Giourtalis v R

[2013] NSWCCA 216

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

GIOURTALIS, Angelos v R [2013] NSWCCA 216

Hearing dates:

21 February 2013

Decision date:

25 September 2013

Before:

Bathurst CJ at [1]; Hidden J at [1796]; Button J at [1799]

Decision:

(1) Appeal against conviction dismissed.

(2) Grant leave to appeal against sentence but appeal dismissed.

Catchwords:

CRIMINAL LAW - appeal - conviction for multiple counts of defrauding and attempting to defraud the Commonwealth pursuant to s 29D and s 7 of the Crimes Act 1914 - whether misdirection in summing up to jury - whether misdirection by the trial judge in relation to mistake, the rule in Browne v Dunn and the taxation of foreign residents.

CRIMINAL LAW - appeal - conviction for multiple counts of defrauding and attempting to defraud the Commonwealth - whether error from prejudice regarding the admission of tendency and coincidence evidence.

CRIMINAL LAW - appeal - conviction for multiple counts of defrauding and attempting to defraud the Commonwealth - application of proviso in s 6(1) of the Criminal Appeal Act 1912 - whether error by trial judge such as to make it inappropriate to apply s 6(1).

CRIMINAL LAW - appeal - sentencing - considerations - whether trial judge failed to take into account or give sufficient weight to delay - severity of sentence.

Legislation Cited:

Bankruptcy Act 1966 (Cth), Pt X
Corporations Act 2001 (Cth), ss 232, 998
Crimes Act 1914 (Cth), s 7, s 29D
Criminal Appeal Act 1912, s 6
Criminal Procedure Act 1986, s 33
Evidence Act 1995 ss 97, 101
Income Tax Assessment Act 1997 (Cth), s 6-5
Misuse of Drugs Act 1981 (WA)

Cases Cited:

AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438
Andrews v The Queen [1968] HCA 84; (1968) 126 CLR 198
Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92
Bangaru v The Queen [2012] NSWCCA 204; (2012) 297 ALR 108
Browne v Dunn (1893) 6 R 67
Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358
Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373
Dao v The Queen [2011] NSWCCA 63; (2011) 81 NSWLR 568
DSJ v The Queen [2012] NSWCCA 9; (2012) 259 FLR 262
Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293
Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1
Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282
Homsi v R [2011] NSWCCA 164
House v The King [1936] HCA 40; (1936) 55 CLR 499
Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51
Khamis v The Queen [2010] NSWCCA 179; (2010) 203 A Crim R 121
Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
Macleod v The Queen [2003] HCA 24; (2003) 214 CLR 230
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329
Nudd v R [2006] HCA 9; (2006) 225 ALR 161
Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297
Patel v The Queen [2012] HCA 29; (2012) 86 ALJR 954
Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493
PNJ v Director of Public Prosecutions [2010] VSCA 88; (2010) 27 VR 146
Quartermaine v The Queen [1980] HCA 29; (1980) 143 CLR 595
R v Birks (1990) 19 NSWLR 677
R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308
R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451
R v Gay [2002] NSWCCA 6; (2002) 49 ATR 78
R v Kearnes [2003] NSWCCA 367
R v Petroulias [2005] NSWCCA 75; (2005) 62 NSWLR 663
R v Schwabeggar (1998) 4 VR 649
R v Scook [2008] WASCA 114; (2008) 185 A Crim R 164
R v Soto-Sanchez [2002] NSWCCA 160; (2002) 129 A Crim R 279
R v Todd (1982) 2 NSWLR 517
R v Zhang [2005] NSWCCA 437; (2005) 158 A Crim R 504
RWB v The Queen [2010] NSWCCA 147; (2010) 202 A Crim R 209
S v The Queen [1989] HCA 66; (1989) 168 CLR 266
Spies v The Queen [2000] HCA 43; (2000) 201 CLR 603
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365
Wills v Petroulias [2003] NSWCA 286; (2003) 58 NSWLR 598

Category:

Principal judgment

Parties:

Angelos Giourtalis (Appellant)
Regina (Respondent)

Representation:

Counsel:
D G Pullinger (Appellant)
P R McGuire (Respondent)
Solicitors:
Sydney Criminal & Family Lawyers (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2009/14973 & 56 ors

Publication restriction:

No

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2011-11-18 00:00:00

Before:

Syme DCJ

File Number(s):

2009/14973
2009/15550
2009/15664
2009/17179
2009/18085
2009/20772
2009/20773
2009/20774
2009/20775
2009/27607
2009/27935
2009/28580
2009/28785
2009/31562
2009/31563
2009/31564
2009/31566
2009/81736
2009/81737
2009/81738
2009/81741
2009/87465
2009/89337
2009/92820
2009/92821
2009/98339
2009/98340
2009/98341
2009/98344
2009/107234
2009/108597
2009/108971
2009/109549
2009/111753
2009/114008
2009/115505
2009/115664
2009/117329
2009/118238
2009/119821
2009/120998
2009/121101
2009/162243
2009/162244
2009/162245
2009/162246
2009/162247
2009/162248
2009/162249
2009/162252
2009/167779
2009/167780
2009/167781
2009/173287
2009/173288
2009/183521
2009/183522

Judgment

1. BATHURST CJ:

INDEX

Heading	Par
Background	[6]
Ground 1 of the Grounds of Appeal	[16]
Ground 2 of the Grounds of Appeal	[33]
Ground 3 of the Grounds of Appeal	[47]
Ground 4 of the Grounds of Appeal	[54]
The effect of the misdirection	[71]
Do the errors in the present case preclude consideration of the proviso?	[74]
Would the appellant have inevitably been found guilty on the evidence properly admitted against him?	[100]
Count 1 - Mr Theo Katsantoni	[163]
Count 2 - Mr John Lagomigis	[205]
Count 9 - Mr John Lagomigis	[205]
Count 45 - Mr John Lagomigis	[205]
Count 6 - Mr Peter Tsigolis	[268]
Count 7 - Mr Walter Butler	[301]
Count 8 - Mr Walter Butler	[301]
Count 10 - Mrs Leanne Magoulias	[341]
Count 11 - Mrs Leanne Magoulias	[341]
Count 12 - Mr Sotirios Magoulias	[372]
Count 13 - Mr Sotirios Magoulias	[372]
Count 14 - Mr Stelianos Mangafas	[449]
Count 54 - Mr Stelianos Mangafas	[449]
Count 15 - Ms Alice-Anne Sweeney	[501]
Count 16 - Ms Alice-Anne Sweeney	[501]
Count 17 - Mr John Dimitroulas	[544]
Count 18 - Mr John Dimitroulas	[544]
Count 19 - Mrs Maria Rafeletos	[594]
Count 20 - Mrs Maria Rafeletos	[594]
Count 21 - Mr Stelios Rafeletos	[630]
Count 22 - Mr Stelios Rafeletos	[630]
Count 23 - Mr Elijah Magliveras	[711]
Count 27 - Mr Elijah Magliveras	[711]
Count 24 - Ms Georgina Pasch	[776]
Count 25 - Mr Nick Fotiou	[806]
Count 26 - Ms Tina Maiorana (Leas)	[856]
Count 28 - Mr Theo Akis (Theodore Theologou)	[895]
Count 29 - Mr Steven Venieris	[937]
Count 44 - Mr Steven Venieris	[937]
Count 30 - Mr Steven Liontos	[1000]
Count 31 - Mr Steven Liontos	[1000]
Count 32 - Mr Steven Liontos	[1000]
Count 33 - Mr Steven Liontos	[1000]
Count 34 - Mr Steven Liontos	[1000]
Count 35 - Mr Steven Liontos	[1000]
Count 36 - Mr Neil Jensen	[1001]
Count 38 - Mr Doureid Dannaoui	[1042]
Count 43 - Mr Thomas Kapetanios	[1090]
Count 46 - Ms Pagona Skoulos	[1129]
Count 47 - Ms Pagona Skoulos	[1129]
Count 49 - Mr Spiros Skandalis	[1231]
Count 50 - Mr Spiros Skandalis	[1231]
Count 51 - Ms Kalliopi Foundis	[1307]
Count 53 - Dr Leon Jacob	[1348]
Count 52 - Mr Joseph D'Cruz	[1402]
Count 55 - Mr Maged Aziz	[1467]
Count 56 - Mr Thiren Pillay	[1506]
Count 57 - Mr Michael Sharp	[1507]
Count 3 - Ms Anastasia Bouzianos	[1508]
Count 4 - Ms Roxani Stavrou	[1537]
Count 5 - Mr Georgios Tsamados	[1555]
Count 37 - George Elliot	[1586]
Count 39 - Ms Constantina Vrakas	[1649]
Count 40 - Ms Constantina Vrakas	[1649]
Count 41 - Mr Sotirios Vrakas	[1649]
Count 42 - Mr Sotirios Vrakas	[1649]
Count 48 - Mr Nick Tsigolis	[1727]
Conclusion on conviction appeal	[1771]
The sentence appeal	[1772]
Consideration	[1787]
Orders	[1795]

1. Angelos Giourtalis (the appellant) was convicted of 49 counts of defrauding the Commonwealth in contravention of s 29D of the Crimes Act 1914 (Cth) (the Act) and 8 counts of attempting to defraud the Commonwealth contrary to s 7(1) and s 29D of the Act. The relevant sections as they existed at the time of the offences of which the appellant was convicted were in the following terms:

"29D A person who defrauds the Commonwealth or a public authority under the Commonwealth is guilty of an indictable offence."

"7(1) Any person who attempts to commit any offence against any law of the Commonwealth, whether passed before or after the commencement of this Act, shall be guilty of an offence and shall be punishable as if the attempted offence had been committed.

(2) For the person to be guilty, the person's conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact."

1. In the broadest of terms, the offences involved the appellant, who is an accountant, arranging for the preparation of tax returns which were said to be false to his knowledge, having them lodged electronically by another accountant who was a registered tax agent and retaining refunds from the Australian Taxation Office (ATO) when they were received.

1. The appellant was sentenced to an effective sentence of nine years on all counts with a non-parole period of six years and three months expiring on 13 October 2017.

1. By Notice of Appeal filed on 4 September 2012, the appellant appealed against his conviction and sought leave to appeal against sentence. The grounds of appeal were as follows:

"1 The trial judge erred in directing the jury on honest and reasonable mistake resulting in a miscarriage of justice.

2 The trial judge erred in directing the jury on breach of the rule in Browne v Dunn.

3 The trial judge erred in directing the jury that foreign residents only have to declare income to the ATO derived from Australian sources if they have been resident in Australia for six months or more of the income year.

4 The trial judge should not have permitted evidence to be used as tendency and co-incidence evidence.

5 In sentencing the appellant the judge failed to take into account, or give sufficient weight to, the long delay in bringing the proceedings.

6 The sentence imposed was too severe."

Background

1. It will be necessary to deal with the facts in some detail later in this judgment. However, for the purpose of considering the grounds of appeal the following summary is sufficient.

1. As I indicated, the appellant was an accountant. He carried on his practice at Brighton Le Sands through a company, Ramace Pty Ltd (Ramace). The appellant was not a registered tax agent and thus was not authorised to electronically lodge income tax returns.

1. In addition to his accountancy practice, the appellant carried on business as a finance broker and money lender. The clients with whom the proceedings were concerned were in the main relatively unsophisticated members of the Greek community who had come to the appellant for assistance in connection with their financial affairs or to seek financial assistance.

