Re Franklyn Ernest Yates v Bertram Wilson; Nicholas Ernest Bury, Director of Public Prosecutions (Cth) [1988] FCA 209 (23 June 1988)

FEDERAL COURT OF AUSTRALIA

Re: FRANKLYN ERNEST YATES
And: BERTRAM WILSON; NICHOLAS ERNEST BURY, DIRECTOR OF PUBLIC PROSECUTIONS
(CTH)
No. G758 of 1987
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Foster J.(1)

CATCHWORDS

Administrative Law - Review of Magistrate's decision to commit Applicant for trial on charges under s. 29A(2) of the Crimes Act, 1914 (Cth) and s. 178 BA of the Crimes Act, 1900 (N.S.W.) - Jurisdiction - Discretion - Whether charges as laid disclose any offence - Whether Magistrate had before him sufficient material from which to draw the necessary inferences - Magistrate's decision upheld.

Lamb v. Moss, [1983] FCA 254; 49 ALR 533

R v. Laverty, (1970) 3 All ER 432

Victoria v. The Commonwealth, [1971] HCA 16; 122 CLR 353

Ss 5, 6 Administrative Decisions (Judicial Review) Act, 1977

Ss 5, 9 Sales Tax Act, Number 5

Ss 8A, 8B(i), 8J(3) Tax Administration Act, 1953

HEARING

SYDNEY
23:6:1988

DECISION

The applicant in these proceedings was committed for tria first respondent, a Magistrate of the Local Court on 10 December, 1987 on 65 charges under s. 29A(2) of the Crimes Act, 1914 (Cth) and one charge under s. 178BA of the Crimes Act, 1900 (N.S.W.).

2. The second respondent is the police officer involved in the bringing of the charges and the third respondent is the Commonwealth Director of Public Prosecutions.

3. The proceedings before me are brought pursuant to sections 5 and 16 of the Administrative Decisions (Judicial Review) Act, 1977 . Orders are sought for the quashing of the decisions of the first respondent committing the applicant for trial on the charges to which I have made reference.

4. Preliminary submissions are made on behalf of the respondents, firstly, that there is an absence of jurisdiction in this Court to deal with the matter at all and, secondly, that if jurisdiction does exist the Court should decline to exercise it as a matter of discretion on the basis that to exercise it would be to interfere with the due processes of the criminal law in respect to these charges.

5. In the circumstances, I do not propose to give reasons in relation to these particular submissions. I am satisfied that the decision of the Full Court of this Court in Lamb v. Moss, [1983] FCA 254; 49 ALR 533, provides the necessary jurisdictional basis for my proceeding with the matter. Also, I have formed a view during the course of the hearing that I should decide the matter and not decline to exercise that jurisdiction on discretionary grounds.

6. The charges pursuant to s. 29A(2) of the Crimes Act, 1914 were all in similar form. I can have regard, for the purpose of considering this matter, to a particular charge set out in a summary of charges which has been provided to the Court pursuant to directions previously given. That charge reads as follows:-

"That Franklin Ernest Yates did through an agent

Wandabar Customs Agency Pty. Limited on or about
(date) at Sydney in the State of New South Wales
with intent to defraud by false pretence, namely
that the company Sundance Amusement Systems Pty.
Limited was the holder of a sales tax certificate
of registration no. 2446921, cause a benefit to be
given by the Commonwealth to the company Sundance
Amusement Systems Pty. Limited., namely the non
levy by the Australian Customs Service, a
department of the Commonwealth, acting on behalf
of the Australian Taxation Office of Sales Tax
totalling $(amount) due and payable to the
Commonwealth by the said company on certain goods,
being (goods) at the time of the importation of
the said goods into Australia."

7. The basic factual allegations in support of the charge are also set out in the summary provided as follows:-

"That during the period November 1982 to February
1985 there was cleared on behalf of Sundance
quoting the above-mentioned sales tax number to
the Australian Customs Service on each occasion 65
individual shipments. The effect of the quotation
of the sales tax number was that sales tax which
it is alleged would have been payable, was not
charged by the customs authority at the point of
entry."

8. The submission of the applicant is that the charge so laid against him does not disclose any offence known to law, and in particular does not disclose an offence under section 29A(2) of the Crimes Act, 1914. It is put that because of this fact the Court should exercise its powers under the Administrative Decisions (Judicial Review) Act and quash the committal.

9. I am satisfied that if I form the view that that submission has been made good it would be appropriate for me to exercise those powers. It is necessary in determining this question to have regard to the wording of section 29A(2) and consider its construction according to ordinary principles. The section reads as follows:-

"29A(2) Any person who with intent to defraud by
any false pretence causes or procures any money to
be paid or any chattel, valuable security or
benefit to be delivered or given by the
Commonwealth or by any public authority under the
Commonwealth to any person, shall be guilty of an
offence."

