R v Kinghorn (No 2) [2019] NSWSC 989

R v Kinghorn (No 2) [2019] NSWSC 989

The adjournment was granted because the legality of the disclosures of the accused's compulsory examinations was significant to the privilege claims and any finding of apparent illegality on the current evidence risked being unsoundly based. Although the CDPP's conduct and errors in correspondence weighed against an adjournment, they were not sufficient to refuse it, particularly where the CDPP and Commissioners maintained that the disclosures were lawful and offered to provide evidence within a relatively short period.

Jurisdiction
Australia
Judgment Date
01 August 2019
Procedural Posture
Criminal Procedure Ruling Concerning Adjournment of Privilege Motions / Application by the Commonwealth Director of Public Prosecutions for an Adjournment on the Second Day of the Hearing of Motions for Adjudication of Privilege Claims
Outcome
Adjournment granted; costs of the adjournment reserved.
Legal Topics
['adjournment' 'compulsory Examinations' 'disclosure of Taxation Information' 'client Legal Privilege' 'litigation Privilege' 'public Interest Immunity' 'prosecutorial Disclosure' 'implied Waiver of Privilege']
['criminal Procedure' 'evidence' 'taxation' 'privilege'] ['adjournment' 'compulsory Examinations' 'disclosure of Taxation Information' 'client Legal Privilege' 'litigation Privilege' 'public Interest Immunity' 'prosecutorial Disclosure' 'implied Waiver of Privilege']

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Procedural Posture

Criminal Procedure Ruling Concerning Adjournment of Privilege Motions / Application by the Commonwealth Director of Public Prosecutions for an Adjournment on the Second Day of the Hearing of Motions for Adjudication of Privilege Claims

Legal Issues

  1. 1 ["Whether the notices of motion filed by the Commissioner of Taxation, the Commonwealth Director of Public Prosecutions and the Commissioner of the Australian Federal Police should be adjourned to permit evidence to be adduced about the legality of disclosures of the accused's s 264 examinations." "Whether the legality of disclosures of the accused's compulsory taxation examinations was significant to the privilege claims and possible waiver or non-attachment of privilege." "Whether the CDPP's earlier errors in identifying statutory sources of power justified refusing an adjournment."]

Ratio Decidendi

The adjournment was granted because the legality of the disclosures of the accused's compulsory examinations was significant to the privilege claims and any finding of apparent illegality on the current evidence risked being unsoundly based. Although the CDPP's conduct and errors in correspondence weighed against an adjournment, they were not sufficient to refuse it, particularly where the CDPP and Commissioners maintained that the disclosures were lawful and offered to provide evidence within a relatively short period.

Court Disposition

Adjournment granted; costs of the adjournment reserved.

Orders

  • ['Adjourn the notice of motion filed by the Commissioner of Taxation on 16 July 2019, the notice of motion filed by the Commonwealth Director of Public Prosecutions on 22 July 2019 and the amended notice of motion filed by the Commissioner of the Australian Federal Police on 30 July 2019 to 6 September 2019.'...