Sami v Duggan - [2011] WASC 304

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: SAMI -v- DUGGAN [2011] WASC 304

CORAM: SIMMONDS J

HEARD: 20 SEPTEMBER 2011

DELIVERED : 14 NOVEMBER 2011

FILE NO/S: SJA 1022 of 2011

BETWEEN: TONY SAMI
Appellant
AND
TERRY DUGGAN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE G MIGNACCA-RANDAZZO
File No  :PE 46265 of 2008, PE 46266 of 2008, PE 46269 of 2008, PE 46271 of 2008, PE 46272 of 2008, PE 46273 of 2008

Catchwords:

Criminal law and procedure - Appeal against conviction by magistrate for offence of doing something with the intention of dishonestly gaining a benefit from a Commonwealth entity contrary to Criminal Code 1995 (Cth) - Whether conviction should be overturned because the appellant had been denied lawyerclient privilege - Whether the privilege had been waived

Criminal law and procedure - Appeal against conviction by magistrate - Whether conviction should be overturned because thing the appellant had done was prepare tax returns for others

Criminal law and procedure - Appeal against conviction by magistrate - Whether the conviction should be overturned on the basis the magistrate had made findings in the absence of evidence

Criminal law and procedure - Appeal against sentence by magistrate -Whether the magistrate had improperly fixed a non-parole period for global penalty for the offences

Legislation:

Crimes Act 1914 (Cth), s 4K, s 16, s 19AA, s 19AC, s 19AF, s 20
Criminal Appeals Act 2004 (WA), s 7, s 8, s 9, s 10, s 40
Criminal Code 1995 (Cth), s 130.1, s 130.3, s 135.1
Evidence Act 1903 (WA), s 31A

Result:

Leave to appeal denied on some grounds
Leave to appeal granted on remaining grounds but appeal on those grounds dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr P N Bevilacqua

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (Cth)

Case(s) referred to in judgment(s):

Carey v Korda & Winterbottom [No 2] [2011] WASC 220
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
Gok v The Queen [2010] WASCA 185
Hawker v Coulthard [2011] WASC 139
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Morgan v The State of Western Australia [2011] WASCA 185
Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457
Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461
R v Manchester Crown Court; Ex parte Rogers [1991] 1 WLR 832
Roncevic v The State of Western Australia [2010] WASCA 213
Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Suvaal v Cessnock City Council [2003] HCA 41; (2003) 200 ALR 1

SIMMONDS J:

Introduction

This is an application for leave to appeal ordered to be heard with the appeal against Magistrates Court convictions and, by leave I granted at the hearing before me, against sentence. The offences were under the Criminal Code 1995 (Cth). The offences as charged were six, each of preparing and lodging or causing to be lodged income tax returns of other persons containing false information with the intention of dishonestly obtaining a gain from the Commonwealth.
The magistrate sentenced the appellant to a global term of imprisonment with an order for release on a Recognizance Release Order under the Criminal Code after serving the larger part of that term. He also made an order for reparation to the Commonwealth. There is no appeal in respect of that order.
In these reasons I first describe the background to the proceedings that resulted in the convictions and sentence, including the provisions of the Criminal Code applicable to the convictions. I then turn to those proceedings and the proceedings in this appeal. After outlining the requirement for and the grounds of the application for leave to appeal, I will consider each ground. The final section of these reasons is my overall conclusion.

Background to the convictions and sentence

Except as noted, what follows is not the subject of contest between the parties to the appeal.
The appellant at all material times practised or carried on a business that was or included the preparation and lodgement of income tax returns. The business was carried on either personally by the appellant or though a company, TSWA Holdings Pty Ltd, of which the appellant was a director. It is also possible the business was also carried on by a Mr ZK, as I will explain.
Clients or customers of the business were or included individuals from various non-English speaking migrant communities whose languages the appellant spoke. The appellant was not himself a registered tax agent, but he had an arrangement with a Mr LM, a registered tax agent. By that arrangement the appellant could prepare income tax returns and pass them on to LM for him to lodge them with the Australian Taxation Office. The fees payable by the taxpayers whose returns were so lodged would be shared between the respective businesses. As will be seen, the majority of the returns the subjects of the convictions were not lodged under that arrangement. There was a conflict as to whether the appellant prepared and lodged them himself, electronically, using a system provided by the ATO called 'E-tax'.
I will identify the clients of the appellant by the initials of their names, or so many other letters of their names as is necessary to distinguish them, but so as not further to identify them.
Mr TA, Ms SA, Mr DG, Ms Kh Ha, Mr Ki Hi and Mr GJ were all clients of the appellant's business. They were all non-English speaking individuals who were immigrants to this country, having emigrated no more than about 4 years before the events in question.
By 12 prosecution notices dated 29 July 2008 the appellant was charged with 12 offences committed on various dates, in most cases between 1 August and 25 October 2005, under Criminal Code s 135.1. That provision read at the material time as follows:
135.1General dishonesty
Obtaining a gain
(1)A person is guilty of an offence if:
(a)the person does anything with the intention of dishonestly obtaining a gain from another person; and
(b)the other person is a Commonwealth entity.
Penalty: Imprisonment for 5 years.
This provision should be read with Criminal Code s 130.1 'obtaining' and s 130.3 'dishonest':
130.1Definitions
In this Chapter:
…
obtaining includes:
(a)obtaining for another person; and
(b)inducing a third person to do something that results in another person obtaining.
…
130.3Dishonesty
For the purposes of this Chapter, dishonest means:
(a)dishonest according to the standards of ordinary people; and
(b)known by the defendant to be dishonest according to the standards of ordinary people.
Each Prosecution Notice charged the appellant with having prepared and lodged or caused the lodgement of the tax return of a different individual for the tax year ending 30 June 2004 or the tax year ending 30 June 2005, in each case containing false information, with the intention of dishonestly obtaining a gain from the federal Commission of Taxation.
TA, SA, DG, Kh Ha, Ki Hi and GJ were six of the 12 individuals.
The case against the appellant in respect of each of the 12 individuals' tax returns was that either the appellant prepared the tax return in question and provided it to LM who lodged it; or the appellant prepared the tax return in question and lodged it electronically through E‑tax from an Internet address allocated to a Telstra Big Pond user account, the accountholder of which was TSWA and the authorised representative in relation to which was the appellant. For each of the returns in question the appellant in preparing it included information in it in the form of claims for the taxpayer in question with the intention of gaining refunds which would not have been payable, or which would have been payable at a lesser amount had the information not been included. The claims in question were false having been included or inflated by the appellant without instruction by the taxpayers concerned, and had the effect of grounding reductions or larger reductions of taxable income, thereby producing a refund or additions to any refund otherwise payable. Examples were car‑related expenses where the taxpayer did not have a car, medical expenses of a certain amount which the taxpayer did not have, marriage when the taxpayer was not married and tax withheld for a taxpayer which was higher than the amount actually withheld. As a result of the inclusion of the false information amounts were overpaid by the ATO and in accordance with instructions by or on behalf of the taxpayer the amounts were paid, either electronically into an account controlled by the appellant, or directly to the taxpayer by cheque or electronically.
One of the 12 charges was discontinued. The appellant pleaded not guilty to and was tried on the remaining 11 charges.

