NGATATA LOVE V R [2017] NZCA 265

NGATATA LOVE V R [2017] NZCA 265 [26 June 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA535/2016[2017] NZCA 265BETWEEN RALPH HEBERLEY NGATATA LOVEAppellantAND THE QUEENRespondentHearing: 25 May 2017Court: Harrison, French and Brown JJCounsel: J G Krebs for AppellantG J Burston and M J Ferrier for RespondentJudgment: 26 June 2017 at 10.15 amJUDGMENT OF THE COURTA The application for leave to adduce further evidence is declined.B The appeal against conviction is dismissed.C The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Harrison J)Table of ContentsParaIntroduction [1]Facts [4]Obtaining by deception [21]Miscarriage of justice [29]Fitness to stand trial [29]Communication assistance [52]Additional evidence [56]Tony Gapes [61]Michael Reed QC [67]Dr Martin Lally [70]Liz Mellish [76]Conclusion [78]Sentence [79]Result [86]Introduction[1] Dr Ngatata Love was found guilty on one charge of obtaining property by deception under s 240 of the Crimes Act 1961 following a judge-alone trial in the High Court before Lang J.1 He was convicted and sentenced to two and a half years'imprisonment.2 Dr Love now appeals against his conviction and sentence. He also applies for leave to admit new evidence.[2] Dr Love's generic ground of appeal is that a miscarriage of justice occurred at trial rendering his conviction unsafe. In particular, he says, (1) he was wrongly found fit to stand trial under s 14 of the Criminal Procedure (Mentally Impaired) Persons Act 2003 by Lang J before trial;3 (2) he did not have the benefit of"communication assistance" at trial;4 and (3) his trial counsel erred in failing to call four witnesses whose evidence he now seeks leave to admit. It is significant, as we shall explain, that Dr Love does not challenge Lang J's comprehensive reasons for verdict.1 R v Love [2016] NZHC 2046 [Reasons for Verdict].2 R v Love [2016] NZHC 2394 [Sentencing Remarks].3 R v N [2016] NZHC 1062 [Pre-trial Ruling].4 Evidence Act 2006, s 80.[3] It is necessary for us to recite the relevant and largely uncontested facts, the elements of the charge and the Judge's findings in order to provide the necessarycontext for Dr Love's discrete grounds of appeal.Facts[4] Dr Love was the chairman of the Wellington Tenths Trust, established by statute to manage freehold land on behalf of Māori beneficiaries throughout Wellington and Taranaki.5 The Trust's affairs are managed by a board of trusteeselected by beneficiaries at annual general meetings. The trustees are authorised tomake major decisions about the Trust's affairs by way of resolution.[5] The Trust owned several properties on Pipitea Street in Thorndon, Wellington. It acquired neighbouring land from the Crown for $1 million to enable a viable development of its existing land holding. But the Trust lacked liquid capital to develop its real estate. In order to overcome this difficulty it adopted a strategy whereby third-party developers would bear the costs and risks of development projects in return for access to its land.[6] In 2005 two Auckland developers combined forces and approached Dr Love with a joint proposal to build a large office complex on the Pipitea Street land. One was Redwood Ltd, of which Tony Gapes was the principal. The other was Equinox, represented by Kerry Knight, an Auckland lawyer.[7] Initially the developers dealt with Dr Love's son, Matene, who operated through a company called Yellowstone Consultants Ltd. In March 2006 the developers paid Matene Love $150,000 plus GST for introducing them to the Trust. Matene Love stood to gain a further $1.5 million for services rendered throughout the project. He later pleaded guilty to a charge of accepting a secret commission.[8] Dr Love enjoyed a close relationship with Lorraine Skiffington, the nature of which was unclear at trial. She was originally charged jointly with Dr Love. Collins J later stayed the proceeding against her on the ground that she was suffering5 The Trust was established in its present form in 1985 pursuant to s 438(1) of the Māori AffairsAct 1953.a terminal illness.6 Ms Skiffington was a qualified solicitor but was not in legal practice. She was also associated with Shaan Stevens, a Wellington accountant.7In early September 2006, after the developers' relationship with Yellowstone broke down, Dr Love directed Mr Knight to conduct all future negotiations with Ms Skiffington.[9] On 30 September the annual general meeting of the Trust resolved to authorise the trustees to transfer the Pipitea Street properties to a development company if the project was to proceed. In October, following circulation of a development deed prepared by Mr Knight for the developers, Mr Stevens introduced Dr Love to Adrian Burr, an Auckland developer. Mr Burr's advice to Dr Love was that the Trust could expect a premium of between $3 million and $4 million for access to a leasehold interest in the Pipitea Street properties.[10] On 6 November 2006 Dr Love and Ms Skiffington made a formal offer through Mr Stevens to purchase a residential property on Moana Road, Plimmerton, for $1.6 million in their own names or through a nominee. A loan application analysis was completed by a personal banker at Westpac the next day. On 8 November Dr Love and Ms Skiffington signed an agreement to purchase the property for $1.8 million subject to arranging finance. The deposit of $90,000 was paid through an overdraft facility arranged on an account in Dr Love's name.On 14 November the parties declared the agreement unconditional with settlement fixed for 8 December 2006.[11] By November the Trust's negotiations with the developers had stalled.On 22 November Dr Love, Ms Skiffington and Michael Reed QC (instructed as counsel for the Trust) met with Mr Knight in Auckland. The purpose and result of the meeting is now in dispute and we shall return to it later. Lang J found that Mr Reed was present to advance a demand for payment of a lease premium from the developers, said to be in the range of $3 million to $4 million as suggested by6 R v RL [2014] NZHC 204; R v RL [2015] NZHC 1862.7 In a related case Mr Stevens pleaded guilty to charges of using a document dishonestly to obtain a pecuniary advantage by claiming tax deductions through fictitious invoices, which includedcounts concerning Ms Skiffington's personal tax returns and those of Pipitea Street Developments Ltd: see R v Rowley [2012] NZHC 1778 at [15]–[17] and [180]–[210].Mr Burr.8 Immediately afterwards Mr Knight wrote to Mr Reed.9 He offered the Trust through Mr Reed a lease proposal, which included: "Lease payment, in theform of Prepaid rental, of $3,000,000 plus GST to be paid at settlement."Mr Knight's letter described the proposal as being designed to "enable the current issues between both parties to be resolved".