The Queen v Morris - [2007] NZCA 578

IN THE COURT OF APPEAL OF NEW ZEALAND
CA476/07
[2007] NZCA 578
THE QUEEN
v
CHRISTOPHER CLIFF MORRIS
Hearing:20 November 2007

Court:O'Regan, Williams and MacKenzie JJ
Counsel:C R Carruthers QC, and D A Ewen for Appellant

J C Pike for Crown

Judgment:14 December 2007 at 11 am

JUDGMENT OF THE COURT

LEAVE TO APPEAL IS GRANTED BUT THE APPEAL IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by MacKenzie J)
Introduction
[1]       This is an appeal against a ruling given on 30 August 2007 by Judge Barry in the District Court at Wellington on an application pursuant to s 344A of the Crimes Act 1961. It raises the issue of whether this Court may, or should, exclude, on a retrial, evidence which was not called at the earlier trial.
[2] This prosecution has a long and chequered history. The appellant was charged with 67 counts of using a tax document, namely an IR3 income tax return, with attempt to defraud, contrary to s 229A of the Crimes Act 1961 (as that section stood prior to the Crimes Amendment Act 2003). The Crown case is that the appellant and another person had devised a scheme, using a tax agency business, to defraud Inland Revenue. The alleged scheme involved the agency claiming refunds totalling $2.8 million, by claiming the deduction of expenses against resident withholding tax said to have been paid on behalf of a large number of tax payers. The Crown case is that the claims were fictitious and made on behalf of tax payers who were unaware of the claim.
[3]       In support of its case, the Crown placed strong, indeed pivotal, reliance on the evidence of an Inland Revenue investigations officer, Mr McBride. He was to give evidence of documentation from the IRD records concerning the returns of the tax payers concerned, and the refund claims. When the matter came to trial before Judge Gaskell and a jury on 9 February 2004, a point was taken as to whether Mr McBride was precluded from giving evidence by the secrecy provisions in s 81 of the Tax Administration Act 1994. To determine that point a verdict of acquittal was directed and a case was stated to this Court, which in R v Morris [2005] 2 NZLR 684 (“Morris No 1”), held that s 81 did not preclude the giving of Mr McBride’s evidence. A new trial was ordered.
[4]       That trial took place before Judge Barry and a jury in Wellington. The appellant was found guilty on all 67 counts, and appealed to this Court. In its judgment delivered on 3 October 2006 R v Morris (2006) 22 NZTC 20,056 (“Morris No 2”), this Court held that Mr McBride’s evidence of what appeared in the Department’s records was hearsay and inadmissible. The Court sought submissions of counsel on the appropriateness or otherwise of directing a re-trial. The outcome was that a re-trial was ordered.
[5]       At the behest of the defence, the Crown brought the present…

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 Morris

Details

AGLC: The Queen v Morris [2007] NZCA 578
Case: [2007] NZCA 578
Decision Date: 14 December 2007

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal by Christopher Cliff Morris against a decision made by Judge Barry in the District Court at Wellington. The appeal concerns the admissibility of evidence in a retrial, specifically whether the Crown could present evidence that was not called in the earlier trial. The appellant was charged with using a tax document with intent to defraud, and the case has a complicated history involving previous rulings on the admissibility of certain evidence.

The legal issues before the court were whether the Court of Appeal could exclude evidence on a retrial that was not called at the earlier trial and whether considerations of fairness and abuse of process should lead to the exclusion of such evidence. The court also considered whether it had jurisdiction to hear the appeal.

The court reasoned that the principle in Reid v R, which holds that the prosecution should not be given a second chance to make good evidential deficiencies, does not extend to limiting the evidence that may be adduced at a retrial. The court noted that the discretion to order a retrial is exercised by the Court of Appeal or the Supreme Court, and the powers to allow an appeal are contained in section 385(2) of the Crimes Act. The court found that the evidence in question was admissible under section 7(1) of the Evidence Act 2006 and that the broader fairness considerations did not succeed. The court concluded that the appeal was without merit and dismissed it, although leave to appeal was granted.

Orders