New South Wales District Court CITATION: Gino Robert Cassaniti v Director of Public Prosecutions [2008] NSWDC 2 JUDGMENT DATE: 25 January 2008 JURISDICTION: Criminal/Appellate JUDGMENT OF: Nicholson SC DCJ 1.Leave granted to amend Notice of Appeal against conviction to Notice of Appeal against refusal to annul convictions. DECISION: 2.Late application for leave to appeal against refusal to annul convictions granted. 3.Appeal against refusal of Local Court to annul conviction is dismissed. (see para 81) CATCHWORDS: Criminal Law - Application for leave to appeal against refusal of Local Court to annul conviction - failure to furnish income tax returns - conviction in absence of applicant - refusal to annul ordered in absence of applicant - jurisdiction to hear appeal - late application for leave to appeal - matters impacting on discretion to annul conviction - averments - elements of offence - absolute liability - s162 notice - service of - reasonable time to comply s162 Income Tax Assessment Act 1936 (Cth) s8C, s8ZL, s11, s13A Taxation Administration Act 1953 (Cth) LEGISLATION CITED: s. 13 Administrative Decisions (Judicial Review) Act 1977 (Cth) s5.1, s6.2 Criminal Code 1995 (Cth) s. 160 Evidence Act 1995 (Cth) s.4, s11, s11A, s12, s13 Crimes (Appeal and Review) Act 2001 Alva Nationa Pty Ltd v Unger (1981) 36 ALR 665 CASES CITED: Ambrose v Edmonds Wilson (1988) 19 ATR 1217 Deputy Commissioner of Taxation v Ganke [1975] 1 NSWLR 252 PARTIES: Gino Robert Cassaniti - Applicant for leave to appeal Director of Public Prosecutions - Respondent FILE NUMBER(S): 07/22/0104 COUNSEL: D. Allen - for Applicant SOLICITORS: Mr C Ragus - Office of the Director of Public Prosecutions (Cth) JUDGMENT 1 Gino Robert Cassaniti, the applicant is an accountant with 18 years experience in preparing income tax returns. He estimates in the past 10 years he has prepared about 10,000 tax returns. However, he is not a registered tax agent. He has, it seems, made a reasonable living assisting many, many taxpayers comply with their statutory duty of filing income tax returns. 2 At the relevant time he was working with Cassaniti & Associates – a firm run by his cousin Sam Cassaniti (Cassaniti), a registered tax agent and the applicant's personal tax agent. Cassaniti's firm had a staff of thirty persons. A service trust, Reliance Financial Services Proprietary Limited, owned by Cassaniti, employed and paid the applicant for working with Cassaniti & Associates. 3 While Cassaniti was the applicant's personal tax agent, the responsibility of preparing his taxation returns fell to the applicant. Once completed the returns were then lodged with the Commissioner of Taxation (the Commissioner) through Cassaniti's agency. The last return lodged was for the year ending 2002. It was lodged electronically on 12th May 2004. 4 On 20th June 2005 an authorized delegate of the Commissioner served a notice (s.162 notice) upon the applicant complaining the Commissioner had not received income tax returns for the 2003 and 2004 financial years. In that notice the delegate, pursuant to section 162 Income Tax Assessment Act 1936 required the applicant to give the Commissioner the two income tax returns by 18th July 2005. There is no dispute as to the applicant's non-performance of the required tasks within the required date, or at any subsequent time. Court Proceeding Begin 5 On 24th April 2006 a licenced commercial sub agent served a Court Attendance Notice upon Gino Robert Cassaniti, the applicant, alleging two identical prescribed taxation offences, namely that on 19th July 2005 pursuant to paragraph 8C (1)(a) of the Taxation Administration Act 1953 he failed to furnish an approved form to the Commissioner of Taxation when and as required pursuant to a taxation law, namely section 162 of the Income Tax Assessment Act 1936 … 6 The return date for the Court Attendance Notice was 9:30a.m. 10th May 2006. It was listed at the Parramatta Local Court. I have, for reasons which will become apparent, had recourse to the Court file to follow the progress of this matter as it inched its way through the Local Court. On 10th May it was stood over to the 21st June, and then to 12th July 2006. It appears from the Court file pleas of "Not Guilty" were entered on that date, and the matters set down for a 3 hours hearing on 25th September. The brief was to be served by 23rd August. The matter failed to proceed on 25th September – the file records the applicant as being sick. It was stood over for mention to 24th October. On all or most of these occasions legal counsel represented the applicant. It was clear, at least in hindsight, that he was engaging in dispute with the ATO. 7 On the October mention date the applicant appeared in person. The applicant claims the Tax Office hadn't "showed up" on that occasion. The Court file confirms no one was representing the Commissioner. It was then stood over to 1st November 2006 "FMO –brief to be served by 1/11/06. Che (?) to notify Taxn of brief order." I am told the applicant informed the Court that a brief had not been served – a proposition the respondent disputes. These matters were said to be in the Local Court's DPP list. The person appearing for the DPP in other matters did not enter an appearance in these matters, as he had no knowledge of them. The respondent's position is a brief had been served on 22nd August. 8 On November 1st 2006 the matters proceeded in the absence of the applicant or his lawyer. He was convicted in his absence. If the notation FMO meant "for mention only" one cannot help but have some sympathy for the applicant. Nonetheless the Court file notes "N/A [No Appearance] at 10:53a.m." It was not the first time the applicant had not been present or represented. On the Court file is a letter of apology to Magistrate Brown for "our agent fail[ing] to attend the listing of the matter…" on 21st August. The Magistrate who proceeded to conviction was His Honour Magistrate Garbett. 9 Applications pursuant to s.4 Crimes (Appeal and Review) Act 2001 to annul the convictions recorded by the Local Court were made by the applicant. His Honour Magistrate Brown rejected these applications on 13 December 2006 when the applicant failed to attend their scheduled hearing. 10 On 21st February 2007 a Notice of Appeal to the District Court, together with an Application for Leave to Appeal "against a conviction entered in my absence" were filed. I will return to this paper work shortly. A jurisdictional question needs settling 11 The matter first came before me as applications to appeal against conviction out of time and in the absence of any defence being proffered before the magistrate. In response to the proposed applications I may have erroneously granted leave for applications to appeal against conviction to proceed out of time. On 29th May and 9th November 2007 I proceeded to hear the matter as though it was an appeal against conviction. On the application of the applicant I gave leave for him to adduce fresh evidence in the appeal on the basis it would be a denial of natural justice to do otherwise. I also gave leave to the respondent to adduce fresh evidence from Elizabeth Besters in his case and in reply. 