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 1, distinguished.
Clayton v John L Pty Ltd [1984] 1 NSWLR 344; Ex parte Lovell: Re Buckley (1938) 38 NSWLR 135; John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508, discussed.
Amrit Lal Narain v Parnell (1986) 9 FCR 479; ACCC v CG Berbatis Holdings (1999) 95 FCR 292; State Bank of NSW v Commonwealth Savings Bank [1986] 4 NSWLR 549; Green v Jones [1979] 2 NSWLR 812, considered.

R v PHAN
[2010] SASC 24
Court of Criminal Appeal
Coram: Doyle CJ, Vanstone and Layton JJ

DOYLE CJ: I agree with the orders proposed by Vanstone J. I agree also with her reasons. There is nothing that I wish to add.
VANSTONE J: The appellant was convicted in the District Court by verdicts of a jury for three counts of defrauding the Commonwealth contrary to s 29D of the Crimes Act 1914 (Cth) and 45 offences of dishonestly causing a loss, contrary to s 135.1(5) of the Criminal Code 1995 (Cth). He was acquitted of a further three counts of dishonestly causing a loss.
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.
The third phase overlapped to some extent with the second. It comprised counts 46 to 51. From October 2003 to June 2004 it was alleged that the appellant used the ABN of Mr Thanh Nguyen and his business name “SNJ Contractor”.
From July 2004 to June 2005 it was alleged the appellant used the ABN of Mr Hong Nguyen and his business name “Hong Sangs”. This was the fourth phase and was represented by the counts numbered 52 to 59.
In addition the appellant was charged with five counts alleging that he dishonestly understated his income tax for the financial years ending 30 June 2000 to 30 June 2005. These were counts 25 to 29.
The appellant was found not guilty of three counts relating to GST amounts (counts 52, 54 and 56 which were all part of phase four) but guilty of all other counts.
Suggestion of inconsistent verdicts
Ground 12 asserts that the acquittals of the appellant on counts 52, 54 and 56 were inconsistent with the findings of guilt on the other charges against him. As mentioned, permission to appeal was given on the ground as framed. At the appeal hearing, counsel for the appellant, Mr Tokley, additionally argued that the acquittals of Ms Nguyen on four of the charges she faced (counts 39, 41, 43 and 45) based on her failure to withhold and remit PAYG(W) amounts were inconsistent with findings of guilt against the appellant on corresponding charges.
The principles governing suggested inconsistency of jury verdicts were considered by Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen (1996) 190 CLR 348 at 366-368. Their Honours held that the test is one of “logic and reasonableness” and that “if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted”. Underpinning these principles is “the respect for the function which the law assigns to juries”. An appellate court will be required to intervene only where different verdicts represent “an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty”, such intervention being required to prevent possible injustice.
In my opinion, neither of counsel’s contentions can be sustained. On the prosecution case, there was an explanation for the appellant’s acquittals on three counts, being part of the fourth phase. In relation to these counts the prosecution witness Hong Nguyen gave evidence that the appellant had given him funds with which to pay GST owing to the Commissioner. The jury could properly have reasoned on this basis that the prosecution was thereby robbed of the ability to prove that in respect of these three counts, the appellant acted dishonestly.
In respect of the verdicts concerning Ms Nguyen, it is important to notice that although charged on the same information, Ms Nguyen and the appellant were not jointly charged. The obligation upon her to remit GST payments to the ATO arose because she was registered under the GST Act. Since, on the face of the information, no joint enterprise to dishonestly cause a loss was alleged, the mere fact that one person accused in relation to such a failure was convicted and another acquitted would not, ordinarily, have any implications in respect of the guilty verdict. In any event, on the facts before the jury, the reasons for Ms Nguyen’s acquittal on those counts were patent and did not avail the appellant. I now set out those reasons.
