ANDREWS v R [2021] NZCA 412

ANDREWS v R [2021] NZCA 412 [31 August 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA352/2019[2021] NZCA 412BETWEEN RAYMOND ANTHONY ANDREWSAppellantAND THE QUEENRespondentHearing: 21 June 2021Court: Gilbert, Mander and Hinton JJCounsel: M J Taylor-Cyphers for AppellantZ R Johnston and M R L Davie for RespondentJudgment: 31 August 2021 at 9.30 amJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Mander J)[1] Following a jury trial in the District Court at Auckland, Raymond Andrewswas convicted on various charges of breaching the conditions of his bankruptcy andfraudulent conduct. Mr Andrews appeals his convictions. He alleges that his trialcounsel failed to prepare adequately and advance his defence in accordance with hisinstructions and this resulted in a miscarriage of justice. In support of his appeal,Mr Andrews also alleges that trial counsel failed to prepare a brief of evidence, todischarge his duties of cross-examination and gave an inadequate closing address,together with a series of subsidiary complaints relating to the conduct of his counsel.[2] Mr Andrews was sentenced by Judge D J Sharp on 2 July 2019 to a term ofsix and a half years' imprisonment.1 He appeals that sentence primarily on the basisthat it was manifestly excessive.Background2008 bankruptcy[3] On 21 April 2008, Mr Andrews was adjudicated bankrupt by the High Court.As a result, he was obliged to notify the Official Assignee of changes to his incomeand employment and to disclose all property in his possession. He was also prohibitedfrom managing a business or being a company director without the consent of the courtor the Official Assignee.2013 prohibition on being involved in the management of companies[4] In February 2013, Mr Andrews was convicted of dishonesty offending andoffences against the Insolvency Act 2006.2 Mr Andrews was sentenced to 15 months'imprisonment for this offending.3 Because of that offending, the Registrar ofCompanies notified Mr Andrews on 28 March 2013 that he was prohibited from beinginvolved directly or indirectly in the management of a company for five years withoutthe consent of the court.41 R v Andrews [2019] NZDC 12700 [Sentencing notes].2 These charges related to Mr Andrews' involvement in the management or control of companiesinvolved in the laser hair removal and beauty therapy industry during 2008 and 2009.Following trial he was convicted on charges of being involved in the management or control ofa business whilst bankrupt without the consent of the Official Assignee, concealing property fromthe Official Assignee, obtaining credit without disclosing his status as an undischarged bankruptand obtaining property on credit by false representation.3 R v Andrews DC Tauranga CRI-2009-070-6443, 13 March 2013.4 Companies Act 1993, s 382(1).The present offendingTaking part in the management of a business whilst prohibited (charge 1)[5] Mr Andrews was charged with taking part in the management of a companyover a three year period between February 2014 and June 2017 whilst prohibited fromdoing so without the leave of the court.5 The particulars of that charge alleged thatbetween 28 February 2014 and 25 November of that year he took part inthe management of the business of Max Imports Ltd, and that between 2 October 2015and about 30 June 2017 he took part in the management of Maxium Pty Ltd (Maxium).Both companies were involved in the importation of vehicles into New Zealand fromAustralia. Mr Andrews was found guilty of this representative charge.[6] His conviction on this charge was in addition to earlier charges of participatingin the management or control of companies involved in the same activity that arosefrom a separate prosecution to which he pleaded guilty in 2017.6Taking part in the management of a New Zealand vehicle import business whilebankrupt without the consent of the Official Assignee (charge 2 and, in the alternative,charge 3)[7] Maxium is an Australian-based company that purchases vehicles in Australia(often insurance write-offs) and exports them to New Zealand where they are repaired,certified and on-sold. This business is owned by Mr Andrews' son, Robert. It wasalleged that between October 2015 and June 2017 Mr Andrews was also involved inthe business of importing, repairing and selling vehicles from Australia. It wasthe Crown's case that Mr Andrews represented that his business was part of oraffiliated with Maxium. Robert denied that was the case.[8] Evidence of Mr Andrews' involvement in Maxium's business of importing andselling vehicles was provided by companies that were engaged to repair and certifythese vehicles, and by individuals who purchased them from Mr Andrews.5 Companies Act ss 382(4) and 373(4) (maximum penalty: five years' imprisonment or a fine notexceeding $200,000).6 These charges included being involved in the management or control of a business whilst bankruptand without the consent of the Official Assignee, concealing property from the Official Assigneeand charges of misleading the Official Assignee. Mr Andrews was sentenced to 10 months'imprisonment: R v Andrews [2017] NZDC 28398.Between December 2015 and September 2016, Mr Andrews arranged for a number ofimported vehicles to be repaired by a company called Total Auto Therapy Ltd.Twenty-one invoices were purportedly issued to Maxium for this work butthe company dealt exclusively with Mr Andrews. Between January 2016 and Augustof that same year, Mr Andrews also arranged for vehicles to be certified at a businesscalled Drivesure Vehicle Testing. It carried out work on seven vehicles, againpurportedly for Maxium, but dealt only with Mr Andrews in respect of those vehicles.