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Supreme Court 29 April 2016

R v Pratten (No 26)

[2016] NSWSC 935

Fraud & dishonesty
CRIMINAL PRACTICE NO ARGUABLE POINT ADJOURNMENT REFUSED.

Citation: R v Pratten (No 26) [2016] NSWSC 935
Court: Supreme Court of New South Wales
Date: 29 April 2016
Judge(s): Rothman J

Background

The accused had been convicted following a criminal trial involving the alleged dishonest obtaining of a financial advantage by understating income for tax purposes. The matter was before the court for sentencing when the accused, who was unrepresented, filed an urgent motion seeking an adjournment.

The accused had filed two documents in the High Court in the days immediately preceding the sentencing hearing: an application under section 40 of the Judiciary Act 1903 (Cth) seeking removal of the Supreme Court proceedings to the High Court, and a writ of summons against the Commonwealth. Those documents raised a constitutional argument that a Supreme Court exercising criminal jurisdiction could not determine "financial advantage" where that concept involved an assessment of income, on the basis that such a determination was an administrative function reposed in the Australian Taxation Office.

The accused sought either an indefinite adjournment pending final disposition of the High Court proceedings, or alternatively a two-week adjournment. The Crown opposed the application.

  • Whether the court should adjourn sentencing pending the outcome of proceedings filed in the High Court raising a constitutional separation of powers argument.
  • Whether the constitutional argument, if arguable, would be rendered nugatory by proceeding to sentence.
  • Whether procedural fairness required an adjournment in the circumstances.
  • Whether the late filing of the High Court proceedings provided a basis for delay.

Decision

Rothman J refused the adjournment on several grounds. First, no order had been made by the High Court under section 40 of the Judiciary Act removing the proceedings from the Supreme Court. The proceedings before the sentencing court therefore remained on foot and unaffected by the High Court filing.

On the constitutional argument itself, the court found no arguable basis for the proposition that determining whether a financial advantage existed was an impermissible administrative act. The jury had assessed "income" in its ordinary meaning, without resort to specialised definitions under the income tax legislation. Accordingly, the court's findings on guilt, and any sentence it might impose, could have no bearing on any future tax review under Part IVC of the Income Tax Assessment Act. The constitutional argument was not rendered more pressing by proceeding to sentence, and the High Court's capacity to deal with the matters raised would not be affected either way.

The court also found the adjournment unjustified as a matter of procedural fairness. Rothman J noted the settled principle, drawn from Sullivan v Department of Transport and affirmed by the High Court in Re Coldham, that a court's obligation is to provide a reasonable opportunity to prepare and present a case, not to ensure a party makes optimal use of that opportunity. Critically, the very constitutional argument now raised had been fully argued before Rothman J in May 2013, when it was rejected. An appeal against that decision was filed and then withdrawn without hearing two days before it was listed before the Court of Appeal in December 2013, and no further appeal to the High Court was pursued at that time. The court found it inconsistent with the administration of justice to grant an adjournment in circumstances where two prior opportunities to agitate the same point had not been pursued to completion.

Orders Made

• The adjournment is refused.

Key Takeaways

  • Rothman J held that the filing of removal proceedings under section 40 of the Judiciary Act does not, of itself, divest a State Supreme Court of jurisdiction pending a High Court order.
  • A constitutional argument that a court exercising criminal jurisdiction cannot determine "financial advantage" in the context of income understatement was found to lack arguable merit where the jury assessed income in its ordinary meaning, independent of the administrative functions of the Australian Taxation Office.
  • Proceeding to sentence did not render the High Court proceedings nugatory, since sentencing does not affect the High Court's capacity to consider findings of guilt or constitutional questions already raised.
  • Under the procedural fairness principles affirmed in Sullivan v Department of Transport and Re Coldham, the court is obliged to provide a reasonable opportunity to present a case, not to protect a party from the consequences of failing to use such opportunities when they were available.
  • Where an identical argument had been fully argued and rejected at first instance, and a subsequent appeal was withdrawn before hearing with no further appeal pursued, granting an adjournment to re-agitate the same point was found to be inconsistent with the administration of justice.

Legislation and Cases Referenced

Legislation
- Income Tax Assessment Act 1936 (Cth)
- Income Tax Assessment Act 1997 (Cth)
- Judiciary Act 1903 (Cth), s 40

Cases
- Pratten v Commonwealth Director of Public Prosecutions [2013] NSWSC 594
- Re Coldham; Ex Parte Municipal Officers Association of Australia [1989] HCA 13; (1989) 63 ALJR 298
- Sullivan v Department of Transport (1978) 20 ALR 323
- United Voice v Restaurant and Catering Association of Victoria [2014] FCAFC 121; (2014) 226 FCR 255