Woodward v The Queen
[2014] NZCA 134
•10 April 2014 at 12.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA497/2013 [2014] NZCA 134 |
| BETWEEN | BRUCE GAVIN WOODWARD |
| AND | THE QUEEN |
| Hearing: | 20 February 2014 |
Court: | Ellen France, MacKenzie and Mallon JJ |
Counsel: | W T Nabney for Appellant |
Judgment: | 10 April 2014 at 12.30 pm |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Mallon J)
Introduction
Mr Woodward was convicted following a Judge-alone trial on a number of charges of tax evasion and one charge of perjury.[1] The perjury charge was for making a false statement in an interview conducted as part of an Inland Revenue Department investigation.[2] He appeals against his conviction on the perjury charge. He contends that his statement was capable of having more than one meaning and that therefore the prosecution needed to prove that the innocent meaning was not the one intended and that the trial Judge (Judge Ingram) failed to approach it this way.
Background
[1]R v Woodward DC Tauranga CRI-2011-070-3626, 12 March 2013. Mr Woodward was charged with 32 counts of tax evasion under the Tax Administration Act 1994 relating to his personal affairs and those of his company, Turnstyle Management Ltd [TML] and was convicted on 12 of those counts. The relevant statutory provisions relating to perjury are ss 108 and 109 of the Crimes Act 1961, and see Tax Administration Act, s 19(5).
[2]Tax Administration Act, s 19.
Mr Woodward worked as an accounting professional for many years. He had accounting responsibilities for a number of entities. They included Bilbie Dymock Corp Ltd (later renamed Massey Investments Ltd) in which Mr Woodward obtained an ownership interest. That company owed a debt to Mr Woodward. It was sold to interests associated with Mr Stott, a businessman who conducted his businesses under the umbrella title of the Land Equity Group of companies. Mr Woodward provided accounting advice and services to the Group for a number of years. Towards the end of his work for that group and subsequently he worked for Kidicorp Ltd. He also incorporated Turnstyle Management Ltd (TML) from which he began to conduct his accounting business.
For many years Mr Woodward failed to file income tax returns, intermittently filed GST returns and usually failed to make payment of the GST amount due. From 2005 and subsequently Inland Revenue corresponded with Mr Woodward requesting that he ensure that TML comply with its tax obligations. As noted by the Judge this was a “lengthy, but largely one-sided correspondence”.[3] Many of these letters went unopened by Mr Woodward. In February 2008 Inland Revenue conducted an inquiry under s 19 of the Tax Administration Act 1994 into the Land Equity Group affairs. Mr Woodward was required to attend and did so. He said that his own tax affairs were in disarray. Subsequently Inland Revenue made further attempts to have Mr Woodward comply with his tax obligations. A default assessment was issued in January 2009.
[3]R v Woodward, above n 1, at [42].
In the course of Inland Revenue’s inquiries it noted various irregularities. It issued a notice requiring Mr Woodward to attend as a witness under s 19 of the Tax Administration Act. That notice was dated 17 July 2009 and requested:
Accordingly, the Commissioner ... requires you by this written notice to attend and give evidence before Colin Hutchins, regarding your involvement in, and knowledge of, the following:
1.Your personal tax affairs;
2.Your role as Financial Advisor and/or Accountant for the Land Equity Group;
3.Your role as Financial Advisor and/or Accountant for Bilbie Dymock Corporation;
4.Your role as Director of the following companies (“the relevant entities”):
i. Massey Investments Limited (previously known as Bilbie Dymock Corporation Limited)
...
iv. Megacentre Investments Limited (previously known as Newgate Limited)
…
viii. Land Equity Development Limited
...
xi. Turnstyle Management Limited
5. The following companies:
i. Mitchell Investments Limited …
...
You are further required to bring the following documents to the inquiry:
...
2.Documents relating to the $306,495 payable to you from Massey Investments Limited.
3.Any documents or agreements you hold regarding Clive Bilbie, Marcus Dymock and Donald Stott or any of the relevant entities.
...
8.All records held in regards to Turnstyle Management Limited, including but not limited to, all tax invoices issued by the company and financial accounts for the years the company was in existence.
The letter which accompanied the notice advised Mr Woodward that he could not refuse to answer questions on the basis that he might incriminate himself. He was further advised that “anything you say in this interview cannot be used in any criminal proceedings against you, except on a charge of perjury”.
In response to the request Mr Woodward attended an interview on 11 August 2009. At the beginning of the interview he made an affirmation. The advice in the letter (referred to above at [5]) was repeated. Mr Woodward was asked if he understood this and he confirmed that he did. The following exchange took place between Mr Woodward and an Inland Revenue officer (Mr Hutchins):
[Colin Hutchins (CH):] You were required to bring certain documents to this inquiry if you had them in your possession or control. Have you brought anything with you?
