Cummins v Duck

Case [2009] ACTSC 20

DAVID JOHN CUMMINS V ANTHONY DAVID DUCK
[2009] ACTSC 20 (12 March 2009)

APPEAL AND NEW TRIAL – appeal from decision of the ACT Magistrates Court – non-conviction orders – when appropriate – depression – s 19B Crimes Act 1914 (Cth) – Taxation Administration Act 1953 (Cth) s 8C.

Income Tax Assessment Act 1936 (Cth), ss 161, 162
Taxation Administration Act 1953 (Cth), ss 8C(1)(a), 8C(1A)
Crimes Act 1914 (Cth), s 16A, 19B.

Customs Act 1901 (Cth)

Quarantine Act 1908 (Cth)

Health Insurance Act (1973) (Cth)
Civil Aviation Regulations 1988 (Cth)
Social Security Act 1991 (Cth)

Craft v Diebert [2004] ACTCA 15
Dong v Ranse [1999] ACTSC 125

Hayes v Weller (1988) 50 SASR 182

Lanham v Brake (1983) 13 A Crim R 293

Boulos (1988) 37 A Crim R 461

Mulholland (1994) 76 A Crim R 155

Aikman v Bourne (1992) 63 A Crim R 467

Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568
Kelton v Uren (1981) 27 SASR 92
Talisco Pty Ltd v Sarney (1987) 87 ATC 4343
Federal Commissioner of Taxation v Doudle (2005) 61 ATR 221
Federal Commissioner of Taxation v Wormald International Australia Pty Ltd (1985) 17 ATR 129
Kay v Schouten (2001) 46 ATR 312

JUDGMENT

No. SCA 9 of 2008

Judge:              Refshauge J
Supreme Court of the ACT

Date:               12 March 2009

IN THE SUPREME COURT OF THE       )
  )          No. SCA 9 of 2008
AUSTRALIAN CAPITAL TERRITORY    )          

BETWEEN:DAVID JOHN CUMMINS

Appellant

AND:ANTHONY DAVID DUCK

Respondent

ORDER

Judge:  Refshauge J
Date:  12 March 2009
Place:  Canberra

THE COURT ORDERS THAT:

  1. The appeal be allowed.

  1. On each charge the appellant be released on a recognizance to be of good behaviour for twelve months on condition that he submit to supervision by the Chief Executive or her delegate and obey all reasonable directions, particularly relating to psychological treatment and counselling, as may be given by the person required to supervise him.

  1. The appellant pay the court costs of $137.00 within 28 days.

  1. Most people recognise the social responsibility of citizens to furnish a return to the Commissioner of Taxation in which they disclose their assessable income.  The legal obligation is imposed on citizens when required by the Commissioner (see Income Tax Assessment Act 1936 (Cth) ss 161, 162).

  1. It appears that when a taxpayer has failed to lodge the ordinary return, the Commissioner, no doubt in reliance on s 162, will send a notice requiring lodgement by a specified time and it is failure to comply with this notice that constitutes an offence under s 8C of the Taxation (Administration) Act 1953 (Cth).

The facts

  1. On 13 March 2006, the appellant, David John Cummins, was sent notices in writing by a Deputy Commissioner of Taxation requiring him to furnish to the Commissioner of Taxation by 8 May 2006 an income tax return for each of the years ended 30 June 1997, 30 June 1998, 30 June 1999, 30 June 2000, 30 June 2001, 30 June 2002, 30 June 2003,…

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AGLC
Cummins v Duck [2009] ACTSC 20
Case
[2009] ACTSC 20
Decision Date

CaseChat Overview and Summary

In the matter of Cummins v Duck, the appellant, Cummins, appealed against a decision made by the ACT Magistrates Court. The dispute involved the granting of non-conviction orders under section 19B of the Crimes Act 1914 (Cth) and section 8C of the Taxation Administration Act 1953 (Cth). Cummins argued that the Magistrates Court should have taken into account his depression when deciding on the non-conviction orders, and that the orders were therefore inappropriate.

The primary legal issue the court had to resolve was whether the Magistrates Court was correct in its decision to grant non-conviction orders, and if the court had failed to consider Cummins's depression as a mitigating factor. The court had to examine whether the Magistrates Court had the discretion to impose non-conviction orders and whether the court was required to take into account Cummins's depression in its decision-making process.

The court found that the Magistrates Court did have the discretion to grant non-conviction orders, but it was also obligated to consider Cummins's depression as a mitigating factor. The court held that the Magistrates Court failed to properly consider Cummins's depression, and as a result, the orders were inappropriate. The court further found that the orders were not in the best interests of Cummins and did not adequately address his underlying issues. Consequently, the appeal was allowed, and the appellant was released on a recognizance to be of good behaviour for twelve months, on the condition that he submit to supervision by the Chief Executive or her delegate and obey all reasonable directions, particularly relating to psychological treatment and counselling. The appellant was also ordered to pay the court costs of $137.00 within 28 days.

Orders

Orders of the court

. The appeal be allowed.

2. On each charge the appellant be released on a recognizance to be of good behaviour for twelve months on condition that he submit to supervision by the Chief Executive or her delegate and obey all reasonable directions, particularly relating to psychological treatment and counselling, as may be given by the person required to supervise him.

3. The appellant pay the court costs of $137.00 within 28 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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