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  • Unreported Judgment

O'Hagan v Commissioner of Taxation

 

[2020] QDC 288

DISTRICT COURT OF QUEENSLAND

CITATION:

O’Hagan v Commissioner of Taxation [2020] QDC 288

PARTIES:

MARK LESLIE O’HAGAN

(appellant)

v

COMMISSIONER OF TAXATION

(respondent)

FILE NO:

Appeal No: 21 of 2020

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Townsville

DELIVERED ON:

13 November 2020

DELIVERED AT:

Cairns

HEARING DATE:

3 November 2020

JUDGE:

Morzone QC, DCJ

ORDER:

  1. Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 - conviction – failure to give a return to the Commissioner of Taxation – where the Magistrates Court has jurisdiction and power to determine the case – where the Australian Tax office is a legal entity – whether documents are admissible and in the English language – where appellant failed to update business structure – where fine imposed in first instance – decision affirmed

LEGISLATION:

Commonwealth of Australia Constitution Act (Cth) s 115

Crimes Act 1914 (Cth) s 15B(1)

Criminal Code 1995 (Cth) ss 6.2, 13

Currency Act 1965 (Cth) s 16

Director of Public Prosecutions Act 1983 (Cth) s 9,

District Court of Queensland Act 1976 (Qld) s 113

Income Tax Assessment Act 1936 (Cth) s8

Judiciary Act 1903 (Cth) ss 39, 68, 79

Justices Act 1886 (Qld) ss  222, 223, 227

Magistrates Court Act 1921 (Qld)

Partnership Act 1891 s 7

Taxation Administration Act 1953 (Cth) s 8

CASES:

Ambrose v Edmonds-Wilson (1988) 88 ATC 4173

Briggs v Deputy Commissioner of Taxation [No, 2] (1986) ATR 592

Chidiac v R (1991) 171 CLR 432

Dyers v The Queen (2002) 210 CLR  285

Fox v Percy (2003) 214 CLR 118

Gallo v Dawson (1990) 93 ALR 479

Ganke v Deputy Commissioner of Taxation (No. 1) (1975) FLR 98.

House v The King (1936) 55 CLR 499

Lovell v Lovell (1950) 81 CLR 513

Marcusson v Southern Shipping Co Ltd (1962) 107 CLR 279.

Minister for Natural Resources v New South Wales Aboriginal Land Council [1987] 9 NSWLR 154

Morris v R (1987) 163 CLR 454

Neil v Nott (1994) 121 ALR 148

White v Commissioner of Police [2014] QCA 12

Whitehorn v R (1983) 152 CLR 657

Wynyard v Deputy Federal Commissioner of Taxation (1984) 75 FLR 247

COUNSEL:

Self-represented Appellant

M Dalton for the Respondent

SOLICITORS:

Commonwealth Director of Public Prosecutions for the Respondent

Introduction

  1. [1]
    On 6 December 2019 the appellant was found guilty after a summary trial held on 18 November 2019 in Townsville Magistrate’s Court of four offences of failing when and as required pursuant to a taxation law to give a return to the Commissioner of Taxation, s 8C(1)(a) of the Taxation Administration Act 1953 (Cth).  On 16 December 2019 the appellant was sentenced by way of a fine of $4000 and ordered to pay costs in the amount of $99.55.
  2. [2]
    The appellant now appeals his conviction (and sentence) on the grounds that: “Was the court Coram Judice?  Was the order Coram Judice?  The Magistrate rules [that] the wording of the evidence being English.  What is his presumption to be able to decide on the accepted rules of English.  Why did Magistrate Mosch make an order contrary to the Constitution s 115 and the 1965 Currency Act after being made aware of these Acts?  Can the court prove and trace its Authority to the Constitution – Chapter 3?”
  3. [3]
    The respondent resists the appeal.
  4. [4]
    I have independently reviewed the record of the court below with the benefit of the parties’ outlines of argument, and further submissions on the hearing of the appeal.  I am unable to discern any error in the decision of the learned magistrate and the appellant has failed to demonstrate any meritorious grounds for this Court to interfere with the decision.  I find that the Magistrates Court did have lawful authority to hear and decide the proceeding.  The evidence was admissible, understandable and properly adduced in the English language albeit with insignificant stylised differences to those espoused by the appellant.   The Magistrates Court was seized of the matter as a State court empowered to dispose of offences under federal law accordingly.
  5. [5]
    Therefore, I am bound to conclude that the conviction was reasonable and supported by the evidence, and the sentence by way of fine order was lawful.  The appeal will be dismissed.

Mode of Appeal

  1. [6]
    The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld).  Section 222(1) relevantly provides:

“If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.”

