Henderson to present case at tangled tax trial
Property developer David Ian Henderson will be allowed another go to present his case, after his main defence on tax charges was shot down today.
The 58-year-old Christchurch man had mounted his defence solely on the basis that the dates in the Crown indictment were all wrong, and when the Crown closed its case yesterday he tried to have the case thrown out.
But Christchurch District Court Judge Gary MacAskill adjourned the case overnight to allow legal submissions to be prepared and heard them at 10am today.
The charges allege that Henderson aided and abetted Dweller Ltd – a company where he was the sole director – knowingly to apply PAYE deductions from the 13 employees “for purposes other than payment to the Commissioner of Inland Revenue by the due date”. The Crown alleged Henderson arranged for the PAYE deductions to be paid to other creditors rather than the commissioner. He denies the charges.
The payments are due on the 20th of each month, and Henderson has been charged with committing the seven offences on the 21st of seven consecutive months in 2010, the day after each payment was due.
Henderson argued that the charges were wrong because he could not be charged with aiding and abetting an offence after the Crown said it had already been committed.
Crown prosecutor Chris Lange today argued that the offence was not complete until the non-payment to the commissioner took place on the 21st of the month, and after hearing from Henderson, Judge MacAskill accepted the Crown argument.
He said: “I am satisfied that the Crown’s position is correct and that the dates are correctly stated in the indictment. No offence was committed until the 20th of the month had expired. The first moment of the following day was the first moment when it could be said an offence had been committed.”
Because of the way Henderson had conducted his case – relying on the dates issue as his sole defence and not questioning any witnesses, or calling any evidence of his own – Mr Lange then raised the question of his fair trial rights.
Henderson said that as a lay litigant, representing himself, he thought he had been reasonably entitled to read the charges literally and to run his case on that basis. After the judge’s ruling against him on that issue he felt he had been prejudiced.
He said he wanted to raise issues with witnesses about his degree of knowledge of the PAYE tax position, the extent to which he had exercised control over funds at the company, and the availability of funds.
The judge then ruled that the three Crown witnesses would be recalled to allow him to question them, and that the trial would proceed. He adjourned the hearing to let the Crown inquire about getting witnesses back to court, including one who gave evidence by video-link from Newcastle, Australia. A video-link would have to be set up again. Henderson may also call his own witnesses.
Henderson then asked about preparation time, but Judge MacAskill said there would be limits. He told Henderson: “This has arisen because of a tactical error, on one view of it, by you. I can only accommodate that to a limited degree.”
Afternoon update: During further legal discussions, Henderson told the court that he was an undischarged bankrupt and could not afford legal representation but a friend had now offered to pay for a lawyer for him. The trial was adjourned for more submissions, and when they had been heard, Judge MacAskill decided it would have to be adjourned for another hearing.
It will be called at a pre-trial call-over on November 28 for a date to be set for its continuation. By then, Henderson should have counsel arranged, the Crown should know when witnesses are available, and the courts should know when the judge has more time available. Henderson remains on bail.
Category: Focus
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