[9] Between October 2015 and April 2016, Mr Andrews sold vehicles to a numberof individuals who gave evidence of personally dealing with Mr Andrews andreceiving invoices from him for the purchase price. Details on the invoices includedMr Andrews' address (described as the New Zealand Sales Office for Maxium) andhis ANZ bank account (the ANZ account). Between October 2015 and March 2016,Vishal Rishi purchased 12 vehicles from Mr Andrews for a total price of $435,500 andpaid $290,500 into the ANZ account. Jonathan Prentice described purchasinga vehicle for $28,500 and paying a 50 per cent deposit into the ANZ bank account on30 March 2016. In March 2016, Trevor Strange placed an order with Mr Andrews fora BMW motor vehicle and received an invoice from him for payment of $37,500, andin April entered into a similar transaction with Mr Andrews for a motorbike in respectof which he received an invoice for $14,900. In November 2015, Scott Wilsonpurchased four Grand Cherokee vehicles and a Mercedes Benz from Mr Andrews fora total price of $183,000, and made payments to the ANZ account (following initialpayments to Robert's account).[10] The Official Assignee was unaware of Mr Andrews' involvement in thisbusiness and did not consent to it, nor had Mr Andrews sought the court's consent tobe involved in this business. At trial, Mr Andrews was found guilty of a charge oftaking part in the management of a business that imported, repaired and sold motorvehicles whilst bankrupt without the consent of the Official Assignee (charge 3).7This charge was laid as an alternative to charge 2, which alleged the same conduct butthat it had involved Mr Andrews taking part in the management of the business ofMaxium (charge 2). The jury did not find Mr Andrews guilty of charge 2.87 Insolvency Act 2006, ss 436(1)(b), 437 and 149 (maximum penalty: two years' imprisonment).8 Charge 4, which alleged that the appellant was an employee of his son, Robert Andrews, wasForgery charges in relation to vehicle import business (charges 8–21 and 26–35)[11] Mr Andrews was also convicted of making and using forged documents inrelation to the sales of imported vehicles.9 He created and used invoices purporting tobe from Maxium but which listed Mr Andrews' own ANZ bank account details for thepurpose of payment. The invoices also falsely represented that Maxium was a licensedmotor vehicle dealer (LMVD) in New Zealand, and were sent to buyers for paymentwith incorrect vehicle identification numbers (VINs), which the Crown maintainedwas to prevent them from being traced. Many of the victims made multiple purchasesand sustained losses as a result of Mr Andrews either not supplying the vehicles whichhe had promised or supplying inferior vehicles in poor condition.10Wilfully misleading the Official Assignee (charge 5)[12] Unbeknownst to the Official Assignee, Mr Andrews operated three bankaccounts. The ANZ account was opened in October 2015 by Mr Andrews in his name.Mr Andrews operated the account over a number of years. His daughter, AlexandraAndrews, did not access it. Between October 2015 and June 2017, Mr Andrews alsooperated a Kiwibank bank account that was in the name of his daughter but to whichhe had access and that she never used. There was also a Westpac bank account intowhich Mr Andrews received his superannuation payments.[13] When examined by the Official Assignee on 31 May 2016, Mr Andrews saidhe had not opened any new bank accounts and stated he was only "using the bankaccounts you think I have". He did not disclose the ANZ, Westpac or Kiwibankaccounts. As a result, he was found guilty of wilfully misleading the OfficialAssignee.11withdrawn prior to the jury's deliberations pursuant to s 147 of the Criminal Procedure Act 2011.9 Crimes Act 1961, ss 256(1) (maximum penalty: 10 years' imprisonment) and s 257(1)(a)(maximum penalty: 10 years' imprisonment).10 Between 21 October 2015 and 3 March 2016, Mr Rishi placed six orders for 12 motor vehicles,in respect of which he was sent six invoices for sums that totalled $344,000 (charges 8–19);Mr Prentice was issued an invoice by Mr Andrews on 25 March 2016 for a vehicle, seekingpayment of $14,250 (charges 20 and 21); on 25 March and 11 April 2016, Mr Andrews sentinvoices to Mr Strange for the sums of $37,500 and $14,900 for a motor vehicle and a motorbike(charges 26–29); and in November 2015, Mr Andrews sent three invoices for three vehicles toMr Wilson for sums totalling $167,000 (charges 30–35).11 Insolvency Act, ss 433(1)(c) and 435 (maximum penalty: 12 months' imprisonment and/or $5,000fine).Concealing property as an undischarged bankrupt (charges 6, 7 and 36)[14] Between October 2015 and July 2016, a total of $700,200 was deposited intoMr Andrews' ANZ account. Neither the existence of the bank account nor the moneyheld within it was disclosed to the Official Assignee. Similarly, between October 2015and June 2017, Mr Andrews received a total sum of $55,113.31 into the Kiwibankaccount that included two large lump sum payments of $25,500 and $22,203.53.Mr Andrews did not disclose either the bank account or the money deposited into it tothe Official Assignee. There was also evidence of Mr Andrews having received$25,000 in cash from a Sesilia Sua between December 2016 and January 2017 asa result of an agreement to supply her with a vehicle. This money was not disclosedto the Official Assignee. Mr Andrews was found guilty of three charges of concealingproperty to the value of $500 or more.12Obtaining by deception (charges 22–25)[15] Wayne Dobson was the owner of a laser hair removal machine that was valuedat $127,258.50 at the time of its acquisition in 2007. In 2018, he was introduced toMr Andrews, who represented to him that he was in the beauty industry business.Mr Dobson agreed to lease the machine to Mr Andrews. Not only did Mr Andrewstake possession of the machine but he also induced Mr Dobson to pay him $5,000 toupgrade it. No money was received by Mr Dobson and the machine has not beenrecovered. Mr Andrews later claimed it was stolen.[16] In 2011, Mr Andrews purchased what was described as an E-Light IPL beautymachine from Mr Russell Smith that was valued at $4,000. Mr Andrews representedthat he would pay the purchase price shortly after he received the machine.He received the machine but did not pay.