Commonwealth Director of Public Prosecutions v Leach (No 3) [2020] QDC 42

DISTRICT COURT OF QUEENSLAND CITATION: CDPP v Leach (No 3) [2020] QDC 42 PARTIES: COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS v LEACH, Philip Denis (Defendant) FILE NO: 1479/2013 DIVISION: Criminal PROCEEDING: Application pursuant to s 590AA of the Criminal Code 1899 (Qld) ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 24 March 2020 DELIVERED AT: Brisbane HEARING DATE: 16, 17, 18, 19 December 2019, 31 January 2020, 17, 28 February 2020. Further written submissions by the defendant dated 13 March 2020. Further written submissions by the CDPP dated 20 March 2020. JUDGE: Smith DCJA ORDER: I quash indictment 1479/2013. CATCHWORDS: CONSTITUTIONAL LAW – SECTION 80 – right to fair trial – whether the unlawful use of a compulsory interview under the Taxation Administration Act 1953 (Cth) fundamentally altered the nature of this trial – whether stay should be granted – whether alternative remedy more appropriate to be considered CRIMINAL LAW – PRACTICE AND PROCEDURE – ADJOURNMENT, STAYS OR ORDERS RESTRAINING PROSECUTION – ABUSE OF PROCESS – whether indictment should be quashed and/or stayed because of unlawful dissemination of compulsory interview CRIMINAL LAW – EVIDENCE – whether compulsory interview unlawfully obtained by Taxation Office investigator – whether the interview could be used to obtain derivative evidence – whether discretion should be exercised to exclude the evidence -- 1 of 47 -- 2 Acts Interpretation Act 1901 (Cth) ss 13, 15AA, 15AB Commonwealth Constitution Chapter III, s 80 Criminal Code 1995 (Cth) ss 134.2, 145.1 Criminal Code 1899 (Qld) ss 408C, 590AA, 596 Evidence Act 1977 (Qld) s 130 Taxation Administration Act 1953 (Cth) sch 1 ss 353, 355 Explanatory Memorandum to the Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2010 Alqudsi v R (2016) 258 CLR 203; [2016] HCA 24, cited Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22, applied Campbells Cash and Carry Pty Limited v Fostif Pty Limited (2006) 229 CLR 386; [2006] HCA 41, applied CDPP v Leach (No 2) [2020] QDCPR 4, cited Commissioner of Taxation v Warner (2015) 244 FCR 479; [2015] FCA 659, cited Dietrich v R (1992) 177 CLR 292; [1992] HCA 57, cited Hamilton v Oades (1989) 166 CLR 486; [1989] HCA 21, cited Hammond v R (1982) 152 CLR 188; [1982] HCA 42, cited Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46, cited Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29, applied Lee v NSW Crime Commission (2013) 251 CLR 196; [2013] HCA 39, applied Lee v R (2014) 253 CLR 455; [2014] HCA 20, applied Mortimer v Brown (1970) 122 CLR 493; [1970] HCA 4, cited Moti v R (2011) 245 CLR 456; [2011] HCA 50, cited Nicholas v R (1998) 193 CLR 173; [1998] HCA 9, cited NS v Scott [2018] 2 Qd R 397; (2017) 269 A Crim R 284; [2017] QCA 237, cited NSW Food Authority v Nutricia Australia Pty Limited (2008) 72 NSWLR 456; [2008] NSWCCA 252, cited PRS v Crime and Corruption Commission [2019] QCA 255, cited R v A2 and Ors (2019) 93 ALJR 1106; [2019] HCA 35, discussed R v Harper (2015) 257 A Crim R 317; [2015] QCA 273, cited R v Kinghorn (No.4) [2019] NSWSC 1420, cited R v Leach [2019] 1 Qd R 459; (2019) 334 FLR 224; [2018] QCA 131, applied R v Seller (2013) 273 FLR 155; (2013) 232 A Crim R 249; (2013) 92 ATR 773; [2013] NSWCCA 42, cited R v Seller and McCarthy (2015) 249 A Crim R 549; (2015) 89 NSWLR 155; [2015] NSWCCA 76, cited Sorby v Commonwealth (1983) 152 CLR 281; (1983) 57 ALJR 248; [1983] HCA 10, cited -- 2 of 47 -- 3 Strickland v Commonwealth Director of Public Prosecutions (2018) 93 ALJR 1; (2018) 361 ALR 23; (2018) 272 A Crim R 69; [2018] HCA 53, applied X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29, applied COUNSEL: Mr P Dunning QC, with Mr B Blond and Ms S Palaniappan, for the defendant Mr D Staehli SC, and with Ms A Freeman, for the CDPP SOLICITORS: Pharmacis Canning Lawyers for the defendant Director of Public Prosecutions (Commonwealth) for the Crown Introduction [1] This is an application by the defendant for the indictment against him to be quashed1 and/or stayed pursuant to s 590AA of the Criminal Code 1899 (Qld). Charges [2] The defendant is charged with the following counts: (a) 19 counts of obtaining a financial advantage by deception contrary to s 134.2(1) of the Criminal Code (Cth); (b) 21 counts of using false documents contrary to s 145.1(1) of the Criminal Code (Cth); (c) Three counts of attempting to obtain a financial advantage by deception contrary to s 134.2(1) of the Criminal Code (Cth); and (d) One count of fraud contrary to s 408C of the Criminal Code 1899 (Qld). Background [3] The matter came on for trial in the District Court at Brisbane on 24 April 2017. The defendant was convicted of all charges on 15 May 2017. He received an effective head sentence of eight years imprisonment, with a non-parole period of four years. [4] The prosecution case included the use of a compulsory examination conducted under s 355 of the Taxation Administration Act 1953 (Cth) (“TAA”). The defendant successfully appealed his conviction to the Queensland Court of Appeal.2 The essential basis of the majority decision was that the s 355 examination should not have been used at the trial. [5] On 23 April 2019, the defendant filed a writ in the High Court of Australia seeking declarations that he cannot receive a fair trial and the trial breaches Chapter 3 of the Commonwealth Constitution. [6] The matter was remitted by Gageler J to the District Court of Queensland for determination. 1 Criminal Code 1899 (Qld) s 596. The basis of any quashing order is that the indictment is calculated to prejudice or embarrass the defendant’s defence. 2 R v Leach [2019] 1 Qd R 459; (2019) 334 FLR 224; [2018] QCA 131. -- 3 of 47 -- 4 Facts alleged [7] The facts alleged by the crown are contained in its submissions dated 17 April 2019.3 [8] At the time of the alleged offences, the defendant was a solicitor in private practice. It is alleged that over the relevant charge period, he lodged numerous business activity statements (“BAS”) with the Australian Taxation Office (“ATO”) claiming GST refunds on behalf of two trusts and dishonestly asserted that those trusts had incurred expenses that he knew in fact had not been incurred. [9] The total amount of GST refunds claimed was $1,572,181. $1,311,761 was actually received by the defendant into his firm’s trust account initially and then transferred into other accounts held or controlled by him. It is also alleged that he attempted to obtain a further $260,420. [10] The ATO conducted an audit of the BAS statements. As part of that process over a period of time prior to the compulsory interview, the defendant supplied invoices and other documents to the ATO in support of the GST refunds claim. It is the prosecution case that these invoices were false, and the defendant knew them to be false. [11] The evidence called at the first trial and proposed to be relied on at the re-trial is that the invoices were neither generated by the businesses nor did they represent legitimate payments received by the business from the trust in question, such that the trusts were entitled to claim GST refunds for them. [12] During the course of the audit, the ATO issued notices under s 353-10 of Sch 1 of the TAA to the defendant on 12 February 2010 requiring him to attend and give evidence under oath or affirmation and produce documents on 18 March 2010. The ATO also sought reimbursement of the GST refunds paid to the defendant. [13] On 16 March 2010, the ATO received two cheques from the defendant’s firm’s trust account totalling $1,083,271. Further investigations revealed this money was being held in the trust account on behalf of the estate of Audrey de Graff. The prosecution’s case is that this money was fraudulently used by the defendant. [14] The audit process concluded in about August 2010 and the matter was referred to the serious non-compliance section of the ATO for investigation, which commenced in November 2010. Ms Toni O’Bryan was the lead investigator. [15] In September 2011, a brief of evidence was forwarded to the Commonwealth Director of Public Prosecutions (“CDPP”), which included a transcript of the compulsory interview conducted on 18 March 2010. [16] The defendant was charged on 23 March 2012, and the indictment was presented on 10 October 2013. [17] The evidence relied on by the prosecution can broadly be categorised as follows: (a) The BAS statements lodged by the defendant with the ATO, being the subject of the charges; (b) Invoices and other documents supplied by the defendant following requests from the ATO auditors to substantiate the GST claims prior to the compulsory interview; 3 Exhibit 7 – CDPP submissions dated 17 April 2019. -- 4 of 47 -- 5 (c) Evidence from the purported suppliers and developers as to the authenticity of the invoices and documents supplied by the defendant; (d) Evidence from a Mr Fu regarding his involvement in the trusts and the signing of the various documents; (e) Evidence from Mr de Graff and Mr Lincoln Smith regarding the unauthorised use of trust funds held on behalf of the estate of Mrs de Graff; (f) Documents seized under warrant from the defendant’s home and business premises including trust account documents; and (g) Documents obtained from various banks showing the movements of funds, and other public records such as ASIC records and RP data records. [18] The prosecution does not intend to rely upon the evidence of the compulsory interview in the re-trial. Defendant’s submissions [19] The defendant has provided two sets of written submissions. The first are dated April 2019.4 [20] The second are dated 9 December 2019.5 [21] In his first submissions, the defendant sought orders that the prosecution be stayed or alternatively proceed without the prosecution having the forensic advantage of the compulsory interview.6 [22] It is submitted that, by way of the compulsory interview, the defendant’s right to silence was removed, and the compulsory interview has been widely disseminated.7 It is submitted that the defendant was forced to reveal his defence.8 It is submitted that the CDPP’s position is untenable in light of the decision of Strickland.9 [23] It is submitted that the elements/evidence table was prepared by the CDPP with reference to the interview.10 It is submitted the CDPP has not taken steps to ensure the exclusion of tainted witnesses.11 It is submitted the CDPP has not produced new witness statements remedying the situation.12 [24] The defence submits that irremediable forensic advantage has been obtained by the prosecution, namely: (a) Ms McDonald and Mr Heath, both present during the interview, are still to give evidence; (b) Ms O’Bryan used the interview directly and indirectly to take statements from witnesses, including Mr de Graff and Mr Lincoln- Smith; and 4 Exhibit 4. 5 Exhibit 2 – Defendant’s written submissions dated 9 December 2019. 6 Exhibit 4 para 11. 7 Exhibit 4 para 22. 8 Exhibit 4 para 22e. 9 Strickland v Commonwealth Director of Public Prosecutions (2018) 93 ALJR 1; (2018) 361 ALR 23; (2018) 272 A Crim R 69; [2018] HCA 53. 10 Exhibit 4 para 41. 11 Exhibit 4 para 46. 12 Exhibit 4 para 56. -- 5 of 47 -- 6 (c) There is now an inability to “unscramble” the mixed sources of evidence.13 [25] The defence submits that the particulars of the charges have not changed.14 [26] It is submitted that the effect of the appeal decision in Leach is that the interview cannot be used directly or indirectly by the prosecution, the witnesses who have direct knowledge of the interview should be removed as witnesses, and any reference to the interview should not be permitted. [27] It is also submitted that the prosecution is constitutionally flawed.15 [28] In the second outline of submissions, the defendant submits that the ATO and CDPP have unlawfully used the s 355 examination against the defendant. It is submitted that it is not now possible for him to receive a fair trial, as the conduct of any trial would be repugnant to Chapter 3 of the Constitution.16 Alternatively, it is submitted that the unlawful use of the interview against him has compromised the defendant’s ability to defend himself, such that it is an abuse of process for the prosecution to continue.17 As to the constitutional point, the defendant argues that he has a constitutional right to a fair trial. He submits this is not possible now because of the unlawful dissemination and use made of his compulsory examination was so egregiously in breach of his constitutional right to a fair trial that there is no other remedy available, aside from quashing or staying the indictment.18 He submits the entire prosecution is founded on charges emanating from the examination. The defendant submits that the Court of Appeal decision in Leach is such that the CDPP is bound by it.19 [29] Alternatively, it is submitted that a stay should be ordered as there is nothing that can be done to achieve a fair trial. It is submitted the present charges are all unlawfully based on the inadmissible interview.20 [30] In thorough oral submissions, the defendant submitted: (a) For a permanent stay of the charges;21 (b) That crucial witnesses Mr de Graff, Mr Lincoln-Smith and Mr Fu were contaminated because of disclosures about the compulsory interview;22 (c) That the CDPP had not provided affidavit material on how the statements were taken;23 (d) That the use of the compulsory interview had deprived him of the proper opportunity of defending the charges;24 (e) That the evidential onus was on the crown;25 13 Exhibit 4 para 65. 14 Exhibit 4 para 67. 15 Exhibit 4 paras 88-114. 16 Exhibit 2 para 3. 17 Exhibit 2 para 5. 18 Exhibit 2 para 15. 19 Exhibit 2 Part 6. 20 Exhibit 2 Part 10. 21 Transcript day 1 page 14. 22 Transcript day 1 page 18.22 – 26. 23 Transcript day 1 page 18.26 – 34. 24 Transcript day 1 page 20.20 – 22. 25 Transcript day 1 page 23.25 – 33. -- 6 of 47 -- 7 (f) That the remedial action to simply remove passages of statements was insufficient;26 (g) If a stay was not granted, the evidence of the relevant witnesses should be excluded – at a minimum Mr de Graff, Mr Lincoln-Smith and Mr Fu;27 (h) The Court of Appeal decision is binding on the CDPP and this court;28 (i) That there were a number of relevant authorities relied upon, which counsel took the court through; (j) This matter is very similar to Strickland, where a stay was granted; (k) Once a case is compromised, it is very difficult to unscramble;29 (l) The interview permeates everything in the present case;30 (m) No directions can be given to solve the issues here;31 (n) Ms McDonald relied on the interview to refer the matter to Ms O’Bryan;32 (o) As a result of the interview, the ATO knew a lot about the nature of the trusts and why money was moved in and out of the trusts. In essence, the defendant “fired his shots off”. The defendant had committed to a version the ATO did not know about. He compromised his defence;33 (p) The ATO did not know about Mr de Graff until the interview;34 (q) The case was thereafter infected;35 (r) The accused was forced to give answers in the interview; (s) The evidence of Ms O’Bryan should at the least be excluded; (t) It is crucial that the interview was relied upon to obtain the search warrant;36 (u) Exhibit 9 shows that Mr Fu was told about what Leach had alleged;37 (v) The charges and the particulars came in part from the interview;38 (w) The evidence matrix, exhibit 11A, came in part from the interview;39 (x) The complaint and summons and subsequent charges relied in part on the interview;40 (y) Exhibit 11B still has reference to the trust ledgers which were obtained via the search warrant;41 (z) Nothing in the Act permitted the interview to be used for a criminal investigation; (aa) Exhibit 11B is littered with references to Mr Fu; 26 Transcript day 1 page 26.45 – 46. 