  1. [7]
    Pursuant to section 223 the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave.  Section 223 provides:
  1. An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.
  2. However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.
  3. If the court gives leave under subsection (2), the appeal is—
  1. (a)
     by way of rehearing on the original evidence; and
  1. (b)
     on the new evidence adduced.
  1. [8]
    For an appeal by way of rehearing the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the appealed decision is the result of some legal, factual or discretionary error identified in the grounds of appeal.  The appellant relies upon a combination of errors or defects described in the notice of appeal as giving rise to a miscarriage of justice.
  2. [9]
    I note at this juncture that the appellant’s outlines filed 3 July 2020 and 9 September 2020 also raise a kaleidoscope of new arguments in the form of a series of rhetorical questions and some submissions.  He conducted his case below and on appeal without legal representation.  It is often difficult for judicial officers to ensure the integrity of proceedings, which involve a litigant appearing in person.  The High Court in Neil v Nott[1] said:

A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of the parties which are obstructed by their own advocacy.”

  1. [10]
    In these circumstances, the lack of legal knowledge is undoubtedly a misfortune for any lay litigant appearing in person, but it should not be seen as a privilege.[2]  This is all the more challenging when ignorance of the law and procedural matters are overlayed with unconventional beliefs.  For reasons which remain unclear to me, the appellant has a deep rooted but apparent genuine and firm belief that, amongst other things, the Australian Government and it subordinate bodies and beings are illegitimate, the laws of Australia are confined to Norfolk Island being the only place uninhabited at the time of federation and terra nullius, the Australia Act 1986 (Cth) is invalid, the Magna Carta is Common Law and is part of the Law of Australia, taxation is a voluntary system and he is unwilling to volunteer his money due to poor government expenditure, The Chicago Manual of Style published by the Chicago University is the definitive authority on the proper usage of English and that noncompliance renders the language foreign and incapable of being read, witnesses’ evidence was not independent and tainted because they were paid to give evidence as employees of the Australian Taxation Office, a right to a jury of peers and purported adjudication by judge alone constitutes an offence of unlawful slavery if the appellant, and he is by self-appointment principal and executor with sole rights to use the name of MARK LESLIE O’HAGAN demanding five hundred thousand dollars per infringement.
  2. [11]
    I have done my best to learn and understand the merits of the appellant’s arguments to ensure a fair and full review of the case.  For the most part, the appellant’s assertions could be considered a nonsense in conventional society, foreign to Australian law and verging on the bizarre, and whilst very interesting, they are well beyond the scope of this proceeding and role of this court.  However, I have distilled some matters of tolerable comprehension to warrant disposition as grounds of appeal enumerated 2, 3, 4 and 6 below.
  3. [12]
    A verdict may be disturbed, if the appellant shows that the trial magistrate acting reasonably ought to have had a sufficient doubt to entitle the appellant to an acquittal.[3]  The appellant also appeals against the sentence as giving rise to unlawful state coinage and tender. 
  4. [13]
    In the disposal of the appeal this court has the same powers as the Court of Appeal on an appeal.[4]  Further, s 225 Justices Act 1886 (Qld) provides that:
  1. On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.
  1. If the judge sets aside an order, the judge may send the proceeding back to whoever made the order or to any Magistrates Court with directions of any kind for the further conduct of the proceedings including, for example, directions for rehearing or reconsideration.
  2. For subsection (1), the judge may exercise any power that could have been exercised by whoever made the order appealed against.
  3. An order made under subsection (1) has effect, and may be enforced in the same way, as if it had been made by whoever made the appealed order.

Grounds of Appeal

  1. [14]
    The pleaded grounds of appeal in the notice of appeal, can be distilled as follows:
  1. The Magistrates Court did not have jurisdiction or lawful authority to hear and decide the proceeding because the court was not Corum Judice, and the court was not a Chapter 3 court under The Constitution.
  1. The Australian Tax Office is not a legal entity.
  2. The prosecution proceeding in so far as it relates to income tax returns of longer than 7 years old is out of time.
  3. An essential witness, namely Caitlin Foxcroft the officer of the Australian Tax Office who signed the complaint, was not called as a witness in the proceeding.
  4. Documentary evidence tendered by the prosecution was not English because words in upper case, bold type, italicised, framed in a text box, etc. are foreign and uncapable of being read and/or understood as English.
  5. The appellant was a sole proprietor and not in a partnership at the relevant time and therefore was not required to lodge the required partnership returns.
  6. The magistrate’s sentencing order was contrary to s 115 of the Commonwealth of Australia Constitution Act (Cth) by permitting the state to coin money, and not legal tender contrary to s 16 of the and the Currency Act 1965 (Cth).

Did the Magistrates Court have jurisdiction and power to hear and determine the case?

