TAMIHERE v INLAND REVENUE DEPARTMENT [2018] NZHC 392

TAMIHERE v INLAND REVENUE DEPARTMENT [2018] NZHC 392 [13 March 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-000004[2018] NZHC 392BETWEEN ROBIN NOEMA HUGHES TAMIHEREApplicantAND INLAND REVENUE DEPARTMENTRespondentHearing: 5 March 2018Appearances: No appearance for the ApplicantLuke Radich for the RespondentJudgment: 13 March 2018JUDGMENT OF MOORE J[Application for leave to appeal against conviction]This judgment was delivered by me on 13 March 2018 at 2:30 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:Introduction[1] The applicant, Robin Noema Hughes Tamihere, applies for leave to appealagainst his 2014 conviction1 and sentence2 on 55 charges laid under the TaxAdministration Act 1994.[2] The grounds are numerous but essentially he challenges the convictions on thebasis that they were obtained by fraud and abuse of process.Background[3] Mr Tamihere was convicted following a Judge-alone trial beforeJudge S E C McAuslan in the Manukau District Court on 8 January 2014. On31 October 2014 he was sentenced to five months' home detention.[4] In opposition to Mr Tamihere's application the Crown has filed three affidavitsmade by employees of the Inland Revenue Department ("IRD") familiar withMr Tamihere's tax affairs and circumstances. They were originally prepared inadvance of his trial.[5] These reveal that between May 1995 and March 2011 Mr Tamihere was intrade both on his own account and through a company which he incorporated in 1999called Rags 2 Go Limited ("Rags 2 Go") of which he was the sole director andshareholder. Rags 2 Go began to trade from late 2007. It was registered as anemployer with IRD.[6] The relevant period of offending was between May 1995 and March 2011.During this time Mr Tamihere was solely responsible for the running of the business,the calculating and paying of wages and the preparation, signing and filing of monthlyemployer schedules which contained the amount of PAYE deductions payable to IRD.[7] No doubt as a result of concerns by IRD an investigation was commencedwhich revealed that Mr Tamihere was routinely deducting PAYE from the wages of1 Commissioner of Inland Revenue v Tamihere DC Manukau CRI-2012-057-000382, 8 January2014.2 Inland Revenue Department v Tamihere DC Papakura CRI-2012-057-000382, 31 October 2014.his employees but was not accounting these to IRD and was, instead, using them tofund the business.[8] Various discussions and meetings took place between Mr Tamihere and IRD.These were largely fruitless and Mr Tamihere's non-compliance continued.[9] The investigation concluded that Mr Tamihere had failed to account for PAYEdeductions to the following extent:(a) for 18 monthly periods as a sole trader (between December 2004 andNovember 2007) totalling $108,289; and(b) for 37 monthly periods in respect of Rags 2 Go (betweenDecember 2007 and March 2011) totalling $61,486.[10] In an interview with IRD staff Mr Tamihere accepted PAYE deductions werethe property of the employee and needed to be paid to IRD on a monthly basis. Healso accepted that he bore the responsibility for making the payments to IRD both asa sole trader and through Rags 2 Go. He said the deductions had not been paid on timebecause there were insufficient funds and he had made the decision to pay othercreditors in preference to IRD, because the business was unable to operate withoututilities such as rent and power.[11] Further discussions with Mr Tamihere were similarly fruitless, withMr Tamihere regularly challenging IRD's authority to collect tax from him andasserting that he would opt out of his tax obligations.[12] On 25 January 2012 IRD laid the 55 charges. These comprised:(a) 18 charges that as a sole trader he knowingly applied PAYE deductionsfor a purpose other than payment to IRD; and(b) 37 charges that he aided or abetted Rags 2 Go to deduct PAYE for apurpose other than payment to IRD.[13] The Judge-alone trial before Judge McAuslan occupied three non-consecutivedays in June, July and October 2013.[14] Mr Tamihere was self-represented but was assisted by a McKenzie friend. Inthe course of the trial the Judge granted Mr Tamihere several adjournments to assisthim in preparing his defence.