Mallan v Lee [1949] HCA 48

High Court of Australia Latham C.J. Dixon and McTiernan JJ. Mallan v Lee [1949] HCA 48

ORDER Answer to first question varied by substituting the following answer:—Yes, by reason of the Income Tax Assessment Act 1936-1944 s. 230. Appeal otherwise dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 10 Latham C.J.

This is an appeal by special leave from an order of the Supreme Court answering questions in a case stated by Mr. L. E. Clarke, Special Magistrate, for the consideration of the Supreme Court of South Australia and referred to the Full Court of that Court.

A company named Telephone Rentals Ltd. was charged with a contravention of s. 230 of the Income Tax Assessment Act 1936-1944. The contravention alleged was that the public officer of the company, V. C. Mallan, on behalf of the company in a return knowingly and wilfully understated the amount of income of the company derived from all sources during the twelve months ending 31st August 1944. The complaint alleged that the company had incurred a penalty exceeding £500 but that the excess above £500 was abandoned.

In the same complaint V. C. Mallan was charged in the following terms: that he "by act was directly knowingly concerned in the commission of the offence above alleged—Crimes Act 1941-1946 (Commonwealth) Section 5"—whereby Mallan had incurred a penalty exceeding the sum of £500 but the excess over £500 was abandoned.

The summons upon the complaint was issued on 7th June 1948. The offence by the company in which it was alleged that Mallan was knowingly concerned was alleged to have been committed on or about 8th December 1944. On behalf of Mallan it was objected that he was being prosecuted for an offence against the Crimes Act, s. 5, and that s. 21 (1) (c) of the Crimes Act applied to the case because the punishment provided in respect of the alleged offence by s. 230 of the Income Tax Assessment Act was a pecuniary penalty only, and no term of imprisonment was mentioned, with the result that a prosecution in respect of the offence could be commenced only "at any time within one year after the commission of the offence." It was also contended that s. 5 of the Crimes Act had no application because (it was urged) s. 230 of the Income Tax Assessment Act provided only for civil proceedings and did not create a criminal offence. It was further argued that s. 230 applied only to taxpayers in respect of returns of their income and that it was impossible for any person other than a taxpayer in relation to a particular return to be guilty of an offence under s. 230, and that for this reason s. 5 of the Crimes Act could not be applied where the principal alleged offence was a contravention of s. 230.