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Wednesday, 2 November 1910

Senator MILLEN (New South Wales) . - I can quite sympathize with the stress with which my honorable friends opposite are driven when they have to resort to the miserable contention that the Opposition are simply seeking to defend criminals. Senator Pearce, I venture to say, would be the last' to say privately, in the friendly intercourse of private life, what he has thought it fair to say by way of argument against his political opponents to-night. When the honorable senator was talking about the case that I brought before the Committee he referred to a Judge. Now, what has a Judge to do with this matter?

Absolutely nothing. The Judge has not to say a single word as to whether the accused is guilty or innocent. He simply has to accept the decision of the jury on that point. The honorable senator knows quite sufficient of our Courts of Justice to know that it is not the Judge but the jury who finds a person guilty on the evidence.

Senator Pearce - Has the honorable senator never heard a Judge say, " There is no evidence to go to the jury in this case " ?

Senator St Ledger - That is a matter of law, not of fact.

Senator MILLEN - Senator Pearce knows perfectly well that if the evidence disclosed that there had been a greater undervaluation than 25 per cent., the Judge could not possibly keep the case from the jury. My honorable friend has asked us to believe that a jury in a case of this kind, knowing the penalty attaching to an offence, would not do their duty. In other words, he stated that a jury, knowing the penalty imposed for the undervaluation of land, would wilfully fail to do their duty, and would bring in a verdict in favour of the taxpayer. I have a better opinion of the jurymen of this country than to believe that if the evidence was clear they would not bring in a verdict in accordance with it. I refuse to believe that a jury would be influenced and swayed by the severity of the penalty to find an accused person innocent when they believed him to be guilty.

Senator Rae - When did the Minister say that?

Senator MILLEN - The Minister said that the jury, " knowing the penalties under this clause, would be careful to give a just decision." What did that mean?

Senator Rae - It meant that a jury would have to have overwhelming evidence of fraud before they would convict an accused.

Senator MILLEN - They would not need to have evidence of fraud, but of undervaluation to the extent of 25 per cent. Now, either this clause means what it says, or it ought to be struck out of the Bill altogether.

Senator Pearce - It certainly means what it says.

Senator MILLEN - Here, then, is what it says -

Where the value stated in the return is less than 25 per centum or more than the value as found by the jury, the value shall be presumed, in the absence of evidence to the contrary, to have been understated with intent to defraud.

Senator Blakey - Is not that elastic enough ?

Senator MILLEN - If it were elastic the honorable senator would not be supporting it. The whole purpose is to throw upon the taxpayer the burden of proving his innocence. The Minister himself said that if there was any discrepancy between the values the defendant would have an opportunity of proving his innocence. I say that our laws ought to proceed on the assumption that the Crown has an opportunity of proving the guilt of the accused, and that, if that guilt is not proved, conviction ought not to follow.

Senator Mcdougall - The Bill gives him a second chance.

Senator MILLEN - I have no time for a man who interjects in that manner. The man ought never to have even one chance of establishing his innocence. The obligation ought to be upon the Crown to prove his guilt.

Senator Lynch - How would the jury come to the conclusion that the valuation was 25 per cent, less than it ought to be?

Senator MILLEN - On the evidence.

Senator Lynch - That shows that the Commissioner will have to take evidence.

Senator MILLEN - Yes; but the point is that, the evidence having been given, and the jury saying " We find that the value of thi> land is 25 per cent, more than the accused returned it at," conviction will follow.

Senator Lynch - There is no presumption of guilt there.

Senator MILLEN - But the clause itself says that where the value stated is less by 25 per cent, or more than the value as found by the jury, intent to defraud is to be presumed. Let us assume that a man returns his land as being worth £100, and that the jury concludes that it is worth ^125. The moment that is done this follows - the value shall be presumed, in the absence of evidence to the contrary, to have been understated with intent to defraud.

Senator Lynch - " In the absence of evidence to the contrary."

Senator MILLEN - That is the whole point - that the man, having returned his land as being worth 25 per cent, less than the jury have found it to be. he is presumed to have returned that value with intent to defraud.

Senator Pearce - Unless there is evidence to the contrary.

Senator MILLEN - My complaint is that, the undervaluation having been proved, the obligation is thrown upon the land-owner of proving his innocence.

Senator McGregor - Of proving that the undervaluation was not with intent to defraud.

Senator MILLEN - Exactly. That is the whole point.

Senator Lynch - In the first instance, the case has to be made out before the jury.

Senator MILLEN - Exactly. I do not care how much you establish that the valuations have differed. The point is that the difference having been proved, the intent to defraud is presumed.

Senator McGregor - The land-owner has an opportunity of proving that he did not undervalue with intent to defraud.

Senator MILLEN - If it were done with intent to defraud, it should be for the Crown to prove the fraud. We should not throw upon the taxpayer the obligation to prove his innocence.

Senator McGregor - The Crown will prove the fraud.

Senator MILLEN - If they are to do so, I have nothing more to say. The only amendment of this clause that I seek is to throw upon the Crown the responsibility of proving a man charged with fraud guilty of the offence, a responsibility which is accepted by the Crown in the case of every other person charged with an offence. Why should a person accused of an offence under this Bill be placed in a class apart from all. other accused persons? Why not put him in the same class as every other person against whom the Crown launches a charge, and who is entitled to an acquittal if the Crown fails to sheet home to him the charge launched against him?

Senator McGregor - The Crown proves the undervaluation, and the land-owner should then, in justice, prove that it was not made with intent to defraud.

Senator MILLEN - Are honorable senators opposite prepared to say that if one man differs in the valuation of a property from another to the extent of 25 per cent., that difference should be regarded as sufficient to justify the presumption of an intent to defraud?

Senator Pearce - It is not.

Senator MILLEN --Under this Bill it is, because the responsibility of proving his innocence of any intent to defraud is thrown upon the man who has made the lower valuation.

Senator Lynch - He is given a chance of doing so.

Senator MILLEN - What a great concession to give him ! Probably the honorable senator would like to see him sent to gaol without being given such a chance. Would any member of the Committee hold a man guilty of fraud because his valuation of land was 25 per cent, less than the valuation of some one else? I am sure that the majority of honorable senators would hesitate to do so.

Senator Long - A property might be undervalued 50 per cent., and any intent to defraud be entirely absent.

Senator MILLEN - Just so; but if a taxpayer's valuation of his property, under this Bill, exceeds 25 per cent., he is charged with an attempt to defraud the revenue, and the onus of proving his innocence of such a charge is thrown upon him.

Senator McGregor - The honorable senator has stated the case correctly at last.

Senator MILLEN - I have been saying that all the evening. The mere fact that his valuation is 25 per cent, less than the valuation of the jury, under this clause, leaves the jury and the Judge no option but to place the taxpayer in the position of having to answer a charge of fraud, and to prove his innocence. 1 do not mind his being called upon to answer a charge of fraud, but he should have to answer it as a ,person accused of any other offence would. He should be placed in the dock, the charge should be read over to him, and the Crown should accept the responsibility of sheeting home the charge. The Government are not prepared to extend to a man who owns land in this country the treatment ordinarily extended even to criminals, tie is to be put in a special class, and told, " We do not undertake to prove your guilt. The obligation rests with you to prove your innocence."

Senator Long - The honorable senator is talking to the pavilion now.

Senator MILLEN - It is a gratification to me to have some one to talk to.

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