she relied on in support of the application to a Magistrate for the search warrant by which she obtained the trust ledgers, as has been explained at [31] and [32] above. This occurred well before Mr Leach was charged. The primary judge found that the evidence obtained pursuant to the search warrant should be excluded as it was unlawfully obtained. The correctness of that conclusion is raised by question 1 before this Court.
  2. (e)
    Ms O'Bryan was an investigator in the Serious Non-Compliance section of the ATO tasked with investigating the business activities of the two trusts, including whether Mr Leach had committed any offences. The disclosure to a Magistrate in July 2011 for the purpose of obtaining a search warrant aimed at progressing the investigation Ms O'Bryan was tasked to perform was something which was made in the course of her performing her duties as a taxation officer, especially given the wide interpretation which should be given to that phrase,[140] and noting that the companion principle had not been engaged because Mr Leach had not yet been charged. In my view the exception stated in s 355-50(1) of the TAA applied to permit disclosure of the parts of the compulsory examination to the Magistrate in the course of the application for the search warrant.
  3. (f)
    The result of that conclusion is that it was not an offence for Ms O'Bryan to make the disclosure to the Magistrate in July 2011. It could not be said that the search warrant was unlawfully obtained.
  4. (g)
    It follows that in my view the primary judge erred in reaching the conclusion that the evidence obtained pursuant to the execution of the search warrant was unlawfully obtained. He should have formed the contrary view.
  1. [88]
    Fourth, the critical question on the stay application is whether the use in a subsequent prosecution of evidence (derivative evidence) which may be said in some way to have been derived from the lawful use of information lawfully obtained during the lawful pre-charge compulsory examination must be seen to conflict with the “fundamental principle of the common law” that the onus of proof rests on the prosecution or with its “companion principle” that the prosecution cannot compel an accused to assist it. If that were so, then that would be an overwhelming consideration favouring the exercise of the discretion to stay. As to this:
    1. (a)
      It is clear that the use of such derivative evidence will not necessarily conflict with those principles.[141] Whether a conflict arises will depend on the nature of the evidence in question and the circumstances of the case, including whether the evidence is available from independent sources.[142]
    2. (b)
      In R v Seller, Bathurst CJ expressed the view that answers obtained during a compulsory examination which tended to indicate the availability of admissible evidence from other sources could properly be used for this purpose.[143] In this regard, his Honour thought that answers which might indicate the location of bank accounts could properly be used for this purpose. Similarly, he thought that the use by the prosecution of documents produced during a compulsory examination and which supported the Crown case would not usually compromise a fair trial. However, his Honour thought it would be different if the provision of the material in question disclosed defences or explanations of transactions by the accused which he or she may raise at a trial, and possibly evidence or information which would tend to show that documents or transactions apparently regular on their face in fact tend to support the proposed charges. In that case the provision to prosecutorial authorities of the material compulsorily acquired relating to such matters could compromise a fair trial in accordance with the principles mentioned.[144]
  1. (c)
    Mr Leach argues that the evidence obtained from Mr Fu should be regarded as derivative evidence, the use of which would conflict with the relevant principles. That cannot be accepted.  As to this:
    1. The relevant evidence is identified at [28] above. Any disclosures made to Mr Fu occurred before Mr Leach was charged.
    2. The ATO knew before the compulsory examination that Mr Fu was the current trustee of the two trusts; that Mr Leach, a solicitor, was the authorised contact person for the two trusts concerned; that his firm’s trust account was the bank account into which the GST refunds had been paid, and that just before the compulsory examination Mr Leach had forward to the ATO two cheques drawn on that trust account totalling $1,083,271, representing a partial repayment of the GST refunds previously claimed on behalf of the trustee of the two trusts.
