R v Dobie[2016] QCA 250

SUPREME COURT OF QUEENSLAND

1. FRASER JA:  After a trial before a jury in the District Court the appellant was convicted of the offence of obtaining a financial advantage from a Commonwealth entity by deception.  He was sentenced to imprisonment for two years to be released after twelve months on a recognizance release order which required him to be of good behaviour for two years.  The appellant has appealed against his conviction and he has applied for leave to appeal against his sentence.  Because I have concluded that the appeal against conviction must be allowed it is not necessary to consider the sentence application.
2. The grounds of appeal against conviction are that:
   1. The verdict is unreasonable or cannot be supported having regard to the evidence.
   2. The learned trial judge misdirected the jury on the defence of mistake under s 9.1 of the Criminal Code (Cth).
   3. The jury were given copies of a document book (exhibit 2) which is likely to have included an incorrect copy of admissions made by the defendant and tendered as exhibit 16.

Ground (a): is the verdict unreasonable?

3. Under the contention in ground (a) that the verdict is unreasonable, the ultimate question is whether the appeal court “thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.^[1]
4. The alleged offence was created by s 134.2(1) of the Criminal Code (Cth) (“Commonwealth Code”).  It provides that a person commits an offence if:

“(a)the person, by a deception, dishonestly obtains a financial advantage from another person; and

2. the other person is a Commonwealth entity …”.

5. In the language of the Commonwealth Code, the “fault element” for the “physical element” in s 134.2 of obtaining a financial advantage is “dishonesty” as defined in s 130.3.^[2]  It is the element of dishonesty which is in issue in this appeal.  Section 130.3 provides that for the purposes of the relevant chapter of the Code, “dishonest” means:

“(a)dishonest according to the standards of ordinary people; and

2. known by the defendant to be dishonest according to the standards of ordinary people”.

6. Section 9.1 is also relevant.  It provides:

“9.1Mistake or ignorance of fact (fault elements other than negligence)

(1)A person is not criminally responsible for an offence that has a physical element for which there is a fault element other than negligence if:

(a)at the time of the conduct constituting the physical element, the person is under a mistaken belief about, or is ignorant of, facts; and

(b)the existence of that mistaken belief or ignorance negates any fault element applying to that physical element.

2. In determining whether a person was under a mistaken belief about, or was ignorant of, facts, the tribunal of fact may consider whether the mistaken belief or ignorance was reasonable in the circumstances.”

