COLEMAN v COMMISSIONER OF INLAND REVENUE [2023] NZCA 494

COLEMAN v COMMISSIONER OF INLAND REVENUE [2023] NZCA 494 [19 October 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA653/2022[2023] NZCA 494BETWEEN PETER MARTIN COLEMANApplicantAND COMMISSIONER OF INLANDREVENUERespondentCourt: Brown, Moore and Fitzgerald JJCounsel: S M Kilian for ApplicantM R L Davie for RespondentJudgment:(On the papers)19 October 2023 at 10.30 amJUDGMENT OF THE COURTA The application for an extension of time to file a notice of application forleave to appeal is granted.B The application for leave to bring a second appeal against conviction isdeclined.C The application for leave to bring a second appeal against sentence isdeclined.____________________________________________________________________REASONS OF THE COURT(Given by Moore J)Introduction[1] The appellant, Peter Coleman, was found guilty following a Judge-alone trialin the District Court. He was convicted on 42 charges of tax fraud against the InlandRevenue Department (IRD).1 He was sentenced by Judge N R Dawson to four yearsand nine months' imprisonment.2[2] Mr Coleman appealed his convictions and sentence to the High Court, althoughonly the former was ultimately pursued. On 8 June 2021, Wylie J allowed the appealagainst conviction in respect of charges 2 to 34 (inclusive) on the basis of trial counselerrors and ordered a retrial on those charges.3[3] On 13 December 2021, the District Court granted the IRD leave to withdrawcharges 2 to 34.4 IRD was of the view that a retrial on those charges was not in thepublic interest given the limited financial loss associated with that offending and thelikely costs of a retrial.5[4] Mr Coleman makes three applications:(a) an application for an extension of time to file a notice of application forleave to appeal;(b) an application for leave to bring a second appeal against conviction;and(c) an application for leave to bring a second appeal against sentence.[5] The Commissioner of Inland Revenue (the Commissioner) opposes leavebeing granted to bring second appeals but is content for those matters to be determined1 Inland Revenue Department v Coleman [2019] NZDC 16685 [Conviction decision].2 Inland Revenue Department v Coleman [2019] NZDC 23779 [Sentencing decision].3 Coleman v Commissioner of Inland Revenue [2021] NZHC 1324 [Conviction appeal].4 Criminal Procedure Act 2011, s 146.5 Charges 2–34 involved a total tax discrepancy of $242,013.96 and actual loss to the IRD of$202,525.90. These charges therefore formed a relatively small percentage of the overall total taxdiscrepancy (for charges 1–41) of $1,111,325.55 and actual loss to the IRD of $1,071,837.49.on the papers. The Commissioner will abide the Court's decision as to an extensionof time.Factual background[6] Mr Coleman is an accountant. He has extensive experience managingcompanies.[7] The charges arise from Mr Coleman's management of various failingbusinesses in the fishing industry between 2011 and 2016. These were Hagfish NZLtd, BJ Fishing Ltd, Kiwi Fishing Ltd, NZ Marine Seafoods Ltd (also known asSouthern Hagfish Ltd) and SPH Fishing Ltd.[8] In addition, Mr Coleman controlled a company named Waka ManagementHoldings Ltd which he claimed provided management services to the fishingcompanies in exchange for fees. Mr Coleman also controlled a trust, Hunua HoldingsTrust, which owned his home.[9] Mr Coleman and his associated entities were investigated by the IRD frommid-2014. The investigation unearthed a very significant body of information relatingto his tax affairs and those of the various entities he controlled, though not, it appears,through Mr Coleman's cooperation.[10] In November 2016, the IRD laid the 42 charges against Mr Coleman, allegingconduct that had resulted in unpaid taxes of approximately $1.1 million.Procedural history[11] Mr Coleman was tried by Judge Dawson, sitting alone. The four-day trialstarted on 29 July 2019. The Judge delivered his decision on 6 September 2019.[12] In summary, the Judge found that Mr Coleman had:6(a) used a forged document (charge 1);6 Conviction decision, above n 1.(b) knowingly provided false information to the IRD with intent to obtainGST refunds for various companies in which he was involved, incircumstances where he knew they were not entitled to them(charges 2 to 34);(c) evaded the assessment or payment of tax by a trust through which hishome was held (charge 35);(d) failed to provide income tax returns to the IRD, with intent to evade theassessment and payment of income tax (charges 36 to 41); and(e) dishonestly used a document (charge 42).