10. The question, as it has been refined in argument, is whether it can properly be held that the facts to which I have referred can, in law, constitute a breach of this section. The particular matter raised is whether those facts can establish that as a result of the provision to the Commonwealth authorities of a sales tax number not in fact held by Sundance Amusement Systems Pty. Limited, there was a benefit given by the authority under the Commonwealth to that company. The significant words to be considered are, accordingly, the words "benefit" and "given". The words are of course ordinary English words and should be given any ordinary meaning which they can reasonably bear in their context. The word "benefit" is quite capable in the context of this section, in my view, of conveying the concept of "advantage". The word "given" can also convey the concept of "provided" or "conferred".

11. The charge as formulated speaks of the relevant benefit as being "the non-levy by the customs authorities of the amount of sales tax which would have been due and payable had the authorities been acquainted with the true fact that the company, Sundance Amusement Systems Pty. Limited, was not in fact the holder of the relevant sales tax certificate of registration."

12. It has been put with some force that the levying of a tax involves a fairly technical concept. It is put that the tax in question is actually imposed by law as a result of the operation of sections 5 and 9 of the Sales Tax Act Number 5; that indeed that tax is, at it were, automatically imposed as a result of those sections and that the non-levying by the customs authorities of the amount of this tax cannot amount relevantly to the giving of a benefit as the levy is really imposed by the operation of the sections and not by the Australian customs authority as such.

13. It is put, in accordance with a definition stated in Victoria v. The Commonwealth, [1971] HCA 16; 122 CLR 353, that a tax properly considered is "an exaction of money in accordance with law". I have given anxious consideration to the submission. It was met in the first instance by a submission, partly by way of concession on the part of the respondents, that the statement of facts that should have appeared in the charge following the technical formulation of the charge itself, should more properly have involved the use of the words "non-collection" rather than "non-levy".

14. It was put that the words did not form a fundamental part of the charge and that they could easily be cured by amendment, and that, consequently, even if I were to find that they were inappropriate as a description of fact to bring the charge within the section, I would, as a matter of discretion, not quash the conviction in those circumstances. It was later submitted, however, on the basis of a dictionary quotation from a highly reputable source that the word, "levy", used in the circumstances of this charge was capable, as a matter of ordinary English, of conveying the meaning of "collect" in relation to taxation imposed by dint of the operation of legislation.

15. I think that this latter submission is correct and that I have no need to have regard to the question of the exercise of discretion.

16. I then turn to consider whether the failure by the Australian Customs authorities to collect from Sundance Amusement Systems Pty. Limited the appropriate amount of sales tax could, within the meaning of the section, amount to the giving of a benefit by those authorities to that company. It was put that the section could only operate in circumstances where there was, in effect, some deliberate act on the part of the Commonwealth authorities of conferring or giving a benefit and that, in the circumstances obtaining here, where the authorities were acting in ignorance of the fact that they tax should have been collected, no question of the conscious or deliberate giving of a benefit could arise. I think that is far too restrictive an interpretation of these words as they appear in section 29A(2). In my view, there is no necessity in the operation of this section that the conferring of the relevant benefit should arise as a result of a conscious intent to confer an advantage. It is quite sufficient if as a result of the relevant false pretence the situation arises that the relevant Commonwealth authority is caused, as a matter of course, to provide an advantage either to the person perpetrating the fraud or to some other person intended by him to receive it.

17. I am equally satisfied, although the contrary was argued, that to be relieved of the requirement to pay a tax by dint of the fact that the tax is not demanded amounts, so far as the person relieved is concerned, to a benefit within the meaning of the section.

18. Reference was made in argument to certain provisions of the Taxation Administration Act, 1953, in particular to sections 8A and the definition of "taxation offence" contained therein, and to the definition of "relevant offence" in sections 8B(1) and 8J(3); in particular, it was said that the absence of any reference in those sections to taxation offences as having been created by s. 29A(2) was an indication of a legislative intention that s. 29A(2) should have no operation in circumstances such as this where the benefit allegedly given was the removal in the circumstances of a requirement to pay a tax imposed by law. Whilst seeing the effect of that argument, I do not myself find that it is of sufficient force to overcome the view I have formed as to the clear meaning of s. 29A(2) and its clear applicability to the facts placed before the learned Magistrate.

19. In these circumstances, I reject the submission that the charge brought against the applicant cannot fall under s. 29A(2). Consequently, the submission that the charge brought against him and in respect of which he has been committed discloses no offence known to law, in my view, fails.

