FILE NO/S:  386/2010
DELIVERED ON:  7 February 2011
DELIVERED AT:  Hobart
HEARING DATE:  16, 17 September 2010
JUDGMENT OF:  Crawford CJ, Evans and Wood JJ

CATCHWORDS:

Taxes and Duties – Income tax and related legislation – Objections and appeals – Objections – Other matters – Whether statement of ground of objection capable of amounting to a false representation of fact – Whether charges of defrauding the Commonwealth and imposition maintainable – Whether notice of objection equivalent to a pleading.

Boileau v Rutlin (1848) 2 Ex 665; Buckmaster v Meiklejohn (1853) 8 Ex 634; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, referred to.
Aust Dig Taxes and Duties [194]

Criminal Law – Appeal and new trial – Particular grounds of appeal – Inconsistent verdicts – Whether a miscarriage of justice.

MacKenzie v R (1996) 190 CLR 348; MFA v R (2002) 213 CLR 606; R v Kirkman (1987) 44 SASR 591, applied.
Aust Dig Criminal Law [3478]

REPRESENTATION:

Counsel:
             Appellant:                     D Grace QC, M Mahady
             Respondent:  M Lincoln, I Arendt
Solicitors:
             Appellant:  Mirko Bagaric Lawyers
             Respondent:  Commonwealth Director of Public Prosecutions

Judgment Number: [2011] TASCCA 1
Number of paragraphs: 141

Serial No 1/2011
File No 386/2010

MARK ANTHONY SAXBY v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  CRAWFORD CJ
  EVANS J
  WOOD J
  7 February 2011

Orders of the Court

Appeal dismissed.

Serial No 1/2011
File No 386/2010

MARK ANTHONY SAXBY v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  CRAWFORD CJ
  7 February 2011

On counts 2 and 4 of an indictment, the appellant was found guilty by a jury of two charges of imposition, and on counts 5 and 8 he was found guilty of two charges of defrauding the Commonwealth.

The four charges related to four notices of objection, each dated 31 August 2000, which he signed and caused to be sent to the Commissioner of Taxation. The notices related to his income tax liabilities for the 1992, 1993, 1994 and 1995 tax years. The verdicts on the imposition charges related to the two earlier years. The verdicts on the defrauding charges related to the two later years.

The trial judge, Blow J, recorded convictions on all charges on which guilty verdicts were returned. On counts 5 and 8 the appellant was sentenced to two years' imprisonment and it was ordered that he be released after serving one year upon giving security by recognizance, without sureties, in the sum of $5000 on condition that he be of good behaviour for two years after his release from prison. On counts 2 and 4, he was sentenced to eight months' imprisonment to be served concurrently with the sentence imposed on counts 5 and 8.

He appealed against the convictions.

The fundamental factual contentions

The fundamental factual contentions advanced by the Crown at the trial were summarised…

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] TASCCA 1
Case: [2011] TASCCA 1
Decision Date: 7 February 2011

CaseChat Overview and Summary

Saxby (the appellant) appealed to the Full Court of the Supreme Court of South Australia against his conviction for defrauding the Commonwealth and for making a false and misleading statement to the Commonwealth. The dispute concerned the appellant's income tax assessment and his subsequent objection to that assessment, which the Crown alleged constituted the basis for the criminal charges.

The central legal issues before the Court were whether a statement of the grounds of objection to an income tax assessment could, in certain circumstances, amount to a false representation of fact, thereby supporting charges of defrauding the Commonwealth and making a false and misleading statement. The Court was also required to consider whether a notice of objection should be treated as equivalent to a pleading in civil litigation and whether the appellant's conviction involved inconsistent verdicts, leading to a miscarriage of justice.