[13] Overall, the Judge found Mr Coleman to be a dishonest and unreliable witness.7[14] Mr Coleman was sentenced on 25 November 2019.8 From a starting point ofthree years' imprisonment on the lead charge of using a forged document, the Judgeapplied an uplift of two years for the remaining charges and a discount of three monthsfor Mr Coleman's contribution to the community. This resulted in an end sentence offour years and nine months' imprisonment on each charge, to be served concurrently.[15] Mr Coleman's appeal against conviction, determined on 8 June 2021, wasbrought on the basis that trial counsel incompetence had caused justice to miscarry.Wylie J was satisfied this was the case in respect of charges 2 through 34, though notthe remaining charges.9 The position in relation to the appeal against sentence, asthe Judge understood it, was that it had been abandoned. He therefore determined thatthere was no alteration required to the sentence Mr Coleman was at that time serving.10[16] On 31 August 2021, Mr Coleman was released on parole.117 At [127].8 Inland Revenue Department v Coleman [2019] NZDC 23779 [Sentencing decision].9 Conviction appeal, above n 3, at [87].10 At [6] and [88].11 His statutory release date and sentence expiry date is 5 June 2024.[17] On 29 November 2022, some 17 months out of time, Mr Coleman filed thenotice of application for leave to bring second appeals against conviction and sentence.Extension of time to file a notice of application for leave to appealRelevant law[18] The Court has a discretion to extend the time for filing an application for leaveto appeal in appropriate cases.12 As this Court explained in R v Knight, the touchstoneis the interests of justice in the particular case:13The applicant must demonstrate some special feature or features particular tothe case that lead to the conclusion that in all the circumstances justice requiresthat leave be given. Amongst the considerations which will also be relevantin that overall assessment are the strength of the proposed appeal and thepractical utility of the remedy sought, the length of the delay and the reasonsfor delay, the extent of the impact on others similarly affected and on theadministration of justice, that is floodgates considerations, and the absence ofprejudice to the Crown.Discussion[19] Mr Coleman has filed an affidavit in support of his application, in which hesets out in some detail the reasons for the delay. Attached to the affidavit are a numberof emails he sent to, and received from, his counsel for the High Court appeal (whowas not counsel at trial). These illustrate the communication difficulties to whichMr Coleman refers and the lack of progress in regard to the filing of his appeals.There is also an email sent by Mr Coleman to legal aid in which he requests areassignment of his case.[20] Having reviewed that evidence, and in the absence of opposition fromthe Commissioner, we are satisfied that the extension should be granted.[21] While Mr Coleman's difficulty engaging and retaining counsel may in partreflect personal and professional differences, it is also apparent that there were anumber of external factors at play over which he had little or no influence. He alsoacted on the basis of legal advice.12 Criminal Procedure Act, ss 239(3) and 255(3).13 R v Knight [1998] 1 NZLR 583 (CA) at 587 and 589.[22] For instance, following the determination of Mr Coleman's first convictionappeal on 8 June 2021, his High Court counsel advised him not to pursue the appealagainst sentence until after the retrial of charges 2 to 34. She also advised that herlegal aid status precluded her from assisting on a further appeal, but that she would tryto find a legal aid lawyer suitable to conduct a tax appeal.[23] By November 2021, the IRD had filed an application to withdraw the charges,but Mr Coleman's High Court counsel advised him to further defer the appeal until thecharges had been formally withdrawn. It was her view that the filing of an appeal atthat stage might influence the IRD's decision to Mr Coleman's detriment. Charges 2to 34 were formally withdrawn in December 2021, although it appears that by thisstage a replacement legal aid lawyer had not been found.[24] It was not until February 2022 that legal aid services assigned Mr Coleman'sHigh Court counsel to the appeal on an interim basis together with assistant counsel(who likewise was not counsel at trial), despite Mr Coleman making enquiries themonth prior. It appears that the complex nature of the file, complicated by multipleCOVID-19 lockdowns in Auckland, contributed to this delay.[25] Mr Coleman attempted unsuccessfully to arrange an initial call with assistantcounsel between 16 February 2022 and 3 March 2022. Thereafter, weekly meetingswere set up between him and both counsel to discuss the grounds for further appeal.These continued for a period of seven or so weeks (from 10 March 2022 to17 May 2022) until his High Court counsel, according to Mr Coleman, abandoned thearrangement due to a disagreement with assistant counsel about the direction ofdiscussions. With the exception of one meeting on 11 August 2022, Mr Coleman sayshe received no further contact from either counsel.