Sidebottom & Anor v Commissioner of Taxation

(2003) 173 FLR 335; [2003] VSCA 2

Victorian Court of Appeal

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Interrogate

Catchwords

1. Customs and Excise
2. › Excise prosecutions
3. › Practice and procedure
4. › Proceedings commenced under civil procedure pursuant to s 136 Excise Act 1901 (Cth)
5. › Whether witness statements can be ordered against defendants before trial
6. › Whether civil practice and procedure extends to pre-trial disclosure of defence evidence
7. › Excise Act 1901 (Cth), s 136
1. Evidence
2. › Privilege
3. › Privilege against self-incrimination
4. › Privilege against exposure to penalty
5. › Whether order for witness statements infringes privilege
6. › Distinction between witness statements and discovery or interrogatories
7. › Whether compulsion involved in order for witness statements
1. Practice and Procedure
2. › Pre-trial procedures
3. › Witness statements
4. › Excise prosecutions conducted as civil proceedings
5. › Whether defendants entitled to withhold evidence until close of plaintiff's case
6. › Exercise of discretion to order witness statements in complex proceedings

Quick Take

In excise prosecutions conducted under civil procedure pursuant to s 136 of the Excise Act 1901 (Cth), defendants may be ordered to file and serve witness statements before trial. Such an order does not infringe the privilege against self-incrimination or exposure to penalty because, unlike discovery or interrogatories, it involves no compulsion — defendants retain the choice whether to give evidence. The Federal Court decisions in McPhee and Amcor, which refused witness statement orders in penalty proceedings, should be distinguished or not followed.