7. The Crown case was that the appellant dishonestly obtained $17,392 from the Tax Office by lodging four Business Activity Statements (“the BAS”) which contained figures he knew were false and he signed declarations confirming that the BAS were true and correct.  The appellant formally admitted that on or about 25 November 2010 he completed and subsequently lodged the BAS.  Each was expressed to relate to an identified quarter of the 12 month period commencing on 1 October 2006 and ending on 30 September 2007, each was headed “Chocolate Blonde Enterprises”, and each referred to an Australian Business Number (“ABN”) which on 1 July 2005 the appellant had registered with the Australian Tax Office (“ATO”) to report GST on a quarterly basis.  The spaces provided for entering amounts for sales, purchases, and GST on sales and purchases were left blank and a handwritten zero appeared in the space provided for the “Amount you owe the Tax Office”.  Each of the BAS reported a figure in the spaces provided in the document for “Amounts the Tax Office owes you” and “Your payment or refund amount”.  The four figures are $1,004, $3,214, $2,006, and $11,168.  The appellant signed each of the BAS immediately below a declaration that the information in the form was true and correct, and that he was authorised to make the declaration.  The appellant formally admitted that the ATO assessed the BAS and paid to him or credited in his favour the amounts claimed to be GST he paid on purchases which were refundable to him.
8. The appellant also formally admitted that exhibit 16, which both parties submitted contained an accurate record of formal admissions made by the appellant, included an admission that “[d]uring the four quarters to which the BAS related, [the defendant] did not conduct or carry on a business called Chocolate Blonde Enterprises. …”.  It follows that upon the face of the BAS they were misleading in so far as they suggested that Chocolate Blonde Enterprises incurred GST on purchases in the periods stated in the BAS.  In this respect the appellant relied upon what were submitted to be indications in the documentary evidence that the completed BAS related to different businesses (a salon and a café) said to have been carried on by the appellant under the same ABN in the relevant periods and that the appellant had communicated to the ATO that it had made a mistake in issuing the BAS forms to the appellant in the name of Chocolate Blonde Enterprises.
9. The evidence in the Crown case included a record of a call by the appellant to the ATO on 28 September 2010.  The record includes statements by the appellant that he was ringing about “business GST refunds”.  The appellant claimed that instead of having a bill for $9,999 he should have a refund.  He referred to his inability to understand an amendment made to a tax return.  He stated that as a result of building a salon and a café he was left with $5,584 GST to claim and he had put it in the wrong column.  The appellant agreed with the ATO officer’s statement that this should have been in a Business Activity Statement and not in an income tax return.  The ATO officer said that the appellant needed to claim that amount “on the actual activity statement” and the appellant’s ABN had been cancelled, “so we’ll probably… send out a… cheque…”.  Subsequently the ATO officer ascertained that the ABN had been cancelled, reactivated, and again cancelled.  The officer said that a specialist would have to look into the matter.  The appellant complained that every time he was told he had to speak to a specialist the specialist did not ring him back, apart from one specialist who didn’t know what he was talking about.
10. Ms Demiris, who at the relevant time was a customer service officer for the ATO, gave evidence of a conversation in October 2010 in which the appellant said he “would like the GST to be active from 2/7/06 to 30/6/08”, with the “cancellation and reactivation in between” being removed.  Ms Demiris arranged for the appellant’s ABN to be reactivated.  She said in evidence that she generated the production of BAS forms with the appellant’s name and ABN.  Mr Humphries, an investigator with the ATO, gave evidence that the BAS were despatched by the ATO on 18 November 2010.  The BAS forms despatched to the appellant under his ABN were in the name of Chocolate Blonde Enterprises rather than in the appellant’s own name.
11. A letter dated 31 October 2010 sent by facsimile by the appellant to the ATO includes statements that the appellant had sent to the ATO Certificate Business Names for a café and a salon, a notification of the appellant’s ABN, a letter which was said to show that someone had paid $1,461 income tax on the appellant’s behalf, and a notice from the ATO to the appellant of cancellation of GST effective 30 September 2006.  (That notice was attached.  It includes a statement that “[d]ue to your turnover falling below the required threshold, you are no longer required to be registered.”).  The appellant’s letter is in some respects difficult to understand.  It includes statements that: the appellant had bank statements showing $9,202.50 cash missing from the salon’s bank account; “[t]he 2007 return I should have a credit of $5,584.00”; “[t]he 2008 return I should have a credit of $1,461.00”; “[b]ecause I paid income tax in 07 to 08 I get the $900.00 tax bonus.  I do not have any debt with the taxation office”; and (after a reference to having lost a salon in 2005) “I paid for new salon… $20,000.  After 3 months in this salon I had flood.  Had to rebuild that salon. … In September that year person burnt the whole complex down… .  I rebuilt that salon…  I put a café together and a new salon…  I lost the café and the salon.”  The letter concluded with a statement that, “all I want is what is owing to me given to me”.
12. Apparently enclosed with that letter was a copy of the first page of a letter (which apparently had included at least one more page) from the ATO to the appellant dated 13 November 2008.  The ATO’s letter stated that during a review of the appellant’s 2008 income tax return the ATO had established that he had overclaimed PAYG withholding credits in previous income years and as a result the ATO was extending its review to the appellant’s income tax returns for 2006 and 2007.  The letter includes statements that in the appellant’s 2007 and 2006 returns he wrongly claimed PAYG withholding credits of $5,584 and $2,410 (respectively), he was not entitled to any PAYG withholding credit, and the appellant’s claim for a PAYG withholding credit of $5,584 in the 2007 year had been reduced to nil.  Adjacent to those statements appear notes apparently handwritten by the appellant describing both amounts as GST rather than withholding tax.
13. Another documentary exhibit purports to record a telephone call by the appellant to an ATO officer on 1 November 2010.  The officer said that she would talk to a specialist and attempt to have a “resolver” call the appellant.  The appellant complained about the failure of any resolver to ring him on previous occasions and he stated that he believed that before the amendments were done the ATO had recommended that he cancel his GST because of the turnover and he had done so.  The appellant stated that when he rang the ATO and asked where he should “put… the amount of GST money I’ve paid for a café and a hairdressing salon” the ATO officer advised him to “put it in… Question 1: withholding tax” and that “ended up being incorrect”.
14. Ms Bush, who in 2010 was an intelligence analyst in the ATO acting as a liaison officer between tax payers and various areas of the tax office, gave evidence that a complaint by the appellant was assigned to her on 1 November 2010.  Her recollection was that the appellant’s complaint related to amendments to his 2006 and 2007 income tax returns, the non-processing of his 2008 and 2009 income tax returns, and his non-receipt of a tax bonus payment.  The appellant’s letter of 31 October 2010 was referred to Ms Bush.  Ms Bush’s notes record that on 2 November 2010 she thought the issues were not clearly defined or clarified.  She rang the appellant on 3 November 2010 and told him that he would not be getting the tax bonus payment because he had not lodged his 2008 income tax return by the required date.  She told the appellant that she could not comment about his contention that the ATO had made a mistake with earlier amendments or his contention that he was entitled to at least $7,000 in refunds on that matter.  On 4 November 2010 Ms Bush relayed information to the appellant that he should go to an ATO office and sign statutory declarations relating to his 2008 and 2009 income tax returns.  On the following day Ms Bush advised the appellant that she had received a statutory declaration for those returns.
15. Following a series of conversations in which Ms Bush stated that she was unable to give any further information to the appellant, on 22 November 2010 there is a record of a telephone call from the appellant to a different officer in which the appellant advised that “he had received BAS” (which was presumably a reference to the BAS forms in the name of Chocolate Blonde Enterprises which Ms Demiris said in evidence were to be produced in the appellant’s name).  On 23 November 2010 Ms Bush rang the appellant.  He stated that he had received BAS for 2006 and 2007 “in the name of his new business… he needed to fix (?) the GST mistake to do with his 2007 ITR and would I back him if he lodged the figures on the BAS that he had received.”  Ms Bush stated that she could not do so as she was not a GST expert and the BAS had nothing to do with his initial complaint.  On 25 November 2010 Ms Bush advised the appellant that the proposed amendments to his income tax returns had been rejected as “out of time”, he was not entitled to the bonus, and his 2008 and 2009 returns had been processed, and the refunds had been offset against his outstanding income tax debt.  In relation to the appellant’s reference to the business name on the BAS, defence counsel submitted in his closing address to the jury that in a recorded conversation of 25 November 2010 the appellant said to an ATO officer called Ken Grey words to the effect that, “[y]esterday, my resolver was going to ring me back because I’ve got other information.  They’ve sent me out activity statements for 2007 in my new business name and that has only been in existence for three months.”
16. Ms Bush referred to her following record of a conversation on 26 November 2010:

“Mr Dobie rang and advised that he had rung [a telephone number] and he had spoken to an Alan. … Alan told him to lodge the BAS with the figures that he had as long as he could prove them. … Mr Dobie also stated that Alan advised him to ring me to get things sorted… I asked Mr Dobie for Alan’s full name so I could contact him and Mr Dobie stated that he couldn’t remember it.  Mr Dobie also stated that he would be getting around $16K for his BAS refunds. …”.