1. The appellant was alleged to have collected some personal and financial information from these clients and then caused false tax returns to be prepared. It was alleged that the manner in which this was done was that the appellant would prepare false group certificates and also false profit and loss and income and expense statements for businesses purportedly carried on by the clients. The group certificates were said to be false as to the identity of the clients' employer, the amount of income earned in the course of employment and the amount of tax deducted out of such income.

1. It was alleged that some of the clients in respect of whom these returns were prepared did not authorise the appellant to prepare tax returns at all, whilst in other cases he was authorised to do so but the details were false.

1. It was alleged that the arrangement by which the returns were lodged was that the false information was posted to a Mr Juan Campos, an accountant at Marrickville Accounting Services. Mr Campos had an arrangement with other accountants, Messrs Ricardo Lopez and Jorge Gonzalez, who for a small fee prepared returns based on the information provided by Mr Campos and then provided the returns on discs to Mr Vince Filocamo of Filocamo & Associates, an accountant and tax agent. Mr Filocamo would use his tax agent registration to electronically lodge the returns.

1. Taxation refunds were received by the appellant and banked into accounts which he operated and controlled. In none of the cases the subject of the charges did the client receive the whole of the refund, although in some cases they received some money back from the appellant. The appellant contended that he was entitled to retain the money as repayment of advances or fees due to him. In some cases he produced authorities purportedly signed by the client to pay the money into a bank account maintained by Ramace. There were disputes on a number of occasions as to the authenticity of the signature and the circumstances in which the authorities came to be signed.

1. The appellant raised a variety of defences. One was that in respect of some returns, principally ones which identified a company Ladadika Pty Ltd (Ladadika) as the taxpayers' employer, the appellant made a mistake as to the true identity of the employer. In his evidence in chief at the trial the appellant said he made this mistake in respect of Mr Theo Katsantoni (Count 1); Mr John Lagomigis (Counts 2 and 9); Mr Peter Tsigolis (Count 6); Mr Walter Mark Butler (Counts 7 and 8); Ms Leanne Magoulias (Counts 10 and 11); Mr Sotirios Magoulias (Counts 12 and 13); Mr Stelianos Mangafas (Counts 14 and 54) although the mistake in relation to Count 54 related to an employer other than Ladadika, European Enterprises Pty Ltd (European Enterprises); Ms Alice-Anne Sweeney (Counts 15 and 16); Mr John Dimitroulas (Counts 17 and 18); Ms Maria Rafeletos (Counts 19 and 20); Mr Stelios Rafeletos (Counts 21 and 22); Ms Georgina Pasch (Count 24); Ms Tina Leas (Count 26); Mr Elijah Magliveras (Counts 23 and 27); Mr George Elliot (Count 37) although the incorrect employer in that case was a company other than Ladadika, Hird Nominees Pty Ltd (Hird Nominees); Ms Constantina Vrakas (Counts 39 and 40) although the mistakes for Counts 39 and 40 were that in the 1998 tax year it was said she worked for Phoenicia Auto Services (Phoenicia) rather than AAANG Holdings Pty Ltd (AAANG), whilst in the 1999 tax year she was described as working for Hird Nominees rather than AAANG; Mr Sotirios Vrakas (Counts 41 and 42) the mistake in this case being that it was stated he worked for Phoenicia in 1998 and Hird Nominees in 1999, rather than AAANG; Ms Pagona Skoulos (Counts 46 and 47) although the mistakes for Counts 46 and 47 were that in both years it was said that she worked for One Shop Pty Ltd (One Shop); Mr Spiros Skandalis (Counts 49 and 50) the mistake in this case being that it was stated he worked for Ladadika in 1998 and Master Auto Trim in 1999, rather than Kramfors Developers Pty Ltd (Kramfors); Mr Thomas Kapetanios (Count 43) the relevant mistake being that he worked for One Shop rather than AAANG; Mr Nick Tsigolis (Count 48) the mistaken employer in this case being Hird Nominees; and, Mr Maged Aziz (Count 55) the mistaken employer in this case being Chalmers Management Pty Ltd (Chalmers).

1. Thus, in respect of 36 of the charges the appellant contended that the incorrect name of the employer was a result of what he described as an honest mistake.

1. It is also relevant that at least three of the counts related to overseas residents (Counts 3, 4 and 5).

Ground 1 of the Grounds of Appeal

(a) The directions of the trial judge

1. The trial judge provided both oral and written directions.

1. In her written directions she described the elements of the offence under s 29D of the Act in the following terms:

"In order to establish the elements of the offence, the Crown must prove that the accused:

i. Deprived the Commonwealth of money.. or prejudiced the interests of the Commonwealth and

ii. Did so intentionally and

iii. Used dishonest* means to do so and

iv. Knew there was no right to deprive the Commonwealth of that money or to prejudice it's interests."

(Emphasis in original)

1. She described the elements of the attempt offences in the following terms:

"In order to establish the elements of the offence, the Crown must prove that the accused:

i. Attempted to deprive the Commonwealth of money.. or prejudice the interests of the Commonwealth and

ii. Did so intentionally and

iii. Used dishonest* means to do so and

iv. Knew there was no right to deprive the Commonwealth of that money or to prejudice it's interests."

(Emphasis in original)

1. She then summarised the dishonesty on which the Crown relied in the following terms:

"i. The causing to be lodged an income Tax return for [taxpayer] for the financial year ended.......[tax year].

ii. The Income tax return contained false information

iii. The accused knew the information to be false

iv. The false information was intended by the accused to prejudice the interests of the Commonwealth

v. The lodging of the income tax return did in fact prejudice the interests of the Commonwealth in that taxation refunds were processed to which the taxpayer was not lawfully entitled to (Attempt counts excluded)

vi. Using false information in that return was dishonest* or fraudulent* or deceptive* conduct in that the accused was aware the information was false."

(Emphasis in original)

1. Next she defined defraud and deception as follows:

"Defraud means: to intentionally use dishonest means to deprive another entity of their property, or to imperil their .... interests. It involves the intentional creation of a situation by one person to use dishonest means to deprive another entity of money or property, or to imperil another entity's.....interests."

"Deception means: an intentional deception, whether by words or other conduct, and whether as to fact or as to law, and includes a deception as to the intentions of the person using the deception or any other person."

(Emphasis in original)

1. Finally in her written directions, she made what she described as some directions at law. Of relevance are the following:

"1. The Onus of proof is on the Crown. The accused does not have to prove anything.

2. The Crown must prove each of the elements of the offence to the standard of beyond reasonable doubt. The expression 'beyond reasonable doubt' means what it says. It is the highest level of proof in our legal system. It is given its normal English meaning."

(Emphasis in original)

1. Up to this stage it is clear that her Honour was directing that each element of the offence was required to be proved by the Crown beyond reasonable doubt. That would include knowledge that the information supplied was false and was intended to defraud the Commonwealth.

1. In her summing-up the trial judge again emphasised at a fairly early stage that the onus which rested on the Crown was to prove the elements of the offence beyond reasonable doubt (SU 6-7). She again repeated that the appellant had to have acted intentionally (SU 7) and repeated the definitions of defraud and deception (SU 9).

1. However, her Honour then gave the following direction (SU 17-18):

"I am going to speak for a little while now about the issue of mistake, because it has been raised. It has been suggested to you in this trial that mistake is a very relevant issue, and I have referred to it briefly already in relation to the mistakes Mr Giourtalis gave evidence of making mistakes in relation to spreadsheets and mistakenly transferring information from one taxpayer to another or one employer to another.

A mistake in the context of this case can only be a mistake about factual issues. It cannot and does not relate to any mistake that may be suggested as to a mistake of law. I will also give you some legal directions about obligations of taxpayers as set out in the Taxation Act, as I promised I would.

With respect to many of the tax returns prepared by Mr Giourtalis states that the inclusion of taxpayers as employees of Ladadika, or sometimes another entity, was the mistake. There was evidence which Mr Ramos remind you of yesterday about accidentally putting the wrong employee on the wrong company's spreadsheet and of all the other errors which then flowed from that original error. You have heard that evidence from Mr Giourtalis and Mr Ramos summarised for it yesterday. The Crown says that there was no such mistake. The Crown says that the explanation given does not make sense. But even if you do accept it and even if it was a mistake then that does not cure, says the Crown, the basic dishonesty of the figures provided to the Tax Department.

It is an appropriate time, therefore, to give you a legal direction as to the question of mistake. A mistake can apply where an accused is under a mistaken but reasonable belief about certain facts, which, if true, would render his conduct non criminal. You would first of all be satisfied that a mistake was honestly made. That is a reasonable mistake to make to make and it was the cause of whatever followed. The accused bears the onus of proving this mistake, if you find it to be relevant, but only on the balance of probabilities. So you would have to look at the issue of mistake and it has been raised, but you would have to be satisfied that the mistake was honestly made, that it is a reasonable mistake to make and it is the cause of whatever followed. These are things you have to consider.

The mistake that Mr Giourtalis says he made was in several instances to incorrectly, but by way of honest mistake, prepare replacement group certificates for people who had not worked for Ladadika, but had worked for other companies operated by the taxpayers or other companies operated by other people; or mistakenly prepare group certificates for people who were self employed or were being paid through their own businesses or in some instances were not working, but were to his belief being paid by their spouses to do certain things, either in the business or out of the business."

1. This is the part of the direction the subject of the first ground of appeal.

1. Subsequently in dealing with the evidence of the appellant, her Honour gave the following direction (SU 26-28):

"Now in this case Mr Giourtalis has given evidence on his behalf. The fact that he has given evidence on his behalf does not alter the burden of proof on the Crown with respect to each of the elements of the offence. The accused does not have to prove that his version is true. The Crown has to satisfy you that the account given by the accused should not be accepted as a version of the events that could reasonably be true and that is the Crown's obligation.

You have just heard Mr Giourtalis' evidence and Mr Ramos summarised it adequately for you yesterday. Again I will say to you that Mr Giourtalis says that at worst he made some honest mistakes about including some taxpayers on the wrong spreadsheet. He states that other information contained on the accounts, replacement group certificates, profit and loss statements are true and that they were taken from books and records of the businesses that he had access to.

This is not a matter, members of the jury, where you should consider whether you prefer the evidence of one or the other. That is not the way you should look at the evidence. You must look at the evidence individually on each count as a whole and decide as a matter of credibility whether you accept it from the Crown point of view. You must look at Mr Giourtalis' evidence in relation to each of the particular taxpayers individually and consider his evidence, taking into account the assessment you make as to the entirety of his credibility for the entirety of this evidence. If you accept Mr Giourtalis' evidence and what he says on any particular account, if you accept what he says in relation to a particular count or all of the counts, then you must obviously return a finding of not guilty. If however you decide that you do not positively accept his evidence, but you decide that his version leaves you with some doubt as to whether the Crown has made out its case, then again you must return a verdict of not guilty, because it would naturally follow that the Crown has not proven its case to the required standard of beyond reasonable doubt. It is only if you come to the conclusion that the account given by the accused could not be accepted as version of events that could reasonably be true and that the elements of that particular count have otherwise been made out, that you should return a verdict of guilty."

1. No objection was taken to any of the directions by either counsel for the Crown or for the appellant.

(b) The parties' submissions

1. The appellant submitted that no direction on the issue of mistake should have been given, as the issue of mistake went to the question of whether the appellant was acting dishonestly and with the intent to defraud. The appellant stated that the error in giving the direction was a radical and fundamental one which precluded the application of the proviso contained in s 6(1) of the Criminal Appeal Act 1912 (the proviso).