27 Transcript day 1 page 30.40. 28 Transcript day 1 page 32. 29 Transcript day 1 page 65.32. 30 Transcript day 1 pages 70-77. 31 Transcript day 1 page 80.25. 32 Transcript day 2 pages 14-15. 33 Transcript day 2 page 4. 34 Transcript day 2 page 30.40 – 45. 35 Transcript day 2 page 37.5 36 Transcript day 2 pages 40-43. 37 Transcript day 2 pages 48-54. 38 Transcript day 2 page 45.44 – 45. 39 Transcript day 2 pages 57-58. 40 Transcript day 3 page 64.15 – 19. 41 Transcript day 3 pages 20-21. -- 7 of 47 -- 8 (ab) Ms O’Bryan in her evidence at the first trial admitted to disclosing statements made in the interview to Mr de Graff and Mr Lincoln- Smith;42 (ac) The interview is still available in a number of other court files; and (ad) The interview is referred to in the referral from the ATO to the CDPP.43 [31] By way of reply to the CDPP oral submissions, it was submitted that: (a) Mr de Graff was never going to complain of the matter until pressed by the ATO to do so;44 (b) The fact is, by doing the interview, the defendant has lost the chance to put a considered case at trial. The defence relies on X7 at [124];45 (c) It is submitted that Exhibit 23 shows that the defence case was revealed to Mr Fu;46 (d) It is submitted the disclosure of the interview materially affected the issue of the search warrant. This specifically relates to the trust account records;47 (e) It is submitted that, as to paragraphs 18 – 21 of the CDPP’s second submissions, the issue is dealt with in X7 at [140], Lee (No 1) at [244]- [252] and in Leach at [85];48 (f) While the onus is on the defendant to justify why a stay should be granted, there is an evidential onus on the CDPP concerning the effect of the disclosure on the case;49 (g) It is submitted Strickland is not materially different to this case;50 and (h) It is submitted that the evidence of the witness Tang in Seller is less infected than the witnesses in the present case.51 [32] After a ruling was given as to the disclosure of certain documents,52 the defendant made the following further submissions.53 The defendant submits that Ms O’Bryan’s answer to Ms Murphy’s email dated 11 March 2014 regarding Zheng Fu is evasive and incomplete as to what emerged from the compulsory interview. [33] Further, it is submitted Ms O’Bryan ignored the question as to whether investigative steps took place as a result of the compulsory interview. [34] It is submitted it should be inferred that extensive investigative steps took place as a result of the compulsory interview and Ms O’Bryan has not put in evidence as to what the steps have been. The silence amounts to an admission by conduct. It is submitted there has been repeated and inadequate disclosure by the CDPP. Also submissions are made as to why it cannot be proved there was a false template invoice found on the defendant’s computer. 42 Transcript day 3 pages 22-23. 43 Transcript day 3 page 61. Exhibit 22. 44 Transcript day 4 pages 54-55. 45 Transcript day 4 page 56.25 – 26. 46 Transcript day 4 pages 60-62. 47 Transcript day 4 page 62. 48 Transcript day 4 page 65. 49 Transcript day 4 pages 66-69. 50 Transcript day 4 pages 71-74. 51 Transcript day 4 pages 75-79. 52 CDPP v Leach (No 2) [2020] QDCPR 4. 53 Exhibit 30. -- 8 of 47 -- 9 CDPP submissions [35] The CDPP relies on two written outlines of submissions, the first dated 17 April 201954 and the second dated 13 December 2019.55 [36] In its first submissions, the CDPP submitted that aside from making enquiries with Mr de Graff regarding the loan to the defendant, which was only known to the ATO as a result of statements obtained in the compulsory interview, the rest of the documents were primarily as a result of documents already in the possession of the ATO or obtained independently of statements made in the compulsory interview. It is submitted, with regards to the decision of R v Leach, that there was no finding that the interview had been conducted unlawfully or beyond the scope of the powers contained in the TAA. [37] It is also submitted56 that the judgment does not specifically address any issues arising from the use of derivative evidence and, if so, what use could be made of that evidence or the use of documents produced as a result of a notice under s 353-10 of the TAA. [38] It is further submitted that in the Court of Appeal, the defendant did raise the issue of a stay on the grounds of tainted evidence, but this was not considered by the court because it had not been raised as part of the actual grounds of appeal.57 It is also submitted that one of the defendant’s pleaded grounds of appeal was that the trial judge had wrongly decided they had erred in law by not granting a permanent stay of the prosecution. The appeal however was not allowed on that basis, which would tend to support the CDPP’s position.58 [39] It is submitted that the compulsory interview is not the only material the Commissioner has in his possession that could have been disclosed to the CDPP. It is submitted that documents such as BAS documents, tax returns etc. fall within the ambit of the relevant provisions. It is submitted that the disclosure of such documents fell within the exception to the prohibition in s 355-50 of the TAA. [40] It is also submitted that the principles in X7 v Australian Crime Commission59 do not apply to the provision of documents, as distinct from a compulsory interview. There is no improper forensic advantage conferred on the prosecution in that regard. [41] With regards to the suggestion that there has been a derivative use of the interview, the CDPP submits that a fair trial has not been compromised here. [42] In this regard, the CDPP relies on R v Seller,60 R v Harper,61 and NS v Scott.62 It is submitted that the documents to be relied on at trial could have been obtained independently by virtue of reasonable enquiries by the ATO investigators into the veracity of GST claims made by the defendant. 54 Exhibit 7 – CDPP’s written submissions dated 17 April 2019. 55 Exhibit 8 – CDPP’s written submissions dated 13 December 2019. 56 Exhibit 7 – CDPP submissions dated 17 April 2019 at para 49. 57 Exhibit 5 pp 735 – 736: QCA Transcript 7 February 2018, pp 1-31 to 1-32. 58 Exhibit 7 – CDPP submissions dated 17 April 2019 at para 50. 59 (2013) 248 CLR 92; [2013] HCA 29. 60 (2013) 273 FLR 155 at [102]; [2013] NSWCCA 42. 61 (2015) 257 A Crim R 317; [2015] QCA 273. 62 [2018] 2 Qd R 397; [2017] QCA 237. -- 9 of 47 -- 10 [43] From paragraphs 72-79 in its first submissions, the CDPP then examined the evidence which it submits was not derived from the compulsory interview. [44] It is further submitted that the defendant has failed to establish why the extraordinary step of granting a permanent stay should be made in this case, and further that there is nothing unconstitutional about division 355 of the TAA. [45] In the CDPP’s supplementary submissions dated 13 December 2019, the prosecution relies on the affidavits of Laura-Leigh Manville sworn 17 April 2019 and Gabriel Perry sworn 22 November 2019. In relation to the constitutional grounds, it is submitted that if the court does have powers over its own procedures, such as the power to grant a permanent stay, there is no need to resort to the Constitution.63 [46] It is submitted it is not appropriate to “constitutionalise” the case for an abuse of process, relying on Campbells Cash and Carry Pty Limited v Fostif Pty Limited.64 It is also submitted that High Court authority has authorised compulsory questioning of persons both before and after charges have been laid against them.65 [47] It is ultimately submitted that no constitutional question properly falls for decision, and the stay application can and should be determined on ordinary non-constitutional grounds.66 It is submitted that a stay should not be granted in this case. [48] It is further submitted that the evidence is that only two people now employed by the CDPP have any knowledge of the contents of the interview, and they are now quarantined from the current trial team.67 From paragraphs 37-52 of their submissions, the CDPP contends that the defendant can now have a fair trial without the compulsory interview. [49] The CDPP submits that since the decision in Leach, the CDPP: (a) Has appointed a new prosecution team; (b) Will not rely on the interview at trial; (c) Has quarantined all physical and electronic documents related to the interview; and (d) Has now prepared and particularised the case without recourse to the interview. [50] The CDPP made the following oral submissions: (a) The stay is opposed. There are other remedies available;68 (b) It was effectively conceded there was a problem with the formulation of the charges, and a quashing of the indictment was a course open to the court which would allow fresh “untainted” charges to be laid;69 (c) The crown did not accept it had the onus – it was for the defence to satisfy the court that a stay should be granted;70 63 Exhibit 8 – CDPP submissions dated 13 December 2019 at para 11. 64 (2006) 229 CLR 386; (2006) 229 ALR 58; [2006] HCA 41 at [205]. 65 Exhibit 8 – CDPP submissions dated 13 December 2019 at paras 17-20, relying on Mortimer v Brown (1970) 122 CLR 493; [1970] HCA 4; Sorby v Commonwealth (1983) 152 CLR 281; [1983] HCA 10; and Hamilton v Oades (1989) 166 CLR 486; [1989] HCA 21. 66 Exhibit 8 – CDPP submissions dated 13 December 2019 at para 22. 67 Exhibit 8 – CDPP submissions dated 13 December 2019 at para 34. 68 Transcript day 4 page 3. 69 Transcript day 4 pages 3 – 4. 70 Transcript day 4 page 13.9 – 14. -- 10 of 47 -- 11 (d) Even if there has been a disclosure of the interview, this does not necessarily lead to an exclusion of the evidence or a stay; (e) As to Mr de Graff, it was submitted that the defence was not fully disclosed in the interview, e.g. at the trial it was put to him that he authorised the payment through a Power of Attorney (“POA”). The POA was never mentioned in the interview.71 It was also submitted that evidence in relation to count 44 came from other sources;72 (f) In the exercise of the discretion, the evidence of Mr de Graff and Mr Lincoln-Smith would not be excluded in their entirety;73 (g) They could be directed not to mention the interview; (h) As to Mr Fu, Ms McDonald knew about him before the interview particularly bearing in mind the defendant sent her documents about the trust which referred to him.74 He would have been spoken to anyhow, and it is highly unlikely he would have admitted guilt. Again, his evidence could be edited to remove any prejudice;75 (i) It was conceded the CDPP will need to carefully consider whether to call Ms O’Bryan; (j) Ms McDonald can still be called absent reference to the interview; (k) It was submitted that Strickland is a far worse case than the present one.76 In that case, there was a deliberate subverting of the right to silence and the police and ACC acted unlawfully, unlike here; (l) The authorities do permit the use of derivative evidence – it is a question of discretion;77 and (m) It was stressed that if there were other remedies available, it was not necessary to decide any constitutional point.78 [51] In response to the defendant’s submissions (Exhibit 30) the crown submitted that79 the response by Ms O’Bryan in the email is consistent with notes in the Siebel system. These notes have previously been disclosed. It is submitted there is no basis to draw the inferences sought submitted upon by the defence. It can be concluded she read the transcript and conducted investigative steps which may have been influenced by this. Regardless, there is a body of evidence obtained prior to the compulsory interview which is admissible on the charges. [52] The CDPP also submits it has not been delinquent in its disclosure obligations. [53] Of course, above is a summary of the relevant submissions. I have had regard to all of the submissions made. [54] In order to consider these submissions, it is necessary to determine the facts of this matter and then apply the law to facts as found. 71 Transcript day 4 page 16.4 – 6. 72 Transcript day 4 page 17. 73 Transcript day 4 page 20.17. 74 Transcript day 4 page 23.13 – 18. 75 Transcript day 4 page 28.33 – 37. 76 Transcript day 4 pages 35-36 and 38-39. 77 Transcript day 4 page 39.24 – 29. 78 Transcript day 4 pages 50 – 51. 79 Exhibit 31. -- 11 of 47 -- 12 The Evidence Ms Manville [55] Laura-Leigh Manville has sworn an affidavit filed 18 April 2019.80 She is employed in the role of Principal Federal Prosecutor at the CDPP in Brisbane. [56] In January 2017, she was allocated the conduct of the Leach file and was case officer with carriage of it until about mid-July 2018. Prior to this date, Ms Dominique Murphy had managed the file. She has since left the employ of the CDPP. All persons who assisted Ms Murphy with the conduct of the file have also left the employ of the CDPP. [57] In April to May 2017, she instructed counsel at the trial of the defendant. Two junior lawyers assisted her, namely Gabriel Perry and Jessica Tower. Both lawyers have since left the employ of the CDPP. In about mid-July 2018, and shortly after the Court of Appeal had delivered the decision in R v Leach, an operational decision was made to assign the conduct of the prosecution to a new prosecution team, including briefing new trial counsel. In the process of a formal handover of the file to the new prosecution team, Ms Manville quarantined the relevant electronic files by moving them to a password protected folder, that is the materials related to or making reference to the contents of the compulsory interview. This included, and is not limited to, copies of the audio recording of the interview, a transcript of the interview, a copy of all draft and final outlines of argument prepared for the 2014 pre-trial hearing, working documents and outlines relied on in the appeal against conviction brought by the defendant, and transcripts of court proceedings wherein submissions and arguments were made regarding the contents of the interview. [58] Ms Manville also amended the internal working document entitled “elements/evidence table” to exclude reference to the audit interview.81 She reviewed the courts’ e-trial website and a document entitled “trial particulars” to satisfy herself that neither the interview nor transcript were uploaded to the e-trial website. Only herself and the assistant director of the revenue benefit/complex financial crime branch (Ms Devereaux) have access to the electronic files via password. Relevant files are in sealed boxed and are clearly marked with labels, “…warning that they are not to be opened without the authority of myself (Ms Manville) or Ms Devereaux”.82 They are stored in a litigation storage facility. This is electronically secured with access assigned to the assistant directors of the Brisbane office of the CDPP. [59] Ms Manville has not discussed the contents of the interview with the new case officers, nor has she discussed the matter at all with the new trial counsel. [60] In March 2019, Ms Manville was allocated conduct of the pre-trial application relating to the interview. She has briefed counsel and senior counsel to conduct these pre-trial applications. Neither counsel are briefed to appear on the trial for the defendant. Ms Manville will not have carriage of the file at the trial of the defendant. [61] Further redactions have been made by her concerning the Court of Appeal judgment in Leach, transcripts of the Crown opening address, defence closing address, the 80 Exhibit 5. 