On the same day Ms Bush told the appellant that his letter about overdue BAS was not part of his original complaint and she could not answer his questions about the BAS.

17. The prosecutor adduced evidence from Mr Humphries of a record of communications between the appellant and the ATO with a view to establishing that the appellant did not have any telephone conversation with any officer called “Alan”.  The apparent purpose of this evidence was to rebut the statement attributed to the appellant in the ATO record of 26 November 2010.  In cross-examination, after Mr Humphries was taken to various ATO documents he agreed that the record upon which he had relied in evidence in chief was not a complete list of all of the appellant’s dealings with the ATO.  He could not explain why that was so.  Mr Humphries agreed that an ATO officer described as a “specialist” would include a “resolver”.  He was not sure whether a communication with a specialist would be recorded on the document upon which he had relied in evidence in chief.
18. Ms Farley, who in July 2011 was an auditor in a “refund fraud team” in the ATO, gave evidence that she was assigned an audit in relation to the BAS lodged by the appellant.  She said that on 19 July 2011 the appellant sent a facsimile in which he stated that:

“I went to [a tax office] back in 2010 because the ATO claimed I owed $9,999.26.  This was incorrect.  The ATO owed me that money from back in 2007 and 2008.  All the work required was completed by the lady staff member at [the office].  I waited for the 56 days … the Tax Office said it would take.  After that date it was a day-by-day calling the Tax Office and getting this problem fixed as soon as I could.  The Tax Office sent paper forms to fill out, claiming the 9900 and 26 cents (sic) which I needed with the help of the staff of the Tax Office.”

19. Ms Farley said that she revised the BAS lodged by the appellant so that money would come back to the tax office because, “[t]hey were lodged to claim moneys from the Tax Office and there was no evidence given to me that they were to do with any business run at that time.”  Ms Farley gave evidence with reference to the amount of $1,004 claimed in one of the BAS that she would have expected to see reported in that BAS a figure for purchases in excess of $10,000.
20. Mr Marshall, a compliance officer with the ATO, gave evidence of conversations with the appellant in July 2011 in which the appellant indicated that the BAS were to recoup an error the appellant believed had been made by the tax office; “I think it was to do with income tax, but – and this was how he was advised to recoup the funds that were apparently – his contention was, were owed to him.”  The appellant told Mr Marshall that the ATO owed him about $10,000.  In cross-examination Mr Marshall agreed that the appellant told him “that he was advised by an ATO staff member to do those lodgements [meaning the lodgements of the BAS] and put those figures in that relate to those four BAS statements”.
21. Ms Farley and Mr Marshall gave evidence to the effect that they had not asked the appellant for any documents in relation to the BAS.  Ms Chadha, who worked in the “Customer Service & Solutions” section of the ATO in November 2010, gave evidence to the general effect that ATO officers do not tell taxpayers what figures to put in their returns but they give taxpayers advice about where in the forms to enter certain matters.
22. The appellant did not give or call evidence.

The parties’ submissions

23. The appellant referred to the ATO record of the appellant’s statements about what the tax officer named Alan had said to him and to the ATO’s failed attempt to prove that there was no such conversation, the ATO records of statements by the appellant of his belief that the ATO owed him money, the notes apparently made by the appellant on the copy of the document referred to in [11] of these reasons (which suggested that, in reliance upon incorrect advice by an ATO officer, the appellant had mistakenly claimed as withholding tax amounts he claimed to be entitled to recover as GST on purchases), and the evidence that the ATO had not asked the appellant to supply documents verifying the figures in the BAS.  The appellant also referred to statements in the appellant’s fax of 31 October 2010 which might be understood as meaning that he paid for the construction of the salon more than once, as a result of damage incurred in a flood and a fire.  In the context of indications in the documentary exhibits that the appellant may have had difficulty in articulating the grounds for his recorded statements of belief, the difficulties in reconciling the appellant’s figures in the documentary exhibits with his figures in the BAS did not necessarily demonstrate the figures in the BAS were wrong or that the appellant believed that they were wrong.
24. I note also that defence counsel submitted to the jury that the conduct of the appellant revealed by the evidence was not that of a dishonest person; the evidence instead suggested that he was “lost in a maze of bureaucracy.”  He had made innumerable attempts to sort out his issues.  Defence counsel reminded the jury of the evidence of the appellant’s statements that he lodged the BAS on the advice of an ATO officer named “Alan” and submitted that the Crown had not proved beyond reasonable doubt that the appellant was not entitled to the money and that he did not believe that he was entitled to the money.
25. The respondent argued that the BAS on their face constituted declarations by the appellant that Chocolate Blonde Enterprises had incurred GST on purchases in the stated amount, it had not accrued GST on sales in the same period, and it was entitled to a refund of the amount stated as GST incurred on purchases.  Contrary to the way in which the appellant’s case was put on appeal, the defence case at trial was that the appellant mistakenly believed that he could obtain a refund of income tax (not GST) by submitting the BAS.  The respondent submitted that there were good reasons why a different approach was taken at the trial.  The GST registration for the appellant’s ABN had been cancelled because of low turnover, GST on sales in the BAS was reported at zero but the amount claimed for GST in all the BAS was $17,392, that amount implied that about $191,000 had been spent on purchases, and it was submitted that it was not credible that a taxpayer who expended $191,000 on purchases would not have claimed the GST at the time or that such a person would have expended $191,000 without generating any income.  The respondent argued that the amounts stated in the appellant’s communication with the ATO were not consistent with $17,000 having been incurred as GST on purchases.  The appellant had not supplied to the tax office documents demonstrating that he had incurred the amount of GST he claimed in the BAS.  The respondent accepted that the prosecution’s attempt to prove that the appellant had no conversation with an ATO officer named Alan did not succeed, but the respondent submitted that a jury, acting reasonably, inevitably would have concluded that any such employee would not have given the advice the appellant claimed to have been given.

