Pratten v R

Case [2021] NSWCCA 251



Court of Criminal Appeal
Supreme Court

New South Wales

Case Name: 

Pratten v R

Medium Neutral Citation: 

[2021] NSWCCA 251

Hearing Date(s): 

26 and 27 July 2021

Date of Orders:

25 October 2021

Decision Date: 

25 October 2021

Before: 

Gleeson JA at [1]
Johnson J at [323]
Beech-Jones J at [326]

Decision: 

(1)   Extend the time for filing of the notice of application for leave to appeal to 12 June 2019.
 
(2)   Grant leave to appeal a gainst conviction on grounds 1, 1A, 4 and 6.
 
(3) Refuse leave to appeal under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) on grounds 2, 3, 5 and 6 (insofar as ground 6 challenges directions, or omission to direct the jury).
 
(4)   Appeal dismissed.

Catchwords: 

CRIMINAL LAW — appeal against conviction — seven offences of dishonestly obtaining a financial advantage by deception by lodging tax returns which did not disclose all assessable income — whether monies paid to appellant or to third parties at his direction were income of appellant or loans — whether trial miscarried because evidence wrongfully admitted that amended notices of assessment were issued to appellant — whether trial judge erred in directions given to jury concerning elements of the offences and on tax law — whether a Shepherd direction required as to appellant’s control of Vanuatu company making payments to him or to third parties at his direction — whether verdicts were unreasonable and not supported by the evidence — whether proviso applied notwithstanding evidence wrongfully admitted — Criminal Appeal Act 1912 (NSW), s 6(1)
 
EVIDENCE — fresh evidence — distinction between “new evidence” and “fresh evidence” — whether significant possibility that jury acting reasonably would have acquitted appellant based on new evidence
 
CRIME — appeals — appeal against refusal to discharge jury — where trial judge ruled that Crown case confined to payments made by Vanuatu insurance company — where Crown relied on earlier payments made at direction of appellant from another Vanuatu company to rebut defence submission — whether fundamental change in Crown case — whether miscarriage of justice

Legislation Cited: 

Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
Criminal Appeal Rules (NSW), r 4
Criminal Code Act 1995 (Cth), s 134.2(1)
Evidence Act 1995 (NSW), ss 55, 97, 101, 135, 136, 137
Income Tax Assessment Act 1936 (Cth), ss 6(1), 19, Pt X, 316(1), 340, 456(1)
Income Tax Assessment Act 1997 (Cth), ss 4-15, 6-5(1), 6-5(4)
Legal Profession Act 2004 (NSW), s 728
Proceeds of Crime Act 2002 (Cth), s 37(1)
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
Tax Administration Act 1953 (Cth), Pt IVC

Cases Cited: 

Arthur Murray (NSW) Pty Ltd v Federal Commissioner of Taxation (1965) 114 CLR 314; [1965] HCA 58
Aussie Airlines Pty Limited v Australian Airlines Pty Limited & Qantas Airlines Limited (1996) 65 FCR 215; [1996] FCA 813
Bainton v Rajski (1992) 29 NSWLR 539
Barton v Walker (1979) 2 NSWLR 740
BCM v The Queen [2013] HCA 48; (2013) 88…

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Pratten v R [2021] NSWCCA 251
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[2021] NSWCCA 251
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CaseChat Overview and Summary

In the case of Pratten v R, the appellant, Pratten, faced a criminal appeal against his conviction for seven counts of obtaining a financial advantage by deception. The charges stemmed from Pratten's failure to declare all his assessable income in his tax returns, resulting in significant underreporting of his income. The court had to determine whether the monies paid to Pratten or to third parties at his direction were income or loans, a distinction crucial to the charges against him. Additionally, the case examined whether the trial was marred by the wrongful admission of evidence concerning amended notices of assessment, and if the trial judge's directions to the jury regarding the elements of the offences and tax law were erroneous. The court also considered whether a Shepherd direction was necessary concerning Pratten's control over a Vanuatu company that made payments to him or to third parties at his instruction, and whether the jury's verdicts were unreasonable and unsupported by the evidence.

The primary legal issues involved the admissibility of evidence regarding amended notices of assessment, the correctness of the trial judge's directions to the jury, and the sufficiency of the evidence to support the verdicts. The court had to determine whether the evidence concerning the amended notices was wrongfully admitted and whether this affected the fairness of the trial. Additionally, the court evaluated whether the trial judge correctly instructed the jury on the elements of the offences and the relevant tax law, and whether any omissions or errors in these instructions constituted a miscarriage of justice. The court also needed to decide whether a Shepherd direction was necessary to clarify the appellant's control over the Vanuatu company and whether the verdicts were unreasonable given the evidence presented.

The court found that the trial did not miscarry due to the wrongful admission of evidence concerning the amended notices of assessment. It held that there was no fundamental change in the Crown's case that would warrant a discharge of the jury, and that the evidence was sufficient to support the verdicts. The court concluded that the trial judge's directions to the jury, while not perfect, did not result in a miscarriage of justice. The court also determined that a Shepherd direction was not required, as the evidence was clear enough for the jury to understand Pratten's control over the payments made by the Vanuatu company. The verdicts were found to be reasonable and supported by the evidence, and the proviso did not apply despite the wrongful admission of evidence.

The court dismissed the appeal and upheld the appellant's conviction on all counts. It found no basis to interfere with the jury's verdicts or the trial judge's handling of the case. The decision underscored the importance of correctly instructing juries and the limited circumstances under which a Shepherd direction is necessary. The court also reinforced the principle that wrongful admission of evidence does not automatically lead to a miscarriage of justice if the evidence is otherwise sufficient to support a conviction.

Orders

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Background

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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