The Court reasoned that a statement of grounds of objection, while not a pleading in the strict sense, could nevertheless contain representations of fact. If those representations were false and made with the intention to deceive or defraud the Commonwealth, they could form the basis of criminal charges. The Court found no error in the trial judge's directions to the jury regarding the nature of the objection and the elements of the offences. Furthermore, the Court determined that the verdicts returned by the jury were not inconsistent and did not demonstrate a miscarriage of justice.

The appeal was accordingly dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Saxby v The Queen [2011] TASCCA 1

Most Recent Citation

King v Bigg (No 2) [2022] TASSC 7

Cases citing this decision · 3 of 3 shown

King v Bigg (No 2)
[2022] TASSC 7 Para 7

…ckmaster v Meiklejohn (1853) 8 Ex 634 at 637, 155 ER 1506 at 1507; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 86; Saxby v The Queen [2011] TASCCA 1, 21 Tas R 123 at [23]-[25]. It follows that, as a general rule, it is open to a plaintiff to make allegations in a pleading without having marshalled…
Webster v Tasmania; Tasmania v Webster
[2018] TASCCA 7 Para 2

…In Saxby v The Queen [2011] TASCCA 1, 21 Tas R 123, Crawford CJ extracted the relevant principles from MacKenzie as follows: "[128] A statement of the relevant law is to be found in MacKenzie v R (1996) 190 CLR 348 at 365 – 368. This is not a case of legal or technical inconsistency but one of suggested factual in…
High Court Bulletin
[2011] HCAB 6

…[2011] TASCCA 1…

View all 3 citing cases →

Cases cited in this decision · 17 of 17 shown

Mahmood v Western Australia
[2008] HCA 1 Para 1

…t about the guilt of the accused person. RPS v R (2000) 199 CLR 620 at par[29]; Dyers v R (2002) 210 CLR 285 at par[120]; Mahmood v Western Australia (2008) 232 CLR 397 at par[27]. Each case will depend on its circumstances.…
MFA v The Queen
[2002] HCA 53

…MacKenzie v R (1996) 190 CLR 348; MFA v R (2002) 213 CLR 606; R v Kirkman (1987) 44 SASR 591, applied. Aust Dig Criminal Law [3478]…
Dyers v The Queen
[2002] HCA 45 Para 1

…e circumstances, the jury should entertain a reasonable doubt about the guilt of the accused person. RPS v R (2000) 199 CLR 620 at par[29]; Dyers v R (2002) 210 CLR 285 at par[120]; Mahmood v Western Australia (2008) 232 CLR 397 at par[27]. Each case will depend on its circumstances.…
RPS v The Queen
[2000] HCA 3 Para 1

…he issue that may arise is whether, in the circumstances, the jury should entertain a reasonable doubt about the guilt of the accused person. RPS v R (2000) 199 CLR 620 at par[29]; Dyers v R (2002) 210 CLR 285 at par[120]; Mahmood v Western Australia (2008) 232 CLR 397 at par[27]. Each case will depend on its circums…
Peters v the Queen
[1998] HCA 7 Para 1

…t committed if the alleged offender is legally entitled, or believes that he or she is legally entitled, to what is sought to be achieved. Peters v R (1998) 192 CLR 493 at par[30].…
Mackenzie v The Queen
[1996] HCA 35 Para 1

…A statement of the relevant law is to be found in MacKenzie v R (1996) 190 CLR 348 at 365 – 368. This is not a case of legal or technical inconsistency but one of suggested factual inconsistency. In such a case, the test is one of logic and reasonableness. Often cited as expressing the test is the statement of Devlin…
Laws v Australian Broadcasting Tribunal
[1990] HCA 31 Para 1

…s given to whether statements in pleadings were capable of amounting to admissions, Mason CJ and Brennan J in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 86 held that facts pleaded in a defence, not being verified on oath nor required to be so verified, were incapable of amounting to admissions by t…
Cleland v The Queen
[1982] HCA 67 Para 1