[Bruce Woodward (BW):] I have brought some documents with me, ah, not complete, but um, we can run through those as we get to specific points.
CH: Well, let’s just have a look at them now.
BW: The, the, documents I’ve brought with me relate to my own person ah tax affairs and that of ah Turnstyle Management.
CH: Okay.
BW: Those are the only documents I have in my possession.
The following day (12 August 2009), Inland Revenue officers executed search warrants at Mr Woodward’s home and workplace. In doing so, they located a number of documents that fell within the parameters of the s 19 notice, which Mr Woodward had not produced at the interview. Some of these were documents on his computer. Other documents were found in a cabinet drawer (miscellaneous documents relating to TML), in a rubbish bin (a TML invoice) and in a shelf (silver folder labelled Mitchell Investments Ltd). There were also documents in a yellow folder sitting on Mr Woodward’s desk.
Mr Woodward made the following unprompted remark to the Inland Revenue officers conducting the search:[4]
… you will have found the documents in the yellow folder ... I have been thinking about them and I should have given them to you. I have perjured myself haven’t I?
[4]R v Woodward, above n 1, at [164].
On 28 August 2009 Inland Revenue wrote to Mr Woodward advising him of their concerns as to the failure to provide all relevant documents at the 11 August 2009 interview. The letter sought further information about the documents in the yellow folder. On 24 November 2009 Mr Woodward replied to that letter. He said that he had received the documents in the yellow folder following a meeting with a Mr Wright on about 8 August 2009. He said that Mr Wright asked him to review the documents to help clarify his recollection about a particular transaction (referred to as “the Megacentre transaction”). Mr Woodward said that he had completed a chronology of the documents in that folder. That chronology was in the folder when it was uplifted by Inland Revenue during the search. Mr Woodward said:
I believe I answered all questions truthfully and to the best of my ability. Whilst I accept that I should have made arrangements in respect of the documents in the yellow folder I was still in the process of identifying the implications of its content. Furthermore they were in my possession to undertake a project for Wayne Wright, I am unsure if that is relevant.
At a later interview with two Inland Revenue officers on 24 February 2010 Mr Woodward explained his failure to bring the documents in the following terms:
Keryn:… you were asked to provide all your information as for regarding Turnstyle and that
Bruce: Ok I overlooked that and so many other things going on I could have brought along that file ah then when you um searched my house ah
Keryn: But you didn’t
Bruce: I assumed because you uplifted some things and I assumed the file was there you looked at it or you
Georgina: Having said that the interview that you were meant to bring the information to was the day before
Bruce: Was I meant to bring in
Georgina: Yes and you did provide some information on Turnstyle
Bruce: Right ok so ok the level of detail there everything including parking tickets I think I have on that file again I’m sure there’s something missing. But um, I’m happy to provide that to you it certainly wasn’t withheld through any intent ah sitting in my house in plain view but obviously overlooked because of where it was um I’d say nothing more about that.
The trial
An indictment was laid against Mr Woodward on multiple counts of tax evasion and the one count of perjury. The perjury count charged that on 11 August 2009 Mr Woodward made a statement (that the documents he brought to the inquiry were the only documents in his possession relating to his personal tax affairs and that of TML) on oath as a witness at an inquiry under s 19 of the Tax Administration Act, which statement was known to be false and was intended by him to mislead.
Mr Woodward was tried before Judge Ingram in the District Court. Although the particulars of the perjury count concerned documents relating to Mr Woodward’s personal affairs and TML, in opening for Mr Woodward his counsel focussed on the documents in the yellow folder. He said that Mr Woodward’s position would be “that he’d only just received [the yellow folder], hadn’t given any consideration to the contents and wasn’t aware of its relevance, if any, to the investigation”.
In his evidence on this count, Mr Woodward said that Inland Revenue’s enquiries related to a number of other entities and then it shifted to TML and his personal tax affairs. However, when he received the notice he still “felt very much the focus was on these other entities”. In relation to Land Equity Group invoices which he had not brought to the interview, Mr Woodward said that he had given up hope of being paid for those so they were “basically, rubbish”. In relation to the yellow folder, Mr Woodward said there was nothing in that folder which had come out of his files and nothing in there that related to him personally or TML. He said that he had the yellow folder for a only a day or two and he “wasn’t sure what was in it” but it did not contain documents relating to TML or him personally and so he did not consider them to be relevant.
Mr Woodward was asked specifically what he meant when he said “I have brought some documents with me, ah, not complete, but um, we can run through those as we get to specific points.” He said:
Well I felt I hadn’t got everything. I probably didn’t consider, really, that I brought very little. So when I said, “not complete” it was inevitable that there was going to be something missing from it as obviously it turned out there was.