12 However, when it came time to set out my decision and reasons on the appeals against conviction, I reviewed the relevant sections of the Taxation Administration Act 1953 (Cwth), and Crimes (Appeal and Review) Act 2001. Having reviewed the legislation it is apparent the proceedings may have proceeded upon a basis that is not open at law. Before any determination can be made it is important to ensure the Court has jurisdiction. The provisions relevant to the existence of jurisdiction are: Taxation Administration Act 1953 (Cwth) 11 Notice of conviction in absentia (1) Where a defendant who has not entered a plea in relation to a prescribed taxation offence is, in his absence, convicted of the prescribed taxation offence, the proper officer of the court concerned shall cause to be served on the defendant notice in writing of: (a) the conviction; (b) the order of the court; (c) where the order of the court includes the imposition of a fine – the time allowed by the court for payment of the fine; and (d) the right of the defendant to make and application under section 13A for an order setting aside the conviction. (2) Without prejudice to any other method of service provided for under any other law of the Commonwealth or under a law of a State or Territory, a notice under subsection (1) may be served on the defendant by sending the notice to him by ordinary prepaid post addressed to him at his last known place of residence or last know place of business. (underlining mine) 13A Setting aside of conviction or order (1) Where a defendant has been served with a notice under section 11 in relation to a conviction or order of a court, the defendant may: (a) where a fine was imposed by the court – before the expiration of: (i) the period allowed by the court for payment of the fine; or (ii) a period of 21 days after the date of service of the notice; whichever is the longer; or (b) where no fine was imposed by the court – within 21 days after the date of service of the notice; make an application in writing to the court, or to another court of summary jurisdiction that would have had jurisdiction to make the conviction or order for an order setting aside the conviction or order… (4) Where a court is satisfied, on an application made by a defendant in accordance with subsection (1) … in relation to a conviction or order, that: (a) in the case of an application under subsection (1): (i) the defendant did not received notice of the proceedings in which the conviction or order was made, or did not receive such notice in sufficient time to enable the defendant to attend the proceedings; or (ii) the defendant failed to attend the proceedings in which the conviction or order was made for reasons that, in the opinion of the court, render it desirable, in the interests of justice that the conviction or order be set aside and the matter re-heard; … the court shall set aside the conviction or order and shall: ...... (c) proceed forthwith to re-hear and determine the matter; or (d) adjourn the proceedings for re-hearing the matter to such time and place as the court thinks fit… Crimes (Appeal and Review) Act 2001 (N.S.W.) 4 Applications to Local Court (1) An application for annulment of a conviction or sentence made or imposed by a Local Court may be made to the same Local Court: (a) by the defendant, or (b) by the prosecutor. but may be made by the defendant only if the defendant was not in appearance before the Local Court when the conviction or sentence was made or imposed…. ...... (4) An application must be in writing, and must be lodged with a registrar of a Local Court…. 11 Appeals as of right (1) Any person who has been convicted or sentenced by a Local Court may appeal to the District Court against the conviction or sentence. (1A) Subsection (1) does not apply in respect of a conviction if the person was convicted in the person's absence or …. 11A Appeals as of right against Local Court's refusal of application for annulment of conviction or sentence (1) Any defendant whose application under section 4 for annulment of a conviction or sentence has been refused by the Local Court may appeal to the District Court against the refusal. (2) An appeal under this section must be made within 28 days after the Local Court notifies the defendant of its refusal of the application…. 12 Appeals requiring leave (1) Any person who has been convicted by a Local Court in the person's absence or following the person's plea of guilty may appeal to the District Court against the conviction, but only by leave of the District Court. (2) An application for leave to appeal may not be made in relation to a conviction in respect of which the defendant: (a) is entitled to make an application under section 4 but has not done so …, (3) An application for leave to appeal must be made: (a) within 28 days after (but not before) the sentence imposed after the relevant conviction is made, or (b) if an application for annulment of the conviction has been made under Part 2 within that 28-day period, within 28 days after the Part 2 application is disposed of under that Part. 13 Late applications for leave to appeal (1) An appeal to the District Court may be made: (a) … (b) by any person by whom an application for leave to appeal could be made under section 12, but for section 12 (3), but only by leave of the District Court. (2) An application for leave to appeal must be made within 3 months after the relevant conviction or sentence is made or imposed, or the relevant application under section 4 is refused, as the case may require. 13 Putting to one side the present paper work bringing this matter before the Court, a number of propositions of relevance to the question of jurisdiction of this Court properly to dispose of this matter are in need of clarification: a) The offences with which the applicant was charged are prescribed taxation offences. b) The respondent obtained the initial convictions in circumstances where the applicant was not before the Local Court, but had entered pleas of "Not Guilty". The initial convictions were entered on 1st November 2006. c) As he entered "Not Guilty" pleas, the provisions of the Taxation Administration Act 1953 (Cwth) would not apply to him. The provisions of s 4, and s.11 (1A) of the Crimes (Appeal and Review) Act 2001 would apply. d) If the applicant had not entered a plea in the Local Court, then his rights to setting aside the conviction are exclusively governed by s 13A of the Taxation Administration Act 1953 (Cwth). An application for annulment pursuant to the Crimes (Appeal and Review) Act is unavailable. If the 13A application is successful the conviction is set aside and the matter is re-heard by the Local Court. There does not appear to be any provision under State or Commonwealth law for an appeal to the District Court in respect of an unsuccessful attempt to set aside a conviction pursuant to the Taxation Administration Act 1953. e) In this case unsuccessful applications were made by the applicant seeking to annul the convictions recorded by the Local Court. On 13th December 2006 Magistrate Brown refused the annulments in the absence of the applicant. f) S.11 (1A) of the Crimes (Appeal and Review) Act does not permit a person to appeal as of right in respect of a conviction recorded in his absence. Leave must be obtained. g) s. 11A of the Crimes (Appeal and Review) Act has the effect of only granting a person an appeal as of right against the refusal of the Local Court to annul convictions not covered by the Taxation Administration Act, and then only provided such appeals are lodged within 28 days of notification of the determination to refuse the annulment. However, this applicant's "appeals" to this Court are outside the 28 day period. h) S. 12 of the Crimes (Appeal and Review) Act permits a person convicted of any offence in a Local Court in his absence to appeal to the District Court against the conviction, but only on obtaining leave, provided he has fulfilled his s. 4 obligations, if any. The leave must be obtained within 28 days after sentence is imposed. The commencement of the 28 days relates to the date of the conviction – not to the date of refusal by the Local Court of any attempt to set aside the conviction. i) Where an application for leave to appeal is not made within the time stipulated by s. 12 (3) of the Crimes (Appeal and Review) Act , a late application for leave to appeal provided by s13 of that Act may be made within 3 months of the relevant conviction being made. The closing date for obtaining leave to appeal directly against the conviction was 1st February 2007. The Notice of Appeal and Leave to Appeal Documents are dated 21st February 2007, 3 weeks outside the limitation period. j) The applicant unsuccessfully sought annulment of his convictions, but did not initiate the appeals to this Court against the refusal to annul within 28 days. However, he is able to apply for leave to appeal by way of a late application pursuant to s. 12 (3) (b) of the Crimes (Appeal and Review) Act . The date of the Appeal Notice, 21st February 2007 falls within the 3 month period. The period expired on 12th March 2007. Therefore, assuming he is given leave, he would be entitled to mount an appeal against the refusal to annul his conviction. k) S.16A of the Crimes (Appeal and Review) Act provides jurisdiction to the Court to determine an appeal against a decision to refuse to annul a conviction, by dismissing it, or by granting it. In the event the application is granted, there is only one course available to the Court. It must remit the matter to the Local Court where it is to be dealt with afresh. 14 I have already indicated I would grant the applicant leave to appeal out of time in circumstances where I understood he was appealing against conviction (See my interlocutory judgment 17th April 2007). There was at that time some confusion as to the entitlement flowing to the applicant as a consequence of my granting leave. The discussions by either side in Court appear predicated upon a proposition an appeal against conviction that was being sought to be, and was being agitated. It should be made clear the only jurisdiction that can be entertained by me in the circumstances of this case is leave to appeal against the refusal of Magistrate Brown to annul the conviction. 15 The appeal Notice and Leave Application nominate the decision of Magistrate Brown as the decision appealed against. Unfortunately, they incorrectly describe the nature of his decision – as being registering a conviction, and consequently the nature of the appeal being launched. But the date relied upon in the Notice of Appeal is 13th December 2006. On that date Magistrate Brown refused to annul the conviction. That is the decision being appealed against. That is the only matter that this Court has jurisdiction to determine. 16 Leave will be given to the applicant to amend the Notice of Appeal and Leave Applications so that they make clear what is being appeal against is the refusal to annul the conviction. Leave will be given, basically for the reasons earlier given by me, for late application, otherwise known as an extension of time in which to appeal. The Court's task 17 This Court must now determine whether to annul the conviction and remit the matter to the Local Court. Matters impacting upon the exercise of discretion in permitting the applicant to amend his initiating paperwork and pursue his contest against the refusal to annul the conviction include whether notice of the charges was properly served; the applicant's explanation and/or motive for non-participation in Local Court proceedings, particularly the application for annulment; the nature and level of seriousness of the charges; the interests of justice in determining the issues between the parties on their real merits; and the interests of natural justice in affording an opportunity to the applicant to be heard now that he seeks to be heard. An important additional factor to be considered is the applicant's likelihood of success in any subsequent hearing of these two charges. In determining that issue it is important to note this Court does not regard itself as the tribunal of fact on the issues that may impact upon a Magistrate's view of evidence led by the parties in a fresh hearing. Evidence led in the Local Court would be a matter for it to assess. However, in circumstances where the applicant's chances of non-conviction in the Local Court on these two charges had no prospects of success there would be little point in annulling the convictions. 18 Were the decision confined only to a consideration of the applicant's explanation and/or motive for non-participation in the Local Court proceedings, the nature and level of seriousness of the charges; the interests of justice in determining the issues between the parties on their real merits and the interest of natural justice, I would be disposed, with some significant reservations, to grant the application, and remit the matter. I have relied upon the Affidavit of the applicant, filed before Magistrate Brown to come to this view. However, the question of success for the applicant in proceedings fully litigated before the Local Court is one that must be decided adversely to him for reasons that I shall now develop. 19 I am in a particularly suitable position to make this assessment, because the evidence presented before me, was presented as evidence in an appeal against the conviction itself. In all the circumstances each side had the opportunity of developing completely its case against a conviction on its merits. It is to be remembered s. 19 Crimes (Appeal and Review) Act provides for a rehearing on the transcripts. In this case there were no transcripts. Each side conducted its case by introducing evidence absent in the Local Court. The Respondent's Case 20 On 2nd June 2005 an officer of the Australian Taxation Office (ATO) contacted the applicant. He told the applicant the ATO had issued final notices for the income tax returns for the years 2003 and 2004, and complained these returns were still not lodged. The applicant advised of having personal problems and some illness but that he would be lodging the returns by the next Friday 10th June 2005. The ATO officer replied that the returns had been outstanding for a while. He said to the applicant, "A final notice was issued to your agent on behalf of you for outstanding returns for the years ended 30 June 2003 and 30 June 2004. The returns are yet to be lodged and prosecution is imminent." He continued, "The matter will now be referred to our prosecutions area. A summons may issue against you in the near future. As a general rule, our policy is not to proceed with a summons if a tax return is lodged before the summons is issued. However prosecution will proceed if the return is lodged after the issue of the summons. I would urge you to forward the return to your nearest Tax Office advised on the final notice. I would also like to advise that any outstanding debt associated with the lodgment of the outstanding return will need to be paid and any outstanding activity statement will need to be lodged." The applicant's response was that he would "have them lodged by next Friday" the 10th June 2005. 