R v Jo

Case [2012] QCA 356 18 December 2012

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Jo [2012] QCA 356

PARTIES:

R
v
JO, Tatsuo
(appellant)

FILE NO/S:

CA No 349 of 2011
DC No 936 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

18 December 2012

DELIVERED AT:

Brisbane

HEARING DATE:

24 August 2012

JUDGES:

Muir and Fraser JJA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed.

CATCHWORDS:

TAXES AND DUTIES – INCOME TAX AND RELATED LEGISLATION – LIABILITY TO TAXATION GENERALLY – SOURCE OF INCOME – GENERALLY – where appellant convicted after jury trial of nine offences of dishonesty concerning alleged tax evasion scheme – where appellant argued payments to overseas company not dividends within ss 6(1) and 44 Income Tax Assessment Act 1936 (“ITAA”), deemed dividends, or “income” within ordinary meaning in s 25 ITAA 1936 – where appellant submitted jury could not exclude hypothesis that payments were fringe benefits, which were excluded from appellant’s assessable income – where appellant contended he did not obtain a financial advantage as a result of the alleged deception – whether payments were dividends, deemed dividends or ordinary income – whether jury could exclude hypothesis that payments were fringe benefits – whether appellant obtained financial advantage from alleged deception

CRIMINAL LAW – GENERAL MATTERS – ANCILLARY LIABILITY – AID, ABET, COUNSEL OR PROCURE – PARTICULAR CASES – where offence committed by company controlled by appellant – where appellant argued no evidence he aided company to make payments to another company within the meaning of s11.2(1) of the Code – where appellant contended that because he was guiding mind of company, his acts in making payments were acts of the company and hence the company’s liability for the offence was direct not vicarious – where appellant argued that his acts did not constitute aiding because it involved commission of an act which facilities and is different from act that constitutes principal offence – whether the appellant aided company

Criminal Code 1995 (Cth), s 11.2(1), s 134.2
Fringe Benefits Tax Assessment Act 1986 (Cth), s 66, s 136, s 148
Income Tax Assessment Act 1936 (Cth), s 6, s 19, s 23L, s 25, s 44, s 51
Income Tax Assessment Act 1997 (Cth), s 6-5, s 6-10, s 8-1

Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51, cited
Expo International Pty Ltd (in Liq) v Torma (1985) 3 NSWLR 225, considered
Federal Commissioner of Taxation v Anstis (2010) 241 CLR 443; [2010] HCA 40, cited
Federal Commissioner of Taxation v Belford (1952) 88 CLR 589; [1952] HCA 73, considered
FederalCommissioner of Taxation v Myer Emporium Ltd (1987) 163 CLR 199; [1987] HCA 18, applied
Fisher v Bennett (1987) 85 FLR 469, considered
Hadjiloucas v Crean [1988] 1 WLR 1006; [1987] 3 All ER 1008, considered
Hamilton v Whitehead (1988)…

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 Jo

Details

AGLC: R v Jo [2012] QCA 356
Case: [2012] QCA 356
Decision Date: 18 December 2012

CaseChat Overview and Summary

The appellant, R, was convicted following a jury trial on nine counts of dishonesty related to an alleged tax evasion scheme. The central issue in the case was whether the payments made to an overseas company constituted dividends, deemed dividends, or ordinary income under the Income Tax Assessment Act 1936. Additionally, the appellant argued that the jury could not exclude the hypothesis that the payments were fringe benefits, which would have excluded them from his assessable income. The appellant also contended that he did not obtain a financial advantage as a result of the alleged deception. Furthermore, the appellant argued that he did not aid, abet, counsel, or procure the company in making the payments, as required under the criminal code, and that his actions were those of the company, thus making its liability direct rather than vicarious.

The court examined whether the payments made by the company were dividends, deemed dividends, or ordinary income, and if the jury could reasonably exclude the hypothesis that the payments were fringe benefits. The court also assessed whether the appellant obtained a financial advantage from the alleged deception. Regarding the ancillary liability, the court considered whether the appellant aided the company in making the payments, as defined by the criminal code, and whether his actions constituted aiding given they were different from the principal offence. The court found that the jury was entitled to conclude that the payments were ordinary income and that the appellant did obtain a financial advantage from the alleged deception. The court also held that the appellant did aid the company in making the payments.