[17] Mr Andrews was found guilty of obtaining the two machines and the $5,000by deception.13 Mr Andrews was also found guilty of obtaining credit by deceptionby obtaining accommodation from serviced apartments in Mount Maunganui between12 Sections 420(2)(a) and 428 (maximum penalty: three years' imprisonment and/or fine notexceeding $10,000).13 Crimes Act 1961, ss 240(1)(a) and 241(a) (maximum penalty: seven years' imprisonment).August 2012 and February 2013, during which he incurred a bill of $1,050 which henever paid.14Procedural background[18] Mr Andrews' first trial was scheduled to proceed in July 2018. However, inthe preceding month his counsel was granted leave to withdraw and Mr Gardiner wasengaged. At Mr Andrews' instructions, Mr Gardiner obtained an adjournment ofthe trial in order to better prepare and a new trial date was set. Mr Andrews stood trialon 4 March 2019.[19] The Crown had available to it, and relied on, interviews the Official Assigneehad conducted with Mr Andrews and an interview he had provided to the police.The Crown called a number of witnesses, including representatives of theOfficial Assignee's office, people who had dealt with Mr Andrews in relation totransactions the subject of charges, and his two children, Robert and Alexandra.Mr Andrews gave evidence on his own behalf and called one witness, Gary Hobbs, anaccountant.[20] Mr Andrews' defence was that he had attempted to meet his commercialobligations and that it was not his fault the victims had sustained losses. In relation tohis New Zealand vehicle import business, Mr Andrews maintained he was in anagency relationship with Maxium and that he did not manage the business.The appeal[21] Mr Andrews appeals his convictions primarily on the basis that his trialcounsel, Mr Gardiner, was not sufficiently prepared and that the conduct of his defenceat trial was inadequate. Mr Andrews maintained the failure by his counsel to preparea brief of evidence resulted in his defence not being advanced in accordance with hisinstructions. He alleges his trial counsel failed to discharge duties ofcross-examination and gave an inadequate closing address and that these were furthermaterial defects in the conduct of his defence that either individually or cumulatively14 Sections 240(1)(b) and 241(a) (maximum penalty: seven years' imprisonment).constituted a departure from good practice that was so prejudicial as to render his trialunfair and result in a miscarriage of justice.[22] Mr Andrews also relies on a number of subsidiary points which, while notindividually determinative, it is submitted were contributory factors that jointly mayhave caused his trial to miscarry. These include a lack of advice regarding his decisionto give evidence and to permit an agreed summary of facts, particularly as it related tohis previous convictions, to be admitted in that form; and a failure by the trial Judgeto put the defence position regarding Mr Andrews' agency relationship with his son tothe jury. While not pursued in oral submissions before us, further complaints includedthe failure to call particular evidence and to obtain a second sentence indication.[23] On behalf of Mr Andrews, Ms Taylor-Cyphers submitted that trial counselerror caused a miscarriage of justice, either because the error gave rise to a real riskthat the outcome of the trial was affected but primarily because it meant the trial wasunfair.15[24] The approach to appeals involving an issue of trial counsel's competenceordinarily requires the appeal court to consider whether there has been an error orirregularity on the part of counsel and, if so, whether there is a real risk it affected theoutcome of the trial by rendering the verdict unsafe.16 Where counsel has made atactical decision that was deliberately judged at the time to be in the interests ofthe defendant and was reasonable in the context of the trial, a complaint subsequentlymade on appeal regarding that decision is unlikely to be successful.17[25] There are only a limited number of circumstances where counsel error, withoutmore, will potentially give rise to a miscarriage of justice. Not every error, even inrespect of one or more facet of the trial, will result in an unfair trial.18 An assessmentof the trial overall is required. It will only be if the departure from good practice is"so gross, or so persistent, or so prejudicial, or so irremediable" that the trial must be15 Criminal Procedure Act, ss 232(2)(c) and (4).16 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [70]; Wiley v R [2016] NZCA 28, [2016]3 NZLR 1 at [28], citing R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145 at [30]; Scurrah v RCA159/06, 12 September 2006 at [17]; and Hall v R [2015] NZCA 403, [2018] 2 NZLR 26.17 Scurrah v R, above n 16, at [18] and R v Sungsuwan, above n 166, at [66].18 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78].condemned as unfair and the conviction quashed as unsafe.19 However, fundamentaldecisions where trial counsel has failed to follow specific instructions will generallygive rise to a miscarriage. These have been identified by this Court as those relatingto plea, electing whether to give evidence, and to advance a defence based onthe defendant's version of events.20[26] Having identified the issues raised on Mr Andrews's appeal, a number of whichare interrelated, and set out the required approach to our assessment, we turn toconsider each issue in turn.Failure to prepare brief of evidence and advance Mr Andrews' defence[27] A brief of evidence for Mr Andrews was not prepared by his trial counsel.There is no dispute that because of the nature and number of charges Mr Andrewsfaced, and the possibility of different defences, a brief should have been prepared.Ms Taylor-Cyphers emphasised that where a defendant is likely to give evidence orhas indicated his or her intention to do so, the preparation of a brief of evidence is anecessary step to ensure cross-examination duties are complied with by counsel.It was also noted that a number of inconsistencies arose from statements Mr Andrewsmade during the course of his various interviews which needed to be addressed.