There was evidence from customers of the original business of the appellant that he informed them of the new business name, Sunrise Subcontractors, and then rendered invoices under that business name and corresponding ABN. It was the appellant who provided the workers, often attending to supervise their work. None of the customers of Sunrise Subcontractors attested to any business dealings with Ms Nguyen, or knew who she was. However, while there was no evidence that Ms Nguyen was involved in the labour hire aspect of the business or in payment of wages, there was evidence that she received a share of the profits of the business from the appellant, and, further, was aware, by virtue of advice obtained from a tax agent, of her obligation to pay GST amounts to the Commissioner. Thus, the verdicts are explicable by reference to the evidence. The jury might have not been satisfied that she had acted dishonestly in respect of the labour hire aspect of the business.
The ground of appeal is not made out.
The terms of the information
The first of the proposed new grounds is framed as follows:
The Information was defective in that it did not refer to an essential element of the offence, namely a description of the mental element required for either fraud or dishonesty.
The ground appears to me to raise a question of law. Counsel for the appellant advanced limited argument on this ground. He conceded that no point about the matter was raised at trial. He relied on R v Rigoli [2006] VSCA 1 where the failure adequately to particularise the impugned conduct led to a finding that the indictment was defective and the convictions based on it should be quashed.
There, the convictions under appeal were for charges laid under s 29D Crimes Act 1914 (Cth). It was alleged that the appellants ran a manufacturing plant and that they failed to declare assessable income derived by them in connection with that business. Upon the appeal the convictions foundered in the face of an attack upon the form of the counts on the indictment. A typical count was in the following form:
AND the DIRECTOR OF PUBLIC PROSECUTIONS further INFORMS THE COURT AND CHARGES that on the 31st day of October 1993 at Shepparton in the State of Victoria VIRGILIO RIGOLI did, contrary to section 29D of the Crimes Act 1914, defraud the Commonwealth by failing to declare assessable income for the financial year ending 30 June 1993.
The prosecution conceded both at trial and upon the appeal that proof of the particulars in this form could not, alone, prove an offence. (If such a concession were made at the trial, then it is curious that an amendment was not there made to address the deficit.) The Victorian Court of Appeal (Callaway JA with whom Chernov and Vincent JJA agreed) held [8-9] that the particulars should also have alleged, as applicable, either a mental element, or positive (or at least additional) conduct relied upon as proof of dishonesty. The fact that the prosecution made such allegations in its opening address was held not to alleviate the inadequacy. It was not a matter of resolving an ambiguity, but of an insufficient description of the conduct forming the basis of the charge. The Court was at pains to confine the ambit of its decision to cases concerning the now repealed offence of defrauding the Commonwealth and the commission of such an offence by omission. Counsel for the prosecution apparently conceded that if the Court found that the presentment was defective, then it should quash the relevant convictions.
There is no discussion in the reasons of Callaway JA as to whether the use of the expression “did … defraud” in the particulars, being derived directly from the statute, might have sufficiently alleged dishonesty, nor any discussion of the fact that the particulars followed the wording of s 29D Crimes Act. It does not appear that either s 364 to s 376 of the Victorian Crimes Act 1958 or the sixth schedule to that Act, as they then stood – dealing with what is required of presentments – contained any enactment providing that conformance with the wording of the provision creating the offence would suffice as a description of the offence. However, there is persuasive authority to the effect that such provisions only reflect the common law: Clayton v John L Pty Ltd [1984] 1 NSWLR 344 per Yeldham J and the cases there referred to. Although the reasons in Rigoli make no reference to this line of authority, I would be slow to assume that Callaway JA was unaware of it. Therefore I would read his reasons as requiring, at least, that the indictment allege that the appellant acted intentionally or knowingly.
I return to this jurisdiction and the provisions of state law regulating informations. The relevant statutory provisions are found in the Criminal Law Consolidation Act 1935 (CLCA), Part 9, Division 6, as supplemented by rules made under that Part, which appear in the third schedule to the Act. There is no dispute that such state provisions apply when persons are charged on indictment with offences against Commonwealth law, but are dealt with in the court of a state. (See s 68 Judiciary Act 1903 (Cth).)
These provisions require that the information contain, first, a commencement, which sets out the name of the case and the court of trial and specifies the sessions: r 2. The information must then contain, for each count of the information, a statement of the offence charged. Finally, it is to contain the particulars of each count: r 4. The statement of offence need not incorporate mention of all the essential elements of the offence, but must contain a reference to the statutory provision creating the offence: r 4(3). Particulars to be provided are such as are necessary for “giving reasonable information as to the nature of the charge”: s 277(1). They are to be “set out in ordinary language” and need not contain technical terms: r 4(4).
