Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: GIOURTALIS, Angelos v R [2013] NSWCCA 216 Hearing dates: 21 February 2013 Decision date: 25 September 2013 Before: Bathurst CJ at [1]; Hidden J at [1796]; Button J at [1799] Decision: (1) Appeal against conviction dismissed. (2) Grant leave to appeal against sentence but appeal dismissed. Catchwords: CRIMINAL LAW - appeal - conviction for multiple counts of defrauding and attempting to defraud the Commonwealth pursuant to s 29D and s 7 of the Crimes Act 1914 - whether misdirection in summing up to jury - whether misdirection by the trial judge in relation to mistake, the rule in Browne v Dunn and the taxation of foreign residents. CRIMINAL LAW - appeal - conviction for multiple counts of defrauding and attempting to defraud the Commonwealth - whether error from prejudice regarding the admission of tendency and coincidence evidence. CRIMINAL LAW - appeal - conviction for multiple counts of defrauding and attempting to defraud the Commonwealth - application of proviso in s 6(1) of the Criminal Appeal Act 1912 - whether error by trial judge such as to make it inappropriate to apply s 6(1). CRIMINAL LAW - appeal - sentencing - considerations - whether trial judge failed to take into account or give sufficient weight to delay - severity of sentence. Legislation Cited: Bankruptcy Act 1966 (Cth), Pt X Corporations Act 2001 (Cth), ss 232, 998 Crimes Act 1914 (Cth), s 7, s 29D Criminal Appeal Act 1912, s 6 Criminal Procedure Act 1986, s 33 Evidence Act 1995 ss 97, 101 Income Tax Assessment Act 1997 (Cth), s 6-5 Misuse of Drugs Act 1981 (WA) Cases Cited: AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 Andrews v The Queen [1968] HCA 84; (1968) 126 CLR 198 Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92 Bangaru v The Queen [2012] NSWCCA 204; (2012) 297 ALR 108 Browne v Dunn (1893) 6 R 67 Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373 Dao v The Queen [2011] NSWCCA 63; (2011) 81 NSWLR 568 DSJ v The Queen [2012] NSWCCA 9; (2012) 259 FLR 262 Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521 Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293 Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1 Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282 Homsi v R [2011] NSWCCA 164 House v The King [1936] HCA 40; (1936) 55 CLR 499 Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51 Khamis v The Queen [2010] NSWCCA 179; (2010) 203 A Crim R 121 Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202 Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 Macleod v The Queen [2003] HCA 24; (2003) 214 CLR 230 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 Nudd v R [2006] HCA 9; (2006) 225 ALR 161 Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 Patel v The Queen [2012] HCA 29; (2012) 86 ALJR 954 Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493 PNJ v Director of Public Prosecutions [2010] VSCA 88; (2010) 27 VR 146 Quartermaine v The Queen [1980] HCA 29; (1980) 143 CLR 595 R v Birks (1990) 19 NSWLR 677 R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308 R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 R v Gay [2002] NSWCCA 6; (2002) 49 ATR 78 R v Kearnes [2003] NSWCCA 367 R v Petroulias [2005] NSWCCA 75; (2005) 62 NSWLR 663 R v Schwabeggar (1998) 4 VR 649 R v Scook [2008] WASCA 114; (2008) 185 A Crim R 164 R v Soto-Sanchez [2002] NSWCCA 160; (2002) 129 A Crim R 279 R v Todd (1982) 2 NSWLR 517 R v Zhang [2005] NSWCCA 437; (2005) 158 A Crim R 504 RWB v The Queen [2010] NSWCCA 147; (2010) 202 A Crim R 209 S v The Queen [1989] HCA 66; (1989) 168 CLR 266 Spies v The Queen [2000] HCA 43; (2000) 201 CLR 603 Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 Wills v Petroulias [2003] NSWCA 286; (2003) 58 NSWLR 598 Category: Principal judgment Parties: Angelos Giourtalis (Appellant) Regina (Respondent) Representation: Counsel: D G Pullinger (Appellant) P R McGuire (Respondent) Solicitors: Sydney Criminal & Family Lawyers (Appellant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2009/14973 & 56 ors Publication restriction: No Decision under appeal Jurisdiction: 9101 Date of Decision: 2011-11-18 00:00:00 Before: Syme DCJ File Number(s): 2009/14973 2009/15550 2009/15664 2009/17179 2009/18085 2009/20772 2009/20773 2009/20774 2009/20775 2009/27607 2009/27935 2009/28580 2009/28785 2009/31562 2009/31563 2009/31564 2009/31566 2009/81736 2009/81737 2009/81738 2009/81741 2009/87465 2009/89337 2009/92820 2009/92821 2009/98339 2009/98340 2009/98341 2009/98344 2009/107234 2009/108597 2009/108971 2009/109549 2009/111753 2009/114008 2009/115505 2009/115664 2009/117329 2009/118238 2009/119821 2009/120998 2009/121101 2009/162243 2009/162244 2009/162245 2009/162246 2009/162247 2009/162248 2009/162249 2009/162252 2009/167779 2009/167780 2009/167781 2009/173287 2009/173288 2009/183521 2009/183522 Judgment 1BATHURST CJ: INDEX Heading Par Background [6] Ground 1 of the Grounds of Appeal [16] Ground 2 of the Grounds of Appeal [33] Ground 3 of the Grounds of Appeal [47] Ground 4 of the Grounds of Appeal [54] The effect of the misdirection [71] Do the errors in the present case preclude consideration of the proviso? [74] Would the appellant have inevitably been found guilty on the evidence properly admitted against him? [100] Count 1 - Mr Theo Katsantoni [163] Count 2 - Mr John Lagomigis [205] Count 9 - Mr John Lagomigis [205] Count 45 - Mr John Lagomigis [205] Count 6 - Mr Peter Tsigolis [268] Count 7 - Mr Walter Butler [301] Count 8 - Mr Walter Butler [301] Count 10 - Mrs Leanne Magoulias [341] Count 11 - Mrs Leanne Magoulias [341] Count 12 - Mr Sotirios Magoulias [372] Count 13 - Mr Sotirios Magoulias [372] Count 14 - Mr Stelianos Mangafas [449] Count 54 - Mr Stelianos Mangafas [449] Count 15 - Ms Alice-Anne Sweeney [501] Count 16 - Ms Alice-Anne Sweeney [501] Count 17 - Mr John Dimitroulas [544] Count 18 - Mr John Dimitroulas [544] Count 19 - Mrs Maria Rafeletos [594] Count 20 - Mrs Maria Rafeletos [594] Count 21 - Mr Stelios Rafeletos [630] Count 22 - Mr Stelios Rafeletos [630] Count 23 - Mr Elijah Magliveras [711] Count 27 - Mr Elijah Magliveras [711] Count 24 - Ms Georgina Pasch [776] Count 25 - Mr Nick Fotiou [806] Count 26 - Ms Tina Maiorana (Leas) [856] Count 28 - Mr Theo Akis (Theodore Theologou) [895] Count 29 - Mr Steven Venieris [937] Count 44 - Mr Steven Venieris [937] Count 30 - Mr Steven Liontos [1000] Count 31 - Mr Steven Liontos [1000] Count 32 - Mr Steven Liontos [1000] Count 33 - Mr Steven Liontos [1000] Count 34 - Mr Steven Liontos [1000] Count 35 - Mr Steven Liontos [1000] Count 36 - Mr Neil Jensen [1001] Count 38 - Mr Doureid Dannaoui [1042] Count 43 - Mr Thomas Kapetanios [1090] Count 46 - Ms Pagona Skoulos [1129] Count 47 - Ms Pagona Skoulos [1129] Count 49 - Mr Spiros Skandalis [1231] Count 50 - Mr Spiros Skandalis [1231] Count 51 - Ms Kalliopi Foundis [1307] Count 53 - Dr Leon Jacob [1348] Count 52 - Mr Joseph D'Cruz [1402] Count 55 - Mr Maged Aziz [1467] Count 56 - Mr Thiren Pillay [1506] Count 57 - Mr Michael Sharp [1507] Count 3 - Ms Anastasia Bouzianos [1508] Count 4 - Ms Roxani Stavrou [1537] Count 5 - Mr Georgios Tsamados [1555] Count 37 - George Elliot [1586] Count 39 - Ms Constantina Vrakas [1649] Count 40 - Ms Constantina Vrakas [1649] Count 41 - Mr Sotirios Vrakas [1649] Count 42 - Mr Sotirios Vrakas [1649] Count 48 - Mr Nick Tsigolis [1727] Conclusion on conviction appeal [1771] The sentence appeal [1772] Consideration [1787] Orders [1795] 2Angelos Giourtalis (the appellant) was convicted of 49 counts of defrauding the Commonwealth in contravention of s 29D of the Crimes Act 1914 (Cth) (the Act) and 8 counts of attempting to defraud the Commonwealth contrary to s 7(1) and s 29D of the Act. The relevant sections as they existed at the time of the offences of which the appellant was convicted were in the following terms: "29D A person who defrauds the Commonwealth or a public authority under the Commonwealth is guilty of an indictable offence." "7(1) Any person who attempts to commit any offence against any law of the Commonwealth, whether passed before or after the commencement of this Act, shall be guilty of an offence and shall be punishable as if the attempted offence had been committed. (2) For the person to be guilty, the person's conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact." 3In the broadest of terms, the offences involved the appellant, who is an accountant, arranging for the preparation of tax returns which were said to be false to his knowledge, having them lodged electronically by another accountant who was a registered tax agent and retaining refunds from the Australian Taxation Office (ATO) when they were received. 4The appellant was sentenced to an effective sentence of nine years on all counts with a non-parole period of six years and three months expiring on 13 October 2017. 5By Notice of Appeal filed on 4 September 2012, the appellant appealed against his conviction and sought leave to appeal against sentence. The grounds of appeal were as follows: "1 The trial judge erred in directing the jury on honest and reasonable mistake resulting in a miscarriage of justice. 2 The trial judge erred in directing the jury on breach of the rule in Browne v Dunn. 3 The trial judge erred in directing the jury that foreign residents only have to declare income to the ATO derived from Australian sources if they have been resident in Australia for six months or more of the income year. 4 The trial judge should not have permitted evidence to be used as tendency and co-incidence evidence. 5 In sentencing the appellant the judge failed to take into account, or give sufficient weight to, the long delay in bringing the proceedings. 6 The sentence imposed was too severe." Background 6It will be necessary to deal with the facts in some detail later in this judgment. However, for the purpose of considering the grounds of appeal the following summary is sufficient. 7As I indicated, the appellant was an accountant. He carried on his practice at Brighton Le Sands through a company, Ramace Pty Ltd (Ramace). The appellant was not a registered tax agent and thus was not authorised to electronically lodge income tax returns. 8In addition to his accountancy practice, the appellant carried on business as a finance broker and money lender. The clients with whom the proceedings were concerned were in the main relatively unsophisticated members of the Greek community who had come to the appellant for assistance in connection with their financial affairs or to seek financial assistance. 9The appellant was alleged to have collected some personal and financial information from these clients and then caused false tax returns to be prepared. It was alleged that the manner in which this was done was that the appellant would prepare false group certificates and also false profit and loss and income and expense statements for businesses purportedly carried on by the clients. The group certificates were said to be false as to the identity of the clients' employer, the amount of income earned in the course of employment and the amount of tax deducted out of such income. 10It was alleged that some of the clients in respect of whom these returns were prepared did not authorise the appellant to prepare tax returns at all, whilst in other cases he was authorised to do so but the details were false. 11It was alleged that the arrangement by which the returns were lodged was that the false information was posted to a Mr Juan Campos, an accountant at Marrickville Accounting Services. Mr Campos had an arrangement with other accountants, Messrs Ricardo Lopez and Jorge Gonzalez, who for a small fee prepared returns based on the information provided by Mr Campos and then provided the returns on discs to Mr Vince Filocamo of Filocamo & Associates, an accountant and tax agent. Mr Filocamo would use his tax agent registration to electronically lodge the returns. 12Taxation refunds were received by the appellant and banked into accounts which he operated and controlled. In none of the cases the subject of the charges did the client receive the whole of the refund, although in some cases they received some money back from the appellant. The appellant contended that he was entitled to retain the money as repayment of advances or fees due to him. In some cases he produced authorities purportedly signed by the client to pay the money into a bank account maintained by Ramace. There were disputes on a number of occasions as to the authenticity of the signature and the circumstances in which the authorities came to be signed. 13The appellant raised a variety of defences. One was that in respect of some returns, principally ones which identified a company Ladadika Pty Ltd (Ladadika) as the taxpayers' employer, the appellant made a mistake as to the true identity of the employer. In his evidence in chief at the trial the appellant said he made this mistake in respect of Mr Theo Katsantoni (Count 1); Mr John Lagomigis (Counts 2 and 9); Mr Peter Tsigolis (Count 6); Mr Walter Mark Butler (Counts 7 and 8); Ms Leanne Magoulias (Counts 10 and 11); Mr Sotirios Magoulias (Counts 12 and 13); Mr Stelianos Mangafas (Counts 14 and 54) although the mistake in relation to Count 54 related to an employer other than Ladadika, European Enterprises Pty Ltd (European Enterprises); Ms Alice-Anne Sweeney (Counts 15 and 16); Mr John Dimitroulas (Counts 17 and 18); Ms Maria Rafeletos (Counts 19 and 20); Mr Stelios Rafeletos (Counts 21 and 22); Ms Georgina Pasch (Count 24); Ms Tina Leas (Count 26); Mr Elijah Magliveras (Counts 23 and 27); Mr George Elliot (Count 37) although the incorrect employer in that case was a company other than Ladadika, Hird Nominees Pty Ltd (Hird Nominees); Ms Constantina Vrakas (Counts 39 and 40) although the mistakes for Counts 39 and 40 were that in the 1998 tax year it was said she worked for Phoenicia Auto Services (Phoenicia) rather than AAANG Holdings Pty Ltd (AAANG), whilst in the 1999 tax year she was described as working for Hird Nominees rather than AAANG; Mr Sotirios Vrakas (Counts 41 and 42) the mistake in this case being that it was stated he worked for Phoenicia in 1998 and Hird Nominees in 1999, rather than AAANG; Ms Pagona Skoulos (Counts 46 and 47) although the mistakes for Counts 46 and 47 were that in both years it was said that she worked for One Shop Pty Ltd (One Shop); Mr Spiros Skandalis (Counts 49 and 50) the mistake in this case being that it was stated he worked for Ladadika in 1998 and Master Auto Trim in 1999, rather than Kramfors Developers Pty Ltd (Kramfors); Mr Thomas Kapetanios (Count 43) the relevant mistake being that he worked for One Shop rather than AAANG; Mr Nick Tsigolis (Count 48) the mistaken employer in this case being Hird Nominees; and, Mr Maged Aziz (Count 55) the mistaken employer in this case being Chalmers Management Pty Ltd (Chalmers). 14Thus, in respect of 36 of the charges the appellant contended that the incorrect name of the employer was a result of what he described as an honest mistake. 15It is also relevant that at least three of the counts related to overseas residents (Counts 3, 4 and 5). Ground 1 of the Grounds of Appeal (a) The directions of the trial judge 16The trial judge provided both oral and written directions. 17In her written directions she described the elements of the offence under s 29D of the Act in the following terms: "In order to establish the elements of the offence, the Crown must prove that the accused: i. Deprived the Commonwealth of money.. or prejudiced the interests of the Commonwealth and ii. Did so intentionally and iii. Used dishonest* means to do so and iv. Knew there was no right to deprive the Commonwealth of that money or to prejudice it's interests." (Emphasis in original) 18She described the elements of the attempt offences in the following terms: "In order to establish the elements of the offence, the Crown must prove that the accused: i. Attempted to deprive the Commonwealth of money.. or prejudice the interests of the Commonwealth and ii. Did so intentionally and iii. Used dishonest* means to do so and iv. Knew there was no right to deprive the Commonwealth of that money or to prejudice it's interests." (Emphasis in original) 19She then summarised the dishonesty on which the Crown relied in the following terms: "i. The causing to be lodged an income Tax return for [taxpayer] for the financial year ended.......[tax year]. ii. The Income tax return contained false information iii. The accused knew the information to be false iv. The false information was intended by the accused to prejudice the interests of the Commonwealth v. The lodging of the income tax return did in fact prejudice the interests of the Commonwealth in that taxation refunds were processed to which the taxpayer was not lawfully entitled to (Attempt counts excluded) vi. Using false information in that return was dishonest* or fraudulent* or deceptive* conduct in that the accused was aware the information was false." (Emphasis in original) 20Next she defined defraud and deception as follows: "Defraud means: to intentionally use dishonest means to deprive another entity of their property, or to imperil their .... interests. It involves the intentional creation of a situation by one person to use dishonest means to deprive another entity of money or property, or to imperil another entity's.....interests." "Deception means: an intentional deception, whether by words or other conduct, and whether as to fact or as to law, and includes a deception as to the intentions of the person using the deception or any other person." (Emphasis in original) 21Finally in her written directions, she made what she described as some directions at law. Of relevance are the following: "1. The Onus of proof is on the Crown. The accused does not have to prove anything. 2. The Crown must prove each of the elements of the offence to the standard of beyond reasonable doubt. The expression 'beyond reasonable doubt' means what it says. It is the highest level of proof in our legal system. It is given its normal English meaning." (Emphasis in original) 22Up to this stage it is clear that her Honour was directing that each element of the offence was required to be proved by the Crown beyond reasonable doubt. That would include knowledge that the information supplied was false and was intended to defraud the Commonwealth. 23In her summing-up the trial judge again emphasised at a fairly early stage that the onus which rested on the Crown was to prove the elements of the offence beyond reasonable doubt (SU 6-7). She again repeated that the appellant had to have acted intentionally (SU 7) and repeated the definitions of defraud and deception (SU 9). 24However, her Honour then gave the following direction (SU 17-18): "I am going to speak for a little while now about the issue of mistake, because it has been raised. It has been suggested to you in this trial that mistake is a very relevant issue, and I have referred to it briefly already in relation to the mistakes Mr Giourtalis gave evidence of making mistakes in relation to spreadsheets and mistakenly transferring information from one taxpayer to another or one employer to another. A mistake in the context of this case can only be a mistake about factual issues. It cannot and does not relate to any mistake that may be suggested as to a mistake of law. I will also give you some legal directions about obligations of taxpayers as set out in the Taxation Act, as I promised I would. With respect to many of the tax returns prepared by Mr Giourtalis states that the inclusion of taxpayers as employees of Ladadika, or sometimes another entity, was the mistake. There was evidence which Mr Ramos remind you of yesterday about accidentally putting the wrong employee on the wrong company's spreadsheet and of all the other errors which then flowed from that original error. You have heard that evidence from Mr Giourtalis and Mr Ramos summarised for it yesterday. The Crown says that there was no such mistake. The Crown says that the explanation given does not make sense. But even if you do accept it and even if it was a mistake then that does not cure, says the Crown, the basic dishonesty of the figures provided to the Tax Department. It is an appropriate time, therefore, to give you a legal direction as to the question of mistake. A mistake can apply where an accused is under a mistaken but reasonable belief about certain facts, which, if true, would render his conduct non criminal. You would first of all be satisfied that a mistake was honestly made. That is a reasonable mistake to make to make and it was the cause of whatever followed. The accused bears the onus of proving this mistake, if you find it to be relevant, but only on the balance of probabilities. So you would have to look at the issue of mistake and it has been raised, but you would have to be satisfied that the mistake was honestly made, that it is a reasonable mistake to make and it is the cause of whatever followed. These are things you have to consider. The mistake that Mr Giourtalis says he made was in several instances to incorrectly, but by way of honest mistake, prepare replacement group certificates for people who had not worked for Ladadika, but had worked for other companies operated by the taxpayers or other companies operated by other people; or mistakenly prepare group certificates for people who were self employed or were being paid through their own businesses or in some instances were not working, but were to his belief being paid by their spouses to do certain things, either in the business or out of the business." 25This is the part of the direction the subject of the first ground of appeal. 26Subsequently in dealing with the evidence of the appellant, her Honour gave the following direction (SU 26-28): "Now in this case Mr Giourtalis has given evidence on his behalf. The fact that he has given evidence on his behalf does not alter the burden of proof on the Crown with respect to each of the elements of the offence. The accused does not have to prove that his version is true. The Crown has to satisfy you that the account given by the accused should not be accepted as a version of the events that could reasonably be true and that is the Crown's obligation. You have just heard Mr Giourtalis' evidence and Mr Ramos summarised it adequately for you yesterday. Again I will say to you that Mr Giourtalis says that at worst he made some honest mistakes about including some taxpayers on the wrong spreadsheet. He states that other information contained on the accounts, replacement group certificates, profit and loss statements are true and that they were taken from books and records of the businesses that he had access to. This is not a matter, members of the jury, where you should consider whether you prefer the evidence of one or the other. That is not the way you should look at the evidence. You must look at the evidence individually on each count as a whole and decide as a matter of credibility whether you accept it from the Crown point of view. You must look at Mr Giourtalis' evidence in relation to each of the particular taxpayers individually and consider his evidence, taking into account the assessment you make as to the entirety of his credibility for the entirety of this evidence. If you accept Mr Giourtalis' evidence and what he says on any particular account, if you accept what he says in relation to a particular count or all of the counts, then you must obviously return a finding of not guilty. If however you decide that you do not positively accept his evidence, but you decide that his version leaves you with some doubt as to whether the Crown has made out its case, then again you must return a verdict of not guilty, because it would naturally follow that the Crown has not proven its case to the required standard of beyond reasonable doubt. It is only if you come to the conclusion that the account given by the accused could not be accepted as version of events that could reasonably be true and that the elements of that particular count have otherwise been made out, that you should return a verdict of guilty." 27No objection was taken to any of the directions by either counsel for the Crown or for the appellant. (b) The parties' submissions 28The appellant submitted that no direction on the issue of mistake should have been given, as the issue of mistake went to the question of whether the appellant was acting dishonestly and with the intent to defraud. The appellant stated that the error in giving the direction was a radical and fundamental one which precluded the application of the proviso contained in s 6(1) of the Criminal Appeal Act 1912 (the proviso). 29The Crown in its written submissions submitted that the jury would have been left in no doubt about the onus of proof. It submitted that the direction was given at the request of counsel for the appellant at the trial and no objection was made to the direction. 30At the hearing counsel for the Crown accepted that it was a serious misdirection. He agreed that although her Honour did emphasise on a number of occasions that the Crown had to prove all elements of the offence beyond reasonable doubt, she did not expressly state that to find the appellant guilty the jury had to be satisfied beyond reasonable doubt that what occurred was not a mistake. Counsel for the Crown was unable to identify where counsel for the appellant at the trial had sought a direction on the issue of mistake. Such a request does not appear from a reading of the transcript. Consideration 31There is no doubt that the direction complained of was a serious misdirection. Intent to defraud was an element of the offence which the Crown had to prove beyond reasonable doubt. The issue of mistake having been raised required the Crown to negative that matter beyond reasonable doubt: Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493 at [28]-[30], [134]; Macleod v The Queen [2003] HCA 24; (2003) 214 CLR 230 at [35], [39]. 32This ground of appeal is made out. I will deal with the question of the application of the proviso after I have dealt with the other grounds of appeal. Ground 2 of the Grounds of Appeal 33The trial judge's direction on Browne v Dunn (1893) 6 R 67 was to the following effect (SU 28-29): "It is a duty of counsel to put any relevant questions to a witness in cross-examination if they are advised of the details of that information. This is required of counsel in order to enable that witness, in this case the taxpayer, to comment on the proposition that has been put and is proposed to be put by in this case Mr Giourtalis. If the version given by Mr Giourtalis was not put to those witnesses you would be entitled to assume either that Mr Ramos was not told of such evidence before it was given or Mr Ramos was told and it slipped his mind or he did not consider it to be relevant. Mr Giourtalis in his evidence did not suggest that he had told Mr Ramos of those relevant pieces of information, so you can therefore I think assume that it did not either slip Mr Ramos' mind or that he did not consider it to be relevant. You may therefore, if you think it appropriate, consider his failure to tell counsel beforehand as a factor when assessing Mr Giourtalis' credibility." 34In his written submissions the appellant referred to authorities which emphasised the caution that a trial judge should exercise in applying the rule in Browne v Dunn whether by directions to the jury or otherwise: RWB v The Queen [2010] NSWCCA 147; (2010) 202 A Crim R 209; R v Birks (1990) 19 NSWLR 677; MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 and Khamis v The Queen [2010] NSWCCA 179; (2010) 203 A Crim R 121. He submitted that in light of these authorities the direction was inappropriate and erroneous. 35The appellant submitted that the effect of the direction was that he made up matters whilst being cross-examined and that this could be taken into account in assessing his credit. He indicated that the appropriate course was for the witnesses to be recalled. 36In his submissions at the hearing, counsel for the appellant stated that there was no attempt to balance the Browne v Dunn direction by reference to the extensive body of evidence given in the proceedings. He submitted that the direction gave further weight to his submission made in respect of Ground 1 that the appellant was denied a fair trial. 37The appellant did not indicate any substantial miscarriage of justice which flowed from the Browne v Dunn direction. 38The Crown in its written submissions referred to 13 occasions where the appellant had confirmed in his evidence that his counsel had not put his version of events to a Crown witness. He also referred to eight occasions where the appellant confirmed he had not given evidence of his version of events in his examination in chief and 13 occasions where he said he had not told his counsel about his version of events. 39Counsel for the appellant accepted that the submission referred to in par [38] above was factually accurate but said the cross-examination should not have been allowed and it was unfair to leave it to the jury solely on the basis of credibility, particularly having regard to the extensive evidence in chief and cross-examination. However, no objection was taken to the cross-examination and no ground of appeal was raised in respect of it. 40The Crown submitted that because of the numerous breaches of the rule it was not an available option to recall witnesses after the Crown had closed its case. Counsel for the Crown pointed to the fact that prior to the summing-up the trial judge indicated that she proposed to give a Browne v Dunn direction and counsel for the appellant agreed to it. It should be noted, however, that the trial judge did not set out the nature of the direction she proposed to give although no objection ultimately was taken to it. Consideration 41In R v Birks supra, Gleeson CJ with whom McInerney J agreed, stated that the rule in Browne v Dunn does apply in criminal as well as civil proceedings in this State. However, he stated that the consequences of failing to observe the rule may vary depending on the circumstances of the case, but they will usually be related to the central object of the rule, namely, to secure fairness: R v Birks supra at 689. 42In MWJ supra the High Court again emphasised the need for care in applying the rule in criminal trials. Gummow, Kirby and Callinan JJ, at par [41], made the following remarks: "... The position of an accused who bears no burden of proof in a criminal trial cannot be equated with the position of a defendant in civil proceedings. The rule in Browne v Dunn can no more be applied, or applied without serious qualification, to an accused in a criminal trial than can the not dissimilar rule in Jones v Dunkel. In each case it is necessary to consider the applicability of the rule (if any) having regard to the essential accusatory character of the criminal trial in this country." (Citation omitted) 43MWJ supra concerned a trial without a jury, so consideration was not given as to what if any directions a jury should be given in respect of the rule. 44RWB supra concerned a case where a direction was given in terms somewhat similar to the one in the present case. Simpson J, with whom the other members of the Court agreed, reviewed the authorities on the issue and concluded that the direction should not have been given. Her Honour made the following remarks: "[101] These authorities make it very plain that a trial judge should exercise great caution in directions to the jury concerning the failure of an accused's counsel to comply with the rule in Browne v Dunn. Browne v Dunn is an ancient and useful rule of practice and casts a considerable burden of care on counsel. But counsel are fallible and more than one inference may be drawn from non-compliance with the rule. Opposing counsel will always suggest that the only, or the proper, inference is that the client (or witness) failed to include the contentious matter in his/her instructions or statement. But the reality is that that is far from the only available inference, and it may be, and often is, quite unfair to suggest to a jury that that is the only inference, or the inference that they should draw." See also Homsi v R [2011] NSWCCA 164. 45In my opinion the direction should not have been given. This was a case with multiple counts involving a wide range of witnesses and transactions. There can be many reasons that matters are not put to witnesses ranging from mistake, forensic choice, misunderstanding between counsel and client and, not least in a case such as the present, that in giving instructions to counsel in respect of 57 matters, the client overlooked informing counsel of matters which emerged in cross-examination. 46In these circumstances, in my opinion, this ground of appeal is made out. Ground 3 of the Grounds of Appeal 47The relevant direction was in the following terms (SU 19-20): "The other direction that I am going to give you while I am in income tax law direction mode is in relation to foreign residents. A foreign resident is a person who does not live in Australia or has not been in Australia continuously or intermittently for more than six months of a tax year. They only have to declare income to the ATO derived directly or indirectly from Australian sources during the income year if they have been resident for a total of six months or more. Income derived from overseas sources does not have to be declared to the tax office by a foreign resident. The source of income under normal contract of employment is generally the place where the duties are performed." The submissions of the parties 48In the appellant's submission the direction applied to seven of the counts. The appellant submitted that the direction was incorrect because absent a double tax treaty, the assessable income of foreign residents included income derived from Australian sources during the year in question: Income Tax Assessment Act 1997 (Cth) s 6-5(3). The Crown accepted that this was correct and as a consequence the direction was erroneous. 49The Crown, however, submitted that the direction had no operative effect. It submitted that the only counts to which the direction applied were Counts 3, 4, 5, 28, 39, 40, 41, 42, 49 and 50. It pointed out that it was not part of the Crown's case that the taxpayers, the subject of these counts, did not have to lodge tax returns in respect of income earned in Australia. The Crown case was that those persons in fact did not earn income or have the stated deductions deducted from their salary. The Crown pointed out that there was no direction from the judge that any particular foreign resident had no obligation to disclose Australian source income. 50The Crown submitted that in those circumstances no question of whether or not there was an obligation to declare Australian source income arose. Consideration 51The direction erroneously stated the law so far as it concerned tax payable on Australian source income derived by a foreign resident. However, in my opinion, the error was entirely inconsequential. 52I have reviewed the evidence in relation to each count below. As is apparent from that review, the direction was inconsequential as the claim on each of the counts in question was based on the fact that the relevant taxpayers had derived no Australian income during the years in question, nor had the deductions claimed been deducted from any income which they earned. The misdirection was inconsequential and there was no miscarriage of justice. 53It follows that this ground of appeal was not made out. Ground 4 of the Grounds of Appeal 54The tendency and coincidence notice the subject of this ground was served on 20 May 2011. It was in the following terms: "Notice is hereby given that the Prosecution presently intends to adduce evidence of: (a) 'tendency' pursuant to the tendency rule in sub-section 97(1) of the Evidence Act 1995, ie. evidence of the character, reputation or conduct of a person, or tendency that a person has or had to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way or to have a particular state of mind; and (b) 'coincidence' evidence pursuant to the coincidence rule in sub-section 98(1) of the Evidence Act 1995, ie. evidence that 2 or more related events occurred to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind. 1. The person whose 'tendency' is the subject of the evidence sought to be adduced is Angelos Giourtalis (the 'Accused'). 2. The 'tendency' sought to be proved by the Prosecution is that the Accused has or had the following tendencies: (a) a tendency to cause income tax returns to be lodged with the Australian Taxation Office (the 'ATO') containing information which the Accused knew to be false, including false information relating to: (i) income; and (ii) tax instalment deductions; (b) a tendency to cause income tax returns to be lodged with the ATO containing false references to the named taxpayer being employed by: (i) Ladadika Pty Limited; (ii) Hird Nominees Pty Limited; or (iii) Phoenicia Auto Service; (c) a tendency to cause income tax returns to be lodged with the ATO without first obtaining approval from the named taxpayer; and (d) a tendency to receive tax refund cheques issued in the names of taxpayers and to deposit those cheques into bank accounts controlled by him. 3. The 'coincidence' evidence is to be tendered to prove that: (a) it was not a co-incidence that the Accused caused income tax returns to be lodged for taxpayers named: (i) Anastasia Bouzianos; (ii) Roxani Stavrou; (iii) Georgios Tsamados; (iv) George Elliot; (v) Constantina Vrakas; (vi) Sotirios Vrakas; and (vii) Nick Tsigolis; (the 'relevant taxpayers'); (b) it was not a co-incidence that the Accused caused income tax returns to be lodged for the relevant taxpayers which contained false information relating to: (i) income; and (ii) tax instalment deductions; (e) it was not a co-incidence that the Accused caused income tax returns to be lodged for the relevant taxpayers which contained references to the taxpayer being employed by: (i) Ladadika Pty Limited; (ii) Hird Nominees Pty Limited; or (iii) Phoenicia Auto Service; and (f) it was not a co-incidence that the Accused caused income tax returns to be lodged for the relevant taxpayers without first obtaining approval from the taxpayer; and (g) it was not a co-incidence that the Accused received tax refund cheques issued in the names of the relevant taxpayers and deposited those cheques into bank accounts controlled by him. 4. The 'tendency' and 'coincidence' evidence is sought to be adduced in relation to counts 3, 4, 5, 37, 39, 40, 41, 42 and 48 on the Indictment. 5. The substance of the 'tendency' and 'coincidence' evidence which the Prosecution intends to adduce is contained within the documents set out on the attached schedule which previously have been served upon you. 6. So far as is known to the Prosecution, particulars of the date, time, place and circumstances at or in which the conduct referred to in paragraph 5 above occurred are contained within the documents referred to in paragraph 5 above. 7. So far as is known to the Prosecution, the names of each person who saw, heard or otherwise perceived the conduct referred to in paragraph 5 above are contained within the documents referred to in paragraph 5 above." 55The schedule to the notice indicated that the material to be relied on was effectively the evidence of the taxpayers in respect of whose returns the other counts related. 56Shortly before the Crown closed its case at the trial, counsel for the appellant confirmed that he had no objection to the notice. 57The summing-up by the trial judge in relation to the issue of tendency and coincidence was in the following terms (SU 22-26): "The Crown says that Mr Giourtalis has a tendency to prepare documents containing false information and to do other things to cause that information to become part of an income tax return. The Crown say he caused these returns to be lodged with the tax department. The Crown say that the accused has a tendency to cause income tax returns to be lodged with the ATO containing information which Mr Giourtalis knew to be false. Further and in particular, the Crown allege that Mr Giourtalis knew the details with respect to income and tax instalment deductions were false either because he was aware that certain expenses were incorrect or that details in relation to employment were incorrect. The Crown also say that Mr Giourtalis has a tendency to cause income tax returns to be lodged with the ATO without first obtaining approval from the named tax payer and the Crown also allege that he has a tendency to cause income tax returns to be lodged with the ATO containing false references to the named taxpayer being employed either by Ladadika Pty Limited, Hird Nominees Pty Limited, Phonecian Autos Pty Limited. In this regard, Mr Giourtalis does not deny that many of the documents he prepared were in error and he does not deny in relation to the receipt of tax refunds that the tax refund cheques went into an account controlled by him, that is Ramace Pty Limited. He has an explanation as to why that occurred and that was he says he had authorities from tax payers. The Crown also say that in relation to some of the taxpayers who you have not heard from and Mr Crown referred to these taxpayers as the Greek taxpayers yesterday, and they are Anastasia Bouzianos count number 3, Roxani Stavrou count number 4, Georgios Tsamados count number 5, Constantina Vrakas counts number 39 and 40 and Sotirios Vrakas counts number 41 and 42. No evidence has been given by them. You will see from the DIMIA reports tendered in the volumes that you have before you, that those taxpayers are apparently not in Australia. Now the instructions I gave you earlier relate to treating each offence and each charge separately. As such you cannot treat evidence on one matter in evidence in another matter. You cannot let the fact that Mr Giourtalis is facing fifty-seven charges prejudice you in relation to your consideration of each of these charges individually. However the Crown alleged that he has a certain tendency to behave in the way that I've just set out. They also allege that it was not a coincidence that Mr Giourtalis caused income tax returns to be lodged for the taxpayers that I have just read out, that is for sequences or counts number 3, 4, 5, 39, 40, 41 and 42. The Crown allege that is not a coincidence that he caused income tax returns to be lodged for those taxpayers which contained false information about their income and tax instalment deductions. The Crown also say that it is not a coincidence that Mr Giourtalis lodged income tax returns for those taxpayers which contains references to the companies Ladadika Pty Limited, Hird Nominees Pty Limited and Phonecia Holdings Pty Limited. They say further that it was not a coincidence that Mr Giourtalis caused income tax returns to be lodged without first obtaining the taxpayer's signature. Now that evidence is before you because of what the Crown says is a pattern of behaviour that reveals the accused has a tendency to act in a particular way as I have just detailed, that is the preparation of and inclusion of false information in tax returns to cause those income tax returns with false information to be lodged and to do so without the approval of tax payers and to receive the tax refunds. You have heard Mr Giourtalis's explanation in relation to each of these taxpayers and these are all factual matters for you to decide members of the jury. My direction that I am giving you now relates to how, and only how, you can use evidence of Mr Giourtalis's evidence in relation to what the Crown says is a tendency and lack of coincidence in relation to the other counts that I have referred to, then you can only use them in relation to the specific counts that I have referred to. You have to make two findings beyond reasonable doubt before you can use this tendency and lack of coincidence evidence. The first finding is that you must be satisfied beyond reasonable doubt that the acts occurred. That is that Mr Giourtalis did these things that the Crown alleges that causes them to say he has a particular tendency to do things. In making that finding, you do not consider each of the acts in isolation but consider all of the evidence and ask whether you are satisfied that the particular act or the tendency relied upon, actually occurred. You must look at the evidence in relation to each of the other taxpayers. If you cannot find that they are proved beyond reasonable doubt, then you must put aside any suggestion that the accused has the tendency advanced by the Crown. You cannot use it at all. If you do find beyond reasonable doubt that the acts alleged by the Crown occurred, then you go on to consider a second finding. The second question you must ask yourself is whether, from the facts you found to be proven beyond reasonable doubt, (that is the acts alleged in relation to the false information alleged, the using the false information, the lodging of income tax returns) if you find that proved beyond reasonable doubt, whether you can infer or conclude beyond reasonable doubt that the accused had the tendency to act in the way that the Crown alleges. Now I have used the word infer there because I have told you the care you must take with inferences. If you cannot daw that inference or conclusion beyond reasonable doubt, then you are to put aside the suggestion that the accused had that tendency. The evidence must not be used by you in any other way. It would be completely wrong for you to otherwise reason that if you suggest the accused has committed one of the offences charged, that he must have committed the other offence. You have to go through the two stage process that I have told you about, that is to make findings beyond reasonable doubt in relation to whether the first set of acts complained of, occurred and then decide whether you can infer to the required standard again, that he had such a tendency to act in such a way in relation to the second group of charges. In relation to the coincidence, it is suggested that similarities in the counts I have referred to are very similar to others. The similarities suggested are: the use of the company Ladadika, the high tax instalments, the use of lodgement of returns without tax payer approval. That evidence is before you because sometimes it may be that there is such a similarity between two different acts and circumstances that you may be satisfied that a person who did one act or set of acts must have done the other acts or set of acts. That is to say that the similarity between the two separate acts is so marked and the circumstances in which they occurred is so marked, that because of the improbability of the events occurring coincidentally, you may use that to establish that the accused committed the second group of acts, but I repeat you can only use this pattern of behaviour if you make findings beyond reasonable doubt in relation to the first set of facts that are alleged by the Crown and you cannot use it as a general way of finding facts in relation to all of the charges, only the ones I have specifically mentioned. The others I remind you, you must consider the evidence separately on each of the charges." 58No objection was taken to this direction. The submissions of the parties 59In his written submissions the appellant simply asserted that the prejudice from the evidence was high and the tendency and coincidence evidence should not have been allowed. Apart from describing the evidence as incredibly prejudicial, counsel for the appellant added nothing further to the written submissions. 60The Crown pointed to the fact that the tendency and coincidence notice was not opposed and that no objection was taken to either the evidence or the directions. It submitted the admission of the evidence was a matter of discretion and no error was shown in the exercise of that discretion. 61The Crown also submitted that in relation to the counts the subject of the tendency and coincidence notice, other evidence demonstrated that the returns were false and the appellant was not entitled to retain the refunds. 62The Crown also submitted that in fact the direction assisted the appellant because it directed the jury's attention to the limited purpose for which evidence on one count could be used in relation to evidence on another. Consideration 63It is difficult to perceive how this ground of appeal can succeed in circumstances where the tendency and coincidence notice was consented to, the evidence in question was admitted without objection and where no objection was taken to the direction of the trial judge. 64Further difficulty arises by reason of the fact that neither the ground of appeal nor the appellant's submissions identify with any clarity the nature of the error in respect of which complaint is made. Thus, it is not clear whether or not it is said that the trial judge was in error in thinking that the evidence had significant probative value (Evidence Act 1995 s 97(1)(b)), or that the probative value was substantially outweighed by any prejudicial effect (Evidence Act s 101). 65The ground of appeal can be dealt with shortly. First, as no objection was taken to the evidence it cannot be said that the trial judge was in error in admitting it: Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297. Second, leaving this to one side, no error of discretion by the trial judge in admitting the evidence was identified by the appellant in his submissions. The appellant did not contend, contrary to the Crown, that the question of whether the judge fell into error was to be decided by the principles set out in House v The King [1936] HCA 40; (1936) 55 CLR 499: see R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308 at [36]; R v Zhang [2005] NSWCCA 437; (2005) 158 A Crim R 504 at [105]; contra Basten JA in dissent on this point at [45]; Dao v The Queen [2011] NSWCCA 63; (2011) 81 NSWLR 568 at [157], [167]-[173], [211], [213]; cf Spigelman CJ at [61], Allsop P at [100]; Bangaru v The Queen [2012] NSWCCA 204; (2012) 297 ALR 108 at [261]-[266]; Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51 at [74]-[75]; contra R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 and PNJ v Director of Public Prosecutions [2010] VSCA 88; (2010) 27 VR 146 at [15]-[16]. 66Even if the issue was to be considered by reference to the principles laid down in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, the same result would be reached. In Dao supra Allsop P described the analysis required by s 97(1)(b) in the following terms: "[98] The question of probative value is a question of relevance: the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. This is a matter of logical analysis in the light of the balance of posited evidence. It is a judgment or evaluation, but one by reference to a fixed clear legal standard and is not an evaluation of the kind the subject of consideration in Podrebersek, Norbis v Norbis, Singer v Berghouse or even s 7 of the Contracts Review Act. This is the case even with the addition of a qualifying adjective 'significant'. [99] That, however, is not the end of the enquiry. A statutory precondition is provided for in s 97(1)(b) that the court (that is the judge ruling on the admissibility) thinks something. That something is that the evidence 'will', that is looking forward, have the required quality. I do not think that that requires predicting how a jury will react to the evidence (if there is a jury), other than through the logical assessment called for by the definition of 'probative value'. What is required however, as a precondition, is that the court thinks that it will have that effect in the body of anticipated or expected evidence. In the ordinary course this is a quintessential task of a trial judge dealing with the living fabric of the trial and the evidence unfolding before him or her. [100] The words of the section are not 'if the evidence has significant probative value'; they are, 'unless ... the court thinks the evidence will ... have ... significant probative value'. What is to be reviewed in the appellate process is the state of mind of the court about a future hypothesis based on logical processes, including weighing of evidence in a framework of proven or assumed evidence. The appeal court is not reviewing the fact of the probative effect of the evidence; it is reviewing what the court thinks that will be. That involves an assessment as to whether the judge approached the question by reference to correct principles and whether it was open for him or her to draw the (limited) evaluative conclusion that was drawn. Review will be of the character analogous to that discussed in Shrimpton v The Commonwealth [1945] HCA 4; 69 CLR 613 at 620, referred to in Dwyer v Calco Timbers at 138 [39]; and in Minister for Immigration v Eshetu [1999] HCA 21; 197 CLR 611 at 651-654, though, importantly, recognising that the power the subject of review is judicial and not executive. In practice, there is likely to be little difference between this approach and the application of House v The King." 67In the present case the effect of the tendency and coincidence notice was that in respect of Counts 3, 4, 5, 37, 39, 40, 41, 42 and 48 the prosecution would rely on the evidence of the persons whose purported tax returns were the subject of the other counts as showing the relevant tendency or lack of coincidence. Taken in conjunction with the evidence in relation to the counts in respect of which the tendency and coincidence notice was relied upon to which I have referred in detail below, the material relied upon in the notice if proved beyond reasonable doubt would, in my opinion, have significant probative value in establishing that the insertion of the incorrect employers in the returns of Mr Elliot (Count 37), Ms Vrakas (Counts 39 and 40), Mr Vrakas (Counts 41 and 42) and Mr Nick Tsigolis (Count 48) was not the result of an honest mistake. It would also be of significant probative value in establishing in respect of all counts the subject of the tendency and coincidence notice that, to the extent the information contained in the tax returns was false, it was false to the knowledge of the appellant. It would also have significant probative value on the question of whether or not the returns the subject of the counts in question were lodged without approval from the taxpayer. 68So far as pars 2(d) and 3(g) of the notice are concerned, it was not in issue that the refund cheques were banked into an account controlled by the appellant. Further, it was ultimately not in issue that the returns lodged on behalf of the taxpayers the subject of these counts were lodged at the behest of the appellant. 69Further, in my opinion, the probative value substantially outweighs the prejudicial effect. There was no objection to joint trials on all counts. Thus the evidence relied on in the notice would have been before the jury in any event. The trial judge in her direction indicated that each charge had to be considered individually and gave a clear direction as to the limited use which could be made of the tendency and coincidence evidence. In these circumstances the prejudice arising from the use of the evidence as demonstrating tendency and lack of coincidence was limited and, in my opinion, was substantially outweighed by its probative value. The same result is reached in the application of the approach by Whealy JA in respect of coincidence evidence in DSJ v The Queen [2012] NSWCCA 9; (2012) 259 FLR 262 at [78]-[80]. 70It follows that this ground of appeal is not made out. The effect of the misdirection 71A misdirection as to honest mistake affects all counts except Counts 25, 28, 29, 30-36 inclusive, 38, 44, 45, 51-53 inclusive, 56 and 57. Of these counts all but Counts 30-35 inclusive, 56 and 57 were affected by the Browne v Dunn direction. 72No submission was made to the effect that the misdirections caused a miscarriage of justice or otherwise impacted on those grounds of appeal to which the impugned directions did not relate. 73It follows, irrespective of the application of the proviso, that the appeal should be dismissed so far as it relates to Counts 30-35 inclusive, 56 and 57. Do the errors in the present case preclude consideration of the proviso? 74It is well established that there are cases where errors in the summing-up or directions given by the trial judge are such that it is inappropriate to apply the proviso irrespective of the apparent strength of the Crown case. In Quartermaine v The Queen [1980] HCA 29; (1980) 143 CLR 595, the first of the cases relied on by the appellant in support of the proposition that the present was such a case, Gibbs J at 601 approved the statement of Wickham J, who delivered the judgment of the Court of Criminal Appeal, that the proviso would not be applied if the trial was so irregular that no proper trial had taken place in "that there had been a serious departure from the essential requirements of the law". His Honour referred as an example to Andrews v The Queen [1968] HCA 84; (1968) 126 CLR 198, where the accused was not in reality tried for the offence for which he was indicted. He held that the proviso could not be applied in the case before him when the jury was not asked to consider the elements of the particular offence for which the appellant was convicted: Quartermaine supra at 601. 75The appellant also relied on the well-known passage from Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365. In that case the majority, after referring to what was said by Gibbs J in Quartermaine supra, made the following remarks at 372-373: "This view [the view expressed by Gibbs J in Quartermaine] is undoubtedly correct, for the proviso was not intended to provide, in effect, a retrial before the Court of Criminal Appeal when the proceedings before the primary court have so far miscarried as hardly to be a trial at all. It is one thing to apply the proviso to prevent the administration of the criminal law from being 'plunged into outworn technicality' (the phrase of Barwick C.J. in Driscoll v. The Queen; it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso: see Reg. v. Hildebrandt; Reg. v. Henderson; Reg. v. Couper." (Citations omitted) 76Their Honours went on to say that there was no rigid formula to determine what constituted such a radical or fundamental error. 77In support of the proposition that the present case was one which fell into the categories of cases referred to in the passage from Wilde supra cited above, the appellant relied on three other cases. The first was S v The Queen [1989] HCA 66; (1989) 168 CLR 266, in which the accused was charged with three counts of carnal knowledge, each occurring within specified 12 month periods. The complainant gave evidence of two specific acts of intercourse during the specified period and numerous other acts over a two year period. It was held that in the absence of identification of the acts charged, the Crown could not lead evidence equally capable of referring to a number of occurrences any one of which might constitute the offence. The majority, following Wilde supra, held that it was not an appropriate case to apply the proviso. Dawson J held that the accused was reduced to a general denial and was unable to raise specific defences such as alibi defences which related to each particular offence charged. He also pointed out that individual jurors may have selected different occasions as constituting the offence. In these circumstances his Honour held that there was a substantial miscarriage of justice precluding the application of the proviso. Toohey J and Gaudron and McHugh JJ in separate judgments reached the same conclusion for substantially the same reasons: S v The Queen supra at 282-283, 287-288. 78The appellant also relied on Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250, which involved a judge alone trial for certain sexual offences. Section 33 of the Criminal Procedure Act 1986 required the judge in those circumstances to indicate in his judgment the principles of law applied and the findings of fact made, and to take into account any warning which would have been given to a jury. If the case had been tried by a jury the trial judge would have been required to have given a warning to the jury in the terms set out in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79. The trial judge failed to have regard to this requirement or to record it. The Court in a joint judgment said it was an inappropriate case for the application of the proviso. Their Honours made the following remarks: "[39] With respect to the application of the proviso, it has been held in this Court that not every wrong decision on a question of law will lead to the quashing of the conviction or a new trial and that '[t]here is no rigid formula to determine what constitutes such a radical or fundamental error' as to preclude the application of the proviso. There may be cases where the failure to satisfy the requirements of s 33 involves errors that are so trivial that the Court of Criminal Appeal may conclude that there has been a trial according to law, notwithstanding that failure. However, given the importance of the subject matter of the warning demanded by this case, the miscarriage of justice was a substantial one. This was not a case for the application of the proviso." (Citations omitted) 79None of these cases involved a misdirection regarding the onus of proof. In that context the appellant relied upon the decision of this Court in R v Soto-Sanchez [2002] NSWCCA 160; (2002) 129 A Crim R 279 where, in the context of a short summing-up, the trial judge gave the following direction: "We must be very wary of the risk of the entrapment of an innocent man. So is there a chance that the police accidentally got the wrong person. So could it be that he did come innocently to assist to [sic] two apparent strangers who appeared to come into the country the previous night with a large quantity of prohibited drugs. At the end of all your analysis of the evidence, is the only reasonable or credible explanation the guilt of the accused, namely he had the drugs when he walked out of the room and he knew he had them. Or could there be another explanation. Is there a reasonable chance on the balance of probabilities that what the accused said in his record of interview that he was merely coming to the Furama Hotel to take the people there out to see the town or to meet other people. Because if so then you must have a reasonable doubt and the accused must be acquitted." 80The Court unanimously held that there was a real possibility that this direction reversed the onus of proof and had the effect of restricting the jury in considering reasonable doubt in relation to the prosecution evidence. Stein JA also observed that the impugned direction was virtually the last advice given to the jury. He concluded this was a fundamental error that went to the root of the trial: R v Soto-Sanchez supra at [20]-[22]. 81In an earlier decision, MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, the accused was convicted of making a false statement on oath. It was held that the trial judge erred in not acceding to a request to redirect the jury that in considering whether the accused knew his statements were false or lacked a belief they were true, the prosecution would not have established an essential ingredient of the offence charged if they were satisfied that the accused held a mistaken but genuine belief that the statements were true. The Court held that it was inappropriate to apply the proviso as the accused had lost a chance of an acquittal which was fairly open if the jury concluded that "his dogmatic evidence, although false, was incorrectly or mistakenly so": MacKenzie supra at 376. 82Not all misdirections even of a serious nature will lead to the conclusion that the proviso cannot be applied. In Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1 the trial judge directed the jury that although the accused's right to silence could not be used in a manner adverse to him, it could be used to test the veracity of his evidence. The majority at 8, referring to Wilde supra, emphasised that there was "no mechanical formula or rigid test" to be applied in determining whether an error goes to the root of the proceedings; each case will depend on its own circumstances. They further stated that in dealing with the question it is appropriate to have regard to the strengths and weaknesses of the prosecution and defence cases in order to assess the gravity and significance of the error. The majority held that in the circumstances, the error was not of such a nature as to render consideration of the proviso inapplicable, although they ultimately held that it should not be applied. 83In Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202, the Court held that a misdirection in respect of a provision in the Misuse of Drugs Act 1981 (WA) deeming the accused as having intent to sell or supply a prohibited drug was a misdirection as it had not been established that he had the requisite quantity in his possession for the deeming provision to apply. The Court also held it was a misdirection as the deeming provision was irrelevant to the offences of attempt and conspiracy. However, a majority of the Court held that the misdirection did not go the root of the proceedings and did not result in the trial being fundamentally flawed. The majority made the following comments: "[22] Reduced to its essentials, the first branch of the appellant's argument concerning the proviso was that because the misdirection concerned proof of an element of each of the offences with which the appellant was charged, and because the misdirection occurred at a point when the appellant had no opportunity to address the jury about it, the appellant had been denied a proper trial. Especially was this so, so the argument ran, when the misdirection included a reversal of the onus of proof. [23] We do not accept that the proceedings against the appellant were fundamentally flawed or 'have so far miscarried as hardly to be a trial at all'. Each of the matters which we have mentioned (the fact that the misdirection concerned an element of the offence, occurred at the end of the trial and reversed the onus of proof) may invite the most careful attention to whether the proviso can be applied; each of these matters may be said to suggest that the jury may have been led into a false or unsafe chain of reasoning. But we are not persuaded that the fact that there has been a misdirection about one element of the offence with which an accused is charged means that the trial was necessarily fundamentally flawed. After all, most cases of misdirection will concern directions about matters relevant to the jury's deliberations and yet the proviso requires that not every 'wrong decision of any question of law' lead to the quashing of the conviction or a new trial. As was said in Wilde v The Queen '[t]here is no rigid formula to determine what constitutes such a radical or fundamental error' as to preclude the application of the proviso. Simply demonstrating that there was a misdirection on a matter relevant to the jury's consideration is not sufficient. [24] It may be that a misdirection which has the effect of denying procedural fairness and depriving an accused person of the right to have some substantial part of his or her case decided by the jury would result in a trial that is fundamentally flawed. It may also be that a misdirection about burden of proof invites closer scrutiny of the question whether the trial was fundamentally flawed but in this case it is important to put the particular misdirection into the whole context of the trial. It is convenient to do that at the same time as considering the second branch of the appellant's argument about the proviso, that the appellant lost a real chance of acquittal." (Citations omitted) 84More recent cases have emphasised three matters. First, it is a necessary but not always a sufficient pre-condition for the operation of the proviso that the appellate court be persuaded beyond reasonable doubt that evidence properly admitted at the trial proved the guilt of the accused. If the court is not satisfied of that matter it cannot conclude that no substantial miscarriage of justice occurred: Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at [44]; Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 at [226]; Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521 at [41]-[42]; AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 at [53]. In considering this matter the court is performing essentially the same function as when it decides whether a jury verdict should be set aside as unreasonable: Weiss supra at [41]; Festa supra at [123]; Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373 at [84]. 85Second, the court's task must be undertaken on the whole of the record including the fact that the jury returned a guilty verdict: Weiss supra at [43]; Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 at [128]-[130]. As a corollary, if the appellate court is unable to conclude the basis upon which a jury reached its verdict or if the jury did so without consideration of whether essential elements of the offence were proved beyond reasonable doubt, it could not be said that a substantial miscarriage of justice did not occur: see Patel v The Queen [2012] HCA 29; (2012) 86 ALJR 954 at [126]-[128]. 86Third, in Weiss the Court emphasised that there was no universally applicable criteria as to when it would be inappropriate for a court to apply the proviso even though it was satisfied of guilt beyond reasonable doubt: Weiss supra at [45]. In Nudd v R [2006] HCA 9; (2006) 225 ALR 161, Gleeson CJ, whilst emphasising that it was undesirable to seek to reduce miscarriages of justice to a simple formula, stated that circumstances when it was inappropriate to apply the proviso might include cases where the failure of process was such as to deprive the appellate court of the capacity to justly assess the strength of the case against the appellant, or if there had been a failure to adhere to the conditions essential to a satisfactory trial: Nudd supra at [6]; see also AK v Western Australia supra at [23] (per Gleeson CJ and Kiefel J albeit in dissent); Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282 at [47]. 87An example of the first class of case referred to by Gleeson CJ is Evans supra. In that case the High Court confirmed that the trial judge had erred by refusing to admit alibi evidence and held that the proviso could not be applied in such circumstances. In their judgment, Gummow and Hayne JJ emphasised that as an important element of material (the alibi evidence) was excluded and necessarily untested at the trial, the Court of Criminal Appeal could not decide on the record whether the offences were proved beyond reasonable doubt: Evans supra at [48]. 88In AK v Western Australia supra, Gummow and Hayne JJ warned against treating what was said in Wilde supra as a judicially determined exception grafted onto the otherwise general words of the statute: AK v Western Australia supra at [54]. Subsequently in Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293, Gummow and Hayne JJ again emphasised this point, making the following remarks: "[17] The Court also pointed out in Weiss that the use of the word 'substantial' in the proviso to the common form appeal provision (no substantial miscarriage of justice) was more than mere ornamentation. The expression 'substantial miscarriage' was adopted to make plain that the common form appeal provision did away with the old Exchequer rule by which any departure from trial according to law, regardless of its nature or importance, entitled the accused to a new trial. But whether there has been a 'substantial miscarriage' at any trial will depend, as was also pointed out in Weiss, upon the particular facts and circumstances and '[n]o single universally applicable description of what constitutes 'no substantial miscarriage of justice' can be given'. ... [33] Identifying a priori some kinds of error as precluding application of the proviso presents difficulties of the same kind as are presented by using judicial statements about the application of the proviso as some substitute for the relevant statutory test. That is, it is neither possible nor useful to seek to apply the proviso according to a taxonomy of errors at trial which describes some as 'fundamental' and others as not. And what was said in Wilde v The Queen about 'such a departure from the essential requirements of the law that it goes to the root of the proceedings' is not to be understood as prescribing or defining a class of cases to which the proviso cannot be applied. Rather, what was said in the passage quoted from Wilde is a description, in words other than the statutory words, of one kind of case in which an appellate court could not conclude that there had been no substantial miscarriage of justice. For the reasons given in Weiss, a negative proposition of this kind cannot be taken as a substitute for the statutory language. [34] Whether the error constituted by giving the impugned instructions is properly described as 'fundamental' or as an error going 'to the root of the proceedings' would depend upon the content that is given to the expressions used. The statutory question is whether the Full Court considers that 'no substantial miscarriage of justice has actually occurred'. In answering that question it is necessary to consider the nature of the error and in doing that it will be important to consider the possible effect that the error may have had on the outcome of the trial." (Emphasis in original and citations omitted) 89In Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92 at [21]-[24] the plurality stated that it was neither possible nor useful to argue about the proviso by reference to some category of "fundamental defects". The plurality stated that the question posed was whether there had been a "substantial miscarriage of justice": see also Patel v The Queen supra at [126]. 90What emerges from these authorities is the need to focus on whether, in the particular circumstances which existed, there has been a substantial miscarriage of justice. As the review of the trial and the evidence which I have carried out below indicates, if this is a case where the proviso can properly be applied, I am satisfied beyond reasonable doubt that the appellant was guilty of the offences charged. However, irrespective of this matter, it is necessary to consider whether there was a substantial miscarriage of justice such that the proviso cannot be applied. 91If the direction given by the primary judge as to honest and reasonable mistake had stood alone, I would have had little difficulty in concluding that regardless of the strength of the Crown case there would have been a substantial miscarriage of justice. The direction was quite incorrect and could only have misled the jury. More significantly, it would have inevitably diverted the members of the jury from the tasks assigned to them, namely to consider whether the Crown had established a critical element of the offence beyond reasonable doubt. In these circumstances, an appellate court would be unable to place any weight on the verdict of the jury or be satisfied that absent the erroneous direction the jury, regardless of the apparent strength of the Crown case, would have entered a verdict of guilty against the appellant. 92However, the erroneous direction did not stand alone. It must be considered in the context where the Crown asserted that it was an essential part of its case that the jury should be satisfied beyond reasonable doubt that the appellant intended to defraud the Commonwealth. Counsel for the Crown in his summing-up made the following remarks: "The Crown has to do more than that. We have to prove that Mr Giourtalis deprived the Commonwealth of that money, and he did so intentionally, that is, this wasn't an accident, or to use his words, it's an honest mistake, he intentionally defrauded the tax office." 93Counsel for the appellant at the trial expressly adopted these remarks: "I would like to remind you of what my friend indicated was relevant from the outset and that's the presumption of innocence and also the onus of proof. In other words the accused doesn't have to prove anything, it's for the Crown to prove his guilt beyond reasonable doubt and that burden rests on the Crown from beginning to end of the case until you deliver your verdict." 94It was in that context that the trial judge came to sum-up. 95In her written directions the trial judge emphasised that one of the elements of the offence was to intentionally deprive the Commonwealth of money. Her Honour made a similar direction with respect to the counts on the indictment alleging attempt to defraud. At the outset of her summing-up she repeated that direction. Further, as I indicated at par [26] above, after giving the direction complained of she returned to the appellant's evidence, referring to the fact that he said that "at worst he made some honest mistakes about including some taxpayers on the wrong spreadsheet". She then emphasised that it was not a matter where the jury could convict on the basis that one version of the events should be preferred over another. She expressly stated that if the appellant's version left the jury in some doubt as to whether the Crown proved its case in relation to a particular count, a verdict of not guilty should be entered. She further emphasised that it was only if the jury came to the conclusion that the account given by the accused could not reasonably be true that they should return a verdict of guilty. 96As I have indicated below, in my opinion the evidence establishes beyond reasonable doubt that the appellant was guilty of the offences charged. Whilst as I have stated that is not necessarily a sufficient basis for finding that there was not a substantial miscarriage of justice, it does not seem to me that the impugned direction of itself leads to the conclusion that such a substantial miscarriage of justice occurred. The jury were directed correctly as to the elements of the offences. The concluding remarks by the trial judge made it clear to the jury that it had to be satisfied beyond reasonable doubt that the appellant's version could not be accepted. It was a necessary precondition to a finding against the appellant that his evidence was not accepted by the jury both in relation to the charges where mistake was alleged and in relation to the other charges. In these circumstances any confusion brought about by the direction as to honest and reasonable mistake does not mean it is not possible to assess the basis on which the jury reached its verdict. If it was inevitable that a verdict of guilty would be reached on a correct application of the onus, then in my opinion in the circumstances of this case it would follow that there was not a substantial miscarriage of justice. 97I am fortified in this view by one further matter. The only type of mistake which the appellant said he made was that he misdescribed the name of the employer of various taxpayers. In each case where he stated that that misdescription arose, he contended that the other information in the taxation returns was correct. For fraud or attempt to defraud to be established it was necessary for the Crown to prove beyond reasonable doubt that those figures which the appellant said were true were in fact false and known by the appellant to be false. It would not be enough for it to be established simply that the wrong employer was inserted in the returns. The critical material in the returns were the figures which led to the refunds or the assertion of entitlement to a refund. The appellant did not suggest these figures were inserted in returns as a result of a mistake and the directions made it clear that their falsity and the appellant's knowledge of such falsity had to be proved beyond reasonable doubt. 98The error in respect of the Browne v Dunn direction does not affect the position. Such a misdirection, which at most would lead to the jury taking into account matters relating to the credit of the appellant which should not have been taken into account, does not mean that there was a substantial miscarriage of justice if after taking into account all evidence properly admissible, it was inevitable that the appellant would have been convicted. 99It follows that the proviso should be applied if taking into account all evidence properly admissible the appellant would have been found guilty. Would the appellant have inevitably been found guilty on the evidence properly admitted against him? (a) General matters 100A number of general matters may be noted at the outset. 101First, the case unsurprisingly was substantially a documentary case. The Crown prepared and tendered at the trial a summary document showing in respect of each count details of the returns lodged on behalf of the various clients of the appellant together with documents obtained from the appellant, Mr Campos and Messrs Lopez and Gonzalez by either the ATO or the Australian Federal Police (the summary). 102The appellant accepted that the summary was accurate. As a consequence it is not necessary to go beyond the summary in relation to much of the evidence which was tendered at the trial. 103Second, although the appellant accepted that the summary was correct, he contended that various documents had gone missing from his office from about the time the documents were seized by either the ATO or the Australian Federal Police (AFP). In assessing the appellant's evidence it is necessary to have regard to the evidence given as to such search and seizure. 104Mr Scott Sykes, an AFP Agent, gave evidence that he was involved in the execution of a search warrant on 2 July 2003 at the appellant's property. He stated that the search warrant included documents relevant to an investigation to be carried out in relation to the appellant, Mr Campos, Mr Gonzalez, Mr Lopez, Mr Filocamo, Ramace and all the taxpayers listed in the summary with the exception of Mr Theologou, who was referred to in the warrant as Mr Gregorakis. 105Mr Sykes said that at the same time a search warrant was being executed at the appellant's home. He said that he and other officers waited in the reception area of the office of Ramace until the appellant arrived. He said that when the appellant arrived he commenced to type on the keyboard of his computer and he was requested to stop doing this. He stated that at that point in time no police officer or computer expert had accessed his computer. 