R v Phan & Ton - [2010] SASCFC 53

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PHAN & TON
[2010] SASCFC 53
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice White and The Honourable Justice Kelly)
16 November 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - CONSIDERATION OF SUMMING UP AS A WHOLE
Applicants convicted for 20 counts of dishonestly causing a loss - adequacy of judge's direction to jury on elements of offence and the need for dishonesty to accompany relevant conduct - whether directions adequately linked the directions of law to the facts alleged - whether case for applicant Phan adequately put to jury - whether judge's response to jury question might have unwittingly encouraged jury to set aside concern as to sufficiency of proof in case against Ton.
Held: appeal by Ton in respect of counts 15 to 20 upheld and convictions quashed. Appeal otherwise dismissed.
Criminal Code Act 1995 (Cth) s 135.1(5), referred to.
R v Lavery (No 2) (1979) 20 SASR 430; R v Von Einem (1985) 38 SASR 207; R v Whittingham (1988) 49 SASR 67; Reg v Veverka (1978) 1 NSWLR 478; Dominican v The Queen (1992) 173 CLR 555, applied.

R v PHAN & TON
[2010] SASCFC 53
Court of Criminal Appeal: Vanstone, White and Kelly JJ

VANSTONE J: The applicants were each convicted in the District Court by verdicts of a jury for 20 counts of dishonestly causing a loss, contrary to s 135.1(5) of the Criminal Code Act 1995 (Cth). They were joint charges. A single judge of this Court refused permission to appeal against conviction on a number of grounds. Upon renewing the application before this Court, Ms Ton pursued only two grounds of appeal, raising aspects of the summing up of the trial judge. Mr Phan pursued two grounds in identical terms and relied on the argument put by counsel for Ms Ton. He independently pursued a third ground of appeal, asserting that the judge failed adequately to put his defence to the jury.
Background
The applicants were formerly husband and wife. At different times they were proprietors of GoodStart Contractor (GoodStart), a business that supplied manual labour to primary producers in South Australia. The prosecution case was that the applicants, as proprietors of the business, were involved in a dishonest scheme involving failing to remit to the Commissioner of Taxation (ATO) goods and services tax (GST) collected from customers and by failing to withhold pay-as-you-go withholding tax (PAYG) from the wages of employees of GoodStart and to remit it to the ATO.
The approved form of reporting entitlements and obligations relating to GST and PAYG is by the quarterly filing of a Business Activity Statement (BAS) by the entity carrying on the enterprise. It was alleged that for each quarter during the period from 1 January 2004 to 30 June 2006, the entity carrying on the business of GoodStart was required…

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 & Ton

Details

AGLC: R v Phan and Ton [2010] SASCFC 53
Case: [2010] SASCFC 53
Decision Date: 16 November 2010

CaseChat Overview and Summary

This matter concerned an appeal by the applicants, Phan and Ton, against their convictions for 20 counts of dishonestly causing a loss. The appeal was heard by Vanstone, White, and Kelly JJ of the Supreme Court of South Australia.

The primary legal issues before the court were the adequacy of the trial judge's summing up to the jury. Specifically, the court considered whether the directions adequately explained the elements of the offence, the requirement for dishonesty to be contemporaneous with the relevant conduct, and whether these legal directions were sufficiently linked to the factual allegations presented. Further issues included whether the defence case for Mr Phan was adequately presented and whether the judge's response to a jury question might have improperly influenced the jury regarding the sufficiency of proof against Ms Ton.

The court, in its joint judgment, determined that while permission to appeal was refused in relation to the first ground and the ground raised solely by Mr Phan, permission was granted for the second ground, which was raised by both applicants. The appeal was allowed in respect of Ms Ton’s convictions for counts 15 to 20, with those convictions being quashed. For all other counts, the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITE J (dissent)

I would dismiss this ground of appeal.Conclusion In relation to the first ground of appeal and the ground of appeal raised only by the applicant Mr Phan, I would refuse permission to appeal. In relation to the second ground, raised by both applicants, I would grant permission to appeal. In respect of Ms Ton’s convictions for counts 15 to 20 I would allow the appeal and quash the convictions. In relation to all other counts I would dismiss the appeal. I agree with the orders proposed by Vanstone J and with her reasons. KELLY J: I agree with the orders proposed by Vanstone J and with her reasons.

Ratio Decidendi

Legal Principle Established

Established by:

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