Tamihere v Inland Revenue Department

[2018] NZHC 392

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000004

[2018] NZHC 392

BETWEEN

ROBIN NOEMA HUGHES TAMIHERE

Applicant

AND

INLAND REVENUE DEPARTMENT

Respondent

Hearing:	5 March 2018
Appearances:	No appearance for the Applicant Luke Radich for the Respondent
Judgment:	13 March 2018

JUDGMENT OF MOORE J

[Application for leave to appeal against conviction]

This judgment was delivered by me on 13 March 2018 at 2:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

TAMIHERE v INLAND REVENUE DEPARTMENT [2018] NZHC 392 [13 March 2018]

Introduction

[1]    The applicant, Robin Noema Hughes Tamihere, applies for leave to appeal against his 2014 conviction1 and sentence2 on 55 charges laid under the Tax Administration Act 1994.

[2]    The grounds are numerous but essentially he challenges the convictions on the basis that they were obtained by fraud and abuse of process.

Background

[3]    Mr  Tamihere  was  convicted  following  a   Judge-alone   trial   before  Judge S E C McAuslan in the  Manukau  District  Court  on  8  January  2014.  On 31 October 2014 he was sentenced to five months’ home detention.

[4]    In opposition to Mr Tamihere’s application the Crown has filed three affidavits made by employees of the  Inland  Revenue  Department  (“IRD”)  familiar  with  Mr Tamihere’s tax affairs and circumstances. They were originally prepared in advance of his trial.

[5]    These reveal that between May 1995 and March 2011 Mr Tamihere was in trade both on his own account and through a company which he incorporated in 1999 called Rags 2 Go Limited (“Rags 2 Go”) of which he was the sole director and shareholder. Rags 2 Go began to trade from late 2007. It was registered as an employer with IRD.

[6]    The relevant period of offending was between May 1995 and March 2011. During this time Mr Tamihere was solely responsible for the running of the business, the calculating and paying of wages and the preparation, signing and filing of monthly employer schedules which contained the amount of PAYE deductions payable to IRD.

[7]    No doubt as a result of concerns by IRD an investigation was commenced which revealed that Mr Tamihere was routinely deducting PAYE from the wages of

1      Commissioner of Inland Revenue v Tamihere DC Manukau CRI-2012-057-000382, 8 January 2014.

2      Inland Revenue Department v Tamihere DC Papakura CRI-2012-057-000382, 31 October 2014.

his employees but was not accounting these to IRD and was, instead, using them to fund the business.

[8]    Various discussions and meetings took place between Mr Tamihere and IRD. These were largely fruitless and Mr Tamihere’s non-compliance continued.

[9]    The investigation concluded that Mr Tamihere had failed to account for PAYE deductions to the following extent:

(a)for 18 monthly periods as a sole trader (between December 2004 and November 2007) totalling $108,289; and

(b)for 37 monthly periods in respect of  Rags  2  Go  (between  December 2007 and March 2011) totalling $61,486.

[10]   In an interview with IRD staff Mr Tamihere accepted PAYE deductions were the property of the employee and needed to be paid to IRD on a monthly basis. He also accepted that he bore the responsibility for making the payments to IRD both as a sole trader and through Rags 2 Go. He said the deductions had not been paid on time because there were insufficient funds and he had made the decision to pay other creditors in preference to IRD, because the business was unable to operate without utilities such as rent and power.

[11]   Further  discussions  with  Mr  Tamihere   were   similarly   fruitless,   with Mr Tamihere regularly challenging IRD’s authority to collect tax from him and asserting that he would opt out of his tax obligations.

[12]On 25 January 2012 IRD laid the 55 charges. These comprised:

(a)18 charges that as a sole trader he knowingly applied PAYE deductions for a purpose other than payment to IRD; and

(b)37 charges that he aided or abetted Rags 2 Go to deduct PAYE for a purpose other than payment to IRD.

[13]   The Judge-alone trial before Judge McAuslan occupied three non-consecutive days in June, July and October 2013.

