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Part IVC tax appeals – Re-opening to adduce witness’ prior conviction as credibility evidence

Courtney Ensor recently appeared successfully for the Federal Commissioner of Taxation in Anglo American Investments Pty Ltd (Trustee) v Commissioner of Taxation [2021] FCA 974 and, led by Kristina Stern SC, on the taxpayers’ subsequent application for leave to appeal from that decision, in Anglo American Investments Pty Ltd v Commissioner of Taxation [2021] FCA 1253.

Three corporate entities brought tax appeals under Part IVC of the Taxation Administration Act 1953 (Cth), in which they each relied principally on the evidence of accountant Vanda Gould.  Mr Gould’s credit is central to the determination of each of the proceedings.  The appeals were reserved for judgment in 2019 and 2020.

In 2019, Mr Gould was convicted of attempting to pervert the course of justice contrary to s 43(1) of the Crimes Act 1914 (Cth), in the context of separate Part IVC tax appeals brought by other companies which Justice Perram held were controlled by Mr Gould: Hua Wang Bank Berhad v Commissioner of Taxation [2014] FCA 1392.

In 2021, Mr Gould was refused leave to appeal against his conviction: Gould v R; R v Gould [2021] NSWCCA 92.  Ms Ensor for the Commissioner then, in [2021] FCA 974, obtained leave to re-open the three proceedings to recall Mr Gould for further cross-examination as to his conviction pursuant to s 103 of the Evidence Act 1995 (Cth), relying on evidence of the conviction solely as credibility evidence within the meaning of s 101A of the Evidence Act.  Justice Logan found that the fact of conviction, not just of an offence carrying with it an element of dishonesty, but also one associated with an intentional interference with an exercise of Commonwealth judicial power, could, rationally, affect an assessment of the witness’ credibility.  In doing so, Justice Logan rejected the taxpayers’ contention that the proposed use was forbidden by s 91 of the Evidence Act unless an exception in s 92 applied.

In [2021] FCA 1253, Justice McKerracher refused the taxpayers’ application for leave to appeal, finding no error in the exercise of the discretion to re-open having regard to the principles of House v The King (1936) 55 CLR 499.  In considering s 91, Justice McKerracher held that the bare fact of a criminal conviction, as evidenced by certificates under s 178 of the Evidence Act, is not itself a fact that was in issue in the prior criminal proceedings.

Anglo American Investments Pty Ltd (Trustee) v Commissioner of Taxation [2021] FCA 974 can be found here, and Anglo American Investments Pty Ltd v Commissioner of Taxation [2021] FCA 1253 can be found here.

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