1. The Crown in its written submissions submitted that the jury would have been left in no doubt about the onus of proof. It submitted that the direction was given at the request of counsel for the appellant at the trial and no objection was made to the direction.

1. At the hearing counsel for the Crown accepted that it was a serious misdirection. He agreed that although her Honour did emphasise on a number of occasions that the Crown had to prove all elements of the offence beyond reasonable doubt, she did not expressly state that to find the appellant guilty the jury had to be satisfied beyond reasonable doubt that what occurred was not a mistake. Counsel for the Crown was unable to identify where counsel for the appellant at the trial had sought a direction on the issue of mistake. Such a request does not appear from a reading of the transcript.

Consideration

1. There is no doubt that the direction complained of was a serious misdirection. Intent to defraud was an element of the offence which the Crown had to prove beyond reasonable doubt. The issue of mistake having been raised required the Crown to negative that matter beyond reasonable doubt: Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493 at [28]-[30], [134]; Macleod v The Queen [2003] HCA 24; (2003) 214 CLR 230 at [35], [39].

1. This ground of appeal is made out. I will deal with the question of the application of the proviso after I have dealt with the other grounds of appeal.

Ground 2 of the Grounds of Appeal

1. The trial judge's direction on Browne v Dunn (1893) 6 R 67 was to the following effect (SU 28-29):

"It is a duty of counsel to put any relevant questions to a witness in cross-examination if they are advised of the details of that information. This is required of counsel in order to enable that witness, in this case the taxpayer, to comment on the proposition that has been put and is proposed to be put by in this case Mr Giourtalis. If the version given by Mr Giourtalis was not put to those witnesses you would be entitled to assume either that Mr Ramos was not told of such evidence before it was given or Mr Ramos was told and it slipped his mind or he did not consider it to be relevant. Mr Giourtalis in his evidence did not suggest that he had told Mr Ramos of those relevant pieces of information, so you can therefore I think assume that it did not either slip Mr Ramos' mind or that he did not consider it to be relevant. You may therefore, if you think it appropriate, consider his failure to tell counsel beforehand as a factor when assessing Mr Giourtalis' credibility."

1. In his written submissions the appellant referred to authorities which emphasised the caution that a trial judge should exercise in applying the rule in Browne v Dunn whether by directions to the jury or otherwise: RWB v The Queen [2010] NSWCCA 147; (2010) 202 A Crim R 209; R v Birks (1990) 19 NSWLR 677; MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 and Khamis v The Queen [2010] NSWCCA 179; (2010) 203 A Crim R 121. He submitted that in light of these authorities the direction was inappropriate and erroneous.

1. The appellant submitted that the effect of the direction was that he made up matters whilst being cross-examined and that this could be taken into account in assessing his credit. He indicated that the appropriate course was for the witnesses to be recalled.

1. In his submissions at the hearing, counsel for the appellant stated that there was no attempt to balance the Browne v Dunn direction by reference to the extensive body of evidence given in the proceedings. He submitted that the direction gave further weight to his submission made in respect of Ground 1 that the appellant was denied a fair trial.

1. The appellant did not indicate any substantial miscarriage of justice which flowed from the Browne v Dunn direction.

1. The Crown in its written submissions referred to 13 occasions where the appellant had confirmed in his evidence that his counsel had not put his version of events to a Crown witness. He also referred to eight occasions where the appellant confirmed he had not given evidence of his version of events in his examination in chief and 13 occasions where he said he had not told his counsel about his version of events.

1. Counsel for the appellant accepted that the submission referred to in par [38] above was factually accurate but said the cross-examination should not have been allowed and it was unfair to leave it to the jury solely on the basis of credibility, particularly having regard to the extensive evidence in chief and cross-examination. However, no objection was taken to the cross-examination and no ground of appeal was raised in respect of it.

1. The Crown submitted that because of the numerous breaches of the rule it was not an available option to recall witnesses after the Crown had closed its case. Counsel for the Crown pointed to the fact that prior to the summing-up the trial judge indicated that she proposed to give a Browne v Dunn direction and counsel for the appellant agreed to it. It should be noted, however, that the trial judge did not set out the nature of the direction she proposed to give although no objection ultimately was taken to it.

Consideration

1. In R v Birks supra, Gleeson CJ with whom McInerney J agreed, stated that the rule in Browne v Dunn does apply in criminal as well as civil proceedings in this State. However, he stated that the consequences of failing to observe the rule may vary depending on the circumstances of the case, but they will usually be related to the central object of the rule, namely, to secure fairness: R v Birks supra at 689.

1. In MWJ supra the High Court again emphasised the need for care in applying the rule in criminal trials. Gummow, Kirby and Callinan JJ, at par [41], made the following remarks:

"... The position of an accused who bears no burden of proof in a criminal trial cannot be equated with the position of a defendant in civil proceedings. The rule in Browne v Dunn can no more be applied, or applied without serious qualification, to an accused in a criminal trial than can the not dissimilar rule in Jones v Dunkel. In each case it is necessary to consider the applicability of the rule (if any) having regard to the essential accusatory character of the criminal trial in this country."

(Citation omitted)

1. MWJ supra concerned a trial without a jury, so consideration was not given as to what if any directions a jury should be given in respect of the rule.

1. RWB supra concerned a case where a direction was given in terms somewhat similar to the one in the present case. Simpson J, with whom the other members of the Court agreed, reviewed the authorities on the issue and concluded that the direction should not have been given. Her Honour made the following remarks:

"[101] These authorities make it very plain that a trial judge should exercise great caution in directions to the jury concerning the failure of an accused's counsel to comply with the rule in Browne v Dunn. Browne v Dunn is an ancient and useful rule of practice and casts a considerable burden of care on counsel. But counsel are fallible and more than one inference may be drawn from non-compliance with the rule. Opposing counsel will always suggest that the only, or the proper, inference is that the client (or witness) failed to include the contentious matter in his/her instructions or statement. But the reality is that that is far from the only available inference, and it may be, and often is, quite unfair to suggest to a jury that that is the only inference, or the inference that they should draw."

See also Homsi v R [2011] NSWCCA 164.

1. In my opinion the direction should not have been given. This was a case with multiple counts involving a wide range of witnesses and transactions. There can be many reasons that matters are not put to witnesses ranging from mistake, forensic choice, misunderstanding between counsel and client and, not least in a case such as the present, that in giving instructions to counsel in respect of 57 matters, the client overlooked informing counsel of matters which emerged in cross-examination.

1. In these circumstances, in my opinion, this ground of appeal is made out.

Ground 3 of the Grounds of Appeal

1. The relevant direction was in the following terms (SU 19-20):

"The other direction that I am going to give you while I am in income tax law direction mode is in relation to foreign residents. A foreign resident is a person who does not live in Australia or has not been in Australia continuously or intermittently for more than six months of a tax year. They only have to declare income to the ATO derived directly or indirectly from Australian sources during the income year if they have been resident for a total of six months or more.

Income derived from overseas sources does not have to be declared to the tax office by a foreign resident. The source of income under normal contract of employment is generally the place where the duties are performed."

The submissions of the parties

1. In the appellant's submission the direction applied to seven of the counts. The appellant submitted that the direction was incorrect because absent a double tax treaty, the assessable income of foreign residents included income derived from Australian sources during the year in question: Income Tax Assessment Act 1997 (Cth) s 6-5(3). The Crown accepted that this was correct and as a consequence the direction was erroneous.

1. The Crown, however, submitted that the direction had no operative effect. It submitted that the only counts to which the direction applied were Counts 3, 4, 5, 28, 39, 40, 41, 42, 49 and 50. It pointed out that it was not part of the Crown's case that the taxpayers, the subject of these counts, did not have to lodge tax returns in respect of income earned in Australia. The Crown case was that those persons in fact did not earn income or have the stated deductions deducted from their salary. The Crown pointed out that there was no direction from the judge that any particular foreign resident had no obligation to disclose Australian source income.

1. The Crown submitted that in those circumstances no question of whether or not there was an obligation to declare Australian source income arose.

Consideration

1. The direction erroneously stated the law so far as it concerned tax payable on Australian source income derived by a foreign resident. However, in my opinion, the error was entirely inconsequential.

1. I have reviewed the evidence in relation to each count below. As is apparent from that review, the direction was inconsequential as the claim on each of the counts in question was based on the fact that the relevant taxpayers had derived no Australian income during the years in question, nor had the deductions claimed been deducted from any income which they earned. The misdirection was inconsequential and there was no miscarriage of justice.

1. It follows that this ground of appeal was not made out.

Ground 4 of the Grounds of Appeal

1. The tendency and coincidence notice the subject of this ground was served on 20 May 2011. It was in the following terms:

"Notice is hereby given that the Prosecution presently intends to adduce evidence of:

(a) 'tendency' pursuant to the tendency rule in sub-section 97(1) of the Evidence Act 1995, ie. evidence of the character, reputation or conduct of a person, or tendency that a person has or had to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way or to have a particular state of mind; and

(b) 'coincidence' evidence pursuant to the coincidence rule in sub-section 98(1) of the Evidence Act 1995, ie. evidence that 2 or more related events occurred to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind.

1. The person whose 'tendency' is the subject of the evidence sought to be adduced is Angelos Giourtalis (the 'Accused').

2. The 'tendency' sought to be proved by the Prosecution is that the Accused has or had the following tendencies:

(a) a tendency to cause income tax returns to be lodged with the Australian Taxation Office (the 'ATO') containing information which the Accused knew to be false, including false information relating to:

(i) income; and

(ii) tax instalment deductions;

(b) a tendency to cause income tax returns to be lodged with the ATO containing false references to the named taxpayer being employed by:

(i) Ladadika Pty Limited;

(ii) Hird Nominees Pty Limited; or

(iii) Phoenicia Auto Service;

(c) a tendency to cause income tax returns to be lodged with the ATO without first obtaining approval from the named taxpayer; and

(d) a tendency to receive tax refund cheques issued in the names of taxpayers and to deposit those cheques into bank accounts controlled by him.

3. The 'coincidence' evidence is to be tendered to prove that:

(a) it was not a co-incidence that the Accused caused income tax returns to be lodged for taxpayers named:

(i) Anastasia Bouzianos;

(ii) Roxani Stavrou;

(iii) Georgios Tsamados;

(iv) George Elliot;

(v) Constantina Vrakas;

(vi) Sotirios Vrakas; and

(vii) Nick Tsigolis;

(the 'relevant taxpayers');

(b) it was not a co-incidence that the Accused caused income tax returns to be lodged for the relevant taxpayers which contained false information relating to:

(i) income; and

(ii) tax instalment deductions;

(e) it was not a co-incidence that the Accused caused income tax returns to be lodged for the relevant taxpayers which contained references to the taxpayer being employed by:

(i) Ladadika Pty Limited;

(ii) Hird Nominees Pty Limited; or

(iii) Phoenicia Auto Service; and

(f) it was not a co-incidence that the Accused caused income tax returns to be lodged for the relevant taxpayers without first obtaining approval from the taxpayer; and

(g) it was not a co-incidence that the Accused received tax refund cheques issued in the names of the relevant taxpayers and deposited those cheques into bank accounts controlled by him.

4. The 'tendency' and 'coincidence' evidence is sought to be adduced in relation to counts 3, 4, 5, 37, 39, 40, 41, 42 and 48 on the Indictment.

5. The substance of the 'tendency' and 'coincidence' evidence which the Prosecution intends to adduce is contained within the documents set out on the attached schedule which previously have been served upon you.

