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Supreme Court of the ACT |
Last Updated: 16 March 2009
DAVID JOHN CUMMINS V ANTHONY DAVID DUCK
[2009] ACTSC 20 (12 March 2009)
APPEAL AND NEW TRIAL – appeal from decision of the ACT Magistrates Court – non-conviction orders – when appropriate – depression – s 19B Crimes Act 1914 (Cth) – Taxation Administration Act 1953 (Cth) s 8C.
Income Tax Assessment Act 1936 (Cth), ss 161, 162
Taxation Administration Act 1953 (Cth), ss 8C(1)(a), 8C(1A)
Crimes Act 1914 (Cth), s 16A, 19B.
Customs Act 1901 (Cth)
Quarantine Act 1908 (Cth)
Health Insurance Act (1973) (Cth)
Civil Aviation Regulations 1988 (Cth)
Social Security Act 1991 (Cth)
Craft v Diebert [2004] ACTCA 15
Dong v Ranse [1999] ACTSC 125
Hayes v Weller (1988) 50 SASR 182
Lanham v Brake (1983) 13 A Crim R 293
Boulos (1988) 37 A Crim R 461
Mulholland (1994) 76 A Crim R 155
Aikman v Bourne (1992) 63 A Crim R 467
Commissioner of Taxation v Baffsky [2001] NSWCCA 332; (2001) 122 A Crim R 568
Kelton v Uren (1981) 27 SASR 92
Talisco Pty Ltd v Sarney (1987) 87 ATC 4343
Federal Commissioner of Taxation v Doudle [2005] SASC 442; (2005) 61 ATR 221
Federal Commissioner of Taxation v Wormald International Australia Pty Ltd (1985) 17 ATR 129
Kay v Schouten (2001) 46 ATR 312
JUDGMENT
No. SCA 9 of 2008
Judge: Refshauge J
Supreme Court of the ACT
Date: 12 March 2009
IN THE SUPREME COURT OF THE )
) No. SCA 9 of 2008
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: DAVID JOHN CUMMINS
Appellant
AND: ANTHONY DAVID DUCK
Respondent
ORDER
Judge: Refshauge J
Date: 12 March 2009
Place: Canberra
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. On each charge the appellant be released on a recognizance to be of good behaviour for twelve months on condition that he submit to supervision by the Chief Executive or her delegate and obey all reasonable directions, particularly relating to psychological treatment and counselling, as may be given by the person required to supervise him.
3. The appellant pay the court costs of $137.00 within 28 days.
1. Most people recognise the social responsibility of citizens to furnish a return to the Commissioner of Taxation in which they disclose their assessable income. The legal obligation is imposed on citizens when required by the Commissioner (see Income Tax Assessment Act 1936 (Cth) ss 161, 162).
2. It appears that when a taxpayer has failed to lodge the ordinary return, the Commissioner, no doubt in reliance on s 162, will send a notice requiring lodgement by a specified time and it is failure to comply with this notice that constitutes an offence under s 8C of the Taxation (Administration) Act 1953 (Cth).
The facts
3. On 13 March 2006, the appellant, David John Cummins, was sent notices in writing by a Deputy Commissioner of Taxation requiring him to furnish to the Commissioner of Taxation by 8 May 2006 an income tax return for each of the years ended 30 June 1997, 30 June 1998, 30 June 1999, 30 June 2000, 30 June 2001, 30 June 2002, 30 June 2003, 30 June 2004 and 30 June 2005.
4. When Mr Cummins failed to comply with that notice, he was prosecuted under s 8C(1)(a), (1A) of the Taxation (Administration) Act 1953 (Cth). That section relevantly provides:
8C Failure to comply with requirements under taxation law(1) A person who refuses or fails, when and as required under or pursuant to a taxation law to do so:
(a) to furnish an approved form or any information to the Commissioner or another person;
...
Is guilty of an offence.
(1A) An offence under sub-section (1) is an offence of absolute liability.
5. Section 8E of the Taxation (Administration) Act 1953 (Cth) provides a range of penalties for multiple offences under s 8C. The maximum penalty for a first offence is $2,200; for second and subsequent offences the maximum penalty is a fine of $4,400.
