Chief Collector of Taxes v Blasius Dilon [1990] PNGLR 414

• Jurisdiction: Papua New Guinea
• Judge: Brown J:
• Judgment Date: 31 October 1990
• Citation: [1990] PNGLR 414
• Court: Supreme Court
• Year: 1990
• Judgement Number: SC396

Full Title: Chief Collector of Taxes v Blasius Dilon [1990] PNGLR 414

Supreme Court: Kapi DCJ, Amet J, Brown J

Judgment Delivered: 31 October 1990

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE CHIEF COLLECTOR OF TAXES

V

BLASIUS DILON

Waigani

Kapi DCJ Amet Brown JJ

13 July 1990

31 October 1990

INCOME TAX — Taxation prosecutions — Evidence and onus of proof on — Averment of prosecutor — Prima facie evidence — Summary dismissal not available — Unaffected by constitutional presumption of innocence — Income Tax Act 1959, s 333 (1) — Constitution, s 37 (4) (a) — National Court Rules, O 10, r 14.

The Income Tax Act 1959, s 333, provides:

" (1) In a taxation prosecution, an averment of the prosecutor or plaintiff contained in the information, complaint, declaration or claim is evidence of the matter averred.

(2) This section applies to any matter so averred although:

(a) evidence in support or rebuttal of the matter averred or of any other matter is given; or

(b) the matter averred is a mixed question of law and fact, but in that case the averment is evidence of the fact only.

(3) Any evidence given in support or rebuttal of a matter so averred shall be considered on its merits, and the credibility and probative value of that evidence shall be neither increased nor diminished by reason of this section.

(4) This section does not apply to:

(a) an averment of the intent of the defendant; or

(b) proceedings for an indictable offence or an offence directly punishable by imprisonment.

(5) This section does not lessen or affect any onus of proof otherwise falling on the defendant."

A writ of summons issued against a taxpayer for failing to furnish to the Chief Collector of Taxes the statement of earnings and reconciliation statements for a tax year contrary to s 299g of the Income Tax Act, contained the following averments:

"1. That the respondent is a group employee under the Income Tax Act.

2. That he failed to provide a statement of earnings and reconciliation statement for 1987."

The taxpayer pleaded in defence that he did not employ anyone in the relevant tax year. When no evidence was offered at the trial the trial judge, on application of the taxpayer, dismissed the summons on the ground that there was no evidence to support the claim.

On appeal,

Held

(Allowing the appeal)

(1) (Amet J not deciding) On the application to enter judgment for the defendant under O 10, r 14 of the National Court Rules on the ground of insufficient evidence to support the claim, the onus of proof remained with the Chief Collector of Taxes as prosecutor.

(2) (Amet J not deciding) The effect of s 333 (1) of the Income Tax Act was to make any matter of fact averred in a statement of claim prima facie evidence of that matter.

(3) (Amet J not deciding) There was prima facie evidence of essential facts constituting the claim before the trial judge that the taxpayer was a group employee and had failed to provide relevant statements, which evidence was sufficient to require the matter to be determined on its merits.

(4) (Amet J dissenting) Section 37 (4) (a) of the Constitution, which guarantees the presumption of innocence until proved guilty according to law, has no effect on the evidentiary provisions of s 333 of the Income Tax Act.

Cases Cited

Alva Natona Pty Ltd v Eric J Unger (Deputy Federal Commissioner of Taxation) (1981) 81 ATC 4443.

Evans v Button (1988) 13 NSWLR 57.

Evans v Lynch [1984] 3 NSWLR 567.

Jackson v Butterworth [1946] VLR 330.

Kelly v JRA Ltd (1990) 92 ALR 651.

Naismith v McGovern (1953) 90 CLR 336.

Robins v National Trust Co [1927] AC 515.

SCR No 1 of 1980; Re Police Offences Act [1981] PNGLR 28.

SCR No 1A of 1981; Re Motor Traffic Act [1982] PNGLR 122.

SCR No 2 of 1980; Re Summary Offences Act 1977 [1981] PNGLR 50.

Van Reesma v Mills (1981) 81 ATC 4483.

