The NSW Court of Appeal has allowed the Crown’s appeal and ordered the setting aside of a permanent stay of any proceedings on indictments against 2 men concerning alleged false tax deductions claimed regarding whisky distillation schemes. That stay had been granted in the 17 August 2012 decision of the NSW Supreme Court in R v Seller; R v McCarthy [2012] NSWSC 934.
In March 2012, the Commonwealth Director of Public Prosecutions (CDPP) presented an indictment to the Supreme Court, which charged that the 2 men had conspired with each other and others “with the intention of dishonestly influencing a Commonwealth public official, namely the Commissioner of Taxation, in the exercise of his duties as a public official”. The Crown alleged that each of the men, together with a Mr Phillip Egglishaw and a Mr Philip de Figueiredo, entered into an agreement to make false representations to ATO officers with the intention of dishonestly influencing them to accept deductions claimed in the 1999, 2000 and 2001 income tax returns of taxpayers who had participated in particular schemes involving the distillation of whisky in those years. The Crown alleged that the representations, which were made by the 2 men, were to convey false and misleading information.
During the course of its investigation, the Australian Crime Commission issued summonses for the compulsory examination of the 2 men, in the express contemplation of specific charges. Both men gave evidence under oath in response to the summonses. The examinations were recorded and transcripts prepared. The ACC examiner issued non-publication directions in respect of the evidence given by both men, but those directions were later varied by an authorised delegate of the CEO of the Crime Commission to permit the distribution of the transcripts of the examinations and other material to the prosecution authorities (including the CDPP), and the ATO.
The 2 men were committed to stand trial and after being arraigned in the NSW Supreme Court, they filed motions seeking that the trial of the indictment against each of them be permanently stayed. In its August 2012 decision, the NSW Supreme Court said the conduct of the Crime Commission, in conjunction with the CDPP, had deprived the men of the protection, which the law ensured. According to the Court, any trial would not be fair or in accordance with the adversarial process, and it therefore ordered that any proceedings on the indictments presented on 14 March 2012 against the 2 men, “be, and hereby are, stayed”.
On appeal to the Court of Appeal, that Court held that the primary judge had erred in the exercise of his discretion in failing to consider whether the dissemination of the material and its reading by some officers of the CDPP resulted in a fundamental defect in the trial process such that a stay should be ordered. Bathurst CJ said the primary judge, while correctly concluding “there was a risk of prejudice such that a direction should have been given, did not consider whether such prejudice had in fact occurred”. The Court of Appeal allowed the appeal and ordered that the stay be set aside.
(R v Seller; R v McCarthy [2013] NSWCCA 42, NSW Court of Appeal, Bathurst CJ, McClellan CJ at CL, and Rothman J, 1 March 2013.)
[LTN 42, 4/3/13]