Hearsay ... the Journal of the Bar Association of Queensland
OOPS. Your Flash player is missing or outdated.Click here to update your player so you can see this content.
Supreme Court of Queensland Judgment Summary Notes Print E-mail

sup_court_intro.jpgThe following summary notes of recent decisions of the Supreme Court of Queensland provide a brief overview of each case. For more detailed information, please consult the Reasons for Judgment which may be downloaded by clicking on the case name.

R v Freeman [2019] QCA 150

The applicant pleaded guilty to counts 1 and 2 on a three-count indictment on the eve of his trial. At issue on appeal was whether insufficient weight had been attached to his plea, which he contended was entered at the first reasonable opportunity. The applicant was sentenced to four years and six months’ imprisonment on count 1 and a concurrent term of six months’ imprisonment on count 2, for possession of a marketable quantity of a border controlled drug and failing to comply with an order to assist access. The third count, importing a marketable quantity of a border controlled drug, had been discontinued by the prosecution when the applicant offered his plea. The court found that in pleading guilty the appellant had “accepted the inevitable” and in all the circumstances he had not entered a plea at the earliest possible opportunity.

Fraser JA and Applegarth and Bradley JJ
2 August 2019

In examining the timing of the plea, the court undertook a detailed consideration of the case law in this area. It noted that the indictment charging the relevant offences was presented on 5 October 2016, [43], and the applicant entered his plea on 17 October 2018. [2]. In the interim, it was plainly the case that the applicant “had many opportunities to indicate his preparedness to plead, or to actually plead, to counts 1 and 2”. [43]. Instead, the applicant determined to plead to those counts only after the Crown accepted his offer to do so on the grounds that count 3 would be dropped and certain matters omitted from the statement of facts. [44].

In that regard, the court distinguished the matter from Cameron v The Queen (2002) 209 CLR 339, 345–346 [20]–[25], observing that it was not the case that the initial reasonable opportunity to enter a plea had only presented itself after the charges were correctly formulated. [45]. Applegarth J (Fraser JA and Bradley J concurring) also distinguished the matter from one in which a late plea is entered to remaining charges after the Crown concedes that it is unable to prove other, more serious counts and withdraws them due to lack of evidence: see for example Atholwood v The Queen (1999) 109 A Crim R 465. [46]. The court stressed that due to these nuances, the issue of whether an offender pleaded, or offered to plead, guilty at the first reasonable opportunity is more complex than simply examining the charges: see Cameron v The Queen (2002) 209 CLR 339, 345 [20]; Maybus v The Queen [2017] VSCA 125, [46].

In that regard, the court isolated the following relevant circumstances which might have a bearing upon the issue of whether a plea was entered at the first reasonable opportunity:

  • Where there is a strong incentive for an offender who acknowledges his guilt on certain counts to continue in a not guilty plea to all counts, mindful of “the forensic prejudice that the offender would have suffered were he to have pleaded guilty to counts persisted in by the prosecution while others (that were subsequently withdrawn) remained pending against him”: see Atholwood v The Queen (1999) 109 A Crim R 465, 468 per Ipp J, cited in Cameron v The Queen at 345 [21]. In that scenario, the court noted “it should not be assumed, mechanically”, that the offender has delayed pleading guilty due to an absence of remorse, or that he has not pleaded guilty at the earliest possible opportunity.
  • Where the offender sought to negotiate a plea: see Rinaldi v The State of Western Australia [2017] WASCA 48, [42], [51]. In that event, a delay in pleading guilty might be the result of the time expended on attempting to have other charges withdrawn.

In the court’s view, “[i]n this case, an offer to plead guilty to counts 1 and 2 would have been to accept the inevitable” [54], and the applicant had not demonstrated why his pleas were not reasonably available to him at an earlier junction than the eve of his “much-delayed trial”. [56]. In the court’s view, it appeared, based upon the available evidence and chronology of events, that the applicant had resolved to contest all counts until required to go to trial, and had only considered a resolution of the three counts he was facing on the eve of his imminent trial. That course of action afforded him the opportunity of remaining in the community for more than three years after he was charged and more than two years after an indictment was presented. Whilst the court acknowledged that he ought not to be penalised for taking that course, in its view, it equally disentitled him from obtaining the benefit of an early or timely plea. Accordingly, the court rejected the submission that his guilty pleas were made at the first reasonable opportunity. [57].

Radiology Partners Pty Ltd v Commissioner of State Revenue [2019] QSC 192

In this case, Wilson J was asked to adjudicate on the proper construction of s 30 of the Duties Act 2001 as it applied to the restructuring of the unitholders of the appellant’s unit trust. Essentially, the question was whether the fifteen dutiable transactions undertaken should be aggregated under s 30. In adjudicating on this point, her Honour engaged with an interesting and important discussion first on the nature of statutory appeals under the Tax Administration Act 2001 to the Supreme Court, and secondly on the proper construction of s 30 of the Duties Act 2001.

