Nayacakalou v The Queen
[2012] NZCA 331
•27 July 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA597/2011 [2012] NZCA 331 |
| BETWEEN KELERA LUVU NAYACAKALOU |
| AND THE QUEEN |
| Hearing: 21 June 2012 |
| Court: Randerson, Lang and Clifford JJ |
| Counsel: P J Davey for Appellant |
| 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 account. Mrs Nayacakalou contended that she had ceased all involvement in her husband’s business after her resignation as a director of FCL.
Against that brief background we turn to consider the individual charges that Mrs Nayacakalou faced.
Count 1: Knowingly applying or permitting PAYE deductions to be applied for a purpose other than in payment to the Commissioner of Inland Revenue
In March 2002 Mr Nayacakalou was operating his business through FCL, having incorporated that company on 6 July 2000. As an employer, FCL was obliged to account to the Commissioner of Inland Revenue monthly for PAYE that it deducted from the wages it paid to its employees.[2] It was required to do so no later than the 20th of the month following the month in which deductions were made.[3]
[2] Income Tax Act 1994, s NC 15(1).
[3] Ibid, NC 15(1)(a).
FCL failed to account to the Commissioner for PAYE deducted during the month ending 31 March 2002. As a result, Count 1 of the indictment alleged that Mrs Nayacakalou knowingly applied or permitted PAYE deductions to be applied for a purpose other than in payment to the Commissioner.[4]
[4] In breach of s 143A(1)(d) of the Tax Administration Act 1994 (the Act).
The Crown case in respect of this charge proceeded on the premise that, as a director of FCL, Mrs Nayacakalou had a legal obligation to account to the Commissioner for FCL’s tax deductions. As counsel for the Crown conceded during the hearing in this Court, that premise was clearly incorrect. The legal obligation to account for the deductions rested squarely with the employer, FCL.[5] Mrs Nayacakalou did not assume the same obligation merely by virtue of her status as an officer of the company.
[5] Income Tax Act 1994, s NC 15(1); Tax Administration Act 1994, s 4A(1)(a).
Counsel for the Crown, Ms Jelas, had recognised this difficulty prior to the hearing. In her written submissions, she contended we should exercise this Court’s powers under s 335 of the Crimes Act 1961 to amend the indictment and to substitute convictions under s 147 or s 148 of the Act. Section 335 relevantly provides as follows:
335Variance and amendment
(1)If on the trial of an indictment there appears to be a variance between the proof and the charge in any count of the indictment either as filed or as amended, or as it would have been if amended in conformity with any such further particulars, the court before which the case is tried, or the Court of Appeal, may amend the indictment, or any count in it, so as to make it conformable with the proof.
(2)If the court is of opinion that the accused has not been misled or prejudiced in his defence by such variance it shall make the amendment.
…
It would only be appropriate for this Court to exercise its powers under s 335 if the jury’s factual findings established the essential elements of the substituted charges. The question trail that the Judge provided to the jury therefore needed to contain factual questions that, if answered in favour of the Crown, established liability on the part of Mrs Nayacakalou under ss 147 or 148 of the Act.
Sections 147 and 148 of the Act relevantly provide:
147Employees and officers
(1)An employee, agent, or officer of a body corporate commits an offence against this Act if—
(a)The body corporate commits an offence against this Act (the principal offence); and
(b)The principal offence—
(i) was caused by an act done or carried out by, or by an omission of, or through knowledge attributable to, the employee, agent, or officer; or
(ii) is evasion committed by the employee, agent, or officer.
(2)An employee, agent, or officer who does or carries out the act or omission, or has the knowledge or intent referred to in subsection (1), is liable on conviction for up to the same maximum fine or term of imprisonment, or both, that could apply to an individual, if an individual had committed the principal offence.
…
148Aiding or abetting
(1)A person who aids, abets, incites, or conspires with another person to commit an offence (the principal offence) against this Act also commits an offence against this Act.
