Bathurst CJ at [1]; R A Hulme J at [1144]; Bellew J at [1145]
Decision:
Appeal against conviction dismissed. Leave to appeal against sentence granted but appeal dismissed.
Catchwords:
CRIMINAL LAW – conviction appeal - conspiracy to defraud the Commonwealth of tax revenue under s 86(1) and s 29D of the Crimes Act 1914 (Cth) – conspiracy to dishonestly cause a loss or deliberately cause a risk of loss to the Commonwealth of income tax under s 135.4(5) of the Criminal Code Act 1995 (Cth) – proving the requisite state of affairs for conspiracy – stages of a conspiratorial agreement
CRIMINAL LAW – conviction appeal - whether trial judge erred in failing to direct jury to acquit at close of Crown case – whether verdict unreasonable or could not be supported by evidence
CRIMINAL LAW – conviction appeal – whether misdirection in summing up to jury – whether misdirections on unreliability under s 165(1)(d) Evidence Act 1995 (NSW) – whether misdirection in clearly identifying the knowledge, belief or intent said to render conduct dishonest – whether misdirection on co-accused giving evidence – whether misdirection on treating the evidence of witnesses with caution
CRIMINAL LAW – sentencing appeal – whether error in assessing objective seriousness of offence – whether disparity between sentence of appellant and co-accused gave rise to justifiable sense of grievance – whether sentence manifestly excessive – whether adequate regard had to sentences imposed in other cases
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Agius v R [2015] NSWCCA 200
Case
[2015] NSWCCA 200
Decision Date
CaseChat Overview and Summary
The appeal heard by the Court involved the appellant, Agius, who was convicted of conspiracy to defraud the Commonwealth of tax revenue under various sections of the Crimes Act 1914 (Cth) and the Criminal Code Act 1995 (Cth). The primary legal issues that the Court had to address involved whether the trial judge erred in not directing the jury to acquit Agius at the close of the Crown’s case, whether the verdict was unreasonable or unsupported by the evidence, and whether there were any misdirections in the summing up to the jury. Additionally, the Court examined whether there were any errors in assessing the objective seriousness of the offence during sentencing and if the disparity between the sentences of Agius and his co-accused warranted any appeal.
The Court examined the evidence presented and determined that the trial judge did not err in failing to direct the jury to acquit Agius. The Court found that the evidence, including the testimonies of witnesses and the documentary evidence, was sufficient to support the verdict. The Court also ruled that there were no misdirections in the summing up to the jury. The Court clarified the legal standards for unreliability under s 165(1)(d) of the Evidence Act 1995 (NSW) and found that the trial judge had correctly instructed the jury on the matter. Furthermore, the Court concluded that there were no misdirections regarding the knowledge, belief, or intent required to render conduct dishonest, or in relation to the co-accused giving evidence, and that the trial judge had properly cautioned the jury about treating the evidence of witnesses.
In terms of sentencing, the Court found that there was no error in assessing the objective seriousness of the offence. The Court also ruled that the disparity in sentences between Agius and his co-accused did not give rise to a justifiable sense of grievance. The Court held that the sentence imposed on Agius was not manifestly excessive and that the sentencing judge had adequately considered the sentences imposed in other cases. The Court ultimately dismissed the appeal on both conviction and sentencing grounds.
The Court made no orders for a retrial or a new sentencing hearing and upheld the original conviction and sentence imposed on Agius.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
There were also two further transfers made from the Uniton account to the IFTC account, one of $4,000 and one of $29,700. None of the monies transferred into the IFTC account flowed back to ASS in the 2005 financial year.b The evidence of Mr Phillip Waller P Waller gave evidence that he first met Mr Daniel in January or February 1998. He said that after that meeting, he and D Waller decided to appoint OTD as their accountants. He stated that he remembered Mr Daniel saying at that meeting that he could help minimise their tax. P Waller gave evidence that he recalled that some time after that meeting, perhaps a couple of weeks later, Mr Daniel contacted him and D Waller and said that he would like to introduce them to a Mr Agius from a company in Vanuatu who could help with their tax. P Waller said that he met Mr Agius with Mr Daniel within a month or two thereafter, before 30 June 1998. He said that at the meeting, Mr Agius explained how his company, Moore Stephens, in Vanuatu, could help them. He said that Mr Agius explained that Moore Stephens was an international financing company/accounting company and explained how he could help them in other areas such as in Hong Kong, where ASS did a lot of dealings in purchasing products. P Waller gave evidence that Mr Agius told them how ASS and the Wallers could benefit by using a couple of companies that he had set up, one of them being Billbury. He stated that Mr Agius explained how ASS could get a false invoice sent from Billbury in England. He said that Mr Agius told the Wallers that after the money had been sent around the world, a company called Uniton would set up a loan and that that company would lend to the Wallers personally, so that there would be a cash flow for their business. P Waller described this as “basically we were getting a false invoice, paying it and then drawing down a false loan.” He said that Mr Agius told them that they would have more documents than necessary to cover any audits or any questions that the taxman would ask them. P Waller said that as a result, he and D Waller signed documents for a $1 million loan with Uniton. He said that Mr Agius and Mr Daniel explained that the loan would not be paid back, but interest would be paid on the loan yearly. He said that this in fact occurred. P Waller said that he recalled receiving an interest bill from Uniton in the sum of $200,000. He said that he and Ms Abibadra, an OTD accountant with whom he worked, worked out that this was part of the scheme for reducing profits, as by sending off the extra few bills, the loan was being legitimised. P Waller was also shown Uniton invoices of $173,195.62 for interest in the 2002 financial year and $297,009.73 for interest in the 2004 financial year. He said that the position with these invoices was the same as the earlier invoices. P Waller said that during the course of the meeting with Mr Agius, Mr Agius drew a round circle highlighting what would occur. He said that the diagram basically showed the profits from ASS, with an arrow going up to Billbury, then an arrow down to Uniton and then an arrow back to the Waller account. P Waller drew a diagram which reflected his recollection of the document.