R v Hunt
| Jurisdiction | England & Wales |
| Judgment Date | 05 May 1994 |
| Date | 05 May 1994 |
| Court | Court of Appeal (Criminal Division) |
Court of Appeal (Criminal Division).
Stuart-Smith LJ, Ian Kennedy and Gage JJ.
Alun Jones QC, Kevin de Haan and Campaspe Clare Lloyd-Jacob (instructed by Jeffrey Green Russell) for the appellant.
Peter Rook QC, Jonathan Fisher and Angela Morris (instructed by the Solicitor of Inland Revenue) for the Crown.
The following cases were referred to in the judgment:
Gunawardena, Harbutt and Banks, Re WLR[1990] 1 WLR 703
Kwan Ping Bong & Anor v R ELR[1979] AC 609
R v Cheema WLR[1994] 1 WLR 147
R v Clinton WLR[1993] 1 WLR 1181
R v Curry UNK[1988] Crim LR 527
R v Durante WLR[1972] 1 WLR 1612
R v Gautam UNK[1988] Crim LR 109
R v Gorman WLR[1987] 1 WLR 545
R v Hudson ELR[1956] 2 QB 252
R v IR Commrs, ex parte Rossminster Ltd & Ors ELR[1980] AC 952
R v Jennings, The Times 29 October 1993
R v Kempster WLR[1989] 1 WLR 1125
R v Less and Depala UNK(unreported, 2 March 1993)
R v Lunnon UNK(1988) 88 Cr App R 71
R v McKechnie UNK(1991) 94 Cr App R 51
R v Medway UNK(1976) 62 Cr App R 85
R v Moore UNK(unreported, 5 February 1991)
R v O'Connor UNK(1987) 85 Cr App R 298
R v Sang ELR[1980] AC 402
R v Vreones ELR[1891] 1 QB 360
R v Watson ELR[1988] QB 690
R v Wellings UNK(unreported, 20 December 1991)
Conspiracy to cheat Her Majesty the Queen and the Revenue - Whether cheating at common law an offence dependent on proved results or on conduct - Whether evidence of co-conspirator should have been admitted -Police and Criminal Evidence Act 1984 section 74 section 78Police and Criminal Evidence Act 1984, ss. 74, 78.Warrant authorising officers of the Revenue to enter premises - Warrant specified entry by not more than 55 officers - Officers not named - Whether warrant should have named officers authorised to enter premises - Whether warrant bad in law - Taxes Management Act 1970 section 20C subsec-or-para (1)Taxes Management Act 1970, s. 20C(1), inserted by Finance Act 1976 schedule 6Finance Act 1976, Sch. 6 and amended by Finance Act 1989 section 146Finance Act 1989, s. 146.
This was an appeal against conviction at the Crown Court at Southwark by a jury by a majority of ten to two of conspiracy to cheat the public revenue. The appellant also appealed against the sentence imposed of eight years' imprisonment.
The appellant was a director of Nissan UK Ltd ("NUK"), the sole distributor of Nissan cars in the UK. The prosecution alleged a conspiracy on the part of the directors of NUK and others, involving a tax fraud whereby the freight charges for importation of cars from Japan was inflated, reducing the amount of corporation tax to be paid by NUK. The prosecution relied on documents seized from the appellant's office pursuant to warrants issued under the Taxes Management Act 1970 section 20CTaxes Management Act 1970, s. 20C, which, it was alleged, showed that the appellant was aware of the actual freight rates and had been party to the negotiations resulting in fraudulent tax returns. The warrants were limited to entry on the premises by not more than 55 officers of the Revenue.
The appellant's defence was that there had been no fraud on the Revenue. Any fraudulent dealings had been by persons in Japan in order to defraud the Japanese authorities. But if there had been a fraud on the Revenue, the appellant claimed he was not party to it.
Before the appellant's trial the judge had ruled that evidence of conviction on a plea of guilty to cheating the public revenue by S, another director of NUK and a co-accused with the appellant, was admissible.
The principal grounds of appeal were: that the offence of cheating at common law was a "result" crime requiring proof of a resulting loss, not a "conduct" crime requiring no such proof, and, since no loss consequent on the alleged fraud was specified, the indictment was bad; that the judge should have refused to admit evidence of the conviction of the co-accused, S; and that the conduct of the appellant's counsel at the trial was incompetent because the validity of the warrants for seizure of documents under Taxes Management Act 1970 section 20Cs. 20C of the Taxes Management Act 1970 should have been raised. It was said that the warrants were invalid because the officers authorised to enter the premises should have been named.
Held, dismissing the appeal against conviction and sentence:
1. Cheating the public revenue was a "conduct" offence, not a "result" offence. A distinction was to be drawn between a fraud on a private individual where loss had to be proved, and a fraud on the Queen or the Revenue: R v Vreones ELR[1891] 1 QB 360 at pp. 368-369 followed.
2. The judge was right not to exercise the discretion conferred by the Police and Criminal Evidence Act 1984 section 78Police and Criminal Evidence Act 1984, s. 78 to refuse to admit the co-accused's conviction, which was admissible under Police and Criminal Evidence Act 1984 section 74s. 74, as evidence that there had been a conspiracy to cheat the public revenue.
