Scanlan (Respondent) v. Swan (Appellant).
Judges:Campbell CJ
Dunn J
Sheahan J
Court:
Supreme Court of Queensland
Campbell C.J., Dunn and Sheahan JJ.
On 26th February, 1981 the appellant was personally served with a notice in writing from the respondent, a Deputy Commissioner of Taxation, requiring him ``to attend'' at the Australian Taxation Office in Southport on 26th March, 1981 and ``give verbal evidence on oath'' before two named officers of the Taxation Office concerning the following matters for the period from 1st July, 1976 to 30th June, 1980:
``(a) the income or assessment of yourself;
(b) the income or assessment of John T. Swan and Partners Pty. Ltd.;
(c) the income or assessment of Compagnie De Credit Commercial;
(d) the income or assessment of Syncon Pty. Ltd., Synmon Pty. Ltd., Synad Pty. Ltd., and Syntax Pty. Ltd.''
The notice also required the appellant to produce at the material place and time all books, documents and other papers whatever in his custody or under his control relating to the above matters, and it specified such documents as cheque books and other papers in which are recorded details of income, losses and outgoings of himself for the relevant period and also such documents for the six companies referred to above. The notice purported to be given pursuant to sec. 264 of the Income Tax Assessment Act 1936 (the Act). Section 264 reads as follows:
``264(1) The Commissioner may be notice in writing require any person, whether a taxpayer or not, including any officer employed in or in connexion with any department of a Government or by any public authority -
- (a) to furnish him with such information as he may require; and
- (b) to attend and give evidence before him or before any officer authorized by him in that behalf concerning his or any other person's income or assessment, and may require him to produce all books, documents and other papers whatever in his custody or under his control relating thereto.
(2) The Commissioner may require the information or evidence to be given on oath and either verbally or in writing, and for that purpose he or the officers so authorized by him may administer an oath.
(3) The regulations may prescribe scales of expenses to be allowed to persons required under this section to attend.''
On 16th March, 1982 the appellant was convicted in the Magistrates Court at Southport of an offence against sec. 224 of the Act in that he, without just cause and excuse, neglected to attend and give evidence when required by the Commissioner. The complaint, laid pursuant to sec. 224 of the Act, contains certain averments which are not material to the points argued on this appeal. Section 224 reads as follows:
``Any person who refuses or neglects to duly attend and give evidence when required by the Commissioner or any officer duly authorized by him, or to truly and fully answer any questions put to him by, or to produce any book or paper required of him by the Commissioner or any such officer, shall, unless just cause or excuse for the refusal or neglect is shown by him, be guilty of an offence. Penalty: Not less than $4 or more than $200.''
The sentence imposed upon the appellant by the Magistrate was a fine of $80, in default of payment two months' imprisonment, and he was ordered to pay certain costs of Court and professional costs in default to be levied in accordance with the Act. The Magistrate, pursuant to the powers given him by sec. 225 of the Act, also ordered that the appellant attend at the Taxation Office at
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Southport before such officer or officers as the Commissioner shall delegate on that behalf to give evidence as required by law at 10 a.m. on 6th April, 1982. The appellant now appeals against that conviction and order by way of order to review under sec. 209 of the Justices Acts on the following grounds:``(i) the conviction was contrary to law, there being a good defence to the charge, namely, `just cause or excuse for the refusal or neglect to attend and give evidence, as required';
(ii) the Stipendiary Magistrate misconstrued sec. 224 in that he did not relate the defence of `just cause or excuse' to the matter of attending at the specified place, apparently restricting such defence only to the matter of giving evidence;
(iii) the Stipendiary Magistrate wrongly treated the question raised as to the claim of the privilege as a matter of procedural, rather than substantive law, treating the case merely as analogous to the question of attendance at Court in obedience to a subpoena to give evidence in Court;
(iv) the Stipendiary Magistrate failed to decide whether the claim to the privilege was a defence to the charge as within the meaning `just cause or excuse' or otherwise;
(v) the Stipendiary Magistrate based the conviction upon reasoning which is self-contradictory, in that he decided there was no defence based upon the ground of the claim to privilege against self-incrimination, to the direction to attend to give evidence, but at the same time conceded that the privilege might be available in respect of the matter of giving evidence.''
The order nisi to review also requests that the order to attend and give evidence on 6th April, 1982 be reviewed on the grounds that the conviction being contrary to law no order under sec. 225 should have been made and, alternatively, that ``such order is not in compliance with sec. 225, in that it is vague and contradictory because it does not specify the matters in respect of which evidence is to be given and it is qualified in that it relates to evidence which can be obtained according to law, thereby raising the defence based upon the claim of privilege referred to'' in the grounds of appeal against the conviction.