Consideration

26. The evidence raised for the jury’s consideration questions whether the appellant intended that the completed BAS related to a business or businesses other than Chocolate Blonde Enterprises and whether the appellant believed that the ATO appreciated as much.  The appellant’s admission that Chocolate Blonde Enterprises did not carry on business in any of the periods to which the BAS related therefore did not necessarily establish that the figures in the BAS should be regarded as untrue or that the appellant believed that the figures in the BAS were untrue.  This much was recognised in the respondent’s submissions, which were not confined to the simple proposition that, in light of the appellant’s admission, the claims in the BAS were manifestly false.
27. It is not relevant to the disposition of this appeal to decide whether, as the respondent argued, the appellant confined his case at trial to issues about income tax or whether defence counsel’s rather general submissions to the jury encompassed issues about GST.  On either view, it was open to the jury to find that the appellant knew, as was the case, that he was not entitled to recover as payments or credits pursuant to the BAS the amounts totalling $17,392 claimed in the BAS.  The evidence allowed the jury to find that the BAS claimed much greater amounts than any of the amounts which the appellant had earlier and later claimed were owing to him.  For example, it was open to the jury to regard Mr Marshall’s evidence as establishing that the appellant claimed that the ATO owed him only about $10,000 which the appellant then characterised as overpaid income tax.  The jury could also regard the evidence summarised in [9] and [11] of these reasons as establishing that the upper limit of the appellant’s claim (however it was then characterised, which is not entirely clear) was $5,584.00 for 2007 and $1,461.00 for 2008.
28. It is arguable, as the appellant submitted, that there are indications in the evidence that the appellant may have been confused about his tax entitlements and unable clearly to articulate his beliefs.  It is also true that the evidence revealed that the ATO did not require the appellant to produce to the ATO documents substantiating the claims made in the BAS and the respondent did not seek to reconstruct the appellant’s expenditure and income in the relevant period.  Both of the submissions raised issues for the jury to consider.  Even so, taking into account in particular the evidence upon which the jury could find that there were very substantial disparities between the amounts claimed in the BAS and the amounts the appellant told the ATO  he believed were owing to him and that the appellant expressed apparently differing bases for those claimed entitlements over time, and also taking into account the objective improbability that the appellant incurred an expenditure recoverable as a tax refund in the very substantial amount he claimed for the first time many years after he claimed to have incurred the expenditure, it was reasonably open to the jury to find that the appellant had not incurred and did not believe that he had incurred GST on purchases, or an entitlement to an income tax refund, in the amounts claimed in the BAS.
29. I conclude that it was reasonably open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt that the appellant acted dishonestly by declaring to be true and correct amounts claimed in the BAS which he knew he was not entitled to claim in the BAS.  This ground of appeal fails.

Ground (b): Misdirection about mistake

30. The trial judge’s summing up commenced with a description of the charges, directions about the respective functions of the judge and jury, a description of the documentary evidence (including formal admissions), and a short statement of the approach the jury should adopt to the evidence.  The trial judge pointed out that whilst it was part of the jury’s function to decide questions of the credibility of witnesses, there was no contest about anything said by the witnesses.  The trial judge then told the jury that the appellant “has advanced evidence of a defence of mistake of fact” and that to find the appellant guilty the jury would have to be satisfied beyond reasonable doubt that it did not apply.  The trial judge referred to the submissions made by the prosecutor and by defence counsel upon the question whether the appellant had acted dishonestly.  After referring to procedural matters and the obligation of the Crown to prove the charge beyond reasonable doubt, the trial judge identified the elements of the offence which the respondent was obliged to prove and the definition of “dishonest” in the Commonwealth Code.
31. The trial judge reminded the jury of evidence given by Ms Bush and Ms Farley to the effect that the Tax Office did not owe the appellant any money, but the appellant instead owed the Tax Office money, and directed the jury that:

“So far as the defence of mistake is concerned, it doesn’t matter that he may have been wrong.  … it can apply…even if the tax office did not owe him any money.  And, so it’s a defence which is raised on the evidence and which you have to consider.”

