Case: Commissioner of Taxation v De Vonk (1995) 61 FCR 564
Outcome: considered
are a number of instances, of course, where this Court and the High Court in its original jurisdiction have assumed a jurisdiction in relation to criminal proceedings then pending before a State court: Hammond v Commonwealth [1982] HCA 42 ; (1982) 152 CLR 188 ; Commissioner of Taxation v De Vonk (1995) 61 FCR 564 ; Watson v Commissioner of Taxation [1999] FCA 1796 ; (1999) 96 FCR 48. However, in each of those cases the proceedings pending in the State court involved the alleged commission of a crime against a law of the Commonwealth. In Hammond, Mr Hammond had been charged with conspiracy in relation to the substitution of kangaroo meat for beef in the export market, apparently an offence against s 86(1)(a) of the Crimes Act 1914 (Cth). Not only that, but the prosecuting body was the Commonwealth as were, effectively, the commissioners conducting the Royal Commission. In De Vonk , the applicant was charged with conspiring to defraud the Commonwealth as was Mr Watson in Watson . In each case, the question of whether a contempt was being committed was part of a matter arising under a law made by the Parliament or in which the Commonwealth was a party. Federal jurisdiction was, therefore, clear. There is no evidence to suggest that the Board is deliberately interfering with the proceedings before the Local Court. It is likely, if that were to be suggested, that the provisions of the Act would not authorise such behaviour: De Vonk at 588. However, as De Vonk shows, unintentional action may yet have the capacity to prejudice the administration of justice. It is necessary therefore to attend to the relationship between the Board's proceedings and those in the Local Court. The following factors are relevant: (a) An important question in the criminal proceedings is whether CAP had any entitlement to receive the Midnight Seas cheque. If it did, then it is difficult to see how Sam could have fraudulently misappropriated it. (b) Whether CAP was entitled to receive the cheque, and if so, on what basis, is a significant aspect of the Board's inquiry. (c) CAP denies Midnight Seas' claim that it was not entitled to the proceeds of the cheque. Any explanation of CAP's position can, indeed should, be conveyed to Midnight Seas as the complainant for its comment. The Board's function of inquiry requires as much. Any information provided to Midnight Seas in that way will not be immune from release by Midnight Seas for the secrecy provisions of Part II of the Act do not operate upon Midnight Seas. (d) If, and when, the Board comes to decide how it should proceed in relation to CAP's registration, then the Board will be required to give reasons for that decision. It is very likely that any such reasons will include the Board's conclusions on the questions of whether CAP was entitled to deposit the cheque together with an assessment of the circumstances leading to that conclusion. (e) That assessment will involve, most likely, a consideration of CAP's relationship with Midnight Seas, a matter also centrally relevant in the criminal proceedings. Because of the secrecy provisions in the Act I do not think that the conduct by the Board of its investigation poses, in itself, a real risk to the integrity of the criminal proceedings. However, part of that investigation will require the Board to obtain Midnight Seas' response to CAP's account of how the cheque came to be deposited into its trust account. That raises, to my mind, a risk that the prosecutor (through Midnight Seas) will come to know, in advance, of CAP's explanation of how it obtained the cheque. That has the capacity to interfere with Sam's defence of the proceedings against him. Independently of that conclusion, the delivery by the Board of its reasons, if it should decide to suspend or cancel CAP's registration, is likely to reveal in advance of Sam's trial CAP's explanation of how it obtained the cheques.