knowingly concerned in offence-Period of limitation for commencement of proceedings against public officer-Income Tax Assessment Act 1936-1944 ADELAIDE,

(No. 27 of 1936-No. 28 of 1944), S. 230*-Crimes Act 1914-1946 (No. 12 of Sept. 20, 21.

1914-No. 77 of 1946), SS. 5, 21.* SYDNEY,

In June 1948 a complaint was laid in a court of summary jurisdiction against a limited company and M., its public officer. The company was charged with having, in December 1944, contravened S. 230 of the Income Tax Assessment Act 1936-1944 in that M., as its public officer, in the company's * The Income Tax Assessment Act

or omission is in any way directly or 1936-1944 provides by S. 230 (1)

indirectly knowingly concerned in, or Any person who, or any company on

party to, the commission of any offence whose behalf the public officer, or a

against any law of the Commonwealth, director, servant or agent of the com-

whether passed before or after the pany, in any return knowingly and

commencement of this Act, shall be wilfully understates the amount of

deemed to have committed that offence any income or makes any misstate-

and shall be punishable accordingly." ment affecting the liability of any

and by S. 21 (1) A prosecution person to tax or the amount of tax

in respect of an offence against any shall be guilty of an offence. Penalty:

law of the Commonwealth may be Not less than Twenty-five pounds, or more than Five hundred pounds and, in

respect of the offence is a pecuniary person to pay to the Commissioner a

penalty and no term of imprisonment sum not exceeding double the amount

is mentioned---at any time within one year after the commission of the

(3) Where by any accepted as correct. (2) A prosecution

law of the Commonwealth any longer for an offence against this section may

time than the time provided by this be commenced at any time within six

section is provided for the commence- years after the commission of the

ment of a prosecution in respect of an offence against that law, a prosecution in respect of the offence may be com- * The Crimes Act 1914-1946 pro-

menced at any time within that longer vides by S. 5: Any person who aids, abets, counsels, or procures, or by act

80 CLR 199

income-tax return had knowingly and wilfully understated the amount of the company's income for the year ended 31st August 1944. It was charged against M. that he " by act was directly knowingly concerned in the commis- sion of the offence above alleged-Crimes Act 1914-1946, S. 5."

Held, that the complaint disclosed an offence against M., that the time within which proceedings against him must be brought was regulated by S. 230 of the Income Tax…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mallan v Lee

Details

AGLC: Mallan v Lee [1949] HCA 48
Case: [1949] HCA 48
Decision Date: 10 November 1949

CaseChat Overview and Summary

The case of *Mallan v Lee* concerned a complaint laid against a company, Telephone Rentals Ltd, and its public officer, Mr. Valleck Cartwright Mallan. The company was charged with contravening section 230 of the *Income Tax Assessment Act 1936-1944* by knowingly and wilfully understating its income in a tax return for the year ended 31 August 1944. Mr. Mallan was charged under section 5 of the *Crimes Act 1914-1946* with being directly knowingly concerned in the commission of this offence. The complaint was laid on 7 June 1948, with the alleged offence occurring on or about 8 December 1944.

The central legal issues before the court were whether the complaint disclosed an offence against Mr. Mallan, and whether the proceedings against him were commenced within the applicable time limit. Mr. Mallan's defence argued that the prosecution was brought under section 5 of the *Crimes Act*, which, given the nature of the penalty under section 230 of the *Income Tax Assessment Act* (a pecuniary penalty only), should be subject to a one-year limitation period under section 21 of the *Crimes Act*. Furthermore, it was contended that section 230 did not create a criminal offence, but rather civil proceedings, and therefore section 5 of the *Crimes Act* could not apply. The prosecution contended that section 230 created an offence, and that section 5 of the *Crimes Act* meant Mr. Mallan was deemed to have committed that offence, making the six-year limitation period under section 230(2) of the *Income Tax Assessment Act* applicable.

The High Court, affirming the decision of the Supreme Court of South Australia, held that section 230 of the *Income Tax Assessment Act* clearly created an offence, irrespective of whether it was classified as criminal or civil in nature. The Court found that section 5 of the *Crimes Act* applied to any "offence against any law of the Commonwealth," and therefore applied to the offence created by section 230. Consequently, the six-year limitation period provided by section 230(2) of the *Income Tax Assessment Act* was the relevant period for commencing proceedings against Mr. Mallan. The Court concluded that the complaint disclosed an offence against Mr. Mallan and that the proceedings were not out of time.

Orders