THE NSW Supreme Court has reversed a crucial ruling in the Project Wickenby case, allowing the prosecution of two high-profile tax targets to proceed.
Lawyer Ross Edward Seller and accountant Patrick David McCarthy were charged last March for alleged tax fraud after an investigation by the Australian Crime Commission.
The charges related to a whisky distillation operation, with links to the Wickenby-targeted Swiss-based firm Strachans.
It was alleged that Mr Seller and Mr McCarthy made false representations to the Australian Tax Office with the intention of dishonestly influencing the office to approve tax deductions claimed in 1999, 2000 and 2001 income tax returns.
But in August the men won a major victory against the Crown after it was argued that their right to a fair trial had been too heavily compromised by authorities' handling of the investigation.
A permanent stay of the prosecution of Mr Seller and McCarthy was awarded by Justice Peter Garling in the NSW Supreme Court.
But the Crown appealed against the order, and the Chief Justice, Tom Bathurst, on Friday found Justice Garling's decision was not justified. The prosecution of the two men will probably be re-listed and given a new trial date.
"There was no evidence before his honour to justify his conclusion that the trial would suffer from a fundamental defect as a result of the delivery of the transcripts to the Commonwealth Director of Public Prosecutions," court documents said.
"In these circumstances, the delivery of the material to the CDPP and the finding by [Justice Garling] that one or more of certain officers may have read the transcripts does not justify a permanent stay."
The two men can apply to the High Court for leave to appeal.