David John Price v Mark Raymond WILLIAMS No. SCGRG 93/338 Judgment No. 3951 Number of Pages 6 Justices Jurisdiction and Procedure Generally

[1993] SASC 3951

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DUGGAN J

CWDS
Justices - jurisdiction and procedure generally - Appeal against conviction - two counts of inciting another to commit an offence against the taxation law - counts heard together - evidence of false denials in respect of one charge used to support prosecution case on the second charge - held to be unjustified in the circumstances. Discussion as to whether the approach required by R v Calides 34 SASR 355 should be referred to in reasons for decision following summary hearing.

HRNG ADELAIDE, 19 April 1993 #DATE 13:5:1993
Counsel for appellant:     Mr D Smith
Solicitors for appellant:    Hume Taylor and Co
Counsel for respondent:     Ms L. Bolton
Solicitors for respondent: Commonwealth Director of
   Public Prosecutions

ORDER
Appeal on first count dismissed.

JUDGE1 DUGGAN J This appeal has been brought following the conviction of the appellant on two counts of inciting a person to commit an offence against a law of the Commonwealth contrary to s.7A of the Crimes Act, 1914 (Commonwealth). The appellant is an accountant and, according to the prosecution case, he advised each of two clients not to declare the whole of the client's income in taxation returns. 2. The two clients, Hanford and Gilbert, had no connection with each other but they had shown an interest in becoming franchisees in a lawn mowing collective known as V.I.P. Lawn Mowing Services (V.I.P.). Persons wishing to become part of this organisation were issued with a manual which recommended, inter alia, that they arrange an appointment with the defendant in order to receive accounting advice. 3. The witness Hanford said he made contact with V.I.P. in about September, 1986. He acquired a lawn-mowing franchise from the organisation and was required to undergo a course of training. He said that a training manual issued to him suggested he should make an appointment with the appellant for accounting advice. He arranged to see the appellant on Melbourne Cup Day 1986. He went to the appellant's office on the Norwood Parade on that day. According to Hanford the appellant suggested that a cash receipts book be kept and that details of each day's takings be included in the book along with a record of expenses. The examination-in-chief continued:
    "Q. ...what did he say in relation to those cash receipts?
    A. He advised that all daily income be entered on these pages.
    He then advised that at tax time to make a substantial savings
    on tax I should keep a second cash receipt book with reduced
    figures.
    Q. Did he say how the figures were to be reduced, or by what
    amount or amounts?
    A. He didn't specify a specific amount, but he did say that a
    substantial savings can be made on tax by reducing the income
    figures, but still entering the expenses as being the same.
    Q. You mentioned something about two sets of cash receipt
    books, is that so?
    A. Yes he advised me to keep a second cash receipts book.
    Q. And did he explain why the need to have the two sets of
    books?
    A. Because the business was based on cash flow, you can make a
    substantial tax savings by not declaring all of your income.
    Q. One set of books was to show the full income received is
    that so?
    A. As I understand it, yes." 4. Hanford agreed in cross-examination that at about this time a principal of V.I.P., a Mr Vis, had also spoken to him about the potential for understating his income and a Mr Crocker with whom he had undertaken a training programme in lawn-mowing, told him the same thing. However he denied that he might have been confused by these other conversations into thinking that the appellant had discussed the topic with him. 5. As one of the grounds of appeal criticises the use made by the learned magistrate of evidence on the Gilbert count in his consideration of the Hanford count I propose to summarise the evidence in relation to the Gilbert matter at this stage. Gilbert said he became interested in purchasing a franchise in September 1987. He met with Vis and was given a training manual. The manual suggested that an appointment be made for the franchisee to see a firm of solicitors name therein and, in addition, it stated:
     "Make an appointment with the accountant, David Price on 272 7388." 6. Gilbert decided to make an appointment with the accountant. Gilbert's girlfriend, who is a solicitor, told him that she wanted to go along with him to see the accountant. Indeed, according to the evidence, she wrote a note to this effect on the instruction manual under the name of the accountant. Gilbert said he rang the number and spoke to someone he understood was David Price. According to Gilbert he told Price that he lived at Happy Valley and Price then suggested that instead of going to the Price's office they could meet at premises at 20 Bennett Avenue, Edwardstown. 7. Gilbert said he rang to make the appointment on the Tuesday after the October long week-end. The appointment itself was for the following Saturday which was 17th October. He said he went along to the Edwardstown premises on the Saturday with his girlfriend, Miss Sheldon. He identified the appellant in court as the man he spoke to at the premises. He also identified him in a police identification parade before the trial. Miss Sheldon was unable to identify the appellant. Gilbert said the appellant advised him on taxation matters:
    "He said that it would be in my interest to keep cash, once I
    have built up to the around 6 to $700 mark. It would be in my
    interest to keep cash customers and not to declare them to the
    Taxation Department. A part of that reason was that other
    people in the industry were doing it and that for them to get