(2)A person convicted of an offence of aiding, abetting, inciting, or conspiring under subsection (1) is liable for up to the same maximum fine or term of imprisonment, or both, that could apply to a person who commits the principal offence.
The question trail that the Judge provided to the jury in respect of Count 1 reflected the Crown’s approach to liability. It provided:
1.COUNT ONE – Against Ms Kelera Nayacakalou only
1.1Are you satisfied that, for the period ended 31 March 2002, PAYE tax was deducted (or deemed to have been deducted) from an employee or employees?
If YES, go to question 1.2.
If NO, find Ms Nayacakalou NOT GUILTY on this Count and go on to consider Count 2.
1.2Are you satisfied that the deduction referred to in question 1.1 was used for something other than payment to IRD?
If YES, go to question 1.3.
If NO, find Ms Nayacakalou NOT GUILTY on this Count and go on to consider Count 2.
1.3Are you satisfied that:
1.3.1Ms Nayacakalou had an obligation to pay the deduction to the IRD; and
If YES, go to question 1.3.2
If NO, find Ms Nayacakalou NOT GUILTY on this Count and go on to consider Count 2.
1.3.2Ms Nayacakalou knew of her obligation to pay the deduction to the IRD; and
If YES, go to question 1.3.3
If NO, find Ms Nayacakalou NOT GUILTY on this Count and go on to consider Count 2.
1.3.3Ms Nayacakalou knew that the deduction was not paid to the IRD by 20 April 2002:
If YES, find Ms Nayacakalou GUILTY on this Count and go on to consider Count 2.
If NO, find Ms Nayacakalou NOT GUILTY on this Count and go on to consider Count 2.
There appears to have been no dispute that FCL deducted PAYE from the wages of its employees during the period ended 31 March 2002. In any event, a deduction is deemed to have been made when the employer pays wages to an employee that are net of the amount the employer is required to deduct for PAYE.[6] The fact that FCL failed to account to the Commissioner for those deductions also meant the deductions were deemed to have been applied for a purpose other than in payment to the Commissioner.[7] Questions 1.1 and 1.2 may therefore not have been necessary.
[6] Tax Administration Act 1994, s 4A(2)(b).
[7] Ibid, s 4A(2)(c).
The Crown concedes that Question 1.3 proceeded on the erroneous premise that the jury was entitled to find that Mrs Nayacakalou had an obligation to pay the tax deductions to the Commissioner. This was a question of law rather than fact. In addition, it overlooks the fact that Mrs Nayacakalou was not the employer of the workers from whose wages PAYE was deducted. As a consequence, she was never under a legal obligation to account to the Commissioner for those deductions.
The fact that Mrs Nayacakalou was a director of the company during the period relevant to this charge meant that she was potentially liable under s 147 as an officer of a company that had failed to meet its obligations under the Act. Section 147(1)(b)(i) of the Act required the Crown to prove, however, that the company’s failure to pay the deductions was caused by an act or omission on the part of Mrs Nayacakalou. Similarly, in order to establish liability under s 148, the Crown would need to establish that Mrs Nayacakalou intentionally assisted or encouraged FCL when it failed to pay the deductions to the Commissioner. Neither of those essential elements was reflected in the remaining questions that the Judge left to the jury.
The Crown points out that Mrs Nayacakalou accepted when she was interviewed that she had assumed responsibility for the payment of tax deductions in March and April 2002. It therefore submits that the evidence established unequivocally that her omission caused the company to fail to pay the deductions to the Commissioner. For that reason it contends that, at the very least, Mrs Nayacakalou is liable under s 147.
We accept that submission as far as it goes. Importantly, however, in order to establish liability under s 147 the Crown also needed to prove that Mrs Nayacakalou knew the company had failed to pay the deductions to the Commissioner.