[12] The next day, 23 November, the law firm Gault Mitchell acting for the Trust sent a counterproposal to Mr Knight. The letter, drafted by Mr Stevens, required the developers to pay a "lease premium" of $4 million plus GST to a company nominated as Pipitea Street Developments Ltd (PSDL).10 Acting on Mr Stevens'instructions Gault Mitchell had incorporated the company that morning. That afternoon Mr Knight wrote to Gault Mitchell referring to a discussion of"various issues with Ngatata Love" following Gault Mitchell's earlier letter.11Mr Knight recorded his tentative agreement with Dr Love to commercial terms, which he said would be sent through shortly in the form of an agreement to lease.[13] Less than an hour later Mr Knight sent Gault Mitchell a draft agreement to lease.12 Its terms included a "Purchase Price" for the lease of $3 million payable by the developers' company Pipitea Street Ltd, a discounted ground rental payable to the Trust, and an option for the Trust to purchase the developers' interest in thecompleted development at a discount of $1 million from market value.13[14] Gault Mitchell played no further part in negotiations after sending the draft agreement to Ms Skiffington on 24 November. However, that same day Ms Skiffington and Mr Stevens met with Auckland solicitors Nigel Burton and Carolyn Shirley of Burton & Co. They sought advice about the lease and the option to purchase. On 27 November Dr Love joined Ms Skiffington and Mr Stevens for another meeting with the same lawyers. But neither Dr Love nor Ms Skiffington provided Burton & Co with a copy of the draft agreement to lease received from Mr Knight. Nor did they advise of the developers' existing offer to pay the Trust8 Reasons for Verdict, above n 1, at [50].9 At [51].10 At [55].11 At [56].12 At [57].13 See [57]–[59].$3 million for the right to lease. Instead, without knowledge of the existing draft agreement, Burton & Co prepared new documents with the amount of the purchase payment left uncompleted. A separate services agreement between PSDL and the developers was also drafted at around this time.[15] On 28 November the Trust board met.14 Its minutes record that Dr Love submitted a Risk Management Proposal, which he had helped prepare, outlining the new strategy for leasing the Pipitea Street land with an option to purchase the completed building from the developers at a discount. However, the proposal did not identify the level of discount. Nor did Dr Love advise his fellow trustees of thedevelopers' agreement to pay a $3 million premium. The trustees resolved to approve the proposed strategy and to appoint companies related to Messrs Burr andStevens "to provide deal structuring, commercial supervision and implementation ofthe project".[16] Dr Love had anticipated that the agreement to lease and services agreement would be ready for execution on 8 December, coinciding with the settlement date of the Plimmerton property. However, Dr Love did not sign the lease agreement on theTrust's behalf until 22 December. Contrary to Burton & Co's advice that any additional payment should be recorded in the lease, the signed agreement did not include the lease premium of $3 million to be paid under the parallel services agreement. Instead, it provided that in consideration for granting the lease thedevelopers will pay "$1.00 plus such other sums as agreed to be paid for professional services to support the facilitation of the Development".[17] Also on 22 December the developers and Ms Skiffington on PSDL's behalfsigned the services agreement, providing for a $3 million payment to PSDL. Two payments totalling $1.5 million were due within seven days; the further payment of $1.5 million was due on satisfaction of certain conditions of the lease agreement. While Gault Mitchell had prepared an earlier version of the services agreement, none of the law firms which participated latterly played a part in its final iteration. The14 See [62]–[66].Judge found that the document was likely prepared by Ms Skiffington with Mr Stevens' assistance.15[18] Even though the services agreement had not yet been signed, the developers had on 10 December made an initial payment of $300,000 plus GST to the solicitor representing Dr Love and Ms Skiffington.16 On 11 January 2007 three entities associated with the developers paid PSDL $1.287 million.17 The next day PSDL paid $1 million to the joint Westpac account opened in the names of the Love and Skiffington family trusts. From there $985,000 was transferred to another Westpac account and applied in reduction of the mortgage loan.[19] Lang J described what happened subsequently as follows:[73] Mr Hay [the solicitor acting for Dr Love and Ms Skiffington on the property purchase] held the funds paid to him by the developers on 11 December 2006 until 15 January 2007, when Mr Gapes authorised him to release the funds to PSDL. Mr Hay deposited the funds and accumulatedinterest into PSDL's bank account on the same date. On the next day PSDL transferred the sum of $400,000 to the Westpac account in the joint names of the two trusts. The sum of $400,000 was then immediately transferred to another Westpac account to further reduce the loan obtained to purchase the Moana Road property. By 16 January 2007 the loan obtained to purchase the Moana Road property had therefore been reduced by the sum of $1.385 million.[74] On 31 January 2007 Westpac complied with a request by Mr Stevens to transfer the sum of $1.4 million back to PSDL. On the same date PSDL made payments totalling $1,526,625 to a company called TPS Trust Ltd. Those funds were used to pay fictitious invoices rendered by entities associated with two Wellington accountants, Messrs David Rowley and Barrie Skinner. On the same date TPS Trust Ltd paid the sum of $1,017,750 into a Westpac bank account in the joint names of Dr Love and Ms Skiffington. The funds remained in that account until 25 May 2006, when the sum of $1.026 million was transferred to the loan account in reduction of the loan obtained to acquire the Moana Road property. Ms Skiffington subsequently complained to Westpac about the fact that the funds had not been applied in reduction of the loan as soon as they had been deposited to the joint account on 31 January 2007.(Footnotes omitted.)[20] On 27 February the Trust's board met again. Dr Love did not provide the other trustees with copies of the agreement to lease or services agreement, then or at15 At [68].16 At [71].17 At [72].any other time. Nor did he advise the trustees of the existence of a services agreement whereby the developers had already paid PSDL $1.5 million plus GST.Obtaining by deception[21] Lang J found Dr Love guilty of obtaining by deception under the Crimes Act as follows:240 Obtaining by deception or causing loss by deception(1) Every one is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,—(a) obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration, directly or indirectly; or(d) causes loss to any other person.