The Queen v Koornneef - [2009] NZCA 402

IN THE COURT OF APPEAL OF NEW ZEALAND

CA435/2009
[2009] NZCA 402

THE QUEEN

GARY ADRIAN KOORNNEEF

Hearing:2 September 2009
Court:Glazebrook, Gendall and Asher JJ
Counsel:D D Vincent and J W Cameron for Appellant

B D Tantrum for Crown
Judgment:14 September 2009 at 3.00 pm

JUDGMENT OF THE COURT

A Appeal against conviction is dismissed.

BREPARATION ORDER REMITTED TO THE DISTRICT COURT FOR REVIEW AND RECONSIDERATION.

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REASONS OF THE COURT

(Given by Gendall J)

The appellant was convicted after a jury trial in the District Court at Wellington on four counts of knowingly providing false or misleading GST returns, and four counts of knowingly not providing GST returns in breach of s 148(1) of the Tax Administration Act 1994 between September 2002 and November 2005. He made returns on behalf of a property development company, Advantage Construction and Consultancy Limited (“the company”), of which he was the sole director and his interests were the shareholders. The company had acquired properties in respect of which it claimed and received GST input tax refunds from the Department of Inland Revenue (“the Department”). The Crown case was that, when developed properties were sold, the company, through the agency of the appellant, made false GST returns, or failed to make returns so that a total sum of $2,101,500 of GST output tax payable to the Department was evaded.
The grounds upon which this appeal is based is that trial counsel, Mr J A Tannahill:
(a)failed to call as defence witnesses two persons, the appellant’s solicitor (Mr Hoggard) and accountant (Mr Turner) whom the appellant had instructed him to call as defence witnesses; and alternatively
(b)made serious errors in advising the appellant not to call those witnesses and electing as counsel not to call them.

so that a miscarriage of justice arose through the appellant being convicted on all counts.

The appeal against sentence relates solely to the order that the appellant pay reparation in the sum of $233,500.01, directed to be paid in instalments to be arranged by the Department of Collections.

Background

The appellant was, in essence, sole shareholder and director of a number of interlocking companies involved with the company. The company was in the business of acquiring realty, developing townhouses and other dwellings on the land, and then selling those properties, hopefully at a profit.
The company obtained refunds through GST input tax upon its purchases, and no doubt also upon the expenditure involved in developing the properties. However, when it came to the developed properties being sold, on eight individual occasions between 30 September 2002 and 30 September 2005, the appellant either filed no GST returns or filed false or misleading GST returns, in all instances doing so knowingly intending to evade the assessment or payment of the GST.
The defence at trial was that the appellant did not knowingly file false or misleading returns and on one instance, in September 2005, filed a nil return on the advice of Mr Turner. His position was that in all…

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 The Queen v Koornneef

Details

AGLC: The Queen v Koornneef [2009] NZCA 402
Case: [2009] NZCA 402
Decision Date: 14 September 2009

CaseChat Overview and Summary

The appeal in The Queen v Koornneef involved Gary Adrian Koornneef, who was convicted in the District Court at Wellington on charges related to the submission of false or misleading GST returns and failure to submit GST returns. Koornneef was the sole director and shareholder of Advantage Construction and Consultancy Limited, a property development company. The company had claimed and received GST input tax refunds from the Department of Inland Revenue, but allegedly evaded paying GST output tax when selling developed properties. Koornneef was convicted on eight counts of knowingly providing false or misleading GST returns or failing to provide returns, resulting in the evasion of $2,101,500 in GST output tax. The appeal against the conviction focused on whether trial counsel, Mr J A Tannahill, erred by not calling two proposed defence witnesses, the appellant's solicitor (Mr Hoggard) and accountant (Mr Turner), or by advising the appellant not to call them. The appeal against the sentence concerned the reparation order imposed on Koornneef.

The court considered the grounds for the appeal, focusing on whether trial counsel's decision not to call the proposed witnesses constituted an error that led to a miscarriage of justice. The appellant argued that his solicitor was instructed to call the two witnesses, but the court found that the appellant had merely recommended that the solicitor consult or interview the witnesses to see how they might assist in giving evidence. The court accepted Mr Tannahill's evidence that he had consulted with the proposed witnesses and concluded that their evidence could not assist the appellant and might have weakened his case. The court found that Mr Tannahill's decision not to call the witnesses was based on a careful and rational analysis and did not constitute an error or miscarriage of justice.

Regarding the sentence appeal, the court noted that the District Court Judge had ordered reparation in the sum of $233,500.01 to be paid by instalments. However, the court did not have sufficient information about the appellant's financial situation to determine if the reparation order was realistic. The court found that the District Court Judge had the authority to review and revise the reparation order if the appellant was unable to meet it. The reparation order was remitted back to the District Court for reconsideration.

In conclusion, the Court of Appeal dismissed the appeal against conviction and remitted the reparation order back to the District Court for reconsideration. The court found that trial counsel's decision not to call the proposed witnesses was based on a careful and rational analysis and did not constitute an error or miscarriage of justice.

Orders