32. The trial judge read extracts from s 9.1 of the Commonwealth Code, paraphrased s 9.1(1)(a) and s 9.1(2), and gave the following directions:

“So there must be a mistake, and you can consider whether, in the circumstances, it was a reasonable mistake.  If the Crown have satisfied you beyond reasonable doubt that it wasn’t reasonable, even if it was a mistake, then it would have negatived the defence.  Now, the mistake here is that – well, the mistake relied upon by the Defence and open on the evidence is that the defendant mistakenly believed that he could obtain the refund of income tax he believed was owed to him by submitting the business activity statements.” (Emphasis added).

33. The trial judge referred to evidence given by Mr Humphries and others, and observed that it was “the evidence which raises the evidence of mistake.”  The trial judge gave this direction:

“Whether the defendant owed – was owed or was not owed money to the tax office, he believed, he says, that he was entitled to what he claimed via the BAS statements and that he was able to make the claim in the way he did.  It’s a matter for you as to whether (1) he was mistaken in that way.  If you conclude – if you’re satisfied beyond reasonable doubt that he was not mistaken, then that’s the end of the defence.  If you’re satisfied beyond reasonable doubt that he was mistaken, but – no, sorry.  If you are satisfied beyond reasonable doubt that he wasn’t (sic) mistaken but you are satisfied beyond reasonable doubt that any mistake was not a reasonable one, the defence would not applied (sic).  He would have negatived the defence.  So the Crown have to prove to you either that he was not mistaken or, if he was, that it was not a reasonable mistake in the circumstances before you can convict him.  So the Crown have to prove that in doing what he did, he was acting dishonestly and the Crown also have to prove to you beyond reasonable doubt that he was not acting under a mistaken belief that he was entitled to do what he did in the way in which he did.” (Emphasis added).

34. The respondent did not contest the submission for the appellant that the parts of the directions which I have emphasised in the preceding paragraphs were wrong in law.  As was submitted for the appellant, the effect of s 9.1(2) is that the reasonableness of a mistaken belief or ignorance of facts is a factor, but not necessarily the decisive factor, in determining whether or not criminal responsibility for an offence is excluded under s 9.1(1).  That construction reflects the legislative intention revealed by statements in the Explanatory Memorandum for the Criminal Code Bill 1994 (Cth):

“At common law, an honest albeit unreasonable mistake can afford a defence to offences involving a mental element.  Under the Griffith Codes, regardless of whether the offence involves a mental element, a mistake of fact will only afford a defence where a mistake is both honest and reasonable.  Notwithstanding that apparent difference, the experience of juries in common law jurisdictions is that they reject the defence where the mistake is not credible because it is unreasonable.  …  The Griffith Codes now stand outside the mainstream of legal development of the late 20th century which has stressed and indeed expanded the requirements for subjective fault …”.^[3]

“The reasonableness of the mistake is merely a factor to consider in deciding whether the mistaken belief was actually held - proposed subsection 9.1(2). … This is consistent with the common law position … but different from the approach taken under section 24 of the Griffith Codes which requires that the mistake be reasonable …”.^[4]

35. As counsel for the respondent acknowledged, the trial judge’s directions upon this topic are difficult to differentiate from directions given in R v Navarolli^[5] which were found to be wrong in law.
36. The respondent also acknowledged that the mistake articulated by the trial judge was not a mistake of fact.  The postulated beliefs concerned legal questions whether the applicable legislation entitled the appellant to make the claims and recover the amounts stated in the BAS.  Those questions were relevant to the question whether the respondent proved beyond reasonable doubt that the appellant had acted dishonestly in terms of s 130.3 of the Commonwealth Code but they were not relevant to mistake under s 9.1.
37. The cumulative effect of those legal errors was that the trial judge’s directions wrongly conveyed to the jury that the suggested mistake by the appellant was irrelevant if the respondent proved beyond reasonable doubt that the mistake was unreasonable.  Defence counsel’s omission to seek a redirection could not be explicable as a reasonable forensic decision made in the interests of the appellant.  The misdirection made the path towards conviction unduly easy for the Crown and it did not involve any forensic advantage for the appellant.  The misdirection amounted to a miscarriage of justice.

Ground (c): Wrong evidence of an admission

38. Both parties asked the Court to proceed on the footing that a copy of the “document book” (exhibit 2), which was given to the jury and was in the jury room during their deliberations, included an incorrect transcription of the appellant’s formal admission in exhibit 16 that “[d]uring the four quarters to which the BAS related, the defendant did not conduct or carry on a business called Chocolate Blonde Enterprises”; in the document book, the admission included the additional text, “or any other business under [the appellant’s ABN]”.
39. The purported admission made a nonsense of the appellant’s case that the BAS did not concern Chocolate Blonde Enterprises but a different business or businesses which did trade in the relevant period.  It is not possible to exclude the hypothesis that the jury, acting upon the misstatement of the appellant’s admission, found that the appellant did not conduct any business under his ABN during any of the four quarters to which the BAS related and, for that reason alone, he knew when he signed each of the BAS that the figures in it were false.  The error was unintentional.  It amounted to a miscarriage of justice.