81 Exhibit 11B. 82 Exhibit 5, p. 2, para 7. -- 12 of 47 -- 13 summing up, the witness statement of Warwick de Graff dated 5 October 2012 and witness statements of Marcus Lincoln-Smith dated 11 January 2013 and 22 April 2013. [62] On 12 April 2019, Ms Manville caused the removal of the witness statements of Warwick de Graff and Marcus Lincoln-Smith from the e-trial website and had them substituted with redacted versions. The trial particulars are unaltered and are marked as “Exhibit AA” to her affidavit. Additionally, the statements of Belinda McDonald, Toni O’Bryan, the affidavit of Dominique Murphy, the statement of Zheng Fu, the statements of Mr de Graff and Mr Lincoln-Smith, a statement of Mr Fung, the statement of Mr Molyneaux and relevant trial transcripts are annexed to her affidavit. Oral evidence of Ms Manville [63] In oral evidence, Ms Manville said that she became the case officer in late January 2017.83 [64] She did not know what had happened with the file after Ms Murphy had left but before it was allocated to her.84 [65] Gabriel Perry has returned to the office.85 [66] In cross-examination, she said that the interview is quarantined from the prosecution team. She explained the process.86 [67] She agreed that the new team has the original brief of evidence and exhibits, less the interview.87 [68] They have access to the draft complaint, indictment, transmission sheet and witness details.88 [69] She agreed that two witnesses, Mr Lincoln-Smith and Mr de Graff, specifically referred to the interview in their statements, which have been now redacted.89 [70] Her mandate was to remove the interview and references to it. For example, exhibit 11B is the new evidence matrix, which has removed references to the interview.90 She identified this in her evidence.91 She accepted, though, that exhibit 11B referred to documents obtained from Gateway Lawyers which came about as a result of the July search warrant.92 [71] She said the interview is not on the e-trial website, yet this is not the case. She thought it had never been uploaded, but she conceded she was incorrect about this - it is on the website.93 83 Transcript day 2-75.17 – 18. 84 Transcript day 2-75.26 – 29. 85 Transcript day 2-75.41. 86 Transcript day 2-76.25 – 47. 87 Transcript day 2-78.41 – 46. 88 Transcript day 2-77.43 – 78.3. 89 Transcript day 2-78.7 – 20. 90 Transcript day 2-79. 91 Transcript day 2-84-85. 92 Transcript day 2-85.21 – 41. 93 Transcript day 2-98-99. -- 13 of 47 -- 14 [72] She did not herself make any arrangements for the CDPP to approach the Court of Appeal to see if the judgment could be anonymised. Someone else had.94 [73] As to disclosure, she was taken to exhibit 15. She said there had been a dispute as to the effect of Judge Dick’s order.95 She agreed the CDPP had never provided an affidavit as to disclosure.96 [74] Ms Manville said that password access to the eTrial website was restricted but she did not know who else had access to it.97 Immediately after the hearing on 17 December 2019, she emailed the eTrial Registrar and asked that the material be removed.98 [75] She has spoken to the new case officer at the CDPP, Lindsay Glen. Mr Glen has not accessed the interview.99 Belinda McDonald [76] Belinda McDonald provided a statement dated 13 April 2011.100 She provided an addendum statement dated 30 September 2011,101 and an affidavit sworn 14 March 2014.102 Ms McDonald is an auditor in the Indirect Tax – GST – Serious Evasion area of the ATO. [77] On 21 October 2009, she received a referral from the risk and strategy section of the ATO to conduct an audit of the two trust entities the subject of the charges. This was as a result of alleged false invoices being presented by the defendant to the ATO in support of GST refunds.103 [78] As part of Ms McDonald’s duties, she was authorised to access ATO computer systems and databases. She conducted searches of ATO files, including BAS documents that had been lodged by the trusts, invoices that had previously been submitted to support those claims, and refunds made by the ATO.104 She produced the relevant BAS statements. [79] Following this, as part of the audit process (but before the compulsory interview), the defendant produced to Ms McDonald a number of documents relating to the trusts such as trust deeds of appointment, sales contracts and deeds of settlement.105 [80] Ms McDonald also conducted a number of enquiries into the veracity of invoices that had previously been produced, and obtained bank account statements from the 94 Transcript day 2-90.35 – 38. 95 Transcript day 2-100.42. 96 Transcript day 2-105.2 – 3. 97 Transcript day 3-3.44 – 4.4. 98 Transcript day 3-5.31 – 2. 99 Transcript day 3-5.22. 100 Exhibit 5 pp 45-97, affidavit of Ms Manville, exhibit “AB”. 101 Exhibit 5 pp 101-102, affidavit of Ms Manville, exhibit “AC”. 102 Exhibit 5 pp 103-105, affidavit of Ms Manville, exhibit “AD”. 103 Exhibit 5 p 47, statement of Belinda McDonald dated 13 April 2011 at para 5. 104 Exhibit 5 pp 48-55; Statement of Belinda McDonald dated 13 April 2011 at paras 8, 10, 11 and 12. 105 Exhibit 5 pp 61-69; Statement of Belinda McDonald dated 13 April 2011 at paras 30, 33 and 36. -- 14 of 47 -- 15 Commonwealth Bank in relation to the defendant’s firm’s trust account and general account.106 [81] On 12 February 2010, Ms McDonald issued the defendant with two notices under s 353-10 of the TAA.107 This required his attendance to answer questions on oath on 18 March 2010 and to produce certain documents. [82] On 15 and 16 March 2010, Ms McDonald made attempts to contact Mr Zheng Fu, who was identified in the records as the current trustee of the trusts.108 [83] On 16 March 2010, Ms McDonald received two cheques from the defendant totalling $1,083,271, representing repayment of the GST refunds previously claimed and received by the trusts.109 [84] On 18 March 2010, Ms McDonald and Mr Heath conducted the compulsory interview with the defendant pursuant to a notice issued under s 353-10 of Schedule 1 of the TAA. During this interview, a number of documents already obtained by the ATO were put to the defendant for his comment.110 [85] REDACTED [86] Following the interview, Ms McDonald continued with her investigation. This included: (a) Issuing Ms Hoy with a s 353-10 notice;111 (b) Making enquiries with the Department of Immigration regarding the movements of Mr Fu;112 (c) Making enquiries with Shawn Dobson regarding the Norman Park property;113 (d) Making enquiries with David Varney regarding property developments at Coffs Harbour and another place and invoices issued;114 (e) Making enquiries regarding further invoices provided to support the GST claims;115 (f) Interviewing Ms Hoy on 24 May 2010 and showing her a number of documents;116 (g) Making enquiries with the owner of the Coffs Harbour property;117 (h) Making enquiries with Peter Le Feuvre regarding the Goonellabah property;118 and 106 Exhibit 5 pp 58, 60, 71, 73; Statement of Belinda McDonald dated 13 April 2011 at paras 22, 26, 40, 41, 42 and 48. 107 Exhibit 5 p 72; Statement of Belinda McDonald dated 13 April 2011 at para 45. 108 Exhibit 5 p 105; Affidavit of Belinda McDonald dated 14 March 2014 at para 15. 109 Exhibit 5 p 75; Statement of Belinda McDonald dated 13 April 2011 at para 52. 110 Exhibit 5 pp 78-84; Statement of Belinda McDonald dated 13 April 2011 at paras 55-73. 111 Exhibit 5 p 85; Statement of Belinda McDonald dated 13 April 2011 at para 77. 112 Exhibit 5 p 86; Statement of Belinda McDonald dated 13 April 2011 at para 79. 113 Exhibit 5 p 86; Statement of Belinda McDonald dated 13 April 2011 at para 80. 114 Exhibit 5 p 87; Statement of Belinda McDonald dated 13 April 2011 at para 81. 115 Exhibit 5 pp 87-91; Statement of Belinda McDonald dated 13 April 2011 at paras 82-86 and 94. 116 Exhibit 5 pp 90-91; Statement of Belinda McDonald dated 13 April 2011 at paras 87 – 92. 117 Exhibit 5 p 92; Statement of Belinda McDonald dated 13 April 2011 at para 95. 118 Exhibit 5 pp 92-94; Statement of Belinda McDonald dated 13 April 2011 at paras 96, 99 and 101. -- 15 of 47 -- 16 (i) Making enquiries with Robert Scammell, the director of Clinic Developments Corporation Pty Ltd.119 [87] On 31 March 2010, Ms McDonald referred the matter to the serious non-compliance section of the ATO for further investigation.120 Importantly, in this referral she specially alleged the defendant committed fraud.121 In the submission, she specifically referred to the compulsory interview and noted, “We believe Mr Leach has fraudulently claimed GST refunds through the above two entities”.122 Oral evidence of Ms McDonald [88] Ms McDonald did not give evidence before me, but the transcript of her trial evidence is contained in Ms Manville’s affidavit. [89] She gave evidence about the compulsory interview, which was tendered and played to the jury. Thereafter, she gave evidence about documents shown to the defendant during the interview.123 Toni O’Bryan [90] Ms O’Bryan provided a statement dated 23 September 2011,124 and an addendum statement dated 18 November 2014.125 Ms O’Bryan is an investigator within the serious non-compliance section of the ATO. As part of Ms O’Bryan’s duties as an investigator, she was authorised to access ATO computer systems and databases.126 [91] On 12 November 2010, she was allocated the investigation regarding the GST refund claims made by the trusts.127 [92] As part of her investigation she conducted a search of ATO records and reviewed previous reports and materials received during the compliance verification process. [93] She also spoke with Ms McDonald on 16 November 2010 and received files from her pertaining to the audit, including a copy of the audio of the compulsory interview.128 Ms O’Bryan organised for Auscript to transcribe the interview.129 [94] Following the receipt of this material, Ms O’Bryan then undertook a number of steps, including: (a) Conducting further searches of ATO records;130 (b) Obtaining the original BAS documents from ATO computer records;131 119 Exhibit 5 pp 92-93; Statement of Belinda McDonald dated 13 April 2011 at paras 97 and 98. 120 Exhibit 5 p 105; Affidavit of Belinda McDonald sworn 14 March 2014 at para 11. 121 Exhibit 5 p 186; Affidavit of Belinda McDonald sworn 14 March 2014 at p 80. 122 Exhibit 5 pp 188-189; Affidavit of Belinda McDonald sworn 14 March 2014 at pp 82-83. 123 Exhibit 5 pp 475-480 and 485. 124 Exhibit 5 pp 191-248; Statement of Toni O’Bryan dated 23 September 2011. 125 Exhibit 5 pp 249-274; Statement of Toni O’Bryan dated 18 November 2014. 126 Exhibit 5 p 191; Statement of Toni O’Bryan dated 23 September 2011 at para 1. 127 Exhibit 5 p 191; Statement of Toni O’Bryan dated 23 September 2011 at para 2. 128 Exhibit 5 p 192; Statement of Toni O’Bryan dated 23 September 2011 at para 3. 129 Exhibit 5 p 203; Statement of Toni O’Bryan dated 23 September 2011 at para 14. 130 Exhibit 5 pp 192-198; Statement of Toni O’Bryan dated 23 September 2011 at paras 4, 5, 7, 8, 9 and 10. 131 Exhibit 5 pp 203 and 205; Statement of Toni O’Bryan dated 23 September 2011 at paras 15 and 28. -- 16 of 47 -- 17 (c) Obtaining statements from persons identified as being relevant to the investigation;132 (d) Obtaining documents from banking institutions;133 (e) Conducting enquiries with Andison regarding invoices produced by the defendant in substantiation of the GST refunds claimed;134 (f) Conducting enquiries with Sewell of Omega Hydraulics regarding the invoice produced by the defendant concerning Toplift;135 (g) Conducting enquiries with Volsanger, the owner of one of the properties the trusts were involved with;136 (h) Conducting enquiries with and interviewing Mr Fu, trustee of the trusts at the relevant time;137 (i) Obtaining and executing a search warrant for the search of the defendant’s residence;138 (j) Conducting enquiries with Mr de Graff regarding the loan to the defendant;139 (k) Conducting enquiries regarding the estate of Audrey de Graff;140 and (l) Obtaining a statement from Mr Lincoln Smith.141 [95] The existence of the last two witnesses was only known to the ATO because of the interview. [96] Ms O’Bryan had the interview with Ms Hoy transcribed.142 Ms Hoy’s existence was known to the ATO from the interview. [97] Mr Le Feuvre was spoken to and a document was obtained from him.143 He was spoken of in the interview. [98] On 27 May 2011, Mr Fu was spoken to.144 A transcript of this interview was tendered as exhibit 9. 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.145 Also, that which the defendant had alleged in his interview was directly put to the witness.146 [99] In July 2011, Ms O’Bryan swore an affidavit to obtain a warrant to search Mr Leach’s premises.147 In this affidavit, Ms O’Bryan specifically alleges that she suspects the defendant committed offences relating to BAS statements. A number of names are 132 Exhibit 5 pp 203-205; Statement of Toni O’Bryan dated 23 September 2011 at paras 16-24 and 26. 133 Exhibit 5 p 208; Statement of Toni O’Bryan dated 23 September 2011 at para 33. 134 Exhibit 5 pp 209-210; Statement of Toni O’Bryan dated 23 September 2011 at paras 29-32. 135 Exhibit 5 p 212; Statement of Toni O’Bryan dated 23 September 2011 at paras 36-38. 136 Exhibit 5 p 213; Statement of Toni O’Bryan dated 23 September 2011 at para 41. 137 Exhibit 5 pp 214 and 221; Statement of Toni O’Bryan dated 23 September 2011 at paras 47 and 69. 138 Exhibit 5 pp 224-234; Statement of Toni O’Bryan dated 23 September 2011 at paras 83-93. 139 Exhibit 5 p 245; Statement of Toni O’Bryan dated 23 September 2011 at para 141 and Exhibit 5 p 254; Statement of Toni O’Bryan dated 18 November 2014 at para 12. 140 Exhibit 5 p 254; Statement of Toni O’Bryan dated 18 November 2014 at para 15. 