The proceedings in the Magistrates Court

The appellant's trial was in the Magistrates Court in Perth before Magistrate Mignacca‑Randazzo. The trial commenced on 21 June 2010 and evidence was given over the periods 21 to 25 June 2010, and 1 to 3 December 2010, a total of eight days.
The prosecution gave its closing address on 3 December 2010, and defence counsel lodged and served written closing submission on 7 December 2010. With the leave of the magistrate and at the request of the appellant his counsel spoke to her submissions at a hearing on 17 December 2010. Counsel for the prosecution was not present at that hearing, but did not seek to take advantage of leave the magistrate gave to apply to be heard in reply.
At a hearing on 24 December 2010 the magistrate distributed substantial written reasons for his decision to convict the appellant on six of the charges and acquit him on the five others. Those reasons (the Reasons for Decision) extended to 434 numbered paragraphs, over 129 pages. He found the appellant guilty in respect of the returns of TA, SA, DG, Kh Ha, Ki Hi and GJ and not guilty in respect of the returns of the other taxpayers. The magistrate directed the prosecution to lodge and serve any written sentencing submissions on or before 25 January 2011 and directed the appellant to lodge and serve any written sentencing submissions on or before 27 January 2011. The magistrate also ordered a pre‑sentence report.
On 4 February 2011 after having received a PSR and written sentencing submissions from the prosecution, and after having heard oral submissions by counsel for the appellant and for the prosecution, the magistrate delivered his oral sentencing remarks. These ran to 16 pages of transcript (the Sentencing Remarks). The magistrate sentenced the appellant to a term of imprisonment of 20 months and made a recognizance release order. He directed the appellant to serve 14 months and that he be eligible for release upon giving security by recognizance in the sum of $5,000 that he would be of good behaviour for a period of 3 years. For the purposes of this sentence the magistrate noted Crimes Act 1914 (Cth) s 4K, s 19AC(1) and s 21A. The reference to s 21A appears to have been an error, as there was no such provision in force at any material time. It was not in contest that the magistrate meant also to refer to s 20(1)(b). Crimes Act s 4K is the power to set a global penalty for multiple offences joined in the same proceeding. I set out the remaining provisions, and certain related ones, below when I consider the appellant's appeal against sentence.
Finally, the magistrate made an order under Crimes Act s 21B for the appellant to make reparation in the sum of $16,208.03. That sum was the total, as corrected by the magistrate and accepted by both counsel at the sentencing hearing on 24 December 2010, of the amounts overpaid by the Commonwealth on the tax returns in respect of which the appellant had been convicted.
I will provide additional detail as to the trial, the convictions and the sentencing when I consider the appellant's grounds of appeal.

The proceedings in this appeal

By Appeal Notice dated 22 February 2011 the appellant, who had prepared the Notice himself apparently without legal assistance, applied for leave to appeal against his convictions, on four grounds. They were:
1.His honour erred in law and procedures by convicting me in the absence of evidence.
2.His honour erred in law by ordering me to disclose my instructions to my lawyer.
3.His honour erred in law by ignoring the fact that a tax return is very individual and only can use information provided to me by the taxpayer and the tax payer is the only person to get the benefit.
4.His honour erred in law by ignoring the fact that every tax payer sign the tax payer declaration form.
On 8 April 2011 Hall J of this court made provisional orders on the application for leave to appeal and on 19 May 2011 his Honour made an order extending the times for compliance with those orders. I note that one of the orders so amended was for lodgement of the transcript of the proceedings in the Magistrates Court, a not insubstantial volume of paper, numbering about 675 pages in all. The court was in due course provided with transcripts of all of the hearing days in the Magistrates Court, save for 17 December 2011. That transcript was not made available to me until after the hearing of the appeal. However, it was common ground that the unavailability of that transcript was not significant for my purposes, and the contrary does not appear to me.
I should add that the appellant informed me at the hearing, at which he represented himself, that he did not have to hand a copy of the Reasons for Decision, although he recalled having seen them previously to the hearing. Nor did he have a copy of the Sentencing Remarks, although he was present when they were delivered. I arranged for the appellant to have copies of both by him during the hearing before me, as well as access to other transcript as needed.
On 20 June 2011 Hall J made orders in the appeal, most notably that the application for leave to appeal be heard at the same time as the appeal.
On or about 11 August 2011 the appellant by facsimile transmission from Acacia Prison notified the court he wished to amend his appeal to include an appeal against sentence, on the following ground (emphasis in the original):
PART IB of the Crimes Act 1914 Cth 19C
PART IB of the Crimes Act precludes a court from fixing a non-parole period for sentences of three years or less. Provides a Court must fix a non-parole period (or a Recognizance release order) for Sentences Exceeding 3 years
By facsimile transmission sent 14 September 2011, that is, six days before the hearing before me, the appellant sent his written submissions in the appeal. One of those submissions was as follows:
Your honour the sentence was extremely high compared to other sentences with higher amount of money and more charges.
No further matter on this, including what 'other sentences' were being referred to, was set out in his written submissions, although at the hearing before me the appellant in his oral submissions referred to 'R v Javisky in 2010' and 'Commonwealth v Meggar, that's in 2009'. I was not provided with further citation details for either authority. One authority, Gok v The Queen [2010] WASCA 185, was referred to by the magistrate in his Sentencing Remarks as one to which he had regard for standards of sentencing customarily observed in respect of 'analogous offences of this type' (4 February 2011, ts 14). However, Gok makes no reference to 'Javinsky' or 'Meggar'. The magistrate also referred to the 'comparative cases provided by the prosecution' (ts 15). This may have been a reference to a table of such cases apparently provided to the magistrate which, however, was not available to me.
At the hearing before me on 20 September 2011, the appellant, who as I have indicated was self‑represented, appeared in person having been brought up from custody, while the respondent was represented by counsel. The appellant, when I questioned him about the quoted passage in his written submissions, confirmed that he sought to add a further ground of appeal against sentence, that of manifest excessiveness.
In my view the amendment of the appeal as sought by the facsimile transmission of August 2011 and the inclusion of a further ground of appeal as indicated first by the written submission of the appellant of 13 September 2011 both required an extension of time to be granted by the court: see Criminal Appeals Act 2004 (WA) s 10(3) read with s 9(1).
At the hearing I granted an extension of time to amend the appeal to include an application for leave to appeal against sentence on the ground notified in the facsimile of August 2011. This was on the basis that the respondent did not object to the extension and the appellant had notified the court, and through it the respondent, of the amendment at a time before the listed hearing of the appeal which was sufficient, in view of the nature of that amendment, to permit the ground to be properly dealt with at the hearing. The respondent's written submissions addressed the appeal against sentence on this ground.
However, I did not grant an extension of time to amend the application for leave to appeal to add the further ground of appeal against sentence. On the power to permit an appellant to add a further ground of appeal, see Criminal Appeals Act 2004 s 40(1)(k). I took account of the appellant's description from the bar table of the difficulties under which, as a self-represented appellant in custody, he had been labouring in preparing his appeal. I decided as I did in view of the objection of the respondent and the delay in the giving of the indication of the further ground after the seeking of leave to make the amendment to include an application for leave to appeal against sentence on the other ground. That delay, the nature of the further amendment and the appellant's oral submissions in support meant, in my view, there was insufficient time allowed before the listed hearing of the appeal to permit the further ground to be properly dealt with at that hearing. Nor was it apparent to me that the ground had such merit that to fail to adjourn the hearing to permit both parties to properly address it would outweigh the importance of dealing with the appeal promptly, at the listed hearing. See on the significance of promptly dealing with appeals Criminal Law in Western Australia as at 22 September 2011 [9570.5].
At the hearing before me I had the written submissions from the appellant referred to, and written submission from the respondent dated 13 September 2011. The hearing began late, at 11.11 am, through no fault of either party, and occupied the remainder of the hearing day. At the end of the hearing, I gave leave to the parties within seven days to provide supplementary written submissions in relation to the matters I will describe below. In the event both parties provided me with written submissions within seven days. In addition the appellant provided me with further written submissions which were dated and received outside that period, by five and eight days respectively. I consider I should not take account of the latter submissions. In any event I do not consider they added anything material for the purposes of my deliberations.
I should add that in oral argument the appellant sought to raise the matter of the fairness of the magistrate's allowance of questions to him concerning his prior criminal convictions, on the basis those convictions were irrelevant to his credibility. On the questions the magistrate allowed to be asked, see the Reasons for Decision [301].
However, this was matter that did not represent a ground of appeal against conviction, and was objected to by counsel for the respondent. For the same reasons I gave in relation to the further ground of appeal against sentence, and after taking account of the position of the appellant that I described there, I would not give an extension of time to add this further ground. I would note for this purpose that it was clearly the case in the trial that the credibility of the appellant as well as a number of prosecution witnesses was in issue, and in that light, it is not at all evident to me that it was unfair for the magistrate to allow the questions he did as to the prior convictions. See Cross on Evidence (8^th Aust ed, 2010) [19025].

I turn now to consider the appeal, beginning with the principles which concern the grant of leave to appeal.