[14]   Mr Tamihere was self-represented but was assisted by a McKenzie friend. In the course of the trial the Judge granted Mr Tamihere several adjournments to assist him in preparing his defence.

[15]   In a reserved judgment issued on 18 January 2014 Judge McAuslan found  Mr Tamihere guilty on all charges.3

[16]   The judgment records that Mr Tamihere’s defence centred largely upon arguments concerning sovereignty, jurisdiction and alleged bias and fraud. Some sense of the flavour of the trial can be obtained from the following extracts of her Honour’s decision:

“[3] … From the outset Mr Tamihere made his position very clear.  He did not recognise the jurisdiction of the court. He claimed that he was not guilty as he did not have to pay tax as a Maori and as a sovereign in his own right and he raised numerous objections throughout the days of the hearings. All endeavours to persuade Mr Tamihere that his position was untenable failed. He remained anxious that all his objections were noted and it is apparent from the face of the transcript that they have been.

…

[6] Mr Tamihere  has filed  a considerable volume  of documents,  in the main affidavits which in summary state that he has no obligation to pay PAYE to Inland Revenue as the Informant claims. He submits the District Court lacks the jurisdiction to hear the case and relies, inter alia, on Article 2 of the Treaty of Waitangi 1840, the New Zealand Constitution Act 1846, Section 71 of the Declaration of Independence Act 1852 (UK), the Native Courts Act 1858 and the Te [Ture] Whenua Maori Act 1993. Mr Tamihere had difficulty accepting that such arguments have been before the courts on many occasions and it has been decided by higher authority that the District Court does have the necessary jurisdiction to hear the case. Recently the argument that the courts do not have jurisdiction in relation to Maori persons, has been rejected by the Supreme Court in Wallace v R [2011] NZSC 10 … Accordingly, the argument cannot succeed in this case.

…

[39]   I also note with regret that Mr Tamihere appears to be of the view that I have committed perjury and treason, have shown bias, been negligent and amongst other things, am a liar and have failed in my duty of care of him.”

3      Commissioner of Inland Revenue v Tamihere, above n 1.

[17]   On 31 October 2014 Judge McAuslan sentenced Mr Tamihere in the Papakura District Court.4 She noted that the total tax shortfall was $169,958.40 and that, with late payments and other recovery from Mr Tamihere, this amount had been reduced to

$65,656.75 by the date of sentencing.

[18]   Mr Tamihere’s principal position at sentencing was that the Court had no jurisdiction to sentence him.

[19]   Judge McAuslan accepted the prosecution’s submission that the appropriate starting point was one of 18 months’ imprisonment having regard to Mr Tamihere’s chronic non-compliance and refusal to co-operate notwithstanding the repeated warnings he had received from IRD over some seven years. The Judge acknowledged Mr Tamihere’s lack of previous convictions.

[20]   A sentence of home detention was substituted, with the Judge reducing the term from nine months to five months to reflect the fact that Mr Tamihere had spent 11 weeks in custody following his failure to appear at the original sentencing date. She declined to order reparation on the basis that Mr Tamihere was bankrupt and was not in a position to make any further repayments.

The application for leave to appeal

[21]   In Mr Tamihere’s notice of appeal, filed on 10 January 2018, he lists a very broad and extensive range of grounds. These include:

(a)abuse of process;

(b)breach of natural justice, due process and s 25(a) of the New Zealand Bill of Rights Act 1990;

(c)lack of jurisdiction;

(d)coram non judice Court;

4      Inland Revenue Department v Tamihere above n 2.

(e)fraud (including document fraud), bias and collusion;

(f)an absence of lawfully sworn summons documents, or Crown evidence including affidavits; and

(g)breach of s 3(3) and (4) of the Inferior Courts Procedure Act 1909.

[22]   He thus claims that the decisions are nullities and were obtained by fraud. He also challenges the admissibility of IRD’s evidence at trial which he says was ultra vires and fabricated, and that consequently the decisions are based on non-existent factual findings.