6. Mr Cummins pleaded guilty to these offences and on 15 January 2008 he was convicted on each of the nine charges and on each fined $200 and on the first charge ordered to pay court costs of $137.
7. Mr Cummins appeals against that decision. It was clear that Mr Cummins prepared the Notice of Appeal himself. His grounds were:
That the Learned Magistrate may have erred in not placing greater reliance on the evidence presented by the defendant at hearing or in any event may have discounted the effect of that evidence on the defendant.
8. When the appeal was heard, Mr Cummins was ably represented by Mr James Sabharwal of counsel who, in his submissions, made it clear that the basis of the appeal was that the learned Magistrate had made an error in his reasoning which was important to the outcome and that, in re-sentencing, the whole of the evidence properly construed would reasonably have led to the imposition of a non-conviction order under s 19B of the Crimes Act 1914 (Cth). No objection was taken to proceeding on this basis.
9. The facts of the offences are in relatively short compass so far as Mr Cummins’ guilt of the offence is concerned. He was earning assessable income in each of the years between the year which ended on 30 June 1997 and that which ended on 30 June 2005 and, accordingly, was required to file a return disclosing that assessable income. He failed to do so and, as noted above, notices were sent to him as provided for in the taxation laws and he failed to comply with them. Thereupon, he committed the offences.
Sentencing in the Magistrates Court
10. The evidence on sentence was very substantial. Rather unusually, but not improperly, some of that evidence was given by affidavit, including affidavits of Mr Cummins. In a busy Magistrates Court that may have some advantage whereas in this Court one would normally expect the deponent of such affidavits to give oral evidence.
11. In the event, the affidavits were tendered without objection and the deponents not required for cross-examination. Other material was arguably inadmissible but apparently no objection was taken to its reception.
12. The essence of the case made for the appellant was that he was suffering from conditions that made it psychologically difficult for him to address the need to complete the relevant returns and that these conditions were not merely procrastination or what might generally be regarded as the common inhibition against attending to the task of completing one’s income tax returns, which many regard as uninviting.
13. As I have noted, the information before the Learned Magistrate was voluminous and it is not unsurprising that his Honour adjourned the proceedings so as to consider the material. There is no doubt that much of the material could have been presented in a more helpful way to assist the Learned Magistrate to understand the points being made.
14. Perhaps the most useful piece of evidence was a detailed report dated 8 March 2007 from Mr Leigh W Nomchong, an experienced clinical psychologist with long experience in forensic psychology, who had seen Mr Cummins on 28 February 2007 for one and a half hours.
15. Mr Nomchong diagnosed Mr Cummins as suffering from prolonged periods of depression. He specifically diagnosed Mr Cummins as suffering from Dysthemia, which is a long-standing depression that reacts to stress and comes in waves. He also diagnosed Mr Cummins as suffering “issues of self-esteem, self-worth, fear of failure and fear of rejection by others”.
16. Mr Cummins was also separately diagnosed as suffering from sleep apnoea and the evidence, unchallenged, was that this can also have a depressive effect on its sufferers.
17. A summary of the circumstances is usefully provided by Mr Nomchong’s opinion which put the relevant events into the following context:
Mr Cummins has always had a fear of failing and affear [sic] of being seen by others as failing. This was reinforced by the expectations of his parents and created by the expectations of his school and the peers of his school. Unfortunately, Mr Cummins [sic] academic performance was not up to the expectations of others, but he was unable to accept this himself, even though the evidence was strong. So he compensated by working very hard and putting in countless hours of study and effort.Consequently, Mr Cummins began to associate achievement with high stress. This stress, in turn, induced high levels of depression from [sic] him, engendering feelings of hopelessness and helplessness.
As Mr Cummins progressed through life, he maintained the need to prove to others that he was worthy, by being successful. This was definitely not occurring in the public service and so he attempted to achieve success in a commercial way with an investment property, which all went wrong. Once again he had achieved the opposite of his goals. Rather than being successful, he proved that he was incompetent and a failure. A not very comfortable outcome, and something that exacerbated his periods of depression.