At first sight Question 1.3.3 appears to deal with this element. The question does not, however, instruct the jury regarding the date as at which they needed to assess the state of Mrs Nayacakalou’s knowledge. The offence was complete on 20 April 2002, being the date upon which FCL was required to account to the Commissioner for deductions it had made during the previous month. The jury was therefore required to assess Mrs Nayacakalou’s knowledge as at that date. Question 1.3.3 does not reflect this requirement. The manner in which the question is worded could lead to a finding of guilt even if Mrs Nayacakalou only became aware after 20 April 2002 that FCL had not paid the deductions to the Commissioner by due date.
The distinction is important, because Mrs Nayacakalou said when interviewed that the failure to pay the deductions may have occurred through oversight. If she did not become aware that the FCL had failed to account for the deductions until after 20 April 2002, she could not have knowingly committed an offence under s 147.
For these reasons we are satisfied that the jury was not asked to determine the essential factual elements of a charge laid under either s 147 or s 148 of the Act. Counsel for the Crown rightly conceded that to be the case. As a result, the problem cannot be cured through substitution of convictions under either of those sections.
Count 2: Failure to account for PAYE tax deductions between 20 May 2003 and 31 November 2003
This charge was essentially the same as that in relation to Count 1. It alleged, however, that Mrs Nayacakalou knowingly failed to pay tax deductions to the Commissioner by due date between 20 May 2003 and 31 November 2003.[8] During this period Mr Nayacakalou had continued to conduct his business operation using FCL, but Mrs Nayacakalou was no longer a director of the company.
[8] In breach of s 143A(1)(d) of the Act.
The Judge worded the question trail that he prepared in respect of this charge in the same way as that relating to Count 1. As a result, it suffers from the same deficiencies. Similar difficulties also arise in relation to the exercise of this Court’s powers to substitute a conviction under ss 147 and 148.
Mrs Nayacakalou’s argument is, if anything, stronger in relation to this charge because of the fact that she resigned as a director of FCL in November 2002. Once that occurred, she ceased to be an officer of the company for the purposes of s 147 of the Act. She could only be found liable under the section if the jury was satisfied that she was an agent of the company during the relevant period.
Whether or not Mrs Nayacakalou was an agent of the company was in the first instance a question of law for the Judge to determine. If resolution of that issue turned on a question of fact, that question needed to be determined by the jury. The Crown did not ask the Judge to consider this issue at all. It would be wrong, in our view, for this Court to exercise its powers under s 335 in those circumstances.
Even if Mrs Nayacakalou had acted as FCL’s agent, she would not be liable under s 147 unless the Crown also established that the company’s failure to account for tax deductions was caused by acts or omissions on her part. Similarly, liability could only arise under s 148 if she had intentionally aided or abetted the company in its repeated failure to account for PAYE deductions. Consistently with the position in relation to Count 1, the question trail did not address either of those issues.
It is not difficult to see why the Judge worded the question trail in the way that he did. He followed the approach adopted by the Crown, which rested on the erroneous basis that Mrs Nayacakalou had a personal obligation to account to the Commissioner for PAYE deducted by FCL from the wages of its employees. The Crown also viewed the issue of whether or not Mrs Nayacakalou continued to be involved in her husband’s business affairs after she resigned as a director in November 2002 as being significant. Counsel for the Crown spent considerable time in her closing address pointing out the different ways in which Mrs Nayacakalou continued her apparent involvement in those affairs after that date.
As we have already observed, the key issues in relation to charges under ss 147 and 148 would be whether by her acts or omissions, Mrs Nayacakalou caused FCL to fail to meet its obligation to file GST returns, and whether she aided or assisted it to do so. Whether or not Mrs Nayacakalou continued to have a general involvement in her husband’s business affairs after she resigned as a director may have been of general relevance to that issue. Ultimately, however, the focus needed to be much more specific. The jury needed to determine whether Mrs Nayacakalou was responsible for the company’s failure to meet its obligations to file GST returns, or assisted in that failure.
