Tonks v The Queen - [2011] NZCA 252

IN THE COURT OF APPEAL OF NEW ZEALAND

CA749/2010
[2011] NZCA 252

BETWEEN MARK BRENDON TONKS
Appellant

AND THE QUEEN
Respondent

Hearing: 24 May 2011

Court: Randerson, Gendall and Allan JJ

Counsel: Appellant in person (with Mr G Israel as McKenzie Friend)
H Ebersohn for Respondent

Judgment: 3 June 2011 at 3.30 p.m.

JUDGMENT OF THE COURT

The appeal is dismissed.

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REASONS OF THE COURT

(Given by Gendall J)

The appellant was found guilty by a jury in the District Court at Christchurch of seven counts under s 143B of the Tax Administration Act 1994 (the Act) relating to his personal income tax returns for the taxation years ending 31 March 2004 and 31 March 2005.
Counts 1 and 2 alleged that the appellant failed to provide tax returns for the years ending 31 March 2004 and 31 March 2005 when he knew he was required to do so by a tax law and did so intending to evade the payment of tax.
Count 3 alleged he knowingly provided false, incomplete or misleading information to the Commissioner of Inland Revenue on 25 June 2007, intending to evade the assessment or payment of tax.
Counts 4 and 5 alleged that he knowingly failed to provide to the Commissioner (on 2 July 2007 and 16 July 2007) information required of him by a tax law by notices issued to him under s 17 of the Act, intending to evade the assessment or payment of tax by his building company (Prophet Industries Ltd) and himself.
Counts 6 and 7 alleged that in June 2008 he knowingly provided to the Commissioner false income tax returns for the years ending 31 March 2004 and 31 March 2005, intending to evade the assessment or payment of tax by himself. Those counts refer to him omitting the amount of income of $63,676.05 (Count 6) and $85,944.01 (Count 7).

Grounds of appeal

As best we can summarise them, the appellant’s grounds of appeal are:
·     The Crown did not prove beyond reasonable doubt that he acted knowingly and with the intention of evading the assessment or payment of tax.
·     The Crown did not produce evidence of his company’s amended tax returns which he maintained justified the personal tax returns he ultimately filed.
·     He was subjected to double jeopardy in relation to Counts 6 and 7.
·     Various other grounds involving the Wages Protection Act 1983; the Employment Relations Act 2000; and the Contracts (Privity) Act 1982.

Background facts

The appellant was the managing director of his small company, Prophet Industries Ltd, which conducted building operations between 2003 and 2006. The company’s accountant, Mrs M J Varnam, prepared accounts, PAYE and GST returns, and financial statements for the company for the years 2004 and 2005. She was not engaged by the appellant to prepare individual tax returns for him.
The company made a profit for the years ending 2004 and 2005. It was discussed between Mrs Varnam and the appellant whether the profit should be retained…

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 Tonks v The Queen

Details

AGLC: Tonks v The Queen [2011] NZCA 252
Case: [2011] NZCA 252
Decision Date: 3 June 2011

CaseChat Overview and Summary

In the case of Tonks v The Queen, the appellant, Mark Brendon Tonks, was convicted of multiple counts of tax evasion and related offences under the Tax Administration Act 1994. He appealed the decision, arguing that the Crown had not proven the necessary mens rea beyond reasonable doubt, that the Crown had failed to produce certain documents, and that he had been subjected to double jeopardy. The Court of Appeal, comprising Randerson, Gendall, and Allan JJ, reviewed the grounds of appeal to determine if they were valid. The appellant contended that he did not knowingly evade tax, as he honestly believed that he was not required to pay tax. However, the Court found that the evidence, including the appellant's obstructive conduct and his deliberate underreporting of income, supported the jury's conclusion that he acted knowingly and with the intent to evade tax. The Court also dismissed the argument regarding the lack of company tax returns, noting that the appellant's accountant's testimony provided sufficient evidence. The Court rejected the double jeopardy argument, clarifying that the counts related to different offences, and dismissed the arguments based on unrelated statutes as without merit. The appeal was ultimately dismissed, and the appellant's convictions were upheld.

The Court ordered that if the appellant had not yet commenced or completed his sentence, he must do so forthwith.

Orders