Principles applicable to grant of leave to appeal

Criminal Appeals Act Pt 2 Div 2 deals with appeals to a single judge of the court from decisions in the Magistrates Court. In that Division, s 7(1), s 8(1) and s 9(1) and (2) are the material provisions for the purposes of this appeal, and they read as follows (emphasis supplied):
7.Right of appeal
(1)A person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision.
…
8.Grounds for appealing
(1)An appeal may be made under this Division on one or more of these grounds -
(a)that the court of summary jurisdiction -
(i)made an error of law or fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction;
(iii)imposed a sentence that was inadequate or excessive;
(b)that there has been a miscarriage of justice.
…
9.Leave to appeal required in all cases
(1)The leave of the Supreme Court is required for each ground of appeal in an appeal under this Division.
(2)After an appeal is commenced, the Supreme Court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding.
As to leave to appeal, the applicable principles are sufficiently stated for my purposes in the well-known authority, Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [55] ‑ [56] (Steytler P, Wheeler and Roberts‑Smith JJA):
Leave to appeal must not be granted unless the single Judge (or three-member Court) is brought to that degree of satisfaction, bearing in mind that the purpose of the legislative provisions is to weed out unmeritorious appeals. Yet at the same time the fundamental principle must be recognised that criminal appellants ought not to be shut out from challenging judicial decisions determining their rights or affecting their liberty, except by clear legislative intent and then only to the extent the legislation necessarily compels. The efficiency of courts and finality of litigation are not to be achieved by denying justice.
The ordinary meaning of the words, taken in their context (which includes the legislative purpose) must accordingly be taken to mean that a ground is required to have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success. However, it is important to bear in mind that, because the test is directed to each ground, it seems that the answer to the question whether leave to appeal is or is not granted will not involve any consideration of whether, if the ground of appeal succeeds, the error in question has led to a substantial miscarriage of justice. That issue is left for determination on the appeal proper.
As I will indicate below I would give leave to appeal on only some of the grounds in this appeal. However, any grant of leave only indicates that, in the words of Samuels [56], 'it would not be irrational, fanciful or absurd to envisage [the appeal] succeeding … in effect, that it has a real prospect of success'. A grant of leave to appeal does not of itself indicate that an appeal will succeed, or even that it is more likely than not to succeed. As will become apparent, that point is of importance in this appeal.
I turn now to deal with each of the grounds of appeal. In dealing with them, I deal with those relating to the convictions first, beginning with the more specific grounds (Grounds 2 to 4), before considering the more general one (Ground 1). I then consider the appeal against sentence.

Ground 2: instruction to the lawyer for the appellant

As indicated in the appellant's written submissions, the appellant says this error in law concerned the magistrate's asking the appellant 'to reveal openly what I was discussing with my lawyer'. In so doing, the submissions add, 'he had made an error as any discussion between a lawyer and his client/s are protected by the privacy law'. Later in his written submissions the appellant states that the magistrate 'ignored the most sacred and privileged point in the legal system which is the lawyer-client confidentiality by forcing me to disclose what I discussed with my lawyer'. This ground was not further addressed in the appellant's written submissions, and not addressed at all in his oral ones.
The respondent's written submissions identify the respondent's assumption that this ground relates to the magistrate's response to the appellant's objection to a question concerning when he informed his lawyer of an alibi defence. The appellant did not contest the correctness of this assumption. As the respondent's written submissions indicate, the magistrate's response should be understood in the context of the following evidence in the trial.
In her cross-examination of taxpayer DG, defence counsel put to him he had not seen the appellant at the time (July 2004) at which, according to a witness statement he had given to the ATO, he had his tax return done. Counsel put to him this was so because the appellant was not in Western Australia. Following the objection of counsel for the prosecution, that this was in effect a defensive alibi of which counsel for the prosecution had been given no notice, counsel for the defence said she was in a position that the information '[had] only just been given prior to court reconvening at 2.15' (1 December 2010, ts 50). After an exchange with both counsel, the magistrate ruled that he would permit the question to be answered. See 1 December 2010, ts 50 ‑ 52.
In his evidence‑in‑chief the appellant testified he did not prepare DG's tax return as he had been in Darwin engaged in interpreting work for the Commonwealth over the period early July 2004 to about 15 September 2004, save that the Commonwealth had flown him to Perth twice during that period, to see his son (see 1 December 2010 ts 78 ‑ 81).
Counsel for the prosecution in his cross‑examination of the appellant had this exchange with him, in the course of which the magistrate gave the appellant directions the apparent subject of this ground (3 December 2010 ts 27 ‑ 28, emphasis added):
Mr Sami, you're aware, aren’t you, that these proceedings were brought against you by the Commonwealth Director of Public Prosecutions?‑‑‑Yes.
And they were commenced a few years ago?‑‑‑Yes.
You mentioned to his Honour yesterday that you didn't do Mr Jebrimarium's 2005 tax return ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ because you were in Darwin ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ doing some interpreting for the Commonwealth DPP ‑ ‑ ‑?‑‑‑Yes.
My learned friend Ms Monck has been acting for you in these proceedings for over a year, hasn't she?‑‑‑Yes.
Because she was acting for you shortly before this matter was due to come on for trial in December last year?‑‑‑Yes.
And you were present when this matter first commenced, when the hearing first commenced before his Honour in June this year?‑‑‑Yes.
Yet the first time you were told your lawyer my learned friend Ms Monck that you were in Darwin for the Commonwealth DPP in 2004 was this week, wasn't it?‑‑‑What I said to my lawyer is - what I said to my lawyer is protected between lawyer customer, lawyer client.
HIS HONOUR: No, Mr Sami, I don't agree. That is a legitimate question. You are directed to answer that question?‑‑‑Yes. I probably mentioned that before but ‑ ‑ ‑
BLANDFORD, MR: Mr Sami, you would know, wouldn't you, that if in fact you were in Darwin, when [DG] says you were at your house preparing his return, if you were believed, that would provide a complete defence to that charge, wouldn't it?‑‑‑Yes.
Because you can't have prepared his return at your house in Morley or Dianella or wherever it was, if you were in Darwin?‑‑‑Yes.
So it's very important to your case on the charge relating to [DG] ‑ ‑ ‑?Yes.
‑ ‑ ‑ that you say you had an alibi because you were in Darwin?‑‑‑Yes.
Yet the very first time that you advised your lawyer of that was this week?‑‑‑Yes.
The reason for that, Mr Sami, is because you weren't in Darwin, were you?‑‑‑Of course I was in Darwin.
It's the case, isn't it, that you made it up?‑‑‑I didn't make it up. I didn't make it up, and if I make it up I wouldn't choose the Commonwealth Department of Public Prosecutor, which is they are prosecuting me, to say that I work or I was working with them.
Mr Sami, if it was true, you would have told the Commonwealth DPP at the very outset?‑‑‑I would - why I should tell the Commonwealth DPP? It's a part of my defence. Did you tell me what you do you have on your thing? You didn't. Did you tell me that you were telling me the customers - the witness what to say? You didn't.
Just - I haven't finished the question?‑‑‑Yes.
If in fact you were in Darwin when you are alleged to have prepared [DG's] tax return, you would have told the Commonwealth DPP much earlier, because that would have meant that if that was true, the charge wouldn't have proceeded?‑‑‑I wouldn't, or I tried to say and they probably didn't answer me. Unfortunately I didn't meet with my lawyer until last week when I told her that. I didn't meet with my lawyer until last week and she probably can verify that for you.
But you must have met with your lawyer in June?‑‑‑Yes.
Because she was here in court with you?‑‑‑But Mr [D] - we weren't speaking about Mr [D]. Mr [D] was the last customer. I was speaking about witness by witness with Ms Monck.
It's the case, isn't it, Mr Sami, that you weren't in Darwin?‑‑‑I was in Darwin and you can verify it with your department. At the end, it is your department.
It will be seen that counsel for the prosecution sought to elicit evidence from the appellant to found the claim the alibi was a recent invention.
The magistrate found the appellant's evidence as to his being in Darwin over the period to which he testified, which included his return to Perth during that period, was not inconsistent with his preparing and lodging a return for DG, which he found established beyond a reasonable doubt on other evidence. See Reasons for Decision [221] ‑ [223], [389] ‑ [390].
In my view the present ground must fail.
I begin by noting that it is at least arguable that the answer to the question which the magistrate directed the appellant to answer went beyond simply calling on the appellant to describe the time of an exchange with his legal representative, to calling on him to describe an aspect of that exchange's content. This would be capable of being met with a claim of privilege. Authorities such as R v Manchester Crown Court; Ex parte Rogers [1991] 1 WLR 832, cited to me by the respondent, are thus distinguishable. See Carey v Korda & Winterbottom [No 2] [2011] WASC 220 [64] (Edelman J).
However, a claim of privilege may be waived. This may occur where the conduct of the person entitled to the privilege is inconsistent with the maintenance of the confidentiality of the communication: Carey [94]. Here the conduct of the appellant in not asserting at the time of the disclosure to the court by his counsel as to the 'information' as to the appellant being in Darwin having 'only just been given' (see 1 December 2011, ts 50, above) was unauthorised is, in my view, conduct of the kind which represents waiver. This makes it unnecessary for me to consider whether the putting of the alibi assertion in the cross-examination of DG was itself a waiver, or whether the magistrate's treatment of the alibi evidence of the appellant as he did meant there was no miscarriage of justice arising from any error he made in directing the appellant to answer the question. However, I will have occasion to return to that treatment in another context below.
It follows that, although I would grant leave to appeal on the present ground, I would not uphold it.

