NASEEB v COMMISSIONER OF INLAND REVENUE [2019] NZHC 3382

NASEEB v COMMISSIONER OF INLAND REVENUE [2019] NZHC 3382 [18 December 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-394[2019] NZHC 3382BETWEEN MOHAMMED NASEEB and REHANAALIAppellantsAND COMMISSIONER OF INLANDREVENUERespondentHearing: 16 December 2019Appearances: A Rasheed for the AppellantsM Regan for the RespondentJudgment: 18 December 2019JUDGMENT OF GORDON JThis judgment was delivered by meon 18 December 2019 at 12 noonRegistrar/Deputy RegistrarDate:Solicitors: Crown Solicitor, ManukauA Rasheed, AucklandIntroduction[1] On 21 February 2017, charges were filed in the Manukau District Court againstthe appellants, Mohammed Naseeb and Rehana Ali. Each was charged with 69offences under the Tax Administration Act 1994 for alleged offending in the taxperiods from 2010 to 2015. Thirty eight of the charges are pursuant to s 143B(2) andallege evading or attempting to evade the assessment or payment of taxes (forthemselves or for another person), and 31 charges are pursuant to ss 143A(1)(d) ands 148, alleging aiding and abetting a company and failing to account for PAYE.[2] On 3 May 2017, Mr Naseeb and Ms Ali, through their then counsel, enterednot guilty pleas to all charges and elected a Judge-alone trial. On 9 October 2018, theappellants, now represented by new counsel, Mr Rasheed, sought leave to change theirelection of a trial by Judge-alone to trial by jury, pursuant to s 51 of the CriminalProcedure Act 2011. The application was opposed. On 1 August 2019, JudgeMcIlraith refused the application.1[3] The appellants seek leave to appeal the District Court Judge's decision on thebasis that:(a) First, the Judge erred in finding that the appellants' change of counseland subsequent provision of expert advice did not, individually or incombination, constitute a change in circumstances;(b) Secondly, the Judge erred in ruling that even if he had found a changein circumstance, it would not reasonably have affected the appellants'decision of whether to elect trial by jury; and(c) Thirdly, the Judge erred in refusing to exercise his discretion to grantthe appellants' application and not considering factors such as theappellants' fundamental right to a jury trial.1 Commissioner of Inland Revenue v Naseeb [2019] NZDC 14889.Factual background[4] I repeat the summary of facts as set out in the District Court decision:2[1] Mr Naseeb and Ms Ali have each been charged with 69 offences underthe Tax Administration Act 1994. 38 are pursuant to s 143B(2) allegingevading or attempting to evade the assessment or payment of taxes (forthemselves or for another person) and 31 are pursuant to ss 143A(1)(d) and148 of the Act alleging aiding and abetting of Supreme Construction Civil andDrainage Works Company Limited [of which Mr Naseeb was the soleshareholder/director] and failing to account for PAYE.[2] The alleged offending relates to tax periods between 2010 and 2015.The essential allegation is that the defendants knowingly failed to providetheir tax agent with their personal bank accounts, in which significant amountsof income was being deposited, and also provided the tax agent with falseexpense claims, causing the returns prepared by the agent to be false andthereby evading tax assessment and/or payment. For other tax periods, it isalleged that the defendants simply failed to file any tax returns at all to evadethe assessment and/or payment of corresponding taxes and, in relation toSupreme, failed to account for PAYE.Procedural background[5] For completeness, I set out the procedural background:(a) 21 February 2017: The prosecution is commenced by filing of charges.(b) 18 April 2017: Full disclosure is provided to the appellants' thencounsel, Mr Kennedy.(c) 3 May 2017: The appellants appear in court represented byMr Kennedy and enter not guilty pleas through counsel to all charges.An election of Judge-alone trial is noted on the charging documents.(d) 11 July 2017: At a case review hearing, Mr Kennedy seeks to withdraw.Mr Broad appears as new counsel for Mr Naseeb. Ms Ali is representedby a duty solicitor, and she advises the court that she is applying to legalaid to obtain her own counsel.(e) 21 July 2017: Mr O'Brien advises he is now acting for Mr Naseeb.2 Commissioner of Inland Revenue v Naseeb, above n 1.(f) 1 August 2017: Mr Kennedy is re-instructed for both appellants.(g) 10 August 2017: Mr Kennedy files a memorandum with the courtconfirming that he is acting for both appellants and seeks anadjournment of the case review hearing scheduled for 11 August 2017.A new case review date is set for 5 September 2017. The case reviewis subsequently adjourned until 25 October 2017 to enable Mr Kennedyto review documentation and disclosure.(h) 25 October 2017: At the case review, the matter is adjourned to5 December 2017 at the appellant's request.(i) 5 December 2017: An unrelated issue is addressed.(j) 13 December 2017: The proceeding is adjourned to a further casereview hearing scheduled for 26 April 2018.