R v Cordes
[2023] QCA 9
•10 February 2023
SUPREME COURT OF QUEENSLAND
CITATION:
R v Cordes [2023] QCA 9
PARTIES:
R
v
CORDES, Sasha Teresa Elizabeth
(appellant)FILE NO/S:
CA No 87 of 2022
DC No 733 of 2022DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Brisbane – Date of Conviction: 8 April 2022 (Williamson KC DCJ)
DELIVERED ON:
10 February 2023
DELIVERED AT:
Brisbane
HEARING DATE:
4 November 2022
JUDGES:
McMurdo and Flanagan and Dalton JJA
ORDER:
The appeal is dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted by a jury of 30 counts of obtaining a financial advantage by deception and 13 counts of attempting to do so – where the prosecution case was that each of 43 Business Activity Statements submitted by the appellant to the Australian Taxation Office provided false information in order to obtain GST refunds to which there was no entitlement – where the appellant contended that an unidentified person lodged the Statements, intending to obtain a financial benefit for themselves or someone other than the appellant – whether it was open to the jury to be satisfied, beyond reasonable doubt, that it was the appellant who lodged the Statements
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
COUNSEL:
J L Salzman for the appellant
D S Caruana for the respondentSOLICITORS:
Vered Turner Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent
McMURDO JA: After a five day trial in the District Court at Southport, the appellant was convicted by the jury of 30 counts of obtaining a financial advantage by deception and 13 counts of attempting to do so. She appeals against her convictions on the ground that the verdicts were unreasonable.
In a period between 8 November 2014 and 16 June 2016, a total of 43 Business Activity Statements were lodged with the Australian Taxation Office in respect of a business with a certain Australian Business Number (the ABN). In the ATO’s records, the ABN was registered for a business trading as Sasha’s Swim School. That was also a registered business name in the records maintained by the Australian Securities and Investments Commission. The ABN was registered with the ATO under the appellant’s name.
The prosecution case was that each of the Business Activity Statements provided false information in order to obtain GST refunds to which there was no entitlement. The first 30 of them resulted in refunds totalling $97,114, which were paid to a certain bank account, which I will call the receipts account, in a period from 13 November 2014 to 4 December 2015. Those Statements were the subject of the 30 counts of obtaining a financial advantage by deception. The receipts account was in the appellant’s name.
The charges of attempting to obtain a financial advantage related to 13 other Statements lodged in a period from 3 December 2015 until 16 June 2016. No refunds were paid in response to those statements. The amount sought by these 13 Statements was a total of $181,947.
There is no issue now as to the falsity of the 43 Statements or the payments to the receipts account of the funds sought by the first 30 of them. The issue in this appeal is whether it was open to the jury to be satisfied, beyond reasonable doubt, that it was the appellant who lodged the Statements. The competing hypothesis, which it is said could not have been reasonably dismissed by the jury, is that an unidentified person lodged the Statements, intending to obtain a financial benefit for themself or someone other than the appellant.
For the reasons that follow, it was open to the jury to be satisfied that it was the appellant who lodged the Statements in order to obtain a financial benefit for herself, and it was thereby open to the jury to convict the appellant on each count.
Admitted facts
Pursuant to s 644 of the Criminal Code (Qld), a statement of admitted facts was before the jury. Most relevantly, the following facts were admitted:
(a)the appellant’s name and her date of birth;
(b)the ABN was registered for GST with the ATO on 1 June 2012, under the appellant’s name;
(c)the ABN was registered for “an individual/sole trader entity”;
(d)on 17 August 2012, the business name “Sasha’s Swim School” was registered to the ABN, with the main business activity being stated as “Swim Teaching” at a business address at Hay Street, Bowen in North Queensland;
(e)the Commonwealth Bank held three accounts in the appellant’s name between 2012 and 2017, including one with the name “Sasha Teresa Elizabeth Cordes trading as Sasha’s Swim School”;
(f)the receipts account was one of those three accounts and it was opened on 4 September 2012;
(g)the account in the name of Sasha’s Swim School was opened on 16 October 2012 (I will call this the Swim School account);
(h)each of the Business Activity Statements was lodged online through the ATO Business Portal on the dates and including the information which was set out in a table attached to the statement of admitted facts;
(i)when a Business Activity Statement is lodged, the Commissioner of Taxation’s computer system automatically calculates the amount payable by or to the person, and automatically processes any payment to the person;
(j)the amounts were paid by electronic funds transfers by the Commonwealth to the receipts account;
(k)income tax returns were lodged with the ATO in the appellant’s name for the financial years ended 30 June 2013, 2014 and 2015.
