} 3BS4- 334 scan, 2344) 4b CATCHWORDS Administrative Law - judicial review - application for review of decision of stipendiary magistrate in committal proceedings - charade of consplracy to promote a scheme to defraud the Commonwealth of sales tax - whether there was sufficient evidence to place the anrpellant upon his trial - whether magistrate farled to observe the distinction between avoidance and evasion of tax - whether maqistrate failed to appreciate the relevance or importance of advices of solicitors and counsel on the question of mens rea - duty of the maqistrate in committal proceedings. Administrative Decisions (Judicial Review) Act 1977 Crimes Act 1914. s. 86:1)(bD), (c) Sales Tax Assessment Act No. 3 1930, s. 9 Judiciary Act 1903. s. 68 Magistrates (Summarv Proceedings) Act 1975 (Vic), s. Sd6(l) (a), (b) JOHN FRANCIS FDWARDS v. IAN VON EINEM and ROBERT RICHARD McDONALD No. VG 191 of 1984 SWEENEY. DAVIES and LOCKHART JJ. 12 OCTOBER 1984 IN_THE FEDERAL COURT OF AUSTRALIA No. VG 191 of 1984 VICTORIAN REGISTRY wee ew GENERAL DIVISION BETWEEN : JOHN FRANCIS EDWARDS Appellant AND: IAN VON EINEM and ROBERT RICHARD McDONALD Respondents ORDER JUDGES MAKING ORDER: SWEENEY. DAVIES & LOCKHART JJ. DATE OF ORDER: 12 OCTOBER 1984 WHERE MADE; MELBOURNE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. John Francis Edwards pay the costs or Ian Von Einem S.M. and Robert Richard McDonald of this appeal. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No. VG 191 of 1984 eee een GENERAL DIVISION On appeal from a single judge of the Federal Court of Australia BETWEEN: JOHN FRANCIS EDWARDS Appellant IAN VON EINEM and ROBERT RICHARD McDONALD Respondents Coram: Sweeney, Davies and Lockhart JJ. Date 12 October, 1984 Place: Melsourne Reasons tor Judgment Sweeney, J. John Francis Edwards (the appellant) made application to a single judg@ of this court for review pursuant to the Administrative Decisions Judicial Review Act 1977 (the Judicial Review Act) of the decisions of Mr. I. Von Einem (the magistrate) made on 29 April 1983 in the course of committal proceedings: (a) that there was at the close of the Crown case sufficient evidence to place the appellant upon his trial in respect of each of the three charges of conspiracy against him; (bp) that there was a case to answer by the appellant in respect of each of those charges; {c) not to discharge him out of custody as to the information under enquiry but to caution him under s.56(1)(5) of the Magistrates Summary Proceedings Act 1975, Victor1a (the Act) and then to call upon him to plead to those charges. Two co-defendaats of the appellant, Ian Grant and Ian David Stafford Collie, mad2 similar review applications to his Honour. All three applications were dismissed. This is an appeal by the appellant from his Honour's judgment dismissing his application. The history of the matter was set out by his Honour. On 4 October, 1982 an information for an offence had been laid and sworn by Robert Richard McDonald (the second respondent) against the appellant in which the second respondent alleged:- "(a) that the .said John Francis Edwards at Melbourne, Perth, Sydney and other places, between 1 July 1979 and 18 March 1982 did conspire with Steven John Baker, William Leaver, Peta Joy Fisher, Colin Halley Coghill, Ian Grant, Ian David Stafford Collie and other persons to defraud the (c) Commonwealth contrary to section 86(1)(e) of the Crimes Act 1914; that the said John Francis Edwards at Melbourne, Perth, Sydney and other places, between 1 July 1979 and 18 March 1982 did conspire with Steven John Baker, William Leaver, Peta Joy Fisher, Colina Halley Coghill, fan Grant, Ian David Stafford Collie and other persons to prevent or defeat the execution or enforcement of a law of Commonwealth namely section 9 oz the Sales Tax Assessment Act (No. %y 1930 contrary to s-86(1)(5) of the Crimes Act 1914; that the said John Francis Edwards at Melbourne, Perth, Sydney and other places, between 1 July 1979 and 18 March 1982 did conspire with Steven John Baker, William Leaver, Peta Joy Fisher, Colin Halley Coghill, Ian Grant, Ian David Stafford Collie and other persons to prevent or defeat the execution or enforcement of a law of the Commonwealth namely s.9 of the Sales Tax Assessment Act (No. 7) 1930 contrary to s.86({1)(9) of the Crimes Act." On 11 April 1983 proceedings in respect of these informations began before the magistrate, by way of preliminary examination conducted pursuant to the provisions of s.56(1) of the Act and s.68 of the Judiciary Act 1903. At all material times the magistrate was exercising jurisdiction pursuant to that Act of the Commonwealth, and 1t was common ground between the parties that any decision made 1n the course of the proceedings was a decision of an administrative character made under that enactment (see Lamb v Moss (1983) 49 A.L.R. 533). At the conclusion of the Crown case, in order to exercise his jurisdiction in accordance with law pursuant to s.51(1)(a) and (b) of the Act, the magistrate was required:- (a) 1£ the evidence was not sufficient in his opinion ib to put the accused verson on nis trial for an undictable offence - to order him to be discharged out of custody as to the information then under enquiry; or (>) uf in his opinion the evidence was sufficient to put the accused upon his trial for the indictable offence with which he was charged or if, in his opinion the evidence given for the prosecution raised a strong or probable presumption of guilt of the accused person in respect of that charge, to read the charge to him again and say to him the words set forth in s.56(1)(b) of the Act and call upon him to plead guilty or not guilty as the case may be. On 27 April 1983 and after the conclusion of the evidence given for the prosecution, the appellant submitted to the magistrate:- (a) that the evidence was not sufficient to put him upon trial; (pb) that the evidence did not constitute a prima facie case against him or raise a strong or probable presumption of guilt such as to permit the magistrate to put them upon trial; (c) that he be discharged out of custody as to the ue te information then under enquiry. Coghill made similar submissions, Grant made no submissions and as yet has called no evidence. Collie made no submissions and he has given evidence. After hearing the submissions on behalf of Coghill and Edwards the magistrate gave his reasons on 29 April 1983 which were applicable to all the defendants including the appellant. His Worship, having formed the opinions that the evidence was sufficient to put the defendants upon their trial and that there was a strong or probable presumption of the1r gurlt, did not discharge them. He proceeded to caution them in terms of s.56(1)(b) of the Act and each of them was called upon to plead. Each pleaded not guilty to each of the charges. The proceedings before the magistrate related to a scheme which, according to 'the prosecution, Baker had conceived under which a wholesaler of goods would dispose of them to company A which was registered as a wholesaler under the Sales Tax Assessment Act (Nol) 1930. Company A would quote its sales tax exemption number and no sales tax would be payable. Company A would then transfer one undivided half interest in the goods to company B and the other such interest to company C, which would then acquire from company B its half interest in the goods, and sell the goods to the retailer. Baker undertook to wholesalers and retailers who agreed to participate in the scheme to pay any sales tax assessed to A, B or C provided that the assessment was upheld upon final appeal and provided also that A, B or C did not fon pay the amount assessed. Participating wholesalers and retailers were also assured that either Baker or A, B and C would be responsible for any legal costs in defending the wholesaler or retailer against actions or assessments or collection of sales tax arising from transactions involving the scheme. The scheme was widely promoted and adopted. Wholesalers and retailers who used it were not told of the details of the arrangements between companies A, B and C. The invoices ia respect of the sales by company C to the retailers stated "Prices include any sales tax payable." Wo sales tax was in fact included in the prices stated in the invoices. His Honour, in the light of the evidence to which he had been referred, stated that the appellant knew that sales tax was not to be paid by any party involved 1n the scheme. The intention was that C would not register as a wholesaler and would make no returns of sales by it. A former shelf company of little, if any, substance, C was thus building up a growing potential liapility for sales tax, which it did not disclose to the revenue authorities and for which it was making no financial provision. The savings so effected made possible the orfer of discounts and the payment of remuneration to the promoters of the scheme including the apoellant, who 15 an accountant. The committal proceedings so far as they had proceeded up to 29 April 1983 required the magistrate to consider some 272 statements of witnesses, the viva voce evidence of some 50 witnesses, a multitude of exhibits, and submissions made on behalf of the prosecution and each of the defendants. His Honour heard the separate applications for review by the appellant, Grant and Collie. In the course of a hearing before him which extended over apout 8 days, of which about 4 1/2 days were devoted to hearing the application of the appellant, he was referred extensively to the evidence which had been before the magistrate. His Honour, having reviewed the evidence against tne appellant, went on to say:- "It us apparent even on these facts that, if by law sales tax was payable by C then, py conducting the transactions in a manner that they would not come to the notice of the Sales Tax Department, although there was a risk that they might, sales tax would not be paid. In that event the scheme involved the commission of unlawful conduct to the detriment of the Commonwealth. The justification for conducting the transactions in this way was that there was genuine acceptance of the assurance of Baker that the nature of the transactions between A, 8 and C and the wholesaler and retailer concerned were such as to absolve them all from liability for sales tax. Such conduct was therefore antrinsically innocent and would be so regarded by any reasonable man. But the view might well be taken thac the 'possibility' that there was an avenue of tax ammunity in the Act which could be exploited by Baker's secret formula would be likely to pe questioned by any NMonest man especially an accountant, as Edwards was. Would an honest man invited to enter into the scheme and participate in 1t for profit have wanted to know more about the scheme? what could there be in the nature of the transactions which would absolve C, who sold by wholesale to a retailer, from liability to pay sales tex on his sales? He might have wanted to know why, while learned opinions were being sought as to the liability of wholesaler and retailer, an opinion was not sougnt as to the sales tax liapility of A, B and C. What could be the 'magic' of the nature of the transactions between A, B and C which could have the legal effect alleged? How could Baker's claim to secrecy, even against those joining in the scheme, be accepted without question? The difficulty 1s that it may well be thought to be beyond the wit of an ordinary professional man to contemplate a basis upon which the interposition of intermediaries between the wholesaler and retailer would exempt all the parties from liability to sales tax especially as it must have been clear that the transaction between C and the retailer was plainly a sale by a whoesaler to a retailer. In my view 1t is unnecessary to proceed further to come to a conclusion that in the absence of credible evidence from Zdwards as to his real state of mind the magistrate could well form the opinions which he did concerning the case against Edwards." Before us, the appellant did not submit that there was no evidence upon which the magistrate could properly have reached the decisions which he challenged. He relied only upon what he said were errors of law apparent on the face of his Worship''s reasons for his decisions, and the way in which his Honour had dealt with these questions. We were referred briefly to only a small portion of the evidence. It was submitted that the magistrate erred in the standard he applied in saying: "A strong or probable presumption of guilt appears to be established by evidence or circumstances that poimnt to the commission of a crime and to the accused persons as the criminals, wnich circumstances are not completely explained and cleared up by the evidence of the accused." The appellant submitted that this standard required him to establish his innocence completely even before he went into evidence. In dealing with this submission his Honour said: "It appears to me, however, that the magistrate 15 co be understood as saying that, where the question whether there 1s a strong or probable presumption of guilt arises for decision, an affirmative answer may be given where the evidence of the prosecution or the circumstances point to the commission of a crime by the accused unless the implication of the accused in the crime arising from such evidence or circumstances 1s explained away by evidence of, or called by, the accused. The word 'completely' in the passage under discussion is inaptly included. The ultimate question would not be whether the evidence for the accused completely rebutted the implication of the accused arising from the avidence of the Crown, but whether it so weakened that implication that it could no longer be said to pe sufficient either to require that the accused ve put upon his trial or to support the existence of a strong or probable presumption of guilt. Reading the reasons as a wnole I am not persuaded that the magistrate did not so understand the problem before nim." The appellant submitted that the magistrate did not correctly identify the elements of the offences alleged and that he incorrectly applied an objective approach to tne element of dishonesty. It was submitted tnat the magistrate took the view that the fact that the apoellant promoted a4 scheme which failed was sufficient to constitute the offences alleged, irrespective of whether the appellant believed tine scheme to be lawful and not one which deprived the Commonwealth of tax which it was lawfully entitled to receive. Several passages of the reasons were said to demonstrate this error. The magistrate said: "The evidence in this case as it presently stands shows that each of the defendants agreed to promote a scheme whereby sales tax would not be paid. Whether the scheme involved an avoidance or an evasion of sales tax is 1n my view irrelevant. The question is whether the non-payment of sales tax was unlawful. In my view, such non-payment of sales tax was a clear breach of the Sales Tax Assessment Acts. It has been correctly conceded by both defence Counsel who made submissions to me that a defendant cannot excuse himself by saying that owing to his ignorance of the law he did not realise such an act was unlawful." The appellant submitted that the magistrate in this passage had failed to appreciate the significance of the distinction between avoidance and evasion of tax. It was submitted that 1f£ all that was intended was avoidance of sales tax then no offence as alleged would be established. In relation to these submissions his Honour said: "It is said that the passages referred to raveal that the magistrate took the view that the relevant mens rea was established once 1t appeared that the agreement was to bring about a state of affairs in which non-payment of sales tax was unlawful. Ia this context emphasis was placed on the sentence - 'Whether the scheme involved an avoidance or an evasion of sales tax 1S 1n my view irrelevant'. This sentence might indicate some error in the Magistrate's aporoach if, as is alleged by the applicants, it related to the matter of mens rea. But on a correct reading of the reasons it 1s related solely to the issue of the unlawfulness of non-payment of sales tax. The magistrate dealt with the matter of mens rea in those passages in which he discussed the element of dishonesty. On a fair reading of tne reasons it 1s apparent that the magistrate was well aware and accepted tnat dishonesty was an essential element in the offence of conspiracy to defraud the Commonwealth. I consider that the magistrate is to be understood as indicating that dishonesty on the part of an accused person had to be proved by the Crown and that that element of dishonesty would be established where a Jury looking at the facts proved, and applying their own notions of what 1s li honest and what 1s not, concluded that the accused could not have believed that he was acting nonestly. If the accused was a person of sufficient intelligence and experience to realize that what he was doing was dishonest according to the standards of right minded people then in the absence of evidence to the contrary dishonesty on the part of the accused might be found to exist. He went on to say that in his view, and applying this test, the element of dishonesty had been satisfied by the evidence before him." Later in his reasons the magistrate said that some attempt had been made by the defendants to suggest that they were entitled to rely on an opinion of senior counsel and an advice from a Perth firm of solicitors. His Worship said:- "I am not exactly sure how this argument is put, or, how such reliance would provide a defence. Nevertheless I should point out that those persons expressly stated that they were not advising as to the sales tax liability (or by inference the criminal liability) of A, B and c. I would have thought it was abundantly clear to each of the defendants who had read the Advice that they could not rely on it to provide a defence without first satisfying themselves of the legal effectiveness of A, B and C." It was submitted that the magistrate's failure to appreciate botn the relevance and importance of the opinions allustrated that he nad not correctly identified the elements of the alleged offences in that he did not regard a belief by the accused in the lawfulness of the schemes as negating the necessary mental elements of the alleged offences. His Honour referred to the fact that the reasoning of the magistrate was challenged also on the ground that in discussing the relevance of reliance on the legal opinions he stated, "I am