(k) 23 April 2018: Mr Rasheed, current counsel for the appellants, files amemorandum with the court advising that he is now instructed by theappellants and requesting an adjournment of the case review hearing.(l) 26 April 2018: The case review takes place. Mr Rasheed indicates thatfurther time is sought to allow forensic analysis to be undertaken by anexpert retained by the appellants with the hope of seeking resolution.The court is advised that the appellants are not denying the charges butare disputing quantum. An adjournment is granted to a further casereview hearing on 20 June 2018. The appellants are advised that if noresolution occurs by the next hearing, a Judge-alone trial will be set.(m) 20 June 2018: The scheduled case review hearing is adjourned until3 July 2018 to enable the prosecutor to consider a report provided byDeloitte to the appellants.(n) 3 July 2018: A further adjournment of the case review is sought by theappellants to enable Deloitte to continue to provide expert assistance tothem. This is opposed by the prosecutor.Judge McIlraith directs that the matter needs to proceed to trial. A five-day fixture is requested by the prosecutor. No dates are available at thetime, so the matter is adjourned to a callover hearing on 17 July 2018.The parties are subsequently advised by the registry of a fixture datecommencing 26 November 2018. This date is not suitable toMr Rasheed. So, a teleconference is scheduled for 2 October 2018 toset a trial date.(o) 2 October 2018: The scheduled teleconference is unable to proceed dueto technical difficulties.(p) 9 October 2018: Mr Rasheed files a memorandum advising of theappellants' application to change their election.(q) 22 May 2019: The appellants' application to change their election washeard by Judge McIlraith. The hearing was adjourned, part-heard, toenable Mr Rasheed to file further material, including affidavits fromthe appellants.(r) 1 August 2019: Having received the above material, Judge McIlraithissued his reserved decision declining the application.District Court decision[6] The District Court Judge first set out the procedural history and relevantstatutory provisions relating to the election of a trial by jury. Then, the Judge,following the approach in Hala v Police,3 continued as follows:43 Hala v Police [2015] NZHC 1665.4 Commissioner of Inland Revenue v Naseeb, above n 1.Change in circumstances[18] Step 1 requires an objective inquiry to determine whether, on the facts,there has been a change in circumstances. Mr Rasheed submits that there hasbeen such a change in circumstances. In particular, he submits that until thedefendants received proper and thorough advice as to their situation and, inparticular, received a draft report from Deloitte, they were not able tounderstand the nature and extent of the allegations made by the Commissioner.Further, they were not in a position to challenge both the allegations madeagainst them and the amount and type of tax alleged to have been evaded.[20] The defendants have expanded upon those submitted circumstancesin affidavits of Ms Ali and Mr Naseeb dated 22 May 2019. In those affidavitsthe defendants also set out their dissatisfaction with their earlierrepresentation. In particular, they are critical of the advice provided to themby Mr Kennedy [their former counsel] and assert a lack of understanding atthe time of an election for Judge alone trial being made on 3 May 2017.[23] [The Commissioner] submitted that there is nothing particularlycomplex about this case He notes that the quantum of tax is irrelevant forproving the charges and that what is primarily at issue in this case is whetherthe defendants [breached the relevant provisions of the Tax AdministrationAct 1994] He submitted that the focus [of Mr Rasheed's submissions] hadbeen on the quantum of tax and that while that can be disputed, that is a matterfor sentencing should the defendants be found guilty.[26] I cannot accept Mr Rasheed's proposition. I consider that MrRasheed's submissions overlook the key point made by [the Commissioner]namely what is primarily in issue in this case. It is clear from the affidavitsprovided that there was sufficient information available to Mr Kennedy andsufficient discussions with the defendants to enable an informed decision tohave been made at that change. There has not been a change of circumstances.Change of circumstances reasonably affecting decision on election[27] Given my conclusion with respect to the first step it is not necessaryfor me to determine this matter. However, had I needed to do so, I would nothave accepted that the receipt of the Deloitte report combined withMr Rasheed's more thorough advice, reasonabl[y] affected the decision onelection. I accept [the Commissioner's] submission that there has been noexplanation of how the Deloitte report creates a proximate link to the electionmade. That conclusion is easily reached when one focuses upon the primaryissues at trial.