Naseeb v Commissioner of Inland Revenue

[2019] NZHC 3382

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-394

[2019] NZHC 3382

BETWEEN

MOHAMMED NASEEB and REHANA ALI

Appellants

AND

COMMISSIONER OF INLAND REVENUE

Respondent

Hearing:	16 December 2019
Appearances:	A Rasheed for the Appellants M Regan for the Respondent
Judgment:	18 December 2019

JUDGMENT OF GORDON J

This judgment was delivered by me on 18 December 2019 at 12 noon

Registrar/Deputy Registrar Date:

Solicitors:           Crown Solicitor, Manukau

A Rasheed, Auckland

NASEEB v COMMISSIONER OF INLAND REVENUE [2019] NZHC 3382 [18 December 2019]

Introduction

[1]    On 21 February 2017, charges were filed in the Manukau District Court against the appellants, Mohammed Naseeb and Rehana Ali. Each was charged with 69 offences under the Tax Administration Act 1994 for alleged offending in the tax periods from 2010 to 2015. Thirty eight of the charges are pursuant to s 143B(2) and allege evading or attempting to evade the assessment or payment of taxes (for themselves or for another person), and 31 charges are pursuant to ss 143A(1)(d) and s 148, alleging aiding and abetting a company and failing to account for PAYE.

[2]    On 3 May 2017, Mr Naseeb and Ms Ali, through their then counsel, entered not guilty pleas to all charges and elected a Judge-alone trial. On 9 October 2018, the appellants, now represented by new counsel, Mr Rasheed, sought leave to change their election of a trial by Judge-alone to trial by jury, pursuant to s 51 of the Criminal Procedure Act 2011. The application was opposed. On 1 August 2019, Judge McIlraith refused the application.1

[3]    The appellants seek leave to appeal the District Court Judge’s decision on the basis that:

(a)First, the Judge erred in finding that the appellants’ change of counsel and subsequent provision of expert advice did not, individually or in combination, constitute a change in circumstances;

(b)Secondly, the Judge erred in ruling that even if he had found a change in circumstance, it would not reasonably have affected the appellants’ decision of whether to elect trial by jury; and

(c)Thirdly, the Judge erred in refusing to exercise his discretion to grant the appellants’ application and not considering factors such as the appellants’ fundamental right to a jury trial.

1      Commissioner of Inland Revenue v Naseeb [2019] NZDC 14889.

Factual background

[4]I repeat the summary of facts as set out in the District Court decision:2

[1]        Mr Naseeb and Ms Ali have each been charged with 69 offences under the Tax Administration Act 1994. 38 are pursuant to s 143B(2) alleging evading or attempting to evade the assessment or payment of taxes (for themselves or for another person) and 31 are pursuant to ss 143A(1)(d) and 148 of the Act alleging aiding and abetting of Supreme Construction Civil and Drainage Works Company Limited [of which Mr Naseeb was the sole shareholder/director] and failing to account for PAYE.

[2]        The alleged offending relates to tax periods between 2010 and 2015. The essential allegation is that the defendants knowingly failed to provide their tax agent with their personal bank accounts, in which significant amounts of income was being deposited, and also provided the tax agent with false expense claims, causing the returns prepared by the agent to be false and thereby evading tax assessment and/or payment. For other tax periods, it is alleged that the defendants simply failed to file any tax returns at all to evade the assessment and/or payment of corresponding taxes and, in relation to Supreme, failed to account for PAYE.

Procedural background

[5]For completeness, I set out the procedural background:

(a)21 February 2017: The prosecution is commenced by filing of charges.

(b)18 April 2017: Full disclosure is provided to the appellants’ then counsel, Mr Kennedy.

(c)3  May  2017:  The  appellants  appear   in   court   represented   by Mr Kennedy and enter not guilty pleas through counsel to all charges. An election of Judge-alone trial is noted on the charging documents.

(d)11 July 2017: At a case review hearing, Mr Kennedy seeks to withdraw. Mr Broad appears as new counsel for Mr Naseeb. Ms Ali is represented by a duty solicitor, and she advises the court that she is applying to legal aid to obtain her own counsel.

(e)21 July 2017: Mr O’Brien advises he is now acting for Mr Naseeb.

2      Commissioner of Inland Revenue v Naseeb, above n 1.

(f)1 August 2017: Mr Kennedy is re-instructed for both appellants.