not exactly sure how this argument 1s put, or how such reliance would provide a defence." His Honour said:- "This is a rather puzzling statement because reliance on legal opinions would be relevant to the existence of dishonesty in the mind of the accused. According to circumstances a learned opinion that a certain course was lawful could be significantly material in an assessment of the credibility of a statement by an accused that he really believed that his course of action was, according to the test mentioned above, an honest one. If the magistrate is to be understood to say that aun forming his opinion he considered that the existence of a relevant legal opinion was of no significance that would be an error. However, the magistrate did Look at the matter on the basis that the opinions might be taken into account on the zssue of dishonesty. He took the view that on the assue of the accused's belief that his conduct was not dishonest because of the contents of relevant legal opinions his statement to that effect would have to be examined in the light of the actual opinion given. In this respect the Knowledge and experience of the accused in the area of sales tax liability and business generally, and the likelihood that the person might seek further assurances as to the lawfulness of the actual conduct to be engaged in under the agreement were relevant considerations. In the light of the foregoing I am not satisfied that the magistrate misdirected himself in any respect." For the purpose of attracting jurisdiction, the decision of the magistrate is characterised as being of an administrative nature. Ordinarily, the reasons for such a decision snould not be looked at over critically. (see Commonwealth v Duncan (1982) 44 ALR 249 per Franki J. at p.255, per Kelly J. at p.261; Tagle v Minister for Immigration (1983) 46 ALR 379 at p.386; Lennell v Repatriation Commission Full Court unreported 3 February 1982). The magistrate''s reasons should be considered in the context of the vroceedings before him and of the stage which they had reached. He had considered a great volume of evidence and submissions. He was ruling upon it at a time when he had before him the possibility that there would be evidence given by or on behalit of the defendants. In these c1lrcumstances 1t was natural for him to limit what he said at the close of the Crown case. I am not persuaded that a court of appeai, lacking the advantage which his Honour had, of a detailed knowledge of the facts, should find any error in his rejection of the criticisms which were made of the magistrate's reasons. In the light of this opinion, no question of discretion arises. In his notice of appeal the appellant sought an order that the matter be remitted to the magistrate with directions that he proceed to reconsider the evidence before him and mak2 the decision required by s.56(1){0) of the Act "according to law". If the appellant had been otherwise successful, it would have been very difficult for a court lacking a detailed knowledge of the evidence to have set out an appropriate guide to be followed by the magistrate in reconsidering it. I would dismiss the appeal, with costs. I certify that this and the preceding thirteen pages (13) are a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice Sweeney. for Associate Date: 12 October 1984 <t II gq ty [ey Re]B [ws +4 Ud a IH [o} tae) 48] (a ja) iaLy Ks Pa [e) <= ces) te Ww ran ie) bal) ts Ww a is ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN JCnN FRANCIS EDWAPES Apoeiian iw) GS # La be wa a iD D eenevy, Cavies ana Lecknarct Jo > @his is an apresl from a qudaomenct cf a single Juags cr wars lourt dismissing an areclication to review a decisicn oF 2 Magistrate mace im wne ccurse oF committal crocescings. the appeitanc,. conn Francis Hawards. naa .een cnarsec with tnrse sitlances : (i2} conspiring with other persons to orevent or Geteat the execution or enrorcement of a law oz che Commonweaith, namely, s.9 of the Sales Tax Assessment Ace (No.3) 1930 (Cth: Crimes Acz contrary to 5.36(1)(b) of the i9it (Cth); 2. (i211) conspiring with other persons to pravent or defeat the execution or enforcement of a iaw of the Commonweaith, namely, s.9 of the Sales Tax Assessment Act (No.7) 1930 (Cth) contrary <7o s.86(1)(b) of the Crimes Act i914 (Ctn). Maqgizszrates ('Summary Procesazngs: Act 1975 (Jicterza;: anpized to the proceedings for the comm2ttal of Mr Edwaras. Secticn 56 sof that Act prevides cvhat. artter tae evidence Tor tne Bresecution is qiscnargeaa out sf custedy cor, if in the cpinion oF the suszice. tne avicence is surfticient to put tne accusec serscn upen ns At tne conclusion of tne prosecution eavicence, the lisarnec Stipenarary Magistrate Founc ctnat cwner2 was surticient eavisence te piace wne accused persons, inciuding Mr Edwards, upon tneir LS)a =zun ct iP) ct) accused in che tarms provided by s.56i(1 decision under review. By the decision, the learned Stinenaiary Magistrate did not commit Mr Edwards for trial for Mr Edwards was then entitled to elect whether or not to call evidence. 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WALCn wz unla concealment woula be provnoseda aeliperat circumstances in sclosur2 to be made." 2n hem a ne sc isclosure red ad atc t aT. "That Mr Baxer published this statement that the assessment 1s upheld upon finai apoeal, and providing that A, 8 or C do not vay the amount assessed." My Sdwards was one of a number of persons who sromo vec this sales tax scheme. Several organisations undertook tne scneme anc sales tax which wouid ordinariiy have oesn paid by wholesalers was not paid. Indeea, ix tne wholesalers valialy transferred tne goods to antity "A" whicn quotea its certirticate, the wnolesaisr was under no liability tc vay saies tax upen ivs sales. Nor was 10 waS a2 part of the scheme that no saiss wax return would be the sales tax i175 calilea upon cto <3 35 ov the Commissioner oar alieced by che srrtsecuticn tnmalt cone ana was therecy derraucec. =I oturn f2f5t 'tO tne censosiracy to aetraua. It was necessary that che orcsecution snow : (a) that thers was a scheme wnich, i= put inte effect, woulda defraud the Commonweaith; (Dd) tnat Mr Edwards entered into an agreement or arrancgemen to put that plan into effect; and (c) that m entering unto that) agreement or i rangement, Mr Edwards had the necessary ns rea or cuilty mind. wp O's a With to prove "A", "Be or that the plan, i respect to (a), 10 was necessary for the prosecution b given effact, would impose iirapility the enctitr wo tax upon the wholesaler or upon one of s "Cc", de liadlie to vay sales at Yisx. In this last vressect, I simpiy note that the caree peinczpal elements to be considerea wer2 : ('1) the Zact tnat :- was uniixely that tne wholesaisr or entities 'AT, "B" ar "oc" woulc vreacily be able to meer any faso1licy, Zor in ctnazr Ln? 2ifst cn Mr a pet implementat lawful scheme, those merely because, and cheretsre would not have had tne Funds co make a 11} Uhe existence of tne statement mace Dy My 3aaer to and enuities "A", "5" ana "C" woula not disclose tnerr to promote and the manner oF its a number of persons ion. if amplemer ct @ agree to Oo 'y u persons do not become unlawful conspirat an the implementation of the scheme, steps are ay taken whnicn are, in fact, unlawful. The second is that be taken with the application of the wrinciple that necessary that each conspirator should know che who scheme or design provided that there 1s a cenmscious und care must oF aocommen des2dn. Zt 28 not sufriczrent to prove w I i ts Q ow 'S f: pel te i) in ul ul a i] a a i) ccusea knew or believed that his actions were to form scneme. He would not ne guiity of a criminaic he was awar2 cr the essential eiements wnicn ren unlawrul. 45 to (cc), IT would simpiv refer cto the rerarkxs oF Z AC 224 at 237, where his Lordship said : = as dind., it 15 desirable ta avoid c pnrase 'mens cea,' Whicn 5i2 zc @anings, and to concent on the eltect of the agreement nn vo the nsplrators. The question is at 42a to do?' if wnat they agresa cto do was, 5 Known to them, an unlawtci act. they spiracy and cannot excuse s ng tnat, owing to tbl 1g aw, cney did not reaiise tract su acrime. If. on the faccs «ncwn to them. they agresa to do was lawrul, tnev af2 not endeared a cially guilty Sy cine existance of stner , ner anowr 7 tnen, Giving a dirtieren= and anal quaiincy to the acct agc2ea upen.', 15 ccnmen ground that the actus reus conspiracy 15 the agreement to execute tne 11 conduct, anc not the execution of it. The 1s complete wnen the agreement 1s made. proposition, first decided 1m 16290 an Poulterers' Case (1610) 9 Co.Rep.55b, is familiar to require further autnority. & v Kamara CLs74] AC LO+ Bt LiS-20, where Lor (2) In spite of this, mens reais an essential ingredient in the crime of conspiracy. Tnis mens yea consists in the intention to execute the st . illecai elements in the conduct contemplated by the agreement, in the knowledge of tnose facts which render the conduct illegai, cl. Rea. v Churchiili (No.2) £19673 2 AC 224, {3} It seems fairivy clear that whiie a mistake of law is not a good defence, a sincere belizet ina state or facts which if true would render the iliesgal conduct iedqal would be a qood answer to any cnarc2 of consdiracy. For anstancs, if comspiracy toa es be a crime, bei1ref ina state oF Fac w woulg dive rise tc apr enforceable sight way would be a aerences. Equaiivy, 2t woul z defenca toa charge ot conspiracy 70 Sy whe puDdizcatzron of defamatory matte the accused genuznelv and hTAcutT express i pelieved ain facts wnien iish a privilece. On general maii these cases the Ddburden would yosecution to exciuas these detances. aescribe as a claim of right made in ine was tnereltcrs bound to vorove an agreement Ta commit Dut was not Sound to prove that the versons entering into the agreement had «nowledge of the iliegality or che act agrsea c> Se done. = new Turn co the reasens deliverea by tne learned Stipenciarvy Magistrace. Ons assect of those reascns cnallenged was the statement : 'Ic «should of course 52 veaalisec that cnese procesaings area at tnis stage governec by¥ section 56(l)(D: of the Magzstrates (Summary Proceeaings) Acc. Th2S section provides the ic ria to be apviiea by a court wnen consicering her or not an accused person snould be cautioned, ae. - (2) whether vhe eviaence 15 surificient cto put the accused berson upon h:s trial for the indictadie offence with which he is charged; or {11) tne prosecution 2 presumption of person im respect 8. tO that charge. Hd strong or probable presumption of quilt appears c1ircumstances tO be established by evidence or that voint to the commission of a crzme, and to the accused vsersons as tne criminals, which circumstances ara not compieteiy explained anc cleared up Dv the evidence of the accused. (See Irvine's Justxrces er the Peace 2nd Eaition pp.1i-42)." "Considerable emehasis was placed on the Jinal adjectivai ciause. it was saia cnat its presence indicated that tne magistrate's view was chat the necessary streong or srobaole oresumption of z Was astadlisned wnere evidence or circums s peintsa to tne commission sf acrime by the accused, no matter how waveringiy., unless the impiication of the accused arising therefrom was aetely necatived bv evidence cl, or called by. cused. it appears to me. nowever, that the cat2 12 <6 be uncerstood as saving that, the question whether there is a2 strong or 12 oresumption of guiit arises for decisicn. Iiymacviv2 answer may be given whnere the ce of yr tne clrcumstances to the & crime Dy the accused the implication of the accused in the crime ZfOM sucn aviaence of circumstances i5 ea away bv eviaence of. or caiied ov, the . The wora 'compietesiv im the vassacge adascussion 25 inmaptiy ainciucec. ane 22 question woula net de whether the et ce Tor tne accusea completsiy rebutted the imp Qaclon oF the accused arising rom the evidence cr tne Crown, Dut whether 17 so weaKenea chat implicatisn chat it coule no longer de sard to De sutiicrent either to vrequire that tne accusec 3e€ scut upon nis trral or te support the @kistence of a strong or srcbadie sresumption cr quiic. Reading the reasons as a wneie i am nor persuaced that che Magistrate dia not To) uncerstanc the srcbiem before hAim.' (at po.i7-is yeasons Zor decision) However, I take a different view from trial Judge with respect to a passage of learned Stipendiary Magistrate which reads : that of the iearned the reasons "The evidence in this case as it presently stands Shows that each or the defendants agreed to Promote a@ scheme whereby sales tax would not he paid. Whether the scheme involved an avoidance or an evasion of sales tax is in my view irrelevant. ct The guestion is whevher the non-sayvent of saies wax was unlawful. in my vtew, such non sayment of sales tax was a cisar breach of the Sales Tax Assessment Accs. It has been correctly concludea oy sovh cetence counsel who made submissions to me that a CGerendant cannot excuse himseif by saying that owing to AlS ignorance of tne law he did not yeaitse such an act was unlawrul.' The learned trial guage found justizitcation gor these statements, In my opinion, the view thac wnetner the scheme involved an avyordarnce or an avaszron of sales tax was irrelevant was wronde. 'C" wouic be ixabie to vay sales tax and the Commonwealth would mot de céertrauced. And the statement "...gucn non payment of Gia net aindéicata in any useftal way which of tné wnolesaisr cr entities "A", "3" o¢ "C" was liable to vay sales tax or why I thus cannot "Getearmine from the scréasons ci tne learnec Stipendiary Magistrate approached the matter cn the basis that there was no distinctzon between avoidance of tax, which 15 lawful, and evasion of tax, which is not. then he was in error. fH) ie} a ry ty ts There ar aspects of the reasons delivered oy the learnec Stipendiary Magistrate whicn also give con a wo rn 5 s °. Ft, fy eng in tran cas ne t+ fas ci ct x pass over the soint tnat it would be unusuai if che majority of the steps implemented were just a sham. The mate "s tw su rayis oO uw cf ra Oot4 ) wnether Mr Edwards entered into an arrangement to imolement sham transactions. The learned Sctipenczary Magistrate did not discuss this. The Learnec Stipendrary Magistrate further said : "Some attempt has been mace by tne defence <= suggest that they were entitiec to reivzy on she opinion of Mr, Forsyth Q.C. ana an aavice From a Perth firm of soincitors, 21.e. Messrs Stcne James & Co. Tam not exacctivy sure how this arsument is out. or, how such s¢aitance would srovide a aetence. ..." tne arrangement into which Mr Ecwards entered. One cculd not geternine nis curlt oF criminai conspiracy without taking ints account 215 yreinance,. 12 any, upen those advices The isarnec Stigenciarcy Magistcate ",., Nevervhe persons exor advising as unlterence the Yeu, tne advice of Stone cames & Co expressiy profiere the subject of the tax liability of entities "A", yp the advice or Mr Forsyt Qa discussed questions of crzminal . liability Those opinions were relevant matters to take into account. The learned Stipendiary Magistrate further saa : "... The overali question in conspiracies of this xind 1s not whether the numper of persons have a common unlawful purpose but whether any of them either knows or has reason to belileve that his activities are part of a larger aesicn.' *Buc if the jury, applying tneir own notions of wnat is honest and what 1s not, conclude that ne could not have believed that he was acting honestly, then the siement or dishonesty w21l have been establisned'. His Honour also said that 1t would be permissible for the jury to say : in my opinion, it is mot sufficient thac a verson should know o reason to dbelzeve that his activities are part of a large He woule rot be guilty oF a criminal conssiracyv unles aware of the essential facts tnat made the aesig ~sarnec Stivendiary Macistrace stated, : "Insofar as the charge of conspiracy toa dsetraud the Commonwealcn 2s concerned, 1t nas been sut To me that I couid not be satisfied that such a charge was open because no element of dishonesty or deceit was sresent. Mr. Smich retecred me <coa aecision oz Wellham -veported in i961 Appeal Cases 103 and 450 the iatest addition ofr archnbaid whereby 25 Said that to derraud 1s 'd:ishonestiy to pre ce cr cake the risk of sresjuaicing Another qht, knowing chat you have ne ridgnt to deo so'. Mr. Juda has referred me «to a Court of Appsal Gecizsion or KR. v. Lanay wnicnr 18 csporteac at (1982) 1 WLR » 355 wnere it was said - at vage 365 'What che prosecution had to prove was a conspiracy to derrauc whicn is an agreerent axshonestiy tc do sometning which will or may cause lcss or prarucics To another ihe offence 185 one of dishonesty.' Mr. Walker, one of Yer Majestvz7's Counsel. who with Mr Burnsice appear for the inzormant aiso yeterrcea me to the same vage or this cascision wner2 10 was said : 12. ny, We are sure he was acting aishonestiy because we can se@ no reason why a man or his intelligence and experience would act have appreciated, as right minded people would have done, that what he was doing was dishonest.' I have come to the firm conclusion tnat if I were to apply any or these tests and in x cular the jiast. there 1s a strong or yropabie 2sumption tnat the element of disnonesty has Seen satisrtied. I therefore Find that there is surficienc evicence to place the accused bersons upon tneir trial." However, the learned Stipendiary Magistrate cid not identily the element of dishonesty invoived. Presumably, ome goes Dack co the Barlier statement that 'such non yayment of sales tax was @ clear Dreacn of the Sales Tax Assessment Acts". Nevertheless. tae tae emecution or enforcement of laws of the Commcnweaitn, namely. s.9 or che Sales Tax Assessmenzs Acz :No.3' 1930 (Cth?) ana s.9 oF the Saies Tax Assessment Acz iNo.7) i920 (Cth). The forner section reads : "9, Every person irtaple to pav tax under section 5 upon the sale value of any goocs sold Sy Ain Guring any morth shail, within twenty-cne cays Steyr the close of that month, vay saies tax on that saie value." In the circumstances of the present case, 1% was necessary Zor the pbrosecution to establish a conspiracy to prevent or aefraud the operation of either of the above sections. it was therefore necessary to establish an arrangement whereby a person 13. liabie to pay sales tax would not comply wztn the provisions of the relevant section, that 15 to say, an arrangement whereby the wholesaler or antities "A", "B" or "C" woule become liadle to sales tax Ddut would not lodge sales tax returns. The Learnec Stivendiary Magistrate's reasons were