Proctor : February 2019
13 PROCTOR | February 2019 The Queensland Court of Appeal decision in R v Leach  QCA 131 (Leach) provides a welcome reminder for practitioners of fundamental principles that have been espoused by the High Court, and those which underpin an accused’s right to a fairly conducted criminal prosecution. The issue Legislation which provides for coercive powers and compulsory examinations is now common,2 and the exercise of these powers by investigative bodies happens regularly. Generally speaking, the legislative provisions under which the bodies exercise these powers abrogate the compelled person’s ability to claim privilege against self-incrimination. The practical effect of that abrogation is that a person compelled to answer questions under examination (such as at a hearing or an interview) cannot refuse to answer questions on the basis that the answer may tend to incriminate them, as to do so would render them liable to prosecution. For an inquisitorial purpose, this system presents itself as faultless, but where the cracks start to appear is in the interplay between compulsory examination powers and an accused’s right to a fair criminal prosecution. This issue is not a novel one; it is one which has plagued defence practitioners for decades. In recent years though, it has attracted much-needed judicial scrutiny, and a comprehensive articulation of some of the fundamental fairness principles underpinning Australia’s criminal justice system. The X7 and Lee cases In X7 v Australian Crime Commission & Another  HCA 29 (X7), after being charged with criminal offences and prior to his trial, X7 was served with a summons requiring his attendance at a compulsory examination at the Australian Crime Commission (ACC). A refusal to answer questions at such an examination, even if the answer tended to incriminate a person, was an offence.3 R v Leach1 is the next instalment in a series of cases that considers the implications of coercive powers and compulsory examinations in the criminal justice system. Report by Sarah Ford. Criminal law At the examination, X7 was asked questions relating to the subject matter of his criminal charges and, on day two of the examination, he declined to answer further questions. He was advised by the ACC that he would be charged for failing to do so. A majority of the High Court held that the ACC’s compulsory examination powers4 did not extend to requiring a person charged with a criminal offence to answer questions about the subject matter of that offence. To do so, would cause prejudice to the accused, and fundamentally alter the “accusatorial judicial process”. 5 Three months after X7 was delivered, the High Court decided Lee v New South Wales Crime Commission  HCA 39 (Lee (No.1)). The Lees had been charged criminally, and whilst those proceedings were on foot, the New South Wales Crime Commission applied to the Supreme Court for confiscation orders, along with orders for the examination (on oath) of the Lees. Those applications were made under the Criminal Assets Recovery Act 1990 (NSW). The subject matter of the examinations was likely to overlap with the subject matter of the criminal proceedings, and so, as in X7, the question for the High Court was whether the applicable legislation6 permitted the questioning of a person about the subject matter of that person’s pending criminal charges. By a majority, and in distinguishing X7, the High Court held that the Criminal Assets Recovery Act 1990 (NSW) did authorise the examination of a person who had been charged (but not yet tried) criminally. Moreover, the potential to prejudice an accused’s right to a fair trial was safeguarded by the legislature’s choice of the Supreme Court as the examination forum.7 The Lees later returned to the High Court, appealing their post-trial criminal convictions, in Lee v The Queen  HCA 20 (Lee (No.2)). Prior to being charged criminally, the Lees had been subjected to compulsory examinations by the New South Wales Crime Commission (pursuant to the New South Wales Crime Commission Act 1985). At the examinations, a non-publication direction in respect of the evidence was issued by the commission. Following the examinations, search warrants were executed and the Lees were charged. Before the Lees’ trial commenced, transcripts of their examinations were provided to police and to the Office of the Director of Public Prosecutions (DPP), and they were also shown to potential witnesses. It also became apparent that the DPP had used the transcripts to anticipate and prepare for potential defences. The Lees were convicted after trial and appealed those convictions on a number of grounds, one of which asserted a miscarriage of justice due to the release of the transcripts to the DPP. The High Court allowed the appeal and unanimously held that the trial had miscarried and the provision of the transcripts to the DPP was for a “patently improper purpose, namely the ascertainment of the appellants’ defences”. 8 Leach Some four years since Lee (No.2), the issue of compulsive examinations and their potential to jeopardise an accused’s right to a fair trial has resurfaced – this time in the Queensland Court of Appeal decision, R v Leach. In 2010 Leach was served with a notice from the Australian Taxation Office (ATO) pursuant to the Taxation Administration Act 1953 (Cth) requiring him to give evidence and produce documents. Similar to the notices served on X7 and the Lees, it was an offence for Leach to refuse to answer questions under examination. Following the examination and the ATO’s associated investigations, in 2011 the ATO referred Leach to the DPP. In doing so, the referring ATO investigator provided to the DPP the transcript of Leach’s compulsory examination, having formed the view that she was authorised to pursuant to s355-50 of the Taxation Administration Act 1953 (Cth). In addition to the dissemination of the transcript to DPP employees, witness statements were provided by the investigating ATO officer, as well as the two ATO officers who interviewed Leach under compulsion. In 2012, Leach was charged with 44 dishonesty-related offences. In 2014 he applied for a permanent stay of the indictment and for a ruling that the contents of the compelled examination were inadmissible at trial. In the alternative, Leach sought directions with respect to ensuring that the prosecution conduct the proceedings without having access to the transcript. The application was dismissed, and the charges proceeded to trial in 2017.