  1. (iii)
    Honest and professional solicitors act on the instructions of their clients and only dispose of their client’s monies held in their trust accounts based on those instructions. The primary judge was plainly right to conclude that Mr Fu, who as trustee of the two trusts would be regarded as Mr Leach’s client, was always going to be spoken to by the ATO. And he was always going to be asked whether [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23].
  2. (iv)
    That answers given on compulsory examination may have informed the content of some of the questions asked of Mr Fu, but that use of the information compulsorily acquired (and the proposed use of the derivative evidence thereby obtained) would not compromise a fair trial, particularly in circumstances in which the information compulsorily acquired will not be provided to the new prosecution team.
  1. (d)
    Mr Leach contends that when he stated [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23]. Accordingly, he contends that it would conflict with principle to permit the CDPP to use his compelled account to approach Mr De Graff and Mr Lincoln- Smith to obtain evidence to anticipate that defence and to negate it. Mr Leach also argues that the evidence obtained from Mr De Graff and Mr Lincoln-Smith should be regarded as derivative evidence, the use of which would conflict with the relevant principles. That too cannot be accepted. As to this:
  1. (i)
    The relevant evidence is identified at [29] and [30] above.
  2. (ii)
    The primary judge found that disclosure was made that Mr Leach had stated [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23] and it was by reason of the disclosures made by Mr Leach in the compulsory examination that the ATO had learned about the existence of Mr De Graff and his brother Mr Lincoln-Smith and of the facts which formed the basis of the fraud count concerning them. This all occurred before Mr Leach was charged.
  3. (iii)
    But even though those witnesses had first been identified in that manner, the evidence would have been sought and would eventually have been available from independent sources in any event.
  4. (iv)
    Mr Leach was a solicitor. GST refunds had been obtained and paid into his firm’s trust account and the ATO had formed the view that at least some false invoices were used for that purpose. And then over $1 million had been paid out of Gateway Lawyers’ trust account shortly before he was to be the subject of compulsory examination. Once Mr Fu had said that he knew nothing about the trusts, the ATO investigation would, inevitably and amongst other things, have turned to the identification of the client(s) on whose behalf the monies paid to the ATO had been held by Mr Leach’s firm and to the determination of whether the client(s) had authorised the payments made to the ATO and, if so, why. Obvious sources of information were the internal financial and trust accounting records kept by Gateway Lawyers and the external banking records referable to the Gateway Lawyers trust and general accounts.
  5. (v)
    There is no reason to think that Mr De Graff and Mr Lincoln-Smith would not have eventually been identified as the clients entitled to the monies concerned and enquiry made into the question whether they had authorised the disposition of trust monies. After all, before the ATO had contacted them they had retained a new solicitor, Mr Bax, to advise them in relation to Mr Leach’s dealing with the trust monies. That had occurred because Mr De Graff had formed the view that in March 2011 Mr Leach had given his brother a forged bank statement which falsely represented the amount of monies held on their behalf in his firm’s trust account. The proper conclusion is that when they were eventually contacted, they would inevitably have said that they had not authorised Mr Leach to use the trust monies to which they were entitled to make a payment to the ATO. It would be the negation of authority which mattered, not [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23].
  6. (vi)
    That answers given on compulsory examination may have informed the timing of and the content of some of the questions asked of Mr De Graff and Mr Lincoln-Smith, but that use of the information compulsorily acquired (and the proposed use of the derivative evidence thereby obtained) would not compromise a fair trial, particularly in circumstances where the information compulsorily acquired will not be provided to the new prosecution team.