141 Exhibit 5 p 254; Statement of Toni O’Bryan dated 18 November 2014 at para 14. 142 Exhibit 5 p 205; Statement of Toni O’Bryan dated 23 September 2011 at para 27. 143 Exhibit 5 p 219; Statement of Toni O’Bryan dated 23 September 2011 at para 64. 144 Exhibit 5 p 221; Statement of Toni O’Bryan dated 23 September 2011 at para 69. 145 See Exhibit 9 p 3. 146 See Exhibit 9 pp 18-19. 147 Exhibit 5 p 224; Statement of Toni O’Bryan dated 23 September 2011 at para 83. -- 17 of 47 -- 18 specifically mentioned, which come directly from the defendant’s interview. At paragraph 50,148 Ms O’Bryan also specifically refers to the details of the interview. [100] A number of items were seized during those searches.149 These items are specifically referred to in her statement. In particular, the following documents were seized: (a) Deed of settlement dated 5 September 2005;150 (b) Deed of settlement dated 20 April 2005;151 (c) Various documents referred to at paragraph 92 of her statement; (d) A hard drive;152 and (e) Documents located at premises in Coorparoo.153 [101] On 24 August 2011, she offered the defendant an interview which never occurred.154 [102] On 12 March 2012, Ms O’Bryan swore the complaint and summons in this matter in the Magistrates Court.155 [103] On 29 June 2012, Ms O’Bryan seized various Gateway Lawyers trust records.156 Oral evidence of Ms O’Bryan [104] At the first trial, Ms O’Bryan gave evidence she had received the allocation of the investigation on 12 November 2010.157 [105] She gave evidence about the search warrant and documents seized during the search.158 [106] In cross-examination, she agreed she possibly told Mr Lincoln-Smith that the defendant told her during the interview that he had been loaned money.159 She agreed, after seeing his statement, that she disclosed to him what the defendant had told her.160 [107] She also told Mr de Graff this.161 [108] She also said she did this so the witness had, “a right of reply”.162 [109] In evidence before me, Ms O’Bryan said that the referral from Ms McDonald included the interview with the defendant.163 [110] She did read it during the process of the investigation.164 148 Exhibit 5 p 786; Affidavit of Toni O’Bryan at para 50. 149 Exhibit 5 pp 227-234; Statement of Toni O’Bryan dated 23 September 2011 at paras 91-94. 150 Exhibit 5 p 227; Statement of Toni O’Bryan dated 23 September 2011 at para 91. 151 Exhibit 5 p 227; Statement of Toni O’Bryan dated 23 September 2011 at para 91. 152 Exhibit 5 p 234; Statement of Toni O’Bryan dated 23 September 2011 at para 93. 153 Exhibit 5 p 237; Statement of Toni O’Bryan dated 23 September 2011 at para 105. 154 Exhibit 5 p 245; Statement of Toni O’Bryan dated 23 September 2011 at para 144. 155 Exhibit 5 p 250; Statement of Toni O’Bryan dated 18 November 2014 at para 6. 156 Exhibit 5 pp 250-251; Statement of Toni O’Bryan dated 18 November 2014 at paras 8 and 9. 157 Exhibit 5 p 493.20 – 22. 158 Exhibit 5 pp 496-510. 159 Exhibit 5 p 521.34 – 35. 160 Exhibit 5 p 522.5-19. 161 Exhibit 5 p 522.24. 162 Exhibit 5 p 522.32. 163 Transcript day 2-62.10. 164 Transcript day 2-62.30. -- 18 of 47 -- 19 [111] She delivered a brief of evidence to the CDPP, which included draft charges. The CDPP finalised the charges.165 She agreed she attended the Magistrates Court to swear to the complaint on 23 March 2012.166 [112] She did not recall if she provided the Siebel notes (exhibit 12) during disclosure.167 [113] She agreed Ms McDonald referred the matter to her unit and the file was referred to her. She agreed she spoke to Ms McDonald and obtained the files.168 [114] She agreed exhibit 12 records that she spoke to Mr de Graff.169 My reading of that entry is that the discussion was consequent on what was said by the defendant during the interview. She agreed she spoke to Mr de Graff to see if it was true that he provided the loan. Dominique Murphy [115] Ms Murphy provided an affidavit sworn 24 March 2014.170 In the affidavit she says that she was the case officer at the CDPP. She says she received the referral from the ATO on 26 September 2011. [116] She read the interview with the defendant. She also made notes in the process of reviewing the brief of evidence. [117] On 26 April 2012, three electronic copies of the brief of evidence were given to the defendant’s then solicitors. [118] In July 2012, Ms Murphy prepared an affidavit of Ms O’Bryan which enclosed the interview. This was used in proceedings involving the setting aside of a subpoena. [119] On 9 April 2013, Peter Shields Lawyers were given a copy of the elements/evidence table (exhibit 11A) and a copy of the interview. [120] The interview was also provided to the Crown’s counsel. [121] Ms Murphy had not requested any other officer of the CDPP to read the interview. [122] In oral evidence, Ms Murphy said she was the case officer at the CDPP in 2014. She left the CDPP in June 2016.171 [123] She maintained control of the file while she was there and was assisted by other officers.172 [124] She agreed the file had come to the CDPP from the ATO in September 2011.173 She carefully went through the material. She could not recall there being draft charges. 165 Transcript day 2-63.27 – 36. 166 Transcript day 2-62.44. 167 Transcript day 2-64.17. 168 Transcript day 2-65.36 – 37. 169 Transcript day 2-66.24. 170 Exhibit 5 pp 275-278; Affidavit of Dominique Murphy sworn 24 March 2014. 171 Transcript day 2-68.46. 172 Transcript day 2-69.23 – 28. 173 Transcript day 2-70.10. -- 19 of 47 -- 20 The intention of the brief was for the Crown to draft the correct charges. She agreed she reviewed the interview as part of the evidence relevant to the charges.174 [125] It is clear the interview was important to her in the framing of the charges.175 [126] If further evidence was needed after reviewing the transcript, the ATO would obtain this.176 [127] The brief of evidence included the witness statements. The brief was reviewed with knowledge of the interview.177 [128] Ms Murphy prepared the elements table which noted important matters concerning proof of the charges (exhibit 11A).178 [129] I note that exhibit 11A specifically relied on the interview when it came to the question of dishonesty.179 Referral to the CDPP from the ATO [130] Exhibit 22 is a copy of the referral letters to the CDPP from the ATO. [131] I specifically note that the interview is referred to in both documents and may be thought to be an important part of the referral. Evidence as a result of the ruling in CDPP v Leach (No 2)180 [132] On 11 March 2014 Ms Murphy (after the application by the defendant about the compulsory interview was filed) emailed Ms O’Bryan asking her: (a) When she read the transcript. (b) To work out whether there were any investigative steps solely as a result of the interview. (c) To work out the “Zheng Fu” point. (d) How she knew of David Varney. [133] By way of reply Ms O’Bryan responded that as regards Ms Varney Ms McDonald attempted to contact Christine Varney a couple of times. She then spoke to Mr Varney. [134] As to Ms Hoy, she was an employee of the defendant and it would be a normal part of the process to interview her about Fu and his knowledge of the two trusts. [135] As to Mr Shen, Ms McDonald made numerous attempts to contact him in May 2010. [136] As to Mr Fu on 8 March 2010, the defendant sent a letter to Ms McDonald providing the current details of the current trustee with his date of birth and address. She conducted various searches on him and tried to contact him. 174 Transcript day 2-70. 175 Transcript day 2-70.37 – 38. 176 Transcript day 2-71.25 – 29. 177 Transcript day 2-71.21. 178 Transcript day 2-73. 179 Exhibit 11A p 2. 180 [2020] QDCPR 4. -- 20 of 47 -- 21 [137] Ms O’Bryan says she was assigned the investigation on about 15 November 2010. On 22 and 23 November 2011,181 she reviewed the audit notes and the Siebel notes. She received the Leach transcript on 22 November 2010 and the Hoy transcript on 21 December 2010. [138] As to David Varney, invoices submitted to the ATO during the audit alone would have resulted in her conducting ASIC searches into Fine Sense and would have resulted to calls to Mr Varney by her regardless. She later rang Christine Varney. [139] As to Zheng Fu, his name came up in documents obtained in the audits, which the defendant sent to Ms McDonald on 18 December 2009. Ms O’Bryan obtained Mr Fu’s email address, emailed him and tried to contact him. She finally received a phone call from him on 15 March 2011. Mr Fu [140] It is necessary to analyse how Mr Fu was spoken to in more depth. [141] It is clear from the evidence that Ms McDonald knew of Mr Fu prior to the compulsory interview. [142] As I noted previously, Ms McDonald became involved in the matter on 21 October 2009. [143] She says that she examined the ATO records concerning the two trusts (paras 7 and 8).182 Mr Leach was the authorised contact person. She reviewed a copy of the BAS for 2005 until 2009, and saw they had been lodged by the defendant (para 10).183 She produced those documents. [144] Ms McDonald rang the defendant’s number on a number of occasions in November 2009 unsuccessfully until 13 November 2009 (paras 14-19).184 [145] On 13 November 2009, she advised the defendant she was conducting an audit of the trusts and informed him of the effect of voluntary disclosures (para 19).185 A meeting was scheduled for 7 December 2009. [146] The defendant asked to reschedule the meeting for 14 December 2009 (para 21).186 [147] Ms McDonald again tried to contact the defendant and she confirmed the new meeting date via fax (para 25).187 [148] On 11 December 2009, the defendant sent a fax wanting a new meeting date (para 27).188 181 I suspect this should be 2010. 182 Exhibit 5 pp 47 – 48. 183 Exhibit 5 p 49. 184 Exhibit 5 pp 55-56. 185 Exhibit 5 p 56. 186 Exhibit 5 p 57. 187 Exhibit 5 p 59. 188 Exhibit 5 p 60. -- 21 of 47 -- 22 [149] Importantly, on 18 December 2009, Ms McDonald received a number of faxes from the defendant enclosing documents related to both trusts, which included trust documents showing that Fu Zheng had been appointed as New Trustee (para 30).189 [150] All of the above documents are admissible. [151] Further documents were received from the defendant on 11 January 2010 (paras 33 – 34).190 [152] On 15 January 2010, Ms McDonald faxed letters to the defendant and Mr Fu advising of the audit extension (para 35).191 [153] I form the view that Mr Fu was always going to be spoken to by the ATO at some point. [154] Indeed, on 8 March 2010, Ms McDonald obtained details of Mr Fu’s date of birth and address from the defendant (para 50).192 [155] The interview then occurred on 18 March 2010. [156] After the interview, Ms McDonald continued her inquiries as to Mr Fu with the Department of Immigration (para 79).193 She also unsuccessfully tried to contact him (para 104 and para 15 of affidavit sworn 14 March 2014).194 [157] As I have noted previously, the matter was referred to Ms O’Bryan in November 2012. [158] This may be seen as a continuation of pre-interview inquiries. [159] Ms O’Bryan says that she had email communication with Mr Fu between 14 February and 8 September 2011 (para 46).195 This is consistent with entries in exhibit 12. [160] On 15 March 2011, exhibit 12 notes that Ms O’Bryan spoke to Mr Fu.196 He denied knowing of or signing documents regarding trusts. He was willing to come to Australia if required. There was discussion about a list of questions. [161] On 21 March 2011, Ms O’Bryan emailed a list of 57 questions together with a Chinese translation to Mr Fu (para 55).197 [162] Exhibit 23 is the list of questions sent from Ms O’Bryan to Mr Fu prior to the interview. [163] It is difficult to say what questions would have been asked if there had been no interview, but I form the view that questions 13, 14, 15, 20, 29, 30, 31, 35, 38, 40, 41, 42, 43, 48, 49, 50, 51, 52, 53, 54, 55, 56 and 57 at the least in part came from information provided by the defendant in his interview. 189 Exhibit 5 pp 61-63; Documents PDL00152 and PDL00154. 190 Exhibit 5 pp 66-68. 191 Exhibit 5 p 68. 192 Exhibit 5 p 75. 193 Exhibit 5 p 86. 194 Exhibit 5 pp 95 and 105. 195 Exhibit 5 p 214. 196 Exhibit 12 p 14; also referred to in Exhibit 5 p 214. 197 Exhibit 5 p 217. -- 22 of 47 -- 23 [164] Exhibit 9 is the interview between Ms O’Bryan and Mr Fu dated 27 May 2011. It is clear there had been a pre-interview discussion.198 [165] I infer Mr Fu had been told that it was alleged that he was the one using the trust company, and he was making a statement so as to be in the clear.199 [166] He denied any involvement in the trust. [167] He had obviously been sent a list of questions by Ms O’Bryan previously.200 [168] Ms O’Bryan specifically put to him that it had been alleged that he was involved in the trust and had authorised the defendant to borrow money to repay the ATO.201 [169] This information clearly came from the defendant’s compulsory interview. [170] It is in this context that Mr Fu provided the statement dated 24 October 2011.202 [171] In that statement, Mr Fu effectively says he knew nothing about the trusts, denies signing relevant documents, and denies that he had received any GST refunds. [172] In an undated statement, he says he never had any involvement with either trust (para 35).203 He also says that he never received any files or documentation from the defendant regarding the trusts, he never supplied the defendant invoices in respect of costs incurred by the trusts, had never given the defendant authority to lodge BAS statements for the trusts, and had never given him authority to use GST refunds (paras 36 – 39).204 [173] Mr Fu gave evidence at the trial.205 He gave evidence that he signed some paperwork at the request of the defendant, but did not really read it.206 [174] He then said that after he went to China, he was contacted by the Tax Office and saw documents with signatures similar to his which were not his.207 Some of these are the documents obtained by the ATO before the compulsory interview. [175] He had never heard of the companies involved.208 [176] His evidence-in-chief was consistent with his statement. [177] In cross-examination, he said he provided his statement to the ATO on 24 October 2011, and prior to this he had received an email with a questionnaire from the ATO.209 He also admitted speaking to the ATO on 27 May 2011.210 198 Exhibit 9 p 1.7 – 9. 199 Exhibit 9 p 3.13 – 19. 200 Exhibit 9 p 10.3 – 8. 201 Exhibit 9 pp 18-19. 202 Exhibit 5 – affidavit of Laura-Leigh Manville exhibit “AH”, pp 279-286. 203 Exhibit 5 p 295. 204 Exhibit 5 p 295. 205 Exhibit 5 pp 325 to 392. 206 Exhibit 5 p 329.7 – 31. 207 Exhibit 5 pp 330.44 – 331.1. 208 Exhibit 5 p 331.1 – 2. 209 Exhibit 5 p 351. 