At common law, if an information were to be valid, it was required to state every essential ingredient of the offence, as well as giving particulars of the conduct said to constitute the offence: Ex parte Lovell: Re Buckley (1938) 38 SR(NSW) 135 at 166; Clayton v John L Pty Ltd; John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; R v Wong (1990) 54 SASR 297. It may be accepted that this requirement survives the enactment of the provisions under consideration: Clayton v John L Pty Ltd per Mason CJ, Deane and Dawson JJ at 519, Brennan J at 528-9, Toohey J at 544, but a failure to comply might give rise only to a right to further particulars, as opposed to rendering the information invalid. In other words, the information might remain legally sufficient to invoke the court’s jurisdiction, rather than being incurably bad, or, to put it another way, bad in substance. However, it is now clear that the essential elements need appear only in the particulars: r 4.
In Wong, Cox J (who, although a dissentient in the result, helpfully discussed the requirements, in this jurisdiction, of an information) observed that the common law rules had been further modified to allow amendments to a defective information (s 281 CLCA). In addition, an appellate court had available to it an application of the proviso in s 353(1) of the CLCA, where conviction had been founded on a defective information. Cox J went on to mention a number of cases, not only in this jurisdiction, where the proviso had been applied notwithstanding shortcomings in the form of an indictment, by way of error or omission.
In my view, all counts of this information were defective, in that, at least, the particulars of every count failed to specify a mental element. Although, as I have observed, the counts are laid under two different statutory provisions and allege, variously, failures to remit GST and PAYG amounts and the understatement of taxable income, the drafting of all counts is essentially similar. The first and second counts exemplify the draftsman’s approach.
1^st Count
STATEMENT OF OFFENCE
DEFRAUD THE COMMONWEALTH (Section 29D of the Crimes Act 1914)
PARTICULARS OF OFFENCE
VAN DUNG PHAN between the 1^stday of July 2000 and the 28^thday of October 2000, at Adelaide in South Australia or another place, failed to declare and remit Goods and Services Tax to the Commissioner of Taxation received by the labour hire business identified by Australian Business Number 22185795909, in the period 1 July 2000 to 30 September 2000 and thereby caused the Commonwealth economic loss.
2nd Count
STATEMENT OF OFFENCE
DISHONESTLY CAUSING A LOSS (Section 135.1(5) of the
Criminal Code 1995 (Cth))
PARTICULARS OF OFFENCE
VAN DUNG PHAN, on or about the 16^th day of April 2002 at Adelaide in South Australia or another place, failed to withhold Pay As You Go [Withholding] tax from the wages paid to employees of the labour hire business identified by Australian Business Number 22185795909, in the period 1 July 2000 to 30 September 2000, and remit the tax to the Commissioner of Taxation and thereby caused the Commonwealth economic loss.

The mere failure to declare and remit GST received in the course of conducting a business, or to withhold and remit PAYG(W) tax, does not in fact amount to an offence. In addition to the matters pleaded in the particulars, the prosecution would have to prove that the failure was dishonest and it would have to prove facts giving rise to the obligation to declare and remit GST: s 23-5; s 23-15; s 31-5 GST Act; or, for count 2, facts giving rise to the obligation to withhold and remit withholding tax: s 12-35, s 12-60, s 16-70 and 16-150, Schedule 1, TA Act.
As seen, s 277(1) CLCA requires the giving of “such particulars as are necessary for giving reasonable information as to the nature of the charge”. The question then becomes whether it can be said with confidence that the failure to specify a mental element in the charges the appellant faced did not result in prejudice or embarrassment to the appellant: R v Ayres [1984] 1 AC 447 at 460-461.