(1A) Every person is liable to imprisonment for a term not exceeding 3 years who, without reasonable excuse, sells, transfers, or otherwise makes available any document or thing capable of being used to derive a pecuniary advantage knowing that, by deception and without claim of right, the document or thing was, or was caused to be, delivered, executed, made, accepted, endorsed, or altered.(2) In this section, deception means—(a) a false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and—(i) knows that it is false in a material particular; or(ii) is reckless as to whether it is false in a material particular; or(b) an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it; or(c) a fraudulent device, trick, or stratagem used with intent to deceive any person.[22] The offence has three elements. By reference to each Lang J made these findings. First, the money received by PSDL fell within the meaning of "property"under s 2 of the Crimes Act.18 The requirement of "obtaining" was satisfied by proof that Dr Love obtained property for PSDL in the sum of $1.5 million.19 Dr Love was a substantial cause — if not the substantial cause — of PSDL obtaining the money given his role in concluding the services agreement. He created an environment in which the developers believed they were making payments to PSDL for the Trust'sbenefit.20[23] Second, Dr Love's conduct established an intent to deceive in three possible ways:21(a) He falsely represented to the developers that he was acting with theTrust's knowledge and authority on all aspects of the project. His falsity lay in his failure to disclose that his fellow trustees were unaware of the developers' offer to pay the $3 million premium, ofPSDL's formation and its contractual right to payments under theservices agreement.22(b) Dr Love omitted to disclose a material factor to the Trust — the existence of the developer's offer to pay a premium in circumstances where there was a duty of disclosure. The agreement to pay was obviously material to the remaining trustees. They entrusted him with responsibility to negotiate with the developers on the Trust's behalf. His duty to ensure they were given full and correct information about any agreement was beyond dispute. His failure to advise them amounted to a breach of his fiduciary obligation.23 The information was of such significance that the omission must have been deliberate and was only explicable because he did not want the other trustees to know about the payment.2418 At [108]–[109].19 At [110]–[111].20 At [112]–[116].21 At [117]–[143].22 At [117]–[122].23 At [123]–[124].24 At [128].(c) The pattern of events between November 2006 and January 2007 showed Dr Love and Ms Skiffington's contrivance of a fraudulent device to divert funds for their own benefit which should otherwise be payable to the Trust.25 The existence of deception and a resulting personal gain were "hallmarks of dishonesty".26 Both Dr Love and Ms Skiffington were "at pains" to ensure that the proposal to paymoney to PSDL was kept secret.27 The manner of giving instructions to Burton & Co also suggested a desire for secrecy.28 So too did the instruction to the firm to leave the amount of the premium payment incomplete when drafting the services agreement, causing the solicitors to assume that the premium had yet to be determined.29Other incriminating evidence was Dr Love's further omission toadvise the trustees at a meeting on 27 February 2007 of the existence of the binding agreement signed on 22 December 2006;30 and the joint remonstration by Dr Love and Ms Skiffington to Mr Knight on 1 May 2008 when they learned that his employee had inadvertently sent a copy of the services agreement to Burton & Co, which they said is "never [to be] provided to third parties" on the ground it is "strictly confidential".31 As the Judge observed: "It is difficult to see howthey could have had a valid objection to the document being sent tothe solicitor who had acted for the [Trust]."32[24] Third, Dr Love's offending could not be excused by any "claim of right"under s 2 of the Crimes Act. Dr Love was fully aware of his duties to the Trust; and knew the premium which the developers agreed to pay represented consideration for obtaining access to the Pipitea Street properties.33 Furthermore, Dr Love was aware25 At [129].26 At [130].27 At [131].28 At [132].29 At [133].30 At [139]–[140].31 At [140]–[142].32 At [142].33 At [145].that almost all the funds received by PSDL would not be applied for the Trust'sbenefit but to reduce his personal liability.34[25] Lang J's narrative of the relevant events and the documents upon which the charge was based reflects the strength of the Crown's case. His comprehensive reasons for verdict are a detailed analysis of all the material evidence. The circumstances gave rise to a clear inference that Dr Love and Ms Skiffington were guilty of an elaborate deception, primarily of the Trust but also the developers. We repeat that Dr Love does not challenge the Judge's factual findings or hisidentification or application of the relevant legal principles.[26] Colin Carruthers QC was Dr Love's senior counsel at trial. Because one of the primary grounds of appeal advanced on Dr Love's behalf challenges his performance as trial counsel, Mr Carruthers has sworn two affidavits in the appeal proceedings. In his judgment Dr Love had no choice but to give evidence in his own defence. Mr Carruthers was particularly conscious of the Crown's case that Dr Love and Ms Skiffington used the services agreement as a device to divert for their own benefit part of the consideration which the developers were prepared to pay to the Trust. To meet that case, and attempt to raise a reasonable doubt on the deception element, Mr Carruthers' defence strategy was directed at distancing Dr Love from all relevant events — the negotiations between PSDL and the developers, the banking arrangements and money movements, and any interest in the Plimmerton property and the consequent financial transactions.[27] Mr Krebs, who appeared for Dr Love on appeal, accepted that Mr Carruthers'trial strategy could not be faulted.Miscarriage of justice[28] We note that Dr Love's initial appearance was prior to the commencement ofthe Criminal Procedure Act 2011. His appeal must be determined in accordance with the relevant repealed provisions of the Crimes Act and allowed if (1) we are satisfiedthat Lang J's verdict should be set aside on the ground of a wrong decision on any34 At [146].question of law; (2) we form the opinion that on any ground there was a miscarriage of justice; or (3) the trial was a nullity.35Fitness to stand trial[29] Dr Love now seeks to challenge Lang J's pre-trial ruling that he was fit to face trial. Sections 16 and 17 of the Criminal Procedure (Mentally Impaired Persons) Act, which set out the procedure for an appeal against a fitness finding prior to trial, do not apply after a conviction has been entered.36 Dr Love did not appeal against Lang J's fitness finding before trial. He now has no right of appeal against it. He must instead establish that justice miscarried at trial because he was ruled fit to stand trial. We shall nevertheless outline the relevant medical evidence about Dr Love's fitness and the Judge's findings because they set the scene for what is now a narrow avenue for challenge.