21 On the 8th June 2005 the same ATO officer thought he had a message from the applicant. In fact there was no message from the applicant, but there was a message from Cassaniti & Associates. On the following day the officer ultimately contacted Sam Cassaniti, who as events turned out had left the message. In that conversation Cassaniti told the ATO officer that he would speak to the applicant and get the outstanding returns lodged. 22 On 16th June 2005 Sam Cassaniti contacted the same ATO officer. Cassaniti advised the officer that his cousin (the applicant) had had health problems for a while. Cassaniti advised that all activity statements had been electronically lodged and requested another week to lodge the outstanding 2003 and 2004 income tax returns. The ATO officer's response was that it was not acceptable and that the returns must be lodged by Wednesday the 22nd June 2005. Cassaniti agreed to this. 23 On 20th June 2005 the s.162 Income Tax Assessment Act notice was issued and served on the applicant c/- Cassaniti & Associates. It will be remembered the final date given for compliance was 18th July 2005. 24 The parties agree there was a non-performance of the required tasks stipulated in the notice. That is to say no income tax returns for 2003 or 2004 were filed with the ATO on or by 18th July 2005. 25 On 18th July 2005 the applicant signed a letter (s. 13 request) faxed to the ATO in the following terms: On 20th June 2005 you made a decision in writing of an administrative character under an enactment namely, a decision that I must lodge income tax returns for the years ending 30th June 2003 and 30th June 2004… Pursuant to sec 13(1) of the Administrative Decisions (Judicial Review) Act 1977, I hereby request that you furnish to me, a statement in writing setting out the findings on the material questions of fact, referring to the evidence or other material on which those findings were based and the reasons for the Decision. We (sic) request that you do not take any further action for a period of fourteen days after we (sic) receive your reply. 26 From the respondent's perspective the first paragraph is capable of constituting an admission by the applicant of actual knowledge of the contents of the s.162 notice at least when this document was signed by the applicant, and presumably some time before the letter was written. 27 A statement under s.13 of the Administrative Decision (Judicial Review) Act 1977 addressing the issues raised by the applicant was issued by the ATO on 19th June 2005. 28 Between 19th July 2005 and 3rd May 2006 there was further contact between the ATO and the applicant. The details of that contact were objected to and the respondent has not tendered them. 29 By 28th April 2006 Elizabeth Besters one of the ATO in-house prosecutors at its Penrith office appears to have carriage of the matter. By that date a Court Attendance Notice was prepared. It was served on that date upon the receptionist at the applicant's business address Suite 1, Level 1, 106 Moore St Liverpool. It required the attendance of the applicant at the Parramatta District Court on 10th May 2006. 30 A facsimile signed by D.S.Cassaniti, the applicant's brother, David, writing on capartnership letterhead was received by the ATO on 8th May 2006. The relevant portions are: RE: Court Attendance Notice – Gino Robert Cassaniti We write to you in regards to the abovementioned served to our receptionist on the 5th (sic) of April 2006. We understand that the court attendance notice should have been served personally on the mentioned Defendant. Gino Cassaniti is currently on Workers Compensation. He will not be returning until his rehabilitation is completed. We believe that the Court Attendance Notice has not been properly served… 31 M/s Besters received the letter and phoned David Cassaniti. She told him, in effect, the service of the Court Attendance Notice was a valid service, being served on the applicant's business address. It would appear she relied upon Reg. 40 of the Income Tax Regulations 1936. David Cassaniti volunteered that the applicant didn't work there. M/s Besters said she had received documents from the applicant in relation to Sam and Patricia Cassaniti only recently. David Cassaniti's response was that the applicant did work there, but was currently off on worker's compensation. David Cassaniti requested a copy of the Court Attendance Notice. M/s Besters faxed a copy of it to him. She requested David Cassaniti advise the applicant of the notice as he was due in Court on the coming Wednesday (10th May 2006). Averments relied upon by the respondent 32 S.8ZL of the Taxation Administration Act 1953 provides that in a prosecution for a prescribed taxation offence, an averment contained in the information, claim or complaint is prima facie evidence of the matter so averred. Averments contained in the Court Attendance Notice included: * The applicant was required by the Deputy Commissioner of Taxation by notice in writing dated 20th January (2005) ("the Notice") to give the Commissioner of Taxation on or before 18 July 2005 in the approved form an income tax return for the period 1 July 2002 to 30th June 2003. * The Notice was duly served upon the applicant by posting it on 20th June 2005 by pre-paid letter posted at the applicant's preferred address for service, namely c/- Cassaniti & Associates, P.O. Box 163. Liverpool, NSW. * The applicant failed to furnish an income tax return in compliance with the Notice. * The period of time provided by the Notice to furnish the return was reasonable. 33 There were also averments relating to the proper delegation of power by the Commissioner through the Assistant Commissioner to the Deputy Commissioner who issued the notice. 34 A similar set of averments as those set out above, including the proper delegation of power to the Deputy Commissioner was made in respect of the income tax return for the period 1 July 2003 to 30th June 2004. The Defence Case 35 The applicant denied having any conversation with an ATO officer on 2nd June 2005. Indeed he denied telephoning the ATO in June 2005 about his taxation affairs. He says he could not have lodged his taxation returns by 10th June 2005. 36 The applicant denied that the notices ever came to his personal attention until he was served with the prosecution evidence. During the period 20 June 2005 to 19 July 2005 he did not attend the premises other than to collect documents for Sam Cassaniti. He denies he ever sent a facsimile seeking a Statement of Reasons pursuant to s.13 Administrative Decisions (Judicial Review) Act 1977. Exh D. (a facsimile copy of the s. 13 notice) carries the applicant's signature. He agreed in evidence the signature appearing on the document is his, but claims not to have read the document at the time of attaching his signature or at all. He claims to have been in court on the day it was signed (see below). 