106Mr Sykes said that he later saw the appellant at the front reception desk of the office sitting in front of a computer with a keyboard and typing. Mr Sykes said he told him again to cease using his computer. He said the appellant explained to him that he was making a sign for the front door. Mr Sykes said at that stage a handwritten sign had already been prepared. 107Mr Sykes stated that he recalled having some discussions with Mr Clinton Towers, the computer forensics officer assigned to the investigation, concerning documents which had been deleted from the computer. He said that he recalled having a conversation with the appellant concerning such deletions but he could not recall if the appellant offered any explanation. 108Mr Sykes said that items which were seized were recorded on a property seizure record showing the location of the document, when it was seized and where and by whom it was seized. He agreed that the property seizure record was signed by the appellant at the conclusion of the search. He said that the documents were then taken back to the AFP office and placed in the exhibits room. 109In cross-examination Mr Sykes agreed that he had no recollection of any of the particular documents seized. 110A warrant was also executed at the office of Messrs Lopez and Gonzalez on 2 July 2003. The agent responsible for executing that warrant, a Ms Lyndall Rimoldi, gave evidence of adopting a procedure similar to that adopted by Mr Sykes. She stated the property seizure record was signed by Mr Lopez and the documents were taken back to the office of the AFP and placed in the exhibits room. She also gave evidence that she had no recollection of any particular document seized. 111Similar evidence was given by a Mr Dominic Zappavigna, the AFP agent responsible for executing a warrant at Mr Filocamo's Burwood office on 2 July 2003. 112Mr Scott Miller gave evidence to the effect that he was the AFP agent responsible for the execution of a warrant at the appellant's home in Brighton Le Sands on 2 July 2003. He said that Agent Clinton Towers dealt with computer forensics. Mr Miller said he did not do anything in relation to the appellant's home computer. He stated that the only material seized at the appellant's home was a black floppy disk. He confirmed that a property seizure record was signed by the appellant and that the floppy disk was taken to a secure exhibits room at Police headquarters. 113Mr Miller was cross-examined as to a bundle of documents referred to in a statement he made and which he said were in a manila folder on a cabinet located alongside the desk in the office of the appellant. He said that was material which was located at the office of Ramace which was handed to a Mr MacAlister who was the property seizure officer in respect of the search warrant relating to the Ramace premises. 114Mr Jeffrey Cukon gave evidence as to the execution of a warrant at the premises of Mr Campos on 2 July 2003 in similar terms to the evidence of Mr Sykes and Ms Rimoldi. 115The computer forensics expert involved in the execution of the warrants, Mr Towers, gave evidence. He stated that he had a Bachelor of Computer Science with First Class Honours from the University of Technology in Sydney together with a Bachelor of Economics degree and a Diploma in Information Technology. He stated that he attended the business premises of Ramace and the appellant's home in connection with the execution of the warrants. He stated that at the business premises there were five computers on a network in the office, which were able to share files and communicate with each other. 116Mr Towers described the technique he used to copy material stored on the computers. He described the precautions he took so as not to change any of the data on the hard drives and the establishment of a write protection device, the purpose of which was to prevent any changes in data. He said once that was done using forensic software, all the data whether currently in use or anything marked for deletion by the user was copied. 117Mr Towers stated that his investigation established that the time recorded on the appellant's computer as being the time marking the creation, modification or accessing of documents was accurate. He explained that in a Windows operating system deleted documents were removed to a recycle bin. Once documents were removed from the recycle bin they could not be restored without the use of special software or special expertise. 118Mr Towers gave evidence that he recalled looking at the appellant's computer and noted that there were large numbers of files which were shown as having been deleted on that day. He stated that he did not know if any particular analysis was conducted in relation to these files. 119Mr Towers gave evidence that the computer in the appellant's office had a bottom hard drive, a middle hard drive and a top hard drive. He stated that he connected the blocking protection device referred to earlier in his evidence to that computer and then mirrored the contents of the three hard drives and burnt them onto a number of DVDs which were secured in the exhibits room. He said he adopted a similar process in relation to the other computers in the appellant's office, with the exception of one computer, the hard drive of which was searched but not copied. 120Mr Towers also gave evidence that the computer and laptop referred to in the summary were seized from the appellant's office and placed in the exhibits room. 121In cross-examination Mr Towers acknowledged that documents could be deleted either by the user or by an automatic process. He said, however, that he could not be sure if the documents were deleted on the date of execution of the warrant or on the date of last access. 122Evidence was also given by a Ms Maggie Ng, a forensics and computer expert employed by the ATO. She stated she received a number of DVDs in about April 2005. She analysed them by using computer forensic software to view the discs and she performed keyword searches to identify files. She said the keyword searches related to names contained on the various search warrants. 123Ms Ng was shown a document entitled 'Statement of Facts Summary' which became Exhibit AP at the trial (Exhibit AP). She said that she searched the names of the taxpayers shown in Exhibit AP together with company names including Ladadika, Churchill Precision Grinding Pty Ltd (Churchill Precision Grinding), Hird Nominees, Phoenicia, One Shop, Master Auto Trim, European Enterprises, Hilton Glass Pty Ltd (Hilton Glass) and Chalmers. She said she extracted the relevant files on disc for viewing by a Mr Geoffrey Williams, the case officer. She explained that by relevant files she meant files that showed some hits for the relevant search terms. 124A Mr Peter Silk, formerly of the ATO, gave evidence that on 3 July 2003 he took possession of the materials seized as a result of the execution of the search warrants. He said he took the materials to the Newcastle ATO office where they were signed into the evidence room of that office where they remained until he reviewed them. He stated that he remained the case officer in relation to the matter until January 2004 when that role was taken over by Mr Williams. 125Mr Williams, who described his occupation as a fraud investigator with the ATO, gave evidence that he took over consideration of the matters the subject of these proceedings from Mr Silk in January 2004. He gave evidence that he created the document that became Exhibit AP. 126What is important from this evidence is that it was not suggested to any of the officers concerned in the search, seizure or analysis that any documents were destroyed in the course of the search or inadvertently deleted from the appellant's computers. Nor was it suggested that any of the documents seized were subsequently lost or deleted. 127Third, there was no significant dispute at the trial as to the manner in which tax returns for the various clients of the appellant came to be lodged. The primary information to lodge the tax returns was collected by the appellant who passed that information on to Mr Campos. Mr Campos then checked that the profit and loss statements and group certificates were in the correct form and passed them on to Messrs Gonzalez and Lopez who would prepare the tax returns. Messrs Gonzalez and Lopez, having prepared the returns, would pass them to Mr Filocamo who would then electronically lodge the tax returns. 128The appellant gave evidence concerning this arrangement. His evidence was that he worked as an accountant for Ramace in 1998 to 2000. He said that he used to obtain work by word of mouth or through another firm of accountants, Hall Chadwick. He stated that Hall Chadwick was the liquidator or administrator of Ladadika, Hird Nominees, One Shop, Chalmers, Churchill, Hilton Glass, European Enterprises, AAANG and Dannoui Holdings Pty Ltd (Dannoui Holdings). 129He stated that his involvement with individual clients was generally in relation to loans. He said that he did not tell any of his clients that he was a tax agent, but rather, that he had an association with Mr Campos and that he could prepare their returns. He said in respect of all loans made to clients that there was a loan agreement. 130The appellant gave evidence that he was aware from the outset that Mr Campos had an association with Mr Filocamo. However, he only found out about the involvement of Messrs Lopez and Gonzalez in late 1999. He stated that at least to his belief, Mr Campos prepared the tax returns and gave him a paper copy. 131He said it was his standard practice to ask clients if they wanted to apply some or all of the tax refunds to their outstanding loans. He stated that once refunds were received he would call the client to tell them of the refund. 132He stated that he had no hand in preparing the tax returns. He understood Mr Campos was preparing the returns, then printing them and bringing them to him for his client's signatures. He stated that in all cases he received paper returns which he would get clients to come in and sign. He stated that he then explained the refund that the client would receive. 133He said that his practice was to get each taxpayer to sign an Appointment of Tax Agent form. As far as he understood, the form, which he gave to Mr Campos, appointed Mr Filocamo to act on their behalf as their tax agent. 134In cross-examination, the appellant said that prior to the arrangement with Mr Filocamo and Mr Campos, he had a similar arrangement with a Mr Nick Skoulos. He stated that he was very familiar with group certificates and tax returns and that the relationship between client and accountant was one of honesty and accuracy. He acknowledged that his clients relied on him to prepare documents to be used in tax returns and that he had an increased duty when acting for clients with literacy difficulties, who were not sophisticated financially or who were just starting a business. 135He stated that from the outset he knew that Mr Campos was not a tax agent and that Mr Campos was going to use another accountant to lodge the returns based on documents which he prepared. He accepted that Messrs Campos, Gonzalez, Lopez and Filocamo did not have any direct contact with his clients. 136Mr Campos gave evidence that he met the appellant in around 1992 and that he set up his practice, Marrickville Accounting Services, in late 1994. He stated that he knew Mr Lopez who told him he had contact with a tax agent. He then arranged to become part of a system so that the agent could lodge his clients' returns electronically. He stated that he meet Mr Filocamo only once. 137Mr Campos stated the arrangement with the appellant started sometime in 1998. He did not have any direct contact with the appellant's clients. He said the appellant gave him all the necessary documents including profit and loss statements and group certificates together with signed electronic lodgement declarations, but not signed income tax returns. 138Mr Campos said that he was familiar with the term 'replacement group certificate' and he had asked the appellant about replacement certificates. He said that the appellant explained to him that the companies to which the replacement certificates related were in liquidation and that he passed this information on to Messrs Gonzalez and Lopez. He stated that he had noted that the rate at which tax had been deducted was high and that the appellant told him that the employees had not provided tax file numbers. 139Mr Campos also accepted the losses said to have been incurred by the appellant's clients. He assumed that as an accountant the appellant was doing his job properly. 140Mr Campos stated that he never played a role in banking refund cheques for the appellant's clients and did not know what the appellant did with the funds. He said he did not know anything about Ladadika, Churchill Precision Grinding or the other companies listed in Exhibit AP. 141Mr Gonzalez gave evidence that he and Mr Lopez had reached an agreement with Mr Filocamo pursuant to which Mr Filocamo would lodge tax returns prepared by them for a small fee. He stated that in about 1997 Mr Campos proposed that he and Mr Lopez prepare tax returns from documents supplied by Mr Campos. He stated that the tax returns prepared contained his and Mr Lopez's Canley Vale post office box address (Canley Vale PO Box). He stated that neither he nor Mr Lopez opened mail in respect of Mr Campos' clients, but rather, they contacted Mr Campos who would come to their premises to collect the material. 142Mr Gonzalez said that he noticed on some occasions the tax instalments deducted from Mr Campos' clients was at a high rate but as he recalled it he accepted the explanation proffered by Mr Campos. 143The evidence of Mr Lopez was broadly to the same effect as that of Mr Gonzalez. 144Mr Filocamo confirmed that he lodged income tax returns on behalf of Messrs Gonzalez and Lopez pursuant to the arrangement described in the evidence above. He stated that his practice was to check the returns prepared by them with the source documents which he received and that he probably spent about five to 10 minutes on each return. He stated that up until July 2001 he had not heard of either the appellant or Mr Campos. He stated that his understanding was that all the taxpayers were clients of Messrs Gonzalez and Lopez. He agreed he was probably receiving about $4.00 per return. 145Mr Filocamo said he was not involved in receiving notices of assessment or refund cheques as he believed that Messrs Gonzalez and Lopez were dealing with those matters. He stated he did not know if the cheques were passed on to clients. He agreed that the documents he lodged contained the Canley Vale PO Box. He considered it to be his Canley Vale branch office as it was the postal address of Messrs Gonzalez and Lopez. 146It is convenient to deal with other evidence which relates generally to taxpayers during the course of the consideration of each individual count. 147Although generally I will deal with the counts in the order in which they appeared on the indictment, it is convenient to deal with the counts on which tendency and coincidence evidence is relied upon after all other counts have been dealt with. As set out above, the counts in respect of which the notice was relied upon are Counts 3, 4, 5, 37, 39, 40, 41, 42 and 48. (b) Ladadika Pty Ltd 148It is convenient at this point to say something in relation to Ladadika. The evidence established that Ladadika for a brief period operated a Greek nightclub. Ladadika was incorporated on 17 June 1997 and was placed into liquidation on 24 March 1998, the liquidator being a Mr Geoffrey McDonald who gave evidence that he was at the time a partner of Hall Chadwick, which he described as a liquidation firm. 149Mr McDonald gave evidence that he was introduced to the appellant in about 1990 and in the 1990s the appellant started to refer clients to him. 150Mr McDonald stated that as liquidator of Ladadika his primary source of instructions and documents was the appellant. He stated that it was normal for a liquidator to receive the company's books and records and in some cases group certificates may not have been issued. He said he did not deal with the directors of Ladadika. 151He said by the time of his appointment Ladadika had ceased trading. He said he received replacement group certificates in respect of employees of Ladadika from the appellant. He accepted them as correct as he had no way of verifying the information. From these group certificates he prepared statements of earnings for the persons named in them. He said he discussed the high rate of deductions and the appellant explained to him that the employees were either employed on a second job or had not provided tax file number details and, therefore, were taxed at a higher rate. He said it was unusual but plausible due to the nature of the industry. 152A Mr Unal Ibrahim gave evidence. He stated that he owned a coffee shop "La Fresca" at Wynyard Station. He stated that when he sold that business the appellant arranged for him to invest money from the sale of "La Fresca" into Ladadika. Mr Ibrahim said he understood that a Mr Con Giannakarous was the owner of Ladadika. 153Mr Ibrahim said he gave the appellant a cheque for $50,000 and that the appellant said he would arrange the papers in respect of the investment. 154Mr Ibrahim said he worked as the Manager of Ladadika. He said he could not recall the exact date but it was between late July and September 1997. 155He said that shortly after he arrived the bills for the business began to pile up. He said there were bills for gas and electricity supplies, liquor, meat and vegetable supplies, and the singers and persons who worked there. He said Mr Giannakarous did not pay anything. He said that a week after he started work Mr Giannakarous left the club and went to Greece. Mr Ibrahim said he had to pay $57,000 to clear the expenses. 156Mr Ibrahim said he paid all the employees of Ladadika from his pocket because the club did not make any money. He said he remembered that he paid cash to four singers, two men and two women, a chef and three waiters, who he named as Lambros, Lagomigis and George. 157Mr Ibrahim said some three months after he started work at the club there was a fight outside it. Following the fight there was bad publicity and, as a result, the business rapidly deteriorated and ultimately shut down shortly before Christmas 1997. 158Mr Ibrahim said he did not know anything about the incorporation of Ladadika or it going into liquidation. He said he did not get any of the $108,000 he invested back and he did not draw a wage from Ladadika. 159Mr Ibrahim said he did not play any role in obtaining tax file numbers from employees of the club. He said that the appellant was looking after those matters. He said he did not give any group certificates to any employees and he did not know about any tax being deducted from their wages before they were paid. He said he did not know whether the appellant gave the employees any group certificates. 160Mr Ibrahim was asked whether the persons referred to in the summary as having worked for Ladadika in fact worked there. Generally speaking he denied that they did or had no recollection. That evidence has relatively little relevance to the proceedings as the appellant accepted that most of the people concerned did not work for Ladadika. To the extent it is relevant, I will return to it when I deal with the individual counts. 161In his evidence in chief the appellant said that Ladadika and certain other businesses for which he acted were cash businesses. He said if they got into difficulty he advised the directors to put the company into administration. He said he had a working association with Hall Chadwick and Mr McDonald who he would advise if a company wanted to go into administration. The appellant said he referred Ladadika to Mr McDonald. He said that in the case of Ladadika he received all the paperwork from the administrator and he finalised the books and records and prepared schedules. He said he would enter the data on a spreadsheet and from there would prepare documents including replacement group certificates. 162The appellant identified in general terms the errors which he stated he made in respect of those spreadsheets. He stated that he would have mistakenly put employees not working for Ladadika under the Ladadika heading on the spreadsheet instead of under another company, for example, Hird Nominees. He said in respect of Ladadika there was a wages book but not everybody was in there. He said he had to rely on the directors of Ladadika in particular Mr Giannakarous to complete the records. Count 1 - Mr Theo Katsantoni - Tax return for the year ended 30 June 1997 (a) The summary 163The summary discloses that a tax return for the year ended 30 June 1997 was lodged on behalf of Mr Katsantoni on 3 July 1998, the contact address being the Canley Vale PO Box. The return disclosed that Ladadika was Mr Katsantoni's employer and that he received income of $21,141 from which tax instalments of $9,936.51 were deducted. It also claimed a loss of $9,162 incurred in carrying on a business "T Rex Art, Graphic Art". The summary also shows that a refund of $5,449.52 was received and deposited into the account of Ramace on 30 September 1998. 164The summary also shows that a replacement group certificate for Mr Katsantoni showing wages and tax as detailed in the return was obtained from the premises of Ramace. It should be noted that the period of employment was said to be from 1 April 1997 to 30 June 1997, Ladadika only having been incorporated on 17 June of that year. Copies of the notice of assessment giving details of the refund payable to Mr Katsantoni were also obtained from the office of the appellant. The summary also states that there was retrieved from the appellant's computer a document entitled "Statement for Katsantoni 1997 Graphic Artist" showing gross income of $12,884, expenses of $22,045 and net loss of $9,161. (b) The evidence 165Mr Katsantoni gave evidence. He said that in 1997 he established and worked in a business called T-Rex Art and that a Mr Peter Sweeney offered to put money into his business if his tax issues were taken care of. He said that Mr Sweeney paid $25,000 into his business. 166He said he met the appellant in June or July 1997 and told him that his tax affairs were a complete mess. He said he indicated to the appellant that he was happy to go along with whatever the appellant suggested. 167Mr Katsantoni stated that he gave the appellant his tax file number and all documents including bank statements and that the appellant told him that $14,000 would cover everything. He said he paid the appellant $14,000 out of money that Mr Sweeney had agreed to put into his business. 168He said that the appellant never showed him any tax returns and never discussed any tax refunds with him. He stated that from 1997 until he went to America in 2002 he never heard anything about his taxation affairs from the appellant. He stated that he demanded his papers back in 2002. 169Mr Katsantoni stated that he never worked for Ladadika, that he had never heard of Mr Campos, Mr Lopez, Mr Gonzalez or Mr Filocamo and he knew nothing about the Canley Vale PO Box shown on the 1997 tax return. 170He denied that he received any wages from Ladadika or that any tax was deducted. 171Mr Katsantoni acknowledged that he carried on a business named T-Rex Art but said he did not know if the business income of $12,884 disclosed on the return was correct. However, he said that the rental expenses of $7,508 shown on the profit and loss statement was incorrect, as he did not pay rent to anybody. 172Subsequently in the evidence, Mr Katsantoni stated that after he first saw the appellant, the appellant told him he was opening a new Greek club in Belmore. He said he thought the appellant mentioned a partner was taking it over, renaming it Ladadika and that he was asked to design a logo for which he was paid about $200. He stated that was the only work he ever did for Ladadika. He did not say whether this work was carried out in the 1997 or 1998 year. 173Mr Katsantoni was shown the notice of assessment for the year ended 30 June 1997. He denied ever having seen it and did not know he was entitled to a refund. He said he thought the payment of $14,000 made to the appellant would bring him back to zero and "that was it". 174Mr Katsantoni was shown a document containing his signature authorising the refund to be deposited into a Ramace account. He said he had no recollection of signing the document. He acknowledged that he borrowed some money from the appellant between 1998 and 2001, one loan being for $4,000 and the other for a computer. He stated he repaid both loans. 175In cross-examination Mr Katsantoni acknowledged that he caused the company T-Rex Art Pty Ltd to be incorporated in June 1997 and that he and Mr Sweeney agreed that he would draw a wage from the company. It was suggested to him that of the $25,000 he received from Mr Sweeney, $14,000 was paid to the appellant to finalise his tax affairs and the remaining $11,000 was wages from T-Rex Art Pty Ltd. He denied that. 176It was ultimately put to Mr Katsantoni that he did not work for Ladadika in the year ended 30 June 1997 but for T-Rex Art Pty Ltd. He said he did not remember getting a group certificate from T-Rex Art Pty Ltd for the 1997 financial year. 177Mr Katsantoni acknowledged that he could have signed an employment declaration form and stated that he did not remember if he signed a 1997 tax return in the presence of the appellant. He said he did not recall the appellant giving him an opportunity to review his tax returns or get a copy. He stated that he had difficulty getting records back. He said he did not agree to have a refund cheque deposited into Ramace's account to offset bookkeeping fees and that the loan for $4,000 which he received was not to be offset against such a refund. 178Finally, in re-examination, Mr Katsantoni confirmed that the figure of $21,141.51 income shown in his group certificate was "too high". 179The appellant stated that Mr Katsantoni told him he wanted his accounts brought up-to-date. Subsequently he said Mr Katsantoni came to his office. He was shown notes of a meeting which he identified as notes he took at the meeting with Mr Katsantoni. Those notes do not make any reference to Mr Katsantoni being employed by Ladadika. In that part of the notes which the appellant described as detailing Mr Katsantoni's activities, he is described as "artist fulltime", whilst it states that his income was around $20,000 it says nothing about deductions. 180The appellant claimed that Mr Katsantoni told him he wanted a loan of $20,000 to update his computers. He said he was involved in the incorporation of T-Rex Art Pty Ltd. He acknowledged that he prepared the replacement group certificate for Mr Katsantoni. He said he would have calculated the top marginal rate due to there being no employment declaration. The appellant stated that Mr Katsantoni did not work for Ladadika in 1997; that was a mistake which arose from the spreadsheet. 181The appellant claimed that Mr Katsantoni signed documents in his presence including loan agreements, tax agent forms and an authority to deposit. He claimed that he gave signed documents relating to tax to Mr Campos and kept a copy. He claimed that there was a loan agreement for $3,000 and that he kept the original. No such document was produced. 182The appellant said he gave to Mr Katsantoni a copy of the original notice of assessment of tax for the 1997 financial year and then applied the refund toward the repayment of loans and outstanding accounting fees. 183Finally, so far as the return was concerned, he stated that the $21,141 was the gross figure calculated by using the net wage and top marginal rate. He said that the $9,162 loss for T-Rex Art was arrived at by using books provided by Mr Katsantoni. He said in relation to rent expenses that he apportioned the space in which Mr Katsantoni lived from his working space. 184A number of things can be noted about this evidence. First, it does not appear that the appellant had any material whatsoever to justify the tax instalment deduction contained in the replacement group certificate. Second, the appellant's handwritten note of his discussion with Mr Katsantoni indicated that Mr Katsantoni worked as a graphic artist. That was apparently intended to be reflected in the profit and loss statement. However, even assuming books and records of T-Rex Art were produced by Mr Katsantoni concerning that business, it is apparent from the manner in which the rental calculation was made that this was not based on any actual outgoing. 185In cross-examination the appellant said that mistakes such as that made as to the identify of Mr Katsantoni's employer were made because he made notes of employees' names and income on loose pieces of paper which he described as working papers. He said he got details of the employees' names and income from a director of the employer company. He was asked why people were put on the Ladadika spreadsheet as a result of an honest mistake. In that context he gave the following answer: "Ladadika was the top spread sheet within the Excel working paper and that's how I made the honest mistake. From Ladadika started other companies. There were about 15 or 20 companies that I kept details of the gross wage, the tax and net wage. So from those spread sheets, where I extracted the group certificates, so inputting in the working paper to the spread sheet is where the mistake occurred." 186In subsequent cross-examination the appellant acknowledged that he knew where each of the taxpayers in respect of whom returns were lodged worked at the time he took instructions. Indeed, he stated he could still remember where they worked and roughly how much they earned when he reviewed the documents. He said that after he received tax returns back from Mr Campos he would call in the client to have them signed but he did not check them. He stated that he did not check whether the taxable income was correct even though he was making loans to some of the clients based on that income. 187In relation to instalment deductions the appellant stated that so far as he knew none of the relevant taxpayers provided employment declarations. He stated that he checked with the correct employer if there were in fact declarations and that once he made these inquiries he believed that tax would have been deducted at the highest rate. 188He stated that he did not attempt to determine if tax had been deducted because he did not have the wage books. He simply assumed that tax instalments were deducted. He said that because most companies were in administration, he did not know what payments had been made to the ATO. Subsequently he stated that he did ask the employers if tax had been deducted, acknowledging that he never gave that evidence in chief. 189The appellant denied that the Ladadika spreadsheet was a fabrication to disguise fraud. He denied that he intentionally failed to put the correct employer details on Mr Katsantoni's replacement group certificate. 190In cross-examination which specifically related to the return filed on behalf of Mr Katsantoni, the appellant repeated his evidence that Mr Katsantoni was incorrectly shown as working for Ladadika. The appellant said he was the accountant for T-Rex Art Pty Ltd and incorporated that company on 5 June 1997. He said that the wages claimed were given to Mr Katsantoni in a lump sum by Mr Sweeney. He said he did not attempt to determine if tax was deducted and did not make any inquiries in relation to this matter. 191He elaborated on his calculation of rent in cross-examination. He stated that that was calculated by apportioning the rent payable by Mr Katsantoni for his residence. He stated he did not make up the figure of $7,508 for rent. He claimed he made a note saying that he was told Mr Katsantoni was paying $400 per week rent. He was referred to a note he took at a conference with Mr Katsantoni which stated that Mr Katsantoni was paying $240 per week rent. He stated this was for his home but he was not sure if it was for the relevant home or the home Mr Katsantoni lived in prior to his first interview with Mr Katsantoni. He denied that he made up the figure of $4,058 shown in the profit and loss statement as being paid to contractors by Mr Katsantoni. He stated Mr Katsantoni was mistaken when he said he had no contractors. 192In re-examination the appellant said that he did not make inquiries if tax had been deducted by T-Rex Art Pty Ltd for wages allegedly paid to Mr Katsantoni because it was not his responsibility. He stated that he had a clearer recollection than Mr Katsantoni about Mr Katsantoni's business in 1997 because he relied on the books and records. 193Mr Sweeney gave evidence that the figures shown for income for Mr Katsantoni of $21,141 with tax instalment deductions of $9,936 did not reflect the arrangements which he had with Mr Katsantoni. He said it was possible that he would have paid Mr Katsantoni around $21,000 over the course of that year but he did not deduct any tax from the amount he paid. 194In relation to the business expenses of T-Rex Art Pty Ltd, Mr Sweeney denied that he charged Mr Katsantoni rent or that the figures for repairs and maintenance shown on the expense sheet reflected any arrangement between Mr Katsantoni or his company, Reel Corporation Pty Ltd (Reel Corporation). It was not put to him in cross-examination that any of this evidence was incorrect. (c) Consideration 195Several matters emerge clearly from the evidence and were not contested at the trial. The first was that Ladadika was not the employer of Mr Katsantoni during the 1997 tax year. Second, the tax return was incorrect insofar as it stated that instalment deductions of $9,936.15 had been deducted. Mr Katsantoni denied that any such deductions were made, whilst Mr Sweeney denied he contributed any funds to T-Rex Art Pty Ltd which were used as wages from which tax instalments were deducted. The appellant's ultimate position was that he made no inquiries as to whether or not tax instalments were deducted. 196I am also satisfied beyond reasonable date that the loss claimed in respect of the business T-Rex Art Pty Ltd was false for at least two reasons. 197Although Mr Katsantoni conceded that he may have earned $12,000 income from his business during that year, he denied that he made any rental payments or incurred expenses for repairs and maintenance during the year in question. Mr Sweeney said he did not charge Mr Katsantoni any rental and that the figures for repairs and maintenance did not reflect any arrangement between him and Mr Katsantoni. 198So far as the rental was concerned, the appellant said it was apportioned having regard to the fact that Mr Katsantoni worked at home. Even if this was correct, the rental payable by Mr Katsantoni according to a note taken by the appellant was $240 per week, meaning that 60% of such rental was apportioned to business expenses, a claim denied by Mr Katsantoni and inherently implausible. In this context it must also be remembered that the tax return prepared from information supplied by Mr Katsantoni showed the business address for T-Rex Art Pty Ltd as the Balmain premises of Mr Sweeney. 199There is no doubt in my mind that the appellant was responsible for the lodgement of the tax return which contained the false information and produced the refund. Although he was not physically responsible for its lodgement, there is no issue that he was responsible for the preparation of the figures which led to its preparation and gave instructions which led to its ultimate lodgement by Mr Filocamo. The appellant did not contend to the contrary. 200Further, I am satisfied that the appellant knew the information contained in the return was false. So far as the instalment deductions were concerned, it is inherently improbable that tax instalments in respect of a relatively low income earner such as Mr Katsantoni would be deducted at the top marginal rate. The only explanation the appellant proffered was that he did not believe that Mr Katsantoni signed an employment declaration. He acknowledged that he did not inquire whether tax was deducted, much less at what rate. 201It must also be remembered that T-Rex Art Pty Ltd was only incorporated in June 1997. The appellant's statement that the wages were paid to Mr Katsantoni in a lump sum by Mr Sweeney was denied by both Mr Katsantoni and Mr Sweeney. There was no evidence to support that statement and it was not suggested to Mr Sweeney that his evidence was incorrect. Neither was it suggested to Mr Sweeney that his statement that he did not charge Mr Katsantoni rent or monies for repairs and maintenance was incorrect. 202It is totally implausible that an accountant such as the appellant would have caused a tax return to be lodged in those circumstances without knowing it to be false. It must be remembered that the appellant acknowledged he was familiar with group certificates and tax returns and was aware of the importance of honesty and accuracy in dealing with clients' affairs. Further, it must be remembered in this regard that Ramace, a company controlled by the appellant, received the benefit of the refund. It is not necessary to determine whether the money was received in repayment of a loan or fees due by Mr Katsantoni. Whatever be the case, the appellant or his company profited from a tax return which was manifestly false. 203It follows that I am satisfied beyond reasonable doubt that the return was false to the knowledge of the appellant and that it was lodged with the intention of dishonestly obtaining money from the Commonwealth for the benefit of the appellant or his company. 204In these circumstances I am satisfied beyond reasonable doubt the appellant was guilty of the charge the subject of Count 1. Count 2 - Mr John Lagomigis - Income tax return for year ended 30 June 1997 Count 9 - Mr John Lagomigis - Income tax return for year ended 30 June 1998 Count 45 - Mr John Lagomigis - Income tax return for year ended 30 June 1999 (a) The summary 205The summary in respect of Count 2 in relation to Mr Lagomigis' taxation return for the year ending 30 June 1997 discloses the following: (a) That Mr Lagomigis derived gross income of $24,641 from which tax instalments of $11,581.51 were deducted. The employer was named as Ladadika. (b) That Mr Lagomigis incurred a loss of $13,118 from a business Colossus Car Audio, Car Radio Services (Colossus Car Audio). (c) That Mr Lagomigis received a tax refund of $10,552.10 which was banked into the account of Ramace. (d) There was extracted from the appellant's computer and laptop a statement of income and expenditure from 1997 for Lagomigis trading as Colossus Car Audio showing gross sales of $12,445 and total expenses of $28,789. 206The summary in respect of Count 9 for the taxation return for the year ending 30 June 1998 discloses the following information: (a) That Mr Lagomigis derived gross income of $24,641 from which tax instalments of $11,581.51 were deducted. The employer was named as Ladadika. (b) That Mr Lagomigis incurred a loss of $15,554 from Colossus Car Audio. (c) That Mr Lagomigis received tax refund of $10,994.11 which was deposited into the account of Ramace. (d) There was extracted from the appellant's computer and laptop a 1998 statement of income and expenditure for Lagomigis trading as Colossus Car Audio showing gross sales of $10,481, rent of $11,086 and total expenditure of $25,781 comprising a net loss of $15,300. (e) There was extracted from the appellant's computer and laptop a wages breakdown for Ladadika for 1 July 1997 to 20 March 1998 showing Mr Lagomigis' wages as $36,184.91 with tax instalments of $17,006.91 being deducted. (f) Documents obtained from Mr Campos included a similar statement of income and expenditure for Colossus Car Audio as extracted from the appellant's computer and laptop, and a statement of earnings for 1998 signed by Mr McDonald showing Ladadika wages as $24,641.51 and tax of $11,581.51 deducted. 207The summary in respect of Count 45 for the taxation return relating to the year ending 30 June 1999 discloses the following information: (a) Mr Lagomigis was said to have earned $22,140 from which tax instalments of $10,405.80 were deducted. The employer was named as Master Auto Trim. (b) Mr Lagomigis was said to have incurred a loss of $16,966 from Colossus Car Audio. (c) Mr Lagomigis obtained a refund of $10,405.80 which was deposited into an account named Ramace Pty Ltd No 2 Loan. (d) ASIC searches record that Master Auto Trim Pty Ltd was incorporated on 7 July 1999. However, a Mr Elijah Magliveras carried on a business under that name prior to the incorporation of the company. (e) There was retrieved from the appellant's computer and laptop statements of income and expenditure for 1999 for Lagomigis trading as Colossus Car Audio showing gross sales of $46,052, interest of $2,489, rent $12,085, total expenditure of $63,018 with a net loss of $16,966. (f) A similar statement of income and expenditure was held in hardcopy by Mr Campos. (g) Mr Campos' records also disclosed a replacement group certificate for Master Auto Trim wages in the amount shown in the tax return. (h) The records of Messrs Lopez and Gonzalez contain a copy of the tax return as lodged. (b) The evidence 208Mr Lagomigis was also known as Yiannis Lagos and gave evidence under the latter name. 209Mr Lagomigis gave evidence that he met the appellant in 1995 or 1996, about a year after he left high school. He said he wanted to open a car audio business. 210He registered the name Colossus Car Audio. His first shop was at Greenacre. 211In early 1998 he went to the appellant's office at Brighton Le Sands taking all his financial documents for 1996, 1997 and 1998. He said he had not lodged any tax returns for those years. 212He said that he told the appellant that he wanted the appellant to do his accounting work. He said there was no discussion about filing tax returns and he was never shown any tax returns. He said he signed documents but denied they included tax returns. He stated he talked to the appellant about borrowing money. 213Mr Lagomigis said that in 1999 the business that he was operating moved to Canterbury where he subleased premises from a Mr Louis Magliveras, paying about $200 per week. He said he did not work for Mr Magliveras and there were no other financial arrangements between them. There was no issue that Mr Louis Magliveras was the same person as Mr Elijah Magliveras to whom I have referred previously. 214He stated that as the business was expanding he wanted to borrow some money. He said that the appellant assisted him in borrowing $3,000 from St George Bank and that he signed the documents at St George Bank in the appellant's presence. 215Mr Lagomigis stated that a few days after he signed the document he received $3,000 in cash from the appellant. He was told he would receive an additional $2,000 in two or three weeks which he did not receive. He said that there were no arrangements for him to repay the $3,000 loan. 216Mr Lagomigis stated that he did not discuss interest on the loan with the appellant. He stated that they discussed fees payable for accountancy work but not for income tax returns. He said that the appellant asked him to sign documents from time to time but he did not read them and they were not explained to him by the appellant. 217Mr Lagomigis said that he went bankrupt in February 2000 having been advised to do so by the appellant. He stated that from 1997 to 1999 Colossus Car Audio was "holding its own"; the loss that it incurred was never more than about $2,000. 218Mr Lagomigis stated he did not believe that he had ever set up a company. He stated that from 1997 to 1999 he was working for himself under the business name Colossus Car Audio and was never employed by anyone else. He stated he never worked for Ladadika although he twice went to the nightclub as a customer. 219He said that Colossus Car Audio paid rent but did not have any motor vehicle expenses. 220In relation to Count 2, Mr Lagomigis said that he had never heard of the Canley Vale PO Box shown on the tax return. He had never heard of Mr Filocamo, Mr Campos, or Messrs Gonzalez and Lopez. He claimed the appellant did not tell him someone else would be preparing his tax return. 221He said that the 1997 tax return was incorrect. He was not employed by Ladadika and neither the income nor the tax instalments were correct. He stated that the appellant had advised him that his business was below the tax free threshold so he was not paying tax. His belief was that tax instalments were not being deducted. 222So far as the business was concerned, Mr Lagomigis said the business details were correct. However, the income of $12,425 was false as were the expenses of $25,563. They should have both been around $15,000. He said the loss of $13,118 was incorrect; it should have been around $2,000. 223Mr Lagomigis said he did not receive a notice of assessment nor was he advised that a refund cheque of $10,522 had been received. He identified handwriting on the back of the cheque as that of the appellant and said that he did not authorise anyone to bank it into an account of Ramace. 224In relation to the 1998 tax return, he repeated his lack of knowledge of the Canley Vale PO Box or of the involvement of Mr Filocamo. He denied he was employed by Ladadika and stated that the income shown on the return of $24,641 was incorrect as were the deductions of $11,581. 225So far as Colossus Car Audio was concerned, he stated that business income was not $10,481 but would have been closer to $4,000. He denied the expenses of $25,853 and said they should have been closer to $1,500. He said the business made a loss of much less than $15,500. 226He was not told by the appellant that he was entitled to a refund of $10,994 and he did not authorise it to be banked into a Ramace account. 227Mr Lagomigis was shown a document headed "Ladadika Pty Ltd wages breakdown from 2/7/97 for the period 1st July 1997 to 20 March 1998". He said that it was untrue that he received monthly wages of $4,232 per month for a six month period commencing from 1 July 1997. 228In relation to the 1999 tax return, he repeated his evidence that he did not recognise the Canley Vale PO Box. He denied that he was employed by Master Auto Trim, stating that he was never employed by or earned income from Mr Magliveras or his business. He said that both the income of $22,140 and tax deductions of $10,405 were incorrect. He stated that he had no other source of income apart from his business. 229So far as income from Colossus Car Audio was concerned, he denied that his 1999 business income was $46,052. He stated the business did not make a loss as large as $16,716 and the expenses listed were incorrect. 230Mr Lagomigis was shown a document with ATO letterhead and a refund cheque of $10,405. He said he was not told of the refund. 231In cross-examination Mr Lagomigis said the last time he saw the books for Colossus Car Audio was when he handed them to the appellant in 1999 or 2000. He acknowledged that he was relying on his memory recalling the gross income from his business. 232It was suggested to him that he borrowed $10,000 from the appellant in 1998, which he denied. He stated that he vaguely recalled going to the appellant's office in 1998 to discuss preparation of his tax returns. He recalled that the appellant gave him advice that he was below the tax free threshold and did not have to pay tax. On that basis he did not think he had to file a return. 233He reiterated that he worked for neither Ladadika nor Master Auto Trim. 234Mr Magliveras said that in 1997 to 1999 he was running his own business, Master Auto Trim. He stated he knew Mr Lagomigis who used to rent a section of his workshop to do car audio work. He stated that Mr Lagomigis was never employed by Master Auto Trim, although he used to help out with some auto trimming jobs from time to time for which he was paid. 235The appellant gave evidence that in 1998 Mr Lagomigis asked him to prepare accounts for Colossus Car Audio and gave him books to do so. He said he set up Mr Lagomigis' account on an Excel spreadsheet and did his income and expenditure statements for three years from 1997 to 1999. 236He said that he invoiced Mr Lagomigis for his fees but the invoices were missing from his MYOB programme when he got his computer back. He said that in 1998 Mr Lagomigis borrowed $10,000 from him for his business expenses for which he signed a loan agreement. 237The appellant claimed that Mr Lagomigis wanted to get his tax returns done and that he told Mr Lagomigis about the involvement of Mr Campos. He stated that Mr Lagomigis signed documents relating to the appointment of a tax agent and an electronic lodgement declaration. He said that it was incorrect to say that Mr Lagomigis worked for Ladadika in 1997. In fact Mr Lagomigis worked for Master Auto Trim. 238The appellant claimed that Mr Magliveras told him that Mr Lagomigis worked for Master Auto Trim, in the sense that when he was not busy he would assist Mr Magliveras. He said he did not believe that there was any employment declaration and that Mr Lagomigis earned about $150 to $200 cash per week. I have set out the evidence of Mr Magliveras on this issue above. Further, it should be noted that on the appellant's own evidence the income from Master Auto Trim would not have amounted to more than some $10,000 rather than $24,641 claimed. Also there was no suggestion in the evidence in chief that any tax instalments were deducted. 239In cross-examination the appellant admitted that he was aware that Master Auto Trim was only incorporated on 7 July 1999 but claimed that prior to that time Mr Lagomigis worked for Mr Magliveras trading under that name. It should be noted that part of the material seized from the appellant's office included a profit and loss statement for Mr Magliveras trading as Master Auto Trim for the year ended 30 June 1997. In each of those statements the only expense for casual wages was an amount of $18,098. 240Further, the appellant acknowledged that he did not check with Mr Lagomigis whether the figure in the tax return was correct. 241The appellant was cross-examined on the amount of rent claimed as an expense in the 1997 profit and loss statement for Colossus Car Audio. He said it was rent paid to Mr Magliveras for use of part of the premises at Canterbury. It was pointed out to the appellant that Mr Lagomigis stated he did not move to those premises until 1999 and he responded, "He had moved in as far as I knew from the records". The tax return lodged on behalf of Mr Magliveras for the year in question did not declare any rental received. That tax return, which is the subject of Count 27, was prepared from information provided by the appellant. 242In relation to the 1998 return, the appellant acknowledged that it was incorrect to say that Mr Lagomigis worked for Ladadika. He said that Mr Lagomigis worked for Master Auto Trim being paid roughly $250 per week. The appellant said he was told this by Mr Magliveras who also told him that Mr Lagomigis worked for Master Auto Trim in 1999. It should be noted again that on the appellant's own evidence the maximum amount which would have been earned by Mr Lagomigis from Master Auto Trim was $12,500, not the $24,000 referred to in the tax return. 243The appellant was shown a wages breakdown for Ladadika for the period 1 July 1997 to 20 March 1998. He stated that Mr Lagomigis was included on that spreadsheet by mistake. He repeated his evidence that the income figures were given to him by Mr Magliveras. He said he did not check them with Mr Lagomigis because he was dealing with his employer. 244He was referred in cross-examination to the fact that the income earned and deductions said to have been made were identical for the 1997 and 1998 tax years. He agreed in that context that his evidence was that Mr Lagomigis worked irregular hours at Master Auto Trim. He maintained that Mr Magliveras had provided him with the figures. He said he did not check the figures with Mr Lagomigis. 245In relation to business expenses, the appellant said he relied on what Mr Lagomigis told him. He said he went to see Mr Lagomigis at Canterbury where he was subleasing premises from Master Auto Trim. It was put to him that Mr Lagomigis did not move into those premises until 1999 and he disagreed. He denied he made up the claim for rental payments. 246In relation to the 1999 return, the appellant said he did not review previous returns for the purpose of the preparation of material for this return. He said he kept copies of the 1997 and 1998 returns but they were missing. He disagreed with the proposition that $22,140 was a large amount to pay someone who was helping out from time to time, stating it would depend on how much he worked and what Mr Magliveras had agreed to pay him. He said he asked Mr Magliveras how much he was paying Mr Lagomigis. 247The appellant was cross-examined as to the income and expense statement which formed the basis for the claimed business loss in the 1999 year. He said at the time he had the returns prepared he knew that Mr Lagomigis was in financial difficulty but did not know if Mr Lagomigis had declared himself bankrupt. He was asked about the rental claim of $12,085, which he said he got from the books and records kept by Mr Lagomigis. He said he did not know who actually paid it. 248The appellant agreed he knew Mr Lagomigis was paying Mr Magliveras about $200 per week rent. It was put to him that he knew Mr Lagomigis had moved out of the factory at the beginning of 1999. He said he relied on the books and records and did not ask Mr Lagomigis if the rent was in fact $200 a week. He acknowledged he prepared the statement after 30 June 1999 but stated that he was not aware when Mr Lagomigis moved out of the factory. He agreed $200 a week for six or seven months does not get anywhere near $12,000 but denied the figure was false. He said they came from Mr Lagomigis' books and records and advice from him. 249The appellant was asked where Mr Lagomigis' books and records were, to which he said they would have been given back to Mr Lagomigis or they could have been kept in his office. He could not recall which. 250It was suggested to the appellant in cross-examination, which he denied, that the reason Mr Lagomigis was recorded as working for Ladadika in 1997 and 1998 but for Master Auto Trim in 1999 was that Ladadika had gone into liquidation and could no longer be used as a vehicle for fraud. It was pointed out to him that the replacement group certificate in relation to Count 45 was found at the office of Mr Campos. He acknowledged that the certificate had his handwriting on it but denied that he attempted to forge Mr Magliveras' signature, stating that it would have been the signature of Mr Magliveras. He acknowledged that Mr Magliveras denied signing the group certificate but claimed he had signed it in front of him. 251The appellant was then cross-examined about an electronic lodgement declaration found in Mr Campos' office for Mr Lagomigis which contained the appellant's handwriting. He denied that Mr Lagomigis' signature was forged on that document. 252Evidence was given by Ms Cindy English to whom I will refer in more detail later. She stated that she assisted Mr Magliveras with his books, including the wages book. She stated she knew of Mr Lagomigis and that he was not an employee of Master Auto Trim. (c) Consideration (i) Count 2 253It was common ground that Mr Lagomigis did not work for Ladadika. If the evidence of Mr Lagomigis was accepted, then his income tax return was incorrect as to the amount he earned from employment, the tax instalment deductions said to have been made and the business loss claimed. The appellant by contrast asserted that the figures were correct. 254The appellant's evidence, in my opinion, cannot be accepted. Mr Lagomigis denied that he worked for Master Auto Trim. This was generally confirmed by Mr Magliveras, although as set out at par [234] above, Mr Magliveras said that Mr Lagomigis used to help out with some auto trimming jobs from time to time for which he was paid. Further, on the appellant's own evidence, the most that Mr Lagomigis was earning was about $200 per week which is a little over $10,000 per year compared to the amount of $24,641 claimed in the return. It defies belief that tax deductions in excess of the amount of wages the appellant believed Mr Lagomigis was receiving were made. The appellant gave no evidence as to whether he made any inquiries that such instalments were deducted. 255Further, there is no support for the assertion that Mr Lagomigis was paid $24,641 by Mr Magliveras in the year in question. The profit and loss statement for Mr Magliveras trading as Master Auto Trim in the 1997 tax year only refers to expenses for casual staff of $18,098. 256So far as the business expenses were concerned, there is no support for at least the claim for rental expenses. Such a claim was inconsistent with the evidence of Mr Lagomigis and with the tax return for Mr Magliveras lodged from information prepared by the appellant. 257I am also satisfied beyond reasonable doubt that the appellant caused to be filed the return knowing the information was false. There was no material in his possession which lent support to the information in the return to which I have referred above. The amount said to have been earned as wages was contrary to what was contained in the profit and loss statement prepared for Mr Magliveras as was the statement of rental income. Further, the amount of earnings was contrary to what the appellant stated that he believed Mr Lagomigis had earned and the appellant had no evidence to support the claim for tax instalment deductions which was self-evidently absurd. 258I am also satisfied beyond reasonable doubt that the purpose of lodging the return was to claim the tax refund for the benefit of Ramace. Once again, it is immaterial whether or not Mr Lagomigis owed money to the appellant. Whatever be the position between them, the fact remains that Ramace took the benefit of the payment. 259It follows in my opinion that Count 2 was made out. (ii) Count 9 260Once again it was common ground that contrary to what was stated in the return the subject of this count, Mr Lagomigis did not work for Ladadika. 261One of the remarkable features of this return is that although the appellant acknowledged that Mr Lagomigis worked irregular hours for Mr Magliveras, the income stated to have been earned and the tax instalments deducted were identical to what was claimed to have been earned and deducted in the previous year. The appellant's only justification was Mr Magliveras told him the figures. This was inconsistent with his statement of what he believed Mr Lagomigis was earning in the 1997 year, being $150-$200 per week, the profit and loss statement prepared for Mr Magliveras for that year and the appellant's evidence that in the 1998 and 1999 years he believed Mr Lagomigis was being paid $250 per week, $13,000 per year. 262The appellant acknowledged that he did not ask his client if the income was correct or if the tax deductions had in fact been made. 263Further, it is self-evident that if the income earned by Mr Lagomigis was $13,000, there were no conceivable reasons for deductions of over $11,000 having been made. 264Further, I am satisfied that the appellant knew that these figures were false. They were contrary to his belief of the income earned, he had no basis for asserting that the tax instalment deductions were made and it was self-evident that it was remarkable that identical figures would be produced for the 1997 and 1998 years for casual work performed on an irregular basis. It is even more remarkable when it is taken into account that in the two years in question the appellant's evidence was that he believed Mr Lagomigis was earning different amounts. 265It follows that I am satisfied beyond reasonable doubt that the offence the subject of Count 9 was made out. (iii) Count 45 266This count can be dealt with shortly. As with Count 9 which related to the previous year, the amount stated as wages earned by Mr Lagomigis was contrary to the appellant's stated belief that Mr Lagomigis was earning $250 per week. In these circumstances a deduction of $10,405.80 is inherently improbable. The appellant provided no basis for the claim that the instalment deductions were made and there was nothing in his records to justify the replacement group certificate which he prepared. In these circumstances I am satisfied beyond reasonable doubt that the return was lodged containing information known to the appellant to be false and that the purpose of the appellant doing so was to obtain the benefit of the refund for his company Ramace. 267It follows that Count 45 is made out. Count 6 - Mr Peter Tsigolis - Income tax return for year ended 30 June 1998 (a) The summary 268The summary sheet for Mr Tsigolis shows that his tax return for the year ended 30 June 1998 was lodged on 2 October 1998. The contact details were the Canley Vale PO Box. 269The return showed income of $17,258 earned from Ladadika with tax instalments of $8,111.26 being deducted. It also showed income of $5,275 with deductions of $441.03 from a company, Wejo Pty Ltd (Wejo). 270The summary shows that a tax refund of $4,720.33 was received which was banked into the account of Ramace. 271The summary also discloses that the appellant had in his possession the statement of earnings for Mr Tsigolis signed by Mr McDonald showing the amounts referred to in the return. The appellant also had the following additional documents which were relevant: (a) A group certificate issued by Wejo. (b) A tax file number advice dated 29 January 1998 to Mr Tsigolis at an address in Rockdale. (c) An authority to deposit the 1998 refund into the Ramace account. (d) A 1998 tax return showing income only earned from Wejo. (e) A tax calculation for a 1998 refund of $2,022.97, crossed out and inserted in handwriting "Refund $4,720.33". (f) An electronic lodgement declaration for 1998 taxable income showing income of $22,248 and total tax of $8,552.29 the contact being Mr Lopez. 272The summary also shows that Mr Campos had in his possession a copy of Mr Tsigolis' statement of earnings for 1998 signed by Mr McDonald. 273It should be noted there was no issue that Mr Tsigolis worked for Wejo, a company which controlled various McDonald's franchise restaurants, and was paid the amount stated in the return by that company which made the tax instalment deductions claimed. The alleged fraud in this case related to the refund generated by the inclusion of the Ladadika income and tax instalment deductions. (b) The evidence 274Mr Tsigolis gave evidence that in 1998 he was 19 years of age, working at McDonald's at Bexley. He saw the appellant after his first full year of being employed by McDonald's. He had no other salary. He asked the appellant to do his tax return. 275Mr Tsigolis said that during the tax year ended 30 June 1998 he did not work anywhere other than McDonald's and he did not tell the appellant that he worked anywhere else. He stated that he was paid approximately $150 per week depending on the hours he worked. Mr Tsigolis stated he never told the appellant he earned an income from Ladadika. He was shown the tax return and stated he knew nothing of the Canley Vale PO Box, or that Mr Filocamo, Mr Campos or Messrs Lopez and Gonzalez were involved in the preparation and lodgement of his tax return. 276Mr Tsigolis said he commenced working for Tsigolis Rendering after 30 June 1998. He stated he never worked for Ladadika, nor did he borrow money from any company associated with the appellant including Ramace. 277He said he was not told by the appellant that the appellant had received a refund cheque of $4,720. He did not authorise the appellant to keep the money. He was shown an authority to deposit the refund into Ramace in repayment of a loan and he denied the document contained his signature. 278He was shown an electronic lodgement declaration disclosing an income of $22,533. Mr Tsigolis stated that the figures were incorrect and he was never asked to sign the document by the appellant. 279In cross-examination it was put to Mr Tsigolis that he went to see the appellant because he wanted a loan for a car. He denied telling the appellant that he had been working with his father for two years prior to 1997. It was put to Mr Tsigolis that he worked for Tsigolis Rendering from 15 July 1997 to 21 January 1998. Mr Tsigolis denied this and he said he did not earn $17,258 between 15 July 1997 and 21 January 1998 from Tsigolis Rendering. Mr Tsigolis reiterated in cross-examination that he did not authorise the tax refund cheque to be deposited in the Ramace account to offset loan repayments or fees for preparation of the tax return. 280In his evidence in chief the appellant stated he met Mr Tsigolis in 1998 or 1999. He said that Mr Tsigolis asked him for a loan for $4,000 or $5,000 to buy a new car. He stated at the time Mr Tsigolis was either 16 or 17. 281The appellant claimed he lent Mr Tsigolis the money and there was a loan agreement. He stated the tax return was incorrect insofar as it showed that Mr Tsigolis worked for Ladadika rather than Tsigolis Rendering. He stated that the figure of $17,258 gross income was arrived at by calculating from the net wage paid to Mr Tsigolis. The appellant stated that the mistake happened in the transfer of information to the Excel spreadsheet. He said that instead of putting Mr Tsigolis under Tsigolis Rendering in the spreadsheet, he put him under Ladadika. He said tax was at the top rate because there was no employment declaration. 282The appellant said he was repaid the money loaned to Mr Tsigolis. He received a notice of assessment and told Mr Tsigolis that he was entitled to a refund. He said that occurred in 1998 in his office. He said that there would have been some surplus which he gave to Mr Tsigolis in cash. 283However, in cross-examination the appellant was taken to the Excel spreadsheet showing what purported to be wage records for Ladadika for the 1997/1998 tax year. It was pointed out to him that Mr Tsigolis' name did not appear on that spreadsheet. He said it could not have been the final document, as sometimes he continued to work on a document or saved the file as a new document under a different name. 284Notwithstanding, the appellant continued to contend that he prepared the 1998 Ladadika group certificate by mistake. He said that Mr Tsigolis worked for his father at Tsigolis Rendering. He agreed that on Mr Tsigolis' file there was no reference to him working for Tsigolis Rendering. He said he would have had a separate loan file but he did not know where it was. 285It was put to him that there was no such loan for a car, which he denied. 286The appellant agreed that there was what was described as a "catalogue of mistakes" regarding Mr Tsigolis working at Ladadika. The name of employee and the occupation were mistakes. He stated that the tax instalments were calculated on the basis of no employment declaration. 287The appellant was cross-examined on the fact that he had in his possession another tax return for Mr Tsigolis showing only Wejo as his employer and the income and deductions relating to Mr Tsigolis' employment with that company. He stated that he must have had that in his possession because he was testing new software. He denied keeping two sets of accounts for purposes of fraud. He acknowledged that the loan agreement in relation to the alleged loan to Mr Tsigolis was missing. 288It should be noted that Mr Tsigolis' father, Mr Nick Tsigolis, gave evidence that his son started working for Tsigolis Rendering Pty Ltd (Tsigolis Rendering) in approximately 1999 for about six months. He stated that Mr Tsigolis as a young boy worked at McDonald's before he worked for Tsigolis Rendering and after ceasing to work for that company he continued to work for McDonald's. 289In cross-examination Mr Nick Tsigolis denied on a number of occasions that his son worked for Tsigolis Rendering in the 1998 tax year, although he ultimately stated he could not recall whether or not his son worked for Tsigolis Rendering between July 1997 and January 2008. (c) Consideration 290Once again it was common ground that the return was incorrect insofar as it asserted that Mr Tsigolis was employed by Ladadika. 291In dealing with the previous counts I did not find it necessary to conclude whether the insertion of Ladadika as the employer was part of the fraud which was perpetrated by the appellant. In those cases the name of the taxpayer was found on the Excel spreadsheet that the appellant claimed was the source of his mistakes. 292The present case is different. The name of Mr Tsigolis did not appear on the spreadsheet. The only explanation the appellant offered was there was a later version of the spreadsheet. However, none was produced nor was one found in the material obtained from the appellant's computer. 293Further, the appellant acknowledged that he was aware that Mr Tsigolis at the time of the return was too young to be employed as a barman as was stated on the tax return. 294In these circumstances, I am satisfied beyond reasonable doubt that the appellant knew at the time of the lodgement of the return that the identity of Ladadika as the employer was false. 295Further, I am satisfied beyond reasonable doubt that the figures contained in the income tax return for wages and instalment deductions were false. Mr Tsigolis' evidence was that he did not work for Tsigolis Rendering in the 1998 year. That evidence was supported by his father, albeit Mr Nick Tsigolis qualified his evidence to a limited extent at the end of his cross-examination. Further, there was no material in the appellant's possession which would support the contention that the amount said to have been earned was earned from Tsigolis Rendering or any other source. 296In this regard it is significant that the appellant had in his possession a tax return showing Wejo as the sole employer. The return was consistent with the evidence of Mr Tsigolis as to his earnings for the financial year. The explanation given by the appellant that it was brought into existence as the appellant was testing new software was implausible. 297Critically there was no evidence to support the deductions claimed. On his own evidence the appellant made no inquiries as to whether the instalment deductions were made. It is inherently improbable that deductions of this amount would be made from the salary of a person earning the amount Mr Tsigolis was claimed to have earned. 298In these circumstances I am satisfied beyond reasonable doubt that the return was false to the knowledge of the appellant, both as to the amount of income said to have been earned from Ladadika and the instalments deducted. 299I am also satisfied beyond reasonable doubt that the purpose of the provision by the appellant of the information was to enable a false return to be lodged to benefit Ramace. The refund cheque was banked into the Ramace account and Mr Tsigolis said he was not told of the refund. The appellant said there might have been a surplus (presumably after deduction of fees, as on the appellant's evidence the loan which he asserted he made to Mr Tsigolis had been repaid) which was paid to Mr Tsigolis. There was no record of any such payment or invoice for any such fees. I am satisfied beyond reasonable doubt that the evidence should not be accepted. 300In these circumstances, I am satisfied beyond reasonable doubt that the offence the subject of Count 6 was made out. Count 7 - Mr Walter Butler - Income tax return for year ended 30 June 1997 Count 8 - Mr Walter Butler - Income tax return for year ended 30 June 1998 (a) The summary 301The summary for the year ended 30 June 1997 shows that the tax return lodged on Mr Butler's behalf claimed he received income of $37,441 from Ladadika, from which $17,597.27 was deducted by way of tax instalments. It also shows that the return stated Mr Butler incurred a loss of $24,666 from a business, Walter Mark Butler, Marketing Consultancy. 302The summary shows that as a result Mr Butler became entitled to a refund of $16,272.27 and received a cheque in the sum of $24,805.19 in respect of that year and the subsequent year which was banked into the account of Ramace. 303The summary records that the following documents were found in the appellant's possession: (a) A statement of earning for 1997 for Mr Butler signed by Mr McDonald showing wages of $37,441 received from Ladadika and tax instalment deductions of $17,597.27. (b) A replacement group certificate recording these amounts. (c) A profit and loss statement for 1997 for Mr Butler showing a net loss of $24,666. (c) An electronic lodgement declaration for 1997 showing taxable income of $12,775 and total tax of $17,597.27. 304Documents obtained from Mr Campos indicated that he held a similar statement of earnings. 305The summary for the year ended 30 June 1998 shows that Mr Butler's tax return stated that he received $68,887 income from Ladadika from which tax instalments of $31,436.89 were deducted. It shows he was entitled to a tax refund of $8,532.92 and, as I indicated above, a cheque in the sum of $24,805.19 was received comprising a refund for both the 1997 and 1998 tax years. The monies were banked into the Ramace account. 306The summary records that the following hardcopy documents were in the appellant's possession: (a) A statement of earnings for 1998 and a replacement group certificate consistent with what appears in the return. (b) Electronic lodgement declarations also consistent with the returns. (c) Tax calculations calculating a refund of $8,532.92. (d) A notice of amended assessment posted to Mr Butler at the Canley Vale PO Box address dated 24 November 1999. 307The amended notice of assessment referred to above recorded that Mr Butler was liable to pay tax in an amount of $666.02 as a result of the Medicare levy not being taken into account. 308The summary also records that Mr Campos held a similar statement of earnings. (b) The evidence 309Mr Butler in his evidence said that in the early 1990s he worked in home entertainment marketing sales for a number of different employers. He asked the appellant to prepare his tax returns. He knew nothing of the involvement of Mr Campos Mr Filocamo or Messrs Gonzalez or Lopez. 310Mr Butler said that he had never asked the appellant to lend him money. He said that in 1995 or 1996 he asked the appellant to arrange a loan on his behalf which he thought was arranged with St George Bank. 311Mr Butler said that he also saved money with Ramace for the deposit on a house. He did so by depositing money with Ramace, which accumulated interest, for approximately 12 months whenever he had money available. 312Mr Butler was referred to the 1997 income tax return the subject of Count 7. He stated that he never had heard of the Canley Vale PO Box, and he knew nothing about Mr Filocamo lodging tax returns on his behalf. 313Mr Butler denied he ever worked for Ladadika and stated that the figure of $37,441 was not what he earned. He said he would have earned more. He stated that it was wrong to say that $17,597.27 was deducted on his behalf from any salary paid to him by Ladadika. 314Mr Butler said that contrary to his tax return, he did not incur a business loss of $24,666. He acknowledged he was conducting a business in that year but did not think that it made a loss. 315Mr Butler said that during the 1997 tax year he worked as a consultant for the Reel Corporation which was run by Mr Sweeney. His income was the retainer he received from Reel Corporation amounting to $50,000. 316Mr Butler was referred to the gross income of $22,874 in respect of the consultancy business said to have been carried on by him. He stated it was incorrect and he denied incurring a loss of $24,666. In particular he denied that he paid rent for premises in an amount of $15,473. 317Mr Butler said he knew nothing about a refund of $16,272. He said he was expecting to pay tax that year. Mr Butler said he was never told by the appellant that he was keeping the refund in his bank account, and further, he did not authorise payment of the refund into the Ramace account. 318In relation to the 1998 tax return he again denied that he was employed by Ladadika and said that the statement of his income of $66,887 was incorrect. He said that the source of income from that year was his consultancy business Moljac Marketing Pty Ltd (Moljac Marketing) and its income increased from $50,000 to $70,000. He thought that Moljac Marketing would have been paying tax on income on his behalf. 319He was referred to the fact that the rate of tax deducted was 48.5%. He stated he did not believe any deduction would be at that level. In particular, he denied that he earned $66,887 in eight and a half months. 320In cross-examination Mr Butler agreed that he controlled a company called Binford Holdings Pty Ltd (Binford) and could have been working for it during that year. He acknowledged that Moljac Marketing was a proprietary company. 321Mr Butler agreed that he introduced the appellant to Mr Sweeney, who he described as the owner of Reel Entertainment Pty Ltd (Reel Entertainment), who also became a client of the appellant. He agreed that he told the appellant that he wished to purchase a property and sought advice from him about the best way of getting a loan for the property. 322Mr Butler agreed that he had a discussion with the appellant about how to restructure his business affairs and that the appellant suggested that he start a company and trade under that company as a marketing consultant. However, Mr Butler said the conversation took place in 1993 or 1994, not in 1997. 323It was suggested to Mr Butler that the appellant told him his services cost about $20,000 per year. The appellant stated he could not recall that conversation but said it sounded a bit high for someone earning $70,000 per year. He agreed, however, that the appellant told him he could invest money with Ramace and earn interest at 15%. 324In cross-examination Mr Butler denied that he asked the appellant to find a tax agent to do his tax returns and that the appellant indicated that Mr Campos could do them for him. He said he gave the appellant information such as bank statements, chequebooks, invoices and receipts so financial statements could be prepared. 325Ultimately, it was put to Mr Butler and he agreed that he may have worked for Binford for the 1997/1998 financial year. However, he rejected the proposition that he earned $37,000 in the 1997 year, saying his gross income was around $70,000. He also denied he earned $66,887 for the eight months from 1 July 1997 to 13 March 1998, as stated on the return. 326Mr Butler also denied in cross-examination that he agreed to have his tax refund cheques deposited into the account of Ramace to offset against bookkeeping fees and/or loans due to Ramace. 327He denied he needed a deposit of $70,000 to purchase property at Leichhardt, stating in re-examination the property he purchased at Leichhardt cost $310,000 and he struggled to get a 10% deposit. 328In his examination in chief the appellant stated that he met Mr Butler in 1993 and that in 1998 he was asked by Mr Butler to prepare books and incorporate companies for him. The appellant said that he held funds on Mr Butler's behalf and obtained housing or investment loans for him. 329He claimed the loans that he organised were for $230,000 or $250,000 for a unit in Marrickville and $650,000 for a residential property in Leichhardt. He took a brokerage fee for the work and it was paid in full. 330So far as the tax returns were concerned the appellant stated that he obtained all of Mr Butler's records from him and that Ladadika was inserted as the employer by mistake. He said that Mr Butler was in fact employed by his private company, Binford. He said the income of $37,441 was correct, stating that the gross income was calculated based on his net wage plus the top marginal tax rate due to there being no employment declaration. The appellant stated that he followed this process for every taxpayer the subject of the proceedings. For convenience when I subsequently refer to the usual manner, I will refer to this process. 331He stated that the insertion of Ladadika was a mistake which arose from the Excel spreadsheet. The appellant referred to the profit and loss statement for Mr Butler for the year ended 30 June 1997 in respect of the marketing consultancy business said to have been carried on by him. The appellant said that in this year Mr Butler was self-employed for part of the year and then was employed by Binford. He claimed that the deduction of consultancy fees for $12,855 was due to him for work separate from his accountancy work. He stated that the tax return was signed by Mr Butler in his presence. 332So far as the 1998 return was concerned, the appellant acknowledged the replacement group certificate for the 1998 year was incorrect. He said the periods of employment would have been derived from records received by Mr Butler and the gross wage was calculated in the usual manner. 333In cross-examination he acknowledged that there was no reference to Mr Butler on the Ladadika spreadsheet. As I indicated in relation to Mr Tsigolis, the appellant's explanation was effectively that the document may have been a work in progress. He stated that he did not check with anyone to see if tax was in fact paid on Mr Butler's income. The appellant acknowledged that the books of Binford showed that no tax had been paid. He made the somewhat extraordinary statement that it was not false or misleading to state that $17,500 tax had been paid when it had not been, apparently on the basis that there was an obligation on the company to pay it and the employee would be entitled to a group certificate. 334The appellant was asked in respect to the 1997 return that if Mr Butler was employed by Binford, what the source of the business income was. He said it was because for part of the year Mr Butler traded under his own name. 335The appellant continued to assert in cross-examination that he was authorised to retain the tax refund. (c) Consideration 336These counts can be dealt with shortly. First, it was common ground that Ladadika did not employ Mr Butler. Second, Mr Butler's name did not appear on the Ladadika spreadsheet. There was thus no foundation for the excuse that Ladadika was inserted as the employer as a result of Mr Butler's name being mistakenly placed on the spreadsheet. In those circumstances, I am satisfied beyond reasonable doubt that the appellant was aware that the statement that Ladadika was the employer of Mr Butler was false to the knowledge of the appellant. 