(g)10 August 2017: Mr Kennedy files a memorandum with the court confirming that he is acting for both appellants and seeks an adjournment of the case review hearing scheduled for 11 August 2017. A new case review date is set for 5 September 2017. The case review is subsequently adjourned until 25 October 2017 to enable Mr Kennedy to review documentation and disclosure.

(h)25 October 2017:  At  the  case  review,  the  matter  is  adjourned  to 5 December 2017 at the appellant’s request.

(i)5 December 2017: An unrelated issue is addressed.

(j)13 December 2017: The proceeding is adjourned to a further case review hearing scheduled for 26 April 2018.

(k)23 April 2018: Mr Rasheed, current counsel for the appellants, files a memorandum with the court advising that he is now instructed by the appellants and requesting an adjournment of the case review hearing.

(l)26 April 2018: The case review takes place. Mr Rasheed indicates that further time is sought to allow forensic analysis to be undertaken by an expert retained by the appellants with the hope of seeking resolution. The court is advised that the appellants are not denying the charges but are disputing quantum. An adjournment is granted to a further case review hearing on 20 June 2018. The appellants are advised that if no resolution occurs by the next hearing, a Judge-alone trial will be set.

(m)20 June 2018: The scheduled case review hearing is adjourned until   3 July 2018 to enable the prosecutor to consider a report provided by Deloitte to the appellants.

(n)3 July 2018: A further adjournment of the case review is sought by the appellants to enable Deloitte to continue to provide expert assistance to them. This is opposed by the prosecutor.

Judge McIlraith directs that the matter needs to proceed to trial. A five- day fixture is requested by the prosecutor. No dates are available at the time, so the matter is adjourned to a callover hearing on 17 July 2018.

The parties are subsequently advised by the registry of a fixture date commencing  26  November  2018.  This  date  is  not  suitable  to   Mr Rasheed. So, a teleconference is scheduled for 2 October 2018 to set a trial date.

(o)2 October 2018: The scheduled teleconference is unable to proceed due to technical difficulties.

(p)9 October 2018: Mr Rasheed files a memorandum advising of the appellants’ application to change their election.

(q)22 May 2019: The appellants’ application to change their election was heard by Judge McIlraith. The hearing was adjourned, part-heard, to enable Mr Rasheed to file further material, including affidavits from the appellants.

(r)1 August 2019: Having received the above material, Judge McIlraith issued his reserved decision declining the application.

District Court decision

[6]    The District Court Judge first set out the procedural history and relevant statutory provisions relating to the election of a trial by jury. Then, the Judge, following the approach in Hala v Police,3 continued as follows:4

3      Hala v Police [2015] NZHC 1665.

4      Commissioner of Inland Revenue v Naseeb, above n 1.

Change in circumstances

[18] Step 1 requires an objective inquiry to determine whether, on the facts, there has been a change in circumstances. Mr Rasheed submits that there has been such a change in circumstances. In particular, he submits that until the defendants received proper and thorough advice as to their situation and, in particular, received a draft report from Deloitte, they were not able to understand the nature and extent of the allegations made by the Commissioner. Further, they were not in a position to challenge both the allegations made against them and the amount and type of tax alleged to have been evaded.

…

[20]   The defendants have expanded upon those submitted circumstances   in affidavits of Ms Ali and Mr Naseeb dated 22 May 2019. In those affidavits the defendants also set out their dissatisfaction with their earlier representation. In particular, they are critical of the advice provided to them by Mr Kennedy [their former counsel] and assert a lack of understanding at the time of an election for Judge alone trial being made on 3 May 2017.

…

[23] [The Commissioner] submitted that there is nothing particularly complex about this case … He notes that the quantum of tax is irrelevant for proving the charges and that what is primarily at issue in this case is whether the defendants [breached the relevant provisions of the Tax Administration Act 1994] … He submitted that the focus [of Mr Rasheed’s submissions] had been on the quantum of tax and that while that can be disputed, that is a matter for sentencing should the defendants be found guilty.

…

[26]      I cannot accept Mr Rasheed’s proposition. I consider that Mr Rasheed’s submissions overlook the key point made by [the Commissioner] namely what is primarily in issue in this case. … It is clear from the affidavits provided that there was sufficient information available to Mr Kennedy and sufficient discussions with the defendants to enable an informed decision to have been made at that change. There has not been a change of circumstances.

