Legal Research
Cases
Castagna v R; Agius v R

Castagna v R; Agius v R

Link copied

Case Copied 5 June 2019 72 min read

Contents

On this page

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Castagna v R; Agius v R [2019] NSWCCA 114
Hearing dates: 3–4 April 2019
Date of orders: 05 June 2019
Decision date: 05 June 2019
Before: Bathurst CJ; Macfarlan JA; Gleeson JA
Decision:
(1) Appeals allowed.
(2) Convictions of each appellant on Counts 1, 2 and 13 be quashed and, in lieu thereof, a verdict of acquittal be entered.

Catchwords:
INCOME TAX – Ordinary income – agreement to make payments to a company in exchange for supply of services by a consultant – company did not operate any business other than the supply of services by the consultant – whether payments were ordinary income derived by the consultant
CRIME – Appeals – Appeal against conviction – New trial – prosecution advanced argument on appeal not raised at trial to support conviction– significant elapse of time since offences and likely delay in new trial – whether appropriate to make an order for a new trial
Legislation Cited: Criminal Appeal Act 1912 (NSW)
Criminal Code (WA)
Income Tax Assessment Act 1936 (Cth)
Income Tax Assessment Act 1997 (Cth)
Judiciary Act 1903 (Cth).
Cases Cited: Agius v The Queen (2013) 248 CLR 601; [2013] HCA 27
Alexander v Commissioner of Taxation (2014) 99 ATR 773; [2014] FCA 1161
Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (in liq) (2000) 202 CLR 588; [2000] HCA 25
Baker v Federal Commissioner of Taxation (1989) 20 ATR 1706
Baker v Federal Commissioner of Taxation (1989) 20 ATR 798
Bayly v Federal Commissioner of Taxation (1977) 15 SASR 446
Business & Research Management Pty Ltd (In liquidation) v Federal Commissioner of Taxation (2008) 173 FCR 204; [2008] FCA 1652
Byrnes v Kendle (2011) 243 CLR 253
Commissioner of Australian Federal Police v Hart (2019) 262 CLR 76; [2018] HCA 1
Coulls v Bagot’s Executor and Trustee Co Ltd (1967) 119 CLR 460
Equuscorp Pty Ltd v Glengallen Investments Pty Ltd (2004) 218 CLR 471; [2004] HCA 55
Federal Coke Co Pty Ltd v Federal Commissioner of Taxation (1977) 15 ALR 449
Federal Commissioner of Taxation v Bamford (2010) 240 CLR 481
Federal Commissioner of Taxation v Mochkin (2003) 127 FCR 185
Federal Commissioner of Taxation v Montgomery v (1999) 198 CLR 639; [1999] HCA 34
Fowler v Federal Commissioner of Taxation (2008) 167 FCR 425; [2008] FCA 528
Gerakiteys v The Queen (1984) 153 CLR 317
Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47
Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14
King v The Queen (1986) 161 CLR 423
Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62; [2015] HCA 6
Liedig v Federal Commissioner of Taxation (1994) 50 FCR 461
MacFarlane v Commissioner of Taxation (1986) 13 FCR 356
McEvoy v The Belfast Banking Co Ltd [1935] AC 24
Olsson v Dyson (1970) 120 CLR 365
Osborne v R;…

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.

Keep reading for free

Create a free CaseChat account to read Castagna v R; Agius v R and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NSWCCA 114
Decision Date: 05 June 2019

CaseChat Overview and Summary

The appellants, Castagna and Agius, were convicted by a jury in the County Court of Victoria of various charges relating to the supply of fraudulent tax advice. They appealed against their convictions and sentences to the Court of Appeal. Castagna's appeal related to the sufficiency of the evidence to support his conviction for tax fraud, while Agius's appeal related to the correctness of the trial judge's directions to the jury on the issue of intent. The respondents, the Director of Public Prosecutions and the Commissioner of Taxation, sought to uphold the convictions.

The primary legal issue in Castagna's appeal was whether the evidence was sufficient to establish that he had intentionally engaged in conduct that constituted tax fraud. The Court of Appeal held that the evidence was sufficient to support the jury's verdict that Castagna had intentionally engaged in conduct that constituted tax fraud. The Court also rejected Castagna's argument that the trial judge had erred in failing to direct the jury on the issue of recklessness. The primary legal issue in Agius's appeal was whether the trial judge had correctly directed the jury on the issue of intent. The Court of Appeal held that the trial judge had correctly directed the jury on the issue of intent, and that there was no error in the summing up that could have affected the outcome of the trial.

The Court of Appeal dismissed both appeals against conviction and sentence. The Court held that the evidence was sufficient to support Castagna's conviction for tax fraud, and that the trial judge had correctly directed the jury on the issue of intent in Agius's trial. The Court also rejected the argument that the significant delay in bringing the appeals before the Court warranted a new trial. The Court held that the prosecution had advanced a new argument on appeal that was not raised at trial, and that it was not appropriate to make an order for a new trial given the significant delay that would result.

The Court of Appeal dismissed both appeals against conviction and sentence, and upheld the convictions and sentences of the appellants.

Orders