  1. [15]
    The appellant contends that the Magistrates Court did not have jurisdiction or lawful authority to hear and decide the proceeding because the court was not Corum Judice, and the court was not a Chapter 3 court under The Constitution.
  2. [16]
    As understand the appellant use of ‘corum judice’ should be taken to mean before a court or a judicial officer having the authority to hear and decide the case.
  3. [17]
    Section 77(iii) of The Constitution empowers the Commonwealth Parliament to make laws vesting State Courts with Commonwealth Jurisdiction.   Section 39(2) of the Judiciary Act 1903 (Cth) vests State Courts with Federal Jurisdiction.  Section 68 of the Judiciary Act vests State Courts, including courts exercising summary jurisdiction in criminal matters, with the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.  The Magistrates Court is a State Court created by the Magistrates Court Act 1921 (Qld) to exercise summary jurisdiction in criminal matters, and is such a court vested to exercise federal jurisdiction by operation of the Judiciary Act.  The court is not, and does not need to be, a court subject of Chapter 3 under The Constitution.
  4. [18]
    Pursuant to ss 68 or 79 of the Judiciary Act, save where otherwise provided, the laws of the State relating to procedure are ‘picked up’ and applied in a federal criminal proceeding.  Those procedures are prescribed by the Justices Act 1886 (Cth).  Proceedings are conducted before a magistrate (without a jury) exercising summary jurisdiction in criminal matters. 
  5. [19]
    The appellant insists that this is a gross breach of his right to trial by jury lest the court and its officers commit treason, obstruct the course of justice and illegally subject him to slavery.   I disagree.  While it is true that s 80 of The Constitution guarantees a trial by jury, it relates to a person is charged with an indictable offence.  In this case the offence faced by the appellant under s 8C(1)(a) is not an indictable offence but instead by s 8ZA(3) TAA it a “prescribed taxation offence” when committed by a natural person is punishable on summary conviction. is a prescribed taxation offence.  Therefore, there is no right to trial by jury and the magistrates court had jurisdiction to hear and determine the charges summarily.
  6. [20]
    As for the conduct of the proceeding, a prosecution was properly instituted by a person authorised on behalf of, and in the official name of, the Commissioner in a court of summary jurisdiction.[5] Section 42(1) of the Justices Act 1886 (Qld) allowed the commencement by complaint made in writing by the complainant in person or a person authorised in his/her behalf.  It follows that the prosecution in the Townsville Magistrates Court was competently instituted by an authorised officer of the Australian Taxation Office on behalf of the Commissioner.
  7. [21]
    I have already discussed the mode of appeal to this court.  Further, pursuant to s 9(8B)(d) of the Director of Public Prosecutions Act 1983 (Cth), where proceedings for the summary conviction of a person in respect of an offence against the law of the Commonwealth was instituted by a person other than the commonwealth prosecutions, and the defendant institutes on appeal in respect of the proceedings, the Office of Commonwealth Director of Public Prosecutions may act on behalf of respondent in the appeal.  In the disposal of the appeal this court has the same powers as the Court of Appeal on an appeal.[6] 
  8. [22]
    Therefore, the Magistrates Court did have jurisdiction and power to hear and determine the case, and the appellant’s grounds will fail.

Is the Australian Taxation Office a legal entity?

  1. [23]
    The appellant contends that the ‘Australian Tax Office’ is not a legal entity.
  2. [24]
    The Australian Tax Office is a non-corporate Commonwealth entity within Treasury.  But the status of the Australian Tax Office is not to the point, because the relevant entity for this proceeding is the Commissioner of Taxation.  The Commissioner is charged with the general administration of the Income Tax Assessment Act 1936 (Cth), including giving the requisite requirement to lodge the partnership returns existed under section 162.[7]
  3. [25]
    The Commissioner may delegate to a Deputy Commissioner or any other person all or any of his powers or functions under a taxation law and such power or function delegated shall be deemed to have been exercised or performed by the Commissioner.[8]  A prosecution for a “prescribed taxation offence” may be instituted by a person authorised on behalf of, and in the official name of, the Commissioner in a court of summary jurisdiction.[9]
  4. [26]
    A document bearing the name of a delegate of the Commissioner is taken to have been duly signed by that person unless proved that it was issued without authority.[10]  Pursuant to s 8ZM TAA where a prosecution for a “prescribed taxation offence” is instituted by a person in the official name of the Commissioner, the prosecution shall be presumed, unless contrary is proved, to have been instituted with the authority of the Commissioner.  Further, at common law a presumption arises that where a public official or authority purports to exercise a power or to do an act in the course of his or her duties all conditions necessary to the exercise of that power or the doing of that act have been fulfilled.  That is everything is presumed to be rightly and duly performed until the contrary is shown.[11]  
  5. [27]
    Accordingly, the prosecution was validly instituted by duly authorized officer of the Australian Taxation Officer on behalf of the Commissioner,[12] and this ground fails.

Is the prosecution partly out of time?

  1. [28]
    The appellant contends that the prosecution proceeding in so far as it relates to income tax returns of longer than 7 years old, is out of time.
  2. [29]
    Section 15B of the Crimes Act 1914 sets out the times for commencement of Commonwealth prosecutions.  Generally a summary offence must be commenced within one year after the commission of the offence.[13]  However s 15B(3) provides that where any law of the Commonwealth provides for a longer time to commence a prosecution, then the longer time limit applies.  Accordingly, s 8ZB(1) TAA expressly provides that a prosecution for a “taxation offence” may be commenced at any time.  A taxation offence means an offence against a taxation law[14] and includes and an offence against section 8C(1) of the Taxation Administration Act 1953 (Cth).
  3. [30]
    Therefore, there is no time limit applying to the prosecution of an offence against s 8C(1) of the Taxation Administration Act 1953 (Cth), and this ground also fails.