The appeal was dismissed by the court. The reasoning and findings of the court upheld the conviction on all counts, confirming that the appellant was liable for the tax evasion charges. The court's decision rejected the appellant's arguments regarding the nature of the payments and his role in the alleged scheme, thereby upholding the jury's verdict and the conviction.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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Citations

R v Jo [2012] QCA 356

Most Recent Citation

Department of Immigration and Citizenship v Anni Katawidjaja [2015] VMC 44

Cases Citing This Decision

Pratten v R [2021] NSWCCA 251
Citation 1

…04] NSWCCA 356 R v AH (1997) 42 NSWLR 702 R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 R v Davidson (2009) 75 NSWLR 150; [2009] NSWCCA 150 R v Jo [2012] QCA 356 R v Pratten (No 17) [2015] NSWSC 642 R v Pratten (No 19) [2015] NSWSC 1111 R v Pratten (No 20) [2015] NSWSC 1102 R v Pratten (No 25) [2016] NSWSC 539…
Australian Competition and Consumer Commission v Davies [2015] FCA 1017
Citation 2 (Para 6)

…arate legal persons with the consequence that a director can aid and abet the commission of an offence by the company: see R v Jo (2012) 273 FLR 437; [2012] QCA 356 at [31]–[36] per Fraser JA, applying Hamilton v Whitehead (1988) 166 CLR 121 at 128, where Mason CJ, Wilson and Toohey JJ expressed agreement with R…
Department of Immigration and Citizenship v Anni Katawidjaja [2015] VMC 44
Citation 3

…72. These authorities do not reflect current principles of law, which have been clearly set out in the Queensland Court of Appeal decision in R v Jo [2012] QCA 356. In this case, a company director charged with tax evasion was alleged to be criminally responsible for aiding and abetting his company. His Honour Fr…
Franze v R [2014] VSCA 352
Citation 4 (Para 1)

…Criminal Appeal held that these words are ‘plainly intended to bear the same meaning as they do at common law’: at [155]. See also R v Jo (2012) 273 FLR 437, [35].…
Pratten v R [2014] NSWCCA 117
Citation 5 (Para 91)

…The argument put to this Court was rejected by the Court of Appeal of the Supreme Court of Queensland in R v Jo [2012] QCA 356. In that appeal the relevant charges also were made under s 134.2 of the Criminal Code Act . Four of the counts charged were that the appellant had by a deception dishonestly obtained a f…
Mosman Services Pty Ltd (ACN 079 350 744) (Suing in a Representative Capacity as Trustee of the Mosman Services Trust) v William James McDonald [2013] QSC 113
Citation 6

…quidation) (2003) 214 CLR 514, cited. Peters (WA) Limited v Petersville Limited (2001) 205 CLR 126, cited. R v Jo [2012] QCA 356, cited. Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596, folld. Wagners Nouvelle Caledonie Sarl v Vale Inco Nouvelle Caledonie SAS [2010]…

See all citing cases →

Cases Cited

Commissioner of Taxation v Anstis [2010] HCA 40
Citation 1

…orma (1985) 3 NSWLR 225, considered Federal Commissioner of Taxation v Anstis (2010) 241 CLR 443; [2010] HCA 40, cited Federal Commissioner of Taxation v Belford (1952) 88 CLR 589; [1952] HCA 73, considered Federal Commissioner of Taxation v Myer Emporium Ltd (1987) 163 CLR 199; [1987] HCA 18, applied Fisher v B…
Raftland Pty Ltd v Federal Commissioner of Taxation [2008] HCA 21
Citation 2

…] VSCA 38, considered Raftland Pty Ltd v Federal Commissioner of Taxation (2008) 238 CLR 516; [2008] HCA 21, considered Re Ross; ex parte A-G for the Northern Territory (1980) 54 ALJR 145; [1980] HCA 2, considered Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449; [1988] FCA 179, considered Sn…
ABB Australia Pty Limited v Commissioner of Taxation [2007] FCA 1063
Citation 3 (Para 1)