[30] The test for determining fitness for trial is provided by the Criminal Procedure (Mentally Impaired Persons) Act:14 Determining if defendant unfit to stand trial(1) If the court records a finding of the kind specified in section 13(4)[which requires the court to be satisfied under s 9 that on the balance of probabilities the defendant was involved in the act or omission forming the basis of the charge], the court must receive the evidence of 2 health assessors as to whether the defendant is mentally impaired.(2) If the court is satisfied on the evidence given under subsection (1) that the defendant is mentally impaired, the court must record a finding to that effect and—(a) give each party an opportunity to be heard and to present evidence as to whether the defendant is unfit to stand trial; and(b) find whether or not the defendant is unfit to stand trial; and(c) record the finding made under paragraph (b).(3) The standard of proof required for a finding under subsection (2) is the balance of probabilities.35 Crimes Act 1961, s 385(1).36 R v McKay [2009] NZCA 378, [2010] 1 NZLR 441 at [99]–[103].(4) If the court records a finding under subsection (2) that the defendant is fit to stand trial, the court must continue the proceedings.[31] Lang J adopted a three-stage approach but the only one in material dispute was the ultimate stage — whether on the balance of probabilities Dr Love was unfit to stand trial in the light of a proved mental impairment.37 In answering that question affirmatively, Lang J was satisfied that Dr Love understood the nature of the proceeding, the charges, the concept of a plea and the consequences that follow, and the trial process and its participants; and that Dr Love retained the ability to instruct counsel and provide an explanation for the allegations underpinning the charges.38[32] The Court had appointed two psychiatrists, Drs Gregory Young and Anthony Duncan, to assess Dr Love. Both concluded, and it was common ground before Lang J, that Dr Love was suffering from a mental impairment caused by dementia, most probably in the form of Alzheimer's disease.39 Both were of the opinion that he was unfit to stand trial. Dr Crawford Duncan, who was also engaged by the Crown to peer review the reports prepared by Drs Young and Anthony Duncan, confirmed their opinions.40[33] The Crown engaged Dr Duncan Thomson independently. He recommended the appointment of a neuropsychologist. Kay Cunningham was appointed. She conducted a range of psychometric testing on Dr Love with scores expressed in broad bands. He scored in the high-to-average range for all tests except those relating to verbal memory within a non-contextual format and visual spatial memory.41 In the former test he scored in the low-average-to-borderline range; in the latter he was in the well-below-average-to-borderline range.[34] Ms Cunningham concluded that the test scores showed a subtle but relevant decline from Dr Love's prior high functioning within his cognitive profile:37 The three stages include (1) the Court's satisfaction that the defendant participated in the alleged offending; (2) expert evidence of mental impairment; and (3) the Court's ultimate assessment offitness to stand trial: R v RTPH [2014] NZHC 1423 at [3].38 Pre-trial Ruling, above n 3, at [87]–[115].39 At [27].40 At [48].41 At [62].101. [Dr Love] has significant impairment in memory abilities and this will also impact on his ability to process and retain information, particularly as it increases in amount and complexity. Repeating and simplifying information does not necessarily increase the effectiveness of encoding and prompts to aid recall may have limited advantage.105. Based on formal testing and other relevant sources of information, in my professional opinion [Dr Love] has dementia, with the cognitiveprofile consistent with Alzheimer's. There are also very likely to becontributing effects of other medical conditions, as well as prolonged stress. Stress in particular can exacerbate cognitive compromise when dementia is present, and this can present as apparent fluctuations in severity of presentation.106. In my professional opinion, [Dr Love] has moderate level dementia, which is somewhat masked by previously superior level skills. As is quite common with individuals with very high academic and career achievements, they can do relatively well on formal structured testing whereas the true nature of their difficulties become evident in situations in which structure is not present and are required to make sense of information or under questioning well learnt knowledge and skills cannot be relied upon.[35] At the pre-trial hearing Dr Young modified his original opinion in the light of Ms Cunningham's report.42 By then the major issue for Dr Young was the risk that Dr Love's memory problems could impede his ability to communicate adequatelywith counsel. Dr Young also agreed with Ms Cunningham's conclusion that Dr Love was functioning in the average-to-high-average range in terms of his working memory.[36] In a subsequent report Dr Thomson expressed the opinion that Dr Love did not fit with the profile of most people who were found unfit to stand trial.43Dr Philip Brinded, another psychiatrist appointed by the Crown, expressed the opinion that the clinical findings made by Drs Young and Anthony Duncan were apparently at variance with the neuropsychological testing; and observed that Dr Love's abilities appeared to far exceed those of other defendants found unfit to stand trial.4442 At [34].43 At [57].44 At [67].[37] Lang J acknowledged the preponderance of the health assessors' evidencethat Dr Love's mental impairment rendered him unfit to stand trial.45 Mr Krebs accepted that it was ultimately for the Judge, not the health professionals, to decide whether the impairment was sufficient to render Dr Love unfit to stand trial for the purposes of s 14. However, Mr Krebs challenges the Judge's finding that Dr Love'simpairment did not render him unfit on the ground that Dr Love's acknowledgeddisability rendered him unfit to give evidence adequately in his defence and defend himself in cross-examination.[38] The Judge was satisfied that the combined effect of all the evidence was that Dr Love would "more likely than not" be able to provide responses to the key prosecution allegations at trial.46 He reached this conclusion on a number of grounds.47[39] While the point is rendered academic following Dr Love's conviction,Mr Krebs submits that Lang J erred in exercising what he called a discretion when finding under s 14(2)(c) that Dr Love was fit to stand trial.48 However, Lang J was not exercising a discretion. He was discharging his statutory obligation to make a finding in accordance with the law based on the evidence. Mr Krebs criticises the weight which Lang J gave to some of the medical evidence. But he has not shownthat the Judge's very careful assessment was in material error.