6. So far as is known to the Prosecution, particulars of the date, time, place and circumstances at or in which the conduct referred to in paragraph 5 above occurred are contained within the documents referred to in paragraph 5 above.

7. So far as is known to the Prosecution, the names of each person who saw, heard or otherwise perceived the conduct referred to in paragraph 5 above are contained within the documents referred to in paragraph 5 above."

1. The schedule to the notice indicated that the material to be relied on was effectively the evidence of the taxpayers in respect of whose returns the other counts related.

1. Shortly before the Crown closed its case at the trial, counsel for the appellant confirmed that he had no objection to the notice.

1. The summing-up by the trial judge in relation to the issue of tendency and coincidence was in the following terms (SU 22-26):

"The Crown says that Mr Giourtalis has a tendency to prepare documents containing false information and to do other things to cause that information to become part of an income tax return. The Crown say he caused these returns to be lodged with the tax department. The Crown say that the accused has a tendency to cause income tax returns to be lodged with the ATO containing information which Mr Giourtalis knew to be false.

Further and in particular, the Crown allege that Mr Giourtalis knew the details with respect to income and tax instalment deductions were false either because he was aware that certain expenses were incorrect or that details in relation to employment were incorrect. The Crown also say that Mr Giourtalis has a tendency to cause income tax returns to be lodged with the ATO without first obtaining approval from the named tax payer and the Crown also allege that he has a tendency to cause income tax returns to be lodged with the ATO containing false references to the named taxpayer being employed either by Ladadika Pty Limited, Hird Nominees Pty Limited, Phonecian Autos Pty Limited.

In this regard, Mr Giourtalis does not deny that many of the documents he prepared were in error and he does not deny in relation to the receipt of tax refunds that the tax refund cheques went into an account controlled by him, that is Ramace Pty Limited. He has an explanation as to why that occurred and that was he says he had authorities from tax payers.

The Crown also say that in relation to some of the taxpayers who you have not heard from and Mr Crown referred to these taxpayers as the Greek taxpayers yesterday, and they are Anastasia Bouzianos count number 3, Roxani Stavrou count number 4, Georgios Tsamados count number 5, Constantina Vrakas counts number 39 and 40 and Sotirios Vrakas counts number 41 and 42. No evidence has been given by them. You will see from the DIMIA reports tendered in the volumes that you have before you, that those taxpayers are apparently not in Australia.

Now the instructions I gave you earlier relate to treating each offence and each charge separately. As such you cannot treat evidence on one matter in evidence in another matter. You cannot let the fact that Mr Giourtalis is facing fifty-seven charges prejudice you in relation to your consideration of each of these charges individually. However the Crown alleged that he has a certain tendency to behave in the way that I've just set out. They also allege that it was not a coincidence that Mr Giourtalis caused income tax returns to be lodged for the taxpayers that I have just read out, that is for sequences or counts number 3, 4, 5, 39, 40, 41 and 42.

The Crown allege that is not a coincidence that he caused income tax returns to be lodged for those taxpayers which contained false information about their income and tax instalment deductions. The Crown also say that it is not a coincidence that Mr Giourtalis lodged income tax returns for those taxpayers which contains references to the companies Ladadika Pty Limited, Hird Nominees Pty Limited and Phonecia Holdings Pty Limited. They say further that it was not a coincidence that Mr Giourtalis caused income tax returns to be lodged without first obtaining the taxpayer's signature.

Now that evidence is before you because of what the Crown says is a pattern of behaviour that reveals the accused has a tendency to act in a particular way as I have just detailed, that is the preparation of and inclusion of false information in tax returns to cause those income tax returns with false information to be lodged and to do so without the approval of tax payers and to receive the tax refunds.

You have heard Mr Giourtalis's explanation in relation to each of these taxpayers and these are all factual matters for you to decide members of the jury. My direction that I am giving you now relates to how, and only how, you can use evidence of Mr Giourtalis's evidence in relation to what the Crown says is a tendency and lack of coincidence in relation to the other counts that I have referred to, then you can only use them in relation to the specific counts that I have referred to.

You have to make two findings beyond reasonable doubt before you can use this tendency and lack of coincidence evidence. The first finding is that you must be satisfied beyond reasonable doubt that the acts occurred. That is that Mr Giourtalis did these things that the Crown alleges that causes them to say he has a particular tendency to do things. In making that finding, you do not consider each of the acts in isolation but consider all of the evidence and ask whether you are satisfied that the particular act or the tendency relied upon, actually occurred.

You must look at the evidence in relation to each of the other taxpayers. If you cannot find that they are proved beyond reasonable doubt, then you must put aside any suggestion that the accused has the tendency advanced by the Crown. You cannot use it at all.

If you do find beyond reasonable doubt that the acts alleged by the Crown occurred, then you go on to consider a second finding. The second question you must ask yourself is whether, from the facts you found to be proven beyond reasonable doubt, (that is the acts alleged in relation to the false information alleged, the using the false information, the lodging of income tax returns) if you find that proved beyond reasonable doubt, whether you can infer or conclude beyond reasonable doubt that the accused had the tendency to act in the way that the Crown alleges. Now I have used the word infer there because I have told you the care you must take with inferences. If you cannot daw that inference or conclusion beyond reasonable doubt, then you are to put aside the suggestion that the accused had that tendency.

The evidence must not be used by you in any other way. It would be completely wrong for you to otherwise reason that if you suggest the accused has committed one of the offences charged, that he must have committed the other offence. You have to go through the two stage process that I have told you about, that is to make findings beyond reasonable doubt in relation to whether the first set of acts complained of, occurred and then decide whether you can infer to the required standard again, that he had such a tendency to act in such a way in relation to the second group of charges.

In relation to the coincidence, it is suggested that similarities in the counts I have referred to are very similar to others. The similarities suggested are: the use of the company Ladadika, the high tax instalments, the use of lodgement of returns without tax payer approval. That evidence is before you because sometimes it may be that there is such a similarity between two different acts and circumstances that you may be satisfied that a person who did one act or set of acts must have done the other acts or set of acts. That is to say that the similarity between the two separate acts is so marked and the circumstances in which they occurred is so marked, that because of the improbability of the events occurring coincidentally, you may use that to establish that the accused committed the second group of acts, but I repeat you can only use this pattern of behaviour if you make findings beyond reasonable doubt in relation to the first set of facts that are alleged by the Crown and you cannot use it as a general way of finding facts in relation to all of the charges, only the ones I have specifically mentioned. The others I remind you, you must consider the evidence separately on each of the charges."

1. No objection was taken to this direction.

The submissions of the parties

1. In his written submissions the appellant simply asserted that the prejudice from the evidence was high and the tendency and coincidence evidence should not have been allowed. Apart from describing the evidence as incredibly prejudicial, counsel for the appellant added nothing further to the written submissions.

1. The Crown pointed to the fact that the tendency and coincidence notice was not opposed and that no objection was taken to either the evidence or the directions. It submitted the admission of the evidence was a matter of discretion and no error was shown in the exercise of that discretion.

1. The Crown also submitted that in relation to the counts the subject of the tendency and coincidence notice, other evidence demonstrated that the returns were false and the appellant was not entitled to retain the refunds.

1. The Crown also submitted that in fact the direction assisted the appellant because it directed the jury's attention to the limited purpose for which evidence on one count could be used in relation to evidence on another.

Consideration

1. It is difficult to perceive how this ground of appeal can succeed in circumstances where the tendency and coincidence notice was consented to, the evidence in question was admitted without objection and where no objection was taken to the direction of the trial judge.

1. Further difficulty arises by reason of the fact that neither the ground of appeal nor the appellant's submissions identify with any clarity the nature of the error in respect of which complaint is made. Thus, it is not clear whether or not it is said that the trial judge was in error in thinking that the evidence had significant probative value (Evidence Act 1995 s 97(1)(b)), or that the probative value was substantially outweighed by any prejudicial effect (Evidence Act s 101).

1. The ground of appeal can be dealt with shortly. First, as no objection was taken to the evidence it cannot be said that the trial judge was in error in admitting it: Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297. Second, leaving this to one side, no error of discretion by the trial judge in admitting the evidence was identified by the appellant in his submissions. The appellant did not contend, contrary to the Crown, that the question of whether the judge fell into error was to be decided by the principles set out in House v The King [1936] HCA 40; (1936) 55 CLR 499: see R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308 at [36]; R v Zhang [2005] NSWCCA 437; (2005) 158 A Crim R 504 at [105]; contra Basten JA in dissent on this point at [45]; Dao v The Queen [2011] NSWCCA 63; (2011) 81 NSWLR 568 at [157], [167]-[173], [211], [213]; cf Spigelman CJ at [61], Allsop P at [100]; Bangaru v The Queen [2012] NSWCCA 204; (2012) 297 ALR 108 at [261]-[266]; Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51 at [74]-[75]; contra R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 and PNJ v Director of Public Prosecutions [2010] VSCA 88; (2010) 27 VR 146 at [15]-[16].

1. Even if the issue was to be considered by reference to the principles laid down in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, the same result would be reached. In Dao supra Allsop P described the analysis required by s 97(1)(b) in the following terms:

"[98] The question of probative value is a question of relevance: the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. This is a matter of logical analysis in the light of the balance of posited evidence. It is a judgment or evaluation, but one by reference to a fixed clear legal standard and is not an evaluation of the kind the subject of consideration in Podrebersek, Norbis v Norbis, Singer v Berghouse or even s 7 of the Contracts Review Act. This is the case even with the addition of a qualifying adjective 'significant'.

[99] That, however, is not the end of the enquiry. A statutory precondition is provided for in s 97(1)(b) that the court (that is the judge ruling on the admissibility) thinks something. That something is that the evidence 'will', that is looking forward, have the required quality. I do not think that that requires predicting how a jury will react to the evidence (if there is a jury), other than through the logical assessment called for by the definition of 'probative value'. What is required however, as a precondition, is that the court thinks that it will have that effect in the body of anticipated or expected evidence. In the ordinary course this is a quintessential task of a trial judge dealing with the living fabric of the trial and the evidence unfolding before him or her.

[100] The words of the section are not 'if the evidence has significant probative value'; they are, 'unless ... the court thinks the evidence will ... have ... significant probative value'. What is to be reviewed in the appellate process is the state of mind of the court about a future hypothesis based on logical processes, including weighing of evidence in a framework of proven or assumed evidence. The appeal court is not reviewing the fact of the probative effect of the evidence; it is reviewing what the court thinks that will be. That involves an assessment as to whether the judge approached the question by reference to correct principles and whether it was open for him or her to draw the (limited) evaluative conclusion that was drawn. Review will be of the character analogous to that discussed in Shrimpton v The Commonwealth [1945] HCA 4; 69 CLR 613 at 620, referred to in Dwyer v Calco Timbers at 138 [39]; and in Minister for Immigration v Eshetu [1999] HCA 21; 197 CLR 611 at 651-654, though, importantly, recognising that the power the subject of review is judicial and not executive. In practice, there is likely to be little difference between this approach and the application of House v The King."

1. In the present case the effect of the tendency and coincidence notice was that in respect of Counts 3, 4, 5, 37, 39, 40, 41, 42 and 48 the prosecution would rely on the evidence of the persons whose purported tax returns were the subject of the other counts as showing the relevant tendency or lack of coincidence. Taken in conjunction with the evidence in relation to the counts in respect of which the tendency and coincidence notice was relied upon to which I have referred in detail below, the material relied upon in the notice if proved beyond reasonable doubt would, in my opinion, have significant probative value in establishing that the insertion of the incorrect employers in the returns of Mr Elliot (Count 37), Ms Vrakas (Counts 39 and 40), Mr Vrakas (Counts 41 and 42) and Mr Nick Tsigolis (Count 48) was not the result of an honest mistake. It would also be of significant probative value in establishing in respect of all counts the subject of the tendency and coincidence notice that, to the extent the information contained in the tax returns was false, it was false to the knowledge of the appellant. It would also have significant probative value on the question of whether or not the returns the subject of the counts in question were lodged without approval from the taxpayer.