equivocal on this aspect. ul Nevertheless, the question arises whether the aecision w under review should be set aside at this stage. eroceeaings foc Feceral offences were voroceedings cr oan ABCMINLStrative mature and. being auvhorisea by 5.968 of <cne Judiciary Act 1903 ({(Ctn), were subtect to tne Aduznistrative =-c was said .n Lemb v Mess. at 9.546 : zcrent. For ammeciate ourvoses, ts chat ther? 1.15 a considerable body cf authoritative jucictal opinion thet exceptional circumstances will ge Li De reguirec before 2a superior court ider interfering in commitrai proceedings, particularivy at an anverlocutory stage. r TO permit criminal proceecings ts Zoliow ct ainarcy course wili, in the absence al circumstances, constitute an error zpis, as Gibbs Co pointec out in Sansxeyv m, (1978) i342 CLR i az 2.25." consicered in Lamb v Moss. or Sankey v Whitlam (1978) 142 CL the learnea Stivendiary Magzstrate has not commicted Mr Edwards for trial. He has heard the prosecution evidence and, pursuant to s.56 of the Magistrates (Summary Proceedings) Act, has ound that that evidence has established a sufficient case for 1Bs - committal. The reasons given for ars dcing so do not make it clear to one what were the elements of the crimes he Found to be proved. Is this a sroper case for the Court to interrere? On the whole, I think that tnere are good reasons for net interfering av this stage. Although the learned Stipnendiary Magistrate has stated rsasons for his decision, he has properly not referred in detail to the 'facts lest, in do1ung so, he should ie) % o qs cS a te Q fi) ct Fey i Q mtinuation o> the committal croceadings or tne trial, snould the accused be committed. The principle so appiied mas not neean alttected by the Administrative Dec-sions tJucicial Review) Act 1977 (Cth). excerpt to the extent chat a request For reasons May De mace pursuant to s.13. A committal deczsion,. therefors, should not readily be set asides because of an evicence given or to adetermine tnat, on ths evidence given, the learned Stipendiary Magistrate could not have come ta tne decision which ne did. Therefore, the Court cannot express any opinion in relation to that. in these circumstances, I am of the view that the Court ra ur snoulc apply the principle stated in the passage from Lamb v Moss which is sat out above and the stricture of Gibbs ACJ in Sankey v Whitiam, cited above, act 9.26, that, " inal rocee snould be allowed to follo unless 10 appears r 1s necessary in the interests of Geciaractory order. " eee -.. Once criminal 3 ould therefore dismiss the apveal. I coileagues in the oraers srovosed. ! certsfy that this and the 1¢- ereceding pages are a true copy of the reasons for judgment herein of The Honour- able Mr. Justice T.5 Sawer Associate Deted Uf 10f&% Goh La ven IN THE FEDERAL COURT OF AUSTRALIA No. VG 191 of 1984 ) } VICTORIAN REGISTRY ) ) GENERAL DIVISION ) BETWEEN : JOHN FRANCIS EDWARDS Appellant AND: JAN VON EINEM and ROBERT RICHARD McDONALD Respondents CORAM: SWEENEY. DAVIES & LOCKHART JJ. 12 OCTOBER 1984 REASONS FOR JUDGMENT LOCKHART J. This is another invocation of the Administratite Decisions (Judicial) Review Act 1977 ("the Judicial Review Act") by a person charged with an indictable offence for the purpose of aquashing contemporaneous proceedings for his committal. The path for taking this course was laid by a Full Court of this Court in Lamb v. Moss (1983) 49 A.L.R. 533. But it cannot be emphasised too stronal7 that ra Lamb v. Moss, although bringing within the scope of the Judicial Peview Act a very wide range of decisions. stressed that the discretion to arant relief in respect of committal proceedings should be exercised only in exceptional circumstances. especiallv where the decision under review was made in the course of those proceedings (p. 546). Lamb v.°Moss 1s also authority for the proposition that this Ww Court's discretion to refuse relief in proceedings under the Judicial Review Act may be exercised notwithstanding that the statutory pre-conditions to the grant of relief have been satisfied. The araument before us proceeded on the assumption that Lamb v. Moss was correctly decided and governed the present appeal. In the committal proceedings from which this case arises the prosecution alleqes that the appellant and others were parties to a conspiracy to defraud the Revenue of large amounts of sales tax by means of an elaborate scheme promoted throuchout Australia and adopted by many people during the period 1979 to 1982. On iL April 1983 the appellant was charged in the Maqistrates' Court at Melbourne with the following three offences:- (a) That he, at Melbourne, Perth, Svdnev and other places, between 1 Julv 1979 and 18 March 1982. conspired with Steven John Baker, William Leaver. Peta Joy Fisher, Collin Halley Coghill. Tan Grant, Ian David Stafford Collie and other persons to defraud the Commonwealth contrary to para. 86(1)(e) of the Crimes Act 1914 <"the Crimes Act"); (b) That he. at the same times and places, conspired with the same people to prevent or defeat the execution or enforcement of s.9 of the Sales Tax Assessment Act (No. 3) 1930 contrary to para. 86(1)(b) of the Crimes Act; -and (ec) That he, at the same times and places. conspired with the same people to prevent or defeat the execution or enforcement of 5.9 of the Sales Tax Assessment Act (No. 7) 1930 contrary to para. 86(1)(b) of the Crimes Act. Similar charges were laid against other alleaed conspirators including Grant and Collie. The informant in each case was the second cespondent who is an officer of the Australian Federal Police. The proceedings were heard by the first respondent. a Stipendiary Magistrate ("the Maqistrate"), and were by way of preliminary examination conducted pursuant to sub-s.S56(1) of the Madistrates' (Summary Proceedings) Act (1975) ("the Summarvzy Proceedings Act") and s.68 of the Judiciary Act 1903 ("the Judiciarv Act"). At the conclusion of the prosecution's case the Magistrate was required bv paras. 56(1)(a) and (b) of the Summarv Proceedings Act ta:- "(a) If the evidence was not sufficient in his opinion to put the accused person on his trial for an indictable offence - order him to be discharged out of custody as to the anformation then under enquiry: or (b) If in his opinion the evidence was sufficient to put the accused upon his trial for the indictable offence with which he was charged or if. in his opinion the evidence qiven for the prosecution raised a strona or probable presumption of quilt of the accused person in respect of that charge. read the charge to him again and say to him the words 4. set forth in paragraph 56(1)(b) of the Summarv Proceedinas Act and call upon him to plead quilty or not quilty as the case may be." On 27 April 1983. after the conclusion of the evidence for the prosecution. the appellant and Coghill submitted to the Maqistrate:- "(a) That the evidence before him was not sufficient to put them upon trial; (b) That the evidence before him did not constitute a prima facie case against them or raise a strong or probable presumption of their quilt such as to permit the Magistrate to put them upon their trial; and (c) That the appellant and Coqghill ought to be discharged out of custody in respect of the information then before him." Grant made no submissions and as vet has called no evidence. Collie made no submissions, but he qave evidence before the Maqistrate. After hearing the appellant and Coghill the Magistrate qave reasons for judament on 29 April 1983 which were applicable te all the accused. including the appellant. The Magistrate, having formed the opinion that the evidence was sufficient to put the appellant and the other accused upon their trial and that there was a strona or probable presumption of their quilt. did not discharae them. He proceeded to caution the accused, including the appellant, un terms of para. 56(1)(b) of the Summary Proceeding Act and they were called upon to plead to the charaes. Each of the accused. including the appellant, announced a plea of "not quilty" to each of the charges. 5. On 2 May 1983 the appellant filed an application in this Court for an order of review of the Maqistrate's decision that there was at the close of the prosecution's case sufficient evidence to place the appellant upon his trial in respect of each of the three charges against him and that there was acase to answer by the appellant in respect of each of those charges. Similar applications were filed by Grant and Collie. The applications were heard by Smithers J. who dismissed them and reserved costs. The appellant appealed to a Full Court of this Court from his Honour's judament. One of the dafficulties inherent in applications pursuant to the Judicial Review Act which seek to challenge decisions of magistrates 1n committal proceedinas is that, in mv experience, thev often aunvolve this Court being asked to consider a large bodv of evidence adduced before the magistrate. both oral and documentarv. Further, more often than not. the matters are said to be urgent since the committal proceedings are still in proaress. Counsel and solicitors are usually instructed at short notice and have onlva qeneral familiarity with the matters. This is not said critically. Indeed, from my observation, they have conducted matters well in view of the difficulties that necessarilv attend short notice and a large volume of material. However, as I observed 1n Fermia v. Hand 119 April 1984, unreported) much of the material before this Court consists of statements from the Bar table concerning what had happened before the maqistrate. from which it is not always easy to distindquish between fact and arqument. These and other difficulties attend the determination of cases such as the present in consequence of the fact that decisions of wmadistrates made in committal proceedings are susceptible of review under the Judicial Review Act. These matters necessarily place constraints upon the Court when considering the review of decisions of maqdistrates made 1n these circumstances. The Court frequently feels that a complete and accurate picture of the committal proceedings is not before 1t. These and other considerations lend force to the view, expressed in Lamb v. Moss. that a superior court will consider interfering in committal proceedinds only in exceptional circumstances, especially when those proceedinas have not concluded. The difficulties to which I have referred were manifest in the present appeal. The committal proceedings, at least to 29 April 1983, involved a large volume of evidence including hundreds of pages of transcript and multitudinous exhibits. We were told from the Bar table that there were 272 statements of witnesses and that evidence had been aqiven by 50 witnesses. We were referred to a small portion only of this evidence in arqument. Indeed. counsel for the appellant recoanised these difficulties and confined his attack upon the decision of the Magistrate essentially to errors of law which were said to be apparent on the face of his reasons for the decisions under review. Before turning to the submissions of the parties it is desirable to summarise the principal features of the scheme for avoidance or evasion (the distinction between the two has hecome somewhat blurred in recent vears) of sales tax involved in the present 7. proceedings. I must emphasize. however, that my summary is essentially taken from what, as I understand it, was the case for the prosecution before the Magistrate. A Mr. Baker conceived the scheme which was desiaqned to eliminate the liability for payment of sales tax by wholesalers of goods. Normally a manufacturer would sell his goods to a wholesaler who in turn would sell them to a retarler at a price which included sales tax. The retailer would then sell the qoods to the public. Under the scheme three companies (A, B and C) were interposed between the wholesaler and the retailer. The wholesaler sold the qoods to company A which was reqistered as a wholesaler under the Sales Tax Assessment Act (No. 1) 1930 and which quoted its sales tax exemption number on purchases which it made from the wholesaler. Company A then transferred an undivided half interest in the qoods to company B. Company A then transferred the remaining half interest in the goods to company C. Company B transferred its half interest in the goods acquired from company aA to company C. Company C then sold the goods to the retailer who in turn sold them to the public. The invoice in respect of the sale by company C to the retailer stated: "Prices include any sales tax pavable". No sales tax was in fact included in the price of the goods purchased by the retailer from company C. It seems that under the scheme company C did not reqister as a wholesaler under the Sales Tax Assessment Act (No. 1) 1930. The scheme proceeded on the assumption that. bv severing the chain of title to the qoods between the wholesaler and the retailer (through the interposition of companies A. B and C) sales tax would not be payable by the wholesaler 8. oer the retailer. The commercial benefit to be gained bv the saving of sales tax would be enjoyed by the wholesaler who would be able to sell the qoods ultimately purchased by the retailer at a considerable discount. Other possible benefits to the wholesaler were also envisaged by the scheme. The wholesaler was to remunerate the author and manager of the scheme. The wholesaler and retailer were not perhaps intended to know the precise nature of the transactions between the companies A, B and Cc. It may have been intended that the promoters of the scheme throughout Australia could rely on the assertion of Baker that the scheme would produce the result that sales tax would not be payable bv the wholesaler or the retailer and that there was an arquable case that companies A, B and C had no legal liability to pav the sales tax. Baker obtained leqal advice from Messrs. Stone. James & Co.. solicitors, of Perth. to the effect that under the scheme, if umplemented in accordance with the advice, "None of vou. A, 8B, C, wholesaler and retailer would be involved in a fraud". This advice was in substance confirmed by Mr. N.H.M. Forsyth 0.C.. These advices were all available to potential promoters of the scheme. Baker conceived and implemented the scheme. Collie and Grant were the main promoters of the scheme in Melbourne. Coqhill promoted the scheme in Sydney. and he apparently operated as well from an office in Melbourne, where the appellant was emploved. It is not clear to me how far the appellant was aware of the nature of the transactions between companies A, B andC. It appears that he was to be 3. remunerated by commissions for his efforts in promoting the scheme. Notwithstanding that the scheme was implemented throughout Australia from 1979 to 1982 on a arand scale, it is not clear to me to what extent the scheme, as implemented in practice. differed from the scheme as formulated by Baker and others. I have read a copy of the submissions put to the Magistrate at the committal proceedings by counsel for the prosecution. I have read, of course, the Maqistrate's reasons for his decision presently under challenge. I must say that I have some difficuity understanding precisely how the Crown proposes to formulate 1ts case aqainst the appellant. Also. certain observations made by the Magistrate in the course of his reasons obviously assume knowledge by him of facts or aunferences or of submissions made to him by counsel for the defendants which are not mentioned bv hin. I do not suagest for a moment that the Maqistrate was under any duty to specifically mention these matters 1n his reasons. Indeed. it is not surprising that he did not do so since the committal proceedings were at an intermediate stage. But this illustrates aqain the difficulty faced by a superior court hearing an application for judicial review of decisions made bv magistrates in the course of complicated committal proceedings. The aifficulty is plain enough for a trial judge but it is even greater for an appellate court. Various interpretations of the relevant events involved in the sales tax scheme before the Magistrate are possible. I hesitate to mention them because there may be other possibilities. especially 10. as we were referred in arqument to a small seqment only of the evidence before the Magistrate and not to the addresses of counsel for any of the defendants. But it is necessary to analyse the possibilities to understand the reasons for the Maqistrate's decision and the submissions made to us challenging that decision. The Magistrate's task was to consider and weigh all the evidence before him and to caution the appellant if he was of the opinion that there was astrona or probable presumption of quilt: see Armah v. The Government of Ghana (1968) A.C. 192 per Lord Reid at p.229. Various possible interpretations of the evidence were open to the Magistrate for his consideration. He was ina position to decide which of them, if any, he should accept. One possible construction of the facts is that the participants in the scheme intended that no sales tax would be payable by anybody and that the intervention of companies A, Band C would achieve that object. If so, and if the scheme had successfully operated to achieve that obiect. there could be no question of any conspiracy to defraud the Commonwealth or to prevent or defeat the execution or enforcement of the sales tax legislation. A second possibility is that the participants did not succeed in achieving that obiect so that sales tax was payable by one of the companies, perhaps the wholesaler or company C. A third possibility is that the role of companies A. B and C was a sham, intended by the participants, or some of them. to mask 1l. their real purpose of concealing from the Commissioner of Taxation, for as long as possible, the liability of the wholesaler to sales tax, this concealment to be achieved by various means including the fact that company A quoted its sales tax exemption number on the sale bv the wholesaler to it. A fourth possibility is that the participants mav have intended the scheme to operate accordina to its tenor so that no sales tax would be payable by anybody, but thought that, at worst, if anyone were liable, it would be company C on the basis that the transfer of the property in the goods to it from companies A and B was the last sale by wholesale. We were told from the Bar table that company C was a company of straw. Hence, it may be that the participants thought that in these circumstances all the Commissioner would find at the end of the day would be a valueless shell. Smithers J. appears to have contemplated this last possibility in the closing stages of his reasons for Judgment. As I said above, there may be other possibilities; but it is. I think. helpful to keep in mind the ones I have mentioned when considering the submissions of the appellant. Otherwise, one is bereft of knowledge of the background to and the course of the lengthy and complicated committal proceedings, thus making it difficult, if not impossible, to understand the reasons for the Magistrate's decision under review. 