337Third, even accepting the possibility that Mr Butler worked for Binford during the years in question, the appellant expressly acknowledged that the books of Binford did not disclose the deduction of any tax instalments. His explanation that a statement could be made in a tax return that instalments were deducted when they were not, on the basis that the employer may have had a liability to deduct instalments, and as a consequence it was appropriate to add an amount to income received and state that instalments were deducted, is unbelievable. It is particularly unbelievable from an accountant experienced in tax returns. 338I am also satisfied beyond reasonable doubt that the information which led to the false returns being lodged was prepared by the appellant for the purpose of generating a refund for the benefit of Ramace. Ramace banked the cheque and retained the proceeds as was clearly intended by the preparation of the authority to deposit. It is immaterial whether or not this was done because the appellant knew or believed that Mr Butler owed Ramace money. The fact remains that Ramace benefited from the refund as intended by the appellant. 339In these circumstances it is unnecessary to deal with the question of whether the loss claimed to have been incurred from the carrying on of the consultancy business in the 1997 year was false to the knowledge of the appellant. 340It follows, in my opinion, that Counts 7 and 8 were proved beyond reasonable doubt. Count 10 - Mrs Leanne Magoulias - Income tax return for year ended 30 June 1997 Count 11 - Mrs Leanne Magoulias - Income tax return for year ended 30 June 1998 (a) The summary 341The summary in respect of Count 10 shows that a tax return was lodged for Mrs Magoulias declaring income of $10,144 with tax instalment deductions of $4,767.68. The employer was said to be Ladadika. It shows that a refund of $4,026.88 was received but does not reveal what occurred to it. 342The summary shows there was in the appellant's possession a statement of earnings for 1997 in the same terms as the tax return, a replacement group certificate and an authority to deposit the 1997 refund into Ramace. 343The summary also shows that the appellant also held in his possession various incomplete electronic lodgement declaration forms. 344The summary also discloses that Mr Campos had a statement of earnings similar to that held by the appellant. 345The summary in respect of Count 11 shows that the tax return lodged on behalf of Mrs Magoulias, which was lodged on the same date as that for the 1997 year, 12 October 1998, showed income of $24,463 together with instalment deductions of $11,497.61. The employer stated was Ladadika. 346The summary also shows that the appellant had in his possession statements of earnings and replacement group certificates consistent with what was shown in the return, an authority to deposit the 1998 refund into Ramace, and an electronic lodgement declaration which was incomplete with the name Sotirios Magoulias whited out and Leanne Magoulias written over it. The summary also states that the appellant held a 1998 electronic lodgement declaration consistent with the tax return. 347So far as Mr Campos was concerned, the summary shows that he also held the same statement of earnings as that held by the appellant. (b) The evidence 348In her evidence in chief Mrs Magoulias said that she remained at home for two years from 1995 looking after her first child. She said that she had her second child in 1998 and during the whole of the period the subject of the charges was not working anywhere. 349She said she was pregnant with her second child when she met the appellant. She said she signed documents periodically with the appellant. He showed here where to sign and she would sign. She was not given time to read the documents. 350She said she did not borrow any money from the appellant. 351Mrs Magoulias stated that she earned no income for the financial year ended 30 June 1997. She never held the position of Staff Development Officer referred to in the tax return, she was not employed by Ladadika, and she did not earn $10,144 from that company or otherwise. 352Mrs Magoulias said she never received any mail with the Canley Vale PO Box address. She knew nothing about a tax refund of $4,026 in the 1997 year, nor did the appellant tell her that he received a cheque of $6,905 being a refund for the 1998 year. 353So far as the 1998 tax return was concerned, she said she was not a Staff Development Officer and did not work for Ladadika. She stated that she did not earn $24,463 in that year, stating she had no income in that year. 354She knew nothing about the purported tax deduction of $11,497. She would not have signed a tax return with those figures on it. 355Mrs Magoulias stated that she did not authorise any tax refund to be deposited into the listed Ramace account. 356Mrs Magoulias was also shown a tax return that was in the appellant's possession which stated that for 1998 she earned $32,054 from Master Marble & Granite with tax of $6,874.52 deducted. She denied that she earned that income. 357Mrs Magoulias said she had difficulty reading because she had dyslexia. She said that she informed the appellant of her dyslexia when she first went to see him. 358In cross-examination it was suggested to her that the appellant loaned her and her husband approximately $28,000 repayable over three years. She denied this. She also denied that the appellant had told her that he was not a tax agent and that Mr Campos would do the returns. 359She acknowledged that she signed electronic declaration forms for Master Marble & Granite for 1997 and 1998. However, she denied she worked for the business in that year and stated she did not earn $450 net per week. 360She denied she was paid $450 a week in cash in 1997 and that she phoned customers and collected money. She stated that she only paid house bills. She also denied that she was maintaining books and records and chequebooks for the Master Marble & Granite business. She reiterated that she did not draw a wage from that company. 361The appellant's evidence was that he met Mrs Magoulias through her husband. He stated that she was a director of Master Marble & Granite Pty Ltd, a company which he caused to be incorporated in 1997 or 1998. 362He stated that in 1998 Mrs Magoulias asked him to advance funds to her and her husband and to help her find someone to do her tax return. 363He claimed that he arranged a housing loan for a property at Bexley and that he took the fee for organising the loan partly out of the tax refund cheque. The appellant claimed he advanced $15,000 to help Mr and Mrs Magoulias with their business. The appellant said Mrs Magoulias mostly came to meetings with her husband. He said that at the time of signing an authority to deposit the tax refund cheque into the Ramace account Mrs Magoulias owed $15,000 plus fees for the preparation of the tax returns. He said that the $15,000 was paid back through tax refund cheques. 364The appellant stated that the 1997 records showing that Mrs Magoulias worked for Ladadika were incorrect. He said she worked for Master Marble & Granite Pty Ltd running the administration side of the business and earned $300 to $400 per week. Similarly, he stated that it was incorrect that Mrs Magoulias worked for Ladadika in the 1998 tax year. He said that she worked for Master Marble & Granite Pty Ltd in administration earning $400 to $450 per week. He claimed he told her of the tax refund and she signed an authority to deposit. 365In cross-examination the appellant acknowledged that there was no reference in the Ladadika spreadsheet to Mrs Magoulias working for Ladadika in the periods in question. He stated that the spreadsheet may not have been the final document and he pointed to the fact that Mr Steven Liontos and Mr Steven Venieris, two people who he claimed in fact worked for Ladadika, did not appear on the spreadsheet. 366Mr Venieris' returns were the subject of Counts 29 and 44. He denied ever working for Ladadika. Mr Liontos also denied ever working for that company. 367In his cross-examination concerning the incorrect identity of Mrs Magoulias' employer for both the 1997 and 1998 years, the appellant denied that it was a huge coincidence that he had made the same mistake for two consecutive years. 368In his cross-examination the appellant gave conflicting evidence concerning monies due to him from Mrs Magoulias and her husband, Mr Sotirios Magoulias. He stated initially in cross-examination that he was entitled to keep tax refund cheques because there was a joint loan from Ramace to Mr and Mrs Magoulias for about $38,000. He then corrected that to $15,000. He agreed that the 1997 and 1998 refund cheques for Mr and Mrs Magoulias totalled around $38,700. He claimed that he was entitled to keep the surplus over $15,000 because, although the initial loan was for $15,000, he made other payments on their behalf. He said that he believed that he paid the balance over $15,000 to a real estate agent on the instruction of Mr Magoulias. He could not remember what it was for. 369The appellant agreed that money given to Mrs Magoulias for the payment of household expenses had nothing to do with employment income. 370The appellant was also asked why he had in his possession a tax return for the 1998 year for Mrs Magoulias showing Master Marble & Granite Pty Ltd as the employer. He first said that he tried to do the tax return himself but not in order to lodge it. He again sought to explain the "mistake" by reference to the spreadsheet. However, he acknowledged that Mrs Magoulias' name did not appear on that spreadsheet. He denied he printed off the tax return showing Master Marble & Granite to give a false impression to Mr and Mrs Magoulias that he was their tax agent. He denied that he knew that Mrs Magoulias was not employed at all. 371As the evidence relating to the counts in respect of Mr Magoulias' tax return and those relating to Mrs Magoulias somewhat overlap, it is convenient to defer consideration of whether these counts were proved beyond reasonable doubt until after the evidence relating to the counts in respect of the tax returns lodged for Mr Magoulias have been considered. Count 12 - Mr Sotirios Magoulias - Income tax return for year ended 30 June 1997 Count 13 - Mr Sotirios Magoulias - Income tax return for year ended 30 June 1998 (a) The summary 372The summary shows that the tax return for Mr Magoulias for the 1997 year disclosed income of $22,059 earned from employment with Ladadika with tax deductions of $10,367.73. The return also claimed a $15,655 loss from the business of Master Marble & Granite. 373The summary shows that Mr Magoulias was assessed as being entitled to a refund for that tax year in the amount of $10,316.93 and that a refund cheque in the sum of $27,818.77 was received, being the total refund to which Mr Magoulias was entitled for both the 1997 and 1998 years. The cheque was banked into the account of Ramace. 374The documents in the possession of the appellant include a statement of earnings signed by Mr McDonald and a replacement group certificate for Mr Magoulias consistent with what was shown on the tax return. Also included were two profit and loss statements for Mr Magoulias trading as Master Marble & Granite. The first showed sales of $43,751, total expenses of $30,377 and a net loss of $14,920, which is somewhat consistent with what was contained in the return. The second, however, showed total expenses of $10,036 with a net profit of $2,837. Profit and loss statements similar to the second were also found on the appellant's computer. 375The records held by Mr Campos disclose that he held a statement of earnings consistent with the statement held by the appellant. 376So far as the 1998 tax year was concerned, according to the summary the return lodged showed income of $38,052 earned from employment with Ladadika with tax instalment deductions of $17,884.44. It also disclosed a $29,699 loss from the business Master Marble & Granite. It disclosed an entitlement to a refund of $17,501.84, which was contained in the cheque for $27,818.77 to which I have referred above. 377The documents held by the appellant include statement of earnings and a replacement group certificate consistent with what appears on the return. They also include three profit and loss statements for Mr Magoulias trading as Master Marble & Granite. The first showed a net loss of $29,847. The second showed a net profit of $54,469 and the third a net profit of $15,527. Profit and loss statements consistent with the latter two found in hardcopy in the appellant's records were also contained on the appellant's computer. (b) The evidence 378Mr Magoulias gave evidence that he worked as a stonemason. He said that he started to do stonemasonry work for his own business Master Marble & Granite in around 1997. He stated that the appellant suggested he incorporate a company, Master Marble & Granite Pty Ltd, in 1998. 379Mr Magoulias said he was the only person who worked in the business before the incorporation of the company. He stated that Mrs Magoulias did not earn income from the business or from the company after its incorporation. 380Mr Magoulias said his original arrangements with the appellant were that the appellant would look after his paperwork and do his tax returns. He stated the appellant supplied him with a computer and was to come to his work on a monthly basis to put his paperwork together on the computer. 381Mr Magoulias said he initially paid $300 to $400 a month for these services but that he ultimately had trouble in getting the appellant to attend his offices. Subsequently, an arrangement was reached whereby the appellant would do all the paperwork and finalise his tax returns for a fee. 382Mr Magoulias said that the appellant had never mentioned the names of Mr Campos, Mr Filocamo or Messrs Lopez and Gonzalez. 383Mr Magoulias said the appellant asked him to sign documents. However, he did not give him the documents to read before he signed them. Mr Magoulias said the documents were not explained to him by the appellant. 384In relation to the 1997 return, Mr Magoulias denied that he ever worked as a security guard for Ladadika. He said that he had previously worked as a security guard for Wormalds Security. He stated that he never received any income from Ladadika. 385Mr Magoulias said he did not earn $22,059 income from any source during the 1997 year. He stated that he would have earned less than $22,000 from Master Marble & Granite. He stated he did not pay tax of $10,367 for that year and would not have signed a return containing that information. 386In relation to that part of the return showing a loss of $15,655 for Master Marble & Granite, Mr Magoulias said he could not say whether the total business income derived from that business for the 1997 year was $43,751. He stated he did not recall total expenses of $59,406 and he could not say the loss claimed was correct. 387Mr Magoulias denied that the appellant ever told him that he was entitled to a refund of tax or that the appellant had received a refund cheque for $27,818.77. 388It was pointed out to Mr Magoulias that the replacement group certificate stated his period of employment with Ladadika was from 1 April 1997 to 30 June 1997. He denied working for that company during that period or that he earned $22,059 from any source over a three-month period. It must be remembered that Ladadika was only incorporated on 17 June 1997. 389Mr Magoulias was shown the profit and loss statement which formed the basis of the business loss claimed in the tax return. He stated the rent expenses of $3,169 shown on that document were incorrect. He said the correct amount for such expenses was about $2,000. He denied he spent $8,648 on subcontractors. Further, it should be noted that the profit and loss statement does not record any wages paid to Mrs Magoulias. 390Mr Magoulias was referred to a further return prepared for him for the 1997 year which showed a business profit of $46,574, comprising income of $236,085 less expenses of $189,511. He said he knew nothing about it. 391In relation to the 1998 return, Mr Magoulias repeated that he did not know the Canley Vale PO Box, or a person known as Vince. He stated he was not a security guard in that year. He said he was not employed by Ladadika, nor did he earn $38,052 for the year. He stated his only income was through his business and it would not have been more than $38,000. 392Mr Magoulias said he had no recollection of any deductions in an amount of $17,884. He understood he would have to pay tax and paid the appellant between $3,000 and $7,000 so he could pay the ATO. 393Mr Magoulias stated he knew nothing about the $29,699 loss from Master Marble & Granite shown in the tax return. He was shown the profit and loss account shown in the return form and stated he did not recall business income for the year as $133,769 and that the total expenses of $163,468 did not seem right. He did not remember incurring a loss of $29,699. 394Mr Magoulias was shown the other profit and loss statements retrieved from the appellant's office showing profits of $54,469 and $15,527 respectively being derived from the business of Master Marble & Granite for the year ended 30 June 1998. He stated that he was not aware of those documents and did not know why the appellant had them. 395Mr Magoulias stated that the appellant did not tell him he was going to pay a refund cheque into the Ramace bank account. 396In relation to the income tax returns for Mrs Magoulias, Mr Magoulias said that Ladadika did not employ her in the 1997 tax year nor did she earn $10,144. He stated that his business did not pay her that amount of money nor did it pay tax on her behalf of $4,767. He gave similar evidence in relation to her return for 1998, stating that the income of around $24,400 was incorrect as were the tax deductions of $11,400. 397In cross-examination it was put to Mr Magoulias that he told tax investigators that the signature on the 1998 electronic lodgement declaration was his. He acknowledged that he did so but stated that looking at it again it could be seen that the signature was different. 398Mr Magoulias denied in cross-examination that he was advanced $28,000 for business and personal expenses or that he asked the appellant to find him a tax agent. He stated that as far as he was concerned the tax returns were not supposed to be prepared by Mr Campos. 399Mr Magoulias also stated that he believed he made less than $974 a week from Master Marble & Granite in the 1997 year. He stated that he did not receive a group certificate or any payslips from Master Marble & Granite during the 1997 year. 400In relation to the 1998 financial year, Mr Magoulias ultimately stated that he employed staff that year. He said his wife was only working as an administrator for a little while when he first opened up but that she did general office work as well as answering phones for a couple of days a week in the 1998 year. He denied signing an authority to deposit tax refund cheques into the account of Ramace to offset bookkeeping and accounting fees and repay the principal and interest on loan advances. 401In his evidence in chief the appellant said he met Mr Magoulias in late 1997. He said that Mr Magoulias told him he had a sole trading business, Master Marble & Granite, and he wished the appellant to do his business accounts, profit and loss statements and balance sheets. The appellant said that Mr Magoulias told him he also wanted the appellant to prepare tax returns for his wife and set up a computer with MYOB for his business. The appellant said he would charge him an annual fee of $5,000 or $6,000 being invoiced each month. The appellant said originally Mr Magoulias did not pay him the outstanding amounts but eventually he paid all fees due. 402The appellant stated that in about 1998 Mr Magoulias asked him to organise a home loan through St George Bank. The appellant said he charged a fee which was paid. 403The appellant also said Mr Magoulias asked for a one year loan for himself and his wife. He said there was a loan agreement but he did not have a copy. The loan was for about $28,000. The appellant stated that his standard interest rate was roughly 12% and that the loan to Mr and Mrs Magoulias was repaid in full in 1998 or 1999. 404The appellant stated that to obtain the bank loan with St George Bank Mr and Mrs Magoulias needed to complete their tax returns. The appellant said he discussed Mr Campos at Marrickville Accounting Services. 405The appellant stated that Mr Magoulias worked for Master Marble & Granite as the Operations Manager. It was incorrect to state that he worked for Ladadika or that he worked as a security guard. He said that the wage shown on the tax return was what Mr Magoulias earned from Master Marble & Granite and it was calculated on money drawn by him. 406In relation to Count 12, the appellant gave the same explanation as to how the mistaken identity of the employer came about, namely, that it was due to the name of Mr Magoulias being inserted on the Ladadika spreadsheet. He stated that the replacement group certificate was signed by Mr Giannakarous. He said the certificate was signed in his office in his presence where all the Ladadika replacement certificates were signed. 407The appellant was shown the 1997 profit and loss statement for Master Marble & Granite which showed a net profit of $2,836.80, although the appellant said that this statement was an interim and incomplete account. 408The appellant was also asked in chief about a facsimile sent from Ramace to St George Bank containing a 1997 tax return showing income of $46,574. The sole source of this income as it appears from the tax return was derived from the Master Marble & Granite business. 409The appellant described the document as an interim return sent to St George Bank in connection with a loan application. He said it was based on what he described as incomplete information, basically "word of mouth". He admitted that the document was not submitted to the Tax Office. 410The appellant stated that he had Mr Magoulias sign paper copies of the electronic tax return which he gave to Mr Campos. He stated that Mr Campos delivered a notice of assessment and refund cheque and that he called Mr Magoulias to tell him of the refund. 411The appellant said that at the time that Mr Magoulias signed an authority to deposit form he owed Ramace some $38,000. He said he kept a ledger on MYOB but the ledger was gone when he got his computer back. The summary does not record any such ledger being on the computer. 412So far as Count 13 was concerned, the appellant referred to the varying profit and loss accounts for Master Marble & Granite, one used for the purpose of the return showing a loss of $29,847 and another showing a net profit of $54,469. He explained one was interim and one was the final statement. The appellant was also referred to a 1998 tax return prepared by him which showed a net income of $54,469. He stated that he prepared the document; he did not have to be an agent to prepare it. 413The appellant stated that this was an interim document and not submitted to the ATO. It should be noted that this return did not record any income being received from Ladadika or the existence of any tax deductions. 414In cross-examination in relation to Count 12, the appellant reaffirmed that it was a mistake to state that Mr Magoulias worked for Ladadika. He said the group certificate should have been from his own business, Master Marble & Granite. He acknowledged that Mr Magoulias' name did not appear on the Ladadika spreadsheet but stated that it was not final and that he would have updated the spreadsheet. 415The appellant was asked why, if Mr Magoulias was carrying on a business as a sole trader under the name Master Marble & Granite, part of the income from the business was declared as income derived from the business whilst another part was treated as wages from which instalments of tax were deducted. He stated he did that to show the business paid wages even though it was to the proprietor of the business. He stated that he believed that a group certificate could be issued to someone who works for himself. However, he acknowledged that you could not employ yourself and that self-employed persons have to show all their income in the business section of a tax return. He then gave the following evidence: "Q. Can you fill out an employment declaration and give it to yourself? A. If you want to get a group certificate from your own business, yes. Q. Answer the question? A. Yes. Q. You can do that? A. Yes. Q. You can give yourself an employment declaration? A. Yes, I believe you can. Q. And if you fail to tell yourself your own tax file number you are in all sorts of strife, you have to pay tax at a higher rate? A. Yes, you can choose - Q. That is your evidence? A. You can choose to pay tax at a higher rate. Q. This is a load of nonsense, isn't it? A. No, it's not. Q, Master Marble & Granite, was that always a business name? A. No." 416The appellant agreed that in the 1997 year Master Marble & Granite was not incorporated. A search of the records of the Australian Securities and Investments Commission (ASIC) revealed it was incorporated on 5 June 1998. 417He was then cross-examined in relation to the 1997 return sent to St George Bank which showed all taxable income of $46,574 as being derived from Master Marble & Granite. He stated that he did not know why he sent the document to St George Bank but surmised it may have been because he was testing the software system. He was then asked whether or not he was defrauding St George Bank or the ATO to which he stated that he could not be sure that he sent the return to St George Bank. 418In relation to Count 13, the count relating to the tax return for the year ended 30 June 1998, it was put to the appellant that as Master Marble & Granite Pty Ltd was only incorporated on 5 June 1998, it was impossible for Mr Magoulias to have earned the $38,000 said to have been wages as an employee of that company in only 25 days. He stated that was incorrect. He said the company bought the business and the calculations were done on the basis that no employment declaration was signed. 419The appellant was then shown the three sets of figures showing different profit and loss statements for the business and said that he could not recall which one was correct. He was unable to explain why there was no version of a profit and loss account on his computer which recorded a loss. He reiterated that he was not trying to defraud anyone. 420The appellant was subsequently cross-examined by reference to documents seized from his office. He reiterated that he was entitled to keep the combined refunds of Mr and Mrs Magoulias which totalled approximately $38,000. He was reminded that his evidence was that the loan to Mr and Mrs Magoulias was for $15,000, however he said in cross-examination there was a further advance. He said he could not remember how much it was, but he believed he paid $25,000 to a real estate agent. 421The appellant was then shown an invoice from Ramace addressed to Mr and Mrs Magoulias recording that there was paid from funds held an amount of $7,780 in respect of brokerage fees, credit card fees and application fees. He acknowledged that he retained the tax refunds seven months or eight months before he sent the invoice. He said that this was because there was an agreement that he hold the funds. 422The appellant agreed that there was no reference on the invoice to any amount outstanding in respect of a loan made by him or Ramace to Mr and Mrs Magoulias. 423The appellant was also shown a facsimile from Ramace to St George Bank dated 1 June 1999 stating to enclose returns for S & L Magoulias for the 1998 year. The returns stated that Mr Magoulias earned net income of $54,469 from Master Marble & Granite. The appellant was not prepared to accept that the return formed part of the facsimile, notwithstanding the fact that that was consistent with what appeared from his files. (c) Consideration (i) Count 10 424It was accepted by the appellant that it was not correct that Mrs Magoulias worked for Ladadika as stated in the tax return. Rather, he stated that she worked for Master Marble & Granite, the business being carried on at that time by her husband, undertaking administrative work. 425The appellant said that the insertion of Ladadika as her employer was a mistake. He did not explain in chief how the mistake was made, although in cross-examination in relation to the 1998 tax return he stated that the replacement group certificate was based on the Ladadika spreadsheet. The appellant acknowledged, however, that her name did not appear on the spreadsheet. However, he sought to justify this by stating that two persons who in fact did work for Ladadika also did not appear on the spreadsheet. The two Ladadika employees identified by him as being those whose names did not appear on the spreadsheet were Mr Venieris and Mr Liontos. 426In these circumstances, I am satisfied beyond reasonable doubt that the appellant was aware at the time he prepared the material for this tax return that Ladadika did not employ Mrs Magoulias as a Staff Development Officer. There is no foundation for the mistake as to the employer's name and nothing which would suggest that Mrs Magoulias was ever engaged as a Staff Development Officer. Further, it must be remembered that at the same time as the 1997 tax return for Mrs Magoulias was in the course of preparation, her 1998 tax return and both the 1997 and 1998 returns for Mr Magoulias were also being prepared. The appellant must have been aware from the preparation of these returns that Mr Magoulias was carrying on the business of Master Marble & Granite. Indeed, he had prepared a draft tax return for Mrs Magoulias for 1998 stating that her employer was Master Marble & Granite. 427I am also satisfied beyond reasonable doubt that Mrs Magoulias did not earn the amount claimed in her tax return for the 1997 year in question and that the tax instalment deductions were not made. Each of Mr and Mrs Magoulias denied such payments were made, saying that the only money Mrs Magoulias received from her husband was to pay household bills. There was no evidence to the contrary. 428Further, none of the profit and loss statements for the 1997 year prepared by the appellant for the Master Marble & Granite business showed any amount for wages and the appellant gave no evidence as to how he came to conclude that the tax instalment deductions were made. 429I am also satisfied beyond reasonable doubt that the appellant was aware the return was false. Both Mr and Mrs Magoulias denied they gave the appellant the information in the return and it is contrary to the profit and loss statements prepared by him. Further, as I indicated previously, the explanation as to how Ladadika came to be named as Mrs Magoulias' employer cannot be believed. 430I am also satisfied that the appellant prepared the false information and the replacement group certificate for the purpose of obtaining a refund cheque for the benefit of Ramace. Although I am inclined to accept that Mr and Mrs Magoulias did not owe Ramace $38,000, it is unnecessary to reach a concluded view on this issue. Whatever the financial relationship between the appellant and Mr and Mrs Magoulias, I am satisfied that the appellant intended Ramace to retain the refund which in fact was what occurred. 431In these circumstances, I am satisfied on the evidence that the offence the subject of Count 10 has been proved beyond reasonable doubt. (ii) Count 11 432Similar considerations apply in respect to this count as for Count 10. For the reasons given in relation to Count 10, I am unable to accept that Mrs Magoulias was described as a Staff Development Officer employed by Ladadika by mistake. 433Further, I am satisfied beyond reasonable doubt that the figures in the return were false to the knowledge of the appellant. Both Mr and Mrs Magoulias denied they gave information to the appellant suggesting that Mrs Magoulias was paid $24,463 out of her husband's business. In addition, the profit and loss statement for Master Marble & Granite for that year prepared by the appellant which reflected what was contained in the tax return only made provision for casual wages in the sum of $5,201. 434In these circumstances, I am satisfied that the material in the return was false to the knowledge of the appellant. 435For the reasons given in relation to Count 10, I am also satisfied that the appellant prepared the material containing the false information for the purpose of obtaining a benefit for Ramace. 436It follows, in my opinion, that the evidence proved the offence the subject of Count 11 beyond reasonable doubt. (iii) Count 12 437For the reasons given in relation to Counts 10 and 11, I am satisfied beyond reasonable doubt that the insertion of Ladadika as Mr Magoulias' employer in the tax return lodged in the 1997 year was not due to an honest mistake by the appellant. Rather, it was known by the appellant to be false. The appellant was aware that Mr Magoulias was conducting his own business in the year in question. 438The appellant's explanation of how the replacement group certificate came to be prepared was unconvincing. He stated it was signed in his office by Mr Giannakarous. That ignores the fact that the return was not prepared until October 1998 well after Mr Giannakarous permanently left Australia. 439Further, the explanation of how wages and tax deductions were calculated was also unconvincing. The appellant's contention was that Mr Magoulias was paid wages from the business he was carrying on as a sole trader. I have set out the cross-examination on this issue in par [415] above. Although, of course, it is possible and in some cases necessary to pay tax by instalments over the year in question, there is nothing to suggest that Mr Magoulias in fact paid tax instalments much less chose to pay them at the highest possible rate. Mr Magoulias denied that this was the case. 440Further doubt is cast on the veracity of the figures by the fact that the tax return sent to St George Bank disclosing income earned by Mr Magoulias from the business of $46,574 (see par [417] above) did not assert that any tax had been deducted. It is not necessary to determine whether this tax return correctly set out the income earned by Mr Magoulias during the year in question or was designed to deceive St George Bank. What is significant is the absence of any tax deduction for purported wages. 441It is unnecessary to decide whether the business carried on by Mr Magoulias for the year in question incurred a loss of $15,655 as stated in the return, or a profit of $46,574 as stated in the return sent to St George Bank, or a loss of $14,920 or a profit of $2,837 as contained in two of the other profit and loss statements for that year prepared by the appellant. Mr Magoulias was not able to say with any certainty what he earned from the business for the year and in those circumstances it cannot be said that the loss referred to in the tax return was false to the knowledge of the appellant. However, the loss of itself would not have produced a tax refund without the claim that the tax instalments had been paid. As I have indicated, I am satisfied beyond reasonable doubt that this claim was false to the knowledge of the appellant. 442I am also satisfied for the reasons given in relation to Counts 10 and 11 that the appellant intended Ramace to profit from receipt of the tax refund which was received in relation to the 1997 and 1998 tax years. 443It follows that in my opinion the evidence proves the offence the subject of Count 12 beyond reasonable doubt. (iv) Count 13 444For the reasons given in relation to Count 12, I am satisfied beyond reasonable doubt that the statement that Ladadika was the employer of Mr Magoulias in the 1998 tax year was false to the knowledge of the appellant. In addition, the appellant had prepared another tax return for Mr Magoulias for the 1998 tax year stating that the business of Master Marble & Granite made a profit of $54,469. This was described by the appellant as an interim return. Interim or otherwise, it did not show employment income from Ladadika or anyone else. 445In cross-examination on this count, the appellant seemed to suggest that the employment income was said to have been earned from employment with Master Marble & Granite Pty Ltd which was only incorporated on 5 June 1998. He asserted it was not impossible for Mr Magoulias to have earned $38,000 in wages from that company in the period between incorporation and the end of the financial year. His explanation was in the following terms: "Because the company would have bought the business prior. So it would have bought all the debts and income and all the expenses for that period." 446With respect that explanation was meaningless. 447As I indicated earlier at par [418], the basis upon which instalment deductions were calculated was because no employment declaration was signed. The appellant did not contend that the deductions had in fact been made or paid to the ATO as stated in the return. That explanation, particularly coming from an accountant claiming experience in relation to tax returns, is incapable of belief. The only conclusion that can be reached is that the appellant prepared the figures for wages and tax deductions used in the preparation of the return, including the replacement group certificate, knowing that they were false. For the reasons given in relation to Counts 10, 11 and 12 I am satisfied it was done to produce a profit for Ramace. 448It follows, in my opinion, that the evidence proves the offence the subject of Count 13 beyond reasonable doubt. Count 14 - Mr Stelianos Mangafas - Income tax return for year ended 30 June 1998 Count 54 - Mr Stelianos Mangafas - Income tax return for year ended 30 June 2000 (a) The summary 449The summary in respect of Count 14 shows that the tax return lodged on behalf of Mr Mangafas on 12 October 1998 stated that Mr Mangafas received income in the sum of $35,088 from Ladadika from which tax of $16,491.36 was deducted. It also shows that Mr Mangafas had a business loss of $14,494 from his business Stelianos Mangafas Financial Consultancy. 450The summary discloses that a refund of tax in the amount of $13,356 was received which was deposited into the bank account of Ramace. It also discloses that the appellant had in his possession a hardcopy electronic lodgement declaration for the 1998 income tax return showing income as $20,304 and tax instalment deductions of $16,491.36. His computer also held income and expenditure statements for the consultancy business consistent with what was declared as business income. 451The summary discloses that Mr Campos held a statement of earnings for Mr Mangafas for the year disclosing wages of $35,088 from Ladadika and tax deductions of $16,491.36 signed by Mr McDonald. 452The summary in respect of Count 54 shows that the tax return for the year ended 30 June 2000 was lodged on 29 September 2000. It discloses income by way of wages in the sum of $22,426 as having been received from European Enterprises with tax of $10,764.48 being deducted. It also disclosed a $15,172 loss from a business, Stelianos Mangafas Marketing Consultant. The summary also states that a refund in the sum of $4,278.85 was received in respect of the year and banked into the account of Ramace. 453The summary discloses that the appellant held an authority to deposit Mr Mangafas' refund for the year ended 30 June 2000 into the Ramace account and there were income and expenditure statements for the marketing consultancy business on his computers consistent with what was declared on the tax return. 454The summary states that the Ramace worksheet held by Mr Campos showed he received information from the appellant on 14 August 2000. (b) The evidence 455Mr Mangafas gave evidence that he worked from 1995 to 2000 at a takeaway shop called the Souvlaki Bar at Brighton Le Sands. 456He stated that during that period he had no other paid employment. At the same time he was studying engineering at TAFE. He was earning a few hundred dollars a week and assumed that tax was being deducted. 457He said he did a few extra shifts on holidays and made about $50 extra per week. As such his normal wage was about $200 per week, which increased during the TAFE holiday period to about $250 per week. 458Mr Mangafas stated that he met the appellant at the Souvlaki Bar and the appellant offered to prepare his tax return for $50. He said he understood from the appellant that he was going to get a tax refund of around $400. 459Mr Mangafas stated that he understood the fees would come out of the tax refund. He was never shown a completed tax return but he said he remembered signing an authority for the appellant to do his taxes and to bank the cheque. 460Mr Mangafas said that the appellant gave him $350 or $400 in cash. He said that he did not tell the appellant he was a marketing consultant. He was never a marketing consultant. 461Mr Mangafas said he did not borrow money from the appellant or Ramace and he did not ask the appellant to prepare any other tax returns for him. 462Mr Mangafas was shown the 1998 income tax return and stated that he knew nothing about the Canley Vale PO Box address and that the names of Mr Filocamo, Mr Campos and Messrs Lopez and Gonzalez were never mentioned to him. 463He stated that he was never employed by Ladadika and that he did not earn anything like $35,000 in that year. He stated he thought that with Centrelink as a student he would have earned around $7,000 to $10,000. He said that tax of $16,491 was not deducted and he did not incur a loss of $14,494 from a business. He was not running any business that year whether as a financial consultant or otherwise. 464He was shown the income and expenses return for the finance consultancy business and denied he earned $16,841 or incurred expenses of $31,335. 465Mr Mangafas was shown a notice of assessment and said he was not told that he was entitled to a refund of $13,356. He stated that the appellant did not tell him that the appellant had received a refund cheque in that amount. He did not authorise the appellant to keep such a cheque. 466Mr Mangafas stated that the only thing that was correct on the tax file lodgement form was his name and tax file number. 467In relation to Count 54, Mr Mangafas said he did not instruct the appellant to prepare a tax return for the year ended 30 June 2000. He stated that the appellant did not tell him that he was going to arrange for a tax return to be lodged by Mr Lopez for that year. It was not correct to describe his occupation that year as a waiter. He had never heard of a company called European Enterprises and did not tell the appellant he was employed by it. 468Mr Mangafas stated he did not receive $22,426 from European Enterprises. He stated that off the top of his head he recalled receiving about $18,000 in that year for working at the Souvlaki Bar. He said he sold his interest in the Souvlaki Bar that he had acquired earlier that year and for 10 months was on jury service. He said he was part owner of the Souvlaki Bar for about three months but earned nothing from it. 469Mr Mangafas said the tax instalment deduction of about $10,700 was incorrect and that he did not incur a business loss of $15,172. 470Mr Mangafas stated that the appellant did not tell him he was entitled to a $4,278 taxation refund. He said he did not borrow any money from the appellant or from Ramace and denied that it was his signature on the authority to deposit for the year 2000 into the Ramace account. 471In cross-examination it was put to Mr Mangafas and he agreed that it was fair to say that he was guessing his income for the 1998 financial year. However, he denied he was working as a sole trader doing souvlaki preparation. 472He denied that he asked the appellant to do bookkeeping work or prepare MYOB accounts and stated that he did not give the appellant any books or records in his name in 1998. 473Mr Mangafas denied that he received a loan from the appellant or Ramace for $10,000 and that he was paid $6,500 in cash as part of such a loan. Mr Mangafas affirmed in cross-examination that the appellant suggested he was a tax agent. He stated he did not sign an appointment of tax agent form or complete any tax returns for the financial years 1998 and 2000. He stated that in 1998 he was "fresh out of high school". 474Mr Mangafas acknowledged in cross-examination that in 1998 he worked for the Souvlaki Bar but denied he earned $450 net per week. He said he was receiving $250 a week which was paid to him in cash. 475In relation to the return for the 2000 financial year, he denied he worked for European Enterprises in that year. He said he worked at the Souvlaki Bar for a short period as a kitchen hand earning a bit less than $250 a week net. He stated he did not receive a group certificate from the Souvlaki Bar in the 2000 financial year, he was paid in cash and he had to sign for it. 476In his evidence in chief the appellant said that he met Mr Mangafas at the Souvlaki Bar. He stated that Souvlaki Bar was a trading name for a business carried on by a company AAANG. He stated that AAANG was placed into liquidation. 477The appellant stated that in 1998 Mr Mangafas came to him for a loan and asked him to do his accounting and bookkeeping. He asserted that Mr Mangafas went into business with an Angelo Klimis. 478The appellant stated that he prepared a statement of income and expenditure for the purpose of considering making a loan to Mr Mangafas. He said that he required tax returns to be completed so he could determine the level of security for such a loan. He stated the total loan was $10,000 and consisted of a $3,500 cheque and $6,500 cash. 479He stated that the loan was repaid some time in 1998 including interest. He said that Mr Mangafas wanted him to do his tax returns to facilitate obtaining the loan and he followed his normal procedure of referring the material to Mr Campos. 480The appellant stated that Mr Klimis provided him with business records including a rent schedule, and invoices for purchases and expenses. He stated that the appointment of Mr Campos as tax agent and electronic lodgement declaration were signed and given to Mr Campos. Returns were then prepared. They were incorrect insofar as they state that Mr Mangafas worked for Ladadika in 1998. He worked for AAANG. 481The appellant stated that the gross income earned by Mr Mangafas was calculated in the usual manner. Presumably this meant taking the net income and adding a figure for tax calculated at the highest rate. The appellant did not state in chief where he got the information which allowed him to calculate the net income earned by Mr Mangafas during the year. 482In relation to Count 54 concerning the tax return for the year ended 30 June 2000, the appellant stated that it was incorrect to state that Mr Mangafas' employer was European Enterprises. He stated that this occurred as a result of a spreadsheet error because at the time he was dealing with about 15 companies with 250 or 300 group certificates. 483He also indicated that it was a mistake to describe Mr Mangafas as a finance consultant, stating that it should have been food consultant. He stated that he did not know why his occupation was misdescribed. 484In cross-examination the appellant said it was an honest mistake that Mr Mangafas was put under European Enterprises. He stated that he always knew Mr Mangafas worked for AAANG. He said that when he typed the certificate he "just went off the spreadsheet". In relation to Count 14, he acknowledged that Mr Mangafas' name did not appear on the Ladadika spreadsheet. He said that the reason why Mr Mangafas did not appear on the Ladadika spreadsheet could be because it was not the final version. 485In cross-examination he repeated that it was a mistake Mr Mangafas was described as a financial consultant and he was not sure how the mistake was made. He denied he was passing information to Mr Campos to generate the highest refund. He said Mr Mangafas had borrowed money from him, the loan being for about $10,000. He agreed there was no reference in the papers to a loan to Mr Mangafas. He denied he was not instructed to prepare the return for the financial year ending 30 June 2000. 486The appellant gave the following answers in cross-examination in respect of his claim that Mr Mangafas' employer was mistakenly named as European Enterprises in the tax return for the year ended 30 June 2000: "Q. Tell us how that happened. Count 54. A. Again that was a mistake that I put him working for European when in actual fact he worked for the Souvlaki Bar. Q. Previously you told us this mistake occurred because of the way the spreadsheet was set up. Ladadika was the first one? A, Yes, Ladadika was the first on the list. Q. Mr Mangafas, count 54, you mistakenly went beyond the first page of this spreadsheet? A. Yes. Q. And mistakenly went to European Enterprises? A. Yes. Q. Why did you do that? A. Again that was a mistake. That was a mistake. I can't recall why but it was transferring the name of the employee on to the wrong employer. Q. A mistake that on you evidence you wrote several times in relation to that return by preparing a false group certificate. Second mistake? A. Yes. Q. By sending that false group certificate to Geoffrey McDonald, third mistake? A. Yes. Q. By receiving from Geoffrey McDonald without realising the error a statement of earnings referring to European Enterprises, fourth mistake? A. Yes. Q. By sending all those documents to Juan Campos, fifth mistake? A. Yes. Q. By failing to notice when you got back a draft tax return and asking the client to sign it, on your evidence it incorrectly referred to European Enterprises? A. Yes. Q. I've lost count, is that six or seven we are up to? A. I can't remember how many it was. Q. Sixth mistake. And seventh mistake, once it was signed, sending it with this false reference to European Enterprises to Juan Campos for lodgement? A. Yes. Q. Is that your honest evidence? A. Yes. It was a mistake putting - he should not have been put on European. Q. It was not a mistake, it was seven mistakes at the very least? A. Well, one mistake that caused all the other mistakes to happen." 487The appellant asserted that he checked the books and with the owners of the Souvlaki Bar about an employment declaration for Mr Mangafas in respect of the year 2000. He denied that European Enterprises became the new vehicle for fraud once Ladadika was deregistered. (c) Consideration (i) Count 14 488It was not disputed that Mr Mangafas was a TAFE student studying engineering. There was no basis for describing him as a financial consultant in the year in question. It was common ground between the appellant and Mr Mangafas that they met when Mr Mangafas was working at the Souvlaki Bar. The appellant was unable to state why in those circumstances he described him as a finance consultant, stating that he should have described him as a food consultant. 489There is nothing to suggest that Mr Mangafas carried on such a business in either the 1998 or 2000 tax years. I am satisfied beyond reasonable doubt that as Mr Mangafas said he did not carry on such a business, he did not tell the appellant that he did and the appellant was aware that the statement in the tax return that Mr Mangafas incurred a loss in carrying on the business was false. 490The appellant gave his usual explanation for the employer being described as Ladadika, namely, that the name mistakenly appeared on the Ladadika spreadsheet. When it was pointed out to him that it did not, he again said there must have been a later version of the spreadsheet. I have dealt with this issue earlier and for the reasons I gave in relation to the counts concerning Mrs Magoulias, I am satisfied that the replacement group certificate stating that Mr Mangafas was employed by Ladadika was provided by the appellant knowing that it was false. 491Further, there was no basis for the appellant to state that tax instalment deductions were made in that year. The appellant did not indicate the source of the figures for either the income or the deductions. His statement that the tax deductions were calculated in the usual manner meant that the amount of the deductions was simply added on to produce a refund. 492Finally, I am satisfied in this case that no loan was made to Mr Mangafas. The appellant stated there was a loan which was repaid. No records to support the making of the loan or its repayment were produced. The appellant was unable to explain how those records went missing. As I have indicated there is nothing to suggest that they were destroyed whilst in the possession of the ATO, the AFP or the prosecuting authorities. 493In these circumstances, I am satisfied beyond reasonable doubt that the appellant knew that the material he had supplied for the preparation of the tax return which claimed a loss in respect of the business and that employment income was received from Ladadika and tax instalments deducted, was false. I am also satisfied that the false information was provided with a view to obtaining a tax refund for the benefit of Ramace. 494It follows that on the evidence I am satisfied that the offence the subject of Count 14 was established beyond reasonable doubt. (ii) Count 54 495As I indicated, Mr Mangafas said he did not give any instructions to the appellant to prepare this return. The documents produced in respect of this count did not disclose any note of instructions to do so: Exhibit A6, Tab 54. 496I have set out the cross-examination of the appellant relating to his assertion that European Enterprises was inserted as Mr Mangafas' employer by mistake. It is not credible that the name of Mr Mangafas was inserted on a different spreadsheet to that of Ladadika, and that the error was perpetuated notwithstanding there were six opportunities to correct it. I am satisfied that the appellant was aware the group certificate was false. 497Further, there was nothing to support the claim that Mr Mangafas earned $22,426 from AAANG in the year in question. The appellant acknowledged that the tax instalment deductions were calculated by assuming that tax had been deducted at the highest marginal rate. He had no material to suggest what such net income was or to suggest that such instalments had been deducted. In these circumstances, I am of the view that the appellant, at the time he prepared documentation stating that such tax instalments had been deducted, knew that such information was false. 498As I stated in relation to Count 14, I am satisfied the appellant was aware that Mr Mangafas did not carry on either the business of a food consultant or a finance or marketing consultant. 499In these circumstances, the evidence establishes beyond reasonable doubt that the appellant prepared the material knowing it was false and for the purpose of obtaining a tax refund for the benefit of Ramace. 500It follows, in my opinion, that the evidence demonstrates that the offence the subject of Count 54 was established beyond reasonable doubt. Count 15 - Ms Alice-Anne Sweeney - Income tax return for year ended 30 June 1997 Count 16 - Ms Alice-Anne Sweeney - Income tax return for year ended 30 June 1998 (a) The summary 501The summary in respect of Count 15 shows that the tax return for Ms Sweeney for the year ended 30 June 1997 was lodged on 12 October 1998. It shows income of $23,963 being received from Ladadika with instalment deductions of $11,262.61. It also shows that the return disclosed a loss in an amount of $8,677 from a business Alice Ann Sweeney Consulting Decorator. 502The summary shows in respect of the 1997 year a tax refund of $11,262.61 was received and a cheque for that amount was banked into the account of Ramace. The summary sets out documents held by the appellant both in hardcopy and on his computer. The hardcopy documents include statements of earnings and a replacement group certificate reflecting what was in the tax return, an income and expenditure statement for the decoration business consistent with the tax return and an authority to deposit the 1997 refund into the bank account of Ramace. The records on his computer included income and expenditure statements for the decoration business consistent with the tax return. 503Mr Campos' records included a statement of earnings for Ms Sweeney concerning Ladadika consistent with what was contained in the tax return. 504In relation to the 1998 tax return the subject of Count 16, the summary shows that the tax return declared Ms Sweeney earned income of $45,584 from employment with Ladadika and $21,424.48 tax was deducted. In addition, it claimed a loss of $12,546 from the decoration business. 505The summary states that a refund of $13,673.99 was received which was banked into the account of Ramace. 506The summary sets out the hardcopy documents held by the appellant. They included statements of earnings and replacement group certificates containing information consistent with that contained in the tax return. It also refers to an income and expenditure statement which is consistent with that return. The records of Mr Campos included the statement of earnings for 1998 for Ms Sweeney consistent with her tax return. (b) The evidence 507In her evidence in chief Ms Sweeney (who gave evidence under the surname Jones) stated that she first met the appellant in the early 1990s when he came to the house occupied by her and her then husband, Mr Peter Sweeney. She stated that Mr Sweeney was involved in running a business referred to above, Reel Corporation. She said she was not involved in the business, although on occasions she answered the phone. 508She stated that she did not believe she ever earned income from Reel Corporation. She said she never asked the appellant to do accounting work for her, although she believed he may have done some work for her ex-husband. 509She stated that she was neither employed nor earning income in the financial year ending 30 June 1997. She stated that she had never been employed by or heard of Ladadika. She was not running any business. 510She stated that she had never carried on a business called Decorator Consultancy Services or a business in the name of Alice-Ann Sweeney Consulting Decorators. 511Ms Sweeney stated that she did not tell the appellant that she was employed or running a business in the 1997 tax year. In addition, she stated that she had never borrowed money from the appellant. 512Ms Sweeney stated that she had heard of Ramace, the appellant's accounting firm, but she had never borrowed money from it. 513Ms Sweeney said the appellant never showed her completed tax returns, although occasionally she signed documents that her husband asked her to sign. 514In relation to the 1997, return Ms Sweeney noted the name on the return was Alice Anne-Mary instead of Alice-Anne Mary. She stated that she had never heard of Mr Campos or Mr Filocamo and that she was unaware that a tax return for 1997 was being lodged on her behalf. 515She stated the tax return was untrue both in relation to the details of her employment with Ladadika and the loss from the decoration business. 516Ms Sweeney gave similar evidence in relation to the 1998 return. In relation to that return she said she had not seen the notice of assessment nor was she told that a refund cheque of $13,673 was received. 517In cross-examination, Ms Sweeney acknowledged that she authorised her then husband to handle her financial affairs including her tax affairs in 1997 and 1998. She was referred to a statement she made to ATO investigators on 9 May 2008 in which she acknowledged she signed one tax return on the kitchen bench at her home but she could not remember whether it was for 1997 or 1998. She stated she did not read the return. 518Ms Sweeney denied that the signature on the electronic lodgement declaration was her signature. She denied that she worked for Reel Corporation or for another company, Reel Entertainment, in 1997 earning $244 per week. She also denied working for Reel Corporation in 1998. She stated that she did not sign employment declarations for Reel Corporation or receive group certificates. 519Ms Sweeney stated she did not know Mr Filocamo. However, it was pointed out to her that Filocamo & Associates was described as her tax agent in her 1995 return. 520The appellant said that he met Ms Sweeney in about 1993 or 1994. He stated he was the accountant for her husband's business carried on by Reel Entertainment Pty Ltd. He said that Ms Sweeney had a decorator business that she operated from home and that Mr Sweeney gave him a fax or letter stating what she was doing. He said there were no business records; it was all done through Mr Sweeney's accounts. 521The appellant stated that Mr Sweeney provided him with a statement of money spent on behalf of Ms Sweeney through Reel Entertainment. He referred to a document setting out details of the income and expenses of the business which he claimed he obtained from Mr Sweeney. 522The appellant stated that in 1997 and 1998 Ms Sweeney worked for Reel Corporation doing administrative work, but not a lot, and that it was agreed with Mr Sweeney that she would receive a wage. 523The appellant claimed that he was entitled to bank the refund cheque for the 1997 year. This was because Mr and Ms Sweeney invested money with him in amounts up to $300,000. 524The appellant stated that the dates on the group certificate appeared to be incorrect as Ms Sweeney worked for the whole year for Reel Corporation rather than for three months as disclosed in the group certificate. 525In relation to Count 16, the appellant said Ms Sweeney was paid according to the books of Reel Corporation but no cheque was issued. He said that gross wages and tax on the group certificate were calculated in the usual manner; that is by taking net income and adding a percentage to assume tax had been deducted at the top marginal rate. He stated that he created the income and expenditure statement from information provided by Mr Sweeney but did not have an opportunity to explain it to Ms Sweeney. 526It is convenient before going to the cross-examination of the appellant on these counts to deal with the evidence of Mr Sweeney. 527Mr Sweeney stated that Ms Sweeney did not play any role in the business conducted by Reel Corporation and did not earn any income from that company. He said that the business was being run from an office in a building separate to their home. 528Mr Sweeney stated that his then wife was a fulltime mother who never operated a design consulting service business or an interior decorator consulting business. He said her background was in photography. 529He stated that the appellant was the accountant for Reel Corporation and he instructed the appellant in relation to Ms Sweeney's tax return. He said that she had a minimal income so he did not know if a return was required. 530Mr Sweeney stated that neither he nor Reel Corporation ever borrowed money from the appellant or any company associated with the appellant. 531In relation to each of Counts 15 and 16 he gave evidence in similar terms to that given by Ms Sweeney. In addition, he said that he provided his wife's tax file number to the appellant. He denied that the signature on the authority to deposit a tax refund cheque into the bank account of Ramace was that of Ms Sweeney and said that the signature on the electronic lodgement declaration also was not her signature. 532In cross-examination he denied that his wife did administrative work for Reel Corporation in 1997 and 1998. He stated he did not pay her wages or that it was agreed that such wages would be treated as a loan back to Reel Corporation. He said he was not handling his wife's tax affairs as she was not earning income. 533In his cross-examination the appellant acknowledged that Ms Sweeney did not appear on the Ladadika spreadsheet. 534In cross-examination it was put to the appellant that it was a complete fabrication that Ms Sweeney earned any income from employment or from the conduct of a business during the years in question. He denied it and stated that he knew that Ms Sweeney was a full-time mother but that she also earned income as he was told that by her husband. 535The appellant stated that he was entitled to keep the tax refund because it was agreed by Mr and Ms Sweeney that they would deposit those funds into Ramace and whenever they needed to draw them out they could do so. The appellant stated that in the end he paid Mr Sweeney $325,000. There was no evidence produced to corroborate this. (c) Consideration (i) Count 15 536I am satisfied beyond reasonable doubt that Ms Sweeney did not earn the income declared or have the tax instalments claimed deducted from any income she earned. I am also satisfied beyond reasonable doubt that Ms Sweeney, to the appellant's knowledge, did not incur the business loss claimed. 537Ms Sweeney's name did not appear on the Ladadika spreadsheet. Thus, as in some of the earlier counts, the foundation for this so-called mistake does not exist. For the reasons given in relation to those counts, I am satisfied that the insertion of Ladadika in the tax return and the preparation of the group certificate was not a mistake. In this regard it should be noted that Ms Sweeney denied ever receiving such income. That denial was supported by Mr Sweeney who said that he did not give the appellant any such information. 538Further, the appellant did not assert that such monies were actually paid to Ms Sweeney, but rather, asserted that they were accounted for in the books of Reel Corporation. No evidence was produced to confirm this assertion which was not put to Ms Sweeney and denied by Mr Sweeney. 539Further, the appellant's explanation as to how the tax instalments were calculated demonstrated that he was aware that no deductions in fact had been made. It was not put to Mr Sweeney that he had made such deductions and there was no evidence to establish the inherently unlikely proposition that a wage had been paid, the amount credited to a loan account with Reel Corporation and notwithstanding the relatively low income it was suggested was earned, tax instalments were paid by Reel Corporation to the ATO at the highest marginal rate. I am satisfied that the appellant knew the tax return was false in this regard. 540I am also satisfied that to the knowledge of the appellant, Ms Sweeney did not carry on a business. It was denied by each of Mr Sweeney and Ms Sweeney and the appellant himself admitted that he was aware that Ms Sweeney was a full-time mother. 541The refund was paid to Ramace as intended by the appellant. 542In these circumstances, I am satisfied that the material prepared by the appellant for the purpose of the tax return was false to his knowledge and was provided for the purpose of obtaining a refund for the benefit of Ramace. It follows that I am satisfied beyond reasonable doubt that the evidence establishes the offence the subject of Count 15. (ii) Count 16 543This count raises the same issues as Count 15, albeit for the subsequent tax year. For the reasons given in relation to Count 15, I am satisfied beyond reasonable doubt that the evidence establishes this count. Count 17 - Mr John Dimitroulas - Income tax return for year ended 30 June 1997 Count 18 - Mr John Dimitroulas - Income tax return for year ended 30 June 1998 (a) The summary 544The summary in respect of Mr Dimitroulas states that a taxation return for the year ended 30 June 1997 was lodged on his behalf on 13 November 1998. It disclosed taxable income of $32,015 with tax instalments of $15,047.05 being deducted. The employer was described as Churchill Precision Grinding. 545The summary also discloses that two losses were claimed, one being a loss of $11,360 from a courier services business, Engineering Courier, the other of $5,152 being a loss incurred in respect of a rental property. 546The summary also refers to the fact that a refund of $12,912.90 was paid forming part of a cheque for $24,008.86, being a refund cheque paid in respect of that tax year and in respect of the 1998 tax year. The refund was banked into the account of Ramace. 547The summary discloses that the appellant had on his computer and laptop a statement of income and expenditure for 1997 from Engineering Courier showing a net loss of $15,608. 548The summary also discloses that Mr Campos had in hardcopy a document with handwriting "John Dimitroulas DOB xx/x/xx TFN xxxxxxxxx" and "Churchill Courier self employer Engineering Courier", "Ladadika waiter" and "Rental pty". 549The summary for the 1998 tax year shows that a tax return on Mr Dimitroulas' behalf was also lodged on 13 November 1998. The income said to be earned from employment was $32,847 from which tax instalments of $15,437.36 were deducted. The employer was again said to be Churchill Precision Grinding. 550The summary also discloses a loss from the courier service business of $5,042 and a rental loss of $4,266. It shows that Mr Dimitroulas was entitled to a tax refund in that year in the sum of $11,095.96 and as stated above, the refund formed part of a cheque in the sum of $24,008.86 which was banked into the account of Ramace. 551The summary also discloses that the appellant held on his computer a statement of income and expenditure for the courier service business showing a net loss of $13,200, a wage breakdown for Mr Dimitroulas, the employer being Ladadika, showing income and deductions as in the tax return (but with a different employer) and a profit and loss statement for Churchill Precision Grinding showing a net profit of $70,858.92. 552The summary also discloses that Mr Campos had in hardcopy a document again stating Mr Dimitroulas' tax file number and describing him as an "Engineering Courier", a "Ladadika waiter" and referring to "rental pty". (b) The evidence 553Mr Dimitroulas gave evidence in chief that he did not work in the 1996 financial year. He stated that in 1996 he approached the appellant to assist in obtaining a loan to borrow a truck. He never worked or derived income from Churchill Precision Grinding. 554Mr Dimitroulas said the appellant said he had to do his tax returns before he could obtain a loan. He stated that at that time he owned a house and collected rent from it. He said he paid $270,000 for the house and had a mortgage of $175,000. He said he received about $280 a week rent. 555Mr Dimitroulas stated he expected the appellant was doing his tax returns. He said the appellant did not show him any tax returns and he could not remember signing any. He stated he did not have any group certificates. 556He stated he received extra money as a result of the appellant being able to refinance his home loan with St George Bank (he described it in evidence as "Advance Bank"). He stated that he never found the right truck so he spent a little of the money on the house and a little on the car he had. As he recalled he obtained $60,000 from Advance Bank. He stated that he received a further loan of $40,000 from Advance Bank. 557Mr Dimitroulas denied the appellant loaned him any money. He paid the appellant $4,000 which was kept out of the $60,000 original advance. He denied that he told the appellant that he bought a truck. 558Mr Dimitroulas stated that in 1997 he did not earn any income other than rental income. He denied that he operated a courier service. He was referred to his return for the 1997 financial year and stated that he knew nothing about the Canley Vale PO Box address, or anything about Mr Filocamo. He said the name Mr Campos was never mentioned to him. 559Mr Dimitroulas stated that the figures for income from employment, tax instalments deducted and loss on the conduct of a business were all incorrect. 560So far as the rental property was concerned, Mr Dimitroulas said that the rent was almost covering the mortgage but stated that he did not know if he had made a profit or a loss on the property in that year. 561Mr Dimitroulas said he did not see a notice of assessment for the 1997 year and that the appellant did not tell him he had received such an assessment. He also said he did not see a notice saying he was entitled to a $12,900 refund of tax, nor was he told that the appellant had received a refund cheque for $24,008.86. He did not authorise the appellant to pay this money into the Ramace account. 562Mr Dimitroulas was also shown a handwritten document which described his employment as a waiter with Ladadika. He stated that he had not worked for Ladadika and had not told the appellant that he had done so. 563Mr Dimitroulas gave similar evidence in relation to the 1998 return. He stated that his only income for the year was rental income and he did not work for Churchill Precision Grinding. He said he was not a courier driver and never had a business as a courier driver. He stated that the figures for income, tax instalment deductions and business loss were all incorrect. 564Mr Dimitroulas also stated that the appellant did not tell him he received a notice of assessment for 1997 or that he was entitled to a refund of $11,095. Mr Dimitroulas was also referred to a wages breakdown for Ladadika referring to income and tax instalments which were said to have been received from and deducted by that company. The document was found on the appellant's computer. Mr Dimitroulas denied he ever worked for Ladadika or received any money from that company. 565In cross-examination Mr Dimitroulas repeated his denials. He denied that the appellant had asked him if he had a tax agent and that he told the appellant he could give his records to Mr Campos. He denied that the appellant explained the effect of documents he was asked to sign. 566It was put to Mr Dimitroulas that he was paid in cash for employment with Churchill Precision Grinding for the 1997 year which he denied. He stated that he did not earn $362 net per week in the 1998 financial year. 567Mr Dimitroulas denied signing an authority to deposit cash refund cheques into the account of Ramace to be offset against bookkeeping and accounting fees and payment for preparation of tax returns. 568In his evidence in chief the appellant stated he met Mr Dimitroulas through three people, Mr Lagomigis and Mr Alex and Mr Peter Giorgiatis. 569He stated that Mr Alex and Mr Peter Giorgiatis, together with Mr Peter Giorgiatis' wife Maria, owned Churchill Precision Grinding, a company which ultimately went into liquidation. 570He stated that Mr Dimitroulas asked to borrow money to buy a truck. He stated that Mr Dimitroulas had a business contracting for Churchill Precision Grinding doing deliveries. 571The appellant stated that Mr Dimitroulas was self-employed. He said that Mr Dimitroulas asked him to do accounts for 1997 and 1998 as they were required to be up-to-date for him to obtain a loan. He said Mr Dimitroulas gave him the usual books and records and he prepared an income and expenses statement. He referred to that statement showing expenses for the hire of a van for $6,879 and stated that at the time Mr Dimitroulas was renting a van. 572The appellant also stated that he prepared a rental schedule relating to the property being rented out by Mr Dimitroulas. He referred to his handwritten notes which stated that Mr Dimitroulas worked as a waiter for Ladadika. He said he did not believe he was working at Ladadika but that Mr Dimitroulas had told him that he was doing waiting work. 573The appellant stated that in 1998 he helped Mr Dimitroulas finance his property through St George Bank. He said his fee would have been between $10,000 and $12,000 and that he did not loan him any money. He stated that he referred him to Mr Campos for the purpose of preparation of the tax returns. He said when he got the returns back from Mr Campos he had Mr Dimitroulas sign the returns. He said the 1997 tax records showed Mr Dimitroulas worked for Churchill Precision Grinding. He said that was correct, he did courier work. It should be noted that the appellant's earlier evidence was that Mr Dimitroulas was self-employed. 574So far as the 1998 tax return was concerned, the appellant stated it was correct to say that Mr Dimitroulas worked for Churchill Precision Grinding in 1998. He stated that income and tax were calculated in the usual manner. He said he prepared a 1998 replacement group certificate for Mr Dimitroulas. 575He was referred to the Ladadika spreadsheet which showed Mr Dimitroulas as an employee. He stated that was a mistake. He said Mr Dimitroulas' name should have been under Churchill Precision Grinding in the spreadsheet. He said he no longer had copies of such spreadsheets, claiming they were in his office before documents were seized by the ATO. 576In cross-examination the appellant contended that he received the information that Mr Dimitroulas was working for Churchill Precision Grinding from Mr Giorgiatis. He stated that he did not check with Mr Dimitroulas, although he received the information concerning the courier business from him. 577The appellant contended that Mr Dimitroulas worked for Churchill Precision Grinding doing day and night work. He stated the self-employed aspect was the night work. He said Churchill Precision Grinding employed Mr Dimitroulas during the day and paid him as a contractor at night. He said that Mr Dimitroulas told him he had a van. 578He said that when he wrote down that Mr Dimitroulas worked for Ladadika as a waiter it was a mistake, although he said that Mr Dimitroulas stated that he worked as a waiter in addition to his day and night occupations. 579The appellant was cross-examined as to the basis of his entitlement to retain the $12,000 refund when his fees were $6,000. He stated there were other fees for doing paperwork. He said he did not know how much the total was. 580He was asked similar questions in relation to the 1998 refund and said he could not recall how much in fees Mr Dimitroulas incurred. However, he acknowledged that he was not entitled to charge $18,000 to prepare income statements and documents for tax returns for 1997 and 1998. 581The appellant stated that he was the accountant for Churchill Precision Grinding and agreed the company had 14-15 staff members. He was shown a profit and loss statement of that company for the year ended 30 June 1998. On it being pointed out to him that wages and salaries totalled $65,624 and that it was impossible that Mr Dimitroulas' wage of $32,847 made up 50% of the total wage bill, he said that the management of employees was taken over by another company, Chalmers, although Mr Dimitroulas continued to be employed by Churchill Precision Grinding. It should also be noted that the total courier fees disclosed in the profit and loss statement for that year amounted to $634.50. Ultimately, the appellant said that the profit and loss account in his possession was not a final statement. (c) Consideration (i) Count 17 582Neither this count nor Count 18 directly involved the contention that Ladadika was mistakenly inserted in the tax returns as the employer of Mr Dimitroulas. However, the issue was raised indirectly having regard to the assertion by the appellant that the reference to Ladadika as the employer of Mr Dimitroulas in some of the documents in his and Mr Campos' possession was a mistake. In these circumstances, it is appropriate to review this count in considering the application of the proviso. 583Mr Dimitroulas denied that in the 1997 tax year he had any income apart from that received from his rental property. He denied that he worked for Churchill Precision Grinding, that he carried on a courier business or that he worked as a waiter for Ladadika or anyone else. 584The appellant's evidence was ambivalent. Initially he said Mr Dimitroulas was self-employed with a business contracting to Churchill Precision Grinding. He said the information for the business came from Mr Dimitroulas. 585Subsequently he stated Mr Dimitroulas was also employed by Churchill Precision Grinding. He said he received the information from Mr Giorgiatis, the information apparently being that he was an employee by day and an independent contractor by night. He said he did not check the information with Mr Dimitroulas. The proposition, to say the least, is surprising. 586Further, once again it is plain that the appellant had no basis for proceeding on the assumption that tax instalments had been taken out of Mr Dimitroulas' pay at the top marginal rate and accounted to the ATO. Once again it is inconceivable that an accountant experienced in the preparation of tax returns could have concluded that this was an appropriate course to adopt. 587The return was prepared at the same time as the 1998 return. The appellant had in his possession the profit and loss statement for Churchill Precision Grinding for the 1998 income year. I have referred at par [581] above to the appellant's evidence regarding this statement. Although the figures are more directly related to the 1998 return, a consideration of them adds further force to the proposition that Mr Dimitroulas did not earn the amounts he was claimed to have earned from Churchill Precision Grinding. 588The tax return was prepared in 1998, apparently one year after Ladadika had ceased to trade. It is inherently unlikely from those circumstances that the description of Mr Dimitroulas as a waiter working for that company was an honest mistake. It throws further doubt on the veracity of the other evidence given by the appellant on this count. 589Further, on the evidence of the appellant set out at pars [579] and [580] above, there was no basis for Ramace to have retained the tax refund. 590In those circumstances I am satisfied that the evidence establishes beyond reasonable doubt that the offence the subject of this count was committed. (ii) Count 18 591As I indicated, the tax return for this count was prepared at the same time as that the subject of Count 17. For the reasons given in respect of Count 17, I am satisfied beyond reasonable doubt that Mr Dimitroulas did not work for Churchill Precision Grinding during that year, earn the income claimed or carry on the courier service business. Further, I am satisfied beyond reasonable doubt that the instalments said to have been deducted from his income were not in fact deducted. 592I am also satisfied for the reasons given in relation to Count 17 that the appellant was aware of the falsity of these matters at the time he prepared the material for the tax return and that he did so to obtain the benefit of the tax refund for Ramace. 