The proviso

40. Each of the second and third grounds of appeal amounts to a ground for concluding that, in terms of s 668E(1) of the Criminal Code (Qld), there was a miscarriage of justice such as would oblige the Court to allow the appellant’s appeal against conviction.  Section 668E(1A), commonly called “the proviso”, provides:

“However, the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

41. The respondent argued that the Court should find that no substantial miscarriage of justice had actually occurred and for that reason dismiss the appeal.  The respondent argued that R v Navarolli is authority for the proposition that the Court may apply the proviso even though the jury was not directed correctly in relation to s 9.1 of the Commonwealth Code, and that this was a particularly apt case for the application of the proviso because the appellant did not give evidence and there was no relevant issue about the credibility of the witnesses in the Crown case.  The respondent relied upon the arguments it advanced in opposition to the appellant’s first ground of appeal in support of a contention that the Court would be satisfied beyond reasonable doubt that the appellant was guilty of the offence charged against him.
42. In Weiss v The Queen^[6] the High Court stated that “the permissive language of the proviso … is important” and so too was “the way in which the condition for the exercise of that power is expressed (if it considers that no substantial miscarriage of justice has actually occurred)”.  More recently, it was held in Baiada Poultry Pty Ltd v The Queen^[7] that if the Court considers that no substantial miscarriage of justice has actually occurred, the Court must dismiss the appeal; the Court does not possess a discretion nevertheless to allow the appeal and direct a new trial.^[8]
43. In Weiss the High Court also stated that “no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt.”^[9]  The High Court referred to the “negative proposition” that it could not be said that there was no substantial miscarriage of justice unless the appellate court was, “persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty”.^[10]  In Baiada Poultry, the plurality judgment described that negative proposition as stating “a necessary but not sufficient condition for applying the proviso”.  Their Honours cited AK v Western Australia^[11] as showing that reasoning which demonstrates that the verdict reached at trial was required “does not always permit, let alone require, the conclusion that no substantial miscarriage of justice actually occurred.”^[12]  That, and other decisions have confirmed the observation in Weiss that, “there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant’s guilt”, and that an example of cases of that kind may be “where there has been a significant denial of procedural fairness at trial.”^[13]
44. The determinative question then is whether or not a “substantial miscarriage of justice has actually occurred” within the meaning of that expression in the proviso; it is those statutory words which govern, rather than subsequent judicial expositions of their meaning.^[14]  In Baiada the plurality observed that, “it is neither possible nor useful to attempt to argue about the application of the proviso by reference to some supposed category or “fundamental defects” in a trial”.^[15]  In decisions before and after Baiada the High Court characterised various errors in the conduct of a trial as fundamental in the course of explaining why the proviso was applicable.  For example, in Wilde v The Queen,^[16]  Brennan, Dawson and Toohey JJ observed that “[e]rrors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso…”, in Handlen v The Queen^[17] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ observed of an identified departure from the proper conduct of the trial that it “was fundamental” and “denied the application of the proviso”, and in the same case  Heydon J, citing Krakouer v The Queen,^[18] observed that “… a failure to give full directions about the elements of an offence… does not necessarily mean that the trial is “fundamentally flawed or ‘… so far miscarried as hardly to be a trial at all’”.^[19]  In those cases, the conclusion that a legal error or irregularity resulted in a fundamental departure from the proper conduct of the trial by jury required by our system of criminal justice seems to have been treated by the High Court as being synonymous with a conclusion that a substantial miscarriage of justice has actually occurred.^[20]  Nevertheless, applying Baiada, the test which this Court must apply is whether “no substantial miscarriage of justice has actually occurred”.  For the following reasons I would hold that this test is not met in this case.
45. The question whether an accused person was “dishonest according to the standards of ordinary people”, ^[21] and whether what the person did was known by him to be dishonest according to those standards, are questions which a jury is well placed to answer.  In this case, however, the jury may have concluded that the supposed mistake of fact (which was in truth a supposed mistake of law) was necessarily unreasonable in light of the supposed admission (which the appellant did not in fact make), and that (applying the trial judge’s wrong directions about criminal responsibility under s 9.1 of the Commonwealth Code) it inevitably followed that the appellant could not possibly be relieved of criminal responsibility upon the grounds advocated by defence counsel.  Such a combination of the admitted errors at the trial, may have resulted in the real issues not being considered by the jury at all, so that which bore the outward appearance of a trial by jury was not in substance a trial by jury.  The trial miscarried so far “as hardly to be a trial at all”; “the proviso was not intended to provide, in effect, a retrial before the Court of Criminal Appeal….”^[22]
46. As the respondent submitted, in R v Navarolli the Court applied the proviso notwithstanding that a trial judge misconstrued s 9.1 of the Commonwealth Code in substantially the same way in which it was misconstrued in the trial judge’s directions to the jury in this case, but the facts of that case bear no resemblance to the facts of the present case.  Any reasonable doubt in that case depended upon certain evidence of the appellant.  Chesterman JA found that the appellant’s evidence was “nonsensical”, “irrational”, reeking of “mendacity”, deserving of “no credence whatsoever”, and “clearly inventions, resort to which was had on the spur of the moment”.^[23]  Muir JA made similar findings.^[24]  Fryberg J, took into account that the fact sought to be disproved by the Crown was “fanciful”,^[25] there was no discretionary reason to refuse to apply the proviso, and nor was the error at the trial so profound that the proviso could not be applied.^[26]  In the present case, the error was not confined to a misdirection about s 9.1 and, as I have found, the cumulative effect of the errors resulted in a substantial miscarriage of justice actually having occurred.  I would therefore hold that the proviso is inapplicable.

Proposed orders

47. I would allow the appeal, set aside the conviction, and order a new trial.
48. PHILIP McMURDO JA:  The appellant was convicted of an offence against s 134.2(1) of the Criminal Code (Cth) (the Code) that provides that a person commits an offence if:

“(a)the person, by a deception, dishonestly obtains a financial advantage from another person; and

2. the other person is a Commonwealth entity.”