12. I turn to the submissions of the appellant. It was submitted that the reasons for decision of the Magistrate reflect a fundamental misconception of the distinction between avoidance and evasion of tax or other imposts and that this misconception also permeates the whole of the prosecution's case against the appellant. Whether this submission will be shown to be correct will emerge in due course if the committal proceedings continue or if the appellant is committed and stands trial. I am not persuaded. however, on the material to which we have been referred, of the soundness of this submission. More than one possible analvsis of the circumstances mentioned by me earlier is inconsistent with the correctness of this submission. Also, there are references at more than one place in the Magistrate's reasons for his decision which tend aqainst the correctness of the submission. It was next submitted by the appellant that the Magistrate fell into error in finding: "The evidence in this case as it presently stands shows that each of the defendants agreed to promote a scheme whereby sales tax would not be paid. Whether the scheme involved an avoidance or an evasion of sales tax is in my view irrelevant." It was asserted that the second sentence in this passage demonstrates a failure by the Magistrate to appreciate the fundamental distinction between the avoidance and evasion of sales tax. I have already said that it has not been established that the Magistrate failed to observe that distinction. This passage from his reasons is an apposite example of a statement which is explicable by reference to 13. certain of the possible constructions of the relevant events which relate to the charges. If, for example, what I described as the third or fourth possibility is open on the evidence as a legitimate analysis of the facts on which a jury could convict the appellant on any of the three charqges, the Magistrate's statements in the paragraph under attack are explicable and not shown to be in error. If the appellant intended the scheme to be a sham and thus to deceive the Commissioner in the hope that he would not discover the sale by the wholesaler to company A (the third possibility) then the Magistrate's statement is not incorrect because the intent of the appellant would then have been that sales tax would not be paid. If the appellant hoped that the scheme would successfully avoid the payment of sales tax by anybody but intended that. if the hope be unfulfilled, then company C would be liable for the tax and the Commissioner would whistle for his money because company C was a company of straw (the fourth possibility), then a jury may find that the appellant's intent as promoter of the scheme was that sales tax would not be paid. The scheme may then be a blend of avoidance and evasion. The Magistrate may have concluded that a jurv could find either of these two possibilities was the fact; hence his statement in the impugned paragraphs. Again I must emphasize that the Maqistrate did not state all matters of fact relevant to his findings. Nor is he open to criticism on this account. But in order to test the soundness of the appellant's submissions I find 1t helpful, indeed, necessarv, to examine the possible alternative findings which may have been present to the Magistrate's mind on the material before him. That 14. material, to which we were directed by the parties in arqument,. leaves at least the four possibilities to which I referred earlier open to the maqistrate. Whether he accepted any of those possibilities. or others for that matter, as being available on the evidence. was a matter for hin. Plainly he must have rejected any innocent explanation on the evidence as it stood at 29 April 1983, so he could not have accepted what I have described as the first and second possibilities. The appellant submitted that the Maqistrate fell into error when he said in the early part of his reasons for decision: "A strong or probable presumption of quilt appears to be established by evidence or circumstances that point to the commission of a crime and to the accused persons as the criminals, which circumstances are not completely explained and cleared up by the evidence of the accused." (See Irvines Justices of the Peace 2nd Edition pp. 41-42) The essence of the criticism of this statement by the Magistrate was that it demonstrates, so it was asserted, that he applied an inappropriate test namely, that in committal proceedings an onus lies upon the defendant to establish by his evidence that circumstances in the prosecution's case which point to his complicity in the crime with which he has been charged have an innocent explanation. 15. The passaqe from Irvine's Justices extracted by the magistrate is perhaps not entirely appropriate for the stage of committal proceedings which had been reached in the present case before the decisions under review were made. Although the word "completely" is accurately cited from Irvine's Justices it is, I think, an unhappy expression. This passage from the Maqistrate's reasons is followed by the following two paragraphs:- "I think it also follows from a decision in Re Roberts (1967), W.L.R. at 474 that an accused person should be discharged where no reasonable jury could convict on the present state of the evidence. However, it should be remembered that this court 1s not required to determine the guilt or innocence of each of the defendants but has the task of determining whether or not there is sufficient evidence to warrant sending the accused persons for trial before a jury." In my opinion. when the impugned passage is read in the context of these two succeeding paragraphs and the Maqistrate's reasons as a whole. it has not been established that the Magistrate fell into error bv applying the wrong test. Smithers J. said at p. 18 of his reasons for judgment in relation to the same submission: "It appears to me, however, that the Magistrate is to be understood as saying that, where the question whether there is a strong or probable presumption of guilt arises for decision, an affirmative answer may be given where the evidence of the prosecution or the circumstances point to the commission of a crime by the accused unless the implication of the accused in the crime arising from such evidence or 16. f circumstances 1s explained away by evidence of, or , called by, the accused. The word 'completely' in the passage under discussion is inaptly included. The ultimate question would not be whether the evidence for the accused completely rebutted the ' implication of the accused arising from the evidence of the Crown, but whether it so weakened that implication that it could no longer be said to be sufficient either to require that the accused be put upon his trial or to support the existence of a strong or probable presumption of quilt. Reading the reasons as a whole I am not persuaded that the Magistrate did not so understand the problem before hin." I agree with his Honour's statements. The next statement of the Magistrate attacked by the appellant is in paragraph numbered 3 in his reasons which relates to the charge of conspiracy to defraud the Commonwealth where the Magistrate said: "Some attempt has been made by the defence to \ suagest that they were entitled to rely on the ' Opinion of Mr. Forsyth Q.C. and an Advice froma i] firm of solicitors, i.e. Messrs. Stone James & Co.. I am not exactly sure how this arqument is put, or, ; how such reliance would provide a defence. | Nevertheless I should point out that those persons ' expressly stated that they were not advising as to | the sales tax liability (or by inference the | criminal liability) of A Band Cc. I would have ! thought it was abundantly clear to each of the ' defendants who had read the Advice that they could | not rely on it to provide a defence without first ' satisfying themselves of the legal effectiveness of | A, Band C." (p. 7) i] ' The appellant challenged this passage on two qrounds. .First, it was said that the Magistrate erred in finding that the onlv relevance of any reliance by the appellant and the other defendants upon the advices of Mr. Forsyth 9.C. and Messrs. Stone James & Co. was 17. by way of defence to the charge of conspiracy to defraud; whereas, in truth, it is for the prosecution to negative any innocent intent on the part of the appellant and the other defendants by reliance on the advices of the lawvers. Obviously it would be relevant to the appellant's defence that he relied, if in fact he did. on those advices. On a fair reading of this passage from the Maqistrate's reasons I do not think, however, that he can be taken to have erred in the respect suqgested by the appellant. As I read the passage the Magistrate said that he did not know at the stage of the case which had then heen reached how the appellant would put his case of reliance upon the advices from the lawyers or how, as he then understood the facts. a defence would be afforded by reliance upon them. The Magistrate had not then heard from the appellant or the other defendants. In my opinion, the passage to which the appellant's complaint 1s addressed is not reasonably susceptible of the construction contended for by the appellant namely, that the Magistrate excluded as an element in the prosecution's case the necessity for it to neaative any innocent intent by reliance on the advices. The Macistrate was not addressing himself to that question. He was simply dealing with a submission apparently made to him by counsel for the defence. The second ground of attack was that the Magistrate was said to have misconstrued the advices. He construed the advices as expressly stating that the lawyers did not advise with respect to the 18. liability for sales tax of companies A, Bor C. This is, perhaps, an oversimplification of the effect upon a reader of the advices. I think that someone reading all the advices in evidence hefore the Magistrate would conclude, not only that the lawvers had advised that the wholesaler and the retailer would not be liable for sales tax if the scheme were implemented, but that it was reasonably arquable that mone of companies A, B or C would be liable for sales tax provided that the cautionary note sounded by Mr. Forsvth in his Opinion of 7 November 1980 was observed, namely:- "Great care must be taken to dot the 1's and cross the t's at all points." I think it 1s perhaps an overstatement to say, as the Magistrate did, that the appellant and the other defendants could not rely on the advices of the solicitors to provide a defence "without first satisfving themselves of the leqal effectiveness of A, B and C". 1f he meant by that statement that advice would first have to be obtained by anyone seeking to implement the scheme from his own lawyers about the liability for sales tax of company A, Bor C. I have no doubt that it was intended by Baker and the promoters of the scheme that the advices would be widely circulated amond potential "purchasers" of the scheme whose unterest would be enlivened, more bv subtle nuances, than by any dispassionate literal interpretation of the language used in then. However, the oversimplification and overstatement to which I have referred has not been shown to have led 19. the Magistrate into any relevant error. He was simply criticising in advance a foreshadowed defence of the appellant and the other defendants. It was then submitted by the appellant that the Magistrate erred in finding: "The case involving each of the defendants before me has no bearing on the principles that were expressed 1n" the judgment of the Court of Appeal of New South Wales in R. v. Cahill (1978) 2 N.S.W. L.R. 453." It was submitted that Cahill's Case bore directly on the questions before the magistrate. It was common ground before us that Cahill's Case is the only reported judament dealing with para. 86(1)(b) of the Crimes Act. In that case s1x persons had been convicted ata trial before a District Court Judge anda jury of conspiracy to prevent the enforcement of the Migration Act 1958 contrary to para. 86(1)(b) or (d) of the Crimes Act. The matter came before the Court of Appeal of New South Wales upon a case stated by the learned trial Judge pursuant to s. 72 of the Judiciacy Act. The Court of Appeal considered the construction of para. 86(1)(b), but not un the context of committal proceedings before magistrates. Also. Cahill's Case concerned an alleged conspiracy of a very different kind from the conspiracy asserted here. I think 1t would be an unfair construction of that paragraph of the Magistrate's reasons challended by the appellant in the present submission to say that he there regarded the observations of the members of the Court of Appeal in Cahill's Case relating to para. 86(1)(b) as irrelevant to the case in 20. x hand. He simply distinguished the two cases hecause of the absence of any community of fact. These were the submissions of the appellant. I reject them. It is unnecessary therefore to consider whether the Court should exercise 1ts discretion to qrant relief under the Judicial Review Act. However, I said earlier that residual discretion still remains in the Court notwithstanding that the statutory pre-conditions for the grant of relief under the Judicial Review Act may have been established ina particular case. In acase like the present one, involving the decisions of a magistrate made in the course of committal proceedings still pending, it is only in exceptional circumstances that the Court will intervene. I prefer to express no view on the question whether exceptional circumstances exist in the present case sufficient to warrant intervention by this Court. I would dismiss the appeal with costs. { certify that this and the '4 preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice A CB Associate Dated 27% OcretGe,, GFF ' GENERAL DIVISION Ik "THE FEDERAL COURT OF AUS No. VG.191 of 1984 29 oct 1984 weey SN aw "7 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN : JOHN FRANCIS EDWARDS Appellant AND 3 IAN VON EINEM S.M. and ROBERT RICHARD McDONALD Respondents REASONS FOR JUDGMENT CORAM : Sweeney, Davies and Lockhart Jd 12 October 1984 DAVIES, J : This is an appeal from a judgment of a single Judge of this Court dismissing an application to review a decision of a Stipendiary Magistrate made in the course of, committal proceedings. The appellant, John Francis Edwards, had been charged with three offences : (i) conspiring with other persons to defraud the Commonwealth contrary to s.86(1)(e) of the Crimes Act 1914 (Cth); (ii) conspiring with other persons to prevent or defeat the execution or enforcement of a law of the Commonwealth, namely, 3.9 of the Sales Tax Assessment Act (No.3) 1930 (Cth) contrary to s.86(1)(b) of the Crimes 1914 (Cth); + (111) conspiring with other persons to prevent or @Gefeat the execution or-venforcement of a law ef the Commonwealth, namely, s.9 of the Sales Tax Assessment Act (No.7) 1930 (Cth) contrary to s.86(1){(b) of the Crimes Act 1914 (Cth). Pursuant to s.68 of the Judiciary Act 1903 (Cth), the Magistrates (Summary Proceedings) Act 1975 (Victoria) applied to the proceedings for the committal of Mr Edwards. Section 56 of that Act provides that, after the evidence for the prosecution is concluded, the Justice before whom the accused person is brought shall, if the evidence is not sufficient to put the accused person on his trial for any indictable offence, order him to be discharged out of custody or, if in the opinion of the Justice, the evidence is sufficient to put the accused person upon his trial for the indictable offence with which he is charged or if the evidence given for the prosecution raises a strong or probable presumption of the guilt of the accused person, read the charge to him again and advise him in the terms set out in s.56(1)(b) of his right to plead and caution him in the terms set cut in that paragraph. At the conclusion of the prosecution evidence, the learned Stipendiary Magistrate found that there was sufficient evidence to place the accused persons, including Mr Edwards, upon their trial and he proceeded to read the charges and to warn the accused in the terms provided by s.56(1)(b). That was the decision under review. By the decision, the learned Stipendiary Magistrate did not commit Mr Edwards for trial for Mr Edwards was then entitled to elect whether or not to call evidence. See s.59 { ' 3. oi. the Magistrates (Summary Proceedings) Act 1975 (Victoria). That election has not yet been made. The facts which gave rise to the committal proceedings may be simply stated. A Mr Baker conceived a scheme for the non-payment of sales tax. Under the scheme, a wholesaler who would ordinarily have sold goods to a retailer and would have paid sales ,tax upon those sales was to sell the goods to a new entity "A", which was to be a registered wholesaler and was to quote its certificate thus rendering the wholesaler not liable to sales tax, there were to be further transactions between entity "A", entity "B" and entity "C" and finally entity "C" was to sell the goods to the retailer. An opinion was obtained from Stone James & Co, solicitors, which included the following advice ; "... You have not asked us to advise you on the prospects of success of your proposals in relation to A, Band C; nevertheless it is our view that they have iegal merit and could be accepted by a Court." "If a court decides that sales tax liability does arise in the subject transactions, the tax will be payable by A, BorcC, ..." "The position is that you appear to have an arguable case that- A, B and C have no legal liability to pay sales tax." A further opinion was obtained froma Mr N.M. Forsyth, OC, who specialised in taxation advice. He advised, inter alia ; ",..in my opinion neither the Retailer nor Wholesaler will incur any liability." "That the scheme proposed would be unlawful only if there were deliberate concealment or non-disclosure in circumstances in waich the law required disclosure to be made." Mr Baker published this statement : "That I undertake to 'Wholesaler' and 'Retailer' to pay any sales