[Exercise of discretion][29] The third step, exercise of discretion, which is reached only if steps 1and 2 were satisfied, would have required me to consider matters of delay, costand proportionality as discretionary factors to be weighed. I would not haveexercised the discretion to permit a change of election. [7] Accordingly, the Judge refused re-election of a trial by jury and concluded thata "Judge alone trial needs to be set as a matter of urgency".5The lawElection of trial by jury[8] Section 50 of the Criminal Procedure Act 2011 (CPA) provides, "A defendantwho is charged with a category 3 offence, and who pleads not guilty to that offence,may elect to be tried by a jury." Section 51 of the CPA then provides:51 Timing of election(1) An election under section 50 must be made at the time of entering aguilty plea, unless the defendant obtains the leave of the court undersubsection (2).(2) The court may grant leave to make an election at a later time, but onlyif the court is satisfied that there has been a change in circumstancesthat might reasonably affect the defendant's decision whether to electa trial by jury.(3) The court must not grant leave under subsection (2) after a Judge-alone trial has commenced.[9] Moore J, in Hala v Police, expressed the approach to subs (2) in this way:6(a) the Court must first satisfy itself there has been a change incircumstances (Step 1);(b) it must consider whether that change in circumstances mightreasonably affect the defendant's decision to elect trial by jury(Step 2); and(c) if Steps 1 and 2 are met, it must consider whether to exercise itsdiscretion to grant leave (Step 3).5 At [29].6 Hala v Police, above n 3, at [29].The approach on appeal[10] In Anderson v R, the Court of Appeal held that the High Court and Court ofAppeal have jurisdiction, under s 296 of the CPA, to hear an appeal in relation todecisions not to grant leave to change an election.7[11] Section 296 provides as follows:296 Right of appeal(1) This section applies if a person has been charged with an offence.(2) The prosecutor or the defendant may, with the leave of the first appealcourt, appeal under this subpart to that court on a question of lawagainst a ruling by the trial court.(3) The question of law in a first appeal under this subpart might arise—(a) in proceedings that relate to or follow the determination of thecharge; or(b) in the determination of the charge (including, withoutlimitation, a conviction, an acquittal, the dismissal of thecharge under section 147, or a stay of prosecution).[12] The requirement in subs (3)(a) that the ruling "relate to the determinationof a charge" means there must be a sufficiently close connection between theproceedings in issue (here, the election of trial by jury) and the determination, albeitnot necessarily a temporal connection.8 A decision refusing to grant leave to changean election falls within subs (3)(a) as the decision as to whether a trial is to be heardby a judge or a jury is closely linked to a charge's determination.9[13] "Questions of law" in the context of s 296(2) must raise one or more of thethree standard errors classified by modern authorities as creating a question of law:10(a) a misdirection of law apparent in the decision (what Fisher J called "aconventional legal question on unchallenged facts");117 Anderson v R [2015] NZCA 518, [2016] 2 NZLR 321 at [58].8 At [41]–[42].9 See Simon France (ed) Adams on Criminal Law — Procedure (online looseleaf ed, ThomsonReuters) at [CPA296.02(3)].10 Brown v R [2015] NZCA 325 at [16].11 Auckland City Council v Wotherspoon [1990] 1 NZLR 76 (HC) at 86.(b) oversight of a relevant matter, or consideration of an irrelevantmatter;12 or(c) a factual finding unsupported by any evidence, or an omission to drawan inference of fact which is the only one reasonably possible on theevidence.13DiscussionStep 1 — Change of circumstances?[14] The change in circumstance must be fundamental, that is to alter the nature ofthe case to be tried. A mere change of heart or legal strategy, on its own, will notconstitute a change of circumstances.14[15] It is for the defendant (here, the appellants) to show that something materialhas changed since the election was made and that the change is proximately linked tothe election of trial by jury.15 Notwithstanding this, the language of s 51(2) is that thecourt must be "satisfied" — the court must evaluate all relevant matters and "come toits own objective view" as to whether or not there is a change in circumstances.16Change of counsel (failure to advise of right to elect jury trial?)[16] Mr Rasheed submits that the Judge "erred in finding that change in counselwas not a change in circumstances". In particular:It is submitted that change in counsel and the substantive change in the natureof advice received by the appellants from new counsel, which inter aliaresulted in an expert report, were ample grounds for a finding that the changein circumstances requirement had been satisfied.