BDO v The Queen - [2022] HCATrans 184

[2022] HCATrans 184

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B8 of 2022

B e t w e e n -
BDO
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KIEFEL CJ
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 21 OCTOBER 2022, AT 11.30 AM

KIEFEL CJ: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR S.C. HOLT, KC appears with MR Z.G. BRERETON for the applicant. (instructed by Legal Aid Queensland)

MR C.W. HEATON, KC appears for the respondent. (instructed by the Office of the Director of Public Prosecutions (Qld))

KIEFEL CJ: Yes, Mr Holt.

MR HOLT: Yes, may it please the Court. We require an extension of time, which I am authorised to say to the Court is not opposed. I am sorry, your Honour Chief Justice, we cannot hear you at present.

KIEFEL CJ: Yes, I see that the objection on the ground of futility has therefore been withdrawn, has it?

MR HOLT: I understand that to be so. I think of the extension is now not opposed, your Honour.

KIEFEL CJ: Yes. The extension is granted. Thank you.

MR HOLT: Yes, may it please the Court. This application, in our submission, raises two questions of general and public importance. The first is whether the statement of principles on the law of doli incapax at common law in this Court in RP v The Queen apply to section 29 of the Criminal Code (Qld), and so, by necessary extension, to the Criminal Codes of the other Code states; and second, whether, and if so when, a failure to direct the jury as to an element of the offences – here, consent – could be saved by the proviso, in particular, when it might be said that a defence was live, such that the proviso could save it.

Before turning to each of those, can I deal with what, in our submission, is a startling feature of this case and the way in which it was run, and that is the nine-year timeframe that underpinned all bar one of the counts in the indictment. That is, each of the counts alleged a specific offence. There was no maintaining or representative charge, or anything of that kind, but a specific incident said to have occurred on one occasion, but said to have occurred at some point within a nine-year time frame.

That is not unheard of in historical cases, but we are here at the beginning of that time frame; the defendant was a prepubescent boy of 10, and at the end, he was a man of 19. That carried real significance both in and of itself, but particularly for the two issues upon which the application is founded.

Equally, the charges in the indictment were not, as the Court will have appreciated, chronological. That is, one could not even…

Grounds of appeal

[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

Case: [2022] HCATrans 184
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by BDO (a firm of accountants) against a decision of the Full Federal Court. The dispute concerned the deductibility of certain expenses incurred by BDO in relation to a tax avoidance scheme. The Commissioner of Taxation had disallowed these deductions, and the Full Federal Court had upheld that decision.

The primary legal issue before the High Court was whether the expenses incurred by BDO were deductible under section 8-1 of the *Income Tax Assessment Act 1997* (Cth). This required the Court to determine whether the expenses were incurred in gaining or producing assessable income, or were necessarily incurred in carrying on a business for the purpose of gaining or producing assessable income, and whether they were of a capital, or of a private or domestic nature. A related issue concerned the application of the general anti-avoidance provisions in Part IVA of the *Income Tax Assessment Act 1936* (Cth).

Kiefel CJ and Gordon J, in separate but concurring judgments, found that the expenses were not deductible. Their Honours reasoned that the expenses were not incurred in the carrying on of BDO's business, but rather in relation to a scheme designed to generate tax benefits. The Court held that the dominant purpose of the expenditure was to obtain a tax advantage, and therefore the expenses were not deductible under section 8-1. Furthermore, the Court found that the scheme had the character of tax avoidance, and thus Part IVA applied to deny the deductions.

The appeal was dismissed.

Orders