[15] In a reserved judgment issued on 18 January 2014 Judge McAuslan foundMr Tamihere guilty on all charges.3[16] The judgment records that Mr Tamihere's defence centred largely uponarguments concerning sovereignty, jurisdiction and alleged bias and fraud. Somesense of the flavour of the trial can be obtained from the following extracts of herHonour's decision:"[3] From the outset Mr Tamihere made his position very clear. He didnot recognise the jurisdiction of the court. He claimed that he was not guiltyas he did not have to pay tax as a Maori and as a sovereign in his own rightand he raised numerous objections throughout the days of the hearings. Allendeavours to persuade Mr Tamihere that his position was untenable failed.He remained anxious that all his objections were noted and it is apparent fromthe face of the transcript that they have been.[6] Mr Tamihere has filed a considerable volume of documents, in themain affidavits which in summary state that he has no obligation to pay PAYEto Inland Revenue as the Informant claims. He submits the District Courtlacks the jurisdiction to hear the case and relies, inter alia, on Article 2 of theTreaty of Waitangi 1840, the New Zealand Constitution Act 1846, Section 71of the Declaration of Independence Act 1852 (UK), the Native Courts Act1858 and the Te [Ture] Whenua Maori Act 1993. Mr Tamihere had difficultyaccepting that such arguments have been before the courts on many occasionsand it has been decided by higher authority that the District Court does havethe necessary jurisdiction to hear the case. Recently the argument that thecourts do not have jurisdiction in relation to Maori persons, has been rejectedby the Supreme Court in Wallace v R [2011] NZSC 10 Accordingly, theargument cannot succeed in this case.[39] I also note with regret that Mr Tamihere appears to be of the view thatI have committed perjury and treason, have shown bias, been negligent andamongst other things, am a liar and have failed in my duty of care of him."3 Commissioner of Inland Revenue v Tamihere, above n 1.[17] On 31 October 2014 Judge McAuslan sentenced Mr Tamihere in the PapakuraDistrict Court.4 She noted that the total tax shortfall was $169,958.40 and that, withlate payments and other recovery from Mr Tamihere, this amount had been reduced to$65,656.75 by the date of sentencing.[18] Mr Tamihere's principal position at sentencing was that the Court had nojurisdiction to sentence him.[19] Judge McAuslan accepted the prosecution's submission that the appropriatestarting point was one of 18 months' imprisonment having regard to Mr Tamihere'schronic non-compliance and refusal to co-operate notwithstanding the repeatedwarnings he had received from IRD over some seven years. The Judge acknowledgedMr Tamihere's lack of previous convictions.[20] A sentence of home detention was substituted, with the Judge reducing the termfrom nine months to five months to reflect the fact that Mr Tamihere had spent 11weeks in custody following his failure to appear at the original sentencing date. Shedeclined to order reparation on the basis that Mr Tamihere was bankrupt and was notin a position to make any further repayments.The application for leave to appeal[21] In Mr Tamihere's notice of appeal, filed on 10 January 2018, he lists a verybroad and extensive range of grounds. These include:(a) abuse of process;(b) breach of natural justice, due process and s 25(a) of the New ZealandBill of Rights Act 1990;(c) lack of jurisdiction;(d) coram non judice Court;4 Inland Revenue Department v Tamihere above n 2.(e) fraud (including document fraud), bias and collusion;(f) an absence of lawfully sworn summons documents, or Crown evidenceincluding affidavits; and(g) breach of s 3(3) and (4) of the Inferior Courts Procedure Act 1909.[22] He thus claims that the decisions are nullities and were obtained by fraud. Healso challenges the admissibility of IRD's evidence at trial which he says was ultravires and fabricated, and that consequently the decisions are based on non-existentfactual findings.[23] The notice of appeal concludes with a statement that there is a proposedchallenge to the exercise of a judicial discretion in that:"McAuslan J abused judicial discretion to render Judgment obtained by fraudwhen she colluded with the Crown committing fraud and bias. Court wasCoram non judice. No separation of Powers."Application for adjournment[24] On 9 February 2018 the parties appeared before Downs J who directed thismatter be heard on Monday, 5 March 2018. He made timetabling orders for the filingof submissions. Mr Tamihere filed his submissions on time as did counsel for IRD.