R v Bracken - [2021] NZHC 609

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2019-016-1336

[2021] NZHC 609

THE QUEEN

v

JOHN RICHARD BRACKEN

Hearing: 8 March 2021

Appearances:

C R Walker and M Mitchell for Crown Defendant appears in person

A M Simperingham as standby counsel

Verdicts:

26 March 2021

Reasons:

26 March 2021

REASONS FOR VERDICTS OF LANG J

R v BRACKEN [2021] NZHC 609 [26 March 2021]

Table of Contents

Para No

Background.......................................................................................................... [4]
Onus and standard of proof............................................................................. [17]

The Crown case.................................................................................................. [19]

The defence approach....................................................................................... [27]

Elements of the charge...................................................................................... [35]

Preliminary issues.............................................................................................. [43]

Jurisdiction  [44]
Search of Mr Bracken’s property  [48]
The use of s 17 Notices  [53]
Failure to produce original documents  [57]

The creation of the tax invoices on which BEL relied in its GST returns [61]

Ms Mookerjee [62]
Ms Raelene Poole [68]

The evidence given by suppliers about invoices ostensibly issued to BEL [82]

MSM Holdings Ltd (MSM) [82]

Wiri Pacific Ltd (Wiri Pacific)  [90]
Pinnacle Timber Ltd (Pinnacle)  [97]
Pure Dew Water Co Ltd (Pure Dew)  [107]
W-Force International Ltd (W-Force)  [115]
Hiktown Ltd (Hiktown)  [123]
Hiktown  [124]
Kohumaru Forest  [130]
Eric Lloyd  [133]

NZ Pine Ltd (NZ Pine) [135]

J & R Whitehead Trust [146]

James Timber Ltd (James Timber) [152]

Healthy Start NZ Ltd (Healthy Start)........................................................... [158] Freight charges.......................................................................................................... [162]

Ray Ironman Ltd........................................................................................... [166]

Other purchases............................................................................................ [169]

Unmatched to specific suppliers................................................................... [172]

Prime Flooring [173]
CM Contracting [175]

Colson Importers [178]
The digger......................................................................................................... [180]

Conclusion........................................................................................................ [182]

Result................................................................................................................ [186]

[1] Mr Bracken faces 39 charges of dishonestly and without claim of right using goods and services tax returns with the intention of obtaining a pecuniary advantage.1 The returns in question span the period from August 2014 until July 2018.

[2] Mr Bracken does not recognise the validity of the charges and has refused to enter pleas to them. The Court has therefore proceeded on the basis that Mr Bracken denies the charges and the Crown must prove each of the charges to the required standard.

[3] Mr Bracken elected to be tried by a Judge sitting without a jury. I heard the evidence over eight days commencing on 8 March 2021. On 26 March 2021 I delivered verdicts in which I found Mr Bracken guilty on all charges. I now give my reasons for those verdicts.

Background

[4] Mr Bracken is the sole director of a company called Bracken Enterprises Limited (BEL). BEL was incorporated on 16 September 2003 with a share capital consisting of 1,000 shares of $1 each. The Bracken Family Trust (the Trust) owns 998 shares in BEL. The trustees of the Trust are Mr Bracken, his wife Margaret and a Gisborne accountant, Mr Richard Harding. Mr and Mrs Bracken each own one share in BEL.

[5] During the period covered by the charges BEL carried on two forms of business. First, it operated a sheep and beef dry stock farming business on land situated near Matawai, to the west…

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.

Continue reading R v Bracken

Details

AGLC: R v Bracken [2021] NZHC 609
Case: [2021] NZHC 609
Decision Date: 26 March 2021

CaseChat Overview and Summary

The High Court of New Zealand heard a criminal case against John Richard Bracken for 39 charges of dishonestly and without claim of right using goods and services tax returns with the intention of obtaining a pecuniary advantage. The charges span from August 2014 to July 2018. Bracken, the sole director of Bracken Enterprises Limited (BEL), denies all charges. The case was heard by Lang J, who found Bracken guilty on all charges. The court found that Bracken had arranged for the creation of false invoices to match transactions shown in BEL's bank statements, enabling BEL to falsely claim input tax credits and evade output tax. The false invoices also enabled BEL to falsely claim it had exported goods, further muddling its GST position. Bracken paid for the fictitious goods by withdrawing cash from BEL's account or obtaining a bank cheque made out to either himself or BEL, then immediately re-depositing the cash or cheque into BEL's account, sometimes adding additional cash to make the deposit look different. This scheme enabled BEL to falsely claim it had purchased product amounting to $133,422,376.52 and exported goods to the value of $132,791,269 during the investigation period. The court found that Bracken was the architect of the scheme, arranging for the invoices to be created and carrying out the banking transactions to create the impression of genuine transactions. Bracken did so in full knowledge of the effect of his actions and with the intention of enabling BEL to obtain GST refunds to which it was not entitled. The court found Bracken guilty on all charges, with the Crown's failure to prove all its allegations not affecting the verdict on each charge.

Orders