[26] This ultimately led Mr Coleman on 27 October 2022 to ask legal aid servicesto reassign his case to another provider. It was reassigned to the Public DefenceService (PDS) on 8 November 2022, who sought two weeks to review the file.They then advised they were unable to act due to a conflict of interest but could startthe appeal process. PDS filed the current application for leave before the matter wasreassigned to Mr Coleman's current counsel, Mr Kilian.[27] It is difficult to ascertain what role, if any, Mr Coleman played in the collapseof the arrangement with his High Court counsel and assistant counsel. However, thereis no evidence to suggest he is to blame for the subsequent lack of contact betweenMay 2022 and October 2022. He did not sit on his hands. Rather, he followed up onseveral occasions by various means.[28] Overall, while significant, the delay is for the most part properly explained.Mr Coleman appears to have acted reasonably in the circumstances, and there is noreal prejudice or hardship to the Commissioner if the extension is granted.[29] The application for an extension of time is accordingly granted. However, forthe reasons discussed below, this result is of limited assistance to Mr Coleman on theremaining applications.Application for leave to bring a second appeal against convictionRelevant law[30] Mr Coleman seeks leave to bring a second appeal against conviction unders 237 of the Criminal Procedure Act 2011 (CPA). This Court must not give leaveunless satisfied that the appeal involves a matter of general or public importance, or amiscarriage of justice may have occurred, or may occur unless the appeal is heard.14[31] Section 232(4) defines "miscarriage of justice" as any error, irregularity, oroccurrence in or in relation to or affecting the trial that:(a) has created a real risk that the outcome of the trial was affected; or(b) has resulted in an unfair trial or a trial that was a nullity.[32] A procedural error such as a failure to cross-examine a witness on key aspectsof the case has met the threshold of a risk of a miscarriage of justice previously.15In general, however, this Court will be slow to grant leave where success for the14 Criminal Procedure Act, s 237(2).15 Cummings v Police [2018] NZCA 340.appellant would require it to reverse concurrent findings of fact below.16 That isespecially the case where the trial was judge-alone, as was the case here. Mr Colemanenjoys the benefit of two judgments giving reasons for the factual findings made.17Discussion[33] Plainly, there is no question of general or public importance arising from theproposed appeal. The issue is whether trial counsel's conduct gave rise to a risk ofmiscarriage of justice.[34] In essence, Mr Kilian submits that in preparing for trial, trial counsel failed toproperly consult with Mr Coleman, take him through the IRD's evidence anddisclosure, or obtain instructions on any aspect of the matter. This had flow-on effectsfor the trial itself, particularly the adequacy of Mr Coleman's evidence and thecross-examination of the IRD witnesses. Mr Kilian says that trial counsel'sincompetence caused justice to miscarry.[35] The leading decision in this area is R v Sungsuwan.18 There the Supreme Courtframed the applicable test in the following terms:[70] In summary, while the ultimate question is whether justice hasmiscarried, consideration of whether there was in fact an error or irregularityon the part of counsel, and whether there is a real risk it affected the outcome,generally will be an appropriate approach. If the matter could not haveaffected the outcome any further scrutiny of counsel's conduct will beunnecessary. But whatever approach is taken, it must remain open for anappellate Court to ensure justice where there is real concern for the safety ofa verdict as a result of the conduct of counsel even though, in thecircumstances at the time, that conduct may have met the objectivelyreasonable standard of competence.[36] While consideration of the substantive appeal is not appropriate on anapplication for leave,19 we see no option but to briefly assess the respective merits ofeach proposed ground of appeal in order to determine whether leave should be granted.16 R (CA176/2016) v Police [2016] NZCA 403 at [26], citing Butler v Police [2016] NZCA 27 at [3].17 At [26], citing Warren v R [2016] NZCA 108 at [30].18 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730.19 Practice Note – R v Leonard [2007] NZCA 452, [2008] 2 NZLR 218 at [47].[37] In our view, the issue is best approached by considering each of the convictionsupheld by the High Court Judge against the following questions:(a) Was the Judge correct that trial counsel's conduct did not affect thesafety of the conviction which he upheld?