Citation: R v Goel [2011] NSWDC 83
Court: District Court of New South Wales
Date: 4 August 2011
Judge: Berman SC DCJ
Background
The accused was charged with 41 counts of dishonestly causing a loss to the Commonwealth under s 135.1(3) of the Criminal Code 1995 (Cth). The prosecution alleged that he attended a tax accounting firm and provided a consultant with 41 false payment summaries and fabricated bank account details, instructing the consultant to prepare and lodge tax returns that would generate refunds totalling approximately $184,000. None of the named taxpayers had earned the income recorded, no tax had been withheld, and the bank accounts were not those of the relevant taxpayers.
The trial proceeded over three days. During the playing of recorded interviews with an ATO investigator, the accused made admissions that he knew the deduction claims were unjustified and that what he was doing was wrong. Following those admissions, a dispute arose between defence counsel and the Crown about how the trial judge should direct the jury on a key element of the offence. The judge heard argument from both sides before ruling on the correct direction.
After the judge indicated he would not give the direction sought by the defence, the accused was re-arraigned in the presence of the jury and pleaded guilty to all 41 counts. This judgment sets out the reasons for the judge's ruling on the disputed direction.
Legal Issues
- Whether the "but for" test of causation applies when determining which act of the accused "caused" the tax returns to be lodged under s 135.1(3) of the Criminal Code 1995 (Cth).
- Whether the required mental element of dishonesty must coincide specifically with the accused's final act that directly resulted in the returns being lodged, or whether it suffices that dishonesty coincided with any act in the causal chain that led to the lodgement.
- Whether the specific drafting of the indictment (referring to the returns being both "prepared" and "lodged") required the Crown to prove the mental element at the moment of the ultimate act of lodgement.
Decision
The defence submitted that the jury should be directed to apply a "but for" test: only the accused's final act that caused the returns to be lodged was the legally relevant act. Because the returns were not lodged until some days after the Sunday meeting, defence counsel intended to argue that the accused may not have been dishonest at that later point, even if he had been dishonest at the Sunday meeting when he instructed the accountant.
Berman SC DCJ rejected this approach. Drawing on the analogy of multiple blows contributing to a death, his Honour held that the Crown need only prove that the accused's mental element of dishonesty coincided with any one act that, together with other acts, contributed to the tax returns being lodged. The relevant act did not have to be the final or decisive act in the chain.
His Honour also addressed the drafting of the indictment. The words "in that he procured CNR Accounting and Taxation Pty Ltd to prepare and lodge the return" were characterised as particulars rather than elements of the offence. Accordingly, the drafting did not require the Crown to prove dishonesty at the precise moment of lodgement. The judge noted that the offence is complete as soon as a person performs an act with the intention of dishonestly causing a loss to a Commonwealth entity, and the accused had made admissions consistent with having done exactly that at the Sunday meeting.
Orders Made
No orders were made in this decision.
Key Takeaways
- The District Court held that the "but for" test does not govern causation under s 135.1(3) of the Criminal Code 1995 (Cth). The required mental element of dishonesty need only coincide with any one act in the causal chain leading to the prohibited outcome, not solely with the final act.
- Where a defendant performs a series of acts that together result in a tax return being lodged, the Crown may establish the mental element by reference to any one of those acts, provided that act contributed to the eventual lodgement.
- Under s 135.1(3), the offence is complete as soon as the accused performs an act with the requisite dishonest intention. The prosecution is not required to prove dishonesty at every subsequent step in the transaction.
- Words in an indictment that describe how an offence was committed function as particulars rather than elements of the offence. Their presence does not necessarily enlarge what the Crown must prove beyond the statutory elements themselves.
- A "but for" causation requirement, had it been accepted, would have enabled defendants to argue that a later, more mechanical act (such as paying an invoice) was the true operative cause of the offence, severing earlier dishonest conduct from criminal liability. Berman SC DCJ declined to endorse that reasoning.
Legislation and Cases Referenced
Legislation
- Criminal Code 1995 (Cth), ss 130.3, 135.1(3)
Cases
- Arulthilakan v The Queen (2003) 204 ALR 259
- Moffatt v The Queen (2000) 112 ACrimR 201
- R v Petroulias (No 30) [2007] NSWSC 119
- Royall v The Queen (1991) 172 CLR 378