Brady v Thornton

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.