Grounds 3 and 4: Individual tax returns and benefit

In the respondent's written submissions it is contended that ground 3, to the extent of its first part, which is an assertion that a tax return is 'very individual' and 'only can use information provided to [the appellant] by the taxpayer', is conveniently dealt with together with ground 4. Ground 4 is an assertion that the magistrate erred 'by ignoring the fact that every taxpayer sign the taxpayer declaration form'. I agree with the respondent's analysis: all of those assertions are that the tax returns were those of the taxpayer in question, signed by all of them. Ground 3 in its remaining part, the assertion that 'the taxpayer [is] the only person to get the benefit', is a different point, and is best dealt with separately.
The assertions in the first part of ground 3 and in ground 4 cannot be made out. The magistrate noted the evidence that a return could not be lodged using the E-tax system without the taxpayer completing a taxpayer declaration (Reasons for Decision [45]), while also noting the evidence from all of the taxpayers, in respect of whose returns the appellant was convicted, that they had signed the return or they had the tax return done by the appellant without any evidence they did not sign the declaration. This was except for Kh Ha. The magistrate noted she gave evidence she did not sign any taxpayer declaration, while also noting the tax return for her was lodged by the E-tax system (Reasons for Decision [93]). See the other taxpayers TA ([101]); SA ([117]); Ki Hi ([81] - [83], [86]); GJ ([202]); and DG ([207]). The magistrate found that in the case of all six taxpayers in question the appellant departed from the instructions they gave him, inserting false claims not part of those instructions; and in all six cases he found, by reason of, at the time, their 'relatively' recent immigration to Australia, their 'limited or simple' capacity to speak English, their lack of or limited experience in income tax matters and by the nature of their occupations or other backgrounds, they were dependent on others to understand and discharge their obligations and responsibilities in income tax matters ([293]). See Kh Ha, the Reasons for Decision [402] and [404] (in the latter, did not make false claims 'knowingly') read with [29]; for TA, [363] and [365] (in the latter, signed the declaration without making the false claim 'knowingly' and 'trusting the accused') read with [29]; for SA, [371] and [372] (in the latter, signed declaration without making the false claims 'knowingly') read with [117] (noting evidence from her she signed 'something … from a computer' but 'without reading it', and she 'trusted' the appellant) and [29]; for Ki Hi, [410] and [411], read with [29]; for GJ, [415] and [416] (in the former, did not make false claims 'knowingly'), read with [29]; and for DG, [391] (despite signing the declaration, DG did not make the false claim 'knowingly'; he 'just trusted the accused') read with [29].
However, the assertions in the first part of ground 3 and in ground 4 might be taken as a claim that applicable here is the proposition that where a taxpayer signed a declaration or otherwise authorised or could be seen to have authorised lodgement of a return containing false information (as where they were, or could reasonably be seen to be, aware the information was false) the person who prepared the return and lodged it or caused it to be lodged and who included the information in question in the return knowing it to be false cannot be found guilty of the offence in Criminal Code s 135.1. For the respondent, it was submitted, correctly in my view, that such a claim cannot be sustained. It might be in such a case that more than one person would be liable. However, in my view, I do not need to go further into the matter as the magistrate's findings were that there was no such authority or, in my view of those findings, appearance of such authority.
I turn to the other part of ground 3, concerning obtaining benefit.
The assertion in that part cannot be made out. The offence in Criminal Code s 135.1(1), when read with s 130.1 'obtaining', has to be seen as extending to doing anything with the intention of obtaining a benefit for 'another person' or inducing a third person to do something that results in another person obtaining benefit (my emphasis). No benefit needs to be actually obtained by the offender or another person. In my view, the magistrate noted all of these matters: see Reasons for Decision [12], [14]. In the event the magistrate found that the appellant did something (including false information in the taxation returns in question: [425]) with the 'only rational and reasonable inference' ([427]) for doing so being 'to intentionally cause the Commissioner of Taxation through the ATO … to cause the taxpayers' notice of assessment to be … issued' which would result in greater refunds 'than the taxpayer was otherwise entitled [to]' ([426]). This represented an intention 'to dishonestly obtain a gain from the Commissioner of Taxation' ([427]). Further, the magistrate found that greater refunds were actually paid to the taxpayers, or to a company through which the appellant's business was conducted to hold as trustee for or on behalf of the taxpayer in question: [430] read with [429].
It follows I would not grant leave to appeal on grounds 3 and 4.
I turn now to ground 1.

Ground 1 – conviction in the absence of the evidence

This ground is one which on the authorities I consider I should see as invoking Criminal Appeals Act s 8(1)(b) (that there has been a 'miscarriage of justice'). It is to be taken as a claim that the magistrate's decision that the appellant was guilty is unsafe or unsound, that is, it is unreasonable or cannot be supported. See Hawker v Coulthard [2011] WASC 139 [11], [12] (Sleight C), referring to M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ). At the hearing before me I gave the parties leave to provide me with written submissions as to the correct approach that should be taken to such a claim. I was assisted by the submissions I received.
As the nature of an appeal under Criminal Appeals Act Pt 2 Div 2, that is, an appeal of the present sort, is 'by way of rehearing' (Criminal Procedure Rules 2005 (WA) r 64) I consider that the nature of the approach I must take to the present ground is as described in Morgan v The State of Western Australia [2011] WASCA 185 [92] ‑ [95] (Pullin JA, Hall J agreeing), referring to Suvaal v Cessnock City Council [2003] HCA 41; (2003) 200 ALR 1, among other authorities:
In Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, Gaudron, McHugh, Gummow and Hayne JJ said that [23]:
For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error.
In Suvaal v Cessnock City Council, McHugh and Kirby JJ made it clear that an appellate 'rehearing' is not, and cannot be, a hearing de novo.
Thus, this court, when deciding an appeal, does not proceed by making new findings of fact on all relevant issues and then substituting its verdict for that of the jury merely because this court's opinion differs from that of the jury. That would mean substituting trial by Court of Appeal for trial by jury and the High Court has made it plain that this is not the function of the appellate court: Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432, 443, 458 (cited in M v The Queen (495)). In order for this court to form the opinion that the verdict of guilty should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported, it must be satisfied that the verdict of the jury is infected by error. For example, it may be satisfied that there is error if it reaches the conclusion that, having regard to the evidence, the jury unreasonably failed to draw inferences that should have been drawn from facts established by that evidence or must have drawn inferences which could not be supported by that evidence. Cases where the appellate court concludes that findings of fact the jury must have made were 'glaringly improbable' or contrary to 'compelling inferences' are likely to be 'extreme cases': Suvaal [76]. However, error will not be demonstrated merely because the jury made a choice between competing inferences which were open, being a choice that the court considers it would not have made if it had been the jury. The conclusion that error must be found is supported by the High Court in Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 where Hayne J said (Gleeson CJ & Heydon J agreeing) that:
[T]he question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt [113].
If the appellate court forms the view that the jury must have entertained a doubt about the appellant's guilt, then it is saying in effect, that the jury erred in reaching its verdict.
In short, the approach of this court on a criminal appeal is similar to its approach in determining a civil appeal (subject only to the difference in approach required because of the difference in the burden of proof). In Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359, 369, Beaumont and Lee JJ explained that in relation to a civil appeal:
[T]he court is not obliged to proceed to make new findings of fact on all relevant issues and discharge the judgment appealed from if those findings differ from those of the trial judge and do not support the judgment. The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be so satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made. Where the majority judgment in Warren v Coombes at (552 - 553) states that an appellate court must not shrink from giving effect to its own conclusion, it is speaking of a conclusion that the decision of the trial judge is wrong and that it should be corrected. (See also Edwards v Noble (1971) 125 CLR 296, per Barwick CJ (at 304), per Menzies J (at 308-309) and per Walsh J (at 318-319).)