1. So far as pars 2(d) and 3(g) of the notice are concerned, it was not in issue that the refund cheques were banked into an account controlled by the appellant. Further, it was ultimately not in issue that the returns lodged on behalf of the taxpayers the subject of these counts were lodged at the behest of the appellant.

1. Further, in my opinion, the probative value substantially outweighs the prejudicial effect. There was no objection to joint trials on all counts. Thus the evidence relied on in the notice would have been before the jury in any event. The trial judge in her direction indicated that each charge had to be considered individually and gave a clear direction as to the limited use which could be made of the tendency and coincidence evidence. In these circumstances the prejudice arising from the use of the evidence as demonstrating tendency and lack of coincidence was limited and, in my opinion, was substantially outweighed by its probative value. The same result is reached in the application of the approach by Whealy JA in respect of coincidence evidence in DSJ v The Queen [2012] NSWCCA 9; (2012) 259 FLR 262 at [78]-[80].

1. It follows that this ground of appeal is not made out.

The effect of the misdirection

1. A misdirection as to honest mistake affects all counts except Counts 25, 28, 29, 30-36 inclusive, 38, 44, 45, 51-53 inclusive, 56 and 57. Of these counts all but Counts 30-35 inclusive, 56 and 57 were affected by the Browne v Dunn direction.

1. No submission was made to the effect that the misdirections caused a miscarriage of justice or otherwise impacted on those grounds of appeal to which the impugned directions did not relate.

1. It follows, irrespective of the application of the proviso, that the appeal should be dismissed so far as it relates to Counts 30-35 inclusive, 56 and 57.

Do the errors in the present case preclude consideration of the proviso?

1. It is well established that there are cases where errors in the summing-up or directions given by the trial judge are such that it is inappropriate to apply the proviso irrespective of the apparent strength of the Crown case. In Quartermaine v The Queen [1980] HCA 29; (1980) 143 CLR 595, the first of the cases relied on by the appellant in support of the proposition that the present was such a case, Gibbs J at 601 approved the statement of Wickham J, who delivered the judgment of the Court of Criminal Appeal, that the proviso would not be applied if the trial was so irregular that no proper trial had taken place in "that there had been a serious departure from the essential requirements of the law". His Honour referred as an example to Andrews v The Queen [1968] HCA 84; (1968) 126 CLR 198, where the accused was not in reality tried for the offence for which he was indicted. He held that the proviso could not be applied in the case before him when the jury was not asked to consider the elements of the particular offence for which the appellant was convicted: Quartermaine supra at 601.

1. The appellant also relied on the well-known passage from Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365. In that case the majority, after referring to what was said by Gibbs J in Quartermaine supra, made the following remarks at 372-373:

"This view [the view expressed by Gibbs J in Quartermaine] is undoubtedly correct, for the proviso was not intended to provide, in effect, a retrial before the Court of Criminal Appeal when the proceedings before the primary court have so far miscarried as hardly to be a trial at all. It is one thing to apply the proviso to prevent the administration of the criminal law from being 'plunged into outworn technicality' (the phrase of Barwick C.J. in Driscoll v. The Queen; it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso: see Reg. v. Hildebrandt; Reg. v. Henderson; Reg. v. Couper."

(Citations omitted)

1. Their Honours went on to say that there was no rigid formula to determine what constituted such a radical or fundamental error.

1. In support of the proposition that the present case was one which fell into the categories of cases referred to in the passage from Wilde supra cited above, the appellant relied on three other cases. The first was S v The Queen [1989] HCA 66; (1989) 168 CLR 266, in which the accused was charged with three counts of carnal knowledge, each occurring within specified 12 month periods. The complainant gave evidence of two specific acts of intercourse during the specified period and numerous other acts over a two year period. It was held that in the absence of identification of the acts charged, the Crown could not lead evidence equally capable of referring to a number of occurrences any one of which might constitute the offence. The majority, following Wilde supra, held that it was not an appropriate case to apply the proviso. Dawson J held that the accused was reduced to a general denial and was unable to raise specific defences such as alibi defences which related to each particular offence charged. He also pointed out that individual jurors may have selected different occasions as constituting the offence. In these circumstances his Honour held that there was a substantial miscarriage of justice precluding the application of the proviso. Toohey J and Gaudron and McHugh JJ in separate judgments reached the same conclusion for substantially the same reasons: S v The Queen supra at 282-283, 287-288.

1. The appellant also relied on Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250, which involved a judge alone trial for certain sexual offences. Section 33 of the Criminal Procedure Act 1986 required the judge in those circumstances to indicate in his judgment the principles of law applied and the findings of fact made, and to take into account any warning which would have been given to a jury. If the case had been tried by a jury the trial judge would have been required to have given a warning to the jury in the terms set out in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79. The trial judge failed to have regard to this requirement or to record it. The Court in a joint judgment said it was an inappropriate case for the application of the proviso. Their Honours made the following remarks:

"[39] With respect to the application of the proviso, it has been held in this Court that not every wrong decision on a question of law will lead to the quashing of the conviction or a new trial and that '[t]here is no rigid formula to determine what constitutes such a radical or fundamental error' as to preclude the application of the proviso. There may be cases where the failure to satisfy the requirements of s 33 involves errors that are so trivial that the Court of Criminal Appeal may conclude that there has been a trial according to law, notwithstanding that failure. However, given the importance of the subject matter of the warning demanded by this case, the miscarriage of justice was a substantial one. This was not a case for the application of the proviso."

(Citations omitted)

1. None of these cases involved a misdirection regarding the onus of proof. In that context the appellant relied upon the decision of this Court in R v Soto-Sanchez [2002] NSWCCA 160; (2002) 129 A Crim R 279 where, in the context of a short summing-up, the trial judge gave the following direction:

"We must be very wary of the risk of the entrapment of an innocent man. So is there a chance that the police accidentally got the wrong person. So could it be that he did come innocently to assist to [sic] two apparent strangers who appeared to come into the country the previous night with a large quantity of prohibited drugs. At the end of all your analysis of the evidence, is the only reasonable or credible explanation the guilt of the accused, namely he had the drugs when he walked out of the room and he knew he had them. Or could there be another explanation. Is there a reasonable chance on the balance of probabilities that what the accused said in his record of interview that he was merely coming to the Furama Hotel to take the people there out to see the town or to meet other people. Because if so then you must have a reasonable doubt and the accused must be acquitted."

1. The Court unanimously held that there was a real possibility that this direction reversed the onus of proof and had the effect of restricting the jury in considering reasonable doubt in relation to the prosecution evidence. Stein JA also observed that the impugned direction was virtually the last advice given to the jury. He concluded this was a fundamental error that went to the root of the trial: R v Soto-Sanchez supra at [20]-[22].

1. In an earlier decision, MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, the accused was convicted of making a false statement on oath. It was held that the trial judge erred in not acceding to a request to redirect the jury that in considering whether the accused knew his statements were false or lacked a belief they were true, the prosecution would not have established an essential ingredient of the offence charged if they were satisfied that the accused held a mistaken but genuine belief that the statements were true. The Court held that it was inappropriate to apply the proviso as the accused had lost a chance of an acquittal which was fairly open if the jury concluded that "his dogmatic evidence, although false, was incorrectly or mistakenly so": MacKenzie supra at 376.

1. Not all misdirections even of a serious nature will lead to the conclusion that the proviso cannot be applied. In Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1 the trial judge directed the jury that although the accused's right to silence could not be used in a manner adverse to him, it could be used to test the veracity of his evidence. The majority at 8, referring to Wilde supra, emphasised that there was "no mechanical formula or rigid test" to be applied in determining whether an error goes to the root of the proceedings; each case will depend on its own circumstances. They further stated that in dealing with the question it is appropriate to have regard to the strengths and weaknesses of the prosecution and defence cases in order to assess the gravity and significance of the error. The majority held that in the circumstances, the error was not of such a nature as to render consideration of the proviso inapplicable, although they ultimately held that it should not be applied.

1. In Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202, the Court held that a misdirection in respect of a provision in the Misuse of Drugs Act 1981 (WA) deeming the accused as having intent to sell or supply a prohibited drug was a misdirection as it had not been established that he had the requisite quantity in his possession for the deeming provision to apply. The Court also held it was a misdirection as the deeming provision was irrelevant to the offences of attempt and conspiracy. However, a majority of the Court held that the misdirection did not go the root of the proceedings and did not result in the trial being fundamentally flawed. The majority made the following comments:

"[22] Reduced to its essentials, the first branch of the appellant's argument concerning the proviso was that because the misdirection concerned proof of an element of each of the offences with which the appellant was charged, and because the misdirection occurred at a point when the appellant had no opportunity to address the jury about it, the appellant had been denied a proper trial. Especially was this so, so the argument ran, when the misdirection included a reversal of the onus of proof.

[23] We do not accept that the proceedings against the appellant were fundamentally flawed or 'have so far miscarried as hardly to be a trial at all'. Each of the matters which we have mentioned (the fact that the misdirection concerned an element of the offence, occurred at the end of the trial and reversed the onus of proof) may invite the most careful attention to whether the proviso can be applied; each of these matters may be said to suggest that the jury may have been led into a false or unsafe chain of reasoning. But we are not persuaded that the fact that there has been a misdirection about one element of the offence with which an accused is charged means that the trial was necessarily fundamentally flawed. After all, most cases of misdirection will concern directions about matters relevant to the jury's deliberations and yet the proviso requires that not every 'wrong decision of any question of law' lead to the quashing of the conviction or a new trial. As was said in Wilde v The Queen '[t]here is no rigid formula to determine what constitutes such a radical or fundamental error' as to preclude the application of the proviso. Simply demonstrating that there was a misdirection on a matter relevant to the jury's consideration is not sufficient.

[24] It may be that a misdirection which has the effect of denying procedural fairness and depriving an accused person of the right to have some substantial part of his or her case decided by the jury would result in a trial that is fundamentally flawed. It may also be that a misdirection about burden of proof invites closer scrutiny of the question whether the trial was fundamentally flawed but in this case it is important to put the particular misdirection into the whole context of the trial. It is convenient to do that at the same time as considering the second branch of the appellant's argument about the proviso, that the appellant lost a real chance of acquittal."

(Citations omitted)

1. More recent cases have emphasised three matters. First, it is a necessary but not always a sufficient pre-condition for the operation of the proviso that the appellate court be persuaded beyond reasonable doubt that evidence properly admitted at the trial proved the guilt of the accused. If the court is not satisfied of that matter it cannot conclude that no substantial miscarriage of justice occurred: Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at [44]; Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 at [226]; Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521 at [41]-[42]; AK v WesternAustralia [2008] HCA 8; (2008) 232 CLR 438 at [53]. In considering this matter the court is performing essentially the same function as when it decides whether a jury verdict should be set aside as unreasonable: Weiss supra at [41]; Festa supra at [123]; Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373 at [84].