  1. (e)
    Mr Leach contends that it would conflict with principle to permit the CDPP to use at his prosecution the trust ledgers which were obtained consequent upon execution of the search warrant. That submission too cannot be accepted:
  1. (i)
    The relevant evidence is that identified at [31] to [33] above. Disclosure was made to a Magistrate and the search warrant obtained and executed before Mr Leach was charged. I have explained that, contrary to the primary judge’s view, the evidence obtained by execution of the search warrant should not be regarded as unlawfully obtained.
  2. (ii)
    For reasons already expressed, once Mr Fu had said he knew nothing about the trusts, the ATO investigation would inevitably have turned to the internal financial and trust accounting records kept by Gateway Lawyers and the external banking records referable to the Gateway Lawyers trust and general accounts.
  3. (iii)
    As a solicitor, Mr Leach was required to keep such financial records by the Legal Profession Act 2007 (Qld) and the Legal Profession Regulation 2007 (Qld). Mr De Graff and Mr Lincoln-Smith acted independently to retain Mr Bax in respect of the monies held in the Gateway Lawyers trust account. Indeed, by 14 July 2011, Mr Bax already knew enough about the situation to tell Ms O'Bryan without checking with Mr De Graff that [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23]. And by 14 July 2011, the Queensland Law Society had appointed receivers in respect of Gateway Lawyers. There is no reason to think that the trust ledgers could not eventually have been obtained without the use of the information compulsory acquired.
  4. (iv)
    But even if that were not so, it would not comprise a fair trial to use the information compulsorily acquired for the purpose of obtaining a search warrant to obtain access to the trust ledgers: see [86] above. Nor would it compromise a fair trial to use the trust ledgers at the trial: see [88](b) above.
  1. (f)
    Accordingly, the proposed use of the derivative evidence for the purposes of the retrial does not conflict with either the fundamental principle or the companion principle.
  1. [89]
    Having regard to those observations, what conclusions should be drawn in relation to the contention that the primary judge’s discretion miscarried as contended by Mr Leach?
  1. [90]
    Appeal ground 2 contends that that the exercise of the discretion by the primary judge miscarried either because the primary judge took into account irrelevant considerations or because ordering a permanent stay was the only order which was reasonably open in the circumstances. Appeal ground 3 advances a similar submission in relation to the failure to order a permanent stay of count 44.
  1. [91]
    It will be apparent from the foregoing analysis that I reject Mr Leach’s submission that the primary judge erred in the manner alleged by appeal ground 2. It was open to the primary judge to form the view that the steps which had been taken were apt to ensure a fair trial with new charges and with evidence untainted by the compulsory examination, thereby not contravening principle as explained in Leach No. 2. It was open to the primary judge to form the view that this was not a case in which the extraordinary step of ordering a permanent stay should be taken. Moreover, the proposed use of the derivative evidence for the purposes of a retrial would not conflict with either the accusatorial principle or the companion principle. The primary judge did erroneously form the view that the evidence obtained pursuant to the search warrant was unlawfully obtained (and may also have been in error in concluding that there was any illegality involved in obtaining the statements from Messrs Fu, De Graff and Lincoln-Smith), but that error could not be relied on by Mr Leach as a basis to impugn the decision not to order a stay.
  1. [92]
    The same logic informs my rejection of appeal ground 3. The identification of the existence of Mr de Graff and Mr Lincoln-Smith and the use of the fact that Mr Leach had suggested in the compulsory examination that [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23], was of comparative insignificance except in a timing sense. They would have been identified and evidence that they [Redacted: see R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions [2022] QCA 23] would eventually have been available from independent sources in any event. Adducing evidence from them would not conflict with either the fundamental principle or the companion principle.
  1. [93]
    The result is that grounds 2 and 3 fail.

