R v TANG - [2005] SASC 499

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TANG
Judgment of The Court of Criminal Appeal
(The Honourable Justice Debelle, The Honourable Justice Besanko and The Honourable Justice Anderson)
22 December 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
Defrauding the Commonwealth – appeal and application for leave to appeal on two grounds against conviction – application for leave to appeal against sentence – whether judge erred in direction as to elements of offence – whether verdict unreasonable – whether sentence manifestly excessive – income under-declared by $300,000 – application for leave to appeal against conviction granted in respect of ground 1, otherwise refused – application for leave to appeal against sentence refused – held, direction correct – appeal dismissed.
Crimes Act 1914 s 29D, referred to.
Beazley v Steinhardt (1999) 106 A Crim R 21; Lovelace v Director of Public Prosecutions [1954] 3 All ER 481; McLeod v Buchanan [1940] 2 All ER 179; R v Perre (1986) 41 SASR 105; R v Van Nhan Nguyen & Huu Duc Phan [1997] 1 VR 386, considered.

R v TANG
[2005] SASC 499
Court of Criminal Appeal: Debelle, Besanko and Anderson JJ

DEBELLE J. This is an application for leave to appeal against both conviction and sentence. As the issues were in narrow compass, the Court heard full argument indicating that it would consider the application for leave and, if leave was granted on any ground, would determine the appeal.
The applicant was convicted after a trial by jury of the offence of defrauding the Commonwealth contrary to s 29D of the Crimes Act 1914 (Cth). (Although s 29D has been repealed, it operated in respect of offences committed before 24 May 2001.) It was alleged that the appellant had defrauded the Commonwealth by causing a restaurant business called “Lemon Grass Bistro” to declare to the Commissioner of Taxation income for the year ending 30 June 1998 less than the income in fact earned by the business in that financial year. The applicant was sentenced to a period of imprisonment for three years. The judge ordered that she be released after serving 12 months of that sentence upon her entering into a recognisance in the sum of $1,000 to be of good behaviour for 18 months. The applicant applies for leave to appeal against both the conviction and the sentence.
The Prosecution Case
There were five partners in the business. The applicant was the wife of one of those partners. The prosecution case was that the applicant was the bookkeeper for the business; that she was responsible for providing information to the accountant for the business who prepared the income tax returns for the partnership business; and that the applicant had provided the accountant false financial information which understated the income of the business. The understated income was alleged to be approximately $306,000. A search by officers of the Australian Federal Police and the Australian Taxation Office…

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 TANG

Details

AGLC: R v TANG [2005] SASC 499
Case: [2005] SASC 499
Decision Date: 22 December 2005

CaseChat Overview and Summary

The case of R v Tang involved the appellant, who had been convicted of defrauding the Commonwealth. The appellant sought leave to appeal against the conviction on two grounds and also applied for leave to appeal against the sentence imposed. The appeal focused on whether the trial judge erred in the directions given regarding the elements of the offence and whether the verdict was unreasonable. Additionally, the appellant argued that the sentence was manifestly excessive. The High Court was tasked with determining the validity of these claims.

The primary legal issues before the court were whether the trial judge had correctly directed the jury on the elements of the offence of defrauding the Commonwealth, whether the verdict reached by the jury was unreasonable, and if the sentence imposed was manifestly excessive. The court's analysis required a careful examination of the trial judge's directions, the sufficiency of the evidence, and the appropriateness of the sentence in light of the appellant's under-declaration of income by $300,000.

The court found that the trial judge's direction on the elements of the offence was correct and that the jury's verdict was not unreasonable. The court held that the evidence was sufficient to support the conviction. Regarding the sentence, while the court acknowledged the substantial under-declaration of income, it did not consider the sentence to be manifestly excessive. Consequently, the application for leave to appeal against the conviction was granted in respect of one ground but was otherwise refused. The application for leave to appeal against the sentence was also refused. The appeal was ultimately dismissed.

Orders