[28] On behalf of the Crown, Ms Johnston acknowledged that, in the absence ofpreparing a brief of evidence, trial counsel's preparation did not meet the requirementsof best practice. However, Ms Johnston submitted this failure had not prejudicedMr Andrews' defence, nor had Mr Andrews been able to demonstrate how betterpreparation or a brief of evidence would have resulted in a better outcome for him, ordeprived him of a fair trial.[29] Those critical overarching considerations of whether Mr Andrews' defencewas prejudiced by the failure to prepare a brief of evidence and whether his defencewas advanced in accordance with his instructions are issues that will be addressed19 R v Condon, above n 188, at [78], quoting Lord Bingham in Randall v R [2002] UKPC 19, [2002]1 WLR 2237 at [28], approved in R v Howse [2005] UKPC 30, [2006] 1 NZLR 433 at [36]; andWiley v R, above n 16, at [35].20 Hall v R, above n 166, at [65].shortly. However, in mitigation for the lack of a brief of evidence, Ms Johnston saidone was not prepared because of Mr Andrews' vacillation over pleading guilty and hisreluctance to engage in the issue of his defence to the charges until shortly before trial.Ms Johnston submitted that trial counsel could only run the defence his client hadequipped him to run, and that Mr Gardiner experienced considerable difficulties ingetting Mr Andrews to articulate his defences to the various charges.[30] In oral evidence before us, Mr Andrews said he never had any intention ofpleading guilty and maintains that Mr Gardiner's evidence of him having discussionswith him about pleading guilty in the period shortly before the trial commenced,including instructing him to obtain a second sentence indication, was incorrect.However, from the available record there can be no doubt that Mr Andrews did giveinstructions to Mr Gardiner to seek a second sentence indication — indeed it isa further source of complaint on his appeal that this was not ultimately obtained.There is also evidence of Mr Gardiner engaging with the Crown prosecutor shortlybefore trial to ascertain whether a resolution could be reached in relation to plea andsentence indication. Mr Andrews maintains that any such approach was without hisinstructions, although it is apparent from the available emails that this initiative wastaken with Mr Andrews' knowledge and authority. Despite this, Mr Andrews isadamant that he would have pleaded guilty to nothing.[31] We doubt much turns on this conflict but we are bound to observe that therewould be no point in seeking a sentence indication if there was no possibility of guiltypleas being considered. We have also sighted an email from Mr Andrews toMr Gardiner that indicates he may have been prepared to consider such a course inthe month prior to his trial when he instructed Mr Gardiner to obtain another sentenceindication.[32] Mr Gardiner's evidence was that he met with Mr Andrews on at leastthree occasions in the month before trial and a further two occasions in the daysleading up to it, on 1 and 3 March 2019. He calculated from his work records that hespent some 52 hours on trial preparation, not including the hours spent preparing andmeeting with Mr Andrews during the trial, outside sitting hours. Throughout thisperiod Mr Gardiner exchanged emails with Mr Andrews regarding his case.Mr Gardiner deposed that he discussed with Mr Andrews the preparation of a brief ofevidence but that his client was considering pleading guilty, and it was only as the trialbecame imminent that Mr Andrews was forced to consider what his defences tothe charges might be. Mr Gardiner deposed this was the reason for the latepreparation.[33] Mr Gardiner's evidence was that he explained to Mr Andrews that it wasimportant to know his response to the various charges so he could put propositions toprosecution witnesses and that he provided an example of a "narrative" or brief inthe form of a template to be completed by Mr Andrews, requiring him to state hisposition and response to the Crown's allegations. On 2 March 2019, Mr Gardineremailed Mr Andrews asking him to complete a draft of his evidence and to considerquestions he believed should be asked of prosecution witnesses, all of which theywould discuss the following day at a scheduled meeting on 3 March.[34] This document was not completed, and during the trial Mr Gardiner followedup the issue with Mr Andrews. In an email on 13 March, Mr Gardiner advised that heunderstood Mr Andrews was preparing points for his evidence and that he would needto elicit that evidence by asking questions of Mr Andrews. He stated that the startingpoint for doing this is usually a narrative, as they had previously discussed. He askedwhether the outline had been completed. Mr Gardiner also remarked that Mr Andrews'evidence was likely to be assessed with reference to the three interviews he had given.In response, Mr Andrews sent Mr Gardiner a two-page document entitled"Andrews Testimony".[35] Throughout his engagement with Mr Andrews, Mr Gardiner also obtainedspecific instructions relating to various aspects of the evidence, including in relationto his bankruptcy, and received detailed notes from Mr Andrews regarding a numberof the witnesses. In addition to emails sent by Mr Andrews prior to trial outlining hisposition on various points, Mr Andrews continued to give Mr Gardiner instructionsduring his trial, and it is apparent he was actively engaged with his counsel duringthis period.