Cassaniti v R [2007] NSWCCA 66

New South Wales Court of Criminal Appeal

CITATION: Cassaniti v R [2007] NSWCCA 66

JUDGMENT DATE: 16 March 2007

JUDGMENT OF: Sully J at 1; Howie J at 53; Latham J at 54

DECISION: The appellant have all such extensions of time necessary to permit of prosecution of appeal against conviction; Appeal against conviction dismissed

Crimes Act 1914 (C'th) LEGISLATION CITED: Income Tax Assessment Act 1997 (C'th) Corporations Act 1989 (C'th) Bankruptcy Act (1966) (C'th)

PARTIES: Salvatore Peter Cassaniti Regina

FILE NUMBER(S): CCA 2006/1860

COUNSEL: P. Roberts SC - Crown Respondent B. Coles QC/P. Byrne SC/D. McGovern SC/S. Buchen - Appellant

SOLICITORS: Commonwealth D.P.P - Crown Respondent Kiki Kyriacou Lawyers - Appellant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 4/11/1461

LOWER COURT JUDICIAL OFFICER: Norrish DCJ

LOWER COURT DATE OF DECISION: 2 December 2005

IN THE COURT OF CRIMINAL APPEAL 2006/1860

SULLY J HOWIE J LATHAM J 16 March 2007 Salvatore Peter CASSANITI v REGINA Judgment

SULLY J:

Introduction 1 Between 25 July 2005 and 30 September the appellant, Mr. Cassaniti, stood trial in the District Court at Sydney before his Honour Judge Norrish QC and a jury. 2 The appellant was so tried upon an indictment containing 24 counts. Each count, except count 21, charged the appellant with having defrauded the Commonwealth of Australia of a sum certain in money. The amount of the largest defrauding thus charged was $38,323.00 (count 15); that of the smallest such defrauding was $4,266.57 (count 20). Various dates were laid in the various counts; the earliest date being 15 August 1997, (count 1), and the latest date being 30 March 2001, (counts 19 and 20). 3 Count 21 charged the appellant with having attempted to defraud the Commonwealth of Australia of a sum certain in money. The date laid was 15 March 2001. The relevant amount was $2,680.77. 4 Each of the 24 counts alleged a contravention of section 29D of the Crimes Act 1914 (C'th). Any such contravention attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 10 years. 5 The jury found the appellant not guilty on count 1 and guilty on each of the remaining 23 counts. The appellant was in due course formally convicted and sentenced to various terms of imprisonment. There is no present challenge to any of these sentences and nothing more need be said about them. 6 The appellant challenges all twenty-three of his convictions. Three grounds of appeal, as follows, were notified and argued: "1. The Learned Trial Judge misdirected the jury about the consequences of company deregistration. 2. The Learned Trial Judge misdirected the jury about the consequences of company liquidation. 3. The Learned Trial Judge misdirected the jury on the issue of Joseph Paragalli's bankruptcy." 7 The appellant gave, on 7 November 2005, notice of his intention to appeal. The requisite notice of appeal and accompanying statement of the grounds of appeal were not filed until 9 August 2006. It is necessary, therefore, that the appellant obtain from this Court an extension of time for the filing of the latter documents. An application for such an extension was filed on 9 August 2006. It explains in detail the reasons for the delay in the filing of the formal notice and statement of grounds of appeal. The explanation thus given is not controversial. In my opinion the necessary extension should be granted. I will propose in due course an appropriate formal order in that behalf. 8 The written submissions of the Crown contain what is described as a "Synopsis of Crown case". Because of the contained issue which is raised by each of the grounds of appeal, it is convenient to use this summary in order to outline at this early point in the present reasons the general context of the particular charges brought against the appellant: "6. The appellant was the principal of an accountancy firm, Cassaniti and Associates, and a registered tax agent. 7. During the period covered by the counts in the indictment, August 1997 to March 2001, the appellant lodged income tax returns in the names of various of his clients or companies of his clients, knowing that the returns contained false information, and that on the basis of this false information, the Australian Taxation Office (ATO) would make refunds of purported income tax payments which were not properly refundable. In each case, the income tax returns claimed either Prescribed Payment System (PPS) tax instalments or Pay as You Earn (PAYE) taxation deductions had been made. In each case, to the appellant's knowledge, no such payments or deductions had occurred. Each of the income tax returns in question contained other false information, including the amount said to have been earned by the taxpayer for the particular financial year, and expenses incurred, such false information being included to generate and support a refund." 9 In the light of the discussion which is to follow, it is useful to stress at once that the gravamen of the Crown case as so defined was not some unlawful conduct on the part of the appellant in connection with what might be called corporate governance. Neither was the gravamen of the case an unlawful passing off, so to speak, by the appellant of himself as a person having a particular authority which in truth he did not have. The gravamen of the case was a course of conduct engaged in by the appellant with the deliberate intent of perpetrating thereby a fraud upon the Commonwealth. 10 Of the 24 counts included in the indictment, those numbered 1 to 15 inclusive related to taxation returns which had been filed on behalf of various companies of which a certain Mr. Paragalli had been initially a Director. Mr. Paragalli had instructed his previous accountant to set up the companies in order to allow him to carry on his business in the transport industry. Mr. Paragalli became, subsequently, both a client and a debtor of the appellant. On 1 April 1998 Mr. Paragalli, at the appellant's suggestion, became bankrupt. A central allegation of the Crown case against the appellant was that false taxation returns had been lodged as a means of recovering thereby significant sums of money which could be paid over to the appellant on account of large sums of money then owed by Mr. Paragalli to the appellant on account of both outstanding accountancy fees and outstanding loans. 11 Each of the counts numbered 1 to 15 inclusive in the indictment concerned a particular company taxation return. In each case the particular return was for a particular financial year; had been filed electronically on behalf of a particular company; and claimed, in the Crown case falsely to the knowledge of the appellant, refunds of previously paid taxation instalments. The appellant did not give evidence at his trial. His defence at trial was conducted upon the basis that there was a reasonable possibility that each of the relevant taxation returns represented, respectively, in fact the true trading position of the relevant company; and that there was, as well, a reasonable possibility that, insofar as the information contained in any of the returns was false, the appellant was unaware of that falsity. This two-fold defence strategy at trial raised essentially a common proposition, namely, that the jury at trial could not be satisfied beyond reasonable doubt that the appellant knew that the relevant companies were not in fact entitled to the refunds which they were respectively claiming in the relevant taxation returns. 12 The remaining 9 counts in the indictment were concerned, not with company taxation returns, but with personal income taxation returns. As will appear presently, the present appeal puts in issue alleged misdirections to the jury on the topic of the submission of company taxation returns; and with the related topic of the effect, if any, that Mr. Paragalli's bankruptcy had on his capacity to act as the public officer of a company for the purposes of signing the relevant company taxation returns. It follows, therefore, that if there were misdirections as now alleged by the appellant, then they could have had no relevant effect upon the deliberations of the jury in connection with counts 16 to 24 inclusive in the indictment.