Raea v Commissioner of Inland Revenue

[2012] NZHC 496

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-446 [2012] NZHC 496

BETWEEN  JAMES COLIN RAEA Appellant

ANDCOMMISSIONER OF INLAND REVENUE

Respondent

Hearing:         19 March 2012

Counsel:         J C Raea (In person) Appellant

K L Wendt for Respondent

Judgment:      21 March 2012

JUDGMENT OF MILLER J

[1]      This judgment responds to an application for leave to adduce further evidence in an appeal brought under the Summary Proceedings Act 1957.  The application is governed by s 119(3) of that Act, which provides that the decision is discretionary.

[2]      I begin by examining what is in issue on the appeal.   After a summary hearing Mr Raea was convicted on 18 charges of failing to comply with obligations under tax legislation.   He was said to have failed to file returns, to have supplied false information, and to have misapplied PAYE.  He pleaded guilty to many more such charges, and was duly sentenced to two and a half years imprisonment.

[3]      Mr Raea first appeared in October 2006.  The summary hearing began on 5-8

November 2007 and the evidence was completed then, but the District Court did not schedule closing submissions until 4 June 2008.  A reserved decision was delivered

on 3 July 2008.

RAEA V COMMISSIONER OF INLAND REVENUE HC AK CRI-2010-404-446 [21 March 2012]

[4]      Sentencing did not take place until 22 October 2010.   The further delay is attributable to Mr Raea’s attempts to have the charges stayed or reheard or set aside on judicial review.

[5]      In the meantime, on 13 November 2008 Mr Raea’s application for stay on grounds of delay was refused in an oral judgment.  Mr Raea had changed counsel in the meantime.  The trial Judge, Judge Field, regarded the delay, which was caused by  District  Court  scheduling  problems,  as  unacceptable.    But  there  were  many charges and the evidence was complex, so not all of the overall delay was systemic. There were some issues of credibility.   Mr Raea claimed that some evidence was produced for the first time in closing submissions of the informant, but the Judge had no such recollection, nor did the informant’s counsel.   The charges were serious. Balancing these factors, a stay was not warranted.

[6]      The appeal filed in this Court initially challenged conviction, sentence, and the refusal to stay proceedings.  Mr Raea has since abandoned the sentence appeal and he challenges conviction on the sole ground that the proceedings ought to have been stayed.  I observe that he did not move for a stay until after convictions were entered, but no point was taken about that today.  I accept that this Court’s appellate jurisdiction under the Summary Proceedings Act extends to a District Court order refusing a stay: Grigson v Ministry of Fisheries [1998] 3 NZLR 202.

[7]      The present hearing follows a minute of Duffy J issued on 5 December 2011. Mr Raea was required to file an application to adduce further evidence with an affidavit in support, failing which today’s hearing would deal with the appeal proper.

[8]      An application was filed, without an affidavit.   Mr Raea explained that by saying he has been seeking legal aid, and in the meantime is pressing on as best he can.

[9]      The challenge now focuses on fair trial rights.  Mr Raea alleges prosecutorial misconduct and defence counsel incompetence.   The prosecutorial misconduct is said to involve both the informant’s counsel, who got away with introducing new evidence in submissions, and the Inland Revenue Department, which knowingly

overstated tax liabilities to secure a prison sentence.   Defence counsel ineptitude includes many mistakes, notably failure to understand the charges or focus on the amount of money in issue or recognise that Mr Raea was depressed.  To a significant extent Mr Raea appears to traverse ground covered in an unsuccessful application for rehearing made in the District Court on 12 March 2009, at which former counsel and Mr Raea gave evidence, and a conspicuously unsuccessful application for judicial

review of that decision.[1]   Mr Raea conceded that the underlying complaint about his

counsel is the same issue that he raised in those hearings.  I have not been asked to establish to what extent he may raise these issues at all on appeal in light of those decisions.  I am not to be taken as holding that he may do so.

[1] Raea v Attorney-General (2009) 24 NZTC 23,951.

[10]     To a substantial extent the application refers to information which is already in the record, such as exhibits and the notes of evidence on the stay application and material attached to previous applications.   Mr Raea has applied because some of this material was created after the stay hearing.

[11]     For her part, Ms Wendt accepted in principle that leave is not needed to use on appeal any document already filed in the District Court or this Court, whether before or after the stay hearing.   She wishes, understandably, to reserve the Commissioner’s position in relation to any specific document that has been filed without being admitted in evidence, such as attachments to submissions.  Mr Raea has failed to specify just what documents he wants to use.  Any objection to such document will have to be dealt with by the Judge who hears the appeal.  Subject to that reservation, it is accepted that Mr Raea can use almost all of the material he wants, including notably the transcript of the evidence on the application for rehearing.   He confirmed that that transcript includes all of the evidence he wants from his former counsel, so no further waiver of privilege is needed.

[12]     That leaves just two matters.   First, Mr Raea would call evidence from a Mr Speed,  a  tax  lawyer  who  advised  him  that  the  amount  of  tax  in  issue  was overstated and further expressed the opinion that Mr Raea did not understand the charges.  I am not prepared to admit this evidence.  So far as it goes to quantum, the

material  needed  to  calculate  the  tax  payable  is  already  in  the  record.    And

Mr Speed’s opinion would be relied upon to show that because Mr Raea did not understand the charges his first counsel cannot have explained them.   Mr Speed cannot possibly offer an opinion on that subject.  I should say, in fairness to him, that I have only Mr Raea’s assertion that he would put his name to such a statement.

[13]     Next, Mr Raea wishes to call four un-named Inland Revenue employees who, he says, would depose to a practice of delaying the posting of notices of assessment, of not date-stamping them, and of trying to bankrupt taxpayers (as happened to Mr Raea) before prosecuting them.  He wishes to have the Court draw the inference that this is what happened in his case.  There are a number of difficulties with this. First, the offences mostly involved non-filing of returns or provision of false information, these being offences for which quantum is mostly relevant to penalty. My attention has not been drawn to anything that would suggest the convictions are suspect.  Second, it is not in issue that by the time the hearing began in November

2007 he had the notices of assessment.  Third, Mr Raea was himself able to calculate the tax; he concedes that he prepared the returns.  So he ought to have been able to calculate quantum himself.  Fourth, in these circumstances there is no room for an argument that any overstatement involved an abuse of prosecutorial power so egregious as to justify the exceptional remedy of a stay.  I am not prepared to admit this evidence.  I am not persuaded either that it is cogent or that it might have made any difference to the stay application.

[14]     The appeal must now be got on for hearing.  Mr Raea explained that he is still wanting legal aid but he has now been told that he must file a new form.  He will do that this week.  I understand that the application should be capable of being decided in three weeks.  I direct that there be a telephone conference before a Judge in the week of 23 April to confirm whether Mr Raea will be represented and to set a fixture for the appeal.

Miller J

Solicitors:

Crown Solicitor’s Office, Auckland for Respondent