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Dave Henderson's tax conviction appeal tossed out

Monday 10th October 2016

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The Court of Appeal has dismissed Christchurch property developer David Henderson's bid to throw out tax convictions over claimed judicial bias. 

Justices Stephen Kos, Jill Mallon and Christian Whata rejected Henderson's claim, saying Christchurch district court judge Gary MacAskill's comments "are isolated and in context do not create an impression of real unfairness or unwavering prejudgment" and that someone watching the whole trial and reading the judge's minutes wouldn't reasonably think the judge wasn't impartial. 

"Viewed overall in the context of a difficult trial the narrative perceived by an observer would be the judge was concerned with fairness to Mr Henderson, particularly in light of the misconceived defence originally relied on by the latter, adjourned trial on not one but (quite extraordinarily) two occasions to let him revise his submissions to respond to the substance of the prosecution allegations, and would have honestly reflected on the evidence presented at the final phase of trial when deliberating and preparing his reasons for the verdicts," the judgment said. "At the same time, the judge tested the respective cases advanced robustly, albeit in a manner which an inadequately informed observer might have thought conclusory."

Henderson was found 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 the Inland Revenue Department. 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 legal representation in May 2015.

The property developer 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. 

The appeal court examined the three stages of Henderson's trial and found no bias in any of them, with the judge granting the property developer the "indulgence" of re-opening his defence after choosing not to cross-examine prosecution witnesses in pursuing a technical defence. 

Judge MacAskill earned a rebuke for using "unfortunate" expressions in a minute that "is not to be encouraged", although the appeal bench said it understandable and simply an expression of preliminary views. 

"The judge's subsequent conduct in allowing an adjournment for the sake of fairness indicates his continued open-mindedness," the judgment said.

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