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R v Iannelli

R v Iannelli

Case [2003] NSWCCA 1 26 February 2003

Criminal Liability

Mens Rea & Intention

Statutory Interpretation

Dishonest Means

Criminal Law

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Reported Decision:
(2003) 56 NSWLR 247
139 A Crim R 1

New South Wales

Court of Criminal Appeal

CITATION: Regina v Iannelli [2003] NSWCCA 1

HEARING DATE(S): 27/8/02

JUDGMENT DATE:
26 February 2003

JUDGMENT OF: Handley JA at 1; Simpson J at 55; Bell J at 67

DECISION: Appeal allowed; Convictions quashed and verdicts of acquittal entered in each case

LEGISLATION CITED: Administrative Decisions (Judicial Review) Act 1975 (Cth)
Crimes Act 1914
Forgery Act 1913
Income Tax Assessment Act 1936
Special Prosecutors Act 1982 (Cth)
Statute Law (Miscellaneous Provisions) Act (No. 2) 1984

CASES CITED: Adams v The Queen [1995] 1 WLR 52
Alderson v Temple (1768) 4 Burr 2235
Coles Myer Finance Ltd v Federal Commissioner of Taxation (1993) 176 CLR 640
DCT v George [2002] NSW CA 336
DCT v Saunig [2002] NSW CA 390
Hardie v Hanson (1960) 105 CLR 451
Parker v Churchill (1985) 9 FCR 316
Peters v The Queen (1998) 192 CLR 493
R v Gamble & Moore (1983) 14 A Crim R 179
R v Kastratovic (1985) 42 SASR 59
R v Kylsant [1932] 1 KB 442
R v Walters [2002] NSWCCA 291
Sands & McDougall Wholesale Pty Ltd (in Liq) v Federal Commissioner of Taxation (1998) 147 FLR 323
Sharpe v Jackson [1899] AC 419
Spies v The Queen (2000) 201 CLR 603
Thompson v Freeman (1786) 1 T.R. 155
Waiu-Tsang v The Queen [1992] 1 AC 269
Welham v Director of Public Prosecutions [1961] AC 103

PARTIES :
Rachel Lorna Iannelli (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 60385/02

COUNSEL: R Bromwich (Crown)
P Brereton SC (Appellant)

SOLICITORS: Commonwealth DPP
Oliveri Attorneys (Appellant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/41/0196

LOWER COURT
JUDICIAL OFFICER : Hosking DCJ

60385/02

HANDLEY JA
SIMPSON J
BELL J
Wednesday 26 February 2003

REGINA v Rachel Lorna IANNELLI

Judgment

1 HANDLEY JA: The appellant stood trial before Hosking DCJ and a jury on two counts of being knowingly concerned in the commission by two companies of the offence of defrauding the Commonwealth contrary to s 29D of the Crimes Act 1914: ”by failing to pay tax instalment deductions to the Commissioner of Taxation”. She has appealed to this Court from her convictions on both counts.

2 The facts and the relevant provisions of the income tax legislation are set out in the reasons for judgment of Bell J, which I gratefully adopt. The principal submission for the appellant was that the charges were misconceived because the evidence did not disclose offences against the section.

3 The appellant was a director of and the sole shareholder in the two companies which she controlled for all purposes relevant to these appeals. If each company committed the offence of defrauding the Commonwealth she was knowingly concerned in its commission. There was no dispute that the first company deducted tax instalments (group tax) from the wages of its employees between 1 April 1994 and 1 December 1999 and the second between 1 July 1993 and 1 December…

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 R v Iannelli

Details

AGLC: R v Iannelli [2003] NSWCCA 1
Case: [2003] NSWCCA 1
Decision Date: 26 February 2003

CaseChat Overview and Summary

The appellant, Rachel Lorna Iannelli, was convicted by a jury in the District Court of being knowingly concerned in the commission by two companies of the offence of defrauding the Commonwealth contrary to s 29D of the Crimes Act 1914 by failing to pay tax instalment deductions to the Commissioner of Taxation. She appealed to the Court of Criminal Appeal against her convictions on two counts. The appellant submitted that the charges were misconceived because the evidence did not disclose offences against the section. The appeal court was required to decide whether the charges were misconceived and if not, whether there were any defects in the trial that warranted a new trial. The appeal court found that the charges were misconceived because the evidence did not establish that the appellant used dishonest means to defraud the Commonwealth. The court held that the failure to remit the tax did not constitute dishonest means for the purposes of the crime of defrauding another. The court also found that the trial judge failed to direct the jury that the Crown had to establish that the appellant used dishonest means to achieve the end of defrauding the Commonwealth. The court held that the verdict of the jury was unreasonable and could not be supported having regard to the evidence, and that the jury ought to have entertained a reasonable doubt as to whether the appellant intended to deprive or prejudice the Commissioner in respect of group tax deductions. The appeal was allowed, the convictions were quashed and verdicts of acquittal were entered in each case.

Orders