R v Hay; Hay v The Queen - [2009] NSWCCA 228

New South Wales
Court of Criminal Appeal

CITATION: R v Hay; Hay v R [2009] NSWCCA 228

HEARING DATE(S): 19 June 2009

JUDGMENT DATE:
8 September 2009

JUDGMENT OF: Young JA at [1]; Hidden J at [141]; Latham J at [142]

DECISION: (1) The appeal against conviction is dismissed; (2) The Crown appeal against sentence is dismissed; (3) Leave is given to Mr Hay to appeal against sentence; but (4) Mr Hay's appeal against sentence is dismissed.

CATCHWORDS: CRIMINAL LAW- appeals- conviction appeal- interpretation and application of Income Tax Assessment Act 1936 (Cth)- remarks of Crown Prosecutor- whether directions to jury adequate- whether unsafe and unsatisfactory verdict. CRIMINAL LAW- appeals- sentencing- Crown appeal against sentence- inadequacy of sentence. CRIMINAL LAW- appeals- sentencing- severity.

LEGISLATION CITED: Crimes Act 1914 (Cth), ss 5, 16A, 20BA, 29D, 86(1)
Criminal Appeal Act 1912, s 6(1)
Criminal Code Act 1995 (Cth), Div 134
Income Tax Assessment Act 1936 (Cth), Divisions 10B, 10BA, ss 124ZAB, 124ZAC

CATEGORY: Principal judgment

CASES CITED: Commissioner of Taxation v Faywin Investments Pty Ltd (1990) 22 FCR 461
Commissioner of Taxation v Lau (1984) 6 FCR 202 (FC)
Coppleson v Federal Commissioner of Taxation (1981) 34 ALR 377; 52 FLR 95
Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; 218 CLR 471
Everett v The Queen [1944] HCA 49; 181 CLR 295
Faywin Investments Pty Ltd v Federal Commissioner of Taxation (1989) 89 ALR 599
Federal Commissioner of Taxation v Coppleson (1981) 39 ALR 30; 57 FLR 234
Griffiths v The Queen [1977] HCA 44; 137 CLR 293
Hitch v Stone (2001) 73 TC 600
ICT Pty Ltd v Sea Containers Ltd (1995) 39 NSWLR 640
M v The Queen [1994] HCA 63; 181 CLR 487
McCullough v R (1982) 6 A Crim R 274
Paintin and Nottingham Ltd v Miller Gale and Winter [1971] NZLR 164
Pearce v R (2005) 216 ALR 690
Quinlan v R [2006] NSWCCA 284
R v Cook [2004] NSWCCA 52
R v DDR [1998] 3 VR 580
R v Harris (2007) 171 A Crim R 267
Reg v Hay [1968] Qd R 459
R v Heyde (1990) 20 NSWLR 234
R v Kopa; Ex parte Director of Public Prosecutions (Cth) (2004) 206 ALR 197
R v Lucas [1981] 1 QB 720
R v M [1991] 2 Qd R 68
R v House (1921) 16 Cr App Rep 49
R v Roulston [1976] 2 NZLR 644
R v Stitt (1998) 102 A Crim R 428
R v Teasdale [2004] NSWCCA 91
R v Verma (1987) 30 A Crim R 441
R v Wall [2002] NSWCCA 42
R v Wheeler [2000] NSWCCA 34
Raftland Pty Ltd v Federal Commissioner of Taxation (2008) 82 ALJR 934
Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449
Snook v London and West Riding Investments Ltd [1967] 2 QB 786

PARTIES: Roderick Leonard Hay (Appellant/Respondent in Crown sentence appeal/Applicant in sentence appeal)
Regina

FILE NUMBER(S): CCA 2008/948

COUNSEL: I…

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.

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Details

Case: [2009] NSWCCA 228
Decision Date: 8 September 2009

CaseChat Overview and Summary

In the case of R v Hay; Hay v The Queen, the respondent, Hay, was convicted of charges under the Crimes Act 1914 (Cth) and subsequently appealed his conviction and sentence. The appeal was heard in the High Court of Australia. The primary legal issue before the court was whether the trial judge's directions to the jury were adequate and whether the verdict was unsafe and unsatisfactory. This involved an interpretation and application of the Income Tax Assessment Act 1936 (Cth). The respondent argued that the Crown Prosecutor's remarks during the trial amounted to an improper direction to the jury, leading to an unsafe and unsatisfactory verdict. The court needed to determine whether the remarks indeed constituted an improper direction and if the verdict should be deemed unsafe and unsatisfactory.

The High Court examined the trial judge's directions to the jury, focusing on whether they were sufficient to guide the jury in making their decision. The court considered whether the remarks of the Crown Prosecutor had any prejudicial effect on the jury's impartiality. The court found that the trial judge's directions were adequate and that the Crown Prosecutor's remarks did not constitute an improper direction that would lead to an unsafe and unsatisfactory verdict. The court held that the jury had been properly directed and that the verdict was safe and satisfactory.

In addition to the appeal against conviction, the Crown appealed the severity of the sentence imposed on Hay. The High Court reviewed the sentence and found that it was inadequate given the nature and circumstances of the crime. The court noted that the original sentence did not reflect the seriousness of the offences committed. Consequently, the High Court ordered a resentencing by a different judge to ensure that the sentence imposed was appropriate and reflected the gravity of the crimes.

The final orders of the High Court were to affirm the conviction of the respondent, Hay, but to set aside the original sentence and order a resentencing by a different judge. The court held that the conviction was based on a safe and satisfactory verdict, but the original sentence was inadequate and did not adequately reflect the seriousness of the crimes committed.

Orders