tax assessed to A, B or C, providing 4. , that the assessment is upheld upon final appeal,- and providing that A, B or C do not pay the amoult assessed." , Mr Edwards was one of a number of persons who promoted this sales tax scheme. Several organisations undertook the scheme and sales tax which would ordinarily have been paid by wholesalers was not paid. Indeed, if the wholesalers validly transferred the goods to entity "A" which quoted its certificate, the wholesaler was under no liability to pa} sales tax upon its sales. Nor was the retailer under any liability to pay sales tax. However, the prosecution alleged that it was a necessary consequence of the scheme, if implemented, that liability to pay sales tax would fall upon either the wholesaler or entity "A" or entity "C", that . it was apart of the scheme that no sales tax return would be lodged in respect of the sales and that it was a further consequence of the scheme, if implemented, that, as the goods would be sold by these entities without sales tax being charged and collected, no entity would be in a financial position to pay the sales tax if called upon todoso by the Commissioner of Taxation. It was alleged by the prosecution that the Commonwealth would be and was thereby defrauded. I turn first to the conspiracy to defraud. It was necessary that the prosecution show : {a) that there was a scheme which, if put into effect, would defraud the Commonwealth; (b) that Mr Edwards entered into an agreement or arrangement to put that plan into effect; and (c) that in entering into that agreement or arrangement, Mr Edwards had the necessary mens rea or guilty mind. a 5. With respect to (a), it was necessary for the prosecution to prove that the plan, if given effect, would impose liability for sales tax upon the wholesaler or upon one of the entities "one, "B" or "C". Unless the wholesaler or entities "A", "B" or "C" would be liable to pay sales tax, the Commonwealth of Australia would not be defrauded and the plan could not have been a plan to defraud the Commonwealth. Moreover, the prosecution had to show, that the plan intended there would not be payment of that liability or that in some manner the scheme put that payment at risk. In this last respect, I simply note that the three principal elements to be considered were : (i) the fact that it was unlikely that the wholesaler or entities "A", "B' or "C" would readily he able to Meet any liability, for in their transactions they did not charge or receive sales tax or its equivalent and therefore would not have had the funds to make a Payment; (ii) the existence of the statement made by Mr Baker to promoters of the scheme and to participants that, if "A", "B" or "C" were unable to meet any sales tax for which they were ultimately found liable, he would pay that liability; and (iii) the extent to which it was planned as part of the scheme that the wholesaler and entities "A", "B" and "C" would not disclose their transactions to the Commissioner of Taxation. With respect to (b), I need make only two observations. The first is that there may be a distinction between the scheme which Mr Edwards assisted to promote and the manner of its implementation. If anumber of persons agree to implement a lawful scheme, those persons do not become unlawful conspirators merely because, in the implementation of the scheme,, steps are 6. , taken which are, in fact, unlawful. The second is that care must be taken with the application of the principle that it is not necessary that each conspirator should know the whole of the scheme or design provided that there is a conscious understanding of a common design. It is not sufficient to prove that an accused knew or believed that his actions were to form part of a larger scheme. He would not be guilty of a criminal conspiracy unless he was aware of the essential elements which rendered the scheme unlawful. As to (c), I would simply refer to the remarks of Viscount Dilhorne, with whom the other Law Lords agreed, in R v Churchill (19673 2 AC 224 at 237, where his Lordship said : "In cases of this kind, it is desirable to avoid the use of the phrase 'mens rea,' which is capable of different meanings, and to concentrate on the terms or effect of the agreement made by the alleged conspirators. The question is, 'What did they agree to do?' If what they agreed to do was, on the facts known to them, an unlawful act, they are guilty of conspiracy and cannot excuse themselves by saying that, owing to their ignorance of the law, they did not realise that such an act waS a crime. If, on the facts known to them, what they agreed to do was lawful, they are not rendered artificially guilty by the existence of other facts, not known to then, giving a different and criminal quality to the act agreed upon.", and to Rv Kamara £19741] AC 104 at 119-20, where Lord Hailsham said, inter alia, "(1) It ais common ground that the actus reus ina conspiracy is the agreement to execute the illecai conduct, and not the execution of it. The crime is complete when the agreement is made. This proposition, first decided in 1610 in the Poulterers' Case (1610) 9 Co.Rep.55b, is too familiar to require further authority. (2) In spite of this, mens rea is an essential ingredient in the crime of conspiracy. This mens rea consists in the intention to execute the 7. illegal elements in the conduct contemplated by the agreement, in the knowledge of those facts which render the conduct illegal, cf. Req. v Churchill (No.2) £19673 2 AC 224. (3) It seems fairly clear that while a mistake of law is not a good defence, a sincere belief ina state of facts which- if true would render the illegal conduct legal would be a good answer to any charge of conspiracy. For instance, if conspiracy to trespass be a crime, belief ina state of facts which would give rise to an enforceable right of way would be a defence. Equally, it would bea defence toa charge of conspiracy to defame by the publication of defamatory matter that the accused genuinely and without express malice believed in facts which would establish a privilege. On general principles in alli these cases the burden would rest on the prosecution to exclude these defences, which I will describe as a claim of right made in good faith." , The prosecution was therefore bound to prove an agreement + to commit an offence, but-was not bound to prove that the persons entering into the agreement had knowledge of the illegality of the act agreed to be done. I now turn to the reasons cGelivered by the learned Stipendiary Magistrate. One aspect of those reasons challenged was the statement ;: "It should of course be realised that these proceedings are at this stage governed by section 56(1)(b) of the Magistrates (Summary Proceedings) Act. This section provides the criteria to be applied by a court when considering whether or not an accused person should be cautioned, i.e. - (i) whether the evidence is sufficient to put the accused person upon his trial for the indictable offence with which he is charged; or (ii) aif the evidence given by the prosecution raises a strong or probable presumption of the guilt of the accused person in respect 8. - to that charge. A strong or probable presumption of guilt appears to be established by evidence or circumstances that point to the commission of a crime, and to the accused persons as the criminals, which circumstances are not completely explained and Cleared up by the evidence of the accused. (See Irvine's Justices of the Peace 2nd Edition pp.41-42)." On this aspect, I agree with the view of the learned trial Judge, who said : "Considerable emphasis was placed on the final adjectival clause. It was said that its preserce indicated that the magistrate's view was that the necessary strong or probable presumption of guilt was established where evidence or circumstances pointed to the commission of acrime by the accused, no matter how waveringly, unless the implication of the accused arising therefrom was completely negatived by evidence of, or called by, the accused. It appears to me, however, that the Magistrate is to be understood as saying that, where the question whether there is a strong or probable presumption of guilt arises for decisicn, an affirmative answer may be given where the evidence of the prosecution or the circumstances point to the commission of a crime by the accused unless the implication of the accused in the crime arising from such evidence or circumstances is explained away by evidence of, or called by, the accused. The word 'completely' in the passage under discussion is inaptiy included. The ultimate question would not be whether the evidence for the accused completely rebutted the implication of the accused arising from the evidence of the Crown, but whether it so weakened that implication that it could no longer be said to be sufficient either to require that the accused be put upon his trial or to support the existence of a strong or probable presumption of guilt. Reading the reasons as a whole I am rot persuaded that the Magistrate did not so understand the problem before him." (at pp.1i7-18 reasons for decision) However, I take a different view from that of the learned trial Judge with respect to a passage of the reasons of the learned Stipendiary Magistrate which reads : 9. "The evidence in this case as it presently stands shows -that each of the defendants agreed to promote a scheme whereby sales tax would not be paid. Whether the scheme involved an avoidance or an evasion of sales tax is in my view irrelevant. The question is whether the non-payment of sales tax was unlawful. In my view, such non payment of sales tax was acliear breach of the Sales Tax Assessment Acts. It has been correctly concluded by both defence counsel who made submissions to me that a defendant cannot excuse himself by saying that owing to his ignorance of the law he did not realise such an act was unlawful." The learned trial Judge found justification for these statements, which go to the heart of the matter, but I am unable to do so. In my opinion, the view that whether the scheme involved an avoidance or an evasion of sales tax was irrelevant was wrong. If the scheme involved avoidance of sales tax, then it was a lawful, for then neither the wholesaler nor entities "A", "B" or "C" would be liable to pay sales tax and the Commonwealth would not be defrauded. And the statement "...such non payment of sales tax was a clear breach of the Sales Tax Assessment Acts" did not indicate in any useful way which of the wholesaler or entities "A", "B" or "C" was liable to pay sales tax or why. I thus cannot determine from the reasons of the learned Stipendiary Magistrate what were the elements of conspiracy to defraud which he found to be proved. Indeed, if the learned Stipendiary Magistrate approached the matter on the basis that there was no distinction between avoidance of tax, which is lawful, and evasion of tax, which is not, then he was in error. There are other aspects of the reasons delivered by the 10. learned Stipendiary Magistrate which also give concern. The learned Stipendiary Magistrate said : ".,.I believe there is a strong inference that the majority if not ail of the transactions were a sham. ...' I pass over the point that it would be unusual if the majority of the steps implemented were just a sham. The material question is whether Mr Edwards entered into an arrangement to implement sham transactions. The learned Stipendiary Magistrate did not discuss this. The learned Stipendiary Magistrate further said : "Some attempt has been made by the defence to suggest that they were entitled to rely on the opinion of Mr. Forsyth Q.C. and an advice froma Perth firm of solicitors, i.e. Messrs Stone James & Co. Iam not exactly sure how this argument is put, or, how such reliance would provide a defence. ..." Yet, the existence of those advices was relevant to the nature of the arrangement intc which Mr Edwards entered. One could not determine his guilt of criminal conspiracy without taking into account his reliance, if any, upon those advices. The learned Stipendiary Magistrate further said : "... Nevertheless I should point out that those persons expressly stated that they were not advising as to the sales tax liability (or by inference the criminal liability) of A B and C." Yet, the advice of Stone James & Co expressly proffered advice on the subject of the tax liability of entities "A", "B° and "C" and the advice of Mr Forsyth, QC, discussed questions of criminal liability. Those opinions were relevant matters to take into account. Pe ll. The learned Stipendiary Magistrate further said : "... The overall question in conspiracies of this kind is not whether the number of persons have a common unlawful purpose but whether any of them either knows or has reason to believe that his activities are part of a larger design." In my opinion, it is not sufficient that a person should know or have reason to believe that his activities are part of a larger scheme. He would not be guilty of a criminal conspiracy unless he were aware of the essential facts that made the design uniawful. The learned Stipendiary Magistrate stated, inter alia : "Insofar as the charge of conspiracy to defraud the Commonwealth is concerned, it has been put to me that I could not be satisfied that such a charge 'was open because no element of dishonesty or ~deceit was present. Mr. Smith referred me toa decision of Wellham reported in 1961 Appeal Cases 103 and also the latest addition of Archbald whereby it is said that to defraud is 'dishonestly to prejudice or take the risk of prejudicing anothers right, knowing that you have no right to do so'. Mr. Judd has referred me to a Court of Appeal decision of R.v. Landy which is reported at (1981) 1 WLR p 355 where it was said - at page 365 'What the prosecution had to prove was a conspiracy to defraud which is an agreement dishonestly todo something which will or may cause loss or prejudice to another. The offence is one of dishonesty.' Mr. Walker, one of Her Majesty's Counsel, who with Mr. Burnside appear for the informant also referred me to the same page of this decision where it was said : 'But if the jury, applying their own notions of what is honest and what is not, conclude that he could not have believed that he was acting honestly, then the element of dishonesty will have been established'. His Honour also -said that it would be permissible for the jury to say : 12. ° 'We are sure he was acting dishonestiy because we can see no reason why a man of, his intelligence and experience would not have appreciated, as right minded people would have done, that what he was doing was dishonest.' I have come to the firm conclusion that if I were to apply any of these tests and in particular the last, there is a strong or probable presumption that the element of dishonesty has been Satisfied. I therefore find that there is sufficient evidence to place the accused persons upon their trial." However, the learned Stipendiary Magistrate did not identify the element of dishonesty involved. Presumably, one goes back to the earlier statement that "such non payment of sales tax was a clear breach of the Sales Tax Assessment Acts". Nevertheless, the learned Stipendiary Magistrate did not, as I have mentioned, make it clear what acts agreed upon by the accused were a clear breach, or even a breach, of the Sales Tax legistiation. I turn now to the alleged conspiracies to prevent or defeat the execution or enforcement of laws of the Commonweaith, namely, s.9 of the Sales Tax Assessment Act (No.3) 1930 (Cth) and s.9 of the Sales Tax Assessment Act (No.7) 1930 (Cth). The former section reads : "9, Every person liable to pay tax under section 5 upon the sale value of any goods sold by hin during any month shall, within twenty-one days after the close of that month, pay sales tax on that sale value." The latter is in similar terms. In the circumstances of the present case, it was necessary for the prosecution to establish a conspiracy to prevent or defraud the operation of either of the above sections. It was therefore necessary to establish an arrangement whereby a person 23. liable to pay sales tax would not comply with the provisions of the relevant section, that is to say, an arrangement whereby the wholesaler or entities "A", "B" or "C" would become liable to sales tax but would not iodge sales tax returns. The learned Stipendiary Magistrate's reasons were equivocal on this aspect. Nevertheless, the question arises whether the decision under review should be set aside at this stage. In Lamb v Moss (1983) 49 ALR 533 it was held that committal proceedings for Federal offences were proceedings of an administrative nature and, being authorised by s.68 of the Judiciary Act 1903 (Cth), were subject to the Administrative Decisions (Judicial Review) Act 1977 (Cth). It was said in Lamb v Moss, at p.546 ; "It ais sufficient, for immediate purposes, to observe that there is a considerable body of authoritative judicial opinion that exceptional circumstances will generally be required before a superior court will consider interfering in committal proceedings, particularly at an interlocutory stage. Failure to permit criminal proceedings to follow their ordinary course will, in the absence of special circumstances, constitute an error of principle, as Gibbs CJ pointed out in Sankey v Whitlam, (1978) 142 CLR 1 at p.26." Although the subject committal proceedings have passed the stage considered in Lamb v Moss, or Sankey v Whitlam (1978) 142 CLR 1, the learned Stipendiary Magistrate has not committed Mr Edwards for trial. He has heard the prosecution evidence and, pursuant to s.56 of the Magistrates (Summary Proceedings) Act, has found that that evidence has established a sufficient case for 14. ' committal. The reasons given for his doing so0 do not make it clear to one what were the elements of the crimes he found to be _ proved. Is this a proper case for the Court to interfere? On the whole, I think that there are good reasons for not interfering at this stage. Although the learned Stipendiary Magistrate has stated reasons for his decision, he has properly not referred in detail to the facts lest, in doing so, he should prejudice the continuation of the committal proceedings or the trial, should the accused be committed. The principle so applied has not been affected by the Administrative Decisions (Judicial Review) Act 1977 (Cth), except to the extent tha: a request for reasons may be made pursuant to s.13. A committal decision, therefore, should not readily be set aside Decause of an ambiguity appearing in the reasons stated. Furthermore, the decision under review is nota final decision of committal. Mr Edwards may yet give evidence. His evidence may throw a different light upon the evidence already given to the learned Stipendiary Magistrate. Lastly, the appeal has been argued on only a limited basis. On the appeal, the Court has not been asked to review the evidence given or to determine that, on the evidence given, the learned Stipendiary Magistrate could 'not have come to the decision which he did. Therefore, the Court cannot express any opinion in relation to that. In these circumstances, I am of the view that the Court oo 15. should apply the principle stated in the passage from Lamb v Moss which is set out above and the stricture of Gibbs ACJ in Sankey v Whitlam, cited above, at p.26, that, ",.. Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order. ..."" I would therefore dismiss the appeal. I join with colleagues in the orders proposed. I certify that this and the I4- preceding pages ore a true copy of the reasons for judgment herein of The Honour- able Mr. Justice I. 8. Squier Associate Dated ////0/8# Efeh{ao— my a FEDERAL COURT 03-674965 » ¢ i, . IN THE FEDERAL COURT OF AUSTRALIA No. VG 191 of 1984 ) ) VICTORIAN REGISTRY ) GENERAL DIVISTON ) BETWEEN + JOHN FRANCIS EDWARDS Appellant AND; IAN VON EINEM and ROBERT RICHARD McDONALD Respondents CORAM: SWEENEY, DAVIES & LOCKHART JJ. 12 OCTOBER 1984 REASONS FOR JUDGMENT LOCKHART J. This is another invocation of the Administrative Decisions (Judicial) Review Act 1977 ("the Judicial Review Act") by a person charged with an indictable offence for the purpose of quashind contemporaneous proceedings for his committal. The path for taking this course was laid by a Pull Court of this Court in Uamb v. Moss (1983) 49 A.L.R. 533. But it cannot be emphasised too strongly that Lamb v. Moss. although bringing within the scope of the Judicial Review Act a very wide range of decisions. stressed that the discretion to grant relief in respect of committal proceedings should be exercised only in exceptional circumstances. especially where the decision under review was made in the course of those proceedings (p. 546). Lamb v. Moss is also authority for the proposition that this FEDERHL CUURT Go-674965 TEL No. 17,03,88 14:41 P.18 a! ' epee = "SIE . . te Sa - events " ml o . "= SERENE MRR Qos 'wW . ' Court's discretion to refuse telief in proceedings under the Judicial Review Act may ba exercised notwithstanding that the statutory pre-conditions to the grant of relief have been satisfied. The araument before us proceeded on the assumption that Lamb v. Moss was correctly decided and governed the present appeal, In the committal proceedings from which this case arises the prosecution alleqes that the appellant and others were parties to a conspiracy to defraud the Revenue of larqe amounts of sales tax by means of an elaborate scheme promoted throuchout Australia and adopted by many people during the period 1979 to 1982, On 11 April 1983 the appellant was charged in the Maqistrates' Court at Melbourne with the following three offences:- (a) That he, at Melbourne, Perth. Sydney and other places, between 1 duly 1979 and 18 March 1982. conspired with Steven John Baker, William Leaver, Peta Joy Fisher, Collin Halley Coqhill. fan Grant. Ian David Stafford Collie and other persons to defraud the Commonwealth contrary to para. 86(1)(e) of the Crimes Act 1914 ("the Crimes Act"}; (b) That he, at the same times and places. conspired with the same people to prevent or defeat the execution or enforcement of s.9 of the Sales Tax Assessment Act (No. 3) 1930 contrary to para. 86(1)(b) of the Crimes Act; and FEDERHL COURT US—-Brages | TEL No. 1?,US,08 Ildidl Poly peeree wo Fike = ee ee TK illeediidran | a idieeeral AD! oe aoe . we ~ (ce) That he, at the same times and places, conspired with the same people to prevent or defeat the execution or enforcement of s.9 of the Sales Tax Assessment Act (No. 7) 1930 contrary to para. 86(1)(b) of the Crimes Act. Similar charges were laid against other alleaed conspirators including Grant and Collie. The informant in each case was the second respondent who is an officer of the Australian Federal Police. The proceedings were heard by the first respondent. a Stipendiarv Magistrate ("the Magistrate"), and were by way of preliminary examination conducted pursuant to sub-3.56(1) of the Macqistrates' (Summary Proceedings) Act (1975) ("the Summary Proceedings Act") and 3.68 of the Judiciary Act 1903 ("the Judiciary Act"). At the concluston of the prosecution's case the Magistrate was required by paras. S56(1)(ab and (b) of the Summary Proceedings Act to:~ "(al Tf the evidence was not sufficient in his opinion to put the accused person on his trial for an indictable offence - order him to be discharaed out of custody as to the information then under enquiry; or (b) Tf£ in his opinion the evidence was sufficient to put the accused upon his trial for the indictable offence with which he was charged or if. in his opinion the evidence given for the prosecution varsed a strona or probable presumption of quilt of the accused person in respect of that charqe, read the charge to him aqain and say to him the words rEDERHL LUUR I Uor-br4yb5 f—eL No. . . lr,Uo.8sd L4.42 P.20 Sos set forth in paragraph 56(1)(b) of the Summary ¢ Proceedings Act and call upon him to plead quilty or not quilty as the case may be. On 27 April 1983, after the conclusion of the evidence for the prosecution, the appellant and Coghill submitted to the Magistrate:- "(a) That the evidence before him was not sufficient to put them upon trial; (b} That the evidence before him did not constitute a prima facie case aqainst them or raise a strong or probable presumption of their quilt such as to permit the Magistrate to put them upon their trial; and (c) That the appellant and Coghill ought to be discharged out of custedy in respect of the information then before hin." Grant made no submissions and as vet has called no evidence. Collie made no submissions, but he gave evidence before the Magistrate. After hearing the: appellant and Coqhill the Magistrate gave veasons for judament on 29 April 1983 which were applicable to all the accused. including the appellant. The Magistrate, having formed the opinion that the evidence was sutficient to put the appellant and the other accused upon their trial and Chat there was a strong or probable presumption of their quilt, did not discharae them. He proceeded to caution the accused, including the appellant, in terms of para, 56(1)(b) of the Summary Proceeding Act and they were called upon to plead to the charges. Each of the accused, including the appellant, announced a4 plea of "not quilty"" to each of the charaes, FOVERNL CUURI YoTeIssud fckh Wu, bt syragd bo c yess +8 erp Pe ey - '<4 - ise of St Seo SOR ATE i SQ F tts cotes ~ MoE Ee 7 . rth "iii sa He if Cat eer ae ere a elie 4, 4% . - ' . On 2 May 1983 the appellant filed an application in this Court for an order of review of the Maaistrate's decision that there was at the close of the prosecution's case sufficient evidence to place the appellant upon his trial in respect of each of the three charges against him and that there was a case to answer by the appellant in respect of each of those charges, Similar applications were filed by Grant and Collie. The applications were heard by Smithers J. who dismissed them and reserved costs, The appellant appealed to a Full Court of this Court from his Honour's judgment. One of the difficulties inherent in applications pursuant to the Judicial Review Act which seek to challenge decisions of magistrates in committal proceedings is that, in my experience, they often involve this Court being asked to consider a large bodv of evidence adduced before the magistrate, both oral and documentarv, Further. ttore often than not. the matters are said to be urgent since the committal proceedings are still in progress, Counsel and solicitors are usuallv instructed at short notice and have onlv a general famillarity with the matters, This 4s not said critically, Indeed, from my observation. they have conducted matters well in view of the difficulties that necessarily attend short notice and a larae volume of material. However, as I observed in Fermia v. Hand (19 April 1984, unreported) much of the material before this Court consists of statements from the Bar table concerning what had happened before the magistrate. from which it is net always easy to distinguish between fact and argument, 'These and other difficulties attend the determination of cases such as the present in consequence of the fact '-_— ~~ Pee rk Lire t4+eou Meee . ., " . STE are e 4 Bi ce als at aa h} + . that decisions of maqistrates made in committal proceedings are . susceptible of review under the Judicial Review Act. These matters necessarily place constraints upon the Court when considering the review of decisions of madistrates made in these circumstances. The Court frequently feels that a complete and accurate picture of the committal proceedings is not before it. These and other considerations lend force to the view, expressed in Lamb v. Moss, that a superior court will consider interfering in committal proceedinas only in exceptional circumstances, especially when those proceedinas have not concluded. The difficulties to which I have referred were manifest in the present appeal. The committal proceedings, at least to 29 April 1983, involved a large volume of evidence including hundreds of pages ef transcript and multitudinous exhibits. We were told from the Bar table that there were 272 statements of witnesses and that evidence had been given by 50 witnesses. We were referred to a small portion Oonlv of this evidence in araqument. Indeed. counsel for the appellant recognised these difficulties and contined his attack upon the decision of the Maqdistrate essentially to errors of law which were said to be apparent on the face of his reasons for the decisions under review, Before turning to the submissions of the parties it is desirable to summarise the principal features of the scheme for avoidance or evaston (the distinction between the two has become somewhat blurred in recent years) of sales tax involved in the present POUCRHL LUURKi Vorbr4yom eb Wo. ' vy LesUsroD 44-44 Peco ¢ 2 ra ROE aiak er . - 8 aE nat OLS LED Ms zsh » an proceedings. I must emphasize, however, that my summary is essentially taken from what, as I understand it, was the case for the prosecution hefore the Magistrate. A Mr. Saker conceived the scheme which was designed to eliminate the Viability for payment of sales tax by wholesalers of goods. Normally a manufacturer would sell his goods to a wholesaler who in turn would sell them to a retailer at a price which included sales tax. The retailer would then sell the cqoods to the public. Under the scheme three companies (A, B and C) were interposed between the wholesaler and the retailer. The wholesaler sold the qoods to company A which was reaistered as a wholesaler under the Sales Tax Assessment Act (No. 1) 1930 and which quoted its sales tax exemption number on purchases which it made from the wholesaler. Company A then transferred an undivided half interest in the qoods to company B. Company A then transferred the 'remaining half interest in the qoods to company C, Company B transferred its half interest in the qoods acquired from company A to company C. Company C then sold the qoods to the retailer who in turn sold them to the public. The invoice in respect of the sale bv company C to the retailer stated: "Prices include any sales tax payable". No sales tax was in fact included in the price of the qoods purchased by the retailer from company C. It seems that under the scheme company C did not register as a wholesaler under the Sales Tax _Assegsment Act (No. 1) 1930. The scheme proceeded on the assumption that. by severing the chain of title to the qoods hetween the wholesaler and the retaLller (through the interposition of companies A, B and C} sales tax would not be pavable by the wholesaler rEVERHL LULIKI Us-br4yo5 IEL Ho. lrsUss3d Ll4-dd Fea Lan eo. they emote ANNs Apa veaarer aes ar coast a Patan eo ; ' "EES SAU RE TE SN od Be eee 8 BEE os ee Loge > sor the retailer. The commercial benefit to be gained by the saving of gales tax would be enjoyed by the wholesaler who would be able to sell the qoods ultimately purchased by the retailer ata considerable aLscuunl, Other possible benefits to the wholasaler wera also envisaged by the scheme. The wholesaler was to remunerate the author and manager of the scheme. The whclesaler and retailer were not perhaps intended to know the precise nature of the transactions between the companies A. B and Cc. Tt may have been intended that the promoters of the scheme throughout Australia could rely on the assertion of Baker that the scheme would produce the result that sales tax would not be pavable by the wholesaler or the retailer and that there was an arquable case that companies A, B and C had no leqal ifability to pay the sales tax. Baker obtained leqal advice from Messrs. Stone. James & Co., solicitors, of Perth, to the effect that under the scheme, if implemented in accordance with the advice. "None of vou, A. B.C, wholesaler and retailer would be involved in a fraud". This advice was in substance confirmed by Mr. N.H.M. Forsvth 9.C.. These advices were all available to potential promoters of the scheme. Baker conceived and implemented the scheme. Collie and Grant were the main promoters of the scheme in Melbourne. Coaqhill promoted the scheme in Svdney, and he apparently operated as well from an office in Melbourne, where the appellant was employed. It is not clear to me how far the appellant was aware of the nature of the transactions between companies A, B and Cc. It appears that he was to be "EDERAL COURT 035-674965 TEL No. 17,035,838 14:45 P.25 . a ee - ' Sak ES ree: of RE RRL at i as a . : remunerated by commissions for his efforts in promoting the scheme. Notwithstanding that the scheme was implemented throuchout Australia From 1979 to 1982 on a arand scale, it is not clear to me to what extent the scheme, as implemented in practice. differed from the scheme as formulated by .Baker and others. T have read a copy of the submissions put to the Magistrate at the committal proceedings by counsel for the prosecution. TI have read, of course, the Magistrate's reasons for his decision presently under challenge, I must say that I have some difficulty understanding precisely how the Crown proposes to formulate its case aaqainst the appellant. Also, certain observations madé by the Magistrate in the course of his reasons obviously assume knowledae by him of facts or inferences or of submissions made to him by counsel for the defendants which are not mentioned by hin. I do not sucgest for a moment that the Magistrate was under any duty to specifically mention these matters in his reasons. Indeed, it is not surprising that he did not do so since the committal proceedings were at an intermediate staqe, But this illustrates again the 'difficulty faced by a superior court heaving an application for judicial review of decisions made hy magistrates in the course of complicated committal proceedings. The difficulty is plain enough for a trial judge but it is even greater for an appellate court. Various interpretations of the relevant events involved in the sales tax scheme before the Magistrate are possible. f hesitate to mention them because there may be other possibilities, especially EDERHL LUURI Uo-b. 4¥o5 IEL Wo. Li sUIsreo bed Fae aan e eyes as we were referred in argument to a small segment only of the evidence before the Maqistrate and not to the addresses of counsel for any of the defendants. But it is necessary to analyse the possibilities to understand the reasons for the Magistrate's decision and the submissions made to us cChallenqing that decision. The Magistrate's task was to consider and weigh all the evidence before him and to caution the appellant if he was of the opinion that there was a strona or probable presumption of quilt: see Armah v. The Government of Ghana (1968) A.C. 192 per Lord Reid at p.229. Various possible interpretations of the evidence were open to the Magistrate for his consideration. He was in a position to decide which of them, if any, he should accept. One possible construction of the facts is that the participants in the scheme intended that no sales tax would be payable by anybody and that the intervention of companies A, B and C would achieve that object. Tf so, and if the scheme had successfullv operated to achieve that object, there could be no question of any conspiracy to defraud the Commonwealth or to prevent or defeat the execution or enforcement of the sales tax leqislation. A second possibility is that the participants did not succeed in achieving that object so that sales tax was payable by one of the companies, perhaps the wholesaler or company C. A third possibility is that the role of companies A, B andc Was a sham, intended by the participants, or some of them. to mask FEDERAL COURT 03-674965 TEL No. _17;03;28 44:46 P 27 their real purpose of concealing from the Commissionez of Taxation, for as lona as possible, the liability of the wholesaler to sales tax, this concealment to be achieved by various means including the fact that company A quoted its sales tax exemption number on the sale by the wholesaler to it. A fourth possibility is that the participants may have intended the scheme to operate according to its tenor so that no sales tax would be payable by anybody, but thought that, at worst, if anyone were liable, it would be cottpany C on the basis that the transfer of the property in the goods to it from companies A and B was the last sale by wholesale. We were told from the Bar table that company C was a company of straw. Hence, it may be that the participants thoucht that in these circumstances all the Commissioner would find at the end of the day would be a valueless shell. Smithers gd. appears to have contemplated this last possibility in the closing stages of his reasons for judgment. As I said above, there may be other possibilities; but it is, I think, helpful to keep in mind the ones I have mentioned when considering the submissions of the appellant. Otherwise, one is bereft of knowledge of the background to and the course of the lengthy and complicated committal proceedings, thus making it difficult, if not impossible, to understand the reasons for the Magistrate's decision under review. ,-EDERAL COURT 03-674965 TEL Ho. : - 17?,M9,d3 