Supreme Court Stays Prosecution Due to ATO Misconduct in Landmark Case (R v Clarke)
- Fortuno Lawyers
- Oct 9
- 1 min read
Updated: Oct 13
Consistent with the rule of law, R v Clarke (a pseudonym) (No 9) [2025] QSCPR 17 highlights that even government regulatory authorities are not beyond the reach of judicial scrutiny.
The decision underscores the necessity of transparency, procedural fairness, and respect for constitutional safeguards in investigative proceedings. For those facing complex regulatory enforcement action, whether by ASIC, ACCC or the ATO, obtaining informed legal advice is critical to safeguards your rights.
In a precedent-setting judgment issued by the Supreme Court of Queensland, Smith J imposed a permanent stay of prosecution, halting the criminal prosecution in R v Clarke on the basis of egregious abuses of legal processes by the ATO. Notably:
The dual-purpose nature of the compulsory interview rendered it invalid for criminal law purposes. The defendant’s participation in the interview was involuntary, and was secured under threat of a legal penalty;
Courts were misled through inaccurate sworn evidence filed in the proceeding, as exculpatory evidence was knowingly withheld by both the ATO and the CDPP;
The CDPP’s continuation of the prosecution amounted to an abuse of legal process;
Misleading representations were made to legal professionals, including members of the Queensland Bar.
Justice Smith concluded that the ATO misused its audit authority to conduct what was effectively a covert criminal investigation without proper statutory authorisation.
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