But he was used to hard work, and also used to striving no matter what the cost. So he continued to push himself in other areas (as he does now, Mr Cummins has bought another investment property). But whenever, [sic] he went back to past failures, such as the investment property down the coast, the depression looms and he avoids the experience by putting the thought aside and distracting himself with other important issues before him, such as his criminal law practice, or his family or otherwise.
So there developed a pattern. Mr Cummins was busy, distracted, stressed, suffering bouts of depression from time to time, and whenever the issue of completing a taxation return come [sic] to his mind, he would think that he would have to do the return outstanding for 95/96 first, which meant he had to clean up the financial mess surrounding the failed investment property, before he could move onto the next return. At which point, it all would become overwhelming and he would then avoid the issue with a distraction, such as the demands of legal practice, or his family or simply ignore the issue.
Each time he approached to [sic] task of completing his taxation return the cycle I described above would repeat itself and he would again go into a vague dissociative state of denial and not carry out the task.
To summarise, Mr Cummins [sic] pre existing condition of dysthema [sic] (depression), alongside his fear of failure and pattern of failing, associated with a marked failure in the investment property down the coast, produced in him a negative association with completing the taxation return for the relevant financial year. As is consistent with others suffering depression, he went into a state of denial where he knew he had to provide the taxation returns but cut that knowledge off from his day to day awareness, whereupon, that task ceased to exist.
18. Mr Cummins did seek assistance for his obvious psychological difficulties. He accessed an employment assistance scheme through Davidson Trahaire Corpsych Pty Ltd, the employment assistance adviser to his then employer in 2001, 2002 and 2003. He also accessed the counselling service at the University of Canberra in 1998, 2000 and 2003. These were relatively isolated attendances, once or twice a year, but constitute clear evidence of some recognition that he had difficulties, though no consistent treatment for them.
19. In late 1994 and 1998 he also saw his general practitioner for complaints of workload stress.
20. In the second half of 2006, he was also diagnosed with hypertension which had settled by early 2007.
21. As a result of Mr Nomchong’s comprehensive assessment, Mr Cummins took steps to deal with the issues raised. He attended a specialist sleep and chest disorders centre on 29 March 2007 and commenced treatment on 2nd May 2007.
22. He also attended the University of Canberra Psychology Clinic on 6 March 2007 and entered into a period of therapy which was said to have commenced as treatment on 13 April 2007.
23. He also saw an eye specialist and took active steps to deal with outstanding problems relating to his legal practice, attended on his general practitioner, reduced his workload and external activities and joined a gym.
24. Much of this was, of course, recognised by the Learned Magistrate who also quoted extensively from Mr Nomchong’s report.
25. His Honour, however, commented on this as follows:
26. The returns were, in fact, lodged on 9 May 2007 (a year and a day after the date on which they were required to be lodged by the Notice delivered by the Deputy Commissioner of Taxation).
27. The prosecution proceedings were commenced in about January 2007, the summons on the informations returnable on 13 February 2007.
28. It is clear that the commencement of the prosecutions galvanised Mr Cummins into action. There is nothing to suggest that Mr Cummins was constitutionally unable to attend to the relevant matters, such as would appear if he were in a coma or otherwise so severely mentally affected that he could not do the work required. That, however, is not the relevant test.
29. It is clear, however, that as a result of the prosecution action, Mr Cummins sought out and obtained treatment and that treatment was in place throughout the early part of 2007. Indeed, one might observe that the attendance on Mr Nomchong itself was a form of treatment where the diagnosis is a way to allow the sufferer of depression to understand the difficulties he or she is facing and put in place mechanisms which are needed to confront and deal with it.
30. As an example, Mr Nomchong pointed out that a common feature of the diagnosed problem was that the sufferer works very hard at jobs other than the required job (preparation of the income tax returns) which are all very important but not the relevantly important job that needs to be done. Thus, the ability to work hard is not disproof of the debilitating effects of the problem but, indeed, one of its symptoms for it is the distraction needed to deal with the depression and self-justify the avoidance of the inhibited tasks. This was contrary to what the Learned Magistrate held and consistent with the uncontradicted evidence of Mr Nomchong.