Consideration of the s 668A questions

  1. [94]
    I have explained that the primary judge thought that Ms O'Bryan made impermissible disclosures of some part of the compulsory examination to the witnesses in the course of obtaining their evidence. I have explained that he went onto exercise the discretion described in Bunning v Cross to conclude that the evidence obtained from the witnesses should not be excluded in any substantial way.
  1. [95]
    The primary judge did not exercise the same discretion in relation to the evidence obtained by the search warrant to which I have referred at [31] to [33] above. If he was correct to conclude that the search warrant was obtained because of unlawful disclosures by Ms O'Bryan of the compulsory examination, he should also have gone on to exercise the discretion described in Bunning v Cross. It was an error not to take that course in relation to the evidence obtained by search warrant. On that hypothesis, question two would be answered in the affirmative.
  1. [96]
    But that begs the question of the correctness of the hypothesis, and that is the subject of question 1. For the reasons expressed at [87] above, the primary judge should have concluded that s 355-50(1) of the TAA applied to permit disclosure of the parts of the compulsory examination to the Magistrate in the course of the application for the search warrant made on 6 July 2011.
  1. [97]
    As question 1 should not be answered in the affirmative, question 2 is unnecessary to answer.

Consideration of appeal ground 1

  1. [98]
    Appeal ground 1(c) misstates the effect of the primary judge’s reasons. When his Honour stated that there had been a fundamental alteration of the accusatorial nature of “this trial”, it was plain that he was referring to a trial on the indictment which had been formulated based on the compulsory examination which had been provided to the CDPP. He was not expressing that conclusion in relation to any retrial which might occur based on a new indictment. That was why he immediately went on to observe “however, I do not consider the matter is irrevocably lost”.
  1. [99]
    The primary judge accepted that it was arguable that “the prosecution as instituted and now before the Court” was unconstitutional, and might breach the defendant’s right to a fair trial, although he noted that there were also reasonable arguments the other way, but he considered that it was not necessary to determine the issue because the solution he chose would lead to the possibility of new charges with untainted evidence achieved by way of choices made by a new CDPP not briefed with the results of the compulsory examination. And he concluded that such a course was apt to ensure a fair trial.
  1. [100]
    His Honour the primary judge made no error in concluding that he did not need to determine the constitutional issue or the relief that flowed from it.

Consideration of R v Kinghorn [2021] NSWCCA 313

  1. [101]
    Since the parties’ argument before this Court concluded, the New South Wales Court of Criminal Appeal heard argument which challenged the correctness of the decision of this Court in Leach No. 2. In R v Kinghorn [2021] NSWCCA 313, that Court refused to follow Leach No. 2, taking a wholly different approach to the construction of comparable statutory provisions.
  1. [102]
    The steps which have been taken by the Crown and which are proposed to be taken by the Crown in relation to any retrial of Mr Leach were formulated on the assumption of the correctness of the decision of this Court in Leach No. 2. Argument before this Court did not seek to challenge the correctness of the decision of this Court in Leach No. 2. As I have reached the conclusion that Mr Leach’s argument fails on that basis, it is not necessary to express a view on the contest between the approach to the construction of the relevant statutory provisions in Leach No 2 and that expressed in R v Kinghorn (2021).
  1. [103]
    It would suffice to observe that R v Kinghorn (2021) provides no support for the arguments advanced by Mr Leach.

Orders to be made

  1. [104]
    The following orders should be made:

CA No 91 of 2020:

  1. Application dismissed.

CA No 198 of 2020:

  1. The questions are answered as follows:

Question 1: Was Smith DJCA correct in ruling (at [318] of CDPP v Leach (No 3) [2020] QDC 20) that the Taxation Administration Act 1953 (Cth) (“the TAA”) and/or other legal principles make it unlawful for a taxation officer (within the meaning of that term in the TAA) to disclose information derived from a compulsory examination under s 353-10 of Schedule 1 of the TAA (conducted with the interviewee prior to any charges having been laid) in an application for a search warrant, seeking evidence in relation to an offence by the interviewee against the TAA or another Act, made to a person empowered under an Act to issue a search warrant?

Answer: No. The primary judge should have concluded that s 355-50(1) of the TAA applied to permit the disclosure of the parts of the compulsory examination to the Magistrate in the course of the application for the search warrant made on 6 July 2011.

Question 2: If question one is answered “Yes”, if an application for a search warrant was founded in part upon information so derived, does the discretion described in Bunning v Cross (1978) 141 CLR 54 apply, such that a discretion would exist to permit evidence derived from such a search warrant to be adduced at trial?

Answer: The answer to question 1 makes it unnecessary to answer question 2.

  1. [105]
    The possibility exists that it might be appropriate to limit the publication of such parts of these reasons as disclose the content of the compulsory examination. Accordingly, it should be further ordered in respect of both proceedings in this Court:
  1. Until further order of the Court, publication of the Court’s reasons for judgment be limited to the parties and to their legal representatives in the proceedings before this Court.
  2. The parties are directed to file written submissions addressing the extent to which further publication of any part of these reasons should be limited within 14 days of the date on which the reasons are published to them.

Footnotes

[1] There is no express statutory abrogation of the privilege. However, the statement was accurate, as the state of the case law demonstrates. As at March 2010, see Stergis v Boucher (1989) 86 ALR 174; Commissioner of Taxation v De Vonk (1995) 61 FCR 564 at 566 per Foster J, 583-584 per Hill and Lindgren JJ, and since then, see Binetter v Deputy Commissioner of Taxation (2012) 206 FCR 37 per Edmonds, Perram and Jagot JJ at 47 [30]; and Deputy Commissioner of Taxation v Shi (2020) 277 FCR 1 per Davies J at 15 [24].

[2] Mr Leach was in partnership with a Mr Brown, who retired from the firm in October 2008 due to illness: AR 1860 to 1861.

