Christchurch businessman Dave Henderson loses appeal after claiming tax trial was unfair

Christchurch businessman Dave Henderson. Photo / Christchurch Star

A Christchurch property developer convicted on tax charges has had claims of an unfair trial thrown out by appeal judges.

Dave Henderson was sole director of a hotel accommodation company that did not pay PAYE on its employees' wages to the IRD during the period from April to October in 2010.

After a judge-alone trial before Judge Gary MacAskill at Christchurch District Court in 2014 and 2015, Henderson was convicted on seven counts of aiding and abetting Dweller Ltd to knowingly apply deemed PAYE deductions for purposes other than payment to the IRD.

Henderson appealed against the conviction to the Court of Appeal on the sole ground that Judge MacAskill acted with apparent bias at the trial, giving rise to an unfair trial.

He felt that during the trial, Judge MacAskill had predetermined his guilt.

In a judgment released today, the Court of Appeal noted that it was a "difficult" trial which was adjourned twice and heard over 10 months.

"It is clear to us that Mr Henderson became focused on technical arguments in his defence and did not really engage with the substance of the prosecution case," the Court of Appeal judges said.

Henderson twice applied - and failed - for a discharge without conviction on the grounds that the Crown had the dates of the alleged offending wrong.

"Mr Henderson held a single egg in his hand and he proceeded to place it in the court's basket," the Court of Appeal said.

Henderson claimed that Judge MacAskill made comments which showed he had already made up his mind.

However, the Court of Appeal rejected his arguments.

Once the whole district court hearing is considered and the judge's comments are put into context, the remarks "do not create an impression of real unfairness or unwavering prejudgment", the Court of Appeal said.

"The judge's comments are adverse to technical aspects of Mr Henderson's defence but do not predetermine the ultimate question of guilt," the Court of Appeal judgment says.

"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.

"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."

The appeal judges concluded: "A reasonable lay observer observing the whole context would not reasonably apprehend that the judge had failed to bring an impartial mind to the judicial task before him."