[40] It is also significant, as Mr Burston emphasises for the Crown, that prior to the pre-trial hearing on fitness the Crown withdrew six of the eight charges then laid against Dr Love. The trial was shortened from its original estimate of eight weeks to three weeks. The Crown took this step for the express purpose of accommodating Dr Love by simplifying the issues and the evidence which he was required to face.[41] While we have summarised the Judge's findings and Mr Krebs' primarysubmission, their effect is confined to giving context to the reality of what is now a circumscribed ground of challenge. We repeat that Dr Love did not appeal against45 At [73].46 At [114].47 At [100]–[113].48 At [115].Lang J's ruling; and that it is not now open to him to challenge its existence or reasons. Dr Love elected to give evidence at trial. As a consequence he must show justice has miscarried because the trial proceeded on the finding of his fitness to stand trial.[42] Mr Krebs seeks to cross this threshold by submitting that Dr Love's dementiadeprived him of the opportunity to articulate his defence properly. Mr Krebs cannot point to actual prejudice. But he says Dr Love was incapacitated. He was restricted to bare denials, without the opportunity to recall or identify documents which might have materially assisted his denial of deception. While Dr Love may not have made harmful admissions in cross-examination, he was deprived of the opportunity to advance an affirmative defence.[43] Mr Krebs' submission must be considered in conjunction with two factorsemphasised by Mr Burston. One is that Dr Love's trial in 2016 was based on events which had occurred about 10 years earlier. Lang J was conscious that the memories of all witnesses had inevitably dimmed with the passage of time. Dr Love was not alone in expressing difficulties on occasions in recalling certain events; manywitnesses showed "a very vague recollection of the events they were asked about".49The Judge exercised care accordingly in assessing reliability of memory. But this limitation on the Crown case was largely negated by its primary reliance on a clear and incontrovertible document trail. The contemporaneous documents were the most reliable and, for Dr Love, damaging aspects of the evidence.[44] The second factor largely negates Mr Krebs' submission to the effect that the defence case was "highly complex and nuanced". Mr Krebs accepted that the central facts of the Crown case were relatively simple. As the Judge observed in his pre-trial ruling, Dr Love's defence would require an explanation of(1) the circumstances surrounding his decision to sign the agreement to lease; (2) his knowledge of the fact that the developers made payments to PSDL; and (3) his knowledge that those funds were used to repay partially the Westpac loan.5049 Reasons for Verdict, above n 1, at [34].50 Pre-trial Ruling, above n 3, at [25].[45] As we have already noted, that was the reason why Mr Carruthers adopted the only defence strategy realistically available to Dr Love of attempting to distance him from the otherwise incriminating documentary evidence of his participation in a fraud. Dr Love's defence was essentially one of denial of knowledge. Contrary toMr Krebs' submission, Dr Love's restriction to that line of defence was notattributable to his mental impairment but to the circumstances of a strong Crown case. And to advance an affirmative defence would have been contrary to his defence strategy of denial; he cannot have lost an opportunity which he never had.[46] To the extent that it remains relevant, we have considered the passages from the trial transcript to which both counsel referred us. There are, as Mr Krebs submitted, some passages where Dr Love answers questions with an expression of his inability to remember an event or events. However, as we have just noted, Dr Love was not alone in suffering this handicap and in any event it was consistent with his defence.[47] Equally, Mr Burston referred us to lengthy passages of cross-examination where Dr Love held his own in answering probing questions about the existence and terms of the services agreement. His answers were clear and exculpatory. He was similarly emphatic, expanding where necessary, in denying any participation in using the premium payments to repay the mortgage and in money movements generally. He tended to blame everything on Ms Skiffington and Mr Stevens.[48] Our assessment of the transcript confirms the accuracy of Lang J's predictiveevaluation a year earlier that Dr Love's mental impairment would not materiallyimpair his ability to give and take instructions and give his evidence at trial. The transcript also shows Lang J's care during cross-examination to ensure that Dr Love was not cognitively overloaded. The Judge intervened where appropriate to ensure that questions were framed simply and concisely.[49] It is also noteworthy that Dr Anthony Duncan was called to give evidence for Dr Love at trial. He had observed Dr Love in the witness box. In answer to a question from the Judge, Dr Duncan said he was surprised at how "adept" Dr Love was in some aspects of his performance as a witness. Mr Carruthers calledDr Duncan to explain how Dr Love's mental impairment accounted for the disparitybetween his familiarity with evidence on historic events and his evidence on factual issues relevant to the charge. Dr Duncan's evidence was led for the purpose ofcountering any adverse inference which may be drawn from this gap.[50] As Mr Burston points out, the Judge's approach to Dr Love's evidence wasconsistent with Dr Duncan's thesis. Lang J accepted that Dr Love's inability toanswer some questions reflected his underlying mental impairment, not a desire to avoid answering difficult questions.51 What was material was Dr Love's unwavering denial of the key aspects of the Crown case. In keeping with the orthodox approach, which the Crown accepted was proper, the Judge put aside any adverse inferences which may otherwise be available from Dr Love's presentation of his evidence.Instead he adopted the unchallengeable approach of determining what, if any, inferences were available from the contemporary documents on which the Crown relied to establish the central elements of the charge.[51] This ground of appeal must fail.Communication assistance[52] Mr Krebs' written submissions raised a second ground on which theconviction was said to be rendered unsafe. His proposition was that Dr Love did not have the benefit of communication assistance under s 80 of the Evidence Act 2006. This, he said, compromised his right to a fair trial under s 24 of the New Zealand Bill of Rights Act 1990 and caused justice to miscarry.