[3] AR 1963.

[4]Leach No. 3 [10] and [17].

[5] Statement of Ms McDonald dated 13 April 2011 at [5]; AR 1226. See also Leach No. 3 at [77].

[6] Statement of Ms McDonald dated 13 April 2011 at [5]; AR 1226. See also Leach No. 3 at [77] to [78].

[7]  Statement of Ms McDonald dated 13 April 2011 at [7(e) and (g)] and [8(e) and (g)]; AR 1226 to AR 1227.

[8] Statement of Ms McDonald dated 13 April 2011 at [7(k)] and [8(k)]; AR 1226 to AR 1227.

[9] Statement of Ms McDonald dated 13 April 2011 at [7(k) and [8(k)]; AR 1226 to AR 1227.

[10] Statement of Ms McDonald dated 13 April 2011 at [19]; AR 1235 to AR 1236.

[11] Statement of Ms McDonald dated 13 April 2011 at [20]; AR 1236.

[12] Statement of Ms McDonald dated 13 April 2011 at [30], [33], [34], [36], [37] and [39]; AR 1240 to AR 1249. See also Leach No. 3 at [79].

[13] Statement of Ms McDonald dated 13 April 2011 at [30(c)] and [31]; AR 1240 to AR 1241.

[14] AR 1883 and see Leach No. 3 at [136].

[15] Two separate notices were given: one in respect of the Trustee of the No 88 Trust and the other in respect of the Trustee for the R& M No 88 Unit Trust.

[16] AR 1967.

[17] Affidavit of Ms McDonald sworn 14 March 2014 at [6]; AR 1283.

[18] Affidavit of Ms McDonald sworn 14 March 2014 at [7]; AR 1283.

[19] Transcript of compulsory examination of Mr Leach on 18 March 2010 at AR 1811 et seq.

[20]Leach No. 3 at [86].

[21] Statement of Ms McDonald dated 13 April 2021 at [77]; AR 1264.

[22] Statement of Ms McDonald dated 13 April 2021 at [79]; AR 1265. See also Affidavit of Ms McDonald dated 14 March 2014 at [15]; AR 1284.

[23] Statement of Belinda McDonald dated 13 April 2021 at [80] and [81]; AR 1265 to 1266.

[24] Affidavit of Ms McDonald sworn 14 March 2014 at [11]; AR 1284.

[25] PDL00816 to the Affidavit of Ms McDonald sworn 14 March 2014 at AR 1365.

[26] PDL00817 to the Affidavit of Ms McDonald sworn 14 March 2014 at AR 1368.

[27] Statement of Ms O’Bryan dated 23 September 2011 at [46] to [47]; AR 1393 and ATO Case Notes Report at p. 14; AR 2159.

[28] ATO Case Notes Report at p. 15; AR 2160.

[29] Statement of Ms O’Bryan dated 23 September 2011 at [55]; AR 1396.

[30] Statement of Ms O’Bryan dated 23 September 2011 at [56]; AR 1396.

[31] ATO Case Notes Report at p. 17; AR 2162.

[32] Transcript of trial evidence of Mr Fu at T2-33 lines 1 to 5; AR 1531 and Transcript of trial evidence of Ms O’Bryan at T7-43 lines 1 to 2; AR 1675; ATO Case notes report at AR 2165.

[33] See the answers at AR 2298 to AR 2303.

[34] ATO Case Notes Report at p. 18; AR 2163.

[35] Statement of Ms O’Bryan dated 23 September 2011 at [70]; AR 1400 and Statement of Mr Fu dated 24 October 2011 at [13]; AR 1460.

[36] Statement of Ms O’Bryan dated 23 September 2011 at [71]; AR 1401.

[37]Leach No. 3 at [98].

[38] See transcript of interview between of Mr Fu at AR 2036.

[39] See transcript of interview between of Mr Fu at AR 2036 to AR 2037.

[40] Statement of Mr Fu dated 24 October 2011 at [23]; AR 1461.

[41] Transcript of trial evidence of Mr Fu at T2-9 lines 43 to 46; AR 1506.

[42] Transcript of interview of Mr Fu at AR 2031.