210 Exhibit 5 p 352.5 – 12. -- 23 of 47 -- 24 [178] He was cross-examined as to his knowledge of various individuals. [179] He admitted that Mr Shen had asked him to be registered as a business person for Shen Collection Pty Ltd.211 He agreed he was a director of that company.212 [180] He alleged he could not remember signing a lease for the company but admitted he was close to finishing his accounting studies.213 [181] He denied signing a company charge document.214 [182] He denied telling Ms O’Bryan he managed Mr Shen’s shop.215 [183] He denied signing an ASIC document dated 31 December 2009.216 [184] He denied the suggestion he had met the defendant on many occasions.217 He claimed he only met him twice.218 [185] It was suggested to the witness that on 10 December 2009 he collected a bundle of documents from the defendant for Mr Chen. He said he did not remember.219 He said he had never heard of the Number 88 Trust or the RNM 88 Unit Trust.220 [186] He denied that Mr Shen wanted him to look after his interests in the trusts.221 [187] It was put to the witness, but denied, that it was his signature on the various documents.222 Mr de Graff [188] It is also important to consider Mr de Graff’s evidence in detail. [189] There is no evidence on the material that the ATO was aware of Mr de Graff before the compulsory interview. [190] Exhibit 12 is a Seibel case note from Ms O’Bryan which records that, on 11 August 2011, she rang Mr de Graff who, “confirms he did not lend $1m to Leach at any time”, and she explained to him she needed a statement to “negate he gave the loan”. 223 [191] The view I form is that that this information came directly from the defendant’s compulsory interview. 211 Exhibit 5 p 357.14 – 18. 212 Exhibit 5 p 358.7 – 10. 213 Exhibit 5 pp 358.41 – 359.39. 214 Exhibit 5 p 365.10 – 15. 215 Exhibit 5 p 366.38. 216 Exhibit 5 p 369.35. 217 Exhibit 5 p 376.27. 218 Exhibit 5 p 377.1. 219 Exhibit 5 p 389.29. 220 Exhibit 5 p 389.39 – 45. 221 Exhibit 5 p 390.1 – 4. 222 Exhibit 5 p 390.16 – 34. 223 Exhibit 12 p 50. -- 24 of 47 -- 25 [192] Mr de Graff gave a statement dated 5 October 2012.224 In that statement Mr de Graff says that he engaged the defendant’s firm to handle his mother’s estate. $4.3m was left in the trust account for potential tax liabilities. [193] In about March 2011, the defendant provided his brother’s accountants a copy of a purported Commonwealth Bank statement which recorded the balance in the account as $4,263,421.12.225 He later contacted the bank and was advised this was a forgery.226 [194] He denied that he ever authorised the defendant to borrow the $1m.227 [195] At paragraph 17, the statement specifically refers to information given to Mr de Graff by Ms O’Bryan regarding what the defendant alleged in his interview, which Mr de Graff refuted.228 [196] The CDPP proposes to redact paragraph 17. [197] Of note, Mr Kenneth Fung has provided a statement dated 14 November 2012.229 In that statement, Mr Fung says that he is a partner in the firm Mitchell and Partners, the accountants appointed to handle the affairs of the estate of Audrey de Graff.230 He says that, on 7 March 2011, he received the purported bank statement from the defendant.231 [198] Mr de Graff gave evidence at the trial consistent with his statement. He denied that he approached the defendant to release funds in March 2010.232 [199] He denied lending the defendant $1m or more,233 and he did not authorise the transfer on 8 March 2010 to the Gateway Lawyers trust account.234 [200] In cross-examination, he agreed that after Andrew Brown had left Gateway Lawyers, the defendant looked after the estate.235 [201] He agreed he signed an authority for the dispersal of funds from the estate,236 but denied he was told the funds were to be taken out of trust and to go into an interest bearing account.237 [202] He said he could not recall making a will and power of attorney in late 2010 in which he nominated, amongst others, the defendant as his attorney.238 He was shown the document dated 12 November 2010 and admitted signing it.239 224 Exhibit 5 pp 297 – 301. 225 Exhibit 5 p 298 para 9. 226 Exhibit 5 p 299 para 12. 227 Exhibit 5 p 300 para 18. 228 Exhibit 5 p 300 para 17. 229 Exhibit 5 pp 315 – 317. 230 Exhibit 5 p 315 para 3. 231 Exhibit 5 p 316 para 6. 232 Exhibit 5 p 395.25 – 29. 233 Exhibit 5 p 397.44. 234 Exhibit 5 p 398.1 – 2. 235 Exhibit 5 p 398.40 – 43. 236 Exhibit 5 p 401.1 – 4. 237 Exhibit 5 p 401.6 – 8. 238 Exhibit 5 p 402.26 – 28. 239 Exhibit 5 p 403.19. -- 25 of 47 -- 26 [203] He effectively denied lending the defendant the money.240 [204] He admitted saying at a meeting that he only wanted his money repaid.241 [205] He specifically denied the suggestion he lent the defendant the money.242 Mr Lincoln-Smith [206] Mr Lincoln-Smith, another relative of the late Ms de Graff, provided a similar statement dated 11 January 2013.243 [207] He confirms that which is stated in Mr de Graff’s statement. He also says that in March 2011, he saw the purported Commonwealth Bank statement. After he spoke to Mr de Graff, he arranged a meeting with the defendant. The defendant alleged he had been blackmailed and was being threatened, and he asked for time to repay the money to the estate. Mr Lincoln-Smith reported the matter to his solicitor.244 [208] He says that he never authorised the transfer of the relevant $1m out of the account. At paragraph 16, the statement specifically refers to information given to Mr Lincoln- Smith by Ms O’Bryan about what the defendant alleged in his interview regarding this. [209] The CDPP proposes to redact paragraph 16. [210] At the trial, Mr Lincoln-Smith gave evidence-in-chief consistent with his statement. He said at no stage did he lend the defendant $1m, nor did he authorise the transfer of $1,193,271 from the estate to Gateway Lawyers’ trust account.245 [211] In cross-examination, he agreed that the dealings with Gateway Lawyers were through his brother, Mr de Graff.246 [212] He did not recall providing authority to have the money put into an interest bearing account.247 He did not recall signing the POA.248 Mr Heath [213] Mr Heath provided a statement dated 18 April 2011.249 [214] In this statement, he says that he was employed by the ATO as a team leader in the Indirect Tax – GST – Serious Evasion area. [215] He took part in the compulsory interview. He later spoke to Lorraine Sladden of Ward Post Engineering. 240 Exhibit 5 p 404.35 – 38. 241 Exhibit 5 p 405.8 – 9. 242 Exhibit 5 p 405.11 – 17. 243 Exhibit 5 pp 303 – 313. 244 Exhibit 5 p 306. 245 Exhibit 5 p 428.21 – 22. 246 Exhibit 5 p 429.28 – 29. 247 Exhibit 5 p 432.1 – 9. 248 Exhibit 5 p 432.47. 249 Exhibit 18. -- 26 of 47 -- 27 [216] In oral evidence, Mr Heath agreed he was involved in the compulsory interview.250 His role was to assist Ms McDonald.251 [217] In evidence, Mr Heath confirmed he did some third party inquiries in this matter. He contacted a supplier or suppliers regarding the validity of invoices.252 [218] In cross-examination, Mr Heath agreed that, at the defendant’s compulsory interview, he told the defendant he was expected to co-operate by providing full and free access to the premises, records and documents.253 He agreed that the defendant provided a number of documents.254 [219] He was not aware of any decision to disclose the interview. [220] He agreed that after such interviews, they talk to third parties about what emerges in the interview.255 [221] The manner of questioning is consistent with how he normally conducts the interviews.256 Gabriel Perry [222] Mr Perry affirmed an affidavit on 22 November 2019.257 [223] He swears that he assisted Ms Manville with the prosecution. He details that assistance. [224] He did not have any involvement in assessing the brief of evidence. He does not have any recollection of seeing the compulsory interview. Disclosure of the interview [225] A crucial preliminary point to be determined is the legality of the disclosure of the interview. [226] In the decision in Leach itself, Sofronoff P noted that in February 2010, the defendant had received a notice under s 353-10 of the TAA requiring him to give evidence and to produce documents. At the interview, he was told he could not claim the privilege against self-incrimination. The interview was transcribed and given to an ATO investigator in November 2010. On 26 September 2011, the ATO officer Ms O’Bryan referred the matter to the CDPP, together with a copy of the transcript of the interview. She believed she was making the disclosure under s 355-50 of the Act. The transcript was read by the prosecutor and disseminated to numerous officers in the CDPP. The interview was also tendered at the trial. The President held at [85] that he could see nothing in the legislation which authorised the disclosure. At [36], his Honour found that s 355-50 did not expressly alter the fundamental principles according to which the system of criminal justice is to be administered. 250 Transcript day 3-39.43. 251 Transcript day 3-40.8 – 10. 252 Transcript day 3-42.27 – 35. 253 Transcript day 3-45.4 – 10. 254 Transcript day 3-45.25. 255 Transcript day 3-47. 256 Transcript day 3-50.1 – 3. 257 Exhibit 6. -- 27 of 47 -- 28 [227] However, his Honour did note at [90] that other information could be disclosed, such as the BAS statements in this case. [228] The President ultimately held at [100] that the use of the impugned material on this case distorted the usual trial process. Philippides JA agreed with the President. [229] Applegarth J dissented. His Honour considered that disclosure was permitted under both ss 355-50 and 355-70. Of course, I am bound by the majority. [230] In Leach, there was no finding as to whether the interview could be disclosed to Ms O’Bryan. [231] An issue is raised between the parties as to whether the interview should have been disclosed to her. The defendant submits it should not have been. On the other hand, the CDPP submits that it was permissible to do so under the Act. [232] As to the principles of statutory interpretation in R v A2 & Ors.258 Kiefel CJ and Keane J said (citations omitted): “32. The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision. 33. Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. "Mischief" is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve. 34. This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight. 35. The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue rejected an approach which paid no regard to the 258 (2019) 93 ALJR 1106; [1998] HCA 28 at [32]-[37] per Kiefel CJ and Keane J. -- 28 of 47 -- 29 words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision. The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation. Similarly, in Saeed v Minister for Immigration and Citizenship the court below was held to have failed to consider the actual terms of the section. A general purpose of the statute, to address shortcomings identified in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself. In Baini v The Queen, it was necessary to reiterate that the question of whether there had been a "substantial miscarriage of justice" within the meaning of the relevant provision required consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation. 36. These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision. 37. None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular case, "if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance". When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.” [233] It is important to note that s 353-10 of Sch 1 of the TAA provides the ATO Commissioner with the power to attend and give evidence. Section 355-10 of the TAA sets out the objects of Div 355 dealing with confidentiality and disclosure as follows: “Objects of Division The objects of this Division are: (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 (b) to facilitate efficient and effective government administration and law enforcement by allowing -- 29 of 47 -- 30 disclosures of protected tax information for specific, appropriate purposes.” [234] Section 355-30(1) defines protected information and taxation officer as: “Meaning of protected information and taxation officer (1) Protected information means information that: (a) 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 (b) relates to the affairs of an entity; and (c) identifies, or is reasonably capable of being used to identify, the entity. Note: Tax file numbers do not constitute protected information because they are not, by themselves, reasonably capable of being used to identify an entity. For offences relating to tax file numbers, see Subdivision BA of Division 2 of Part III. (2) Taxation officer means: (a) the Commissioner or a * Second Commissioner; or (b) an individual appointed or engaged under the Public Service Act 1999 and performing duties in the Australian Taxation Office. Note: This Division applies to certain other entities as if they were taxation officers: see section 355-15.” [235] Section 355-25(1) creates an offence for the disclosure of protected information by taxation officers. “Offence—disclosure of protected information by taxation officers (1) An entity commits an offence if: (a) the entity is or was a *taxation officer; and (b) the entity: (i) makes a record of information; or (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 (c) the information is *protected information; and (d) the information was acquired by the first-mentioned entity as a taxation officer.” [236] However, s 355-50 creates an exception to the prohibition in s 355-25 as follows: “Exception—disclosure in performing duties (1) Section 355-25 does not apply if: (a) the entity is a * taxation officer; and (b) the record or disclosure is made in performing the entity’s duties as a taxation officer.” [237] The duties are specified in the table, but they do not limit subsection (1).259 259 Taxation Administration Act 1953 (Cth) sch 1 s 355-50(2). -- 30 of 47 -- 31 [238] I also note that the heading to section 355-50 states, “Exception-disclosure in performing duties”.260 [239] It in my view would be an absurd result if an interview was conducted that other officers in the ATO could not use the interview. That outcome would be improbable. [240] In my view, the disclosure to Ms O’Bryan was lawful as she was a taxation officer performing her duties.261 [241] I consider this interpretation best achieves the purpose or object of the Act.262 Also my view is strengthened by the contents of the Explanatory Memorandum to the Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2010.263 [242] However, disclosure by her to the CDPP was not lawful. Authorities [243] To analyse each of the arguments, it is necessary to turn to the relevant authorities on this question. [244] Firstly, it is beyond question that the defendant is entitled to a fair trial according to law.264 The concept of a fair trial according to law is a constitutionally entrenched principle.265 [245] In X7 v Australian Crime Commission,266 the High Court was concerned with a matter in which a person was arrested and charged with three offences under the Commonwealth Criminal Code. Following his arrest, he was summoned to appear to give evidence at the Australian Crime Commission (“ACC”). The examiner directed that the examination be provided to, amongst others, the CDPP. This was later varied to not authorise publication to any person connected with the investigation or prosecution of the offences. X7 filed a writ seeking various declarations and injunctions. [246] The majority of the High Court held that the examiner could not lawfully require X7 to answer questions about the subject matter of the charges. [247] Hayne and Bell JJ noted at [70] that permitting the executive to ask questions about a pending charge would, “alter the process of criminal justice to a marked degree”. Their Honours noted that the question of fairness is not relevant. [248] At [101], their Honours noted that the whole process for the investigation, prosecution and trial of a Commonwealth offence is accusatorial. One of the features of such a process is the accused has a right to silence ([102]). This notion of a right to silence 260 This is part of the Act – see Acts Interpretation Act 1901 (Cth) s 13. 