For these reasons the Crown also concedes that the problems in relation to Count 2 cannot be cured by substitution of a conviction under either s 147 or s 148 of the Act.
Count 3: Failure to file GST returns between 1 April 2004 and 1 June 2005
This charge alleged that Mr and Mrs Nayacakalou knowingly failed to file GST returns between 1 April 2004 and 1 June 2005.[9] During this period Mr Nayacakalou continued to operate his business using FCL.
[9] In breach of s 143B(1)(b) and (f) of the Act.
Consistent with the Crown’s approach to the case, the wording of this charge, and consequently the question trail that the Judge provided to the jury in relation to it, proceeded on the basis that the jury could find that Mrs Nayacakalou had an obligation to file GST returns during the relevant period. As counsel for the Crown properly conceded, that could not be the case. The obligation to file GST returns rested throughout with FCL. It was the only entity registered under the provisions of the Goods and Services Tax Act 1985 in relation to Mr Nayacakalou’s contracting business during this period.[10] As a consequence, Mrs Nayacakalou had no obligation to file GST returns.
[10] Goods and Services Tax Act 1985, s 23.
It follows that the Crown based its case on an erroneous premise, and this conviction under s 143B of the Act cannot stand. The only issue is whether the Court should substitute a conviction under s 147 or s 148 of the Act. Resolution of this issue depends again on whether the facts found by the jury support a conviction under either section.
Once again Mrs Nayacakalou could only be liable under s 147 if the Crown could establish that she was FCL’s agent at the material times. Assuming for present purposes the Crown could do that, the remaining questions in the question trail did not address two factual questions necessary to give rise to liability under ss 147 and 148 respectively. These were whether an act or omission by Mrs Nayacakalou had caused the company to fail to file GST returns, and/or whether she had aided or encouraged the company to do so.
For that reason the Crown again concedes it would not be appropriate for this Court to exercise its powers under s 335 in respect of this charge.
Count 4: Filing false GST returns between 1 June 2005 and 31 March 2006
This charge alleged that Mr and Mrs Nayacakalou knowingly filed false GST returns during the period between 1 June 2005 and 31 March 2006.[11] It arose out of an allegation that GST returns filed in respect of Mr Nayacakalou’s business consistently understated business income and overstated business expenditure.
[11] In breach of s 143B(1)(c) and (f) of the Act.
Once again the charge, and the question trail prepared in relation to it, rest on the erroneous premise that the jury could find that Mrs Nayacakalou had an obligation to file GST returns. The charge and question trail therefore suffer from broadly the same defects as those relating to the other counts.
Unlike the question trails in relation to the other charges, the question trail in respect of Count 4 required the jury to determine whether Mrs Nayacakalou filed or assisted in filing false GST returns, and whether she knew the returns were false. The jury’s verdict confirms they were sure that Mrs Nayacakalou knowingly either filed or assisted in filing false GST returns in respect of her husband’s business. This strengthens the Crown’s position in relation to the exercise of this Court’s powers under s 335 considerably.
An additional difficulty arises in relation to this charge, however, because during this period Mr Nayacakalou did not conduct his business affairs only through FCL. FCL was placed in liquidation on 3 October 2005. Thereafter, Mr Nayacakalou issued invoices in the name of a new entity, “Forestech Waikato Contractors”, which was unincorporated and unregistered for GST. Matters are further confused by the fact that this entity purported to render tax invoices bearing FCL’s GST number. In addition, the issuer of the invoice was said to be:
FORESTECH WAIKATO CONTRACTORS
J & K Nayacakalou
11 Montrose Crescent, Huntington
Hamilton
The invoices also provided for payments to be made directly into Mrs Nayacakalou’s bank account. These factors mean there is considerable confusion regarding the identity of the entity through which Mr Nayacakalou traded after FCL was placed in liquidation. On one view, the issuer of the tax invoices may even have been a partnership between Mr and Mrs Nayacakalou.