[17] The focus of the submissions in the District Court was whether, in the absenceof the Deloitte report, the appellants were able to understand both the nature and extentof the allegations made by the Commissioner. In the District Court, Mr Rasheedsubmitted that it was only after receipt of advice from Deloitte that he was in a position12 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [25]; and Vodafone NewZealand Ltd v Telecom New Zealand Ltd [2010] NZSC 138, [2012] 3 NZLR 153 at [51].13 Bryson v Three Foot Six Ltd, above n 12, at [26]; and Vodafone New Zealand Ltd v Telecom NewZealand Ltd, above n 12, at [52].14 Parfoot v R [2018] NZHC 2702 at [33].15 See, generally, Hall v R [2017] NZHC 1489 at [49].16 At [53].to properly advise the appellants, and it was only at that point the appellants hadbecome aware of the substantive issues for trial so as to be able to make an informedelection.[18] That focus is reflected in the first ground of appeal which, as noted, allegesthat the Judge erred in finding that the appellants' change of counsel and subsequentprovision of expert advise did not, individually or in combination, constitute a changein circumstances. However, in my view, there is the further issue of whether theappellants were advised of their right to elect trial by jury prior to making the election.[19] The Judge did not make a specific finding as to whether or not the appellantswere advised of their right to elect trial by jury. That is understandable given the wayin which the application was argued before him. However, both appellants refer to theelection in their affidavits. Given the importance that the courts have placed on thefundamental right of a defendant to be advised of his or her right to elect trial by jury,17I first turn to examine the evidence available to the District Court Judge on this issue.[20] In her affidavit, Ms Ali says:43. Now that we understand how the charges work, we are very clear thatwe would like to go to a jury trial. I do not know by which time Mr Kennedycould, or should, have made this decision for us, but I do know that we neverdiscussed it at any time. We never discussed issues like what will happen attrial or what we might need to do before going to trial or what we need toconsider before deciding to go to jury trial.[21] I draw the inference from Ms Ali's evidence that she and Mr Naseeb were toldof their right to elect a jury trial, but her complaint is that there was a lack ofinformation available to them (such as is now available in the Deloitte report), andtherefore a lack of discussion with counsel on that issue, at the time of the election.[22] Mr Naseeb however says:53. We were not spoken to about things like "plea", "trial", "jury".17 See New Zealand Bill of Rights Act 1990, s 24(e); S (SC36/18) v R [2018] NZSC 124, [2019]1 NZLR 408 at [49]; and Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at[19]–[20]. See also Parfoot v R, above n 14, at [23] and [26]; Niuia-Tofa v Police [2019] NZHC1003 at [14]–[15]; R v N [2019] NZHC 2163 at [52]–[64]; Kumar v Police [2018] NZHC 3202 at[10]; and Smith v Police [2016] NZHC 2796.54. We were never asked about anything related to jury trial[s] so we don'tknow how the lawyer could have decided that without asking or explaining.When we were explained by our current lawyer the differences between judgeand jury trial it was very clear to us that it is important to have a group ofpeople from the public who may have understanding and experience of whatwe were going through during different times. We had no such discussionwith our previous lawyer.[23] Mr Naseeb appears to say that the decision on whether to elect trial by jury wasmade by Mr Kennedy and that they were not told about a "jury".[24] Mr Naseeb and Ms Ali signed a waiver of privilege in relation tocommunications with Mr Kennedy. There was no waiver of privilege in relation tocommunications with Mr Broad or Mr O'Brien. There was disagreement betweencounsel as to when the advice that privilege had been waived was made known to theprosecution. At the latest, it was made known by 14 May 2019. On that date, MrRasheed responded, by email, to a query from the prosecutor the previous day andadvised that there had been a waiver of privilege (in relation to Mr Kennedy). A copyof the signed waiver was not attached to Mr Rasheed's email and the prosecutor didnot ask for a copy.[25] It appears that the prosecutor made efforts to speak to Mr Kennedy, finallydoing so on 20 May 2019.[26] In his District Court submissions of 26 April 2019, Mr Rasheed stated that hehad provided Mr Kennedy with a full waiver of privilege from the defendantsrequesting release of all information pertaining to instructions and advice.Mr Rasheed's submissions record that Mr Kennedy responded that he did not haveany material to provide to counsel.