31. The fact that, as a result of the diagnosis and the advice of Mr Nomchong, Mr Cummins reduced his workload and reduced his non-core activities was, in itself, a form of treatment which dealt with the symptoms that were manifest of the underlying problem.
32. It is clear, too, that in the period of the ultimate preparation of the returns, Mr Cummins was undergoing treatment.
33. I also note that despite the comment by the Learned Magistrate that the long hours worked by Mr Cummins in legal practice were “ultimately, to benefit himself” is to ignore some of the uncontradicted evidence given by Mr Cummins in his affidavit. The evidence was that he was an employed solicitor on a salary in a legal practice where there was no indication that additional work would produce additional benefit. He then became an independent contractor where he received no income at all.
34. Accordingly, it does seem to me that the Learned Magistrate was in error in suggesting that it was possible for Mr Cummins without treatment to attend to his obvious legal and social obligation to complete his returns and that the debilitating effect of his psychological problems, which the Learned Magistrate nevertheless recognised, was not as mitigatory as suggested, particularly insofar as it is suggested that he concentrated instead on his own work to his own benefit.
35. It has become clearly recognised that depression is a category that has a wide spectrum from relatively transient “feeling down in the dumps” to quite substantial clinical disorders which entitle the sufferers to disability pensions. It is not something that can always be overcome simply by effort and attention but by professional help in assisting the sufferer to acknowledge the problem, as was shown in an article by Professor Geoff Gallop as part of the tendered material received without objection. It is now recognised that, at some levels, it is really debilitating and often needs professional assistance to overcome, for as the article by Professor Gallop says, the sufferer has often lost control and needs such help to regain it.
36. By the same token, it does not seem to me that treatment in this area is limited to medication or intensive therapeutic counselling. Support and attention which assists the sufferer to identify and implement strategies to overcome the blocks which the psychological condition raises is a form of treatment. As Dr Gallop said, sufferers do not take action because the nature of the illness prevents it. Of course, it must depend on each case as to whether the level of the psychological condition is exculpatory or mitigatory or not.
The appeal to the Supreme Court
37. It is clear that, on an appeal from the Magistrates Court, the Supreme Court is not simply to substitute its own view for that of the Learned Magistrate. The Learned Magistrate has the primary obligation to make a decision and to exercise his or her discretion and that is where the legislature puts that obligation.
38. Nevertheless, the appeal mechanism is designed to allow the Supreme Court to intervene where appropriate. I gratefully accept the description of this obligation from what fell from French J in Craft v Diebert [2004] ACTCA 15 at [60]- [63]. His Honour there said:
‘The necessity to show error ... is fully accepted by courts deciding appeals against sentence ... Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it. As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeal seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some materials considerations, or a mistake as to the facts.
39. The question then is whether in the circumstances, the error of the Learned Magistrate was such as to likely affect the outcome of the proceedings: Dong v Ranse [1999] ACTSC 125 at [20].
40. It seems to me that the errors of the Learned Magistrate, in failing to find that Mr Cummins did complete his tax returns while accessing treatment and as a result of it, and the rejection without cause of Mr Nomchong’s diagnosis, that his ability to work (which was hardly of any real benefit to him) did not show he was psychologically able to complete his returns, were errors that clearly affected the sentence imposed. These errors caused his Honour to reject the mitigation put forward on behalf of Mr Cummins. This requires the sentence to be set aside and for Mr Cummins to be sentenced afresh.
The sentence to be imposed
41. Mr Sabharwal submitted that I should proceed under s 19B of the Crimes Act 1914 (Cth). That section relevantly provides:
(1) Where:(a) a person is charged before a court with a federal offence or federal offences; and
(b) the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:
(i) the character, antecedents, age, health or mental condition of the person;
(ii) the extent (if any) to which the offence is of a trivial nature; or
(iii) the extent (if any) to which the offence was committed under extenuating circumstances;
that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;
The court may, by order:
(c) dismiss the charge or charges in respect of which the court is so satisfied; or
(d) discharge the person, without proceeding to conviction in respect of any charge referred to in par (c), upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he will comply with the following conditions:
(i) that he will be of good behaviour for such a period, not exceeding three years, if the court specifies in the order;
(ii) that he will make such reparation or restitution, or pay such compensation, in respect of the offence or offences concerned (if any), or pay such costs in respect of his prosecution for the offence or offences concerned (if any) as the court specifies in the order (bring reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):
(A) on or before a date specified in the orders; or
(B) in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs – by specified instalments as provided in the order; and
(iii) that he will, during a period, not exceeding two years, that is specified in the order in accordance with subpara (i), comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed.
