Isbester v R

Judgment 1HOEBEN CJ at CL: Offence The appellant was charged with the following offence: Between about 19 February 2006 and about 10 April 2010 at Sydney did deal with money or other property, the proceeds of crime, and was reckless as to the fact that the money or property was proceeds of crime, and at the time of the dealing the value of the money or property was $100,000 or more, contrary to s400.4(2) of the Criminal Code Act 1995 (Cth). 2The trial proceeded before Tupman DCJ and a jury for 21 days between 16 June and 24 July 2012. On 24 July 2012 the jury returned a verdict of guilty. 3The appellant relies upon two grounds of appeal: Ground of Appeal 1: The verdict of the jury was unreasonable or cannot be supported. Ground of Appeal 2: The jury were not properly directed regarding the elements of the offence charged. Factual Background 4The prosecution case was as follows. Eva and Phillip Southcombe were directors and shareholders in the company, Gladesville Bridge Marina Pty Limited (GBM). In 1998 they arranged for the company to send funds overseas in a tax evasion scheme set up by Robert Agius, an accountant based in Vanuatu. The funds were disguised as payment for services and interest on non-existent loans, and were intended to be returned to the Southcombes (thereby evading the payment of tax on dividends paid by the company to them as shareholders). 5The scheme continued for some years. Between 25 May 2005 and 9 April 2008 the appellant delivered large amounts of cash to the Southcombes. All of it was made up of funds sent overseas as part of the tax evasion scheme by GBM. All of that cash was, under Australian tax law, deemed dividends paid to the Southcombes and thus part of their taxable income. 6On 6 April 2006, pursuant to tax returns lodged on 30 March 2006, the Australian Tax Office (ATO) issued a Notice of Assessment in relation to the Southcombes for the 2005 financial year which did not include in their taxable income the dividends notionally received in 2005. At that point in time, the amount of tax thereby evaded became proceeds of crime, either on the basis that it was proceeds of the conspiracy between Agius and the Southcombes to evade tax, or on the basis that it was proceeds of crime committed by the Southcombes of obtaining a financial advantage by deception. 7Amended Notices of Assessment were subsequently issued by the ATO in respect of the Southcombes for the year 2005. Evidence was adduced that each had understated their taxable income by $500,598 with the consequence that each had evaded tax of $242,790.03. It was the Crown case that more than $100,000 of the cash that the appellant delivered to the Southcombes after 6 April 2006 and before 10 April 2008 was accordingly proceeds of crime and that the appellant was at least reckless to that fact (in the sense that he was aware that there was a substantial risk that those funds were proceeds of crime). 8It was no part of the Crown case that the appellant had himself joined the conspiracy to defraud the Commonwealth by tax evasion. It was not suggested that he had engaged in any fraudulent activity. It was not suggested that he had dealt with the property as an instrument of crime. 9The case against the appellant was that, because he acted as a courier for funds that were the subject of a tax evasion scheme, and was reckless as to that fact, he was guilty of the offence of recklessly dealing in the "proceeds of crime". On the prosecution case, the appellant dealt with at least $210,527 of deemed dividends in respect of which at least $100,000 in tax revenue had been evaded (assuming a tax rate of 48.5 percent). 10The following matters were important parts of the Crown case: (a) The payments to the Southcombes were made outside the normal banking system by way of cash payments. (b) In the earlier part of the period, the amount of cash delivered ranged between $10,000 and $30,000 each delivery. In the later part of this period, the amounts decreased but remained over $1,000 for each delivery. (c) These cash deliveries often occurred at covert locations, such as in parks or on the street. (d) The appellant used code when discussing these deliveries in emails and on the phone with Mr Agius. 11The importance of the date 6 April 2006 is that this was the date on which the Notice of Assessment was issued to the Southcombes by the ATO. 12By way of further background, the Southcombes since the early 1980's had operated a marina business called "Gladesville Bridge Marina". They incorporated a company, GBM, in which they were the only directors and shareholders. The Southcombes and GBM used as their accountants a firm, Owen T Daniel and Company. It was Mr Daniel who persuaded them to enter the tax evasion scheme and who put them in contact with Mr Agius. 