The appellant in his written and oral submissions referred to a number of factual matters which I consider can be placed into six categories as follows:
(1)as ones which of themselves he said raised a reasonable doubt;
(2)as ones on which, he asserted, the magistrate rested findings necessary to a finding of guilt which were incapable of supporting such findings;
(3)as ones representing the absence of evidence necessary for a finding of guilt;
(4)as ones representing evidence which the magistrate should have accepted and which would have produced a determination of not guilty;
(5)as ones representing evidence which the magistrate should have disbelieved and which was essential to a finding of guilt; and
(6)as evidence which should have led the magistrate to disbelieve other evidence given by the witness in question essential to a finding of guilt.
In respect of a number of those in (1), (3), (4) and (6) he asserted that the magistrate had 'ignored' the relevant evidence.
I consider the appellant has not made out his case in any of these respects. I deal with the matters the appellant raised in the order listed, dealing for each category first with matters apparently intended to be understood as of more general application, to all or a number of the convictions, and then with the matters specific to convictions for returns of particular taxpayers.
As to matters I would place in (1), as ones said to raise a reasonable doubt, the general matters appear to have been four.
One was that the appellant's conviction related to less than 1% of his total clientele, representing the appellant said an implausible jeopardising of a lucrative business. The appellant submitted that the magistrate's response to that consideration, that the appellant was seeking to gain a 'reputation … amongst the African, Asian and Muslim community' (Reasons for Decision [428]), was not a reasonable response.
However, I am not satisfied that error is shown. I note in particular it was not suggested that the magistrate's view of the appellant as some one concerned to build his reputation in the communities his work served was not open to him. Nor is it apparent to me it was not open to the magistrate to find, on all of the other evidence that went to show the offences were proved beyond a reasonable doubt, that such a concern would be sufficient to overwhelm the consideration the appellant referred to.
The second general matter I would place under (1) was that the magistrate convicted the appellant in respect of returns for six taxpayers, yet acquitted him in respect of the others, being five taxpayers, excluding the charge with which the prosecution did not proceed.
However, I do not consider the appellant has shown a reasonable doubt must arise because of those verdicts of not guilty. The reasons for those verdicts were, it seems, that the magistrate was not satisfied beyond a reasonable doubt that the appellant was the source of the false claim in the relevant return (see Reasons for Decision [357] and [377]) or that the appellant had prepared the relevant return (see [383]; [396]; and [422]). In each of those cases the magistrate reminded himself of the 'similar fact or conduct' evidence (see [356]; [377]; [383]; [396]; and [422]) which he identified as relevant to all of the charges as follows ([325]):
The evidence led by the prosecution has a tendency to establish a systematic course or pattern of fraudulent conduct engaged in by the accused. The taxpayers were of African or Asian origin and recent arrivals in Australia. The taxpayers had limited ability to speak and read English and were dependent on professional skilled advice to fulfil their responsibilities as taxpayers. They all knew of or were referred to the accused for services to prepare their respective income taxation returns. The completion of a taxation return was technical in detail. They each trusted the accused and where signed they had little regard to the significance to the taxpayers declaration. Each provided oral instructions and documentation for the purposes of preparing their taxation returns in short meetings either at the accused's home or office. Computer generated returns were produced. Taxation returns were lodged either using the E‑tax system or via a registered tax agent. Claims for expenses or offsets were made. The claims were false or inflated and refunds gained from the Commissioner of Taxation would make a taxpayer content and reflected well on the accused and hence his reputation amongst client taxpayers of African, Asian or muslim origin with whom the accused had a community affinity. This system or pattern was relevant to proving that the accused not only prepared the taxation returns but also further proved his alleged dishonest intention or guilty state of mind accompanying the preparation and lodgement of income taxation return which formed the basis of the particular charge. I also consider the evidence of system or pattern tended to rebut the accused's claim of innocent dealing with each taxpayer in each instance. In considering each individual charge I am of the opinion that the evidence of systematic course or pattern of fraudulent conduct was a piece of circumstantial evidence relevant to the proof of a given charge. In short hand way I refer to this evidence (where proven as a fact beyond reasonable doubt) as similar fact or conduct evidence in my consideration of the analysis of the charges later in these reasons.
The magistrate reviewed the law relevant to 'propensity evidence' within the meaning of Evidence Act 1906 (WA) s 31A by reference to that provision and Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461, Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482 [44] ‑ [73] and Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [26]: see Reasons for Decision [338] ‑ [344]. I gave leave at the hearing before me for the parties to make written submissions after the hearing as to the proper approach to such evidence, and I was assisted by those I received.
It appears to me that the magistrate correctly identified the principles relevant to him. See Roncevic v The State of Western Australia [2010] WASCA 213 [50] ‑ [53] (Buss JA, McLure P and Mazza J agreeing), referring among other authorities to Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 and Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413, which I consider confirms the correctness of the magistrate's identification of those principles:
The Parliament's purpose in enacting s 31A of the Evidence Act was to confer on the courts greater power to admit propensity and relationship evidence. See the second reading speech of the Hon Attorney General: Western Australia, Parliamentary Debates, Legislative Assembly, 30 June 2004, 4608. It appears that the policy underlying s 31A reflected these observations of McHugh J, in his dissenting judgment in Pfennig …:
The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial (529).
See Western Australia, Parliamentary Debates, Legislative Council, 24 September 2004, 6547 and the terms of s 31A itself.
Section 31A substantially amended the common law. It abolished the test that propensity evidence is inadmissible if there is a rational view of it, when considered with other relevant evidence, that is inconsistent with the accused's guilt. See Donaldson [102] - [130]; Di Lena … [44] - [73]; Noto … [26]. By s 31A, 'propensity evidence' and 'relationship evidence', as defined in s 31A(1), are admissible if the court considers that the requirements of s 31A(2)(a) and (b) have been satisfied.
In Dair, Steytler P analysed s 31A. His Honour said, in relation to the concept of 'significant probative value' within s 31A(2)(a), at [60] ‑ [61]:
The evidence in question must obviously be relevant before it can be admitted into evidence. That is to say, it must be such as could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding: Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [2] (Gleeson CJ); Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 [50]. It could otherwise have no probative value, let alone 'significant' probative value.
Before evidence can have significant probative value it must be such as 'could rationally affect the assessment of the probability of the relevant fact in issue to a significant extent: ie, more is required than mere … relevance': Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171, 175 - 176. Heydon [21245] suggests that significant probative value is something more than mere relevance but something less than a 'substantial' degree of relevance and that it is a probative value which is 'important' or 'of consequence'. He makes the point that the significance of the probative value of tendency evidence must depend on the nature of the facts in issue to which it is relevant and the significance or importance which that evidence may have in establishing the fact: Lockyer (1996) 89 A Crim R 457, 459; Lock (1997) 91 A Crim R 356, 360 - 361; Fordham (1997) 98 A Crim R 359, 370; Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51 [77] - [82]; The State of Western Australia v Osborne [2007] WASCA 183 [13].
The President's analysis was approved in Horsman v The State of Western Australia [2008] WASCA 190; (2008) 187 A Crim R 565 [22] (Buss JA, Martin CJ & Miller JA agreeing) and Buiks v The State of Western Australia [2008] WASCA 194; (2008) 188 A Crim R 362 [45] (Buss JA, Miller JA agreeing).
The magistrate also appears to me to have correctly identified the principles relevant to him, and to have correctly applied those principles, finding that, even with the propensity evidence he identified, the prosecution had not satisfied him beyond a reasonable doubt that the appellant was guilty of the relevant charge.
However, the magistrate found for the remaining charges that the prosecution had so satisfied him, again taking account of the propensity evidence: see Reasons for Decision [403]; [363]; [371]; [410]; [415]; and [390]. That was a conclusion that was open to him applying the authorities I have referred to.