There were only two points taken before us by counsel on behalf of the appellant, namely, (i) the appellant was not obliged to attend because of the privilege against self-incrimination; and (ii) the notice requiring him to attend and give evidence was invalid. I propose to consider in the first place the submission that the notice was invalid.
It was submitted that the notice was not in compliance with sec. 264 because a notice under that section could not properly require the appellant to attend and give evidence concerning both his own income and the income of another person; the section merely authorises the giving of a notice to a person to give evidence concerning his own income or the giving of a notice to a person to give evidence concerning the income of another person. By letter dated 4th March, 1981 (Exhibit 5), the agent acting for the appellant wrote to the respondent and, inter alia, alleged that the notice was null and void because it required the appellant to testify and produce documents relating to himself and other companies, while sec. 264 entitled the respondent to issue notices only in relation to the respondent or other persons. When Exhibit 5 was admitted in evidence during the course of the case for the complainant, the agent appearing for the appellant told the Magistrate that the other points mentioned in that letter were not being argued - those other points included the contention that the notice was invalid. The only point taken before the Magistrate was that compliance with the notice may tend to incriminate the appellant and that an investigation could not be used to compel self-incrimination. Moreover, the appellant's agent, when commencing his address to the Magistrate in relation to the charge under sec. 224, said: ``We concede all the formalities, including the giving of a notice, the validity of that notice, and the fact that the defendant did not attend, and the defence is just cause or excuse''. In his reasons the Magistrate said that the agent appearing on behalf of the appellant ``admits all the formalities, including the giving of the notice, the validity of the notice, and the fact that the defendant did not attend''. The record shows that the defence of just cause or excuse was based fairly and squarely upon
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the privilege against self-incrimination. Mr. Pincus Q.C., for the appellant, submitted that, despite that concession, the notice was not valid, so there was no offence and we would not permit the conviction to stand.Counsel for the respondent contended that this point was not taken in the notice of appeal. Section 211 of the Justices Acts provides that every order to review ``shall state in specific terms the grounds upon which it is sought to review the conviction or order or warrant''. In
Finney Isles & Co. Ltd. v. Manteit & Ors. (1949) St.R.Qd. 249, Macrossan C.J. (with whose reasons Mansfield S.P.J. and Stanley J. agreed) said, at p. 258:
``In my opinion, the statement that the order was contrary to law was not compliance with the provisions of this section. It is necessary to state in what respect or respects the order is contrary to law.''
See also
Burton v. Mackay (1953) Q.W.N. 30. The terms of sec. 211 are mandatory.
Mr. Pincus submitted that the invalidity point was covered by the first ground of appeal, namely, that there was a good defence to the charge based on ``just cause or excuse for the refusal or neglect to attend and given evidence as required''. He contended that the decision of this Court in
Kimmorley v. Atherton; ex parte Atherton (1971) Qd.R. 117, was authority supporting his submission that just cause or excuse could be constituted by the fact that the notice was not lawful. In my opinion, there is no substance in this submission and, the point not being included in the grounds of appeal, this Court should dismiss the argument for that reason alone. Kimmorley v. Atherton was an unusual case in which the majority of the Court held that it was an error or mistake on the part of a magistrate to accept a plea of guilty and record a conviction when no offence had in fact been committed. I am unable to see how it is of any assistance to the appellant's argument that sec. 211 of the Justices Acts does not preclude him from arguing this point. In my opinion, apart from the question as to whether this Court should allow a point not taken below to be argued on appeal, there is no ground of appeal which raises the invalidity of the notice and, by reason of sec. 211, this argument must fail.
Although it is not necessary for me to consider whether sec. 264 requires the giving of separate notices when the person to whom a notice is given is required by the Commissioner to give evidence concerning his own income as well as the income of another person, I have not been persuaded, in the circumstances of this case, that the notice was invalid.
In enacting sec. 264 it appears to me that the intention of the Legislature was to give proper notice to a person of the matters about which the Commissioner is seeking information from him. Section 264(1)(a) is perfectly general in its terms - ``to furnish... such information as he [the Commissioner] may require''. ``Such information'' is not limited by the section to information concerning his own income or to information concerning the income of any other person, and sec. 223(1) makes it an offence for any person not to furnish any information as and when required by the Act. The fact that the notice here referred to the appellant's own income or assessment and to the income or assessment of certain companies does not mean, from that particular wording in the notice, that the information sought by the Commissioner as to the incomes and assessments of the companies was not material to the seeking of information as to the income or assessment of the appellant himself. If the concession that the notice was valid had not been made, evidence may well have been led to establish that information concerning the companies was relevant to the assessment of the appellant's own income. In other words, the point that sec. 264 requires separate notices to be given because the information sought related to distinct and separate matters could well have been cured by evidence showing that the matters were in fact related to each other. It seems to me that a sensible interpretation of the section is that the notice should be such as to alert the person to whom it is given as to matters concerning which information is sought.
