Soong v Commonwealth Director of Public Prosecutions [2009] NSWSC 422

New South Wales Supreme Court

CITATION : Soong v Commonwealth Director of Public Prosecutions [2009] NSWSC 422

HEARING DATE(S) : 12/03/08-13/03/08.

JUDGMENT DATE : 21 May 2009

JUDGMENT OF : Hidden J

DECISION : Leave to appeal refused

CATCHWORDS : CRIMINAL LAW - appeal from interlocutory decision of magistrate - application for permanent stay of proceedings refused - issues of double jeopardy, delay and health - no error of law

Income Tax Assessment Act 1936 (Cth) Taxation Administration Act 1958 (Cth) LEGISLATION CITED : Crimes (Appeal and Review) Act 2001 Crimes Act 1914 (Cth) Criminal Procedure Act 1986

The Queen v Carroll [2002] HCA 55, 213 CLR 635 CASES CITED : Pearce v The Queen (1998) 194 CLR 610 Jago v District Court (NSW) 1989 168 CLR 23

PARTIES : James Soong (plaintiff) Commonwealth Director of Public Prosecutions (defendant)

FILE NUMBER(S) : SC 2007/14675

COUNSEL : J Mendel (plaintiff) M Bracks (defendant)

SOLICITORS : V Cassimaty J Zaki (CDPP)

LOWER COURT JURISDICTION : Local Court

LOWER COURT JUDICIAL OFFICER : Bartley LCM

LOWER COURT DATE OF DECISION : 20 August 2007

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HIDDEN J

21 May 2009

2007/14675 James Soong v Commonwealth Director of Public Prosecutions

JUDGMENT 1 HIS HONOUR: Proceedings are in train in the Local Court against the plaintiff, James Soong, who faces 34 summary charges under s221F(14) of the Income Tax Assessment Act 1936 and s8Y of the Taxation Administration Act 1958 that he was concerned in the management of two companies which failed to remit PAYE tax instalments to the Commissioner of Taxation. His application to that Court for a permanent stay of proceedings was refused by Magistrate Bartley. He seeks leave to appeal against that decision under s53(3)(b) of the Crimes (Appeal and Review) Act 2001. That provision empowers this Court to entertain an appeal by leave against an interlocutory order made by the Local Court, but only on a ground involving a question of law alone. 2 The offences are alleged to have been committed over a three year period between 1995 and 1998. At relevant times Mr Soong was a director of the two companies involved, Concrete Formwork Pty Ltd and Build-Form Pty Ltd. Those companies were part of the Fyna group of companies, of which the applicant was the managing director. The business of those companies was supplying formwork for construction. The total of the tax instalments involved is almost $7.5 million . 3 It is necessary to sketch the history of the proceedings. Between mid 1998 and early 1999, the Australian Taxation Office (ATO) conducted an audit of the Fyna group, during which company records were produced and meetings took place with Mr Soong and the group's in-house accountant, Edward Pearce. The investigation uncovered evidence that money deducted from employees' wages which should have been remitted to the ATO had been used for purposes relating to other corporate commitments of Mr Soong. On 23 February 1999 the Australian Federal Police executed a number of search warrants, seizing relevant records, and on the same day both Mr Soong and Mr Pearce were arrested. 4 Both men were charged with three counts of defrauding the Commonwealth, under s29D of the Crimes Act 1914. In August of that year, after an assessment of the sufficiency of the evidence against Mr Soong to support those charges, the Director of Public Prosecutions decided that they should be withdrawn because of a deficiency in the evidence which need not be examined for present purposes. On 25 August the Director was granted leave in the Local Court to withdraw the charges. Mr Soong, who was represented on that occasion, did not oppose that course. However, the prosecution of Mr Pearce for the three charges proceeded, and towards the end of 2000 he was found guilty of them and sentenced to a term of imprisonment. 5 Early in 2001 the Director commenced a review of the available evidence to determine whether there might be a basis to lay further charges against Mr Soong. Additional material was received from the Federal Police but, more significantly, on 2 May 2002 Mr Pearce contacted the police and offered to provide information to assist them in the investigation. On 24 November 2002 he took part in a lengthy recorded conversation with the case officer, federal agent Moerman. A transcript of that conversation was furnished to the Director in January 2003. In the light of the information provided by Mr Pearce, and after an examination of documents referred to by him, the case against Mr Soong was re-assessed. 6 In the result, approval was given on 30 July 2003 to launch the prosecution of Mr Soong for one offence under s29D of the Crimes Act, alleging his defrauding the Commonwealth by concealing PAYE deductions of employees of another company of the Fyna group, Noxequin Pty Ltd, and for the 34 charges the subject of these proceedings. Those summary charges arose from the conduct giving rise to the earlier charges under s29D which had been withdrawn. Court attendance notices in respect of all these charges were served upon Mr Soong on 26 August 2003. It is the Director's case that the evidence available from Mr Pearce was an important factor in the decision to bring these new charges. 7 The brief relating to the charges was served in mid October 2003. At the end of July 2004 Mr Soong was committed for trial in respect of the s29D offence. The summary charges were placed on a certificate under s166 of the Criminal Procedure Act 1986 as related offences, to be dealt with by the trial judge at the end of the trial. The trial took place over several weeks between April and May 2005, but the jury was unable to reach a unanimous verdict. 8 There then ensued negotiations about the disposition of the outstanding matters. Initially, Mr Soong offered to plead guilty to a charge of imposition on the Commonwealth under s29B of the Crimes Act for the Noxequin matter, in place of the s29D charge, if the summary charges were withdrawn. The Director was prepared to accept the plea to a s29B charge but not to withdraw the summary charges. Mr Soong was not prepared to enter pleas to the summary charges until the indictable matter was resolved. In the event, the plea of guilty to the s29B charge proceeded in the District Court, but the Director obtained an order that the summary matters be remitted to the Local Court. 9 The charge under s29B was an attempt to impose upon the Commonwealth by an untrue representation that there was no company other than Build-Form Pty Ltd in the Fyna group that should be remitting PAYE tax. The focus of the charge was the concealment of the fact that PAYE tax instalments amounting a little over $475,000 had been deducted from the wages of Noxequin employees but not remitted to the ATO. The plea was entered before Tupman DCJ, and her Honour sentenced Mr Soong to a term of imprisonment for 9 months which was suspended under s20(1)(b) of the Crimes Act. It will be necessary to examine these sentence proceedings further, because they lie at the heart of some of the grounds of the present application. 10 In December 2006 the summary matters were listed for hearing in the Local Court for five days, commencing on 14 May 2007. In the event, those days were occupied by the application for a permanent stay. Magistrate Bartley's judgment refusing that application was delivered on 20 August 2007. This outline of the proceedings omits a number of intermediate steps, including adjournments, set out in detailed chronologies provided to his Honour by both parties.