Wilson J
9 August 2019

The Trust, of which the (statutory) appellant is trustee, holds dutiable property valued at over $2 million. [4]. It is a unit trust. Prior to 15 May 2015, the Trust had six unit holders, each of whom was either a company or a natural person which held 1,000 units in the Trust as trustee for six family trusts. [4]. On 15 May 2015, the appellant and the six then-unitholders attended a meeting, where it was unanimously voted that all their units be redeemed, effective from 15 May 2015 (“the redemptions”). [5], [7]. It was then resolved that 1,000 units be distributed to each of nine new entities, each of which was trustee for a self-managed superannuation fund (“the acquisitions”). [7]. The ultimate beneficiaries of each of the six original unitholders were the ultimate beneficiaries of six of the nine new unitholders. [8].

On 9 June 2016, the Commissioner issued the appellant with an assessment on the basis that, pursuant to s 30 of the Duties Act 2001, the redemptions were aggregated and treated as a single dutiable transaction [10]. A separate assessment was made, applying s 30 to the acquisitions. [10]. The appellant objected to these assessments, but the Commissioner did not amend her assessments. [11], [15]. The appellant appealed from this decision under s 69 of the Taxation Administration Act 2001 (“TAA”). [1]. The following issues arose before Wilson J: [17]

  1. What is the nature of an appeal under s 69?
  2. What is the proper construction of s 30, and on what basis should any aggregation occur?

The Nature of the Appeal

On this question, Wilson J – and the parties – ultimately relied on the judgment of Bowskill J in Wakefield v Commissioner of State Revenue [2019] QSC 85. [18]. Several points of note arise: [19]

  • the court “exercises its original jurisdiction to make such judgment as it considers ought to have been given, on the facts and the law, at the time of the hearing”;
  • • the court must give the Commissioner the opportunity to reconsider the objection if it is to admit new evidence;
  • the scope of the court’s powers on appeal differs, depending on whether the decision being appealed related to a state of satisfaction being formed by the Commissioner, or cases where the law is applied to objective conclusions of fact. In the latter cases – such as the instant one – the exercise of the court’s powers is not dependent upon the demonstration of an error by the decision-maker; and
  • where the question involves the Commissioner forming a state of satisfaction, the appellant will need to show an error of principle was made by the Commissioner; it is not for the court to “re-exercise any discretionary power conferred upon the Commissioner”. This differs from review by QCAT, which does involve the Tribunal standing in the shoes of the Commissioner and re-exercising the discretion.

The Proper Construction of Section 30

Wilson J identified a number of guiding principles which shape the court’s approach to the aggregation of transactions pursuant to s 30: [32]

  1. it is a question of law as to whether the transactions satisfy s 30;
  2. the factors considered by the respondent will involve a consideration of the conduct of the parties. The transferee(s)’ conduct will, therefore, be of primary significance;
  3. in deciding whether the circumstances amount substantially to one arrangement, the respondent is required to “have regard to all relevant factors” and there will be “questions of degree involved”;
  4. one must look at the whole facts of the situation, and the enquiry is not limited to the circumstances of the transactions themselves;
  5. the substance of the transactions must be examined in order to determine whether they are “in substance” one transaction. Which is to say that the subject transactions need not be one arrangement, they only need to be substantially so; and
  6. there must be an “integral and not [merely] fortuitous” relationship between the transactions before they will be viewed as being substantially the same. Looked at in the negative, to avoid aggregation, the transactions must be “separate and independent [and] unconnected with the others”.

On top of these principles, her Honour noted that there must be some unifying feature bringing the dutiable transactions within the section. [36]. In this context, “arrangement” “is a word of wide, but not unlimited meaning”, and refers not merely to contracts but to understandings or plans which may not be enforceable. [38]–[39]. Further, the court must look to the substance, not the form, of the arrangement. [41]. Ultimately, the determination under s 30(1) is a question of fact which takes into account “all relevant circumstances”, including the “objectives, actions or conduct” of the transferees. [42]–[44].

Having regard to these points, and the parties’ submissions, Wilson J noted that although, as “a matter of form, the acquisitions and redemptions may appear as separate transactions”, “the substance of the arrangement … shows there was some essential unity” between the transactions. [107]–[108]. Crucial to this finding were the Minutes of the meeting of 15 May 2015, which “evidence an arrangement between the parties”, with certain desired outcomes. [110]. This arrangement was “to restructure the unit trust” by transferring the units into self-managed superannuation funds for the existing unit holders, and to introduce three new unitholders. [115]. The restructure was effected by a single resolution with a “unity of purpose in the subject transactions”. [116]–[117]. It followed that the redemptions and the acquisitions should each be treated as substantially one arrangement under s 30. [118]. In the event, the statutory appeal was dismissed. [119].

Maneesha Prakash


| | | | | |