[36] Ms Johnston submitted that there is no prescribed standard for obtaininginstructions and that a failure to follow "best practice" does not necessarily equate toincompetence.21 We accept that what will be considered adequate will depend onthe circumstances of the individual case and the defence to be advanced. We alsoacknowledge that counsel is only able to run the defence proffered by their client but,because of the nature and range of the charges faced by Mr Andrews, it was notadequate for counsel to proceed to trial without a written brief of evidence.However, such an inadequacy will not of itself afford a ground of appeal unless it isdemonstrated that it has resulted in a miscarriage of justice, either becauseMr Andrews was not provided with a fair opportunity to put his defence or becausehis chances of obtaining a different verdict were prejudiced.22 Any failure by counsel,including the failure to prepare a brief of evidence, must have resulted in a level ofprejudice to Mr Andrews in the conduct of his trial that rendered it unfair.[37] Apart from Mr Andrews' contentions regarding his involvement with his sonand the agency role he claims he was performing for Maxium, Mr Andrews has notidentified what other material information was either not advanced or wasinadequately advanced as a result of the absence of a completed brief of evidence.We examine Mr Andrews' claimed agency relationship with his son in greater detaillater in this judgment when we address the adequacy of Mr Gardiner'scross-examination of Robert at [44]–[59]. However, putting that issue aside forthe present, we do not consider the absence of a brief of evidence has manifested itselfin a way that caused prejudice to Mr Andrews' defence, or that there were otherdefences that Mr Andrews wished to raise that he was not able to put before the jurybecause of a lack of preparation or the absence of a brief of evidence.[38] Ms Taylor-Cyphers referred to a possible challenge to Mr Andrews'bankruptcy status and his belief that he should have been discharged from bankruptcy,in which case he would not have had to face a number of the charges. Mr Gardinerreferred to receiving emails from Mr Andrews regarding this issue. While not pursuedin oral argument, it was submitted the genuineness of Mr Andrews' bankruptcy was21 Hall v R, above n 16 at [94], citing Morris v R [2014] NZCA 383 at [47] and O'Donnell v R [2010]NZCA 352 at [15].22 O'Donnell v R, above n 211, at [16].a germane, if not crucial, issue that could have provided a partial or complete defenceto many of the charges, and one that Mr Andrews wished to pursue.Information regarding his bankruptcy was sought from the Ministry of Business,Innovation and Employment (MBIE) for the trial but was not received until June 2019,which is also the subject of some complaint.[39] Mr Andrews' reliance on this point, however, is misplaced. It was not open tohim to bring a collateral challenge to the validity of the bankruptcy order made inthe High Court which was binding and conclusive until set aside on appeal or, for anyother reason, lawfully quashed.23 As held by the Supreme Court inSiemer v Solicitor-General, collateral attacks on court orders are not permitted andparties cannot arrange their affairs on the basis of their own perceived flaws in theorder or individual views they may have concerning its validity.24 It follows thatMr Gardiner, who did make enquiries into the issue of Mr Andrews' bankruptcy andprovided him with advice, cannot be criticised for not challenging the bankruptcyorder. It is not a matter which if included in a brief of evidence would have advancedMr Andrews' defence.[40] Ms Taylor-Cyphers also maintains that it would have been of assistance to haveexplained to the jury the inconsistencies in the answers Mr Andrews gave in hisvarious interviews. However, Mr Andrews has provided no details regarding whatthose explanations are that could have been included in a brief of evidence.Similarly, there is a complaint that enquiries were not made about the circumstancesof Mr Andrews obtaining credit for his accommodation at the serviced apartments.However, apart from the fact Mr Andrews continued to use the apartmentsnotwithstanding his debt, which was a circumstance that was before the jury, no detailwas provided as to what information was available that could have been included ina brief of evidence.[41] The main consequence that Mr Andrews puts forward from there having beenno prepared brief of evidence is that his claimed defence regarding his involvement inthe importation of vehicles from Australia and his "agency" relationship with his son's23 Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [191].24 At [191].company was not advanced in accordance with his instructions. He argued the jurydid not therefore have the opportunity to properly consider that defence, and that hewas thereby prejudiced in his ability to secure different verdicts.However, Mr Andrews canvassed the business relationship he contended he had withhis son and his company, Maxium, in some detail in the evidence that was led fromhim by Mr Gardiner and about which he was extensively cross-examined. This aspectof his defence was squarely before the jury at his trial.[42] In his affidavit prepared for this appeal Mr Andrews again traversed hisrelationship with his son and repeated his claim there was an unwritten agencyagreement between them in respect of the business of importing vehicles fromAustralia and selling them in New Zealand. Indeed, Mr Andrews deposed that he andhis son were "in business together". While the trial Judge permitted Mr Andrews torely on this narrative as a defence to some of the charges, we doubt it provides ananswer to the charges of unlawfully participating in the management of a business.However, to the extent that Mr Andrews' defence was premised on him either being inbusiness with his son or, as he has variously put forward, acting as his agent or evenas his employee, we are satisfied this was fully canvassed in his evidence at trial andadequately put before the jury.