(b) Relatedly, does the evidence support the essential elements of eachcharge?[38] If in relation to each charge or group of charges, both of those questions areanswered in the affirmative, no risk of miscarriage of justice arises. It is to that enquirywe now turn.(a) Charge 1: Using a forged document[39] The Judge explained the factual background of this charge as follows:20[12] The charge of using a forged document (charge 1) arose out of arequest that the IRD made to Mr Coleman for information to support a GSTreturn filed by Hagfish NZ Ltd on 14 February 2014. The return showed nilsales but recorded expenses of $189,926.82. Hagfish NZ Ltd sought a GSTrefund of $24,773.06. Mr Coleman provided a tax invoice from NelsonSlipway for repairs to a fishing vessel. During the search of Mr Coleman'shome, the IRD found various reprinted versions of the invoice. The principalinvestigator for the IRD, Angela Curtis, gave evidence that the reprintedversions of the invoice showed that multiple attempts had been made to match,line up, copy and paste into the invoice a higher GST inclusive figure thanwas actually charged. The principal issue at trial was whether the invoice saidto support the GST refund claim was false, or as Mr Coleman put it, whetherthere was "a claim of right".[40] We are satisfied that trial counsel's conduct did not affect the safety of thisconviction. While Ms Curtis was not cross-examined on the IRD's allegations,Mr Rowling, the managing director of Nelson Slipway, was. Trial counsel putMr Coleman's version of events to him. Mr Coleman also gave evidence on the pointand advanced his defence.[41] The crux of Mr Kilian's submissions on this charge appears to be thatMr Coleman was entitled to rely on an earlier (27 September 2013) invoice which he20 Conviction appeal, above n 3.had been given by Nelson Slipway, for a higher price than was actually charged, andthat if a credit or discount was later issued it would have been reflected in later returns.[42] Mr Davie, for the Commissioner, argues that this submission lacks meritbecause a taxpayer is not entitled to claim a GST refund on expenses which they knowthey have not incurred and will not incur. Mr Coleman applied for the GST refund on14 February 2014, and submitted the forged invoice on 18 March 2014, whereaspayment of the (actual) invoice was made on 21 November 2013. Moreover,Mr Coleman admitted to creating the false invoice which had the appearance of oneissued by Nelson Slipway.[43] We accept Mr Davie's submissions. It is not a defence to the charge that theinformation in the forged invoice was correct as at 27 September 2013, because theoffence of forgery is concerned with "falsity of authorship, not falsity of content".21The evidence supports the essential elements of the charge.(b) Charge 35: Evading the assessment or payment of tax by a trust through whichMr Coleman's home was held[44] The Judge explained this charge in the following terms:22[14] The charge (charge 35) of evading the assessment and payment of taxby a trust related to Mr Coleman's home. The Hunua Holdings Trust ownedthe property. When it purchased the property in 2001, it sought and obtaineda GST refund. Mr Coleman, when requested, provided a copy of theagreement for sale and purchase and a deed of lease recording that the propertyhad been leased to another company controlled by Mr Coleman for use as afarm stay. However, the farm stay company did not trade; rather it was usedto fund Mr Coleman's personal expenses. Ultimately, it was struck off theCompanies Register. The IRD determined there had been a change of use –ie that Mr Coleman was using the property as his personal residence – and thatthis had not been declared. This triggered a liability to return the GST refundto the IRD. It was not paid back. Ultimately, the property was sold by themortgagee and it did not account for the GST refund either because it held adeclaration from Mr Coleman asserting that the property was not used for ataxable activity. Mr Coleman had also written to the mortgagee's solicitorsasserting that the Trust had not claimed a GST refund. At trial, Mr Colemandenied that a GST input claim had ever been filed. It was his argument thathe did not intend to evade the payment of the GST.21 R v Walsh [2006] NZSC 111, [2007] 2 NZLR 109 at [9].22 Conviction appeal, above n 3.[45] Mr Kilian's core submission on this charge is that trial counsel's failure tocross-examine IRD witnesses resulted in the application of the GST legislation notproperly being put into evidence, particularly that the responsibility is on themortgagee (ASB Bank Ltd) to return GST.