It was also admitted that the appellant was incarcerated during the periods:
(a)11 December 2015 to 8 January 2016;
(b)19 February 2016 to 24 March 2016; and
(c)5 July 2016 to 14 December 2016,
and that while incarcerated, she was unable to operate any bank account or to personally manage the business Sasha’s Swim School. The relevance of those facts was that, as I will discuss, there were some transactions upon the receipts account during that second period of incarceration. The prosecution accepted that an unknown person operated the receipts account during that period. However none of the Business Activity Statements was lodged during any of the periods of the appellant’s incarceration. Also, it can be seen from the above that none of the payments to the receipts account was made during any of those periods.
It was further admitted that the appellant was outside Australia in the following periods:
(a)15 October 2014 to 28 October 2014;
(b)22 December 2014 to 22 January 2015; and
(c)17 May 2015 to 20 May 2015.
No Business Activity Statement was lodged within any of those periods.
A landlord’s evidence
The prosecution called Mr Downey who was the owner of a house and swimming pool in Bowen. He testified that the appellant rented the house for her residence and the pool for the conduct of her business of a swimming school. He gave evidence of the amount of the rent charged for the house and the amount charged for the pool. He testified that there had been a swim school conducted by someone else at the pool, but some years prior to the appellant’s arrival. He recalled that it was for a period of about two years that the appellant rented the house and the pool. During that time, he was living in a unit which he had built above the pool and he often saw her using the pool for teaching children to learn to swim. He identified the appellant, sitting in the court room, as the person to whom he had rented the house and pool. None of his evidence was challenged in cross-examination. The cross-examiner inquired only as to whether there were other people living in the house, to which he responded that “from memory, … I thought she was by herself there”, before going on to say “I really don’t know … how many people were living there.”
ATO witnesses
Two individuals from the ATO gave evidence about the operation of the ATO’s online facilities, explaining that business owners using them had to use software that was called AUSkey which was associated with their ABN, email and phone number. In the case of this ABN, the email address was the same as that from which an email had been sent to Mr Downey’s wife by “Sasha” on 14 August 2012 saying:
“Here are my bank details below
Have also email[ed] the paper with ad
Is all rolling ahead very exciting
Thanks very much for everything you are both doing for me.”
Those bank account details referred to an account with the ANZ Bank, of which there was no other evidence. Of course, that was before the accounts were opened with the Commonwealth Bank in the appellant’s name in the following month.
Recorded telephone conversations
The prosecution relied upon a number of recorded telephone conversations between ATO officers and a person representing herself to be the owner of the business to which the ABN was registered. The conversations took place at various times between November 2014 and June 2016. In a number of those calls, the caller was asked to identify herself with personal information such as her date of birth, tax file number and ABN, which the caller did. However, it was not admitted that the caller was the appellant.
The tax returns
The three tax returns lodged in the name of the appellant were in evidence. For the year to June 2013, the return disclosed income from two sources. An amount of about $19,000 was received from employment as a “fast food cook”,[1] and a small profit was derived from a business under the name “Sasha’s Swim School” which was also identified in the return by reference to the ABN.[2]
[1]AR 488.
[2]AR 490-491.
For the year to June 2014, only $550[3] was shown as gross income from the same employment and the return showed an overall loss of about $14,000[4] on the business. Again, the ABN number was used in the identification of the business.[5]
[3]AR 497.
[4]AR 498.
[5]AR 501.
In the return for the year to June 2015, no income from employment was disclosed, and the business, again described by the same business name and the ABN, was said to have made a loss of about $6,000.[6]
[6]AR 508, 511.
The bank accounts
Statements for the receipts account were tendered, showing the transactions on that account over a period from when it was opened until the end of June 2016.
Statements for the Swim School account were tendered, showing transactions on that account from when it was opened until mid-June 2016.
There was no strict demarcation between the two accounts, so far as expenditure or income was concerned. Each account recorded electronic funds transfers which were referrable to certain pupils in the swim school, as well as some cash deposits. The statements also recorded regular transfers of $230, which Mr Downey recalled was the rent charged to the appellant for the house.
Funds were often transferred from one account to the other. In many instances, funds were transferred from the receipts account to the other account from the money paid to the receipts account by the ATO and which is the subject of a charge. For example, counts 9 and 10 involved receipts from the ATO on 29 April 2015, in the respective amounts of $1,610 and $1,600, prior to which there was less than $100 to the credit of that account.[7] On the same day, $800 was transferred to the Swim School account which restored that account to a small credit balance. Similarly, on 6 August 2015, five payments totalling approximately $16,000 were received from the ATO, and on the same day $2,500 was transferred to the Swim School account to (again) bring that account to a credit balance.[8]
[7]AR 598.
