Dave Henderson says he is prepared to go to the Supreme Court to lay down his challenge to put him on trial or drop the charges completely. Photo: Getty Images / Hagen Hopkins
Christchurch property developer Dave Henderson wants to be tried in a court in front of a jury of his peers.
Either that, he says, or the Crown should withdraw charges hanging over his head for almost nine years, and which are now in a legal limbo.
A judge said in 2019 the prosecution of Henderson for alleged breaches of the Insolvency Act was an "astronomical" waste of taxpayers' money.
And Henderson is prepared to go to the Supreme Court to lay down his challenge to put him on trial or drop the charges completely.
"I'm not afraid of the court. I'm not afraid of going there. I'm not afraid of a robust hearing," Henderson told NZME this week.
"[I'm] not afraid of any of that because I know, at the end of the day, the charges were laid malevolently."
Henderson was referring to charges dating back to the middle of last decade and which the Court of Appeal has described as "relatively trivial in nature".
In 2015, two representative charges were filed against Henderson, alleging he had broken the law by being involved in the management of a business while he was an undischarged bankrupt.
Henderson, who was bankrupted in 2010 but has since been discharged, says he had permission to do that.
In 2016, a further charge was laid alleging that he made a false statement about his employment and income over the previous years. He denies that too.
David Ian Henderson, not to be confused with an Auckland property developer who is also named David Henderson, is no stranger to legal battles with government agencies and officials.
He was once chased by Inland Revenue for a supposed tax bill of nearly $1 million, proving after a five-year fight and financial devastation that, in fact, the department owed him $65,000.
He later bought the Cashel Street, Christchurch, building which housed the Inland Revenue staff who had pursued him.
He renamed it and for three years they had to go to work at Henderson House. When the lease ran out, he evicted them.
Henderson wrote a book about his Inland Revenue fight, titled Be Very Afraid. The book in turn inspired a 2007 movie, We're Here to Help, supported by the Film Commission.
This time, Henderson's protagonists are the Official Assignee, the public servant who administers the Insolvency Act within the Ministry of Business, Innovation and Employment (MBIE), and Crown Law.
Charges deemed 'relatively trivial'
Henderson's current case has been described as a "low-priority" by the Deputy Solicitor-General and the charges "relatively trivial" by the Court of Appeal.
The penalties involve a maximum jail term of two years, but other people convicted of similar offences have typically received sentences ranging from community work to home detention.
The case has already eaten up enormous amounts of court time. It took 13 hearings over two years before a District Court judge determined there was sufficient evidence for a jury to hear.
As the accused, Henderson was entitled to disclosure - to see the evidence that Crown Law would rely on.
Because of his past battles, there were thousands of documents, leading to ongoing arguments and delays.
When the proceedings came back before Judge Raoul Neave in the Christchurch District Court in 2019, he said the case had gone on longer than it should have.
"The amount of money, taxpayers' money, that has been wasted on this case is astronomical," Judge Neave said.
In a minute issued shortly after that, Judge Neave asked Crown lawyers to reflect on continuing the prosecution given the "vast amount of State resources" being consumed.
But by 2020, the Crown still believed there was enough evidence, the prosecution still had public interest, and the only reason counting against it was the time it had taken.
Crown lawyers maintained this was not their fault.
When the case came back before Judge Neave, he again said that "we've got better things to be doing to be quite frank", but he would let the case take its course.
He gave the Crown a month to provide details of the vast case file to a court-appointed "amicus" or third-party reviewer. Then the 2020 Covid lockdown intervened.
After the lockdown, which had put even more pressure on the court system, the Chief Justice asked prosecutors to consider whether cases should proceed.
In 2020, the Deputy Solicitor-General, who at that time was Brendan Horsley, then stayed the Henderson proceedings.
This means the charges won't come to court, but instead go into a legal limbo where questions of guilt or innocence are never determined.
'Where there is smoke there is fire'
"They didn't consult me," Henderson said this week. "If they had said, 'we're either going to stay these [charges] or we might have to delay it a few more months', I would have said 'just delay it a few more months'.
"I want my day in court.
"We all know there is a whole, lame, metaphor that where there is smoke there's fire," Henderson said.
"So, everyone is left with a view that 'you know, he did do it, whatever it is, he's just lucky'.
"I'm not interested in being lucky. I know my hands are clean and I want my day in court. Or withdraw the charges."
Henderson made an application to the High Court to have the stay removed so he could have that day in court. That failed, so he took the matter to the Court of Appeal.
"Mr Henderson seeks to be tried before a jury of his peers," noted the Court of Appeal judgment released this week.
It also turned down his request to have the stay removed.
It found the public interest, not the interests of a particular defendant, is the only "mandatory consideration" in whether or not to grant a stay of prosecution.
Henderson said he would now seek leave to take the matter to the Supreme Court.
Part of Henderson's argument is that the charges were stayed so the Crown could avoid criticism, public shaming and embarrassment about the way the prosecution had been conducted.
Asked for comment, Crown Law emailed a statement, citing the Court of Appeal judgment which said the appeal judges were "readily satisfied there is no proper basis for these assertions".
Asked to explain why the charges were stayed rather than withdrawn, Crown Law drew attention to paragraphs in the judgment which said the Deputy Solicitor-General and a District Court judge had found there was sufficient evidence on which a properly directed jury could convict.
The judgment said matters taken into account in making the decision to stay the proceedings included the length of time the case had taken, the "intervention" of the Covid-19 pandemic, stresses on the courts, likely further delays, the impact on Henderson, and the "relatively trivial nature of the charges".
"There is in our view nothing to suggest that the Deputy Solicitor-General failed to take into account relevant considerations, or took into account irrelevant considerations," the appeal judges said.
Crown Law added as Henderson had said he intended to seek leave to appeal to the Supreme Court, "we do not propose to comment any further".
- This story originally appeared in the New Zealand Herald.