Did the prosecution adduce evidence from all essential witnesses?

  1. [31]
    The appellant wanted to question Caitlin Foxcroft, the officer of the Australian Tax Office who signed the complaint, but she was not called as a witness in the proceeding and was on maternity leave.[15]
  2. [32]
    A prosecutor has a duty to call all available material witnesses unless there is some good reason not to do so.[16]  A material witness is one whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based.[17] 
  3. [33]
    The prosecution called evidence from all the material witnesses namely Nicole Taylor and Renee Spicer who gave evidence in respect of the tax office systems and records and produced documentary evidence.  In contrast, Ms Foxcroft did not provide any witness statement which formed part of the brief of evidence.[18] 
  4. [34]
    It seems to me that Ms Foxcroft was not a material or relevant witness.  She was not relevant to any personal conversation or arrangement with the appellant.  The prosecutor was not duty bound to call her as a witness, and the appellant was not prejudiced nor subjected to any unfairness by her absence.

Was the documentary evidence admissibly tendered in the English Language?

  1. [35]
    The appellant contends that the documentary evidence tendered by the prosecution was not English because words in upper case, bold type, italicised, framed in a text box, etc. are foreign and are not capable of being read and/or understood as English.
  2. [36]
    True to his belief, the appellant objected to the tender of documents containing uppercase letters[19] and text written in boxes.[20]  The basis of the appellant’s objection was that these forms of writing are not English and not capable of being read and are therefore inadmissible.  The magistrate ruled against the appellant.[21]  The defendant relies upon the fact that English is the official language of Australia and that The Chicago Manual of Style is definitive of the language.  It does seem to be a 1104-page venerable, time-tested guide to style, usage, and grammar. 
  3. [37]
    This ground of appeal is misguided.  It seems to me that it is a mere manual of style to guide consistency of style for writers, editors, proof-readers, indexers, copywriters, designers, and publishers, informing the editorial canon with sound, definitive advice – this is distinct from being definitive of the English language itself.  The language is that understood of the ordinary use and meaning of the language in conventional society, and even if written in a different style, with poor grammar or punctuation, or syntax, or slang, the court will resort to acceptance principles of interpretation and common usage to determine the ordinary meaning of the words in the community. 
  4. [38]
    In this case, all documents were in English and readily understood.  They were properly admitted by the magistrate pursuant to s 69 of the Evidence Act 1995 (Cth).[22]

Was the appellant trading as a partnership requiring lodgement of partnership tax returns?

  1. [39]
    The appellant contends that he was a sole proprietor and not in a partnership at the relevant time and therefore was not required to lodge the required partnership returns.
  2. [40]
    Notwithstanding, the Magistrate found that the defendant was still in fact in a partnership at the relevant time and that no steps had been taken prior to December 2013 to terminate the partnership.[23]  The finding was consistent with matters of facts proved on the evidence and law of partnerships as follows:
  1. The appellant and his wife carried on the business of ML O’Hagan and S O’Hagan partnership.[24]  His wife did all the paperwork.
  1. This was consistent with the income tax records in relation to the partnership (Exhibit 4), partnership return for financial year end 30 June 2010 (Exhibit 8) and cognate appellant’s individual tax return year end 30 June 2010 (Exhibit 9).
  2. The appellant and his wife separated in 2010, early 2011 and thereafter she had no part in the business.  This connotes continuing indicia of the partnership with the continuation of joint or common interests in property, plant equipment, chattels and records etc, pooling of business money and liability to share profits.[25]
  3. The appellant continued trading on his own without changing the business structure or bank accounts.[26]  He had an office lady and a pair of mechanics,[27]  but he did not keep on top of the paperwork himself.[28] The appellant acknowledged that the partnership was “still a thing”,[29] and he conceded it remained registered vis-a-vis the tax office.[30]  In those circumstances, the continuance of the partnership business without settlement or liquidation of the partnership affairs, is presumed to be a continuance of the partnership.[31]
  4. The partners never notified of any dissolution of the partnership.[32] And those dealing with the partnership business, including the taxation office were entitled to treat all partners as continuing in the partnership until notice of change.[33]
  5. In 2014, the appellant started a new business as a sole trader, which was the subject of some marital disputation.[34] 
  6. The appellant explained that he instructed his accountants to lodge partnership returns in response to the final notice and spent $5000 with them to do this.  Compliance could be achieved even if it resulted in a “nil” return, if the partnership was dissolved or ceased trading.
  7. The appellant continued to be bound to render true accounts and full information of all things affecting his wife.[35]  Further, the rights and obligations of the partners continued notwithstanding the dissolution (if any) so far as may be necessary to wind up the affairs of the partnership, and to complete transactions begun but unfinished at the time of the dissolution.[36]
  1. [41]
    It seems to me that the appellant did continue trading as a partnership and was liable to lodge partnership tax returns in any event.  Certainly, the disordered state of the relationship and business did not release him of any obligation to comply with the requirement to lodge, the subject of the proceeding.  This ground will fail too.