593It follows that I am satisfied beyond reasonable doubt that the evidence properly admitted proves the offence the subject of this count. Count 19 - Mrs Maria Rafeletos - Income tax return for year ended 30 June 1997 Count 20 - Mrs Maria Rafeletos - Income tax return for year ended 30 June 1998 (a) The summary 594The summary discloses that a tax return for the financial year ended 30 June 1997 was lodged on behalf of Mrs Rafeletos on 13 November 1998. It discloses income of $12,602 from which tax instalment deductions of $5,922.94 were said to have been made by the employer Ladadika. 595The summary also refers to the tax return showing $1,792 rental loss. 596The summary records that a refund of $4,990.94 was due and paid. The summary records that a cheque in the sum of $11,183.51 was received, being a refund cheque for both the 1997 and 1998 years. The cheque was banked into the account of Ramace. 597The summary also records that the appellant had in his possession a statement of earnings for Mrs Rafeletos for the year ended 30 June 1997 signed by Mr McDonald together with her replacement group certificate. These documents contained figures consistent with those shown in the tax return. He held in hardcopy an authority to deposit the tax refund cheque into the account of Ramace apparently signed by Mrs Rafeletos together with an incomplete electronic declaration form signed by her. 598The summary shows that the records on the appellant's computers included a statement of rental income for Mr and Mrs Rafeletos showing gross rent of $22,874, interest of $20,154 and a net loss of $3,583. The rental loss was apparently apportioned between Mr and Mrs Rafeletos. 599Mr Campos' records included a hardcopy of the statement of earnings in a similar form to that held by the appellant. 600The summary for the 1998 year records that a tax return for Mrs Rafeletos was lodged on 13 November 1998. It declared income of $19,069 from which tax instalment deductions of $8,962.43 were made. The employer was named as Ladadika. It also claimed a rental loss of $465. 601The summary states that a refund of $6,192.57 was payable, which comprised part of the cheque of $11,183.51 paid into the account of Ramace. 602The summary records that the hardcopy documents in the possession of the appellant included a statement of earnings signed by Mr McDonald and a replacement group certificate consistent with what was contained in the tax return. It also included a statement of rental income for Mr and Mrs Rafeletos showing a net profit of $11,176 and an authority to deposit the 1998 refund into the Ramace account. 603The summary states that the computer records of the appellant included a statement of rental income showing a net loss of $931. (b) The evidence 604In her evidence in chief Mrs Rafeletos said she did not work and that she did not earn any income from employment throughout her 22 years of marriage. She stated she had never worked as a waiter and she knew nothing about Ladadika. 605She denied earning $12,602 in income in 1997 or $19,069 income in 1998. 606She stated that she did not tell the appellant that she earned those amounts. She said she had never been to the appellant's office and he had never asked her to sign documents. She acknowledged that from time to time in 1997 she helped her husband in the business he was running. However, she said that she did not receive any income or wage. She used to receive $200 or $300 from her husband for household expenses. She said there was never any standard wage. 607Mrs Rafeletos stated that she never borrowed money from the appellant or from Ramace. 608She said she and her husband purchased a new house in Condell Park in 2000. She did not think that the appellant played any role in organising the mortgage for the house. 609She stated that she had never heard of the Canley Vale PO Box address shown on her tax return. She had also never heard of Mr Filocamo, Mr Campos or Messrs Gonzalez or Lopez. 610Mrs Rafeletos said that in 1997, she and her husband owned two rental properties on Canterbury Road, Canterbury. She stated that she did not know whether income from those properties exceeded expenses. 611So far as the tax refund was concerned, she denied that it was her signature on the authority to deposit the refund into the Ramace account and stated that she did not know anything about the tax refund. 612In cross-examination, Mrs Rafeletos acknowledged that her husband used to take care of all business matters. 613Mrs Rafeletos was referred to a statement she made in April 2005 in which she said "I thought that Angelos Giourtalis has prepared and lodged my tax return". She said she was referring to her and her husband's return and she thought it was to do with the rental. She stated, however, that she did not ask the appellant to prepare a rental schedule for 1997 and 1998. 614Mrs Rafeletos stated she was not aware of any fees due to the appellant for refinancing in the amount of $18,000. She stated the appellant never arranged finance for their rental property; it was arranged through the National Australia Bank. She was again shown her April 2005 statement where she said "We requested Angelo to arrange finance for the purchase of our rental property" and "This finance was arranged through the National Australia Bank". She said she did not remember this but maybe it was for her home, not the rental properties, or perhaps they were linked. 615It was ultimately put to her that she worked for Garfield Gourmet Foods for a wage which she denied. She stated, however, that she used to work behind the counter and serve customers when some of the staff did not turn up. She said she received something like pocket money of $200 to $300 a week to pay bills and for food. She denied that she received a wage in 1997 of $140 per week, or in 1998 of $210 per week. 616In re-examination Mrs Rafeletos stated that any financing arranged by the appellant could not have been for the rental properties as they were purchased many years before. She said that the appellant may have assisted in financing a property in Condell Park. 617In cross-examination the appellant acknowledged that Mrs Rafeletos' name did not appear on the Ladadika spreadsheet. He stated that his only explanation was that it could not be the final version of the spreadsheet. He said both she and her husband told him that she had earned an income from Garfield Gourmet Foods. The appellant stated he gave the documents for signature by Mrs Rafeletos to Mr Rafeletos for her to sign. 618The appellant stated he was entitled to keep the refunds for preparing Mrs Rafeletos' returns and arranging refinance of two commercial properties at Canterbury, their house at Chalmers Crescent and for the purchase of the Condell Park property. He disagreed that the Condell Park property was bought in 2000 and stated he was entitled to fees all up of about $58,000. 619Almost immediately thereafter he stated the fee was either $38,000 or $42,000 and that it was not for refinancing one property. He denied that he made the fee up because the total refunds for Mr and Mrs Rafeletos totalled $35,000. 620The appellant denied that he forged the signature of Mrs Rafeletos on the 1997 and 1998 authorities to deposit and electronic lodgement forms. 621The appellant was shown the hardcopy statement of rental income which was found in his possession showing a net profit on the rental property of $11,176. He stated that that was what Mr and Mrs Rafeletos told him and that they would have supplied the figures before he got the paper work. 622He was also shown a draft tax return of Mrs Rafeletos which did not refer to any employment income. He said that this could have been prepared before he received the books of Garfield Gourmet Foods. He said it was an interim return based on information from Mr Rafeletos. He said that he showed the interim return to a bank to support a loan application. He said that he did not subsequently show the bank the real tax return. He emphasised that he was Garfield Gourmet Foods' accountant. 623The appellant agreed that Garfield Gourmet Foods was incorporated in March 1997. He stated that it was originally incorporated as Garfield Gourmet Foods Pty Ltd and then changed its name to Zorbas Pty Ltd. He said he could not remember if Mr and Mrs Rafeletos had anything to do with the company after it changed its name, but he said he knew it was their company. 624The appellant was referred to various changes in the registered office of the company and acknowledged that his office was the initial registered office shown on the ASIC records. He stated that the fourth registered office shown on the return, Chalmers Street, Lakemba, was the former address of Mr and Mrs Rafeletos. It was pointed out to him that the date of the search showed that those premises ceased to be the registered office after the appellant had received and banked the refund cheques. He was asked in those circumstances whether he agreed that Mr and Mrs Rafeletos were still living in Chalmers Street in February 1999. However, the appellant stated that was when it ceased to trade from the address. 625It was also pointed out to the appellant that the previous directors of the company as shown on the ASIC search were Mr Rafeletos and a Mr Georgios Tsamados. Mr Tsamados was a Greek singer who was the subject of Count 5. 626The appellant agreed that the address shown for Mr Tsamados on the ASIC search was his parents' address. He agreed that Mr Tsamados never lived at that address but he denied that he was seeking to control the company using a person who lived overseas as a nominal director. 627The appellant was referred to immigration records concerning Mr Tsamados and it was pointed out to him that he was appointed a director of the company on the date he left Australia, never to return, namely, 9 July 1998. He agreed with that and also that the name of the company was still Garfield Gourmet Foods. He also agreed that the ASIC search disclosed that Mr Tsamados was the sole shareholder in the company. 628However, the appellant again denied that he in fact controlled the company. The appellant stated that he had a meeting with Mr Tsamados about him taking over the company. 629The evidence concerning the counts relating to Mrs Rafeletos and Mr Rafeletos overlaps to a large extent. In those circumstances, I will deal with my conclusion on each of these counts together and after I have dealt with the evidence directly relating to Mr Rafeletos. Count 21 - Mr Stelios Rafeletos - Income tax return for year ended 30 June 1997 Count 22 - Mr Stelios Rafeletos - Income tax return for year ended 30 June 1998 (a) The summary 630The summary for Count 21 discloses that a return for the 1997 tax year was lodged on behalf of Mr Rafeletos on 13 November 1998. It discloses income from employment of $18,956 with tax instalments of $8,909.32 being deducted. The employer was named as Ladadika. 631The return also claimed a loss of $12,047 from a business known as Garfield Gourmet Foods and a rental loss of $1,791. The summary discloses that Mr Rafeletos was assessed as entitled to a refund of tax in the amount of $8,909.32. A cheque in the sum of $23,873.18 being the refund due for the 1997 year and the subsequent tax year was received. It was banked into the account of Ramace. 632The summary also discloses that the appellant had in his possession a statement of earnings signed by Mr McDonald and a replacement group certificate consistent with what appeared on the tax return. He also had a statement of rental income for 1997 showing a net loss of $3,583, an authority to deposit the 1997 refund into the Ramace account and an incomplete electronic lodgement declaration for 1997 signed in the name of Mr Rafeletos. 633According to the summary the appellant also had in his possession a tax return for Mr Rafeletos showing rental income of $3,767 and other income of $52,087. A further electronic lodgement declaration in the appellant's possession showed taxable income of $5,118 and total tax of $8,909.32. 634According to the summary there was found on the appellant's computer a profit and loss statement for 1997 for Mr Rafeletos trading as Garfield Gourmet Foods showing a net loss of $12,599 and a statement of rental income showing a net loss of $3,583. 635According to the summary Mr Campos had a statement of earnings in the same form as that held by the appellant. 636The summary for the 1998 tax year shows that a return for Mr Rafeletos was lodged on 13 November 1998, the same day as the 1997 return. It declared taxable income from employment of $35,018 with instalments of $16,458.46 being deducted. It stated the employer was Ladadika. 637According to the summary the return also declared a loss of $21,047 from Garfield Gourmet Foods and a $465 rental loss. 638The summary discloses that Mr Rafeletos was assessed as being entitled to a refund of $14,963.86 which was paid by cheque along with the refund to which Mr Rafeletos was entitled for the 1997 tax year. As I indicated above, the cheque was banked into the account of Ramace. 639According to the summary the appellant had in his possession a statement of earnings signed by Mr McDonald, a replacement group certificate for Mr Rafeletos for 1998 and a profit and loss statement for Mr Rafeletos trading as Garfield Gourfield (sic) Foods. These documents were consistent with what was shown on the tax return. In addition, according to the summary the appellant also had in his possession a statement of rental income for 1998 showing a net loss of $931 and another showing a profit of $11,146. Similar rental statements were found on the appellant's computers. 640According to the summary Mr Campos had in his possession a statement of earnings for 1998 consistent with what appeared on the tax return. (b) The evidence 641In his evidence in chief Mr Rafeletos said he was a refrigeration mechanic working in his own business CWS Refrigeration. He indicated prior to working for himself he worked with his father in a business having the same name. 642In 1995 he decided he needed an accountant and a Mr Ibrahim for whom he was building a shop at Wynyard Station recommended the appellant. 643He said that he first met the appellant in about 1995 or 1996 at which time, apart from working as a refrigeration mechanic, he owned a couple of rental properties. He said he came to know the appellant quite well, the appellant becoming the Godfather to his third child. 644He said that in 1997 the refrigeration business in which he was involved was carried on by a company, CS&R Refrigeration Pty Ltd. It was a family company. 645Mr Rafeletos said that around 1997 or 1998 he acquired an interest in a takeaway shop known as Garfield Gourmet Foods. He stated that whilst he was running Garfield Gourmet Foods he was not earning an income from refrigeration. 646Mr Rafeletos said his wife worked at Garfield Gourmet Foods helping out part time. He was asked whether she drew an income or a wage and he said "I suppose she was getting paid". 647Mr Rafeletos denied that either he or his wife ever borrowed any money from the appellant or Ramace. He said that in 2002 or thereabouts the appellant assisted him in obtaining a loan to acquire the property at which he then lived. He stated the appellant did not arrange any finance for him or his wife in the financial years ended 30 June 1997 and 30 June 1998. 648Mr Rafeletos said that during the first discussions he had with the appellant he asked him to do his tax returns but there was no discussion about fees. He said that the appellant did not charge him for accounting work or provide him with an invoice. He said that he did not sign any loan agreements with the appellant. He stated he recalled the appellant asked him to sign documents but that most of them were blank documents. 649In relation to the 1997 tax return, Mr Rafeletos said he knew nothing about the Canley Vale PO Box and did not know Mr Filocamo. He said the appellant did not tell him Mr Filocamo would be lodging the returns. He stated that the appellant never mentioned the name Juan Campos. 650Mr Rafeletos said he was never employed by Ladadika and did not tell the appellant he was employed by that company. On being asked whether he earned $18,956 from Ladadika he stated he obviously earned income from Garfield Gourmet Foods but not from Ladadika. He said in 1997 he was clearing about $800 to $1,000 per week from Garfield Gourmet Foods. He said no one was withholding tax from the income and he did not know anything about tax instalment deductions of $8,909. 651Mr Rafeletos said if the appellant had shown him a tax return with income of $18,956 and instalments of $8,900 he would not have signed it because the figures were untrue. He said the income was very low and the tax instalments should have been zero. He said Garfield Gourmet Foods was not making a loss during the year and he did not tell the appellant it was. 652In relation to the two rental properties owned by Mr Rafeletos on Canterbury Road, Canterbury, he said that they were breaking even. He was receiving about $600 per week from the two properties. He said it was not correct that income received from the rental properties was $11,437 for the year. He said the figure was closer to $25,000. He said that he probably made a small profit on those properties. 653He was shown that part of the tax return dealing with business income showing a loss in respect of Garfield Gourmet Foods of $12,047. He stated that the figure of $21,895 income before expenses was definitely incorrect. He said before expenses the shop was taking between $5,500 and $6,000 per week. He said the figures for total expenses of $33,942 were low as expenses were between $4,000 and $5,000 a week. He denied he had rental expenses of $3,904 a week. He said he was paying his father about $400 to $500 a week rent in respect of the premises. 654In relation to the $12,047 loss for Garfield Gourmet Foods, Mr Rafeletos said the business did not make a loss; it was definitely making a profit. 655Mr Rafeletos denied ever having received a tax refund notice or any mail addressed to him at the Canley Vale PO Box. He stated that he did not know he was entitled to a tax refund of $8,909, the appellant never having told him this. 656Mr Rafeletos was asked whether the appellant asked him to sign documents authorising him to deposit the refund cheque into Ramace. He said that he remembered signing documents but there were no documents signed in 1998 authorising the appellant to keep the refund. 657He was referred to the statement of earnings which said that he earned $18,956 from Ladadika in three months from 1 April 1997 to 30 June 1997. He denied it was accurate. He said he was not working for anyone else apart from Garfield Gourmet Foods and did not earn $18,900 for three months work during that year. 658In relation to the 1998 year, Mr Rafeletos denied that he was working for Ladadika. He said he did not earn $35,000 from Ladadika or from any other source. His correct income was about $800 per week for about 42 weeks. If rental income was included it would be higher. The figure of $35,000 was too low. 659Mr Rafeletos said that he and his wife were taking home $800 per week in total. He said his wife just helped out when his staff turned up late. He said that no tax was deducted. 660Mr Rafeletos was referred to the business income and expenses contained in the 1998 tax return. He stated that both the income and expenses were too low and that the business did not make a loss that year. The correct position was that it was in profit. 661Mr Rafeletos said he was not told of the tax assessment showing an entitlement to a refund of $14,963. He said he was also not told by the appellant that he had received a cheque in the amount of $23,873. He did not authorise the appellant to deposit money into the Ramace account. 662Mr Rafeletos was shown a rental schedule for the year ended 30 June 1998 which as the summary demonstrated was in the possession of the appellant. It showed gross rent from the two properties as $40,561 and a net profit of $11,176. He stated the figures for rent and expenses were both "pretty close". He said the profit looked like what it really should be. 663Mr Rafeletos was shown another profit and loss account for Garfield Gourfield (sic) Foods for the year ended 30 June 1998 which was one of the documents said in the summary to be in the appellant's possession. He said that the gross sales shown on that profit and loss statement of $275,411 was too low and the net profit of $69,989 to high. It should be noted that the document had a notation on it "Rafeletos loan refinance". 664As with the 1997 return Mr Rafeletos said he knew nothing about Filocamo & Associates and denied that any part of the tax return lodged was correct. He said he was never told he would receive a refund of $14,963 and did not see any document showing an amount refundable of $23,873. 665Mr Rafeletos said that after he was contacted by the ATO he rang the appellant saying that he had some returns from the Taxation Office stating Ladadika as his employer. He said that the appellant told him not to worry as it was a misprint. 666Mr Rafeletos said after that occurred he ceased to have contact with the appellant. He had an accountant who at the time prepared his business tax returns and he had that accountant lodge fresh tax returns for the 1997 and 1998 years. 667In cross-examination Mr Rafeletos denied that he was guessing the amount of income he earned from Garfield Gourmet Foods. 668In cross-examination he again denied that he paid his wife a wage but said it was a weekly allowance for the family to go shopping. Mr Rafeletos said she would not have received more than $150 to $200 a week. He denied that in September 1998 he told the appellant he wanted to refinance his properties. He also denied he told the appellant the money that he was receiving from the shop was not enough to pay off all his loans. He said that he did not borrow money from the ANZ Bank. He instead borrowed money from the National Australia Bank but he denied having a loan of $600,000 to $700,000 from that bank. 669Mr Rafeletos admitted he did tell the appellant that he was looking at changing his residential property and buying another house. However, he denied he was in financial trouble, although he agreed that the appellant told him he needed to prepare tax returns for the 1997 and 1998 financial years as the bank would require them in order to refinance. He accepted that the appellant prepared accounts for the years ended 30 June 1997 and 1998 and helped to incorporate Garfield Gourmet Foods Pty Ltd. 670He denied that he was employed by Garfield Gourmet Foods Pty Ltd from March 1997 to June 1997. 671Mr Rafeletos confirmed in cross-examination that he did not know the appellant when he purchased the properties in Canterbury Road, Canterbury. He was shown a statement he made in April 2005 which said, "When we purchased the rental property we requested Angelos to arrange finance for the purchase. The finance was arranged through the National Australia Bank. Maria and me paid Angelos fees of about $20,000 for this service". He stated that the fee was not paid in respect of Canterbury Road, Canterbury, but rather for fees when he and Mrs Rafeletos bought a property at Kirrawee in 1999. He agreed that he paid the appellant $20,000 for the services he provided in respect of this transaction. 672Mr Rafeletos accepted that he did not receive a group certificate from Garfield Gourmet Foods in 1997. He stated that it was his business and he was running it and was drawing a wage from it after the bills were paid. He stated that he worked the whole of 1997 in that business. 673Mr Rafeletos denied that he signed an authority to deposit the refund cheque into the account of Ramace. He denied that it was paid into that account to cover fees of $18,000 for organising the refinancing on a Condell Park property, to offset against bookkeeping and accounting fees and for payment for preparation of tax returns. He also denied that he knew he was going to receive a tax refund for the 1997 and 1998 years. 674In relation to the tax returns lodged on behalf of Mrs Rafeletos, he stated that she was never employed as a waiter and never worked for Ladadika. He said that in 1997 she was working part time at the Garfield Gourmet Foods shop. He said he never told the appellant his wife earned anything. 675He said the appellant never told him he received a tax refund for his wife and denied that the signature on the authority to deposit her tax refund into the Ramace account was her signature. He expressly denied that his wife worked for the nine month period from 1 July 1997 to 31 March 1998. 676In his examination in chief the appellant said he met Mr Rafeletos in 1993. He stated that in 1998 Mr Rafeletos told him he wanted to buy a property and asked him to arrange finance. He said that at the time he was doing accounting work for Garfield Gourmet Foods and preparing rental schedules in relation to commercial properties at Canterbury. 677He stated that Mr Rafeletos told him that the staff at Garfield Gourmet Foods were being paid in cash. He said the documents he received from Mr Rafeletos were used to prepare schedules of income and expenditure and profit and loss. He stated that he charged a fee for the refinancing of $18,000 or $20,000 payable as soon as he organised loan approvals. 678The appellant stated that Mr Rafeletos signed an electronic lodgement declaration and tax returns in his office. He acknowledged that the tax return so far as it said that Mr Rafeletos worked for Ladadika as a cook in 1997 was incorrect. He said that in fact Mr Rafeletos was working for Garfield Gourmet Foods. He stated that Ladadika was listed as a result of an error in transferring his handwritten notes into a spreadsheet. He explained the date on which employment was said to commence as being "a generic commencement date that Ladadika actually started to trade". 679He asserted that the other material on the tax return came from information supplied by Mr Rafeletos. 680So far as the 1998 return was concerned, he repeated his evidence that the reference to Ladadika as employer was inserted by mistake. He said he prepared the profit and loss statement contained in the tax return from books and records and verbal advice. He referred to the profit and loss statement showing a profit of $69,000, stating that it was not a finalised document because the final document would have been included in the return. 681The appellant stated that at the time he deposited the $38,000 cheque into Ramace's account he believed that was the amount which was owed to him by Mr and Mrs Rafeletos. He said he had a ledger from Mr and Mrs Rafeletos which he last saw in 2003. 682In cross-examination the appellant acknowledged that Mr Rafeletos' name did not appear on the Ladadika spreadsheet. He again sought to explain this away by stating that the spreadsheet was not a final document. 683The appellant sought to justify Mr Rafeletos' return in cross-examination by stating that Mr Rafeletos worked for Garfield Gourmet Foods. The appellant said in his evidence that the income came from both business and employment income. He stated somewhat surprisingly, that he believed a self-employed person can issue a group certificate. He did not suggest that Mr Rafeletos had done this. 684The appellant denied splitting income to claim tax deductions that were never paid. He stated he did not check to see if the deductions had been deducted. He said he assumed the highest rate based on the absence of an employment declaration. He claimed that he advised Mr Rafeletos of this and Mr Rafeletos said he wanted to pay tax at the highest rate. 685The appellant acknowledged there appeared to be two sets of accounts, one showing a rental income loss filed with the ATO and one showing a profit found in paper form at his office. Notwithstanding, he denied he kept two sets of accounts. He stated that the one showing a profit was prepared with Mr Rafeletos when he initially gave him advice. He said that when he received the documents he prepared the final statement. He acknowledged that he sent what he described as interim figures to the bank, saying the bank wanted them even though they were interim. 686He denied that the return he sent to the bank showed the true position. (c) Consideration (i) Count 19 687The return for Mrs Rafeletos for the 1997 year was lodged on 13 November 1998, some 12 months after Ladadika ceased trading. Further, as with a number of the earlier counts, the name of Mrs Rafeletos did not appear on the Ladadika spreadsheet. I have already indicated why in those circumstances I am satisfied beyond reasonable doubt that the claim that Mrs Rafeletos derived income from Ladadika from which tax was deducted and paid to the ATO was false to the knowledge of the appellant. 688Mrs Rafeletos denied that she earned any income during the year in question. That denial was supported by her husband who said she was paid a weekly allowance for shopping of $150 to $200 per week. Mrs Rafeletos put this allowance at $200 to $300 per week. 689Although such amounts would not be assessable income in the hand of Mrs Rafeletos, it may have provided some justification for the statement of income in the tax return and standing alone gives rise to a reasonable doubt on this count. However, there was no justification for the claim for the tax instalments deducted. Mr Rafeletos said no tax was deducted from any payment made out of Garfield Gourmet Foods, while the appellant's justification again was his assumption that tax was deducted and paid to the ATO at the top marginal rate. There was, in my opinion, no substance in the purported justification. I have set out reasons for reaching this conclusion in relation to earlier counts and those reasons apply equally in the present case. 690In these circumstances, I am satisfied beyond reasonable doubt that the evidence in relation to this count proves that the material prepared by the appellant to the effect that Mrs Rafeletos was employed by Ladadika and had instalments of $5,922.94 deducted from her income, was false to the knowledge of the appellant. 691Further support for this appears from the profit and loss statements for Garfield Gourmet Foods for the year ended 30 June 1997 which were prepared by the appellant and found in his possession. Those accounts show a gross figure for wages in the sum of $10,014 and provide no justification for the wages said to be earned or the tax deducted. 692In these circumstances it is not necessary to deal with the claim for the loss on the rental property. Even if the loss claimed could not be said beyond reasonable doubt to be false to the knowledge of the appellant, the fact remains that the evidence proved beyond reasonable doubt that the return was false to the knowledge of the appellant so far as the statement of income and instalment deductions were concerned. 693Nor is it necessary to form any view as to what if any monies were owed by Mrs Rafeletos to the appellant or Ramace. Whatever the position was, the fact remains as intended by the appellant that the money was paid to Ramace for its benefit whether in repayment of outstanding fees, a loan or otherwise. There is no suggestion that the appellant did not intend this to occur. 694It follows that in my opinion, the evidence establishes the offence the subject of Count 19 beyond reasonable doubt. (ii) Count 20 695For the reasons given in relation to Count 19, I am satisfied beyond reasonable doubt that the inclusion of Ladadika as the employer of Mrs Rafeletos and the claims that tax had been deducted were false to the knowledge of the appellant. 696I am also satisfied beyond reasonable doubt that Mrs Rafeletos to the knowledge of the appellant did not earn income of $19,069 for the year in question. Each of Mr and Mrs Rafeletos denied this. Further, the appellant had in his possession a draft tax return for Mrs Rafeletos which he had prepared for the purpose of showing to a lender which did not claim that she earned any income from Garfield Gourmet Foods. The appellant submitted this return to support a loan application saying that it contained what he was told by Mr Rafeletos, but that it was an interim return before he saw the books and records. There were no books and records found in his possession which confirmed this information. 697Further, I am satisfied that the amount claimed for rental loss in this year was false. Mr Rafeletos said that the properties leased out by him and Mrs Rafeletos produced a profit. As I indicated, Mr Rafeletos was shown a rental schedule in the appellant's possession showing a net profit of $11,176. He stated that the figures in that schedule were "pretty close". The appellant's only explanation for these figures was that they were interim figures. However, he acknowledged that he sent them to a bank for the purpose of refinancing. There is nothing to suggest these figures are interim figures and I am satisfied beyond reasonable doubt that the figure in the tax return was false to the knowledge of the appellant. 698Once again, I am satisfied that Ramace was intended to be the beneficiary of the refund which flowed from the lodgement of the false tax return. 699It follows, in my opinion, that the evidence demonstrates that this count was established beyond reasonable doubt. (iii) Count 21 700As with Mrs Rafeletos, Mr Rafeletos' name did not appear on the Ladadika spreadsheet. I have already set out why this totally underpins the foundation of the mistake the appellant claimed he made. I am satisfied that the appellant was aware that the material he prepared for the purpose of the tax returns, including the replacement group certificates, were false insofar as they nominated Ladadika as the employer of Mr Rafeletos. 701I am also satisfied beyond reasonable doubt that Mr Rafeletos did not earn any employment income during the year in question. He said he was a sole trader for the year and did not work for Garfield Gourmet Foods. That company was only incorporated in March 1997. There was no material to contradict the statement that Mr Rafeletos did not work for the company during that year. Indeed, the profit and loss statements prepared by the appellant for the business state that it was conducted for the period 1 July 1996 to 30 June 1997. The tax returns for the subsequent year continue to state that Mr Rafeletos carried on the business as a sole trader. 702Further, there is nothing to suggest the deductions in the amount claimed were made. Mr Rafeletos denied that any tax was deducted and paid during the year in question and the evidence does not suggest that the appellant had any basis for concluding that tax had been deducted at the highest marginal rate and paid to the ATO. The only conclusion which can be reached having regard to the insertion of Ladadika as the employer in the return and the fact there was nothing to suggest that Mr Rafeletos earned any employment income during the year in question, is that the statement of employment income and tax deductions in the return were false to the knowledge of the appellant. 703Mr Rafeletos denied that his business made the loss alleged and that the rental loss claimed was correct. However, having regard to the conclusion which I have already reached on this count, it is unnecessary to consider these issues. 704Further, for the same reasons given in relation to the counts in respect of Mrs Rafeletos, I am satisfied beyond reasonable doubt that the material was prepared to enable Ramace to secure the refund. 705It follows that I am of the opinion that the evidence establishes this count beyond reasonable doubt. (iv) Count 22 706For the same reasons as given in relation to Count 21, I am satisfied beyond reasonable doubt that the appellant was aware that the material, including the replacement group certificate, showing that Ladadika was the employer of Mr Rafeletos, was false. What I have said in relation to Count 21 is supported by the surprising comment by the appellant that he inserted the date for the commencement of such employment and the group certificate as "a generic commencement date that Ladadika actually started to trade". 707Mr Rafeletos denied that he was employed by anyone during the year in question. The appellant claimed that as Mr Rafeletos was a self-employed person he was entitled to issue himself with a group certificate. His claim that Mr Rafeletos told him that he wished to pay tax at the highest marginal rate is quite unbelievable. I am completely satisfied that the tax deductions claimed were false to the knowledge of the appellant. 708Further, I am satisfied in this case that the claimed business loss was false to the knowledge of the appellant. The appellant had in his possession alternative profit and loss accounts for the business, the one that was not used in the return showing a profit of $69,989. Mr Rafeletos said this was incorrect as was the one lodged with the return. The only explanation the appellant could give was that the one showing a profit was an interim return. I am satisfied that both were false to his knowledge, the one showing a loss being prepared for the purpose of a false tax return and the one showing a profit with the note "Rafeletos loan refinance" prepared for the purpose of obtaining a loan. 709I dealt with the claim for the loss of rental income when dealing with Count 20 in respect of Mrs Rafeletos. For the reasons given in respect of that count, I am satisfied beyond reasonable doubt that the loss claimed was false to the knowledge of the appellant. 710In these circumstances, I am satisfied the evidence establishes this count beyond reasonable doubt. Count 23 - Mr Elijah Magliveras - Income tax return for year ended 30 June 1998 Count 27 - Mr Elijah Magliveras - Income tax return for year ended 30 June 1997 (a) The summary 711Unlike the charges dealt with above, these two counts involve an attempt to defraud the Commonwealth. 712The summary in respect of Count 23 discloses that an income tax return for the year ended 30 June 1998 was lodged on behalf of Mr Magliveras on 11 December 1998. It discloses receipt of income in the amount of $29,984 from employment with Ladadika together with tax deductions in an amount of $14,092.48. It also records that Mr Magliveras incurred a loss of $24,074 from the business Master Auto Trim. 713The summary also discloses that there was in the appellant's possession a trading profit and loss statement for 1998 for Mr Magliveras showing a net loss of $22,739, a hardcopy tax return in the same form as the one lodged and a tax calculation showing a refund of $14,092.48. 714The summary also discloses that the appellant had in his possession a letter dated 4 August 2000 from the ATO addressed to Mr Magliveras at the Canley Vale PO Box, together with a notice of assessment for the 1998 year dated 8 March 2001, also sent to Mr Magliveras at that address. 715The summary for the 1997 tax return reveals that the return was lodged on 15 January 1999, that is after the 1998 return. It discloses income received from Ladadika of $16,484 from which $7,747.48 was deducted. It also discloses a business loss of $8,933 from Master Auto Trim. 716The summary also discloses that both the appellant and Mr Campos had in their possession a document with handwriting entitled "Elijah Magliveras T/as Master" listing an occupation as "Motor Trimmer" and "Ladadika occupation Handy Man stage decorator". In addition, the appellant had in his possession both in hardcopy and on his computer a trading and profit and loss account for 1997 for Mr Magliveras trading as Master Auto Trim showing a net loss of $15,321 compared to the loss of $8,933 shown on the return. 717In addition the summary discloses that the appellant had in his possession a hardcopy tax return in the same form as that electronically lodged, a tax calculation showing a refund of $7,467.28, a letter from the ATO addressed to Mr Magliveras at the Canley Vale PO Box dated 4 August 2000 and a notice of assessment dated 8 March 2001 again addressed to Mr Magliveras at the Canley Vale PO Box address. 718As I indicated, these offences related to attempts to defraud the Commonwealth. On 4 August 2000 the ATO wrote to Mr Magliveras care of the Filocamo & Associates Canley Vale PO Box address. The letter was marked for the attention of Mr Lopez. The letter demanded a statement of details of business income for the tax years in question, a break up of all other expenses and profit and loss statements. It also required reconciliations for group tax for the years in question and also for the year ended 30 June 1996, together with copies of group certificates supplied to employees (presumably by Ladadika). 719The letter stated that unless that material was received within 14 days, the deductions claimed were likely to be disallowed. 720The summary discloses the letter was in the possession of the appellant. On 8 March 2001 the ATO issued a notice of assessment to Mr Magliveras at the Canley Vale PO Box address, for the years ended 1996, 1997 and 1998. The net effect was that the assessment for 1997 assessed a liability to tax including outstanding liabilities for the year ended 30 June 1996 in the sum of $82,187.62, whilst the assessment for 1998 including amounts outstanding in 1996 and 1997 amounted to $75,770.25. That letter and these assessments were in the possession of the appellant. (b) The evidence 721In his evidence in chief Mr Magliveras said that he worked in the motor trimming business for 20 years and for the period 1997 to 1999 he was running his own business Master Auto Trim. 722Mr Magliveras said he first met the appellant in 1998 or 1999. He was introduced to him by Mr Lagomigis. He said at the time his business was not doing well and the appellant told him he could help him to organise it better. 723Mr Magliveras also stated that at the time he was having personal financial difficulties and he borrowed $5,000 to $7,000 from the appellant. He stated that he could not recall if the loan was made by cash or by cheque or if he signed anything in relation to the loan. 724Mr Magliveras said that he gave all his business books and records to the appellant including his wage books. He stated that he was asked by the appellant to sign various documents. Mr Magliveras also said he thought the appellant did his personal tax returns. 725Mr Magliveras said he could not remember when he borrowed the $5,000 to $7,000 but thought it was in 2000. 726Mr Magliveras stated that on occasions he met the appellant a Ms Cindy English was also present. He stated that Ms English, his former girlfriend, helped him out with the paperwork for his business. 727Mr Magliveras stated that the appellant talked to him about incorporating his business. He stated that he understood that a company Master Auto Trim Pty Ltd was incorporated and that he became a director. The evidence adduced demonstrated that company was in fact incorporated on 7 July 1999, that is outside the period the subject of the tax returns. 728Mr Magliveras was referred to the fact that Ms English was named as a director and secretary of the company. He stated that he did not ask Ms English to become a director. 729Mr Magliveras said that in the year ended 30 June 1997 he had no income apart from that which he received from Master Auto Trim. He stated he never worked for Ladadika. He stated that Master Auto Trim was making a loss and he could not recall what money he took out by way of wages in that year. 730Mr Magliveras said that in the year ended 30 June 1998, he had no other income other than that which he received from Master Auto Trim. He said he did not work for Ladadika. 731On being shown the tax return lodged for the year ending 30 June 1998, Mr Magliveras said he had no knowledge of the Canley Vale PO Box address. He said he did not recognise the listed tax agent, Mr Filocamo. He denied that he received income of $29,984 from Ladadika or from his own business. He stated that the listed tax deductions of $14,092 were not true. 732Mr Magliveras was referred to the income and expense statement for Master Auto Trim which accompanied the 1998 tax return. He stated that the income of around $97,000 was incorrect, it was a lot less. He also said the expenses of around $121,000 were not true. In particular, he said the cost of sales of around $57,000 was not right and he did not know anything about the item "all other expenses" of $33,588. Ultimately, however, he said he was not sure about the overall loss of $24,074. 733Mr Magliveras was shown a notice of assessment for the year ended 30 June 1998 which showed a refund of $5,759.61. He denied that he ever received the notice of assessment or ever received such a refund. 734Mr Magliveras was also shown a handwritten note headed "Elijah Magliveras t/as Master Auto Trim". He was unable to recognise the handwriting on the page or say that the tax file number which appeared on the page was his tax file number. However, he denied the truth of what was written in the last line of the page "Ladadika occupation handy man - stage decorator". He stated that he never told the appellant that he was employed in that occupation. As the summary discloses, that document was one of the documents found in the appellant's office. 735Mr Magliveras was shown an authority to deposit his tax refund for the year ended 1998 into the account of Ramace in repayment of a loan given by that company to him. He said he had no recollection of signing the document or of discussing its contents with the appellant. He said the signature was not exactly like his. 736In relation to the 1997 return Mr Magliveras denied that he was employed by Ladadika or anyone else in 1997 or that he earned income of $16,484 from which $7,747.48 tax instalments were deducted. 737In relation to the profit and loss statement which accompanied the tax return, he stated that the total business income of $101,986 was incorrect. He said it would have been a lot less. He stated that the list of business expenses of $110,919 was incorrect. He was shown an authority to deposit a tax refund cheque into the account of Ramace and said that he did not recall signing it and that the appellant never told him he could expect a refund. 738Mr Magliveras said he knew nothing of the letter to him from the ATO of 4 August 2000 or of the subsequent notices of assessment in respect of the 1997 and 1998 years. 739In cross-examination Mr Magliveras agreed that he went to the appellant's office in 1998 with his sister Alexandra. He said both Alexandra and Ms English were helping with the books. He agreed that at the meeting he asked the appellant to be his accountant and to lend him some money. 740He stated that he had no idea that Ms English became a director of Master Auto Trim Pty Ltd. 741Mr Magliveras was asked if the loan from the appellant was for $17,000. He was shown a loan agreement between him and Ramace and he confirmed that the signature on the loan agreement was his. 742In cross-examination Mr Magliveras said he could not recall asking the appellant in 1998 to prepare tax returns for the 1997 and 1998 financial years, giving personal details to the appellant or signing completed tax returns. He also stated he did not recall signing electronic lodgement declaration forms. 743Mr Magliveras denied that he earned an income from Master Auto Trim, saying that it was his business. 744Ms Cindy English gave evidence to the effect that she was Mr Magliveras' girlfriend during the period 1999 to 2000. She said that he was operating a business Master Auto Trim and she assisted with the bookwork including the wages book. 745Ms English stated that she accompanied Mr Magliveras to the appellant's office in the middle of 1999. She stated that Mr Magliveras was having financial difficulties and the appellant had a solution to help him fix his business. She said she did not understand the solution. 746Ms English stated that she believed at the time that Master Auto Trim was a sole trader and that the appellant discussed incorporating at the meeting. She remembered signing a document at the meeting but she was not sure what it was as she did not read it before she signed it. 747Ms English stated she did not agree to become a director of Master Auto Trim Pty Ltd. She recalled stating she did not want to be responsible for the business. She said the appellant stated someone was needed to be the secretary. Ms English said that after she received a letter from ASIC in late 2000 stating that she was a director of Master Auto Trim she had no further contact with the appellant. 748In his evidence in chief the appellant said that he met Mr Magliveras in 1997 through Mr Lagomigis. He said that Mr Magliveras was operating Master Auto Trim. He stated that in 1998 he began helping him with the books. He said at the time Mr Magliveras' sister was doing the books. 749The appellant said it was agreed between him and Mr Magliveras that the appellant would take over the books of the business. The appellant said he set up office procedures and computers and prepared financial statements. He also said he made a loan to Mr Magliveras and referred to a written loan agreement. 750The appellant stated that he loaned Mr Magliveras $17,000 for business purposes. He said some was paid back but not the total, as Mr Magliveras went into an arrangement under Pt X of the Bankruptcy Act 1966 (Cth). He stated that he discussed tax returns with Mr Magliveras and followed what was described in his evidence as normal practice in relation to the "employment of tax agents' forms" and "ELS forms". The appellant was referred to the replacement group certificate which described Mr Magliveras' employer as Ladadika and his occupation as motor vehicle trimmer. He said the occupation description was correct but the reference to Ladadika was a mistake. He stated that he prepared the profit and loss statement for the year ended 30 June 1997 showing a loss of $15,321 from verbal advice from Mr Magliveras and from books and records. He did not identify what those books and records comprised. 751The appellant was shown the handwritten note "Elijah Magliveras t/as Master Auto Trim" to which I have referred to above. He acknowledged that it was in his handwriting. When asked to explain why at the foot of the document it said "Ladadika occupation handy man - stage director" he said the document had been prepared for Mr Campos for his information again because a replacement group certificate was prepared. He said that was why it was on the document, it really was a mistake and it should have been noted that Mr Magliveras was working for Master Auto Trim. 752He was shown another copy of that document which had certain writing beneath the reference to the Ladadika occupation and identified that additional writing as that of Mr Campos. 753In relation to the incorporation of the business, the appellant claimed Ms English volunteered to be a director as she wanted to borrow funds from him for the company to pay back on her behalf. 754So far as the 1998 tax return was concerned, the appellant acknowledged it was incorrect to state that Mr Magliveras worked for Ladadika. He said that the error occurred because the group certificate was produced under Ladadika. He stated that Mr Magliveras may have drawn a wage of $250 to $350 per week. He said the gross wage was calculated in the usual manner. 755In relation to the profit and loss account for the 1998 financial year, he stated that it was for half the year due to the incorporation of the business. It should be noted that the profit and loss statement is expressed on its face to be for the full year and that the company was not incorporated until 7 July 1999, some seven days after the expiration of the financial year in question. 756The appellant was asked about the notice of assessment dated 8 March 2001 to which I have referred above. He stated that the only explanation he could give was that the ATO allowed the income but not the deduction. 757In cross-examination the appellant acknowledged that Mr Magliveras did not appear on the Ladadika wages spreadsheet. As I indicated before, he stated that the spreadsheet had been updated. 758The appellant stated that he knew that Mr Magliveras was an auto trimmer and did not work at Ladadika. He explained his description of him as a motor trimmer and handyman/stage decorator at Ladadika as a mistake. He said he picked it up from the spreadsheet, although he acknowledged that the spreadsheet did not tell him the occupation. 759As I indicated, he agreed that Mr Magliveras was not on the spreadsheet but maintained that he was sure he would have picked it up from the spreadsheet. He stated that Mr Magliveras came to speak to him about his financial difficulties and he drew his (Mr Magliveras') attention to his income of $29,400 disclosed in the tax return for the 1998 financial year. 760The appellant claimed in cross-examination that he would have told Mr Magliveras of his entitlement to a refund of $5,759. 761In relation to the letter from the ATO of 4 August 2000, the appellant stated that he did not initially receive it from the ATO. He then said that he had seen the letter but could not recall its contents. He finally stated he did not provide the information to the ATO because he did not have it at the time. He stated that was why he wrote on the note "call Alex for paperwork". He said supporting documents did exist but he did not have them. 762In cross-examination he reaffirmed that it was an honest mistake telling Mr Campos about Mr Magliveras and Ladadika along with his occupation. He reaffirmed that the figures correctly reflected what Mr Magliveras earned from Master Auto Trim. He acknowledged he was self-employed. 763In cross-examination in relation to the tax return filed on behalf of Anastasia Bouzianos, the subject of Count 3, the appellant claimed that he made seven honest mistakes. He said the first mistake was preparing a false group certificate, the second sending it to Mr McDonald, the third mistake was failing to notice the error when Mr McDonald sent the statement of earnings reflecting the incorrect group certificate back to him, the fourth mistake was sending the statement of earnings and replacement group certificate to Mr Campos, the fifth was having an electronic lodgement declaration signed containing the incorrect information, the sixth was on receipt of documents containing incorrect information from Mr Campos having the client sign them and the seventh was sending that signed incorrect material back to Mr Campos. In cross-examination in relation to the return lodged on behalf of Mr Magliveras for the 1998 year, the appellant claimed he made the same seven mistakes along with an additional mistake, namely, writing in hand that Mr Magliveras was employed by Ladadika as a handyman/stage decorator. (c) Consideration (i) Count 23 764This is another case where the assertion that Ladadika was inserted as the employer on the spreadsheet by mistake lacked any foundation, as Mr Magliveras did not appear on the spreadsheet. Further, whatever appeared on the spreadsheet, there was no basis for describing the Mr Magliveras' occupation as handyman/stage decorator. On the appellant's own evidence the occupation did not appear on any spreadsheet. 765In those circumstances, the only conclusion which can be reached is that the insertion of Ladadika as the employer of Mr Magliveras was false and false to the knowledge of the appellant. It was totally improbable that the appellant made the eight mistakes referred to in par [763] above. 766Mr Magliveras denied earning any income apart from the money he took from Master Auto Trim. There was no material to suggest this was incorrect. 767The appellant's evidence that Mr Magliveras may have drawn a wage of $250 to $350 a week from the business provides no justification for the calculation of tax instalments based on the top marginal rate, particularly when Mr Magliveras was a sole trader who, on the material prepared by the appellant, had incurred a loss in the year in question. I am satisfied that the appellant knew that the claim that tax had been deducted was false and was done in an attempt to generate a refund. 768Whether or not Mr Magliveras signed the authority to deposit for the year in question, the authority demonstrates that the appellant intended Ramace to have the benefit of the refund. 769The appellant's conduct when he received the inquiry from the ATO to which I have referred above, casts further doubts on his credibility. I have set out his evidence in par [761] above. Had he believed the return was accurate, save for the mistaken reference to Ladadika, there would have been no reason for him not to contact Mr Magliveras or the ATO and inform them of the correct position. The appellant did neither. 770In these circumstances I am satisfied beyond reasonable doubt that the material in the return so far as it relates to employment by Ladadika, income received from that company and tax instalments deducted, was false to the knowledge of the appellant, the material being provided by the appellant in an attempt to defraud the Commonwealth. 771In these circumstances it is unnecessary to conclude one way or another whether the profit and loss statement for the business was prepared with the same intention. Mr Magliveras stated that the figures in the return were incorrect but also said he was not sure whether the ultimate loss arrived at was correct or incorrect. Whatever be the case it does not alter my conclusion as to the employment income. 772It follows that I am satisfied beyond reasonable doubt that the evidence established the offence the subject of Count 23. (ii) Count 27 773The 1997 income tax return for Mr Magliveras was lodged after the 1998 return. However, it followed the same pattern. It declared income received from Ladadika and tax instalments deducted. It also claimed that Master Auto Trim incurred a loss for the year in question. 774Mr Magliveras denied receiving employment income, saying his sole source of income was derived from the business of Master Auto Trim. He said that the figures in the profit and loss statement for Master Auto Trim were incorrect, although he acknowledged that the business made a loss. 775The evidence on this count covered the same area as the evidence in relation to Count 23. For the reasons given in respect of that count, I am satisfied beyond reasonable doubt that Count 27 was also made out. Count 24 - Ms Georgina Pasch - Income tax return for year ended 30 June 1998 (a) The summary 776The summary indicates that a taxation return for the year ended 30 June 1998 was lodged on behalf of Ms Pasch on 11 December 1998. The contact details shown on the return were for Mr Filocamo at the Canley Vale PO Box. The return stated that Ms Pasch derived income of $21,052 from Ladadika from which tax instalments of $9,894.44 were deducted. She also was shown as having derived income of $442 from a company Dewnip Pty Ltd (Dewnip) from which instalments of $83.50 were deducted. In addition, the taxation return indicated that Ms Pasch had incurred a loss of $5,094 from GP Food Consulting Services (GP Food). The summary records that a tax refund of $6,708.44 was received, which was deposited into the bank account of Ramace on 22 December 1998. 777The summary also records that the appellant had in his possession hardcopies of a statement of earnings for Ms Pasch signed by Mr McDonald consistent with the tax return, a group certificate for 1998 from Dewnip for wages consistent with the tax return and a group certificate for 1998 for Ms Pasch from Centrelink. He also had a statement of a termination payment of $200.39 by Club Plus Superannuation Scheme together with a group certificate for 1998 from that organisation recording a payment of $200 and tax deducted of $43.08. 778The summary also records that the appellant held both in hardcopy and on his computers, profit and loss statements for GP Food showing the net loss of $5,094. In addition, the summary states that the appellant held an authority to deposit the 1998 tax refund for Ms Pasch into the Ramace account together with a statement of assets and liabilities of Ms Pasch as at 24 November 1998. (b) The evidence 779Ms Pasch, who gave evidence under a different name, stated that between 1999 and 2004 she worked as a permanent part-time shop assistant at Downtown Duty Free. She stated that in 1998 she worked for a cabling installation company, Dewnip, in a part-time position. She said that she received a group certificate from Dewnip. This is consistent with what appears in the summary. She did not work for anyone else in the 1998 year. However, she did carry on a food consultancy business, GP Food. 780Ms Pasch said that she was in some financial difficulties in 1998 and she thought she needed an accountant. She asked the appellant to prepare her tax return for the year ended 30 June 1998. The appellant also told her that he could help in relation to borrowing money. 781Ms Pasch accepted that she must have signed some documents for the appellant. She said the appellant told her where to sign and that he would fill out the rest. She was not shown any completed tax returns for the 1998 year. 782Ms Pasch said she did not work for Ladadika, she had never heard of the name and said she did not tell the appellant she earned an income in the 1998 tax year from Ladadika. She said she made a loss from GP Food but that she believed she would not have told the appellant about the loss. 783She was asked about the 1998 tax return and she said it was accurate so far as it referred to the income earned from, and tax instalments deducted by, Dewnip. However, apart from that she stated it was inaccurate. She said she had never heard of the Canley Vale PO Box or of Mr Filocamo. She said the appellant never mentioned Mr Campos nor Messrs Gonzalez or Lopez. 784Ms Pasch said she knew nothing about Ladadika and the statement that she earned $21,052 from that company was false as was the statement that tax instalments of $9,894 were deducted. So far as the loss from GP Food was concerned, she stated that the figure of $5,094 appeared to be about right. However, she said the components of the statement of income and expenses from which the loss was calculated were not correct. In particular, she said that she did not pay rent for the financial year or carry out any repairs or maintenance. 785Ms Pasch said that the appellant did not talk about expecting a refund and never mentioned a refund just in excess of $6,700. She said she did not see the notice of assessment with a credit balance of $6,708 nor was she told that the appellant had received a refund cheque. She denied telling the appellant that he could keep the refund cheque for $6,708. 786Ms Pasch was shown an authority to deposit the refund cheque into Ramace. She stated that she could possibly have signed the document but she had no recollection of doing so. She said the appellant may have loaned her $1,000 or $2,000, but no more than that. 787In cross-examination, Ms Pasch was shown a loan agreement between herself and Ramace for a loan of $4,500. She stated that it could be her signature on the loan agreement and she might have received the loan of $4,500. She was shown an additional document evidencing another loan of $2,000 and it was suggested to her that a further loan was given to her by way of a cash cheque from Ramace. She responded that was what the document said but she could not recall it. 788Ms Pasch agreed in cross-examination that she asked the appellant to do the accounts for her business. However, she denied that the appellant told her that Mr Campos would prepare the tax return. 789It was suggested to Ms Pasch that she worked for a company European Enterprises trading as Rendezvous. She denied she worked as a hostess for that company or a business carried on by it known as Rendezvous. 790In re-examination Ms Pasch stated that she had no recollection of receiving more than $2,000 or so from the appellant. 791In his evidence in chief the appellant said he was the accountant for European Enterprises. He said Ms Pasch requested a loan. He said she had a small business and she also asked him to do her accounting work. 792The appellant said he issued invoices for his work. He said that he loaned Ms Pasch approximately $6,500 in 1998. He said that at around the same time the loan agreement for $4,500 was signed he lent Ms Pasch an additional $2,000 to pay some personal and business expenses. 793He said that the loan agreement was signed by Ms Pasch and that it was repaid in full. In relation to the 1998 tax return, he was asked whether he followed his "usual practice as to explaining the details, and so forth". Presumably this was intended to refer to explaining to Ms Pasch that Mr Campos would be the tax agent for the purpose of preparing her return. In relation to the income and expenses statement for GP Food, the appellant said the information to complete the statement was supplied by Ms Pasch. 794The appellant agreed that it was incorrect to say that Ms Pasch worked for Ladadika. He stated that she worked as a hostess for European Enterprises, a company that was eventually put into administration. 795The appellant said that in accordance with his usual practice, once he received the notice of assessment for Ms Pasch with a tax refund cheque attached he would have told her that he had received the refund and banked it into the Ramace account. He claimed that at the time he banked the refund cheque Ms Pasch owed him $6,500 which was paid out of the tax refund. 796In cross-examination he acknowledged Ms Pasch did not appear on the Ladadika spreadsheet, saying that there must have been an updated version. However, he subsequently stated that he could not recall if he put Ms Pasch's name on the Ladadika spreadsheet or whether he prepared a replacement group certificate. However, he agreed that the information he passed onto Mr Campos must have said that Ms Pasch worked for Ladadika, otherwise it would not have appeared on the return. 797The appellant asserted in cross-examination that Ms Pasch did work for Rendezvous. He said that he did not control the company running Rendezvous, European Enterprises, but that it was controlled by a Nick Nicolau. He said that he was the accountant for European Enterprises. 798The appellant stated that he saw Ms Pasch at Rendezvous in the public area and as far as he knew she worked there. He stated that both Mr Nicolau and Ms Pasch told him that she worked there. 799The appellant said he did not check to see if tax was in fact deducted but assumed that it had been. He stated that the income figure of $21,000 was from Mr Nicolau which he did not check with Ms Pasch. He agreed that even if she earned $250 to $300 per week that only equated to a maximum annual salary of $15,600. In fairness to the appellant, although it was put to him in cross-examination that he had said Ms Pasch earned between $250 to $300 a week, in fact he said she earned between $300 and $400. (c) Consideration 800This is another count where the taxpayer's name did not appear on the Ladadika spreadsheet. The explanation given by the appellant for what he described as an innocent mistake again lacked any foundation. Although the appellant again stated that there may have been a later spreadsheet, in this case he acknowledged that Ms Pasch's name may never have appeared on the spreadsheet. 801The appellant acknowledged that he informed Mr Campos that Ms Pasch worked for Ladadika. I am satisfied beyond reasonable doubt that in so doing he knew the information was false. 802I am also satisfied beyond reasonable doubt that Ms Pasch to the knowledge of the appellant did not earn employment income of $21,052. Ms Pasch denied it and there was no material to suggest that contrary to her denial she worked as a hostess at a bar called Rendezvous. The appellant first said that he knew she worked at that business because he saw her there, although subsequently he said he was supplied that information by Ms Pasch and Mr Nicolau. 803However, the appellant gave the somewhat remarkable evidence that he did not check with Ms Pasch whether she earned the income claimed and that he did not check with anyone to see if the tax instalments were in fact deducted. 804Having regard to that material I am satisfied that the statement that Ms Pasch earned $21,052 employment income and had tax of $9,894.44 deducted was false to the knowledge of the appellant. The refund was deposited into the account of Ramace, the result intended by the appellant. 805In these circumstances I am satisfied beyond reasonable doubt that this count was established on the evidence. Count 25 - Mr Nick Fotiou - Income tax return for year ended 30 June 1998 806This was not a count where the appellant made a mistake as to the identity of the employer. However, as set out in par [843] below, it was one to which the Browne v Dunn direction the subject of Ground 2 applied. (a) The summary 807The summary in respect of this count discloses that an income tax return for the year ended 30 June 1998 was lodged on behalf of Mr Fotiou on 15 January 1999. The contact was Mr Filocamo at the Canley Vale PO Box. 808The summary discloses that taxable income of $21,747 was declared from which instalment deductions of $10,221.09 were said to have been made. The employer was Ladadika. The summary also disclosed that Mr Fotiou incurred a loss of $8,143 from a business N&P Carpentry Services (N&P). 809As stated in the summary, a taxation refund of $8,976.29 was assessed as due and a cheque in that amount was forwarded by the ATO and paid into the account of Ramace. 810The summary discloses the appellant had in his possession an electronic lodgement declaration for 1998 showing taxable income of $13,604 with tax instalments of $10,221.09 deducted. The appellant also had in his possession a tax return for 1998 in the same terms as the one lodged. In addition, there was stored on the appellant's computers three different profit and loss statements for N&P, one resulting in a net loss of $10,778, one in a net profit of $33,179 and the third a net profit of $13,337.36. (b) The evidence 811In his evidence in chief Mr Fotiou stated that in 1998 he was a carpenter carrying on business under the name N&P. 812He stated that prior to 1998 a Mr Kalletti did his tax returns. He said he did not decide to change accountants, however, he wanted to buy a property on Canterbury Road and needed to borrow $100,000 to help with the purchase. 813Mr Fotiou said that he was told by Mr Nick Tsigolis that the appellant could help. He said he thought he met the appellant in 1998 and the appellant told him that to enable him to obtain a loan approval he would need to do Mr Fotiou's 1998 tax return. 814Mr Fotiou said he took his financial records to the appellant and gave him his tax file number. He said he did not give the appellant any group certificates as he did not have any. 815Mr Fotiou said he had no other sources of income apart from income as a self-employed carpenter. He told the appellant that he had no employment income or group certificates. 816Mr Fotiou said that subsequently the appellant rang him to say the loan was approved. He said thereafter he signed a lot of documents. He said he could not remember if they included tax returns on account of it "being so long ago". Mr Fotiou said he borrowed $108,000 or $105,000 from St George Bank. He said he did not borrow any money from the appellant or Ramace to assist in purchasing the property. He stated that his understanding was that Ramace was the appellant's brokerage company. 817Mr Fotiou said that when he signed the documents the appellant was in a hurry. He did not explain the documents. He recalled him saying words to the effect, "this is all your tax paperwork, these are your loan documents, your loan has been approved, you can sign here". He said he did not have an opportunity to read the documents and he did not get copies of them. 818Mr Fotiou said that he paid the appellant around $1,000 when he went in to sign the documents. The appellant had requested payment in cash. Mr Fotiou said he did not remember if he received an invoice. 819Mr Fotiou stated that he told the appellant that N&P made a profit in 1998. He stated he never worked for Ladadika and he did not tell the appellant that he did. 820Mr Fotiou agreed that in the 1998 tax year he was withholding pay as you go tax, but believed he would have to pay more tax because he had made a profit in the 1998 financial year. He said he did not tell the appellant he was making payments from income to the ATO throughout the year. 821Mr Fotiou said he was not expecting a tax refund. The appellant did not say he should expect one. He never authorised the appellant to keep one. 822Mr Fotiou was shown the tax return lodged on his behalf. He stated that he did not know anything about the Canley Vale PO Box. He said he did not know Mr Filocamo or Mr Campos. His understanding was that the appellant was preparing his 1998 tax return. 823So far as the contents of the return were concerned, Mr Fotiou said that his occupation was correctly described as a carpenter. However, he was not employed by Ladadika. The figure of $21,747 as income earned was incorrect. His income was a little bit more than that, roughly $30,000 after tax based on what he earned in 1997 and 1999. In those years he said payment of tax was made after the returns were lodged. Those returns were not prepared by the appellant. 824Mr Fotiou said it was not correct to say $10,221 was deducted by way of instalments in respect of income earned by him. 825So far as the statement of income and expenses for N&P was concerned, Mr Fotiou said he did not make a loss of $8,143 and he did not indicate that to the appellant. He said that the business income from the carpentry business was not $46,242 and expenses of $54,385 were "way too high". 826Mr Fotiou said he did not receive the notice of assessment nor was he told by the appellant that he was entitled to a refund of $8,976. He did not authorise the appellant to keep refund payments and bank them into the Ramace bank account. 827Mr Fotiou was shown a profit and loss statement which was found on the appellant's computer showing a net loss for N&P of $10,778. He said that was not correct. In particular, he referred to the fact that expenses of around $15,600 for subcontractors were incorrect. 828He was then shown the profit loss account found on the appellant's computer which showed a net profit of $33,179. He said that that profit and loss account "looks pretty close to what I would have been earning at the time". He was then showed the third profit and loss account found in the appellant's possession showing a profit of $13,337.36. He said that was incorrect as the figure was too low. 829In cross-examination Mr Fotiou denied that he was mistaken when he said he made a profit on his business in 1998. He also denied the appellant did work for him including placing MYOB accounts on his computer. He said he did not use a computer at that time. Mr Fotiou said he was not sure whether he received invoices from the appellant. It was suggested that the brokerage fees for arranging the loan were $5,000 not $1,000. He stated that from his memory the fees were $1,000 and the $1,000 he paid to the appellant was not a part-payment. 830Mr Fotiou acknowledged that by signing the tax return he adopted its contents as true and correct. However, he denied that the appellant explained documents to him or gave him an opportunity to review them. 831It was put to Mr Fotiou that he worked for Ladadika performing carpentry services earning $443 per week. He denied that he was working at Ladadika during 1998 as a second job. He denied signing an authority to deposit the refund cheque into Ramace to offset brokerage fees of about $5,000 and bookkeeping and accounting fees due for work done for N&P. 832Mr Fotiou said he asked the appellant for copies of the 1998 return. He stated that he phoned him nine months after the lodgement of the return on a number of occasions but he did not get the documents back. 833In his evidence in chief the appellant said he met Mr Fotiou through Mr Fotiou's uncle. He said Mr Fotiou wanted to borrow money to buy a commercial property. 834The appellant said that Mr Fotiou wanted him to do the accounts for N&P so he could borrow money. He said that he charged Mr Fotiou a fixed fee. 835The appellant said he prepared a loan application through St George Bank for $130,000. He stated he was paid a fee of $5,000. He said he referred Mr Fotiou to Mr Campos in relation to the preparation of his tax return. 836The appellant said he prepared the 1998 profit and loss statement which accompanied the tax return. In particular, he said that the $15,664 entry for subcontractors came from the books provided by Mr Fotiou. 837The appellant said the difference between the accounts which showed a profit of $33,179 and those showing a loss of $10,778 was because the former were interim accounts. He said the difference in subcontractor fees resulted from having spoken to Mr Fotiou. He gave the same explanation in respect of the profit and loss account which showed a profit of $13,337. 838The appellant asserted the tax return was correct insofar as it disclosed income and deductions from employment with Ladadika. He said that in 1998 the owners of Ladadika wanted some carpentry work done and he recommended Mr Fotiou who did the work and was paid in cash. 839He said he was told how much was paid to Mr Fotiou by Mr Giannakarous. He added 48%, being the highest rate of tax, to give him the gross income. He then prepared the replacement group certificate. 840The appellant said the work carried out by Mr Fotiou for Ladadika was part-time work carried out in the early evening. 841The appellant acknowledged he received a tax refund cheque for about $8,900 in the name of Mr Fotiou. He stated that after deducting his fees for brokerage and accounting, he gave Mr Fotiou a cheque for the balance. He stated he gave Mr Fotiou invoices but said that the last time he saw them was when documents were seized by the AFP. 842As I indicated above, Mr Ibrahim denied that Mr Fotiou worked at Ladadika's premises. He was not cross-examined to say that this was incorrect. However, he did say a man named "Foti" worked there. 843In cross-examination the appellant said he knew Mr Fotiou was a self-employed carpenter. However, he said that he was not a self-employed contractor for the job with Ladadika. He stated that he was there when Mr Fotiou was employed and that Mr Fotiou did carpentry work over a period of one to two months. It was put to the appellant that he did not tell his counsel of that fact to which he said that he did not recall it at the time. This was one of the matters the subject of the Browne v Dunn direction. The appellant conceded that he could not recall when Mr Fotiou was doing the work. He said that it would have been after Ladadika was incorporated and before Christmas 1997. He reaffirmed his evidence in chief that the net income figure was given to him by Mr Giannakarous and said that he did not check whether it was correct with Mr Fotiou. 844The appellant said he could not recall which set of accounts was sent to St George Bank to obtain a loan for the commercial property. He denied he was either committing fraud on the ATO or on the bank. 845The appellant denied that the books and records he sent to Mr McDonald for Ladadika made no mention of Mr Fotiou ever being employed there. He disagreed with that proposition on the basis that he would have a spreadsheet with Nick Fotiou being included. The spreadsheet produced did not contain a reference to Mr Fotiou. Further, unlike many of the Ladadika accounts there is nothing to suggest that Mr McDonald prepared a statement of earnings for Mr Fotiou in respect of income earned from Ladadika. (c) Consideration 846There are a number of reasons why I am satisfied beyond reasonable doubt that the material prepared by the appellant which stated that Mr Fotiou was employed by Ladadika, that he derived income from that company and had taxation instalments deducted, was false to the appellant's knowledge. 847First, Mr Fotiou denied that it occurred. He stated that he worked fulltime for N&P. The appellant's statement that, notwithstanding that he was generally self-employed, when he worked for Ladadika he did so as an employee, was unconvincing. 848Second, the appellant was quite unable to state when Mr Fotiou was employed part-time by Ladadika. His ultimate position was that it was one or two months before Christmas 1997. It is inherently improbable that Mr Fotiou would have earned $21,000 for part-time work for Ladadika for a two month period. 849Third, the appellant said he obtained the information as to the income earned from Mr Giannakarous. The unchallenged evidence of Mr Ibrahim was that Mr Giannakarous left for Greece a week after he, Mr Ibrahim, commenced to work at Ladadika. It was inherently unlikely in those circumstances that Mr Giannakarous would have provided information as to the wages earned by Mr Fotiou for the purpose of preparation of a tax return lodged in January 1999. 850Fourth, the appellant stated that he did not check with Mr Fotiou as to the amount of income he earned from Ladadika or with anyone as to whether income tax was deducted. 851Fifth, the spreadsheet on which the appellant placed much reliance did not name Mr Fotiou as one of Ladadika's employees. 852These matters satisfy me beyond reasonable doubt that the return was false to the knowledge of the appellant so far as it stated that Mr Fotiou worked for, earned income from and had tax instalments deducted by Ladadika. 853Further, I am satisfied beyond reasonable doubt that the business loss claimed in respect of N&P was incorrect. Mr Fotiou stated he made a profit in that year. The appellant had in his possession another profit and loss statement for the business which disclosed that it made a profit of $33,179. The appellant said the accounts were interim accounts but did not state the information which led to the adjustment. I am satisfied in those circumstances that the profit and loss statement lodged with the tax return was false to the knowledge of the appellant. 854The refund cheque was banked by the appellant into the account of Ramace. 855In these circumstances I am satisfied beyond reasonable doubt that the evidence proved this count. Count 26 - Ms Tina Maiorana (Leas) - Income tax return for year ended 30 June 1998 (a) The summary 856The summary in respect of Ms Maiorana discloses that a tax return for the year ended 30 June 1998 was lodged on 15 January 1999. It stated that she derived income of $46,589 from Ladadika with tax instalments of $21,896.83 being deducted. It also stated that she incurred a $24,023 loss from a business, Designex Lighting & Furniture (Designex). The summary states that she became entitled to a tax refund of $17,939.26 which was banked into the account of Ramace. 