The third general matter I would place under (1) was that the magistrate 'ignored' the evidence of Mr ZK, who the magistrate accepted worked in the appellant's office at all material times, that he had access to the main computer of TSWA Holdings and to that company's bank account and fund. As will be seen, the magistrate relied on the evidence of electronic lodgement of returns from this computer and payments of refunds into this account in arriving at his findings the appellant had prepared those returns.
However, I note first that ZK in his evidence made no such admission, testifying rather that he did not remember having any access to the Internet account or to the bank account or fund. The magistrate referred to this evidence: see Reasons for Decision [78] and [80]. Further the magistrate took account of this evidence in his determination with respect to ZK that he was a witness who might have been criminally concerned or suspected in the events before the court, and so his evidence, including that he had not prepared returns for some of the taxpayers, was potentially unreliable. See [266] ‑ [276]. Such an approach to that evidence on such a determination was open to the magistrate: see Cross on Evidence [15100]. I was not shown that the magistrate failed to assess the evidence before him in accordance with that determination. It was a determination that, in my view, did not require a conclusion that a reasonable doubt arose as to the appellant's guilt in respect of any of the charges he faced.
The fourth general matter I would place under (1) was that the magistrate 'ignored' the evidence that on ZK's desk was a list showing how many customers he had served and how much money he had made from an arrangement with a third party who had made advances on refunds to a number of taxpayers.
However, I note that the magistrate appears to have taken account of the evidence of ZK that he served a large proportion of the clients of the appellant's business and of the evidence that pointed to an arrangement between ZK and a third party, a Mr KJ, for the latter to make advances on their refunds to taxpayer clients. He did this both for the purpose of his determination as to ZK's evidence I have referred to in relation to the third matter, and, in respect of the evidence as to payments by KJ, his conclusion that there was 'a cloud over [KJ's] involvement or credibility'. See Reasons for Decision [271] (source of quotation). I was not shown that the magistrate failed to assess the evidence before him in accordance with that determination and that conclusion. The magistrate's accounting for the evidence of ZK in the present respect and for the evidence of the arrangement between ZK and KJ did not in my view require a conclusion that a reasonable doubt arose as to the appellant's guilt on any of the charges he faced.
I should add that the appellant also submitted that the magistrate 'ignored that most of those witnesses acknowledged that they saw [ZK] doing their tax returns'. However, I was not directed to any such evidence they gave. In any event, the magistrate appears to me to have accepted for the purposes of his determination as to ZK's evidence that there was evidence from the taxpayers concerned indicating that ZK may have taken instructions from them and that ZK prepared their returns 'to some extent' (Reasons for Decision [270]). However, the magistrate makes no such reference for taxpayers for whose returns the appellant was convicted, and I did not find any such evidence in their testimony, with the exceptions of that of SA and Ki Hi. For both there was evidence from them ZK had collected at least some material from them relevant to the preparation of the returns. There was also evidence from SA that ZK was initially seated at the computer before the appellant took over. However, the magistrate referred to this evidence indicating in my view he took account of it (see Reasons for Decision [116], [368] and [371], for SA; and [182] for Ki Hi). I am unable to see that that evidence meant a reasonable doubt had to arise in relation to the charges for SA's and Ki Hi's returns.
As to matters I would place in (1), as ones said to raise a reasonable doubt for the charges in respect of returns of particular taxpayers, there were four.
The first particular matter I would place in (1) is for SA. The appellant referred me to the evidence that the ATO had sent her refund to the wrong address, which the appellant said would not have happened had he prepared her return, as he would have included the correct address.
However, my attention was not drawn to any evidence the appellant gave as to the likelihood he would have taken the correct address had he prepared the return. In the absence of such evidence, it appears to me the matter of an incorrect address is one of little weight.
The second particular matter I would place in (1) is for one of two such for Kh Ha. The appellant drew my attention to the lack of any return or receipt issued by his office to her, the lack of any signature on any document suggesting he prepared the document and the lack of any photograph of him sitting at a computer and actually doing her return.
However, the magistrate in my view had ample evidence from which to find beyond a reasonable doubt he was guilty of the charge in respect of her return, notwithstanding the lack of the evidence to which the appellant drew my attention. The evidence available to the magistrate was the Internet account from which the return was lodged electronically and the propensity evidence, as well as the evidence of Kh Ha herself. The magistrate referred to this evidence: see Reasons for Decision [93] and [400] ‑ [403].
The third particular matter I would place in (1) is the other for Kh Ha. This was the fact the DPP dropped the charge for a taxpayer, a Mr FM, who the appellant told me was the boyfriend of Kh Ha. This dropping showed, the appellant said, that the DPP had not succeeded in intimidating or scaring FM.
However, the appellant did not direct me to any instance at the trial where the proposition had been put to a witness that the DPP had sought to intimidate or scare that witness, nor was that proposition put to the respondent who was also a witness at the trial. In any event the relevance of the dropping of the charge appears to me to have been slight, as the inference the appellant put to me should be drawn from it appears to me to be a very weak one. The dropping of the charge appears to me clearly to be insufficient to give rise to a reasonable doubt as to the guilt of the appellant on the charge in respect of the return for Kh Ha.
The fourth particular matter I would place in (1) is for Ki Hi. The appellant drew my attention to the absence of evidence in the form of a receipt, a tax return copy or other document bearing the appellant's signature or a photograph of him sitting at a computer doing Ki Hi's return. It will be recalled a similar matter was put to me in respect of charge for Kh Ha's return.
However, in my view, the magistrate had ample evidence from which to find beyond a reasonable doubt the appellant was guilty of the charge in respect of Ki Hi's return, notwithstanding the lack of the evidence to which the appellant drew my attention. That evidence was the Internet account from which the return was lodged electronically, the bank account into which Ki Hi's refund cheque was paid and the propensity evidence, as well as the evidence of Ki Hi himself. See the magistrate's references to that evidence Reasons for Decision [407] ‑ [410].
As to matters I would place in (2), as ones on which the magistrate rested findings necessary to a finding of guilt which were incapable of supporting such findings, there were two general matters.
One was the evidence the appellant said the magistrate relied on for his findings that the appellant had the opportunity to lodge returns electronically. This was the evidence the appellant worked late at night.
However, my attention was not drawn to any such reliance in the Reasons for Decision, and I could find none. True it is the magistrate did refer to times at which returns for certain of the taxpayers were sent electronically, times falling outside general business hours. However, the magistrate did not refer in that connection or any other to any evidence that the appellant worked late at night.
The other general matter I would place in (2) is the appellant's statement that the magistrate convicted him 'solely based on circumstantial evidences even though we proved to the court that those witnesses are lying under oath and [that] they were repeating what they [had] been told by the DPP'.
However, the appellant was not convicted solely on circumstantial evidence. The evidence of the taxpayer witnesses on which the magistrate relied in his Reasons for Decision was not, of course, circumstantial as to the issues of whether or not the appellant prepared their returns and what information they had and had not supplied to him for the purpose. The credibility of their evidence was, in my view, carefully evaluated by the magistrate, and I am not satisfied the magistrate's findings based on the results of that evaluation should be set aside on the proper approach to such setting aside. For my purposes that approach is sufficiently stated in Cross on Evidence [11150] at n312 as follows (footnote omitted):
Hence it is unusual to set aside, or order a new trial on the ground of, the findings of a trial judge based on the credibility of a witness unless it can be concluded that the trial judge failed to use or palpably misused the advantage he or she had of seeing and hearing the witness, or that the trial judge relied on evidence which was inconsistent with facts incontrovertibly established by the evidence, or that the trial judge acted on evidence which was glaringly improbable, or that the trial judge fell into some error of principle, or that the trial judge mistook or misapprehended the facts, or if the effect of the overall evidence was such that it was not reasonably open to make findings.