…charge the companies’ dividend debts to the appellant.[33] [33]See ABB Australia Pty Limited v Commissioner of Taxation (2007) 162 FCR 189; [2007] FCA 1063 per Lindgren J at [164] – [170].…
R v Vasic [2005] VSCA 38
Citation 4 (Para 1)

…oria (1996) 89 A Crim R 223; R v Rosar (1999) 8 Tas R 344, [1999] TASSC 7; R v Vasic (2005) 11 VR 380 at [10], [11], p 384, (2005) 155 A Crim R 26, [2005] VSCA 38.…
Bell v St Michael's Golf Club [2003] NSWCA 159
Citation 5 (Para 1)

…ould find that the payments were made to the appellant as a shareholder. [34][2002] NSWSC 61 at [64], affirmed without reference to this point at [2003] NSWCA 159; (2003) 46 ACSR 113. [35](1985) 3 NSWLR 225; 83 FLR 357.…
St Michaels Golf Club v Donald Bell [2002] NSWSC 61
Citation 6 (Para 1)

…tended by the appellant and his companies as remuneration, the jury could find that the payments were made to the appellant as a shareholder. [34][2002] NSWSC 61 at [64], affirmed without reference to this point at [2003] NSWCA 159; (2003) 46 ACSR 113. [35](1985) 3 NSWLR 225; 83 FLR 357.…
J & G Knowles & Associates Pty Ltd v Commissioner of Taxation [2000] FCA 196
Citation 7

…Taxation (1994) 28 ATR 105; [1994] FCA 1012, considered J & G Knowles & Associates Pty Ltd v FCT (2000) 96 FCR 402; [2000] FCA 196, considered O’Connors Management Pty Ltd v Curry ; Smith v Curry (unreported, Walsh J, WASC, 17 February 1997), considered Permanent Trustee Co (NSW) v Federal Commissioner of Taxation…
R v Rosar, Gunter Eddie [1999] TASSC 7
Citation 8 (Para 1)

…in [1982] VR 1045; Fisher v Bennett (1987) 85 FLR 469; O tte v Magistrates’ Court of Victoria (1996) 89 A Crim R 223; R v Rosar (1999) 8 Tas R 344, [1999] TASSC 7; R v Vasic (2005) 11 VR 380 at [10], [11], p 384, (2005) 155 A Crim R 26, [2005] VSCA 38.…
Jamandilovski, v Telstra Corporation Ltd [1994] FCA 1012
Citation 9 (Para 1)

…gh it seems more apt in relation to the question whether the payments amounted to “income” rather than dividends). [31](1994) 28 ATR 105; [1994] FCA 1012. [32](1940) 2 AITR 109 at 110-111…
Doney v The Queen [1990] HCA 51
Citation 10

…Income Tax Assessment Act 1997 (Cth), s 6-5, s 6-10, s 8-1 Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51, cited Expo International Pty Ltd (in Liq) v Torma (1985) 3 NSWLR 225, considered Federal Commissioner of Taxation v Anstis (2010) 241 CLR 443; [2010] HCA 40, cited Federal Commissioner of Taxation v B…
Hamilton v Whitehead [1988] HCA 65
Citation 11

…rean [1988] 1 WLR 1006; [1987] 3 All ER 1008, considered Hamilton v Whitehead (1988) 166 CLR 121; [1988] HCA 65, considered Howell v Commissioner of Taxation (1994) 28 ATR 105; [1994] FCA 1012, considered J & G Knowles & Associates Pty Ltd v FCT (2000) 96 FCR 402; [2000] FCA 196, considered O’Connors Management…
Sharrment Pty Ltd v Official Trustee In Bankruptcy [1988] FCA 266
Citation 12

…Re Ross; ex parte A-G for the Northern Territory (1980) 54 ALJR 145; [1980] HCA 2, considered Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449; [1988] FCA 179, considered Snook v London & West Riding Investments Ltd [1967] 2 QB 786, considered Smith v Federal Commissioner of Taxation (1987) 164 CLR 513; [1987] HCA 48, considered St Mic…
Smith v Federal Commissioner of Taxation [1987] HCA 48
Citation 13

