Cassaniti v The Queen - [2007] NSWCCA 66

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Cassaniti v R [2007] NSWCCA 66

FILE NUMBER(S):
2006/1860

HEARING DATE(S):

JUDGMENT DATE: 16 March 2007

PARTIES:
Salvatore Peter Cassaniti
Regina

JUDGMENT OF: Sully J Howie J Latham J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 4/11/1461

LOWER COURT JUDICIAL OFFICER: Norrish DCJ

LOWER COURT DATE OF DECISION: 2 December 2005

COUNSEL:
P. Roberts SC - Crown Respondent
B. Coles QC/P. Byrne SC/D. McGovern SC/S. Buchen - Appellant

SOLICITORS:
Commonwealth D.P.P - Crown Respondent
Kiki Kyriacou Lawyers - Appellant

CATCHWORDS:

LEGISLATION CITED:
Crimes Act 1914 (C'th)
Income Tax Assessment Act 1997 (C'th)
Corporations Act 1989 (C'th)
Bankruptcy Act (1966) (C'th)

CASES CITED:

DECISION:
The appellant have all such extensions of time necessary to permit of prosecution of appeal against conviction
Appeal against conviction dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/1860
SULLY J
HOWIE J
LATHAM J
16 March 2007

Salvatore Peter CASSANITI v REGINA

Judgment

SULLY J:
Introduction

Between 25 July 2005 and 30 September the appellant, Mr. Cassaniti, stood trial in the District Court at Sydney before his Honour Judge Norrish QC and a jury.
The appellant was so tried upon an indictment containing 24 counts. Each count, except count 21, charged the appellant with having defrauded the Commonwealth of Australia of a sum certain in money. The amount of the largest defrauding thus charged was $38,323.00 (count 15); that of the smallest such defrauding was $4,266.57 (count 20). Various dates were laid in the various counts; the earliest date being 15 August 1997, (count 1), and the latest date being 30 March 2001, (counts 19 and 20).
Count 21 charged the appellant with having attempted to defraud the Commonwealth of Australia of a sum certain in money. The date laid was 15 March 2001. The relevant amount was $2,680.77.
Each of the 24 counts alleged a contravention of section 29D of the Crimes Act 1914 (C’th). Any such contravention attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 10 years.
The jury found the appellant not guilty on count 1 and guilty on each of the remaining 23 counts. The appellant was in due course formally convicted and sentenced to various terms of imprisonment. There is no present challenge to any of these sentences and nothing more need be said about them.
The appellant challenges all twenty-three of his convictions. Three grounds of appeal, as follows, were notified and argued:
“1.The Learned Trial Judge misdirected the jury about the consequences of company deregistration.
2.The Learned Trial Judge misdirected the jury about the consequences of company liquidation.
3.The Learned Trial Judge misdirected the jury on the issue of Joseph Paragalli’s bankruptcy.”
The appellant gave, on 7 November 2005, notice of his intention to appeal. The requisite notice of appeal and accompanying statement of the grounds of appeal were not filed until 9 August 2006. It is necessary, therefore, that the appellant obtain from this Court an extension of time for the filing of the…

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 Cassaniti v The Queen

Details

AGLC: Cassaniti v The Queen [2007] NSWCCA 66
Case: [2007] NSWCCA 66
Decision Date: 16 March 2007

CaseChat Overview and Summary

In the matter of Cassaniti v The Queen, the appellant, Mr. Cassaniti, faced charges related to the improper lodgement of tax returns for a company that had been deregistered and subsequently liquidated. The case was heard in a court of appeal in Australia. The primary legal issues centred around the legality of submitting tax returns for a company after it had been deregistered or liquidated, and whether the appellant was aware of the company's deregistration or liquidation status at the time of submitting these returns.