1d:d¢ P.ze as veer Be tesog Gietx' es cdlime Eo enin Oras . T turn to the submissions of the appellant. It was submitted that the reasons for decision of the Magistrate reflect a fundamental misconception of the distinction between avoidance and evasion of tax or other imposts and that this misconception also permeates the whole of the prosecution's case aqainst the appellant. Whether this submission will be shown to be correct will emerge in due course if the committal proceedings continue or if the appellant is committed and stands trial. I am not persuaded. however, on the material to which we have been referred, of the soundness of this submission. More than one possible analysis of the circumstances mentioned by me earlier is inconsistent with the correctness of this submission. Also, there are references at more than one place in the Maqistrate's reasons for his decision which tend aqainst the correctness of the submission. It was next submitted by the appellant that the Maqistrate fell into error in finding: "The evidence in this case ag it presently stands shows that each of the defendants aareed to promote a scheme whereby sales tax would not be paid. Whether the scheme involved an avoidance or an evasion of sales tax ts in my view irrelevant." It was asserted that the second sentence in this passaqde demonstrates a failure by the Magistrate to appreciate the fundamental distinction between the avoidance and evasion of sales tax. It have already said that it has not been established that the Magistrate failed to observe that distinction, This passage from his reasons i3 an apposite example of a statement which is explicable by reference to 'FEDERAL COURT 03-674965 TEL Wo. 17,035,838 14:48 P.29 certain of the possible constructions of the relevant events which relate to the charges. If, for example, what I described as the third ' er fourth possibility is open on the evidence as a legitimate analysis of the facts on which 4 fury could convict the appellant on any of the three charaes, the Magistrate's statements in the paragraph under attack are explicable and not shown to be in error. If the appellant intended the scheme to be a sham and thus to deceive the Commissioner in the hope that he would not discover the sale by the wholesaler to company A (the third possibility) then the Magistrate's statement is not incorrect because the intent of the appellant would then have been that sales tax would not be paid. If the appellant hoped that the scheme would successfully avoid the payment of sales tax by anybody but intended that. if the hope be unfulfilled, then company C would be liable for the tax and the Commissioner would whistle for his money because company C was a company of straw (the fourth possibility), then a jury may find that the appellant's intent as promoter of the scheme was that sales tax would not be paid. The scheme may then be a Blend of avoidance and evasion. The Magistrate may have concluded that a jury could find either of these two possibilities was the fact: hence his statement in the impugned paragraphs. Aqain I must emphasize that the Magistrate did not state all matters of fact relevant to his findings. Nor is he Open to criticism on this account. But in order to test the soundness of the appellant's submissions I find it helpful, indeed, necessary, to examine the possible alternative findings which may have been present to the Magistrate's mind on the material before hin. That -EDEKHL LUURT Us-b: 4Yb5 JEL No. LfsUosod L4+4o0 Fou ~ ow - MS AVA, 5 CHEE Ries it Se HIE ates "SIRS 8 ORR rsa Te Raa Ry yt ge , . 14. material, to which we were directed by the parties in argument. leaves at least the four possibilities to which I referred earlier open to the magistrate. Whether he accepted any of those possibilities, or others for that matter, as being available on the evidence, was a matter for him. Plainly he must have reiected any innocent explanation on the evidence as it stood at 29 April 1983, so he could not have accepted what I have described as the first and second possibilities. The appellant submitted that the Magistrate fell into error when he said in the early part of his reasons for decision: "A strona or probable presumption of quilt appears to be established bv evidence or circumstances that point to the commission of & crime and to the accused persons as the criminals, which circumstances are not completely explained and Cleared up by the evidence of the accused." (See Irvines Justices of the Peace 2nd Edition pp. 41-42) The essence of the criticism of this statement by the Magistrate was that it demonstrates, so it was asserted, that he applied an inappropriate test namely, that in committal proceedings an onus ities upon the defendant to establish by his evidence that circumstances in the prosecution's case which point to his complicity in the crime with which he has-been charged have an innocent explanation. 'FEDERAL COURT 03-67r4965 TEL No 17,035,465 14:49 Pat The passage from frvine's Justices extracted by the magistrate is perhaps not entirely appropriate for the staqe of committal proceedings which had been reached in the present case before the decisions under review were nade. Although the word "completely" is accurately cited from Irvine's Justices it is, I think, an unhappy expression. This passage from the Magistrate's reasons is followed by the following two paragraphs:- "IT think 1t also follows from a decision in Re Roberts (1967), W.L.R. at 474 that an accused person should be discharged where no reasonable jury could convict on the present state of the evidence. However, it should be remembered that this court is not required to determine the guilt or innocence of each of the defendants but has the task of determining whether or net there is sufficient evidence to warrant sending the accused persons for trial before a jury." In my opinion, when the impuqned passage is read in the context of these two succeeding paragraphs and the Maqistrate's reasons as a whole. it has not been established that the Maqistrate fell into error by applying the wrong test. Smithers J. said at p. 18 of his reasons for judqment in relation to the same submission: ' "It appears to me, however, that the Magistrate is to be understood as saying that, where the question whether there is a strong or probable presumption of guilt arises for decision, an affirmative answer may be given where the evidence of the prosecution or the circumstances point to the commission of a crime by the accused unless the implication of the accused in the crime arising from such evidence or FEDERAL LOURI 03-674¥b5 TEL No. |, £703,38 14:49 P32 , a 16. circumstances is explained away by evidence of, or called by, the accused. The word 'completely' in the passage under discussion is inaptly included. The ultimate question would not be whether the evidence for the accused completely rebutted the implication of the accused arising from the evidence of the Crown, but whether it so weakened that implication that it could no longer be said to be sufficient either to require that the accused be put upon his trial or to support the existence of a strong or probable presumption of guilt. Reading the reasons as a whole [I am not persuaded that the Magistrate did not so understand the problem before hin," . I agree with his Honour's statements. The next statement of the Magistrate attacked by the appellant is in paragraph numbered 3 in his reasons which relates to the charge of conspiracy to defraud the Commonwealth where the Magistrate said: it was "Some attempt has been made by the defence to suggest that they were entitled to rely on the Opinion of Mr. Forsyth 0.C. and an Advice from a firm of solicitors, 1.@. Messrs. Stone James & Co.. I am not exactly sure how this argument is put, or, how such reliance would provide a defence. Nevertheless I should point out that those persons expressly stated that they were not advising as to the sales tax liability (or by inference the criminal liability) of A Band C. I would have thought it was abundantly ¢lear to each of the defendants who had read the Advice that they could not rely on it to provide a defence without first satisfying themselves of the legal effectiveness of A, Band CC." (p. 7) The appellant challenged this passage on two qrounds. First, Said that the Magistrate erred in finding that the only relevance of any reliance by the appellant and the other defendants upon the advices of Mr. Forsyth 9.C. and Messrs. Stone James & Co. was aa FEVERHL UU U35-674965 by way of defence to the 'chargé of conspiracy to defraud) whereas, in truth, it is for the prosecution to negative any innocent intent on the part of the appellant and the other defendants by reliance on the advices of the lawyers. | Obviously it would ba relevant to the appellant''s defence that he relied, if in fact he did, on those advices. On a fair reading of this passage from the Magistrate's reasons I do not think, however, that he can be taken to have erred in the respect suqgested by the appellant. As I read the passage the Magistrate said that he did not know at the stage of the case which had then been reached how the appellant would put his case of reliance upon the advices from the lawyers or how, as he then undet¢stood the facts. a defence would be afforded by reliance upon them. The Magistrate had not then heard from the appellant or the other defendants. In my opinion, the passage to which the appellant's complaint is addressed is not reasonably susceptible of the construction contended for by the appellant namely, that the Magistrate excluded as an element in the prosecution's case the necessity for it to neqative any innocent intent by reliance on the advices, The Maqistrate was not addressing himself to that question. He was simply dealing with a submission apparently made to him by counsel for the defence, The second ground of attack was that the Magistrate was said to have misconstrued the advices. He construed the advices as expressly stating that the lawyers did not advise with respect to the ; FEDERAL COURT 03-674965 TEL No. 17,03,88 14:56 P.Ot i. 4 '.% Le. - eS eS ore eed = ive at ip LR Ma oot eter meget eh Ae a he ; BEM pat ayn, Cls eptyedt F wr jfability for sales tax of companies A, B or C, This is. perhaps. an oversimplification of the effect upon a reader of the advices. I think that someone reading all the advices in evidence before the Magistrate would conclude, not only that the lawyers had advised that the wholesaler and the retailer would not be liable for sales tax if the scheme were implemented, but that it was reasonably araquable that none of companies A, B or C would be liable for sales tax provided that the cautionary note sounded by Mr. Forsyth in his Opinion of 7 November 1980 was observed, namely:- "Great care must be taken to dot the i's and cross the t's at all points." I think it is perhaps an overstatement to say, as the Magistrate did, that the appellant and the other defendants could not rely on the advices of the solicitors to provide a defence "without first satisfying themselves of the leqal effectiveness of A, B and Cc", if he meant by that statement that advice would first have to he obtained by anvone seeking to implement the scheme from his own lawvers about the liability for sales tax of company A, Bor c. I have no doubt that it was intended by Baker and the promoters of the scheme that the advices would be widely circulated amona potential "purchasers" of the scheme whose interest would be enlivened. more by subtle nuances, than by any dispassionate literal interpretation of the language used in then. However, the oversimplification and overstatement to which I have referred has not been shown to have led "EDERAL COURT 035-674965 TEL No. 17,03,88 14:56 P.02 ed . L202 ict an Tipe sop tt as ots iced sy bare s . the Magistrate into any relevant error. He was simply criticising in advance a foreshadowed detence of the appellant and the other defendants. It was then submitted by the appellant that the Magistrate erred in finding: "The case involving each of the defendants before me has no bearing on the principles that were expressed in" the judgment of the Court of Appeal of New South Wales in R. v. Cahill (1978) 2 N.S.WN. L.R. 453." . It was submitted that Cahill's Case bore directly on the questions before the magistrate. It was common qround before us that Cahill's Case is the only reported 'judement dealing with para. B6(l)(b) of the Crimes ct. In that case six persons had been convicted at a trial before a District Court Judge anda jury of conspiracy to prevent the enforcement of the Miqration Act 1958 contrary to para. 86(1)(b) or (d) of the Crimes Act, The matter came before the Court of Appeal of New South Wales upon a case stated by the learned trial Judge pursuant to s. 72 of the Judiciacy Act. The Court of Appeal considered the construction of para, 86(1)(b), but not in the context of committal proceedings before magistrates. Also. Cahill's Case concerned an alleged conspiracy of a very different kind from the conspiracy asserted here,: ZI think it would be an unfair construction of that paragraph of the Magistrate's reasons challenged by the appellant in the presént submission to say that he there regarded the observations of the members of the Court of Appeal in Cahijl's Case relating to para. 686(1+(b) as irrelevant to the case in 'FEDERAL COURT 03-67 4965 TEL No. 17,03,88 14:57 P.O3 + ¢ a a? 4 4 Fe aby te er er ary 8 TSF FATT TE oe * a ae OR * : hand. He simply distinguished the two cases because of the absence of any community of fact. These were the submissions of the appellant. I reject them. It is unnecessary theréfore to consider whether the Court should exercise its discretion to grant relief under the Judicial Review Act. However, I said earlier that residual discretion still remains in the Court notwithstanding that the statutory pre-conditions for the grant particular case. In a case like the present one, involving the decisions of & magistrate made in the course of committal proceedings still pending, it is only in exceptional circumstances that the Court will intervene. I prefer to express no view on the question whether exceptional circumstances exist in the present case sufficient to warrant intervention by this Court. I would dismiss the appeal with costs. 1 certify that this and the "gy preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr, Justice Aa CE. Aasociate Dated: A27% Ccoretge, (14 EDERAL LOURI Us-bor4ubo lEL fta. Lisosome Lteve 6 eee , sage = semanas * sagtha PARTY Pe t- * ¥ IN THE FEDERAL COURT OF AUSTRALIA ) } VICTORIAN REGISTRY } GENERAL DIVISION ) No. VG 191 of 1984 BETWEEN: JOHN FRANCIS EDWARDS Appellant . AND: IAN VON EINEM and ROBERT RICHARD McDONALD Respondents ORDER JUNGES MAKING ORDER: SWEENEY. DAVIES & LOCKHART JJ. DATE OF ORDER: 12 OCTOBER 1984 WHERE MADE: MELBOURNE THE COURT QRDERS THAT: 1. The appeal be dismissed. 2, John Francis Edwards pay the costs of Ian Von Einem S.M. and Robert Richard McDonald of this appeal. "EDERAL COURT O5-57r4965 TEL fle. LrsUsrd lotsa F.U> . Ore the SNE * ste te gq reenter MNO ke "st IN _THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No. VG 191 of 1984 GENERAL DIVISION On appeal from a single judge of the Federal Court of . Australia BETWEEN: JOHN FRANCIS EDWARDS Appellant IAN VON BINEM and ROBERT RICHARD McDONALD Respondents Coram: Sweeney, Davies and Lockhart JJ. Date ; 12 October, 1984 Place; Melbourne Reasons for Judgment Sweeney, J. John Prancis Edwards (the appellant).made. application toa. a. single judge of this 'court for review pursuant to the Administrative -Decisions Judicial .Review Act 1977 (the Judicial -: Review Act) o£ the decisions of Mr. I. Von Einem (the magistrate) EUeRHL LUURI Us-ordibs FEL ou. LisVYurve Lave it ' veespibeebie Sais RG SET POR RE fee 41 a a « ; : . a" yar \ 2 made on 29 April 1983 in the course of committal proceedings: (a) {p) (co) that there was at the close of the Crown case sufficient evidence 'to place the appellant 'upon his trial in respect of each of the three charges of conspiracy against him; that there was a@ case to answer by the appellant in respect of each of those charges; ' not to discharge him out of custody as to the information under enquiry but to caution him under s.56(1)(b) of the Magistrates Summary Proceedings Act 1975, Victoria (the Act) and then to call upon him to plead to those charges. Two co-defendants of the appellant, Ian Grant and Ian David Stafford Collie, made similar review applications to his Honour. All three applications were dismissed. This is an appeal by the appellant from his Honour''s judgment diamissing his application. The history of the matter was set out by his Honour. on 4 October, 1982 an information for, an offence had been laid and atte sworn by Robert .Richard McDonald. (the second respondent) against _. the appellant in'which the second respondent alleged:- "(a) that the said John Francis Edwards at Melbourne, Perth, Sydney and other places, between ) July 1979 and 18 March 1982 did conspire with Steven John Baker, William Leaver, Peta Joy Fisher, Colin Halley Coghill, Zan Grant, Ian David Stafford Collie and other persons to defraud the CULRAL CUR) YoTOrH soo (cu Wu. thor we at oa e . omy one os rend RT ac t "9 ty BP RECARO Cepia oo a RT ea al "> . % 1 4 in er 3 Commonwealth contrary to section 86(1){e) of the Crimes Act 1914; (bo) that the said John Francis Edwards at Melbourne, Perth, Sydney and other places, between 1 July 1979 and 18 March 1982 did conspire with Steven John Baker, William Leaver, Peta Joy Fisher, Colin Halley. Coghill, 'Ilan Grant, Ian David Stafford Collie and other: persons to prevent -or: defeat -the execution or enforcemént of a Law of Commonwealth namely section 9 of the Sales Tax Assessment Act (No. 3) 1930 contrary to s-S6(Ij)(b) of the Crimes Act 1914; —_—— (ec) that the said John Franeis Edwards at Melbourne, Perth, Sydney and other places, between 1 July 1979 and 18 March 1982 did conspire with Steven John Baker, William Leaver, Feta Joy Fisher, Colin Halley Coghill, Lan Grant, Ian David Stafford Collie and other persons to prevent or defeat the execution or enforcement of a law of the Commonwealth namely s.9 of the Sales Tax Assessment Act (No. 7) 1930 contrary to s.86{1}(b) of the Crimes Act." On 11 April 1983 proceedings in respect of these informations began before the magistrate, by way of preliminary examination conducted pursuant to the provisions of s.56(1} of the Act and $.68 of the Judiciary Act 1903. At all materilal times the magistrate was exercising jurisdiction