Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Director of Public Prosecutions (Cth) v Pratten [2016] NSWCCA 322 Hearing dates: 17 November 2016 Decision date: 17 November 2016 Before: Basten JA at [1]; Campbell J at [21]; N Adams J at [22] Decision: Refuse application for adjournment. Catchwords: CRIME – appeal – application by offender for adjournment of prosecution appeals against inadequacy of sentences – pending application for removal of proceedings to High Court – whether High Court application raised an arguable issue – whether current proceedings should be adjourned until removal application considered by High Court Legislation Cited: Judiciary Act 1903 (Cth), ss 40, 78B Cases Cited: Pham v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179 R v Pratten (No 26) [2016] NSWSC 935 Category: Procedural and other rulings Parties: Director of Public Prosecutions (Cth) (Appellant) Timothy Charles Pratten (Respondent) Representation: Counsel: Mr M McHugh SC/Ms A Hawkins (Appellant) Mr M W Smith (Respondent) Solicitors: Commonwealth Director of Public Prosecutions (Appellant) Marsdens Law Group (Respondent) File Number(s): 2010/315475; 2012/207027 Decision under appeal Court or tribunal: Supreme Court; District Court Jurisdiction: Common Law Division; Criminal Citation: [2016] NSWSC 539 Date of Decision: 29 April 2016; 22 July 2016 Before: Rothman J; Baly DCJ File Number(s): 2010/315475; 2012/207027 Judgment 1. BASTEN JA: On 29 April 2016 the respondent in this Court, Timothy Charles Pratten, was sentenced to a period of imprisonment in respect of seven charges alleging that he did by deception dishonestly obtain a financial advantage from the Commonwealth by causing a personal income tax return to be lodged in which he failed to disclose all income derived by him during the relevant year. The Commonwealth Director of Public Prosecutions has appealed against the leniency of the sentences imposed. 2. Further and separately, on 22 July 2016 the respondent was sentenced in the District Court with respect to an offence under the Proceeds of Crime Act 2002 (Cth), namely that he attempted to remove a game fishing boat from Australia to Vanuatu in contravention of a restraining order. The Director has also lodged an appeal in this Court against the inadequacy of the sentence passed by Judge Baly SC in respect of that offence. 3. The two appeals by the Director were listed for hearing before the Court this morning. In each matter the respondent has for some time been represented by a solicitor and counsel. Today, Mr Smith of counsel indicated at the commencement of the hearing that the applicant had an adjournment application which he was instructed to make, but that in the event that it was refused, his instructions were withdrawn with respect to the pending appeals. 4. The adjournment application was not entirely novel in that Mr Pratten had himself on the afternoon of 16 November (that is, the day before the hearing of the matter), sent to the Registrar of the Court a facsimile indicating that he would seek an adjournment of the hearing of the appeals. The primary purpose of the adjournment set out in the letter was to allow proceedings presently pending in the High Court to be disposed of before the appeals in this Court were heard and determined. The respondent is currently in custody serving a sentence of imprisonment imposed by Rothman J in respect of the Commonwealth income tax offences. 5. The adjournment application was dealt with in oral submissions on three bases. One was that there were conviction appeals "on foot", to use counsel's term, in respect of both groups of offences with which the sentences were concerned. Secondly, reference was made to the fact that there was a writ in the High Court about which it will be necessary to say something more in a moment. Thirdly, it was said that the respondent has not received the grounds of appeal and submissions raised by the Director on his appeals, although his solicitor apparently had posted them to him in prison. 6. The High Court proceedings involved the trial which was conducted by Rothman J between 13 July and 9 September 2015, being the second trial faced by the respondent on the charges with respect to income tax and involving a charge of obtaining a financial advantage by deception. 7. On 9 September 2015 the jury in that matter returned verdicts of guilty on all seven counts and the matter was listed for sentence proceedings on 27 October 2015. The sentencing hearing went ahead on that date and judgment was reserved. The illness of the trial judge caused the sentencing process to be adjourned, but it was ultimately listed for judgment on Friday, 29 April 2016. Before judgment was delivered, the respondent made an application on his own behalf seeking an adjournment. He advised the Court that he had, on Tuesday 26 April 2016, filed a writ of summons in the High Court seeking a resolution of what was described as a constitutional issue. 