[25] In an email sent to the Court at 3:47 am on Saturday, 3 March 2018Mr Tamihere requested a 60 day adjournment. In the attached correspondenceMr Tamihere stated:"I wish to inform the Court due to ill health I have been unable to fully preparefor the 5th March 2018 hearing and the fact that I am also unable to attend theCourt on Monday the 5th March due to a Doctor's appointment and WINZappointment on that Monday.I wish to request a 60 day adjournment to the end of May early June 2018.Kind Regards*Diplomat and Diplomatic Federal MarshalTo the Polynesian Kingdom of Atooi*Tamihere: Robin Noema Hughes*United Nation's (sic) Registration No D070419560011*Officially Recognized Aotearoa United Nations Representative"[26] Below this script is what appears to be a scanned image of an identity card inMr Tamihere's name for the "Polynesian Kingdom of Atooi".[27] When this matter was called at 10:00 am there was no appearance fromMr Tamihere. I invited Mr Radich to address me on the Court's powers to deal withthe matter in the appellant's absence.[28] I am satisfied I have the power to deal with this appeal on the papers for thereasons which follow.[29] The procedure for appeals such as the present are governed by Part 6 of theCriminal Procedure Act 2011 ("the CPA"). An appellant seeking leave to appeal is notentitled, as of right, to an oral hearing. Section 328 of the CPA provides:"328 Hearings in District Court or High Court(1) This section applies to applications for leave to appeal underthis Part to the District Court or the High Court.(2) The court may decide whether an oral hearing of anapplication should be held or whether an application shouldbe determined just on the basis of written material providedto the court.(3) A decision to deal with an application just on the basis ofwritten material must be in writing, be accompanied byreasons, and be provided by the Registrar to the parties."[30] On 9 February 2018 Downs J directed the application for leave to be heard onMonday, 5 March 2018 at 10:00 am. Although not explicitly stated it is apparent thathis Honour and the parties anticipated that this would be an oral hearing.[31] Mr Tamihere's request for an adjournment relies on a claim that he has beentoo unwell to fully prepare as well as an assertion that competing commitments witha doctor and WINZ means that he is unable to attend the fixture. The request isunsupported by any evidence of ill health nor any explanation to account for why theseappointments are now such a priority and were not raised by Mr Tamihere when heappeared on 9 February 2018.[32] Mr Tamihere has filed voluminous supporting material both in the form of anaffidavit and extensive written submissions. Given the nature and extent of thegrounds relied upon I am satisfied that no useful purpose would be served byMr Tamihere appearing in person to orally supplement or complement thecomprehensive material he has already filed.[33] I have considered whether I should dismiss the application for want ofprosecution. In Barnes v Police5 Woodhouse J adopted such a course where theappellant failed to appear. No written submissions had been filed. In dismissing theappeal his Honour observed that the merits of the case did not favour the appellant.[34] In Pollock v Police6 Heath J dismissed an application for leave to appeal outof time when the applicant failed to appear and where the applicant had failed tocomply with timetabling directions.7[35] On the face of the material before me it would seem that Mr Tamihere haschosen to prioritise other commitments over the prosecution of his appeal.[36] I am nevertheless content to deal with the application on the papers. Inadopting this course the only disadvantage to Mr Tamihere and IRD is that neitherparty has had the opportunity to orally supplement their written submissions. But forthe reasons already given it is difficult to see how and in what respects Mr Tamiheremight sensibly add to what he has already reduced to writing.