He was also asked what he meant when he said “[t]hose are the only documents I have in my possession.” He said:
I don’t know. I don’t know because, you know, subsequent events have identified the files at home. I don’t know whether I didn’t take it seriously or what. I’ve got into events that were too big for me to handle. There were section 19 – the section 19 which was covering things that had affected me for 15 years. Ah, I was in a bit of shock, both leading up to the section 19, at the section 19 and the following day when my house was raided and my office was raided.
He said he did not intend to mislead Inland Revenue, he expected that Inland Revenue would already have the relevant documents in their possession and he volunteered a file after the search which Inland Revenue had not found. In cross‑examination he accepted that he knew that the answer he gave at the interview about the documents in his possession was not correct.
In closing submissions Mr Woodward’s counsel again focussed on the documents in the yellow folder. He submitted that:
(a)the yellow folder did not contain documents relating to TML or Mr Woodward;
(b)at the time of the interview Mr Woodward considered there was nothing of relevance to the inquiry in the yellow folder; and
(c)Mr Woodward did not intend to mislead the Inland Revenue officers.
In considering whether the charge of perjury was proven the Judge rejected Mr Woodward’s evidence that he was unsure whether or not he was required to disclose the documents in the yellow folder and that he had not intended to mislead anyone. This evidence was contrary to his unprompted comment the next day to the Inland Revenue officers that he had perjured himself. As he accepted in cross‑examination, when he said “[t]hose are the only documents I have in my possession”, he knew he was not telling the truth. The Judge was satisfied beyond reasonable doubt that Mr Woodward made an untrue statement, knowing it was untrue, intending it to be acted upon, and intending to mislead Inland Revenue’s inquiry.[5] He therefore convicted Mr Woodward on the perjury count.
Appeal ground
[5]R v Woodward, above n 1, at [169].
Counsel for Mr Woodward submits that Mr Woodward’s responses at the 11 August 2009 interview were ambiguous. Mr Woodward told the investigators that he had brought “some documents” with him which were “not complete”. He then made it clear that the only documents he had brought with him related to his personal tax affairs and TML. Therefore, when he said that “[t]hose are the only documents I have in my possession” he could have meant:
(a)he had only brought documents relating to himself and TML and those were the only documents he physically had in his possession at the interview; or
(b)he had no other documents either with him at the interview or elsewhere that related to his personal tax affairs or TML; or
(c)he had no other documents relating to the Land Equity Group either with him at the interview or elsewhere.
Of these possibilities only the first was a true statement. There were both TML documents and documents relating to the other entities referred to in the notice which were found during the search (refer above at [7]). Because, however, the first possibility would be a complete answer to the charge, counsel for Mr Woodward submits that the prosecution needed to prove that this was not the meaning of Mr Woodward’s responses. Counsel submits that the Judge erred by not approaching the charge in this way.
We do not accept this submission. At trial Mr Woodward was asked what he meant when he gave the responses on which the perjury count was brought. Mr Woodward did not say that he meant that he had only brought documents relating to himself and TML but these were not complete and he had more relevant documents at home or at his office. Nor had Mr Woodward said that when he was questioned on the matter in November 2009 or February 2010. Rather, consistent with what he said in November 2009, at trial he said that he had not brought the yellow folder because he was not sure of its contents (except that they did not relate to TML’s or his personal tax affairs) and was accordingly unsure whether or not he was required to disclose them. He also said that he was in shock at this time and that he thought it was inevitable that something would be missing.
The Judge did not accept Mr Woodward’s evidence that he was unsure whether or not he was required to disclose the documents in the yellow folder. That finding was open to the Judge given that:
(a)it was clear in the notice that the documents to be provided related to other entities (not just TML and Mr Woodward personally);
(b)Mr Woodward had prepared a chronology of the documents in the yellow folder and therefore must have known that those documents were within the scope of the notice;
(c)Mr Woodward said to the Inland Revenue officers on the day of the search that he thought he had committed perjury;
(d)there were other TML documents found during the search (including a TML document in the rubbish bin); and
(e)Mr Woodward accepted in cross-examination that he knew he had not truthfully answered the investigators when he said that “[t]hose are the only documents in my possession.”
Therefore, although on the face of it Mr Woodward’s responses were ambiguous, Mr Woodward’s evidence did not support the innocent meaning now put forward on this appeal. This was not a case where two inferences (one innocent and one not) were equally available on the evidence. Rather the evidence supported the Judge’s conclusion on the charge.
Result
The appeal is dismissed.
Solicitors:
Burley Attwood Law, Tauranga for Appellant
Crown Law Office, Wellington for Respondent
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