8. Further, on 27 April the respondent filed an amended application for removal of the proceedings then in the Supreme Court into the High Court. The basis on which an adjournment of the sentencing was sought was that if judgment were delivered, the respondent would be precluded from raising the issue he had sought to have determined in the High Court. Further, the respondent sought to have the sentencing adjourned to allow sufficient time for him to obtain Legal Aid to pursue his proceedings in the High Court. 9. The statement of the issues sought to be raised by the High Court proceedings was both long-winded and somewhat obscure. The trial judge summarised the argument in the following terms in the course of an ex tempore judgment rejecting the adjournment application. He said: [1] "Nevertheless, the summons refers to the fact that the Court was looking at or deciding 'financial advantage', in the context of the understatement of income tax and it is said, pursuant to the Income Tax Assessment Act 1936 (Cth) and the Income Tax Assessment Act 1997 (Cth), that the task of determining assessable income is a task reposed in the Australian Taxation Office as an administrative act. Therefore, the submission or summons suggests [it is] beyond the power of the Court in criminal proceedings to determine whether a financial advantage exists, it being an administrative function that is inconsistent with the functions of the Court as a Chapter III court." 1. After a brief explanation of why it was that the issue in the criminal proceedings did not engage an assessment under the Income Tax Assessment Act, the judge concluded: "[13] As a consequence, … that which is found by the Court, be it the jury or the judge on sentence, to be the understatement of income bears little or no relationship to what may or may not be assessed as income by the Australian Taxation Office. It is certainly the case that nothing this Court has done, in relation to the finding of guilt, and nothing it could do, in relation to the sentence it passes, could interfere with the independent assessment of any review that may be lodged and the subject of procedures under Part IVC of the Income Tax Assessment Act. Therefore, it does not seem to me, on the face of it, that there is an arguable proposition that involves Chapter III of the Constitution. Of course ultimately that is not a matter for me. That is a matter for the High Court of Australia. Nevertheless, in dealing with an application for an adjournment, I have to be satisfied that there is an arguable ground relating to that which is put before me in relation to the High Court proceedings. [14] The second aspect of that matter is, if I were found to be wrong in that assessment of the arguability of the ground, the application before the High Court is not rendered nugatory by anything I hereafter may proceed to engage upon or anything that has already happened. Indeed, as I understand that which is put before the High Court, the findings of guilt that have already been made are sought to be quashed." 1. The adjournment application before this Court proceeded on the basis that the respondent's letter to the Registrar of 16 November constituted a written submission in support of the adjournment application and was accordingly marked MFI A. The respondent maintained in those submissions that the decision of the trial judge to proceed to sentence and deliver final judgment extinguished the removal proceedings and possibly also the writ of summons. Of course if that were correct there would be no reason for this Court to adjourn the appeals in order to allow the High Court proceedings to be concluded. On the other hand, if the High Court proceedings were not extinguished and had some merit, they could proceed whether or not the appeals against sentence proceeded today. 2. The basis for the respondent's submission that the removal proceedings would be extinguished was that pursuant to s 40(2)(b) of the Judiciary Act 1903 (Cth) the power of the High Court to remove a matter depends upon there being a cause pending in a State court involving the exercise of federal jurisdiction by that court. The respondent therefore accepts that once final judgment has been delivered by the Court there is no power to have the matter removed into the High Court and accordingly the respondent would be limited to his rights of appeal. 