857The summary also discloses that although no hardcopy documents were obtained from the appellant in relation to Ms Maiorana, there was obtained from his computers three profit and loss accounts for Designex, one showing a net loss of $23,464, one showing a net loss of $22,156.69 and one showing a profit of $25,510. (b) The evidence 858Ms Maiorana gave evidence that in 1997 she was self-employed. However, she stated that her business activities were carried out through a company, Designex Lighting and Furniture Pty Ltd (the company). 859She stated that she consulted the appellant in around September 1997. She told him that the company was not doing well and she wanted him to wind it up for her, fill in the appropriate paperwork and tie up all loose ends. She also asked the appellant to fix up any of her tax requirements. She stated that she gave him all her papers and her tax file number. 860Ms Maiorana said she had a need for loan money. She borrowed $15,000 through the appellant. She was not sure how it was organised, although she thought it was through solicitors. She had to make repayments of about $600 per month. She stated she made these payments by handing them to the appellant's receptionist in cash. She stated she made monthly payments of $600 for around 10 months. She then lapsed but nobody ever contacted her. She said that the appellant never contacted her to say that she owed him money. 861Ms Maiorana said she hired another accountant towards the end of 1997. 862Ms Maiorana stated that she could not recall taking any income from the company in 1997. She was not an interior decorator whilst running that company. She denied that she ever worked for Ladadika. On being shown the tax return for the 1998 year Ms Maiorana said she knew nothing about the Canley Vale PO Box address and knew nothing about Mr Filocamo. She stated that she had never heard of Mr Campos. She stated that in the 1998 financial year she was a lighting consultant but the description of her as an interior decorator may be a generalisation. 863She stated that she was not employed by Ladadika and did not receive around $46,500 in income from Ladadika or any other source. 864Ms Maiorana stated her income for the 1998 year was less than $46,500. However, she could not state how much less she would have earned because she was confused about how long she was out of work. She stated she knew her company was wound up in 1997 and she got a job after that but it may have been six months or a year later. However, she stated she did not work for Ladadika or earn money from that company. 865Ms Maiorana denied that any tax was being deducted on her behalf whether by Ladadika, Designex or any other entity. 866So far as the loss disclosed as business income was concerned, Ms Maiorana stated it was probable that a loss of about $24,023 was incurred by Designex in the year ended 30 June 1998. She was referred to the statement of income and expenses which accompanied the tax return and stated that the figure of $108,458 for gross income and that of $132,481 for expenses sounded about right, although she could not be sure how accurate they were. 867It should be noted that the statement of income and expenses made no provision for wages, although $25,713 was included as other expenses. The profit and loss statements retrieved from the appellant's computer showing a loss of $22,156.69 was a profit and loss statement for the company for the year ended 30 June 1998. The other profit and loss statements and the statements of income and expenditure seem to have been for Ms Maiorana trading as Designex. 868Ms Maiorana said that she did not know she was entitled to a refund of $17,939. She was never told she was entitled to such a refund nor that the appellant had received a cheque in that amount. 869Ms Maiorana was shown one of the profit and loss statements retrieved from the appellant's computer, being in the name of Tina Leas trading as Designex and showing a loss of $23,454. She stated it was incorrect insofar as it stated that cash or staff to the value of $4,089 were employed, stating no other person worked for Designex during the year in question. She stated she knew nothing about rental equipment of $5,871 or an item of $1,885 for seminars and conferences. She also indicated she did not have any separate expenses for the purchase of magazines and journals. 870Ms Maiorana was also shown a profit and loss account for the company showing a loss of $22,156. In relation to that profit and loss account she denied that she hired any equipment in that year. She said that she had not seen the profit and loss statement previously. It should be noted that the profit and loss statement did not include any item for wage expenses. 871Ms Maiorana was also shown a third version of the income and expenditure statement for the year ended 30 June 1998. This was in her name trading as Designex and showed a profit of $25,510. She said she knew nothing about the item of $32,087 for salary and wages, denying that Designex paid anyone $32,000 in the year ended 30 June 1998. 872Ms Maiorana said that she ultimately approached another accountant to do her tax return for the 1998 year as it had not been completed by the appellant. She identified a tax return prepared by a firm of accountants, Hany Abdel-Sayed, as the return which was lodged. It stated that she derived no income during the year in question but incurred a loss of $10,814. Ms Maiorana stated that this was the correct return. 873In cross-examination Ms Maiorana denied that the company commenced in about April 1997. It is not clear whether she was denying that it was incorporated at that time or that it commenced to trade at that time. She acknowledged that without her books and records she could not state her income and expenses with any certainty. 874Ms Maiorana was shown loan agreements totalling $15,000 and she acknowledged this was the total loan received from the appellant. 875Ms Maiorana denied in cross-examination that she ever signed a tax return in the presence of the appellant. She said she was waiting for him to complete a return. She denied she earned any income in the 1998 financial year. She expressly denied that she earned $474 net per week in the year. She stated that she was not paid that amount by the company. She was unclear as to whether she signed an authority authorising the payment of any refund into the Ramace bank account. 876In his evidence in chief the appellant stated that he met Ms Maiorana in 1997 when she was running Designex. He stated that he prepared the profit and loss statement. Referring to the profit and loss statement which accompanied the tax return he stated that the rental expense of around $26,000 came from Ms Maiorana's books. He stated as she was working from home she was entitled to claim a deduction for rent. The appellant stated that Ms Maiorana did hire casual staff to assist her and the figure of $4,089 for this item was correct. 877The appellant attributed the differences between the various profit and loss statements to the records being interim and incomplete. He said that he completed work for Ms Maiorana in 1999. 878The appellant said that the company was incorporated in about 1998. 879The appellant stated that he loaned money to Ms Maiorana in 1998 totalling $15,000, interest on the loans would have totalled $2,000 to $2,200. He said that loan agreements were signed. 880The appellant said the loans were not paid back in full but that Ms Maiorana made a few payments. He said he kept details on ledgers but he did not know the whereabouts of the ledgers. 881He stated that it was an honest mistake that Ms Maiorana was stated to have worked for Ladadika in the 1988 year. He stated that for part of the year she was working under her Designex business name and the other part she traded as a company. The appellant stated that the income of $46,589 listed in the return in relation to Ladadika related to the company rather than the business name. It was arrived at in the usual manner. 882As I indicated, the profit and loss account for the company shows no amount for wages. 883The appellant acknowledged that he received a refund cheque for around $17,900. He said that he told Ms Maiorana he was going to deposit it under the authority she had signed. He stated there was no surplus owing to Ms Maiorana. 884In cross-examination the appellant acknowledged Ms Maiorana did not appear on the Ladadika spreadsheet. He said that it had been updated. The appellant acknowledged that he was aware that at the time the tax return was prepared, Ms Maiorana was living at home with her parents and her only income was from the struggling business which she conducted. 885He asserted in cross-examination that Ms Maiorana earned $25,000 net from the company, stating the gross income was arrived at by a calculation based on the assumption that tax at the top marginal rate had been deducted. He accepted the company was incorporated in April 1997 but stated that she conducted the business through the 1997/1998 income tax year. He explained the fact that the tax return included a statement of income and expenses for Ms Maiorana carrying on the Designex business in that year as being due to the fact that income in respect of that business carried on in the previous year was only received in 1998. This may be an explanation for income that was received but it cannot be an explanation for the expenses said to have been incurred which resulted in the loss. 886The appellant acknowledged that the net income said to have been drawn from the company was greater than the $23,000 loss it was said to have incurred in the financial year. I have already indicated that no such income was taken into account in the calculation of that loss. 887The appellant disagreed that the figures in the return prepared by Ms Maioranas' subsequent accountant showed the correct position. He also denied that he sought to split Ms Maiorana's income to generate the highest possible return. (c) Consideration 888Once again this was a case where the taxpayer's name did not appear on the Ladadika spreadsheet. In these circumstances as I have indicated previously, the foundation for the claim made by the appellant that he made an honest mistake in stating that Ms Maiorana worked for Ladadika is undermined. 889Ms Maiorana denied any tax was deducted on her behalf during the 1998 tax year. She also stated that she could not recall receiving any income from the company in 1997 and her income was much less than $46,589. 890Although the appellant maintained that Ms Maiorana received $46,589 from the company for the year in question, the profit and loss account for the company which he prepared for that year showed no deduction for wages. Further, the total gross income for the company as stated in that profit and loss account, was less than $46,589. In these circumstances, there was no basis for the appellant to hold the belief that Ms Maiorana was paid $46,589 by the company for the year in question. Further, there was no basis for the appellant to believe that tax deductions in the amount of $21,896.83 had been made. 891Further, the appellant gave inconsistent evidence as to when Mr Maiorana was carrying on her business under the company name or as a sole trader under the Designex business name. He initially said she carried on business for only part of the year under the company name which made the wages payment even more unlikely. Ultimately he said the company carried on the business for the whole year. He was unable to say how it was that the business of Designex incurred expenses of $132,481 in the year in question as claimed in the return. 892The refund of $17,939.26 was paid into the bank account of Ramace. As the appellant stated at par [883] above, none was paid to the taxpayer. 893In these circumstances I am satisfied beyond reasonable doubt that the appellant prepared the material concerning the employment of Ms Maiorana, namely, the identity of her employer, the amount of income received and the instalments deducted, knowing them to be false and for the purpose of obtaining a refund from the ATO for which there was no entitlement. 894In these circumstances, the evidence establishes this count beyond reasonable doubt. Count 28 - Mr Theo Akis (Theodore Theologou) - Income tax return for year ended 30 June 1998 895This was not a count where there was a mistake as to the identity of the employer. However, as set out in par [926] below, it was one to which the Browne v Dunn direction the subject of Ground 2 applied. (a) The summary 896The summary shows that a tax return was lodged on behalf of Mr Akis on 3 August 1999. It discloses employment income of $62,115 received from Ladadika with instalment deductions of $29,815.20. It discloses a loss of $28,893 from a business carried on by Mr Akis, Theodore Investigations. 897The summary discloses that Mr Akis was assessed as entitled to a refund in the sum of $23,451.39 and that a cheque in that amount was received and banked into an account described as Ramace No 2 Loan Account. 898The summary also discloses that there was found on the appellant's computer a profit and loss account for Theodore Investigations consistent with the one relied on in the tax return. 899The summary also refers to Department of Immigration records relating to Mr Akis. It shows that he arrived in Australia on 3 July 1999 departing on 4 September in that year and returning to Australia on 26 February 2001. (b) The evidence 900Mr Akis gave evidence that he was away from Australia from 1985 for 15 years until the end of 1999. He said he in fact returned to Australia in the middle of 1999 and came back for two or three months and then returned to Greece. He stated that he came to Australia permanently in 2000. This is broadly consistent with the immigration records. 901Mr Akis stated that from 1995 until 2000 he did not earn any income in Australia. He said before 1985 he worked in Australia as a bus driver. 902Mr Akis said he knew the appellant quite well, stating he knew him since he was aged 10 and he had in fact married his sister. He said that when he first came back to Australia he stayed with the appellant's parents for about a year. However, he never asked the appellant to do a tax return. 903Mr Akis said he never worked as a private investigator and had never heard of Ladadika. 904On being shown the immigration records Mr Akis agreed he was not in Australia between 1 July 1995 and 3 July 1999. 905Mr Akis was shown the tax return lodged for the 1998 year. He stated that in that year he was not living at the home of the appellant's parents. He said that he had never heard of Mr Filocamo or Mr Campos. He stated that he did not earn $62,000 in Australia in that year or have $29,800 tax deducted. He denied incurring a loss on an investigation business, stating he was not running such a service in Australia in the 1998 financial year. 906Mr Akis said he never saw the notice of assessment advising of an entitlement to a refund of $23,451. He did not receive a refund cheque. He stated he did not authorise the appellant to bank the cheque into the Ramace account. 907Mr Akis was shown documents recording him as director and secretary of companies Chalmers and Favco Pty Ltd (Favco). He denied he had any knowledge or connection with these companies. He stated that he never agreed to be a signatory on any bank account in the name of Favco and was not in Australia when an authority to operate an account addressed to St George Bank was executed. He stated that none of the handwriting on that authority was his. 908Mr Akis was shown minutes of a purported meeting of directors of Favco on 30 September 1999. He stated that none of the writing on the minutes was his and the document was not signed by him. He said that he thought the handwriting was that of the appellant but he was not sure. 909Mr Akis said that on his return to Australia he received two letters from ASIC requiring payments of annual return fees for Chalmers and Favco. He raised it with the appellant who told him not to worry about them. Mr Akis was also shown an ATO questionnaire, which was admitted as Exhibit M, which asked certain questions about his 1998 tax return. One of the answers to the questionnaire stated that he was employed by the appellant at the business Ladadika, a restaurant and nightclub. It stated that his duties were organising entertainment overseas and that he worked about 20 hours per week for Ladadika earning $700 per week which was paid in cash. The questionnaire also contained the answer that he set up his own security business. 910Mr Akis said the signature and the handwriting on the questionnaire was not his. He denied that any information in the questionnaire was correct. 911Mr Akis said he did not receive a loan from the appellant. He stated, however, that he had received a cheque for $17,000 from the appellant to bring his children to Australia. He stated the money was a gift not a loan. He also stated that the appellant bought him a car for $4,000 as a present. 912In cross-examination Mr Akis said he did not know what business the appellant was conducting. He said all he knew was that he was a rich man involved in accounting and finance. He denied that he was told that the appellant was not a tax agent or that he was referred to Mr Campos. 913He denied in cross-examination that he worked as an entertainment scout for Ladadika and that the appellant agreed to pay him $30 per hour to do that work. 914Mr Akis denied that the appellant told him he could have Favco as it was not trading. 915In cross-examination he reiterated that the $17,000 paid to him by the appellant was a gift and not a loan. Mr Akis said he did not remember the appellant making at least 10 to 15 payments for at least $3,000 into his ANZ Visa account. 916In relation to the ATO questionnaire he said it disappeared from his house. He said that relatives of the appellant from time to time used to visit him at the house, naming Mr John Giourtalis and Mr Con Giourtalis. 917In his evidence, Mr Ibrahim said he had no recollection of Mr Theologou (Mr Akis' former name) being involved in the Ladadika business. 918In his evidence in chief, the appellant said that he knew Mr Akis from Greece where he was in the security business working for himself under the name Theo Theologou. He said that Mr Akis asked him to prepare a statement of income and expenditure in relation to his business. 919The appellant stated that when he obtained information from Mr Akis he was in Australia. He said Mr Akis came to his office. He said that he also organised finance for Mr Akis to buy a unit in Bankstown jointly with his sister. He stated his fees were just costs, $1,000 to $2,000. He stated in 1998 he advanced Mr Akis $17,000. He said Mr Akis wanted to relocate and start a business in Australia. He stated he discussed tax with Mr Akis. 920The appellant said that Mr Akis asked for help with his tax return. He stated that following his normal procedures, the documents were referred to Mr Campos and returned and signed. The appellant stated that he explained the documents to Mr Akis mainly in Greek. 921The appellant said it was incorrect to say that Mr Akis worked as a private investigator for Ladadika. However, he did do work for Ladadika sourcing Greek singers from Greece. He said that Mr Giannakarous made payments to Mr Akis on his credit cards and that he saw receipts. 922The appellant said he had a signed authority to deposit Mr Akis' tax refund and did so. He stated he believed Mr Akis had gone back overseas when he received the assessment. He stated the refund was $23,400 and that Mr Akis owed him money when it was deposited for the loan and some accounting work. He said there was a surplus which remained in his account as Mr Akis wanted to buy a property when he came back to Australia. 923The appellant stated that the signature on the authority to operate a business account for Favco dated 12 October 1999 was signed by Mr Akis. He acknowledged, however, that the words "Favco Pty Ltd" were written in his handwriting. He also noted that the document was dated 30 September 1999 in his handwriting which was a time that Mr Akis was not in Australia. However, he asserted that Mr Akis was in the country when it was signed and he must have dated it later. 924The appellant also said that he believed Mr Akis was a director and secretary of Chalmers. He stated that Mr Akis wanted a company when he came back to Australia in 2000 and 2001. He said that Favco was one such company as it was not trading at the time. He also stated that he assisted Mr Akis to become a director of Chalmers. He said Mr Akis ultimately did not use either company and they were deregistered. 925In relation to the ATO questionnaire, he denied that any of the handwriting on the questionnaire was his, stating that it was that of Mr Akis. He said Mr Akis never talked to him about this document. 926In cross-examination the appellant acknowledged that Mr Akis did not appear on the Ladadika spreadsheet. As I have indicated before, his answer was that the spreadsheet he was shown might not have been the final document. The appellant stated that a tax return was lodged for Mr Akis in the 1998 tax year because he worked in Greece. He said Mr Akis told him he did not pay tax in Greece. He said he kept in contact with Mr Akis on a regular basis whilst he was in Greece and knew about his businesses. He was asked whether he told his barrister prior to the cross-examination of Mr Akis that he had made inquiries to determine if Mr Akis had paid tax in Greece and that Mr Akis said he had not paid any such tax. The appellant responded that he had not told his barrister because he had not remembered that information when he had spoken to him. This was part of the material the subject of the Browne v Dunn direction. 927The appellant said Mr Akis was entitled to declare the income in Australia because he was an Australian citizen. He stated that Mr Akis had a choice as to where he declared his income. He reiterated that Mr Akis worked part-time for Ladadika as a talent spotter. 928The appellant agreed that on his evidence Mr Akis earned about $30 per hour as a talent spotter and agreed that that involved working 40 hours every week for 52 weeks to earn an income of $62,000. He said he did not recall how many hours Mr Akis was engaged in talent spotting. 929The appellant stated that he did not calculate how many hours Mr Akis would have had to have worked to earn the amount claimed, but he said the figures were in the Ladadika ledger. He believed that the liquidator destroyed the ledger. 930The appellant agreed that Mr Giannakarous also went to Greece to do talent spotting but said that both he and Mr Akis were needed because Mr Akis was in a different part of Greece. 931In cross-examination he was again asked why Mr Akis was a director of Favco. He stated it was because he wanted to take it over when he came back to Australia. He was also asked why the Greek version of George Elliot's name (another taxpayer) appeared as a former director or secretary of Favco. He said that he also might have wanted to take it over. The appellant denied that Mr Akis was a director of Favco or Chalmers as he was unable to be a director. The appellant said he was a signatory on the bank account for Favco because Mr Akis wanted him to be a signatory. 932The appellant acknowledged that he had seen the ATO questionnaire before it was tendered in evidence. He stated he saw it with some documents. He denied that it was his handwriting on the document or that he assisted Mr Akis in completing it. He said that the $700 per week shown on the questionnaire could be reconciled with the $62,000 shown on the tax return as the $700 per week was a net figure. 933The appellant stated that he was entitled to keep the refund cheque because he had organised finance to purchase a Bankstown unit and he also gave him a loan. He stated that he believed Mr Akis was mistaken when he said he knew nothing about the $23,400 refund. (c) Consideration 934There was not the slightest basis to suggest that Mr Akis carried on the business of Theodore Investigations in the 1998 tax year. He was not in Australia during that year. The business was said to have been carried on from an address in Dulwich Hill, not anywhere out of Australia or more particularly Greece. The material was false and must have been known to the appellant, Mr Akis' brother-in-law, to be false. 935It was also false to say that Mr Akis was employed as a private investigator by Ladadika. When confronted with this the appellant said that in fact he worked as a talent spotter in certain parts of Greece. Mr Akis denied receiving any money from Ladadika in the year in question and the explanation ultimately given, that he was paid either a gross amount of $62,115 or a net amount of $32,299.80 ($62,115 less the tax instalment deduction of $29,815.20) for talent spotting in a particular part of Greece, was not credible. Even if it was accepted that Mr Akis was paid some money for talent spotting there was no basis for the claim that instalments of $29,815 were deducted. It was this amount which generated the refund and I am satisfied beyond reasonable doubt that the appellant knew that this claim was false. 936The refund was paid into the account of Ramace in circumstances where it is clear, in my opinion, that the appellant was aware there was no entitlement to receive it. It follows that the evidence proves this count beyond reasonable doubt. Count 29 - Mr Steven Venieris - Income tax return for year ended 30 June 1998 Count 44 - Mr Steven Venieris - Income tax return for year ended 30 June 1997 937This was another case where it was not alleged there was any mistake as to the identity of the taxpayer's employer. However, as set out in par [983] below, Count 44 was one to which the Browne v Dunn direction the subject of Ground 2 applied. (a) The summary 938The summary for Count 29 discloses that a tax return was lodged on behalf of Mr Venieris on 30 August 1999. It disclosed that for the year ended 30 June 1998 employment income of $29,988 was received from Ladadika with tax instalments of $14,094.36 being deducted. It also stated that Mr Venieris incurred a loss of $14,310 from conducting the business of Steven Venieris Courier & Transport Services (Venieris Courier). 939The summary discloses that Mr Venieris was assessed as entitled to a refund of tax in the amount of $12,346.12 and a cheque for that amount was deposited into the account of Ramace. 940The summary discloses that various hardcopy documents were found in the appellant's possession. They included a group certificate in respect of employment for the period 7 July 1997 to 23 February 1998, the details being consistent with what appeared on the tax return, and a statement of income and expenditure for Venieris Courier consistent with the loss claimed on the return. The appellant also held an electronic lodgement declaration for 1998 showing taxable income of $15,678 with total tax of $14,094.36. 941Income and expenditure statements similar to the one held by the appellant in hardcopy were also found on the appellant's computers. 942The summary in respect of the 1997 return shows this return was lodged on 21 December 1999, some four months after the lodgement of the 1998 return. It shows employment income in the sum of $18,136 being received from Ladadika with tax instalment deductions of $8,523.92. It also claimed a loss incurred in the carrying on of the business of Venieris Courier in an amount of $7,770. 943The summary also states that Mr Venieris was assessed to be entitled to an income tax refund in the sum of $7,611.38 for the year in question and that a cheque for this amount was banked into the account of Ramace. 944The summary discloses that there was in the appellant's possession both in hardcopy and on his computers, income and expenses statements for Venieris Courier consistent with what appeared in the tax return. It also states that the appellant held in hardcopy a replacement group certificate consistent with the tax return, an electronic lodgement declaration showing taxable income of $10,366 and tax deducted of $8,523.92, an authority to deposit refunds into the Ramace bank account dated 12 September 2000, and a facsimile coversheet on Ramace letterhead to St George Bank from the appellant instructing transfer of funds of $4,000 from "Ramace No 2 account" to "S&I Venieris (portfolio loan) account". The authority to deposit did not specify the tax year to which it related. (b) The evidence 945In his evidence in chief Mr Venieris stated that since 1972 his only occupation has been that of a taxi driver. He said he did not have any other business. In particular, he never had a business under the name of Venieris Courier. He had never heard of Ladadika and never worked with that company and he did not have a licence to drive a truck. 946Mr Venieris said he had a need for finance in 1999 and made some inquiries about getting an accountant. He said at that time he was in difficulty in repaying a home loan of $180,000 which he said was arranged through a finance company, the name of which he could not recall. 947Mr Venieris said he had a conversation with the appellant about the home loan. The appellant said he could help. Mr Venieris said the appellant rearranged his mortgage through St George Bank and refinanced for $220,000. Mr Venieris said he used the surplus after repayment of his existing loan for spending because he owed money to people who helped him. He said in addition he borrowed another $30,000 to fix up his house. He stated he only received $20,000 or $18,000 of that amount. 948Mr Venieris said that when he went to see the appellant he had not paid his tax for the previous two years. It would seem that he meant that he had not lodged tax returns. He said that the appellant told him he could help with the tax returns saying, "he can make the tax because that's his job, he is doing this job". 949Mr Venieris said the appellant told him it would cost $480 for the returns and he paid this amount in cash. He said he told the appellant that he had not paid tax for two years and the appellant told him it did not matter "we can always fix that or he knew somebody in the tax department". 950Mr Venieris said he thought the appellant told him it would cost $7,000 to pay people to "clear me up with the taxation so I can get the loan". 951Mr Venieris stated that the appellant also told him he had to pay money to a person at the bank to get the loan. He said the appellant told him he had to pay between $8,000 and $9,000 and that it was a girl who was working at St George Bank at Kogarah. He was asked if to his knowledge the $8,000 was ever paid to the girl at St George and he responded: "I never seen any papers. I don't know what is going on, I mean I say yes because I am desperate otherwise I would lose the house." 952Mr Venieris said he understood the money to make those payments came out of the $40,000 over and above the money required to pay out his existing home loan. 953Mr Venieris referred to the fact that the appellant had given him further financial assistance. He said the appellant transferred money into his bank account on a number of occasions when he could not make payments. He said that this occurred more than a dozen times and sometimes the appellant gave him cash. 954Mr Venieris said that the appellant told him that he would take the money out of the additional $30,000 when it was received. Ultimately, he said this occurred about four or five times, the minimum amount being $1,400 and the maximum being $3,000 on two occasions. 955Mr Venieris said that after he received the additional $30,000 loan he telephoned the appellant and asked where the money was and he was told by the appellant he had to pay extra tax and some extra money to the girl at St George Bank to get the loan. He said the appellant did not tell him he owed any more money after he took money out of the $30,000. 956Mr Venieris was asked about the 1998 tax return. He stated that he knew nothing about the Canley Vale PO Box and he had never heard of Mr Filocamo or Mr Campos. He stated that he had never been a truck driver and had never heard of Ladadika. He said in the financial year ended 30 June 1998 he earned no more than $200 or $350 because he was incapacitated and could not work much. 957Mr Venieris said he did not make $30,000 in that year and that he had never made more than $17,000 or $16,000 in his life. He denied any tax deductions were made from income he received or that he incurred a business loss of $14,310. He denied that he earned business income from transport services in an amount of $28,975 or incurred total expenses of $43,285 as stated on the tax return. 958Mr Venieris said he never saw the 1998 notice of assessment until an ATO investigator showed it to him. He said he was not told he was entitled to a refund of $11,953 and knew nothing of the refund cheque. He stated that the appellant did not tell him he banked money into Ramace, saying he had never heard of Ramace. 959So far as the 1997 tax return was concerned, Mr Venieris denied that he earned $18,136 in that year or that any tax was deducted from his income. He again denied that he operated a business Venieris Courier, or that he received income from that business of $24,578 or incurred expenses of $32,348. Mr Venieris stated that he never received the notice of assessment for that year or was told of the refund cheque. He expressly denied working for Ladadika for three months from 1 April 1997 and earning $18,136 for those months. 960Mr Venieris was shown the 1997 return and said he did not remember signing it, although he acknowledged his signature on the third page. He also acknowledged his signature on an authority to deposit a tax refund dated 12 September 2000 in which the name of the person giving the authority and the tax year was blank. The date was not in his handwriting. 961In cross-examination Mr Venieris denied he was mistaken in respect of any evidence he had given. He agreed that he needed money to pay for his housing loan and other personal debts and that he was facing eviction. He denied that he requested either the appellant or Ramace to do accounts for his business. 962Mr Venieris stated in cross-examination that he was a taxi driver but he did not own his taxi. He said he worked for a Mr Morris for 35 years and got a group certificate from him. He said he gave the group certificate to the appellant and the appellant told him he did not need it. He agreed that he was self-employed, saying that he had in fact paid Mr Morris part of his receipts from driving the taxi and he was able to keep the surplus. 963Mr Venieris denied that the appellant advanced him money for personal expenses but said he gave him funds for mortgage repayments. He denied he received $48,000 from the appellant or that he gave the appellant $7,000 or $8,000. Rather, he said that the appellant took the money out of the $40,000 loan. 964Mr Venieris agreed that the appellant had put money into his bank account about 12 times for loans. However, he said that he never received the additional $40,000, by which he appeared to be referring to the difference between the $220,000 borrowed from St George Bank and the amount required to repay his existing home loan. He agreed that it was necessary to pay bank fees, valuation fees and stamp duty but insisted that the appellant told him he needed to pay the person at St George Bank and that he needed $7,000 "for the tax man". It is fair to say that Mr Venieris' evidence as to his financial dealings with the appellant was confused. 965Mr Venieris denied that he asked the appellant to find a tax agent. He said the appellant told him he would prepare his tax returns. He was shown the 1997 tax return and said when he signed it it had no typewriting on it at all. He acknowledged that he signed an electronic declaration form for the 1997 tax year. 966Finally in cross-examination, he denied that he worked for Ladadika as a courier or a transport driver or that he was paid in cash by Ladadika. He denied he earned about $400 a week in 1998 with Ladadika or that he worked part time driving forklifts around Sydney and to the premises of Ladadika in Belmore. He denied he gave the appellant authority to bank refund cheques because he owed the appellant money for bookkeeping and accounting fees. 967The appellant stated in his evidence in chief that he met Mr Venieris in 1998 or 1999. He stated that Mr Venieris told him he was in trouble and needed urgent funds. He stated that Mr Venieris had a property on which he wanted to borrow money. He said that he understood Mr Venieris was in the taxi business and explained that he regarded describing him in the tax return as a transport operator was "within the same scope of work". 968The appellant said in 1999 Mr Venieris wanted accounts done so he could borrow money from Ramace and refinance his property. He stated that he prepared a statement of income and expenses showing Mr Venieris' occupation as a courier/transport service provider. The appellant was shown the statement of income and expenditure which accompanied the tax return for the year ended 30 June 1998. He was specifically referred to the figure for hire of motor vehicles of $16,978 and stated that that was plate hire for the taxi service. His explanation was in the following terms: "That is basically the plate hire for the taxi service. So that hire plates. He didn't own the actual vehicle itself, but he was operating a taxi service. So if I was to own the vehicle, and the taxi plates, and someone else was to drive it, then he would pay me a fee for using that." 969The appellant gave no evidence as to how he calculated that fee. 970In relation to the refinance of Mr Venieris' property the appellant stated that the original lender was St George Bank which was proposing to repossess the property. He said he arranged initially for the property to be refinanced by a private lender, Kremnizer, so he would be able to show good conduct so far as repayments were concerned. He stated that shortly thereafter he arranged refinance with St George Bank and obtained additional funding. 971The appellant said he believed that every time that he lent Mr Venieris money he signed what he described as a short form agreement. He said the total loan would have amounted to some $38,000. 972In relation to the tax returns, the appellant said that in accordance with his normal procedure he told Mr Venieris he used Mr Campos who prepared the tax returns. He stated he obtained his personal details and after the tax returns were prepared gave Mr Venieris an opportunity to review them. 973The appellant stated that it was incorrect to describe Mr Venieris as working as a truck driver for Ladadika. He stated Mr Venieris used to transport the singers at Ladadika around at night. He stated that in fact Mr Venieris worked for Ladadika both at day and at night because during the day he used to take the singers along with Mr Giannakarous around Sydney to show them the sights. He said he was told how much Mr Venieris was paid by Mr Giannakarous. He wrote it down and calculated the gross figure in the usual manner. 974In relation to the 1997 return the appellant said it was correct that Mr Venieris worked for Ladadika. He stated the tax was deducted at the top marginal rate. The listing of Mr Venieris' occupation as a courier was explained by him doing some deliveries. 975Early on in his cross-examination it was pointed out that Mr Venieris did not appear on the Ladadika spreadsheet even though the appellant claimed that he worked for Ladadika. The appellant again said this must have been because there was a later spreadsheet. 976The appellant said that the replacement group certificates in respect of Ladadika were signed by Mr Giannakarous, either just before or just after the company went into administration. He said they would have been signed in 1998 or late 1997. He was asked why Mr Venieris' 1997 return was not lodged until 1999. He said the reason was that he thought Mr Venieris requested a loan some time in 1998. The appellant was asked why the 1998 return was lodged earlier and said he did not know. He was asked who requested him to prepare the replacement group certificates. He said either it was the employer or Mr McDonald but he could not recall exactly who it was. He stated that the replacement certificates were signed by Mr Giannakarous in his office in Australia. It was put to him that Mr Giannakarous was in Greece when they were signed and he denied it. However, he said that Mr Giannakarous was presently in Greece. 977It was put to him that Mr Giannakarous last left Australia in July 1998 never to return. He said he could not recall the exact date. However, he said he would not sit on signed group certificates for years or months. 978Department of Immigration records were tendered to show that Mr Giannakarous in fact left Australia on 25 July 1998 never to return. 979The appellant stated that Mr Venieris was employed by Ladadika and also operated his own business. He said that he did not believe Mr Venieris understood the tax structure. He said he believed the replacement group certificate was correct. 980The appellant was shown the group certificate for the 1998 year and acknowledged that it was his writing on it. However, he denied that it was his signature saying it was the signature of Mr Giannakarous. He was shown another certificate said to have been signed by Mr Giannakarous and it was put to him that the signatures were different. He said that they were a bit alike. 981The appellant accepted that his evidence was that Mr Venieris was working for Ladadika part-time in the financial year ended 30 June 1998. He acknowledged that his evidence was that he was engaged driving Greek singers employed by Ladadika. The appellant acknowledged there were only three Greek singers employed in the financial year ended 30 June 1998 and they were in Australia for no more than two to three weeks at a time. When asked in those circumstances how Mr Venieris could have earned $29,988 he stated that was the gross figure and Mr Venieris would have received about $13,000 or $14,000 for the work he did. He said that he got the net income figure from Mr Giannakarous and the books of Ladadika. He stated he did not check this figure with Mr Venieris but denied that it was a fabrication. 982In relation to Venieris Courier the appellant stated that he believed that Mr Venieris was running his own business delivering parcels. He stated that as Mr Venieris was doing it from home he apportioned expenses. He stated that Mr Venieris was paying Mr Morris a fee for the hire of the taxi plates. 983In relation to the 1997 return he said he checked the Ladadika figures with Mr Giannakarous. He was asked why Mr Venieris was paid $18,000 for driving people for 13 days. He said it was the gross figure and that he started transporting singers earlier than that date. However, Ladadika was only incorporated on 17 June 1997. It was suggested to him that his counsel did not put to Mr Venieris that he was using Mr Morris' car for private purposes. He said he could not recall if it was put. 984It should also be noted that Mr Ibrahim gave evidence that he had no recollection of Mr Venieris working for Ladadika. (c) Consideration (i) Count 29 985It is unnecessary to deal with the somewhat confused evidence surrounding the financial dealings between the appellant and Mr Venieris. There can be no doubt that whether or not Mr Venieris owed money to the appellant, the appellant intended that Ramace obtain the benefit of the refund. So much is clear from the production of the authority to deposit and the fact that the cheque was banked by the appellant into the Ramace account. 986So far as the 1998 return was concerned, the appellant acknowledged that Mr Venieris' occupation was as a taxi driver. This was notwithstanding the fact that it was put to Mr Venieris in cross-examination that he worked part time driving forklifts. However, even assuming in favour of the appellant that the description of Mr Venieris as a transport operator was "within the same scope", there was no justification for the loss claimed in the tax return. I have set out the appellant's evidence concerning the hire of motor vehicles in par [968] above. There was no evidence to suggest that this payment was made to Mr Morris. Further, there was no material in the appellant's possession to establish the reason that a taxi driver would have consultant fees or $13,784 of bad debts to write off. 987Mr Venieris denied that he carried on the business of Venieris Courier or that the income and expenses for the business stated in the tax return were correct. I am satisfied beyond reasonable doubt that the evidence of Mr Venieris is correct and having regard to the evidence to which I have referred in the immediately preceding paragraph that the appellant knew that the income and expense statement did not reflect any business carried on by Mr Venieris. 988Mr Venieris denied working for Ladadika. That denial was supported by Mr Ibrahim. Mr Venieris' name did not appear on the Ladadika spreadsheet. In these circumstances it is unlikely that the denial by Mr Venieris that he worked for Ladadika was incorrect. 989Further, it is inherently improbable that Mr Venieris could have earned $13,000 to $14,000 driving Greek singers around for two or three weeks. 990The appellant stated that he obtained the net income figures for Mr Venieris from Mr Giannakarous. However, the return was lodged in August 1999, a year after Mr Giannakarous left Australia. 991As with many other counts, the appellant had no material to suggest that tax instalments deducted at the top marginal rate had been made. There was no justification for the appellant to assert that tax at the top marginal rate had been deducted. 992Finally, the appellant acknowledged that he did not check the accuracy of the figures with Mr Venieris. 993In all the circumstances I am satisfied that the appellant prepared the information in the return, knowing it was false and did so to obtain for Ramace the benefit of a refund for which there was no entitlement. 994It follows in my opinion that the evidence establishes the offence the subject of Count 29 beyond reasonable doubt. (ii) Count 44 995Ladadika was incorporated on 17 June 1997. The proposition that Mr Venieris earned a gross amount of $18,000 or a net amount of a little under $10,000 driving unidentified persons associated with Ladadika for a period of 13 days is not credible. I am satisfied that Mr Venieris' denial that this occurred was correct. 996Further, as with the 1998 return, there was no basis for the claim that income tax in the sum of $8,523.92 had been deducted. 997As with the refund for the 1998 return, the refund was deposited into the Ramace account. 998Having regard to this evidence I am satisfied that Mr Venieris did not work for Ladadika in the year in question, that the appellant prepared material to that effect in the knowledge it was false and for the purpose of obtaining a refund to which Mr Venieris was not entitled, for the benefit of Ramace. 999It follows that the evidence establishes commission of the offence the subject of Count 44 beyond reasonable doubt. Count 30 - Mr Steven Liontos - Income tax return for year ended 30 June 1998 Count 31 - Mr Steven Liontos - Income tax return for year ended 30 June 1993 Count 32 - Mr Steven Liontos - Income tax return for year ended 30 June 1994 Count 33 - Mr Steven Liontos - Income tax return for year ended 30 June 1995 Count 34 - Mr Steven Liontos - Income tax return for year ended 30 June 1996 Count 35 - Mr Steven Liontos - Income tax return for year ended 30 June 1997 1000As I indicated above, these counts were not affected by the impugned directions and the appeal was unsuccessful so far as it relates to them. Count 36 - Mr Neil Jensen - Income tax return for year ended 30 June 1998 1001This was a count where it was not alleged there was a mistake as to the employer's identity. However, as set out in par [1038] below, this count was affected by the Browne v Dunn direction the subject of Ground 2. (a) The summary 1002The summary in respect of Neil Jensen shows that a tax return on his behalf was lodged on 21 October 1999. The contact details were attention Mr Lopez at the Canley Vale PO Box. The summary discloses that he received income of $16,981 from an employer, Stainless and Alloy Steels NSW Pty Ltd (Stainless Steel) from which tax instalment deductions of $7,981.13 were made. The summary also discloses that a refund of $5,576.34 was received which was banked into the account of Ramace. 1003Stainless Steel was placed into administration on 13 October 1997 and remained in administration until 7 November of that year. At that time the company was placed into liquidation. (b) The evidence 1004In his evidence in chief Mr Jensen said he had been a courier for 11 years but before that he was involved in Stainless Steel. He was a director of that company which distributed stainless steel products. Mr Jensen stated that Stainless Steel started to get into difficulties in about 1994 or 1995. He said the company was travelling fairly poorly in 1997 and he took steps to place it into administration. Mr Jensen said he met Mr McDonald of Hall Chadwick who recommended the company be wound up. The company was placed into administration on 13 October 1997 and into liquidation on 7 November 1997. 1005Mr Jensen said he did not have any income other than that from Stainless Steel. He said that in the year ended 30 June 1998 he received very little income. He estimated that it was probably less than $12,000 or $10,000. 1006Mr Jensen said that he was introduced to the appellant by Mr McDonald and he went to the appellant to seek assistance in the preparation of his 1998 tax return. 1007Mr Jensen said he recalled the appellant saying that because of what he had lost in Stainless Steel he would not have a tax problem again in his life. He said that he recalled the appellant telling him that he would see that his tax credits were facilitated. 1008Mr Jensen said that when he gave instructions to prepare the 1998 return no mention was made of Mr Campos. He understood the appellant was to prepare and lodge the tax return. However, he did recall that in later years about 2003 or 2004 the appellant told him he could not do the tax return and suggested he go and see Mr Campos, a tax agent at Marrickville. 1009Mr Jensen said that the appellant offered to set up a company Neil Jensen Enterprises Pty Ltd. He said he assumed the company was incorporated but it never conducted any business. Mr Jensen said in fact he commenced to carry on a courier business under his own name. He also said that he never drew any wages or income from a company known as Neil Jensen Holdings Pty Ltd (Jensen Holdings). 1010Mr Jensen said at the time he went to see the appellant for the 1998 return he asked the appellant to do some work in relation to a car lease for which he was a guarantor. He recalled that he asked the appellant if he could help him extricate himself from the lease by getting the car back and paying off as little as possible. The approach to the lessor was apparently unsuccessful. However, Mr Jensen said that as a result of the death of his mother he received some funds which allowed him to pay the car off. 1011Mr Jensen stated he had no need to borrow any money from the appellant or from Ramace. He said the appellant never sent him any invoices for the work he did. 1012Mr Jensen said he assumed that tax was being deducted whilst he was working for Stainless Steel. He said it was handled by one of his partners. However, he said towards the end of the company's life they were running short of funds and he did not know if instalments were being taken out of salaries and paid to the ATO. He thought that they probably were not taken out in the 1997 year. 1013On being shown the tax return for the year in question he said he did know of the Canley Vale PO Box address and had not heard of Mr Filocamo or of Mr Campos at that time. He said he probably earned $16,981 in the financial year ended 30 June 1998. However, he said that he knew nothing about the $7,981 tax deduction, saying it would be "a fairly extreme amount of money to deduct" on a salary of $16,000. 1014Mr Jensen said he did not recall the appellant showing him a signed tax return. He said he would not have signed a tax return stating instalment deductions of $7,981.13 were made, as it would not have been correct. 1015Mr Jensen said that the appellant never mentioned the fact that a refund of tax was to be received. 1016In cross-examination Mr Jensen was referred to a statement he made to tax investigators to the effect that when he authorised the appellant to prepare the 1997 returns the appellant explained that someone else would lodge it. He repeated that he did not know Mr Campos in 1997. 1017Mr Jensen agreed that in 1997 the appellant came to the premises of Stainless Steel to try and help the company bring its books and records up-to-date. However, he said he could not recall him preparing financial statements or compiling wage records. 1018Mr Jensen said that he could not recall receiving a group certificate from Stainless Steel for the 1997 financial year. 1019Mr Jensen agreed that the appellant was his accountant from 1998 to 2003 and that he gave the appellant all his records in respect of the courier business he was conducting from 2000. He said he could not recall paying anything for the bookkeeping work. He said that he did not recall receiving invoices and if he had he would have paid them. 1020It was suggested to Mr Jensen in cross-examination that he earned about $400 per week from Stainless Steel in the period July 1997 to November 1997. He accepted that would be about right. He was asked if he signed an employment declaration with Stainless Steel and he said he would have. He stated that he understood an employment declaration form to be a form that is signed which indicated to the ATO that "you will be earning money and tax will be paid". He then said he had no recollection of signing such a declaration. 1021Mr Jensen said he was always paid in cash by the company and no payslips or dockets were supplied. 1022Mr Jensen said he had no recollection of signing an authority to deposit his tax refund cheque into the account of Ramace to offset his bookkeeping and accounting fees. He stated he was fairly sure that he did not agree with the other directors of the company that he would be responsible for fees due to the appellant in respect of work done for the company. 1023In his evidence in chief the appellant said that he met the directors of Stainless Steel, Mr Jensen and two others, in 1997 or 1998. He said they were referred to him by Mr McDonald. He said Stainless Steel was placed into administration and the company needed to get its books up-to-date to trade out of its financial situation. 1024The appellant stated that Stainless Steel was placed in liquidation and thereafter Mr Jensen set up a courier business. He said it initially traded under his own name. The appellant stated that he set up a company for Mr Jensen, Jensen Holdings. He said he advised him to incorporate the company to limit his liability. 1025The appellant said Mr Jensen owed him $1,000 to $1,500 for incorporating the company and $5,000 to $6,000 for accounting services. He said that he recalled giving Mr Jensen invoices. He said he discussed the preparation of tax returns with Mr Jensen who requested that he prepare the returns through his arrangement with Mr Campos. 1026The appellant was shown the tax return lodged on behalf of Mr Jensen. He said the return was correct, the gross income was calculated in the usual manner due to there being no employment declaration. 1027The appellant said he obtained authority to lodge any tax refund cheque received on behalf of Mr Jensen into the Ramace bank account. He said that he attached the authority to the return for Mr Jensen to sign. He said he did not see Mr Jensen sign the 1998 authority. He agreed that he banked the tax refund as he said at that time Mr Jensen owed him money for fees. He stated that he had a record of all fees he charged Mr Jensen. He last saw the records when they were seized by the AFP in 2003. 1028In cross-examination the appellant stated that he knew in the year ended 30 June 1998 that Stainless Steel was not making much money. He stated that as usual tax instalments were calculated for Mr Jensen on the basis of their being no employee declaration. So far as the tax instalment deductions were concerned, he said he did not check the figures with Mr Jensen, although he said he checked them with the employer, speaking to a Mr Mackness who he said was the responsible person on the administration side. 1029Immediately after the appellant stated that no one told him tax had been paid to the ATO for Mr Jensen's income. 1030The appellant stated that he could have told Mr Jensen about some tax credits. The appellant denied telling Mr Jensen that he was "all square" with the ATO and would not have to pay any tax for 1998. 1031The appellant claimed that he told Mr Jensen he could expect a refund of $5,500 from the ATO for the tax return. He said that he was entitled to keep the refund because Mr Jensen owed him fees. However, he acknowledged that he was aware that Mr Jensen was not responsible for the company's debts and that he had indicated that the monies which were due to him were in fact owed by Stainless Steel. However, he stated that Mr Jensen had agreed to pay monies due to him by Stainless Steel. 1032The appellant subsequently said that part of the money was for doing Mr Jensen's personal accounts. However, he then said that there were no personal accounts but that he did some accounts for him later on. 1033It was put to the appellant that when he received the refund cheque in October 1999 he had not done any personal accounts for Mr Jensen. He said he could not recall what the personal accounts were or how much he charged Mr Jensen. 1034It was pointed out to the appellant that Stainless Steel was deregistered in March 1999, seven months before he received the refund. The appellant said that Mr Jensen would have signed the authority to deposit the refund into the Ramace bank account at the time he signed his tax return. The appellant said he did not know where the authority was, it was missing. 1035The appellant said that he had negotiated his fees with the three directors of Stainless Steel. He stated that it was possible that he was also paid some money by the liquidator and administrator but could not recall how much it was. He said the justification for keeping part of the $5,500 could have been that it was paid in respect of accounting work to be done in the future for Mr Jensen. It was suggested to him that in those circumstances the money should have been placed in a trust account, to which the appellant said he did not recall why it was not put into such an account. 1036The appellant said that the setup of Jensen Holdings cost $1,200, while the work done for Stainless Steel cost about $4,500. He said that he sent out invoices and kept a hardcopy along with his MYOB records. He said he did not know the whereabouts of the documents. 1037The appellant agreed that Mr Jensen did not borrow any money from him. He acknowledged that but for the agreement reached with Mr Jensen that he would pay $4,500 for the work carried out on behalf of Stainless Steel, he would not have been entitled to reclaim that amount. He said each director contributed $4,500 and his work had a greater value than that. 1038He said that he told Mr McDonald that he was being paid this money but he did not tell the other creditors. He said it may have been that he did not tell Mr Ramos about the agreement. This was one of the answers which led to the Browne v Dunn direction the subject of Ground 2 of the Notice of Appeal. In fact Mr Jensen was asked in cross-examination whether or not it had been decided by the directors that he would be responsible for fees due to the appellant in respect of work done for Stainless Steel. (c) Consideration 1039The evidence is in fairly narrow compass. However, what is clear is that the appellant had no basis for claiming that tax instalments of $7,981.13 had been deducted out of any wage received by Mr Jensen from Stainless Steel for the year in question. The appellant said he did not check the figures with Mr Jensen. He then gave evidence that he checked with the employer but immediately resiled from that proposition stating that no one told him that tax had been paid. As I have stated earlier, it was inherently improbable that tax would have been deducted at the top marginal rate, particularly having regard to the relatively small amount of income earned by Mr Jensen. I am satisfied beyond reasonable doubt that the appellant knew he had no basis for claiming tax deductions in that amount had been made and that he knew that in that regard the return was false. 1040I am also satisfied beyond reasonable doubt that the appellant prepared the tax return to obtain a refund to which Mr Jensen was not entitled and he did so to benefit Ramace. It is not necessary to decide whether Mr Jensen agreed to meet Stainless Steel's indebtedness to the appellant (if any). The appellant received the refund, banked it into the Ramace account and sought to retain it. I am satisfied that the appellant caused the false return to be lodged for that purpose. 1041In these circumstances the evidence, in my opinion, proves this offence beyond reasonable doubt. Count 38 - Mr Doureid Dannaoui - Income tax return for year ended 30 June 1999 1042This count also did not involve the assertion of a mistake as to the identity of the employer. However, the cross-examination gave rise to the Browne v Dunn direction the subject of Ground 2 of the Notice of Appeal. (a) The summary 1043The summary in respect of this count shows that a tax return was lodged on behalf of Mr Dannaoui (who to avoid confusion with Mr Dannawi I will refer to as Doureid) on 18 November 1999. It recorded employment income of $26,185 being received from an employer Phoenicia with tax instalments of $12,306.95 being deducted. It also records Doureid received $6,132 employment income from Dannaoui Holdings Pty Ltd (Holdings) from which $2,882.04 tax was deducted. The authority shows that a refund cheque for $7,694.46 was received which was banked into an account, Ramace No 2 Loan. 1044The summary records the results of ASIC searches in respect of each of Phoenicia and Holdings. In relation to Phoenicia the search revealed the business name had been removed from the register at the relevant time. So far as Holdings was concerned, the search disclosed it was incorporated on 12 February 1999, went into liquidation on 26 October 2000 and was deregistered on 14 December 2001. 1045The summary discloses the appellant had in his possession replacement group certificates for both Holdings and Phoenicia consistent with the tax returns. There was also an electronic lodgement declaration showing taxable income of $32,317 with total tax instalments of $15,188.89 said to have been deducted. This was also consistent with the tax return. In addition, the appellant held an authority to deposit the 1999 refund into the Ramace account dated 10 October 1999, signed in the name of Doureid. (b) The evidence 1046Doureid gave evidence that he was of Lebanese descent. He stated his occupation was that of a butcher and that he had difficulty in reading and writing in English. He said he was not able to read many English words. 1047He said that in 1999 he did a little bit of work for Ibrahim El Dannawi (who I will call Ibrahim to avoid confusion) who he said was no relation. He said the name of the business was Phoenicia. Doureid said he did not work anywhere else. 1048Doureid said he was taken to see the appellant by Ibrahim to sort out his tax return for the few months he worked with Ibrahim. 1049Doureid said he could not remember paying any money to the appellant. However, he said he never borrowed money from the appellant and he had never heard of Ramace. 1050Doureid said the appellant did not mention any other accountant who would be preparing a tax return for him. There was no discussion of whether a refund might be paid. He said he thought he would get a few hundred dollars. 1051He stated that in the financial year ended 30 June 1999 he was not a qualified motor mechanic. He said at Phoenicia his work included changing oil, taking out sparkplugs and matters of that nature. He said Ibrahim paid him about $500 a week and that it continued for about two months. Doureid denied he ever worked for Holdings. He said that he did not tell the appellant that he earned any money from that company. 1052Doureid said he could not remember how many documents were signed at the appellant's office. He said they were written in English and he was not really able to read them and they were not read out to him. 1053Doureid was shown his tax return for the year ended 30 June 1999 and said he knew nothing of the Canley Vale PO Box address, or of Mr Campos, Mr Filocamo or Messrs Lopez and Gonzalez. 1054He said it was incorrect that he was paid $26,185 by Phoenicia. He was paid at most a few thousand dollars. He said he knew nothing about Phoenicia deducting $12,306 tax instalments. 1055Doureid said he did not receive any income from Holdings. He did not receive $6,132 and tax instalments of $2,282 were not deducted. 1056Doureid said that he was not told by the appellant that he had received a notice of assessment or a refund cheque of $7,694. He stated that after he stopped working for Ibrahim he went to Queensland and he did not consent to the appellant retaining and depositing the cheque. 1057Doureid said he did not recognise the handwriting on the replacement group certificate for Phoenicia. He repeated that it was untrue that he worked for that firm from 1 July 1998 until 15 February 1999. He was shown the authority to deposit the tax refund into Ramace. He said it might have been his signature but the appellant never read it to him and did not explain that he was signing a document that would permit Ramace to retain the tax refund cheque. He stated that contrary to what was in the authority to deposit, he never received a loan from the appellant. 1058In cross-examination he denied that he met with the appellant to obtain a loan from him and that he received a loan for $5,000. He denied signing a loan agreement for $5,000 cash with a total amount including fees and interest of $5,500. 1059Doureid disagreed that he worked for Holdings between February and June 1999. He did not know anything about the company. In particular, he did not know that Ibrahim sometimes paid through the company rather than Phoenicia. He rejected the proposition that during the financial year ending 30 June 1999 he was paid about $356 per week in the hand from either Phoenicia or Holdings. In explaining why he would not have permitted the appellant to deposit the refund of tax into his company's account, Doureid explained that he enjoyed having the tax refund come to his house because it was the only money that he ever received in the mail. He denied the appellant loaned him $5,000 and the refund cheque was paid into a Ramace account as part repayment of that loan. 1060Before dealing with the evidence of the appellant it is convenient to refer to the evidence of Ibrahim. 1061Ibrahim stated that from 1996 to 2004 he operated a motor mechanic business which from early 1998 was known as Phoenicia. He said that he received advice about setting up a company and established Holdings in early 1999. He said that whilst his motor mechanic business was operating in Croydon he carried it out both under the business name and then after the incorporation of Holdings it was carried on by the company. 1062Ibrahim stated that he borrowed $16,000 from Ramace which he repaid. Ibrahim said it was the appellant who suggested he set up the company. He stated the appellant also said he would look after his accounts. He recalled signing about 15 blank empty documents. 1063He stated that the appellant was not a director of Holdings and had no authority to put it into administration or liquidation. 1064Ibrahim said that he knew Doureid. He stated that they were neighbours at Greenacre although they were not related. He stated Doureid worked for Phoenicia for about two months whilst the business was conducted at premises in Enfield. He said he paid him about $500 per week, entering the payments in the wage book. He did not deduct any tax instalments. 1065Ibrahim denied that Doureid had worked for eight months for Phoenicia. He stated that Doureid was not paid $26,185 with tax instalments of $12,300 being deducted. Ibrahim was shown replacement group certificates for Doureid for employment with both Phoenicia and Holdings. He stated that he signed the documents in blank and the handwriting on them was that of the appellant. 1066In cross-examination Ibrahim agreed that he and Doureid went to the appellant's office in 1999 for a meeting. He denied that the purpose was for Doureid to receive his replacement group certificates for Phoenicia and Holdings. He also said the purpose was not for Doureid to obtain a loan. 1067Ibrahim also stated in cross-examination that the only employees Phoenicia had in the 1999 financial year were himself and one apprentice. He also stated that Holdings had no other employees other than himself. 1068In his evidence in chief the appellant stated that he met Doureid in 1999. Doureid told the appellant that he wanted to borrow money from Ramace. The loan was about $5,000 and was made pursuant to a loan agreement. 1069The appellant stated that he followed his normal practice in relation to tax returns, telling Doureid that Mr Campos could do the return. He asserted the return was correct. He stated that he was told the dates of employment by Ibrahim in his office. He stated that the replacement group certificates were signed by Ibrahim in front of him. He asserted that Doureid stated that he worked for Phoenicia fulltime being paid in cash. 1070The appellant stated the gross wage was calculated based on records. 1071The appellant stated that he obtained the authority to deposit the tax refund cheque into the Ramace account when Doureid signed the tax returns after they came back from Mr Campos. He stated that the loan was for $5,000 and about a week after the cheque was banked, the appellant gave Doureid the surplus above $5,000 in cash. 1072In cross-examination the appellant stated he arranged for the replacement group certificates to be signed by Ibrahim in blank. He acknowledged he gave instructions to his counsel to cross-examine Ibrahim to the contrary effect. He then acknowledged that Ibrahim might have been asked to sign some blank documents, including tax appointment forms, electronic lodgement declarations and some group certificates as well. He said he could not remember whether or not he told that to his barrister. This was one of the matters the subject of the Browne v Dunn direction. 1073The appellant also acknowledged he had seen signed blank group certificates at the offices of the Commonwealth Director of Public Prosecutions (CDPP). He said he could not recall whether he told his counsel of this before he cross-examined Ibrahim. This was one of the instances at least potentially covered by the Browne v Dunn direction. 1074The appellant denied that his reason for obtaining blank replacement group certificates was to facilitate his frauds. He acknowledged that his evidence in chief was that Ibrahim attended his office and signed the group certificate in front of him. He stated that some were signed blank in front of him but not all of them. He said that the reason some were blank was because Ibrahim could not remember the details of the employees. 1075In relation to Doureid's tax, the appellant was shown a folder with his handwriting on it, "Dannaoui Tax", which he acknowledged was seized from his office and which contained blank certificates signed by Ibrahim. He repeated that they were signed in blank because Ibrahim did not know all the employee details, although he claimed Ibrahim told him that he had six or seven part time employees and one or two in the mechanical shop. 1076The appellant claimed that he suggested to Ibrahim that he should give him the blank forms and he should complete them after he recalled the details of his employees. He acknowledged this was not put to Ibrahim in cross-examination. The blank group certificates shown to the appellant included certificates in the name of Phoenicia and in the name of Holdings. 1077He agreed that although he sat in court and listened to his own barrister cross-examine Ibrahim and put to him he was mistaken about signing things in blank, he agreed Ibrahim was telling the truth. It was suggested to him in those circumstances his evidence concerning Doureid was a complete fabrication which he denied. He denied he made the figures up and filled in pre-signed group certificates to maximise the refund. 1078Finally on this issue the appellant asserted that both Ibrahim and Doureid were there when the group certificate was signed. 1079Later during his evidence there was further cross-examination in relation to this count. The appellant gave evidence that because Doureid was not good at reading English he explained the tax return to him slowly. He said he told Doureid that it had to be signed and that he might get a refund. 1080The appellant denied that he knew that Doureid did not work for Holdings. He said he was the accountant for both Holdings and for Ibrahim. He stated that he recalled preparing a group certificate for Doureid for the 1999 income tax year from Holdings and that the figures on that certificate came from both the company books and advice from Ibrahim. 1081The appellant acknowledged that he did not check whether or not Doureid worked for Holdings. He also stated he did not know that Doureid only did part time work for Phoenicia. He saw the Phoenicia books but did not see that Doureid only worked for a few months earning $500 per week. He claimed the certificate showing a gross wage of around $26,000 came from the books and from advice, and further, instalment deductions were again calculated based on there being no employee declaration. However, the appellant said he did not check if any instalments had been deducted. He again denied that the group certificates for Doureid were pre-signed. 1082The appellant insisted in cross-examination that he lent money to Doureid, although he said Doureid had paid it back. He said that he did not know where the loan documents were and the ledger recording his payments was missing. He claimed in cross-examination that Doureid owed him $5,000 plus $1,500 fees and interest equalling $6,500 in total. He said he could not recall why he kept the balance of the $7,694.46 refund. He said that Doureid told him something along the lines "keep the balance". He acknowledged that his counsel did not ask Doureid about that conversation, saying he did not tell him about it. This was another part of the cross-examination which led to the Browne v Dunn direction. (c) Consideration 1083The evidence of both Doureid and Ibrahim was that Doureid only worked for two months with Phoenicia earning $500 per week. They both denied that Doureid earned $26,185 from Phoenicia or $6,132 from Holdings or that tax in the amount referred to in the returns was deducted. 1084In assessing the appellant's evidence to the contrary, the following matters must be considered. First, his evidence concerning the execution of group certificates. It is self-evident that notwithstanding the cross-examination of Ibrahim, a number of group certificates were signed in blank. Significantly, some of these were in the appellant's file "Dannaoui Tax". It is likely in those circumstances that Ibrahim did sign Doureid's group certificate in blank. 1085Second, although the appellant claimed the information as to income earned came from unidentified records, he acknowledged he did not check whether Doureid worked for Holdings, nor did he check that any tax instalments were deducted. He also stated that he did not check any of the material with Doureid. 1086It follows that the overwhelming inference is that the appellant had replacement group certificates signed in blank, completed them without reference to the employer or employee and lodged the tax return to obtain a refund which was paid into the Ramace account. 1087In these circumstances I am satisfied beyond reasonable doubt that the appellant prepared the group certificates knowing them to be false and for the purpose of obtaining a refund to which Doureid was not entitled. 1088Whether or not the appellant was entitled as against Doureid to obtain any money received on his behalf, I am satisfied beyond reasonable doubt that the appellant's intention was that Ramace would retain the refund which he knew would result from the fraudulent return. 1089In these circumstances I am satisfied that the evidence proves this count beyond reasonable doubt. Count 43 - Mr Thomas Kapetanios - Income tax return for year ended 30 June 1999 (a) The summary 1090The summary shows the tax return for Mr Kapetanios for the year ended 30 June 1999 was lodged on 10 December 1999. His contact details were said to be the Canley Vale PO Box with a reference to Mr Lopez. The return disclosed employment income from One Shop in the amount of $12,978 from which $6,099.90 was deducted, and further, employment with Zigolini's Café from which income of $16,483 was derived and tax deductions of $2,704.46 were said to have been made. The summary also shows that the return led to an entitlement to a refund in an amount of $2,136.77 which was banked into the Ramace No 2 Loan account. 1091The summary discloses that the records of Vince Filocamo included a replacement group certificate showing Mr Kapetanios' employment with One Shop consistent with what was on the tax return and also a group certificate for Mr Kapetanios relating to his work with Zigolini's Café. (b) The evidence 1092Mr Kapetanios stated that in 1999 he was between two jobs. He was working at Zigolini's Café in Woollahra and then had some time off work due to an injury but helped out for a short period of time at a place called the Souvlaki Bar in Brighton Le Sands. He believed that it was in about mid 1999 that he actually stopped working at Zigolini's. He then said he had some six months off recovering after surgery but helped out a couple of times at the Souvlaki Bar. He said at the Souvlaki Bar he was paid at an hourly rate, about $15 an hour. He said the maximum number of hours he would work in any week whilst convalescing was no more than ten. 1093Mr Kapetanios said that when he returned to fulltime employment he did not work for the Souvlaki Bar. He said he went back to Zigolini's and then went to the Italian Forum in Leichhardt beginning in 2001. Mr Kapetanios said that at Zigolini's he was earning about $600 per week after tax, whilst at the Souvlaki Bar he was paid in cash. 1094Mr Kapetanios said he met the appellant at the Souvlaki Bar when the appellant came to obtain paperwork from other employees. He said he came to understand that the appellant was the accountant for the Souvlaki Bar and some of its employees. Mr Kapetanios said he was told by the appellant when he had his paperwork together to come and see him and he would do his tax returns for him. He said his previous tax returns were up-to-date, having been prepared by his previous accountant. 1095Mr Kapetanios said he recalled that the arrangement with the appellant was that the appellant would take his fees for the preparation for the tax return out of any tax refund that was received. His recollection was that the fee was around $100. 1096Mr Kapetanios said he asked the appellant if he could have an advance of $1,000 on his tax return. He said the arrangement was straightforward; he borrowed $1,000 and it was agreed that $1,000 and any accounting fees would come out of the tax refund and the balance would be paid to him. 1097Mr Kapetanios said he provided the appellant with a group certificate from Zigolini's and documents relating to work related expenses. He said he went to the appellant's office in July or August 1999 and signed what he described as a declaration form giving him permission to prepare the return on his behalf and a couple of blank pieces of paper. He said the appellant explained the forms to him but he did not really read them. 1098Mr Kapetanios said he was never shown a complete tax return by the appellant or asked to sign one. 1099Following the meeting in July or August 1999, Mr Kapetanios said he contacted the appellant on a few occasions and asked how his tax return was progressing and what refund he would obtain. He said that he and the appellant crossed paths at the Souvlaki Bar and eventually the appellant gave him a couple of hundred dollars which the appellant said was the residue of his tax refund. 1100Mr Kapetanios was shown the tax return which had been lodged. He said that he never worked for One Shop, did not work in telephone sales and that he had never told the appellant that he worked in telephone sales. 1101Mr Kapetanios said he had no knowledge of Messrs Campos, Filocamo, Gonzalez or Lopez and knew nothing of the Canley Vale PO Box address. 1102Mr Kapetanios said the income of $16,483 from Zigolini's sounded correct. He said that he was employed there on a casual basis. He said the tax instalment deduction of $2,704 also seemed to be correct. 1103Mr Kapetanios said he never had a second job whilst at Zigolini's. He did not receive $12,978 from One Shop and no-one deducted $6,099 tax on his behalf. 1104Mr Kapetanios denied ever receiving a notice of assessment in relation to the 1999 tax year and was never told by the appellant that a refund of $2,136 was received. 1105In cross-examination Mr Kapetanios agreed he signed an appointment of tax agent form and an electronic lodgement declaration form. However, he denied that he signed a completed tax return. 1106It was suggested to Mr Kapetanios in cross-examination that the loan made to him by the appellant was $1,500. He stated it was very unlikely but possible. He disagreed that the total amount due to the appellant included the initial loan advance of $1,500, tax agent fees of $100 and fees for the loan advance of about $460. 1107Mr Kapetanios said he did not remember signing a loan agreement in relation to the loan he received from the appellant. 