37 Of significance in this respect is a notation beneath the signature: s[?]pc:kw. Then on the line immediately below: I:\data\:O|f|oofiles:Karen:Sec 13 Req Gino 18.7.2005.doc (as best I can tell). I do not exclude the probability that the initials, spc if they be the initials reproduced, are the initials of Sam Cassaniti, indicating the letter originated from him and was typed by k (possibly Karen) w. Also of significance, and consistent with the s. 13 request being Sam Cassaniti's document is the use of the word "we" in the final paragraph. 38 The applicant's four sources of income came from: Reliance Financial Services, being PAYG income as an employee, rental income, trust distributions and interest. Reliance Financial Services did not give him pay slips or group certificates. These were documents he needed in order to know what had been paid by way of wages, reimbursements and allowances in the course of his work. In particular he was concerned about the whether Reliance Financial Services had withheld his tax credits. In October 2004 he had received an adverse tax adjustment of $50,432 on the basis of credits claimed by him that had been withheld. The ATO informed him it came to a view that the applicant and his tax agent showed an intentional disregard toward the obligations imposed upon him in regard to the Income Tax Assessment Act or regulations. As a consequence a base penalty was imposed on the shortfall amount at a rate of 75%. The impact of that encounter resulted in him being very conscious that as a Cassaniti he needs to be 100% accurate in his tax returns. He has been audited annually between 1997 and 2002. On the other hand, his only problem with the ATO prior to the instant case was the adverse tax adjustment referred to above. 39 He, along with other members of his family, had an interest in two properties. Each was a commercial property. Each had a number of tenancies on-going. Sam Cassaniti managed the properties. Cassaniti kept the applicant's share of rent generated by the properties. Even so, the applicant regarded his rent share as income assessable against him. In the period 20 June 2005 to 19 July 2005 he had no knowledge as to the amount of that income. Nor did he know what deductions and depreciation to claim in respect of the properties. 40 The applicant's case is that he has very complex income tax returns to prepare. He is unable to complete them if he doesn't have the full information in front of him. He had neither the information, nor access to the information required to complete his returns. Sam Cassaniti and his wife had all relevant records. Prior to 20th June 2005 he had made requests of Sam Cassaniti for groups certificates, rent statements and trust distributions. He had also sought outstanding moneys. His requests were unsuccessful. Cassaniti fobbed him off with comments such as "You'll get them soon." On many occasions he said to Cassaniti "I want those documents now." He and Cassaniti had arguments over it. Indeed, the arguments became heated to the point of violence. He didn't raise any of his problems with the ATO because he never had a chance to do so. 41 The applicant made no request of Sam Cassaniti for the necessary documents during the period 20 June 2005 and 19 July 2005, as he was ignorant of the requirements made in the s.162 notice. Consequently he did not have enough information in respect of wages, allowances, reimbursements, rent, moneys distributed to him by various trusts, moneys reinvested on his behalf, and deductions available to the trusts to complete his returns. He did not know where relevant documents were for him to complete his returns from go to whoa. Had he obtained all the documents, preparation of returns would have taken him 35 hours of work to prepare relevant financial statements in respect of each trust, 35 hours in respect of each property, and a substantial time in respect of his employment. There were 8 trusts nominated by the applicant and 2 properties. Thus, if I understand his evidence correctly it would have taken him 10 working weeks of 35 hours to complete the two income tax returns required by the Commissioner in a three week two days (23 day) period. The applicant conceded in cross-examination that had he been given the relevant returns of the partnerships and trusts all he would need to do would be to punch out end-figures from the computer. In re-examination he said that provided he had all returns for various trusts, partnerships, payslips and group certificates he would have completed his return within a week. 42 The applicant disagreed with time-frames given to officers of the ATO prior to 19th July 2005 by Sam Cassaniti apparently on the applicant's behalf for completion of the income tax returns saying they were substantially inadequate. 43 In mid 2005 Sam Cassaniti put the bite on the applicant for money. He told the applicant: "I need money for my trial, and I need your help." Cassaniti had been charged with unrelated Commonwealth offences. The interlocutory applications relating to the trial commenced on 19th July 2005. The trial ran from 3rd August until 30th September 2005. The applicant contributed sums he raised from selling a Marulan property. In respect of this trial, the applicant worked 7 days weekly from 7am until 8 or 9pm. He believed he was legally obliged to do so, because Cassaniti was his employer. The applicant was also involved in the final week in June in instructing in a Supreme Court case in which Reliance Financial Services had a $600,000 interest. 44 The applicant knew the ATO had procedures to "get around" the absence of payslips or group certificates. However, he didn't utilize that procedure. 45 It was in the applicant's interests to lodge his returns. He thinks he is due a refund, so it was to his benefit to lodge the returns. He still does not have the relevant records to prepare his income tax returns. Cassaniti had been released from custody. His freedom last a month, when he was returned to custody. During this time the applicant gave him records, and Cassaniti told the applicant he would help do whatever he could. On Cassaniti's return to custody he took the records with him. The records were then confiscated by the Department of Corrective Services when Cassaniti returned to custody, and have been lost as Cassaniti moved from gaol to gaol. Resolution 46 The prescribed taxation offences charged are offences of absolute liability. The effect of that is that there are no fault elements for any of the physical elements of the offence. Thus, in the circumstances of this case the prosecution is absolved from the obligation to prove intention, knowledge, recklessness or negligence with respect to the physical element of the offence. Moreover, the defence of mistake of fact is unavailable. (see Criminal Code 1995 s. 6.2 and s.5.1) 47 These offences are created by s.8C (1)(a) of the Taxation Administration Act 1953. The essential elements of each offence are: * That on 19th July 2005 the applicant failed to furnish an approved form to the commissioner within the time required by the commissioner; * The applicant was required pursuant to a taxation law to furnish an approved form by that time. Each must be proved beyond a reasonable doubt. 