Change of circumstances reasonably affecting decision on election

[27]      Given my conclusion with respect to the first step it is not necessary for me to determine this matter. However, had I needed to do so, I would not have  accepted  that  the  receipt  of  the  Deloitte  report  combined  with   Mr Rasheed’s more thorough advice, reasonabl[y] affected the decision on election. … I accept [the Commissioner’s] submission that there has been no explanation of how the Deloitte report creates a proximate link to the election made. That conclusion is easily reached when one focuses upon the primary issues at trial.

…

[Exercise of discretion]

[29] The third step, exercise of discretion, which is reached only if steps 1 and 2 were satisfied, would have required me to consider matters of delay, cost and proportionality as discretionary factors to be weighed. … I would not have exercised the discretion to permit a change of election. …

[7]    Accordingly, the Judge refused re-election of a trial by jury and concluded that a “Judge alone trial needs to be set as a matter of urgency”.5

The law

Election of trial by jury

[8]    Section 50 of the Criminal Procedure Act 2011 (CPA) provides, “A defendant who is charged with a category 3 offence, and who pleads not guilty to that offence, may elect to be tried by a jury.” Section 51 of the CPA then provides:

51 Timing of election

(1)An election under section 50 must be made at the time of entering a guilty plea, unless the defendant obtains the leave of the court under subsection (2).

(2)The court may grant leave to make an election at a later time, but only if the court is satisfied that there has been a change in circumstances that might reasonably affect the defendant’s decision whether to elect a trial by jury.

(3)The court must not grant leave under subsection (2) after a Judge- alone trial has commenced.

[9]Moore J, in Hala v Police, expressed the approach to subs (2) in this way:6

(a)the Court must first satisfy itself there has been a change in circumstances (Step 1);

(b)it must consider whether that change in circumstances might reasonably affect the defendant’s decision to elect trial by  jury  (Step 2); and

(c)if Steps 1 and 2 are met, it must consider whether to exercise its discretion to grant leave (Step 3).

5 At [29].

6      Hala v Police, above n 3, at [29].

The approach on appeal

[10]   In Anderson v R, the Court of Appeal held that the High Court and Court of Appeal have jurisdiction, under s 296 of the CPA, to hear an appeal in relation to decisions not to grant leave to change an election.7

[11]Section 296 provides as follows:

296     Right of appeal

(1)This section applies if a person has been charged with an offence.

(2)The prosecutor or the defendant may, with the leave of the first appeal court, appeal under this subpart to that court on a question of law against a ruling by the trial court.

(3)The question of law in a first appeal under this subpart might arise—

(a)in proceedings that relate to or follow the determination of the charge; or

(b)in the determination of the charge (including, without limitation, a conviction, an acquittal, the dismissal of the charge under section 147, or a stay of prosecution).

…

[12]   The requirement in subs (3)(a) that the ruling “relate to … the determination of a charge” means there must be a sufficiently close connection between the proceedings in issue (here, the election of trial by jury) and the determination, albeit not necessarily a temporal connection.8 A decision refusing to grant leave to change an election falls within subs (3)(a) as the decision as to whether a trial is to be heard by a judge or a jury is closely linked to a charge’s determination.9

[13]   “Questions of law” in the context of s 296(2) must raise one or more of the three standard errors classified by modern authorities as creating a question of law:10

(a)a misdirection of law apparent in the decision (what Fisher J called “a conventional legal question on unchallenged facts”);11

7      Anderson v R [2015] NZCA 518, [2016] 2 NZLR 321 at [58].

8      At [41]–[42].

9      See Simon France (ed) Adams on Criminal Law — Procedure (online looseleaf ed, Thomson Reuters) at [CPA296.02(3)].

10     Brown v R [2015] NZCA 325 at [16].

11     Auckland City Council v Wotherspoon [1990] 1 NZLR 76 (HC) at 86.

(b)oversight of a relevant matter, or consideration of an irrelevant matter;12 or

(c)a factual finding unsupported by any evidence, or an omission to draw an inference of fact which is the only one reasonably possible on the evidence.13

Discussion

Step 1 — Change of circumstances?

[14]   The change in circumstance must be fundamental, that is to alter the nature of the case to be tried. A mere change of heart or legal strategy, on its own, will not constitute a change of circumstances.14

[15]   It is for the defendant (here, the appellants) to show that something material has changed since the election was made and that the change is proximately linked to the election of trial by jury.15 Notwithstanding this, the language of s 51(2) is that the court must be “satisfied” — the court must evaluate all relevant matters and “come to its own objective view” as to whether or not there is a change in circumstances.16

Change of counsel (failure to advise of right to elect jury trial?)