3. If the respondent had a serious issue to raise of the kind sought to be identified in the High Court proceedings, it could have been raised before the trial judge and indeed should probably have been raised prior to the commencement of the trial. Nevertheless, it could undoubtedly have been raised by way of appeal following the respondent's conviction on the seven counts in the indictment. Indeed, as the trial judge noted in his judgment refusing the adjournment, the same issue had been raised in proceedings brought following the first trial, though before the appeal had been determined in that matter, but those proceedings had been abandoned and the issue appears not to have been raised in this Court on the conviction appeal, which was successful on other grounds. In any event, the rejection of the constitutional argument by the trial judge was the subject of an appeal to the Court of Appeal, but that appeal was abandoned. 4. There is one further aspect of the matter which should be identified and resolved. Pursuant to s 78B of the Judiciary Act, where there is a cause pending in a State court which involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause has been given to the various Attorneys General. On one view the issue sought to be raised by the respondent involved the limits of the judicial power of the Commonwealth under the Constitution and the ability of the Commonwealth to invest a State court with what was essentially administrative power. 5. The issue did not arise in those terms before Rothman J because he was satisfied that the application to the High Court did not raise an arguable issue. As explained by the Full Court of the Federal Court in Pham v Secretary of the Department of Employment and Workplace Relations, [2] s 78B of the Judiciary Act is not engaged where the issues purportedly raised are frivolous, vexatious or unarguable. The trial judge was clearly of the view that the constitutional issue sought to be raised was misconceived. I agree with that assessment. Accordingly, there was no error on the part of the trial judge in proceeding to deliver sentence, nor is there any reason to adjourn the present appellate proceedings in order to allow the High Court to consider the removal application presently before it. 6. Whilst I have expressed agreement with the view taken by the trial judge as to the arguability of the constitutional issue, it should be noted that no appeal was lodged against the decision of the judge to deliver sentence, perhaps because it would have seemed futile, but more importantly, no challenge in the terms proposed to be raised in the High Court has yet been raised in this Court. For these reasons that basis for the adjournment application should be refused. 7. There are two other matters which were raised by the oral submissions made this morning. The first concerned the non-receipt by the respondent of the material relevant to the Director's sentence appeals. It may be accepted for the purposes of considering the issue that, although the solicitor for the respondent sent him the material, he did not receive it. However, as he is represented by a solicitor and counsel, that is not a matter which would, in the ordinary course of things, result in an adjournment of an appeal which has been fixed for hearing and in which all the parties are present. 8. He has additionally said that it is necessary for him to have access to the material because without it he will not be able to participate in the proceeding today, and he does not wish his counsel to proceed without him being able to follow the argument as it is developed. Again, that is not an issue which would allow an adjournment to be granted on the material before this Court. The argument that he is unable to proceed adequately himself, when he has counsel who are briefed and prepared to proceed, is not one which should deflect the Court from dealing with the matter when it has been listed at a time convenient to counsel on both sides. 9. The second matter concerns the fact that he has apparently lodged a notice of intention to appeal against his conviction in September 2015. The material for the conviction appeal is apparently not yet ready and no notice of appeal has been lodged. The argument that the sentence appeals by the Director should await the filing and determination of the conviction appeal was raised as a preliminary issue before the matter came on today. That application was considered by a judge of the Court and was rejected. There is no reason to suppose that this hearing should now be adjourned in order to allow agitation of an appeal against conviction which has not yet been filed. 10. The respondent agreed in his oral submissions that on 6 or 7 June 2016 he appeared before the Registrar of the Court by AVL, at which time the date for hearing was fixed. In all the circumstances, and given the fact that the adjournment is opposed by the Commonwealth Director, the application for an adjournment is refused. 11. S CAMPBELL J: I agree with Basten JA. 12. N ADAMS J: I agree with Basten JA. ********** Endnotes 1. R v Pratten (No 26) [2016] NSWSC 935 at [4]. 2. [2007] FCAFC 179. 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: 17 March 2017