261 Exhibit 5 page 191 para 1. 262 Acts Interpretation Act 1901 (Cth) s 15AA. 263 See in particular page 5 para 1.3; page 13 para 2.5-2.10; page 44 para 5.7-5.10; page 47 paras 5.12- 5.17. Section 15AB of the Acts Interpretation Act 1901 (Cth) allows the court to have regard to this material. 264 Alqudsi v The Queen (2016) 258 CLR 203; [2016] HCA 24 at [1]-[2] per French CJ; Nicholas v R (1998) 193 CLR 173; [1998] HCA 9 at [74] per Gaudron J. 265 Hammond v The Commonwealth (1982) 152 CLR 188 at 206; [1982] HCA 42; Dietrich v R (1992) 177 CLR 292 at 326; [1992] HCA 57. 266 (2013) 248 CLR 92; [2013] HCA 29. -- 31 of 47 -- 32 is a basic common law right ([104]), and encompasses more than the rights the accused has at trial – it includes the rights of a person suspected of but not charged with an offence, and the rights and privileges which a person has between the laying of the charges and the commencement of the trial. [249] At [118], their Honours noted that at every stage, the criminal process for the prosecution of an indictable Commonwealth offence is accusatorial. [250] Importantly, at [124] their Honours noted: “Even if the answers given at a compulsory examination are kept secret, and therefore cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers, after being charged, would fundamentally alter the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial (and adversarial) trial in the courtroom. No longer could the accused person decide the course which he or she should adopt at trial, and answer to the charge, according only to the strength of the prosecution’s case as revealed by the material provided by the prosecution before trial, or to the strength of the evidence led by the prosecution at the trial. The accused person would have to decide the course to be followed in light of that material and in light of any self- incriminatory answers which he or she had been compelled to give at an examination conducted after the charge was laid. That is, the accused person would have to decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to what answers he or she had given at the examination. The accused person is thus prejudiced in his or her defence of the charge that has been laid by being required to answer questions about the subject matter of the pending charge.” [251] Kiefel J substantially agreed with Hayne and Bell JJ. At [159], her Honour stated: “Relevant to the question of legislative intention is not only the privilege of the person to refuse to answer questions which may incriminate him or her but also a fundamental principle of the common law. The fundamental principle – that the onus of proof rests upon the prosecution – is as stated in Environment Protection Authority v Caltex Refining (citation omitted), as is its companion rule – that an accused person cannot be required to testify to the commission of the offence charged. The prosecution, in the discharge of its onus, cannot compel the accused to assist it. The common law principle is fundamental to the system of criminal justice administered by courts in Australia, which, as Hayne and Bell JJ explain, is adversarial and accusatorial in nature. The accusatorial nature of the system of criminal justice involves not only the trial itself, but also pre-trial enquiries and investigation. This is recognised by the statutory provisions to which their Honours refer. It may be added, as to the trial itself, that the concept of an accusatorial trial where the prosecution seeks to prove its case to the jury has a constitutional dimension.” -- 32 of 47 -- 33 [252] The next relevant High Court decision is Lee v NSW Crime Commission.267 [253] In Lee, the appellants were charged with drug trafficking. On the day after they were charged, the NSW Crime Commission obtained a restraining order from the Supreme Court. Orders for an examination were sought, but refused by the trial judge. By the time the appeal came before the NSW Court of Appeal, the majority of the criminal charges had already been heard. Jason Lee had been convicted of a firearms offence and offences of supplying drugs, while Seong Won Lee had been convicted of firearms offences and of being knowingly concerned in the supply of drugs. The NSW Court of Appeal allowed the appeal by the NSW Crimes Commission. [254] By a 4-3 majority, the appeal by the Lees was dismissed. French CJ distinguished X7 insofar as it applied to the Criminal Assets Recovery Act 1990 (NSW). His Honour considered if there was a real risk of prejudice to the Lees, the Supreme Court could control its own processes in this regard.268 His Honour held there was a high degree of certainty as to the legislative intention and the orders for the examination should have been made.269 Crennan J held that delay in examination until the conclusion of criminal proceedings could frustrate the purposes of the Act.270 There was an express abrogation of the privilege against self-incrimination in the Act.271 [255] At [159] to [160], Kiefel J noted: “[159] …It is also a common law principle that the prosecution cannot compel a person accused of a crime to assist it in the discharge of its onus of proof. This is an essential aspect of an accusatorial system and is fundamental to the common law. It lies at the heart of the system of criminal justice administered by the courts. [160] When the applications for the examination of the appellants were brought, each of the appellants had been charged with offences and their trials were therefore pending in the courts of New South Wales.” [256] Gageler and Keane JJ held that s 13A of the Criminal Assets Recovery Act abrogated privilege.272 [257] As it turned out, the Lees were convicted after trial, but their convictions were quashed and a re-trial ordered in Lee v R.273 Both accused had been compulsorily questioned by the NSW Crimes Commission. The transcripts of their evidence had been unlawfully published by the Commission to the police and the DPP. In a unanimous decision, the court accepted that a fundamental principle of the criminal process is that a person cannot be compelled to testify.274 It was said that usually, the Commission would have to quarantine evidence given by a person to be charged from persons involved in the prosecution of those charges. That was not done in Lee’s case. 267 (2013) 251 CLR 196; [2013] HCA 39. 268 (2013) 251 CLR 196; [2013] HCA 39 at [41] per French CJ. 269 (2013) 251 CLR 196; [2013] HCA 39 at [56] per French CJ. 270 (2013) 251 CLR 196; [2013] HCA 39 at [131] per Crennan J. 271 (2013) 251 CLR 196; [2013] HCA 39 at [132] per Crennan J. 272 (2013) 251 CLR 196; [2013] HCA 39 at [285]. 273 (2014) 253 CLR 455; [2014] HCA 20. 274 (2014) 253 CLR 455; [2014] HCA 20 at [33]. -- 33 of 47 -- 34 [258] The last High Court authority of direct relevance is Strickland v Commonwealth Director of Public Prosecutions.275 In 2008, the ACC received information that XYZ Pty Ltd was involved in criminal activity. The AFP commenced an investigation into XYZ and approached the ACC to use its coercive powers to examine senior executives of XYZ. The executives had declined AFP interviews, but were compulsorily examined by the ACC. The examinations were watched by officers of the AFP. The examiner made an order that the examination material be disseminated to the AFP and the CDPP. The executives were charged. They successfully applied to the primary judge, who stayed the proceedings as an abuse of process. The Victorian Court of Appeal allowed an appeal against the stay order. By a majority, the trial judge’s decision was restored. [259] The majority held that the accusatorial process had been fundamentally altered, and that such concerns went to the heart of the criminal justice system.276 The majority further held that it was no answer to the matter that the prosecutors knew nothing of the examinations. This was because the lack of clear records made it difficult to assess how and by whom the examinations had been used to build the case.277 The examiner had acted in clear contravention of the law by allowing the AFP officers to watch the examinations.278 The administration of justice had been brought into disrepute.279 [260] At [77], [78] and [80] the plurality stated: “[77] Similar considerations apply where, as here, a person is unlawfully subjected to a pre-charge compulsory examination conducted for the extraneous, unlawful purpose of assisting the AFP to compel the person to give answers to questions about offences of which he or she is suspected and in respect of which he or she has declined to be interviewed. Even if the answers given at such a compulsory examination are kept secret, the unlawful requirement to give answers in respect of an offence of which a person is suspected, or in relation to which he or she is a person of interest, fundamentally alters the accusatorial process for the investigation, prosecution and trial of that offence by unlawfully compelling the person to provide the prosecution with information. [78] Such a person can no longer decide the course which he or she should adopt at any subsequent trial according only to the strength of the prosecution case as revealed by the material provided by the prosecution before trial or to the strength of the evidence led by the prosecution at trial. Such a person must decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to the answers which he or she has been unlawfully compelled to give at the examination. And as will be explained in greater detail later in these reasons, such a person is thus denied the 275 (2018) 93 ALJR 1; (2018) 361 ALR 23; (2018) 272 A Crim R 69; [2018] HCA 53. 276 (2018) 93 ALJR 1; (2018) 361 ALR 23; (2018) 272 A Crim R 69; [2018] HCA 53 at [75]-[79] per Kiefel CJ, Bell and Nettle JJ. 277 (2018) 93 ALJR 1; (2018) 361 ALR 23; (2018) 272 A Crim R 69; [2018] HCA 53 at [80] per Kiefel CJ, Bell and Nettle JJ. 278 (2018) 93 ALJR 1; (2018) 361 ALR 23; (2018) 272 A Crim R 69; [2018] HCA 53 at [86] - [88] per Kiefel CJ, Bell and Nettle JJ. 279 (2018) 93 ALJR 1; (2018) 361 ALR 23; (2018) 272 A Crim R 69; [2018] HCA 53 at [94]-[100] per Kiefel CJ, Bell and Nettle JJ. -- 34 of 47 -- 35 protection of the common law right to refuse to answer any question except under legal compulsion and the very protection which the Parliament, through the ACC Act, has ordained that he or she should have… [80] In the particular circumstances of these cases, it is also no answer to the forensic disadvantage thus created to say that it may be overcome by the appointment of prosecutors who know nothing of the examinations. As the primary judge stated, compared to previous cases in which the effects of unlawful examination and dissemination of examination product have been considered, these cases involve an extraordinarily wide ranging, undocumented dissemination of examination product to AFP officers involved in the investigation process, including to those who would be required to give evidence at trial. The lack of clear records of dissemination makes it extremely difficult to assess how and by whom the examination product has been used to build the prosecution case or how it might inform prosecution witnesses’ responses to questions asked in cross-examination at trial.” [261] Later at [95], it was said: “… the process for the investigation, prosecution and trial of an indictable Commonwealth offence is entirely accusatorial or, consequently, counter to the precept that, subject to statute, an accused is not to be called upon to answer an allegation of wrongdoing until presented with particulars of the evidence on which it is proposed to rely in proof of a charge and then only to enter a plea of guilty or not guilty when and if charged. As was made plain by the majority in X7 (No 1), those fundamentals of the criminal justice system comprise the common law “right to silence”, which includes the substantive right of any person to refuse to answer any question except under legal compulsion and the privilege of any person to refuse to answer any question, and which, subject to statute, applies at all stages of the process to all persons suspected of an offence whether charged or not yet charged as well as at trial.” [262] At [195], Keane J noted: “The Court of Appeal, adopting a focus upon whether there was a prospect of actual forensic disadvantage to the appellants, concluded that the trial judge might give directions with a view to ensuring that the trials might proceed fairly to the appellants. For example, it was said that the trial judge might give directions to ensure that an investigator cross-examined by counsel on behalf of the appellants should not explain his or her actions by reference to what the investigator had learned from the unlawful examinations. For the court to give directions so that the evidence at trial might be distorted in this way, for no reason other than to accommodate the lawlessness of the ACC and Sage, would bring the administration of justice into disrepute. It would be to embroil the court in the invidious process of accommodating the wish of the executive government to prosecute the appellants notwithstanding the executive’s disregard of the legislative purpose that such accommodation should not be necessary. It would -- 35 of 47 -- 36 also detract from the fundamental presupposition of the trial that it is the jury that is to be the constitutional tribunal of fact.” [263] At [197], Keane J referred to two fundamental policy considerations that the court had held to be material to whether the prosecution of criminal proceedings is an abuse of process referring to Moti v The Queen:280 “The first of these considerations [in Moti] was ‘the public interest in the administration of justice [that] requires the court to protect its ability to function as a court of law by ensuring that its processes are used fairly by the State and citizen alike.’ The second consideration was that ‘unless the court protects its ability so to function in that way, its failure would lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice.’” [264] The next case relied on was R v Seller; R v McCarthy.281 In that case, the New South Wales Court of Criminal Appeal considered a case where the primary judge had stayed the prosecution against the accused. The Court overturned that decision. [265] The respondents had been required to submit to compulsory examination by the ACC. Some of this material had been disseminated by the ACC to prosecuting authorities. The respondents were then charged. The primary judge had found the dissemination contravened directions given, and the respondents had lost their right to keep the examinations confidential from the prosecution. [266] At [30], Bathurst CJ noted the trial judge’s findings that neither the CDPP’s officer in charge of that case nor the senior and junior counsel retained had read the transcripts. However, a witness (a financial analyst) had the transcripts available to him. [267] At [71], Bathurst CJ upheld the trial judge’s finding that some officers in the CDPP would have read the transcripts; however, at [77], his Honour accepted that there was not an interference with the administration of justice, as the respondents had not been charged at the time of the examinations. [268] At [80], his Honour also found that the Act in question did abrogate the privilege against indirect or derivative self-incrimination. At [97], his Honour cited Spigelman CJ’s judgment in NSW Food Authority v Nutricia Australia Pty Limited,282 where his Honour held that whether the indirect or derivative use of compulsorily obtained material constitutes a relevant alteration or abridgment of the accusatory system is a question of fact and degree. For example a fair trial can be had if the interview lead to the obtaining of admissible evidence e.g. bank records. On the other hand, the position may be different if the material discloses defences or explanations of transactions by the accused which he or she will raise at the trial. [269] At [110], Bathurst CJ then noted that stays should only be granted in extreme cases and there must be nothing that a trial judge can otherwise do. 280 (2011) 245 CLR 456. 281 (2013) 273 FLR 155; [2013] NSWCCA 42. 282 (2008) 72 NSWLR 456; [2008] NSWCCA 252 at [172] per Spigelman CJ. -- 36 of 47 -- 37 [270] There was no evidence to justify the conclusion that the trial would suffer from a fundamental defect ([114]). With regards to the financial analyst, it might be that his evidence would be excluded by the trial judge ([115]). [271] The matter came back before the New South Wales Court of Criminal Appeal in R v Seller; R v McCarthy.283 The primary judge had excluded the evidence of the financial analyst as the admission of the evidence would infringe the defendants’ right to a fair trial. The Crown sought to appeal this decision. The appeal was refused. [272] It was held that the compulsorily acquired material had assisted the witness in the preparation of his statements. The cross-examination might not be limited to asking about his calculations and reconciliations. If he were to adduce evidence, this would alter the accusatorial process in the fundamental sense as described in X7 and Lee (No 2).284 [273] In R v Kinghorn (No 4),285 the accused was charged with three counts which alleged he defrauded and made false representations to the Taxation Commission. He was compulsorily interviewed under s 264 of the Income Tax Assessment Act 1936 (Cth). The accused contended the prosecution was obliged to disclose documents as to how the interview was used in the investigation, the formulation of charges and in assembling the Crown case. The accused filed a notice of motion to stay the charges on the basis of Strickland. The Commissioners of Taxation and the Australian Federal Police claimed privilege on documents sought by the accused. Therefore, unlike the present case, the issue before Adamson J was the issue of privilege.286 The relevance of this case is that, at [42], the CDPP accepted the correctness of Leach. At [121], the CDPP accepted the ratio of Leach was: “If the only relevance of a compulsory transcript is to prove a tax related fraud offence against that examinee then the crown cannot use and should not keep or further disclose the transcript to consider the charges to formulate them to prepare the prosecution case or to use it in evidence against the examinee in a criminal trial.” Principles from the cases [274] The following principles may be distilled from the cases: (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;287 (b) The prosecution ought not be provided with, nor make any use of, any defences disclosed by the accused by compelled evidence;288 (c) The evidence which the prosecution is to call is not to be influenced by compelled evidence;289 (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 283 (2015) 249 A Crim R 549; [2015] NSWCCA 76. 284 (2015) 249 A Crim R 549; [2015] NSWCCA 76 at [122]-[123] per Bathurst CJ. 285 [2019] NSWSC 1420. 286 R v Kinghorn (No 4) [2019] NSWSC 1420 at [11]. 287 R v Leach at [58]. 288 Lee v R (2014) 253 CLR at [41]. 289 X7 at [124]; Strickland v DPP (2018) 361 ALR 23 [2018] HCA 53 at [76]. -- 37 of 47 -- 38 able to be led by the prosecution at the trial unaided by any of the matters identified in (a) to (c) above;290 (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;291 (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;292 and (g) Consequently, the process for investigation, charge, prosecution and trial of the indictable offence is entirely accusatorial.293 Use of derivative evidence [275] Can the police who lawfully have a compulsory interview use it to obtain other evidence? [276] In X7 at [58], French CJ and Crennan J noted: “It can be acknowledged that there may be some circumstances in which the fairness of a trial can be reconciled with the admissibility of derivative evidence. Not all derivative evidence is of the same quality and derivative evidence may emerge from multiple independent sources. At the outset of an investigation, it may not be clear what derivative evidence will be critical to proving offences, or from which independent sources such evidence might be obtained. However, to the extent that the prosecution may wish to rely on a piece of derivative evidence which was independently obtained, but which was the subject of a protective direction, the CEO has a power to vary a direction given under s 25A(9), provided that the fair trial of the accused is not thereby prejudiced. In any event, the trial judge has a discretion in relation to the admissibility of such evidence, and the court has a power to control any use of derivative evidence which amounts to an abuse of process.” [277] In R v Seller; R v McCarthy,294 Bathurst CJ noted: “[102] That does not mean that s 25A would prohibit all derivative use of the material. So, for example, I do not believe a fair trial generally will be prejudiced by the use of information obtained during the course of an examination to obtain admissible evidence. Thus, answers which would tend to indicate the availability of admissible evidence could properly be used for this purpose. For example, in cases such as the present this may include the location of bank accounts. Further, it does not seem to me that the use by the prosecution of documents produced during the course of an examination which supported the Crown case, usually would compromise a fair trial. However, the question of whether derivative use of such material could have that effect will always depend on the material in question and the circumstances of its use. 290 X7 at [124]. 291 Lee v R (2014) 253 CLR at [51]. 292 Leach at [51]. 293 X7 at [46], [101]-[102], [124], [159]-[160]; Lee (No.1) at [159] and Lee (No.2) at [32]. 294 (2013) 273 FLR 155; [2013] NSWCCA 42 at [102]-[104]. -- 38 of 47 -- 39 [103] This in my opinion is consistent with what was said by Mason CJ and Toohey J in Caltex supra at 503, and by Spigelman CJ in Nutricia supra at [164]-[174] (see pars [93] and [96] above). It is also consistent with what was said by McClellan CJ at CL in CB supra at [99]. It also means that s 25A would not preclude the ACC from carrying out the investigatory functions imposed on it by s 7A and s 12 of the Act. [104] The position is different in my opinion if the provision of the material in question discloses 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. This would be contrary to the principles stated by Gibbs CJ in Sorby supra, and by Deane, Dawson and Gaudron JJ in Caltex supra, that the onus is on the Crown to prove its case and that the prosecution must prove it without reliance on incriminating answers. To provide to prosecutorial authorities material compulsorily obtained relating to such matters could compromise a fair trial in accordance with these principles.” [278] In Seller,295 Bathurst CJ further noted at [110]: “I do not think that the fact that any potential witness was present during the compulsory examination of a person subsequently charged or who had read the transcript of evidence given at the compulsory examination, in all cases, would alter a trial in a fundamental respect in the sense described in X7 and Lee (2014). However, it is unnecessary to decide that point.” [279] Fullerton J said at [229]: “I would wish only to add my own view as to whether Lee v The Queen is authority for the proposition for which the respondents contend, namely that a witness who has been privy to compulsorily acquired information must be excluded from giving evidence in the trial of an accused. I agree with the Chief Justice that it is not necessary on this appeal to decide whether any witness that the Crown might call at trial who has been exposed to compulsorily acquired information must be excluded. I would, however, venture the view that in a particular case that question will depend on the material the witness has been exposed to, and the evidence the witness is to give at trial in proof of the charge or charges, in the context of the issues in dispute at trial in an adversarial setting where the Crown has the obligation of proving the guilt of an accused.” [280] In R v Harper,296 the appellant was convicted after a trial by jury of trafficking in dangerous drugs. The appellant had been interviewed by the ACC. Queensland police officers were present at this hearing. As a result of evidence given by the appellant at the hearing, a search warrant was obtained by one of the police and was executed. 295 (2015) 249 A Crim R 549; [2015] NSWCCA 76. 296 (2015) 257 A Crim R 317; [2015] QCA 273. -- 39 of 47 -- 40 Incriminating evidence was located. Furthermore, during the hearing, the appellant disclosed his defence, namely that he used hypophosphorous acid to clean his trucks. [281] The appellant submitted that the use by the police of his evidence at the compulsory hearing resulted in an unfair trial. He relied on X7 and Lee. [282] The court noted at [124] that at the end of each ACC examination, the examiner made a non-publication order, but that the examination could be published to members of law enforcement agencies. [283] The court noted that the focus in X7 was on post-charge questioning. [284] After examining the authorities, the court noted at [143] that the seizure of the glassware and chemicals did not alter the fundamental nature of the criminal trial. [285] As to the defence raised, the police already had a witness which would warrant their pursuing the evidence. At [145], it was again said this did not alter the fundamental nature of the criminal trial. [286] In NS v Scott,297 the Queensland Court of Appeal considered a situation where the appellant had been charged with trafficking, but was required to give evidence before the Crime and Corruption Commission. Whilst the hearing was closed, a police officer who had been involved in the investigation of the charge was instructing counsel assisting. The presiding officer made an order prohibiting the publication of any answers to any prosecutorial agency involved in the appellant’s prosecution. At the conclusion of the hearing, the presiding officer revoked the original order and replaced it with a written consent permitting publication of the information obtained to any Queensland Police Officer involved in the investigation except the arresting officer on any charges. The purpose of this was so there could be derivative use of the information. The appellant refused to answer questions, claiming he had a reasonable excuse to do so on the basis that his criminal trial would be radically altered if forced to answer questions. The primary judge held that the orders made by the presiding officer appropriately limited the use to which the information could be put. The appellant’s appeal was dismissed. [287] The court held that the legislation removed any entitlement to rely on privilege against self-incrimination. The act was designed to change the accusatorial process of criminal justice. The risk of prejudice to his trial was addressed by remedial mechanisms. [288] The use of derivative evidence does not necessarily prejudice a fair trial. It depends on the nature of the evidence and whether it is available from other sources. It was open to the appellant to object to the admission of the evidence on the grounds of unfairness.298 [289] I note NS v Scott was followed recently in PRS v Crime and Corruption Commission.299 297 [2018] 2 Qd R 397; (2018) 269 A Crim R 284; [2017] QCA 237. 298 [2018] 2 Qd R 397; (2018) 269 A Crim R 284; [2017] QCA 237 at [39]. 299 [2019] QCA 255 at [77]. -- 40 of 47 -- 41 Findings [290] Any findings I make in this case are made on the balance of probabilities. [291] I accept it is for the defendant to prove his case, but in some respects there is an evidential onus on the CDPP e.g. as to the extent of the dissemination of the interview. [292] I also note that many of the facts were not disputed by the CDPP, nor could they be, as per the following admissions: (a) The CDPP admits that the power to compel a person to give evidence under oath under s 355 abrogates the common law right against self- incrimination;300 (b) The CDPP also admits that the TAA does not authorise the disclosure to or use by a person concerned in the criminal prosecution of the examinee of an interview for the purposes of considering the charges against the examinee, the formulation of charges against the examinee, the use and the preparation of the prosecution of such charges, and evidence for the criminal trial of such charges to prove the guilt of the examinee;301 (c) The CDPP accepts that the disclosure to or use by a person concerned in the prosecution of the examinee of the content of a s 355 examination for any of the aforementioned purposes conflicts with the fundamental principle that the onus of proof rests on the prosecution and the prosecution cannot compel a person to assist it;302 (d) The CDPP admits that the referral to the DPP included the transcript;303 (e) The CDPP admits that the statements of Ms McDonald and Mr Heath refer to the interview;304 (f) The CDPP admits that Ms O’Bryan, who conducted the ATO investigation and used the transcript as part of the investigation, also provided a witness statement;305 (g) The CDPP accepts that the interview was one factor relied on in the obtaining of the search warrants;306 (h) The CDPP accepts that the referral from Ms O’Bryan to the CDPP included the interview, and the prosecution used it as a part of the process of reviewing the brief;307 (i) The CDPP accepts the interview was disseminated to numerous officers of the CDPP, but contends that the full extent is able to be identified.308 I might say in this regard, I accept the evidence of Ms Manville and Ms Murphy; 300 Exhibit 8, Annexure A, para 1; Exhibit 2, para 66; and Leach at [28] and [42]. 