13The mechanics of the scheme were that GBM sent money to a bank account in New Zealand on the pretext that it was paying legitimate business expenses. There were invoices to GBM from a company called "Bilbury Ltd". The work that was being invoiced was never actually done. GBM claimed these expenses as business expenses in order to reduce its tax liability. The invoices were for amounts in the tens of thousands of dollars and they accumulated over a substantial period of time. 14After the payments were received into the Bilbury bank account, the money was then redirected to another New Zealand bank account in the name of "Uniton Ltd". That money would be transferred back into the account of the GBM on the pretext that it was money that was being made available to GBM as a loan. There was no legitimate loan. This was the GBM money being returned to it. 15By the early 2000's GBM's balance sheet was showing that it had a debt by way of this loan of over $900,000. The Southcombes were concerned because on the books of GBM the debt would just continue to grow and there was no way of them legitimately getting access to the money. The Southcombes wanted to achieve a mechanism whereby the loan balance would not increase, but they would still be able to get their money out of the tax evasion scheme. 16The method used was as follows. The GBM debt was transferred from Uniton to Security Life Nominees Ltd (SLN), another company controlled by Mr Agius that had a bank account in New Zealand. GBM then commenced making payments to SLN which appeared on the documents to be repayments of the loan. Initially, it was Mr Agius who then delivered cash directly to the Southcombes with it being shown through documents that he was purchasing a half share in a boat. The documents showed that he provided a personal cheque to the value of $290,000. Mr Agius never actually took any share in any boat. 17By early 2005 there was still a debt recorded that GBM owed SLN about a million dollars. The Southcombes were told that the only way they could get access to that money would be if GBM transferred to SLN a million dollars so that the documentation would show that the loan had been repaid. This is what the Southcombes did between 23 March 2005 and 16 June 2005. During that period, GBM paid $1,000,001.00 to SLN. 18When the Southcombes caused GBM to send that money to SLN it was their intention that they would always get it back. Accordingly, it was the Crown case that those payments which added up to just over a million dollars, were in fact a dividend paid by GBM to each of the Southcombes in half shares, i.e. approximately $500,000 to each of them. As such, the Southcombes should have included those dividends in their tax returns for the tax year ending 30 June 2005. In not doing so the Crown case was that they acted dishonestly and therefore committed a crime. 19In about May 2005 the appellant was introduced to the Southcombes by Mr Agius. He was not a person whom they had previously met. The introduction was done in a park in Drummoyne, near to where the Southcombes were living. He was introduced as a person who at the time was running a catering business called "Fit for a King". It was the Crown case that he was introduced by Mr Agius because it was to be his role to receive approximately one million dollars into his business bank accounts and for him to then take cash from those business accounts and to deliver that money to the Southcombes. 20It was the Crown case that the appellant commenced doing so in May 2005 and thereafter made payments to the Southcombes ranging between $10,000 to $30,000 every four weeks or so. 21The deliveries of cash initially occurred in a car-park near the Southcombes' house in Drummoyne. After the Southcombes moved to a new house in Hunters Hill, some deliveries took place there. The Southcombes would provide an authority to SLN, by sending emails to Mr Agius for money to be transferred to one of the appellant's business accounts. 22On 24 October 2006 the Australian Federal Police executed search warrants at the accountancy firm of Owen T Daniel. From that date, the appellant and one of the Southcombes would meet at the Hunters Hill Hotel or in a street outside the front of the hotel. The code used was a simple one with the appellant in telephone intercepts referring to units of $1,000 as "anchors". 