Knaggs v Commonwealth Director of Public Prosecutions - [2003] NSWSC 3

No judgment structure available for this case.

CITATION: KNAGGS v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS [2003] NSWSC 3 revised - 29/01/2003

HEARING DATE(S): 13 & 14 January 2003

JUDGMENT DATE:
17 January 2003

JURISDICTION:
Common Law

JUDGMENT OF: Adams J at 1

DECISION: Convictions quashed

CATCHWORDS: Information - validity - omission of express reference to element of offence - whether reference to offence section in Act sufficient - whether averment of fact must be explicit - whether no evidence of element of offence is jurisdictional error - s8ZL Taxation Administration Act 1953 - s146 Justices Act 1902

LEGISLATION CITED: Taxation Administration Act 1953
Income Tax Assessment Act 1936
Justices Act 1902
Crimes Act 1914
Indictment Act 1915

CASES CITED: R v Barrell & Wilson (1979) Cr App R 250
Collins (1994) 76 A Crim R 204
In Re Prescott (1979) 70 Cr App R 244
Sutton v The Queen (1983-1884) 152 CLR 528
R v Ludlow [1971] AC 29
R v Cranston (1988) 1 Qd R 159
Ex Parte Lovell re Buckley 1938 38 SR (NSW) 153
Clayton v John L Pty Ltd [1984] 1 NSWLR 344
Ex Parte Burnett; Re Wicks & Anor [1968] 2 NSWR 119
Ex parte Ryan; re Johnson 1943 44 SR (NSW) 12
DPP v Cassell (1995) 80 A Crim R 160
Craig v South Australia (1995) 184 CLR 163
Yisrael v District Court of NSW (1996) 87 A Crim R 63

PARTIES :

Douglas Knaggs
v
Commonwealth Director of Public Prosecutions

FILE NUMBER(S): SC 13434/02

COUNSEL: Plaintiff in person
Mr M Buscombe (Defendant)

SOLICITORS:
Plaintiff in person
Commonwealth Director of Public Prosecutions
(Ms C Dobraszczyk)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/12/1058

LOWER COURT
JUDICIAL OFFICER : Shadbolt J

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

THURSDAY 16 JANUARY 2003

13434/02

DOUGLAS KNAGGS v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT

1 HIS HONOUR: By information and summons dated 10 April 2002, the plaintiff, Mr Douglas Knaggs, was charged with twenty offences under s8C(1)(a) of the Taxation Administration Act 1953 (the Administration Act). That section, so far as is relevant, provides –

Failure to comply with requirements under taxation law

approved form

is guilty of an offence.” [Emphasis added.]

2 Section 162 of the Income Tax Assessment Act 1936 (the Assessment Act) provides –

approved

(a) A return or a further or fuller return for the year of income or a specified period, whether or not the person has given the Commissioner a return for the same period; or

(b) any information, statement or document about the person’s financial affairs.” [Emphasis added.]

3 The plaintiff, having received a notice from the Deputy Commissioner of Taxation (the Commissioner) on 6 February 2002 requiring him to furnish the specified returns “in the approved form”, failed to furnish any returns by 3 April 2002. The information was in the following terms –

“Details of the information laid against you:

Twenty prescribed taxation offences where, pursuant to section 8ZL of the Taxation Administration Act 1953, it is averred that:-

1. on or about 4 April 2002 at Woolloomooloo in New South Wales pursuant to paragraph 8C(1)(a) of the Taxation Administration Act , 1953 you failed to furnish a return to the Commissioner of Taxation when and as required pursuant to a taxation law, namely section 162 of the Income Tax Assessment Act 1936 and it is further averred that:-

(i) you were required by the Deputy Commissioner of Taxation, Hurstville in New South Wales by notice in writing dated 6 February 2002 to furnish to him by 3 April 2002 a return in writing on the appropriate form duly signed setting forth a complete statement of all income derived by you from all sources in Australia and elsewhere during the year ended 30 June 1982;

(ii) at all material times the Commissioner of Taxation had delegated his powers and functions in respect of the issue and contents of the notice to the Deputy Commissioner of Taxation;

(iii) the delegation has not been revoked;

(iv) the notice was duly served on you by posting it on 6 February 2001 by pre-paid letter post to you at your address for service namely 141 Brougham Street, Woolloomooloo, NSW, 2011;

(V) you failed to furnish a return in compliance with the notice to the extent that you were capable of doing so;

4 The other nineteen counts are in identical terms except each alleges a failure to furnish returns in respect of each of the years ended 30 June 1983 to 30 June 2001. Following his conviction, the plaintiff was fined a total of $5,000 in respect of all twenty offences, ordered to pay costs and, pursuant to section 8G of the Act, required to lodge returns for the years ended 30 June 1991 to 30 June 1995 inclusive on or before a certain date.

