Accused now wants jury trial
Two weeks out from a scheduled judge-alone trial for an alleged $17 million tax fraud, Gisborne farmer John Bracken has applied to change the fixture to a jury trial.
Bracken, 54, faces 38 charges of dishonestly using a document — GST claim forms — to make a financial gain during four years up until June 2018.
Last August, Bracken elected a judge-alone trial, which is due to start on March 8 and for which three-and-a-half weeks of court time has been allocated.
But at a pre-trial hearing in the High Court at Gisborne on Friday, Bracken said he had changed his mind about the judge-alone trial and wanted a jury to decide the case.
He also opposed two pre-trial applications made by the prosecution — one seeking to have a woman, who is said to be a former lover of his, give evidence at trial via AV-link rather than in person; the other to produce as evidence Bracken's banking and Companies Office records.
Bracken claimed to not previously have understood his entitlement to a jury trial, saying he only elected a judge-alone trial because he was familiar with it after being prosecuted by Gisborne District Council on Resource Management Act charges in such a trial last year.
Prosecutor Megan Mitchell said defendants who wanted to change their election had to show a significant change in circumstances. She challenged whether Bracken could show such cause.
The request created difficulties for the court and prosecution, Ms Mitchell said.
It would be impossible for the court to arrange a jury pool for such a long trial at this late stage and it would be difficult to secure that much court time again any time soon.
Sixteen prosecution witnesses — all but two of whom are civilians — had already been organised. Flights were booked and witnesses had arranged to take time away from their families, work and business commitments.
Bracken was made well aware of his options at numerous prior preliminary hearings for the tax case, Ms Mitchell said.
The court had repeatedly urged him to get legal counsel, which would also have helped him navigate these types of matters.
As was his right, he continued to reject it and insisted on self-representation. But that meant his challenge on this issue could only go so far and it did not give him any special entitlement, Ms Mitchell said.
Bracken, who claims to have hearing difficulties and to be illiterate, has told the court he only wants the assistance of a McKenzie Friend, not a lawyer, at trial.
Justice Christine Grice, who appeared via AV-link, said the issue needed to be decided as a matter of urgency.
She scheduled a hearing for this Friday. Both parties were directed to file written submissions. Any court records the IRD intended to produce as proof Bracken was properly informed before making his election would need to be forwarded to him for a response ahead of the hearing, the judge said.
She reserved her decision on the IRD's two pre-trial applications.
In response to the application about financial records, Bracken claimed those were all private documents and no one was given consent for them to be shared.
Included in the documents the prosecution wants to adduce are charts and spreadsheets summarising the information in the records as an aid for the court.
Ms Mitchell said that additional material would be presented in evidence by a witness who compiled it.
Bracken again raised privacy issues and accused the IRD of a data breach.
A lawyer for the court, Adam Simperingham, appointed by Justice Grice due to Bracken's lack of legal counsel, noted the provisions of the Privacy Act do not apply in relation to matters before the court.
Of the application to have a witness give evidence via AV-link, Ms Mitchell said contrary to an assumption by Bracken, the prosecution was not suggesting he or his family might pose any kind of threat to the woman if she was in court.
The concern was that she is mentally vulnerable, suffering from anxiety and depression, and those conditions are likely to be exacerbated if she is in the courtroom, especially given Bracken himself — not a lawyer on his behalf — would be cross-examining her.
Bracken said he did not dispute the witness had mental health issues but wanted her present in court.
He found communicating through a screen distracting. He also feared the screen could hide a witness perhaps reading from documents or being otherwise prompted.
He did not trust assurances the witness would be in Gisborne, he said. She could be appearing from Auckland without him knowing.