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Court of Criminal Appeal 5 August 2015

AGIUS v R

[2015] NSWCCA 200

Fraud & dishonesty
CRIMINAL LAW CONVICTION APPEAL CONVICTION APPEAL CONVICTION APPEAL WHETHER MISDIRECTION ON CO ACCUSED GIVING EVIDENCE

Citation: Agius v R [2015] NSWCCA 200
Court: NSW Court of Criminal Appeal
Date: 5 August 2015
Judges: Bathurst CJ, RA Hulme J, Bellew J

Background

The appellant was an Australian accountant practising in Vanuatu who was charged alongside three accountants from an Australian firm with two counts of conspiracy. The first count alleged conspiracy to defraud the Commonwealth of tax revenue under the Crimes Act 1914 (Cth). The second alleged conspiracy to dishonestly cause a loss, or risk of loss, to the Commonwealth of income tax under the Criminal Code Act 1995 (Cth).

The scheme involved clients of the Australian firm making false claims for tax deductions on funds flowing to offshore companies. Those funds then returned to the clients or their directors as loans, on which further false interest deductions were claimed. For three clients, sham insurance arrangements were also created and used to claim deductions. The evidence at trial included testimony from multiple witnesses that the appellant had personally explained the scheme, drawn diagrams illustrating the fund flows, attended relevant meetings, and executed scheme documents.

A jury convicted the appellant and one co-accused on both counts in July 2012. The trial judge sentenced the appellant to a total non-parole period of 6 years and 8 months imprisonment. The appellant appealed both conviction and sentence.

  • Whether the trial judge erred in failing to direct the jury to acquit at the close of the Crown case
  • Whether the Crown was required to prove the appellant's personal involvement in filing false tax returns
  • Whether the trial judge's directions on unreliability of evidence under s 165(1)(d) of the Evidence Act 1995 (NSW) were erroneous
  • Whether the trial judge misdirected the jury on the mental element of dishonesty required for the conspiracy offences
  • Whether the directions concerning the co-accused giving evidence were improper
  • Whether the trial judge's references to the Moore Stephens firm were unnecessary or prejudicial
  • Whether the verdict was unreasonable or unsupported by the evidence
  • Whether the sentencing judge erred in assessing the objective seriousness of the offences, imposed an unjustifiably disparate sentence compared with the co-accused, or imposed a sentence that was manifestly excessive

Decision

Conviction appeal: directions and acquittal

The Court confirmed that conspiracy under s 86(1) of the Crimes Act and s 135.4(5) of the Criminal Code is a continuing offence. The Crown needed to prove only that the appellant and at least one other person entered into an agreement to commit the relevant offence. Under the Crimes Act, the offence is complete upon the making of the agreement; under the Criminal Code, completion also requires an overt act. The trial judge was not required to direct the jury to acquit, because there was sufficient evidence from which the jury could conclude that the single conspiracy particularised had been entered into by the appellant and that he participated in it during the relevant period.

The Court rejected the argument that the Crown was obliged to prove the appellant personally filed false tax returns. The case against him was that he promoted the scheme; its implementation through the filing of returns was the work of the Australian accountants. On the dishonesty directions, the Court found the trial judge had adequately identified the belief that rendered the agreement dishonest, namely the appellant's knowledge that OTD clients were claiming deductions for payments never actually incurred.

Conviction appeal: other directions

The Court found no error in how the trial judge directed the jury on the evidence of client witnesses who had admitted involvement in the fraud. A caution direction was appropriate in those circumstances. The direction about the co-accused giving evidence was also upheld: it did not compliment the co-accused for testifying, nor did it suggest the appellant's silence reflected consciousness of guilt. The references to Moore Stephens were warranted given the substantial body of evidence linking that firm to the scheme and connecting the appellant to it as a partner.

Unreasonable verdict and sentencing

The Court, applying the established test, undertook its own assessment of the evidence and was not left in reasonable doubt about the verdict. RA Hulme J described the case against the appellant as "extremely strong." On sentence, the Court found no error in the assessment of objective seriousness, no unjustifiable disparity with the co-accused's sentence (the differences being explicable by different roles and circumstances), and no manifest excess when the sentence was compared with comparable cases. The totality principle had been properly considered.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted but appeal dismissed

Key Takeaways

  • A conspiracy under s 86(1) of the Crimes Act 1914 (Cth) and s 135.4(5) of the Criminal Code Act 1995 (Cth) is a continuing offence; the Crown need only establish that the accused and at least one other person agreed to commit the underlying offence, not that every act of implementation involved the accused personally.
  • Under the Crimes Act, a conspiracy is complete when the agreement is made; under the Criminal Code, completion also requires an overt act to have been performed.
  • Where a conspiracy is structured so that one participant promotes a scheme and others implement it operationally, the Crown is not required to prove that the promoting participant personally carried out each implementing act, such as filing false tax returns.
  • Under s 165(1)(d) of the Evidence Act 1995 (NSW), a warning about unreliability is required only where, without it, the jury might be unaware of a particular fact affecting the weight of evidence; the trial judge retains discretion about the form and extent of such a direction.
  • In dismissing the sentencing appeal, the Court of Criminal Appeal confirmed that sentencing disparity between co-accused does not give rise to a justifiable sense of grievance where the difference is explicable by distinct roles, culpability, and personal circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 29D, 86(1)
- Criminal Code Act 1995 (Cth), s 135.4(5)
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW), s 165(1)(d)

Cases
- Agius v The Queen [2013] HCA 27; 248 CLR 601
- Azzopardi v The Queen [2001] HCA 25; 205 CLR 50
- Brown v The Queen [2006] NSWCCA 69
- Chen v R [2009] NSWCCA 66
- Cheung v The Queen [2001] HCA 67; 209 CLR 1
- Director of Public Prosecutions v Doot (1973) AC 807
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Doney v The Queen [1990] HCA 51; 171 CLR 207
- DPP v Goldberg [2001] VSCA 107; 184 ALR 387
- Gerakiteys v R [1984] HCA 8; 153 CLR 317
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Libke v The Queen [2007] HCA 30; 230 CLR 559
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- M v The Queen [1994] HCA 63; 181 CLR 487
- Macleod v The Queen [2003] HCA 24; 214 CLR 230
- Peters v The Queen [1998] HCA 7; 192 CLR 493
- R v Agius; R v Zerafa [2012] NSWSC 978
- R v Fowler [2003] NSWCCA 321; 151 A Crim R 166
- R v LK [2010] HCA 17; 241 CLR 177
- SKA v The Queen [2011] HCA 13; 243 CLR