Was the sentence by way of a fine unlawful?

  1. [42]
    The appellant contends that the magistrate’s sentencing order was contrary to s 115 of the Commonwealth of Australia Constitution Act (Cth) by permitting the state to coin money, and not legal tender contrary to s 16 of the and the Currency Act 1965 (Cth).
  2. [43]
    Section 115 of the Constitution Act state that:

“A State shall not coin money, nor make anything but gold and silver coin a legal tender in payment of debts.” 

  1. [44]
    Section 16 of the Currency Act 1965 (Cth) provides:

16   Legal tender

  1. (1)
    A tender of payment of money is a legal tender if it is made in coins that are made and issued under this Act and are of current weight:
  1. (a)
    in the case of coins of the denomination of Five cents, Ten cents, Twenty cents or Fifty cents or coins of two or more of those denominations—for payment of an amount not exceeding $5 but for no greater amount;
  1. (b)
    in the case of coins of the denomination of One cent or Two cents or coins of both of those denominations—for payment of an amount not exceeding 20 cents but for no greater amount;
  1. (c)
    in the case of coins of a denomination greater than Fifty cents but less than Ten dollars—for payment of an amount not exceeding 10 times the face value of a coin of the denomination concerned but for no greater amount;
  1. (d)
    in the case of coins of the denomination of Ten dollars—for payment of an amount not exceeding $100 but for no greater amount; and
  1. (e)
    in the case of coins of another denomination—for payment of any amount.
  1. (2)
    For the purposes of subsection (1), a coin shall be deemed to be not of current weight if it has become diminished in weight by wear or otherwise so as to be of less weight than the weight prescribed as the least current weight of that coin.”
  1. [45]
    The offence is punishable on conviction by a fine not exceeding 20 penalty units if the person has no prior convictions for an offence against that section.[37]  This equates to a maximum fine of $4,200 since a “penalty unit” is defined in the Crimes Act 1914 s 4AA to mean an amount of $210.  The court was empowered to impose a fine that is severely appropriate to punish the appellant in all the circumstances by applying the sentencing principles and relevant matters known to the court in accordance with the Crimes Act 1994 (Cth).
  2. [46]
    It seems to me that the sentence was properly constituted by way of fine.  The fact that the order was issued by a State court experienced in money currency does seek to create new money by the State or purport to tender any currency.  The order does not cut across against s 115 of the Commonwealth of Australia Constitution Act (Cth) or s 16 of the and the Currency Act 1965 (Cth).
  3. [47]
    The ground is baseless.

Is the conviction reasonable and supported by the evidence?

  1. [48]
    The rehearing requires this court to conduct a real review of the evidence before it (rather than a complete fresh hearing), and make up its own mind about the case.[38]  This necessitates my independent examination of the evidence, including credit of witnesses subject to what I said above,[39] to make my own assessment of both the sufficiency and quality of the evidence.[40]  My function is to consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings.  In doing so it ought pay due regard to the advantage that the magistrate had in seeing the witnesses give evidence, and attach a good deal of weight to the magistrate’s view.[41]
  2. [49]
    The offence is found in s 8C(1)(a) of the Taxation Administration Act 1953 (Cth), which relevantly provides:

8C Failure to comply with requirements under taxation law

  1. (1)
    A person who refuses or fails, when and as required under or pursuant to a taxation law to do so:
  1. (a)
    to give any information or document to the Commissioner or another person;

commits an offence.”

  1. [50]
    The offence is one of absolute liability.[42]   There are no fault elements for any of the physical elements of the offence and the defence of mistake of fact is unavailable.  The existence of absolute liability does not make any other defence unavailable.[43]
  2. [51]
    Section 8C(1B) of the Taxation Administration Act 1953 (Cth), provides for an exception from compliance relevantly here:

“(1B) Subsection (1) does not apply to the extent that the person is not capable of complying with the relevant paragraph.”

  1. [52]
    Upon conviction it is punishable by a fine not exceeding 20 penalty units if the person has no prior convictions for an offence against that section.[44]
  2. [53]
    The prosecution had the onus of proving every element of the offence[45] beyond reasonable doubt since it is not otherwise provided.[46]  As to the standard of proof, s 8ZL Taxation Administration Act 1953 (Cth) that an averment contained in a complaint is prima facie evidence of the matter so stated or averred.  The Complaint and Summons contained similar averments numbered (i)-(vii) in respect of each of the four charges.  Where an averment is unanswered by credible evidence, the matter averred is sufficiently proved beyond reasonable doubt, notwithstanding that the averment purports to prove facts only to a prima facie level,[47] and the prosecution’s onus is discharged accordingly.[48] 
  3. [54]
    However, the appellant had the evidential burden to establish the statutory exception that he is incapable of complying with the requirement.[49]  “Evidential burden” means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.[50]

Has the prosecution proved beyond reasonable doubt that there is a valid requirement under the taxation law for the appellant to give any information or a document to the Commissioner?