Putting that issue to one side, counsel for the Crown acknowledged that Count 4 relates to a period when Mr Nayacakalou conducted his forestry operations through at least two separate entities during the period covered by the charge. For that reason she properly conceded that Count 4 should have been split into at least two separate charges, one relating to the period prior to 3 October 2005 and one relating to the period after that date. It follows that the power of amendment under s 335 is not available to cure the problems inherent in Count 4.
Disposition
Counsel for the Crown submitted that we should direct a retrial on all charges. Counsel for Mrs Nayacakalou contended that several factors justify the Court exercising its discretion not to order a new trial.
In particular, counsel for Mrs Nayacakalou submitted that, even if the Crown amends the indictment and proceeds under s 147 and/or s 148 of the Act, the prospect of Mrs Nayacakalou being convicted is not great. This submission prompted us to request counsel to file memoranda following the hearing addressing several issues. In particular, we requested Crown counsel to summarise the evidence available to support amended Counts 1 to 4. We are grateful to counsel for their assistance in this regard.
Count 1
In relation to Count 1, the Crown relies on the fact that Mrs Nayacakalou was a director of FCL when that company failed to account for PAYE deductions on 20 April 2002. In addition, Mrs Nayacakalou accepted in her interview that she was the person responsible for FCL’s PAYE obligations at that time. When she was asked why FCL had not accounted to the Commissioner for PAYE deducted during March 2002, she said it may have occurred through oversight or because FCL had insufficient funds in its account.
We accept there is sufficient evidence to permit an amended Count 1 to proceed to trial.
Count 2
Count 2 as amended would allege that Mrs Nayacakalou knowingly assisted or caused FCL to fail to account to the Commissioner for PAYE deductions during the period between 20 May 2003 and 31 November 2003. In relation to this charge, the Crown relies on the fact that Mrs Nayacakalou accepted in her interview that she had filled out two PAYE returns during this period. The Crown’s handwriting expert said she may also have completed a third return.
Mrs Nayacakalou also admitted that she had provided her husband with further assistance with his business affairs during this period, even though by this stage she had commenced employment with the IRD. In particular, she assisted in completing business documents, including GST returns, for her husband to sign. This led the Crown to submit that the jury would be entitled to conclude Mrs Nayacakalou was in reality a de facto director of FCL in terms of s 126(1)(b)(i) of the Companies Act 1993.
The material presently available is not sufficient to allow us to properly assess the strength of the latter argument. We also accept the submission for Mrs Nayacakalou that it is not entirely clear whether Mrs Nayacakalou categorically accepted during the interview that she completed the two PAYE returns upon which the Crown relies.
The evidence is sufficient, however, to enable the jury to conclude that Mrs Nayacakalou was involved in completing PAYE returns during the relevant period. Her actions in doing so suggest that she had assumed a degree of responsibility in relation to FCL’s PAYE obligations during this period. This would entitle the jury to conclude Mrs Nayacakalou was aware of FCL’s PAYE position during this period. In particular, she knew that FCL was not complying with its obligation to account to the Commissioner for PAYE deductions on the due date.
We therefore accept there is sufficient evidence to permit an amended version of Count 2 to proceed to trial. We consider, however, that the Crown would need to include a separate count in the indictment to reflect each occasion on which Mrs Nayacakalou is alleged to have assisted or caused FCL to fail to account for PAYE deductions.
Count 3
The Crown submits that, on balance, FCL was the entity responsible for filing GST returns during the period covered by Count 3. It contends Mrs Nayacakalou continued to have a significant involvement in FCL’s business operations between 1 April 2004 and 1 June 2005.
In particular, the Crown points to the fact that the invoices issued during this period in the name of the non-existent entity “Forest Contractors Ltd” also referred to “J and K Nayacakalou”. In addition, business income and expenditure during this period went through a bank account in the name of Forest Tech 2000. Mrs Nayacakalou was a signatory of that account. She also signed some cheques and deposit vouchers in relation to that account.
