Osborne v R; R v Osborne [2017] NSWCCA 11

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Osborne v R; R v Osborne [2017] NSWCCA 11 Hearing dates: 16 September 2016 Decision date: 17 February 2017 Before: Leeming JA at [1]; Harrison J at [155]; Wilson J at [156] Decision: 1. Grant leave to appeal against conviction. 2. Allow appeal against conviction. 3. Quash convictions on each count. 4. Enter a verdict of acquittal on each count. 5. Dismiss Crown appeal against sentence. Catchwords: CRIMINAL LAW – defrauding the Commonwealth – accountant charged with causing client's tax return to be lodged without disclosing all of client's income – client controlled offshore company which owned large parcel of shares – client caused offshore company to sell shares and directed proceeds to be received by client and his family and companies associated with them – after conclusion of evidence, trial judge permitted Crown to advance a case that offshore company held shares as bare trustee for client – Crown addressed jury that it was sufficient in order to conclude that client was beneficiary of bare trust to find that client controlled offshore company – trial judge left jury to determine correct legal test for existence of trust – evidence did not entitle jury to conclude that client was beneficiary of bare trust – convictions quashed and verdicts of acquittal entered Legislation Cited: Commonwealth Criminal Code, ss 5.1, 130.3, 135.1 Crimes Act 1914 (Cth), s 29D Criminal Appeal Act 1912 (NSW), s 6(1) Income Tax Assessment Act 1936 (Cth), s 97 Cases Cited: Commissioner of Taxation v Bamford (2010) 240 CLR 481; [2010] HCA 10 Doggett v The Queen (2001) 208 CLR 343; [2001] HCA 46 King v The Queen (1989) 161 CLR 423 M v The Queen (1994) 181 CLR 487 Nasrallah v R; R v Nasrallah [2015] NSWCCA 188 Phillips v R [2016] NSWCCA 159 Pratten v R [2014] NSWCCA 117 R v Cox [1999] NSWCCA 62 R v Esho; R v Sako [2001] NSWCCA 415 R v Jimenez [2000] NSWCCA 390 Rasic v R; Johnny Lee Vella v R; Damien Charles Vella v R [2009] NSWCCA 202 Re Ellenborough [1903] 1 Ch 697 Silva v R [2016] NSWCCA 284 Category: Principal judgment Parties: Raymond Clifford Osborne (Appellant / Respondent) Regina (Respondent / Appellant) Representation: Counsel: T Game SC, L Hutchinson (Mr Osborne) M McHugh SC, S Flood (Crown)