Citation: Gino Robert Cassaniti v Director of Public Prosecutions [2008] NSWDC 2
Court: District Court of New South Wales
Date: 25 January 2008
Judge(s): Nicholson SC DCJ
Background
The applicant was an experienced accountant who had prepared approximately 10,000 tax returns over ten years, though he was not a registered tax agent. He worked through a firm operated by his cousin, a registered tax agent, who also acted as the applicant's personal tax agent. The applicant's own tax returns for the 2003 and 2004 financial years were never lodged.
In June 2005, an authorised delegate of the Commissioner of Taxation served a notice on the applicant under section 162 of the Income Tax Assessment Act 1936 (Cth), requiring him to furnish both outstanding returns by 18 July 2005. He did not comply by that date or at any subsequent time.
Court proceedings in the Parramatta Local Court followed. After a series of adjournments, the applicant was convicted in his absence in November 2006 on two charges of failing to furnish income tax returns as required. His subsequent applications to annul those convictions were also dismissed in his absence. He then sought to appeal to the District Court.
Legal Issues
- Whether the District Court had jurisdiction to hear the appeal, given the proceedings had initially been framed as an appeal against conviction rather than an appeal against refusal to annul a conviction.
- Whether leave should be granted to amend the notice of appeal and to bring the appeal out of time.
- Whether the Local Court Magistrate's refusal to annul the convictions should be set aside on appeal.
- Whether the elements of the offence under section 8C of the Taxation Administration Act 1953 (Cth) had been established, including the effect of averments, absolute liability, the validity of the section 162 notice, and whether reasonable time to comply had been given.
Decision
The District Court identified a jurisdictional problem at the outset. The proceedings had been conducted as an appeal against conviction, but the legislative scheme under the Taxation Administration Act 1953 (Cth) and the Crimes (Appeal and Review) Act 2001 provided a different pathway: where a defendant was convicted in absence without having entered a plea, the proper remedy was to apply to annul that conviction. An appeal against conviction in the ordinary sense was not available. Accordingly, Nicholson SC DCJ granted leave to amend the notice of appeal to correctly characterise the proceedings as an appeal against the Magistrate's refusal to annul the convictions, and also granted the late application for leave to appeal.
On the substantive question, the Court examined the elements of the offence under section 8C of the Taxation Administration Act. The offence was one of absolute liability, meaning fault elements did not need to be proved. The Court was satisfied beyond reasonable doubt that the section 162 notice had been validly served, that its requirements were clear, and that the time allowed for compliance was reasonable.
The Court further found that the applicant had no prospect of raising a reasonable doubt on either element of the offence, regardless of his credibility. His failure to furnish the required returns was not disputed. Even accepting all of the applicant's evidence at its highest, the outcome on both charges would inevitably have been adverse to him.
Because an absence of any real prospect of avoiding conviction is a significant factor in the discretion to annul, the Court concluded the Magistrate had not erred in refusing the annulment. The appeal was dismissed.
Orders Made
- Leave granted to amend the Notice of Appeal against Conviction to a Notice of Appeal against Refusal to Annul Conviction.
- Late application for leave to appeal against refusal to annul conviction granted.
- Appeal against the Local Court's refusal to annul the conviction dismissed.
Key Takeaways
- Where a defendant is convicted in absence under the Taxation Administration Act 1953 (Cth) scheme without having entered a plea, the correct remedy is an application to annul under section 13A of that Act, not a direct appeal against conviction. The District Court confirmed the two pathways are distinct and the wrong procedure will affect jurisdiction.
- A court considering whether to annul a conviction will take into account the defendant's prospects of success at a hearing. Where those prospects are non-existent, that weighs heavily against exercising the discretion to annul.
- The offence of failing to furnish a tax return under section 8C is one of absolute liability. No fault element needs to be established by the prosecution, and honest belief or subjective intention is not a defence.
- Averments contained in a Court Attendance Notice, together with the tender of the section 162 notice itself, were sufficient to establish the elements of the offence beyond reasonable doubt.
- Procedural missteps, including missing court dates repeatedly and failing to appear for annulment applications, do not of themselves entitle a defendant to a further hearing if the underlying merits of the case are plainly against them.
Legislation and Cases Referenced
Legislation:
- Income Tax Assessment Act 1936 (Cth), s 162
- Taxation Administration Act 1953 (Cth), ss 8C, 8ZL, 11, 13A
- Criminal Code 1995 (Cth), ss 5.1, 6.2
- Crimes (Appeal and Review) Act 2001 (NSW), ss 4, 11, 11A, 12, 13
- Evidence Act 1995 (NSW), s 160
- Administrative Decisions (Judicial Review) Act 1977 (Cth), s 13
Cases:
- Alva Nationa Pty Ltd v Unger (1981) 36 ALR 665
- Ambrose v Edmonds Wilson (1988) 19 ATR 1217
- Deputy Commissioner of Taxation v Ganke [1975] 1 NSWLR 252