[27] The prosecutor, in his District Court submissions of 21 May 2019, referred tothe difficulty in contacting Mr Kennedy and that, in those circumstances, he had notbeen able to obtain any meaningful response from Mr Kennedy. The prosecutor wenton to say in his submissions that, if the Court were to find, upon the new material (inand annexed to the appellants' affidavits), that the application might succeed, anadjournment was sought to allow time for Mr Kennedy to provide a response to thoseaffidavits.[28] The prosecutor's submissions then focused on whether the appellants'communications with Mr Kennedy, as evidenced by the annexures to Ms Ali'saffidavit, demonstrated that there had been substantial analysis of the bank statements(during the period when Mr Kennedy was acting) relied on by the prosecution. Inother words, as already noted, the primary focus was on whether the Deloitte reportwas a change in circumstances.[29] Mr Rasheed filed further submissions in reply dated 10 June 2019. This Courtwas told that, by consent, there was no further hearing of the matter. It was determinedby the Judge on the basis of the written submissions and affidavits.[30] In the absence of any affidavits or viva voce evidence from prior counsel andof any cross-examination of the appellants, the evidential basis that the Judge was leftwith were the two affidavits from the two appellants.[31] I accept that Mr Rasheed's affidavit might be read so as to draw the inferencethat he and Ms Ali were not told at all of the right to elect trial by jury. However,Ms Ali's affidavit is framed differently. Her evidence is effectively that they were notable to make a meaningful election in the absence of the kind of information that sheand Mr Naseeb now have in their possession. She does not say that they were not toldat all about the right to elect trial by jury. The inference is that they were told. Thecomplaint is that they (the appellants) did not have all the necessary information tomake an informed election at the time.[32] Accordingly, although the District Court Judge did not make an explicit findingthat Mr Naseeb and Ms Ali were told of the right to elect trial by jury, I do not considerthere was an error here. Having regard to what Ms Ali said, I do not consider the Judgecould have been satisfied (as required under s 51(2) of the CPA) that the appellantswere not told of the right to elect trial by jury. The Judge therefore focused, correctlyin my view, on whether there had been a change in circumstance as a result of changeof counsel and the provision of the Deloitte report.[33] For completeness, I note the respondent's submission that, when pleas wereentered, Mr Kennedy verbally elected Judge-alone trial (despite not needing to specifythis as a Judge-alone trial is the default position). Entry of those pleas andspecification of the election occurred in the presence of both appellants. Mr Regan,for the respondent, submits that it would have been highly unlikely for Mr Kennedyto have specified a Judge-alone trial without having first discussed this with theappellants. It is said that the Commissioner made the same submission at firstinstance.[34] However, it is unclear to me on the evidence available whether or notMr Kennedy made a verbal election. All that is available to this Court is a copy of anentry made on the District Court file for 3 May 2017, which includes "NG. JAT". Inother words, it is not clear whether this is simply a notation of the Judge of the defaultposition of a judge alone trial. I therefore put that to one side.[35] The important point is that there was insufficient evidence available to satisfythe Judge that the appellants were not advised of their right to elect trial by jury(viewing that issue as part of the change of counsel ground).Provision of expert advice (Deloitte report)[36] Next, I turn to the primary focus of Mr Rasheed's submissions, namely thatreceipt of the draft expert report prepared by Deloitte resulted in identification of"major errors in the [Commissioner's] analysis" and that this "helped focus areas ofchallenge for trial" and highlighted the merits of a jury trial.[37] Mr Rasheed further submits that the case involves "issues commonlyconsidered jury issues — whether the alleged act occurred and the associated issuesof credibility".18 The appellants will need to explain tax discrepancies, and that willinvolve issues of credibility. Mr Rasheed submits that the Deloitte report establishesthe complexity of the allegations. And, he says, it is unreasonable to expect a fullyinformed election to have been made prior to receiving the report.18 Relying on Niuia-Tofa v Police, above n 17, at [16] and [29].