COMMISSIONER OF TAXATION v BAFFSKY

Court of Criminal Appeal (NSW)|2001-08-08|Before: Spigelman CJ, Simpson J, Einfeld AJ

The Application of s19B 102 Question 4(IV) is in the following terms: "Did I err in law in categorising the circumstances before me as satisfying recourse to the provisions of s19B Crimes Act 1914?" 103 The jurisdiction of this Court on a stated case under s5B of the Criminal Appeal Act 1912 is limited to a "question of law". The question of law which appears to be raised under this particular question is whether only one finding was, in all the circumstances, open. (See for example Attorney-General (NSW) v X (2000) 49 NSWLR 653 at [56]-[63].) 104 For the reasons outlined above, the summary statement of facts contained in the Stated Case does not permit the Court to answer a question of this kind. The whole of the evidence before the first instance court would have to be annexed to the Stated Case. During the course of argument, counsel for the Commissioner accepted this proposition and did not press for an answer to this question.

The "Second Offence" 105 The proceedings before Backhouse DCJ were convictions for two offences of failing to furnish an income tax return, when required pursuant to a taxation law, contrary to s8C(1)(a) of the Taxation Administration Act 1953. The requirement was to furnish income tax returns for each of two years pursuant to a single notice issued on 4 April 2000 and to do so on the same day. 106 In her judgment her Honour said: "There are indeed two offences in the technical sense, but each failure resulted in an offence and both matters were included in an Information and Summons before the court … ." 107 The Commissioner submitted that it was apparent from her Honour's reasons that she failed to take into account that one of the offences was a "second offence". Presumably the second charge on the Information being the second of the two financial years with respect to which a return was not filed, is the "second offence". It was submitted that her Honour did not exercise her discretion separately with respect to that offence, taking into account the fact that it was a second offence. 108 In my opinion this takes an artificial approach to the hearing before her Honour. Her Honour's reference to the fact that there were two offences "in the technical sense", reflected the fact that they were both committed in the same constellation of circumstances which her Honour found to be relevant for purposes of exercising the discretion under s19B. Each was, in fact, triggered by the Respondent's failure to furnish a return on exactly the same day, i.e. on or about 3 May 2000, as required by a single notice, issued to the Respondent with respect to two separate financial years. In these circumstances it was open to her Honour to consider the two offences together for purposes of exercising the s19B discretion. I would answer Question 4(V): "No".

Conclusion 109 The answers I propose are: 4(I) (a) No; (b) Yes;

4(II) (a) No; (b) Decline to Answer;

4(III) (a) Yes; (b) No; (c) No;

4(V) No. 110 SIMPSON J: I agree with the Chief Justice. 111 EINFELD AJ: I have read the judgment to be delivered by the Chief Justice. I agree with his Honour's analysis and conclusions. I would answer the questions posed in the same way as his Honour. **********

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Companies (Tasmania) Code Crimes Act 1900(NSW)

CITATION : COMMISSIONER OF TAXATION v BAFFSKY [2001] NSWCCA 332 FILE NUMBER(S) : CCA 60279/01 HEARING DATE(S) : 8 August 2001 JUDGMENT DATE : 7 September 2001

COUNSEL : T A Game SC / M M Cinque (Appellant) B Cross (Respondent) SOLICITORS : Commonwealth DPP (Appellant) Martin Ricci (Respondent) CATCHWORDS : CRIMINAL LAW - sentencing - revenue offence against Commonwealth - factors to be considered in exercising the discretion to dismiss a charge without proceeding to conviction - Crimes Act 1914 (Cth), s16A and s19B. Companies (Tasmania) Code Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Income Tax Assessment Act 1936 (Cth) Quarantine Act 1908 (Cth) Taxation Administration Act 1953 (Cth) Aikman v Bourne (1992) 63 ACrimR 467 Attorney General (NSW) v X (2000) 49 NSWLR 653 Cobiac v Liddy (1969) 119 CLR 257 DPP v El Karhani (1990) 21 NSWLR 370 Federal Commissioner of Taxation v Wormald International Australia Pty Ltd (1985) 17 ATR 129 House v The Queen (1936) 55 CLR 499 Kelton v Uren (1981) 27 SASR 92 Kowald v Hoile (No. 2) (1976) 14 SASR 314 CASES CITED: Jones v Morley (1981) 29 SASR 57 Lanham v Brake (1983) 34 SASR 578 McQuestin v Australian Securities Commission (1993) 2 TasR 30 Morrison v Peers (1995) 87 LGERA 39 O'Brien v Norton-Smith (MR) Pty Ltd (1995) 83 ACrimR 41 Patterson v Fenwick (1994) 115 FLR 462 R v Ingrassia (1997) 41 NSWLR 447 R v Paull (1990) 20 NSWLR 427 R v Sinclair (1990) 51 ACrimR 418 Thorneloe v Filipowski [2001] NSWCCA 213 DECISION : Questions in the Stated case answered as follows: 4(I) (a) No; (b) Yes; 4(II)(a) No; (b) Decline to Answer; (c) No; (d) No; 4(III)(a) Yes; (b) No; (c) No; 4(IV) Decline to Answer; 4(V) No.

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