[16]   Mr Rasheed submits that the Judge “erred in finding that change in counsel was not a change in circumstances”. In particular:

It is submitted that change in counsel and the substantive change in the nature of advice received by the appellants from new counsel, which inter alia resulted in an expert report, were ample grounds for a finding that the change in circumstances requirement had been satisfied.

[17]   The focus of the submissions in the District Court was whether, in the absence of the Deloitte report, the appellants were able to understand both the nature and extent of the allegations made by the Commissioner. In the District Court, Mr Rasheed submitted that it was only after receipt of advice from Deloitte that he was in a position

12     Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [25]; and Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2010] NZSC 138, [2012] 3 NZLR 153 at [51].

13     Bryson v Three Foot Six Ltd, above n 12, at [26]; and Vodafone New Zealand Ltd v Telecom New Zealand Ltd, above n 12, at [52].

14     Parfoot v R [2018] NZHC 2702 at [33].

15     See, generally, Hall v R [2017] NZHC 1489 at [49].

16 At [53].

to properly advise the appellants, and it was only at that point the appellants had become aware of the substantive issues for trial so as to be able to make an informed election.

[18]   That focus is reflected in the first ground of appeal which, as noted, alleges that the Judge erred in finding that the appellants’ change of counsel and subsequent provision of expert advise did not, individually or in combination, constitute a change in circumstances. However, in my view, there is the further issue of whether the appellants were advised of their right to elect trial by jury prior to making the election.

[19]   The Judge did not make a specific finding as to whether or not the appellants were advised of their right to elect trial by jury. That is understandable given the way in which the application was argued before him. However, both appellants refer to the election in their affidavits. Given the importance that the courts have placed on the fundamental right of a defendant to be advised of his or her right to elect trial by jury,17 I first turn to examine the evidence available to the District Court Judge on this issue.

[20]In her affidavit, Ms Ali says:

43.  Now that we understand how the charges work, we are very clear that we would like to go to a jury trial. I do not know by which time Mr Kennedy could, or should, have made this decision for us, but I do know that we never discussed it at any time. We never discussed issues like what will happen at trial or what we might need to do before going to trial or what we need to consider before deciding to go to jury trial.

[21]   I draw the inference from Ms Ali’s evidence that she and Mr Naseeb were told of their right to elect a jury trial, but her complaint is that there was a lack of information available to them (such as is now available in the Deloitte report), and therefore a lack of discussion with counsel on that issue, at the time of the election.

[22]Mr Naseeb however says:

53.… We were not spoken to about things like “plea”, “trial”, “jury”.

17   See New Zealand Bill of Rights Act 1990, s 24(e);  S (SC36/18) v R  [2018] NZSC 124, [2019] 1 NZLR 408 at [49]; and Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [19]–[20]. See also Parfoot v R, above n 14, at [23] and [26]; Niuia-Tofa v Police [2019] NZHC 1003 at [14]–[15]; R v N [2019] NZHC 2163 at [52]–[64]; Kumar v Police [2018] NZHC 3202 at [10]; and Smith v Police [2016] NZHC 2796.

54.        We were never asked about anything related to jury trial[s] so we don’t know how … the lawyer could have decided that without asking or explaining. When we were explained by our current lawyer the differences between judge and jury trial it was very clear to us that it is important to have a group of people from the public who may have understanding and experience of what we were going through during different times. We had no such discussion with our previous lawyer.

[23]   Mr Naseeb appears to say that the decision on whether to elect trial by jury was made by Mr Kennedy and that they were not told about a “jury”.

[24]   Mr Naseeb and Ms Ali signed a waiver of privilege in relation to communications with Mr Kennedy. There was no waiver of privilege in relation to communications with Mr Broad or Mr O’Brien. There was disagreement between counsel as to when the advice that privilege had been waived was made known to the prosecution. At the latest, it was made known by 14 May 2019. On that date, Mr Rasheed responded, by email, to a query from the prosecutor the previous day and advised that there had been a waiver of privilege (in relation to Mr Kennedy). A copy of the signed waiver was not attached to Mr Rasheed’s email and the prosecutor did not ask for a copy.

[25]   It appears that the prosecutor made efforts to speak to Mr Kennedy, finally doing so on 20 May 2019.