[37] I am therefore satisfied that Mr Tamihere's application for an adjournmentshould be declined and the application for leave determined on the papers.Jurisdiction[38] Sections 232 and 250 of the CPA govern first appeals against conviction andsentence respectively. Sections 231 and 248 set out the procedural requirements forthe commencement of a first appeal. A notice of appeal must be filed within5 Barnes v Police [2016] NZHC 819.6 Pollock v Police [2012] NZHC 2648.7 Section 338 of the Criminal Procedure Act 2011 provides the appeal Court the power to dismissan appeal for non-compliance with procedural orders.20 working days after the date of the conviction and/or sentence appealed against.8For both appeals against conviction and sentence, the time allowed for filing noticemay be extended at any time by the first appeal Court.9[39] The test to be applied in applications to extend time to appeal under thepreviously operative s 388(2) of the Crimes Act 1961 was set out by the Court ofAppeal in R v Knight in the following terms:10" the discretion is not unfettered. The touchstone is the interests of justicein the particular case. The discretion must be exercised in accordance with thepolicy underlying the legislative provisions. The feature which provides thereason for the time-limit for appealing set by s 388(1) is the interest of societyin the final determination of litigation. That necessarily carries through as apowerful consideration in determining whether leave should be granted unders 388(2) to appeal out of time."[40] The Court of Appeal in R v Lee then identified the following factors as relevantconsiderations:11" factors of relevance to the balancing test include the wider interests ofsociety in the finality of decisions, the strength of the proposed appeal,whether the liberty of the subject is involved, the practical utility of anyremedy sought, the extent of the impact on others affected and on theadministration of justice, and any prejudice to the Crown."[41] The foregoing may be distilled to a few core propositions. First, the interestsof justice are key; the "touchstone". Secondly, the merits of the proposed appeal maybe taken into account.12 R v Scurrah is a well-known authority for the proposition thatwhere an appeal has no prospect of success an extension of time may be refused.13Thirdly, the longer the period that has elapsed, the greater the requirement on theappellant to justify the delay.14[42] Recently, the Courts have conceptualised a two step test, guided by the interestsof justice. At the first stage the reasons for delay will be considered, followed by the8 Criminal Procedure Act 2011, ss 231(2), 248(2).9 Sections 231(3), 248(4).10 R v Knight [1998] 1 NZLR 583 (CA) at 587.11 R v Lee [2006] 3 NZLR 42 (CA) at [99].12 Genge v R [2017] NZCA 466 at [21].13 R v Scurrah CA159/06, 12 September 2006.14 Neilson v R [2015] NZCA 469 at [4].merits of the proposed appeal.15 While they will not always be determinative, I amsatisfied for present purposes they provide sufficient guidance.Analysis[43] No doubt relying on these principles as discussed in Mikus, Mr Radich, forIRD, submits that three factors are decisive in the present application for leave. Theseare:(a) the delay in filing the appeal exceeds three years and no compellingjustification or explanation for that delay has been given;(b) there is no merit in the appeal; and(c) there are other factors which do not favour granting of leave.[44] I shall discuss each of these principles as they apply in the present case.(a) Is the delay explained?[45] Given the length of delay, this is a case where Mr Tamihere must satisfy methat compelling circumstances, approaching a level of exceptionality, exist.[46] Mr Tamihere's notice of appeal and the very extensive affidavit filed in supportare all but entirely bereft of any explanation as to why it has taken him more than threeyears to file his appeal. He refers to the fact he is self-represented and has been unableto secure legal representation observing:"No Bar member will touch me or my Inland Revenue cases."[47] He records that legal aid has been declined but also observes that he hasprogressed several cases through the Courts to date and that "the House of Lords statedthat an appeal out of time should be allowed for fraud".15 Mikus v R [2011] NZCA 298 at [26], citing R v Slavich [2008] NZCA 116 at [14].