[43] This is not a situation where an important aspect of a defence has beenoverlooked or where a piece of evidence such as a written agency agreement oremployment document has not been identified that might otherwise have been putforward if a brief had been prepared. Mr Andrews gave extensive evidence at his trial(some 72 pages of transcript of examination-in-chief and 55 pages ofcross-examination) and he has failed to identify on appeal what piece of materialinformation relating to his defence was not advanced at his trial because a brief wasnot prepared. We conclude that the absence of a brief of evidence did not result ina failure by Mr Gardiner to advance Mr Andrews' defence in accordance with hisinstructions or that Mr Andrews' chances of obtaining a different verdict wereprejudiced. In that regard we do not overlook Mr Andrews' claim that inadequaciesin Mr Gardiner's cross-examination and closing were to the same effect, and it is tothose issues that we now turn.Inadequate cross-examination[44] Mr Andrews next argues that Mr Gardiner's cross-examination of witnesses,in particular Mr Andrews' children Robert and Alexandra, was inadequate.While there was a general criticism that Mr Gardiner had failed to directly attackthe credibility of witnesses on the basis they were lying, mistaken or had fabricatedtheir evidence, we doubt such a wholesale attack on these witnesses would have beenproductive. The prime focus of this ground of appeal relates to the cross-examinationof Robert and, to a significantly lesser extent, Alexandra.Robert Andrews[45] Robert was the director of Maxium and was called by the Crown to deny thathis father was authorised to work on his behalf or be involved in the business.His evidence was that Maxium did not issue invoices for payments into New Zealandbank accounts and he denied the various invoices that were the subject of the forgerycharges were authorised by his company.[46] In his affidavit prepared for this appeal, Mr Andrews refers to notes he says heprovided to Mr Gardiner that set out questions to be put to Robert incross-examination. Mr Andrews says he does not recall Mr Gardiner asking Robertany of these questions. While Mr Andrews accepts that Mr Gardiner in his capacityas counsel was better placed to judge the worth of some questions, he maintains that anumber were particularly important and that Mr Gardiner did not ask Robert a pivotalquestion about how he got paid for vehicles once they arrived in New Zealand, orabout payments that Mr Andrews says Robert sent to him for the work he did forMaxium.[47] Mr Gardiner confirms that Mr Andrews provided him with these notes, andthat they were made either the night before Robert gave evidence or during hisexamination-in-chief. However, he maintains he followed his client's instructions.We have reviewed the notes of evidence and accept Mr Gardiner's evidence that(with the exception of one peripheral minor point) he did canvass the topics identifiedby Mr Andrews in his written note to be raised in cross-examination. These includedthe suggestion that Robert had sent Mr Andrews payment for the work he did for him;how Robert paid suppliers when acquiring cars on behalf of individuals based inNew Zealand; and how he received payment for any car acquired or worked on for hisfather. Robert either denied the propositions put to him or provided explanations andreasons that demonstrated that the business relationship Mr Andrews claimed to havewith him was incorrect. In the absence of any documentation to contradict Robert'sevidence, we do not consider Mr Gardiner was in a position to press those mattersfurther.[48] Specifically, Mr Gardiner put to Robert that he had been importing cars "inconjunction with" Mr Andrews, who was acting as his agent in New Zealand. Robertdenied any such relationship or arrangement with his father. In support of his positionhe referred to Maxium's website, which clearly stated that it had no agents and no staffin New Zealand. Mr Andrews complains that Mr Gardiner failed to challenge Robertregarding his denial that the invoices were from his company. However, in makingthat denial, Robert highlighted other erroneous details in the invoices andthe incongruity of the moneys charged being directed to be paid to a bank account ofwhich he was unaware and to which he did not have access. It is difficult to perceivewhat would have been achieved by questioning Robert further about the invoiceswhich he unequivocally stated were not from his company.[49] The nub of Mr Andrews' complaint on this ground is that, despite Robert'semphatic denial that Mr Andrews was Maxium's agent, or that he was authorised toissue invoices in the name of that company, Mr Gardiner failed to put to Robert duringcross-examination that he was lying or was mistaken. This point is emphasisedbecause of the trial Judge's criticism of Mr Andrews after he (finally) asserted that hebelieved that was the case during his own cross-examination.[50] Ms Taylor-Cyphers submits it was always apparent that Mr Andrews woulddispute Robert's evidence regarding his business involvement with his son. She reliedon Mr Gardiner's opening statement at trial, where he referred to Mr Andrews' positionthat his son knew what was happening and that while he may state the opposite inevidence that would be untrue. In that opening statement, Mr Gardiner explained thatthe defence case was that Robert was protecting himself because he did not want to beassociated with his father. Ms Taylor-Cyphers is critical of Mr Gardiner notcross-examining Robert to the effect that he was mistaken or was lying when denyingthere was no agency relationship between his company and Mr Andrews.[51] We accept that trial counsel could have been more direct in hiscross-examination of Robert on this point and that it would have been preferable forhim to have clearly put it to Robert that his evidence in respect of this issue was notaccepted. However, Mr Andrews' version of his relationship with his son's businesswas canvassed with Robert at some length, and it was inevitable that a proposition tothe witness that he was wrong, either because he was mistaken or lying, would havebeen rejected. We do not consider Mr Andrews' defence would have been advancedby putting a question to that effect, or that the failure to do so of itself prejudicedMr Andrews' defence.