[26]   In his District Court submissions of 26 April 2019, Mr Rasheed stated that he had provided Mr Kennedy with a full waiver of privilege from the defendants requesting  release  of  all  information  pertaining   to   instructions   and   advice. Mr Rasheed’s submissions record that Mr Kennedy responded that he did not have any material to provide to counsel.

[27]   The prosecutor, in his District Court submissions of 21 May 2019, referred to the difficulty in contacting Mr Kennedy and that, in those circumstances, he had not been able to obtain any meaningful response from Mr Kennedy. The prosecutor went on to say in his submissions that, if the Court were to find, upon the new material (in and annexed to the appellants’ affidavits), that the application might succeed, an adjournment was sought to allow time for Mr Kennedy to provide a response to those affidavits.

[28]   The prosecutor’s submissions then focused on whether the appellants’ communications with Mr Kennedy, as evidenced by the annexures to Ms Ali’s affidavit, demonstrated that there had been substantial analysis of the bank statements (during the period when Mr Kennedy was acting) relied on by the prosecution. In other words, as already noted, the primary focus was on whether the Deloitte report was a change in circumstances.

[29]   Mr Rasheed filed further submissions in reply dated 10 June 2019. This Court was told that, by consent, there was no further hearing of the matter. It was determined by the Judge on the basis of the written submissions and affidavits.

[30]   In the absence of any affidavits or viva voce evidence from prior counsel and of any cross-examination of the appellants, the evidential basis that the Judge was left with were the two affidavits from the two appellants.

[31]   I accept that Mr Rasheed’s affidavit might be read so as to draw the inference that he and Ms Ali were not told at all of the right to elect trial by jury. However, Ms Ali’s affidavit is framed differently. Her evidence is effectively that they were not able to make a meaningful election in the absence of the kind of information that she and Mr Naseeb now have in their possession. She does not say that they were not told at all about the right to elect trial by jury. The inference is that they were told. The complaint is that they (the appellants) did not have all the necessary information to make an informed election at the time.

[32]   Accordingly, although the District Court Judge did not make an explicit finding that Mr Naseeb and Ms Ali were told of the right to elect trial by jury, I do not consider there was an error here. Having regard to what Ms Ali said, I do not consider the Judge could have been satisfied (as required under s 51(2) of the CPA) that the appellants were not told of the right to elect trial by jury. The Judge therefore focused, correctly in my view, on whether there had been a change in circumstance as a result of change of counsel and the provision of the Deloitte report.

[33]   For completeness, I note the respondent’s submission that, when pleas were entered, Mr Kennedy verbally elected Judge-alone trial (despite not needing to specify

this as a Judge-alone trial is the default position). Entry of those pleas and specification of the election occurred in the presence of both appellants. Mr Regan, for the respondent, submits that it would have been highly unlikely for Mr Kennedy to have specified a Judge-alone trial without having first discussed this with the appellants. It is said that the Commissioner made the same submission at first instance.

[34]   However, it is unclear to me  on  the  evidence  available  whether  or  not  Mr Kennedy made a verbal election. All that is available to this Court is a copy of an entry made on the District Court file for 3 May 2017, which includes “NG. JAT”. In other words, it is not clear whether this is simply a notation of the Judge of the default position of a judge alone trial. I therefore put that to one side.

[35]   The important point is that there was insufficient evidence available to satisfy the Judge that the appellants were not advised of their right to elect trial by jury (viewing that issue as part of the change of counsel ground).

Provision of expert advice (Deloitte report)

[36]   Next, I turn to the primary focus of Mr Rasheed’s submissions, namely that receipt of the draft expert report prepared by Deloitte resulted in identification of “major errors in the [Commissioner’s] analysis” and that this “helped focus areas of challenge for trial” and highlighted the merits of a jury trial.

[37]   Mr Rasheed further submits that the case involves “issues commonly considered jury issues — whether the alleged act occurred and the associated issues of credibility”.18 The appellants will need to explain tax discrepancies, and that will involve issues of credibility. Mr Rasheed submits that the Deloitte report establishes the complexity of the allegations. And, he says, it is unreasonable to expect a fully informed election to have been made prior to receiving the report.