[23]   The notice of appeal concludes with a statement that there is a proposed challenge to the exercise of a judicial discretion in that:

“McAuslan J abused judicial discretion to render Judgment obtained by fraud when she colluded with the Crown committing fraud and bias. Court was Coram non judice. No separation of Powers.”

Application for adjournment

[24]   On 9 February 2018 the parties appeared before Downs J who directed this matter be heard on Monday, 5 March 2018. He made timetabling orders for the filing of submissions. Mr Tamihere filed his submissions on time as did counsel for IRD.

[25]   In an email sent  to  the  Court  at  3:47  am  on  Saturday,  3  March  2018  Mr Tamihere requested a  60  day  adjournment.  In  the  attached  correspondence Mr Tamihere stated:

“I wish to inform the Court due to ill health I have been unable to fully prepare for the 5th March 2018 hearing and the fact that I am also unable to attend the Court on Monday the 5th March due to a Doctor’s appointment and WINZ appointment on that Monday.

I wish to request a 60 day adjournment to the end of May early June 2018. Kind Regards

*Diplomat and Diplomatic Federal Marshal

To the Polynesian Kingdom of Atooi

*Tamihere: Robin Noema Hughes

*United Nation’s (sic) Registration No D070419560011

*Officially Recognized Aotearoa United Nations Representative”

[26]   Below this script is what appears to be a scanned image of an identity card in Mr Tamihere’s name for the “Polynesian Kingdom of Atooi”.

[27]   When this matter was called at  10:00  am  there was no  appearance from  Mr Tamihere. I invited Mr Radich to address me on the Court’s powers to deal with the matter in the appellant’s absence.

[28]   I am satisfied I have the power to deal with this appeal on the papers for the reasons which follow.

[29]   The procedure for appeals such as the present are governed by Part 6 of the Criminal Procedure Act 2011 (“the CPA”). An appellant seeking leave to appeal is not entitled, as of right, to an oral hearing. Section 328 of the CPA provides:

“328    Hearings in District Court or High Court

(1)This section applies to applications for leave to appeal under this Part to the District Court or the High Court.

(2)The court may decide whether an oral hearing of an application should be held or whether an application should be determined just on the basis of written material provided to the court.

(3)A decision to deal with an application just on the basis of written material must be in writing, be accompanied by reasons, and be provided by the Registrar to the parties.”

[30]   On 9 February 2018 Downs J directed the application for leave to be heard on Monday, 5 March 2018 at 10:00 am. Although not explicitly stated it is apparent that his Honour and the parties anticipated that this would be an oral hearing.

[31]   Mr Tamihere’s request for an adjournment relies on a claim that he has been too unwell to fully prepare as well as an assertion that competing commitments with a doctor and WINZ means that he is unable to attend the fixture. The request is unsupported by any evidence of ill health nor any explanation to account for why these appointments are now such a priority and were not raised by Mr Tamihere when he appeared on 9 February 2018.

[32]   Mr Tamihere has filed voluminous supporting material both in the form of an affidavit and extensive written submissions. Given the nature and extent of the grounds relied upon I am satisfied  that  no  useful  purpose  would  be  served  by Mr Tamihere appearing in person to orally supplement or complement the comprehensive material he has already filed.

[33]   I have considered whether I should dismiss the application for want of prosecution. In Barnes v Police5 Woodhouse J adopted such a course where the appellant failed to appear. No written submissions had been filed. In dismissing the appeal his Honour observed that the merits of the case did not favour the appellant.

[34]   In Pollock v Police6 Heath J dismissed an application for leave to appeal out of time when the applicant failed to appear and where the applicant had failed to comply with timetabling directions.7

[35]   On the face of the material before me it would seem that Mr Tamihere has chosen to prioritise other commitments over the prosecution of his appeal.

[36]   I am nevertheless content to deal with the application on the papers. In adopting this course the only disadvantage to Mr Tamihere and IRD is that neither party has had the opportunity to orally supplement their written submissions. But for the reasons already given it is difficult to see how and in what respects Mr Tamihere might sensibly add to what he has already reduced to writing.