23The defence case was as follows. There was no dispute that between 25 May 2005 and 9 April 2008 the appellant delivered large amounts of cash to the Southcombes. It was disputed that any of those funds were proceeds of crime (or, at least, more than $100,000 of proceeds dealt with in the period specified in the indictment). If they were the proceeds of crime, the appellant disputed that he was aware of a substantial risk that they were proceeds of crime. The appellant said that the payments of cash were to repay a loan. He said that he used code because he did not want it known that he was carrying large amounts of cash. 24In an application for a verdict by direction, the appellant submitted that it had not been proved that the cash which he delivered to the Southcombes was proceeds of crime because a tax liability was a pecuniary liability to the Commonwealth arising under taxation law - it was an unsecured debt (a chose in action) which the Commissioner had against the tax payer. The appellant submitted that, properly analysed, any offence committed by the Southcombes resulted in the ATO being deprived of that chose in action, but he never dealt with that chose in action. He dealt with the money which was the basis of the calculation of the amount of the debt. The appellant submitted that nothing was "realised" by the Southcombes as a result of the failure to declare the dividends, rather there was a "temporary reduction in the chose in action that the Commissioner had against the taxpayer". That application was rejected by the trial judge. 25Before the jury the appellant submitted that it had not been proved that he was reckless about the cash which he delivered to the Southcombes being proceeds of crime because of his evidence that he believed that the funds he had received, and subsequently delivered to the Southcombes as cash, were provided to him as a loan rather than as part of a scheme to evade tax. He submitted that the Southcombes were paid back in cash because they wanted cash for their house renovations. The appellant submitted that he had relied upon a legal opinion prepared in March 2000 which influenced his understanding of the legal position in relation to the money. In evidence he said that he did not suspect that the funds were "proceeds of crime". He said "At worst, there was some tax minimisation which was not a crime". 26The appellant submitted that it had not been proved beyond reasonable doubt that he had turned his mind to the circumstances which actually rendered the cash he delivered proceeds of crime (in particular the circumstances that made the funds deemed dividends). 27The Southcombes in their evidence both denied that they had asked the appellant to make payments in cash so that they could pay for renovations to their house. THE APPEAL Ground of Appeal 1: The verdict of the jury was unreasonable or cannot be supported. 28Section 400.4(2) of the Criminal Code Act relevantly provides: "400(2) A person is guilty of an offence if: (a) the person deals with money or other property; and (b) ... (i) the money or property is proceeds of crime ... and (c) the person is reckless as to the fact that the money or property is proceeds of crime ...; and (d) at the time of the dealing, the value of the money and other property is $100,000 or more." 29Section 400.1 defines "proceeds of crime": "Proceeds of crime means any money or other property that is wholly or partly derived or realised, directly or indirectly, by any person from the commission of an offence against a law of the Commonwealth, a State, a Territory or a foreign country that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence)." 30The appellant explained this Ground of Appeal. He said that it raised the same issue as that set out in [24] hereof, which was the basis of the application for a verdict by direction before the trial judge. For the reasons therein set out, the appellant submitted that his dealing with a sum of money which was the basis of the calculation of the amount of a debt owed by the Southcombes to the Commonwealth, could never amount to dealing with money which was the "proceeds of crime" as required by s400.4(2). It was on that basis that he submitted that the verdict of the jury was unreasonable and could not be supported. 31The appellant submitted that the Crown case was based on a wrong characterisation of the money sent by GBM to SLN. The appellant noted that those funds had been derived or realised from the legitimate business activities of GBM. He noted that it was necessary for the prosecution to rely upon s109C of the Income Tax Assessment Act 1936 relating to the deeming of dividends. That provision had the effect of including the deemed dividends in taxable income and determined the amount of tax that was "evaded" (more precisely, which had the effect of imposing a tax liability on the Southcombes in respect of the funds sent overseas by them). As a result, the appellant accepted that it was open to the jury to be satisfied that the ATO was misled regarding the taxable income of the Southcombes when it issued a Notice of Assessment in relation to them which did not include the deemed dividends. He accepted that as a result, the Southcombes (for a period of time at least) evaded liability for tax on that money. The appellant submitted that such a circumstance was quite different from establishing that the cash which he delivered to the Southcombes was the proceeds of crime. This was because what had occurred was not the commission of an offence by the Southcombes but the creation of a pecuniary liability in the Southcombes to the Commonwealth. 