18     Relying on Niuia-Tofa v Police, above n 17, at [16] and [29].

[38]   The Judge acknowledged similar submissions raised by Mr Rasheed in the District Court.19 However, he concluded that he “cannot accept Mr Rasheed’s proposition”.20 The Judge noted that the primary issue in the case was whether or not the offences are made out, not the quantum (which is the focus of the Deloitte report).21 I set out the relevant paragraph of the Judge’s decision in full:

[26]   I   cannot   accept   Mr   Rasheed’s   proposition.    I   consider   that Mr Rasheed’s submissions overlook the key point made by Mr Broczek [for the Commissioner] namely what is primarily in issue in this case. Mr Rasheed has submitted that given the complexity of the factual circumstances it is only reasonable that the defendants have the right to have the allegations determined by a jury. That assessment could undoubtedly have been made in May 2017. It is clear from the affidavits provided that there was sufficient information available to Mr Kennedy and sufficient discussions with the defendants to enable an informed decision to have been made at that stage. There has not been a change of circumstances.

[39]   The Judge noted the Commissioner’s submissions that at the time the not guilty pleas (and election of Judge-alone trial) was entered, Mr Kennedy had “received full disclosure and had a chance to review it and take instructions”;22 that there was nothing particularly complex about this case and that quantum did not matter in proving the charges;23 and that the contents of the Deloitte report did not therefore constitute a change of circumstance,24 noting Moore J’s observation in Hala v Police that “Parliament clearly envisaged full disclosure was not a necessary prerequisite to a defendant making an election”.25

[40]   In reaching that conclusion, the Judge did not misdirect himself on the law, overlook any relevant matter or draw a factual finding unsupported by evidence. The alleged change of circumstance was not fundamental. Accordingly, there is no error creating a question of law.

19     Commissioner of Inland Revenue v Naseeb, above n 1, at [25].

20 At [26].

21     At [23] and [26].

22 At [22].

23 At [23].

24 At [24].

25     Hala v Police, above n 3, at [34] as cited in Commissioner of Inland Revenue v Naseeb, above n 1, at [24].

[41]   For those reasons, in my view, there is no error of law. Given my finding, it is unnecessary for me to consider steps 2 and 3. However, as counsel made submissions on those steps, I will address them briefly.

Step 2 — Reasonably affect decision of election?

[42]   As with step 1, Mr Rasheed’s submissions on step 2 focus primarily on the subsequent provision of expert advice. The two changes of circumstances submitted appear to converge under this second step: the appellants changed counsel; and this led to a significant difference in assessment and direction of the matter, including engagement of experts, namely Deloitte.

[43]   Mr Rasheed says the “report was not mere[ly] a supplement, a luxury … but a necessary pre-requisite to be able to make any sense of the basis of the prosecution”. He says the Deloitte report goes to the nature of the charges. He submits:

5.7. Whereas there can be a tendency in such cases to simplify the prosecution to simply “whether the tax was paid or not”, there are many issues which go to the potential likelihood of the evasion being committed with the requisite knowledge and intent, including the issue of quantum: lesser quantum charges are clearly able to be more readily explained as potentially unintentional than those carrying extremely high amounts of unpaid tax, for example. To this end, the report was crucial in providing and clarifying avenues for which transactions are important and relevant to focus in on for the issue of knowledge.

[44]   However, in my view, again, Mr Rasheed has failed to point to any discernible error creating a question of law. The Judge considered the potential impact of the Deloitte report on determining the primary issues at trial, and thereby the impact that the report might have had on the election decision. Ultimately, the Judge accepted the Commissioner’s submission that “there is nothing particularly complex about this case” and that “the quantum of tax is irrelevant for proving the charges”.26

[45]   As to the Deloitte assessment of quantum, the figure as assessed, is still substantial (at least $82,529.74), and the report further says “the actual tax shortfall may be higher than this”. In those circumstances, I do not consider the Judge was in

26     Commissioner of Inland Revenue v Naseeb, above n 1, at [23].

error when he said that the quantum is irrelevant for proving the charges, and thus that the receipt of the report would not have reasonably affected the appellants’ decision on whether or not to elect a trial by jury.

Step 3 — Exercise of discretion?

[46]   Mr Rasheed submits that the Judge erred in failing to consider relevant factors such as the appellants’ fundamental right to trial by jury. Indeed, the Judge’s reasoning on step 3 was brief. However, that is unsurprising given that the Judge was not satisfied that there was a change of circumstance (step 1), making his step 3 analysis unnecessary in the first place. That, together with the fact that I similarly have found that there was no error at step 1, is sufficient to dispose of this point.

Result

[47]The application for leave is granted but the appeal is dismissed.

Gordon J