20. I turn then to the charge purportedly brought under s. 178BA of the Crimes Act, 1900 of New South Wales.

21. That charge reads as follows:-

"That Franklyn Ernest Yates did between about the
1st day of June, 1981 and the 31st day of
December, 1982 at Sydney in the State of New South
Wales, by a deception, namely that Sundance
Amusements Systems Pty. Limited was the holder of
a Sales Tax Certificate of Registration Number,
dishonestly obtained by Precise Craft Pty. Limited
a financial advantage for Sundance Amusement
Systems Pty. Limited (formerly named The Games
Channel (Australia) Pty. Ltd.), namely the
purchase of certain goods being tables, cabinets,
consoles and console stands for amusement
machines, at a price which excluded a total amount
of $20,203.36 being the sales tax payable by the
Precise Craft Pty. Limited on the said goods,
which said amount would otherwise have been added
to the sale price of the said goods by Precise
Craft Pty. Limited."

22. It is not submitted in respect of this charge that as it is worded it could not fall within the terms of s. 178BA. What is put is that the evidence before the learned Magistrate was totally deficient in providing a basis upon which the applicant could be committed for breach of the section. It is necessary to set out the terms of the section. They are as follows:-

"Whosoever by any deception dishonestly obtains for
himself or another person any money or valuable
thing, or any financial advantage of any kind
whatsoever, shall be liable to imprisonment."

23. The relevant facts are set out in the summary of the charge provided in response to the previous directions of the court. They are as follows:-

"Evidence was given that the Applicant arranged for
Precise Craft to do some cabinet-making work on
behalf of Sundance. Later, arrangements were made
by the Applicant for Precise Craft to supply
Sundance with cabinets for video machines and
other items. Mr. Frost, who at the relevant time
was a director of Precise Craft gave evidence that
at some time before 14 July, 1981 he had the
following conversation with the Applicant:-

"I said to him, "I'd like to discuss and confirm
with you, arrangements for payment of goods from
Precise Craft to Sundance". And he said, "It will
be on a COD basis". I said, "Thats fine". And
then I said that "Any quote given for goods that
we are to supply would not include sales tax, as
that would have to be added, and depending on the
rate." He said, "Sundance is a recognised
manufacture (sic) and has a tax number which will,
be quoted to you when you're supplying goods"."

24. It is abundantly clear that the evidence further indicated that following upon that conversation goods were supplied in considerable numbers over a long period of time by Precise Craft to Sundance in circumstances where the price charged by Precise Craft to Sundance did not include any amount referable to the sales tax which had been charged on those transactions; it being understood in accordance with law that Sundance having a registered sales tax certificate would have the responsibility of paying the appropriate sales tax.

25. It is put that there is no evidence of Precise Craft having suffered any financial loss as a result of these transactions. That, however, is in my view not a relevant consideration having regard to the words of the section. The question is whether the deception, namely, the false statement as to Sundance having a relevant tax registration certificate, resulted in Sundance obtaining a financial advantage.

26. I am quite satisfied, and indeed I do not understand the contrary to have been argued, that the obtaining of this large number of goods over this period of time at a reduced price could not be other than a financial advantage within the meaning of the section. The point that is made, as I understand it, is that there was no evidence before the learned Magistrate upon which he could have found that the statement made to Mr. Frost induced him to provide the goods at a lower price.

27. It is put that the absence of any direct question to Mr. Frost, designed to illicit an answer as to what he would have done had he been told that Sundance in fact did not have the relevant certificate, in law precluded the learned Magistrate from finding that a prima facie case of breach of the section had been made out. It was put on behalf of the applicant that cases such as R v. Laverty (1970) 3 All ER 432 were in effect authorities for the proposition that such a question together with an appropriate answer is necessary in law to found a charge brought under a section such as this. I do not regard Laverty's Case as authority for any such wide proposition.

28. I am quite satisfied that the learned Magistrate in considering whether a prima facie case has been established, is fully entitled to have regard to the whole of the evidence before him to determine whether it is capable of providing reasonable inferences that the relevant inducement existed.

29. I have been referred to other passages in the transcript other than the passage I have set out above. I do not regard it as necessary to lengthen these reasons by setting out these passages. I am quite satisfied that the learned Magistrate had before him material from which he could make the necessary inferences or perhaps more properly form the view that a jury properly instructed could make those inferences. He was not in any sense required to find an absence of a prima facie case or refuse to commit simply because there was no direct evidence given by Mr. Frost or any other relevant employee of Precise Craft as to what steps he or they might have taken had they been informed at the relevant time of the absence of the relevant certificate.

30. In these circumstances I am satisfied that the learned Magistrate has not erred in forming his decision that the applicant should be committed for trial on all the charges referred to.

31. In these circumstances I dismiss this application.

32. I order the applicant to pay the costs of the second and third respondents and the costs of the first respondent on a submitting appearance only.