Rowell v District Court - [2017] NZHC 2706

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2017-406-17 [2017] NZHC 2706

UNDER the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for Judicial Review

BETWEEN

BRIAN CYRIL ROWELL Applicant

AND

DISTRICT COURT First Respondent

AND

ATTORNEY-GENERAL Second Respondent

Hearing: 2 November 2017

Counsel:

Applicant in Person
P D Marshall for Second Respondent

Judgment:

6 November 2017

JUDGMENT OF SIMON FRANCE J

[1] Mr Rowell applies to judicially review the decision of the District Court to decline an application under s 147 of the Criminal Procedure Act 2011.1 The application related to 26 of the 31 charges Mr Rowell faces, and turned on whether the charges had been laid within the statutory timeframe.

[2] The second respondent asks the Court to dismiss the proceedings on the basis that pre-trial judicial review should not be entertained except in compelling circumstance. It relies for this proposition on a decision of mine, DGN v The
Auckland, Manukau, Papakura, and Waitekere District Courts where I expressed

1 R v Rowell [2017] NZDC 14756.

ROWELL v DISTRICT COURT [2017] NZHC 2706 [6 November 2017]

that position in firm terms.2 I adhere to it. However, in that decision I also identify that in order to avoid the delay and expense, strike out applications should be considered. That did not occur here and so I am presented today with a fully argued case on a narrow point of law. Since the review proceedings have reached this point, I see little profit in declining to hear and determine them.

[3] I again add, however, that consistent with the views expressed in DGN, I respectfully suggest the District Court should not in any way defer the Criminal Procedure Act processes to allow this type of application to be resolved. This application should at best run parallel to advancing the hearing of the charges.

Issue

[4] Mr Rowell is charged with aiding and abetting companies to file false information concerning GST liability. As a sample, one charge reads:

That BRIAN CYRIL ROWELL, on 11 September 2011, at Blenheim, aided or abetted Empty Trucks New Zealand Limited to knowingly provide false information, namely a false self-assessment return under s 92B Tax Administration Act 1994 to the Commissioner of Inland Revenue, with the intention of obtaining a refund of GST to which it had no lawful entitlement.

[5] Mr Rowell contends that s 14 of the Summary Proceedings Act 1957 required the charge to be filed within six months of the conduct occurring. The Crown contends, and the District Court agreed, that the situation is governed by s 150A of the Tax Administration Act 1994. It provides:

150A Charging document may be filed within 10 years for income tax and GST offences

(1) A charging document for an offence against—

(a) this Act (other than an offence against any of sections
143A(1)(b), 143B(1)(b), 143C(1), 143D(1), 143E(1),
143F(1), 143H(1), and 147(1)); or

(b) any regulation made under section 225 of this Act or under the Income Tax…

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.

Keep reading for free

Create a free CaseChat account to read Rowell v District Court and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NZHC 2706
Decision Date: 6 November 2017

CaseChat Overview and Summary

The High Court of New Zealand heard an application for judicial review brought by Brian Cyril Rowell against the District Court and the Attorney-General. Rowell sought to challenge the District Court's decision to decline an application under section 147 of the Criminal Procedure Act 2011 regarding 26 out of 31 charges he faced, which centred on whether the charges were laid within the statutory timeframe. The Attorney-General opposed the review on the basis that pre-trial judicial review should not be entertained except in compelling circumstances. The Court was presented with a fully argued case on a narrow point of law and decided to hear and determine the proceedings. The Court expressed that the District Court should not defer the Criminal Procedure Act processes to allow such an application to be resolved, suggesting that the application should run parallel to advancing the hearing of the charges.

The primary legal issue before the Court was whether section 14 of the Summary Proceedings Act 1957 or section 150A of the Tax Administration Act 1994 governed the timeframe within which charges should be filed. Rowell contended that the charges should be filed within six months of the conduct occurring as per section 14 of the Summary Proceedings Act 1957. However, the Crown and the District Court argued that section 150A of the Tax Administration Act 1994, which allows charges to be filed within 10 years for income tax and GST offences, should apply. The crux of the argument hinged on whether the offence related to a tax law under the Income Tax Act 2007 or the Goods and Services Tax Act 1985. Rowell maintained that the offence related to the filing of a false self-assessment return under the Tax Administration Act, and therefore, section 150A(2) did not apply. The Court found that the offences related to a Goods and Services tax obligation, making section 150A applicable.

The Court dismissed the application for judicial review, noting that the charges related to obligations under the Goods and Services Tax Act. Therefore, the extended timeframe of 10 years provided by section 150A of the Tax Administration Act 1994 applied. The Court awarded the second respondent 2B costs and reasonable disbursements. The Court also highlighted that Rowell had automatic appeal rights and suggested that the progression of the charges should not be deferred to accommodate such an appeal. The Court left it to the Court of Appeal to decide whether to stay the progress if it deemed it appropriate.

Orders