3. The conduct of the appellant's case by counsel at the trial could not found an appeal either in relation to the evidence of the conviction of the co-accused or in relation to the fact that the warrant was not challenged at the trial. Such a ground of appeal could only succeed where there was flagrant incompetence. It could not succeed in this case where counsel had made decisions in good faith after proper consideration of the issues and in consultation with the appellant: R v Clinton WLR[1993] 1 WLR 1181 applied.
4. There was no requirement in Taxes Management Act 1970 section 20Cs. 20C of the Taxes Management Act that the officers authorised by a warrant to enter premises were to be named. Accordingly the legal basis for challenging the validity of the warrant was not made out.
Stuart-Smith LJ: On 26 June 1993 at the Crown Court at Southwark the appellant was convicted by a majority of ten to two of conspiracy to cheat Her Majesty the Queen and the Commissioners of Inland Revenue and was sentenced to eight years' imprisonment, ordered to pay £513,512 towards the costs of the prosecution and disqualified from being concerned in the management of a company for ten years.
He appeals against his conviction on a point of law. In so far as he requires leave to appeal in relation to some grounds of appeal, his application has been referred to the full court by the registrar, as likewise has his application for leave to appeal against sentence.
The indictment contained four counts. Count 1 alleged conspiracy to cheat Her Majesty the Queen and the Commissioners of Inland Revenue contrary to section 1 subsec-or-para (1)s. 1(1) of the Criminal Law Act 1977 between 1 October 1975 and 31 March 1983. Count 2 alleged conspiracy to make and use false accounting documents in contravention of Theft Act 1968 section 17 subsec-or-para (1)s. 17(1)(b) of the Theft Act 1968 and contrary to section 1 subsec-or-para (1)s. 1(1)of the 1977 Act over a similar period to Count 1 and was regarded as an alternative to Count 1. Count 3, of which the appellant was convicted, alleged a similar conspiracy to Count 1 between 1 December 1982 and 31 December 1991. Count 4 alleged conspiracy similar to Count 2 between the dates as in Count 3 and was regarded as an alternative to it. The appellant was acquitted of Count 1 and found not guilty by direction under section 17s. 17 of theCriminal Justice Act 1967 of Count 2. Count 4 was ordered to remain on the file. Frank Shannon was a defendant on all four counts. On 1 February 1993 he pleaded guilty to a substantive count, Count 5, which was added by amendment, of cheating the Queen and the Revenue on divers days between 1 November 1985 and 31 October 1986. The four counts of conspiracy remained on the file and he took no further part in the trial until he came to be sentenced on 30 June 1993. The appellant having by then been acquitted of Counts 1 and 2, Shannon was also acquitted of these counts. Tore Arne Thorsen, a Norwegian, was a co-accused on Counts 3 and 4. He failed to surrender to bail, returned to Norway and declined to take part in the trial. There were other conspirators referred to in the indictment, notably Octav Oswald Botnar, who the Crown alleged was the principal conspirator, and was named in all four counts. A warrant for his arrest could not be executed as he has remained outside the jurisdiction. On Counts 1 and 2, Johannes Verkade, a Dutchman, Karl Geuther and Walter Schmucki were named as conspirators. On Counts 3 and 4, Friedrich Pannosch, an Austrian national, and Kurt Vogelsang were named as conspirators. Pannosch gave evidence for the Crown.
Botnar, Hunt and Shannon, until he left in October 1986, were all directors of Nissan UK Ltd ("NUK" - formerly Datsun UK) which they acquired in the summer of 1970. Botnar was the chairman and owned 76.26 per cent of the shares directly or through nominees. The appellant owned 10.63 per cent of the shares in NUK in his own right and 2.935 per cent through family trusts. He was the second largest shareholder. Shannon was the finance director and owned 7.24 per cent of the shares.
On 1 June 1971 NUK was appointed by the Nissan Motor Co of Japan ("NMC") sole distributor to import and distribute Nissan vehicles in the UK. The vehicles were purchased on a CIF basis whereby NUK would pay the full cost in yen 90 days after the ship had sailed. On 1 January 1976, this arrangement was changed by a memorandum of that date so that thenceforth NUK paid NMC on a C & I only, paying in yen 90 days after sailing. The freight charge was paid separately under a new arrangement with Nissan Motor Car Carriers ("NMCC"), a Japanese company. It was payable in US dollars immediately the ship sailed. Under the memorandum NUK was able to appoint its own shipping agent to act as intermediary between NUK and NMCC. Autocontex Holland BV, a Dutch company ("Autocontex"), of which Verkade was the managing director, was appointed to act as shipping agent between 1976 and 1983, the period covered by the...
To continue reading
Request your trial
- M W Mcintosh Pty Ltd v Commissioner of Taxation
-
Attorney General v Anthony Karl Frank Baird Hilton
... ... Hudson and Redford were also applied in R. v. Mulligan [1990] Crim L.R. 427, citing Hawkins, Pleas of the Crown (8 th ed.), p. 1322, that "all frauds affecting the Crown and public at large are indictable as cheats at common law." In R. v. Hunt [1994] Crim. L.R. 747, CA, it was held that cheating the Revenue is a "conduct" offence and so there is no requirement to prove resultant loss." ... 31 There is no similar modern common law in Ireland ... 32 I found it interesting that in the Law Reform Commission ... ...