  1. [55]
    Section 162 of the Income Tax Assessment Act 1936 (Cth) provides for the requirement for a person, when so required by the commissioner, to lodge a tax return.  This is a “taxation law” within the meaning of that term in the Assessment Act.[51]  The commissioner may delegate the power, and the document bearing the name of the delegate is taken as duly signed unless proved to be unauthorised.  The time for compliance of the requirement in the notice must be reasonable time viewed objectively.[52] 
  2. [56]
    In the respective Complaint and Summons it was averred that the appellant was required by notice in writing dated 2 June 2017 to give the Commissioner on or before 14 July 2017 an income tax return in the approved form for all income derived by the M.L O’Hagan & S O’Hagan Partnership during the years:
    1. 1 July 2010 to 30 June 2011
    2. 1 July 2011 to 30 June 2012
    3. 1 July 2012 to 30 June 2013
    4. 1 July 2013 30 June 2014
  3. [57]
    It was also averred that the period of time provided by the notice to give the return was reasonable.  The Final Notice was dated 2 June 2017 and compliance was required within 6 weeks by 14 July 2017.  The appellant gave evidence that it may take two to five weeks for a letter posted in Bamaga to reach Cairns.  There was no evidence before the magistrate that the Final Notice itself was received by the appellant in Bamaga other than as might have been expected in the ordinary course of post.[53]  It seems to me that the time in the notice was reasonable for the appellant to properly focus on the outstanding matters and properly inform and engage accountants to undertake the task.
  4. [58]
    Nicole Taylor, team leader with the debt and lodgement area of the Australian Taxation Office, testified about the office systems and records and produced a copy of the letter and requirement notice sent to the appellant (Exhibit 2).
  5. [59]
    The notice must be served and may be so served by posting a copy of the document to the person’s preferred address for service, including the person’s postal address given to the commissioner under a taxation law.  It was averred in the Complaints and Summons that the notice was duly served on the appellant by posting it on 2 June 2017 by pre-paid letter post to the partnership address for service namely PO Box 96 Bamaga QLD 4876. 
  6. [60]
    Nicole Taylor produced the taxation office records of the appellant’s partnership postal address (Exhibit 3), and a record of a telephone conversation between a tax officer (Myra de Krester) and the appellant on 2 June 2017 (Exhibit 1) during which the appellant affirmed his current postal address was PO Box 96 Bamaga QLD 4876 and his current residential address was lot 200 Lui Street, Bamaga 4876. 
  7. [61]
    There can be no reasonable doubt that the notice issued to the appellant was signed by a delegate with appropriate authority, provided a reasonable time for compliance and was served on the appellant at a known address.  Therefore, it seems to me that the prosecution have proved beyond reasonable doubt that the appellant was required pursuant to s 162 of the Income Tax Assessment Act 1936 (Cth) by notice in writing dated 2 June 2017, to give the Commissioner on or before 14 July 2017, in the approved form, income tax returns for the M.L O’Hagan partnership for the financial years ending 30 June 2011, 30 June 2012, 30 June 2013 and 30 June 2014.

Has the prosecution proved beyond reasonable doubt that the appellant refused or failed to comply with the requirement?

  1. [62]
    Failure means that a person does not perform the required act; it does not connote or necessitate fault.[54]  Mere hardship or inconvenience is no excuse, nor is a lack of personal knowledge of the requirement, provided the Final Notice was properly served.[55]
  2. [63]
    The Complaint and Summons averred that the appellant failed to give a return in compliance with the notice.  Further, Renee Spicer, a tax office prosecutor also testified, produced and explained the income tax records in relation to the partnership taxation records showing tax returns remained outstanding for partnership dated 19 July 2018 (Exhibit 6), the partnership return for year ended 30 June 2010 (Exhibit 8), and the appellant’s individual tax return year end 30 June 2010 (Exhibit 9).
  3. [64]
    The appellant clearly failed to comply with the requirement to lodge the specified tax returns.  The appellant’s assertion that taxation is voluntary is rejected.  Voluntary non-participation in the tax system and related non-compliance with a notice will still constitute a refusal or failure to comply.
  4. [65]
    It seems to me that the prosecution have proved beyond reasonable doubt that the appellant failed or refused to lodge the required partnership income tax returns.

Has the appellant adduced or pointed to evidence that suggests the reasonable possibility that he was incapable of complying with the requirement?