…Ltd [1967] 2 QB 786, considered Smith v Federal Commissioner of Taxation (1987) 164 CLR 513; [1987] HCA 48, considered St Michaels Golf Club v Bell [2002] NSWSC 61, considered COUNSEL: F L Harrison QC, with D J Walsh and M J Henry, for the appellant P Callaghan SC, with M P Cahill, for the respondent SOLICITORS…
Federal Commissioner of Taxation v Myer Emporium Ltd [1987] HCA 18
Citation 14

…1952] HCA 73, considered Federal Commissioner of Taxation v Myer Emporium Ltd (1987) 163 CLR 199; [1987] HCA 18, applied Fisher v Bennett (1987) 85 FLR 469, considered Hadjiloucas v Crean [1988] 1 WLR 1006; [1987] 3 All ER 1008, considered Hamilton v Whitehead (1988) 166 CLR 121; [1988] HCA 65, considered Howell…
R v Toohey; Ex parte Attorney-General (NT) [1980] HCA 2
Citation 15

…2008] HCA 21, considered Re Ross; ex parte A-G for the Northern Territory (1980) 54 ALJR 145; [1980] HCA 2, considered Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449; [1988] FCA 179, considered Snook v London & West Riding Investments Ltd [1967] 2 QB 786, considered Smith v Federal Commiss…
Federal Commissioner of Taxation v Belford [1952] HCA 73
Citation 16

…) 241 CLR 443; [2010] HCA 40, cited Federal Commissioner of Taxation v Belford (1952) 88 CLR 589; [1952] HCA 73, considered Federal Commissioner of Taxation v Myer Emporium Ltd (1987) 163 CLR 199; [1987] HCA 18, applied Fisher v Bennett (1987) 85 FLR 469, considered Hadjiloucas v Crean [1988] 1 WLR 1006; [1987]…
R v Portus; Ex parte Federated Clerks Union of Australia [1949] HCA 53
Citation 17

…SR 94, considered R v Portus; Ex parte Federated Clerks Union of Australia (1949) 79 CLR 428; [1949] HCA 53, considered R v Vasic (2005) 11 VR 380; [2005] VSCA 38, considered Raftland Pty Ltd v Federal Commissioner of Taxation (2008) 238 CLR 516; [2008] HCA 21, considered Re Ross; ex parte A-G for the Northern T…
Mallan v Lee [1949] HCA 48
Citation 18 (Para 1)

…] that the accused managing director could not, when acting in that capacity, be guilty both as a principal offender and as an accessory. [22](1949) 80 CLR 198 at 215-216.…
VR 163Fisher v Bennett [1987] ACTSC 27
Citation 19 (Para 1)

…financial advantage is obtained by the breathing space gained by passing a bad cheque, to the contrary view in Victorian and other decisions.[28] [27](1987) 85 FLR 469. [28] Matthew v Fountain [1982] VR 1045; Fisher v Bennett (1987) 85 FLR 469; O tte v Magistrates’ Court of Victoria (1996) 89 A Crim R 223; R v Rosar…
[1897] AC 22 [1897] AC 22
Citation 20 (Para 1)

…greement with Bray CJ’s view. [16](1975) 11 SASR 94 at 100-101. [17](1975) 11 SASR 94 at 101. [18] Salomon v Salomon & Co Ltd [1897] AC 22. [19](1975) 11 SASR 94 at 111. [20](1998) 166 CLR 121 at 128.…
[1951] AC 443 [1951] AC 443
Citation 21 (Para 1)

…Executors , the issue and facts are so different from those here as to render that decision of no real assistance in construing s 44(1). [36][1951] AC 443 at 453, 454, 457, and 465-6.…
[1988] 1 WLR 1006 [1988] 1 WLR 1006
Citation 22