Appeal

This was an appeal from a decision of the National Court to dismiss proceedings by the Chief Collector of Taxes under O 10, r 14 of the National Court Rules for want of sufficient evidence to support the claim.

Counsel

D L Cannings, for the appellant.

J Yagi, for the respondent.

Cur adv vult

31 October 1990

KAPI DCJ: This is an appeal against the decision of the National Court. A writ of summons was issued against the respondent for failing to furnish to the Chief Collector of Taxes the statement of earnings and reconciliation statements for the year 1987 contrary to s 299g of the Income Tax Act 1959 (as amended). The respondent pleaded in defence that he did not employ anyone in 1987.

At the trial, the Chief Collector of Taxes did not call any evidence either orally or by affidavit. Miss Weigall, counsel appearing for the Chief Collector of Taxes, made an application to cross-examine the respondent. Counsel for the respondent objected on the basis that the respondent had not given any evidence in the trial and therefore there was no right to cross-examination. It appears from the record of the trial that counsel for the respondent submitted that there was a defence raised and the onus was on the appellant to call evidence to prove its case. It was submitted that if no evidence is called by the plaintiff the respondent cannot be subjected to cross-examination. Miss Weigall then responded by offering no evidence at the trial. Upon this indication, counsel for the respondent then moved the court for the writ of summons to be dismissed. The trial judge upon the application dismissed the summons.

The appellant has appealed against the ruling on certain questions of law. The substantive ground is "that the learned judge erred in law in finding that the statement of claim and particulars of claim were not in evidence before the Court, in particular, that his Honour's finding was in contravention of s 333 of the Income Tax Act 1959 (as amended) ".

The terms of s 333 are as follows:

" (1) In a taxation prosecution, an averment of the prosecutor or plaintiff contained in the information, complaint, declaration or claim is evidence of the matter averred.

(2) This section applies to any matter so averred although:

(a) evidence in support or rebuttal of the matter averred or of any other matter is given; or

(b) the matter averred is a mixed question of law and fact, but in that case the averment is evidence of the fact only.

(3) Any evidence given in support or rebuttal of a matter so averred shall be considered on its merits, and the credibility and probative value of that evidence shall be neither increased nor diminished by reason of this section.

(4) This section does not apply to:

(a) an averment of the intent of the defendant; or

(b) proceedings for an indictable offence or an offence directly punishable by imprisonment.

(5) This section does not lessen or affect any onus of proof otherwise falling on the defendant."

This provision was not brought to the attention of the trial judge. I should point out that it is the duty of all counsel to bring all relevant law to the attention of the judge. Miss Weigall, who practises only in matters of tax, should have brought these provisions to the attention of the trial judge. I am sure that if the trial judge's attention was drawn to this provision, he may well have come to a different ruling.

Under s 327 of the Income Tax Act 1959 a prosecution may be commenced, prosecuted and proceeded with in any number of ways set out under this provision. This deals with questions of practice and procedure. No question was raised at the trial or on appeal as to the validity of s 327. I therefore express no view on this issue. I have proceeded on the basis that it is valid. It is not clear from the record how the trial judge proceeded in this matter. But it would appear from the nature of submissions made by counsel for the respondent — and which were accepted by the trial judge — that he appeared to have applied the practice and procedure of the National Court in civil cases. Counsel for the respondent submitted that as the appellant called no evidence at the trial, he moved the court to enter judgment for the defendant. This would appear to be in accordance with O 10, r 14 of the National Court Rules. In such a trial, the evidence may be led either orally or by affidavit. However, in matters of taxation proseution such as the present case, s 333 (1) is applicable.

It must be emphasised at this point that what the trial judge decided was a preliminary evidentiary matter, that is, there is no evidence to support the plaintiff's claim.

The trial judge did not decide any of the following issues:

1. What is the nature of a prosecution under the Income Tax Act? For the purposes of determining the preliminary issue as to whether there is any evidence, it is not necessary to decide the nature of a taxation prosecution. The nature of proceedings is relevant to the issue of whether the respondent is guilty of the offence and all other matters related to it. The trial judge had not reached this stage in...