WILLS v PETROULIAS [2003] NSWCA 286

WILLS v PETROULIAS [2003] NSWCA 286

It is sufficient for purposes of the element of deprivation in a charge under s29D of the Crimes Act 1914 (Cth) to establish that a bona fide claim to a lawful right, interest or opportunity which had not previously been resolved was resolved; there was evidence of a genuine dispute and the Commissioner of Taxation was genuinely asserting a position contrary to that adopted in the rulings. Simpson J erred in the exercise of discretion to quash committal, misunderstanding the effect of the Essenbourne judgment, and no relevant prejudice was identified. Leave to appeal is granted and appeal allowed.

Jurisdiction
Australia
Judgment Date
03 October 2003
Procedural Posture
Criminal Appeal / Leave to Appeal and Appeal From Supreme Court Orders
Outcome
Leave to appeal granted. Appeal allowed with costs. Order quashing the committal set aside and Supreme Court appeal dismissed.
Legal Topics
['defrauding the Commonwealth' 'committal Process' 'loss Element in Fraud' 'binding Rulings and Tax Law' 'appropriate Orders After Error in Committal']
['criminal Law'] ['defrauding the Commonwealth' 'committal Process' 'loss Element in Fraud' 'binding Rulings and Tax Law' 'appropriate Orders After Error in Committal']

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Procedural Posture

Criminal Appeal / Leave to Appeal and Appeal From Supreme Court Orders

Legal Issues

  1. 1 ['Whether the element of loss or deprivation in a charge of defrauding the Commonwealth under s29D of the Crimes Act 1914 (Cth) requires proof of actual loss of revenue or is satisfied by risk to revenue or lost opportunity to litigate' 'Whether the Crown must demonstrate that the private binding rulings procured were incorrect or arguably incorrect to satisfy the element of deprivation' 'Appropriate procedural orders following identification of an error of law in committal proceedings']

Ratio Decidendi

It is sufficient for purposes of the element of deprivation in a charge under s29D of the Crimes Act 1914 (Cth) to establish that a bona fide claim to a lawful right, interest or opportunity which had not previously been resolved was resolved; there was evidence of a genuine dispute and the Commissioner of Taxation was genuinely asserting a position contrary to that adopted in the rulings. Simpson J erred in the exercise of discretion to quash committal, misunderstanding the effect of the Essenbourne judgment, and no relevant prejudice was identified. Leave to appeal is granted and appeal allowed.

Court Disposition

Leave to appeal granted. Appeal allowed with costs. Order quashing the committal set aside and Supreme Court appeal dismissed.

Orders

  • ['Leave to appeal granted' 'Appeal allowed with costs' 'Orders 2, 3, 4, 5 and 6 of 3 March 2003 are set aside' 'The appeal to the Supreme Court in Matter No. 12242/02 is dismissed']