R v D HC Auckland CRI-2010-404-462

[2010] NZHC 2198

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-462

THE QUEEN

v

D

Hearing:         7 December 2010

Appearances: J L S Shaw for the Crown

G Clews for Mr D 

Judgment:      7 December 2010

ORAL JUDGMENT OF ELLIS J

Solicitors:      Crown Solicitors, PO Box 2213, Auckland 1140

Counsel:       G Clews, PO Box 1993, Auckland 1140

R V D HC AK CRI-2010-404-462  7 December 2010

[1]      Mr D   has been charged with 167 offences of tax evasion pursuant to s 148(1) of the Tax Administration Act 1994.  The maximum penalty for an offence against s 148(1) is five years imprisonment and/or a fine not exceeding

$50,000.  The core taxes in issue amount to some $706,000.  Penalties and interest then account for a further $1.1 million.

[2]      On 29 September 2010 Judge Moore, in the North Shore District Court, granted Mr D   bail upon the following conditions:

a)        That he was to reside at 3 Compton Street, Hillcrest, North Shore;

b)That he was to surrender any passport presently held by him to the Registrar of the North Shore District Court and not to apply for any passport;

c)       Not to use any passport or any foreign travel documents or attempt by any means to leave New Zealand.

[3]      Mr D   now applies to this Court for a variation of those bail conditions, namely the removal of conditions (b) and (c) in order that he is able to travel to Australia for business purposes.  The application is made to this Court because there appears to be a jurisdictional issue with regard to the requiring of surety by the District Court; surety of $200,000 being the means proposed to address any risk of flight arising from the removal of the two conditions.  That jurisdictional issue has been noted in other judgments of this Court, including by way of example the

judgment of MacKenzie J in Harding v Police.[1]

[1] Harding v Police HC Nelson CRI-2008-442-4 [date] at [2].

[4]      As I said, the reasons given for Mr D  ’s need to travel to Australia are business related.  Mr Clews also emphasises that the chances of recovery of any of the tax  alleged  by the  Commissioner  to  have been  evaded  will  be increased  if Mr D    is  able  to  continue  with  his  current  business  ventures  across  the Tasman.  The application is not opposed by the Crown, counsel having referred me

to other cases in which similar conditions have been imposed and/or substituted, namely Collins v Police[2] and Harding v Police.[3]

[2] Harding v Police HC Auckland CRI-2005-090-9128, 11 December 2007 and 12 December 2007.

[3] Above n 1.

[5]      The specific proposal in relation to the $200,000 surety is that it be secured by a first registered mortgage over the unencumbered property situated at 2/5 Crispe Road, Clarks Beach, the current value of which is $385,000.  The property is owned by a  company called  D   Investments  Limited  which  is  in  turn  owned  by Mr D  ’s   father   (Graeme D  )   and   stepmother   (Cecilia   D  ). Affidavits in support of the proposal have been filed by both of them.

[6]      The Crown, in agreeing to the surety proposal, accepts, appropriately in my view, that the Crispe Road property is an investment which presently supports both Mr D    senior  and  his  wife.    The  Crown  accepts  that  Mr  D    senior considers he will be in a position positively to influence Mr D   junior to comply with his bail obligations as Mr D   junior knows the importance of the property in terms of his father and stepmother’s investments.

[7]      On this basis I am prepared to grant the application for variation sought. More specifically, I order that the conditions referred to at [2](b) and (c) above be removed and that Mr D  ’s passport and any other relevant travel documents be released to him and that he then be permitted to travel to and from Australia for business purposes only.  I make this order subject, however, to the prior fulfilment of the following two conditions:

a)       Graeme   D     and   Cecilia   D     as   sole   directors   and shareholders  of  D    Investments  Limited  provide  joint  and written surety in the sum of $200,000;

b)        The surety of $200,000 is to be secured by a first mortgage over

2/5 Crispe  Road,  Clarks  Beach,  the  registered  owner  of  which  is D   Investments Limited.  The costs of securing the mortgage are to be met by the applicant, Mr Michael D  .

[8]      Because of the contingent nature of the orders, they will necessarily not take effect until the mortgage is registered.  The Court is to be advised of that event by

way of joint memorandum.

Rebecca Ellis J