I consider that it can clearly be said that the terms of the information were not such as to mislead or embarrass the appellant. When the statement of each offence is read with its particulars, it is clear beyond argument that dishonesty is alleged. As well, the nature of the prosecution allegations made that plain; it was explicit in the prosecution opening address to the jury. The central contention of the prosecution was that when he ran his business in his own name, the GST returns and PAYG(W) reports filed by the appellant deliberately (and grossly) understated the amounts in fact owing. The prosecution alleged that the appellant’s purpose in embarking on the new arrangements, described as phases 2, 3 and 4, was to conceal from the Commissioner his involvement in the respective businesses, so as to reduce the possibility that the Commissioner would expect any such returns to be filed by the appellant.
Accordingly, although I find that the information laid was indeed defective as argued, it was not incurably bad. It was effective in invoking the court’s jurisdiction. Although the proposed ground of appeal did not allege that the defective information led to a miscarriage, I go further and find in terms of s 353(1) CLCA that no substantial miscarriage of justice resulted, as the issues of dishonesty and duty to lodge accurate BAS were covered by the judge in his summing up.
There is another matter. Having regard to the terms of s 281 CLCA, it may be too late to raise this argument. Section 281 CLCA requires that objections based on formal defects be made prior to the jury being empanelled. The same section provides the power of amendment. The relevant parts of s 281 are as follows:
281—Objections to informations, amendments and postponement of trial
(1) Every objection to any information for any formal defect apparent on the face of the information must be made by application to quash the information, before the jury is empanelled and not afterwards.
(2) When before trial, or at any stage of a trial, it appears to the court that any information is defective or that there is any variation between any particular stated therein and the evidence offered in proof thereof, the court shall make such order for the amendment of the information as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendment cannot be made without injustice.
…
The purpose for requiring objection at an early stage is plain. If there is a defect in the information then it can be identified and, if possible, addressed, before the trial commences. If there is ambiguity or embarrassment, then it would be in the interests of an accused person to raise the issue at that time. The section is apt to prevent the raising of technical issues, which were in fact of no moment, opportunistically, in the final stages of the trial, or even later.
The fact that this section might operate to undermine the appellant’s argument was raised with his counsel in the appeal hearing. He acknowledged the force of it, but was not in a position to address the court on it.
Whether the defects in this information could be described as formal defects, such as to attract the operation of s 281(1) CLCA and to preclude the raising of the issue at this late stage is a matter which we need not, in the circumstances, decide.
Because the information was flawed, I would allow the amendment of the appeal notice to incorporate ground 1, but I would not uphold the proposed ground.
Before leaving this topic I would add that in my view the drafting of the information was defective in more than just its failure to specify a mental element. The particulars of each count have been drafted in a formulaic manner, without reference to the particular facts on which each count was based. For instance, the expressions “failed to declare and remit” or “failed to withhold … and remit” were used irrespective of whether the allegation was that no declaration was made or that a declaration was made, but containing a deceitfully low figure. Furthermore, the conduct or activity giving rise to any obligation to make the relevant declarations and payments should have been stipulated and was not. In my view these failures contributed to a certain diffuseness in the way the prosecution case was presented and were responsible for some of the difficulties faced by the trial judge when he came to sum up to the jury. These issues will be discussed further in the context of the second proposed ground. However, to illustrate more clearly the criticisms I make, I suggest the substance of the counts could have been drafted along the following lines.
2^nd Count
STATEMENT OF OFFENCE
DISHONESTLY CAUSING A LOSS (Section 135.1(5) of the
Criminal Code 1995 (Cth))
PARTICULARS OF OFFENCE
VAN DUNG PHAN, on about 16 April 2002 at Adelaide and other places, being an employer of employees of the labour hire business identified by Australian Business Number 22185795909 and being responsible for the payment of wages to those employees, dishonestly caused a loss to the Commissioner of Taxation, a Commonwealth entity, by intentionally failing to withhold an amount from the wages paid to each employee and by intentionally failing to pay such amounts to the Commissioner of Taxation, as required by law, knowing that the loss would thereby result.
Deficiency of directions to jury in relation to conduct by omission
The second proposed new ground, which raises a question of mixed fact and law, is in the following terms:
The directions by the learned trial judge on the element of conduct for an offence were deficient in that, the element of conduct can only be satisfied by an omission where there is an obligation or duty to do something and the trial judge did not direct the jury in such terms.
