This central issue in this appeal was whether evidence obtained pursuant to a compulsory examination under s 353-10 Taxation Administration Act 1953 (Cth) and disclosed to the prosecution under s 355-50 for the purposes of criminal proceedings could be used at trial. A majority of the Court of Appeal (Sofronoff P and Philippides JA; Applegarth J dissenting) held that the legislation did not authorise the use of such material in this way. The majority held that the use of this material by the prosecution constituted a miscarriage of justice and, as a result, the verdicts of guilty should be quashed.
Sofronoff P, Philippides JA, and Applegarth J
7 February 2018
In February 2010, the Australian Taxation Office (the “ATO”) served a notice on the appellant under s 353-10, Sch 1 Taxation Administration Act 1953 (Cth). . The notice required him to give evidence and produce documents under pain of penalty and imprisonment. . The appellant answered questions put to him and the interview was recorded and transcribed. .
In November 2010, an investigator with the ATO received a copy of the transcript of interview. . Relevantly, s 355-25 made it an offence for a taxation officer to disclose, among other things, information obtained by means of a compulsory interview. . However, s 355-50 provided for an exception where the disclosure was made in the performance of the taxation officer’s duties as a taxation officer, which included disclosure to any entity, court, or tribunal for the purposes of criminal proceedings that are related to a taxation law. .
In September 2011, the taxation officer provided a copy of the transcript of the compulsory interview to the Director of Public Prosecutions (the “DPP”). . The DPP subsequently charged the appellant with 19 counts of obtaining a financial advantage by deception, three counts of attempting to obtain such an advantage, 21 counts of knowingly using a false document with the intention of dishonestly obtaining a gain, and a further count of fraud. .
The appellant filed a pre-trial application seeking a permanent stay of the indictment and a ruling that the content of the interview was inadmissible at trial. . This application was dismissed. . At trial, a recording and transcript of the interview were produced, and the interview was played for the jury. . The appellant was subsequently convicted. .
The central issue on appeal was whether the Commonwealth was entitled, in prosecuting an indictable offence before a jury, to rely upon the content of the interview. . Sofronoff P, with whom Philippides JA agreed, held that the use of the material by the prosecution constituted a miscarriage of justice and, as a result, the verdicts of guilty should be quashed. .
The President considered whether the Taxation Administration Act implicitly authorised the disclosure and use by the prosecution of the content of s 353-10 examination: (i) for the purpose of a consideration of charges against the examinee; (ii) for the purpose of the formulation of such charges; (iii) for use in the preparation of the prosecution case in relation to such charges; and (iv) as evidence at a criminal trial to prove the guilt of the examinee. . After a thorough examination of the authorities dealing with the use of evidence obtained in response to compulsory processes (such as X7 v Australian Crime Commission (2013) 248 CLR 92, R v Seller & McCarthy  NSWCCA 42, and Lee v New South Wales Crime Commission (2013) 251 CLR 196), his Honour stated:
“These authorities leave open the question, and I doubt, whether an Australian legislature could validly pass a law to alter the criminal process so as to compel a person to give self-incriminatory evidence for the executive to use in order to formulate a criminal charge against that person and then as evidence to secure that person’s conviction.” .
However, in his Honour’s view, what these authorities did make clear was that “legislative authority for such a course of action requires the plainest manifestation in an Act”. . His Honour said he could “discern nothing in the legislation which could implicitly authorise the use of such material in this way”. .
The President also noted that s 355-50, which permitted disclosure, applied to more than just information obtained under s 353-10 and as such had “much work to do even if the information in this case could not be disclosed”. . His Honour stated that:
“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.” .
In the result, his Honour concluded that:
“[t]he express objects of Division 355 and the general language of s 355-50 [did] not give rise to a necessary implication that the fundamental principle identified in X7 [that the onus of proof rests on the prosecution and that the prosecution cannot compel an accused to assist it] ha[d] been abrogated.” .
Applegarth J (in dissent on this issue) was of the view that the legislation did implicitly authorise the use at trial of the evidence disclosed to the prosecution for the purpose of a criminal proceeding. . His Honour would have dismissed the appeal on this ground.
The appeal was allowed, the conviction quashed, and a retrial ordered. .