Director of Public Prosecutions (Cth) v Kinghorn; Kinghorn v Director of Public Prosecutions (Cth) [2020] NSWCCA 48

Director of Public Prosecutions (Cth) v Kinghorn; Kinghorn v Director of Public Prosecutions (Cth) [2020] NSWCCA 48

Privilege claims by CDPP, ATO, and AFP upheld; prosecutorial duty of disclosure does not create imputed waiver of privilege. Disclosure of documents (Shouldice advice) only waived to the extent of substance voluntarily disclosed; statutory authority to communicate information under s 16(2A) ITAA not limited by s 3E TAA. Continuation of prosecution and opposition to stay motion does not of itself waive privilege. Orders by primary judge granting access to privileged documents in part are set aside.

Parties
Appellant/respondent: Commonwealth Director of Public Prosecutions; Appellant/respondent: Commissioner of the Australian Taxation Office; Appellant/respondent: Commissioner of the Australian Federal Police; Applicant/appellant/respondent: John Alan Kinghorn
Jurisdiction
Australia
Judgment Date
25 March 2020
Procedural Posture
Criminal Interlocutory Appeals / Appeal From Interlocutory Orders Regarding Privilege and Access to Documents
Outcome
Appeals by CDPP, ATO, and AFP allowed; Mr Kinghorn's appeal dismissed; leave to appeal granted to all parties except ground 2 for ATO and AFP; orders for disclosure of privileged documents set aside, liberty to apply granted within 21 days.
Legal Topics
Client Legal Privilege, Legal Professional Privilege, Prosecutorial Duty of Disclosure, Imputed Waiver of Privilege, Statutory Interpretation, Interlocutory Appeal, Accusatorial Principle, Companion Rule
Criminal Law Evidence Law Client Legal Privilege Legal Professional Privilege Prosecutorial Duty of Disclosure Imputed Waiver of Privilege Statutory Interpretation Interlocutory Appeal +2 more

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Parties

Commonwealth Director of Public Prosecutions

Appellant/respondent

Commissioner of the Australian Taxation Office

Appellant/respondent

Commissioner of the Australian Federal Police

Appellant/respondent

John Alan Kinghorn

Applicant/appellant/respondent

Procedural Posture

Criminal Interlocutory Appeals / Appeal From Interlocutory Orders Regarding Privilege and Access to Documents

Legal Issues

  1. 1 Whether communications between prosecuting and investigative bodies (CDPP, ATO, AFP) are subject to legal professional privilege
  2. 2 Whether privilege was lost by operation of s 125(1) Evidence Act due to alleged unlawful disclosure
  3. 3 Whether prosecutorial duty of disclosure requires waiver of privilege

Ratio Decidendi

Privilege claims by CDPP, ATO, and AFP upheld; prosecutorial duty of disclosure does not create imputed waiver of privilege. Disclosure of documents (Shouldice advice) only waived to the extent of substance voluntarily disclosed; statutory authority to communicate information under s 16(2A) ITAA not limited by s 3E TAA. Continuation of prosecution and opposition to stay motion does not of itself waive privilege. Orders by primary judge granting access to privileged documents in part are set aside.

Court Disposition

Appeals by CDPP, ATO, and AFP allowed; Mr Kinghorn's appeal dismissed; leave to appeal granted to all parties except ground 2 for ATO and AFP; orders for disclosure of privileged documents set aside, liberty to apply granted within 21 days.

Orders

  • Grant Mr Kinghorn leave to appeal; dismiss his appeal.
  • Allow CDPP appeal; set aside orders 1, 2 and 3 made 30 October 2019; grant liberty to apply within 21 days for further orders as necessary to give effect to reasons.