[53] A defendant in a criminal proceeding is entitled to communication assistance to enable him to understand the proceeding and give evidence if he elects to do so.That assistance may be provided on the defendant's application or at the trial Judge'sinitiative. "Communication assistance" is defined as "assistance that enables orfacilitates communication with a person who has a communication disability".52The most obvious means of assistance is by provision of an interpreter or in somecases a technological aid. The term "communication disability" is not defined.51 Reasons for Verdict, above n 1, at [37].52 Evidence Act, s 4, definition of "communication assistance", para (b).Mr Krebs submitted that Dr Love was suffering from a communication disability by virtue of his dementia which was manifested through his difficulties in understanding and giving context to questions.[54] In this case neither Mr Carruthers saw fit to apply for communication assistance and nor did the Judge decide it was necessary. The reason was obvious, as Mr Carruthers has confirmed: the transcript discloses Dr Love's ability to understandand respond to questions, often of a testing and adverse nature.[55] This ground was without substance and Mr Krebs did not press it in argument.Additional evidence[56] Dr Love applies for leave to admit additional evidence from four witnesses who were not called in his defence at trial. They are Tony Gapes, one of the developers; Michael Reed QC, who attended the meeting with Dr Love and the developers in Auckland on 22 November 2006; Martin Lally, an economist; and Rebecca (or Liz as she is known) Mellish, a senior Trust manager.[57] Mr Krebs accepts that none of the evidence is fresh. All of it was available at trial. Indeed, Mr Carruthers considered whether each of the four witnesses should be called but advised Dr Love against that course. Mr Krebs submits that Mr Carruthers' advice was in error and that, relying on the Privy Council's decisionin Lundy v R, the evidence should nevertheless be admitted because of its strength and its potential impact on the safety of Dr Love's conviction; there is a risk of amiscarriage of justice if the evidence is excluded.53[58] The approach mandated by Lundy must be read in conjunction with theSupreme Court's decision in R v Sungsuwan.54 In determining whether new evidence should be admitted, we begin from the premise that a defendant will generally be unable to show a risk of a miscarriage where trial counsel has given advice which was reasonable in the circumstances then prevailing, whether before or53 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].54 R v Sungsuwan, [2005] NZSC 57, [2006] 1 NZLR 730 at [66]–[67].during trial. Where the explanation for not calling evidence is reasonable, and the advice is accepted by the defendant, he or she will not be able to complain aboutcounsel's advice simply because another course was available.55 Appellate courts do not second guess trial counsel's advice unless it can be shown that, however reasonable the advice was when given, it caused an irregularity in the trial whichprejudiced the defendant's chance of an acquittal.56 For reasons which we shall explain, this appeal does not approach that threshold. In our judgment none of the additional evidence might possibly have raised a reasonable doubt about guilt; if anything, it would have likely assisted the Crown case.[59] An unusual aspect of Dr Love's application is that, while it is made on hisbehalf, he has not sworn an affidavit in support. We have no evidence that he has ever challenged Mr Carruthers' advice or that he asserts a miscarriage. It is plain that this ground was initiated by Dr Love's daughter, Dr Catherine Love. Mr Carruthers refers to Dr Catherine Love's persistent and unhelpful interference in his professional relationship with his client when preparing Dr Love's defence for trial. Mr Carruthers viewed Dr Catherine Love as attempting to dictate how herfather's defence should be run and what witnesses should be called. Dr Catherine Love has sworn an affidavit in support of the appeal but it does not materially assist us and we have not taken it into account.[60] We shall now address the additional evidence which Mr Krebs submits should be admitted on appeal.Tony Gapes[61] As noted, Mr Gapes was a director and shareholder of Redwood, one of the two developers which undertook the joint venture with the Trust and agreed to pay the $3 million premium. He was closely involved in negotiations with Dr Love and Ms Skiffington. At Dr Catherine Love's insistence, Mr Carruthers gave careful consideration to whether Mr Gapes should be called as a defence witness. Mr Carruthers was in possession of a copy of a statement made by Mr Gapes to the Serious Fraud Office when conducting its investigations.55 R v Dalhousie [2011] NZCA 486 at [26].56 R v Sungsuwan, above n 54, at [67] citing R v Pointon [1985] 1 NZLR 109 (CA).[62] The Crown called Mr Knight, the lawyer for and representative of the other developer. Mr Carruthers cross-examined him for the purpose of eliciting answers on points material to Dr Love's defence which conformed with Mr Gapes' statement.Mr Carruthers was satisfied by the conclusion of Mr Knight's cross-examination that Mr Gapes could not constructively add anything to Mr Knight's favourable answers.[63] Mr Carruthers was also alive to the obvious risk that Mr Gapes, without adding anything constructive, might in fact undermine Dr Love's defence byincriminating answers under cross-examination. Mr Burston drew our attention to aspects of Mr Gapes' statement which would likely have provided fertile ground for adverse cross-examination.[64] Nevertheless, Mr Krebs submitted that Mr Gapes' evidence would havecorroborated the defence theory and caused Lang J to doubt the Crown's reliance onMr Knight's evidence as showing the developers' belief that the premium was intended for the Trust. Mr Krebs referred to Mr Knight's evidence thatMs Skiffington performed valuable services; and that he understood the money paid as a premium was in fact for Ms Skiffington's benefit in compensation for her services rather than for the Trust's benefit. In Mr Krebs' submission Mr Gapes'evidence would reaffirm Ms Skiffington's provision of valuable skills and services throughout the project and the developers' understanding that she and Mr Stevens were to be the beneficiaries of the agreed $3 million premium in compensation for their work.[65] This theory is diversionary for a number of reasons. First, the developers'understanding of the purpose of a contractual obligation to pay a lease premium of $3 million to PSDL is irrelevant to the separate and decisive issue of Dr Love'scriminal intent. The Judge found Dr Love intended to deceive the developers by failing to disclose to them that the trustees were unaware of the agreement to pay the $3 million premium and of PSDL's existence and right to payments. Second,Dr Love's deception of the developers was only one of three independently operative deceitful acts or omissions.57 Mr Gapes' evidence could not possibly have affected57 See [23] of this judgment.the Judge's other two findings of deceit, each of which on its own would have beensufficient to support a guilty verdict.