32In oral submissions the appellant put the argument as follows: "The argument put by the defence at trial and put here is that none of the cash was proceeds of crime because the cash was the income by reference to which the tax was calculated. None of it was the unpaid tax, nor was it derived from the unpaid tax. ..." (AT 3.21) "What we are saying is that there is no provision in the tax legislation deeming a percentage of the income on which tax has not been paid as property of the Commonwealth. The Commonwealth has legislation which says "when you don't pay tax we can claim it back as a debt owed to the Tax Office". It should say the income or a percentage of the income in respect of which tax has not been paid is deemed to be property of the Commonwealth. In substance that's what this prosecution really contends, that when you haven't paid X dollars in tax and you owe X dollars to the Commonwealth "we're going to deem 48.5 percent of the income on which tax is calculated as the unpaid tax or as derived from the unpaid tax." (AT 4.25) "... unpaid tax can be characterised as a benefit. We are prepared to concede that. We accept unpaid tax can be characterised as an advantage. It is the next step of saying you go from that perhaps to another proposition saying any particular item of property is unpaid tax or is derived from unpaid tax. That's the step which occurs in this case which was to be considered in Saffron or Jeffery. It says nothing as to whether you can simply say that some income on which tax is calculated becomes the unpaid tax or is regarded as derived indirectly from unpaid tax." (AT 6.12) 33In support of that proposition, the appellant relied upon clause 255-1 of Schedule 1 of the Taxation Administration Act 1953 to the effect that "a tax related liability is a pecuniary liability to the Commonwealth arising directly under a taxation law". By reference to other sections of the Income Tax Assessment Act 1936 and the Income Tax Assessment Act 1997 the appellant concluded: "Under clause 255-5(1) of Schedule 1 of the Taxation Administration Act 1953 "an amount of a tax related liability that is due and payable: (a) Is a debt due to the Commonwealth ..." And under clause 255-5(2), the Commissioner: "May sue in his or her official name in a court of competent jurisdiction to recover an amount of a "tax related liability that remains unpaid after it has become due and payable". 34By that reasoning, the appellant submitted that it was not clear how any part of the cash delivered by him was "derived or realised" by the commission of the offence. The Southcombes were lawfully entitled to all the money they received from him. They had, for a time, evaded a liability for tax on that money and the ATO was deprived of the tax worked out "by reference to" that money, but none of the money dealt with by him was "derived or realised" by the commission of the offence - it was no more than the "taxable income" on the basis of which the "tax payable" was calculated. In the alternative, the appellant submitted that money is not derived or realised by an offence that has the consequence that a liability to pay tax on that money is evaded. 35The appellant submitted that if the Crown's submission that he was dealing with the "proceeds of crime" were upheld, any person who dealt with money upon which he or she had failed to pay the correct amount of tax, was also guilty of the offence of which he was convicted. The appellant submitted that this was an outcome which suggested that the definition of "proceeds of crime" should not be given such a broad interpretation as to extend to the money delivered to the Southcombes by him. 36There are a number of difficulties with this submission. Implicit in it is the premise that because a sequence of events creates a tax liability (which is a pecuniary liability to the Commonwealth) in a person or entity, those same circumstances cannot also create an offence. That is novel, controversial and is not self-evidently correct. Just because tax legislation provides a mechanism for the recovery of evaded tax does not mean that evaded tax cannot also be the subject of a criminal offence. 