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Court of Criminal Appeal 22 October 2007

Regina v. Bates, Philip

[2007] NSWCCA 297

Fraud & dishonesty
CRIMINAL LAW CASE STATED FROM DISTRICT COURT DOUBLE JEOPARDY WHETHER IT SHOULD DO SO TAXATION WHETHER OFFENCE PROVED

Citation: Regina v Bates, Philip [2007] NSWCCA 297
Court: NSW Court of Criminal Appeal
Date: 22 October 2007
Judge(s): Hodgson JA; Hislop J; Latham J

Background

The respondent, a taxpayer, was convicted by a magistrate of failing to furnish an approved form to the Commissioner of Taxation when and as required, contrary to s 8C(1)(a) of the Taxation Administration Act 1953 (Cth). The underlying requirement arose from a notice issued under s 162 of the Income Tax Assessment Act 1936 (Cth), which directed that a nominated income tax return be lodged by a specific date.

On appeal to the District Court, Zahra DCJ overturned the conviction. The primary judge held that the notice required the taxpayer to do one of two things: either lodge the return by the nominated date, or seek an extension of time. Because the taxpayer's tax agent had requested an extension shortly after receiving the notice, the primary judge found there was evidence of compliance, and therefore no offence was made out.

The Crown requested that the District Court submit two questions of law to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912 (NSW), seeking to clarify whether the primary judge had erred in both of those conclusions.

  • Whether the District Court erred in holding that a s 162 notice required the taxpayer to do one of two things: either lodge the return by the nominated date, or seek an extension of time.
  • Whether the District Court erred in holding that a request for an extension of time, which went unanswered, constituted evidence that the notice had been complied with, negating the offence.
  • Whether the Court of Criminal Appeal has power under s 5B(3) of the Criminal Appeal Act 1912 to quash an acquittal entered on appeal by the District Court.
  • Whether, even if that power exists, the double jeopardy principle should prevent its exercise in this case.

Decision

The Court answered both questions in the stated case "yes", meaning the primary judge had erred on both points. A s 162 notice requires the taxpayer to furnish the return within the time and in the form required. The notice itself is powerful evidence of what the Commissioner requires, and the offence under s 8C(1)(a) is one of absolute liability, meaning no fault element needs to be proved.

On the first error, the Court found that a notice does not, of itself, impose an obligation to seek an extension as an alternative to lodging the return. On the second, merely requesting an extension that receives no response does not constitute compliance with the notice. The request does not alter what the notice requires unless there is an established practice of suspending requirements upon receipt of such requests, and no such practice was in evidence before the primary judge.

The Court acknowledged, however, that a question of fact might remain on remittal: whether the Commissioner's protocols or practices could affect what was actually "required" in the circumstances. That residual uncertainty, combined with the double jeopardy principle, led the Court to decline to quash the acquittal and remit the matter. The Court considered the questions important enough to answer for the benefit of future cases, but made no further order.

On the jurisdictional question, the Court confirmed that s 5B(3) of the Criminal Appeal Act 1912, which was enacted after earlier decisions that had cast doubt on the power, clearly confers the power to quash a District Court acquittal. Whether to exercise that power remains a separate discretionary question informed by the double jeopardy principle.

Orders Made

Both questions in the stated case were answered yes. No order was made quashing the acquittal or remitting the matter to the District Court.

Key Takeaways

  • A notice issued under s 162 of the Income Tax Assessment Act 1936 does not impose a dual obligation, giving taxpayers the alternative of either lodging the return or seeking an extension. The notice requires lodgment within the time specified.
  • Requesting an extension of time, without more, does not amount to compliance with a s 162 notice. Where the request goes unanswered, the original requirement remains operative unless the Commissioner's established practices indicate otherwise.
  • Section 5B(3) of the Criminal Appeal Act 1912 (NSW) confers clear power on the Court of Criminal Appeal to quash a District Court acquittal on a case stated. The earlier doubt expressed in Robinson v Woolworths and R v Sirocic was resolved by the addition of that subsection.
  • Even where the power to quash an acquittal exists, the double jeopardy principle may weigh against its exercise. Here, the Court declined to quash the acquittal because a question of fact remained that would need resolution on remittal, making it inappropriate to expose the respondent to further proceedings.
  • A case stated under s 5B can serve a precedent-clarifying function even where no further order is made. The Court answered the questions of law specifically to prevent the primary judge's reasoning from standing as authority in future cases.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5B
- Income Tax Assessment Act 1936 (Cth), s 162
- Taxation Administration Act 1953 (Cth), s 8C; Schedule 1, par 388-55
- Criminal Code 1995 (Cth), ss 6.2, 13.3

Cases:
- Attorney-General for the State of New South Wales v X [2000] NSWCA 199; 49 NSWLR 653
- R v Sirocic [2000] NSWCCA 325
- Robinson v Woolworths Limited [2005] NSWCCA 426
- The Australian Gaslight Company v The Valuer-General (1940) 40 SR(NSW) 126