[52] Mr Gardiner put to Robert that he had been attempting to "put as muchdistance" between himself and his father as possible once he became aware that MBIEand the police were investigating Mr Andrews. This was a reference to an email dated14 October 2016 that was produced by the Crown that Robert had sent to Mr Andrews,asking him not to do anything that would in any way indicate Mr Andrews had anytype of business relationship with Maxium. Having put the propositions to Robert thathe and his father had been importing cars together, that Mr Andrews was acting as hisagent in New Zealand, and that he was now attempting to distance himself fromMr Andrews as a result of the authorities' interest in his father, we doubt little morewould have been able to have been achieved.[53] That those lines of cross-examination could have been pursued more directlyor in stronger terms does not provide a proper basis to challenge counsel's conduct orto bring into question the fairness of Mr Andrews' trial. However, that is not the extentof the alleged difficulties arising from Robert's cross-examination. During the courseof Mr Andrews' evidence-in-chief, Mr Gardiner referred him to the email sent byRobert on 14 October 2016, in which he asked his father not to represent himself asbeing associated with his business. In his response, Mr Andrews suggested the dateon the email had been changed to appear as if it had been sent "12 months ago which,strangely enough happened just before all this blew up". Mr Andrews claimed not tohave seen the email. At that point, the trial Judge observed that no suggestion hadbeen made to Robert that he had concocted or altered the email. Upon inquiry fromthe Judge about whether he had previous knowledge of this theory, Mr Gardinerreplied that he had not. We pause at this point to note there is no evidence thatMr Andrews had informed Mr Gardiner of this type of response to the 14 Octoberemail before he gave his answer.[54] After being referred to the different versions of accounts Mr Andrews hadgiven in his three interviews about his business relationship with his son, Mr Andrewswas asked in cross-examination about Robert's evidence that he was never Maxium'sagent. Mr Andrews stated in reply "that's one of the areas of dispute at the moment",and that he was "the agent". Mr Andrews claimed "that part of [his] responsibility toRobert was to some extent, particularly once MBIE and the police got involved, wasto at least appear to be at arm's-length". The prosecutor then traversed Mr Andrews'version of the arrangements he had with Maxium before directly asking him whetherhe was saying Robert was lying when he had said Mr Andrews was not an agent forMaxium. Mr Andrews was clearly reluctant to accuse his son of lying, and only didso after some pressure by the prosecutor and the intervention of the Judge:Q. So when Robert said to us you were not an agent for his company inany way, shape or form. Was he lying?A. There was a transition in the way that we did business once MBIE andthe police got involved. And he became very concerned because ofthe issues relating to the stock that he, his company would bepersonally, would be liable for restitution to people who had notreceived –THE COURT:Q. It's not a question of what his motivation is. It's a question of whetherhe deliberately told an untrue statement. That's what you're asked toanswer. That's a yes or no answer.A. Well clearly again, I've made a statement which, that contradicts whathe has said.CROSS-EXAMINATION CONTINUES: [PROSECUTOR]Q. So was that a yes or a no?A. I have made a statement that contradicts what he said.Q. But you're not going to say that you believe he was lying?A. I think I've explained myself perfectly adequately.Q. When Robert said you were not an agent in any way, shape or form,was that a lie? Yes or no.A. Well I've explained myself. I've actually said –THE COURT:Q. Answer the question, thank you.A. I disagree with that statement.CROSS-EXAMINATION CONTINUES: [PROSECUTOR]Q. You disagree that he was lying is that what you mean? I'm strugglingto follow.A. What I'm saying to you is that he may have made a statement in thatpoint in time that was true, that historically it was not true.THE COURT:Q. No, Mr Andrews, it's a direct question, it will harm your credibility ifyou don't answer the question.A. Your Honour, the issues is, is that by the time –Q. Don't speak when I'm speaking.A. I'm sorry, Your Honour.Q. Now, it will harm your credibility if you don't answer this question.Was what your son said about you not being an agent in any shape orform the truth or a lie?A. It's a lie.CROSS-EXAMINATION CONTINUES: [PROSECUTOR]Q. So why was that not put to him in cross-examination?A. Well, I didn't cross-examine him, did I?Q. I think you could have passed one of your notes forward to my friendhere.A. I probably did.Q. And –A. Every single note that I put through to Mr Gardiner, he had to makea judgement as to whether it was appropriate. What I am trying topoint out was that the relationship I had with Robert movedsignificantly over towards the end of that period following thatinvestigation getting underway which is my point. So what was thetruth six months prior or three months prior changed significantly atthat point.Q. So that links to a point you made before when you said that yourbusiness transitioned once the police and MBIE got involved, whatdid it transition from and what did it transition to?A. I repeat, Robert was very concerned that he was at risk of beingprosecuted by MBIE essentially for employ[ing] me for – notemploying me but for having a business relationship with me.Q. And do you think that's why he lied?A. Again, as I've indicated, his concern was by the time all this blew upthat his company was going to be liable for the repayment tothe people who had not received stock. That was his concern.Q. And so is that why he came to give evidence unfavourable to you inCourt?A. I don't think most of his evidence was particularly unfavourable at all.This is one issue that I guess we will address one way or the othereither there will be conclusive evidence that will support my positionor the jury will agree with what the Crown is presenting and we haveother evidence to present which supports my position.Q. So you were an agent of Maxium Pty Limited?A. That's correct.