37The submission also adopts a somewhat benign interpretation of the facts. The evidence showed that the amount owing in financial statements of GBM as a loan from SLN, was in reality the end product of many years of participation in a tax avoidance scheme by the Southcombes as shareholders of GBM. GBM was paying funds to overseas companies for the payment of invoices to it for services which had not been provided. Those funds were moved about so that they ultimately returned to GBM from SLN ostensibly as a loan. 38The evidence was overwhelmingly to the effect that it was never the intention of GBM (nor of the Southcombes as its shareholders) to repay the SLN loan. They intended and expected that in due course the loan would be forgiven. That was an integral part of the scheme with which they and GBM were involved. When that did not happen, the Southcombes determined that there was no other way to deal with the loan which in GBM's financial records was owed by it to SLN than to appear to repay the loan (as they did with the payments in 2005) but at all times with the expectation and with an arrangement in place with Mr Agius, that all of the funds used to repay the loan would be repaid to them. The appellant was the person who delivered the cash by way of repayment to the Southcombes. This involved very large amounts of money being paid into companies controlled by the appellant to enable him to perform this function. 39The effect of the appellant's submission is that no money would ever be directly or indirectly derived or realised by an offence if the transaction constituting the offence had the consequence that a liability to pay tax on that money is evaded. It must follow, if that submission is correct, that as both of the offences particularised by the Crown were "tax evasion" offences, none of the money dealt with by him could ever be the proceeds of crime resulting from either of the offences. Such a result would be surprising. 40The Crown approached this ground of appeal differently to the appellant. It took as its start point the elements of the s400.4(2) offence with particular reference to the definition of "proceeds of crime" as set out in s 400.1 (see [28] - [29] hereof). The Crown submitted that the words of s400.1 were ordinary words in the English language and that their meaning and application in this case were questions of fact for the jury. The Crown submitted that each element in the definition of "proceeds of crime" had been made out and that there was nothing unreasonable in the jury's conclusion to that effect. That being so, the offence by the appellant had been made out. 41By reference to the definition of "proceeds of crime", the two offences relied upon by the Crown were that of a conspiracy to defraud the Commonwealth, contrary to s29D of the Crimes Act 1914 (Cth), i.e. that the Southcombes conspired with Mr Agius and others to defraud the Commonwealth of money by entering into a scheme whereby they would not be required to pay tax on funds paid out by GBM, which would otherwise be required to be declared as a dividend. The other offence was one contrary to s134.2(1) of the Commonwealth Criminal Code, namely obtaining a financial advantage by deception. The basis for this offence was that dividends which ought to have been declared were avoided and as such the Southcombes did not declare those dividends in their 2005 tax returns thereby avoiding paying tax on those dividends. 42On the relatively uncontroversial facts, the Southcombes knew that their participation in the scheme was dishonest. During the 2005 financial year GBM sent in excess of $1 million to SLN in purported repayment of a fictitious loan. The Southcombes as sole directors and shareholders of GBM caused GBM to do this with the intention that the money would be repaid to them. On 30 March 2006 when the Southcombes each lodged tax returns for the 2005 financial year, those returns did not include an amount of $500,598 (their individual shares of the amount sent by GBM to SLN) as income received from GBM. They were required to do so because s109C provided that a private company is deemed to have paid a dividend to a person if it made a payment on behalf of that person. After 6 April 2006 at least $470,000 was paid to the Southcombes in cash by the appellant. 43It was against that factual background that the Crown case required the jury to find that the cash payments handed over by the appellant were derived from the commission of one of the offences relied upon. 44In that respect the appellant accepted that the meaning of "derived" in the context of tax evasion offences was correctly set out in Saffron v DPP [1989] 96 FLR 196 and DPP v Jeffery [1992] 58 A Crim R 310. In Saffron, Clarke JA found that Saffron had derived a "monetary benefit" being the tax saved which flowed from his commission of a tax evasion offence. Kirby P accepted as correct the conclusion that the profits from Saffron's unpaid taxes were a benefit "indirectly" derived from the commission of a tax evasion offence. Hunt CJ at CL in Jeffery by reference to Saffron v DPP concluded that property acquired by the use of money made available to Jeffery by reason of him committing the offence of understating his income was indirectly derived from that offence. 