[38] The Judge acknowledged similar submissions raised by Mr Rasheed in theDistrict Court.19 However, he concluded that he "cannot accept Mr Rasheed'sproposition".20 The Judge noted that the primary issue in the case was whether or notthe offences are made out, not the quantum (which is the focus of the Deloitte report).21I set out the relevant paragraph of the Judge's decision in full:[26] I cannot accept Mr Rasheed's proposition. I consider thatMr Rasheed's submissions overlook the key point made by Mr Broczek [forthe Commissioner] namely what is primarily in issue in this case. Mr Rasheedhas submitted that given the complexity of the factual circumstances it is onlyreasonable that the defendants have the right to have the allegationsdetermined by a jury. That assessment could undoubtedly have been made inMay 2017. It is clear from the affidavits provided that there was sufficientinformation available to Mr Kennedy and sufficient discussions with thedefendants to enable an informed decision to have been made at that stage.There has not been a change of circumstances.[39] The Judge noted the Commissioner's submissions that at the time the not guiltypleas (and election of Judge-alone trial) was entered, Mr Kennedy had "received fulldisclosure and had a chance to review it and take instructions";22 that there was nothingparticularly complex about this case and that quantum did not matter in proving thecharges;23 and that the contents of the Deloitte report did not therefore constitute achange of circumstance,24 noting Moore J's observation in Hala v Police that"Parliament clearly envisaged full disclosure was not a necessary prerequisite to adefendant making an election".25[40] In reaching that conclusion, the Judge did not misdirect himself on the law,overlook any relevant matter or draw a factual finding unsupported by evidence. Thealleged change of circumstance was not fundamental. Accordingly, there is no errorcreating a question of law.19 Commissioner of Inland Revenue v Naseeb, above n 1, at [25].20 At [26].21 At [23] and [26].22 At [22].23 At [23].24 At [24].25 Hala v Police, above n 3, at [34] as cited in Commissioner of Inland Revenue v Naseeb, above n 1,at [24].[41] For those reasons, in my view, there is no error of law. Given my finding, it isunnecessary for me to consider steps 2 and 3. However, as counsel made submissionson those steps, I will address them briefly.Step 2 — Reasonably affect decision of election?[42] As with step 1, Mr Rasheed's submissions on step 2 focus primarily on thesubsequent provision of expert advice. The two changes of circumstances submittedappear to converge under this second step: the appellants changed counsel; and thisled to a significant difference in assessment and direction of the matter, includingengagement of experts, namely Deloitte.[43] Mr Rasheed says the "report was not mere[ly] a supplement, a luxury but anecessary pre-requisite to be able to make any sense of the basis of the prosecution".He says the Deloitte report goes to the nature of the charges. He submits:5.7. Whereas there can be a tendency in such cases to simplify theprosecution to simply "whether the tax was paid or not", there aremany issues which go to the potential likelihood of the evasion beingcommitted with the requisite knowledge and intent, including theissue of quantum: lesser quantum charges are clearly able to be morereadily explained as potentially unintentional than those carryingextremely high amounts of unpaid tax, for example. To this end, thereport was crucial in providing and clarifying avenues for whichtransactions are important and relevant to focus in on for the issue ofknowledge.[44] However, in my view, again, Mr Rasheed has failed to point to any discernibleerror creating a question of law. The Judge considered the potential impact of theDeloitte report on determining the primary issues at trial, and thereby the impact thatthe report might have had on the election decision. Ultimately, the Judge accepted theCommissioner's submission that "there is nothing particularly complex about thiscase" and that "the quantum of tax is irrelevant for proving the charges".26[45] As to the Deloitte assessment of quantum, the figure as assessed, is stillsubstantial (at least $82,529.74), and the report further says "the actual tax shortfallmay be higher than this". In those circumstances, I do not consider the Judge was in26 Commissioner of Inland Revenue v Naseeb, above n 1, at [23].error when he said that the quantum is irrelevant for proving the charges, and thus thatthe receipt of the report would not have reasonably affected the appellants' decisionon whether or not to elect a trial by jury.Step 3 — Exercise of discretion?[46] Mr Rasheed submits that the Judge erred in failing to consider relevant factorssuch as the appellants' fundamental right to trial by jury. Indeed, the Judge's reasoningon step 3 was brief. However, that is unsurprising given that the Judge was notsatisfied that there was a change of circumstance (step 1), making his step 3 analysisunnecessary in the first place. That, together with the fact that I similarly have foundthat there was no error at step 1, is sufficient to dispose of this point.Result[47] The application for leave is granted but the appeal is dismissed.___________________________________Gordon J