5 The plaintiff appealed against his conviction to the District Court. When the appeal came on for hearing on 27 November 2002, the transcript and exhibits of the earlier proceedings were tendered in accordance with the appropriate procedure. The plaintiff, who was unrepresented, contended that the information was void because it did not comply with s57 of the Justices Act 1902, as it contained more than one offence and that, as to the merits, the period of time provided by the notice to furnish the returns was unreasonably short. The latter question, for obvious reasons, was not agitated in this Court. Section 57 of the Justices Act 1902 states -

“Every information shall be for one offence only, and not for two or more offences. Every such complaint shall be for one matter only and not for two or more matters.”

6 The prosecution, however, relied on s4K(3) of the Crimes Act 1914 (C’th) which states –

“Charges against the same person for any number of offences against the same provision of a law of the Commonwealth may be joined in the same information, complaint or summons if those charges are founded on the same facts, or form, or part of, a series of offences of the same or a similar character.”

It is argued by the prosecution that, as there was one requirement for the production of twenty returns, and the foundation for the charges was that no returns had been supplied, the charges are “founded on the same facts”, having “a common factual origin”: R v Barrell & Wilson (1979) Cr App R 250 at 253. In the alternative, the charges form part of a “series of offences of the same or a similar character”. The plaintiff submits, however, that although it is true that the notice required the production of twenty returns, and the plaintiff was charged in relation to his failure to provide each return, the substance of the charge is the failure to obey the statutory requirement of s162 of the Assessment Act; the notice requiring production comprised a single document but there were, in substance, twenty demands; each demand arose out of the failure to supply the return applicable to the particular year. Accordingly, it is submitted, it cannot be said that the charges “are founded on the same facts”. As to the prosecution’s alternative argument, the plaintiff submitted that, as the failure to furnish the required returns occurred at the same time, there was no “series” of offences: they occurred simultaneously.

Collins

“Section 567(1) sets up a general prohibition in relation to the joinder of multiple counts in the one indictment. Section 567(2), however, sets up an exception. Relevantly, it provides that multiple counts may be joined on the one indictment if they: ‘are founded on the same facts or are, or form part, of a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose.’

Ludlow v Metropolitan Police Commissioner

Kray

Clayton-Wright

Cranston

Kray

Ludlow

Bellman

Connelly v DPP

Bargenquast

Barrell and Wilson

Bellman

Cranston

7 In my view, the common events here are the nature of the notice, the omission by the plaintiff to furnish any returns in the years specified and his failure to provide the returns required by 3 April 2002. I am therefore of the view that the first criterion in the subsection for joinder is satisfied.

8 The Oxford English Dictionary divides the meaning of series into two major categories, one of which reflects successive occurrences of things of one kind, whether temporarily or spatially contiguous and the other category comprising a set of particular objects or terms that are related in some way to each other. All except one of the cases to which I have been referred considered only whether the alleged successive events or occurrences were sufficiently similar to justify joinder. However, In Re Prescott (1979) 70 Cr App R 244, the English Court of Appeal rejected an argument that offences of obstructing a police officer and causing criminal damage to his uniform were part of a series for the purpose of the English equivalent of the provision currently under consideration. Omerod J said (at 246) –

“Here we have two offences of an entirely different kind which occurred simultaneously and so do not follow one another in temporal succession.”

9 In my view, the acts alleged here, namely the failure to provide twenty returns by a particular time, do comprise a series in the sense that there was a set of failures of the same kind, namely a set of twenty failures to provide returns of income for successive years. Having regard to the purpose of s4K(3) of the Crimes Act 1914 (Cth), as stated in the passage in Collins, which I have set out above (and which I respectfully adopt), I think that the distinction relied on by the plaintiff imposes an unreal and unnecessary limitation on the procedural reform designed to be effected by the subsection. The Court has ample power to deal with any unfair prejudice that might be caused to a defendant by joinder under this provision. Absent any such prejudice, it is indeed difficult to see why an information which fairly meets the statutory description should not be permitted and the subsection should not be approached in a technically narrow way. At all events, the language of the provision does not lend itself to such a narrow approach. As Brennan J said (Sutton v The Queen (1983–1884) 152 CLR 528 at 540) –