1. Second, the court's task must be undertaken on the whole of the record including the fact that the jury returned a guilty verdict: Weiss supra at [43]; Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 at [128]-[130]. As a corollary, if the appellate court is unable to conclude the basis upon which a jury reached its verdict or if the jury did so without consideration of whether essential elements of the offence were proved beyond reasonable doubt, it could not be said that a substantial miscarriage of justice did not occur: see Patel v The Queen [2012] HCA 29; (2012) 86 ALJR 954 at [126]-[128].

1. Third, in Weiss the Court emphasised that there was no universally applicable criteria as to when it would be inappropriate for a court to apply the proviso even though it was satisfied of guilt beyond reasonable doubt: Weiss supra at [45]. In Nudd v R [2006] HCA 9; (2006) 225 ALR 161, Gleeson CJ, whilst emphasising that it was undesirable to seek to reduce miscarriages of justice to a simple formula, stated that circumstances when it was inappropriate to apply the proviso might include cases where the failure of process was such as to deprive the appellate court of the capacity to justly assess the strength of the case against the appellant, or if there had been a failure to adhere to the conditions essential to a satisfactory trial: Nudd supra at [6]; see also AK v Western Australia supra at [23] (per Gleeson CJ and Kiefel J albeit in dissent); Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282 at [47].

1. An example of the first class of case referred to by Gleeson CJ is Evans supra. In that case the High Court confirmed that the trial judge had erred by refusing to admit alibi evidence and held that the proviso could not be applied in such circumstances. In their judgment, Gummow and Hayne JJ emphasised that as an important element of material (the alibi evidence) was excluded and necessarily untested at the trial, the Court of Criminal Appeal could not decide on the record whether the offences were proved beyond reasonable doubt: Evans supra at [48].

1. In AK v Western Australia supra, Gummow and Hayne JJ warned against treating what was said in Wilde supra as a judicially determined exception grafted onto the otherwise general words of the statute: AK v Western Australia supra at [54]. Subsequently in Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293, Gummow and Hayne JJ again emphasised this point, making the following remarks:

"[17] The Court also pointed out in Weiss that the use of the word 'substantial' in the proviso to the common form appeal provision (no substantial miscarriage of justice) was more than mere ornamentation. The expression 'substantial miscarriage' was adopted to make plain that the common form appeal provision did away with the old Exchequer rule by which any departure from trial according to law, regardless of its nature or importance, entitled the accused to a new trial. But whether there has been a 'substantial miscarriage' at any trial will depend, as was also pointed out in Weiss, upon the particular facts and circumstances and '[n]o single universally applicable description of what constitutes 'no substantial miscarriage of justice' can be given'.

...

[33] Identifying a priori some kinds of error as precluding application of the proviso presents difficulties of the same kind as are presented by using judicial statements about the application of the proviso as some substitute for the relevant statutory test. That is, it is neither possible nor useful to seek to apply the proviso according to a taxonomy of errors at trial which describes some as 'fundamental' and others as not. And what was said in Wilde v The Queen about 'such a departure from the essential requirements of the law that it goes to the root of the proceedings' is not to be understood as prescribing or defining a class of cases to which the proviso cannot be applied. Rather, what was said in the passage quoted from Wilde is a description, in words other than the statutory words, of one kind of case in which an appellate court could not conclude that there had been no substantial miscarriage of justice. For the reasons given in Weiss, a negative proposition of this kind cannot be taken as a substitute for the statutory language.

[34] Whether the error constituted by giving the impugned instructions is properly described as 'fundamental' or as an error going 'to the root of the proceedings' would depend upon the content that is given to the expressions used. The statutory question is whether the Full Court considers that 'no substantial miscarriage of justice has actually occurred'. In answering that question it is necessary to consider the nature of the error and in doing that it will be important to consider the possible effect that the error may have had on the outcome of the trial."

(Emphasis in original and citations omitted)

1. In Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92 at [21]-[24] the plurality stated that it was neither possible nor useful to argue about the proviso by reference to some category of "fundamental defects". The plurality stated that the question posed was whether there had been a "substantial miscarriage of justice": see also Patel v The Queen supra at [126].

1. What emerges from these authorities is the need to focus on whether, in the particular circumstances which existed, there has been a substantial miscarriage of justice. As the review of the trial and the evidence which I have carried out below indicates, if this is a case where the proviso can properly be applied, I am satisfied beyond reasonable doubt that the appellant was guilty of the offences charged. However, irrespective of this matter, it is necessary to consider whether there was a substantial miscarriage of justice such that the proviso cannot be applied.

1. If the direction given by the primary judge as to honest and reasonable mistake had stood alone, I would have had little difficulty in concluding that regardless of the strength of the Crown case there would have been a substantial miscarriage of justice. The direction was quite incorrect and could only have misled the jury. More significantly, it would have inevitably diverted the members of the jury from the tasks assigned to them, namely to consider whether the Crown had established a critical element of the offence beyond reasonable doubt. In these circumstances, an appellate court would be unable to place any weight on the verdict of the jury or be satisfied that absent the erroneous direction the jury, regardless of the apparent strength of the Crown case, would have entered a verdict of guilty against the appellant.

1. However, the erroneous direction did not stand alone. It must be considered in the context where the Crown asserted that it was an essential part of its case that the jury should be satisfied beyond reasonable doubt that the appellant intended to defraud the Commonwealth. Counsel for the Crown in his summing-up made the following remarks:

"The Crown has to do more than that. We have to prove that Mr Giourtalis deprived the Commonwealth of that money, and he did so intentionally, that is, this wasn't an accident, or to use his words, it's an honest mistake, he intentionally defrauded the tax office."

1. Counsel for the appellant at the trial expressly adopted these remarks:

"I would like to remind you of what my friend indicated was relevant from the outset and that's the presumption of innocence and also the onus of proof. In other words the accused doesn't have to prove anything, it's for the Crown to prove his guilt beyond reasonable doubt and that burden rests on the Crown from beginning to end of the case until you deliver your verdict."

1. It was in that context that the trial judge came to sum-up.

1. In her written directions the trial judge emphasised that one of the elements of the offence was to intentionally deprive the Commonwealth of money. Her Honour made a similar direction with respect to the counts on the indictment alleging attempt to defraud. At the outset of her summing-up she repeated that direction. Further, as I indicated at par [26] above, after giving the direction complained of she returned to the appellant's evidence, referring to the fact that he said that "at worst he made some honest mistakes about including some taxpayers on the wrong spreadsheet". She then emphasised that it was not a matter where the jury could convict on the basis that one version of the events should be preferred over another. She expressly stated that if the appellant's version left the jury in some doubt as to whether the Crown proved its case in relation to a particular count, a verdict of not guilty should be entered. She further emphasised that it was only if the jury came to the conclusion that the account given by the accused could not reasonably be true that they should return a verdict of guilty.

1. As I have indicated below, in my opinion the evidence establishes beyond reasonable doubt that the appellant was guilty of the offences charged. Whilst as I have stated that is not necessarily a sufficient basis for finding that there was not a substantial miscarriage of justice, it does not seem to me that the impugned direction of itself leads to the conclusion that such a substantial miscarriage of justice occurred. The jury were directed correctly as to the elements of the offences. The concluding remarks by the trial judge made it clear to the jury that it had to be satisfied beyond reasonable doubt that the appellant's version could not be accepted. It was a necessary precondition to a finding against the appellant that his evidence was not accepted by the jury both in relation to the charges where mistake was alleged and in relation to the other charges. In these circumstances any confusion brought about by the direction as to honest and reasonable mistake does not mean it is not possible to assess the basis on which the jury reached its verdict. If it was inevitable that a verdict of guilty would be reached on a correct application of the onus, then in my opinion in the circumstances of this case it would follow that there was not a substantial miscarriage of justice.

(ii) Count 40

1. The income tax return the subject of this count was lodged at the same time as the return the subject of Count 39. The appellant asserted that they were prepared at different times, although he said this may have meant different times on the same day.

1. Notwithstanding, a different mistake occurred to the one said to have been made in relation to the return the subject of Count 39. A different employer, Hird Nominees, was named in the return and a different correct employer, AAANG, was asserted by the appellant. Further, the group certificate for that year was demonstrably incorrect as it stated Ms Vrakas' period of employment was from 1 July 1998 to 28 February 1999 when Ms Vrakas only arrived in Australia on 3 February 1999.

1. The wage records for AAANG contain no record of Ms Vrakas being employed by that company in the year in question.

1. The appellant also acknowledged that he did not make any inquiries as to whether tax instalments were deducted.

1. Taking all these matters into account I am satisfied beyond reasonable doubt that Ms Vrakas did not work for AAANG in the period in the 1999 tax year in which she resided in Australia, and further, that the appellant prepared the tax return containing details of employment and tax deductions which he knew to be false.

1. I am also satisfied that the material was prepared and that the appellant caused the return to be lodged for the purpose of obtaining for Ramace a refund to which he knew there was no entitlement. I have set out the reasons for this conclusion in the earlier Count 39 and I will not repeat them.

1. In these circumstances I am satisfied beyond reasonable doubt that this count was established by the evidence.

(iii) Count 41

1. Mr Vrakas was not in Australia in the year in question.

1. The appellant stated that it was a mistake that Phoenicia was inserted as his employer and it should have been either AAANG or the business formerly carried on by Mr Gouramanais under the name Souvlaki Bar. He was unable to give any explanation as to why the mistake was made and unsurprisingly the records for the Souvlaki Bar do not show Mr Vrakas as an employee. AAANG had not been incorporated in the year in question. Further, the appellant stated that he did not check with Mr Vrakas to see if he earned money in Australia in the year in question.

1. So far as the business loss was concerned, it was plain that Mr Vrakas did not carry on any business in Australia in the year in question. The appellant acknowledged this at one stage of his cross-examination but then corrected himself. He said he got records from the business from Mr Vrakas but gave them back to him after he prepared the profit and loss statement and sent it to Mr Campos. Subsequently, he agreed that this would have been impossible as Mr Vrakas was in Greece.

1. In these circumstances I am satisfied beyond reasonable doubt that when the appellant prepared the material for the return and caused it to be lodged he did so knowing that the information contained in it was false.

1. I am also satisfied for the same reasons as I have given in relation to Counts 39 and 40 that the appellant prepared the false information to obtain for Ramace the benefit of a refund to which he knew there was no entitlement.

1. In these circumstances I am satisfied beyond reasonable doubt that the evidence establishes this count.

(iv) Count 42

1. The return the subject of this count was lodged at the same time as the return the subject of Count 41. The appellant was unable to provide any explanation of how a different mistake was made.

1. The wage records of AAANG do not make any reference to Mr Vrakas as an employee.

1. The appellant originally stated in cross-examination that he did not check any of the figures in the return with Mr Vrakas, although he sought to correct this. I have referred in relation to Count 40 to his evidence concerning the books and records of the business he claimed was conducted by Mr Vrakas and his acknowledgement that it would have been impossible for him to give them back to Mr Vrakas as he said he did.

1. In these circumstances there was no evidence to suggest that Mr Vrakas carried on a business in the five months he was in Australia in the 1999 income tax year and the wage records demonstrated he was not employed by AAANG. These records were in the appellant's possession. There was no basis for the appellant to conclude that Mr Vrakas had earned employment income in the year in question, much less that tax had been deducted at the highest marginal rate.

1. In these circumstances I am satisfied beyond reasonable doubt that the evidence established that the appellant prepared the material for the tax return and caused it to be lodged knowing that the information contained in it was false. For the same reasons as I have given in respect of Counts 39 to 41, I am satisfied beyond reasonable doubt that the appellant prepared the false information and caused a return to be lodged to obtain a refund for the benefit of Ramace to which there was no entitlement.