42. Handed up to me during submissions were a large number of cases, each of which I have read. Many related to the circumstances under which a non-conviction order under s 19B of the Crimes Act 1914 (Cth) should be imposed and the principles involved.
43. The cases ranged over a number of offences, including the offences for which Mr Cummins was sentenced. It does seem to me, however, that a number of the offences which were the subject of some of the cases handed up are somewhat different from the offences which are the subject of this case. For example, these offences are somewhat different from prosecutions under the Customs Act 1901 (Cth) where customs duty payable has been avoided by a device (Hayes v Weller (1988) 50 SASR 182), prosecutions under the Quarantine Act 1908 (Cth) for failing to disclose that one is bringing into Australia plant products which have a real likelihood of introducing pests that may potentially affect the community disastrously (Lanham v Brake (1983) 13 A Crim R 293), obtaining improper payments under the Health Insurance Act (1973) (Cth) (Boulos (1988) 37 A Crim R 461), making incorrect assertions under the Civil Aviation Regulations 1988 (Cth) which has the real possibility of endangering lives of those people flying (Mulholland (1994) 76 A Crim R 155) or improper receipt of payments under the Social Security Act 1991 (Cth) (Aikman v Bourne (1992) 63 A Crim R 467).
44. Whilst, of course, the failure to provide a taxation return may mean that some revenue is not collected or not collected at the appropriate time, although interest and penalties can be imposed on late payments, that is not completely the case here. Mr Cummins was substantially employed under a regime where tax is deducted by his employer, though ultimately he was required to pay additional tax, but it seems to me there are some differences that do not allow immediate comparison with those other cases. There was, for example, no immediate threat to the safety of persons, there was no dishonesty, there was no threat to the security of agriculture. Thus, many of the cases relied on are not of particular assistance, save, of course, for the general principles they enunciate.
45. This is not to say that the offences are not serious. Indeed it is an important part of the taxation regime to ensure that those people who are required to pay tax do pay that tax and pay the amount of tax required to be paid. Without such a regime, it is entirely clear from the common perception of taxation as an unattractive obligation, that the system would be seriously undermined. If so, an important basis of the community would be put in doubt.
46. It needs also to be said that, while Mr Cummins did not comply with his obligation until a later period of time, he did not ignore it and, indeed, was in contact with the Australian Taxation Office on a number of occasions. At one stage, he even forwarded to the Taxation Office a copy of his group certificates, notification of his bank and an indication of his likely allowable deductions.
47. This, of course, did not meet his obligations but, nevertheless, it took the case out of what might be described as “run of the mill” cases where there has been simple delay and the ignoration of the relevant obligations: Talisco Pty Ltd v Sarney (1987) 87 ATC 4343 at 4346; Federal Commissioner of Taxation v Doudle [2005] SASC 442; (2005) 61 ATR 221 at 225.
48. The exercise of discretion under s 19B of the Crimes Act 1914 (Cth) has recently and extensively been considered by the Court of Criminal Appeal in New South Wales in Commissioner of Taxation v Baffsky [2001] NSWCCA 332; (2001) 122 A Crim R 568. Spigeleman CJ said at 572:
Section 19B(1)(b) itself consists of two stages. First is the identification of a factor or factors of the character specified in subparagraphs (i), (ii) and/or (iii) of the paragraph. The second stage is the determination that, having regard to the factor or factors so identified, it ‘is inexpedient to inflict any punishment’ or to reach the other conclusions for which the paragraph provides.
49. His Honour also held that while the exercise of the discretion can only be enlivened by the matters specified in s 19B(1)(b), in the ultimate sentencing, in making the order, the court is required to take into account the considerations determined by s 16A of the Crimes Act 1914 (Cth).