[43] Transcript of interview of Mr Fu at AR 2024 and Transcript of trial evidence of Mr Fu at T2-12 lines 44 to 46 and T2-13 lines 1 to 2; AR 1509 and AR 1510.

[44] Statement of Ms O’Bryan dated 23 September 2021 at [142]; AR 1424.

[45] Statement of Ms O’Bryan dated 23 September 2021 at [148]; AR 1425.

[46] Statement of Mr Fu dated 24 October 2011; AR 1458.

[47] Statement of Mr Fu dated 24 October 2011 at [1] and [2]; AR 1458.

[48] Statement of Mr Fu dated 24 October 2011 at [21] and [22]; AR 1461

[49] Statement of Mr Fu dated 24 October 2011 at [8] to [10]; AR 1459 and AR 1460.

[50] Statement of Mr Fu dated 24 October 2011 at [26] to [31]; AR 1462 to AR 1464.

[51] Transcript of trial evidence of Mr Fu at T2-22 lines 28 to 41 and T2-23 lines 8 to 34; AR 1519 and AR 1520.

[52] Transcript of trial evidence of Mr Fu at T2-28 to T-29; AR 1525 to AR 1526.

[53]Leach No. 3 at [142] to [170].

[54]Leach No. 3 at [141] and [154].

[55]Leach No. 3 at [153] and [305] and [307].

[56]Leach No. 3 at [163].

[57]Leach No. 3 at [301] and [308].

[58]Leach No. 3 at [309].

[59]ATO Case Notes Report at AR 2183.

[60]ATO Case Notes Report at p. 38; AR 2183.

[61]Statement of Ms O’Bryan dated 23 September 2011 at [134]; AR 1422.

[62]Statement of Ms O’Bryan dated 23 September 2011 at [115]; AR 1419; ATO Case Notes Report at p. 38; AR 2183.

[63]ATO Case Notes Report at pp. 48 and 49; AR 2193 and 2194.

[64] ATO Case Notes Report at p. 50; AR 2195.

[65] Statement of Ms O’Bryan dated 23 September 2011 at [12]; AR 1433.

[66] Statement of Mr De Graff dated 5 October 2012 at [2] to [4]; AR 1476 to 1477.

[67] Statement of Mr De Graff dated 5 October 2012 at [6] to [7]; AR 1477.

[68] Statement of Mr De Graff dated 5 October 2012 at [8]; AR 1477.

[69]Statement of Mr De Graff dated 5 October 2012 at [9] to [13]; AR 1477 to AR 1478.

[70] Transcript of trial evidence of Ms O’Bryan at T7-70 lines 3 to 16; AR 1702.

[71] Statement of Mr De Graff dated 5 October 2012 at [17] to [19]; AR 1479.

[72] Transcript of trial evidence of Mr De Graff at T5-66 lines 25 to 31; AR 1574.

[73]Leach No. 3 at [95] and [189].

[74]Leach No. 3 at [106] to [107].

[75]Leach No. 3 at [114] and [191].

[76]Leach No. 3 at [293].

[77]Leach No. 3 at [294] to [295].

[78]Leach No. 3 at [295].

[79]Statement of Ms O’Bryan dated 23 September 2011 at [14]; AR 1433.

[80] Statement of Mr Lincoln-Smith dated 11 January 2013 at [6] to [7]; AR 1483.

[81] Statement of Mr Lincoln-Smith dated 11 January 2013 at [8] to [15]; AR 1484 to AR 1485.

[82] Statement of Mr Lincoln-Smith dated 11 January 2013 at [16] to [18]; AR 1485 to AR 1486.

[83]Leach No. 3 at [293].

[84] Statement of Ms O’Bryan dated 23 September 2011 at [83]; AR 1403 to AR 1404.

[85] AR 1953 et seq.

[86] Statement of Ms O’Bryan dated 23 September 2014 at [84]; AR 1404.

[87] Statement of Ms O’Bryan dated 23 September 2014 at [84] to [109]; AR 1404 to AR 1418.

[88] Statement of Ms O’Bryan dated 23 September 2014 at [91] to [93]; AR 1406 to AR 1413.

[89]Statement of Ms O’Bryan dated 23 September 2014 at [99] to [112]; AR 1414 to AR 1418.

