R v Van Eps; Ex parte Commonwealth Director of Public Prosecutions

In this significant case, the Court of Appeal unanimously overturned its previous decision in R v Leach [2018] QCA 131; (2019) 1 Qd R 459 (“Leach”). The Court held that neither the accusatorial principle, nor the companion rule, prohibit dissemination of information to the prosecution which was obtained during a compulsory examination under the Taxation Administration Act 1953 (Cth) before an accused is charged with an offence. This is provided that the examiner was authorised to examine the accused, the examination was conducted lawfully and for a proper purpose, and the dissemination was otherwise lawful, that is to say, apart from the issue raised by the majority in Leach. The Court also held that the prosecution is permitted to use this information to consider whether to commence a prosecution, formulate charges and prepare the prosecution case for committal and trial.

Bowskill CJ, Morrison JA and Fraser AJA

3 April 2024

Background

Prior to being charged with any offence, the accused was examined, under compulsion, by a taxation officer under s 353-10, sch 1, Taxation Administration Act 1953 (Cth) (“TAA”) (the “compulsory examination”). [1]. A transcript of the compulsory examination was disseminated to the Commonwealth Director of Public Prosecutions (“CDPP”) and another Commonwealth entity. [1]. The accused made an application for a permanent stay, at least partly, on the basis that the dissemination of the transcript of the compulsory examination to the CDPP was unlawful. [2]. There is conflicting intermediate appellate authority on that question: see R v Leach [2018] QCA 131; [2019] 1 Qd R 459 (“Leach”) and R v Kinghorn [2021] NSWCCA 313; (2021) 106 NSWLR 322 (“Kinghorn”). [2]. The CDPP requested a pre-trial ruling on whether Leach or Kinghorn applied before the primary judge determined the application for a permanent stay. [2]. The primary judge ruled that his Honour was bound to follow Leach. [2].

The CDPP referred to the following points of law under s 688A Criminal Code:

“1.Where, before being charged with an offence, an accused was compulsorily examined by a taxation officer under s 353-10 of schedule 1 of the Taxation Administration Act 1953 (Cth), can a taxation officer who is so authorised, lawfully disclose information obtained during the compulsory examination to:

(a)the [CDPP] … ;

(b)the Department of Industry, Science and Resources (AusIndustry);

2.If such disclosure is lawful can the [CDPP] use the information to:

(a)consider whether to commence a prosecution;

(b)formulate charges;

(c)prepare the prosecution case for committal and trial.”

Whether the points of law referred to the Court of Appeal for consideration and opinion under s 688A Criminal Code should be answered in the affirmative

The majority in Leach (Sofronoff P and Philippides JA; Applegarth J diss.) held that disclosure of information to the CDPP which was obtained during a compulsory examination (“compelled information”), its use to prepare for the prosecution, and its admission into evidence, offended the accusatorial principle, and the companion to that principle, that an accused cannot be compelled to assist the prosecution to prove its own case. [34]. The majority reasoned that the TAA neither expressly, nor by necessary intendment, authorised disclosure of compelled information to the CDPP. [35]. The Court (per curiam) considered that this reasoning was problematic for two reasons. [36]. First, the TAA, sch 1, s 355-70 expressly authorised disclosure of compelled information to the CDPP. [38]. Second, it was inconsistent with the reasoning of the plurality of the High Court of Australia in R v Independent Broad-Based Anti-Corruption Commission [2016] HCA 8; (2016) 256 CLR 459 (“IBAC”).

In IBAC the plurality held that the companion rule was not engaged in circumstances where a person examined under compulsion had not been charged and there was no prosecution pending: see [42]–[48]. The majority in Leach did not refer to IBAC. [41]. This was significant because no prosecution was pending at the time of the compulsory examination in Leach, which exposed a “significant flaw” in the majority’s reasoning process. [45]. Similar points of law were considered in Kinghorn including in relation to, relevantly, the same legislative provisions. [49]. The New South Wales Court of Criminal Appeal in Kinghorn, considering itself unconstrained by the principles in Farah Constructions v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 and Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485, distinguished Leach and concluded that disclosure of compelled information to, relevantly, the CDPP was authorised:

• first, on the basis that neither the accusatorial principle nor the companion rule limited the power under the TAA, sch 1, s 355-70, in circumstances where the disclosure took place pre-charge, that is to say, before any charges were laid; and
• second, provisions including TAA, sch 1, s 355-70 “exhibited the necessary intention” to authorise disclosure and use of compelled information notwithstanding the accusatorial principle and the companion rule. [54].

The Court (per curiam) observed that there is a public interest in uniformity of decisions as to the interpretation of Commonwealth legislation, such as the TAA. [64]. An intermediate appellate court cannot depart from a decision of another intermediate appellate court on the interpretation of Commonwealth legislation unless convinced that the interpretation is plainly wrong. [65]. Similar principles apply when an intermediate appellate court is asked to depart from one of its previous decisions. [66]. The Court could only depart from its earlier decision in Leach unless compelled that it was wrong. [66]. The Court (per curiam) was so compelled. [67]. To conclude that provisions including TAA, sch 1, s 355-70 did not authorise disclosure and use of compelled information for considering whether to commence a prosecution, formulate a charge and/or preparing the prosecution case for committal or trial:

“… is to ignore the plain words of the statute, frustrates the object of the legislation and renders the means by which the legislation sets out to achieve that object inoperative”. [74].

The Court (per curiam) held that the decision of the majority in Leach was wrong, and should be overruled and no longer be followed. [76]. Adopting the reasoning of the High Court of Australia in IBAC and the New South Wales Court of Criminal Appeal in Kinghorn, which was consistent with the dissenting view of Applegarth J in Leach, the points of law referred for consideration and opinion under s 688A Criminal Code were answered in the affirmative. [77]. However, the affirmative answer to the points of law was subject to the following assumptions identified in the course of submissions: the taxation officer conducting the compulsory examination was authorised to examine the accused; the examination was conducted lawfully and for a proper purpose; and the dissemination of the compelled information was otherwise lawful, that is to say, apart from the issue raised by the majority decision in Leach (the “identified assumptions”). [4], [77].

Disposition

Provided the identified assumptions were correct the answers to the points of law were “yes”. [77].

D Kerr