[8]AR 607, AR 571.
In summing up to the jury, the trial judge summarised the prosecutor’s argument that the bank statements “reveal[ed] a pattern, and that is the defendant’s personal financial circumstances were reduced to a position where her finances might be described as poor, or funds were low, and then the funds were replenished with a GST refund from the ATO, which would then be spent …”. That submission was fairly made upon the evidence. So too was the prosecutor’s argument, again as summarised by the trial judge, “that there were no other significant sources of income that could be identified in the statements, beyond the ATO GST refunds.”
I return to the subject of the operation of the bank accounts during her periods of incarceration. The first of those was a four week period from 11 December 2015. At the beginning of that period the receipts account had a credit balance of $114.47[9] and the Swim School account was slightly overdrawn. None of the transactions in that period on the receipts account was other than a direct debit or a direct credit, save for a transfer of $88.95[10] to the Swim School account, which was the balance then standing in that account.
[9]AR 625.
[10]AR 625.
In the second period of incarceration, there was more extensive activity on the receipts account, although on a continuous basis rather than a quick withdrawal of the credit balance of about $9,500.[11] There were relatively few transactions on the other account.
[11]AR 629.
For the third period of incarceration, which began on 5 July 2015, the bank statements of neither account were in evidence. Their combined balance was a small overdraw.
The admitted facts referred to a third account opened with the Commonwealth Bank. The statements for that account showed that it was never operated.
Other evidence
There was evidence from another two witnesses from the ATO, to explain the AUSkey software and the procedure for recording conversations with taxpayers of the kind which the prosecution attributed to the appellant.
The appellant neither gave nor called evidence.
Consideration
It was open to the jury to accept the evidence of Mr Downey and to thereby conclude that there was indeed a business of a swimming school and that it was conducted by the appellant. At the relevant times, Mr Downey rented the house to the appellant as her residence and the pool where she conducted that business, and often saw her conducting the business from the apartment in which he lived.
The statements for the accounts showed many instances of receipts of income of the business and of payments of the rent which Mr Downey recalled he was receiving for the house. The accounts were operated in tandem, with frequent transfers from one to the other. The jury could have been satisfied, beyond a reasonable doubt, that these were the appellant’s accounts and that, at least for the most part, it was the appellant who was operating them.
It was notable that the bank accounts had been operating for more than two years prior to the first of the receipts from the ATO which were the subject of the charges. In other words, they were not accounts which were opened for the purpose of defrauding the ATO. The ABN was registered on 1 June 2012. Again, this was years prior to the first of the fraudulent receipts, and it coincided with a time at which the appellant would have commenced, or been about to commence, the conduct of her business. Similarly, the business name was registered with ASIC in August 2012, and was registered by reference to the ABN.[12] The business address which was stated in that registration[13] was the address where, according to Mr Downey, she was living. In the circumstances, it was open to the jury to be satisfied that it was the appellant who had registered the ABN. In turn it was open to the jury to find that it was the appellant who lodged the tax returns in her name, referring to her business and the ABN.
[12]AR 462, AR 474.
[13]AR 462.
On the premises of those findings, the only hypothesis which was consistent with the appellant’s innocence was one in which some other person or persons lodged the Business Activity Statements using the AUSkey software to do so by reference to her ABN, her email address and her phone number. Further, that person or persons would have been meaning to have the intended payment by the ATO made to the appellant’s bank account.
It was open to the jury to reject that hypothesis. An important consideration for the jury would have been the disposition of the funds from the receipts account as they were paid by the ATO. They were not swiftly and completely withdrawn from that account. Often the receipts were used by the appellant to prop up the Swim School account, from which she paid rent to Mr Downey. These receipts, totalling nearly $100,000 and extending over a period of 13 months, could not have gone unnoticed by the appellant, especially when she was constantly in a poor financial position, at least without them.
She was the major beneficiary, if not the only one, of this fraud.
The fact that during one of her periods of incarceration there was some operation of her bank accounts was not a circumstance which required the jury to have a doubt as to her guilt. The amounts involved were relatively small and it was unremarkable that somebody who was in jail would allow another to make some small transactions on her accounts which contained relatively small sums. It is also of some relevance that none of the 43 Statements was lodged during any period of incarceration.
Conclusion
It was open to the jury, on the whole of the evidence, to be satisfied, beyond reasonable doubt, of the guilt of the appellant on the counts on which she was convicted.[14] I would order that the appeal be dismissed.
[14]M v The Queen (1994) 181 CLR 487 at 493.
DALTON JA: I agree with the order proposed by McMurdo JA and with his reasons.
FLANAGAN JA: I agree with McMurdo JA.
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