Ross v District Court at Auckland

• Jurisdiction: New Zealand
• Judge: Peters J
• Judgment Date: 13 February 2013
• Neutral Citation: [2013] NZHC 180
• Docket Number: CIV-2012-404-3024
• Court: High Court
• Date: 13 February 2013

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

[2013] NZHC 180

CIV-2012-404-3024

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

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.

Appearances:

S M Kilian for Applicant

No appearance for First Respondent

A Boadita-Cormican for Second Respondent

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 evasion committed by the employee, agent, or officer.

9 Mr Ross was committed to trial at the District Court at Auckland, with the trial expected to last three weeks and to commence on or about 30 April 2012. Judge Aitken was the presiding Judge.

10 At the commencement of the trial, and apparently without any prior notice to the Crown, counsel for Mr Ross made an application for discharge pursuant to s 347 of the Act. The application was advanced on the basis that every information for an offence against s 147 must be...