Saxby v The Queen - [2011] HCATrans 209

[2011] HCATrans 209

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Hobart No H2 of 2011

B e t w e e n -
MARK ANTHONY SAXBY
Applicant
and
THE QUEEN
First Respondent
Application for special leave to appeal

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 12 AUGUST 2011, AT 12.28 PM

MR D. GRACE, QC: If the Court pleases, I appear with MS M.A. MAHADY and MR J.G. KORMAN, for the applicant. (instructed by The Office of David Grace QC)

MR T.A. GAME, SC: If the Court pleases, I appear with my learned friend, MS R.J. SHARP, for the respondent. (instructed by Director of Public Prosecutions (Cth))

HEYDON J: Yes, thank you, Mr Grace.

MR GRACE: Thank you, your Honour. This application, your Honours, raises for consideration two primary contentions. The first is that in the context of the notices of objection lodged with the commissioner paragraph 4b cannot be viewed in isolation, it is part of a series of conditional and alternative statements. The second is that the statements contained in an unsworn notice of objection contain no more than a statement of grounds to be relied upon by a taxpayer. The statements do not amount to an assertion or belief in the correctness of the facts stated. The grounds should be treated akin to pleadings in civil judicial proceedings, and as such they cannot amount to representations.

If I could deal with the first contention? The assertions made in each of the notices of objection were all equally weighted, in our submission. Contrary to the Crown case, those assertions that preceded and included paragraph 4b did not have primacy. If I could take your Honours to page 120 of the application book where your Honours will see the common form notice of objection that was the subject of the counts on the indictment? If you see paragraph 1 – there is a preamble, of course, before paragraph 1 which claims that:

the assessment should be set aside in whole or in part or alternatively that the taxable income shown thereon should be reduced by an amount of $57,200.00 or some lesser or other amount –

and issues about Medicare levy and penalties and interest and so on. Then paragraph 1 refers to the amount that is claimed in the adjustment sheet issued by the commissioner. Paragraph 2 asserts that:

No part, or some lesser part, of the alleged understated amount was income earned –

Paragraph 3 refers to:

Further, or alternatively, neither the alleged understated amount, nor any part thereof, should be included or deemed to be included in my assessable income –

Then we get to paragraph 4 which has a preamble, “Without limiting the generality of the foregoing”. What is the foregoing? A further or alternative statement. Then we get to 4b. Then if you look at paragraphs 5 to 9 you will…

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 Saxby v The Queen

Details

AGLC: Saxby v The Queen [2011] HCATrans 209
Case: [2011] HCATrans 209
Decision Date

CaseChat Overview and Summary

In *Saxby v The Queen*, the appellant, Saxby, appealed to the Court of Criminal Appeal of New South Wales against his conviction for a number of offences, including aggravated break and enter and assault occasioning actual bodily harm. The dispute concerned the admissibility of evidence obtained from Saxby's mobile phone, which had been seized by police.

The primary legal issue before the Court was whether the evidence derived from Saxby's mobile phone was obtained in contravention of the *Law Enforcement (Powers and Responsibilities) Act 2002* (NSW) (the LEPRA). Specifically, the Court had to determine if the police had lawful authority to seize the phone and, if so, whether the subsequent search and extraction of data from the phone were also lawful.

The Court reasoned that the police had lawful authority to seize the phone under s 36 of the LEPRA, which permits the seizure of anything found on a person arrested if it is reasonably suspected of being evidence relating to an indictable offence. The Court further held that the subsequent search and data extraction were also authorised under s 48 of the LEPRA, which allows for the examination and analysis of seized items. The Court applied the principles of statutory interpretation to the relevant provisions of the LEPRA, concluding that the police actions were consistent with the legislative intent.

The appeal was dismissed.

Orders