Ross v District Court at Auckland

JurisdictionNew Zealand
CourtHigh Court
JudgePeters J
Judgment Date13 Feb 2013
Neutral Citation[2013] NZHC 180
Docket NumberCIV-2012-404-3024

[2013] NZHC 180

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2012-404-3024

Under the Judicature Amendment Act 1972 and Part 7 of the High Court Rules

In the Matter of an application for Judicial Review

Between
Craig Reece Ross
Applicant
and
District Court at Auckland
First Respondent

and

The Attorney-General
Second Respondent
Appearances:

S M Kilian for Applicant

No appearance for First Respondent

A Boadita-Cormican for Second Respondent

Application for judicial review of a determination of the District Court declining an application for discharge under s347 Crimes Act 1961 (power to discharge accused) on charges under the Tax Administration Act 1994 (“TAA”) — informations laid against applicant under s147 TAA (Employees and officers — offences) — company was said to have committed offences under s143A(1)(d) TAA (application of amount of deduction or withholding of tax for purpose other than in payment to the Commissioner) — applicant said informations had not been laid within six months as required by s147 TAA — whether the effect of s150(4)(b) TAA (references to an offence against s147) meant that s147(1) TAA came within the operation of s150A(1) (information may be laid within 10 years) and the informations were therefore not out of time.

Held: Both parties were agreed that (broadly speaking) the effect of s150A(1) was to provide a 10 year period in which to lay an information in respect of an offence alleged to have been committed against the TAA. While one of the provisions excluded from the operation of s150A(1) was s147(1), s150(4)(b) was relevant and its effect was to exclude s147(1) only to the extent that the principal offence that the body corporate was alleged to have committed was an offence pursuant to s16 to s19, s35 or s40 TAA.

The submissions advanced in support of the application for discharge were incorrect, to the extent that those submissions were based on the informations being laid out of time. For that reason, there was no useful purpose to be served by quashing the decision and asking the Court to reconsider the matter.

Application dismissed.

JUDGMENT OF Peters J

Introduction
1

This is an application for judicial review of a decision of Judge Aitken in the District Court at Auckland (“decision”), declining an application by the Applicant (“Mr Ross”) that he be discharged on various charges. The application was brought pursuant to s 347 Crimes Act 1961 (“Act”), and was made and declined on 30 April 2012 and 1 May 2012 respectively.

2

Counsel for Mr Ross submits that the decision is subject to review on the basis that the Judge erred in law. In particular, it is submitted that the Judge misdirected herself as to relevant statutory provisions and/or failed to take into account relevant considerations or took into account irrelevant considerations.

3

The First Respondent abides the decision of the Court. The Crown submits that the application for review should be dismissed, not for the reasons given by Judge Aitken but for another reason. The Crown submits that it would be pointless to remit the matter back to the Judge for reconsideration if I take the view that the Crown will succeed in opposing any fresh application for a discharge pursuant to s 347. I do take that view, for the reasons given below.

Background
4

Mr Ross was a director of three companies. The companies failed to meet obligations to the Commissioner of Inland Revenue (“Commissioner”) and, in particular, failed to pay sums due to the Commissioner under the Income Tax Act 2007.

5

On 26 July 2010 the Commissioner laid 42 informations against Mr Ross in the District Court at Waitakere, each alleging that he had committed an offence against s 148 Tax Administration Act 1994 (“TAA”). In particular, the Commissioner alleged that Mr Ross had offended by aiding and abetting another person, being one of the companies, to commit an offence against s 143A(1)(d) TAA. The relevant parts of ss 143A(1)(d) and 148 read as follows:

143A Knowledge offences

(1) A person commits an offence against this Act if the person—

(d) Knowingly applies or permits the application of the amount of a deduction or withholding of tax made or deemed made under a tax law for any purpose other than in payment to the Commissioner; or

148 Aiding or abetting

  • (1) A person who aids, abets, incites, or conspires with another person to commit an offence (the principal offence) against this Act also commits an offence against this Act.

  • (2) A person convicted of an offence of aiding, abetting, inciting, or conspiring under subsection (1) is liable for up to the same maximum fine or term of imprisonment, or both, that could apply to a person who commits the principal offence.

6

Mr Ross pleaded not guilty to all of the charges and elected trial by jury.

7

On 29 June 2011 the Crown filed indictments in the District Court at Auckland. In these indictments the Crown alleged that Mr Ross, in his capacity as an officer of each company, had breached s 147 TAA. The Crown abandoned any allegation of a breach of s 148(1). The Crown continued to allege that the principal offence that each body corporate had committed was against s 143A(1)(d) TAA.

8

Section 147(1) reads:

147 Employees and officers

(1) An employee, agent, or officer of a body corporate commits an offence against this Act if—

  • (a) The body corporate commits an offence against this Act (the principal offence); and

  • (b) The principal offence—

    • (i) Was caused by an act done or carried out by, or by an omission of, or through knowledge attributable to, the employee, agent, or officer; or

    • (ii) Is...

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2 cases
  • Ross v District Court at Auckland
    • New Zealand
    • High Court
    • 13 Febrero 2013
    ...HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2012-404-3024 [2013] NZHC 180 Hearing: UNDER the Judicature Amendment Act 1972 and Part 7 of the High Court Rules IN THE MATTER OF an application for Judicial Review BETWEEN CRAIG REECE ROSS Applicant AND DISTRICT COURT AT AUCKLAND First Respo......
  • Ross v District Court at Auckland
    • New Zealand
    • High Court
    • 4 Julio 2013
    ...no order as to costs. .................................................................. M Peters J 1 Ross v District Court at Auckland [2013] NZHC 180. ...

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