[66] In our judgment Mr Carruthers' advice to Dr Love not to call Mr Gapes was not only reasonable but sound. His advice cannot be impeached as being without a proper foundation. We do not understand how Mr Gapes' evidence might haveassisted Dr Love's defence or raised a reasonable doubt.Michael Reed QC[67] As noted Michael Reed QC attended a meeting with Dr Love, Ms Skiffington and Mr Knight in Auckland on 22 November 2006.58 The Judge found Mr Reed'spresence was for the purpose of advancing the demand by Dr Love and Ms Skiffington for a premium payment of $3 million to $4 million from the developers. After delivery of the verdict, Dr Lally phoned Mr Reed and read him an extract from Lang J's reasons for verdict. In his brief affidavit Mr Reed recalled that he had been:8. instructed to get Dr Love or his interests out of a contractual relationship with Mr Knight's interests. I understood that thisenabled Dr Love to renegotiate any deal on a more favourable basis.9. I was never instructed to negotiate or enter into any new joint venture. [68] Mr Carruthers considered whether Mr Reed should be called. The instructions which he received from Dr Love made it clear that Mr Reed would be unable to assist the defence case. Mr Carruthers was well aware of the nature and extent of Mr Reed's participation at the meeting on 22 November. His instructions were that Mr Reed was engaged to place pressure on Mr Knight to obtain the best agreement for the Trust.[69] Again, we do not understand how Mr Reed's evidence might possibly haveassisted Dr Love's defence. Mr Krebs said its purpose and effect was to challenge Mr Knight's evidence about the meeting. But such a challenge would have been peripheral. Mr Reed's recollection, which Mr Carruthers believes is mistaken, was58 See [11] of this judgment.immaterial to the main issue. Without doubt, the purpose of the meeting was to pressure the developers into paying a premium in the range of $3 million to $4 million. Mr Reed's participation brought immediate success. Other than that it was of no moment whether he was there to assist Dr Love and his interests to extricate themselves from a contractual relationship with Mr Knight's interests(which must be incorrect given that they were not in such a relationship) or to negotiate a joint venture.Dr Martin Lally[70] Dr Martin Lally is an economist. He is also a friend of Matene Love. Dr Lally has some specialist experience of ground leases. He had given evidence on ground-rental rates in arbitrations. He attended Dr Love's trial and after Mr Knights'evidence offered his services to Mr Carruthers as a defence witness. Mr Carruthers was not satisfied that Dr Lally's evidence would materially assist Dr Love's defence,and for good reason.[71] Dr Lally has sworn two affidavits in support of Dr Love's appeal. They are discursive and argumentative. Among other things, Dr Lally purports to undertake his own extensive critique of Lang J's central findings even though they are not the subject of appeal. He comments on the veracity and reliability of certain witnesses. He speculates on how their evidence should have been construed. He calls theJudge's reasoning into question. As noted earlier, he approached Mr Reed for the purpose of obtaining an affidavit in support of Dr Love's appeal.[72] Dr Lally has deposed to reading and agreeing to comply with the Code of Conduct for expert witnesses. The Code emphasises the expert witness' overriding duty to act independently and to assist the Court impartially. But Dr Lally is essentially an advocate for Dr Love's cause. While Dr Lally is no doubt an expert in his professional field of economics, his affidavits could never qualify for admission as new evidence and should not have been tendered on appeal in the form that they were.[73] When stripped to its core, Dr Lally's economic thesis appears to be this. The ground-lease payments which the developers agreed to pay the Trust were inline with market rates. The addition of the $3 million premium would have provided a total return to the Trust well in excess of market rates. The $3 million figure referred to in the draft agreement to lease dated 23 November 2006 must have been mistaken. The inferences to be drawn from this evidence are that (1) the developers must always have intended the $3 million would be paid to PSDL as consideration for services rather than to the Trust as a premium to secure the lease; and (2) Dr Love may have realised that the original proposal to pay $3 million to the Trust was an error, rendering explicable his failure to disclose the existence of the professional services agreement to the Trust.[74] Our summary exposes the fallacy of this thesis. It is advanced in a factual vacuum. Dr Lally's proposition that the reference to a payment of $3 million in the draft agreement to lease was in error is not only speculative, it is also contrary to the primary evidence. The inferences he purports to draw on the ultimate issues of the parties' intentions and whether Dr Love deceived the Trust are not for him but for the Court. These gratuitous comments betray the extent of his partisan involvement. As the Privy Council observed of a witness in another case: "It is not possible to segregate those parts [of the evidence] which are unobjectionable from passages which are not."59[75] Moreover, Dr Lally's conclusory inference that Dr Love may have realised the existence of the alleged error was contrary to Dr Love's own evidence at trial. Adoption of this hypothesis would also have undermined Dr Love's whole defencestrategy of distancing himself from the negotiations for and implementation of the underlying transactions. We are not satisfied that Dr Lally's evidence would havebeen substantially helpful to the Court or, in terms of the test on appeal, that there is a real risk that justice will miscarry if it is excluded. It raises no doubt about Dr Love's guilt.Liz Mellish[76] Liz Mellish is Dr Love's cousin. She was involved informally with the Trust for some years before taking up a position as its joint manager in 2006. Despite his59 R v Pora [2015] UKPC 9, [2016] 1 NZLR 277 at [34].acknowledgement that Ms Mellish's evidence would have been largely peripheral, Mr Krebs says that it would nevertheless have been important in placing in context the Trust's operations on a daily basis. In particular Mr Krebs submits Ms Mellish should have been called to confirm that Dr Love relied on others for administrative tasks and was unable to operate a computer or obtain access to email.