50. It seems to me, that while in the absence of the medical and psychological material, this was a fairly “run of the mill” version of the offence and the sentence imposed by the Learned Magistrate was entirely appropriate, the full effect of the evidence and the steps taken by Mr Cummins after diagnosis do clearly distinguish the circumstances of the commission of the offence from the typical offence or circumstances of the typical offence. Thus, the health and mental condition of Mr Cummins are of a sufficiently unusual nature personal to the defendant to justify the exercise of the discretion to impose a non-conviction order: Kelton v Uren (1981) 27 SASR 92 at 93.
51. This is not merely a case of a defendant “under pressure, and avoiding doing things ... that probably describes a large percentage of the lawyers in practice ... today” (Kay v Schouten (2001) 46 ATR 312 at 315). I am satisfied there was a real psychological barrier to Mr Cummins’ completing his returns which he required professional assistance to overcome and which, with that assistance, he did overcome. It is, of course, different from a case where Mr Cummins, for example, had more serious psychological symptoms such as panic attacks following a traumatic experience. The depression here was not severe but was nevertheless relevantly debilitating and genuine. It is not necessary for such depression to prevent one from engaging in any activity at all. It must be, however, directly relevant to the subject matter of the offences. I note also that, since these events, Mr Cummins has lodged his returns and on time.
52. I also note that, whilst it is clearly not sufficient itself to justify the exercise of the relevant discretion, Mr Cummins has only a minor traffic offence on his record: Federal Commissioner of Taxation v Wormald International Australia Pty Ltd (1985) 17 ATR 129 at 132; Federal Commissioner of Taxation v Doudle at 225. I note also that he has received a large number of very supportive references. Whilst many were from family and friends, who might in the ordinary course be expected to be supportive (although, of course, no doubt being truthful in submitting character references to the court), they also included references from parents of some of his clients from his criminal practice, some clients and acquaintances. This is important because it is positive evidence of his good character (Mulholland at 162). These factors of character reinforce the appropriateness of proceeding to impose a non-conviction order.
53. I note too that it is relevant to consider the effects on his professional or employment status (Federal Commissioner of Taxation v Doudle at [226]. While the evidence was thin, it was noted that Mr Cummins’ employment as a security officer may be affected and one can understand that convictions in that area would be of concern to an employer or a person to whom the security agency was contracted. Nevertheless, this is a slight factor, principally because the evidence was thin and there was certainly no suggestion that it would be inevitable that Mr Cummins would lose his security license as a result of the conviction.
54. I am mindful of the fact that the delay in lodging the returns was by no means insignificant after the expiry of the time limited in the notices: Federal Commissioner of Taxation v Wormald International Australia Pty Ltd at 132; Federal Commissioner of Taxation v Doudle at 225. On the other hand, the delay after Mr Cummins saw Mr Nomchong was relatively short. This does not seem to me to be a factor that outweighs the other factors which have led to the view I have formed to exercise the discretion to proceed without recording a conviction.
55. Objectively, the offences were serious in themselves and in the number of them, but that has never been the only or overwhelming criterion.
56. Taking all these matters into account, I consider that it is inexpedient in this case to inflict any punishment.
Conclusion
57. Accordingly, I consider that it is appropriate to exercise my discretion under s 19B and I order as follows:
1. The appeal be allowed.
2. On each charge the appellant be released on a recognizance to be of good behaviour for twelve months on condition that he submit to supervision by the Chief Executive or her delegate and obey all reasonable directions, particularly relating to psychological treatment and counselling, as may be given by the person required to supervise him.
3. The appellant pay the court costs of $137.00 within 28 days.
I certify that the preceding fifty-seven (5) numbered paragraphs are a true copy of the Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 11 March 2009
Counsel for the appellant: Mr James Sabharwal
Solicitor for the appellant: Self-represented
Counsel for the respondent: Mr R A Evans
Solicitor for the respondent: Commonwealth Director of Public Prosecutions
Date of hearing: 20 November 2008
Date of judgment: 12 March 2009
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