[37]   I am therefore satisfied that Mr Tamihere’s application for an adjournment should be declined and the application for leave determined on the papers.

Jurisdiction

[38]   Sections 232 and 250 of the CPA govern first appeals against conviction and sentence respectively. Sections 231 and 248 set out the procedural requirements for the commencement of a first appeal. A notice of appeal must be filed within

5      Barnes v Police [2016] NZHC 819.

6      Pollock v Police [2012] NZHC 2648.

7      Section 338 of the Criminal Procedure Act 2011 provides the appeal Court the power to dismiss an appeal for non-compliance with procedural orders.

20 working days after the date of the conviction and/or sentence appealed against.8 For both appeals against conviction and sentence, the time allowed for filing notice may be extended at any time by the first appeal Court.9

[39]   The test to be applied in applications to extend time to appeal under the previously operative s 388(2) of the Crimes Act 1961 was set out by the Court of Appeal in R v Knight in the following terms:10

“… the discretion is not unfettered. The touchstone is the interests of justice in the particular case. The discretion must be exercised in accordance with the policy underlying the legislative provisions. The feature which provides the reason for the time-limit for appealing set by s 388(1) is the interest of society in the final determination of litigation. That necessarily carries through as a powerful consideration in determining whether leave should be granted under s 388(2) to appeal out of time.”

[40]   The Court of Appeal in R v Lee then identified the following factors as relevant considerations:11

“… factors of relevance to the balancing test include the wider interests of society in the finality of decisions, the strength of the proposed appeal, whether the liberty of the subject is involved, the practical utility of any remedy sought, the extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown.”

[41]   The foregoing may be distilled to a few core propositions. First, the interests of justice are key; the “touchstone”. Secondly, the merits of the proposed appeal may be taken into account.12 R v Scurrah is a well-known authority for the proposition that where an appeal has no prospect of success an extension of time may be refused.13 Thirdly, the longer the period that has elapsed, the greater the requirement on the appellant to justify the delay.14

[42]   Recently, the Courts have conceptualised a two step test, guided by the interests of justice. At the first stage the reasons for delay will be considered, followed by the

8      Criminal Procedure Act 2011, ss 231(2), 248(2).

9      Sections 231(3), 248(4).

10     R v Knight [1998] 1 NZLR 583 (CA) at 587.

11     R v Lee [2006] 3 NZLR 42 (CA) at [99].

12     Genge v R [2017] NZCA 466 at [21].

13     R v Scurrah CA159/06, 12 September 2006.

14     Neilson v R [2015] NZCA 469 at [4].

merits of the proposed appeal.15 While they will not always be determinative, I am satisfied for present purposes they provide sufficient guidance.

Analysis

[43]   No doubt relying on these principles as discussed in Mikus, Mr Radich, for IRD, submits that three factors are decisive in the present application for leave. These are:

(a)the delay in filing the appeal exceeds three years and no compelling justification or explanation for that delay has been given;

(b)there is no merit in the appeal; and

(c)there are other factors which do not favour granting of leave.

[44]I shall discuss each of these principles as they apply in the present case.

(a)Is the delay explained?

[45]   Given the length of delay, this is a case where Mr Tamihere must satisfy me that compelling circumstances, approaching a level of exceptionality, exist.

[46]   Mr Tamihere’s notice of appeal and the very extensive affidavit filed in support are all but entirely bereft of any explanation as to why it has taken him more than three years to file his appeal. He refers to the fact he is self-represented and has been unable to secure legal representation observing:

“No Bar member will touch me or my Inland Revenue cases.”

[47]   He records that legal aid has been declined but also observes that he has progressed several cases through the Courts to date and that “the House of Lords stated that an appeal out of time should be allowed for fraud”.

