R v PHAN - [2010] SASC 24

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PHAN
[2010] SASC 24
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice Layton)
16 February 2010
CRIMINAL LAW - PROCEDURE - VERDICT - INCONSISTENT, AMBIGUOUS AND MEANINGLESS VERDICTS
Appellant charged with three counts of defrauding the Commonwealth and forty-eight counts of dishonestly causing a loss - convicted of defrauding the Commonwealth offences and forty-five of the dishonestly causing a loss offences - acquitted of remaining three charges - charged conduct alleged failure to declare and remit GST and failure to withhold, declare and remit PAYG amounts arising from a labour hire business appellant was conducting - appellant argues that not guilty verdicts are inconsistent with guilty verdicts, and are also inconsistent with not guilty verdicts of a co-accused on corresponding charges.
Held: verdicts not inconsistent - acquittals explicable by reference to evidence - appellant and co-accused not jointly charged - acquittal of co-accused had no implications for decision as to appellant's charges.

CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - PARTICULARS
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
Appellant argues information was defective as it did not contain a description of the relevant mental element required - further argues trial judge erred in summing up to the jury by failing to direct that conduct can only be in the form of an omission where there is a corresponding obligation to act.
All counts on information defective as particulars of each count failed to specify a mental element - information not incurably bad and was effective in invoking the jurisdiction of the court - terms of information not such as to mislead or embarrass appellant - ground of appeal not made out - directions given by trial judge made it clear to jury that whether or not appellant legal owner, if it were proved that he was carrying on the business, appellant still had duties upon him - no error in summing up identified.
Held: appeal dismissed.

CRIMINAL LAW - PROCEDURE - VERDICT - UNANIMOUS AND MAJORITY VERDICTS
Observations on s 80 of the Commonwealth Constitution and the requirement for unanimous verdicts.
Crimes Act 1914 (Cth), s 29D; Criminal Code 1995 (Cth), s 135.1(5); Taxation Administration Act 1953 (Cth), s 12-35, s12-60, s 16-70, s 16-150 of Sch 1; A New Tax System (Goods and Services Tax) Act 1999 s 23-5, s 23-15, s 31-5; Criminal Law Consolidation Act 1935 (SA), s 277, s 281, Sch 3; Judiciary Act 1903 (Cth), s 78B; Commonwealth Constitution s 80, referred to.
Mackenzie v The Queen (1996) 190 CLR 348; R v Wong (1990) 54 SASR 297; R v Ayres [1984] 1 AC 447; R v Do (1990) 54 SASR 543; R v Glynn (2002) 82 SASR 426; Cheatle v The Queen (1993) 177 CLR 541, applied.
R v Rigoli [2006] VSCA…

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 PHAN

Details

AGLC: R v PHAN [2010] SASC 24
Case: [2010] SASC 24
Decision Date: 16 February 2010

CaseChat Overview and Summary

The appellant was convicted of multiple counts of defrauding the Commonwealth and dishonestly causing a loss, related to the failure to declare and remit GST and PAYG amounts from a labour hire business. The appellant was acquitted on some counts, leading to an appeal against the verdicts' inconsistency. The court heard arguments on four grounds, including the inconsistency of verdicts and potential misdirection by the trial judge. The appellant's appeal was partially successful; the court allowed amendments to the notice of appeal and granted permission to appeal on certain grounds, but dismissed the appeal on the basis that the proposed grounds were not reasonably arguable.

The primary legal issue before the court was whether the inconsistent verdicts were justified by the evidence presented at trial. The appellant argued that the not guilty verdicts were inconsistent with the guilty verdicts and the not guilty verdicts of a co-accused on corresponding charges. The court needed to determine whether the verdicts were supported by the evidence and whether there was any misdirection by the trial judge. Additionally, the court had to decide whether permission should be granted to appeal on the new grounds proposed during the hearing.