48 As the offence is pleaded the word "on" should be "by". No objection was taken to the form of the charges. The issues between the parties were clearly understood as relating to the non-performance of a requirement made by a delegate to the commissioner pursuant to a s.162 notice setting a period that ended 18th July 2005. There is no disadvantage to the applicant. Indeed he is advantaged as the charge stands because its effect is to permit him an extra day to comply. 49 S.8C (1B) provides that subsection (1) does not apply to the extent that the person is not capable of complying with the relevant paragraph. The applicant clearly seeks to take advantage of this subsection. In the circumstances of this case that would impose an evidential burden upon him to establish as a reasonable possibility that he could not within the relevant period expiring on 19th July 2005 comply with the request to any extent. It will shortly be seen he fails to do so. 50 The starting point is to examine the issues arising from quality of the respondent's proof of the first element. The direct factual evidence is not really in dispute, but for the question of reasonableness of time and whether the non-performance of the task required constitutes a failure. The averments establish that a s162 notice was sent to the applicant by posting it on 20th June 2005. S. 160 Evidence Act 1995 (Cwth) raises a presumption that a letter from a Commonwealth agency addressed to the applicant would have arrived at the relevant address on the fourth working day after that date. It is not contested by the defence the notice arrived at the applicant's business and preferred address for service on or by Friday 25th June 2005. Its arrival at the business address constitutes service of the notice upon the applicant. It is to be remembered the same s.162 notice is relevant to both offences. 51 Exh D is a copy of the notice. It requires the income returns for 2003 and 2004 to be given to the Commissioner by the 18th July 2005. The applicant claims his attention was not drawn to the s162 notice until the criminal proceedings commenced in April-May 2006. This raises an issue as to what is meant by the successful service of a s162 notice. What does a s162 notice give notice of? It must impute, at very least, an awareness that the notice is a notice issued pursuant to s.162 of the Income Tax Assessment Act, and therefore that it requires compliance on or by the 18th July 2005 with demands stipulated pursuant to s.162 Income Tax Assessment Act in the notice. 52 There are other matters stipulated in the notice that do not appear covered by the provisions of that section. I question whether, in circumstances as claimed here - where the person deemed served is in reality unaware of the contents of the physical document, the provisions of s.162 can impute notice of those additional matters contained in the notice not directly covered by the section. That the applicant is unaware of the existence of a notice successfully and properly served, however does not absolve his claimed absence of knowledge of its s.162 requirements. As the defence case was run, I did not understand the consequence of successful and proper service of the notice and its consequences to be an issue. 53 Nor is there any dispute that an income tax return is an approved form. 54 Nor is there any dispute of the non-performance of the required task. The defence claims in the circumstances of this case there was no "failure". In the normal course of events words in indictments or statutes should be given their normal meaning. The Macquarie Dictionary relevantly defines fail to mean: "- v.t. 6. to neglect to perform or observe: he failed to come." In Deputy Commissioner of Taxation v Ganke [1975] 1 NSWLR 252 there was discussion, appropriate to the context of this case, in the Court of Criminal Appeal of the meaning of "failed". Nagle J, with whom Street CJ and Begg J agreed, referred to a judgment of Sir Frederick Jordan who in Ingram v Ingram said: As to the first point, where it is provided by statute that certain consequences shall follow if a person fails to do something which is directed to be done, the meaning of the word 'fail' depends upon the context in which it is found. In some contexts it may mean the omission to do the thing in question, irrespectively of any reason which may have existed for his not doing it. In other cases it may mean an omission to do the thing by reason of some carelessness or delinquency on his part, but not omission caused by impossibility for which the person in question is not responsible . In other cases it may mean omission to do the thing, but so that omission caused by impossibility arising from some causes is included and from others is excluded. In the case of s.11 (failure to comply with a restitution decree under the Matrimonial Causes Act ) I am of opinion that the mere fact that the directions of the restitution decree have not been performed, although supplying evidence of failure to comply with the decree, does not establish such failure conclusively; and that evidence that the non-performance has been occasioned by some supervening impossibility to which no carelessness or delinquency on the part of the respondent in any way contributed would justify the interference that there had been no failure to comply with the decree." (emphasis supplied; citations excluded) 55 Asprey J.A. in the same case made this observation: Other examples of the failure to perform an act can readily be envisaged where the act is to be performed pursuant to a request or under the obligation, as here, of a statutory duty or otherwise. I do not think that it is necessary to go to the length of reading into the subsection any additional words for the reason that, in the absence of the immediate announcement of a refusal to perform, the word 'fails' itself bears the connotation of a lapse of time to enable compliance with the obligation of performance; it imports the passage of some period of time which will vary with the nature of the act to be performed and the circumstances in which it is to be performed. 56 Nagle J opted for the second category (emphasized in the citation) from Sir Frederick Jordan's judgment. It appears to involve two considerations in resolving the question of failure – firstly, whether carelessness or delinquency contributed to the omission to do the act; and secondly, whether the omission may be excused by an impossibility of performance for which the person in question is not responsible. How these second and third considerations stack up against the concept of absolute liability (s.s.(1A)) attaching to the prescribed taxation offences created by S.8C (1) Taxation Administration Act needs to be resolved. Neither Sir Frederick Jordan, nor as I understand it the Court of Criminal Appeal were dealing with offences of absolute liability. By contrast offences created by s. 8C (1) are offences of absolute liability. 