The ground concerned only the GST and PAYG(W) counts within phases 2, 3 and 4. Counsel for the appellant argued that, as the relevant charged conduct consisted of omissions, being the failure to declare and remit GST and the failure to withhold and remit PAYG(W) amounts, an offence could only have been committed if there were a corresponding duty to act. It was argued that the need for proof of facts giving rise to any corresponding duty was overlooked by both the prosecution in its opening address and by the trial judge in summing up. It was said that this deficit was a reflection of the same omission in the wording of the information. As seen, the particulars of each count do not allege any relevant duty on the appellant. It was argued that in relation to phases 2 to 4 there was in fact no duty at law upon the appellant, as on the prosecution case, the relevant businesses were in the names of others and that it was upon the proprietors of those businesses that the duties lay.
I address the last point first. The argument overlooks the schemes of GST Act and TA Act.
There was an obligation upon the appellant to lodge a GST return if he was carrying on an enterprise (whether under a business name owned by him or not) and its GST turnover met the registration turnover threshold: s 31-5 GST Act. In those circumstances he was also required to be registered: s 23-5. There was no dispute in the trial that the GST registration turnover threshold for the entity carrying on the enterprise was met. The co-accused, Ms Nguyen, was also required to lodge a GST return, as she was in fact registered: s 31-5 GST Act. The same applied to Mr Thanh Nguyen and Mr Hong Nguyen. Consequently, the submission that no duty to lodge a GST return could have rested upon the appellant because he was not the legal owner of the business was incorrect.
There was an obligation upon the appellant to withhold, notify and remit PAYG(W) tax if he was an “entity” paying wages to an employee: s 12-35, s 12-60, s 16-70, s 16-150, Schedule 1, TA Act. In those circumstances he was also required to apply to be registered: s 16-140, Schedule 1, TA Act.
I now address the central thrust of the complaints under this heading.
There is no complaint that the directions given on the bare elements of each offence by the judge in summing up to the jury were attended by error. The way in which the judge approached directions on the elements is best explained by reference to the elements of the Criminal Code offence of dishonestly causing a loss. The judge directed that there were five elements of the offence, each of which was required to be proved beyond reasonable doubt. The jury was told that it must first be proved that the accused engaged in conduct. That could include a failure to do something. The second element was that the conduct must be intentional. The third was that, as a consequence of that conduct, the Commonwealth was caused a loss. The fourth was that the accused knew, or believed, at the time of the conduct, that a loss would occur. Finally, it had to be proved that the accused, when engaging in the conduct in question, acted dishonestly.
The appellant’s complaints arising under this proposed ground raise the further directions as to the first element. Before going to the directions about the conduct relevant to the first element alleged in respect of each phase, it is important to observe that the judge gave to the jury extensive directions about the obligations of a person running a business arising under the GST Act (to collect and remit GST) and the TA Act (to withhold and remit withholding amounts). A written summary was also provided. No complaint is now made about those directions. Among other things, those directions explained that GST was levied upon a taxable supply, which included the supply of labourers. They explained circumstances in which an entity would be required to register with the Australian Tax Office for GST, including reference to the GST registration turnover threshold; they explained the relevance and role of tax file numbers and Australian Business Numbers (ABN) and tax invoices. They explained that an entity would account for GST and claim for input tax credits by means of filing a BAS at the end of tax periods. In respect of the PAYG(W) system the jury was directed that a business was required to register for PAYG(W) and the rates at which amounts which were to be withheld were explained. The jury was directed that an employer was required to account to the Commissioner for amounts withheld by means of a BAS and to remit the amounts withheld within certain limits.
Against that background, the judge directed the jury that the prosecution case against the appellant was, throughout, that the labour hire business in operation was that of the appellant. The judge reminded the jury that during phase 2 the labour provided was invoiced under the name “Sunrise Sub-Contractor” with its own ABN, registered to the co-accused, Lee Nguyen, and that it was not disputed that (with one exception) all money invoiced and received had gone into bank accounts bearing the name “Sunrise Sub-Contractor”. The judge directed the jury that the prosecution alleged that the appellant:
… deliberately structured the business in this way in order to put Sunrise Sub-Contractors and Lee Nguyen in between him and the ATO so as to distance himself from the ATO, even though it was still his business. The Crown relies on the failure by [the accused] himself to lodge, or to arrange to have lodged, any BAS or IAS for each of the phase 2 quarters in financial year ending 2004, and his failure to remit or to arrange to have remitted to the ATO any GST and any PAYG withholding for each such quarter.