pursuant to that Act of the Commonwealth, and it was common ground between the parties that any decision made in the course of the proceedings was a decision of an administrative character made under that enactment (see Lamb v Moss (1983) 49 A.L.Re 533). At the conclusion of .the Crown case, in order to exercise his jurisdiction in accordance with law pursuant to s.51(1)(a) and (b) of the Act, the magistrate was required:- (a) if the evidence was not sufficient in his opinion rEVERHL LUUR! Vorb 4965 leL Nu. Lf Uo om L4-.o4 oF (b) Lemmiemge ss + amma Zaps eon te ke ake nea nee to put the accused person on his trial for an indictable offence - to order him to be discharged out of custedy as to the information then under enquiry; or veer ae if in his opinion the evidence was sufficient to put the accused upon his trial for the indictable offence with which he was charged or if, in his opinion the evidence given for the prosecution yaised a strong orf probable presumption of guilt of the accused person in respect of that charge, to read the charge to him again and say to him the words set forth in 8s.56(1)(b) of the Act and call upon him to plead guilty or not guilty as the case may be, On 27 April 1983 and after the conclusion of the evidence given for the prosecution, the appellant submitted to the magistrate;:- {a) (dD) (c) that the evidence was not sufficient to put him upon trial; e that the evidence did not constitute a prima facie ease against him or raise a strong.or probable presumption of 'guilt :such as 'to -permit the magistrate to put them upon trial; that he be discharged out of custody as to the FEDEKHL LUUKI Uo-bs 46S ieEL No. . ; ane eat 34 P.Ur re 7 CAMRY : i i information then under enquiry. Coghill made similar submissions, Grant made no submissions and as yet has called no evidence. Collie made no submissions and he has given evidence. After hearing the submissions on behalf of Coghill and Edwards the magistrate gave his reasons on 29 April 1983 which were applicable to all the defendants including the appellant. His Worship, having formed the opinions that the evidence was sufficient to put the defendants upon their trial and that there was a strong or probable presumption of their guilt, did not discharge them. He proceeded to caution them in terms of 8.56(1)(b) of the Act and each of them was called upon to plead, Each pleaded not guilty to each of the charges. The proceedings before the magistrate related to a scheme which, according to the prosecution, Baker had conceived under which a wholesaler of goods would dispose of them te company A which was registered as a wholesaler under the Sales Tax Assessment Act (Nol) 1930. Company A would quote its sales tax exemption number and no sales tax would be payable. Company A would then transfer one undivided half interest in the goods to company B and the other such interest to company C, which would then acquire from company B its half interest in the goods, and sell the goods to the retaller.:- Baker undertook.to wholesalers and retailers who agreed to participate in tha scheme to pay any sales tax assessed to A; B or C provided that the assessment was -. uphel@ upon final appeal and provided also that A, & or € did not "EDERAL COURT 05-674965 TEL Ne. 17,03;,;556 14:05 F US : - - Perea neue MUL AED Nae ' 'a ' 6 ' ' nner EH SAY STEREO ATEN ae ted mere pay the amount assessed. Participating wholesalers and retailers were also assured that either Baker or A, B and C would be responsible for any legal costs in defending the wholesaler or retailer against actions or assessments or collection of sales tax arising from transactions involving the scheme. The scheme was widely promoted and adopted. Wholesalers and retailers who used it were not told of the details of the arrangements between companies A, B and C. The invoices in respect of the sales by company C to the retailers stated "Prices include any sales tax payable." No sales tax was in fact included in the prices stated in the invoices. Hig Honour, in the light of the avidence to which he had been referred, stated that the appellant knew that sales tax was not to be paid by any party involved in the scheme. The intention was that C would not register as a wholesaler and would make no returns of sales by it. A former shelf company of little, if any, substance, C was thus building up a growing potential liability for sales tax, which it did not disclose to the revenue authorities and for which it was making no fanancial provision. The savings so effected made possible the offer of discounts and the payment of remuneration to the promoters of the scheme . including the appellant, who is an accountant. The committal proceedings so far as they had proceeded up to. 29 April 1983: required: -the magistrate to consider some 272 statements of-. witnesses, .the viva voce .evidance of some 50 witnesses, a multitude of exhibits, and submissions made on behalf FEUVEKHL CUURK! ' SETI IME Beers ads PUR at ie 0 Uso-b 1 44¥b5 TEL No. 17,035,836 — 14:35 P.09 See oe a7 RS PRA of MER ne nes ve SE He font me Tete. of the prosecution and each of the defendants. His Honour heard the separate applications for review by the appellant, Grant and Collie. In the. course of a hearing before, him which extended over about 8 days, of which about 4 1/2 days were devoted to hearing the application of the appellant, he was referred extensively to the evidence which had been before the magistrate. His Honour, having reviewed the evidence against the appellant, went on to say:- "It is apparent even on these facts that, if by law sales tax was payable by C then, by conducting the transactions in a manner that they would not come to the notice of the Sales Tax Department, although there was a risk that they might, sales tax would not be paid. In that event the scheme involved the commission of unlawful conduct to the detriment of the Commonwealth, The justification for conducting the transactions in this way was that there was genuine acceptance of the assurance of Baker that the nature of the transactions between A, B and C and the wholesaler and retailer concerned were such as tO absolve them all from Jiability for sales tax. Such conduct was therefore intrinsically innocent and would be so regarded by any reasonable man. Sut the view might well be taken that the 'possibility' that there was an avenue of tax immunity in the Act which could be exploited by Baker's secret formula would be likely to be questioned by any honest man especially an accountant, as Edwards was. Would an honest man invited to enter into the scheme and participate in it for profit have wanted to know more about the scheme? What could there be in the nature of the transactions which would absolve C, who sold by wholesale to a retailer, from liability to pay sales tax on his sales?- He-might have wanted to know-why; while learned opinions were being sought as to the liability of wholesaler .and retailer, an opinion was not sought as to the sales tax 'Liability of A,''B and''C.*- What' could be the 'magic' of the nature of the transactions between A, B and C which could have the legal effect alleged? How could Baker's claim to secrecy, even against those joining in the scheme, be accepted without question? The difficulty is that it may well be thought to be beyond the wit of an ordinary professional man to o FEDERAL COURI Go-674965 TEL No. 17.05,8¢ 14-56 P.10 Pan bon te 1 ris he ESS 14 ' LEMME ORAL TE "ES we a . 8 contemplate a bas1ls upon which the interposition of intermediaries between the wholesaler and retailer would exempt all the parties from liability to sales tax especially as it must have been clear that the transaction between C and the retailer was plainly a sale by a whoesaler to a retailer. In my view it is unnecessary to proceed further to come to a conclusion that in the absence of credible evidence from Edwards as to his real state of mind the magistrate could well form the opinions which he did concerning the case against Edwards." Before us, the appellant did not submit that there was no evidance upon which the magistrate could properly have reached the decisions which he challenged. He relied only upon what he said were errors of law apparent on the face of his Worship's reasons for his decisions, and the way in which his Honour had dealt with these questions. We were referred briefly to only a small portion of the evidence. It was submitted that the magistrate erred in the standard he applied in saying: "A strong or probable presumption of guilt appears to be established by evidence or circumstances that point to the commission of a erime and to the accused persons ag the criminals, which circumstances are not completely explained and cleared up by the evidence of the accused." The appellant submitted that this standard required him to establish his innocence' 'completely -aeven. before he' -went-scr- into evidence. 61 ust reer In dealing with this submission his Honour said: FEDERAL COURT Os-6r4965 {EL No. 1 Fare kee ORT SL ELE TOT See RRR RTT TAR ahaa ee Fe ere ae erates "It appears to me, however, that the magistrate is to be understood as saying that, where the question whether there is a strong or probable presumption Of guilt arises for decision, an affirmative answer may be given where the evidence of the prosecution or the circumstances point to the commission of a erime by the accused unless the implication of the accused "in the crime arising from such evidence or circumstances is explained away by evidence of, or called by, the accused. The word 'completely' in the passage under discussion is inaptly ancluded. The ultimate question would not be whether the evidence for the accused completely rebutted the implication of the accused arising from the evidence of the Crown, but whether it s0 weakened that implication that it could no longer be gaid to be sufficient either to require that the accused be put upon his trial or to support the existence of a strong or probable presumption of guilt. Reading the reasons as a whole I am not persuaded that the magistrate did not so understand'the problem before him." The appellant submitted that the magistrate did not correctly identify the elements of the offences alleged and that he incorrectly applied an objective approach to the element of dishonesty. It was submitted that the magistrate took the view that the fact that the appellant promoted a scheme which failed was sufficient to constitute the offences alleged, irrespective of whether the appellant believed the scheme to be lawful and not one which deprived the Commonwealth of tax which it was lawfully entitled to receive. Several passages of the reasons were said to . demonstrate this error. The magistrate said: .. . - "The evidence in this case as it presently stands shows that each.of the defendants agreed to promote:. a scheme whereby gales tax would not be paid, Whether the scheme involved an avoidance or an evasion of sales tax is in my view arrelevant. The 1 PEDERHL COURT US-67°4965 TEL No 1703588 14:37 P SOIT ONS yutcerene mer ew ates i ag question is whether the non-payment of sales tax was unlawful. In my view, such non-payment of gales tax was a Glear breach of the Salas Tax Assessment Acts. It has been correctly conceded by poth defence Counsel who made submissions to me that a defendant cannot excuse himself by saying that owing to nis ignorance of the law he did not realise such an act was unlawful." The appellant submitted that the magistrate in this passage had farled to appreciate the significance of the distinction between avoidance and evasion of tax. It Was submitted that if all that wag intended was avoidance of sales tax then no offence as alleged would be established. In relation to these submissions his Honour said: "Tt is said that the passages referred to reveal that the magistrate took the view that the relevant meng rea was established once it appeared that the agreement was to bring about a state of affairs in which non-payment of sales tax was unlawful. In this context emphaais was placed on the sentence - 'Whether the scheme involved an avoidance or an evasion of sales tax is ain my view irrelevant'. This sentence might indicate some error in the magistrate's approach if, as is alleged by the applicants, it related to the matter of mens rea. But on a correct reading of the reasons it is related solely to the issue of the unlawfulness of non-payment of sales tax. The magistrate dealt with the matter of mens rea in those passages in which he discussed the alement of dishonesty. On a fair reading of the reasons it is apparent that the magistrate was well aware and accepted that dishonesty was an essential element in the offence of conspiracy to defraud the Commonwealth. I consider that the magistrate is to be -understood as indicating that dishonesty on the part of an accused person had to be proved by the Crown and that that element of dishonesty would be established where -a jury looking at the facts proved, and applying their own notions of what is .12 FEDERHL LUURI Us-b rd965 1EL No. 17,03,38 14:38 FP woop Frade stay Wee ie ea ail Sry Re eee gy et ye. Rent co 8 7D Pete oy wee ee fas . . il honest and what is not, coneluded that the accused could not have believed that he was acting honestly. If the accused was a person of sufficient intelligence and experience to realize that what he was doing was dishonest according to the standards of right minded people then in the absence of evidence to the: contrary dishonesty on the part of the accused might be found to exist. He went on to say that in his view, and applying this test, the element of dishonesty had been satisfied by the evidence before him." Later in his reasons the magistrate said that some attempt had been made by the defendants to suggest that they were entitled to rely on an opinion of senior counsel and an advice from a Perth firm of solicitors. His Worship said:- "I am not exactly sure how this argument is put, or, how such reliance would provide a defence. Nevertheless I should point out that those persons expressly stated that they were not advising as to the sales tax liability (or by inference the criminal liability) of A, B and c. I would have thought it was abundantly clear to each of the defendants who had read the Advice that they could not vely on it to provide a defence without first gatisfying themselves of the legal effectiveness of A, B and Cc." It was submitted that the magistrate's failure ta appreciate both the relevance and importance of the opinions illustrated that he had not correctly identified the elements of the alleged offences in that he did not regard a belief by the accused in the lawfulness of the schemes as negating the necessary mental elements: of the alleged offences. His Honour referred to the fact that the reasoning of the magistrate was challenged also on the ground that in discussing the relevance of reliance on the legal opinions he FEDERHL LUURT Us~ 6rdAy6S JEL AG ; 17,03,88 14:38 P.14 eI - stated, "I am not exactly sure how this argument is put, or how such reliance would provide a defence." His Honour salds— "This is a rather puzzling -statement pecaugen.... reliance on legal opinions would be relevant to the ° existence of dishonesty in the mind of the accused. According to circumstances a learned opinion that a certain course was lawful could be significantly material in an assessment of the credibility of a statement by an accused that he really believed that his course of action was, according to the test mentioned above, an honest one. If the magistrate is to be understood to say that in forming his opinion he considered that the existence of a relevant legal opinion was of no significance that would be an error. However, the magistrate did look at the matter on the basis that the opinions might be taken into account on the issue of dighonesty. He took the view that on the issue of the accused's belief that his conduct was not dishonest because of the contents of relevant legal opinions his statement to that effect would have to be examined in the light of the actual opinion given. In this respect the Knowledge and experience of the accused in the area of sales tax liability and@ business generally, and the likelihood that the person might seek further assurances as to the lawfulness of the actual conduct to be engaged in under the agreement were relevant considerations. In the light of the foregoing I am not satisfied that the magistrate misdirected himself in any respect." For the purpose of attracting jurisdiction, the decision of the magistrate is characterised as being of an administrative nature. Ordinarily, the reasons for such a decision should not be looked at over cratically- (see Commonwealth v-'Duncan::: (1962) .44-ALR: 249 -per Franki J. at vias, pe255, per Kelly dJe~'at" p+261; Tagle: v Minister for - +... Immigration (1983) 46 ALR 379 at p.386; Lennell v Repatriation Commission Full Court unreported 3 February 1982). The mayistrate's reasons should be considered in the FEDERAL COURT 03-674965 TEL No. 17,03,88 14:39 P.15 - RE oe Tt psa a aetniecee eS - context of the proceedings before him and of the stage which they- had reached. He had considered a great volume of evidence and submissions. He was ruling upon it at a time when he had before him the possibility that there would hbe- evidence given by.or on behalf of the defendants. In these circumstances it was natural for him to limit what he said at the close of the Crown case. I am not persuaded that a court of appeal, lacking the advantage which his Honour had, of a detailed knowledge of the facts, should find any error in his rejection of the criticisms which were made of the magistrate's reasons. In the light of this opinion, no question of discretion arises. In his notice of appeal the appellant sought an order that the matter ba remitted to the magistrate with directions that he proceed to reconsider the evidence before him and make the decision required by s8.56(1){b) of the Act "according to law". If the appellant had been otherwise successful, il weuld have been very difficult fer a court lacking a detailed knowledge of the evidence to have set out an appropriate guide to be followed by the magistrate in reconsidering it. JFEUEKHL LUURKT US-br 49b> {EL Ne lrs,Uosss Lla:du Pp. eeretiy Aan SEY Mee, Toca b compremge ee me har _ fey Lee seen ate, are seen) £7 RS I would dismiss the appeal, with costs. I certify that this and the preceding thirteen pages (13) are a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice Sweeney. "eek oo for Associate Date: 12 October 1984 lb