Commissioner Inland Revenue Department v O'Connor

[2012] NZHC 2189

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-63 [2012] NZHC 2189

BETWEEN  COMMISSIONER INLAND REVENUE DEPARTMENT

Informant

ANDPAUL WILLIAM O'CONNOR, BRENT JOHN GILCHRIST AND SCOTT CRAWFORD ANDERSON

Defendants

Hearing:         28 August 2012

Counsel:         D La Hood and M Ferrier for Informant

M Lennard for Defendant O'Connor

B Gilchrist (In person) (Attendance excused) J Bonifant for Defendant Anderson

Judgment:      29 August 2012

JUDGMENT OF MILLER J

[1]    The Crown applies under s 28J of the District Courts Act 1947 for transfer of these proceedings to the High Court.  The accused face a number of charges relating to tax evasion under the Tax Administration Act 1994.

[2]     The overriding principle is the interests of justice.  The onus lies on the Crown to show there should be a transfer.

[3]     These are serious charges of their kind spanning over a timeframe of 15 years. Although the maximum sentence is well below that for which cases are routinely tried in the District Court, it is noteworthy that the amount said to be involved far

exceeds that court’s civil jurisdiction.

COMMISSIONER INLAND REVENUE DEPARTMENT v O'CONNOR, GILCHRIST AND ANDERSON HC WN CRI-2012-485-63 [29 August 2012]

[4]    The trial will involve a large number of witnesses and exhibits and will be of significant length, approximately four weeks.   Given District Court caseloads at present, the case might not be tried there until the fourth quarter of 2013, or later.  A significantly earlier trial, mid-2013, is possible here.  If it were only the interests of the accused at stake this might not be a major consideration, since delay is evidently of little concern to them, but there is the additional difficulty that long causes such as this have a disproportionate impact on the capacity of the District Court to dispose of its other business.

[5]    A further consideration is that the case involves some novel points of law. Notably, only Dr O’Connor is said to be a principal; Mr Gilchrist is a tax advisor and Mr Anderson an accountant.  Of course this is not decisive, since the District Court regularly deals with tax litigation, but it is a factor in favour of transfer.  There will be a number of pre-trial rulings which may themselves be the subject of appeals.

[6]    In my opinion a transfer to this Court is sufficiently justified.  There will be an order accordingly.  The balance of this judgment deals with case management issues.

[7]    Disclosure of source documents is complete but the Crown is still briefing an accounting expert and inquiries are being made of several potential witnesses.

[8]    All three accused must appear at a callover in this Court on 1 October at 9am. That will give the Crown an opportunity to complete disclosure and allow all counsel to meet to discuss admissibility issues.  The accused will be arraigned at callover.

[9]    Pre-trial applications must be filed before the callover:

a)          From the Crown’s side, there is an application for Judge-alone trial (filed in the District Court, but it need not be re-filed), which will be opposed;

b)The  Crown  is  also  to  file  a  s  344A  application  relating  to documentary hearsay;

c)           The defence are to file any s 347 applications.

[10]  I anticipate that the callover will be held before Ronald Young J.

Miller J

Solicitors:

Luke Cunningham & Clere, Wellington for Informant
Gordon Stone, Wellington for Defendant O’Connor

Public Defender Southern, Wellington for Defendant Anderson