I turn now to the first point taken. The appellant did not attend at the place and at the time directed by the notice, and it was submitted that he was not obliged to attend
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because of the privilege against self-incrimination and that, on the proper construction of sec. 264, the obligation to attend is subject to that privilege. Reference was made to sec. 227 of the Act which makes it an offence for a person to make a false answer whether orally or in writing to any question duly put to him by the Commissioner or any officer duly authorised by him. Counsel for the appellant referred toEx parte Grinham; Re Sneddon & Anor. (1961) S.R. (N.S.W.) 863;
Mitcham v. O'Toole (1977) 137 C.L.R. 150; and
Hammond v. The Commonwealth of Australia & Ors. (1982) 56 A.L.J.R. 767. Where statutes authorise officers to make enquires or ask questions concerning certain subjects under pain of a penalty for refusing or failing to furnish certain information, it is often a matter of some difficulty whether the duty to answer is subject to the privilege against self-incrimination: Cross on Evidence 2nd Aust. ed. pp. 270-271, and the authorities there cited. In the circumstances of this case it is unnecessary for me to determine whether or not the provisions of the Act (in particular sec. 224 and 264) can be said to abrogate this privilege.
In the reasons for his decision the Magistrate said that the position appeared to be similar to the case of a witness who was duly subpoenaed to attend Court and that he must attend under pain of contempt; he then went on to say that once he attends and is asked a question, the answer to which might incriminate him, he is entitled, ``except where the law specifically and in fair language says otherwise'', to claim privilege and to refuse to answer the question. The Magistrate found that the defendant was obliged to attend to be examined and that he failed to do so.
In
Boyle v. Wiseman (1855) 10 Exch. 647; 156 E.R. 598 the Court considered a case where a party to a suit, who was subpoenaed as a witness, objected to be sworn and examined on the ground that the only relevant questions which could be put to him were such as would tend to incriminate him. Pullock C.B., delivering the judgment of the Court, said (E.R. p. 601):
``My learned Brothers who heard the argument are clearly of the opinion, and to their opinion I defer, that the defendant when called as a witness ought to have been sworn and examined... The party must be sworn and must answer the questions put to him, or object to answer them, if he insists of any privilege in that respect.''
National Association of Operative Plasterers v. Smithies (1906) A.C. 434 was a case where the House of Lords held that the defendant in an action for damages for a conspiracy could not refuse to discover material documents on the ground that they may tend to incriminate him. There, Lord James of Hereford said, at p. 438:
``If a witness says `I decline to answer this question because it would tend to incriminate me', he does not escape by so saying unless he can satisfy the Court that there is reasonable ground for the objection being made. Here all that the defendant is asked to do is to make a statement and say, `This will tend to incriminate me if I give an answer'. If he makes that statement the Court will have to deal with the answer so given. But the argument goes much further than that, and relies upon the nature of the action itself as giving immunity from making an answer.''
Some reliance was placed by counsel for the appellant on
R. v. Robert Rutledge; Ex parte Laidlaw (1923) St.R.Qd. 284, where this Court considered the situation where a person summoned as witness to give evidence at an inquest attended but refused to take an oath or to submit herself for examination on the ground that she was likely to be charged with having caused the death, the Magistrate issued a warrant of commitment and she was taken to the watch-house. During the course of argument on an application for a writ of habeas corpus, Lukin J. said, at p. 287:
``... the witness, by admitting her name, might be furnishing some evidence of identity which might tend to incriminate her. The witness need only answer relevant questions, and it is difficult to suggest any question in this case (as, indeed, in most cases) which would be relevant to the inquiry and which might not tend to incriminate the witness.''
At that stage counsel for the Crown did not press the claim that the witness should be
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compelled to submit herself for examination, and he withdrew any opposition to the prisoner's discharge. The Court then ordered that she be discharged. The facts in the present case are very different from those in R. v. Robert Rutledge. In the present case, I am of the opinion that the appellant was obliged, pursuant to the provisions of the Act to which I have referred, to attend and to give evidence, although he may well have been entitled to object to any particular question on the ground that his answer to it may have tended to incriminate him. It then would have been a matter for the investigating officers to decide that issue. The finding that the appellant was obliged to attend and give evidence was made having regard to the Magistrate's appreciation that the evidence to be given was subject to lawful exceptions.I would dismiss the appeal with costs.
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