Tax fraud case clarifies use of compulsory ATO interviews in criminal proceedings

In 2010, private practice solicitor Philip Leach was lawfully compelled to answer questions by ATO auditors regarding allegations of GST fraud.

The transcripts from this interview were later used to prosecute him for obtaining a financial advantage by deception. The case raised legal controversy regarding the use of compulsory tax interviews to inform criminal proceedings.

Leach was found to have lodged numerous business activity statements (BAS) with the ATO, claiming GST refunds on behalf of two trusts for nonexistent property development expenses. He received GST refunds totalling $1,311,761, to which he knew the trusts were not entitled.

In 2010, Leach returned $1,083,271 to the ATO using two cheques, sourced from his trust account held on behalf of the state of Audrey De Graff. The court found that he had fraudulently used those funds to repay the ATO for his GST fraud.

He was subsequently interviewed by an ATO auditor, who held suspicions that the two trusts were not entitled to claim the GST refunds but did not believe Leach had committed any criminal offences. The interviewer had no involvement in investigating criminal activity, court documents noted.

After Leach was subject to the compulsory interview, the transcript of his evidence was provided to the Commonwealth Director of Public Prosecutions (CDPP). He was charged in 2013 for obtaining a financial advantage by deception, after the prosecution relied on the transcript of the compulsory interview as evidence at Leach’s trial.

However, in 2018, the Queensland Court of Appeal quashed the conviction and ordered a retrial. The majority found that the prosecution should not have accessed the transcripts of the compulsory ATO interviews, finding that the privilege against self-incrimination was breached.

“The majority found that the prosecution should not have accessed the transcripts of the compulsory interviews undertaken of the applicant by the [ATO] where the privilege against self-incrimination was abrogated,” court documents read.

“It was held that the provision to the prosecutor of the applicant’s evidence in those circumstances was a departure in a fundamental respect from the requirements of a fair trial that constituted a miscarriage of justice.”

In 2024, the CDPP presented a new indictment against Leach in the Queensland District Court, containing the same charges as the initial indictment. Leach applied for the new indictment to be quashed, in light of the previous finding that ATO transcripts could not be used in his criminal prosecution.

In August 2025, the Queensland District Court judge dismissed Leach’s application, finding that the decision to overturn his initial conviction had been incorrect. A more recent case, Van Eps v Commonwealth Director of Public Prosecutions, found that the majority decision in R v Leach [2018] should not be followed.

“We respectfully disagree with the decision of the majority in Leach and consider that it should be overruled,” Queensland Supreme Court documents in R v Van Eps; Ex parte Commonwealth Director of Public Prosecutions [2024] read.

In R v Van Eps, the majority concluded that because there was no criminal prosecution pending at the time of Leach’s compulsory ATO interview, it had not abrogated his right to avoid self-incrimination.

As such, it found that the transcripts from compulsory ATO interviews could be disseminated to the AFP and CDPP to assist with prosecutions, as long as the compulsory disclosure took place before criminal proceedings were launched.

In support of this finding, the court referenced an explanatory memorandum associated with an update to the Taxation Administration Act 1953, which outlined the goals of the framework.

“Under the new framework, law enforcement agencies will be able to access taxpayer information for both the investigation and subsequent enforcement (including prosecution) of serious offence provisions in the law,” the explanatory memorandum for the Tax Laws Amendment (Confidentiality of Taxpayer Information) Bill 2010 read.

“Moreover, as taxation officers are also authorised to disclose taxpayer information directly to a court or tribunal under the new framework, this will assist in the successful prosecution of serious offences.”

Leach filed a new appeal against the District Court against the judge’s refusal to quash the fresh CDPP indictment. On 28 November 2025, the Supreme Court of Queensland said it had no jurisdiction to hear this appeal and struck out his application.

With the appeal struck out, the CDPP is clear to pursue its fresh indictment against Leach.