THE QUEEN v ROBERT BENJAMIN BUTLER [2003] NZCA 21 (26 February 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 54/02

THE QUEEN

v

ROBERT BENJAMIN BUTLER

Coram: McGrathJ

Anderson J

Glazebrook J

Appearances: D G Slater for Appellant

A Markham and L Moreland for Crown

Judgment (on the papers):26 February 2003      

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

[1]

This appeal against conviction and sentence has been heard on the papers pursuant to the Crimes (Criminal Appeals) Amendment Act 2001.The relevant materials, including written submissions which have been received in accordance with R29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

Offence and sentence

[2]

The appellant was convicted on his trial before a District Court Judge and jury of an offence against s143B(1)(c) and (g) of the Tax Administration Act 1994 relating to a Goods and Services Tax return which, if true, would have entitled the appellant to a GST refund of $20,877.76. The Crown alleged that the appellant knowingly provided false and/or misleading information to the Commissioner of Inland Revenue in that return in order to obtain the tax refund in the knowledge that he was not lawfully entitled to it.Upon his conviction he was sentenced to a six month term of periodic detention.

Relevant facts

[3]	In June 1999 the Inland Revenue Department received a GST return, signed by the appellant and relating to his business activities.The return showed an income of $968.27 and expenditure of $188,868.07 in relation to the period between 1 May 1999 and 31 May 1999.On various occasions in June and July 1999 officers of the Department interviewed, in relation to the return, a person purporting to be the appellant.The officers were informed that the expenditure related to the purchase of a commercial property.If a binding agreement for such a purchase had been entered into the appellant would have been entitled to a GST refund of $20,877.76.Extensive inquiries showed that although the appellant had been negotiating for the purchase no agreement, conditional or otherwise, had actually been reached.Departmental officers regarded the return as a dishonest attempt to obtain a refund to which the appellant was not entitled.
[4]	A question arose at trial whether the person interviewed by officers in June 1999 was the appellant or his identical twin brother Mr Melvin Butler, but there was no question that the interviewee in July was the appellant.The Crown case was that at the July interview the appellant admitted he had completed the tax return and maintained that he had entered into an agreement to purchase the commercial property.
[5]	At trial the appellant’s case was that his twin brother would customarily file returns on the appellant’s behalf and that the May 1999 return had merely been signed by him in blank.He called his brother to testify but Mr Melvin Butler was of limited assistance because of the facility with which he invoked the privilege against self-incrimination and refused to answer.

Grounds of appeal

[6]	The first ground of appeal expressed in both the Notice of Appeal and counsel’s submissions is that “the verdict was contrary to the weight of evidence”.This Court has remarked, ad nauseam, that no such ground exists in respect of criminal appeals to this Court.We therefore treat the ground as that permitted by s385(1)(a) of the Crimes Act 1961, which is that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.The conceptual differences between the ground asserted and the ground permitted by the Crimes Act are significant.The purported ground envisages a weighing of the evidence which, in criminal cases, is not an appellate function but a responsibility of the trial Court.By comparison, the ground authorised by s385(1)(a) requires an appellant to demonstrate that there is no evidential basis on which the verdict can be rationally supported.
[7]	It was submitted on behalf of the appellant that there was no evidence produced to show that he was aware of what details were entered on the GST return prior to its filing with the Department and no evidence to show that he knew what information was or was going to be entered on the form.Accordingly he could not knowingly provide false information to the Commissioner.
[8]	A second ground of appeal against conviction is that the Judge misdirected the jury as to the legal principles to be applied, such ground being reasonably comprehended by s385(1)(b) and (c).
[9]	The alleged misdirection was the observation made by the trial Judge in summing up, as indicated in the italicised words reproduced below in a limited context:

So the issue really is what was in his mind at the time he signed the document honesty of purpose, honesty of purpose is the real issue here.By your standards not by his standards, but by your standards as decent ordinary New Zealanders, was he acting deliberately dishonestly?Did he intend, did he mean, to dishonestly obtain a GST refund to which he knew he was not entitled?

[10]

Counsel submitted that there was no evidential basis for a conclusion that the appellant had provided the information contained in the return and that there was evidence from a document examiner suggesting he did not.Further, the use of the expression “by your standards ... not by his standards” suggests that an objective test should be applied but the real issue was whether he in fact knowingly provided false information, that being a subjective test.

[11]

It was further submitted that the Judge misdirected the jury on the question of inferences when he said:

You must not speculate or guess in terms of drawing an inference and if you find that the proven facts are susceptible to more than one inference, then you should draw no inference.

[12]	That direction was said to be incorrect, that if inferences should be of equal weight then it would not be permissible to draw either (R v Newson, 27 May 1992, High Court, Wellington T11/95, Eichelbaum CJ); but if there are two or more possible inferences from the evidence and one is consistent with the accused’s innocence, he should be acquitted (R v Oates (1997) 15 CRNZ 95, 102).
[13]	Counsel submitted that given the part played by inferences in the particular case the misdirection in relation to inferences may have led the jury to believe that they did not have the right to draw an inference in favour of the appellant.
[14]	In relation to the appeal against sentence counsel submitted that a six month term of periodic detention was manifestly excessive because no loss was occasioned to the Department, the Judge sentenced on the basis that the appellant knew what was in the return whereas at worst, counsel contended, having signed the form he ought to have known what was going to be put in it.Counsel acknowledged that a monetary penalty was not appropriate because of the appellant’s financial circumstances but the matter could adequately be met by a lesser period of community work.