The court examined the statutory framework provided by the Crimes Act 1914, the Income Tax Assessment Act 1997, the Corporations Act 1989, and the Bankruptcy Act (1966), to determine the rights and obligations of the company’s directors and agents following deregistration and liquidation. The court focused on the point at which a company ceases to exist and its property vests in the Australian Securities and Investment Commission (ASIC), and the implications for tax return lodgement. The learned trial judge had previously directed that directors or tax agents have no legal power to lodge a tax return for a period prior to deregistration or after a liquidator has been appointed.

The court’s reasoning highlighted that upon deregistration, a company’s property vests in ASIC, and directors or agents have no authority to lodge tax returns for periods prior to this event. Similarly, once a liquidator is appointed, the directors' powers are transferred to the liquidator, who then assumes responsibility for company affairs, including the lodgement of tax returns. The court examined whether Mr. Cassaniti, as a tax agent, was aware of the company’s deregistered or liquidated status when submitting the contested tax returns. The jury's questions about the legality of such actions were directly addressed by the judge’s prior directions.

In conclusion, the court upheld the trial judge's directions and found that Mr. Cassaniti's actions in submitting tax returns after the company’s deregistration and liquidation were unlawful. The appeal was dismissed, and the original convictions were affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

SULLY J

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Ratio Decidendi

Legal Principle Established

Established by: SULLY J

In that context the learned trial Judge gave, at SU 23-24, the following more particular directions:“By law a company ceases to exist on deregistration. When deregistered, the company’s property at the time of deregistration vests in the Australian Securities and Investment Commission ………. . The directors of a company or the director of a company existing immediately before deregistration are required to keep the company’s books for three years after deregistration where property of the corporation is vested in ………. ASIC. ASIC may continue to act as trustee, if it so desires, and may dispose (of) or deal with the property as it sees fit. ………… If a corporation earns income before deregistration, then after deregistration a director has no legal power to lodge a tax return in respect of a year arising before deregistration. Here of course, one of the issues you will need to consider in respect of the relevant corporation you are considering is whether the accused knew the company was deregistered at the relevant time. When a liquidator is appointed …… the powers of the directors vest in the liquidator. The directors of the corporation, once a liquidator is appointed, have no power to lodge tax returns after the appointment of a liquidator. The liquidator performs the function of the officers of the company, from the time of his appointment.” [emphasis added] The highlighted parts of the direction quoted in the immediately preceding paragraph and relating to deregistration were only relevant to counts 3, 6, 7, 10 and 11. Counts 3, 6 and 7 related to the lodgement of a return after deregistration on 3 July 1998 for the taxation years 1996-1997 and 1997-1998. Refunds of, respectively, $19,000, $11,000 and $13,000 were claimed. Counts 10 and 11 related to the lodgement of a return after deregistration on 3 July 1998 for the tax year 1998-1999. Thus, those two returns only accounted for 3 days of trading in that financial year, yet refunds of, respectively, $16,000 and $15,000 were claimed. Count 4 related to, and was the only count which related to, the lodgement of a return after liquidation. Having given the directions earlier herein mentioned, the learned trial Judge proceeded to summarise the evidence of a number of important Crown witnesses before dealing with the basis of the Crown case on counts 1 to 15 inclusive by making particular reference to the relevant taxation return, to other documentary evidence, and to the evidence of Mr. Paragalli. No application was made at the end of the summing-up for redirections upon those matters. The particular grounds upon which the appellant now relies must be considered against the background previously outlined. Before turning in a particular way to the individual grounds of appeal, it is useful to observe that the relevant questions asked by the jury can be related back quite specifically to the directions that have been quoted in paragraph 15.Grounds 1 and 2 Shortly after the jury had retired to consider its verdicts, the jury sent to the presiding Judge these two questions:“Your Honour, (1) Can a Tax Agent legally submit a tax return for a de-registered company for a period prior to its de-registration? (2) Can a Tax Agent legally submit a tax return for a company subsequent to it being liquidated for a period prior to its liquidation?”