There was no issue that the appellant obtained a financial advantage, namely the payment of money which he had claimed by the business activity statements, and that this advantage was obtained from a Commonwealth entity.  There were two issues: whether there had been a deception and whether the appellant had acted dishonestly.  By the way in which the respective cases were conducted at the trial, these issues involved essentially one factual question, namely whether the appellant had not believed that the submission of the business activity statements was a legitimate and permitted means of obtaining money which he considered to be owing to him.  However, as I will discuss, in consequence of the trial judge’s summing up different and irrelevant questions were left to the jury and, very probably, the jury did not consider the necessary question.

Deception

49. By s 133.1 of the Code, the term “deception” means:

“an intentional or reckless deception … whether as to fact or as to law …”.

The business activity statements were deceptive because they falsely represented that certain GST had been paid by the appellant in those periods when, in truth, none had been paid.  But a deception under s 134.2 must also be either intentional, meaning that the defendant meant to deceive,^[27] or reckless, meaning that the defendant was aware that his conduct might be deceptive and took an unjustifiable risk that it was deceptive.^[28]  In the way in which the respective cases were conducted, recklessness was not a possibility in this case.  The prosecution sought to prove that the appellant’s deception was intentional.

50. Under the Code, an offence consists of physical elements and fault elements.^[29]  The law creating the offence may provide different fault elements for different physical elements.^[30]  The proof of an offence requires the proof of the existence of the physical elements and, in respect of each such physical element, one of the relevant fault elements.^[31]  A physical element of an offence may be conduct, a result of conduct or a circumstance in which conduct or a result of conduct occurs.^[32]  The term “conduct” means an act, an omission to perform an act or a state of affairs.
51. A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.^[33]  The element of intention is defined as follows:^[34]

“(1)A person has intention with respect to conduct if he or she means to engage in that conduct.

3. A person has intention with respect to a circumstance if he or she believes that it exists or will exist.

3. A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.”

The element of recklessness is defined by s 5.4 by reference to the physical elements of a circumstance^[35] and a result.^[36]  It is not defined by reference to the physical element of conduct.  Because by s 133.1 a deception may be a reckless deception, it would appear that the physical element of “a deception” in s 134.2 involves more than the mere conduct of the defendant, and includes something in the nature of a circumstance or a result.^[37]  A deception, for the purposes of s 134.2(1), will involve the elements of conduct (here the lodging of the business activity statements) and either a circumstance in which that conduct occurred (the statements were deceptive) or a result (the ATO being deceived).  For each of those physical elements there was a fault element.  As already noted, the effect of the prosecution case was that the fault element was an intention.  The prosecution case was that the appellant presented the business activity statements intending them to be deceptive and to deceive.

52. In his summing up the trial judge did not direct the jury as to the issue of deception.  He did give a direction as to what was meant by an intention.  But on that subject he told the jury that all that had to be proved was that the appellant intended the Australian Taxation Office “to believe [the business activity statements] were true and to act upon them.”  That was a misdirection.  Honest taxpayers intend the ATO to accept the truth of their returns and to act upon them.  The intention which had to be proved was an intention to deceive the ATO.  The jury was not instructed to consider that issue.

Dishonesty

53. The other issue was dishonesty.  The trial judge did direct that it was necessary for the prosecution to prove that the appellant had acted dishonestly and his Honour did explain the meaning of dishonesty by reading from the definition in s 130.3.
54. The trial judge then referred to the evidence of two of the witnesses who were called in the prosecution case, before offering this summary of the appellant’s argument:

“He says, look, I was told to put in these BAS statements to recover what I believed was owed to me by the tax office”.

The directions about a mistake of fact

55. After that brief discussion of the issue of dishonesty, the trial judge saw fit to direct the jury about s 9.1 of the Code.  He described the relevant mistake, which he considered required a consideration of s 9.1, as follows:

“Now, the mistake here is that – well, the mistake relied upon by the defence and open on the evidence is that the defendant mistakenly believed that he could obtain the refund of income tax he believed was owed to him by submitting the business activity statements.”

As the respondent here concedes, that was not a mistake which could fall within s 9.1 because it was a mistake of law, not of fact.

56. The further and most serious error made by the trial judge was then to tell the jury, more than once, that a mistake could matter only if it was a reasonable mistake.  That was wrong because a mistake of fact need not be a reasonable mistake to engage s 9.1.
57. The question of whether the appellant had acted under a mistake was at the heart of the case.  As already noted, the appellant’s argument was that he had acted under a belief that the submission of the business activity statements was a legitimate and permitted means of obtaining from the ATO a payment of money which (he believed) was owed by the ATO to him as a refund of income tax.  He believed that it was a permitted means because he understood the ATO to have told him that he could proceed as he did.  If that was his state of mind, he had not acted dishonestly, however unreasonable his belief may have been.  But if the prosecution could prove that it was not his state of mind, there was an overwhelming case that he had acted dishonestly and that there had been an intentional deception.  The existence or otherwise of the suggested mistake was effectively the question of fact for the jury’s determination.
58. It can be seen then that the judge’s direction that the mistake could matter only if it was a reasonable mistake infected the entire case that went to the jury.  If the jury considered that the suggested mistake, if it existed, was an unreasonable one, they were to give it no further regard.  Once that point was reached, the jury was bound to convict.  The consequence of the judge’s summing up was to divert the jury from the one factual issue which it was necessary for them to decide.  They were to determine the appellant’s criminal responsibility not by a criterion of dishonesty, but by one of unreasonableness.