Of course the evidence of the taxpayers, considered as the magistrate appears to have considered it, as evidence of the intention of the appellant in preparing and lodging the relevant return or causing it to be lodged, was circumstantial. However, I am not satisfied that that circumstantial evidence was incapable of supporting the drawing at the criminal standard of the inference as to that intention that the magistrate appears to me to have drawn from that evidence. I am further satisfied the magistrate was not shown to have not applied the criminal standard for the drawing of inferences necessary for a finding of an essential element of a charge.
As to matters I would place in (3), as ones representing the absence of evidence necessary for a finding of guilt, there were two general ones.
One was that none of the six taxpayers provided evidence they saw or heard him offering to conspire against the ATO.
However, the prosecution case was not a conspiracy one. Criminal Code s 135.1 does not require a conspiracy.
The other general matter I would place under (3) is the appellant's submission that the appellant's arrangement for sharing fees with LM meant it was necessary to show why he had not sought to do all of the returns outside that arrangement, not just the four of the six for which he was found guilty. The magistrate found only two of the six were lodged under the arrangement: see Reasons for Decision [104], for TA; and [198], for GJ. I note that the magistrate makes no reference to this consideration in his Reasons for Decision.
However, it was not evident to me why in the face of the other evidence on which the magistrate relied for his findings of guilt beyond a reasonable doubt in respect of those two taxpayers (see Reasons for Decision [359] ‑ [366], for TA; and [412] ‑ [416], for GJ) those findings were not open to him for them.
As to matters I would place in (4), as ones representing evidence which the magistrate should have accepted and which would have produced a determination of not guilty, there were three particular ones.
The first, for GJ, is the evidence of the appellant that GJ provided him with false information. It appears the appellant was submitting this evidence should have been believed in preference to that to the contrary from GJ.
However, the magistrate carefully assessed the credibility of GJ's evidence, arriving at a favourable conclusion: see Reasons for Decision [415]. He had elsewhere carefully evaluated the credibility of the appellant in respect of other evidence he had given, concluding that this had 'seriously and adversely affected my assessment of the accused's credibility generally': see [296] ‑ [307] (the latter is the source of the quotation). I am not satisfied that his findings drawing on the results of those assessments should be seen as erroneous on the approach I have described earlier by reference to the quotation from Cross on Evidence [11150] at n312.
The second particular matter I would place in (4), for DG, was the evidence that the appellant was in Darwin for most of the relevant period saving returns to visit with his son, and so the appellant said could not have prepared GJ's tax return. I have previously referred to this evidence in connection with ground 2.
I note that the magistrate found that the prosecution had negatived beyond a reasonable doubt that alibi defence for the reasons set out in Reasons for Decision [389] ‑ [390], read with [215] ‑ [217] and [221]. I am not satisfied by reference to the evidence the magistrate relied on referred to in those paragraphs that it was not open to him so to find.
The third particular matter I would place in (4), for TA, was it appears the evidence of the appellant that TA had cancelled the return prepared by the appellant and had someone else prepare it for him, which was consistent with the evidence of TA as well as of a Mr Goodwin, the ATO investigator, that two returns had been lodged for TA, with the second not lodged by the appellant.
I note that the magistrate referred to all of this evidence: see Reasons for Decision [111]. His finding of the appellant's guilt in relation to the return of TA appears to be based on his finding, which the appellant's evidence supported, that the appellant prepared the first return, and that it was lodged, and on the finding the magistrate appears to have made that the second return carried forward from the first the false information on which the appellant's guilt rested. See Reasons for Decision [359] and [362] ‑ [366]. In my view of the evidence on which the magistrate relied as referred to in those reasons I am not convinced it was not open to him so to find.
In any event I further note my earlier conclusion that Criminal Code s 135.1 does not require that the offender's action actually have produced the benefit sought to be obtained. On that basis, the magistrate's finding warranted the conclusion of guilt as to the present offence notwithstanding the evidence to which the appellant referred me.
As to matters I would place in (5), as ones representing evidence which the magistrate should have disbelieved and which was essential to a finding of guilt, there were three particular ones.
The first, for TA, concerned his testimony in response to questions in his examination in chief about when the appellant had told him he would get a greater refund than in the previous year, whether before or after the appellant 'had used the computer' (21 June 2010, ts 61). TA's response was as follows:
Did Mr Sami say that to you before or after he had used the computer?‑‑‑Because it was, like, a long time ago, you know? I can't remember every detail. I think you called me when I was in Melbourne and you talked to me for hours over the phone and you asked me to say this and that, and I said, 'I will say whatever, you know, I can remember it in the court.' So I don't think it's a big issue, you know. He was just doing a tax return and I can't remember everything. It's been five years now since this case was in the court and I was now in the office and somebody I was talking to and they asked me a lot of, you know, questions, a lot of details that I can't remember that I can't remember exactly because it's five years now.
Okay. Just to clarify, Mr [TA], when we called you when you were in Melbourne, we just asked you some questions about the statement that you had made to the ATO?‑‑‑No, it wasn't like that. It wasn't that. No, I'm not, like, stupid, you know? I'm a very smart man.
Like a what, I'm sorry?‑‑‑I'm not a stupid man. I was working the army before. I had, like, a high rank in the army in my country and I know it would has been, you know, said on the phone to me. You tried to let me say what you want me to say here. As I said, it's five years ago so I can't remember every detail. I said it before, it was just a tax return. I jut wanted to make, you know, to do my tax return and that's it.
I should note that this evidence appears to confirm that TA would testify, as he states there, only as to 'whatever, you know, I can remember'.
The magistrate noted this evidence in his Reasons for Decision: see [100]. He found in the light of his scrutiny of 'the whole of the evidence' that TA had told him the truth and was reliable, for the reasons given at [361] ‑ [363]. Those reasons referred to the failure to question TA and another witness on matters on which the appellant's case was based that TA had not provided reliable evidence, as well as the plausibility of that case and the propensity evidence.
In my view of the matters the magistrate referred to and the proper approach to the setting aside of findings based on findings as to credibility in the quotation from Cross on Evidence [11150] at n312 set out above, I am not satisfied the magistrate erred in believing the evidence of TA.
The second particular matter I would place in (5), for SA, is the appellant's submission that SA first said to ATO investigators she did not know him at all. In her testimony, he said, she admitted she used to clean both of his houses and she did not deny she had been his mistress.
However, I was unable to find in the cross‑examination of SA on her prior statement to the ATO any testimony she gave that she did not know the appellant at all. Further, her only testimony as to cleaning for the appellant was that she had cleaned his office, once. She denied she had ever cleaned his house. Also, she was not asked whether she had been his mistress, but only whether she had been having an 'affair' with him, which she denied.
The third particular matter I would place in (5), for Ki Hi, is the appellant's submission that he was 'very unsure' as to whether ZK or the appellant had done his return and was 'clearly lying'.
However, I could not find in the transcript of the relevant pars of Ki Hi's evidence (23 June 2010 ts 41 ‑ 44 and ts 48 ‑ 50) any indication of any uncertainty as to who had done his return, and the magistrate referred to none in his review of Ki Hi's evidence (Reasons for Decision [180] ‑ [191]).
As to matters I would place in (6), as ones which should have led the magistrate to disbelieve other evidence given the witness in question essential to a finding of guilt, there are four general matters.
The first was that the DPP and ATO investigators had subjected the six taxpayers to 'harassment and … intimidations'. I understood this as a claim that there had been a generalised pattern of the use of such harassment and intimidation. I further understood that the appellant relied for this purpose on evidence of TA quoted above.
However, as I indicated in respect of TA's evidence, it does not, in my view of it, indicate TA's preparedness to testify otherwise than as he could then remember. Further, I consider TA's evidence fell well short of evidence of harassment and intimidation.
The only other evidence that might be referred to in the present context was of GJ, in the following exchange in the cross‑examination of him (24 June 2010, ts 18):
Mr [GJ], you were told what to say in court today, weren't you?‑‑‑Yes.
You were told to say that, weren't you?‑‑‑Yes.
That is not the truth though, is it?
However, that question was never answered, following an objection to it which was overruled. Further I consider, in view of what appears as to GJ's English skills that I describe below, very little can be drawn from this incomplete exchange.
My attention was not drawn to, and I could not find, any other evidence which might be taken to support the appellant's submission.
The second general matter I would put in (6) is the appellant's submission that the magistrate believed the DPP's claim that the appellant used to live in Morley and some of the customers visited him there, where on the appellant's evidence he had not lived in Morley but in a bordering suburb, Dianella.
Evidence was given by Kh Ha and DG that they visited the appellant in Morley, and this evidence was, it seems to me, weighed by the magistrate in assessing their credibility in the light of the evidence the appellant did not live in Morley but in Dianella, together with the proximity of the two suburbs. See Reasons for Decision [401], [210] and [219]. The magistrate's conclusion, that their evidence so weighed did not cause him to find they were not credible witnesses, was clearly open to him.
There was no corresponding evidence from any of the other taxpayers in respect of whose tax returns the appellant was found guilty.
The third general matter I would put in (6) is the appellant's submission that the taxpayers all had strong incentives to give false evidence, in order to protect themselves against the possibility of action being taken against them by the ATO. He submitted there was a rule of evidence that if a witness stands to benefit in such a way from giving their evidence their evidence is inadmissible.
However, there is no such rule of evidence. Furthermore, the magistrate expressly took account of the incentives the appellant referred to in assessing the credibility of four of the six taxpayers, for SA (Reasons for Decision [370]); Kh Ha ([401]); Ki Hi ([410]); and GJ ([415]). I do not consider that the failure to make such express reference for TA and DG of so apparent a consideration he had expressly noted for other taxpayers is any indication he failed to weigh that consideration in determining whether to believe their evidence.
The fourth general matter I would place in (6) is the one put to me by the appellant that the respondent, the ATO investigator, gave evidence indicating he was biased against the appellant. I understood the appellant to be submitting that his bias was such as to show he was prepared to give false evidence against the appellant. That evidence was, it seems, the following in his re-examination (22 June 2010, ts 19 ‑ 20):
BLANDFORD, MR: Mr Duggan, has the Australian Taxation Office amended the tax returns, the subject of the 11 charges in this matter?‑‑‑They've amended a couple if not all of them, no.
Why has the Tax Office not amended all of them?‑‑‑After speaking to some of the clients of TSWA it was considered that they were not at fault, and their returns were not amended.
However, my attention was not drawn to any questions of the respondent putting to him he was biased against the appellant to the extent described. In my view of this evidence just quoted, it is an insufficient basis for concluding that he was so biased.
I would also place in (6) one particular matter the appellant raised with me. This matter, for GJ, was evidence he gave that the appellant submitted, indicated his English skills, particularly so far as concerned his understanding of the taxpayer declaration he signed, were 'very good' and that he 'communicated very well in English with the DPP and my lawyer'. I note that GJ's testimony was that his English skills were 'good' (24 June 2010, ts 3), and that he declined the assistance of an interpreter at the trial (ts 12).
However, I also note that GJ acknowledged in cross‑examination that he had given a prior statement, dated 3 November 2009, that had been interpreted to him, although he also testified he had understood it 'in English' (ts 25). His evidence as to his signing the taxpayer declaration was this (ts 18):
In any event, Mr [GJ], you signed that tax declaration box, didn't you?‑‑‑Yes.
So by signing that box do you understand that you accepted what you told Mr Sami was true and correct?‑‑‑I didn't told anything, Tony Sami told me he put it, everything I wrote there, I set my statement in there. He said to me, the Car Expenses, I can claim. So I said, okay, if I can claim you can put it over there. Everything he put in my mouth, I said, okay, he is a tax agent, he knows what he's doing, so I signed it for him.
In my view, that unclear exchange tends to qualify GJ's evidence as to his English skills as at the date of the trial, while the use of the interpreter for the prior statement but not at trial offers support for the application to GJ of the view the magistrate expressed generally, in Reasons for Decision [29]. That view, which I referred to earlier, was that as at the dates of preparation of their returns the taxpayers had 'a limited or simple capacity to speak and read English' and were 'persons obviously dependent on others to understand and discharge their respective obligations and responsibilities concerning income tax matters'. I note that the magistrate did not refer in his Reasons for Decision to GJ's evidence as to his English skills. On my view just described he was justified in so doing.
It follows from my consideration of ground 1 that I would grant leave to appeal in relation to it on my analysis of the matters the appellant has advanced in relation the ground. However, having not found the appellant has made out any of those matters, I would not uphold the ground.
I turn now to the ground of appeal against sentence.