[90] Statement of Ms O’Bryan dated 23 September 2014 at [110]; AR 1418.

[91] Statement of Ms O’Bryan dated 18 November 2014 at [5] to [9]; AR 1429 to AR 1432.

[92] AR 2292 to AR 2297.

[93]Leach No. 3 at [131].

[94] Affidavit of Ms Murphy sworn 24 March 2014 at [1]; AR 1454.

[95]Affidavit of Ms Murphy sworn 24 March 2014 at [14] to [15]; AR 1456.

[96]Leach No. 3 at [125].

[97] The penalty for each of these offences was imprisonment for 10 years.

[98] The penalty for each of these offences was imprisonment for 10 years.

[99] The maximum penalty for this offence was 12 years’ imprisonment.

[100] See the cases referred to in footnote 1 above.

[101]Leach No. 2 per Sofronoff P at 473 [39].

[102]Leach No. 2 per Sofronoff P, footnotes in original.

[103]The special position under bankruptcy and company legislation is not material here for the reasons of history explained by Kiefel J in Lee v New South Wales Crime Commission (2013) 251 CLR 196, 286-289 [244]-[252].

[104]X7 v Australian Crime Commission (2013) 248 CLR 92, 153 [159].

[105]X7 v Australian Crime Commission (2013) 248 CLR 92, 153 [159].

[106]X7 v Australian Crime Commission (2013) 248 CLR 92, 142 [123].

[107]X7 v Australian Crime Commission (2013) 248 CLR 92, 148–149 [142] per Hayne and Bell JJ.

[108]Leach No. 3 at [335] to [339].

[109]Leach No. 3 at [274], footnotes in original.

[110]R v Leach at [58].

[111]Lee v The Queen (2014) 253 CLR at [41].

[112]X7 at [124]; Strickland v DPP (Cth) (2018) 361 ALR 23 [2018] HCA 53 at [76].

[113]X7 at [124].

[114]Lee v The Queen (2014) 253 CLR at [51].

[115]Leach at [51].

[116]X7 at [46], [101]-[102], [124], [159]-[160]; Lee (No. 1) at [159] and Lee (No. 2) at [32].

[117]Leach No. 3 at [275] to [289].

[118]Leach No. 3 at [318] to [319].

[119]Leach No. 3 at [320] to [329].

[120]Walton v Gardiner (1993) 177 CLR 378, 394.

[121]Ridgeway v The Queen (1995) 184 CLR 19, 75.

[122]Moti v The Queen (2011) 245 CLR 456 (Moti), 485.

[123]R v Edwards (2009) 83 ALJR 717.

[124]Rogers v The Queen (1994) 181 CLR 251, 286; cited in Moti v The Queen (2011) 245 CLR 456.

[125]Barton v The Queen (1980) 147 CLR 75, 111 (Wilson J).

[126]Jago v District Court (NSW) (1989) 168 CLR 23, 76 (Gaudron J).

[127]Jago v District Court (NSW) (1989) 168 CLR 23, 76 (Gaudron J).

[128]Jago v District Court (NSW) (1989) 168 CLR 23, 34 (Mason CJ), 76 (Gaudron J).

[129]Jago v District Court (NSW) (1989) 168 CLR 23, 50 (Brennan J).

[130]Maxwell v The Queen (1996) 184 CLR 501, 513 (Dawson and McHugh JJ).

[131]Attorney-General’s Reference (No 1 of 1990) (UK) [1992] 3 All ER 169 (Lord Lane CJ).

[132] Jago v District Court (NSW) (1989) 168 CLR 23, 30-1 (Mason CJ).

[133] Salmat Document Management Solutions Pty Ltd v The Queen (2006) 199 FLR 46, [110].

[134] (2018) 266 CLR 325 at 370 [106], footnotes in original.

[135] The footnote in the report cross-referred to footnote 44 in the report, but that was likely an error, the intention being to cross-refer to footnote 46, which was to the following effect: See Jago v District Court (NSW) (1989) 168 CLR 23 at 31, 34 per Mason CJ; at 60 per Deane J; at 76 per Gaudron J. See also R v Glennon (1992) 173 CLR 592 at 605 per Mason CJ and Toohey J; Dupas v The Queen (2010) 241 CLR 237 at 250 [33]-[35].