Packett v The King

10 In my opinion, much the same approach was expressed by Lord Pearson in R v Ludlow [1971] AC 30 at 39, where his Lordship considered that the essential requirement imported by the need for a “series of offences of a similar character” (vide the Indictment Act 1915, Schedule 1, Rule 3) was that “there has to be some nexus between the offences”, noting that such a nexus “is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series”. The point, as it seems to me, is that series is a reference to the connection between the alleged offences whilst similarity refers to their nature or type. This appears to me to reflect the approach expressed by McCrossan J in R v Cranston (1988) 1 Qd R 159 at 164 where his Honour (with whom the other members of the Court agreed) said –

Ludlow v Metropolitan Police Commissioner

11 Accordingly, I am of the opinion that joinder of the twenty charges in the same information was permissible.

12 The plaintiff also submits that the information is defective in that it does not sufficiently state an essential ingredient of the offences. Section 162 of the Assessment Act obliges obedience to a requirement by the Commissioner. The requested return, information, statement or document must be in “the approved form”. It is an offence under s8C(1)(a) to refuse or fail to furnish an “approved form” when required to do so. Section 388–50 of the Administration Act provides –

“(1) a return…under a taxation law is in the approved form if, and only if –

13 The information does not refer to the failure to provide an approved form but to a failure to provide an “appropriate form”. The phrase “approved form” nowhere appears. It is not controversial that, in respect of a statutory offence, it must “accurately state the acts necessary to constitute all the ingredients of that offence”: Ex Parte Lovell re Buckley 1938 38 SR (NSW) 153 per Jordan CJ at 173. If a necessary ingredient is omitted from the information, the mere fact that evidence of that ingredient is given in the trial will not overcome the difficulty and the information must be amended, failing which the defect is fatal. An error of this kind is undoubtedly jurisdictional and the conviction is void. The strictness of the rule is demonstrated by Ex Parte Burnett; Re Wicks & Anor [1968] 2 NSWR 119. In that case an information and summons alleged that the defendant, being the driver of a specified motor vehicle in the State of New South Wales, drove the same negligently. However, there was no allegation that the vehicle was being driven on a public street. The defendant was convicted of the charge of negligent driving and applied for statutory prohibition. The omission of the allegation that the vehicle was negligently driven on a public street was not one of the grounds upon which the rule nisi was sought but, at the hearing of the substantive application, the defect was brought to the attention of the court. Isaacs J held that the information disclosed no offence and it was too late to amend it. In Clayton v John L Pty Ltd [1984] 1 NSWLR 344 the information alleged an offence under New South Wales consumer protection laws, the substance of which was that the defendant published a statement which was to his knowledge false or misleading in a material particular and setting out the advertisement in question. However, the information did not identify the “material particular” in which the advertisement was alleged to be false or misleading. The prosecution came on for hearing in the summary jurisdiction of the Supreme Court of New South Wales. Yeldham J held that the failure to identify the “material particular” in which the alleged statement was false or misleading invalidated the information, refused to grant leave to amend and dismissed it. The Court of Criminal Appeal allowed an appeal. An appeal to the High Court of Australia was allowed and the orders of Yeldham J restored: (1987) 163 CLR 508. Mason CJ, Deane & Dawson JJ said (at 519-520) –

Ex parte Lovell; Re Buckley

Jervis' Act

Summary Jurisdiction Act

Ex parte Lovell; Re Buckley

Justices Act 1902

Smith v. Moody

Johnson v. Miller

; Ex parte Graham; Re Dowling

Summary Jurisdiction Act

14 In Ex parte Ryan; re Johnson 1943 44 SR (NSW) 12 Jordan CJ said (at 16) –

R v James

Justices Act

a return

approved form

Criminal Procedure Act

Justices Act

15 The plaintiff submits that it was essential that the prosecution should allege that he had failed to furnish an approved form and prove that the Commissioner had approved in writing the taxation return forms which he was required to furnish. The defendant submits that the only form required to be furnished is an approved form and, consequently, the phrase “you failed to furnish a return…as required pursuant to…section 162 of the Income Tax Assessment Act 1936” is the effective equivalent in meaning of “failed to furnish an approved form”. The notice itself required the plaintiff to furnish returns in the “approved form”, although the particular in the information stated that he had been required “to furnish…a return…on the appropriate form” (emphasis added), the plaintiff pointing out, however, that although the form was appropriate, it also needed to be approved. The defendant’s riposte is that the only possible meaning of “appropriate” in the context was “approved”, since the form could not be appropriate if it had not been approved. Moreover, the allegation of failure in the particulars was: “(v) you failed to furnish a return in compliance with the notice to the extent that you were capable of doing so”. It is submitted that this made it perfectly clear that the failure was to furnish the approved form, since this was the form required in terms by the notice. As the passage quoted above from John L (supra) says, the information “must identify the essential factual ingredients of the actual offence”. In the present circumstances the plaintiff’s alleged failure to provide the returns in the approved form was such an essential factual ingredient. This was not expressly alleged but was it “identified” by reference to s162 of the Assessment Act and para 8C(1)(a) of the Administration Act. In John L, no reference to the offence provision could have given the necessary information. Although I have found the matter difficult to determine, in the end I have concluded that it was permissible to identify the critical element of failing to furnish an approved form by reference to the sections that unmistakeably stated this requirement.