57 Consequently in proving the physical elements of the offences before the Court (and this first element is a physical element) fault does not need to be proved. Carelessness and delinquency are captured by the words "intent", "knowledge", "recklessness" and "negligence". Unconstrained by authority to the contrary, I am prepared to hold the respondent does not have to prove "carelessness and delinquency" to prove the applicant "failed". Thus, when applying the meaning given to 'failed' I bear in mind the respondent does not have to prove beyond a reasonable doubt "fault" implicit in the words "carelessness" and "delinquency". The respondent's case is there is fault. 58 The final consideration, it should be noted is in addition to the second. What has to be established is that the omission was caused by an impossibility for which the person in question is not responsible. Clear focus needs to be given to precisely what is the omission relied upon by the respondent. It is the claimed failure to furnish income tax returns within a 3 week 2 day period. There is of course the averment made by the respondent of the failure of the applicant to furnish income tax returns in compliance with the notice. However there is also the evidence of the applicant which is telling on this point. 59 As was observed by Southwell J in Alva Nationa Pty Ltd v Unger (1981) 36 ALR 665 there are a number of steps which must be taken to furnish a return. The applicant's evidence is during the relevant three week two day period he made no request of Sam Cassaniti for any documents, income returns of trusts or partnerships. That, of course would be among the first steps, on his evidence, he would need to have taken to furnish a return. The position for the respondent on this issue is even stronger. It is clear from the applicant's evidence that during this 3 week 2 day period to the 19th July 2005 the applicant took no other steps at all towards complying with the request to furnish either or both income tax returns. It must be remembered Ganke's case recognises the very fact that the directions of the restitution decree have not been performed can itself amount to evidence establishing failure to comply – albeit not necessarily conclusively. 60 With hindsight he now says there were arguments and the like with Cassaniti outside this 3 week 2 day period. But he has not established in the evidence, as he must do in the face of the averment, a reasonable possibility of impossibility of performance during this period. "Impossibility" is an absolute term. The applicant's case commenced with the tender of a 26 paragraph statement, which, no doubt, was a considered statement, sworn on his oath to be true. In paragraphs 11 and 12 of the applicant's statement he says that between 20th June 2005 and 19th July 2005 he did not ask Sam Cassaniti for the necessary documents. Before the 20th June 2005 he had asked (presumably on more than one occasion) Cassaniti in words to the effect, "Can I have all my papers, my group certificates, my rent statements and my trust distributions." The applicant's evidence was: "Cassaniti would say: 'Yeah, you'll get them soon.'" On other occasions he would say: "Pat (Cassaniti's wife) is doing them, they will be ready soon." On other occasions he would say, "Later, later, I will get them done. Right now I'm busy with all my Court cases." 61 The Court is entitled to infer, as I do, that Cassaniti always had the interests of the applicant at heart. These exchanges do not establish as a reasonable possibility that a request for these documents from his tax agent, cousin and employer, made in the light of a s162 notice must inevitably have produced no documents at all for him to prepare his income tax returns as required in that period. Cassaniti was not refusing, point blank, to provide the documents – he was just delaying on the day of each request thus far made. 62 Nor does this claimed state of affairs (the continual refusal to provide documents) establish that some compliance short of full compliance was impossible. The applicant had not taken any steps to utilize procedures he knew the ATO relied upon to "get around the absence of payslips, group certificates and the like. S. 8C (1B) makes clear that some compliance short of full compliance may be acceptable to avoid conviction for an offence. (cf Ambrose v Edmonds-Wilson (1988) 19 ATR 1217 at 1219). While I note the s162 notice demands "full statements from all sources in and out of Australia", that demand is to be understood as modified by s.8C (1B) Taxation Administration Act when a Court considers whether an offence under s. 8C (1) is committed. I have considered whether the absence of any reference of the words "to the extent that the person is capable of complying" impacts (as perhaps being misleading) upon the effect of the notice served as a s.162 notice. In my view it does not. The applicant conceded in cross-examination he had not sought to utilize the ATO procedures to get around the absence of pay slips and the like. He did nothing to prepare income tax returns. 63 A final argument advanced by the applicant was that the respondent had not proved the time was reasonable. The applicant claimed the onus of proof fell upon the respondent. Reliance was placed upon Ganke's case (ante). Ganke deals with offences of a kind similar to the instant case – but the legislation dealing with the requirement and offence appear framed differently. In Ganke the section of the statute creating the demanded requirement does not specifically authorize the Commissioner to specify a date for completion of the requirement. In order that the Commissioner's notice in writing requiring a person under s.264 (1.) (b) to give evidence before him, or to produce books, documents or papers, the Commissioner must of necessity indicate in the notice the time and place at which the evidence is to be given or the material provided, but the section does not specifically refer to these matters being included in the notice, nor does it in regard to the furnishing of information, as required by s. 264 (1.) (a). Ganke at p.256). There was no statutory fiat authorizing the Commissioner to set a time – hence refuge to the common law requirement, the time had to be reasonable. 64 The section of the statute then creating the offence of failure to comply (s.223) on the other hand referred to failure to perform the required task "as and when required". In such a situation the question of whether the time-frame was reasonable is likely to arise because of the absence of the statutory fiat. 65 However, in this case the situation differs. S.162 Income Tax Assessment Act requires the required task to be done "within the time [the Commissioner] required". S.8C (1) creates an offence when a person refuses "as and when required" to perform the required task. What is now needed to prove the first element of the offence is the failure to perform the required task within the time-frame set pursuant to s.162, that is, within the time required by the Commissioner. If there is to be a claim that the time-frame set pursuant to s162 is oppressive or unreasonable, then that is an issue that needs to be raised by the defence. 