[77] Again, Mr Carruthers considered Ms Mellish's position. He was satisfiedthat there was nothing she could usefully add to Dr Love's defence. That conclusionwas entirely reasonable. Mr Carruthers was conscious that, as with Mr Gapes, calling Ms Mellish ran the risk of damaging Dr Love's defence. She had beenbriefed as a Crown witness. She had stated that all involved with the Trust knew that Dr Love and Ms Skiffington "had a personal relationship". Ms Skiffington was known as Dr Love's partner. As Mr Carruthers was aware, the nature of the relationship formed part of the Crown theory of the case. In evidence Dr Love firmly denied a sexual or an intimate relationship with Ms Skiffington. He describedit as "platonic". The potential for Ms Mellish to damage Dr Love's defence does notrequire further emphasis.Conclusion[78] Dr Love has failed to persuade us that Lang J's verdict was unsafe on any ofthe three discrete grounds advanced by Mr Krebs. We are not satisfied that justice miscarried. Dr Love's appeal against conviction must fail accordingly.Sentence[79] Lang J adopted a starting point of four years and nine months' imprisonment before giving Dr Love credit for a number of factors which resulted in an end sentence of two and a half years' imprisonment.60 He recognised there was no guideline judgment.61 He considered other sentences in related cases.62 Lang J took60 Sentencing Remarks, above n 2, at [41] and [57].61 At [28] citing R v Rose [1990] 2 NZLR 552 (CA) and R v Varjan CA97/03, 26 June 2003 at [21].62 At [38]–[39] citing R v Prestney [2003] 1 NZLR 21 (CA); Serious Fraud Office v Ellis HC Auckland CRI-2005-404-1587, 18 July 2006; Serious Fraud Office v Lapham DC Auckland CRI-2008-004-25128, 29 November 2010; Serious Fraud Office v Rangitauira DC Auckland CRI-2010-063-5669, 16 December 2011; Serious Fraud Office v Hobbs DC Hamilton CRI-2011-072-0578, 1 March 2013.into account that (1) Dr Love's deception was of both the developers and his fellowtrustees, his breach of trust in his role as chairperson being of a gross nature;63(2) Dr Love derived a twofold personal benefit from the substantial payment of $1.5 million dollars by using the funds to reduce his mortgage liability and creating equity in the Plimmerton property for the two family trusts;64 and (3) the Trust suffered both a loss of funds and also reputational damage causing rifts between different factions among the beneficiaries.65 The Judge nevertheless reduced what would otherwise have been an appropriate starting point of five and a half years'imprisonment by nine months to allow for Ms Skiffington's apparently fraudulent influence and its mitigating effect on Dr Love's culpability.66[80] Mr Krebs submits that this starting point was excessive. He says the Judge failed to give sufficient recognition to what he calls the "reality" that there was no victim of Dr Love's offending. He relies on Dr Lally's evidence, which we have already rejected.67 Mr Krebs' proposition is that if the Trust had proceeded with a contract in accordance with the developers' first offer on 22 November 2006 its position would have been worse than by accepting the final offer excluding a $3 million premium. His point is that Dr Love and his associates created significant value for the Trust through their negotiation of the final terms. He accepts that Ms Skiffington, as a party associated with Dr Love, gained a substantial financial benefit from the payment structure. But this came at no cost to anybody else. He advocates a starting point of three and a half years' imprisonment.[81] Mr Krebs was right to acknowledge an element of perversity in his submission. It is also open to construction as advancing elements of entitlement and justification for Dr Love's fraud. Neither can possibly have any place here. It is beyond dispute that the Trust was a victim of the offending. It was deprived of the benefit of at least $1.5 million to which it was legally entitled; but for Dr Love'sdeception the Trust would have been $1.5 million better off. The end starting point of four years and nine months' imprisonment was if anything generous; Dr Love was63 At [29]–[30].64 At [31]–[32].65 At [33]–[37].66 At [40]–[41].67 See [70]–[75] of this judgment.particularly fortunate that the Judge discounted what would otherwise have been an appropriate starting point of five and a half years to take account of Ms Skiffington'sapparently fraudulent influence.[82] Lang J allowed Dr Love a substantial credit from this starting point of two years and three months to recognise mitigating factors. The primary allowance was one of 18 months (about 31.5 per cent of the starting point) to recognise Dr Love'spreviously blameless life of civic duty to Māori and to the wider community — asubstantial increase on the Crown's proposal of 20 per cent.68 The Judge allowed a further nine months (15.7 per cent) to reflect Dr Love's age — he was then 79 years old and suffered several health problems including cardiac difficulties, dementia and diabetes.69 The Judge properly rejected a submission that he should have allowed a further discount solely for the purpose of bringing the end sentence within the range of eligibility for home detention.70[83] Mr Krebs submits that the Judge erred in two respects. First, he submits the Judge should have placed greater weight on medical evidence about the hardship to be experienced in prison given Dr Love's health difficulties. However, the evidence satisfied us that the prison authorities are taking all proper steps to ensure Dr Love gets the appropriate level of health care. There is no evidence he is suffering unduly; to the contrary he appears to be in relatively good health. The prison environment has been able to accommodate the dietary demands of his diabetes and other conditions.[84] Second, Mr Krebs submits the Judge should have taken into account remorse expressed by senior representatives of Dr Love's iwi and the Trust and attributed that remorse to Dr Love himself. However, our sentencing regime does not recognise concepts of transferred or vicarious remorse, and for good reasons. The fact remains that Dr Love has never expressed his remorse, in particular to those whose trust he betrayed and who suffered by his fraud. Lang J referred expressly to the victim impact statement tendered by the Trust.71 A spokesperson said that the single most68 Sentencing Remarks, above n 2, at [44]–[47].69 At [48]–[52].70 At [53]–[56].71 At [55].important item of redress for the Trust was a "formal, unreserved and sincereapology to the beneficial owners and the trustees who completely trusted him".Dr Love's failure to apologise cannot be counted against him. But equally he cannot claim a credit for words of remorse spoken by others when the duty was personal to him, and to him alone.[85] In our judgment the end sentence of two and a half years' imprisonment was well within range, if not merciful, and could not possibly be criticised as excessive.Result[86] The application for leave to admit further evidence is declined.[87] The appeal against conviction is dismissed.[88] The appeal against sentence is dismissed.Solicitors:Crown Solicitor, Wellington for Respondent