1. In these circumstances I am satisfied that the evidence establishes this count beyond reasonable doubt.

Count 48 - Mr Nick Tsigolis - Income tax return for year ended 30 June 1999

(c) The summary

1. The summary in respect of this count discloses that an income tax return for the year ended 30 June 1999 was lodged on behalf of Mr Nick Tsigolis on 12 February 2000. The return claimed that Mr Tsigolis received employment income of $32,162 from which tax instalments of $15,116.14 were deducted. It was stated that the employer was Hird Nominees.

1. The summary shows Mr Tsigolis was assessed and entitled to a refund in an amount of $9,143.83 which was paid by cheque in that amount, being deposited in the Ramace No 2 Loan account on 4 March 2000.

1. No records relating to this return were found in the appellant's possession either in hardcopy or on his computers. However, Messrs Lopez and Gonzalez held a disc containing a tax return consistent with the return that was lodged.

(b) The evidence

1. Mr Tsigolis, who gave evidence through an interpreter, stated that he moved to Australia in 1968 and was employed as a cement renderer until about 1994. He stated that in 1994 he started a cement rendering business with his cousin a Mr George Tsigolis.

1. Mr Tsigolis stated that in 1994 he was introduced by his cousin to the appellant. He said that shortly thereafter his cousin died and he continued to run the business. He said the appellant spoke to him about setting up a company. He said that he had trusted the appellant and he was told that a company was set up, Tsigolis Rendering.

1. Mr Tsigolis stated he continued in that business until some time in 2003. In 2003 or 2004 he said he went back to Greece and remained there until early in 2011.

1. Mr Tsigolis said that in the financial year ended 30 June 1999 he was not paying tax instalments. He stated he asked the appellant to prepare and lodge his tax returns. He stated that he gave the appellant his tax file number and as far as he was aware the appellant completed and lodged his tax returns. Mr Tsigolis said he never was shown a completed return for 1999.

1. Mr Tsigolis stated that he did not recall signing a 1999 return. He said the appellant asked him to sign papers. He said the appellant knew he did not read English but he did not read or explain the papers to him.

1. Mr Tsigolis denied that he ever worked for Hird Nominees.

1. Mr Tsigolis was shown the tax return lodged for him for the year in question. He stated that he did not know of the Canley Vale PO Box address. He said that the appellant did not tell him who was going to be preparing his tax return. He stated he had not heard of any of Mr Campos, Mr Filocamo or Messrs Gonzalez or Lopez.

1. Mr Tsigolis denied that he worked as a plasterer for Hird Nominees as described in the tax return. He stated he could have earned employment income of $32,162 from his own business but not from Hird Nominees or anybody else. He stated that he knew nothing about tax deductions of $15,116. He said he had never paid tax throughout the year but rather paid at the end of the financial year when the tax return was lodged.

1. Mr Tsigolis stated that he did not expect a tax refund. He said the appellant generally told him he would not have to pay anything or get any refund.

1. Mr Tsigolis denied ever borrowing money from the appellant or Ramace. He said he usually paid around about $150 for completion of his tax return.

1. Mr Tsigolis denied that he had any knowledge of the notice of assessment which had been received or the refund cheque in the sum of $9,143. He said the appellant did not tell him that he had received them.

1. Mr Tsigolis was shown the Hird Nominees replacement group certificate. He said it was incorrect and he did not recognise the signatures or the handwriting on it.

1. In cross-examination Mr Tsigolis stated that each year he gave the appellant the paperwork necessary for the appellant to complete his tax return for the year. It was put to him that Tsigolis Rendering was incorporated around 1998 but he could not recall.

1. Mr Tsigolis denied in cross-examination that the appellant told him he could not do his tax return but that he knew someone who could. He again denied that he had ever heard of Mr Campos.

1. Mr Tsigolis agreed during his cross-examination that during the 1999 financial year he did work for Tsigolis Rendering as a cement renderer. He said he could not remember earning about $320 per week net for that financial year. He said the company was paid by cheques which were paid into the company's account and he would draw money to live on.

1. The appellant said he had a book where he would write down each employee who was working for Tsigolis Rendering and he would pay that employee every week.

1. Mr Tsigolis again denied in cross-examination that he was told of the tax refund. He said that he had never heard of Ramace.

1. In re-examination Mr Tsigolis said that the appellant did not tell him that he required a group certificate from Tsigolis Rendering.

1. In his evidence in chief the appellant said that he first met Mr Tsigolis when he was about 18 years of age. He said that in 1999 Mr Tsigolis asked him or Ramace to prepare books and accounts for his business and to assist in the preparation of his tax return. The appellant described the work he did for Mr Tsigolis as obtaining all receipts and payments for the business carried on by Mr Tsigolis and his company and calculating the income received, basically collating all the information to prepare a statement of expenses or a profit and loss statement. He said there were not a lot of transactions running a cement rendering business.

1. The appellant stated that the books of account were prepared initially for Mr Tsigolis as a sole trader and after the incorporation of Tsigolis Rendering for that company.

1. The appellant stated he was responsible for the incorporation of Tsigolis Rendering. He said it would have occurred either in 1998 or early 1999.

1. The appellant stated that he did not lend Mr Tsigolis any money but Mr Tsigolis owed him fees for the work which he did for him.

1. The appellant said that he organised a loan for Mr Tsigolis to purchase a property. He said to obtain the loan Mr Tsigolis had to prepare tax returns to substantiate his income to a bank.

1. The appellant was shown the Hird Nominees replacement group certificate. He said it was incorrect. He said it was an honest mistake that arose from names being transferred from the working papers to the Excel spreadsheet. He said that Mr Tsigolis in fact worked for Tsigolis Rendering and that the other details on the group certificate were correct.

1. The appellant acknowledged that he received the refund cheque for $9,143.83 and banked it. He said he had an authority to deposit signed by Mr Tsigolis and the money was for work done. He stated that he charged a fee of $7,000 for organising the housing loan and the value of the accounting work was about $3,500 or $4,000. He stated that there was still monies owing by Mr Tsigolis after the cheque had been banked.

1. At the outset of his cross-examination the appellant stated that he knew that Mr Tsigolis worked for himself as a cement renderer in the year ended 30 June 1999. He stated that the group certificate showing Hird Nominees which was sent to Mr Campos was a mistake and it should have been a "group certificate from his own business".

1. He stated that Mr Tsigolis made an election to receive a wage from his own business. He said he told Mr Tsigolis that he could get a group certificate from his wage and pay taxes from it as well which would reduce his net profit.

1. He was asked whether he filled in an employment declaration for Mr Tsigolis and said he did not. However, the appellant said that he told Mr Tsigolis about the need for an employment declaration but he did not show him one because he did not have any to give him. He denied that his evidence in this regard was absolute nonsense.

1. He denied fabricating figures to generate the highest refund possible. He acknowledged he was aware that Mr Tsigolis did not work at Hird Nominees but said he could not be sure of whether any tax had been paid during the financial year in question. He said the approximately $15,000 tax had been deducted because that was the calculation that he made having regard to the absence of an employment declaration.

1. The appellant acknowledged that the electronic return for Mr Tsigolis for the 1999 year was entirely silent as to the receipt of any business income by Mr Tsigolis. He agreed there should have been a reference to such business income and there was not because the documents he sent to Mr Campos did not refer to any business. He stated that he could not recall whether or not he sent any profit and loss statements to Mr Campos.

1. The appellant stated that he was responsible for the incorporation of Tsigolis Rendering. He said he incorporated it in 1997 or 1998. He agreed that it was a company which had been incorporated for Mr Neil Jensen and was originally named Neil Jensen Holdings Pty Ltd. He acknowledged that he caused its name to be changed to Tsigolis Rendering on 24 November 1998. He stated that he was not aware why there was no reference to this in his records.

1. The appellant said he retained the $9,143 for fees due by Mr Tsigolis. He was asked what it was for and he stated for previous years' fees that he did work plus incorporating the company. He said his fee for changing the name and other details concerning the company was about $500 and the balance was for previous years' work. He said he could not recall exactly how much work there was in those previous years but there were definitely invoices. He said part of it would also have been fees due to Mr Campos.

1. He said Mr Tsigolis had agreed to pay for the company's fees. He agreed that that was not put Mr Tsigolis when he was in the witness box and it was suggested that this was a recent invention.

1. The appellant was reminded of his evidence in chief that Mr Tsigolis owed him more than $9,000. He said he could not recall exactly but "we had a running account".

1. The appellant said he believed the replacement group certificate was signed in front of him. He said he was certain the handwritten details were on it at the time it was signed. He then said that he was mistaken when he said Mr Tsigolis carried on the business personally in the 1999 tax year and that the income was derived from the company. He was then asked if the name change only took place on 24 November 1998, whether it was possible that Mr Tsigolis started working with the company on 1 July 1998. He said he simply put a generic date there which he got from the books and records of Hird Nominees. Again, he denied the material was a complete fabrication.

(c) Consideration

1. Mr Tsigolis denied paying any tax instalments during the year in question. He was self-employed at least until 24 November 1998, the date on which Neil Jensen Holdings Pty Ltd changed its name to Tsigolis Rendering Pty Ltd. It is by no means clear that the business structure under which Mr Tsigolis conducted his business changed at that time. However, there is nothing to suggest that tax instalments from income earned by Mr Tsigolis were deducted by the company.

1. The appellant acknowledged Mr Tsigolis did not work for Hird Nominees. His explanation of the correct position was not credible. He said Mr Tsigolis was self-employed and the group certificate should have been from his own business. He said he told Mr Tsigolis he could get a group certificate for his wage and pay tax which would reduce his net profit. This ignores the fact that Mr Tsigolis would pay tax on the amount irrespective of whether it was declared as a business profit or as a wage. It becomes even more absurd if tax was deducted at the top marginal rate. In any event, the appellant ultimately resiled from that proposition and claimed the wage was paid by the company, which seemed to have been only acquired by Mr Tsigolis in November 1998.

1. Further, there was no basis for the appellant to conclude that $15,116.14 tax was deducted from any income earned by Mr Tsigolis, much less paid to the ATO.

1. In those circumstances, I am satisfied that the appellant prepared the replacement group certificate stating that Mr Tsigolis earned employment income in the sum of $32,162 from which $15,116.14 tax was deducted, knowing it was false, and further, caused the tax return to be lodged containing that false information for the purpose of gaining a refund to which he knew Mr Tsigolis was not entitled.

1. It was the appellant's intention that Ramace benefit from the fraudulent transaction. The appellant said the refund cheque was paid into the Ramace account pursuant to an authority which he obtained. It is immaterial whether it was in repayment of a debt owed by Mr Tsigolis or otherwise.

1. In these circumstances, I am satisfied the evidence establishes this count beyond reasonable doubt.

Conclusion on conviction appeal

1. In these circumstances, the misdirections did not cause a miscarriage of justice. The proviso in s 6(1) of the Criminal Appeal Act should be applied and the appeals against conviction dismissed.

The sentence appeal

1. The appellant was sentenced to a total term of imprisonment of nine years with a non-parole period of six years and three months expiring on 13 October 2017.

1. The application for leave to appeal against sentence raised two grounds. The first was that her Honour failed to take into account or give sufficient weight to the lengthy delay in bringing the proceedings. The second was that the sentence imposed was too severe. However, the appellant directed no argument, either written or oral, to the second ground.