66 If the time-frame provided in a s 162 notice is oppressive or unreasonable, that may well provide grounds for setting aside the notice upon it being served as a better course, rather than relying upon it as a defence to a prosecution. Of course, a failure to make an application during the life of the s.162 notice to set aside the notice as having a time-frame that is oppressive or unreasonable may be a matter that can be taken into account on the question of whether the time frame is, in fact, unreasonable. Particularly may that be so with someone experienced in dealing with the ATO in respect of tax returns. 67 The applicant's case is his preparation of the two income tax returns would have taken more than 10 working weeks. The applicant relies upon remarks made by Southwell J in Alva Natona (ante). It is to be observed that the reasonableness of the time in general is a question of fact peculiarly within the knowledge of the taxpayer. He knows of any difficulties or complexities which may present themselves in the preparation of a taxation return. It may well be that the Deputy Commissioner has little knowledge of those matters. It cannot be said to be unjust to cast upon the defendant an evidentiary onus in such a proceeding, for example by calling an accountant to speak of the difficulties involved. That is not to say, of course, that the defendant bears the final onus of proof. 68 Be that as it may, the applicant's claimed ten week preparation period needs to be tested against other evidence in the case. 69 On 2nd June 2005 an ATO officer claims he spoke to the applicant. The applicant denies the conversation was with him – but is in no position to deny the conversation occurred. Whoever the conversation was with, it must have been with someone familiar with the applicant's situation, he relied on the applicant's poor health, and had the applicant's interests at heart. The Court can also infer, as I do, the times sought to complete the returns were sincere estimates of what time was required. Interesting to note in the conversation there is no complaint of an absence of documents or any anticipated difficulty in preparing the return. The time nominated by the person was the next Friday (10th June), that is, a period of 8 days. 70 Some 6 days after the 10th June deadline, on 16th June 2005 Sam Cassaniti, the applicant's tax agent, advises of the applicant's health problems (consistent with the earlier caller). He requested another eight days. There can be no doubt Cassaniti had the applicant's interest at heart. The period he nominated is also an 8 day period, that is, the same as nominated on 2nd June. 71 Four days after Cassaniti's call, the ATO issue the s.162 notice. Nothing is heard until the s.13 request is advanced on 18th July 2005 by Cassiniti. The significance of the 18th July date is that it was the final day allowed in the s162 notice for the performance of the required tasks. I am satisfied this request was a time-stalling exercise undertaken probably by Cassiniti. I regard the key request being: "We request that you do not take any further action for a period of fourteen days after we receive your reply." I am satisfied the 14 day period he selected was a period he calculated would be reasonable to complete the returns – and therefore offer some attraction to the ATO. It is to be remembered on the applicant's case Sam Cassaniti knew the applicant's income and business deductions situation better than the applicant himself. 72 While there is an attempt made to stall proceedings using a s.13 request, there was no attempt made during the period stipulated in the s162 notice to seek formally an extension of the period or to complain of the inadequacy or unreasonableness of the period. 73 The three weeks two days allowed by the Commissioner's delegate as measured against those times sought on behalf of the applicant during June and July 2005 certainly qualifies as more generous, and as being reasonable. 74 The applicant concedes the ten plus week period would only have been needed in the absence of computer records. The applicant makes reference of having the records necessary to complete his tax returns in his possession during a one month period his cousin was free of custody. Moreover, on 16th June Sam Cassaniti advised that all activity statements had been electronically lodged with the ATO. Those two facts, coupled with the time periods sought by Sam Cassaniti persuade me records relating to 2003 and 2004 financial years were in existence in some form, albeit perhaps only within a computer or computers, during the period June – July 2005. That finding comforts me in my conclusion the periods sought during telephone calls with ATO officers were reasonable for the tasks required. 75 After reviewing the evidence, I am satisfied the applicant's prospects of avoiding a conviction in respect of either charge are non-existent. I am also satisfied beyond reasonable doubt the respondent, assuming he relied upon the same averments as are contained in the Court Attendance Notice and such other evidence as it has introduced into the hearing before me, would succeed in proving the applicant has failed to furnish an approved form by July 19th in respect of each charge. In so finding it is clear I regard the first element as established in the evidence before me beyond a reasonable doubt. There is no reason to suppose a Magistrate viewing the same evidence could come to any other decision. 76 Proof beyond reasonable doubt of the second element would be achieved by the tender of Exh D, the 162 notice. Its terms make clear the requirement to give the 2003 and 2004 financial year income tax returns by July 18th 2005 are made pursuant to s162 of the Income Tax Assessment Act 1936. The second element would be proved beyond a reasonable doubt by this tender. 77 It will be noted in my resolution thus far of the facts, the conclusion is reached the respondent inevitably must prove beyond reasonable doubt his two charges against the applicant. I have deliberately made these finding without, to this point, assessing the credibility of the applicant. 78 It is plain from the finding I have made without reliance upon the applicant's credibility that I am of a view he never had any prospects of raising a reasonable doubt in respect of either element of the offence in a challenge to the refusal to annul the convictions. In those circumstances he never had any prospects of not being convicted – an important matter for a court to consider when determining whether to annul a conviction. 79 While tribunals of fact may vary in their assessment of credibility, I am satisfied even if all of the applicant's evidence were accepted, (a proposition to which I personally would not subscribe) the outcome of each charge would be adverse to him. 80 In all the circumstances the appeal against the Magistrate's refusal to annul the convictions must be dismissed. 81 The formal orders are: * Leave is granted to amend Notice of Appeal against Conviction to Notice of Appeal against Refusal to Annul Conviction; * Late application for leave to appeal against refusal to annul conviction is granted; * The appeal against the refusal of the Local Court to annul the conviction is dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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