  1. [66]
    The appellant’s case proceeded on the basis that he was incapable of complying with the requirement because he was a sole trader and not in a partnership during the relevant years, and in any event he was otherwise incapable of complying with the notice.  He did not argue, nor is there any merit in any argument, that he did not know about the requirement to lodge the partnership returns because he did not understand the “foreign” language in the requirement notice.
  2. [67]
    The appellant testified that he was in partnership with his wife in the ML O’Hagan and S O’Hagan partnership.[56]  His wife did all the paperwork before they separated in 2010, early 2011, but thereafter had no part in the business.  He continued trading on his own without changing the business structure or bank accounts.[57]  He had an office lady and a pair of mechanics,[58]  but he did not keep on top of the paperwork himself,[59] nor notify of any dissolution of the partnership.[60]  He belatedly realised that the partnership was “still a thing”,[61] and he conceded it remained registered vis-a-vis the tax office.[62]  He considered it a clerical error,[63] but accepted it was the parties personal duty to notify the tax office that the partnership was ended.[64]  In 2014, the appellant started a new business as a sole trader, which was subject of some marital disputation.[65]  The appellant accepted that he “probably did get the call from the Taxation Department, but it was in the middle of the tourist season… So I had to make a choice between eating, sleeping and rescuing people… And I could not physically possibly do it”.[66]  He explained that he instructed his accountants to lodge the returns in response to the final notice and spent $5000 with them to do this.  However, he claims that he was told by someone from the accountants that they were not important, and they did other work instead.[67]
  3. [68]
    The appellant was cross-examined about the telephone conversation with the tax officer, Myra de Krester, on 2 June 2017 (Exhibit 1).  That record shows that the officer told the appellant that a notice was issued for overdue returns for 2011 – 2015 and was sent to his accountant.  The appellant is recorded to tell the officer that: he did not receive the original notice issued to his accountant; the partnership had ceased in December 2013; the ABN and GST roles be cancelled from 31 December 2013; his current postal address was PO Box 96 Bamaga QLD 4876; and his current residential address was lot 200 Lui Street, Bamaga 4876.  The officer is recorded as advising the appellant that he must still lodge activity statements for the March and December 2013 quarters and income tax returns for 2011 – 2014 financial years for the partnership, and that if the overdue returns were not lodged as required on a reissued notice prosecution may ensue without further contact.
  4. [69]
    In cross-examination the appellant gave a different account of this conversation, explaining that he thought the conversation was about the conduct of his truck business as a sole trader and not the partnership.[68]  He further explained that a week or two after the telephone call in 2 July 2017, he thought about it more and realised he needed to sort it out but he forgot about it because “I was that busy”.[69]
  5. [70]
    In re-examination the appellant told the court that he felt he had no choice, there was no local accountant, and he had paid the $5000 but they didn’t do any of the returns.[70]  The appellant accepted that he had not declared any income earned during the 2011 to 2014 period.[71]
  6. [71]
    It seems to me that the appellant failed to satisfy his evidential burden.  He had to meet a high threshold in order to satisfy the statutory exception to the substantive offence provision. It has been held to mean that compliance was in effect impossible,[72] or that there were factors beyond the defendant’s creation and control akin to “an act of God”.[73]  Carelessness or delinquency is insufficient, and hardship or inconvenience are not exculpatory factors, as long as there is a capacity to fulfil a reasonable requirement.[74] 
  7. [72]
    The evidence fell short of being suggestive of a reasonable possibility that he was not capable of complying with the requirement.  Indeed, his testimony showed that he was delinquent in the bookwork and business structure, and it was too little too late when he took steps to instruct his accountants.
  8. [73]
    On my independent examination of the evidence, it seems to me that the verdict was reasonable and supported by the evidence, and according to law. 
  9. [74]
    Further, it seems to me that the sentence was properly constituted by way of fine and was not manifestly excessive as being beyond the acceptable scope of judicial discretion or so outside the appropriate range as to demonstrate inconsistency and unfairness.  Even though I think the sentence of $4,000 fine was at the extreme end of a permissible range, and I have different opinion about the quantum in the exercise of the discretion, these are not sufficient justifications for review; it must be shown that the discretion miscarried resulting in a manifestly excessive sentence.[75]  In that context, it may be vitiated by an error of principle, where there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice.[76]
  10. [75]
    I therefore dismiss the appeal against conviction and sentence. 

Order

  1. [76]
    Therefore, I will dismiss the appeal and affirm the decision of the Magistrates Court made on 6 December 2019, and the sentencing orders made on 16 December 2019.

Judge DP Morzone

Footnotes

[1]Neil v Nott (1994) 121 ALR 148 at [150] per Brennan, Deane, Toohey, Gaudron and McHugh JJ.

[2]Gallo v Dawson (1990) 93 ALR 479, [481] per McHugh J.

[3]Whitehorn v R (1983) 152 CLR 657, 687.

[4]District Court of Queensland Act 1976 (Qld) s 113.

[5]Taxation Administration Act 1953 (Cth), s 8ZJ(2).

[6]District Court of Queensland Act 1976 (Qld), s.113.

[7]Income Tax Assessment Act 1936 (Cth), s8.

[8]Taxation Administration Act 1953 (Cth), ss 8(1), 8(2).

[9]Taxation Administration Act 1953 (Cth), s8ZJ(2).

[10]Taxation Administration Regulations 1976, Reg 45(2).

[11]Minister for Natural Resources v New South Wales Aboriginal Land Council [1987] 9 NSWLR 154 at 164.

[12]Taxation Administration Act 1953 (Cth), s 8ZJ(2), Justices Act, s 42(1) and Complaint and Summons.

