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[2011] NSWDC 83
District Court of NSW
2011-08-01
Original judgment source is linked above.
Introduction 1The trial of Dinker Goel began last Monday. He was arraigned on 41 counts under s135.1(3) of the Criminal Code 1995 (Commonwealth). Evidence was called over 3 days until, in circumstances I am about to describe, he was re-arraigned and pleaded guilty. This followed a request, from Mr Goel's counsel, Mr Morris, that I indicate how I was proposing to direct the jury as regards one aspect of the elements of each of the alleged offences. After I heard argument from Mr Morris and the Crown Prosecutor, I indicated that I would not be directing the jury in the way Mr Morris asked me to. I then adjourned for Mr Morris to get further instructions in the light of what I had just said. It was when the Court resumed that Mr Goel was re-arraigned in the presence of the jury and pleaded guilty. 2These are the reasons for me deciding that I would not direct the jury in the way Mr Morris sought.
Facts which are largely undisputed 3On Sunday 19 October 2008 the accused went to the offices of CNR Accounting and Taxation Pty Ltd. There the accused met a tax consultant by the name of Sharang Sareen. He asked Mr Sareen to prepare 41 tax returns. The accused handed over 41 payment summaries (previously known as group certificates) purporting to show the income earned and tax withheld of 41 taxpayers. He also gave to Mr Sareen a document recording each of the taxpayer's bank account details. Mr Sareen did what he was asked to do, that is he prepared the tax returns and caused them to be lodged with the Australian Taxation Office. 4As it turns out the payment summaries were false. None of the tax payers actually worked for any of the three companies recorded on the various payment summaries. Accordingly they did not earn the income recorded on that summary nor was tax withheld. Further the bank account and BSB numbers were not those of the relevant taxpayers. 5At Mr Goel's request, Mr Sareen included in each of the taxation returns claims for deductions to which the tax payer was not entitled. In fact each tax return should have had zero deductions claimed. 6Thus the tax returns would have had the effect, if they were processed by the Australian Taxation Office, of causing refunds to be made to the 41 tax payers. Those refunds would have totalled in the order of $184,000. 7The actions of the offender led to him being charged with 41 counts under s135.1(3) of the Criminal Code 1995 (Commonwealth). There was one count in relation to each tax return. The 41 counts were in a common form namely, "Between about 18 October 2009 and 22 October 2008 at Sydney in the State of New South Wales, did with the intention of dishonestly causing a loss to the Commonwealth, cause a tax return for the financial year ending 30 June 2008 in the name (the named tax payer) to be prepared and lodged with Australian Taxation Office, in that he procured CNR Accounting and Taxation Pty Ltd to prepare and lodge the return." 8The elements of that offence were set out in a document which I proposed to give to the jury in my summing up as being:
The Course of the Trial 10When the accused was arraigned last Monday he pleaded not guilty to each of the 41 counts. On the third day of the trial, the Crown began to play a number of recordings of interviews that the accused had with an investigator from the Australian Taxation Office, Mr Paul Anderson. In the course of those interviews Mr Anderson asked the accused, amongst many other matters, about how it came about that deductions were claimed for things such as work related expenses on each of the tax returns. The accused told Mr Anderson that he had asked Mr Sareen to claim "general deductions". When pressed by Mr Anderson to explain what he meant, the accused admitted that he should not have made that request because he had nothing to justify an assertion that such expenses had been incurred by the taxpayer. 11As to whether the accused knew whether what he was doing was dishonest, it is important to note that the accused told Mr Anderson: "as far as my concern, it was wrong because even I am working as a tax, tax agent it was wrong". 12Later on in that same interview the accused admitted the following: "and I put it to you that you, you knew that there was no evidence of any deductions at all and yet you were still happy to give instructions to Sharang (Mr Sareen) to make claims for deductions that you did not know existed". 13After hearing this part of the interview I took the opportunity, after the jury had left for the afternoon to discuss with Mr Morris and Mr Crown whether my understanding of the elements that the Crown had to prove were correct. I was concerned because it appeared that in the interview, part of which I had just heard, it appeared that the accused was admitting to committing the offence, (even if he was not admitting that he was as dishonest as the Crown was suggesting he was). Mr Morris correctly anticipated one of the queries I had when he said, "you're going to ask me why is this a trial?". 14It then became clear, after discussions with the Crown and Mr Morris, that there was a dispute between them as to how I would direct the jury. It also became clear that if I decided that I would not direct the jury in the way Mr Morris wanted me to, then it would be better for his client to learn this sooner rather than later so that he could decide how to plead. 15The jury was therefore told not to attend until 11.00 o'clock the following day and counsel and I spent the morning resolving the issue as to how I would direct the jury.
The correct direction to the jury. 16It became apparent that it was the position of Mr Morris that the relevant act which the Crown must prove as being the one which caused the tax return to be lodged (and which the crown must prove was done with the necessary mental element) was the ultimate act of the accused which led to the return being lodged. Mr Morris was proposing to argue to the jury, and asked that I direct them as a matter of law, that they could not find that the accused had caused the tax return to be prepared and lodged when he finished speaking to Mr Sareen on Sunday 19 October 2008 because the taxation returns were not prepared and lodged until a couple of days after that, that occurring after the accused had received an invoice and payed it. 17Mr Morris' position was that the time which the Crown needed to prove that the accused was dishonest (both subjective and objective dishonesty as defined in s130.3 Criminal Code ) was when the accused did the ultimate act which led to the return being lodged. His submission was that it was only the final act of the accused which caused the return to be lodged which was relevant because without that final act the tax return would not have been lodged. In effect Mr Morris suggested that I would direct the jury that there was a "but for" test to be applied in determining when the accused caused the tax return to be prepared and lodged. 18Mr Morris was going to submit to the jury that because the act which caused the tax return to be lodged had to coincide with the mental element of dishonesty, whilst the accused may have been acting dishonestly on the Sunday (something he freely admitted in the interviews with Mr Anderson) he was not acting dishonestly at the time of his final act which led to the returns being lodged. (I have to say that I did not fancy the chances of Mr Morris being able to persuade the jury that it was reasonably possible that what the accused knew, and thus whether he was acting dishonestly, varied from 19 th October 2008 to when the taxation returns were lodged, but that was going to be a matter for the jury and not me). 19The Crown's position was that I would direct the jury that they could find the accused guilty if the relevant mental state coincided with any single act which, together with other acts, led the tax return to be lodged. This would be an act which they could find caused the tax return to be lodged, and that the time at which the Crown needed to prove the mental element was when the accused did any one of those acts. 20In the course of argument I raised the analogy, endorsed by the Crown of the situation where if a person hits another twice, and the person dies, and any one blow would not have been enough to cause the death, and the person would be guilty of murder if he or she had the necessary mental element at the time of the first blow. As a matter of law that first blow would have caused the death. 21The Crown argument was that, at the very least, as soon as:
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R
GOEL
(1990) 172 CLR 378