R v Hart; ex parte

Case [2006] QCA 39

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hart; ex parte Cth DPP [2006] QCA 39

PARTIES:

R
v
HART, Steven Irvine
(respondent)
EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(appellant)

R
v
HART, Steven Irvine
(appellant/applicant)

FILE NO/S:

CA No 166 of 2005
CA No 167 of 2005
DC No 1366 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Cwth DPP
Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

24 February 2006

DELIVERED AT:

Brisbane

HEARING DATE:

21 October 2005 and 26 October 2005

JUDGES:

McMurdo P, Jerrard JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.   In CA No 166 of 2005: Appeal dismissed

2.   In CA No 167 of 2005: Appeal against conviction dismissed and application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – appellant tax accountant convicted by a jury of 10 fraud charges – convictions related to appellant lodging tax returns for clients which claimed deductions for “Employee Retention Plans” – clients had agreed to purchase lump sum insurance bonds financed by the Chase AMP Bank – loan approvals were not given prior to the end of the financial year in which the deductions were claimed – appellant set up a different company to provide finance but Crown alleged that no insurance bonds were in fact purchased before the end of the financial year – defence case was that even if no actual expenditure occurred the clients were “definitively committed” to the scheme prior to the end of that financial year – whether the guilty verdicts were unreasonable or could not be supported having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – indictment particularised charges as false deductions claimed as “expenditure in relation to the purchase of an insurance bond” – appellant asserted on appeal that the deductibility of the scheme arose from the obligation to pay a lump sum contribution to a staff benefit trust regardless of the trustee’s obligation to purchase an insurance bond – Crown conceded the inaccuracy on appeal – whether the inaccuracy caused a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – appellant’s clients paid deposits for the scheme with the balance to be financed by loans – deposit money was transferred to another of the appellant’s companies through an intermediate company, Mevton – appellant asserted that the transaction could only be characterised as a dishonest application of a chose in action held by Mevton and the trustee could…

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AGLC
R v Hart; ex parte [2006] QCA 39
Case
[2006] QCA 39
Decision Date

CaseChat Overview and Summary

A tax accountant was convicted by a jury of 10 counts of fraud related to lodging tax returns for clients which claimed deductions for "Employee Retention Plans". The clients had agreed to purchase lump sum insurance bonds financed by the Chase AMP Bank, but the loan approvals were not given prior to the end of the financial year in which the deductions were claimed. The appellant set up a different company to provide finance, but the Crown alleged that no insurance bonds were in fact purchased before the end of the financial year. The defence case was that even if no actual expenditure occurred, the clients were "definitively committed" to the scheme prior to the end of that financial year.

The court had to determine whether the guilty verdicts were unreasonable or could not be supported having regard to the evidence, whether the inaccuracy in the indictment caused a miscarriage of justice, whether the jury were entitled to find that Mevton had knowledge of the appellant's dishonesty, whether the misdirection caused a miscarriage of justice, and whether the sentence was manifestly excessive or it is appropriate to take account of previous wrongful imprisonment when determining the non-parole period. The court found that the evidence supported the guilty verdicts and that there was no miscarriage of justice or misdirection. The court also found that the sentence was not manifestly excessive and that it was appropriate to take account of previous wrongful imprisonment when determining the non-parole period.

The appeal against conviction was dismissed and the application for leave to appeal against sentence was refused. The Commonwealth Director of Public Prosecutions' appeal against the non-parole period of two years and nine months was allowed and remitted to the original sentencing judge for re-sentencing. The appellant was sentenced to seven years imprisonment on each count with parole after two years and nine months, but the non-parole period was reduced to two years.

Orders

Orders of the court

1. In CA No 166 of 2005: Appeal dismissed

2. In CA No 167 of 2005: Appeal against conviction dismissed and application for leave to appeal against sentence refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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