The court found that the verdicts were consistent with the evidence presented, as the trial judge had correctly directed the jury on the applicable law and the elements of the offences. The court noted that the jury had carefully considered the evidence and had reached a verdict on each count based on the specific facts presented. The court also found that there was no misdirection by the trial judge that would warrant a new trial. However, the court refused permission to amend the notice of appeal to include one of the proposed grounds, finding that it was not reasonably arguable.

The court dismissed the appeal, finding that the proposed grounds were not reasonably arguable. The court granted permission to amend the notice of appeal to include two of the proposed grounds and granted permission to appeal on one of those grounds. The court emphasised that the decision on the appeal did not depend on the merits of the case but on whether there was a reasonable arguability of the grounds of appeal. The court concluded that the appeal should be dismissed, and the original convictions and acquittals stood.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

A single judge of this court gave permission to appeal on a number of grounds, but upon the appeal, all but one of those (ground 12) was abandoned. Ground 12 raises a complaint of inconsistency of verdicts. In addition, permission was sought at the appeal hearing to argue three new grounds, labelled, for convenience, as grounds 1 to 3. The court heard full argument on all four grounds now agitated, while reserving the questions of leave to amend the notice of appeal to incorporate grounds 1 to 3 and permission to appeal on those grounds.Background All counts charged essentially similar conduct. The reason for the application of two statutory provisions was a change in the relevant legislation not long after the commencement of the charged conduct. That conduct was failure to comply with provisions of the Taxation Administration Act 1953 (Cth) (the TA Act), A New Tax System (Goods and Services Tax) Act 1999 (Cth) (the GST Act) and, for a few counts, the Income Tax Assessment Act 1997 (Cth). The scheme of the information was to charge two counts for each quarter of the years spanned by the allegations, being one count in relation to goods and services tax (GST) and one for pay-as-you-go withholding amounts (PAYG(W)). The prosecution divided the allegations into what it called four phases. As part of the first phase it was alleged that from July 2000 to June 2003 the appellant ran a labour hire business in his own name using his Australian Business Number (ABN). His business provided labourers to perform manual work at vineyards, orchards and nurseries. The provision of labour is, provided the GST registration turnover threshold is reached, subject to GST. (There was no issue in the case that the threshold was not reached.) It was further alleged that during this period the appellant paid wages to the individuals he employed in the business. If so, he was obliged to withhold an amount from such wages and to pay those amounts to the Commissioner of Taxation (the Commissioner). The approved form of reporting of entitlements and obligations under both systems is the Business Activity Statement (BAS) of the entity. Entity includes individual: s 195-1, s 184-1(1)(a) GST Act; s 3AA TA Act, Div 950, s 960-100(1)(a) Income Tax Assessment Act 1997. The appellant was, accordingly, obliged to lodge a BAS quarterly during the relevant period. The case was that he dishonestly failed to declare and remit to the Commissioner the full amount of GST due, and that he failed to withhold PAYG(W) amounts from wages paid and to declare those and remit them to the Commissioner. The appellant’s ABN was cancelled by him in June 2003. From July 2003 until June 2005, it was alleged that the appellant continued to run the same business, now using the ABNs and business names of other people. During this period he did not file any BAS. During the period July 2003 to June 2004 the appellant allegedly used the ABN of Ms Lee Nguyen and her business name “Sunrise Subcontractor”. This was referred to as the second phase. Ms Nguyen was also charged upon the same information with eight counts of dishonestly causing a loss, relating to this period.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For the foregoing reasons I am of the opinion that this proposed ground is not reasonably arguable. That being the case, I would refuse permission to amend the notice of appeal. Accordingly, there is no relevant “cause pending” within the meaning of s 78B and notices need not be served.Conclusion The orders I would make are:1.grant permission to amend the notice of appeal to add proposed grounds 1 and 2;2.grant permission to appeal on ground 2 (permission not being required in respect of ground 1);3.refuse permission to amend the notice of appeal to add ground 3.4.dismiss the appeal. LAYTON J: Having had the opportunity of reading the reasons for decision of Vanstone J, I unhesitatingly concur both with the orders which she proposes and with her reasons.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.