In respect of the counts occurring in the course of phases 3 and 4 the judge used the same formula for his directions on the conduct relied on to prove the first element.
For each of phases 2, 3 and 4, the appellant’s defence was that the business being run was not his business; that he paid the employees only in his own role as an employee of the business and that therefore no responsibility rested upon him in respect of GST or withholding tax.
In my opinion it was made clear to the jury that, central to the prosecution case in respect of each of phases 2, 3 and 4, was the allegation that the business being run was, in truth, the appellant’s. The jury could not have been under any misapprehension that the obligation to comply with the relevant requirements of law rested upon proof of that fact. It was an essential feature of the conduct which the judge directed the jury must be proved as the first element of each charge.
In respect of ground 2, I would allow amendment of the notice of appeal to incorporate this ground and grant permission to argue it, but I would dismiss the ground.
Direction that a not guilty verdict need be unanimous
The appellant seeks permission to appeal upon a third new ground, in the following terms:
The learned trial judge erred in law in directing the jury that in respect of an offence against a Commonwealth law, a “not guilty” verdict had to be unanimous.
This ground arguably attracts the operation of s 78B of the Judiciary Act 1903 (Cth). Section 78B relevantly provides:
Notice to Attorneys-General
(1)Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys‑General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys‑General, of the question of intervention in the proceedings or removal of the cause to the High Court.
The following principles emerge from authority dealing with section 78B. Section 78B does not operate simply because a party asserts the circumstances. It is clear, from the reference to the possibility of intervention or removal of the cause to the High Court upon the initiative of an Attorney-General, that what the section contemplates is a constitutional question which is a live issue in the proceedings: Amrit Lal Narain v Parnell (1986) 9 FCR 479, 489 (Burchett J); ACCC v C G Berbatis Holdings (1999) 95 FCR 292, 297 (French J). Section 78B does not impose on the Court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be. If the asserted constitutional point is frivolous or vexatious or raised as an abuse of process, it will not attach to the matter in which it is raised the character of a matter arising under the Constitution or involving its interpretation: ACCC v C G Berbatis Holdings (1999) 95 FCR 292, 297 (French J); State Bank of NSW v Commonwealth Savings Bank [1986] 4 NSWLR 549, 557 (Kirby P). There is no residual discretion. Once section 78B becomes enlivened, the notices must be issued: Green v Jones [1979] 2 NSWLR 812, 816-7 (Hunt J).
We were told that at this stage there had not been service of s 78B notices. No doubt this is because the ground found its way to this Court only in the form of an application to amend the notice of appeal, it having not been raised before the appeal hearing. While the notice of appeal was filed within the period allowed, this ground was not within it; neither was it pleaded before the single judge before whom the matter first came. Indeed, it has first been raised some six months after conviction.
This Court would be inclined to grant permission to amend the notice of appeal to incorporate this ground if it considered that it was reasonably arguable. There are two reasons why I consider it is not reasonable arguable.
First, there is a decision of this Court directly on point, which itself draws on High Court authority. It is a well settled principle of this Court that its previous decisions, whilst not binding, will not be departed from unless shown to be “plainly wrong”: R v Do (1990) 54 SASR 543, at 545 per King CJ, White and Mohr JJ agreeing.
The point under consideration was considered by this Court in R v Glynn (2002) 82 SASR 426, where Gray J, with whom Wicks J agreed, held that section 80 of the Constitution required a verdict of acquittal to be unanimous. In arriving at that conclusion, he relied on the High Court’s decision in Cheatle v The Queen (1993) 177 CLR 541.
The issue in Cheatle was whether state law making provision for guilty verdicts by majority could apply to trials for offences against Commonwealth law.
Section 80 of the Constitution provides:
Trial by jury
The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.