[46] The Commissioner's position is that this is wrong. While ASB as themortgagee was responsible for paying GST from the proceeds of sale, Mr Colemanand any other trustees of the Hunua Trust between 2011 (when the Hunua Roadproperty was used for purely residential purposes) and 2015 (when ASB sold theproperty) were solely responsible for paying GST.[47] In any event, as Mr Davie points out, it was Mr Coleman's letter of18 May 2015, in which he falsely told ASB that the Hunua Trust had never claimed aGST input, that caused ASB not to pay GST. It is therefore irrelevant that ASB mayhave been able to uncover the true position by making independent inquiries.[48] We struggle to see how cross-examination of the IRD witnesses on this pointwould affect the deception practised by Mr Coleman or absolve him of guilt.The evidence supports the essential elements of the charge:(a) Mr Coleman evaded, or attempted to evade, the assessment or paymentof GST for himself or for ASB; and(b) he had knowledge of the obligation to be assessed for or to pay GSTunder a tax law; and(c) he intended to evade the assessment or payment of GST for himselfor ASB.(c) Charges 36 to 41: Failing to provide income tax returns to the IRD with intentto evade the assessment and payment of income tax[49] The Judge summarised these charges as follows:23[15] The six charges (charges 36–41) of failing to provide information tothe Commissioner related to Mr Coleman's personal tax returns. It was theIRD's case that Mr Coleman had failed to file tax returns for the tax years2011 to 2016 (inclusive), that Mr Coleman was receiving significantself-employed income over those years and that he had failed to account forthe same or to pay tax on that income. Mr Coleman challenged theassessments and denied that he intended to evade his tax obligations.[50] Mr Kilian submits that the case was not put to Ms Curtis about the manner inwhich shareholders of a company can address funds taken for personal use, meaningthat the Court determined that all funds taken for personal use were automaticallyincome not returned.[51] Mr Davie says this goes only to quantum — it is not a defence to charges offailing to file returns to evade the assessment or payment of income tax. Moreover,Mr Coleman's evidence at trial was that he did not have time to file returns becausehe was waylaid by other matters, not that he believed his income was not reallyincome.[52] In our view, even if this argument had been raised at trial, we do not considerit would have affected Mr Coleman's liability for the reasons advanced bythe Commissioner. Mr Coleman accepted that he was required to file returns and didnot do so. The fact that he disagrees with the IRD's assessment of his tax liability isnot a defence. As Wylie J observed, such charges do not require proof of the amountof tax evaded.24 The evidence supports the essential elements of the charge and theconviction is unaffected by trial counsel's conduct.23 Conviction appeal, above n 3.24 At [81], citing Smith v R [2008] NZSC 110, (2009) 24 NZTC 23,176 at [2].(d) Charge 42: Dishonestly using a document[53] In respect of charge 42, the Judge stated:25[16] The charge of falsely using a document (charge 42) related to adocument known as an AR590. An AR590 is a formal financial declaration.Mr Coleman completed the form seeking relief from his tax obligations.The issue at trial was whether Mr Coleman dishonestly represented hisfinancial position when he applied for financial relief.[54] Mr Kilian argues that the IRD officer who dealt with the application ought tohave been called as a witness and examined on discussions they had with Mr Coleman.We agree with the Commissioner that this submission invites speculation in theabsence of an affidavit setting out what the officer's evidence would have been.[55] Mr Kilian advances a similar argument to that in respect of charges 36 to 41;that trial counsel failed to put to Ms Curtis that some of the income was not actuallyincome, but loans from companies Mr Coleman controlled. Again, this is unsupportedby any documentation and inconsistent with Mr Coleman's evidence at trial, whichwas that he did his best to correctly state his income and if he omitted anything, it wasbecause he did not think the payments had sufficient regularity to qualify as income.Mr Coleman was cross-examined extensively in relation to these explanations.