1. The period in respect to which the offences took place ranged from 29 June 1998 to 3 April 2001. According to a chronology annexed to an affidavit of an ATO investigator, Mr Geoffrey Williams, filed in connection with the sentence proceedings, investigations commenced in the year 2000, initially focusing on Mr Filocamo, Mr Lopez, Mr Gonzalez, Mr Campos and Hall Chadwick. On 7 May 2001, the ATO investigator responsible for the investigation was informed that the appellant was the bookkeeper for the companies in liquidation in respect of which the false group certificates were prepared.

1. In May 2002 an audit of various entities associated with the appellant was commenced. The appellant was told that there would be a full audit on 26 August 2002. However, that audit originally related to companies associated with the appellant including Ramace.

1. In October 2002 the investigator interviewed clients of the appellant who were said to have worked for One Shop. Some of those persons denied any knowledge of that company.

1. As I indicated earlier, search warrants were executed on the office and residence of the appellant in July 2003.

1. From July to December 2003, 26 witness statements were obtained. In addition, 31 further witness statements were obtained in 2004.

1. In July 2005 the appellant declined to attend a recorded interview.

1. The first brief of evidence was sent to the CDPP in November 2005 and was supplemented by additional material up to May 2007.

1. In November 2007 the CDPP determined that there was insufficient evidence concerning a significant number of the allegations. Further information was supplied up to November 2008 and thereafter Court Attendance Notices were issued on the appellant.

1. At the hearing, counsel for the appellant conceded that any delays subsequent to the finalisation of the Court Attendance Notices was not relevant to this submission having regard to the reasons such delay occurred.

1. In her remarks on sentence her Honour dealt with the question of delay in the following terms:

"The issue of delay has been raised in mitigation. It is sometimes, if there is inordinate delay, used to mitigate against the length of a sentence, where the length of the delay is unconscionable, or inordinate, or where there is not a proper explanation for a delay. However, in this case it is of less weight in my view due to the complexity of the case, the number of witnesses and the matters needed to be done in order to investigate the matter as set out in the affidavit of Mr Williams.

I note, and counsel has referred to the fact, that the investigation of this matter proceeded initially as a result of an investigation into an individual taxpayer. Rather like following a thread on a piece of knitting, the Taxation Department then had a considerable amount of work to do to unravel the complicated set of hurdles that Mr Giourtalis had put between himself and the lodgement of these returns.

I also note that much of the delay in getting this matter to trial, since Mr Giourtalis was charged, was as a result of Mr Giourtalis, or his advisors, delaying each step of the Court process. In that time the offender was on bail, he made no effort to repay monies owed, made no admissions, and did not assist in any way in the investigations. Mr Giourtalis is not going to be punished for his lack of assistance and his lack of admissions, but where the issue of delay is concerned, where the Taxation Department was required to investigate each and every step, the delay was caused by the complicated nature of these proceedings, and the fact that Mr Giourtalis made it as complicated as he possibly could."

1. The appellant submitted that notwithstanding these remarks the sentencing judge did not give the delay any weight or inadequate weight. He relied on the well-known passage from the judgment of Street CJ in R v Todd (1982) 2 NSWLR 517 at 519-520, approved by the High Court in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59:

" ... where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner."

1. The appellant submitted that the delay was inordinate and bordering on the unconscionable.

1. The Crown submitted that her Honour took the delay into account and her remarks did not reveal any error, particularly having regard to the complexity of the matter. In support of this proposition the Crown pointed to the following facts:

"(a) the delay was explained by the lengthy and complex investigation, including the need to speak to dozens of witnesses (many of whom had difficulty with English), prepare dozens of witness statements and review hundreds of thousands of documents (made up of documents from four different accounting practices, a liquidator, numerous banks and dozens of taxpayers);

(b) the length and complexity of the investigation was compounded by the fact that at least for the first three years of the investigation it was unclear whether the fraud was perpetrated by the named taxpayers, by Juan Campos, Ricardo Lopez, Jorge Gonzalez, Gonzalez Lopez Associates, Vince Filocamo, Filocamo & Associates or the Appellant;

(c) the Appellant had not, during the period of delay or otherwise, repaid to the ATO any of the tax refunds he had obtained;

(d) the Appellant made no admissions; and

(e) the Appellant had not demonstrated progress towards rehabilitation in the interim."

Consideration

1. There is no doubt that delay in the prosecution of an offence in many cases will be a matter to be taken into account in imposing sentence on the convicted person. As stated in Todd supra, weight needs to be given in those circumstances to the progress of rehabilitation during the period of the delay and the uncertainty imposed on the convicted person during such period. Each of Todd and Mill were cases where the delay was occasioned by the offender serving sentences for cross border crimes of the same nature and committed at around the same time as the offences the subject of the sentence proceedings. In those circumstances principles of totality were also relevant.

1. However, the principle is not limited to those circumstances: R v Schwabeggar (1998) 4 VR 649 at 655, 659; R v Gay [2002] NSWCCA 6; (2002) 49 ATR 78 at [15]-[18].

1. Notwithstanding, it has been recognised that in cases involving complex financial transactions, account has to be taken of the difficulty of proof and the consequential need for general deterrence in sentencing offenders. In R v Gay supra delay of three years between the time the offender had admitted the offence to the police and the commencement of proceedings was held to be a powerful mitigating factor in circumstances where the offender had repaid the tax fraudulently obtained together with the consequent penalties: R v Gay supra at [14]-[16]. By contrast in R v Kearnes [2003] NSWCCA 367, a case involving the improper use by the offender of his position as an officer of a corporation contrary to s 232(6) of the Corporations Act 2001 (Cth), it was held that the sentencing judge did not err in failing to take into account a delay of four years between the offence and the commencement of proceedings. Spigelman CJ, with whom the other members of the Court agreed, made the following remarks:

"[68] In the present case, I do not see that the delay was of such an order of magnitude as to conclude that any significant unfairness arose of a character that needed to be identified and adverted to by the trial judge in the sentencing task. There was a process of investigation by the Australian Securities Commission that continued for some years prior to the laying of charges. The period of some three and a half years for the process of investigation and determination of which charges could be pursued does not, in the circumstances, appear to me to be so excessive as to constitute a factor that requires to be taken into account in the exercise of the sentencing discretion.

[69] Although his Honour did not refer to this delay in the course of his remarks on sentence, in my view he made no error in failing to do so, even it be assumed that his Honour did not take into account this matter in any way."

1. In R v Scook [2008] WASCA 114; (2008) 185 A Crim R 164, a case involving market manipulation in contravention of s 998(1) of the Corporations Act, Buss JA summarised the principles to be taken into account in the following terms:

"[57] The relevance and significance (if any), for sentencing purposes, of delay in the charging of an offender, or in the disposition of a pending prosecution against an offender, will depend on all the circumstances of the particular case. Subject to that overriding principle and the necessity for flexibility of approach to accommodate the individual facts of each case, some guiding principles may be extracted from the preponderance of the authorities referred to by McLure JA. ...

[58] First, delay is not, of itself, a mitigating factor.

[59] Secondly, delay will not ordinarily be a mitigating factor if it has been caused by difficulties in detecting, investigating or proving the offences committed by the offender, and the period of the delay is reasonable in the circumstances.

[60] Thirdly, delay will not ordinarily be a mitigating factor if it is caused by the offender's obstruction or lack of co-operation with the State, prosecuting authorities or investigatory bodies, but the offender's reliance on his or her legal rights is not obstruction or lack of co-operation for this purpose.

[61] Fourthly, delay will not ordinarily be a mitigating factor if it results from the normal operation of the criminal justice system, including delay as a result of the offender or a co-offender exercising his or her rights; for example, interlocutory appeals and other interlocutory processes.

[62] Fifthly, delay may be conducive to the emergence of mitigating factors; for example, if, during the period of delay, the offender has made progress towards rehabilitation or other circumstances favourable to him or her have emerged.

[63] Sixthly, delay (not being delay of the kind described in the second, third and fourth guiding principles) will ordinarily be a mitigating factor if:

(a) the delay has resulted in significant stress for the offender or left him or her, to a significant degree, in 'uncertain suspense'; or

(b) during the period of delay the offender has adopted a reasonable expectation that he or she would not be charged, or a pending prosecution would not proceed, and the offender has ordered his or her affairs on the faith of that expectation.

[64] Seventhly, delay caused by dilatory or neglectful conduct by the State, prosecuting authorities or investigatory bodies may result in a discount of the sentence that would otherwise be imposed on the offender, if the court thinks it an appropriate means of marking its disapproval of the conduct in question.

[65] The guiding principles I have stated are not intended to be exhaustive or inflexible."

1. As Buss JA pointed out, the principles are not inflexible and the extent the delay would be taken into account as a mitigating factor must depend on the particular facts of the case in question. However, in the case of a complex fraud it will always be necessary to balance the effect of the delay on the offender against the difficulty and complexity of proving the offence and the need for general deterrence. In particular, although an accused person is entitled to rely on the rights and protection of the criminal law, in circumstances where such reliance has necessitated a complex and lengthy investigation which is carried out with reasonable expedition, the extent that delay can be called upon as a mitigating factor is limited, although the conduct during the period of delay remains relevant to the extent it indicated prospects of rehabilitation. Further, there may be cases where the delay is so inordinate that notwithstanding the complexity of the investigation, the fact that the accused has been left in a state of uncertainty for a considerable period of time would be a significant mitigating factor.

1. In the present case the sentencing judge took the delay into account but gave it limited weight. In my opinion she did not fall into error in adopting this course. The case involved 57 counts in relation to 36 taxpayers, some of whom had little commercial sophistication and limited command of the English language. Further, the offences were spread over a number of years and involved consideration of the affairs of a number of companies which had been wound-up and deregistered. It was inevitable in these circumstances that the investigation would take considerable time. Although perhaps it may have been conducted more quickly, it does not seem to me in the particular circumstances of the present case that the delay could be said to be inordinate or unconscionable. The appellant having quite justifiably determined not to co-operate, cannot be heard to complain in those circumstances that the sentencing judge did not give the delay greater weight.

1. Further, there is nothing to suggest the appellant's conduct during the period of the delay showed any progress towards rehabilitation. To the contrary, in 2006 the appellant was convicted of the offence of obtaining a financial advantage by deception arising out of events which occurred in June 2002.

1. In those circumstances the sentencing judge, in my opinion, did not err in the approach she took to the question of delay. In these circumstances, leave to appeal against sentence should be granted and the appeal dismissed.

Orders

1. I would propose the following orders:

(1) Appeal against conviction dismissed.

(2) Grant leave to appeal against sentence but appeal dismissed.

1. HIDDEN J: I agree with the Chief Justice's resolution of the grounds of appeal, and with his Honour's conclusion that the appeal against conviction should be dismissed by the application of the proviso.

1. The misdirection on the issue of mistake was indeed serious, and one could not be confident that its effect was removed by the approach of the Crown prosecutor in final address and the appropriate directions given by the trial judge which are summarised in [92] - [95] of his Honour's judgment. However, as his Honour points out in [97], mistake was not an issue which loomed large in the case and, on the whole of the evidence summarised in his Honour's judgment, the case against the appellant on each of the counts under challenge was compelling. In all the circumstances, I am persuaded that, even though the first two grounds of appeal have been made out, no substantial miscarriage has actually occurred.

1. As to the application for leave to appeal against sentence, I agree with what his Honour has written and have nothing to add.

1. BUTTON J: I agree with the orders proposed by Bathurst CJ for the reasons that his Honour has given, and with the additional remarks of Hidden J.

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Decision last updated: 27 September 2013