1108Mr Kapetanios agreed with the suggestion that he did not work for One Shop but instead worked for AAANG which traded as Souvlaki Bar. He also agreed he worked as a food shop assistant for the Souvlaki Bar and received $143 per week net from that bar. He agreed he was paid in cash at the Souvlaki Bar and did not get a group certificate, notwithstanding that he was paid in cash. However, it was not suggested to him that in fact he earned the amount shown in the tax return from the Souvlaki Bar. 1109In his evidence in chief the appellant said he met Mr Kapetanios in 1999 at the Souvlaki Bar where he was working part time. The appellant claimed that Mr Kapetanios was working two to four days a week part time. 1110The appellant claimed that he loaned Mr Kapetanios $1,500 pursuant to what he described as a short form loan agreement. He said he did not have a copy of the loan agreement although he previously had one kept in Mr Kapetanios' folder in his office. He said his fee for the preparation of the tax return was about $100. 1111The appellant said that Mr Kapetanios instructed him to do his tax return through Mr Campos. He was shown a document headed "Personal details" which he said he completed and which was forwarded to Mr Campos. That document described Mr Kapetanios' occupation as sales and marketing. 1112He was also referred to a notice of appointment of tax agent and an electronic lodgement declaration. He said the writing on those documents was that of Mr Campos, he was present at the time the document was signed but said that at that time there were no other details on it. 1113The appellant was shown the One Shop replacement group certificate. He said it was a mistake. He claimed that it arose from the name of Mr Kapetanios being put under the wrong employer on his spreadsheet. Once that was done when it was time to prepare the group certificates he said he looked at the spreadsheet and "I couldn't remember out of the 300 or so employees that needed group certificates, who would work for which company", so he put it under the name that was on the spreadsheet. 1114The appellant said he was told by the owner of the Souvlaki Bar that Mr Kapetanios earned roughly between $150 and $200 and from there he worked out the income. He stated, "I was told there was no employment declaration, and worked out the marginal rate of tax, added the net income, plus the marginal rate of tax, to give the gross wage". He asserted that the gross wage and tax deduction details were correct. 1115The appellant claimed he had an authority to deposit the tax refund cheque into the Ramace account. He said he prepared the authority which Mr Kapetanios signed in front of him in 1999. He stated that at the time he was owed $1,500, plus $450 or $500, plus the fee due to Mr Campos. The appellant stated, "there was only a small amount that was due back to him, 30 or $50, he didn't want it". 1116In cross-examination the appellant agreed that Mr Kapetanios was always employed in the food industry. He said that One Shop was a client of his which sold mobile phones. He agreed Mr Kapetanios did not work for One Shop. He stated it was a mistake putting him "under One Shop". 1117The appellant said he had a number of conversations with Mr Kapetanios during the year the subject of the count and said he did not tell him he was convalescing. He agreed he knew he worked at Zigolini's Café and he received a group certificate in respect of that employment. 1118The appellant insisted that Mr Kapetanios also worked for the Souvlaki Bar. He said the employer should have been named as AAANG and not One Shop. He said that the $12,978 gross figure came from adding the top marginal tax rate to the net pay received by Mr Kapetanios. He said the figure came from Mr Gouramanis and he did not check it with Mr Kapetanios because it was not his normal practice to do so. 1119The appellant acknowledged he did not check with anybody to see if tax instalments had been deducted in the year in question. His explanation for this was he was just the accountant and he did not check what was or was not paid. He stated that he was just recording the transactions. 1120The appellant agreed that Mr Kapetanios told him he was earning about $15 an hour but denied that he told him he worked for only a few weeks. 1121The appellant insisted that he made a loan to Mr Kapetanios. He stated that the loan agreement was one that had gone missing. He accepted there was no reference to the loan in any of the material on his computer. 1122The appellant stated he could not recall Mr Kapetanios chasing him for a tax refund. He said he did not recall telling Mr Kapetanios that he would get a $200 refund or that Mr Kapetanios only borrowed $1,000. The appellant said he loaned Mr Kapetanios $2,000 including fees and interest. He denied he said that because he had seen the tax refund was $2,100. The appellant was reminded that when he was questioned by his counsel he said the loan was $1,500. However, he said $1,500 was the principal and that Mr Kapetanios owed between $500 or $600 for accountancy work, fees and interest. 1123In his cross-examination he said he thought he paid Mr Kapetanios the balance of the tax refund. He then said he could not recall what happened to it. He was reminded that under oath he said Mr Kapetanios told him to keep the small balance and stated that he believed that was true. He denied he told Mr Kapetanios when he gave him $200 that this was the entirety of his refund after deduction of the $1,000 he had borrowed. 1124In relation to the electronic lodgement declaration he stated that he could not recall if it was in blank when it was signed. He said it could have been but he usually put "their name and the year on there. In my writing". He agreed that the figures on it were not there when Mr Kapetanios had signed it. (c) Consideration 1125The appellant's only explanation for the preparation of the One Shop group certificate was that he could not remember who Mr Kapetanios worked for. This is barely credible when he did not suggest that he did not know the amount of income to be inserted into the replacement group certificate. It loses all credibility when it is remembered that he described the occupation of Mr Kapetanios in a document forwarded to Mr Campos as "sales and marketing", quite inconsistent with casual work at the Souvlaki Bar. 1126In these circumstances I am satisfied beyond reasonable doubt that the appellant knew at the time he prepared the replacement group certificate that it was false to state that Mr Kapetanios worked for One Shop. 1127I am also satisfied beyond reasonable doubt that the amount of income said to have been earned by Mr Kapetanios of $12,978 and the tax instalments of $6,099.90 said to have been deducted were false to the knowledge of the appellant. On his own admission the appellant did not ask Mr Kapetanios what his net income was. Further, on his own admission, he did not inquire with anybody whether tax instalments had been deducted, much less that the instalments had been deducted at the top marginal tax rate. The latter matter was on its face inherently improbable, something apparent to an experienced accountant. 1128In these circumstances I am satisfied beyond reasonable doubt that the appellant prepared the replacement group certificate and caused the tax return containing the false information to be lodged to obtain a refund which was paid to Ramace. It follows that the evidence establishes this count beyond reasonable doubt. It is not necessary to determine one way or the other whether the amount of the refund retained by Ramace was owed by Mr Kapetanios either to that company or to the appellant. Count 46 - Ms Pagona Skoulos - Income tax return for year ended 30 June 1998 Count 47 - Ms Pagona Skoulos - Income tax return for year ended 30 June 1999 (a) The summary 1129The summary for the 1998 return for Pagona Skoulos shows a tax return on her behalf was lodged on 12 February 2000. The contact details were Mr Lopez at the Canley Vale PO Box address. The summary discloses employment income of $38,146 with tax instalment deductions of $17,928.62. The employer was stated to be One Shop. 1130The summary also shows a claimed loss from a business, Tasty Cravings Takeaway Restaurant (Tasty Cravings) of $34,539 and a rental loss of $2,891. The summary discloses that Ms Skoulos was said to be entitled to a refund for that tax year of $17,928.62. It was paid as part of a cheque of $49,958.18, being a cheque paid in respect of refund entitlements for the 1998 and 1999 income tax years. 1131The summary discloses that the appellant had the following documents in his possession in hardcopy: (a) A replacement group certificate for One Shop consistent with the tax return. (b) A profit and loss account for 1998 for Ms Skoulos trading as Tasty Cravings showing a loss of $34,539. Similar documents were found on the appellant's computer. (c) A statement of rental income for 1998 for Skoulos and Venakis showing a net loss of $5,782 of which $2,891 was apportioned to Ms Skoulos. Similar documents were found on the appellant's computer. (d) A document titled "Personal Details for Skoulos" with handwriting listing tax file number, date of birth, occupation "One Shop Sales", business activities "takeaway & picture framing shop" and "distribution from unit trust". (e) A document with handwriting dated 25 August 1999 listing information as business Décore Bankstown Picture Framing (Décore) at Marion Street, Bankstown, unit trust and personal details of Ms Skoulos. (f) Notification of appointment of tax agent signed in the name of Ms Skoulos. (g) Incomplete electronic lodgement declaration signed in the name of Ms Skoulos. (h) 1998 tax return showing business income of $59,040 a net rent of $839, signed in the name of Ms Skoulos. (i) Facsimile from the appellant to St George Bank dated 9 September 1999, re Skoulos application for line of credit. (j) Two facsimiles from the appellant to St George Bank detailing transfers of money totalling $5,000 from Ramace No 2 Loan account to St George. (k) Further 1998 tax return consistent with that lodged. (l) 1998 tax return for Skoulos unit trust. (m) Authority to deposit bank cheque in the name of Skoulos for $50,397.71 into the bank account of Ramace dated 12 October 2000, signed in the name of Ms Skoulos. 1132The summary also shows that Mr Campos had in his possession a 1998 notice of assessment dated 22 February 2000. 1133The summary shows that Mr Filocamo had in his possession the replacement group certificate, profit and loss statement for Tasty Cravings for the year ended 30 June 1998 and statement of rental income, all consistent with those shown in the tax return. He held a copy of the document entitled "Personal details for Skoulos", a copy of which was held by the appellant and the notification of appointment of tax agent. He also held an electronic lodgement declaration for 1998 showing taxable income of $1,721 and total tax $17,928.62 signed in the name of Ms Skoulos. 1134The 1999 return was also lodged on 12 February 2000. It claimed that for the year in question Ms Skoulos received $68,148 income from employment with One Shop in respect of which $32,029.56 tax was deducted. It also shows a claimed business loss from Décore in an amount of $73,965. The loss claimed in the tax return was in fact $70,665. 1135The summary shows that a refund of $32,029.56 was paid as part of the cheque of $49,958.18 to which I have referred above. 1136The summary also states that Ms Skoulos earned net rent of $304. 1137The summary records that the following material was in the possession of the appellant: (a) Replacement group certificate in respect of Ms Skoulos' employment with One Shop consistent with what was disclosed in the tax return. (b) A profit and loss statement for July 1998 to February 1999 for Ms Skoulos trading as Tasty Cravings recording a net loss of $53,502. The profit and loss statement was held both in hardcopy and on the appellant's computers. (c) Profit and loss statement for March 1999 to June 1999 for Ms Skoulos trading as Décore recording a net loss of $20,463. This was held both in hardcopy and on the computers of the appellant. (d) A statement of rental income from 1999 for Skoulos and Venakis showing a net profit of $508 with a distribution to Ms Skoulos of $304. This statement of rental income was also held both in hardcopy and on the appellant's computers. (e) A document entitled "Personal details for Skoulos" with handwriting listing the tax file number, date of birth, address, occupation "One Shop Sales", business activities "Takeaway and picture framing shop" and distribution from unit trust. (f) Further document with handwriting dated 25 August 1999 listing information regarding the business of Décore, the property at Marion Street, Bankstown, the unit trust and personal details for Ms Skoulos. (g) Notification of tax agent signed in the name of Ms Skoulos. (h) Incomplete electronic declaration signed in the name of Ms Skoulos. (i) 1999 tax return showing the appellant as the contact and declaring business income of $71,713 and net rental loss of $9,857 signed in the name of Ms Skoulos. (j) Hardcopy tax return consistent with the one lodged. 1138Mr Filocamo held a copy of the group certificate, the profit and loss statements for Tasty Cravings covering the period July 1998 to February 1999 and for Décore for the period March 1999 to June 1999, together with the statement of rental income showing the distribution of $304. 1139Mr Filocamo also held the notification of appointment of tax agent and an electronic declaration for 1999 showing taxable income of $2,517 loss with total tax of $32,029.54. (b) The evidence 1140In her evidence Ms Skoulos said she first met the appellant at the end of 1999. She said she asked him to do her tax return and look after all the expenses that she had. 1141Ms Skoulos said that when she met the appellant she had a business. She described it as a picture framing business which operated from premises at Marion Street, Bankstown. She stated that she did not have income from any other source when she met the appellant. 1142She stated that prior to operating the picture framing business she was operating a takeaway shop, Tasty Cravings, from the same premises. She said this business operated from late 1998 until Christmas 1999. She said she then closed it down and in the new year she started Décore. 1143She said that very little money was made from Tasty Cravings, about $300 per week. She said she earned very little money from Décore, perhaps even less than from Tasty Cravings. It may be Ms Skoulos was mistaken as to when she changed from the Tasty Cravings business to Décore. This is because she stated she closed Décore at the beginning of 2000 and that she carried on the business of Tasty Cravings in 1998 and Décore in 1999. 1144Ms Skoulos said she owned the property at Marion Street with her brother. She carried on her business at that property. She stated she never asked the appellant to lend her any money in respect of the businesses but in 2000 she asked the appellant to assist her in obtaining two loans, one for $250,000 to pay out her brother's interest in the Bankstown property and the other in respect of her home for $350,000. She said these were arranged through St George Bank. She said the appellant was going to charge her around $18,000 which she paid him. She said the appellant wrote the cheque out of her chequebook and she signed it. She said the money was withdrawn from her account. Ms Skoulos said that the appellant told her that she would get the $18,000 back from a tax refund. She stated that she got the money back around the end of 2002. 1145On being shown the tax return lodged she denied any knowledge of the Canley Vale PO Box, or of Mr Lopez, Mr Campos or Mr Filocamo. She said she thought that the appellant was preparing the tax returns. 1146Ms Skoulos denied she was employed by One Shop. She stated that she did not earn $38,000 from any source in 1997 or 1998 and she did not tell the appellant that she earned anything like that. She stated in the years 1997 to 1998 she was only working two days a week and was in receipt of a single parent pension. She said she earned about $300 from work and about $200 a fortnight from her pension. She said in the first part of 1997 she was working as a shop assistant at Bankstown. She was not aware if anyone was paying tax on her behalf during that time. 1147Ms Skoulos denied any knowledge of tax deductions for the 1998 year in an amount a little over $17,900. She claimed the appellant never showed her a tax return disclosing income from One Shop in an amount of $38,000. 1148Ms Skoulos also said she knew nothing of a business loss of $36,425. She said she never incurred such a loss. 1149Ms Skoulos was shown the notice of assessment for the 1998 year showing a credit amount of $17,928.62. She said the number was familiar but the date did not match. She said the appellant gave her this amount of money but she believed it was given to her in 2002. She said she did not receive this amount in the year 2000. 1150Ms Skoulos was shown the replacement group certificate relating to her purported employment with One Shop during the year ended 30 June 1998. She denied again that she worked for One Shop at an address at Harris Street, Pyrmont. She said the handwriting on the document was not hers and during the period of employment shown on the document, 5 August 1997 to 30 June 1998, the only employment she had was with a sandwich shop. She denied she signed the replacement group certificate. 1151On being shown the loss for that year said to have been incurred from the carrying on of the business Tasty Cravings, Ms Skoulos said that Tasty Cravings was opened in October or November 1998. She stated she had no business by that name in late 1997 or early 1998. She said that she had no business during the financial year ended 30 June 1998 and that she did not tell the appellant that she had. She denied that she had any business which obtained the income or incurred any of the expenses claimed. In particular, she denied that any business which she conducted at Marion Street paid rent as she owned the building. She stated that in fact she purchased the Marion Street building with her brother and they carried on the business together. Ms Skoulos denied the appellant told her he had received a refund notice stating she had a credit for $17,900. She accepted that it was her signature on the notice of appointment of tax agent which, as the summary disclosed, was in the appellant's possession. 1152Ms Skoulos was shown the tax return for the year ended 30 June 1999, the subject of Count 47. She stated during that time she carried on the business Décore. She again denied that the appellant ever told her that somebody else would be preparing her tax return and in particular that any of Mr Campos, Mr Lopez, Mr Gonzalez or Mr Filocamo would be involved. She denied that she was employed by One Shop or earned any income from that company. She claimed she was paying tax in relation to Décore but said she paid nothing like $32,000. She said it was significantly less. 1153She denied that Décore incurred a loss of $70,665 as shown on the 1999 return. 1154She was then shown part of what appeared to be a 1999 STAC return form which showed business income from a business of picture framing of $114,170 with total expenses of $74,751. She recalled that Bankstown Décore Picture Framing was the name under which she carried on the picture framing business, but she said that she was not involved in picture framing until after 30 June 1999. However, she denied deriving total business income of $114,000 from any source in the year ended 30 June 1999. In relation to the expenses shown on that document she denied that she incurred rental payments of $22,000 or that she ever told the appellant that she had made such payments. 1155As with the return for the year ended 30 June 1998, she denied knowledge of the replacement group certificate and repeated that One Shop did not employ her. She stated she was never told that she had an entitlement to a refund for that year in an amount of $32,000 or that the appellant had received a total refund for the 1998/1999 tax years of $49,958. She stated that she did not authorise the appellant to keep a cheque in that amount. 1156She was shown the authority to deposit form but denied that it was her signature on the document. She said that she knew nothing about the figure of $50,397.71, being the amount the subject of the authority. 1157Ms Skoulos acknowledged that she signed the electronic lodgement declaration for the 1999 income tax year. She stated it was one of the documents the appellant asked her to sign for her tax. She also acknowledged that she signed the declaration for the 1998 year. She was referred to the fact that the portion under the heading "Income: Salary & Wages" was completely blank. She stated that the appellant usually said "I'll fill it in later because I am busy" and she believed he made that comment in relation to that document. 1158Ms Skoulos gave further evidence concerning the 1998 tax return. She was shown a handwritten document headed "Personal details". She denied that she ever gave the appellant the details recorded in the form. Although she stated she knew nothing about what appeared at the foot of the page "Distribution from unit trust Skoulos Family Trust", she said that when her husband died there was a family trust from which she received money from time to time and the figures of $2,996 and $1,004 for the 1999 and 1998 years respectively, seemed correct. 1159Ms Skoulos was taken to a profit and loss statement for Tasty Cravings for the period December 1997 to June 1998. This was one of the documents in the possession of the appellant. She denied the rental expenses on the document were correct and said she knew nothing about the document. 1160Ms Skoulos was then asked about a further tax return for the year ended 30 June 1999 showing a taxable income of $61,856, comprising income of $71,713 from a business less a loss on rental property of $9,857. This was one of the returns found in the possession of the appellant. She acknowledged that she signed that document and dated it 7 September 1999. She was referred to the fact that the contact name was the appellant and said that it was a document he requested her to sign and that she understood that it was the income tax return he was going to lodge. However, she said she knew nothing about the reference to taxable income of $61,856 and did not look at those details. She said she just signed the document. She gave similar information in relation to the rental property schedule shown on the return which showed no income received but expenses of $9,857 leading to a loss in that amount. 1161Ms Skoulos denied that she ever borrowed money from the appellant or that he told her his fees would be $49,000. 1162In cross-examination Ms Skoulos acknowledged that you could not state that a document was true and correct until you read it. However, she said she trusted the appellant. She agreed that she went to the appellant to ask him if she could borrow some money and have a line of credit in order to invest that money and that the appellant told her that to borrow money it was necessary to have tax returns. She also agreed that the appellant told her she would have to get the returns completed because the lenders would need to assess them to see how much she could borrow. She agreed that she then asked the appellant to do the returns for her. 1163However, she denied that the appellant said he would have Mr Campos of Marrickville Accounting Services prepare the returns. 1164Ms Skoulos agreed that two or three weeks after the initial conversation with the appellant she brought her records into his office and he said that he would put them on his accounting system to determine her income. She denied that she told the appellant that she had investment properties through which she had run two businesses in the preceding year, although she stated she had run the businesses of Tasty Cravings and Décore. 1165She denied that the appellant took her through her investments in the unit trust. 1166Ms Skoulos admitted that she deposited money with Ramace and got regular payments. She said that when the appellant obtained the $350,000 on the security of her home he said that he would take the money, invest it and she would get a good income every month. 1167It was put to Ms Skoulos and she agreed that in 1998 she was earning income from Tasty Cravings. She agreed there were bank loans at the time in respect of which repayments were about $2,000 a month. She said that between her and her brother they were earning about $700 a week. In that context she acknowledged she earned $38,000 in 1998 gross. 1168It was put to her and she did not agree that she was familiar with the accounts of the business. 1169So far as her financial relationship with the appellant was concerned, Ms Skoulos rejected a proposition that she had a loan from Ramace and the appellant for about $90,000. It was put to her that these borrowings took place between 1999 and 2001. 1170Ms Skoulos also denied that in September 1999 she paid loan fees and accounting fees of about $38,000 to the appellant. She said the $38,000 was her trust monies. She agreed that she paid the appellant $18,200 in September 1999 and received $3,000 from him in October 1999, with further amounts totalling $4,000 in November and December 1999. 1171She denied that in October 2000 she and her brother jointly borrowed $10,000 from the appellant. She stated that she did not know if her brother borrowed that amount. 1172She also denied that she borrowed $6,000 from the appellant in December 2000, $3,000 in February 2001, $15,000 in September 2001, and $10,000 in May 2001. She did agree that for two years from June 1999 she was getting about $1,800 a month from her investment with the appellant. 1173It was put to Ms Skoulos that in 1998 she did not work for One Shop and she agreed. She also agreed she worked for Tasty Cravings. In relation to 1999, she agreed she did not work for One Shop but she worked for Décore. 1174She admitted that when she worked for Tasty Cravings and Décore she did not fill out employment declarations but stated she thought she received group certificates. She said her brother looked after the accounts. 1175It should be noted that these questions were based on the entirely false premise that a person conducting a business as a self-employed person is required to fill out an employment declaration. 1176It was put to Ms Skoulos that her evidence was that she earned $700 per week from Tasty Cravings in the 1998 year. Counsel was corrected by the trial judge who pointed out that Ms Skoulos' evidence was that she and her brother earned $700 per week. She was then asked about this and said the $700 was split between her and her brother. She denied the $38,146 was the gross wage she received from Tasty Cravings in the financial year ended 30 June 1998. It should be noted that the only wages referred to in the income and expenses statement lodged with the return comprised an amount of $28,052 for casual wages. 1177In relation to the 1999 year she stated that she earned about the same amount from Décore as she had in the previous year. It was suggested to her (incorrectly) that that amounted to $700 per week. It was suggested to her and she agreed that that amounted to $68,148 gross. The question was not objected to but it is impossible to see how Ms Skoulos could have given that evidence. In any event she denied that was how much she earned from Décore. She did agree that money was not paid to the ATO on a regular basis. 1178So far as the authority to deposit was concerned, Ms Skoulos again denied in cross-examination that she knew she was getting a refund cheque of about $50,000 which she agreed to deposit into the account of Ramace. 1179In re-examination Ms Skoulos reiterated that she got about $350 a week before any tax was paid from Tasty Cravings and less than $300 a week from Décore. 1180Further cross-examination was allowed on this matter by leave and it was put to Ms Skoulos that she represented to St George Bank that her weekly gross income was $1,500. She said that the appellant completed the document containing that representation and that she never went to St George Bank, the appellant did everything for her. In re-examination she agreed that there was no signature on the page where $1,500 per week appeared and there was nothing to that effect on the pages which she signed. She said she had no recollection about signing the document. 1181In his evidence in chief the appellant acknowledged that Ms Skoulos was not employed by One Shop in the 1998 year, contrary to what was stated on the replacement group certificate. He said, however, the wages and tax instalments were correct. The appellant stated that he calculated the gross wage from the net wage that he was told by the correct employer. When asked who that was he said "It was either Tasty Cravings or Décore, but she was with another employer as well which I can't recall the name". 1182The appellant stated that the replacement group certificate was signed by a Mr Antonios Nissirios, a director of One Shop. He stated that once it was signed he called in Ms Skoulos and together with her other information advised, her that the material would be given to Mr Campos because she wanted to "do her taxes through us". 1183The appellant stated that Ms Skoulos did work for Tasty Cravings. He said that she gave him the books and records of the business in 1998 or 1999 from which he prepared a profit and loss statement based on the records and verbal information. He said the figure of $34,539 for December 1997 to June 1998 was correct. 1184The appellant said that at the time he came into contact with Ms Skoulos she had a commercial property on Marion Street, Bankstown. She stated that she wanted to purchase the property from her brother and also that her brother should be entitled to receive rents from that property. This was because she was operating her business from the premises and she wanted to pay him rent because the property was jointly owned during the years the subject of the tax returns. He also said that she had a family trust with about $200,000 from which she received a very small income. 1185The appellant said he prepared a rental schedule for the property based on the books and records provided to him and advice from Ms Skoulos. He also said he prepared a loan application on her behalf. 1186He was shown the document "Personal details" to which I have referred above. He acknowledged the document was in his handwriting. It should be noted that the document had written alongside the word "occupation" "(One Shop - Sales) G Certificate". The appellant stated the document was to be given to Mr Campos for him to have personal information of Ms Skoulos. He said he would have written the document after his meeting with Ms Skoulos. He said that the notes were similar to the notes he took at the meeting with her, except for the reference to One Shop. He said that was a mistake made by him; he had "done a schedule for One Shop" which included Ms Skoulos and that was the reason it was written. 1187He was referred to a document dated 25 August 1999 which he identified as notes he took during his initial conference with Ms Skoulos. The note stated that the picture framing business commenced in March 1999 whilst Tasty Cravings had closed in January 1999. 1188The appellant stated he loaned Ms Skoulos money in 1998 or early 1999. He said he could not remember the exact date. He said there was a loan agreement but he did not know where it was. He claimed it was last seen before the seizure of his folder "Pagona Skoulos". He said initially the loans were in small amounts from $3,000 to $5,000 to $15,000, but he believed the maximum loan may have been $240,000 or $340,000. 1189The appellant identified the records he received from Ms Skoulos as receipts, bank statements, chequebooks and expenses and also information she gave him verbally, especially about the rent. 1190The appellant stated with reference to the tax return that it was incorrect that Ms Skoulos worked for One Shop, stating she had her own business and she worked for another company as well. He said he could not remember the exact name of the company. He said he recalled that Ms Skoulos had a picture framing business but he could not remember whether that or the business of Tasty Cravings came first. 1191The appellant said income tax returns were required in connection with the application by Ms Skoulos for a loan and she asked that he complete them for her. He claimed he told her that he worked with Mr Campos of Marrickville Accounting Services who could complete her return. 1192The appellant then said the total amount advanced to Ms Skoulos was about $350,000 because he did a valuation on her property. He stated that after he advanced her funds, he also refinanced her property and then she paid him back all the money that was owing to him and she kept funds with Ramace as an investment. He said Ms Skoulos paid interest on the loans made to her. 1193The appellant stated that he presented Ms Skoulos with paper tax returns to sign. He said the electronic lodgement declaration for the 1998 tax year was signed at the same time as the tax return. He stated the only part of the electronic lodgement declaration which was in his handwriting was the name (Pagona Skoulos) and the year. He said the document was signed and dated by Ms Skoulos and the writing stating the total income or loss and the amount of tax instalments was that of Mr Campos. 1194The appellant was shown the authority to deposit $50,397.71 into the account of Ramace. He claimed that it was signed by Ms Skoulos in his presence. He said that Ms Skoulos was notified when the tax refund cheque was received. He said at the time the authority to deposit was signed Ms Skoulos would have owed him roughly $170,000 to $220,000. He said she owed him money for accounting and bookkeeping fees, of about $18,000 or $22,000 in total. 1195In cross-examination the appellant acknowledged he knew all about Ms Skoulos' finances. He agreed he knew she owned the Marion Street property with her brother and that she did not work for One Shop. 1196The appellant also acknowledged that he knew at the time that she was working in her own business, Tasty Cravings, but denied that it was her only source of income, stating she worked for another company as well. He said it was a shop but he could not recall its name. 1197In cross-examination the appellant stated that he believed that Ms Skoulos closed Tasty Cravings and started the picture framing business in the 1999 financial year. He stated he believed in that year she was working for another company to supplement her income because it was not enough. He said he could not remember the name of the company. 1198The appellant stated that he believed Ms Skoulos could have commenced the business of Tasty Cravings in 1997. It was suggested to him it was late 1998 but he said he could not recall. He was referred to Ms Skoulos' evidence that Tasty Cravings opened after 30 June 1998 and he accepted if that was correct it would have been impossible for her to have earned income from that business in the 1998 year. It was put to him in those circumstances the figures relating to Tasty Cravings showing a loss of $34,539 were incorrect as Tasty Cravings was not operating in that year. He stated that according to his records, it was. It should be noted that the appellant was not taken to his handwritten notes which do tend to suggest that the Tasty Cravings business was bought in 1997 and closed in January 1999. 1199The appellant was asked about the profit and loss account prepared by him for Tasty Cravings for the period from December 1997 to June 1998. He was referred in particular to the expenses for rent of $24,000. He stated this was divided between Ms Skoulos and her brother. He claimed that Ms Skoulos paid her brother $10,000 in rent by cheque. He then said it was in cash. He was asked whether he recalled Ms Skoulos saying the claim for rental expenses was nonsense because no one paid rent, as she owned the building. He agreed he recalled that and acknowledged he did not tell his counsel to put to her that she paid $10,000 rent to her brother. This was another question which gave rise to the Browne v Dunn direction. 1200It was put to him that his evidence regarding the rental expenses was a fabrication, which he denied. He also denied that the 1998 figures were fabricated to generate the highest return. 1201He repeated his evidence that Mr Nissirios signed the 1998 One Shop replacement group certificate. He said at that time the name Pagona Skoulos was on it but Mr Nissirios did not ask why he was signing it when he did not know of Ms Skoulos. He was asked about the employment dates 5 August 1997 to 30 June 1998 and said he could not recall from where he obtained them. It was put to him that he made them up but he denied it. He denied he had Mr Nissirios sign a group certificate in blank. 1202The appellant acknowledged that Ms Skoulos' evidence to the effect that she paid $18,000 by cheque was correct. He stated that that money was in repayment of the loan fee and not for accounting work. He said that he kept the income tax refund because she wanted to invest it with Ramace. He insisted that he had loaned Ms Skoulos much more than $36,000. 1203The appellant on the second day of his cross-examination of this count was referred to the rental schedule he prepared which showed gross rent for Marion Street, Bankstown, as $7,800, a net loss for the property of $5,782 apportioned equally between Ms Skoulos and her brother Mr Venakis. He sought to explain the discrepancy in the following terms: "I think this is the amount that was charged to the business, and I'm not sure if the other amount through the journal entry was for her not owning or them not owning a property prior to then." He then said the rent was paid to the previous owner of the property. He claimed that some of the rent would have been paid to the previous owner but he could not say how much it was. It was put to him that he was making it up and he denied it. 1204It was put to the appellant that a fee of $18,000 was excessive for the accounting work he did which he denied. He claimed his invoices for that work were on his file but he did not know where they were at the time of his cross-examination. He acknowledged they were not on his computer. 1205The appellant was also asked about a tax return on his file for 1999 which disclosed business income of $71,713 with a rental loss of $9,857. He stated it was an interim return based on information from Ms Skoulos. He said he sometimes had interim returns signed if the bank wanted them. 1206He acknowledged that a return for the 1998 year gave his postal address but disagreed it would give the appearance that he was a tax agent for Ms Skoulos. He agreed he had Ms Skoulos sign every page. He agreed the tax return showed no employment income but showed a profit of $59,000 from Ms Skoulos' business. He explained the difference between the $34,000 loss on the profit and loss statement by reference to the fact that the former were interim figures. The appellant then said that was what Ms Skoulos had told him she earned from Tasty Cravings. It should be noted that there is nothing in his handwritten notes to confirm this. 1207The appellant was asked about the differences in amounts of individual expense items on the statement of income and expenditure lodged with the tax return and the one contained in the signed tax return showing the net income of $59,040. He said they were adjustments made when he went through the books and records. He acknowledged the difference in costs of sales between $68,000 referred to in the statement of income and expensed lodged with the tax return and $15,000 on the signed return in his possession, which showed a difference of about $90,000 in profit. 1208The appellant acknowledged that he sent the tax return showing a net income of $59,040 to St George Bank, stating he told them that it was an interim tax return not fully reconciled with the books and records. He did not agree that sending the return represented it as a final return. He was referred to the fact it was dated and he said it was normal practice to date interim returns. 1209The appellant was shown a fax he sent to St George Bank concerning an application for a line of credit for Ms Skoulos in an amount of $350,000. He acknowledged this was one of the applications for which a significant component of the amount of $18,000 was charged. He agreed that there was attached to that fax the signed tax return showing income of $59,000. It was put to him and he agreed that the alternatives were that there was either a fraud on the St George Bank or a fraud on the ATO. His only explanation was that they were interim figures and he said he could not suggest any other alternative. The appellant said he did not amend the signed tax return when he got the correct figures because the tax return was to be put through Mr Campos. He said this was his normal practice. He acknowledged that in some cases he had tax returns lodged in paper form and said there was no reason why he did not do that for Ms Skoulos. 1210The appellant was then shown a further hardcopy return which he acknowledged was seized from his office. He agreed this was the final version and that it reflected the information lodged with the ATO for the 1998 year. He stated that the document did not have Ms Skoulos' signature on it because he would have copied it before it was signed. He denied that he did not ask Ms Skoulos to sign it. 1211The appellant was referred to the difference in signature between the signature of Ms Skoulos on the electronic declaration for the 1998 tax year and on the authority to deposit. He was also referred to the evidence of Ms Skoulos to the effect that the signature on the electronic declaration was hers whilst it was not her signature on the authority to deposit. He agreed that the "P" on each signature seemed different but affirmed that he believed they were both her signatures and signed in his presence. 1212In relation to the 1999 tax year, the appellant said that as Ms Skoulos was self-employed she should have given herself a group certificate. He stated he made no inquiries as to whether any tax had been deducted. He was asked in relation to 1999 why some of her income for Décore was shown as business income and some by mistaken reference to One Shop shown as income from employment. He stated that he believed someone who is self-employed can give themselves a group certificate in respect of part of the income received. He said he spoke to Ms Skoulos about that, but did not tell her that as a result she would be paying tax at the highest rate. 1213The appellant agreed that he knew that the picture framing business was not making much money. He stated it was his honest evidence based on documents that Décore had grossed $89,000 before expenses for the 1999 tax year and that gross sales for Tasty Cravings of $93,000 for that year sounded right. He agreed this meant gross sales for both businesses for the year totalled about $180,000 but denied that this was inconsistent with Ms Skoulos' evidence that she was earning $350 per week before tax from Tasty Cravings whilst it operated and $300 per week from Décore. 1214The appellant agreed that he knew that the picture framing business opened after Tasty Cravings closed but denied that he was aware that the picture framing business opened in early 2000. He also said he did not know that Tasty Cravings opened in October or November 1998 and closed in Christmas of 1999. 1215In relation to the 1999 year, he acknowledged that the tax return lodged only referred to data in relation Décore and not Tasty Cravings. He said the rental expenses of $22,000 in the statement of income and expenses lodged with the tax return was created in part by a journal entry. The appellant was referred to the replacement group certificate for the 1999 year and said as with the certificate for the 1998 year, it was signed by Mr Nissirios. He stated he did not draw Mr Nissirios' attention to the fact that the person named on the certificate was Pagona Skoulos and he did not realise there was a mistake when he sent the document to Mr Campos. 1216The appellant was also shown a statement of income and expenses for Tasty Cravings prepared for the 1999 financial year which showed a loss of $53,502 for the period July 1998 to February 1999. He stated he could not recall why he prepared a profit and loss statement for a completely different business to Décore. He said he believed it was a mistake. He was shown an income and expense statement for Décore prepared by him for the period March 1999 to June 1999. He acknowledged that when the gross income disclosed in the income and expense statements for both businesses were added the gross income was equal to that disclosed as the gross income of Décore in the profit and loss statement attached to the tax return. (c) Consideration (i) Count 46 1217There are a number of confusing aspects surrounding this count and Count 47. First, it is by no means clear over what period Ms Skoulos operated Tasty Cravings and which period she operated Décore. At one stage Ms Skoulos denied that she carried on any business in 1998 and that she did not conduct the business Décore until after 30 June 1999. She subsequently agreed that in 1998 she derived income from Tasty Cravings and that in the 1999 tax year she earned income from Décore. 1218A note prepared by the appellant stated that Décore commenced in March 1999 whilst Tasty Cravings closed in January 1999. 1219In these circumstances it seems to me to be correct to conclude that Ms Skoulos was carrying on the business of Tasty Cravings in the 1998 tax year. However, the return for the 1999 year the subject of Count 47 seems incorrect to the extent that the only business said to have been carried on by Ms Skoulos was Décore. It seems to be more probable that in the 1999 tax year both businesses were carried on and in preparing material for the tax return, the appellant simply aggregated the figures which appeared on the income and expense statement prepared by him for the respective businesses. Of itself, in my opinion, it is not indicative of any fraud. 1220Further, there is a suggestion in the evidence that at least in the 1998 tax year Ms Skoulos had employment other than in the business she carried on. She stated she worked in a sandwich shop whilst the appellant stated that he believed she worked somewhere else but he could not recall where. However, the appellant only faintly suggested that the income said to have been earned from employment with One Shop came from that employment. In these circumstances it can be put to one side. 1221The appellant acknowledged that it was incorrect to say that Ms Skoulos worked for One Shop during the 1998 tax year. His explanation was that he listed her occupation on the replacement group certificate because he had written her name on a schedule for One Shop. He said it was a mistake but gave no explanation how he came to write her name on such a schedule, mistakenly insert it in her personal details and then transfer that information to the replacement group certificate. As I have pointed out at par [1206] above, the return that the appellant had Ms Skoulos sign contained no reference to employment income. 1222There was no material in the possession of the appellant which was capable of suggesting that Ms Skoulos earned $38,146 employment income from Tasty Cravings from which tax of $17,928.62 was deducted. As I indicated, the profit and loss account for Tasty Cravings for the year did not record any such amounts as having been paid. The appellant attempted to justify this in cross-examination at one stage by saying Ms Skoulos worked for another company. However, there is no material capable of suggesting that the appellant who did not know the identity of the company had any basis for believing that she earned the amount claimed or had the tax shown in the tax return deducted from that amount. 1223In these circumstances I am satisfied beyond reasonable doubt that the return so far as it claimed employment income and stated that tax was deducted was false to the knowledge of the appellant. In addition, I am satisfied beyond reasonable doubt that the material he prepared to enable the return to be lodged was known by him to be false and prepared to obtain a refund to which Ms Skoulos was not entitled. 1224Further, although it is not necessary to deal in detail with the business income, in my opinion it was established beyond reasonable doubt that the loss claimed was false at least to the extent it was asserted that rental in an amount of $24,000 was paid. Ms Skoulos denied any such rent was paid. It was not put to Ms Skoulos that she paid her brother $10,000 by cheque as the appellant originally asserted or $10,000 in cash as he subsequently asserted. Not only did Ms Skoulos deny paying any rent but the rental schedule prepared by the appellant which showed gross rental from the Marion Street property of $7,800 was inconsistent with the claimed rental expense. 1225In these circumstances it is not necessary to conclude whether or not the return in the appellant's possession which was signed by Ms Skoulos and showed a profit of $59,040, was accurate or designed to deceive St George Bank. Whatever be the case, I am satisfied beyond reasonable doubt that the return that came to be lodged contained the false information to which I have referred, was false to the knowledge of the appellant and was prepared to obtain a refund of tax to which I am satisfied the appellant knew there was no entitlement. 1226In these circumstances I am satisfied that the evidence established this count beyond reasonable doubt. (ii) Count 47 1227The comments concerning One Shop apply with equal force to this count. The appellant acknowledged that in this year any income derived by Ms Skoulos was derived from the businesses carried on by her. He said he did not make any inquiries as to whether tax was deducted. He said he told Ms Skoulos that she could give herself a group certificate although he did not tell her she was paying tax at the highest marginal rate. 1228In neither the income and expense statement prepared by the appellant for Tasty Cravings nor for Décore for the year in question is there any reference to wages in the amount asserted as having been paid or tax deductions being paid to the ATO. There was no basis for the preparation of the group certificate showing such employment income and those deductions and the only inference which can be drawn is that it was prepared by the appellant knowing it was false and for the purpose of obtaining a refund to which there was no entitlement. 1229The loss said to have been incurred in respect of the Décore business was made up in part by a claim that rental payments in an amount of around $22,000 were made. The only explanation that the appellant was able to provide was that it was a journal entry. Ms Skoulos denied that any rental was paid and I am satisfied the appellant knew there was no basis for such a claimed expense. 1230In these circumstances I am satisfied beyond reasonable doubt that the evidence establishes this count. Count 49 - Mr Spiros Skandalis - Income tax return for year ended 30 June 1998 Count 50 - Mr Spiros Skandalis - Income tax return for year ended 30 June 1999 (a) The summary 1231The summary for Count 49 states that an income tax return was lodged on behalf of Mr Skandalis on 6 June 2000. It disclosed employment income of $32,052, the employer being Ladadika. Tax instalments of $15,064.44 were stated as having been deducted. The summary also discloses a loss of $29,616 from a business, Spiros Skandalis Concreting (Concreting). 1232The summary discloses that Mr Skandalis was assessed as entitled to a refund of $15,727.34, payment of which comprised part of a cheque in the sum of $29,531.20 covering the refund for that year and for the 1999 tax year. The cheque was banked into an account N&J Taxation Services. 1233The summary also discloses that Department of Immigration records showed Mr Skandalis was not in Australia from 20 September 1996 to 24 January 1999, this covering the whole of the 1998 tax year. 1234The summary discloses that the appellant had in his possession both in hardcopy and on his computers replacement group certificates for Mr Skandalis in respect of employment with Ladadika consistent with what was shown on the tax return. He also had both in hardcopy and on his computers statements of income and expenditure for Concreting producing a loss of $29,616 consistent with what was shown on the tax return. 1235The summary also discloses that Mr Campos had in his possession a statement of income and expenditure for Concreting disclosing the loss shown on the return. 1236The summary in respect of Count 50 shows that a tax return for Mr Skandalis in respect of the 1999 year was lodged on 6 June 2000. It discloses employment income of $28,132 with instalment deductions of $13,222.04. The employer on this occasion was said to be Master Auto Trim. The return also claimed that Concreting incurred a loss of $23,325. 1237The summary discloses that Mr Skandalis was assessed as entitled to a refund of tax in an amount of $13,803.86, payment of which comprised part of the cheque of $29,531.20 to which I have referred above. 1238The summary discloses that the appellant had in his possession a replacement group certificate for 1999 for Mr Skandalis, the employer being Master Auto Trim, showing wages and deductions as set out in the return. The summary also discloses that the appellant had both in hardcopy and on his computer statements of income and expenditure for Concreting showing the loss of $23,325 claimed in the return. (b) The evidence 1239Mr Skandalis gave evidence that he came to Australia from Greece in 1969 and lived and worked in Australia for a number of years. He stated that in September 1996 he left Australia and lived in Greece for about two and a half to three years. He said during that period he was not earning any income in Australia nor was he working in Greece. 1240He stated that after he returned from Greece he was introduced to the appellant by Mr Liontos. He stated that he did not know the appellant's surname. 1241He said that he went to see the appellant with Mr Liontos because Mr Liontos wanted a personal loan of about $4,000 and it was taken in his (Mr Skandalis') name but Mr Liontos was going to pay. 1242Mr Skandalis said at the meeting with the appellant he was asked to sign three or four forms but he did not know what they were. He said he could only just read English. 1243Mr Skandalis stated that the appellant did not give him copies of any of the documents. He said he did not ask the appellant to do anything in relation to his tax or to do accounting work. He recalled the appellant saying that his commission was about $700 or $800 and that the appellant gave Mr Liontos a cheque for about $4,000. Mr Skandalis said that at a subsequent meeting Mr Liontos gave the appellant $700 or $800, being taken out of the $4,000 he had previously received from the appellant. 1244Mr Skandalis said he could not remember asking the appellant to prepare any tax returns on his behalf. He said he did not have any income for the year ended 30 June 1998 and only became aware that a tax return had been lodged when the ATO came and told him about it. 1245Mr Skandalis was asked if he knew the name N&J Taxation or the name Noel French. He stated that he did not. He said that after he returned to Australia in about 2000 he asked a Fijian man whose main office was on Canterbury Road, Dulwich Hill, to prepare a return. 1246Mr Skandalis gave somewhat confused evidence about the tax refund of $29,531. He said that he spoke to the Fijian person about why his tax was taking so long and the Fijian person told him he had been to another accountant to which he said that he did not know anything about that and the accountant responded they had received a cheque for $29,000. He identified the person to whom he was speaking as the Fijian person. 1247Mr Skandalis stated that he never spoke to the appellant about any such refund. He stated that after the two or three occasions he met the appellant, he never saw him again and he would not recognise him. 1248Mr Skandalis' evidence can be explained by reference to the evidence of Mr Noel French. Mr French described his occupation as a tax accountant, auditor and general accountant carrying on business under the name N&J Taxation Services. He said he knew the name Spiros Skandalis as he was a client of the firm. He said his manager, a Mr Mangusa, was running the office at the time. 1249Mr French stated that his firm was involved in the preparation of the tax return for Mr Skandalis for the year ended 30 June 2000. He stated that in April 2001 a refund cheque for $29,531.20 was received. He said the cheque was far too large as a refund of $1,700 was estimated. He said in those circumstances he contacted the ATO and he also had Mr Mangusa contact them. Mr French said his firm held onto the cheque for a number of months before banking it because he was in discussions with the ATO. He said the ATO ultimately told him to hold the cheque and he banked it into his trust account. He said it sat there until it was repaid to the ATO. He said Mr Skandalis received no benefit and did not earn interest from it. 1250In cross-examination Mr French said that he was not given any written advice by the ATO to bank the refund cheque into his trust account nor did he receive an authority from Mr Skandalis to do so. 1251Mr Skandalis was shown his 1998 tax return and stated he did not earn any income in Australia or Greece as disclosed in that return. He said that he knew nothing about the Canley Vale PO Box address, or a Mr Campos, a Mr Filocamo, Mr Gonzalez or Mr Lopez. 1252He denied that he ever worked for anybody or any company called Ladadika, although he believed it was a nightclub formerly named Defi which changed its name to Ladadika. 1253Referring to his tax return, Mr Skandalis denied that he worked as a cook in the financial year and repeated his denial that he worked for Ladadika. He denied he received a salary from any source from which tax of $15,064 was deducted. He denied he ever ran his own concreting business or told the appellant that he did so. He stated that he was not doing work as a concreter anywhere in the world in 1998 and denied that the claim for a business loss of $29,616 was accurate. 1254Mr Skandalis was referred to the statement of income and expenses for the concreting business contained in the return. He admitted that he lived at premises on Hillard Street, but denied he carried on any business from that address. He denied that any of the items claimed in the statement of income and expenditure were correct. He denied any knowledge of a refund notice or that he ever lived at the address shown on the notice, Buckingham Street, Surry Hills. The Buckingham Street address shown on the refund notice was the address of N&J Taxation. 1255Mr Skandalis was shown a notification of appointment of tax agent signed in blank. He stated it was his signature on it but it was not his handwriting at the top of the page. He was shown an electronic lodgement declaration and said he did not recall signing that document but said the other handwriting was not on it when he signed it. 1256In relation to the 1999 return the subject of Count 50, Mr Skandalis denied that he worked in Australia in 1999 and in particular denied that he worked for Master Auto Trim. He also denied that he was running any business in that year or incurred any business loss. He denied that he had asked the appellant to prepare a tax return for him. He denied receipt of the income shown on the tax return, that the tax instalments shown on the return were deducted or that he incurred a business loss in the year. He stated that all the items shown as income and expenses for the business were incorrect. He denied that he was ever told by the appellant that he was entitled to a refund in respect of that year in an amount of $13,222. 1257In relation to the cheque received by N&J Taxation Services, he stated the Fijian accountant told him he had received a cheque with his name on it in that amount. He acknowledged that he understood the money was returned to the ATO. 1258Mr Skandalis was shown the replacement group certificate for the 1999 year naming his employer as Elijah Magliveras trading as Master Auto Trim. He said he did not know Elijah Magliveras and had not worked for anybody of that name. He said he did not know what auto trimming was. 1259Mr Skandalis said that the immigration records which stated that he left Australia on 20 September 1996 and returned on 24 January 1999 were correct. 1260In cross-examination it was put to Mr Skandalis that he borrowed $10,000 from the appellant. He denied that and said it was $4,000 and it was for the benefit of Mr Liontos. 1261Mr Skandalis was shown a handwritten document dated 18 October 1999 which was admitted as Exhibit 10. The document stated "Loan $10,000 5 years Principal $10,000 Interest $5,000" and underneath it, "Current employment / Kram". He said that he did not recognise the handwriting. 1262It was suggested to Mr Skandalis by reference to that handwritten note that he was employed by a company Kramfors, which he denied. He was asked if he knew a Mr Kattirtzis and he said no, although he admitted he was working with a man called George but did not know his second name. 1263He was then shown what was described in cross-examination as a faded version of a facsimile which he agreed had his name on it. The facsimile said, "Spiros Skandalis...has been employed by our company since October 1995...as a builders labourer". It did not appear to have been signed and it covered a period when Mr Skandalis was not in Australia. 1264Mr Skandalis said he used to work for George but that he could not remember the company. 1265It was suggested to Mr Skandalis that he told the appellant that he was self-employed as a concrete labourer working under his own name for the years 1998 to 1999 and he disagreed. He also disagreed that as he was paid in cash and made all payments for expenses in cash he did not have records for the tax return years 1998 and 1999. He said he did not remember if he told the appellant whether he was in Greece between September 1996 and January 1999. He said he could not remember telling the appellant to prepare financial statements or do bookkeeping work for him. 1266Mr Skandalis in cross-examination repeated his denial that he ever borrowed money from the appellant, stating that the only loan in which he was involved was the $4,000 loan to Mr Liontos. 1267It was put to Mr Skandalis and he denied, that he was told that Mr Campos would prepare his tax return. He denied he signed a tax return. He denied the effect of a notification of appointment of tax agent was explained to him or that he was aware he had signed an electronic lodgement declaration. 1268Mr Skandalis said that between January 1999 and June 1999 he was working "here and there". However, he denied working for Kramfors. 1269In re-examination Mr Skandalis denied that the facsimile from Kramfors stating that he had been employed by that company since October 1995, was correct. He said that to the extent he worked between January and June 1999 at various places, he did not make enough to even buy cigarettes. He stated he did not have a fax machine in November 1999. 1270It should be noted that Mr Magliveras denied that Master Auto Trim had ever employed Mr Skandalis. 1271In his evidence in chief the appellant said he met Mr Skandalis in 1999 or 2000. He stated that Mr Skandalis wanted to borrow funds for business purposes. He was shown the document headed "Personal details" for Mr Skandalis and acknowledged that it was in his handwriting and would have been prepared after his initial meeting with Mr Skandalis. He stated that it was not correct to describe Mr Skandalis as a building contractor/cook. 1272The appellant said that he had a subsequent meeting with Mr Skandalis when he discussed with him how much he wanted to borrow and what he wanted to do with his taxes. The appellant said Mr Skandalis told him at that meeting he was a building contractor, that he was doing some work on the side as well as working for Kramfors. The appellant said he actually spoke to people from that company. 1273The appellant described the information he used to prepare the returns. He said that Mr Skandalis had a few receipts, but not many, and that Mr Skandalis told him verbally what he did in some of the jobs. He stated that Mr Skandalis had a one sheet working paper on which he used to write down all his income and some expenses. The appellant said he went through that document with Mr Skandalis and referred him to some other expenses which might reasonably be expected to be spent and asked him to say yes or no as to whether he incurred expenses on such items. In relation to his self-employment, the appellant said Mr Skandalis told him he was usually paid in cash because they were jobs he was doing outside of his work. He said the job that Mr Skandalis was doing outside his work was general contracting labour, "basically getting a small job and doing that job, and maybe hiring one or two other people to help him, if need be". 1274The appellant said that Mr Skandalis asked for a loan of $10,000 which was loaned pursuant to a loan agreement. He said as with all clients, Mr Skandalis was asked to substantiate income by showing tax returns. He said the notice of appointment of tax agent was signed by Mr Skandalis in front of him and once the documents were signed he followed his usual practice of forwarding the material to Mr Campos. When the documents came back he called Mr Skandalis in to sign the electronic and paper tax return, and attached electronic lodgement declaration. The appellant said he showed Mr Skandalis the estimated refund and asked him if he wanted to apply any of the refund towards repayment of the loan. He said that Mr Skandalis indicated he did and he had him sign an authority to deposit. 1275The appellant was referred to the tax return for the 1998 financial year and acknowledged the statement that Mr Skandalis worked for Ladadika as a cook was incorrect. He said the correct company was Kramfors for whom he worked as a builder or builder's assistant. He said that after looking at some records he ascertained Mr Skandalis' net income was about $700 per week and he calculated the gross income by including holiday pay and tax instalment deductions at the higher rate as there was no employment declaration signed. 1276The appellant acknowledged that he prepared the replacement group certificate for the year showing Ladadika as Mr Skandalis' employer. He said it was signed by Mr Giannakarous. He stated that he could not explain why he was holding a number of unsigned copies of the group certificate. It should be noted that Mr Skandalis' name did not appear on the Ladadika spreadsheet. 1277The appellant was shown the tax return for the 1999 financial year and asked whether he knew Mr Skandalis was overseas in either that year or the 1998 year. He said that he had no idea. He stated, however, that it was definitely incorrect to say that Mr Skandalis worked as a cook for Master Auto Trim. He said the replacement group certificate was placed accidentally under Master Auto Trim; it should have been under Kramfors. He could not say why Mr Skandalis' occupation was described as a cook. 1278The appellant said the statement of income and expenditure was prepared by him. He repeated that Mr Skandalis had a piece of paper on which he kept most of the details. He said it outlined certain expenditures that he might have incurred with very few receipts attached. He stated again that he went through the normal expenditure that a building contractor might incur and that Mr Skandalis agreed that he had some contractors and other expenses that he did not take into account, rent for business use, the hiring of vehicles and materials that he would have had expenses for. 1279The appellant affirmed that there was an authority to deposit the tax refund cheque into the Ramace account. He said that he told Mr Skandalis he was entitled to a refund. He stated he always told his clients, adding that he also told clients to whom he lent money that one way of repaying their loan was to authorise the refund to be paid into the Ramace account. 1280At the outset of his cross-examination, the appellant said that Mr Skandalis told him he was working for Kramfors at the time he wanted the loan. He said that he made inquiries of Kramfors which resulted in receipt of the unsigned fax document stating he was earning $720 gross per week. He denied he typed that document up himself and that he had any drafts of the same letter on his file. 1281The appellant was then shown a file which he identified as a file seized from his office which became Exhibit AAN in the proceedings. He was referred to the electronic lodgement declaration in the file and said it was signed by Mr Skandalis. He stated he could not be sure why the year was left entirely blank. He denied that it was so he could make up whatever he wanted in the tax returns. He was next shown a further electronic declaration signed by Mr Skandalis but with the year only stated as "199". It was put to him and he denied that the last digit was blank so he could fill it in when making up details for a tax return. 1282The appellant was then shown a tax file number application signed by Mr Skandalis on 4 November 1999. He stated he remembered Mr Skandalis signing it in front of him and he agreed he had him sign it in blank. He said he did that because from what he could recall Mr Skandalis did not know his tax file number. It was suggested to the appellant that Mr Skandalis could not have signed it in November 1999 because he was in Greece. In fact Mr Skandalis was not in Greece at that time. According to Immigration records he had returned to Australia on 24 January 1999. 1283He was next shown a copy on his file of the Kramfors letter concerning Mr Skandalis' employment. He was unable to say why it was unsigned. He said he had no idea who prepared the document and had no idea whether its contents were true but stated that he believed it to be true. He denied he typed the letterhead and said he had never seen any other documents like the one in question. He said he made a number of copies because he could not get a clear copy of the fax. 1284The appellant was also shown a photocopy of a business card for Kramfors which had previously been tendered on his behalf in the proceedings and which he said he received from Mr Skandalis. He agreed that the business card did not show the telephone number on the letter but in fact showed that number as a fax number. He also agreed that the mobile number on the business card did not appear on the letter. He said he was unable to explain either of these anomalies. 1285The appellant was then taken back to Exhibit AAN and shown a further version of the Kramfors' letter, again unsigned but dated April 2000. He stated he could have drafted it. It was pointed out to him that it was in almost identical terms to the earlier letter and he was asked why he drafted something in almost identical terms five months later. He stated perhaps it was to have it formally signed. It was put to him that his evidence concerning Kramfors was a fabrication which he denied. 1286The appellant again reiterated that he loaned Mr Skandalis $10,000 and stated that he could not recall it being $3,700. He was shown a document in his file in his handwriting which stated that there was a loan for $3,700 for three weeks and he said that was one of the loans he gave to Mr Skandalis. He was also referred to the fact that the note stated that Mr Skandalis returned to Australia on 24 January 1999. When asked about how that was consistent with what was in the 1998 tax return, the appellant stated that he did not know when Mr Skandalis left Australia. He said he did not know if Mr Skandalis was in Australia between 1995 and 1999. He said he did not know where he was. The appellant stated the only document which supported the fact that Mr Skandalis earned income in Australia in the 1998 and 1999 tax year was his Excel spreadsheet. 1287Later in his cross-examination the appellant repeated that he did not know that Mr Skandalis was not in the country in 1998. He stated that the reference to Mr Skandalis' employer as Ladadika was an honest mistake; instead, the group certificate should have referred to Kramfors. He said it was also an honest mistake to describe Mr Skandalis as an assistant cook. 1288The appellant repeated that Mr Giannakarous signed the replacement group certificate in front of him. He stated he did not believe that the handwriting "assistant cook" immediately underneath the signature was on the replacement group certificate when it was signed. It was put to him that he had to say this because otherwise Mr Giannakarous would have recognised that Mr Skandalis was not an employee, but he denied this. 1289The appellant said he did not know in 1998 how many hours Mr Skandalis was working at Kramfors and how many as a building contractor. He claimed he contacted Kramfors and asked if Mr Skandalis had filled in an employment declaration. He acknowledged he did not have the books and records of that company but he said he spoke to management. He said he could not remember the exact name but that he spoke to two people. He claimed he checked with Mr Skandalis whether what he had been told by these people was correct. He said the people to whom he spoke agreed they would send a letter. The appellant acknowledged he did not check with anyone whether tax had been deducted or paid. The appellant stated that after he received the letter from Kramfors, he did not ring them back and ask for a signed copy. At that stage he referred to the fact that the telephone number on the letter was the same as the fax number on the business card and stated that it was a fax phone. It was put to him that he was speculating and he agreed. 1290The appellant then stated that he could have written the Kramfors letter of 1 November 1999 because the people who he spoke to asked him to do so. He suggested that the person to whom he spoke might not have been able to do it because he was "on the road". 1291When asked about the varying versions of the genesis of the letter from Kramfors of 1 November 1999, he stated that the true version was that he drafted the document. He said that he did it because either the persons with whom he spoke were either "on the road, or they couldn't do it". Notwithstanding this, he denied that the letter was a fabrication. 1292He was cross-examined further on the 1999 return the subject of Count 50 and he said that the statement that Master Auto Trim was the employer was an honest mistake and it should instead have been Kramfors. He agreed that the Kramfors letter said nothing directly about income earned by Mr Skandalis in the 1998 and 1999 tax years but said it did so indirectly. The letter only stated Mr Skandalis' current gross pay. (c) Consideration (i) Count 49 1293The appellant did not seek to contend that because the refund cheque was in fact intercepted by N&J Taxation Services a necessary element of the offence was not made out. He was correct in not doing so. It is well settled that to establish that a person has been defrauded, it is sufficient that the alleged fraudster intentionally creates a situation where the money or property of the other person is put at risk: Peters v The Queen supra at [30]: Spies v The Queen [2000] HCA 43; (2000) 201 CLR 603 at [79]; Wills v Petroulias [2003] NSWCA 286; (2003) 58 NSWLR 598 at [54]; R v Petroulias [2005] NSWCCA 75; (2005) 62 NSWLR 663 at [3], [47]. In the present case the property of the Commonwealth was put at risk at least from the time of the issue of the tax refund cheque. 1294I am satisfied that the evidence establishes this count for the following reasons. 1295It is plain that Mr Skandalis did not derive any income in Australia in the 1998 income tax year whether as an employee or as a proprietor of a business. He was not in Australia. 1296The so-called mistaken insertion of Ladadika as the employer of Mr Skandalis for that year lacks any foundation as his name did not appear on the Ladadika spreadsheet. Further, the appellant offered no reason for his statement that the occupation of Mr Skandalis was that of a cook. I am satisfied beyond reasonable doubt that when the appellant prepared the replacement group certificate stating that Mr Skandalis was employed by Ladadika in the year in question, he knew that to be false. 1297I am also satisfied beyond reasonable doubt that the appellant knew that Mr Skandalis did not earn $32,052 employment income from which $15,064.44 was deducted, either from Kramfors or anyone else. The appellant initially said that he ascertained that Mr Skandalis worked for Kramfors from some records. He did not state what those records were although he acknowledged that he did not hold the books and records of Kramfors. 1298The document upon which he placed reliance was the unsigned facsimile from Kramfors stating that Mr Skandalis had been employed since October 1995 as a builder's labourer earning $720 a week gross. I have set out the evidence concerning this facsimile above. The appellant was unable to explain the discrepancy between the letter and the Kramfors business card. He initially stated that he received the facsimile from persons connected with Kramfors but he did not ask them for a signed copy. He then said he might have drafted the document and ultimately admitted that he did. He claimed that it was not signed because the unidentified persons who gave him the information were on the road or could not do it. He was unable to explain why this prevented them from doing so nor why a later version of the document unsigned appeared on his file. 1299In these circumstances I am satisfied beyond reasonable doubt that the facsimile was a fabrication designed to create the false impression that Mr Skandalis was employed by Kramfors, a matter which the appellant knew to be false. 1300In any event, the appellant acknowledged that he did not know and did not inquire whether or not the amount of tax was in fact deducted. 1301Further I am satisfied beyond reasonable doubt that the business loss claimed was also false to the knowledge of the appellant. Having regard to the other evidence surrounding this count, I am satisfied that Mr Skandalis' denial that he told the appellant he was operating a business in Australia when in fact he was in Greece, should be accepted. It defies belief that Mr Skandalis met with the appellant and answered a series of questions relating to the income and expenses of a non-existent business. 1302The appellant gave evidence that he had Mr Skandalis sign an authority to deposit. In these circumstances it was his intention that either he or Ramace would receive the refund. I am satisfied beyond reasonable doubt that the appellant prepared the financial information used in connection with the return, knowing it to be false and for the purpose of receiving a refund to which he knew Mr Skandalis was not entitled. (ii) Count 50 1303The return the subject of this count was lodged on the same day as the return the subject of Count 49. However, a different incorrect employer was inserted in the replacement group certificate. The only explanation the appellant could give was that Mr Skandalis was mistakenly put under that name. He could not say why he was described as a cook or why two different mistakes regarding the employer were made. 1304In these circumstances I am satisfied beyond reasonable doubt that the appellant was aware at the time he prepared the replacement group certificate that Mr Skandalis did not work for Master Auto Trim or earn income from that business. 1305I am also satisfied that the appellant knew that Mr Skandalis did not earn the income claimed from Kramfors or any other employer. The reasons to which I have referred in dealing with Count 49 apply equally to Count 50. 1306I am also satisfied beyond reasonable doubt that the business loss claimed was not incurred to the knowledge of the appellant. Mr Skandalis denied supplying the information or that as was suggested to him, he was paid in cash for the business he carried on. If the statement of income and expenses was correct this cash would have amounted to $43,754. Further, the manner in which the income and expenses was said to have been ascertained was inherently improbable. For these reasons I am satisfied beyond reasonable doubt that the evidence established this count. Count 51 - Ms Kalliopi Foundis - Income tax return for year ended 30 June 2000 1307This count did not involve the assertion of a mistake as to the identity of the taxpayer's employer. However, as set out in pars [1330] and [1333] below, the count was one to which the Browne v Dunn direction the subject of Ground 2 of the Notice of Appeal could apply. (a) The summary 1308The summary discloses that the tax return the subject of this count was lodged on 24 August 2000. It states that Ms Foundis received $26,983 employment income from which $12,951.84 tax instalments were deducted. The employer was said to be European Enterprises. The summary states that Ms Foundis was entitled to a refund of tax in the amount of $7,421.88 and the cheque in that amount was banked into the Ramace account on 1 September 2000. 1309The summary discloses that the appellant held an authority to deposit the refund into the Ramace account, apparently signed by Ms Foundis. (b) The evidence 1310Ms Foundis, who gave evidence under a different surname, stated that she first met the appellant in 1999 and became his receptionist in October 1999. She said that early on she had a conversation with the appellant about an employment declaration and he said that he would look after it. 1311She said she was being paid about $550 per week in cash. She received no paperwork with her pay and the appellant told her he was withholding tax. She said that she asked for but never received a group certificate. 