Citation: Regina v Ronen & Ors [2004] NSWSC 1285
Court: Supreme Court of New South Wales
Date: 15 March 2004
Judge(s): Whealy J
Background
Three accused (a mother and her two sons) faced prosecution for conspiracy to defraud the Commonwealth, specifically the Commissioner of Taxation. The Crown alleged that, over approximately a decade from 1991 to 2001, the accused skimmed cash takings from four retail clothing outlets and concealed those takings from the Australian Taxation Office. Records of the actual takings were allegedly kept at one of the accused's apartment, while only the reduced banked amounts were returned for income tax purposes.
The indictment contained two counts, structured to reflect a legislative change to the relevant provisions of the Crimes Act 1914 (Cth). The first count related to the period from October 1991 to September 1995, charged under s 86A; the second covered September 1995 to February 2001, charged under s 86(2) read with s 29D. Both counts alleged conspiracy to defraud the Commonwealth of income tax.
Before the trial commenced, each accused brought applications challenging the indictment. They argued it was oppressive, or alternatively that it was bad for duplicity and required the Crown to elect a more specific case.
Legal Issues
- Whether the indictment, read together with the Crown's particulars, disclosed two substantive offences and was therefore bad for duplicity
- Whether the Crown was required to elect between alleging that the accused intended to deprive the Commonwealth of income tax, as opposed to merely imperilling its opportunity to collect that tax
- Whether the indictment and the manner of prosecution were oppressive to the accused
- Whether the structure of the two counts (reflecting the legislative change) created any unfairness or confusion for the jury
Decision
Whealy J dismissed all three applications. On the major argument, his Honour rejected the contention that the indictment charged two substantive offences. The two counts existed solely to reflect the change in the name and wording of the relevant statutory provision during the period covered by the alleged conspiracy; they described one continuous agreement, not two distinct criminal acts.
On the question of whether the Crown was required to elect between "deprivation" and "imperilment," his Honour held that these concepts were not mutually exclusive charges. Drawing on the High Court's analysis in Peters v The Queen (1998) 192 CLR 493, the court concluded that a conspiracy to defraud the Commonwealth of income tax is established where the accused intended to deprive the Commonwealth of that tax or, at minimum, to prejudice its opportunity to collect it. Both outcomes could flow from the same agreement and did not require separate charges.
His Honour addressed concerns raised by counsel for the second and third accused about the risk of jury confusion, particularly around whether individual accused might have intended different things. The court held that this concern was adequately addressed by proper jury directions. The jury would need to be satisfied beyond reasonable doubt that each accused was a party to the agreement and possessed the requisite dishonest intent, whether framed as deprivation or imperilment of the Commonwealth's tax revenue.
The oppression argument was not separately developed in the reported reasoning, and the court's dismissal of the applications resolved all three grounds.
Orders Made
- The applications to quash or amend the indictment were dismissed.
Key Takeaways
- A conspiracy to defraud the Commonwealth of income tax does not require the Crown to elect between proving an intention to deprive the revenue of tax and proving an intention to imperil its collection; both concepts are encompassed within the same charge, consistent with the approach in Peters v The Queen.
- Where two counts in a conspiracy indictment reflect only a change in statutory numbering over the alleged period of the conspiracy, those counts do not create duplicity; they describe a single continuing agreement.
- Potential juror confusion about differing states of mind among co-accused is a matter addressed through proper jury directions, not a ground for requiring the Crown to make a pre-trial election.
- The Supreme Court confirmed that an indictment is not oppressive or duplicitous merely because the Crown's particulars are detailed or because individual accused occupied different roles within the alleged scheme.
- Under the framework in Peters v The Queen, the jury must be satisfied beyond reasonable doubt both that the agreement existed and that each accused possessed the dishonest intent required; absence of either element necessitates acquittal.
Legislation and Cases Referenced
Legislation
- Crimes Act 1914 (Cth), ss 29D, 86A, 86(2)
Cases
- Peters v The Queen (1998) 192 CLR 493
- Spies v The Queen (2000) 201 CLR 603
- Johnson v Miller (1937) 59 CLR 467
- S v Regina (1989) 168 CLR 266
- King v Regina (1986) 161 CLR 423
- Gerakiteys v The Queen (1983) 153 CLR 317
- Walsh v Tattersall (1996) 188 CLR 77
- R v Scott [1975] AC 819
- R v Ghosh [1982] QB 1053
- Griffiths (1966) 1 QB 589
- Saffron (1989) 17 NSWLR 395
- Stanton v Abernathy (1990) 19 NSWLR 656
- R v Iannelli (2003) 56 NSWLR 247
- Petroulias v Wills [2003] NSWSC 1190 (Simpson J); Wills v Petroulias [2003] NSWCA 390
- Mok (1987) 27 A Crim R 438
- Caratti v R [2000] WASCA 279