Regina v. Bates, Philip [2007] NSWCCA 297

Regina v. Bates, Philip [2007] NSWCCA 297 - NSWCCA 2007 case summary — Zoe

[32]

He gave evidence that there was no response received to that letter prior to 6 June 2005. 8 The return for the 2003/2004 year was not lodged until 7 November 2005, and it was the failure in respect of this return that was the subject of the charge. The return for 2002/2003 was lodged on 7 July 2005, also outside the time limited, but this was not the subject of the charge. 9 There was evidence that Mr. Rose advised Mr. Bates on or about 12 May 2005 that he had left a message or messages with the ATO in order to seek an extension of time, and Mr. Bates gave evidence that he contacted his bookkeeper and commenced action to comply with the notice. 10 There was also evidence before the Magistrate of the ATO's taxpayer's charter, to the effect that, if a taxpayer writes to the ATO not using its automated reply services, it would aim to provide its response within 28 days of receiving all necessary information, and if all the information was not provided, it would aim to contact the taxpayer within 14 days to ask for it. 11 The Magistrate relevantly gave the following reasons for finding the offence proved: Certainly it is submitted on behalf of Mr Bates that ATO is a big organisation; there were references to their charter. No doubt if they had received that letter which on the balance of evidence I am prepared to accept that that letter was sent to an address which was not an inappropriate address and that something appears to have gone awry. There is no record of that letter having been received and it appears to have gone astray within Australia Post or within the ATO. These things of course can happen, they should not happen but that appears on the face of it what happened: a not perhaps unexpected action for mail to perhaps go astray in Australia Post or the ATO hence obviously the need where there is a fairly strict and clear obligation upon a taxpayer, (1) to have returned annual returns at an appropriate date which had not been met but (2) and in particular when a final notice is issued that there must be follow up action of a very specific and clear and definite manner to ensure that any request is received and is being acted upon and that follow up action should occur clearly and properly within the notice period. Clearly the 6 June deadline has passed without any follow up action by Mr Bates or Mr Rose of the relevant kind and without any confirmation of such action, the presumption that something may be happening is a far from sufficient response by Mr Bates or Mr Rose.

[45]

SUBMISSIONS 13 It was submitted for the Crown that the terms of the document sent by the Commissioner were clear and unambiguous, that nothing in it was capable of supporting a finding that it could be complied with by making a request for an extension of time, and that there was no evidence capable of supporting an inference that it could be complied with in that way. Accordingly, the Crown submitted that question 1 disclosed an error of law: see The Australian Gaslight Company v. The Valuer-General (1940) 40 SR(NSW) 126 at 138, proposition (4). 14 Also, in circumstances where there was no evidence that the request for an extension had been granted or the return had been lodged within the time required in the document, the facts found by the primary judge necessarily amounted to the commission of the offence; so there was also an error of law disclosed in question 2. 15 The Crown submitted that the Court should act on s.5B(3) and quash the acquittal, and remit the matter to the District Court to be determined in accordance with the Court's decision. The Crown referred to R v. Sirocic [2000] NSWCCA 325 and Robinson v. Woolworths Limited [2005] NSWCCA 426, both decided before the enactment of s.5B(3). 16 Mr. Raphael for Mr. Bates submitted that there was evidence to support the primary judge's finding, namely evidence that there was a protocol in place for dealing with the request for extensions and that the Commissioner's employees sought to comply with it and saw themselves as bound by it. Mr. Bates had a reasonable expectation of a reply to his request within 28 days because of this protocol; and having regard to the protocol, it was open for the primary judge not to be satisfied that Mr. Bates had failed to furnish the form "when and as required". 17 Mr. Raphael also submitted that the Court should decline to answer questions which had no precedent value: Attorney-General for the State of New South Wales v. X [2000] NSWCA 199, 49 NSWLR 653 at [42] and [165]; and should not expose Mr. Bates to double jeopardy. This was particularly so, when it was open to the Court not to be satisfied beyond reasonable doubt that Mr. Bates was capable of complying with the notice, this being a requirement of s.8C(1B) of the Taxation Administration Act.

[46]

DECISION 18 In my opinion, the findings of the primary judge that the notice required the taxpayer to do one of two things, either give the nominated income tax return to the Commissioner of Taxation by the nominated date or seek an extension of the time nominated in the notice, and that the making of a request for an extension amounted to evidence that the notice had been complied with, did amount to errors of law. The notice document was unequivocal, and could not be read as requiring anything other than the giving of the nominated tax returns to the Commissioner of Taxation by the nominated date. 19 However, I would add that this of itself would not be conclusive as to the commission of the offence. The relevant provisions (s.162 of the 1936 Act and s.8C of the 1953 Act) do not in terms require compliance with the terms of a written notice, and there is no section in the relevant legislation giving conclusive effect to such a notice. Each of the sections poses a question of fact as to what is required by the Commissioner; and although a notice given by the Commissioner is very powerful evidence of what is required by the Commissioner, it is not necessarily conclusive. Thus, for example, if there were a practice of suspending the requirements of the notice upon receipt of a request of an extension of time, and then either reinstating them if the extension is refused a reasonable time before the date specified in the notice, or otherwise substituting a different time, it would be arguable that, in the light of this practice, once a request had been made, what was required by the Commissioner was no longer as set out in the notice. 20 I am not saying that this argument would succeed on the facts of this case; but I am saying that it seems there could still be a question of fact to be addressed if the acquittal were quashed and the matter remitted to the District Court. 21 The other question raised by Mr. Raphael, as to whether it was established that Mr. Bates was capable of complying, carries little weight, in my opinion. As the Magistrate said, there was no clear or specific evidence from Mr. Bates or Mr. Rose or Mr. Bates' bookkeeper that there was some significant or real difficulty in complying with the notice; and the Magistrate was satisfied beyond reasonable doubt that he was capable. The primary judge saw no problem with that conclusion, and neither do I. 22 In Robinson, Basten JA doubted the view expressed in Sirocic to the effect that s.5B of the Criminal Appeal Act conferred power to overturn an acquittal. However, both those decisions were before the passage of s.5B(3); and in my opinion, s.5B(3) makes it clear that the Court has that power. 23 There is still a question whether, having regard to the double jeopardy principle, this Court should exercise the power. If the matter were sent back, it seems there could still be the question of fact to be addressed as to what was the requirement of the Commissioner, in the light of his protocols and practices. On the whole, having regard to the double jeopardy principle, I do not think the acquittal should be quashed and the matter sent back. 24 In my opinion the questions raised could be significant in other cases, and the primary judge's decision should not stand as a precedent; and for those reasons, it is appropriate to answer the questions. However, for the reasons given, I would not make any further order. 25 Accordingly, I propose that both questions in the stated case be answered yes. 26 HISLOP J: I agree with Hodgson JA. 27 LATHAM J: I agree with Hodgson JA. **********

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