David Henderson mounts an IRD ambush at trial
Christchurch property developer David Ian Henderson has ambushed the Crown at his trial on tax charges and the hearing has paused overnight to consider his point that the dates are all wrong.
The Christchurch District Court trial will resume at 10am on Tuesday to hear the Crown argue the principle that precise dates are not “an essential matter” in prosecutions.
Judge Gary MacAskill told Henderson: “Effectively the Crown has been ambushed and they need an opportunity to respond.”
The Inland Revenue Department took about four hours to present its case against 58-year-old Henderson on seven charges alleging that he misapplied deductions taken from employees for payment of their PAYE income tax, and used it to pay other creditors of his company Dweller Ltd.
When the Crown and Inland Revenue closed its case, Henderson took about five minutes to throw a legal spanner into the works with a submission that there was no case to answer. He is defending himself in the trial.
The charges allege that Henderson aided and abetted Dweller Ltd knowingly to apply PAYE deductions from the 13 employees “for purposes other than payment to the Commissioner of Inland Revenue by the due date”.
Henderson argued that the charges all specify that he committed the offences on the 21st of each month, the day after the payments were due. He told Judge MacAskill that each of the seven charges was “a legal impossibility” because any aiding and abetting would have had to have been done before the due date.
Prosecutor Chris Lange then argued that the dates referred to by Henderson were “not a material element of the offences”. He said: “Provided the court is satisfied that there was some act done proximate to that date – that time period – that’s sufficient.”
Judge MacAskill said that in other cases, inaccuracies in dates were either ignored or the indictment was amended. But he noted that Henderson had asked no questions of any witnesses and he had “kept your powder dry on the basis that you expected this argument to succeed”.
The judge said that after hearing further legal argument from 10am on Tuesday, they would have to consider what the next steps would be. He said the case would now continue until finished, although there might be delays for legal arguments to be prepared.
The IRD accuses Henderson of using employees’ PAYE tax deductions to settle accounts with other creditors in 2010. He denies all charges.
After the detailed opening address by IRD prosecutor Paul Saunders, Henderson opted not to make an opening statement for the defence and he had no cross-examination questions for any witnesses.
A schedule of deductions is filed to Inland Revenue at the end of each month, and payment is then required by the 20th of the following month. The charges relate to each month from May to November, 2010.
All but one month of the PAYE deductions remains unpaid. The total amount of money referred to in the charges is $162,946.
Henderson was the director in charge of running the Property Ventures Ltd property business which was placed into receivership in March 2010. He then agreed to take the 13 employees into a new entity, Dweller Ltd. He was the managing director of Dweller.
Schedules showing employees’ wages and PAYE deductions were all filed as required, but the Crown alleges that from April 2010 Henderson was making decisions about what creditors were to be paid.
Mr Saunders said he was the sole director of Dweller Ltd and knew that the PAYE was not being paid after being deducted. “He decided that other creditors would be paid ahead of the PAYE being paid to the Commissioner.”
Former ACT MP Rodney Hide, of Auckland, was sitting in the public gallery most of the trial.
Category: Focus
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