16 It will be seen that these arguments do not deal with the connected and, in some ways, more fundamental problem identified by the plaintiff. In order to show a failure to comply with the requirement, it was necessary to prove that the relevant forms had, indeed, been approved by the Commissioner. Indeed, it was not argued before me on behalf of the Commissioner that it was not necessary to do so. The fact of such approval was, in my opinion, an essential ingredient of the charge. Although it seems likely that the person who drafted the information did not advert to the problem, the language of particular (v), which states the omission giving rise to the offence, implicitly does so in its concluding words. In my opinion, the information would not have been sufficient even if the word “approved” had appeared to describe the required return: it was necessary also to allege the Commissioner’s approval of the requisite form in accordance with the statutory requirement set out in s388-50 of the Administration Act.

17 It follows that I consider that the information was void as failing to contain an essential ingredient of the offences. I point out that it seems obvious that no attention whatever was given in the conduct of the case to the requirement to prove the Commissioner’s approval of the demanded returns. This highlights, to my mind, that it was necessary that the information should explicitly refer to this element.

18 In the event that the information was not defective, the plaintiff submits that no evidence was adduced as to the existence of any approved forms as defined by the Administration Act and that the convictions, accordingly, cannot stand. Certainly there was no explicit evidence of any approval. Counsel for the Commissioner points to a number of matters which, in his submission, amount to some evidence of the existence of the relevant approved form. First, there is the final notice to the plaintiff which was itself tendered. That document, after noting that there was no record of lodgement by the plaintiff of income tax returns for the years ended 30 June 1982 to 30 June 2001 inclusive, required the plaintiff to furnish the “income tax returns” for those years by 3 April 2002 and specifying that the returns must “be in the approved form signed by you”. The purpose of tendering the final notice was, of course, to prove the communication of the Commissioner’s requirement under s162 of the Assessment Act. Although it may be that evidence tendered for one purpose may be used for all purposes in the case, I do not think that the specification of a requirement that a return must be in the approved form is evidence that such a form was in fact approved as required. Secondly, reference was also made to the averment that the plaintiff “failed to furnish a tax return…as required pursuant to…s162” of the Assessment Act and it was submitted that this implicitly averred the existence of the relevant approved form. Section 8ZL of the Administration Act, provides that (subject to irrelevant exceptions) an averment constitutes prima facie evidence of the fact averred. In my opinion, averments capable of being regarded as constituting prima facie evidence of any fact under s8ZL of the Administration Act must expressly do so; an implicit averment is a contradiction in terms. Thirdly, counsel for the Commissioner referred to a number of statements by the plaintiff and his accountant in the proceedings that accepted the obligation to provide taxation returns as required. It was submitted that these statements amounted to implicit admissions of the existence of an approved form. Certainly, they amount to implicit admissions of a belief that the returns were an approved form, but I do not think that this, in the circumstances here, is equivalent in any relevant sense to an admission that, indeed, such forms were approved. Lastly, it is pointed out that no issue was ever raised as to whether the forms had been approved. However, I do not see how this can overcome the failure of proof of an essential ingredient of the charge. Accordingly, I accept the submission that there was no evidence adduced that approved forms existed, still less that the forms required by the Commissioner were approved forms.

19 The defendant sought to deflect the significance of this conclusion by submitting that mere lack of evidence of an element of an offence was an error made within jurisdiction and accordingly, was not an error of which this Court could take cognisance by virtue of s146 of the Justices Act 1902, which provides –

“No conviction or order of a Justice…or adjudication upon appeal of the District Court shall be removed by any order into the Supreme Court.”

