Bracken v R - [2022] NZCA 237

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA299/2021
[2022] NZCA 237

BETWEEN	JOHN RICHARD BRACKEN Appellant
AND	THE QUEEN Respondent

Hearing:	5 May 2022
Court:	French, Venning and Moore JJ
Counsel:	Appellant in person with Mrs Bracken as McKenzie friend A M Simperingham as standby counsel C Ure for Respondent
Judgment:	10 June 2022 at 11.30 am

JUDGMENT OF THE COURT

A The appeal against conviction is dismissed.

B The appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Venning J)

Following a judge-alone trial in the High Court John Bracken was convicted of 39 charges of using a document to obtain a pecuniary advantage.[1] On 11 May 2021 Lang J sentenced Mr Bracken to eight years and six months’ imprisonment.[2]
[1]R v Bracken [2021] NZHC 609 [Reasons for verdict].
[2]R v Bracken [2021] NZHC 1032 [Sentencing notes].
Mr Bracken appeals his conviction and sentence.

Crown case

We take the background facts from the summary in the Judge’s sentencing notes:[3]
[3]Sentencing notes, above n 2.
[3]       At all times material to this proceeding you were the sole director of a company called Bracken Enterprises Limited (Bracken Enterprises). This company carried on two forms of business. First, it operated a sheep and beef dry stock farming business on land situated near Matawai, to the west of Gisborne. Secondly, it operated a business involving the sale and purchase of plywood and other timber products. It also exported goods of this type to customers in the Pacific Islands along with other products such as kitset houses, milk, honey and bottled water.
[4]       Bracken Enterprises initially filed GST returns every two months on what is known as a payments basis. This requires GST to be calculated in accordance with payments the registered person has made and received during the relevant period. In February 2016, Bracken Enterprises began accounting for GST on an invoice basis. This required it to account monthly for GST on transactions for which it had either invoiced debtors or been invoiced by creditors during the previous month.
[5]       You and your wife engaged the Gisborne accounting firm Bain & Sheppard Limited (Bain and Sheppard) to act as the tax agent for Bracken Enterprises. At the end of each month you or your wife would provide Bain and Sheppard with copies of bank statements and invoices that recorded the sales and purchases of product Bracken Enterprises had made during the previous month. Bain and Sheppard would then reconcile the company’s bank statements with the invoices to calculate whether Bracken Enterprises was required to pay GST or was entitled to a GST refund. Determination of that issue depended on whether the input tax Bracken Enterprises claimed for product that it purchased equalled or exceeded the output tax it was required to pay on taxable supplies made to its customers.
[6]       Each month during the period covered by the charges Bracken Enterprises received a refund. This occurred because it claimed to have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bracken v R

Details

AGLC: Bracken v R [2022] NZCA 237
Case: [2022] NZCA 237
Decision Date: 10 June 2022 at 11.30 am

CaseChat Overview and Summary

The Court of Appeal dismissed the appeal of John Richard Bracken against his conviction and sentence. Bracken was convicted of 39 charges of using a document to obtain a pecuniary advantage and sentenced to eight years and six months' imprisonment. The appeal raised several issues, including challenges to the jurisdiction of the Court and the validity of the process, as well as arguments regarding the admissibility of evidence and the conduct of the trial. The Court found these arguments to be without merit and dismissed the appeal against conviction and sentence. The evidence against Bracken was overwhelming, and the Court found that he could not have had a genuine belief that he was entitled to use the documents as he did to claim GST refunds. The sentence imposed by the trial Judge was appropriate and the Court found no error in the sentence or that it should be adjusted.

Orders