[48] On any analysis Mr Tamihere's claim that he has progressed several casesthrough the Courts is correct. He has been an active litigant in a variety of cases whichinclude the following:(a) a counterclaim filed against IRD in response to a notice of claim forunpaid tax debts, which was dismissed by Judge Hubble,16 and asubsequent application to appeal against that decision out of time;17(b) a series of proceedings challenging his bankruptcy adjudication;18(c) two applications for summary judgment against the Commissioner ofInland Revenue,19 and an application for judicial review of the strikeout of those proceedings;20(d) an application for immediate refund of $41,520.56 from IRD for GSTcollected from another company unrelated to the present charges, whichwas struck out; and(e) a general challenge to a number of the above decisions, struck out byPaul Davison J.21[49] In most, if not all, of these pieces of litigation Mr Tamihere has advancedclaims of sovereignty, fraud and judicial impropriety; claims which would appear tobe front and centre of Mr Tamihere's present criticisms of Judge McAuslan'sdecisions.[50] If nothing else, this catalogue of proceedings demonstrates that Mr Tamiherepossesses some degree of understanding of the Court process. He is not a litigant who16 Commissioner of Inland Revenue v Tamihere DC Manukau CIV-2012-055-000100, 29 August2012.17 Tamihere v Commissioner of Inland Revenue [2013] NZHC 1651, (2013) 26 NZTC 21-021.18 Commissioner of Inland Revenue v Tamihere [2013] NZHC 1943; Tamihere v Commissioner ofInland Revenue [2013] NZHC 1959; and Tamihere v Commissioner of Inland Revenue [2014]NZHC 2182.19 Tamihere v Commissioner of Inland Revenue [2017] NZDC 22797.20 Tamihere v Commissioner of Inland Revenue [2017] NZHC 2949.21 Tamihere v Commissioner of Inland Revenue [2017] NZHC 3012.is poorly equipped to exercise his rights or should be granted an indulgence for thatreason.[51] Finally, despite Mr Tamihere's broad assertions that he has been unable toengage counsel, there is no particularisation of the steps he has undertaken to get thismatter brought on for hearing in a timely fashion. The papers he has filed in supportof his appeal are detailed and extensive. And yet, nowhere in them is a cogentexplanation for why the appeal was not filed within time.(b) Is there any merit in the proposed appeal?[52] None of the grounds claimed by Mr Tamihere is capable of succeeding in eitheran appeal against conviction or sentence.[53] On these appeals Mr Tamihere seeks to re-argue the same and familiarcombination of grounds; that the Court has no jurisdiction because it is a fictitiousbody, there have been acts of fraud by the Court, the Court is biased, Mr Tamihere isa free man and he is able to opt out of his tax obligations. It would seem that all ofthese issues were raised before Judge McAuslan. They did not succeed in the DistrictCourt because they were incapable of success. The same applies in this Court.[54] Judge McAuslan's reserved decision and her sentencing remarks werecarefully crafted and well reasoned. I am satisfied that there was sufficient evidenceavailable in respect of each essential element of all charges to justify Mr Tamihere'sconviction. He admitted he knew his tax obligations and elected not to comply.[55] As for his sentence appeal I cannot find fault with Judge McAuslan's decisionin any aspect. In my view the Judge went well beyond what was required inencouraging Mr Tamihere to speak with Probation for the purposes of home detentionbeing included as a sentencing option. For these reasons I am easily satisfied that thereare no merits in either the conviction appeal or the sentence appeal.(c) Are there any other factors present relevant to the interests of justice test?[56] There are two further factors which support this conclusion.[57] First, Mr Tamihere has long since completed his five month sentence of homedetention. That, of course, is not determinative when considering a grant of leave. Itis, however, a relevant factor to take into account in evaluating where the interests ofjustice lie.[58] Secondly, to grant leave would be to permit what I regard as an unjustifiableuse of this Court's precious and finite resources. There is little or no public interest inhaving Mr Tamihere's claims of lack of jurisdiction and fraud ventilated yet anothertime.[59] For these reasons I am not satisfied that it is the interests of justice to grantleave to appeal.Result[60] The application for leave to appeal out of time is refused.Moore JSolicitors/Counsel:Crown Solicitor, ManukauCopy to:The Applicant