…LR 199; [1987] HCA 18, applied Fisher v Bennett (1987) 85 FLR 469, considered Hadjiloucas v Crean [1988] 1 WLR 1006; [1987] 3 All ER 1008, considered Hamilton v Whitehead (1988) 166 CLR 121; [1988] HCA 65, considered Howell v Commissioner of Taxation (1994) 28 ATR 105; [1994] FCA 1012, considered J & G Knowles & Ass…
[1967] 2 QB 786 [1967] 2 QB 786
Citation 23 (Para 1)

…e term “sham” “denoted an objective of deliberate deception of third parties.” [9](1988) 18 FCR 449 at 453 – 456. [10][1967] 2 QB 786 at 802. [11](1988) 18 FCR 449 at 456. [12](2008) 238 CLR 516 at 531 – 532. [13][1988] 1WLR 1006 at 1019; [1987] 3 All ER 1008 at 1019.…

Legislation Cited

Fringe Benefits Tax Assessment Act 1986 (Cth) 66
2 mentions (from Para 1)
Income Tax Assessment Act 1936 (Cth) 6
2 mentions (from Para 1)
Income Tax Assessment Act 1997 (Cth) 6
2 mentions (from Para 1)
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
1 mention (from Para 1)
Bankruptcy Act 1966 (Cth)
1 mention (from Para 1)
Crimes Act 1914 (Cth)
1 mention (from Para 1)
Crimes Act 1958 (Vic)
1 mention (from Para 1)
Taxation Administration Act 1953 (Cth)
1 mention (from Para 1)

CITATION:	R v Jo [2012] QCA 356
PARTIES:	R v JO, Tatsuo (appellant)
FILE NO/S:	CA No 349 of 2011 DC No 936 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	18 December 2012
DELIVERED AT:	Brisbane
HEARING DATE:	24 August 2012
JUDGES:	Muir and Fraser JJA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed.
CATCHWORDS:	TAXES AND DUTIES – INCOME TAX AND RELATED LEGISLATION – LIABILITY TO TAXATION GENERALLY – SOURCE OF INCOME – GENERALLY – where appellant convicted after jury trial of nine offences of dishonesty concerning alleged tax evasion scheme – where appellant argued payments to overseas company not dividends within ss 6(1) and 44 Income Tax Assessment Act 1936 (“ITAA”), deemed dividends, or “income” within ordinary meaning in s 25 ITAA 1936 – where appellant submitted jury could not exclude hypothesis that payments were fringe benefits, which were excluded from appellant’s assessable income – where appellant contended he did not obtain a financial advantage as a result of the alleged deception – whether payments were dividends, deemed dividends or ordinary income – whether jury could exclude hypothesis that payments were fringe benefits – whether appellant obtained financial advantage from alleged deception CRIMINAL LAW – GENERAL MATTERS – ANCILLARY LIABILITY – AID, ABET, COUNSEL OR PROCURE – PARTICULAR CASES – where offence committed by company controlled by appellant – where appellant argued no evidence he aided company to make payments to another company within the meaning of s11.2(1) of the Code – where appellant contended that because he was guiding mind of company, his acts in making payments were acts of the company and hence the company’s liability for the offence was direct not vicarious – where appellant argued that his acts did not constitute aiding because it involved commission of an act which facilities and is different from act that constitutes principal offence – whether the appellant aided company Criminal Code 1995 (Cth), s 11.2(1), s 134.2 Fringe Benefits Tax Assessment Act 1986 (Cth), s 66, s 136, s 148 Income Tax Assessment Act 1936 (Cth), s 6, s 19, s 23L, s 25, s 44, s 51 Income Tax Assessment Act 1997 (Cth), s 6-5, s 6-10, s 8-1 Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51, cited Expo International Pty Ltd (in Liq) v Torma (1985) 3 NSWLR 225, considered Federal Commissioner of Taxation v Anstis (2010) 241 CLR 443; [2010] HCA 40, cited Federal Commissioner of Taxation v Belford (1952) 88 CLR 589; [1952] HCA 73, considered FederalCommissioner of Taxation v Myer Emporium Ltd (1987) 163 CLR 199; [1987] HCA 18, applied Fisher v Bennett (1987) 85 FLR 469, considered Hadjiloucas v Crean [1988] 1 WLR 1006; [1987] 3 All ER 1008, considered Hamilton v Whitehead (1988)…