Submissions for the Crown

[15]	Counsel submitted that the appellant’s claim that he had no knowledge of the information provided on his own tax return was implausible and it was plainly open to the jury to reject such evidence.Conversely there was ample evidence to support the inference that the appellant was aware of the contents of the form, he having signed it below the declaration that its contents were true and correct, the Department officers who interviewed the appellant in July testified that he had admitted completing the form himself and that in explaining his position to the Department officers in July 1999 he purported to explain to what they related.
[16]	Concerning the grounds of alleged misdirection counsel submitted, in effect, that the Judge’s directions had to be looked at in their appropriate context and not on a conveniently selected basis.The Judge directed that the fact the appellant had signed the form was relevant to the issue whether the appellant had provided the information to the Inland Revenue Department and the Judge then went on to explain the other elements of the offence including whether the appellant knew that the information provided was false or misleading.The jury was informed, emphatically, that they must be satisfied that each element of the offence had been proved beyond reasonable doubt before finding the appellant guilty.There was accordingly no basis for a submission that the summing up created an impression that the offence was complete upon the signing of a blank tax return.
[17]	When the summing up is read as a whole it is seen correctly to explain the issues for the jury’s consideration including all the elements of the offence with emphasis on the key issue whether the appellant knowingly provided false information on his tax return.The jury’s attention was drawn on more than one occasion to the need to consider the appellant’s state of mind at the time of signing and the requirement of subjective knowledge was clearly addressed.
[18]	The direction concerning inferences was in a context of the need to avoid speculation or guess work and counsel also invoked this Court’s observations in R v Puttick (1985) 1 CRNZ 645 where it was noted that:

It must be ... unhelpful to tell jurors that, if proven facts support two inferences of equal weight, they should accept one and reject the other.To draw an inference either way from such facts would be pure speculation.Jurors should not be directed to accept or reject inferences when they have no logical basis for either step.

[19]

As to the appeal against sentence the Crown submitted that the appellant’s deliberate attempt unlawfully to obtain a tax refund represented serious offending threatening the integrity of the tax system and as such called for a deterrent response.The appellant has several previous convictions for fraud, was not therefore entitled to credit for absence of previous relevant offending.Nor was he entitled to any credit for a guilty plea having elected to defend and in fact doing so with elaborate persistence.The appellant’s seriously bad financial circumstances and more than $7,000 already outstanding in unpaid fines rendered any financial penalty inappropriate.

Discussion

[20]	We are not persuaded that there was an absence of evidence rationally supporting the jury’s verdict.The contrary is plainly the case.The jury was entitled to accept the Crown’s evidence relating to the July 1999 meeting according to which the appellant attempted to explain and justify the information contained in the return.Such information was demonstrably false and must have been known to be false.The proposition that he would have signed a document without knowing what information might later be inserted in it on his behalf before submission and yet subsequently assert that the false information was in fact true, is adequate justification for a conclusion that the return was either filled out by him or with his connivance in a dishonest attempt to obtain a return to which he was not entitled.The fortuity of identical twin brothers whom the Departmental officers could not physically distinguish between was of no avail in view of the Crown evidence relating to the July 1999 interview.It was entirely open to the jury also to reject any reasonable possibility that the reticent Mr Melvin Butler might concoct a dishonest plan to provide a $20,000 benefit to his brother as a sally of his own, without the complicity of the potential beneficiary.
[21]	Nor is there any merit in the submissions relating to the Judge’s directions.The complaint about the direction on inferences is adequately met by R v Puttick and in any event, in reality, the only essential matters determinable by inference were the appellant’s involvement and his state of mind.The standard directions in respect of onus and burden of proof, together with the factual nature of the case, leave no room for the slightest apprehension of a possible miscarriage of justice by reason of the particular direction.
[22]	As to the appeal against sentence, we are not persuaded that it was manifestly excessive.For the reasons indicated a monetary penalty was wholly inappropriate.Counsel’s submission to the effect that culpability lay in not knowing what he ought to have known rather than actually knowing of falsity in the return, can have no substance in light of the jury’s verdict and the justification for it.This appellant had previous convictions for dishonesty.He attempted to obtain some $20,000 by way of a tax rebate to which he knew he was simply not entitled. The potential seriousness of the type of tax fraud in question is indicated by the statutory maximum penalty of imprisonment for a term not exceeding five years or a fine not exceeding $50,000 or both.The appeal against sentence like the appeal against conviction is meritless.

Conclusion

[23]	For the above reasons the appeals against conviction and sentence are each dismissed.

Solicitors:

D G Slater, Invercargill for Appellant

Crown Law Office, Wellington