Adjournment, Stay of Proceedings or Order Restraining Proceedings
Stay of Proceedings
Quick Take
1Questioning a taxpayer about suspected false documents or fraud in a compulsory examination under s 353-10 of Sch 1 to the Taxation Administration Act 1953 (Cth) is consistent with the administration of taxation law, including assessment, retention of refunds, penalties and objections. Where an examination has multiple purposes, an improper purpose is 'substantial' only if the questions would not have been asked at all but for that purpose. A primary judge who fails to conduct that counterfactual analysis errs.
2Whether misconduct in investigating and prosecuting one charge is relevant to staying another cannot be decided in the abstract. It depends on the connections between them, such as a common accused, common facts, the same lead investigator whose credit is affected, the same prosecutor, and depletion of the accused's resources. Misconduct concerning one charge can make the prosecution of another oppressive or unfair.
3A court responding to proven grave misconduct is not confined to a binary choice between granting or refusing a permanent stay. Applying [name withheld] v District Court (NSW), it may order that the prosecution not proceed without leave of the trial court on undertakings. On the facts, leaving the consequences of the misconduct to be dealt with at trial, through evidentiary exclusion or cross-examination of the discredited investigator, was inadequate both to avoid oppression and to protect public confidence in the administration of justice.
