Nayacakalou v The Queen - [2012] NZCA 331

IN THE COURT OF APPEAL OF NEW ZEALAND

CA597/2011
[2012] NZCA 331

BETWEEN KELERA LUVU NAYACAKALOU
Appellant

AND THE QUEEN
Respondent

Hearing: 21 June 2012

Court: Randerson, Lang and Clifford JJ

Counsel: P J Davey for Appellant
J M Jelas for Respondent

Judgment: 27 July 2012 at 10 a.m.

JUDGMENT OF THE COURT

AThe appeal against conviction on four counts under ss 143A and 143B of the Tax Administration Act 1994 is allowed.
BThe convictions on those charges are quashed.
CNo retrial is ordered.

REASONS OF THE COURT

(Given by Lang J)

Mrs Nayacakalou was found guilty by a jury in the District Court on four charges alleging breaches of ss 143A and 143B of the Tax Administration Act 1994 (“the Act”). On 10 August 2011, Judge Connell sentenced Mrs Nayacakalou to nine months home detention on those charges.[1]
[1] R v Nayacakalou DC Hamilton CRI-2009-019-1128, 10 August 2011.
Mrs Nayacakalou appeals to this Court against conviction. She contends that the trial Judge failed to provide the jury with adequate directions regarding the essential elements of each of the charges on which the jury found her guilty. Separately, she contends a miscarriage of justice has occurred because of errors in the manner in which her trial counsel conducted her defence at trial.
For the reasons that follow, we uphold the appeal on the first ground. For that reason it is not necessary for us to deal with the alternative ground based on trial counsel error.

Background

At all material times, Mrs Nayacakalou’s husband operated a business as a forestry contractor. He did so initially using two companies, Forest Tech 2000 Ltd (“Forest Tech”) and Forestech Contractors Ltd (“FCL”). He later traded under the name “Forestech Waikato Contractors”, although as we outline later there is some confusion regarding that aspect of Mr Nayacakalou’s business affairs. Mrs Nayacakalou was a director of FCL, but was not an officer or employee of either of the other two entities.
The companies employed gangs of forestry workers, who were paid wages. Mr Nayacakalou was responsible for the day to day operation of the business in the field.
Initially Mrs Nayacakalou assisted her husband with the administration of the business. In June 2002, however, she accepted a position as an investigator employed by the Inland Revenue Department (“IRD”). By that stage she had obtained a Bachelor of Management Studies, majoring in Accountancy and was continuing her part-time studies towards a law degree. In or about November 2002, her manager issued a directive to the effect that IRD employees were no longer permitted to be involved in businesses owned or operated by their relatives. For that reason Mrs Nayacakalou resigned as a director of FCL.
The Crown contended at trial that Mrs Nayacakalou continued to be closely involved in the administration of her husband’s business after she resigned as a director of FCL in November 2002. This included writing cheques for business purposes, and allowing Forestech Waikato Contractors to use her personal bank account as its business…

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: [2012] NZCA 331
Decision Date: 27 July 2012

CaseChat Overview and Summary

In the appeal of Nayacakalou v The Queen, the Court of Appeal of New Zealand heard the case of Kelera Luvu Nayacakalou, who was appealing her conviction on four counts under sections 143A and 143B of the Tax Administration Act 1994. The Court, consisting of Randerson, Lang, and Clifford JJ, found that the appeal against conviction on four counts under sections 143A and 143B of the Tax Administration Act 1994 should be allowed, and the convictions were quashed. The court held that the trial Judge failed to provide the jury with adequate directions regarding the essential elements of each of the charges on which the jury found Nayacakalou guilty. The Court held that the jury was not asked to determine the essential factual elements of a charge laid under either section 147 or section 148 of the Act. The Court concluded that the problems in relation to the charges could not be cured through substitution of convictions under either of those sections. Therefore, the appeal was upheld on the first ground, and the convictions were quashed. The Court declined to order a retrial on Counts 1 and 2, taking into account several factors, including the manner in which the Crown chose to frame the charges, the primary offender in the case being Mr Nayacakalou, and the strain that Nayacakalou has been under due to the IRD investigation and/or serious charges for nearly five years.

Orders