15     Mikus v R [2011] NZCA 298 at [26], citing R v Slavich [2008] NZCA 116 at [14].

[48]   On any analysis Mr Tamihere’s claim that he has progressed several cases through the Courts is correct. He has been an active litigant in a variety of cases which include the following:

(a)a counterclaim filed against IRD in response to a notice of claim for unpaid tax debts, which was dismissed by Judge Hubble,16 and a subsequent application to appeal against that decision out of time;17

(b)a series of proceedings challenging his bankruptcy adjudication;18

(c)two applications for summary judgment against the Commissioner of Inland Revenue,19 and an application for judicial review of the strike out of those proceedings;20

(d)an application for immediate refund of $41,520.56 from IRD for GST collected from another company unrelated to the present charges, which was struck out; and

(e)a general challenge to a number of the above decisions, struck out by Paul Davison J.21

[49]   In most, if not all, of these pieces of litigation Mr Tamihere has advanced claims of sovereignty, fraud and judicial impropriety; claims which would appear to be front and centre of Mr Tamihere’s present criticisms of Judge McAuslan’s decisions.

[50]   If nothing else, this catalogue of proceedings demonstrates that Mr Tamihere possesses some degree of understanding of the Court process. He is not a litigant who

16     Commissioner of Inland Revenue v Tamihere DC Manukau CIV-2012-055-000100, 29 August 2012.

17     Tamihere v Commissioner of Inland Revenue [2013] NZHC 1651, (2013) 26 NZTC 21-021.

18 Commissioner of Inland Revenue v Tamihere [2013] NZHC 1943; Tamihere v Commissioner of Inland Revenue [2013] NZHC 1959; and Tamihere v Commissioner of Inland Revenue [2014] NZHC 2182.

19     Tamihere v Commissioner of Inland Revenue [2017] NZDC 22797.

20     Tamihere v Commissioner of Inland Revenue [2017] NZHC 2949.

21     Tamihere v Commissioner of Inland Revenue [2017] NZHC 3012.

is poorly equipped to exercise his rights or should be granted an indulgence for that reason.

[51]   Finally, despite Mr Tamihere’s broad assertions that he has been unable to engage counsel, there is no particularisation of the steps he has undertaken to get this matter brought on for hearing in a timely fashion. The papers he has filed in support of his appeal are detailed and extensive. And yet, nowhere in them is a cogent explanation for why the appeal was not filed within time.

(b)Is there any merit in the proposed appeal?

[52]   None of the grounds claimed by Mr Tamihere is capable of succeeding in either an appeal against conviction or sentence.

[53]   On these appeals Mr Tamihere seeks to re-argue the same and familiar combination of grounds; that the Court has no jurisdiction because it is a fictitious body, there have been acts of fraud by the Court, the Court is biased, Mr Tamihere is a free man and he is able to opt out of his tax obligations. It would seem that all of these issues were raised before Judge McAuslan. They did not succeed in the District Court because they were incapable of success. The same applies in this Court.

[54]   Judge McAuslan’s reserved decision and her sentencing remarks were carefully crafted and well reasoned. I am satisfied that there was sufficient evidence available in respect of each essential element of all charges to justify Mr Tamihere’s conviction. He admitted he knew his tax obligations and elected not to comply.

[55]   As for his sentence appeal I cannot find fault with Judge McAuslan’s decision in any aspect. In my view the Judge went well beyond what was required in encouraging Mr Tamihere to speak with Probation for the purposes of home detention being included as a sentencing option. For these reasons I am easily satisfied that there are no merits in either the conviction appeal or the sentence appeal.

(c)Are there any other factors present relevant to the interests of justice test?

[56]There are two further factors which support this conclusion.

[57]   First, Mr Tamihere has long since completed his five month sentence of home detention. That, of course, is not determinative when considering a grant of leave. It is, however, a relevant factor to take into account in evaluating where the interests of justice lie.

[58]   Secondly, to grant leave would be to permit what I regard as an unjustifiable use of this Court’s precious and finite resources. There is little or no public interest in having Mr Tamihere’s claims of lack of jurisdiction and fraud ventilated yet another time.

[59]   For these reasons I am not satisfied that it is the interests of justice to grant leave to appeal.

Result

[60]The application for leave to appeal out of time is refused.

Moore J

Solicitors/Counsel:

Crown Solicitor, Manukau

Copy to:

The Applicant