1312Ms Foundis indicated that she asked the appellant to prepare her tax return for the 2000 tax year. She said that to her knowledge he did but he never showed her a completed tax return nor did she sign one. She said she believed that the appellant was to prepare the return and she had never heard of Mr Filocamo, Mr Gonzalez or Mr Lopez. However, she recalled Mr Campos who she said came into the office from time to time. 1313Ms Foundis said she played no role in typing up tax returns or group certificates. She said that that was done by the appellant. Ms Foundis denied that she ever borrowed any money from the appellant, although she stated that he gave her money as a gift for her 21st birthday. 1314Ms Foundis was shown the tax return lodged on her behalf for the year 2000. She denied that she worked for European Enterprises. She said she knew the company name, describing it as the other name for a bar in Brighton called Rendezvous. She stated she never worked for Rendezvous and did not receive any income from either Rendezvous or European Enterprises. 1315She denied that she ever worked as an office secretary for European Enterprises as stated on the third page of the return. 1316Ms Foundis said that she was earning $550 per week from the appellant but stated that the tax instalment deduction of $12,951 was not correct. She stated that she had provided the appellant with a tax file number. 1317She said that had she seen a return with that amount of tax instalments deducted she would not have signed it as it was quite a high amount. 1318Ms Foundis acknowledged that she signed an authority for her tax refund to be deposited into the Ramace account. She said she signed it because she would then just get the cash instead of waiting for the cheque to be banked. She recalls receiving a couple of hundred dollars. She stated that it was nothing like $7,421. 1319In cross-examination Ms Foundis acknowledged she knew of the business European Enterprises and she used to attend the Rendezvous bar. However, she disagreed that she was employed by European Enterprises. 1320It was suggested to Ms Foundis that she had a gambling problem in 2000 and she denied it. She also denied that the appellant gave her an upfront payment of about $2,000 in August 2000 and $400 a week for 13 weeks. 1321Ms Foundis admitted she signed an electronic lodgement declaration form but denied that in the 2000 tax year she worked for Rendezvous and earned about $280 as a secretary. It was then suggested to her that she could have done work for European Enterprises without being aware of it, to which she replied "possibly". 1322In his evidence in chief concerning this count, the appellant said he met Ms Foundis just prior to employing her. He said that she was going to work for Ramace but as he already had a secretary there was a job which needed to be done with European Enterprises. Consequently, all the books and records of European Enterprises were given to Ramace and he installed a computer for Ms Foundis to do the input on that company. 1323He stated that he loaned Ms Foundis $2,000 under a loan agreement and she was going to make small repayments or deductions out of her wages over a period of time. He said he got together the details to enable Ms Foundis' tax return to be done. 1324He was asked where he got details of her gross income of about $26,000 and he gave the following answer: "Carly Foundis was getting roughly about, given her age I think it was about $280 net a week, but initially she was going to work for Ramace and she did for maybe a couple of days, but the whole reason why we employed her was that European Enterprises wanted to hire us as their accountant to do all their paperwork and then we recommended Carly Foundis as a, as somebody that could do their paperwork on a much cheaper basis. But she wanted to work from our office so at the front desk I had two girls there and Carly Foundis was doing basically all the input on MYOB for European Enterprises and they had a lot of payments, cheque books, receipts that needed to be put into MYOB. So again the reason that when European Enterprises went into liquidation there wasn't anything signed by Carly Foundis in relation to the employment declaration." 1325The appellant said that he gave Ms Foundis a reference which stated that she worked for Ramace because European Enterprises had closed down and could not give her one. 1326The appellant stated that he showed Ms Foundis the notice of assessment. He said the authority to deposit was signed by her. He said the difference between the amount of the refund cheque and the amount Ms Foundis owed was about $4,300. He said that Ms Foundis had a bit of a gambling problem and she asked that the money be paid to her slowly or else it would be wasted. On that basis he gave her an advance of about $400 a week for 10 to 13 weeks separate to her wage. 1327In cross-examination the appellant agreed that initially Ms Foundis was employed by Ramace, a company of which he was a director and shareholder. He said he did not fill in an employment declaration for her even though he had previously stated that that was the employer's responsibility. He said he did not fill in a declaration because she did not stay long enough to work for him; there was a 14 day period to do it. 1328He said that he terminated her employment within the 14 day period because European Enterprises wanted somebody to do their books. 1329The appellant said he did not fill the position he initially offered to Ms Foundis but he employed her in the first place because his permanent secretary was going to leave. 1330He admitted that he did not say anything of that sort to his barrister and that it was not put to Ms Foundis. 1331He agreed that his secretary and Ms Foundis were doing quite separate jobs for Ramace. 1332The appellant claimed in cross-examination that he told Mr Nicolou, who was apparently a director of European Enterprises, that an employment declaration had to be filled out for a new employee. He did not regard it as his responsibility to have one filled out for Ms Foundis, nor did he tell her that as a result she would be paying tax at the higher rate. 1333The appellant stated that Ms Foundis continued sitting at his reception desk even though she was employed by European Enterprises because she asked if she could work from there. It was suggested to him that that was never put to Ms Foundis by his barrister and he agreed with it. He then said that European Enterprises did not have the facilities to accommodate her. He stated that he did not think they had an office. 1334The appellant stated that he employed Ms Foundis to do data entry. It was put to him that her employment commenced in October 1999 and he agreed. However, he denied that he employed her to be a secretary to do general office duties and to answer the phone. A portion of a reference he gave to Ms Foundis stating "In addition to her normal duties, Miss Foundis also performed further duties including data input, clients' reconciliation and all general duties" was put to him and he disagreed that it was correct. He first said he would not have used those exact words but when shown the letter he wrote he acknowledged that he did. He said it was to help her out and telling lies on a piece of paper helped her out in some way. 1335The appellant was referred to his evidence in chief where he said European Enterprises could not give the reference because the company was in administration. He said he could not recall the exact date it went into administration but thought it was in the year 2000. He said he did not know if Mr Nicolou disappeared but agreed he knew Mr Nicolou's home address and phone number from his files. He stated that he did not ring him and ask him to give the reference because he could not sign anything for European Enterprises. 1336The appellant acknowledged there was no one from European Enterprises supervising Ms Foundis, that he was supervising her work and he was paying her cash. He acknowledged he did not give her any payslips. He claimed that in the 14 days or less that Ms Foundis worked for him or Ramace he deducted in tax about $20 to $40 in total even though there was no employment declaration. He said that he paid it to the ATO. 1337The appellant stated that it did not occur to him that if Ms Foundis had a gambling problem he should not write a reference for her at all. He said Ms Foundis knew she was employed by European Enterprises because he told her. He then said that the only client she worked for was European Enterprises. 1338The appellant said he did not inquire of European Enterprises how much tax they deducted from Ms Foundis' salary. He said he did not know why he did not do so, but that it was not his practice to inquire how much tax was deducted. He agreed that he could have done it by looking at his own computer system. 1339Ultimately it was put to the appellant that he made up the figures in the tax return to generate the highest possible refund. He rejected this. He also denied that he gave Ms Foundis a couple of hundred dollars cash and said to her, "this is your refund, I can give it to you in advance instead of you waiting for the cheque". 1340The appellant stated that he told Ms Foundis that her total refund was $7,400. He said that in the context of her telling him that she wanted him to keep the money and pay her a weekly amount, she said "where's the rest". The appellant said he told Ms Foundis it was with Ramace because she had signed an authority. He said that there was a reference to the rest of the money because he had given her an amount in the beginning, as she needed it urgently. The appellant said that he could not recall if he had given that evidence in chief. 1341The appellant was asked if he had any records recording the payment of the balance of the refund to Ms Foundis. He stated that they would have been filed but he did not know where they were. He acknowledged that they were not in Ms Foundis' file or at the office of the CDPP. 1342The appellant stated he knew that Ms Foundis, before he employed her, had recently returned from overseas and had a lot of bills from her overseas holiday. He agreed he knew she would be in desperate need for the $7,400. He was referred to the authority to deposit and denied that there was no reference to the amount of $7,421 because he did not want Ms Foundis to know of the total amount paid to her. (c) Consideration 1343The appellant's evidence was that although he initially employed Ms Foundis who worked at his or his company's premise and although he paid her in cash and ultimately gave her a reference as her employer, she was in fact employed by European Enterprises. 1344Ms Foundis denied she was ever employed by European Enterprises and the objective evidence to which I have referred above overwhelmingly supports this denial. I am satisfied beyond reasonable doubt that the appellant when he prepared material for Ms Foundis' tax return which stated that she worked for European Enterprises, knew that fact to be false. 1345The appellant acknowledged that he did not ask European Enterprises how much tax was deducted from Ms Foundis' salary. There was no basis for him to state $12,951.84 was deducted. I am satisfied he was aware that tax in that amount had not been deducted from Ms Foundis' salary at the time he prepared the material for the return. 1346The execution of the authority to deposit shows that Ramace was intended to be the beneficiary of the refund. Ms Foundis denied she received the $7,421.88 either as a lump sum or by way of periodic payments and although the appellant claimed that he had records to support his assertion that she was paid periodically, he was unable to produce them. Further, it is unlikely that Ms Foundis would not have wished to receive her refund when as the appellant knew she was in need of the funds. 1347In these circumstances I am satisfied that the evidence establishes this count beyond reasonable doubt. Count 53 - Dr Leon Jacob - Income tax return for year ended 30 June 2000 1348This was not a count where a mistake was made, but rather, one to which the Browne v Dunn direction the subject of Ground 2 applied. (a) The summary 1349It is convenient to deal with this count before Count 52 which relates to the return for Mr Joseph D'Cruz for the same year. 1350The summary in respect of this count states that an income tax return was lodged on behalf of Dr Jacob on 12 September 2000. The return stated that Dr Jacob received employment income of $146,398 from Hilton Glass from which tax instalment deductions of $70,271.04 was said to have been made. It also claimed a business loss of $136,275 from a business, Leon Jacob Glass Manufacturer (Jacob Glass). 1351The summary states that Dr Jacob received a refund of $70,099.37 which was banked into the Ramace No 2 Loan account. 1352The summary states that the appellant held on his computer a statement of income and expenditure for Jacob Glass consistent with what was in the tax return. It also recorded the appellant held in hardcopy an authority to deposit the 2000 tax year refund into the Ramace account dated 31 September 2000, together with a fax from Marrickville Accounting Services to the ATO dated 24 November 2000 signed by Mr Campos. The fax enclosed a substantiation letter and a letter from Dr Jacob to the ATO dated 15 November 2000 regarding the expenses claimed in the 2000 return. The letter from Dr Jacob to the ATO was not signed. (b) The evidence 1353In his evidence in chief Dr Jacob said he had been running an engineering consultancy business through a company Jacob & Associates Pty Ltd (Jacob & Associates) for 20 years. He stated the business offered service to the building and automobile industries in terms of design and selection of glass for automobiles, trucks and for buildings. He stated he obtained extra money from giving lectures at university on glass technology. He said that since 1999 he had not been employed by anyone other than Jacob & Associates. He said the company was incorporated in May 1991. 1354The appellant stated that Mr Andrew Fernandez was his brother-in-law. He stated that Mr Fernandez originally came from India and he played a role in assisting him to set up a business in Australia. He said the business was carried on through Hilton Glass. 1355Dr Jacob said that he knew the previous owner of Hilton Glass who had decided to sell his interest in the company. He stated that he assisted Mr Fernandez in acquiring an interest in the company, but that he did not become a director or shareholder himself. 1356Dr Jacob stated that he helped Mr Fernandez by contributing $30,000 to buy equipment which was available for use by the business. He stated that as he recalled it, Mr Fernandez, his wife and another of his brother-in-laws, Mr Anthony D'Cruz, became directors of Hilton Glass. He stated that they were also shareholders of the company. 1357Dr Jacob said that around 1998 to 2000 he became aware that Hilton Glass was in serious financial difficulties. His own accountant, a Mr Willingale, who was auditing the accounts, informed him of this. He said on the advice of Mr Willingale, Hall Chadwick were approached who advised the best thing to do was to place the company into administration. 1358Dr Jacob said up to this time both his company tax returns and his personal tax returns were lodged by Mr Willingale. 1359Dr Jacob said that at the time the company was placed into administration it was working on a large project at Blacktown Hospital and as the company was committed to complete the project, it continued under administration. Dr Jacob said in those circumstances he had to go to the hospital to help ensure the project was completed correctly and within the timeframes. He also said an injection of funds was needed so he had to inject funds into the business. He said in that context he went to the ANZ Bank and was told he had two choices, either refinance or sell his house. 1360Dr Jacob said at that stage he spoke to a Mr Alberan of Hall Chadwick who suggested that if he was going to talk to another bank he should go to the appellant who had some good contacts. He stated that when he went to the appellant he was most helpful and actually arranged for a transfer of the loan over his house. 1361Dr Jacob said that as a result of the assistance of the appellant he was able to refinance his house with St George Bank. He said initially he did not discuss his personal tax returns with the appellant. 1362He stated that during the period of administration more funds were needed to complete the Blacktown Hospital project and as a result he approached the appellant who found cash for both wages and incidental expenses. He stated that the appellant helped them (presumably Hilton Glass and its shareholders) go through until Blacktown Hospital was finished. He confirmed that the appellant helped find cash for wages for Hilton Glass and incidentals for Hilton Glass. He stated that money came through St George Bank and was in addition to his mortgage, although it was short term because the following week it was repaid and "I kept rolling along". 1363Dr Jacob said that after Blacktown Hospital was finished he realised that Hilton Glass "was a lost cause". He approached Hall Chadwick, Mr Alberan, who recommended that he go to the appellant and between the appellant and Hall Chadwick they would settle the account and close Hilton Glass. Dr Jacob said that it was suggested by Hall Chadwick that he put everything with the appellant and they would work together to settle the whole issue. In those circumstances, he said that he put his personal income tax affairs for that year with the appellant. 1364Dr Jacob was asked whether he borrowed any money from the appellant. Dr Jacob said that so far as he was concerned he was "borrowing through the bank, but it was through him and his good offices that kept me rolling". He recalled when he repaid money it was always through the appellant. 1365Dr Jacob said he did not believe Hilton Glass borrowed any money from Ramace and to the best of his recollection he did not make any repayments to Ramace. 1366Dr Jacob said that Hilton Glass went into liquidation sometime in September or October 2000. The summary records that Hilton Glass was placed into liquidation on 11 August 2000. 1367Dr Jacob said in the financial year 2000 his income was derived generally from the business of the engineering consultancy of Jacobs & Associates. Apart from that he had no other regular employment. He stated he did not receive any income from Hilton Glass and he did not tell the appellant that he had any other source of income other than through Jacob & Associates. 1368Dr Jacob said that in the last 20 years his average income was around $200,000 before tax and expenses. He stated that generally every month he put aside money towards the PAYE tax period and to his knowledge that was continuing in the financial year ended 30 June 2000. 1369Dr Jacob said he received tax refund cheques from time to time. He said the amount varied because his work took him overseas and he received income from overseas. He said that his expenses would vary according to the number of overseas trips. He said he would not get refunds of more than $20,000 or $30,000. 1370Dr Jacob said that when he went to the appellant's office to sign documents what occurred varied. Usually the appellant told him where to sign, but most often gave him an opportunity to read the documents before they were signed. However, Dr Jacob said that he did not have any recollection of being shown a tax return for the year 2000. 1371Dr Jacob said that he was not expecting a refund for the financial year ended 30 June 2000. He said there was no discussion with the appellant about a refund. He stated that there was no discussion about fees owed to the appellant and he never received an invoice for organising loans. 1372Dr Jacob was shown the tax return prepared for the year ended 30 June 2000. He stated he did not know anyone who had a post office address in Canley Vale. He said that he believed it was the appellant who was to lodge his 2000 tax return and he could not recall the appellant saying some other accountant or tax agent would be preparing the return. He said he did not know anything about a Mr Gonzalez, a Mr Filocamo and that the appellant never mentioned the name of Mr Campos to him. 1373Dr Jacob denied he ever received a group certificate from Hilton Glass. He denied that he was ever employed by or received income from that company. He denied that he told the appellant that he received income from that company. He stated that as far as he was aware, Hilton Glass was not deducting and paying tax on his behalf for the year ended 30 June 2000 and no one else was deducting $70,271 from his income. He denied that he was a glass manufacturer as stated in the tax return. 1374In relation to the loss of $136,275 in respect of the business Jacob Glass, he stated that he did not personally incur any loss of $136,000 during the income year and that as far as he was aware, no business operating under his own name incurred any loss of that sort during the year. He stated that he would not have signed a tax return containing that information. 1375Dr Jacob denied any knowledge of becoming entitled to a credit or refund in an amount of $69,476.44 for the year ended 30 June 2000 as shown in the notice of assessment. The balance of the refund was a credit for interest on overpaid tax. He stated that he was never told by the appellant that the appellant had received a refund cheque in the amount of $70,099. 1376Dr Jacob acknowledged that he signed the authority to deposit his tax refund into the Ramace account. He stated he did so to achieve finality for the mess they were in. He trusted the appellant and he signed in good faith. He said he did not have any understanding as to how much his tax refund might be for the year but understood it was to be used to help to pay Hall Chadwick. He stated he was not expecting to receive money from the ATO by way of refund or to see any notice of assessment. 1377Dr Jacob was shown the fax from Marrickville Accounting Service addressed to a Mr Maffi at the ATO. He stated he did not authorise Mr Campos to deal with the ATO on his behalf and that he knew nothing about what was described as a "Declaration Letter of Substantiation". He stated that he never saw the attached letter confirming the expenses claimed in the tax return and had no recollection of signing such a letter. He was referred to the part of the letter which stated that the business carried on by him contracted to one company for $152,000 for market research and supply and delivery of various glass panels and frames and denied that it was correct. He stated that the business of Jacob & Associates did not involve market research and it did not contract for any. 1378Dr Jacob said he would not have authorised the letter to be sent. 1379Dr Jacob was asked whether he knew Mr Joseph D'Cruz. He said that Mr D'Cruz worked with Jacob & Associates as the laboratory manager. He said that the only relationship Mr D'Cruz had with Hilton Glass was that he was assisting in the completion of the Blacktown Hospital project. 1380Dr Jacob was finally shown in chief the original of the facsimile from Marrickville Accounting Services enclosing the letter of substantiation. He said that none of the handwriting on the document was his. 1381In cross-examination Dr Jacob agreed Hilton Glass needed urgent funds to complete Blacktown Hospital and he went to the appellant to raise funds for the refinancing of his residential property at Earlwood. He agreed he was injecting his own money into Hilton Glass. It was suggested to Dr Jacob and he agreed, that the appellant advised him that to save his personal assets it was necessary for him to restructure his financial affairs. However, he disagreed that the appellant advised him that to have the maximum security for loans to Hilton Glass, he needed to first start a business in his own name and to pay expenses and to put receipts into his own name that would benefit Hilton Glass. He also disagreed the structure would include Hilton Glass paying an income for the 2000 financial year and that because he was conducting a business in his own name, income and deductions for that year could be claimed personally by him. 1382Dr Jacob was asked whether he had knowledge of the appellant preparing profit and loss statements for himself and Hilton Glass for the 2000 year. He stated that the appellant did the tax returns for that year but was not sure whether he was preparing profit and loss statements and statements of income and expenditure. He said Hilton Glass was under administration and Hall Chadwick "was in the driving seat". He said, "We were there trying to finish the job and pay our employees". He said as far as he was concerned the appellant was doing everything correctly. 1383Dr Jacob agreed he refinanced his home with St George Bank for around $500,000. He was asked whether Ramace advanced funds of $270,000 before that refinance came through and said he was not sure of the amount but the appellant was helping "us" through cash flow requirements. 1384Dr Jacob again stated in cross-examination that he did not recall the appellant stating he was not a tax agent but had someone who could do the tax return. He stated that he did not recall signing the 2000 tax return but said he could very well have signed it in the appellant's office. 1385Dr Jacob said he did not recall a copy of the 2000 tax return having been given to him by the appellant. He said that he did not recall giving the appellant any books and records but he was sure that Hall Chadwick would have because they took control of the company. 1386It was suggested to Dr Jacob that his role was actually that of a manager of Hilton Glass for nine months for the 2000 financial year. He responded that he was trying to salvage the company. He agreed he was injecting his own monies into the company but denied that he was earning $1,500 a week net from that company. He was asked whether he earned much money from Jacob & Associates during that year and he said it was a typical year. He said he believed his gross income from that company for the financial year 2000 was around $150,000 to $160,000 and that Mr Willingale, his normal accountant, would have supplied that information. 1387Dr Jacob stated it was his belief that Jacob & Associates would have given Mr Joseph D'Cruz a group certificate for the year ended 30 June 2000. 1388In his evidence in chief the appellant said that Dr Jacob was referred to him by Hall Chadwick who were the administrators of Hilton Glass for the purpose of providing assistance in the raising of funds to enable Hilton Glass to trade out of administration. 1389The appellant said he had about seven to 10 meetings with Dr Jacob in his office. He said Dr Jacob asked him to obtain a loan and if he could advance funds urgently to him because all the company's bank accounts were controlled by the administrator. The appellant stated that Dr Jacob told him he needed funds urgently. The appellant said his plan was to lend him initially roughly about $250,000 to $270,000 with his (the appellant's) exit plan being to refinance Dr Jacob's property so he could be repaid. 1390The appellant said he initially lent $40,000 to $50,000 in two to three payments pursuant to a loan agreement. He then tried to refinance Dr Jacob's property. The appellant said he referred Dr Jacob to Mr Campos. 1391The appellant stated that the refinancing was initially for $250,000 and then increased by $500,000 to $750,000. He stated he charged Dr Jacob a fee between $18,000 and $20,000. In relation to bookkeeping he charged Dr Jacob about $20,000. He stated that the total advance by Ramace was about $270,000 plus fees. 1392So far as the 2000 tax return was concerned, the appellant said he explained to Dr Jacob that he did not do tax returns himself but had someone who did them, Mr Campos. He stated that after supplying Mr Campos with all the information required to prepare the tax return, he received back the completed tax return and the completed electronic lodgement summary form. He stated that he then called Dr Jacob in to sign the forms, the electronic lodgement declaration and the paper electronic printed forms. He said they were then given back to Mr Campos. The appellant said he also advised Dr Jacob of the amount of tax refund he was to receive and asked him if he wanted to apply that towards the loan. 1393The appellant stated that he had a meeting with Dr Jacob and explained to him that given the company was in administration he should be getting paid by Hilton Glass. He said because he was basically doing all the work for Hilton Glass, he should be entitled to a wage from that company. He stated that Dr Jacob was an employee of Hilton Glass. 1394The appellant said he was familiar with the company Jacob & Associates. He stated that during the year in question Dr Jacob did not receive a group certificate from Jacob & Associates because all the work he was going to do was through Hilton Glass. He stated the way it worked was that Dr Jacob would inject money into Hilton Glass and the appellant advised him that if he was going to do this, he should receive a benefit. He stated in these circumstances Dr Jacob did not get a group certificate from Jacob & Associates because if he did it would have been included in his tax return. 1395The appellant was asked to explain the statement of income and expenditure for Jacob Glass for the period 10 July 1999 to 30 June 2000. He said he consulted Dr Jacob and said to him, "Since you're going to pay for everything out of your own pocket, then all the expenses that are to be paid are going to be paid in your own name. So you can claim the benefit out of that". He said that there were two ways to approach it. One was for Dr Jacob to put all the money into Hilton Glass which would pay for everything and the company would owe Dr Jacob money. He said the other way was for Dr Jacob to pay all the expenses himself and he would get the benefit out of that and Hilton Glass would pay him money for all expenses paid by him. He said that in those circumstances if Hilton Glass did not pay him, he could claim the expenses as a deduction. 1396The appellant was referred to the claim for materials used in the amount of $106,547. He said that amount was for materials purchased by Dr Jacob in his own name but for the benefit of Hilton Glass. The appellant said that the expense for equipment rental fell into the same category. 1397The appellant said that he explained to Dr Jacob that he was entitled to a tax refund of about $70,000. 1398The appellant was referred to the facsimile from Marrickville Accounting Services to Mr Maffi with the enclosed declaration of substantiation. He denied that any of his handwriting appeared on the facsimile, although he said he recognised the handwriting, stating that it was that of Mr Campos. 1399In relation to the declaration of substantiation he said that he prepared the document and had Dr Jacob sign it. 1400In relation to the $152,000 contracted for market research referred to in the letter, the appellant said that it referred to the payments made by Dr Jacob for materials and other expenses that were used by Hilton Glass. He stated that Dr Jacob signed the document in front of him. 1401Cross-examination of the appellant on this issue covered both the tax return filed on behalf of Dr Jacob and that filed for the same year on behalf of Mr D'Cruz, the subject of Count 52. In those circumstances, it is more convenient to deal with the nature of that count and the evidence in chief of Mr D'Cruz and the appellant before dealing with the cross-examination. Count 52 - Mr Joseph D'Cruz - Income tax return for year ended 30 June 2000 1402This was also a count where no mistake was alleged but was one to which the Browne v Dunn direction the subject of Ground 2 applied. (a) The summary 1403The summary for Mr D'Cruz shows that an income tax return for the year ended 30 June 2000 was lodged on his behalf on 12 September 2000, the same date as the tax return lodged on behalf of Dr Jacob. 1404The summary records that Mr D'Cruz received employment income of $58,966 from which tax instalments of $28,903.68 were deducted. The employer was Hilton Glass. It also states that Mr D'Cruz incurred a loss from a business, Joseph D'Cruz Glass Manufacturer (D'Cruz Glass). The summary records that Mr D'Cruz was assessed as entitled to a refund of tax in the sum of $26,171.66 and that a cheque in that amount was received on 22 September 2000 and banked into the Ramace account. 1405The summary also records that the appellant held in hardcopy an authority to deposit a 2000 refund into the bank account of Ramace dated 31 August 2000 signed in the name of Mr D'Cruz. In addition, there was held on the appellant's computers weekly wage figures for 2000 consistent with what appeared on the tax return and a statement of income and expenditure for D'Cruz Glass also consistent with the tax return. (b) The evidence 1406In his evidence in chief Mr D'Cruz said he worked for Jacob & Associates from 1995 to 2008. He said he was a laboratory technician and he had never been a director or shareholder of Jacob & Associates. 1407Mr D'Cruz said that he had done some work for Hilton Glass on a consulting basis. He did not get paid by Hilton Glass for doing that work. 1408Mr D'Cruz said the largest amount he earned per annum from Jacob & Associates in general terms was about $30,000 and the lowest about $15,000. He said he used to manage the laboratory. For the year ended 30 June 2000 his sole source of income was from his employment with Jacob & Associates. He said that he only operated his own business after he became a subcontractor for Jacob & Associates in about 2004 or 2005. He said that he had never been in the business of glass manufacturing. He said the business he set up in 2004 or 2005 as a subcontractor was that of a laboratory technician. 1409Mr D'Cruz said he met the appellant once when he went to see him with Dr Jacob in about August 2000. He said Dr Jacob told him that the appellant was going to look after the "taxation part of it" and close Hilton Glass, and that the appellant would be doing "our" (his and Dr Jacob's) income tax. 1410Mr D'Cruz said he was only involved with the administrators of Hilton Glass during the end of the administration when Dr Jacob was overseas. As he recalled it he was not paid for that work. 1411Mr D'Cruz said that during his meeting with the appellant he recalled signing a form to remit his tax refunds to Ramace. He said he signed it because he was under the impression that the appellant was going to do his tax return. He said this course was requested by Hall Chadwick. 1412Mr D'Cruz denied that when he met with the appellant he had any discussion about his tax returns. He recalled the meeting took some 10 to 15 minutes and that he signed a piece of paper authorising his tax refund to be debited to the account of Ramace. He did not recall any discussion as to how much the refund would be. 1413Mr D'Cruz said in previous years he received tax refunds of around $100 to $200. He said he did not give the appellant any details of his income or any group certificates. He stated he did not have a clue how the appellant would prepare his tax return in those circumstances. He said that he recalled at the meeting that Dr Jacobs signed a similar piece of paper to the one he signed and as he recalled it, there was no discussion between the appellant and Dr Jacob concerning Dr Jacob's group certificates. 1414Mr D'Cruz denied that he ever borrowed any money from Ramace. He understood Ramace to be the appellant's accounting firm. 1415Mr D'Cruz said that the role he played in respect of Hilton Glass was that when Dr Jacob was not available, he used to contact the appellant and ask him to authorise funds for wages for the employees. He said the wages amounted to $4,000 to $5,000. He said he did not know whether or not the wages figure was repaid to the appellant or to his company. 1416Mr D'Cruz was shown the taxation return lodged on his behalf for the year ended 30 June 2000. He said that he knew nothing of the Canley Vale PO Box, nor anything of Mr Filocamo, Mr Campos, Mr Gonzalez or Mr Lopez. He said that he had never heard of Marrickville Accounting Services. 1417He stated the tax return was incorrect in stating that he received an income of $58,966. He said the most he earned in that year was around $16,000 after tax. He denied he told the appellant he earned $58,966. Further, he denied he incurred a business loss of $40,538. He stated that it was untrue that he carried on a business as a glass manufacturer. He said it was also untrue that any business carried on by him earned total income of $38,574 or incurred expenses of $78,627. 1418On being shown the notice of assessment for the year 2000, Mr D'Cruz said that the appellant did not tell him he received the notice of assessment or that he had received a refund cheque of $26,171. 1419Mr D'Cruz was shown a document purporting to show his weekly income and tax deducted for the year ended 30 June 2000. He said that he had never seen the document until he was shown it by ATO investigators. In addition, he said that nothing contained in the document was true. 1420He was shown a statement of income and expenditure of a glass manufacturing business purportedly carried on by him which was in the appellant's possession. He said that none of the items in it correctly reflected the true position as he had never carried on such a business. 1421In cross-examination Mr D'Cruz denied that he worked 40 hours per week assisting in the administration of Hilton Glass. He denied that he was paid an hourly rate of about $28. 1422Mr D'Cruz denied that he requested the appellant or Ramace to do accounting for a business as a glass manufacturer trading in his name. He denied that at the meeting with the appellant it was agreed that Hilton Glass would pay him income so it could be included in his 2000 financial year tax return, or that the appellant suggested to him that if he made payments of expenses such as for materials and equipment in his own name, that he would be able to claim such expenses as tax deductions. 1423Mr D'Cruz denied that he requested the appellant to prepare statements of income and expenditure on his behalf. He stated that he did not give information concerning his personal tax return to the appellant and he did not recall signing a tax return or an electronic document lodgement form. 1424It was suggested to him that during the financial year ended 30 June 2000 he did not work for Jacob & Associates, but rather, he worked for Hilton Glass. He denied this and in particular denied earning about $578 a week from that Hilton Glass. He stated that he did not give the appellant a group certificate for Jacob & Associates for the year 2000 because the tax of Jacob & Associates was being done by Mr Willingale. 1425In his evidence in chief the appellant said he met Mr D'Cruz through Dr Jacob. He said Mr D'Cruz worked for Jacob & Associates prior to 2000 but assisted Dr Jacob with Hilton Glass when it went into administration. He stated that Mr D'Cruz had another business and charged expenses on the same basis as Dr Jacob. He elaborated on this, saying that because Hilton Glass could not pay for anything, the company's expenses had to be paid in their own names. He said Dr Jacob and Mr D'Cruz agreed that some expenses incurred would be paid under the name of Mr D'Cruz. 1426The appellant was shown the statement of income and expenditure for Mr D'Cruz as a glass manufacturer from 10 July 1999 to 30 June 2000. He stated that it related to expenses Dr Jacob paid out of his own money but the invoices were put under Mr D'Cruz's name. He said the reason for that was that Mr D'Cruz could claim some of the expenses because Hilton Glass did not have any money to pay them. He said that the figures relating to the expenses came from information supplied by Dr Jacob. 1427The appellant stated that Mr D'Cruz wanted his tax to be done by Mr Campos. He said that in the year 2000 Mr D'Cruz was working for Hilton Glass not Jacob & Associates. He stated that the Hilton Glass group certificate showed gross income of $58,966. He calculated that in the usual manner. He said he had working papers in relation to the net income and as there was no employment declaration signed, he worked out the highest rate of tax to get the gross income which was $58,966. 1428The appellant stated that he did not lend any money to Mr D'Cruz. He said that it was agreed that any tax refund would go towards the repayment of Dr Jacob's account. He said both Mr D'Cruz and Dr Jacob were present when the authority was signed. 1429In cross-examination the appellant said that he listed Mr D'Cruz as working for Hilton Glass because it was agreed he would do work for that company for the year 2000. He stated that that was supported by the Hilton Glass books and the evidence of Dr Jacob. He said he did not ask Mr D'Cruz about the figures in the books or those supplied from Dr Jacob. He said he did not ask Mr D'Cruz if he completed an employment declaration. 1430The appellant said he received the figures which demonstrated the loss of $40,000 in D'Cruz Glass from Dr Jacob. He said he did not ask Mr D'Cruz about those figures as Mr D'Cruz said that everything was left to Dr Jacob. 1431The appellant denied that he knew that Mr D'Cruz did not operate his own business, stating that he understood he operated D'Cruz Glass from premises at Rooty Hill in the financial year ended 30 June 2000. He stated that Mr D'Cruz did not tell him that he did not move to the address in question in August 2000. He denied making the figures up. 1432The appellant said that he understood that all that Mr D'Cruz's business was doing was paying Dr Jacob's bills and putting them under this name. He agreed that the business did not actually make glass and the only bills that it paid were those owing by Hilton Glass or Dr Jacob. 1433The appellant said that he did not have the books and records of Hilton Glass but saw some of them at the premises of Hilton Glass. He accepted that at some point the books were with Hall Chadwick. He stated that he did not go to the offices of Hall Chadwick to view the books of Hilton Glass. 1434The appellant was referred to the profit and loss statement for D'Cruz Glass prepared by him. He agreed the business carried on by Mr D'Cruz had nothing to do with glass manufacturing. He was referred to the expenses for cleaning, protective clothing and advertising and agreed that Mr D'Cruz had no cleaning, protecting clothing or advertising expenses. He denied that the claims for equipment rental, hire of vehicle, interest paid and materials used were absolute nonsense. However, he accepted that Mr D'Cruz did not use any materials in his own name, nor did he have any expenses for equipment rental or rent for equipment storage. 1435The appellant denied that the statement of income and expenses was quite deceptive. The appellant claimed that he told the administrator, Mr McDonald, about this proposal and he agreed to it. He acknowledged that Mr McDonald was not asked any questions about this matter by his counsel. He then suggested that he could not recall if Mr McDonald was in fact the administrator. The appellant also acknowledged that his counsel did not put the plan to Mr D'Cruz but denied that he made his evidence up. 1436The appellant asserted that he told Mr D'Cruz that he had received a refund cheque of $26,171. He said that the money was applied to Dr Jacob's loan account because Mr D'Cruz had agreed to help Dr Jacob. He stated that this was a verbal agreement. 1437The appellant was unable to explain why, if the plan was to help Dr Jacob that all the expenses were not debited to him. He said he discussed with the administrator but could not recall whether it was Mr McDonald or Mr Albaron. He said the administrator was telephoned during a meeting with Mr D'Cruz and Dr Jacob. It was suggested to him that the reason this was done was to enable two fraudulent returns to be prepared but he denied it. 1438The appellant acknowledged that he was aware that neither Mr D'Cruz nor Dr Jacob were directors of Hilton Glass. He stated that he was careful to advise individual clients to avoid liability by paying up front. He said that he did not advise Dr Jacob or Mr D'Cruz that they need not worry about Hilton Glass because they were not directors. However, he said he did advise them that they had no liability to pay the expenses of Hilton Glass. However, the appellant said Dr Jacob wanted to help out the company. 1439The appellant acknowledged that he knew that Dr Jacob was only involved in the administration of Hilton Glass because his brother-in-law was a director of that company. The appellant acknowledged that Dr Jacob was dealing with him and the administrator to help out his brother-in-law. 1440The appellant agreed that the business of Jacob Glass was solely in the business of paying invoices for Hilton Glass. He agreed that like Mr D'Cruz, Dr Jacob never incurred any of the expenses listed in the income and expenses statement. 1441The appellant denied that the statement of income and expenses for Jacob Glass was created to give the false appearance that the expenses were incurred by Jacob Glass. The appellant acknowledged he knew that Dr Jacob ran his own business, Jacob & Associates. He stated that he recalled the evidence of Dr Jacob that he was never employed by Hilton Glass, but said that Dr Jacob was either mistaken or lying. 1442The appellant was asked how Dr Jacob earned income from Hilton Glass. He gave the following answer: "Yes. The income was earned by him paying the expenses from the approval - by getting approval from the administrator, and then because it was a job that Hilton Glass was doing and then the administrator would pay him income to recover some of those costs. So the income is basically for trading job that he did." However, he denied that it was reimbursement of expenses because the expenses were paid by Dr Jacob in his own name. 1443Once again, the appellant acknowledged that the administrator, Mr McDonald, was not asked any questions about this matter. 1444The appellant stated that he recalled Dr Jacob's evidence that he did not receive any money from Hilton Glass, but denied receipt of an amount of $146,000 was something which Dr Jacob would necessarily remember. 1445The appellant ultimately agreed that Dr Jacob did not receive anything out of the arrangement. The appellant acknowledged that he was aware that the ATO had written in late 2000 asking for details concerning the expenses claimed in Dr Jacob's return. He said on receipt of the letter he called Dr Jacob in and tried to explain the situation and wrote a letter explaining the situation with Dr Jacob in relation to the expenses claimed. 1446The appellant stated that he realised it was necessary to be honest when dealing with the ATO and he said that he was. 1447The appellant was referred to the letter of 15 November 2000 to the ATO which was enclosed with the facsimile from Marrickville Accounting Services to Mr Maffi of the ATO dated 24 November 2000. The appellant acknowledged he drafted that letter. He said he got Dr Jacob to sign the letter, something which Dr Jacob had denied. 1448To understand the cross-examination on the matter it is necessary to set out the letter in full: "Re: Expenses Claimed for the year ended 30th June 2000 (Dr Leon Jacob TFN xxx xxx xxx) I Dr Jacob hereby confirm that the expenses claimed for the year ended 30th June 2000 related to the carrying of a business specializing in specialist glass structures. The business contracted for the purposes of research, design and supply of structural glass panels. The business also contracted to one company for an amount of $152,000.00 for the market research, supply and delivery of various glass panels and frames. Unfortunately this amount was not paid by the debtor and the debtor was placed in liquidation. We have made a formal proof of debt claim with the liquidators but it is uncertain that any money will be received from the debtor. I have been informed by the liquidators of the debtor that there is a possibility that there could be made available a distribution in about six months to one year, subject to the liquidators successfully recovering outstanding amount from the debtors business. Due to this reason, the business income show (sic) for the year ended 30th June 2000 would have been uplifted by another 152,000.00 to give the business a profit. This was not the case. If you require any copies of proof of debt lodged with the liquidators, or any other details, please advise me and they will be forwarded on to you." 1449The appellant asserted that the reference to "one company" in the third paragraph was a reference to Hilton Glass. He claimed that that sentence meant that Dr Jacob was paying the expenses of Hilton Glass. It was put to the appellant that the second paragraph of the letter was totally false. He denied this, saying that Dr Jacob was doing research insofar as he was giving advice on glass panels to Hilton Glass. He acknowledged he had not mentioned that before but said that Dr Jacob was not only just paying the bills of Hilton Glass but doing anything else Hilton Glass required. 1450Ultimately the appellant conceded that Dr Jacob did not do any research in the course of carrying out a business of a glass manufacturer. In relation to design, the only comment the appellant could make was that Dr Jacob designed his chequebook. He said Dr Jacob supplied structural glass panels by paying Hilton Glass' bills. Notwithstanding the somewhat surprising nature of this evidence, the appellant denied it was nonsense. 1451It was ultimately put to him that the letter drafted by him was a complete fiction to defraud the ATO. He could not say why the letter was in his office. He also rejected the proposition that it was put on the letterhead of Mr Campos to distance himself from the false document. 1452The appellant asserted that he checked the details of income and expenditure for Jacob Glass with Dr Jacob. He stated that Dr Jacob did not express any surprise when he saw these figures. (c) Consideration (i) Count 53 1453Although the facts are relatively complex a number of matters are clear. First, it was not suggested by either party that Dr Jacob was a director of Hilton Glass. Second, any income derived by Dr Jacob from Jacob & Associates was not included in the return. Third, it was envisaged by both the appellant and Dr Jacob that any money received by way of tax refund would be paid to Ramace to offset fees or other advances made by the appellant or Ramace to Dr Jacob. 1454Dr Jacob denied that he was employed by Hilton Glass. He also denied any knowledge of a structure whereby income would be paid to him by Hilton Glass and he would claim money advanced by him to that company as a business expense. He expressly denied receiving income from Hilton Glass. 1455The appellant in chief said he advised Dr Jacob that if he was going to put money into Hilton Glass he should obtain a benefit. That was the reason he asserted there was no group certificate for Jacob & Associates. He said the arrangement he suggested was that Dr Jacob claim money paid to Hilton Glass as a business expense and to the extent it was not repaid it could be claimed as a deduction. He acknowledged in cross-examination that the sole business of Jacob Glass was to pay monies for Hilton Glass. 1456The preparation of the so-called substantiation letter by the appellant demonstrates in my opinion that he was aware that Jacob Glass was not carrying on any business and the structure was designed to demonstrate a business loss which had not been incurred. The substantiation letter is set out at par [1448] above. The appellant acknowledged it was false to state that the business had contracted for research and design of structural glass panels. Further, contrary to the evidence of the appellant, the supply of such panels could not be equated to paying the bills of Hilton Glass, nor could a claim that payment of the bills of Hilton Glass be equated to the doing of market research and the supply of various glass frames pursuant to a contract. Further, the letter ignores the fact that Hilton Glass was in administration at the time the payment of the bills was made. 1457In these circumstances I am satisfied beyond reasonable doubt that the claim for a business loss contained in the return was false to the knowledge of the appellant and designed by the appellant to obtain a tax refund for the benefit of Ramace to which he knew that Dr Jacob was not entitled. 1458So far as the employment income was concerned, the appellant's evidence was that it was a payment to recover some of the costs paid by Dr Jacob. It is difficult to see how this could possibly be classified as income. Whatever else be the case, there is nothing to suggest that the appellant had any basis for asserting that $70,271.04 tax had been deducted. I am satisfied that the appellant prepared the material making this claim, knowing it to be false and for the purpose of obtaining the benefit of a tax refund to which he knew that Dr Jacob was not entitled. 1459In these circumstances I am satisfied that the evidence establishes this count beyond reasonable doubt. (ii) Count 52 1460Much of what I have said in considering Count 53 applies with equal force to this count. 1461Mr D'Cruz denied that he worked for Hilton Glass. The appellant claimed he did because he said Mr D'Cruz agreed to work for that company. There is no evidence of any such agreement or evidence that the claim was supported by the books of Hilton Glass. It was not suggested to Mr McDonald that this was the case. Nor was it suggested to Dr Jacob that he had supplied the appellant with details of Mr D'Cruz's employment with Hilton Glass as suggested by the appellant. That would be surprising as the company was in administration and Dr Jacob was not a director. The appellant acknowledged that he did not check with Mr D'Cruz in relation to whether the information was correct. 1462Further, there was nothing to suggest that tax in the amount claimed was deducted. The appellant acknowledged that he simply applied the highest marginal rate of tax to the figure he calculated as net income. There was no basis for that to be done and I am satisfied the appellant prepared the material for this part of the return knowing it to be false and for the purpose of obtaining a tax refund to which he knew that Mr D'Cruz was not entitled. 1463The position if anything is even clearer so far as D'Cruz Glass is concerned. The appellant agreed that he knew Mr D'Cruz was not a glass manufacturer and the only bills that D'Cruz Glass paid were those owing by Hilton Glass or by Dr Jacob. It follows that the appellant knew at the time he prepared the material that there was no justification whatsoever for the claim that Mr D'Cruz carried on the business of D'Cruz Glass which incurred a loss of $40,538. 1464It was plain that the intention of the appellant was that the refund go to Ramace. It is immaterial whether that was in repayment of monies advanced to Dr Jacob or otherwise. 1465It follows in my opinion that the appellant prepared the financial material for the return, knowing it to be false and for the purpose of obtaining a tax refund to which to his knowledge there was no entitlement. 1466In these circumstances I am satisfied that the evidence establishes this count beyond reasonable doubt. Count 55 - Mr Maged Aziz - Income tax return for year ended 30 June 2000 (a) The summary 1467The summary discloses that the tax return for the year 2000 was lodged for Mr Aziz on 29 September of that year. It discloses employment income of $19,166 from Chalmers from which tax instalments of $9,199.68 were deducted, together with employment income of $18,095 from FS Trading Pty Ltd (FS Trading) from which $3,030 of tax instalments were deducted. The summary states that Mr Aziz was assessed as entitled to a refund of $4,632.03 which was paid by cheque in that amount, the cheque being banked into the Ramace No 2 Loan account. 1468The summary also discloses that the appellant had in hardcopy an authority to deposit the $2,000 refund into the Ramace account. (b) The evidence 1469Mr Aziz gave evidence that he had worked as a chef for 18 years. He stated that in 1998 and 1999 he worked as a chef in Brighton Le Sands for a company that had a number of restaurants including one named Testarosa. He stated that he also worked for another restaurant called Mykonos which was owned by the same company. 1470Mr Aziz stated that in 1999 he had a conversation with the appellant regarding tax refunds. He said the appellant used to come for lunch at Testarosa but he was not the restaurant's accountant. Mr Aziz said that he asked the appellant to do his tax refund when he got his group certificate. He said he only knew the appellant by his Christian name. 1471Mr Aziz said the appellant told him to come to his office and bring his group certificate. He said that the company's name as shown on his group certificate was "FS". 1472Mr Aziz said he had no other income other than that he derived from working as a chef for the company's restaurants. He stated he earned about $18,000 to $19,000 a year and tax was taken out of his pay. 1473Mr Aziz said that when he went to the appellant's office he only took his group certificate. He said the appellant never mentioned Mr Campos, Mr Filocamo or Messrs Lopez and Gonzalez. 1474Mr Aziz said that he went to the appellant's office in the evening and the appellant entered information for the group certificate. He said that the appellant told him that he would receive approximately $2,000 by way of a tax refund. Mr Aziz said he did not expect to receive this much. He said that in previous years he had received refunds of between $700 and $1,500. He said that he told the appellant it sounded good and the appellant said that if he wanted a cheque from the appellant's personal account, "all you have to do is just sign it, authorise a deposit for me". Mr Aziz said he then signed an "authorised paper for him" and the appellant told him to come the next day and he would give him the money. 1475The appellant said that apart from the authority he did not sign anything with the appellant. In particular, he said he did not sign a completed tax return. He stated that he did not ask the appellant for a loan. 1476Mr Aziz said that the following day he went to collect the cheque but the appellant said he did not have it and to come back the next day. He said the following day the appellant was not there and he started to get worried. He said he went to the appellant's office three or four times and eventually collected the cheque. 1477Mr Aziz was shown the electronic tax return lodged on his behalf. He said that as he recalled it the income derived from FS Trading and the tax instalment deductions made by that company seemed correct. However, he stated that he knew nothing about Chalmers. He said he never derived any income from Chalmers and knew of no instalment deductions. He said he would not have signed the tax return with those figures on them because he did not work for that company. 1478The appellant was shown a group certificate issued to him by FS Trading for the year in question and agreed that it was the group certificate he took to the appellant. Mr Aziz also identified the authority to deposit he signed. He said the handwriting was his but that he did not date it. 1479Mr Aziz said he did not receive a notice of assessment for the year 2000 and was not told by the appellant that he received it or that he received a cheque for $4,632. He said that when he signed the authority to deposit he was not told by the appellant that a refund of $4,600 was expected and he did not tell the appellant that the appellant could keep the difference between the $4,600 refund and the $2,000 cheque. 1480Mr Aziz was shown and identified the cheque which he received. 1481In cross-examination Mr Aziz agreed the events in question took place 11 years previously and in those circumstances he could be mistaken as to what occurred. It was suggested to him that he approached the appellant for a loan on an urgent basis and he denied it. He also denied that he and the appellant had a conversation during which the appellant said, "I can give you $1,500 cash and when your tax return is done I might be able to give you further funds depending on how much you are entitled to". 1482Mr Aziz denied that he was told by the appellant of Mr Campos. He again denied that he signed a tax return or an appointment of tax agent form. 1483It was suggested to Mr Aziz, which he denied, that at a meeting in about September 2000 the appellant showed him a completed tax return which disclosed an entitlement to a refund of $4,500. He also denied that the appellant said to him, "I can give you a further loan, in cheque, of $2,000 and I will charge you fees with a total amount of about $4,500, including interest". Mr Aziz stated that all the appellant said to him was "I will give you a cheque for $2,000 from my personal account and you sign the authority for me". 1484It was suggested to Mr Aziz that he had two jobs in the 2000 financial year. He stated he had only one. It was put to him that although he did not work for Chalmers he worked separately for the owner of the Testarosa Restaurant, a Mr Massareli and his girlfriend Louisa, in a separate business they ran in their own name from the restaurant premises. He denied he worked in that business and earned $180 a week in the hand. 1485In his evidence in chief the appellant stated that Mr Aziz was working at Testarosa for one of his clients. He said he had met Mr Aziz a few years before the year 2000 when he wanted to borrow some money from him. He said he had not done bookkeeping or accounting work for Mr Aziz. 1486The appellant said that in 2000 Ramace made a loan to Mr Aziz pursuant to a loan agreement. He said he thought the loan was for about $3,500, made partly by cheque and partly by cash. The appellant said that before the monies were advanced there were discussions concerning tax returns. He said in accordance with his normal procedure he would tell the client that he needed tax returns completed so he would have confirmation that the clients could repay their loans. He said that Mr Aziz agreed to have Mr Campos do his tax returns. 1487The appellant stated that the loan that he made to Mr Aziz had an interest component. He said the total amount was about $4,500. 1488The appellant said that it was incorrect to say that Mr Aziz worked for Chalmers. He stated, however, that in addition to working for FS Trading, Mr Aziz worked for Frank (Mr Massareli) and Louise. He said Frank was the owner of FS Trading but he also had with his girlfriend a separate business delivering food. He said that Mr Aziz worked for that business. 1489The appellant asserted that he put Mr Aziz on a spreadsheet for Chalmers by mistake. He said that to enable him to calculate the gross income for Mr Aziz he obtained the working papers from Frank and Louise which he took back to his office. 1490The appellant stated that once Mr Aziz's notice of assessment came in with the refund cheque he went downstairs and spoke to him about it because he had signed an authority to deposit. He stated he deposited the cheque after the authority was signed. He was asked whether he gave Mr Aziz any money by way of refund in relation to his tax and he said he thought there was a small amount but that Mr Aziz had borrowed $5,000 and there would have been an amount given to him in cash. 1491The appellant said there would have been a ledger concerning the payments of Mr Aziz but he did not have it. 1492In cross-examination the appellant stated that Frank, to whom he referred in his evidence in chief, was Frank Saffioti, but that he could not remember Louise's surname. He repeated his evidence that they ran a food delivery business in addition to the restaurant. Mr Saffioti appears to be the person Mr Aziz referred to as Mr Massareli. 1493The appellant said he obtained the information that Mr Aziz worked for Frank Saffioti and Louise from the books and records of Mr Saffioti who subleased a room within his office. He stated, however, he did not have easy access to those books and records because the room was locked up. 1494The appellant stated he did not check any details about Chalmers or the figures in the tax return with Mr Aziz because he did not believe he should. He said he did not ask Mr Aziz if he earned the $19,000 said to have been earned from Chalmers. 1495The appellant claimed that he asked Mr Saffioti whether or not any tax instalments had been deducted. He stated that he did not know where Mr Saffioti was and Mr Saffioti was no longer a client of his. The appellant stated that Mr Aziz worked for Mr Saffioti and Louise, preparing food for delivery within the surrounding area but specifically within the Novotel office suites. He agreed that was exactly the same work he was doing at the Testarosa Restaurant. He stated that he never asked Mr Aziz about any employment declaration for the business named Frank and Louise. 1496The appellant, however, did not rely on this information in calculating the tax instalments. He said he calculated tax instalments at the highest marginal rate because it was Mr Aziz's second job. He did not inquire if instalment deductions were in fact paid to the tax office. 1497The appellant asserted in cross-examination that he had a loan agreement in respect to the loan said to have been made to Mr Aziz but he said that he did not know where it was. He denied that the only amount he gave Mr Aziz for a refund was the figure of $2,000. He denied he gave Mr Aziz the $2,000 when Mr Aziz instructed him to do his tax return. 1498The appellant denied he lied to Mr Aziz and told him that his refund was only $2,000 and kept the balance for himself. (c) Consideration 1499The appellant gave no explanation for the mistake he claimed to have made in asserting that Mr Aziz was employed by Chalmers and earned income and had tax deducted by that company in the amount claimed. All he said was that the name of Mr Aziz was inserted on the Chalmers spreadsheet. It is difficult to see how Chalmers could be inserted as the employer rather than the directors of FS Trading when the return recorded Mr Aziz being employed with the latter company and tax having been deducted from the income said to have been earned from it. 1500A surprising feature of this count was that Mr Aziz was not asked by the appellant whether he in fact earned the additional income from Frank Saffioti or Louise. 1501A further surprising feature is that the work claimed to have been undertaken was identical to the work said to have been undertaken by Mr Aziz as an employee of FS Trading. 1502Although the appellant claimed he asked Mr Saffioti if tax had been deducted, the calculation of tax was not a result of any information received from him but merely inserted on the basis that it was Mr Aziz's second job. The appellant had no basis for concluding that tax in this amount had in fact been deducted or paid to the ATO. 1503So far as the loan was concerned, apart from the cheque for $2,000 there were no records to suggest any further advances whether by cash or cheque were made to Mr Aziz by the appellant. The appellant said there was a loan agreement and a ledger but was unable to say where they were. 1504In these circumstances, I am satisfied beyond reasonable doubt that the evidence of Mr Aziz to the effect that he did not have a second job and that no advances were made to him by the appellant or Ramace, was correct. I am also satisfied beyond reasonable doubt that the appellant supplied the financial information for the tax return knowing it to be false so far as it declared income earned from Chalmers and tax instalments deducted by that company. I am also satisfied the appellant prepared the material for the purpose of obtaining for the benefit of Ramace a refund of tax to which he knew Mr Aziz was not entitled. 1505It follows in my opinion that the evidence establishes this count beyond reasonable doubt. Count 56 - Mr Thiren Pillay - Income tax return for year ended 30 June 2000 1506The directions in relation to mistake and the Browne v Dunn direction did not relate to this count. As I indicated earlier, in these circumstances the appeal in respect of this count should be dismissed. Count 57 - Mr Michael Sharp - Income tax return for year ended 30 June 2000 1507The directions in relation to mistake and the Browne v Dunn direction did not relate to this count. As I indicated, in these circumstances the appeal in respect of this count should be dismissed. Count 3 - Ms Anastasia Bouzianos - Income tax return for year ended 30 June 1997 1508The relevant mistake in relation to Count 3 was a mistake as to the year in respect of which the tax return was said to relate. (a) The summary 1509The summary states that on 25 September 1998 a tax return was lodged on behalf of Anastasia Bouzianos stating that Ms Bouzianos received employment income from Ladadika in the amount of $32,018 from which tax instalment deductions of $15,048.46 were made. The summary states that a refund of $8,846.90 was received on 6 October 1998 which was banked into the account of Ramace on 12 October 1998. 1510The summary also refers to records from the Department of Immigration which show that Ms Bouzianos arrived in Australia on 6 November 1997 and departed on 27 January 1998. 1511The summary also states that the appellant had in his possession a 1997 tax return consistent with the one lodged and a tax calculation showing a refund of $7,656.90. It also states that Mr Campos had in his possession a statement of earnings for Ms Bouzianos consistent with the tax return signed by Mr McDonald. (b) The evidence 1512Ms Bouzianos did not give evidence. 1513In his evidence in chief the appellant was taken to the tax return lodged on behalf of Ms Bouzianos. The appellant stated that the residential address shown on the return was the address of the property that Mr Giannakarous had rented for Ms Bouzianos to live whilst she was staying in Australia. 1514The appellant stated that the tax return was correct insofar as it stated that Ms Bouzianos worked for Ladadika as a singer. He stated that she was one of the singers that were brought over from overseas as a special performer to perform at Ladadika. 1515The appellant stated that he did not directly lend money to Ms Bouzianos. The appellant claimed that Mr Giannakarous lent her money and that he loaned Mr Giannakarous money. He stated that he had a loan agreement with the owner of Ladadika. 1516The appellant asserted that between November 1997 and January 1998 Ms Bouzianos was in Australia singing. He said he met her because she had to join the Musicians Union. He said that he had discussions with her about the Musicians Union and the amount of money she was going to get as wages. 1517The appellant said there was a discussion about tax returns and that he told her that she would have to comply with Australian law and do her taxes here. He stated that he recalled Ms Bouzianos saying that she would comply with whatever she had to and that he then told her he did not do tax returns but he had Mr Campos who could prepare her return. 1518The appellant claimed that Ms Bouzianos signed her tax returns in late 1998 after they were sent to her overseas. 1519The appellant said he received a notice of assessment in respect of Ms Bouzianos' return with a tax refund cheque attached to it. He said he had an authority to deposit the refund into the Ramace account. He said that at the time there was money due by Ms Bouzianos to Mr Giannakarous. 1520It should be noted that Ladadika was only incorporated on 17 June 1997 and on Mr Ibrahim's evidence, the nightclub which it was operating closed down before Christmas of that year. 1521In cross-examination the appellant denied that Ladadika was his nightclub and that he was paying most of the bills. He said that Mr Giannakarous was paying most of the bills and that he only lent him and the company money. He stated that he believed he lent Mr Giannakarous up to $160,000 which was repaid from the sale of his property. He said this occurred before Mr Giannakarous left Australia never to return. 1522The appellant acknowledged that he was the accountant for Ladadika and took a keen interest in the financial affairs of the nightclub. 1523The appellant acknowledged that Ladadika was incorporated on 17 June 1997. He was asked in those circumstances how it was possible that a 1997 tax return could be lodged for Ms Bouzianos showing she earned an income from Ladadika in 1997 of $32,000, when the company had only been in existence for two weeks. The appellant responded by saying that his recollection was that Ms Bouzianos came out earlier and that the $32,000 was paid for a period longer than two weeks. He said she was paid pursuant to an agreement between her and Mr Giannakarous. 1524The appellant gave evidence that Ms Bouzianos was a "second tier" singer and did not receive $16,000 per week. He said that the $16,000 was a calculation he did "to gross the net amount". The appellant said to the best of his recollection Ms Bouzianos sang three nights a week. 1525It was then pointed out to the appellant that Ms Bouzianos did not arrive in Australia until November 1997. The appellant then said that he made an honest mistake as to the tax year in which she worked by placing her under the 1997 replacement group certificates instead of 1998. He said that this may have been the case in respect of the three singers from Greece, the other two singers being the subjects of Counts 4 and 5. He acknowledged that he did not give this evidence in chief. 1526On being shown the immigration records the appellant agreed that Ms Bouzianos only arrived in Australia on 6 November 1997. The appellant acknowledged that this was shortly after the fight which took place outside the nightclub which led to adverse publicity and a significant downturn in takings. It was put to the appellant that she arrived a day after the fight occurred but he said he could not recall. 1527The appellant acknowledged in those circumstances that she sang at best for a few weeks. He said, however, that she got paid $32,000 because she was under contract. The appellant then claimed he made the seven honest mistakes to which I have referred in par [763] above. 1528The appellant was asked what inquiries he made to determine whether or not $15,000 tax had been deducted from Ms Bouzianos' income. He stated he calculated the tax based on the contract she was on. He stated he believed that Ms Bouzianos had signed an employment declaration. However, he stated he did not advise her to do so but rather he had advised Mr Giannakarous that all employees had to sign such a declaration. 1529Notwithstanding that, he stated that his calculation of tax was based on instructions that there was no employment declaration. He stated he did not know if any tax was deducted or paid. 1530The appellant stated that the reason he did not give the tax refund cheque to Ms Bouzianos was that Mr Giannakarous had paid her that amount or close to it. He said he knew that because he had a discussion with Mr Giannakarous. He said the amount paid to her by Mr Giannakarous was the amount of the refund. He said it was paid before she left Australia. 1531It was pointed out to him that he did not mention anything about this in his evidence in chief. He acknowledged he had no authority to give the cheque to Mr Giannakarous. 1532The appellant stated that as at October 1998 he could not recall how much money Mr Giannakarous owed him. However, he denied that putting in a return in Ms Bouzianos' name to the ATO was a way to recover the debt. 1533The appellant stated that Mr Giannakarous deposited money into his account after the loan. He said Mr Giannakarous owed him money, not only in connection with Ladadika but in connection with the Souvlaki Bar which he also owned. 1534The appellant was shown a folder of records of Ramace seized from his office. It showed that prior to the incorporation of Ladadika, amounts totalling $160,000 were deposited into the Ramace account by Mr Giannakarous. The appellant said that they were repayments of previous loans he had given Mr Giannakarous in 1995. He denied that subsequent payments were repayments of Mr Giannakarous' money, but rather payment in respect of loans made by him. 1535The appellant agreed that the $32,000 payment to Ms Bouzianos equated to $554,000 per annum. He stated that was not the agreement, she was not supposed to stay that long. 1536There was subsequent cross-examination concerning the fact that a tax return for 1998 had in fact been lodged for Ms Bouzianos. That cross-examination not only related to the return the subject of this count but also the returns the subject of Counts 4 and 5. In those circumstances, it is more convenient to deal with that evidence after considering evidence which separately related to Counts 4 and 5. Count 4 - Ms Roxani Stavrou - Income tax return for year ended 30 June 1997 1537The relevant mistake in respect of this count again was said to be a mistake as to the year to which the tax return related. (a) The summary 1538The summary shows that a 1997 return was lodged on behalf of Ms Stavrou on 2 October 1998 stating that she earned $36,088 from Ladadika from which tax instalments of $16,961.36 were deducted. The summary shows that a refund was assessed in the amount of $8,029.60 and a cheque for that amount was banked into the Ramace account. 1539Department of Immigration records referred to in the summary showed that the only relevant period in which Ms Stavrou was in Australia was from 13 August 1997 to 8 October 1997. 1540No records were found in the possession of the appellant or Ramace. However, the summary shows that Mr Campos had in his possession a statement of earnings for 1997 showing Ladadika wages of $36,088 and tax of $16,961.36 which was signed by Mr McDonald. (b) The evidence 1541Ms Stavrou did not give evidence. 1542In his evidence in chief on this count the appellant stated that Ms Stavrou worked for Ladadika, being one of the entertainers who came out from Greece. He stated that the entertainers were scouted by Mr Theologou and Mr Giannakarous. He stated the singers who came out were medium grade singers because top grade singers charged a lot of money to come to Australia. He described Ms Stavrou as one of the star singers. 1543He said that Ladadika went into liquidation and there were no employment declarations, which was the reason for the high tax instalment deductions. 1544The appellant said he met Ms Stavrou many times in Australia, both at the nightclub where she was working and at the house in which she was living. He said there were discussions about her tax return. He stated that the discussions centred along the lines that she had an obligation to lodge tax returns as she would be earning income in Australia. 1545The appellant was asked after that whether he followed his normal practice. He stated that he did. He said that the only difference with Ms Stavrou was she was given advances by Mr Giannakarous and he dealt with her wages. He said Ms Stavrou authorised him to deposit the refund cheque when it came in lieu of her being paid by Mr Giannakarous and to put the refund cheque against her account with Ramace. 1546He stated that Ms Stavrou signed an authority to deposit the refund cheque in his presence. 1547At the outset of his cross-examination, the appellant stated that he believed it was a mistake that a return was lodged for Ms Stavrou for the 1997 year and said that it should have been lodged for the 1998 year. He agreed that he was aware that Ms Stavrou was only in Australia for eight weeks. He was asked even assuming there was an honest mistake, how it was possible she earned $36,000 gross for eight weeks work. He said she had an attractive contract. 1548He acknowledged that the annual equivalent of $36,000 for eight weeks was $234,000 a year gross. He said that the nightclub was paying her. 1549The appellant acknowledged that he did not make any inquiries whether or not tax had in fact been deducted and could not say why the return was lodged almost exactly a year after Ms Stavrou left the country. However, he denied that he was just using her details after she departed. 1550The appellant agreed he made the same seven mistakes for Ms Stavrou as he made in relation to Ms Bouzianos. 1551The appellant agreed he did not get an authority from Ms Stavrou to pay any refund to Mr Giannakarous. It was pointed out to the appellant that his evidence that Ms Stavrou lived at Belmore was contrary to what was on the tax return filed on her behalf, namely, that she lived at an address in Balgowlah. He acknowledged that this was Mr Giannakarous' address and stated that he believed she lived there until just before she left. However, he acknowledged he put Mr Giannakarous' home address on the return so that he would receive any correspondence addressed to Ms Stavrou. It was put to him that he did that because he knew the details on the return were false and to avoid his address going on to it. He denied this. 1552It was suggested to him that the return lodged on behalf of Ms Stavrou was another way of letting the ATO repay the money he had lent to Mr Giannakarous. He rejected this proposition. 1553The appellant was asked to explain why no documents were found in his possession. He said there would have been a file, but that he did not know where it was. He denied that he tried to delete the information from his computer before the AFP took it. 1554The appellant was referred to the fact that Mr Campos had in his possession a statement of earnings for 1997 in respect of Ms Stavrou signed by Mr McDonald. He agreed that that was based on information he provided to Mr McDonald. He said it was a mistake and that he had also made a mistake in preparing the replacement group certificate. He denied that it was part of the fraud but agreed that he knew that Ladadika was not incorporated until June 1997. Count 5 - Mr Georgios Tsamados - Income tax return for year ended 30 June 1997 1555The same mistake was alleged to have been made as to the year to which the tax return related in respect of Count 5 as in respect of Counts 3 and 4. (a) The summary 1556The summary discloses that an income tax return for the financial year ended 30 June 1997 was lodged on behalf of Mr Tsamados on 2 October 1998. The return disclosed employment income in the sum of $42,055 received from Ladadika with tax instalment deductions of $19,765.85. It also disclosed that Mr Tsamados was assessed as entitled to a refund in an amount of $9,366.99 and that a cheque for that amount was received and deposited into the Ramace account on 16 October 1998. 