[136]Jago v District Court (NSW) (1989) 168 CLR 23 at 34 per Mason CJ; at 75 per Gaudron J; R v Glennon (1992) 173 CLR 592 at 605 per Mason CJ and Toohey J; Truong v The Queen (2004) 223 CLR 122 at 172 [136] per Kirby J; Dupas v The Queen (2010) 241 CLR 237 at 251 [37]; Moti v The Queen (2011) 245 CLR 456 at 478 [57] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. See also Levinge v Director of Custodial Services, Department of Corrective Services (1987) 9 NSWLR 546 at 556-557 per Kirby P; at 564-565 per McHugh JA.

[137]Leach No. 3 at [343].

[138]Strickland v (a pseudonym) v Director of Public Prosecutions (Cth) (2018) 266 CLR 325 per Kiefel CJ, Bell and Nettle JJ at 365 (footnote omitted). See also A v Maughan (2016) 50 WAR 263 [2016] WASCA 128 at 278-282 [54] to [65] per Martin CJ.

[139] The statements eventually obtained from Mr De Graff and Mr Lincoln-Smith were obtained after Mr Leach was charged, so it is possible that the disclosure that Mr Leach had suggested a loan was made (which was first made well before Mr Leach was charged) was repeated post-charge.

[140] see Canadian Pacific Tobacco Company Ltd v Stapleton (1952) 86 CLR 1 per Dixon CJ at 6; Commissioner of Taxation v Nestle Australia Ltd (1986) 12 FCR 257 at 262; Yates v R (1991) 102 ALR 673 at 677–678 per Priestley JA with whom Wood and Finlay JJ agreed.

[141]X7 v Australian Crime Commission (2013) 248 CLR 92 per French CJ and Crennan J at 124 [58]; R v Seller (2013) 232 A Crim R 249 per Bathurst CJ at 278 [102] and NS v Scott [2018] 2 Qd R 397 per Holmes CJ (with whom Philippides JA and Flanagan J agreed) at 412 [39].

[142] Ibid.

[143]R v Seller (2013) 232 A Crim R 249 per Bathurst CJ at 278 [102].

[144]R v Seller (2013) 232 A Crim R 249 per Bathurst CJ at 279 [104].

Close

Editorial Notes

  • Published Case Name:

    R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions

  • Shortened Case Name:

    R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecutions

  • MNC:

    [2022] QCA 7

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Morrison JA, Bond JA

  • Date:

    09 Feb 2022

  • Selected for Reporting:

    Editor's Note

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2019] QDCPR 6013 Nov 2019CDPP directed to provide complete copy of all material in its possession to accused: Smith DCJA.
Primary Judgment[2020] QDCPR 420 Feb 2020Defence application for further disclosure: Smith DCJA.
Primary Judgment[2020] QDC 4224 Mar 2020Pre-trial application by accused; CDPP proposed to conduct retrial (see [2018] QCA 131) without regard to material obtained at compulsory examination of accused; indictment quashed but permanent stay refused (consequently unnecessary to determine constitutional issues remitted in [2019] HCATrans 138); ruling that disclosure of information obtained at compulsory examination in application for search warrant unauthorised and evidence obtained pursuant thereto obtained unlawfully: Smith DCJA.
Appeal Determined (QCA)[2022] QCA 709 Feb 2022Accused’s application in respect of [2020] QDC 42, challenging refusal to grant permanent stay and conclusion that unnecessary to determine constitutional issues, dismissed; CDPP’s Code s 668A reference in respect of [2020] QDC 42, querying whether Smith DCJA correct in ruling that evidence obtained pursuant to search warrant obtained unlawfully, answered negatively: Bond JA (Fraser and Morrison JJA agreeing).
Appeal Determined (QCA)[2022] QCA 2301 Mar 2022Orders relating to redaction of material in [2022] QCA 7 disclosing content of compulsory examination: Fraser, Morrison and Bond JJA.
Application for Special Leave (HCA)File Number: B10/202209 Mar 2022Application for special leave to appeal from [2022] QCA 7 filed.

Appeal Status

Appeal Determined (QCA) Special Leave Sought (HCA)

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