The other grounds of appeal

59. I gratefully adopt the description of the evidence in the judgment of Fraser JA and I agree with his reasons for concluding, in response to the first ground of appeal, that the verdict was not unreasonable.  In this case, that conclusion comes from a consideration of the whole of the evidence but without regard to the verdict of the jury, because the jury was not directed to decide what I have described as the essential factual question.
60. I agree also with what Fraser JA has written about the third ground of appeal.

The proviso

61. What then should be the outcome of this appeal?  The respondent argues that this court should apply the proviso in s 668E(1A) of the Criminal Code (Qld).  The question then is whether no substantial miscarriage of justice has actually occurred.  If this court considers that no substantial miscarriage of justice has occurred, it must dismiss the appeal.^[38]
62. In Nudd v The Queen,^[39] Gleeson CJ described the width of the concept of miscarriage of justice and some of the forms which it may take.  He said:^[40]

“The concept of miscarriage of justice is as wide as the potential for error.  Indeed, it is wider; for not all miscarriages involve error.  Process is related to outcome, in that the object of due process is to secure a just result.  Justice, however, means justice according to law, and the observance of the requirements of law according to which a criminal trial is to be conducted has a public as well as a private purpose.  An unjust conviction is one form of miscarriage.  Another is a failure of process of such a kind that it is impossible for an appellate court to decide whether a conviction is just.  Another is a failure of process which departs from the essential requirements of a fair trial.”

63. What is presently in question is whether there has been no substantial miscarriage of justice.  Nevertheless, as Fraser JA has discussed, on occasion there may be a substantial miscarriage of justice although a court of criminal appeal is of the view that the evidence proved that the appellant was guilty.  Thus in Quartermaine v The Queen,^[41] Gibbs J declined to apply the proviso where the jury was not asked to consider an essential element of a charge and was therefore invited to “return a verdict of guilty of a particular crime without having considered whether that crime was committed”.  Gibbs J said that in such a circumstance:^[42]

“… the verdict cannot … be sustained by holding that the jury would or should have returned the same verdict if they had considered the proper questions.  That would substitute trial by judge for trial by jury.”

Referring to that judgment, in Wilde v The Queen^[43] the majority said:^[44]

“This view is undoubtedly correct, for the proviso was not intended to provide in effect, a retrial before the Court of Criminal Appeal when the proceedings before the primary court have so far miscarried as hardly to be a trial at all.”

64. The present case can be likened to Quartermaine and also to Handlen v The Queen,^[45] where the appellants were convicted of drug importation offences under the Commonwealth Code.  The trial was conducted upon the mistaken assumption that guilt could be established upon proof that the appellants were parties to a joint criminal enterprise, which at the relevant time was not a basis for criminal responsibility under the Code.  This court concluded that the guilt of the appellants had been established by the evidence and held that the misdirection did not involve such a fundamental departure from a trial according to law that the proviso could not be applied.  That decision was reversed by the High Court.  The plurality said:^[46]

“As this Court explained in Weiss v The Queen, there is no single universally applicable description of what constitutes a ‘substantial miscarriage of justice’.  The appellants were convicted of serious criminal offences following a trial at which the prosecution case was conducted, and left to the jury, on a basis for which the law did not provide.  The conduct of the trial on this basis conferred an evidentiary advantage on the prosecution, leading to the admission of evidence to prove the existence and scope of the group exercise.  Ultimately, the issue posed for the jury was whether the prosecution had proved that the appellants were parties to the group exercise when this was irrelevant to proof of their complicity in Reed’s offences.  The verdicts on the importation counts reflect the jury’s satisfaction that each appellant was a party to the group exercise but it does not follow that the jury must have been satisfied of the facts necessary to establish the appellants’ guilt of the importation offences in the only way for which the law allowed.  It was not open to the Court of Appeal to apply the proviso in the circumstances of these appeals.”

(footnotes omitted)

65. Of course a question of whether there was a substantial miscarriage of justice must be considered by reference to the facts and circumstances of the particular case.  Nevertheless the cases to which I have referred are instructive, in that they provide examples of where, on their particular facts and circumstances, there was a substantial miscarriage of justice from the fact that the appellant had been convicted without a consideration by the jury of an essential issue in the trial.  This is such a case.  In the circumstances here, it is very likely that the jury did not consider the single essential factual question in the case, because they were told by the trial judge that they need not do so if, as was likely, they thought that the suggested mistake was an unreasonable one.  And the issue of dishonesty was well suited to a determination by a jury because, by s 130.3, it was to be judged by “the standards of ordinary people.”  The appellant was entitled to have a jury decide his guilt or otherwise, according to the elements of the offence.  That did not occur.  This was a substantial miscarriage of justice and the proviso cannot be applied.
66. I agree with the orders proposed by Fraser JA.
67. NORTH J:  I have had the advantage of reading the reasons for judgment of both Fraser JA and Philip McMurdo JA.  I too adopt the summary of the evidence in the judgment of Fraser JA and agree for the reasons given by his Honour, that the verdict was not unreasonable.  I agree also with Fraser JA concerning ground 3.
68. I agree with Philip McMurdo JA’s reasons concerning the second ground of appeal and his Honour’s consideration of the directions that were required in the circumstances.
69. I agree with the reasons of both Fraser JA and Philip McMurdo JA concerning the proviso in s 668E(1A) of the Criminal Code (Qld) and that there was a substantial miscarriage of justice.
70. I agree with the orders proposed by Fraser JA.