The Queen v Whittaker - [2015] QCA 116

[2015] QCA 116

COURT OF APPEAL

GOTTERSON JA
MORRISON JA
PHILIPPIDES JA

CA No 11 of 2015
DC No 75 of 2014

THE QUEEN

WHITTAKER, Mark Alan Applicant

BRISBANE

THURSDAY, 25 JUNE 2015

JUDGMENT

GOTTERSON JA: On the 3rd of April 2014, in the Magistrates Court at Cairns, the applicant, Mark Alan Whittaker, was convicted on complaint and summons on eight offences against s 8C(1)(a) of the Taxation Administration Act 1953. Each offence was particularised as the applicant having failed to furnish an approved form, namely, an income tax return setting forth a complete statement of all income derived by him from all sources in Australia and elsewhere during a specified tax year when and as required by the Commissioner of Taxation to do so pursuant to s 162 of the Income Tax Assessment Act 1936. The offences relate to different tax years.

The applicant appealed to the District Court pursuant to s 222 of the Justices Act 1886 against the convictions. His appeal was heard in November 2014 and dismissed on the 17th of December 2014 when detailed reasons for judgment were published. On the 12th of January 2015, the applicant filed an application for leave to appeal to this Court pursuant to s 118(3), of the District Court of Queensland Act 1968 against the dismissal. The application document was prepared by the applicant who, until today, has acted for himself. It lists three reasons why leave should be granted. These reasons have a direct interrelationship with the 22 errors on the part of the judge below, which are listed in the document as the grounds of appeal.

As to the reasons, the first is that the decision is attended by sufficient doubt to warrant it being reconsidered; this reason is also referable to the viability of the grounds of appeal to which I shall return. The second reason is that the decision involves important questions of law said to be critical to the proper administration of the taxation, superannuation and other Commonwealth laws in some four respects. These questions or issues may be dealt with briefly.

The first concerns application of the word “person” in s 162. Relevantly, the word is defined to include an individual. The applicant is, indisputably, an individual. The second, third and fourth issues are misconceptions. They centre upon the unsupportable proposition that the lawful making of a request by the Commissioner under s 162 is, in some way, constrained by the tax file number system. It is clear from the terms of s 162 that the making of such a request is not dependent upon an individual having a tax file number or the inclusion of such a number in the request. Moreover, the applicant’s misconceptions extend to the bizarre assertion that a s 162 request, which includes a tax file number for an individual, evidences a contravention by the Commissioner of s 8WB(1) of the Taxation Administration Act 1953 as would invalidate the request. None of these issues is viable. In…

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 The Queen v Whittaker

Details

AGLC: The Queen v Whittaker [2015] QCA 116
Case: [2015] QCA 116
Decision Date: 25 JUNE 2015

CaseChat Overview and Summary

The case of The Queen v Whittaker is an appeal against the dismissal of a conviction and sentence in the District Court. Mark Alan Whittaker was convicted of eight offences of failing to furnish an approved form, specifically an income tax return, for specified tax years. The appeal was dismissed by the District Court, and Whittaker sought leave to appeal to the Court of Appeal. The Court of Appeal found that the applicant had failed to identify any viable issues of law or significant injustice arising from the District Court's decision. The applicant's arguments focused on statutory interpretation and constitutional issues, but the Court found these to be unpersuasive. The Court also noted that some of the grounds of appeal were abandoned or irrelevant to the case. The Court of Appeal concluded that the application for leave to appeal should be dismissed, as there was no demonstrated error of law or significant injustice. The judges agreed that the application for leave to appeal should be refused, and this was the order of the Court.

Orders