After considering the historical context in which section 80 was drafted, as well as the principles underpinning the common law’s insistence of unanimity of jury verdicts, the High Court held that it was an essential feature of a criminal trial by jury under the Constitution that an accused could not be convicted otherwise than by the consensus of all jurors. The Court said (at 552-553):
Considerations of principle also support the conclusion that the requirement of unanimity is an essential feature of the trial by jury guaranteed by s 80. Regardless of the origins of the requirement that the verdict of a criminal jury be unanimous, the common law's unwavering insistence upon the requirement since the fourteenth century has endowed it with the authority of settled doctrine.
In its analysis, the High Court did not distinguish between verdicts of guilty and not guilty. However, the Court held it was unnecessary to decide if verdicts of not guilty were also required to be unanimous.
In his dissenting judgment in Glynn, Perry J accepted that in the authorities establishing the requirement of unanimity no distinction had been drawn between verdicts recording conviction or acquittal. He held, however, that while a unanimous verdict for acquittal was an invariable feature of trial by jury, at the time the Constitution was enacted, it was not an essential feature. His Honour saw a verdict of acquittal by majority as not undermining the basic precepts of the criminal law. On the contrary, Perry J held that the failure of a majority of jurors to be satisfied of an accused’s guilt “might safely be taken as an indication that there is a reasonable doubt as to his or her guilt”: 432.
The majority decision in Glynn is derived directly from Cheatle. Although only limited written argument was presented to this Court on this point, I see no reason to doubt the decision of the majority in Glynn.
There is another reason why this proposed ground is not reasonably arguable. The complaint made in the ground of appeal is merely theoretical. The jury returned unanimous verdicts on all counts. It is difficult to see how a direction allowing majority verdicts of acquittal could have affected the outcome of the trial.

During the course of its deliberations, the jury asked three questions in relation to “non-unanimous verdicts”. Counsel for the appellant suggested these questions showed that the jury was not then in agreement and that the requirement of unanimity may have pressured some jurors to change their opinion so as to achieve unanimity, notwithstanding their entertaining a reasonable doubt.
The first question asked by the jury was: “Your Honour, the jury requests clarification on the return of non-unanimous verdicts”. The judge responded: “The answer to that question is this: for each count your verdict, if you return a verdict, must be unanimous. There is no scope for a non-unanimous verdict or majority verdict.”
Later the jury asked two further questions, being:
1.Your Honour, if the jury are unable to agree on all elements of a count, does this constitute a non-unanimous verdict? Does a non-unanimous verdict become a not guilty verdict because it is not unanimously agreed that the presumption of innocence has been dislodged?’
2.If a jury are unable to agree on each element of a count and therefore unable to come to a unanimous decision after careful consideration, is it the expectation of the court that the jury should unanimously agree to a not guilty verdict because they are unable to say where the truth lies?’
The trial judge answered both parts of the first question “No” and then explained:
[F]irstly, there is no sensible meaning to the term “non-unanimous verdict” in this context. Secondly, a verdict of guilty or not guilty, if given, can only be unanimous. Without unanimity there is no verdict, that is no verdict can be returned. Thirdly, if all 12 agree that one or more elements of a count have not been proved beyond reasonable doubt, and it need not be the same element for each juror, then a unanimous verdict of not guilty is reached.
The judge expanded on this statement in answering the second question. Finally, the judge addressed what I take to be the essential issue concerning the jury, namely, what would follow from a failure to agree. He said:
Now, it may be that you reach a point where you form a view that further time for consideration will not change this position. There will remain disagreement, not amounting to a unanimous guilty verdict and not amounting to a unanimous not guilty verdict. If you reach that point then you should feel free to indicate this to the court, and I would consider how to proceed further in that case. That’s as much assistance as I can give you at this stage ladies and gentlemen; feel free to come back with another question or an intimation, if you get to the point that I last spoke to you about’.
No complaint is made about the terms of any of the judge’s responses to these questions. No further questions were received. Later that day, the jury returned its unanimous verdicts on all counts. Given that all counts resulted in unanimous verdicts, it is hard to see that this proposed ground of appeal arises in the trial.
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.