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Brady v Thornton

Brady v Thornton

Case [1947] HCA 29 19 August 1947

Jurisdiction

Procedural Fairness

Statutory Construction

Appeal

Tax Law

Statutory Interpretation

Criminal Law

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75 CLR 140

THORNTON

RESPONDENT. DEFENDANT, Taxation-Offence-ProsecutionEvidence--Return - of incomeUnderstatement of

income-Proof-Allegations in information-Averments-Sufficiency-Mixed law and fact-Income Tax Assessment Act 1936-1946 (No. 27 of 1936-No. 6 SYDNEY,

of 1946), 8. 243 (1), (2) (b). Aug. 18, 19.

An information laid under the Income Tax Assessment Act 1936-1946, contained allegations that " the defendant

which said return was false in a particular to wit, the amount of £739 returned by the said defendant therein as total gross income from his business of hairdresser and tobacconist was understated by an amount

Held, that the allegations were averments of fact and not of law (Latham C.J. and Dixon J. doubting as to the allegation that the amount of £958 was " "income ") and, in the absence of any further evidence, the defendant should

The word averment" as used in S. 243 (1) of the Income Tax Assessment Act 1936-1946, means allegation contained in the information, complaint, declaration, or claim as the case may be.

CASE STATED.

An information laid by William Malachy Brady alleged that Brady was authorized to institute the proceedings in the name of and for and on behalf of the Deputy Commissioner of Taxation in the State of New South Wales, who charged that on or about 31st August 1942, at Sydney, in the said State, one Nicholas Thornton, hairdresser and tobacconist of 144 Liverpool Street, Paddington, " did make a return of income of the twelve months ended 30th June 1942, which said return was false in a particular to wit, the

75 CLR 141

amount of £739 returned by the said defendant therein as total gross income from his business of a hairdresser and tobacconist was understated by an amount not less than £958, contrary to the Act in such case made and provided, whereby the said defendant has incurred a penalty in excess of the sum of such excess is hereby abandoned."

The defendant pleaded not guilty. The informant did not offer any oral evidence but tendered the information and relied on the averments contained therein, in pursuance of the provisions of S. 243 of the Income Tax Assessment Act 1936-1946, and closed his case. The defendant did not offer any evidence.

After hearing the parties the magistrate held that a prima-facie case had not been made out. He dismissed the information, found the defendant not guilty of the offence and acquitted him.

In a case stated for the opinion of the High Court the following facts were set forth as having been found by the magistrate to be established to his satisfaction by the evidence given before him- (a) that the defendant on or about 31st August 1942, did make to the Deputy Commissioner of Taxation in and for the State of New South Wales, a return of income of the twelve months ended 30th June 1942; and (b) that the total gross income shown in such return by the defendant from his business as a hairdresser and tobacconist was £739.

The grounds upon…

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.

Continue reading Brady v Thornton

Details

AGLC: Brady v Thornton [1947] HCA 29
Case: [1947] HCA 29
Decision Date: 19 August 1947

CaseChat Overview and Summary

The case of *Brady v Thornton* involved a prosecution for making a false income tax return. The informant, William Malachy Brady, acting for the Deputy Commissioner of Taxation, laid an information against Nicholas Thornton, a hairdresser and tobacconist. The information alleged that Thornton had made an income return for the year ended 30 June 1942, stating his gross income as £739, which was understated by at least £958. The prosecution relied on Section 243 of the *Income Tax Assessment Act 1936-1946*, which deems averments in the information to be prima facie evidence of the matters averred. No oral evidence was presented by the prosecution, and the defendant offered no evidence. The magistrate dismissed the information, finding that a prima facie case had not been made out. A case was stated for the opinion of the High Court.

The legal issue before the High Court was whether the averments contained in the information constituted sufficient prima facie evidence of fact to require the defendant to answer the charge, particularly in light of Section 243(2)(b) of the *Income Tax Assessment Act 1936-1946*. This section provides that where an averment is a mixed question of law and fact, it is prima facie evidence of the fact only. The magistrate had concluded that the averment regarding the understatement of income was a mixed question of law and fact, and as no evidence was led to support the legal aspect, no prima facie case was established. The informant contended that the averments were primarily factual and, therefore, sufficient under Section 243.

The High Court, in allowing the appeal, held that the averments in the information were largely factual and, as such, were prima facie evidence of those facts under Section 243(1). While acknowledging that the term "income" could involve legal considerations, the majority found that the averments, taken as a whole, contained sufficient allegations of fact to establish a prima facie case. Specifically, the allegations that the defendant made a return, stated a specific amount as gross income from his business, and that this amount was understated by a further sum, were considered to be primarily factual. The Court reasoned that even if the characterisation of the understated amount as "income" involved a question of law, the factual components of the averment were sufficient to call upon the defendant for an answer. The appeal was allowed, and the case was remitted to the magistrate for determination according to law.

Orders