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Court allows sale of bike

Days before being found guilty of the country’s biggest ever tax fraud, Matawai farmer John Bracken was readying to sell one of his restrained assets, the High Court at Gisborne was told.

Police were alerted to repairs being done on a quad bike and told Bracken intended to sell it.

Officers uplifted the quad bike on March 26, this year — the same day Bracken was found guilty of $17.3million worth of GST fraud.

The Police Commissioner applied to the High Court last month to sell it.

In a recently-released decision, Justice Francis Cooke noted that unlike an earlier application granted for police to sell other vehicles from the $12.3million pool of restrained assets, this application was not based solely on concern over depreciation and storage costs.

It was more due to Bracken’s intention to sell the bike.

The quad bike was one of five the Brackens were allowed to keep, along with other restrained equipment, to enable them to continue their farming operation.

But clearly, they no longer needed the bike and had they sold it, they would have been defeating the restraining order, Justice Cooke said.

It was not appropriate to leave the bike in the possession of Bracken’s wife Margaret Bracken and there was little point in the Police Commissioner having it stored as it was of relatively low value ($5000) and would incur some depreciation, the judge said.

He granted the application.

Bracken was jailed in May for eight-and-a-half years, having been found guilty of 39 charges of fraudulently using documents — GST refund claims — in relation to goods he falsely claimed to have exported while doing business out of town for his company Bracken Enterprises Limited (BEL).

The pool of assets, including properties and funds, were restrained in December, 2018, after authorities began ramping up their investigations into Bracken’s tax activities.

While not party to the criminal proceeding, Margaret Bracken is a respondent in the Civil Court asset one. The Bracken Family Trust and BEL are also named as respondents.

The Brackens opposed the police application to sell the quad bike, as they had done the earlier application. They represented themselves as Bracken did throughout his criminal trial.

At the hearing, they were given time to confer with their McKenzie Friend Pita Helmbright as to which of the Commissioner’s witnesses they wanted to cross-examine and why.

They said they wanted to ask witnesses whether the quad bike was validly subject to a restraining order and also question them about wider matters, which Bracken outlined by reading a formal statement:

“The accused and political asylum holder John Bracken is claiming this is a threat upon his independence and claims this is an international matter on civil and political rights and not a matter for the judicial system of the NZ courts to decide, therefore he denies all charges and must be dismissed,” Bracken said.

Justice Cooke said neither line of inquiry was appropriate for cross-examination and he would not allow it.

The witnesses involved here would not be able to give admissible evidence as to the meaning and effect of the Court’s orders; the Brackens’ second line of questioning was not relevant to this application and not of the confined nature required for cross-examination, the judge said.

He also ruled out Bracken’s arguments the quad bike had been improperly taken in the first place, that it was not the Commissioner’s property, that it had been written off as an asset and that it was therefore being appropriately sold by his family.

The only relevant question was whether the property was subject to a restraining order, the judge said. Chronological Court judgements clearly showed it was, Justice Cooke said.

He did not accept the Brackens’ argument that a sealed restraining order dated 11 July 2020 covering the property had only turned up later, and therefore effectively backdated restraint in an inappropriate way.

It was not the sealing of the order that determined when it took effect. Such orders had effect on the date that they were actually made by a judge, Justice France said.

A date is yet to be scheduled for a hearing as to the fate of the main asset pool, which is restrained until October 30 this year. The Police Commissioner has signalled to the court an application for a further extension of that order is being prepared. Proceeds of assets sold in the meantime are returned to the pool for future determination.