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[2022] QCA 7
In his Honour’s reasons, Bond JA (with whom the rest of the Court agreed) considers whether a fair trial for a criminal offence can follow a compulsory examination, information from which has informed the development of the case against the accused. Ultimately, the answer will turn upon the facts of each case, and whether the conduct of the trial would conflict with the twin principles of common law that the onus of proof rests on the prosecution, and its companion principle that the prosecution cannot compel an accused to assist it. In this case, it mattered that the prosecution had taken steps to quarantine the relevant information, and that the “derivative” material would have been obtained in any event.
Fraser, Morrison and Bond JJA
9 February 2022
Background
In March 2010, Mr Leach was the subject of a compulsory examination by the Australian Taxation Office (“ATO”) pursuant to s 353-10 Sch 1 Taxation Administration Act 1953 (Cth) (“TAA”). At the outset, Mr Leach was informed it was an offence to refuse to give the requested information or answer questions. Privilege against self-incrimination was not a defence. [4], [22].
On 6 July 2011, an ATO investigator (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. [43].
Then, in September 2011, officers of the ATO prepared a brief of evidence concerning Mr Leach for the Commonwealth Director of Public Prosecutions (“CDPP”), which included the transcript of the compulsory examination. That transcript was used by the CDPP in deciding whether to lay charges, how to formulate them, how to prepare the prosecution case and as evidence at trial. [5], [43].
An Indictment was presented against Mr Leach on 10 October 2013. Mr Leach sought a permanent stay of the indictment, on the ground that the disclosure to the CDPP of the transcript was unlawful, and its contemplated use at his trial was an abuse of process. That application failed. [6]. During the subsequent trial, the prosecution used the material obtained under compulsion, and Mr Leach was convicted on all counts. [6], [41].
On appeal, the Court of Appeal held that the use of the transcript constituted a miscarriage of justice. The Court quashed his convictions and ordered a retrial. [7], [54]: R v Leach [2019] 1 Qd R 459 (“Leach No. 2”). 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 lawyers who would not know about it. [10].
Mr Leach filed a pre-trial application in the District Court seeking:
1) First, a permanent stay; and
2) Second, an application for declaratory relief that his continued prosecution was incompatible with s 80 Constitution. [60].
In the result, the primary judge quashed the indictment (on the basis that the unlawful disclosure and use of the interview transcript breached his right to a fair trial), but refused to order a permanent stay or declaratory relief on constitutional grounds. [10], [62].
The arguments before the Court of Appeal
By his application to the Court of Appeal, Mr Leach sought leave to appeal from the primary judge’s dismissal of that constitutional matter and to challenge the primary judge’s discretionary decision to not grant a permanent stay. [10]. Mr Leach advanced three grounds of appeal. [69]–[73]. For the purposes of this note, only ground 2 is discussed, that:
Ground 2: The primary judge erred in refusing to grant a permanent stay on the basis that Mr Leach is unable to receive a fair trial. [71].
The crux of Mr Leach’s argument, that he could not receive a fair trial, was that:
“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.” [80].
In parallel, the CDPP referred two questions to the Court of Appeal for its consideration and opinion under s 688A Criminal Code 1899. [11]. Again, only one of those questions is relevant for this note (“the s 688A question”). That is,
“Was the primary judge correct in ruling that it was unlawful for the [ATO] to disclose information derived from a compulsory examination 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?”
Bond JA (with whom Fraser and Morrison JJA agreed) dismissed the application and answered “No” to the question referred to the Court. [12].
Consideration of appeal ground 2 (and the s 668A question)
Bond JA began his consideration of ground 2 by setting out the principles which govern the grant of permanent stays ([82]–[83]) and making the following observations.
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 that there could never thereafter be a fair trial (see Lee v The Queen (2014) 253 CLR 455). [85].
Secondly, in this case, Mr Leach’s compulsory examination did not take place after his being charged, nor was it unlawful. There was no suggestion that it took place other than in accordance with the TAA. [86].
Thirdly, had the evidence been unlawfully obtained, a question would arise as to whether it ought be excluded for that reason. That question would be relevant to an application for a permanent stay. [87]. As to this, Bond JA observed:
a. The disclosure by Ms O’Bryan for the purpose of obtaining a search warrant was aimed at progressing the investigation she was tasked to perform, which was done “in the course of performing her duties”. That expression ought be given wide interpretation. The companion principle (that the prosecution cannot compel an accused to assist it) had not yet been engaged because Mr Leach had not yet been charged. Therefore, the exception stated in s 355-50(1) TAA permitted disclosure of the relevant parts of the compulsory examination to the Magistrate. [87(e)].
b. It follows that the search warrant was not unlawfully obtained. The primary judge erred in reaching that conclusion. [87(f)-(g)]. Therefore, the answer to the s 668A question is “No”. [94]–[97].
Fourthly, the critical question on the stay application is whether the use in a subsequent prosecution of derivative evidence 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”. [88]. As to this, Bond JA reasoned:
a. Whether a conflict arises (with those principles) will depend upon the nature of the evidence and the circumstances of the case. [88(a)].
b. On the facts of this case, the evidence obtained from witnesses who were contacted as a result of compulsory examination would not conflict with the relevant principles:
(1) because their evidence would have been sought and would eventually have been available from independent sources in any event. [88(c)(ii)-(iii)] – [88(d)(iii)-(v)].
(2) While answers given on compulsory examination may have informed the content of some of the questions asked of those witnesses, that use of the information would not compromise a fair trial, “particularly in circumstances in which the information compulsorily acquired will not be provided to the new prosecution team”. [88(c)(iv)].
From that analysis, Bond JA concluded that, the primary judge did not err in the manner alleged by appeal ground 2.
Disposition
Ground 2 failed. [93]. The application was dismissed. [104].
The s 668A question was answered:
“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.” [97], [104].
Z Brereton of Counsel