1557The summary includes Department of Immigration records which show that Mr Tsamados arrived in Australia on 24 November 1997, departed on 21 March 1998, arrived again on 8 July that year and departed on 9 July. 1558The summary also discloses that no documents were found in the appellant's possession or on his computers. However, the summary shows that Mr Campos held a statement of earnings for 1997 signed by Mr McDonald showing the figures reproduced in the tax return. (b) The evidence 1559Mr Tsamados also did not give evidence. 1560In his evidence in chief the appellant affirmed that Mr Tsamados worked for Ladadika. He said he was a Greek singer and a comedian and he was brought out to be the star male attraction for Ladadika. The appellant said that he met Mr Tsamados at the Ladadika premises and on a few occasions he went out with him. He said he told Mr Tsamados that he had an obligation in Australia to lodge taxation returns and pay income tax. 1561The appellant said that Mr Tsamados came to Australia on 24 November 1997 and departed on 25 May 1998 and said that those were the dates he would have come to sing in this country. 1562In relation to Mr Tsamados' tax returns, the appellant said he followed his normal procedure of having Mr Tsamados sign the forms, the appointment of tax agent and the electronic declaration form, which he proceeded to give to Mr Campos so the returns could be received back by him for Mr Tsamados to sign. 1563The appellant stated that he had received a notice of assessment for Mr Tsamados which Mr Campos brought to his office along with the tax refund cheque. He stated the refund cheque was deposited into his account. He said he had an authority to deposit it from Mr Tsamados. 1564He said after he had banked the cheque it was posted against the ledger account of Ladadika and Mr Giannakarous. He said that this was because Mr Giannakarous had sorted out their financial affairs before they left. 1565He was referred to the statement of earnings for the 1997 year. He stated that he did not prepare it but it was prepared by Mr McDonald. He referred to the period of employment, 1 April 1997 to 30 June 1997, and said that was a generic date for Ladadika. He said the return should be for 1998. 1566In cross-examination the appellant said it was a mistake that he lodged the return for Mr Tsamados for the 1997 year. He agreed that he made the seven mistakes he referred to when being cross-examined in respect of the return lodged on behalf of Ms Bouzianos. He acknowledged that the statement of earnings was received after he prepared the replacement group certificate. 1567He was asked why these steps occurred after Mr Tsamados had left Australia and he said he could not recall the reason. The appellant denied that it was done after Mr Tsamados left Australia so that Mr Tsamados would not know the appellant was using his name to perpetrate a fraud. 1568The appellant agreed that Mr Tsamados arrived in Australia on 24 November 1997 and the club closed before Christmas of that year. He agreed that that meant that Mr Tsamados received $42,000 for four weeks work. However, he denied it was an impossible figure. 1569The appellant was referred to the tax instalment deductions of around $19,700. He agreed he calculated the figure based on an instruction that there was no employment declaration. He stated he checked with the employer but he did not check with Mr Tsamados. 1570The appellant said he could not recall whether the return was signed before Mr Tsamados left or whether he sent it to him in Greece. 1571The appellant acknowledged he did not have any authority to offset the refund cheque against Mr Giannakarous' loan. However, he denied that he defrauded his client, saying he told Mr Tsamados and the other two Greek singers that the money was going to be applied in respect of loans which he made to Mr Giannakarous. He was asked whether he ever got any of the three taxpayers to say that he (the appellant) could use their tax refund and either give it to Mr Giannakarous or keep it for himself and do some book entry to reduce Mr Giannakarous' loan. He said that he did not. 1572It will be seen from the evidence referred to above that in relation to each of the three Greek singers the appellant contended that the returns should have in fact been for the year ended 30 June 1998. The appellant did not suggest they were otherwise inaccurate. Subsequently in the cross-examination there were produced returns for 1998 which had been lodged on behalf of each of the three Greek singers. The appellant agreed that in each case the 1998 returns showed his address as a postal address for the taxpayer, showed different employment income and different tax instalment deductions compared to the 1997 returns and contained replacement group certificates which were completely different. He was asked in those circumstances whether he would like to reconsider his evidence about the honest mistake concerning the wrong year. The appellant responded that the only thing he could say was he did not know how the 1997 return got lodged. It was put to him in relation to Count 3 that he knew why it was lodged because he had prepared an electronic lodgement record found in his office. He said that he could not recall. 1573It was put to him also in respect of the 1997 returns there were statements of earnings signed by Mr McDonald. He agreed that he prepared documents which were relied on to produce those statements of earnings. 1574It was pointed out to the appellant that notices of assessment for the 1998 returns had been received before the 1997 returns were lodged and before he sent the 1997 documents to Mr Campos. He said it occurred because he did not check the notices of assessment when he received them. 1575The appellant was shown his spreadsheet headed "Ladadika Pty Ltd wages breakdown from 2/7/97 for the period 1st July 1997 to 20 March 1998". He was asked how it was that that spreadsheet recorded Mr Tsamados and Ms Bouzianos earning income from Ladadika after 31 December 1997 when the nightclub was not operating. He said he did not know how that was possible but claimed that was what he was told. He denied he knew the information was false. (c) Consideration (i) Count 3 1576It is clear that Ms Bouzianos did not earn income from Ladadika or anyone else in Australia in the financial year ended 30 June 1997. The appellant only accepted this when it was pointed out to him that she was not in Australia for that financial year. He then said the return was for the 1998 year. However, a return had already been lodged by the appellant purportedly on Ms Bouzianos' behalf for that year and the appellant had received a tax assessment. The appellant in those circumstances was unable to give any real explanation as to why the return was lodged. 1577In these circumstances the only possible inference which can be drawn is that the appellant lodged the return knowing it to be false. That conclusion is reinforced by the inherent improbability of Ms Bouzianos earning the amount in question during the period she was in Australia, and further, by the fact that there was not the slightest basis for suggesting that tax in the amount claimed was deducted and paid to the ATO. 1578The appellant had no authority to deal with the tax refund cheque. It is plain that the intention of the appellant was to obtain the refund for the benefit of Ramace. 1579It is not necessary to have regard to the tendency evidence. I am satisfied that the evidence establishes this count beyond reasonable doubt. (ii) Count 4 1580Once again it was only at the commencement of cross-examination on this count that the appellant acknowledged Ms Stavrou did not earn income in Australia in the 1997 year. Once again he said it was a mistake and the return related to the 1998 year. When confronted with the fact that he had already lodged a return purportedly on behalf of Ms Stavrou for the 1998 year and received an assessment, he was unable to give any explanation. 1581As with Ms Bouzianos, it was inherently improbable that Ms Stavrou earned the amount claimed over the short period she was in Australia and there was nothing to suggest that any tax deductions were made from any money to which she was said to be entitled. 1582Further contrary to his evidence in chief, the appellant ultimately acknowledged that he did not have any authority to retain the tax refund. 1583For these reasons and for the reasons I gave in relation to Ms Bouzianos, I am satisfied that this count was established beyond reasonable doubt. (iii) Count 5 1584The circumstances surrounding this count for all intents and purposes were the same as for Counts 3 and 4. It is unnecessary to repeat what I said in relation to those counts. For the same reasons that I set out in relation to those counts, I am satisfied beyond reasonable doubt that the 1997 return was caused to be lodged by the appellant with the knowledge that it was false and with the intention to retain for the benefit of Ramace a refund of tax to which the appellant knew Mr Tsamados was not entitled. 1585I am satisfied that the evidence establishes this count beyond reasonable doubt. Count 37 - George Elliot - Income tax return for year ended 30 June 1999 (a) The summary 1586The summary shows that an income tax return was lodged on behalf of George Elliot for the year ended 30 June 1999 on 4 November that year. It disclosed employment income of $38,142 from Hird Nominees from which tax instalments of $17,926.74 were said to have been deducted. The summary also shows that Mr Elliot was said to have incurred a loss of $21,499 from a business, George's Financial Consultancy (George's). 1587The summary states that a refund of tax was received in an amount of $15,608.78 which was deposited in an account of Favco on 16 December 1999. The summary identifies the fact that the cheque was paid in by the appellant. 1588The summary records that Hird Nominees was incorporated on 4 January 1995 and placed into liquidation on 11 May 1999. The directors were Ms Yvonne and Mr Colin Hird. 1589The summary also records that the appellant had in his possession a hardcopy replacement group certificate consistent with what appeared in the tax return and a statement of income and expenditure for the 1999 financial year for a business Elliot Commission Agent showing net losses consistent with what was in the tax return. This document was held both in hardcopy and on the appellant's computer. 1590The summary also records that the appellant had in hardcopy a statement of income and expenditure for Elliot Commission Agent showing a net loss of $34,463, an incomplete electronic lodgement declaration and an authority to deposit a 1999 refund into a bank account of Favco. (b) The evidence 1591In his evidence in chief Mr Elliot stated that his correct surname was Mr Roumeliotos, although he was also known by his Anglicised name of Elliot. He stated that his Greek Christian name was Georgios, the Anglicised version being George. For convenience I will describe him as Mr Elliot. 1592Mr Elliot said he first came to Australia in 1992 and worked as a finance consultant. He stated that in 1993 or 1994 he moved to and address in Brighton Le Sands where he met the appellant. He stated that when he initially met the appellant, the appellant had an office in Marrickville. He said in the late 1990s when the appellant moved to Brighton, he rented some office space from the appellant at his Novotel business address. 1593Mr Elliot said that he and the appellant were not in business together but that they had an association because they wished to undertake a residential development in Bankstown. 1594Mr Elliot said that in 1999 he operated under George's, otherwise he said he had no other source of income. He said that he was never employed by Hird Nominees. 1595So far as the development at Bankstown was concerned, Mr Elliot said it was done through a company and the appellant arranged finance through solicitors' funds. The arrangement was that the funds would be repaid when the property was sold. He said the property was sold and the loans were repaid in full. 1596Mr Elliot said he borrowed money from the appellant and also from his companies. He said it was not much, just a few thousand in the short term. He said that he paid the appellant back with interest. 1597Mr Elliot said that he asked the appellant to prepare and lodge tax returns for him. He stated that the appellant did not tell him who was going to be lodging the tax return. He never mentioned Mr Filocamo, Mr Lopez or Mr Gonzalez. However, Mr Elliot did say that he had heard of Mr Campos. However, he stated he did not ask Mr Campos to do anything concerning his tax return but he assumed that he was an associate of the appellant. 1598He stated that Mr Campos never asked him to sign any documents. 1599Mr Elliot stated that the appellant did not ask him to sign a completed tax return for the 1999 year. He was shown the electronic tax return lodged on his behalf and said he was not aware of the Canley Vale PO Box. 1600Mr Elliot denied that he received $38,142 employment income in that year. He also denied that tax instalments of $17,926 were deducted from his income. He stated that he was not paying tax during the year. 1601Mr Elliot said that had a tax return with those details been shown to him he would not have signed it because it was incorrect. Mr Elliot was shown the total business income of $45,978 said to have been derived from George's and said he would have earned in the vicinity of that amount in the year in question. However, he was shown the total expenses which produced a net loss of $21,499 and said his business would not have made a loss of that magnitude but rather a profit of around $12,000 to $15,000. He stated he would not have signed a return showing a business loss of $21,500. 1602Mr Elliot said the appellant did not tell him that he had received a notice of assessment or a refund cheque of $15,808. He said the appellant did not tell him he banked the cheque into an account of Favco. He said he knew nothing about Favco and could not recall being appointed a director of it. He was shown a document with company details for Favco which recorded him as a previous director. He said he did not recall being a director and he did not know anything about a bank account in that company's name. 1603Mr Elliot was referred to a replacement group certificate from Hird Nominees with his name on it as an employee. He said the appellant did not tell him he had received such a group certificate. He was also shown a statement of income and expenditure for George's for the period 1 July 1998 to 30 June 1999 showing a net loss of $21,499. He said that he had not seen it before it was shown to him by ATO investigators. 1604Mr Elliot was shown the electronic lodgement declaration which was in the appellant's file and acknowledged it contained his signature. However, he said he had no recollection of signing it. It was pointed out to him that the boxes under his name were left blank and said he had no recollection of signing an electronic lodgement declaration with blank details on it. 1605Mr Elliot was asked about the authority to deposit found in the appellant's records and said the signature on it looked like his but he could not recall signing it. He said he did not write in the manner shown on the signature. 1606Mr Elliot denied he ever authorised the refund cheque to be deposited into the Favco account. He said he did not think he borrowed $15,608 from the appellant. 1607Mr Elliot was shown a statement of income and expenditure showing a different loss to the one claimed in his tax return. He said that he was not aware that the appellant prepared that document and denied that his business incurred a loss of $34,463 shown on the statement. 1608In cross-examination Mr Elliot was shown a series of loan agreements and agreed that as at December 1998 he had loan funds from Ramace in an amount of about $20,000. He agreed that the loans were for business purposes and said he recalled making repayments but he did not know how much and when. 1609Mr Elliot denied that the appellant informed him that he was not a tax agent. He stated he did not recall him giving the appellant his personal details in 1999, but said that the appellant had them all beforehand. 1610It was suggested to Mr Elliot that although he did not work for Hird Nominees in 1999 he did in fact work for European Enterprises trading as Rendezvous. He stated he could not remember earning $421 per week net from that company. He repeated that he was not sure if he signed the authority to deposit the funds into the Favco account. 1611In re-examination Mr Elliot stated Rendezvous was a Greek restaurant in Bay Street, Brighton, and he worked there whenever he was needed. He stated he did not think he earned $38,142 from working at Rendezvous. He said it would have been less. He said he usually worked weekends and then he said he worked four days a week in the afternoon. He said he did not know if Rendezvous was taking tax instalments totalling $17,926. He said he was taking his money in cash. 1612It is convenient at this point to refer to the evidence of Mr and Ms Hird, the directors of Hird Nominees. 1613In his examination in chief Mr Hird stated that he was very familiar with employees of the company. He said they did not include George Elliot, George Roumeliotis, Nick Tsigolis, Constantine Vrakas or Sotirios Vrakas. He said it was not possible for Hird Nominees to have employed someone he did not know. Mr Hird said he imagined he would have signed group certificates for Hird Nominee employees. He stated that after the company went into liquidation the accounting work was done by Hall Chadwick who were recommended by a director of Favco, a Mr Khouri. 1614Mr Hird said that he had never heard of or met the appellant. 1615In relation to Mr Elliot's replacement group certificate, he said he had no recollection of signing it, although the signature looked like his. He gave similar evidence in relation to group certificates for Ms Constantina and Ms Sotirios Vrakas. He stated that Nick Tsigolis never worked for Hird Nominees and that he had no recollection of any involvement in providing replacement group certificates to Hall Chadwick. 1616In cross-examination, Mr Hird said he could not recall if Hird Nominees paid superannuation or group tax. 1617Ms Hird stated that she was the bookkeeper for Hird Nominees. She was also a director and shareholder of the company. She stated that Mr Roumeliotis, Mr Tsigolis and Mr and Mrs Vrakas were not employees of Hird Nominees. She said that she had no recollection of Mr Elliot as an employee and did not recognise his photograph. 1618In his evidence in chief concerning this count the appellant said that he met Mr Elliot in 1993 when he worked at Marrickville. He stated that in 1999 Mr Elliot asked him to do accounts for his finance consultancy business. The appellant said at one point Mr Elliot subleased a room in his office. He said that the business was a business name. 1619The appellant was referred to a document "George Elliot Commission Agent Statement of Income and Expenditure for the period 1/7/98 to 30/6/99". He stated he prepared the document from material received from Mr Elliot including a chequebook, bank statements and cash receipts. The statement showed a loss of $21,499. The appellant was referred to another version of the same document which showed a loss of $34,463. He stated that the difference was explicable by the fact that one was an interim and the other was a final document. He said that he was unsure, but he believed the one showing the lesser loss was the final document. 1620The appellant said he loaned Mr Elliot money on a regular basis. He was shown loan agreements for $5,000 and $15,000 respectively and said that there would have been interest attached to the loans. 1621The appellant said he discussed tax returns with Mr Elliot prior to making the loans. He said Mr Elliot told him he wanted to lodge his 1999 return through Mr Campos as he had in previous years. 1622The appellant stated he followed what he described as his normal practice. That is, the documents were submitted to Mr Campos and returned to him when the return was signed. He was shown an electronic lodgement declaration and stated that it was signed by Mr Elliot in front of him. The appellant said that he told Mr Elliot he was entitled to a refund and obtained an authority from Mr Elliot to deposit the refund into Ramace. 1623The appellant was referred to a document entitled "Authority to Deposit", authorising the deposit to be paid into the bank account of Favco. He said it was signed by Mr Elliot. The appellant explained that Favco was a company that he believed Mr Elliot wanted to take over as it was a non-trading company. He said it was agreed that the refund cheque would be paid into the bank account of Favco but said it was in repayment of the loan made by the appellant to Mr Elliot. 1624The appellant was shown the Hird Nominees replacement group certificate. He said that Mr Elliot did not work for Hird Nominees and the preparation of the group certificate was an honest mistake. Once again, he said Mr Elliot's name was mistakenly placed on the wrong spreadsheet. He said the correct employer was European Enterprises trading as Rendezvous. 1625The appellant said that Mr Elliot was helping the owner of European Enterprises, Mr Nick Nicolau, organising entertainment and as a general assistant in relation to the business. He said Mr Nicolau and Mr Elliot were very close friends. 1626The appellant stated that he used the same method as he had with other taxpayers in calculating the gross income for Mr Elliot. He said from the books and records of European Enterprises and from what he was told by a director of that company he worked out Mr Elliot's net wage and arrived at the gross by applying the top marginal rate because the company records did not show Mr Elliot had completed an employment declaration. 1627The appellant stated he believed Mr Elliot worked at least a couple a days a week and it was a night job because the restaurant operated at night. 1628The appellant claimed that he gave Mr Elliot the notice of assessment of tax and copies of his tax return. 1629In cross-examination the appellant agreed that he had a close working relationship with Mr Elliot. He described Mr Elliot as a close friend and tenant. He said that Mr Elliot paid rent regularly, although he was behind a few times. The appellant could not recall how far he was behind. 1630The appellant acknowledged that Mr Elliot worked in an office two rooms down from him. He also acknowledged that he knew that Mr Elliot did not work for Hird Nominees. He said that it was an honest mistake like the Ladadika mistakes that Mr Elliot was recorded as working for Hird Nominees. He acknowledged that Ladadika was the first spreadsheet in his folder of spreadsheets but could not explain why, if it was an honest mistake, Mr Elliot's name did not appear on the first spreadsheet. He acknowledged that if it was a mistake he must have put Mr Elliot's name on the Hird Nominees spreadsheet which was further down the list. 1631The appellant said that honest mistake continued when he typed the replacement group certificate. He was shown the replacement group certificate for Hird Nominees and acknowledged that the handwriting on it was his and that the document was typed by him. The appellant stated that he wrote that Mr Elliot's employer was Hird Nominees by mistake, although the figures for income were correct. 1632The appellant then stated that he got the figures for income from the Hird Nominees spreadsheet, stating he would have taken them from the books and records of European Enterprises. The appellant denied he believed it was unlikely that Mr Hird would have signed the replacement group certificate with George Elliot's name on it and also denied that he arranged for the document to be signed in blank. 1633The appellant also said that he did not observe the error when the returns came back from Mr Campos. 1634The appellant was taken to the income and expense statements that he prepared, which stated that Mr Elliot's gross income for 1999 was almost $46,000. The appellant said that he checked the expense figures with Mr Elliot who told him that those figures which were based on chequebooks, receipts and statements, were true. The appellant was referred to the rental expense of $16,897. He said he believed that money was paid by Mr Elliot to him, but while he could not recall how much rent Mr Elliot in fact paid, it was about $200 to $300 per week. 1635The appellant was referred to two documents said to have been signed by Mr Elliot which contained entirely different signatures, one of them being the authority to deposit. He said he could not explain this. 1636The appellant was asked the amount of money he believed he was owed by Mr Elliot at the time he received the tax refund cheque. He said he believed it was between $5,000 to $25,000. The appellant agreed that Mr Elliot had paid off loans of $5,000 and $15,000 in full but said he would have paid part of it from the refund cheque. 1637He was then asked if his evidence was that Mr Elliot, whom he said never fell behind with his rent to any substantial extent, owed him $20,000 for over 12 months. The appellant answered that he could have. 1638The appellant was pointed to the fact that one of the loan agreements said the loan was for 14 days and the other was for 26 weeks. The appellant accepted the loans were thus not for a period in excess of 12 months. 1639The appellant was asked how many hours of the day Mr Elliot spent in his financial consultancy business and he agreed that Mr Elliot did normal hours Monday to Friday. He was then asked to explain how it was possible for Mr Elliot to have earned $38,000 working for somebody else. He said that Mr Elliot was helping out Mr Nicolau at night time for three or four nights a week. He stated he was not sure for how many hours. 1640The appellant said he could not recall if he spoke to Mr Elliot about the figure of $38,000. He stated that when he calculated the tax instalment deduction figure he did not check with anybody to see whether or not tax had in fact been deducted from Mr Elliot's income or paid to the ATO. He stated the reason was that he was doing the books and records of the company. 1641The appellant denied that he knew that by sending the documents he was arranging for figures to be included in the tax return that made it look as if $17,900 had been deducted. 1642The appellant said there was no reason the refund cheque went into the Favco account. He said the money could have been transferred back into Ramace but he could not recall exactly what happened to it. (c) Consideration 1643It is difficult to accept that the appellant prepared a replacement group certificate in the mistaken belief that his friend and business associate worked for Hird Nominees. Even if for some reason Mr Elliot's name was mistakenly placed on a spreadsheet relating to that company, it is improbable that the error would not have been picked up when the replacement group certificate was prepared by the appellant or when the prepared return was sent back to the appellant by Mr Campos. 1644It is correct that Mr Elliot worked for European Enterprises. However, it was part time work and Mr Elliot denied he received $38,142. Having regard to the fact that Mr Elliot worked full time during the day at his business, it is improbable that he earned the amount claimed. Further, the appellant stated he could not recall speaking to Mr Elliot about the $38,000 figure. 1645Most significantly, the appellant had no basis for stating that $17,926.74 had been deducted from income earned by Mr Elliot. It was this deduction which formed the basis for the refund. The appellant said he did not check with anyone to see if tax had been deducted. His explanation that he was doing the books and records of the company provided no justification. In addition, his statement that he did not believe the tax return created the impression that $17,900 had been deducted could not possibly be accepted coming from a person with accountancy qualifications. 1646The refund was banked into an account controlled by the appellant as was evidently the appellant's intention having regard to the preparation of the authority to deposit. 1647For these reasons I am satisfied beyond reasonable doubt that the appellant prepared the replacement group certificate and caused the return to be lodged knowing it was false so far as it declared employment income of $38,142 and tax instalment deductions of $17,926.74. I am also satisfied beyond reasonable doubt that the appellant prepared the replacement group certificate and caused a tax return to be lodged to obtain for his benefit a tax refund to which the appellant knew Mr Elliot had no entitlement. 1648In these circumstances it is not necessary to deal with the claimed loss for George's. Having regard to my conclusion on the employment income and tax deductions, I am satisfied that this count was made out beyond reasonable doubt. Count 39 - Ms Constantina Vrakas - Income tax return for year ended 30 June 1998 Count 40 - Ms Constantina Vrakas - Income tax return for year ended 30 June 1999 Count 41 - Mr Sotirios Vrakas - Income tax return for year ended 30 June 1998 Count 42 - Mr Sotirios Vrakas - Income tax return for year ended 30 June 1999 (a) The summary 1649Neither Ms Constantina Vrakas nor Mr Sotirios Vrakas gave evidence. As the evidence given by the appellant on these counts and his cross-examination were intertwined, it is convenient to deal with all four counts together. 1650The summary discloses that on 18 November 1999 an income tax return was lodged on behalf of Ms Vrakas for the year ended 30 June 1998. The return disclosed that Ms Vrakas earned employment income of $29,186 from which tax instalment deductions of $13,717.42 were made. The employer was stated to be Phoenicia. 1651The summary also discloses that Ms Vrakas was assessed on 25 November 1999 as being entitled to a refund of $6,021.02 and that a refund cheque for $12,621.63, being in payment of Ms Vrakas' refund entitlements for the 1998 and 1999 years, was deposited on 3 December 1999 into the bank account of Ramace. 1652Department of Immigration records reveal that Ms Vrakas left Australia on 24 December 1994 and returned on 3 February 1999. The records show she departed on 29 August 1999, returning to Australia on 11 November 2001 and departing on 20 November of that year. The summary does not disclose any documents held by the appellant either in hard or softcopy, whilst Mr Campos held a copy of the notice of assessment. 1653The summary discloses that a return for the financial year ended 30 June 1999 was lodged on behalf of Ms Vrakas on 18 November 1999, the date of the lodgement of the 1998 return. It states that in that year she earned employment income of $26,176 from which tax instalments of $12,302.72 were deducted. The employer was said to be Hird Nominees. 1654On 25 November 1999 Ms Vrakas was assessed as entitled to a refund in an amount of $6,600.61 and as I indicated above, a cheque comprising the refund entitlement for that year and the previous year was banked into the account of Ramace. 1655The summary does not disclose that any documents were found in the appellant's possession, whilst Mr Campos had a notice of assessment. 1656The summary discloses that on the same day as returns were lodged for Ms Vrakas, returns were lodged for Mr Vrakas for the 1998 and 1999 tax years. In relation to the 1998 tax year, the return for Mr Vrakas disclosed he received employment income of $28,166 from which tax instalment deductions of $13,238.02 were made. The employer was said to be Phoenicia. The summary shows that the return also claimed that Mr Vrakas made a loss of $16,002 from carrying on a business in the financial year known as Sotirios Vrakas Carpentry (the carpentry business). 1657The summary discloses that Mr Vrakas was assessed as entitled to a tax refund of $12,035.22 for the year and that a cheque for $24,837.24 comprising Mr Vrakas' refund entitlement for that year and the subsequent year was received and deposited on 3 December 1999 into the Ramace No 2 Loan account. 1658Department of Immigration records disclose that Mr Vrakas arrived in Australia on 3 February 1999 and departed on 27 September 1999 not to return. 1659The summary discloses that the appellant had in his possession a profit and loss statement for 1998 consistent with the tax return, whilst Mr Campos had a copy of the notice of assessment. 1660In respect of the 1999 year the summary states that the return was lodged on 18 November 1999 and disclosed that Mr Vrakas received employment income of $28,146 from which tax instalment deductions of $13,228.62 were made. The employer was named as Hird Nominees. The summary also shows that Mr Vrakas incurred a loss of $19,863 from carrying on the carpentry business. The summary states that on 25 November 1999 Mr Vrakas was assessed as entitled to a refund of $12,802.02, payment of which comprised part of the cheque to which I have referred above. 1661The summary states that the appellant had in his possession a profit and loss account showing the loss claimed in the tax return together with profit and loss statements for 1999 for Hird Nominees. (b) The evidence 1662In his evidence in chief the appellant acknowledged that Ms Vrakas did not work for Phoenicia in the year ended 30 June 1998. He stated that he mistakenly prepared a group certificate for her stating that she worked for Phoenicia. He said the error was again made as a result of her name being placed on the Excel spreadsheet under the wrong employer. 1663The appellant said Ms Vrakas worked for Ladadika doing administrative work. He was referred to the Department of Immigration records showing that Ms Vrakas arrived in Australia on 3 February 1999 and departed on 24 August 1999. He said it was the first time he had seen the dates and that he did not know about them. He stated that he did see the client later on and she told him that was where she was working and he also saw what he described as employee books. 1664The appellant stated that Ms Vrakas owed him money, an advance being made some time in 1999. He said it was a loan made jointly with Mr Vrakas in an amount of about $15,000 to $17,000 to buy some jet skis to take back to Greece. 1665The appellant said there was a loan agreement but he did not have a copy. 1666The appellant stated that he told Ms Vrakas she was entitled to a refund. He could not recall whether he told her over the phone or in person. 1667In relation to the 1999 tax return, the appellant said that the statement that Ms Vrakas worked for Hird Nominees was also an honest mistake. In that year he claimed she worked for AAANG at the Souvlaki Bar. He said she was working behind the front counter and doing part of their books as well. He said he could not assist with the period she worked for that company. 1668The appellant said at the time he banked Ms Vrakas' refund cheques he believed the amount owed was about $15,000 to $17,000 but he could not recall the exact amount. 1669The appellant asserted that he told Mr Vrakas that he was entitled to a tax refund. He said he told him some time in 1999. He said that the cheque of $24,000 deposited into the Ramace account was more than Mr Vrakas owed him and he sent the balance overseas. 1670In relation to the income tax return for the year ended 30 June 1999, the appellant stated that it was incorrect to say that Mr Vrakas worked for Hird Nominees but said he worked for AAANG at the Souvlaki Bar. The appellant said that his job was working behind the counter. 1671The appellant was referred to the group certificate prepared for Mr Vrakas for that year. The appellant said he prepared it and tax was deducted at the highest rate because Mr Vrakas did not fill in an employment declaration with AAANG. 1672The appellant said that Mr Vrakas would have had to have sign documents for Mr Campos to prepare the income tax return. He said he was not sure whether such documents were signed in Australia or whether he sent them overseas for signature. He said he received a notice of assessment from Mr Campos in relation to Mr Vrakas and would have deposited the refund cheque into the Ramace account and rung Mr Vrakas to tell him about it. He agreed he owed a surplus to Mr Vrakas and about $10,000 or $12,000 was paid to him, he thought to an Australian account or to his Visa card. 1673Early in his cross-examination the appellant said he was the accountant for AAANG and before incorporation for the business carried on under the name Souvlaki Bar. 1674He said he knew most of the people working at the Souvlaki Bar, although not all of them. He insisted that he was telling the truth when he said that Mr and Ms Vrakas worked there. He said he knew that they did not sign employment declarations because none were found in the books and records. He agreed that he did not ask Mr or Ms Vrakas whether they signed employment declarations but that he asked the employer. He identified the person he spoke to as either a Mr Klimis or a Mr Vietsis. 1675The appellant claimed in cross-examination that he found some records of AAANG which demonstrated that Mr and Ms Vrakas worked at the Souvlaki Bar. He stated that AAANG kept a wages book but it was very untidy. He agreed that some of the directors of AAANG including Mr Klimis had borrowed substantial amounts of money from him. However, he denied that he fabricated employees of that company in order to get money from the ATO to enable the loan he made to Mr Klimis to be repaid. 1676The appellant was shown a PAYE employers' payment book for Angelo Gouramanis, trading as Souvlaki Beach Front Bar for 1998/1999. The payment book had been seized from the appellant's premises. He agreed that at some stage AAANG took over the business and continued trading as Souvlaki Beachfront Bar. He acknowledged the document related to tax deducted for 1997 and 1998 and that the gross salary and wages to be included on group certificates totalled $47,950. He acknowledged there were six employees and that neither Mr nor Ms Vrakas were included amongst those employees. The appellant's response was they worked for AAANG although he could not recall when that company was incorporated. 1677It was put to him in these circumstances that he knew the group certificates were false and that Mr and Ms Vrakas did not work for the Souvlaki Bar or AAANG in the year ended 30 June 1998. He denied both those suggestions. It should be noted that in chief the appellant did not suggest Ms Vrakas worked for the Souvlaki Bar or AAANG in 1998. Rather, he suggested that she worked for Ladadika. 1678The appellant stated that he believed AAANG kept a list of persons employed by it. He was referred to a wages breakdown for that company seized from his premises, which did not include Mr or Ms Vrakas as employees. He did not think this was the final document. He said that there would have been a reference in some document because that was why he reconciled them as being employed by that company. 1679Later in his cross-examination the appellant stated he could not remember when he met Mr or Ms Vrakas. He said he could not remember if he met them in the 1998 financial year but ultimately acknowledged that they were not in Australia in that year. He then acknowledged it was not possible that Ms Vrakas worked for Ladadika during the 1998 year because she was not in Australia during that year. He said it was an honest mistake and the books and records of Ladadika showed she worked for Ladadika in that year. He acknowledged he did not check that with Ms Vrakas. 1680It was put to the appellant that even if Ms Vrakas were in the country, it would have been impossible for her to earn $29,000 when the nightclub was only operating for a few months in the 1998 year. He claimed that she could have been earning $7,000 gross per month doing administrative work three or four nights a week. 1681The appellant claimed that when he explained the 1998 tax return to Ms Vrakas he did not explain to her that for that year she did not step foot in Australia, that the income was for a nightclub that only operated for three or four months, nor did he ask her whether she was earning $7,000 gross per month for three or four nights a week. 1682The appellant stated that the instalment deductions were calculated at the highest rate as there was no employment declaration. 1683So far as the 1999 return for Ms Vrakas was concerned, the appellant said that although the returns were lodged at the same time and sent to Mr Campos at the same time, he prepared the tax returns at different times, although he could not recall if it was a different time on the same day. He accepted that stating she worked for Hird Nominees was a completely different mistake to the one he made for the previous year. He said for the 1999 year he believed that Ms Vrakas worked for the Souvlaki Bar. 1684The appellant acknowledged that he caused AAANG to be incorporated in December 1998 so it was only in existence for six or seven months of the financial year ended 30 June 1999. He also acknowledged that Ms Vrakas arrived in Australia on 3 February 1999 and left in August 1999. The appellant stated that he did know how many hours exactly Ms Vrakas worked at the Souvlaki Bar or the exact amount she was paid. He said that he did not ask these questions of Ms Vrakas. 1685The appellant stated that he believed Ms Vrakas was working at the front counter of the Souvlaki Bar. It was put to him that $26,000 for five months work, the equivalent of $1,300 gross per week was an extraordinary amount for serving behind a counter and he denied it. 1686The appellant acknowledged that he did not check with anyone whether any tax instalments had been deducted on behalf of Ms Vrakas for the 1999 year. 1687The appellant was shown the replacement group certificate for Ms Vrakas for the 1999 financial year. He denied that Mr or Ms Hird signed the certificate before he filled in the details. He was referred to the details on the replacement group certificate that showed Ms Vrakas worked for Hird Nominees from 1 July 1998 to 28 February 1999. He described these dates as the generic dates the company operated, saying that he did not have specific dates for every employee. Notwithstanding that answer he denied he made the dates up. He stated that on 28 February 1999 either the company had closed or it had stopped paying. 1688The appellant stated that he did not have any conversation with Mr or Ms Hird concerning the replacement group certificate. 1689In relation to the return for Mr Vrakas for the year ended 30 June 1998, he agreed that his evidence in chief was that it was a mistake and that the employer should have been AAANG trading as the Souvlaki Bar. 1690He acknowledged, however, that a 1998 return should not have been lodged because Mr Vrakas was not in the country in that year. However, he claimed he had Mr Vrakas sign the return and explained to him this was a tax return which needed signing and that Mr Vrakas would get a refund. 1691The appellant stated that he did not ask Mr Vrakas if he earned any income in Australia in the 1998 year, although he said he explained it to him that it was a tax return for that year. He claimed Mr Vrakas said nothing in response to that. He then claimed Mr Vrakas told him that in 1998 and 1999 that he resided at Trafalgar Street, Brighton Le Sands. 1692The appellant claimed that Mr Vrakas told him he was conducting a business in Australia in 1999, although he said he did not tell him he was doing so in 1998. He then corrected that evidence and said that Mr Vrakas did operate a business in 1998 and that the books and records produced by Mr Vrakas established this fact. 1693The appellant said he gave the books and records back to Mr Vrakas after preparing the profit and loss statement. He said the sequence was that he prepared the profit and loss statement, sent it to Mr Campos and then gave the books and records back to Mr Vrakas. It was pointed out to him, and he agreed, that this was impossible having regard to the date Mr Vrakas left Australia. 1694It was put to the appellant that having regard to the date Mr Vrakas left Australia, his evidence that the tax return was signed by Mr Vrakas in his presence was false. He said he could not remember exactly when or where the return was signed. 1695In relation to the return lodged on behalf of Mr Vrakas for the 1999 year, the appellant stated that it was an honest mistake that Mr Vrakas was listed as working for Hird Nominees, rather he said Mr Vrakas worked for AAANG trading as the Souvlaki Bar. The appellant said that Mr Vrakas served food part time at night. 1696It was pointed out to the appellant that Mr Vrakas was only in Australia for five months of the financial year and it was suggested to him that it was impossible for Mr Vrakas to have earned $5,600 gross per month working part time a few nights a week behind a bar. He rejected that proposition, stating it depended on how many hours a week Mr Vrakas had worked. 1697The appellant was shown the profit and loss statement prepared by him for the carpentry business for the 1999 year. He said he saw books and records before he prepared the document and he denied fabricating the profit and loss statement. It was pointed out to him that the gross income from the carpentry business and the gross wage for work at the Souvlaki Bar totalled $76,000, an annual equivalent of $182,000. He denied it would have been impossible for Mr Vrakas to earn that amount, but said he did not check any of the figures with Mr Vrakas or with anybody else. However, he then said that he got some figures from Mr Vrakas. 1698It was again put to the appellant that it would have been impossible for Mr Vrakas to have signed the tax return in his presence as he stated in his evidence in chief. He ultimately agreed with that. 1699The appellant asserted in cross-examination that he had made a loan to Mr and Ms Vrakas, saying they had put a deposit on jet skis. He stated he did not take security over the jet skis because they had not been purchased at the time the loan was made. He agreed that his evidence was that he loaned Mr and Ms Vrakas $15,000 to $17,000. He accepted that he kept the difference between $15,000 and $17,000 and the total of the refunds received in respect of each of them, namely, around $37,500. He ultimately said the difference was sent to Mr and Ms Vrakas either by telegraphic transfer or by placing it into an account in Australia. 1700It was put to the appellant that he did not reimburse Mr or Ms Vrakas at all. He denied this. However, he acknowledged there was no reference in his bank statement to any telegraphic transfer but said he had not gone back through his bank statements to see if there were any transfers into a Visa account in the name of Mr and Ms Vrakas. It was put to him that he did not do so because no such transfer existed and he denied it. (c) Consideration (i) Count 39 1701Ms Vrakas was not in Australia during the 1998 income tax year. There was no basis it could be said that she derived income from Phoenicia, Ladadika or any other company in Australia. 1702Evidence from the appellant that he believed Ms Vrakas worked for Ladadika during the year in question must be assessed against the fact that the tax return was lodged after Ladadika had been deregistered and the absence of any record which would justify this belief. Further, it must be remembered that the appellant acknowledged that he did not check to see if Ms Vrakas had been employed by Ladadika. 1703The only basis on which the appellant stated he was entitled to assert that the instalment deductions were made was that there was no employment declaration. This was highly surprising when Ms Vrakas was not in Australia in the year in question. There was no basis on which the appellant could honestly believe that $13,717.42 had been deducted from employment income received by Ms Vrakas. 1704Whether or not the appellant made a loan to Mr and Mrs Vrakas to purchase jet skis, it is clear that the refund cheque was banked by the appellant into the Ramace bank account. There was no record of any of the money being paid out to either Mr or Ms Vrakas. 1705For these reasons I am satisfied that at the time the appellant prepared the material for the tax return and caused the tax return to be lodged, he knew the information was false and he prepared the information to obtain a tax refund for the benefit of Ramace to which he knew Ms Vrakas was not entitled. 1706The tendency notice applies to this count. Although not essential in my conclusion, I am satisfied having regard to my conclusion on the counts which I have already deal with in this judgment, the appellant had the tendency referred to par [2] of the tendency notice and that it was not a coincidence that Ladadika was named as Ms Vrakas' employer. 1707In these circumstances I am satisfied that this count was established beyond reasonable doubt. (ii) Count 40 1708The income tax return the subject of this count was lodged at the same time as the return the subject of Count 39. The appellant asserted that they were prepared at different times, although he said this may have meant different times on the same day. 1709Notwithstanding, a different mistake occurred to the one said to have been made in relation to the return the subject of Count 39. A different employer, Hird Nominees, was named in the return and a different correct employer, AAANG, was asserted by the appellant. Further, the group certificate for that year was demonstrably incorrect as it stated Ms Vrakas' period of employment was from 1 July 1998 to 28 February 1999 when Ms Vrakas only arrived in Australia on 3 February 1999. 1710The wage records for AAANG contain no record of Ms Vrakas being employed by that company in the year in question. 1711The appellant also acknowledged that he did not make any inquiries as to whether tax instalments were deducted. 1712Taking all these matters into account I am satisfied beyond reasonable doubt that Ms Vrakas did not work for AAANG in the period in the 1999 tax year in which she resided in Australia, and further, that the appellant prepared the tax return containing details of employment and tax deductions which he knew to be false. 1713I am also satisfied that the material was prepared and that the appellant caused the return to be lodged for the purpose of obtaining for Ramace a refund to which he knew there was no entitlement. I have set out the reasons for this conclusion in the earlier Count 39 and I will not repeat them. 1714In these circumstances I am satisfied beyond reasonable doubt that this count was established by the evidence. (iii) Count 41 1715Mr Vrakas was not in Australia in the year in question. 1716The appellant stated that it was a mistake that Phoenicia was inserted as his employer and it should have been either AAANG or the business formerly carried on by Mr Gouramanais under the name Souvlaki Bar. He was unable to give any explanation as to why the mistake was made and unsurprisingly the records for the Souvlaki Bar do not show Mr Vrakas as an employee. AAANG had not been incorporated in the year in question. Further, the appellant stated that he did not check with Mr Vrakas to see if he earned money in Australia in the year in question. 1717So far as the business loss was concerned, it was plain that Mr Vrakas did not carry on any business in Australia in the year in question. The appellant acknowledged this at one stage of his cross-examination but then corrected himself. He said he got records from the business from Mr Vrakas but gave them back to him after he prepared the profit and loss statement and sent it to Mr Campos. Subsequently, he agreed that this would have been impossible as Mr Vrakas was in Greece. 1718In these circumstances I am satisfied beyond reasonable doubt that when the appellant prepared the material for the return and caused it to be lodged he did so knowing that the information contained in it was false. 1719I am also satisfied for the same reasons as I have given in relation to Counts 39 and 40 that the appellant prepared the false information to obtain for Ramace the benefit of a refund to which he knew there was no entitlement. 1720In these circumstances I am satisfied beyond reasonable doubt that the evidence establishes this count. (iv) Count 42 1721The return the subject of this count was lodged at the same time as the return the subject of Count 41. The appellant was unable to provide any explanation of how a different mistake was made. 1722The wage records of AAANG do not make any reference to Mr Vrakas as an employee. 1723The appellant originally stated in cross-examination that he did not check any of the figures in the return with Mr Vrakas, although he sought to correct this. I have referred in relation to Count 40 to his evidence concerning the books and records of the business he claimed was conducted by Mr Vrakas and his acknowledgement that it would have been impossible for him to give them back to Mr Vrakas as he said he did. 1724In these circumstances there was no evidence to suggest that Mr Vrakas carried on a business in the five months he was in Australia in the 1999 income tax year and the wage records demonstrated he was not employed by AAANG. These records were in the appellant's possession. There was no basis for the appellant to conclude that Mr Vrakas had earned employment income in the year in question, much less that tax had been deducted at the highest marginal rate. 1725In these circumstances I am satisfied beyond reasonable doubt that the evidence established that the appellant prepared the material for the tax return and caused it to be lodged knowing that the information contained in it was false. For the same reasons as I have given in respect of Counts 39 to 41, I am satisfied beyond reasonable doubt that the appellant prepared the false information and caused a return to be lodged to obtain a refund for the benefit of Ramace to which there was no entitlement. 1726In these circumstances I am satisfied that the evidence establishes this count beyond reasonable doubt. Count 48 - Mr Nick Tsigolis - Income tax return for year ended 30 June 1999 (c) The summary 1727The summary in respect of this count discloses that an income tax return for the year ended 30 June 1999 was lodged on behalf of Mr Nick Tsigolis on 12 February 2000. The return claimed that Mr Tsigolis received employment income of $32,162 from which tax instalments of $15,116.14 were deducted. It was stated that the employer was Hird Nominees. 1728The summary shows Mr Tsigolis was assessed and entitled to a refund in an amount of $9,143.83 which was paid by cheque in that amount, being deposited in the Ramace No 2 Loan account on 4 March 2000. 1729No records relating to this return were found in the appellant's possession either in hardcopy or on his computers. However, Messrs Lopez and Gonzalez held a disc containing a tax return consistent with the return that was lodged. (b) The evidence 1730Mr Tsigolis, who gave evidence through an interpreter, stated that he moved to Australia in 1968 and was employed as a cement renderer until about 1994. He stated that in 1994 he started a cement rendering business with his cousin a Mr George Tsigolis. 1731Mr Tsigolis stated that in 1994 he was introduced by his cousin to the appellant. He said that shortly thereafter his cousin died and he continued to run the business. He said the appellant spoke to him about setting up a company. He said that he had trusted the appellant and he was told that a company was set up, Tsigolis Rendering. 1732Mr Tsigolis stated he continued in that business until some time in 2003. In 2003 or 2004 he said he went back to Greece and remained there until early in 2011. 1733Mr Tsigolis said that in the financial year ended 30 June 1999 he was not paying tax instalments. He stated he asked the appellant to prepare and lodge his tax returns. He stated that he gave the appellant his tax file number and as far as he was aware the appellant completed and lodged his tax returns. Mr Tsigolis said he never was shown a completed return for 1999. 1734Mr Tsigolis stated that he did not recall signing a 1999 return. He said the appellant asked him to sign papers. He said the appellant knew he did not read English but he did not read or explain the papers to him. 1735Mr Tsigolis denied that he ever worked for Hird Nominees. 1736Mr Tsigolis was shown the tax return lodged for him for the year in question. He stated that he did not know of the Canley Vale PO Box address. He said that the appellant did not tell him who was going to be preparing his tax return. He stated he had not heard of any of Mr Campos, Mr Filocamo or Messrs Gonzalez or Lopez. 1737Mr Tsigolis denied that he worked as a plasterer for Hird Nominees as described in the tax return. He stated he could have earned employment income of $32,162 from his own business but not from Hird Nominees or anybody else. He stated that he knew nothing about tax deductions of $15,116. He said he had never paid tax throughout the year but rather paid at the end of the financial year when the tax return was lodged. 1738Mr Tsigolis stated that he did not expect a tax refund. He said the appellant generally told him he would not have to pay anything or get any refund. 1739Mr Tsigolis denied ever borrowing money from the appellant or Ramace. He said he usually paid around about $150 for completion of his tax return. 1740Mr Tsigolis denied that he had any knowledge of the notice of assessment which had been received or the refund cheque in the sum of $9,143. He said the appellant did not tell him that he had received them. 1741Mr Tsigolis was shown the Hird Nominees replacement group certificate. He said it was incorrect and he did not recognise the signatures or the handwriting on it. 1742In cross-examination Mr Tsigolis stated that each year he gave the appellant the paperwork necessary for the appellant to complete his tax return for the year. It was put to him that Tsigolis Rendering was incorporated around 1998 but he could not recall. 1743Mr Tsigolis denied in cross-examination that the appellant told him he could not do his tax return but that he knew someone who could. He again denied that he had ever heard of Mr Campos. 1744Mr Tsigolis agreed during his cross-examination that during the 1999 financial year he did work for Tsigolis Rendering as a cement renderer. He said he could not remember earning about $320 per week net for that financial year. He said the company was paid by cheques which were paid into the company's account and he would draw money to live on. 1745The appellant said he had a book where he would write down each employee who was working for Tsigolis Rendering and he would pay that employee every week. 1746Mr Tsigolis again denied in cross-examination that he was told of the tax refund. He said that he had never heard of Ramace. 1747In re-examination Mr Tsigolis said that the appellant did not tell him that he required a group certificate from Tsigolis Rendering. 1748In his evidence in chief the appellant said that he first met Mr Tsigolis when he was about 18 years of age. He said that in 1999 Mr Tsigolis asked him or Ramace to prepare books and accounts for his business and to assist in the preparation of his tax return. The appellant described the work he did for Mr Tsigolis as obtaining all receipts and payments for the business carried on by Mr Tsigolis and his company and calculating the income received, basically collating all the information to prepare a statement of expenses or a profit and loss statement. He said there were not a lot of transactions running a cement rendering business. 1749The appellant stated that the books of account were prepared initially for Mr Tsigolis as a sole trader and after the incorporation of Tsigolis Rendering for that company. 1750The appellant stated he was responsible for the incorporation of Tsigolis Rendering. He said it would have occurred either in 1998 or early 1999. 1751The appellant stated that he did not lend Mr Tsigolis any money but Mr Tsigolis owed him fees for the work which he did for him. 1752The appellant said that he organised a loan for Mr Tsigolis to purchase a property. He said to obtain the loan Mr Tsigolis had to prepare tax returns to substantiate his income to a bank. 1753The appellant was shown the Hird Nominees replacement group certificate. He said it was incorrect. He said it was an honest mistake that arose from names being transferred from the working papers to the Excel spreadsheet. He said that Mr Tsigolis in fact worked for Tsigolis Rendering and that the other details on the group certificate were correct. 1754The appellant acknowledged that he received the refund cheque for $9,143.83 and banked it. He said he had an authority to deposit signed by Mr Tsigolis and the money was for work done. He stated that he charged a fee of $7,000 for organising the housing loan and the value of the accounting work was about $3,500 or $4,000. He stated that there was still monies owing by Mr Tsigolis after the cheque had been banked. 1755At the outset of his cross-examination the appellant stated that he knew that Mr Tsigolis worked for himself as a cement renderer in the year ended 30 June 1999. He stated that the group certificate showing Hird Nominees which was sent to Mr Campos was a mistake and it should have been a "group certificate from his own business". 1756He stated that Mr Tsigolis made an election to receive a wage from his own business. He said he told Mr Tsigolis that he could get a group certificate from his wage and pay taxes from it as well which would reduce his net profit. 1757He was asked whether he filled in an employment declaration for Mr Tsigolis and said he did not. However, the appellant said that he told Mr Tsigolis about the need for an employment declaration but he did not show him one because he did not have any to give him. He denied that his evidence in this regard was absolute nonsense. 1758He denied fabricating figures to generate the highest refund possible. He acknowledged he was aware that Mr Tsigolis did not work at Hird Nominees but said he could not be sure of whether any tax had been paid during the financial year in question. He said the approximately $15,000 tax had been deducted because that was the calculation that he made having regard to the absence of an employment declaration. 1759The appellant acknowledged that the electronic return for Mr Tsigolis for the 1999 year was entirely silent as to the receipt of any business income by Mr Tsigolis. He agreed there should have been a reference to such business income and there was not because the documents he sent to Mr Campos did not refer to any business. He stated that he could not recall whether or not he sent any profit and loss statements to Mr Campos. 1760The appellant stated that he was responsible for the incorporation of Tsigolis Rendering. He said he incorporated it in 1997 or 1998. He agreed that it was a company which had been incorporated for Mr Neil Jensen and was originally named Neil Jensen Holdings Pty Ltd. He acknowledged that he caused its name to be changed to Tsigolis Rendering on 24 November 1998. He stated that he was not aware why there was no reference to this in his records. 1761The appellant said he retained the $9,143 for fees due by Mr Tsigolis. He was asked what it was for and he stated for previous years' fees that he did work plus incorporating the company. He said his fee for changing the name and other details concerning the company was about $500 and the balance was for previous years' work. He said he could not recall exactly how much work there was in those previous years but there were definitely invoices. He said part of it would also have been fees due to Mr Campos. 1762He said Mr Tsigolis had agreed to pay for the company's fees. He agreed that that was not put Mr Tsigolis when he was in the witness box and it was suggested that this was a recent invention. 1763The appellant was reminded of his evidence in chief that Mr Tsigolis owed him more than $9,000. He said he could not recall exactly but "we had a running account". 1764The appellant said he believed the replacement group certificate was signed in front of him. He said he was certain the handwritten details were on it at the time it was signed. He then said that he was mistaken when he said Mr Tsigolis carried on the business personally in the 1999 tax year and that the income was derived from the company. He was then asked if the name change only took place on 24 November 1998, whether it was possible that Mr Tsigolis started working with the company on 1 July 1998. He said he simply put a generic date there which he got from the books and records of Hird Nominees. Again, he denied the material was a complete fabrication. (c) Consideration 1765Mr Tsigolis denied paying any tax instalments during the year in question. He was self-employed at least until 24 November 1998, the date on which Neil Jensen Holdings Pty Ltd changed its name to Tsigolis Rendering Pty Ltd. It is by no means clear that the business structure under which Mr Tsigolis conducted his business changed at that time. However, there is nothing to suggest that tax instalments from income earned by Mr Tsigolis were deducted by the company. 1766The appellant acknowledged Mr Tsigolis did not work for Hird Nominees. His explanation of the correct position was not credible. He said Mr Tsigolis was self-employed and the group certificate should have been from his own business. He said he told Mr Tsigolis he could get a group certificate for his wage and pay tax which would reduce his net profit. This ignores the fact that Mr Tsigolis would pay tax on the amount irrespective of whether it was declared as a business profit or as a wage. It becomes even more absurd if tax was deducted at the top marginal rate. In any event, the appellant ultimately resiled from that proposition and claimed the wage was paid by the company, which seemed to have been only acquired by Mr Tsigolis in November 1998. 1767Further, there was no basis for the appellant to conclude that $15,116.14 tax was deducted from any income earned by Mr Tsigolis, much less paid to the ATO. 1768In those circumstances, I am satisfied that the appellant prepared the replacement group certificate stating that Mr Tsigolis earned employment income in the sum of $32,162 from which $15,116.14 tax was deducted, knowing it was false, and further, caused the tax return to be lodged containing that false information for the purpose of gaining a refund to which he knew Mr Tsigolis was not entitled. 1769It was the appellant's intention that Ramace benefit from the fraudulent transaction. The appellant said the refund cheque was paid into the Ramace account pursuant to an authority which he obtained. It is immaterial whether it was in repayment of a debt owed by Mr Tsigolis or otherwise. 1770In these circumstances, I am satisfied the evidence establishes this count beyond reasonable doubt. Conclusion on conviction appeal 1771In these circumstances, the misdirections did not cause a miscarriage of justice. The proviso in s 6(1) of the Criminal Appeal Act should be applied and the appeals against conviction dismissed. The sentence appeal 1772The appellant was sentenced to a total term of imprisonment of nine years with a non-parole period of six years and three months expiring on 13 October 2017. 1773The application for leave to appeal against sentence raised two grounds. The first was that her Honour failed to take into account or give sufficient weight to the lengthy delay in bringing the proceedings. The second was that the sentence imposed was too severe. However, the appellant directed no argument, either written or oral, to the second ground. 1774The period in respect to which the offences took place ranged from 29 June 1998 to 3 April 2001. According to a chronology annexed to an affidavit of an ATO investigator, Mr Geoffrey Williams, filed in connection with the sentence proceedings, investigations commenced in the year 2000, initially focusing on Mr Filocamo, Mr Lopez, Mr Gonzalez, Mr Campos and Hall Chadwick. On 7 May 2001, the ATO investigator responsible for the investigation was informed that the appellant was the bookkeeper for the companies in liquidation in respect of which the false group certificates were prepared. 1775In May 2002 an audit of various entities associated with the appellant was commenced. The appellant was told that there would be a full audit on 26 August 2002. However, that audit originally related to companies associated with the appellant including Ramace. 1776In October 2002 the investigator interviewed clients of the appellant who were said to have worked for One Shop. Some of those persons denied any knowledge of that company. 1777As I indicated earlier, search warrants were executed on the office and residence of the appellant in July 2003. 1778From July to December 2003, 26 witness statements were obtained. In addition, 31 further witness statements were obtained in 2004. 1779In July 2005 the appellant declined to attend a recorded interview. 1780The first brief of evidence was sent to the CDPP in November 2005 and was supplemented by additional material up to May 2007. 1781In November 2007 the CDPP determined that there was insufficient evidence concerning a significant number of the allegations. Further information was supplied up to November 2008 and thereafter Court Attendance Notices were issued on the appellant. 1782At the hearing, counsel for the appellant conceded that any delays subsequent to the finalisation of the Court Attendance Notices was not relevant to this submission having regard to the reasons such delay occurred. 1783In her remarks on sentence her Honour dealt with the question of delay in the following terms: "The issue of delay has been raised in mitigation. It is sometimes, if there is inordinate delay, used to mitigate against the length of a sentence, where the length of the delay is unconscionable, or inordinate, or where there is not a proper explanation for a delay. However, in this case it is of less weight in my view due to the complexity of the case, the number of witnesses and the matters needed to be done in order to investigate the matter as set out in the affidavit of Mr Williams. I note, and counsel has referred to the fact, that the investigation of this matter proceeded initially as a result of an investigation into an individual taxpayer. Rather like following a thread on a piece of knitting, the Taxation Department then had a considerable amount of work to do to unravel the complicated set of hurdles that Mr Giourtalis had put between himself and the lodgement of these returns. I also note that much of the delay in getting this matter to trial, since Mr Giourtalis was charged, was as a result of Mr Giourtalis, or his advisors, delaying each step of the Court process. In that time the offender was on bail, he made no effort to repay monies owed, made no admissions, and did not assist in any way in the investigations. Mr Giourtalis is not going to be punished for his lack of assistance and his lack of admissions, but where the issue of delay is concerned, where the Taxation Department was required to investigate each and every step, the delay was caused by the complicated nature of these proceedings, and the fact that Mr Giourtalis made it as complicated as he possibly could." 1784The appellant submitted that notwithstanding these remarks the sentencing judge did not give the delay any weight or inadequate weight. He relied on the well-known passage from the judgment of Street CJ in R v Todd (1982) 2 NSWLR 517 at 519-520, approved by the High Court in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59: " ... where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner." 1785The appellant submitted that the delay was inordinate and bordering on the unconscionable. 1786The Crown submitted that her Honour took the delay into account and her remarks did not reveal any error, particularly having regard to the complexity of the matter. In support of this proposition the Crown pointed to the following facts: "(a) the delay was explained by the lengthy and complex investigation, including the need to speak to dozens of witnesses (many of whom had difficulty with English), prepare dozens of witness statements and review hundreds of thousands of documents (made up of documents from four different accounting practices, a liquidator, numerous banks and dozens of taxpayers); (b) the length and complexity of the investigation was compounded by the fact that at least for the first three years of the investigation it was unclear whether the fraud was perpetrated by the named taxpayers, by Juan Campos, Ricardo Lopez, Jorge Gonzalez, Gonzalez Lopez Associates, Vince Filocamo, Filocamo & Associates or the Appellant; (c) the Appellant had not, during the period of delay or otherwise, repaid to the ATO any of the tax refunds he had obtained; (d) the Appellant made no admissions; and (e) the Appellant had not demonstrated progress towards rehabilitation in the interim." Consideration 1787There is no doubt that delay in the prosecution of an offence in many cases will be a matter to be taken into account in imposing sentence on the convicted person. As stated in Todd supra, weight needs to be given in those circumstances to the progress of rehabilitation during the period of the delay and the uncertainty imposed on the convicted person during such period. Each of Todd and Mill were cases where the delay was occasioned by the offender serving sentences for cross border crimes of the same nature and committed at around the same time as the offences the subject of the sentence proceedings. In those circumstances principles of totality were also relevant. 1788However, the principle is not limited to those circumstances: R v Schwabeggar (1998) 4 VR 649 at 655, 659; R v Gay [2002] NSWCCA 6; (2002) 49 ATR 78 at [15]-[18]. 1789Notwithstanding, it has been recognised that in cases involving complex financial transactions, account has to be taken of the difficulty of proof and the consequential need for general deterrence in sentencing offenders. In R v Gay supra delay of three years between the time the offender had admitted the offence to the police and the commencement of proceedings was held to be a powerful mitigating factor in circumstances where the offender had repaid the tax fraudulently obtained together with the consequent penalties: R v Gay supra at [14]-[16]. By contrast in R v Kearnes [2003] NSWCCA 367, a case involving the improper use by the offender of his position as an officer of a corporation contrary to s 232(6) of the Corporations Act 2001 (Cth), it was held that the sentencing judge did not err in failing to take into account a delay of four years between the offence and the commencement of proceedings. Spigelman CJ, with whom the other members of the Court agreed, made the following remarks: "[68] In the present case, I do not see that the delay was of such an order of magnitude as to conclude that any significant unfairness arose of a character that needed to be identified and adverted to by the trial judge in the sentencing task. There was a process of investigation by the Australian Securities Commission that continued for some years prior to the laying of charges. The period of some three and a half years for the process of investigation and determination of which charges could be pursued does not, in the circumstances, appear to me to be so excessive as to constitute a factor that requires to be taken into account in the exercise of the sentencing discretion. [69] Although his Honour did not refer to this delay in the course of his remarks on sentence, in my view he made no error in failing to do so, even it be assumed that his Honour did not take into account this matter in any way." 1790In R v Scook [2008] WASCA 114; (2008) 185 A Crim R 164, a case involving market manipulation in contravention of s 998(1) of the Corporations Act, Buss JA summarised the principles to be taken into account in the following terms: "[57] The relevance and significance (if any), for sentencing purposes, of delay in the charging of an offender, or in the disposition of a pending prosecution against an offender, will depend on all the circumstances of the particular case. Subject to that overriding principle and the necessity for flexibility of approach to accommodate the individual facts of each case, some guiding principles may be extracted from the preponderance of the authorities referred to by McLure JA. ... [58] First, delay is not, of itself, a mitigating factor. [59] Secondly, delay will not ordinarily be a mitigating factor if it has been caused by difficulties in detecting, investigating or proving the offences committed by the offender, and the period of the delay is reasonable in the circumstances. [60] Thirdly, delay will not ordinarily be a mitigating factor if it is caused by the offender's obstruction or lack of co-operation with the State, prosecuting authorities or investigatory bodies, but the offender's reliance on his or her legal rights is not obstruction or lack of co-operation for this purpose. [61] Fourthly, delay will not ordinarily be a mitigating factor if it results from the normal operation of the criminal justice system, including delay as a result of the offender or a co-offender exercising his or her rights; for example, interlocutory appeals and other interlocutory processes. [62] Fifthly, delay may be conducive to the emergence of mitigating factors; for example, if, during the period of delay, the offender has made progress towards rehabilitation or other circumstances favourable to him or her have emerged. [63] Sixthly, delay (not being delay of the kind described in the second, third and fourth guiding principles) will ordinarily be a mitigating factor if: (a) the delay has resulted in significant stress for the offender or left him or her, to a significant degree, in 'uncertain suspense'; or (b) during the period of delay the offender has adopted a reasonable expectation that he or she would not be charged, or a pending prosecution would not proceed, and the offender has ordered his or her affairs on the faith of that expectation. [64] Seventhly, delay caused by dilatory or neglectful conduct by the State, prosecuting authorities or investigatory bodies may result in a discount of the sentence that would otherwise be imposed on the offender, if the court thinks it an appropriate means of marking its disapproval of the conduct in question. [65] The guiding principles I have stated are not intended to be exhaustive or inflexible." 1791As Buss JA pointed out, the principles are not inflexible and the extent the delay would be taken into account as a mitigating factor must depend on the particular facts of the case in question. However, in the case of a complex fraud it will always be necessary to balance the effect of the delay on the offender against the difficulty and complexity of proving the offence and the need for general deterrence. In particular, although an accused person is entitled to rely on the rights and protection of the criminal law, in circumstances where such reliance has necessitated a complex and lengthy investigation which is carried out with reasonable expedition, the extent that delay can be called upon as a mitigating factor is limited, although the conduct during the period of delay remains relevant to the extent it indicated prospects of rehabilitation. Further, there may be cases where the delay is so inordinate that notwithstanding the complexity of the investigation, the fact that the accused has been left in a state of uncertainty for a considerable period of time would be a significant mitigating factor. 1792In the present case the sentencing judge took the delay into account but gave it limited weight. In my opinion she did not fall into error in adopting this course. The case involved 57 counts in relation to 36 taxpayers, some of whom had little commercial sophistication and limited command of the English language. Further, the offences were spread over a number of years and involved consideration of the affairs of a number of companies which had been wound-up and deregistered. It was inevitable in these circumstances that the investigation would take considerable time. Although perhaps it may have been conducted more quickly, it does not seem to me in the particular circumstances of the present case that the delay could be said to be inordinate or unconscionable. The appellant having quite justifiably determined not to co-operate, cannot be heard to complain in those circumstances that the sentencing judge did not give the delay greater weight. 1793Further, there is nothing to suggest the appellant's conduct during the period of the delay showed any progress towards rehabilitation. To the contrary, in 2006 the appellant was convicted of the offence of obtaining a financial advantage by deception arising out of events which occurred in June 2002. 1794In those circumstances the sentencing judge, in my opinion, did not err in the approach she took to the question of delay. In these circumstances, leave to appeal against sentence should be granted and the appeal dismissed. Orders 1795I would propose the following orders: (1) Appeal against conviction dismissed. (2) Grant leave to appeal against sentence but appeal dismissed. 1796HIDDEN J: I agree with the Chief Justice's resolution of the grounds of appeal, and with his Honour's conclusion that the appeal against conviction should be dismissed by the application of the proviso. 1797The misdirection on the issue of mistake was indeed serious, and one could not be confident that its effect was removed by the approach of the Crown prosecutor in final address and the appropriate directions given by the trial judge which are summarised in [92] - [95] of his Honour's judgment. However, as his Honour points out in [97], mistake was not an issue which loomed large in the case and, on the whole of the evidence summarised in his Honour's judgment, the case against the appellant on each of the counts under challenge was compelling. In all the circumstances, I am persuaded that, even though the first two grounds of appeal have been made out, no substantial miscarriage has actually occurred. 1798As to the application for leave to appeal against sentence, I agree with what his Honour has written and have nothing to add. 1799BUTTON J: I agree with the orders proposed by Bathurst CJ for the reasons that his Honour has given, and with the additional remarks of Hidden J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 September 2013