    away with it, it was better that everybody else was earning
    around the same amount of money. So that's why he was telling
    me that once I had built it up, to keep the cash customers.
    Q. Did he say more than that?
    A. Um, yes. He told me also not to declare them to the VIP
    either, to keep them off the records completely and to maintain
    them just as cash customers, that was it." 8. Gilbert said he did not use the appellant as an accountant and that he saw him on only the one occasion apart from at the identification parade. He said the interview lasted one hour. He denied that he was mistaken as to the identity of the appellant. 9. Miss Sheldon said that she attended the meeting. By reference to other events she said she believed it was on Saturday 17th October. She said:
    "The date is consistent with the instructions that are contained
    in this manual which is marked P2, which suggests that the
    appointment be made on day one of training which was the 13th.
    I can recall that there wasn't a long period between the time
    when the appointment was made and the time that he attended the
    meeting and I can recall it was a Saturday morning and my
recollection is that it was the Saturday following the 13th." 10. According to Miss Sheldon the person who spoke to them said that some people did well out of VIP because it was a cash business and there was a possibility of "money not going through the books". He is also alleged to have said that there was a percentage of the cash receipts which the franchisees could get away with by not putting receipts through the books. 11. The appellant gave evidence. He said he was the accountant for Mr Vis. He said that potential franchisees sought advice from him and that this arrangement commenced in 1983 and ended in 1989. Over that time he interviewed approximately 30 persons in accordance with the arrangement and some of them became his clients. He said the idea of the initial interview suggested in the manual was to give the potential franchisee basic knowledge to enable him to keep business records. The appellant said he told the franchisees what their obligations were in regard to taxation. He said he had a record of doing work for Hanford in November 1986. He did not have an actual recollection of Hanford coming to see him but he denied that he would have said anything about keeping two sets of books and understating income. He denied giving that sort of advice to any franchisee. He denied the meeting with Gilbert and Miss Sheldon, saying that he had never been into an office building at Bennett Avenue, Edwardstown and that there was no reference to any such meeting in his records. He had not charged Gilbert, a suggestion agreed to by Gilbert. He said that between 10th and 18th October 1987 he was overseas. This assertion was not disputed. Evidence was called as to the appellant's good character. An associate in his accounting firm, Mr Goodger, was called to say that he had not heard of premises at Bennett Avenue, Edwardstown. Three persons who had been present at interviews with the appellant (two were franchisees and the third was the wife of a franchisee) each said that although taxation was discussed at the meetings they had with the appellant, there was no suggestion that income might be understated or that two sets of books could be kept. 12. The learned magistrate accepted the evidence of Gilbert and Miss Sheldon that there had been a meeting at the Edwardstown address but he concluded that they were mistaken as to the date. He accepted Gilbert's identification of the appellant as well as his version of the conversation. He rejected the possibility that either Gilbert or Miss Sheldon had lied about the meeting. He also accepted the evidence of Hanford and rejected that of the appellant. 13. It is convenient to deal first with the assertion raised in the amended grounds of appeal that the Gilbert count should have been dismissed because the evidence did not establish that the offence occurred at the time referred to in the information. The information alleged that the offence took place "in about September 1987". Although it must be conceded that the witnesses incorrectly nominated the 17th October, 1987 as the date of the meeting, they were clearly referring to a meeting which took place sometime between early September and the time when Gilbert commenced in the lawn-mowing business in November 1987. Accordingly the assertion that the offence took place in about September 1987 was adequate. In any event, unless an allegation as to time goes beyond a matter of procedure and has an effect on an issue such as the age of an alleged victim or a question of limitation of time, it is sufficient if the prosecution establishes an identifiable occasion. (R v Dossi (1918) 13 Cr App R 158). Of course the nomination of a specific date upon which an offence is alleged to have been committed either in the information or the evidence may be relevant in deciding whether an accused person has been prejudiced in the preparation or conduct of the defence. But in the present case I am of the view that there was no such prejudice. The prosecution witnesses were wrong as to the date and that is a matter to be taken into account in assessing the credibility of the witnesses and the reliability of their evidence. But the appellant denied seeing them for any purpose. There was no mention of them in any of his records. There is nothing before me to indicate that he may have been able to supply evidence of alibis for a period encompassing Saturdays over a number of months. In short, it has not been demonstrated that the evidence relating to the specific date has occasioned any prejudice to the appellant. 14. The next argument advanced on behalf of the appellant is that the learned magistrate either reversed the onus of proof or adopted an incorrect process of reasoning in applying the onus. According to the argument he reached the conclusion that there was no possibility that Gilbert or Sheldon were lying and that the appellant was therefore guilty of that charge. In my view that is too simplistic an explanation of his Honour's assessment of the evidence. It is difficult to see how the two witnesses could have been innocently mistaken about reading of the suggestion in the manual that interested persons should contact a Mr David Price, an accountant, on a particular number (a number which was admitted to be the appellant's telephone number) and further that they arranged a meeting to speak about the VIP franchise over the telephone with a person who gave that name. I agree with his Honour that if the events did not take place then it is far more likely that the explanation for the evidence is falsehood. If the meeting was arranged in this way it would be an extraordinary coincidence if the appellant himself was not involved. Furthermore, although a finding of guilt is to be made only after consideration of the whole of the evidence, the fact- finder does not have to be satisfied of an accused person's guilt on his or her evidence alone. A major consideration in the disbelief of one witness may lie in the satisfaction beyond reasonable doubt of the veracity of another or other witnesses. Of course the accused's evidence must be taken into account and consideration given to the question as to whether it raises a reasonable possibility of innocence. But in my view there is nothing in his Honour's reasons to suggest that he did not follow this process of reasoning. Indeed he specifically referred to the appellant's denial that he had ever given such advice to any client. 15. Then it was submitted in argument that the learned magistrate had acted contrary to the approach to the consideration of guilt as explained in The Queen v Calides 34 SASR 355. It must be remembered that Calides' case dealt with directions to be given to a jury in certain cases where it is essential to instruct the jury on the various alternatives to be considered by them. Although a magistrate should consider the same alternatives in an appropriate case, it is unnecessary for the reasons for decision to refer specifically to those alternatives. It is sufficient, as the learned magistrate did here, to indicate that he was completely satisfied with the evidence led by the prosecution. As the judgment of Wells J in Calides makes clear, if that view is reached then "assuming all other matters to be properly established the verdict will be guilty". (supra at p.358). 16. The final argument concerns part of the learned magistrate's process of reasoning in relation to the Hanford count. His Honour said:
    "I am forced to the conclusion (as I have already found) that
    the defendant gave false evidence in relation to the second
    count (Gilbert count). His credit was seriously undermined.
    Therefore, his denials of the allegations supporting the first
    count are highly questionable. Indeed, in my view Mr Hanford's
    testimony stands unchallenged by creditable evidence. And I
    have no reason to doubt his truthfulness or reliability. I find
    the defendant guilty on the first count (Hanford count)." 17. There was no application for severance of the two counts. The learned magistrate had to be careful not to use evidence from the case against the appellant on one count as evidence in relation to the other count unless it was relevant to that other count. In assessing demeanour I do not think his Honour was required to separate one count from another in his mind, but it does seem that he went further than that in the passage quoted above. The conclusion that evidence given in the Gilbert count was false was based upon his Honour's view of the reliability of the Crown witnesses on that count and the appellant's response. In observing that the appellant's credit was "seriously undermined" in relation to the Gilbert count he was, in effect, attaching significance to what he regarded as false denials in the appellant's defence to that count. To then carry over without qualification those perceived false denials to the other count and to use them as the basis for the conclusion that the denials on the other count were also highly questionable is not, in my view, permissible reasoning. No regard was paid to the reason why any lies might have been told or why, as a matter of logic, they could be considered relevant in a matter which, although similar in nature, had to be considered as unrelated for the purposes of the law of evidence. The learned magistrate then appears to have reasoned from this consideration that Hanford's evidence was unchallenged by credible evidence and his Honour's conclusion that he had no reason to doubt his truthfulness or reliability must be viewed as part of the same chain of reasoning. 18. The reasons for decision do not contain a sufficiently extensive appraisal of Hanford's evidence independently of the considerations to which I have just referred which might have been used to base a conclusion that the finding of guilt was justified. An appellate court in a case of this nature is required to make an independent assessment of the evidence in order to determine the propriety of the verdict (Laurie v Nixon unreported decision Full Court 12th November, 1991). But in the present case I feel unable to support a conviction which depended to such a significant extent on the assessment of the credibility of the witnesses. Accordingly it is my view that the appeal on the first count (the Hanford count) must be allowed and the conviction set aside. In all the circumstances I regard it as appropriate to remit that count for re-trial before another magistrate. The appeal against conviction on the first count will be dismissed.