Burton v Police - [2013] NZHC 1389

THE IDENTITY OF THE CO-ACCUSED, AB, IN COUNTS 16 TO 21 IS SUPPRESSED.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2011-085-5660

[2013] NZHC 1869

THE QUEEN

v

PAUL WILLIAM O'CONNOR BRENT JOHN GILCHRIST SCOTT CRAWFORD ANDERSON

Hearing: 13 May - 5 July 2013

Counsel:

D La Hood, M Ferrier and A Instone/S Lukey for Crown M Lennard and G M Richards for P O

B J Gilchrist in Person
J C Bonifant and S A Pettett for Anderson

Judgment:

26 July 2013

Reissued:

7 February 2020

JUDGMENT OF SIMON FRANCE J

R v GILCHRIST & ORS [2013] NZHC 1869 [26 July 2013]

Table of Contents

Paragraph No.

Introduction  [1]
Overview of charges  [3]
Charges against Paul O’Connor  [3] The separate charges against Mr Gilchrist and Mr Anderson                 [21] Approach to judgment  [24]

Matters applying to a criminal trial [25]

Some preliminary conclusions [31]

First transaction: the Silent Partner charges [49]

Summary [49]

Discussion [50]

Restraints of trade [80]

Summary [80]

Discussion [82]

The Debenture [103]

Summary [103]

Discussion [104]

The ACTONZ investment [108]

Summary [108]

Discussion [111]

The sale of MSCL and relocation of personal assets [127]

Summary [127]

Discussion [128]

MST transactions – the intellectual property [136]

Summary [136]

Discussion [138]

MST transaction – GlobeNet invoices [153]

Summary [153]

Discussion [156]

Client of One invoices [209]

Summary [209]

Discussion [210]

Asset protection/liquidation of MSCL [219]

Summary [219]

Discussion [220]

Late filing of returns [256]

Summary [256]

Discussion [258]

Conclusions on transactions [266]

Overview of Dr O’Connor’s actions [268]

Specific charges [293]

Counts 2 to 7 and 9 to 13 [294]

Counts 14 and 15 [298]

Mr Gilchrist’s liability – counts 1D, 1E, 1F, 8D, 8E, 8F [299]

Dr O’Connor’s liability [326]

Summary
Dr Paul O’Connor Brent John Gilchrist
Scott Crawford Anderson

Introduction

[1] This judgment is the verdict on a tax evasion prosecution brought against Dr Paul O’Connor. Charged along with him as a party to his alleged overall offending is Mr Brent Gilchrist, a tax adviser. Mr Scott Anderson is charged as a party to one specific component of the alleged course of conduct, namely fictitious invoicing for tax deduction purposes.

[2] A second judgment is being issued at the same time in relation to charges faced by Messrs Gilchrist and Anderson, but not Dr O’Connor. Those charges were joined to this indictment for propensity reasons. However, it is preferable to issue a separate judgment because of a name suppression issue in relation to Dr O’Connor that cannot be resolved in time for the delivery of verdicts.

Overview of charges

Charges against Paul O’Connor

[3] Since 1990 Dr O’Connor has run, in conjunction with his de facto wife, a media clipping business, generically called Media Search. Over the relevant period the business traded through two entities – first, Media Search Corporation Ltd (MSCL), and then subsequently Media Search Trust (MST).

[4] Dr O’Connor is charged as a party to tax evasion, it being alleged that both trading entities, which he owned and controlled, have evaded…

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.

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Details

Case: [2013] NZHC 1389
Decision Date: 26 July 2013

CaseChat Overview and Summary

This case involved a tax evasion prosecution against Dr Paul O'Connor, a businessman, and his associates Mr Brent Gilchrist and Mr Scott Anderson. The Crown alleged that Dr O'Connor had engaged in a long-running course of conduct to evade the payment of tax through various means, including late filing of tax returns, fictitious invoicing, and asset protection strategies. The case was presented through the lens of three sets of acts: transactions during tax years ending 1993–1996, transactions during tax years ending 1997–2002, and transactions from tax years ending 2001–2005. The court found Dr O'Connor guilty of tax evasion in relation to counts 2 to 7, 8A, 9 to 13, and 14 and 15. However, he was acquitted on counts 1A, 1B, 1C, 8B, and 8C due to insufficient evidence or time limitations. Mr Gilchrist was acquitted on all counts, and Mr Anderson was found guilty on counts 14 and 15.

Orders