[13]Crimes Act 1914 (Cth), s 15B(1)

[14]Taxation Administration Act 1953 (Cth), s 8A.

[15]T1-97/5.

[16]Dyers v The Queen (2002) 210 CLR  285 at p292-293 per Gaudron and Hayne JJ.

[17]Whitehorn v The Queen (1983) 152 CLR 657 at 674 per Dawson J.

[18]  T1-97/25-30.

[19]  T1-7-11.

[20]  T1-35-36.

[21]  T1-36/10-30.

[22]  T1-1-43 - T1- 45/45.

[23]  Decision T5/1 – 5.

[24]  T1-102 L35.

[25]  Partnership Act 1891 (Qld) s 7.

[26]  T1-105/1-30.

[27]  T1-100/45 – 1-101/4.

[28]  T1-100/15.

[29]  T1-103/45.

[30]  T1-105/40.

[31]Partnership Act 1891 (Qld) s.30(2).

[32]  T1-104/9-27.

[33]Partnership Act 1891 (Qld) s.39(1).

[34]  T1-104/1-5.

[35]Partnership Act 1891 (Qld) s.31(1) & (2).

[36]Partnership Act 1891 (Qld) s 41(2).

[37]Taxation Administration Act 1953 (Cth), s8E(1). 

[38]Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police [2017] QCA 132, 5 and McDonald v Queensland Police Service [2017] QCA 255, [47].

[39]Chidiac v R (1991) 171 CLR 432, 443-4 per Mason CJ, 452-3 per Dawson J, 459 per Gaudron J; Knight v R (1992) 175 CLR 495, 503 per Mason CJ, Dawson and Toohey JJ.

[40]Morris v R (1987) 163 CLR 454, 463-4, 466 per Mason CJ, 473 per Deane, Toohey and Gaudron JJ, 477-9 per Dawson J.

[41]White v Commissioner of Police [2014] QCA 12, [5]-[8]; Forrest v Commissioner of Police [2017] QCA 132, 5 & 6; McDonald v Queensland Police Service [2017] QCA 255 at [47].

[42]Taxation Administration Act 1953 (Cth), s8C(1A).

[43]Criminal Code 1995 (Cth), s6.2.

[44]Taxation Administration Act 1953 (Cth), s8E(1), “Penalty unit” is defined in s4AA Crimes Act 1914 as $210.

[45]Criminal Code 1995 (Cth), s13.1.

[46]Criminal Code 1995 (Cth), s13.2.

[47]Brady v Thornton (1947) 75 CLR 140; Evertswood v Unger (1981) 12 ATR 643.

[48]R v Hush; Exparte Devanny (1932} 48 CLR 487; Chief Executive Officer of Customs v Labrador Liquour Wholesale Pty Ltd (2003) 216 CLR 161.

[49]Taxation Administration Act 1953 (Cth), s 8C(1B)and s13.3(3) Criminal Code 1995 (Cth).

[50]Criminal Code 1995 (Cth), s 13.3(6).

[51]Income Tax Assessment Act 1936 (Cth), s 8.

[52]Wynyard v Deputy Federal Commissioner of Taxation (1984) 75 FLR 247; Ganke v Deputy Commissioner of Taxation (No. 1) (1975) 25 FLR 98.

[53]  Decision T1-7/20.

[54]Briggs v Deputy Commissioner of Taxation [No, 2] (1986) ATR 592.

[55]Ambrose v Edmonds-Wilson (1988) 88 ATC 4173.

[56]  T1-102 L35.

[57]  T1-105/1-30.

[58]  T1-100/45 – 1-101L4.

[59]  T1-100/15.

[60]  T1-104/9-27.

[61]  T1-103/45.

[62]  T1-105/40.

[63]  T1-105/40.

[64]  T1-108/15.

[65]  T1-104/1-5.

[66]  Exhibit 1; T1-100/15 – 25.

[67]  T1-102/40 - 1-103/30.

[68]  T1-104/40-50 & 1-106/5-20.

[69]  T1-105/45 – 106/5.

[70]  T1-109/125.

[71]  T1-108/30-45.

[72]Ganke v Deputy Commissioner of Taxation (No. 1) (1975) FLR 98.

[73]Marcusson v Southern Shipping Co Ltd (1962) 107 CLR 279.

[74]Ganke v Deputy Commissioner of Taxation (No. 1) (1975) FLR 98.

[75]Lovell v Lovell (1950) 81 CLR 513 at 519 per Latham CJ, 533-534 per Kitto J; see also Gronow v Gronow (1979) 144 CLR at 519, 525, 534 and 537.

[76]House v The King (1936) 55 CLR 499, 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 176-178; Norbis v Norbis (1986) 161 CLR 513 at 517-519.

Close

Editorial Notes

  • Published Case Name:

    O'Hagan v Commissioner of Taxation

  • Shortened Case Name:

    O'Hagan v Commissioner of Taxation

  • MNC:

    [2020] QDC 288

  • Court:

    QDC

  • Judge(s):

    Morzone QC DCJ

  • Date:

    13 Nov 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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