Citation: Regina v Ronen & Ors [2004] NSWSC 1304
Court: Supreme Court of New South Wales, Common Law Division (Criminal List)
Date: 1 December 2004
Judge(s): Whealy J
Background
Three accused faced charges of conspiracy to defraud the Commissioner of Taxation. The alleged conspiracy involved concealing the true income of two businesses, On Fovo Pty Ltd and a sole trader fashion business, in order to deprive the Commissioner of income tax revenue or to make its collection more difficult.
During the trial, Whealy J prepared a draft document setting out the central ingredients of the conspiracy to defraud charge, intended to guide the jury directions. This prompted contested argument between senior counsel for one of the accused and the Crown about precisely how those ingredients should be framed in the charge to the jury.
The judgment records Whealy J's rulings on those competing submissions before closing addresses concluded, leaving open the possibility of revisiting some aspects at a later stage.
Legal Issues
- Whether the first ingredient of conspiracy to defraud should refer to the agreement's "object" rather than its "outcome or incidental outcome"
- Whether references to "the risk of deprivation" and "making the collection of tax more difficult" were necessary elements of the jury direction, or whether they introduced unnecessary complexity
- Whether the jury required a separate direction addressing the quantum of alleged lost revenue, given the Crown's evidence of substantial concealment but its position that proof of a precise quantum was not essential to its case
Decision
On the first issue, Whealy J rejected the submission that "object" should replace "outcome or incidental to its outcome." His Honour regarded "object" as carrying some ambiguity in this context, and preferred the formulation that had been approved in leading authorities from both the High Court and the New South Wales appellate courts.
On the second issue, Whealy J declined to remove the references to "the risk of deprivation" and "making the collection of tax more difficult." He accepted that these concepts were not live controversies on the trial's particular facts, but he was not persuaded they were misleading or unnecessarily confusing. He remained open to revisiting the precise wording once addresses were complete if further simplification became warranted.
On the third issue, Whealy J accepted that some form of direction addressing quantum was appropriate, noting that the Crown's case had never depended on proving a precise amount of tax lost. He observed that a conspiracy to defraud is fundamentally concerned with proof of an agreement, not with the details of its implementation. A further direction on this point was left to be fashioned at a later stage, consistent with the principal direction already given.
Throughout his reasons, Whealy J drew on observations from Sir Frederick Jordan CJ in Ongley (1945) to the effect that a conspiracy may be established through evidence of concerted conduct rather than formal proof of a specific agreement or its precise commencement.
Orders Made
No orders were made in this decision.
Key Takeaways
- A charge of conspiracy to defraud does not require the prosecution to prove the precise quantum of any loss, nor even that actual loss was suffered. The essence of the offence lies in proof of a dishonest agreement.
- The Supreme Court confirmed that jury directions on conspiracy to defraud should follow formulations approved by the High Court in Peters v R and by the NSW Court of Criminal Appeal in Saffron (No 1) v R, and should not be simplified in ways that depart from those established formulations without good reason.
- Where senior defence counsel conceded that "deprivation" versus "imperilment" was not a live issue, that concession alone did not justify removing the relevant concepts from the jury direction. The court was not satisfied the inclusion caused confusion sufficient to warrant departure from the approved formula.
- Consistent with Ongley, evidence that accused persons acted in concert toward a common purpose is sufficient to establish the agreement element of a conspiracy. The prosecution need not pinpoint the exact moment or act marking the conspiracy's inception.
- Whealy J left open the possibility of further refinement to jury directions after closing addresses, illustrating that directions on complex fraud charges may be revisited and adjusted as a trial progresses.
Legislation and Cases Referenced
Cases:
- Peters v R (1998) 192 CLR 493 (High Court)
- Saffron (No 1) v R (1988) 17 NSWLR 395 (NSW Court of Criminal Appeal and Court of Appeal)
- Ongley (1945) 57 WN 116
Legislation: No specific legislation was cited in the provided text.