45Another way of expressing the findings in Saffron v DPP is that Saffron directly derived the money he should have paid in tax because he retained it to use as he saw fit. Similarly, his profits cannot have been indirectly derived from the commission of an offence unless the cash which represented the unpaid tax was directly derived from the same offending. Inherent in the approach of Hunt CJ at CL in Jeffery was a finding that the money made available by the tax evasion offence was directly derived by the commission of that offence. Accordingly, it is difficult to reconcile the point taken by the appellant with the effect of those decisions. 46The Crown submitted that by reference to the reasoning in Saffron and Jeffery it was clear that the definition of "proceeds of crime" had been satisfied in that the evaded tax had been derived indirectly by the Southcombes from the commission of one of the relevant offences. It followed, the Crown submitted, that there was ample evidence before the jury to establish the first two elements of the s400.4(2) offence, i.e. the appellant had dealt with money and that the money was the proceeds of crime. 47The Crown rejected the appellant's submission (at [35] hereof). It submitted that a person dealing with money on which the incorrect tax has been paid is not liable for criminal punishment unless the reason for the incorrect payment is the commission of a criminal offence. Put another way, the Crown submitted that for a person to be liable for criminal punishment, there needed to be some predicate criminal offending. Almost inevitably this would involve some degree of dishonesty on the part of the offender. There would not be any predicate offending if the failure to pay the correct tax occurred due to mere inadvertence and without dishonesty. In addition, the Crown submitted that the person dealing with the money had to have some awareness that the money being dealt with was the proceeds of crime. If a person had such an awareness, then it was appropriate that they face criminal sanction for their conduct. 48In my opinion, the Crown submissions should be accepted. They take as their start point the criminal offence. They identify the elements of the criminal offence and set out by reference to the facts and authority how those elements have been satisfied. They, in effect, highlight the incongruity which would result if the appellant's submission were accepted. This ground of appeal has not been made out. Ground of Appeal 2: The jury were not properly directed regarding the elements of the offence charged. 49The appellant qualified this Ground of Appeal in oral submissions to the effect that he had abandoned any criticism of the directions as to recklessness (AT 1.19, 8.12). 50This ground of appeal is closely related to Ground of Appeal 1 in that the primary complaint of the appellant was that the direction given to the jury concerning the "proceeds of crime" did not raise the issue which formed the basis of Ground of Appeal 1. The appellant accepted that the jury was told, correctly, that evaded tax was a loss to the Commonwealth and a financial advantage to the Southcombes. His complaint, however, was that no directions were given regarding the question whether any of the cash delivered by him to the Southcombes "resulted from, or was a product of" that loss to the Commonwealth and financial advantage to the Southcombes. 51To illustrate the submission, the appellant relied upon the written direction at AB 1, p 45: "(b) Were these cash payments in fact the proceeds of crime? The jury must be satisfied beyond reasonable doubt that the cash payments handed over were derived from the commission of one or other of those two offences. Derived means came from or resulted from or was a product of the commission of one or other of those two offences, either a conspiracy amongst the Southcombes and others to cause a loss to the Commonwealth or the Southcombes obtain a financial advantage from the Commonwealth by deception. Question: What is the loss to the Commonwealth or financial advantage claimed? Answer: The tax which ought to have been paid." 52The appellant submitted that such a direction was of little assistance to the jury and that more guidance should have been provided to them. 53The appellant also relied on the further written direction at AB 1, p 50: "Question: What is the method of calculation? Answer: The tax rate payable on income in excess of $70,000 per annum at the relevant date was 48.5 percent. The proceeds of crime amounts to 48.5 percent of payments which are found to have been made as the proceeds of crime by the accused to the Southcombes after 6 April 2006 about which he was reckless as to whether they were the proceeds of crime. The total of payments found to have been made as proceeds of crime from 6 April 2006 must be at least $206,186 before this element could be satisfied beyond reasonable doubt. Issue for jury consideration: (1) Determine which payments made after 6 April 2006, if not all, were in fact made as proceeds of crime in relation to which the accused was reckless about that. (2) Calculate the total of those payments. (3) Calculate 48.5 percent of that total. (4) If that final figure is less than $100,000 then the accused must be acquitted. The figure must be at least $100,000 for this element to be proved beyond reasonable doubt." 