R v Kinghorn (No 4) [2019] NSWSC 1420

R v Kinghorn (No 4) [2019] NSWSC 1420

Imputed waiver of privilege has occurred due to inconsistency between prosecution's opposition to a stay application and the maintenance of privilege over documents evidencing dissemination or use of s 264 examination materials; exception in s 16(2A) ITAA 1936 (Cth) authorised disclosures to prosecutorial and investigative bodies; privilege is not lost by unlawful disclosure where disclosure was within duties; the Evidence Act or common law applies to privilege depending on identity of objecting party; accused is entitled to access to documents showing dissemination and use of s 264 information due to imputed waiver, but not all prosecution documents.

Jurisdiction
Australia
Judgment Date
18 October 2019
Procedural Posture
Criminal / Rulings on Privilege Motions During Pre Trial Proceedings
Outcome
Imputed waiver found for relevant privileged documents; privilege upheld for others.
Legal Topics
['subpoenas' 'legal Professional Privilege' 'waiver of Privilege' 'accusatory Principle' 'companion Principle' 'statutory Interpretation' 'disclosure Obligations' 'evidence Admissibility' 'prosecutorial Duty' 'relationship of Prosecutorial and Investigative Bodies']
['criminal Law' 'practice and Procedure' 'legal Professional Privilege'] ['subpoenas' 'legal Professional Privilege' 'waiver of Privilege' 'accusatory Principle' 'companion Principle' 'statutory Interpretation' 'disclosure Obligations' 'evidence Admissibility' 'prosecutorial Duty' 'relationship of Prosecutorial and Investigative Bodies']

Case Brief

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Procedural Posture

Criminal / Rulings on Privilege Motions During Pre Trial Proceedings

Legal Issues

  1. 1 ['Whether privilege is lost due to alleged unlawful disclosure of s 264 Income Tax Assessment Act examinations' "Whether prosecuting and investigative bodies' opposition to stay renders privilege inconsistent and imputedly waived" 'Whether Uniform Civil Procedure Rules r 1.9(4A) governs third party privilege objections' 'Whether disclosure was authorised under s 16(2A) of the Income Tax Assessment Act 1936 (Cth)' 'Whether partial or imputed waiver applies to privileged documents']

Ratio Decidendi

Imputed waiver of privilege has occurred due to inconsistency between prosecution's opposition to a stay application and the maintenance of privilege over documents evidencing dissemination or use of s 264 examination materials; exception in s 16(2A) ITAA 1936 (Cth) authorised disclosures to prosecutorial and investigative bodies; privilege is not lost by unlawful disclosure where disclosure was within duties; the Evidence Act or common law applies to privilege depending on identity of objecting party; accused is entitled to access to documents showing dissemination and use of s 264 information due to imputed waiver, but not all prosecution documents.

Court Disposition

Imputed waiver found for relevant privileged documents; privilege upheld for others.

Orders

  • ['Accused given access to documents evidencing dissemination and use of s 264 information; specific rulings made on samples and categories of documents.' 'ATO entitled to redact unrelated protected information under s 355-75 TAA.' 'Further orders and directions to be considered if necessary.']