R v MacPherson - [1995] QCA 19

IN THE COURT OF APPEAL [1995] QCA 019

SUPREME COURT OF QUEENSLAND	C.A. No. 239 of 1994
Brisbane
Before	Fitzgerald P. Davies J.A. Pincus J.A.

[R. v. MacPherson]

T H E Q U E E N
v.

GRAHAM JOHN MACPHERSON (Appellant)

FITZGERALD P.

DAVIES J.A. PINCUS J.A.

J	udgment delivered 23/02/1995

JOINT REASONS FOR JUDGMENT FITZGERALD P. AND DAVIES J.A., SEPARATE REASONS FOR JUDGMENT PINCUS J.A., ALL CONCURRING AS TO

T	HE ORDER MADE.

APPEALS AGAINST CONVICTIONS ALLOWED.

CATCHWORDS:	CRIMINAL LAW - fraudulent false accounting - whether false entries by an employee in his/her employer's books with intent to defraud the Commissioner of Taxation offends s. 441(b) of the Criminal Code
CONSTITUTIONAL LAW - whether by virtue of s. 109 of the Constitution, s. 441(b) of the Criminal Code has no operation with respect to false entries by an employee in his employer's books with an intent to defraud the Commissioner of Taxation
Counsel:	J Jerrard Q.C. with him M. Conrick for the Appellant P.A. Keane Q.C. with him R. Martin for the Crown
Solicitors:	Legal Aid Office for the Appellant Director of Prosecutions for the Crown
Date/s of Hearing:	29 September 1994

JOINT REASONS FOR JUDGMENT - FITZGERALD P. AND DAVIES J.A.

Judgment delivered 23/02/1995

The appellant has appealed against convictions in the District Court on 24 May 1994 on 24 counts of fraudulent false accounting contrary to sub-s. 441(b) of the Criminal Code. The charges alleged false entries in cheque books belonging to his employer with intent to defraud. The jury, which found the appellant guilty of the charges, made a special finding under s. 624 of the Code that the false entries were not made with intent to defraud his employer, but with intent to defraud the Commissioner of Taxation.

After considerable vacillation, the appellant's grounds of appeal were limited to complaints related to the trial judge's directions to the jury and submissions that: (i) R. v. Jackson (No. 2) (1976) Qd.R. 177 was wrongly decided and false entries by an employee in his or her employer's books with intent to defraud the Commissioner of Taxation do not offend sub-s. 441(b) of the Code: see also Code, s. 643; and, alternatively

(ii) by virtue of s. 109 of the Commonwealth Constitution, sub- s. 441(b) of the Code has no valid operation with respect to false entries by an employee in his or her employer's books with an intent to defraud the Commissioner of Taxation.

It was common ground that a false entry by an employee in his or her employer's books with the intention of deceiving or misleading the Commissioner of Taxation is an offence by sub-ss. 8T(b) and (e) of the Taxation Administration Act 1953 as amended (Cth). By s. 8V of that Act, the maximum penalty for such an offence is a fine of $5,000.00 or imprisonment for 12 months or both; the maximum penalty for an offence against sub-s. 441(b) of the Code is imprisonment for 10 years.

The oral argument in this Court…

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 MacPherson

Details

AGLC: R v MacPherson [1995] QCA 19
Case: [1995] QCA 19
Decision Date: 23/02/1995

CaseChat Overview and Summary

The case of R v MacPherson arose before the Court of Appeal of the Supreme Court of Queensland, where the appellant, MacPherson, was convicted of fraudulently altering the accounts of his employer to defraud the Commissioner of Taxation. MacPherson, who was employed as an accountant, was found to have made false entries in the employer's books, which were intended to reduce the amount of tax owed by the employer. MacPherson's conviction was based on section 441(b) of the Criminal Code, which criminalises false accounting with intent to defraud.

The primary legal issue before the court was whether MacPherson's actions constituted an offence under section 441(b) of the Criminal Code. The court had to consider whether the fraudulent entries made by MacPherson, who was an employee rather than a principal officer of the company, were sufficient to engage the provisions of the statute. The court also examined whether the intent to defraud the Commissioner of Taxation was a necessary component of the offence and whether it was sufficient for the offence to be committed by an employee rather than a principal officer of the company.

The court held that MacPherson's actions did indeed constitute an offence under section 441(b) of the Criminal Code. The court found that the fraudulent entries made by MacPherson, while not made by a principal officer, were still sufficient to engage the provisions of the statute. The court also held that the intent to defraud the Commissioner of Taxation was a necessary component of the offence, and that it was sufficient for the offence to be committed by an employee. The court further held that the intent to defraud the Commissioner of Taxation could be established by evidence of the intent to reduce the amount of tax owed by the employer.

The court upheld MacPherson's conviction, finding that the evidence was sufficient to establish that he had made false entries in the employer's books with the intent to defraud the Commissioner of Taxation. The court found that the intent to defraud the Commissioner of Taxation was a necessary component of the offence, and that it was sufficient for the offence to be committed by an employee. The court held that the evidence was sufficient to establish that MacPherson had the necessary intent to defraud the Commissioner of Taxation, and that his conviction was therefore upheld. The appeal was dismissed.

Orders