R v Smith - [2008] NZCA 371

IN THE COURT OF APPEAL OF NEW ZEALAND
CA275/2008
[2008] NZCA 371
THE QUEEN
v
GEOFFREY MARTIN SMITH
Hearing:27 August 2008

Court:O'Regan, Chisholm and Ronald Young JJ
Counsel:D G Hayes for Appellant

S J Mount and L L du Claire for Crown

Judgment:17 September 2008 at 3 pm

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.
REASONS OF THE COURT
(Given by Chisholm J)
[1]        Following trial before Judge Maze and a jury in the Hamilton District Court the appellant and his wife were found guilty on 94 counts alleging offending between 2001 and 2006 against the Tax Administration Act 1994. Of those counts 60 alleged that the appellant and his wife had knowingly failed to pay PAYE tax (s 143A(1)(d)), four alleged they had failed to file income tax returns with intention to evade (s 143B(1)(b) and (f)), and 30 alleged that they had failed to furnish GST returns with intention to evade (also s 143B(1)(b) and (f)). At sentencing the Crown alleged that the unpaid taxes amounted to at least $570,000. The appellant was sentenced to two and a half years imprisonment and his wife was sentenced to nine months home detention.
[2]        The appellant appeals against both his conviction and sentence. His conviction appeal alleges that the Judge misdirected the jury in several respects and that the jury’s verdict on six counts was against the weight of evidence. The appeal against sentence is on the ground that the sentence is manifestly excessive. Mrs Smith has not appealed.
Background
[3]        Mr and Mrs Smith operated a partnership trading as “Trellis and Fence Warehouse” at Te Kauwhata. This business sold trellis, fencing, posts and railing to the public. From about 2001 it also sold kindling, primarily to Solid Energy in Huntly.
[4]        An approach to IRD by an employee seeking information triggered an investigation by the Department in 2004. Although the investigation initially concerned PAYE issues, it was later expanded to include the full taxation affairs of Mr and Mrs Smith and their partnership. Those investigations gave rise to the 94 charges against Mr and Mrs Smith, all of which they denied.
[5]        At trial evidence for the prosecution was given by seven former employees who said that they had been paid wages for their work with the partnership which they understood were net of tax. The manager of Solid Energy gave evidence about payments his company had made to the partnership for kindling. An IRD investigator gave evidence about her dealings with the Smiths and confirmed that, with the exception of six PAYE payments made between 2004 and 2006, IRD had not received any payments of PAYE, GST or income tax. Based on the evidence of the former employees and Solid Energy, the Crown contended that the six PAYE payments received by the Commissioner were for amounts considerably less than the amounts payable.
[6]        In defence of the PAYE charges, Mr and Mrs Smith contended that they did not employ any of the employees…

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 Smith

Details

AGLC: R v Smith [2008] NZCA 371
Case: [2008] NZCA 371
Decision Date: 17 September 2008

CaseChat Overview and Summary

The appeal was heard by O'Regan, Chisholm and Ronald Young JJ in the Court of Appeal of New Zealand. Geoffrey Martin Smith was appealing against his conviction and sentence for tax evasion and failure to file tax returns. The conviction appeal argued that the trial judge misdirected the jury and that the verdicts on six counts were against the weight of evidence. The appeal against sentence claimed that the sentence was manifestly excessive. The Crown argued that the appellant and his wife had knowingly failed to pay PAYE tax, failed to file income tax returns, and failed to furnish GST returns with the intention to evade. The appellant claimed that he did not employ the individuals in question and had no obligation to file PAYE returns or make payments to the Commissioner. The Court found that the Crown did not have to prove the particular amount of PAYE or GST that should have been paid, as it was enough to prove that an amount of the deduction had been misapplied. The Court also found that the trial judge did not misdirect the jury when she said the contents of certain invoices were neutral. The appeals against conviction and sentence were dismissed.

Orders