54The appellant submitted that these directions must have led to confusion in the jury's mind as to precisely what amounts were to be regarded as "proceeds of crime". The appellant submitted that when referring to the "proceeds of crime" the trial judge appeared to confuse the total of the monies not declared by the Southcombes with the amount of the unpaid tax. 55The Crown submitted that the jury received appropriate directions to the effect that they needed to be satisfied beyond reasonable doubt that the monies delivered by the appellant to the Southcombes were derived from one of the offences particularised by the prosecution. The Crown submitted that the written direction at AB 1, p 45 was adequate in that what it made clear was that the decision on that issue was a question of fact for the jury. The Crown submitted that the issue to be decided by the jury was clearly identified. 56The Crown noted that directions to similar effect were given in the summing up: "So the next element you have to be satisfied about beyond reasonable doubt is that the money was the proceeds of crime. What does proceeds of crime mean? In this trial when I say relevantly - and the only reason I say that is because the definition is broader but the way in which the Crown brought the case I'm just giving you the definition that is relevant for the way in which the charge has been brought in this trial - relevantly in this trial, that means any money that is wholly or partly derived by any person from the commission of a relevant offence against the law of the Commonwealth." (SU 46.23 - 47.4) "If you are satisfied beyond reasonable doubt that one or more of those offences was committed then you have to consider another issue before you could be satisfied that element 2 is made out, and that is that any money paid over by the accused to the Southcombes was in fact the proceeds of crime. You have to be satisfied beyond reasonable doubt that the cash payments handed over were derived from the commission of one or other of those two offences. Derived also is a term that is not actually defined in the relevant legislation, but again it is an ordinary word, and it means that it resulted from, or was a product of, the commission of one or other of those two offences - either a conspiracy amongst the Southcombes and others to cause the Commonwealth a loss, or the offence of the Southcombes obtaining a financial advantage for themselves from the Commonwealth by deception. The question you should ask is "what is the loss to the Commonwealth or the financial advantage claimed?" The answer to that is "the tax which ought to have been paid" because no matter which of the two offences you are looking at, that is the same answer to the question." (SU 54.6 - .23) 57In relation to the second matter raised by the appellant, the Crown accepted that there was an ambiguity in the written direction provided by the trial judge at AB 1, p 50 (see [53] hereof). It submitted that the context made it clear, however, that the relevant calculation was 48.5 percent of the monies received by the Southcombes from the appellant. This was stated three times in the direction. Accordingly, the ambiguity in expression would have had no effect on the amount calculated by the jury. The Crown also noted that no objection was made by the appellant to the direction at trial. 58In relation to the first matter raised by the appellant, its resolution is dependent upon the outcome of Ground 1 of the appeal which has not been made out. In relation to the second, there is some ambiguity in the way in which the written direction at AB 1, p 50 has been expressed. Despite that ambiguity, the mathematical process to be followed by the jury was clearly set out on three occasions. The jury could have been in no doubt as to how they should calculate the figure for the "proceeds of crime" if they reached that point in their deliberations. This ground of appeal has not been made out. 59The orders which I propose are: (1) Leave to appeal is granted. (2) The appeal is dismissed. 60LATHAM J: I agree with Hoeben CJ at CL. 61BELLEW J: I agree with Hoeben CJ at CL.