Ground of appeal against sentence

The appellant's case in relation to this ground was that the magistrate in setting a period of imprisonment of 14 months after which he would be 'eligible to be released' (Sentencing Remarks, ts 16) had fixed a 'non‑parole period' for the sentence of 20 months imprisonment he imposed. Under the relevant provisions of the Crimes Act the magistrate was precluded from fixing a non-parole period for such a sentence.
I note that the magistrate himself described the 14 month period as the 'pre-release period' (Sentencing Remarks, ts 16).
To understand the appellant's case and the relevant law, it is necessary first to set out Crimes Act s 19AC(1), read with s 16(1) 'non‑parole period' and 'pre-release period':
19ACWhen court must fix a recognizance release order
(1)Subject to subsections (3) and (4), where:
(a)a person is convicted of a federal offence, or of 2 or more federal offences at the same sitting; and
(b)the court imposes on the person a federal sentence that does not exceed, or federal sentences that, in the aggregate, do not exceed, 3 years; and
(c)at the time the sentence or sentences are imposed the person is not already serving or subject to a federal sentence;
the court must make a recognizance release order in respect of that sentence or those sentences and must not fix a non-parole period.
…
16Interpretation
(1)In this Part, unless the contrary intention appears:
…
non-parole period, in relation to a sentence or sentences of imprisonment, means that part of the period of imprisonment for that sentence or those sentences during which the person is not to be released on parole, whether that part of the period is fixed or recommended by a court or fixed by operation of law.
…
Pre-release period, in relation to a recognizance release order made in respect of a federal sentence or sentences, means the period of imprisonment specified in that order as the period of imprisonment in respect of that sentence or those sentences after service of which the offender may be released on the giving of security in accordance with that order.
Crimes Act s 19AC (3) and (4) have no application here.
It will be recalled that the magistrate included in the sentence he imposed provision for a 'recognizance release order'. Crimes Act s 16(1) 'recognizance release order' refers for the meaning of that term to s 20(1)(b), which reads:
20Conditional release of offenders after conviction
(1)Where a person is convicted of a federal offence or federal offences, the court before which he is convicted may, if it thinks fit:
…
(b)sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a) either forthwith or after he or she has served a specified period of imprisonment in respect of that offence or those offences that is calculated in accordance with subsection 19AF(1).
Crimes Act s 19AF(1), to which s 20(1)(b) refers, reads:
19AFNon-parole period or pre-release periods not to exceed remitted sentence
(1)Where a court is required to fix a non-parole period or make a recognizance release order in respect of a federal sentence or sentences, the court must fix a non-parole period that ends, or make a recognizance release order such that the pre-release period ends, not later than the end of the sentence, or of the last to be served of the sentences, as reduced by any remissions or reductions under section 19AA.
It was not apparent to me that there was any material reduction in this case under Crimes Act s 19AA.
The combined effect of these provisions was that the magistrate was required to provide that the appellant be released either forthwith after giving the security referred to in s 20(1)(a), or after service of the pre-release period the magistrate fixed, which had to expire no later than when s 19AF(1) provided. It is clear to me that the magistrate acted in accordance with that requirement.

It follows I would not give leave to appeal on this ground.

Conclusion

I have either declined to grant leave to appeal on, or, having granted leave to appeal, not upheld, all of the grounds the appellant has put forward in his appeal. I would thus dismiss his appeal.
I will hear from the parties as to the orders I should make.