The Crown also relies significantly on a note it alleges Mrs Nayacakalou wrote to the IRD on 28 July 2005. This stated:
Please note there was no activity within the 2005 income year. Start 06/05/05. Thus nil return.
The note was signed by Mr Nayacakalou.
There is nothing in the evidence to confirm, however, that Mrs Nayacakalou wrote the note. She did not admit writing it, and the note was not examined by the Crown’s document examiner. We also accept that the note may not relate to FCL’s GST affairs, because the next document in the bundle of documents is an income tax return for another company, Forestech Waikato Ltd in respect of the year ended 31 March 2005. This recorded that Forestech Waikato Ltd had no income during that year. The note may therefore relate to the income tax affairs of Forestech Waikato Limited rather than the GST affairs of FCL. These factors persuade us that the note does not advance the Crown’s case in relation to Count 3 at all.
The remaining factors upon which the Crown relies suggest that Mrs Nayacakalou had a general involvement in her husband’s business affairs. They do not, however, establish she had an involvement in, or assumed responsibility for, filing FCL’s GST returns during the relevant period. The evidence in relation to Count 3 is therefore insufficient to establish a prima facie case on that charge.
Count 4
The Crown concedes that, as currently framed, Count 4 would be difficult to prove because it appears that Mr Nayacakalou as opposed to Mrs Nayacakalou was responsible for filing the GST returns relevant to this charge. It suggests that a better alternative would have been for the Crown to proceed on the basis of additional allegations of failing to file GST returns in respect of invoices that utilise the GST number attributed to FCL and Forestech Waikato Contractors. It seems to us, however, that this would amount to re-casting the charges to contain completely new allegations. That would not be appropriate given the way the Crown has run its case to date.
The end result is that we accept the Crown can point to sufficient evidence to seek a retrial on Counts 1 and 2, but not on Counts 3 and 4. In considering whether it would be appropriate to direct a new trial on Counts 1 and 2, we consider several other factors also need to be taken into account.
Other factors
First, the difficulties that have arisen in this case are largely due to the manner in which the Crown chose to frame the charges. There would be an element of injustice in requiring Mrs Nayacakalou to be subject to a second trial because the Crown proceeded on the basis of a flawed premise at the first trial.
Secondly, it is clear that the primary offender in this case was Mr Nayacakalou. He was the person with overall responsibility for the operation of his business throughout the periods referred to in the indictment. He has been convicted on a large number of charges, and is now serving a sentence of imprisonment. Other than in relation to Count 1, Mrs Nayacakalou had a much lesser involvement in her husband’s business and tax affairs.
Thirdly, the offending occurred between six and ten years ago. Mrs Nayacakalou was not interviewed until 12 September 2007, and charges were not laid against her until December 2008. A hearing was scheduled in the summary jurisdiction for 15 February 2010, but this was aborted due to late disclosure of relevant documentary material by the prosecution. On that date it also transpired that Mrs Nayacakalou had not been given her right of election to be tried by a jury, and she immediately elected to be tried in that way. The trial was then not held until March 2011, with sentencing taking place five months later.
As a result of these delays, none of which have been caused by Mrs Nayacakalou, counsel points out that Mrs Nayacakalou has been under the strain of facing an IRD investigation and/or serious charges for nearly five years. She has also served one month of the sentence of home detention that the Judge imposed on her in August 2011.
Finally, Mrs Nayacakalou has also now lost, or resigned from, her job with the IRD.
Taken together, these factors are sufficient to persuade us that it would not be appropriate to order a retrial on Counts 1 and 2.
Result
The appeal against conviction is allowed. The convictions are quashed. We decline to order a retrial on Counts 1 and 2.
Solicitors:
Crown Law Office, Wellington for Respondent
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