20 In DPP v Cassell (1995) 80 A Crim R 160 the prosecutor appealed to the Court of Appeal from the refusal of a District Court judge to state a case following an unsuccessful appeal from a magistrate to the District Court. The question arose whether the judge’s error (as error it was) was outside the court’s jurisdiction. Kirby P (with whom on this point Priestley and Powell JJA agreed) said (80 A Crim R 160 at 167) –

Justices Act

Ex parte Blackwell; Re Hateley

A-G (NSW) v Dawes

21 In Craig v South Australia (1995) 184 CLR 163, the Court said (at 177-178) –

“An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.

If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case.

R v Dunphy; Ex parte Maynes

R v Gray; Ex parte Marsh

Public Service Association (SA) v Federated Clerks' Union

…

22 Of course, a court cannot convict a defendant unless satisfied to the appropriate standard of his or her guilt but the question whether the evidence justified such a conclusion is, as it seems to me, within the court’s jurisdiction to determine and certiorari will not lie even if inadmissible evidence is taken into account or an inference drawn which is prohibited by law: see also Yisrael v District Court of NSW (1996) 87 A Crim R 63. However, the absence of any evidence as to an element of an offence seems to me to be an altogether different matter. I consider that, although sufficiency of evidence to convict is within the jurisdiction of the District Court to determine and, even if it is mistaken about this, certiorari will not lie, there is no jurisdiction to convict in the absence of any evidence of a necessary ingredient of an offence. Applying the tests set out in the italicised passages above from Craig, I consider that it is crucial to a conviction under s8C(1)(a) of the Administration Act that in fact the taxation returns required have been approved in writing by the Commissioner. It seems to me indisputable that the learned District Court judge did not consider, let alone determine, this question, obviously because the parties did not litigate the issue before him. However, the matter was an essential element to be proved, else the plaintiff was under no obligation to satisfy the notice specifying the Commissioner’s requirement. I readily appreciate the extremely technical nature of the requirement but I cannot see how a line can be drawn between those cases where there was no evidence of one “technical” element of an offence and those where there was no evidence of any element of an offence.

23 Accordingly, I conclude that the failure by the prosecution to adduce any evidence of the existence of an approved form means not only that the conviction of the plaintiff was not warranted in law but that the District Court had no jurisdiction to convict him in that event.

24 I should mention, because it might become relevant in the event of a further prosecution of the plaintiff, that – contrary to his submission – I consider that each failure to provide the particular approved return as required constitutes a separate offence.

25 The plaintiff’s convictions must therefore be quashed.

**********

Last Modified: 01/30/2003

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Citations

Knaggs v Commonwealth Director of Public Prosecutions [2003] NSWSC 3

Most Recent Citation

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Cases Cited

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Statutory Material Cited

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CITATION:	KNAGGS v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS [2003] NSWSC 3 revised - 29/01/2003
HEARING DATE(S):	13 & 14 January 2003
JUDGMENT DATE:	17 January 2003
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J at 1
DECISION:	Convictions quashed
CATCHWORDS:	Information - validity - omission of express reference to element of offence - whether reference to offence section in Act sufficient - whether averment of fact must be explicit - whether no evidence of element of offence is jurisdictional error - s8ZL Taxation Administration Act 1953 - s146 Justices Act 1902
LEGISLATION CITED:	Taxation Administration Act 1953 Income Tax Assessment Act 1936 Justices Act 1902 Crimes Act 1914 Indictment Act 1915
CASES CITED:	R v Barrell & Wilson (1979) Cr App R 250 Collins (1994) 76 A Crim R 204 In Re Prescott (1979) 70 Cr App R 244 Sutton v The Queen (1983-1884) 152 CLR 528 R v Ludlow [1971] AC 29 R v Cranston (1988) 1 Qd R 159 Ex Parte Lovell re Buckley 1938 38 SR (NSW) 153 Clayton v John L Pty Ltd [1984] 1 NSWLR 344 Ex Parte Burnett; Re Wicks & Anor [1968] 2 NSWR 119 Ex parte Ryan; re Johnson 1943 44 SR (NSW) 12 DPP v Cassell (1995) 80 A Crim R 160 Craig v South Australia (1995) 184 CLR 163 Yisrael v District Court of NSW (1996) 87 A Crim R 63
PARTIES :	Douglas Knaggs v Commonwealth Director of Public Prosecutions
FILE NUMBER(S):	SC 13434/02
COUNSEL:	Plaintiff in person Mr M Buscombe (Defendant)
SOLICITORS:	Plaintiff in person Commonwealth Director of Public Prosecutions (Ms C Dobraszczyk)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/12/1058
LOWER COURT JUDICIAL OFFICER :	Shadbolt J