…n and the defence and must fairly direct the consideration of the jury to the matters raised by the accused person in his or her defence. Cleland v R (1982) 151 CLR 1 at 10; Domican v R (1992) 173 CLR 555 at 561. In what manner, and in what detail, this should be done will depend on the circumstances of the case.…
Domican v R
[1992] HCA 13 Para 1

…rect the consideration of the jury to the matters raised by the accused person in his or her defence. Cleland v R (1982) 151 CLR 1 at 10; Domican v R (1992) 173 CLR 555 at 561. In what manner, and in what detail, this should be done will depend on the circumstances of the case.…
[1957] AC 602
[1957] AC 602 Para 1

…ublic officer from the proper performance of his or her public duty. The trial judge provided as examples of that kind of fraud Board of Trade v Owen [1957] AC 602, Welham v Director of Public Prosecutions [1961] AC 103, R v Horsington [1983] 2 NSWLR 72, Connor v Sankey [1976] 2 NSWLR 570 and R v Turner (No 4) (…
[1961] AC 103
[1961] AC 103 Para 1

…public duty. The trial judge provided as examples of that kind of fraud Board of Trade v Owen [1957] AC 602, Welham v Director of Public Prosecutions [1961] AC 103, R v Horsington [1983] 2 NSWLR 72, Connor v Sankey [1976] 2 NSWLR 570 and R v Turner (No 4) (2001) 10 Tas R 81. His Honour observed that in each of t…
[1968] 2 QB 433
[1968] 2 QB 433 Para 1

…s. Often cited as expressing the test is the statement of Devlin J in R v Stone unreported, 13 December 1954, referred to, for example, in R v Hunt [1968] 2 QB 433 at 438 and R v Durante [1972] 1 WLR 1612 at 1617; [1972] 3 All ER 962 at 966. After making the point that the burden of establishing the ground of appe…
[1972] 1 WLR 1612
[1972] 1 WLR 1612 Para 1

…s the statement of Devlin J in R v Stone unreported, 13 December 1954, referred to, for example, in R v Hunt [1968] 2 QB 433 at 438 and R v Durante [1972] 1 WLR 1612 at 1617; [1972] 3 All ER 962 at 966. After making the point that the burden of establishing the ground of appeal is on the appellant, Devlin J said: "H…
Buckmaster v Meiklejohn
(1853) 155 ER 1506 Para 1

…That principle was applied to common law pleadings in Buckmaster v Meiklejohn (1853) 8 Ex 634; 155 ER 1506, where at 637; 1507 Parke B said: "In point of law, pleadings are not admissions, but are merely the statement of the case, which the party wishes to raise for the opinion of the jury."…
Boileau v Rutlin
154 ER 657 Para 1

…of belief in the truth of the correctness of those assertions. Reliance was placed on the statement of Parke B in the Court of Exchequer Chambers in Boileau v Rutlin (1848) 2 Ex 665; 145 ER 657 (at Ex 680 – 681; ER 663):…
Parke B in the Court of Exchequer Chambers in Boileau v Rutlin
145 ER 657 Para 1

…rectness of those assertions. Reliance was placed on the statement of Parke B in the Court of Exchequer Chambers in Boileau v Rutlin (1848) 2 Ex 665; 145 ER 657 (at Ex 680 – 681; ER 663):…
Buckmaster v Meiklejohn
155 ER 1506 Para 1

…That principle was applied to common law pleadings in Buckmaster v Meiklejohn (1853) 8 Ex 634; 155 ER 1506, where at 637; 1507 Parke B said: "In point of law, pleadings are not admissions, but are merely the statement of the case, which the party wishes to raise for the opinion of the jury."…

Legislation cited in this decision · 3

Acts Interpretation Act 1901 (Cth)
15AB 1 mention (from Para 1)
Crimes Act 1914 (Cth)
29D 1 mention (from Para 1)
Taxation Boards of Review (Transfer of Jurisdiction) Act 1986 (Cth)
1 mention (from Para 1)