301 Exhibit 2, defendant’s submissions, para 64; Exhibit 8, Crown’s submissions, Annexure A, para 1; and Leach at [39], [85], [88], [89], [95], [97], ad [99]-[103]. 302 Exhibit 2, defendant’s submissions, para 65; Exhibit A, Annexure A, para 2. 303 Exhibit 8, Annexure A, para 3. 304 Exhibit 8, Annexure A, para 4; Leach at [12]. 305 Exhibit 8, Annexure A, para 5; Leach at [12]. 306 Exhibit 8, Annexure A, para 6; Exhibit 5, affidavit of Ms Manville, exhibit “BD”. 307 Exhibit 8, Annexure A, para 7; Leach at [10]. 308 Exhibit 8, Annexure A, para 8. -- 41 of 47 -- 42 (j) The CDPP accepts the evidence table (exhibit 11A) was produced by the CDPP as an internal aid and it made references to the transcript of the compulsory interview;309 (k) The CDPP accepts certain statements of Mr de Graff and Mr Lincoln- Smith referred in part to the interview;310 and (l) The CDPP accepts the particulars of the charges were prepared in consideration of the whole brief of evidence, including the interview.311 [293] I find that the ATO found out about the existence of Mr de Graff, Mr Lincoln-Smith and the facts of count 44 by reason of disclosures made by the defendant in the compulsory interview. [294] However, it is my view that this information was lawfully obtained by the ATO and lawfully given to Ms O’Bryan. [295] It is my opinion that Ms O’Bryan was entitled to use the interview to continue her investigations into this matter. I find she was entitled to speak to these witnesses and, if necessary, bring a charge; however, she was not permitted to disclose the contents of the interview to the witnesses. [296] It is a question of degree to be decided in each case, which depends on its own facts. [297] For example, I would have thought this case much more akin to Strickland if the defendant had already been charged when the compulsory interview occurred. [298] I consider the principles in Bunning v Cross312 provide important guidance in a case such as this, bearing in mind of course the important principles discussed in cases such as X7 and Strickland. [299] The matters to be considered include whether there was a deliberate breach of the law by the authorities (or a mistake), whether the illegality has affected the cogency of the evidence, the ease with which the evidence could have been legally collected, the seriousness of the offence, the seriousness of the unlawful conduct by the authorities, and the intention of the parliament. Of course, one cannot ignore the public interest in bringing to conviction those who have committed offences.313 [300] In this case, I do not consider that I should entirely exclude the evidence of the witnesses either under section 130 of the Evidence Act 1977 (Qld) or under the common law. [301] In the end, Ms O’Bryan could have achieved the same result by asking the questions of Mr de Graff and Mr Lincoln-Smith without divulging what the defendant said in the interview. It is improbable, on my assessment of the case, that they would have agreed they gave him authority to take money from the estate to repay the ATO for GST refunds allegedly obtained fraudulently. I do not consider any unlawful disclosure has affected the cogency of the evidence. 309 Exhibit 8, Annexure A, para 9; Leach at [12]. 310 Exhibit 8, Annexure A, para 10. 311 Exhibit 8, Annexure A, para 13. 312 (1978) 141 CLR 54; [1978] HCA 22. 313 (1978) 141 CLR 54, 78 – 80 per Stephen and Aickin JJ; [1978] HCA 22. -- 42 of 47 -- 43 [302] I have determined the same answer would have been given by Mr de Graff and Mr Lincoln-Smith, i.e. there was no authorisation of the taking of the money. [303] I do not consider any forensic advantage has been lost. The cross-examination will always be the same. The real complaint is that the ATO did not know about the witnesses. Indeed, there were matters raised at the trial (namely the POA issue) not disclosed in the interview. [304] I weigh in to the equation the serious nature of the charge. [305] I also accept that Ms O’Bryan did not flagrantly and dishonestly breach the law. As to the defence submissions in exhibit 30 I do not agree. I consider Ms O’Bryan’s response was responsive to Ms Murphy’s request. Also the response confirms my view that Mr Fu would have been spoken to regardless of the interview. To that I can add Mr Varney and Ms Hoy. Also the matters raised do not affect my finding that it was lawful for ATO officers to use the interview for their investigations. [306] I would admit the evidence of the witnesses with the proposed redactions. [307] I consider Mr Fu is in a similar situation. Moreover, the ATO knew about him before the interview. [308] Many of the questions in exhibit 23 would have been asked anyway, and I think it is improbable to suggest he would have given a different response. [309] I accept there was some disclosure of a limited part of the interview in exhibit 9, but it was minor in the scheme of things. [310] I do not consider any forensic advantage has been lost. The cross-examination will always be the same. There were issues raised as to Mr Fu’s knowledge at the trial which were not disclosed in the interview. [311] I weigh in to the equation the serious nature of the charges. [312] I also accept that Ms O’Bryan did not flagrantly and dishonestly breach the law. [313] I would admit the evidence of the witness. [314] I find that Ms McDonald formed the view that the defendant was guilty of the offences in part because of the interview. Having said this, I think she is in a different position to Mr Tang in Seller. Mr Tang was giving evidence of calculations. It would have been impossible for him to ignore the interview. I consider Ms McDonald is in a different position. Provided she gives evidence without referring to the interview, I consider her evidence admissible. [315] Ms O’Bryan is in a similar position to Ms McDonald. Provided she gives her evidence without reference to the interview, I think it is admissible. [316] However, she should not be the arresting officer or be involved with charging the defendant as was the case in NS v Scott. [317] Obviously, Mr Heath cannot give any evidence about the interview. [318] I find that the search warrant was obtained in part by reason of the interview. Documents seized during the search are referred to in the witness statements, were -- 43 of 47 -- 44 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. [319] 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. [320] I find the complaint, as drawn by the CDPP and sworn to by Ms O’Bryan, relied in part on the interview. I find that the fact that a new prosecution team has been appointed without access to the interview does not change that fact. [321] The fact is, the prosecution relied in part on the interview to draft the charges. In this regard, I refer to the evidence of Ms Murphy and the matrix, exhibit 11A. This is exemplified by the following table: Charge Reference to interview Reference to search warrant documents Charge 1 Page 2 Trust account records page 1 Charge 2 Page 3 Trust account records page 3 Charge 3 Page 4 Trust account records page 4 Charge 4 Page 5 Trust account records page 5 Charge 5 Page 6 Trust account records page 6 Charge 6 Page 7 Trust account records page 7 Charge 7 Page 8 Trust account records page 8 Charge 8 Page 9 Trust account records page 9 Charge 9 Page 10 Trust account records page 10 Charge 10 Page 11 Trust account records page 11 Charge 11 Page 12 Charge 22 Page 23 Trust account records page 23 Charge 23 Page 24 Trust account records page 24 Charge 24 Page 25 Trust account records page 25 Charge 25 Page 26 Trust account records page 26 Charge 26 Page 27 Trust account records page 27 Charge 27 Page 28 Trust account records page 28 Charge 28 Page 29 Trust account records page 29 Charge 29 Page 30 Trust account records page 30 Charge 30 Page 31 Trust account records page 31 Charge 31 Page 32 Trust account records page 32 Charge 32 Page 33 Trust account records page 33 Charge 38 Trust account records page 39 Charge 44 Page 45 Trust account records page 45 [322] It is of some moment that the trust ledgers are still referred to in exhibit 11B. [323] Also, the fact there is a new prosecution team and that documents have been quarantined does not change that the charges now before the court are based on the complaint, based in part on disclosures made in the interview, which was transmitted to this court.314 Exhibit 25 shows that the committed charges, the charges in the 314 Exhibit 10. -- 44 of 47 -- 45 complaint and those on the indictment mirror each other aside from, in some cases, the charge number. [324] Based on the majority judgment in Leach, a prosecution on the present charges with the present evidence is compromised. [325] I find, though, that many of the documents obtained during the investigation, such as the BAS statements and alleged false invoices, were lawfully obtained and may be used at any future prosecution of the defendant on charges 1 to 44. [326] In light of the findings of the majority of the Court of Appeal, I find the interview was unlawfully disclosed to the CDPP and was unlawfully used in the preparation of the brief of evidence in the charges. [327] Based on the authorities to which I will later refer, I consider the defendant’s fundamental right to a fair trial on the present indictment has been breached. [328] I consider the reasoning of Strickland is of particular relevance to this case. I find there has been a fundamental alteration of the accusatorial nature of this trial; however, I do not consider the matter is irrevocably lost. [329] The fact is that the BAS statements and other documentary evidence (aside from the tainted evidence to which I have referred) may be used. Disposition [330] It is arguable that the prosecution as instituted and now before the court is unconstitutional, as it breaches the defendant’s right to a fair trial enshrined in section 80 of the Constitution,315 although I note there are reasonable arguments the other way.316 I do not consider I need to determine this issue, as there are other remedies which I should consider, namely a stay or a quashing of the charges, or the exclusion of evidence.317 [331] I do not consider the remedy of a stay is appropriate. [332] The law is clear that a stay may only be granted in extreme or exceptional cases,318 and other remedies need to be considered before a permanent stay is granted.319 Also, one should not exclude from consideration the public interest in having serious criminal charges being tried before the courts.320 [333] I propose to quash charges 1 to 44. This obviously leaves open the prospects of new charges with untainted evidence, if it is thought there is a case to answer. [334] I do acknowledge the following steps have been taken by the CDPP. 315 Alqudsi v The Queen (2016) 258 CLR 203; [2016] HCA 24 at [94], [115] per Kiefel, Bell and Keane JJ, [167], [168] per Nettle and Gordon JJ; and X7 at [160] per Kiefel J. 316 Sorby v Commonwealth (1983) 152 CLR 281, 308; [1983] HCA 10. 317 Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386, 468 per Kirby J; [2006] HCA 41 at [205] per Kirby J; Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29 at [32]-[33]; Exhibit 8 paras 8 – 30. 318 Jago v District Court (NSW) (1989) 168 CLR 23, 31 per Mason CJ, 53 per Brennan J. 319 Jago v District Court (NSW) (1989) 168 CLR 23, 34 per Mason CJ. 320 Jago v District Court (NSW) (1989) 168 CLR 23, 50 per Brennan J. -- 45 of 47 -- 46 [335] 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. [336] Secondly, the CDPP will not rely upon any part of the compulsory interview as part of its case. [337] Thirdly, the CDPP has removed or redacted all material relating to the compulsory interview from the brief of evidence. [338] 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. [339] 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. [340] However, despite these steps, I do note the interview was on the eTrial website, but it has now been removed. [341] These are all steps relevant to whether I quash or stay the indictment. [342] I do not consider that the difficulties encountered at the first trial have been surmounted by the steps taken by the CDPP. [343] The fact remains that, contrary to authority, the charging process and parts of the investigation and trial processes have breached the defendant’s right to a fair trial. But I do find these steps are apt to ensure a fair trial with new charges and evidence untainted by the compulsory interview. [344] It is clear that Ms Manville was mistaken about the interview not being on the eTrial website, but that has now been rectified. I am not concerned about the existence of the Leach judgment and the interview being on other court files. A fresh team of Counsel and solicitors will appropriately conduct the trial afresh. There is no need for anyone to read the other court files, and the jury will be instructed to only have regard to the evidence in this trial. Juries are expected to faithfully follow the directions of the trial judge. [345] I am satisfied that 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 the compulsory interview). [346] In my view, the use of compulsory interviews by the ATO is an important part of the ATO’s role in protecting the integrity of the Australian taxation system. -- 46 of 47 -- 47 [347] The abrogation of the right to claim privilege may be abrogated by a clear law of parliament,321 as is the case here. [348] As Perry J noted in Commissioner of Taxation v Warner,322 sections like s 353 confer broad powers on the Commissioner to undertake broad inquiries for the purpose of the discharge of his or her duty to administer tax laws, to ascertain the extent of tax liability (if any) and to pursue the recovery of tax-related liabilities. [349] I certainly see nothing wrong with the ATO engaging in such interviews prior to charge; however, in light of the majority decision in Leach, the ATO needs to be careful not to disclose the interview to the prosecuting authority, or the contents of the interview to witnesses. Conclusion [350] For the reasons I have given, I quash indictment 1479/2013. 321 Mortimer v Brown (1970) 122 CLR 493, 495 per Barwick CJ; Hamilton v Oades (1989) 166 CLR 486, 499 per Mason CJ, 508 per Dawson J. 322 (2015) 244 FCR 479, 487; [2015] FCA 659 at [26]. -- 47 of 47 --