[56] It follows that we do not consider that trial counsel's conduct affects the safetyof this conviction. The evidence supports the essential elements of the charge, namelythat Mr Coleman dishonestly used a document with intent to obtain a pecuniaryadvantage (here tax relief).Conclusion on leave to bring a second conviction appeal[57] While trial counsel's conduct plainly fell below the standard expected of a triallawyer,26 we are not satisfied that a miscarriage of justice may have occurred, or mayoccur unless the appeal is heard, insofar as charges 1, 35, 36–41 and 42 are concerned.Leave to appeal is accordingly declined.25 Conviction appeal, above n 3.26 At [55].Application for leave to bring a second appeal against sentence[58] Section 253(1) of the CPA confers on a convicted person a right, with leave, toappeal against the determination of a first appeal against sentence. The Court mustnot grant leave unless satisfied that the appeal involves a matter of general or publicimportance, or a miscarriage of justice may have occurred, or may occur unless theappeal is heard.27 However, as we explain, the determination of this application turnspredominantly on jurisdiction rather than any question of general or publicimportance, or risk of miscarriage of justice.[59] Mr Kilian submits that the position in relation to the first sentence appeal is asfollows. Mr Coleman filed an appeal against sentence at the same time as he filed thefirst appeal against conviction. However, the sentence appeal was not listed on the"Memorandum Advising Grounds of Appeal" filed by PDS, nor pursued at the hearingbefore Wylie J. Mr Kilian was advised that the PDS had limited time to review thefiled grounds of appeal or consider those outside the memorandum. Mr Kilianacknowledges that the sentence appeal was not progressed, but submits that neitherwas it formally abandoned.[60] Mr Kilian submits that the High Court Judge erred in failing to review theeffect of his decision (overturning convictions on 33 charges) on the sentence imposedin the District Court. He further argues that the first appeal court has an inherentjurisdiction to review a sentence upon allowing a conviction appeal, even if thesentence itself has not been appealed, although he accepts that there is no suchguideline or authority to assist in these circumstances.[61] The Commissioner's position is that there is simply no jurisdiction for a secondappeal because there has been no determination of a first appeal. If Mr Coleman takesthe position that he did not intend to abandon his sentence appeal, abandoned it bymistake or never abandoned it at all, the Commissioner says that the correct pathwayis to persuade the High Court to hear a first appeal.27 Criminal Procedure Act, s 253(3).[62] We consider that the Commissioner's position must be correct. The submissionthat the High Court has the inherent jurisdiction to review a sentence on a convictionappeal is novel, unsupported by authority and, we think, conceptually wrong.The usual course in these circumstances would be to remit the matter back forre-sentencing in the first instance court. In remitting charges 2 to 34 back to theDistrict Court for retrial, Wylie J could not have determined the appropriate sentenceeven if he had been asked to. Sentencing could only take place after the determinationof the charges in the lower Court when the extent of the proved offending could beproperly assessed.[63] We acknowledge the complexities introduced when the IRD withdrew thecharges and the fact that the High Court sealed the notice of result recording theabandonment of the sentence appeal, despite Mr Coleman never filing a formal noticeof abandonment. However, it is not for this Court to determine the correct factual andlegal position. That is a matter for the High Court to determine.[64] As we see it, there are likely to be two options available to Mr Coleman.First, the High Court could determine that the appeal against sentence was neverabandoned and is thus, technically, still on foot. In those circumstances, it may be thatthe Court would exercise its remedial powers to correct the certified record or set asidethe sealed notice of result under the High Court Rules 2016, Criminal Procedure Rules2012, or its inherent jurisdiction. Alternatively, if the High Court considers that theappeal was abandoned or was treated as abandoned, it may review the circumstancesand, if considered necessary in the interests of justice, reinstate the appeal.28[65] Finally we observe that the appeal against sentence is somewhat moot, giventhat Mr Coleman has served his sentence and been released on parole, but we recognisethat such appeals have nonetheless been pursued in the past.29[66] Leave to bring a second appeal against sentence is accordingly declined.Any remedy properly lies in the High Court.28 R v Cramp [2009] NZCA 90 at [26].29 Haereroa v R [2020] NZCA 169; Box v Police [2018] NZHC 286; and Vae v Police [2013] NZHC2664.Result[67] The application for an extension of time to file a notice of application for leaveto appeal is granted.[68] The application for leave to bring a second appeal against conviction isdeclined.[69] The application for leave to bring a second appeal against sentence is declined.Solicitors:Kilian & Associates, Auckland for ApplicantCrown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent