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Court of Criminal Appeal 12 December 2014

Beckett v R

[2014] NSWCCA 305

Fraud & dishonestyPublic order & justice offences
CRIMINAL LAW CRIMINAL APPEAL ACT 1912, S 5F PERMANENT STAY OF PROCEEDINGS ABUSE OF PROCESS PERMANENT STAY OF PROCEEDINGS ABUSE OF PROCESS

Citation: Beckett v R [2014] NSWCCA 305
Court: NSW Court of Criminal Appeal
Date: 12 December 2014
Judges: Beazley P (principal judgment); R A Hulme J and Bellew J (agreeing)

Background

The applicant was a solicitor authorised to use the Office of State Revenue's Electronic Duties Returns scheme. During a compulsory examination conducted by OSR investigators under s 72 of the Taxation Administration Act 1996, she provided copies of two cheques bearing altered issue dates and knowingly made false statements to the investigators.

The OSR initially charged the applicant with offences under the Taxation Administration Act. The Director of Public Prosecutions then took over the prosecution and filed an indictment charging her with perverting the course of justice under s 319 of the Crimes Act 1900, with making a false statement under oath under s 330 as the alternative count.

The applicant applied by notice of motion in the District Court to quash the indictment and permanently stay the prosecution as an abuse of process. Sweeney DCJ dismissed that application. The applicant then sought leave to appeal under s 5F of the Criminal Appeal Act 1912.

  • Whether the prosecution was commenced and maintained in bad faith (mala fides)
  • Whether the applicant's conduct occurred within "the course of justice" as required for an offence under s 319 of the Crimes Act
  • Whether the Taxation Administration Act, s 72, abrogated the right to silence and the privilege against self-incrimination
  • Whether information and evidence obtained through the compelled interview could be used in a prosecution for an offence under the Crimes Act
  • Whether the applicant's answers in the compelled interview were admissible as admissions under s 90 of the Evidence Act 1995

Decision

Mala fides: The Court found no abuse of process in the way the interview was conducted. There is no statutory requirement that evidence or information obtained under a s 72 compulsory examination be used only in prosecutions for taxation law offences. The applicant was not deceived or tricked into believing she was insulated from other areas of criminal law. The Court also noted that an inadvertent misstatement by an investigating officer does not, of itself, constitute improper conduct for the purposes of s 138 of the Evidence Act.

"Course of justice" under s 319: This issue determined the outcome on count 1. The Court held that a "course of justice" within the meaning of s 319 does not commence until the jurisdiction of a court or competent judicial tribunal has been invoked. Because the applicant's conduct occurred entirely during an administrative tax investigation, before any court's jurisdiction was engaged, that conduct was incapable of constituting the offence of perverting the course of justice. Count 1 had to be permanently stayed. In reaching this conclusion, the Court disapproved of the reasoning in The Queen v OM [2011] NSWCCA 109 to the extent it suggested otherwise.

Abrogation of the privilege against self-incrimination: The Court held that s 72 of the Taxation Administration Act impliedly abrogates both the right to silence and the privilege against self-incrimination. This followed from the broad language of the compulsion provisions and from the wide disclosure regime in ss 82, 84 and 85 of that Act, which authorise disclosure of information obtained under s 72 to a range of persons and entities.

Use of compelled information and admissibility as admissions: The Court upheld the disclosure of information to the Crown Solicitor as permissible under both s 110(1)(e) of the Legal Profession Act 2004 and s 82(d) of the Taxation Administration Act. On the admissions question, the Court found that the applicant's false statements were not "representations" capable of being admissions under s 90 of the Evidence Act. Rather, those statements were the subject matter of the charges themselves and could not simultaneously function as admissions to some other fact.

Orders Made

  • Leave to appeal granted
  • Count 1 on the indictment permanently stayed
  • Appeal otherwise dismissed

Key Takeaways

  • A "course of justice" for the purposes of s 319 of the Crimes Act 1900 does not begin until a court or competent judicial tribunal's jurisdiction has actually been invoked. Conduct occurring solely within an administrative investigation falls outside that definition.
  • Under the Taxation Administration Act 1996, s 72, both the right to silence and the privilege against self-incrimination are impliedly abrogated, arising from the compulsion provisions read together with the broad disclosure regime in ss 82, 84 and 85.
  • No restriction prevents information obtained through a compelled s 72 examination from being used in a prosecution for a Crimes Act offence, provided the relevant disclosure pathways are satisfied.
  • Where allegedly false statements made during a compelled interview are themselves the conduct charged, those statements cannot also be treated as admissions under s 90 of the Evidence Act 1995.
  • An inadvertent misstatement by an investigating officer does not automatically render the conduct improper for the purposes of s 138 of the Evidence Act 1995.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 319, 330
- Criminal Appeal Act 1912 (NSW), s 5F
- Taxation Administration Act 1996 (NSW), ss 37, 72, 82, 84, 85
- Evidence Act 1995 (NSW), ss 90, 138
- Legal Profession Act 2004 (NSW), s 110(1)(e)
- Director of Public Prosecutions Act 1986 (NSW), s 17
- Duties Act 1997 (NSW)

Key Cases:
- R v Rogerson [1992] HCA 25; 174 CLR 268
- R v Einfeld [2008] NSWCCA 215; 71 NSWLR 31
- The Queen v OM [2011] NSWCCA 109; 212 A Crim R 293 (disapproved)
- Sorby v Commonwealth [1983] HCA 10; 152 CLR 281
- A v Boulton [2004] FCAFC 101; 136 FCR 420
- R v Seller; R v McCarthy [2013] NSWCCA 42
- Attorney-General (NT) v Kearney [1985] HCA 60; 158 CLR 500
- Edwards v R [1993] HCA 63; 178 CLR 193
- Ridgeway v The Queen [1995] HCA 66; 184 CLR 19
- Gedeon v R [2013] NSWCCA 257; 280 FLR 275
- R v Horton (1998) 45 NSWLR 426 (distinguished)
- R v Esposito (1998) 45 NSWLR 442 (distinguished)
- Coco v R [1994] HCA 15; 179 CLR 427
- Daniels Corporation International Pty Ltd v ACCC [2002] HCA 49; 213 CLR 543