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Property developer David Henderson claims judicial bias in appeal over tax convictions

David Henderson agreed to pay back about $143,000 from a family trust.

Sophie Boot
Wed, 31 Aug 2016

Christchurch-based property developer David Henderson has asked the Court of Appeal to overturn his conviction for seven tax charges, with his lawyer claiming the judge showed apparent bias in his remarks during the trial last year.

In the Christchurch District Court last September, Judge Gary MacAskill found Henderson guilty on seven charges of being a party to his company, Dweller, not paying PAYE tax which had been deducted from employees but wasn't sent to Inland Revenue. The offending took place in 2010. The trial took 10 months due to several breaks in proceedings, with Henderson initially representing himself in November 2014 before he hired a lawyer in May 2015.

Henderson agreed to pay back about $143,000 from a family trust, and the judge sentenced him to 200 hours of community work and four months of community detention. Immediately after sentencing, Henderson said he intended to appeal the conviction, Christchurch's daily newspaper The Press reported at the time.

James Rapley, who is Henderson's lawyer in the appeal but didn't represent him in the District Court trial, told the Court of Appeal bench that there had been a miscarriage of justice and the District Court judge had appeared biased in his remarks during the trial, particularly comments made while Henderson was representing himself.

"The judge's comments are of concern," Mr Rapley said. "They're strong comments about whether the appellant has any defence. You don't say, well I don't think you've got any defence available to you but away you go. In the second phase of the hearing, the judge has already expressed a very strong view."

Mr Rapley said a footnote from the District Court judge in the original trial had said the case wasn't predetermined, which the lawyer described as a "red flag" and a sign the judge had recognised his earlier comments could appear biased.

The judges asked Mr Rapley what the point of his appeal was, as he wasn't appealing the verdict reached by the judge. Mr Rapley said the right to a fair trial was absolute, and any breach of that must mean Henderson's conviction would be quashed.

Henderson's defence in the case of a retrial would be that he has paid reparations to the IRD, Rapley said, prompting Justice Stephen Kos to reply that it "doesn't sound like a particularly strong defence" and Rapley accepted it may be that the Crown wouldn't pursue the charges again as the money had been repaid and time had elapsed.

Crown lawyer Ian Murray said it was important to look at the issue of predetermination in the context of a 10-month hearing - "it's not about picking out a selection of highlighted clips and saying on the basis of that, without any context of what's gone on in this case, that shows apparent bias."

Henderson had decided not to cross-examine a number of witnesses and hadn't challenged the Crown evidence when he was self-representing, and this led to the judge's comments, Mr Murray said.

"There's nothing wrong with the judge being quite direct with someone," Mr Murray said. "The judge has made the point the appellant seems to have chosen that tactic, believing he had an ace up his sleeve, hasn't cross-examined, therefore the judge has the Crown case at its absolute highest. It's not the judge saying 'you're guilty,' 'the judge is saying you didn't challenge the evidence but I'm going to give you another chance.'"

The three judges have reserved their decision.


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Sophie Boot
Wed, 31 Aug 2016
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Property developer David Henderson claims judicial bias in appeal over tax convictions