[55] This exchange and Mr Andrews' earlier evidence regarding his theory thatRobert changed the date of the email led to an adverse comment being made bythe trial Judge in his summing up:What would be damaging to the defendant's credibility would be if youthought that his case was changing with a view to try to respond to evidencethat was given, people not being asked about things that they were going tosay that was different to him, and him to come in later and give a differentversion, because the witness, of course, would not have a chance to say,"Well that's not right." Potentially the witness may have other evidence theycould give if they knew they were going to be challenged. So it is importantfor witnesses to know.Now, there were specific examples, they were that Robert had lied about thedegree of involvement that he had with his father about [Maxium] PtyLimited. That is a very significant aspect of the trial. Also, that he had alteredthe email address in which you can see him saying words to the effect of,"Don't have anything to do with [Maxium] Pty, I have told you to stop doingthis before and it still keeps happening." Now, that would be a criticalsupporting piece of evidence to Mr Robert Andrews. The defendant said inevidence that it is easy to doctor these things and change the dates. It wasnever suggested to Robert Andrews that he had changed the date of that email,which was a factor that could be taken to have supported his evidence.So those were significant aspects in which important aspects of the case forthe defendant were not put to prosecution witnesses. You are entitled to takethat into account when you consider the evidence that he gave.[56] Mr Andrews' claim that he was in an agency relationship with Maxium couldnot be reconciled with Robert's position to the contrary. Mr Andrews was aware ofRobert's likely evidence contradicting his account of his business relationship withMaxium and he maintained that his son's evidence on that point was untrue becausehe was protecting himself and did not want to be associated with his father.Mr Gardiner in cross-examination canvassed these aspects of Mr Andrews' defencewith Robert and gave him the appropriate opportunity to comment. While the twodifferent versions of their commercial relationship clearly could not be reconciled, itis also apparent that Mr Andrews was plainly reluctant to accuse his son of lying —effectively, that is, of committing perjury — and sought to avoid making such anallegation. Despite that reluctance, we consider the defence case as it related towhether an agency relationship had existed was squarely before the jury.[57] On appeal, Mr Andrews complains of a range of matters that he allegesMr Gardiner failed to traverse with Robert, although in his affidavit he only put it ashigh as having understood that it may have to be "suggest[ed]" that Robert was lying.As is apparent from his own evidence in cross-examination, he sought to avoid makingthat express allegation, and only did so when pressed by the prosecutor and the Judge.There is no evidence of Mr Andrews expressly authorising his counsel to attack hisson in that way. We do not therefore consider that Mr Gardiner can be fairly criticisedfor not doing so despite the significantly divergent defence and prosecution cases.[58] Ultimately, Mr Andrews was unable to avoid alleging that Robert must havebeen lying, which resulted in the trial Judge commenting adversely on the positionMr Andrews finally took in relation to his son's evidence. However, we considerMr Andrews had already opened himself up to such a credibility direction as a resultof the claim that Robert had doctored the email of 14 October 2016 for his ownpurposes. There was no evidence to support Mr Andrews' suggestion that the date ofthe email was altered, nor is it contended that Mr Gardiner was aware that his clientwould make such a remark. We think it likely that this was an ad lib commentintroduced on the fly by Mr Andrews in an effort to respond to Robert's observationthat the email had been sent a considerable period of time before the initialOfficial Assignee and police enquiries. We therefore do not consider Mr Andrews'response was a matter about which Mr Gardiner would have been alerted even ifMr Andrews had been more thoroughly briefed or a written brief of evidence prepared.[59] For the reasons given, we consider that Mr Gardiner's cross-examination ofRobert was adequate and, while it could have been conducted in a more robust mannerand in a way that challenged the veracity of Robert's position more directly, we do notconsider that was either necessary in order to properly put Mr Andrews' defence beforethe jury or that was required by Mr Andrews' instructions to him. Mr Andrews chosein his evidence to theorise about his son's conduct in respect of the email in a way thatcould not have been reasonably anticipated by Mr Gardiner, and when persistentlypressed opted to allege that his son was lying. That was a course he had previouslyavoided and, in light of his reluctance to do so, we are not satisfied he had instructedhis counsel to directly challenge Robert in that way. In any event, we consider it wouldhave added little or nothing to the case if Mr Gardiner had specifically put it to Robertthat he was lying. We therefore do not consider this aspect of the appeal has given riseto a miscarriage of justice.Alexandra Andrews[60] Mr Andrews is also critical of Mr Gardiner's cross-examination of his daughterregarding the ANZ account. Mr Andrews' criticism is that Mr Gardiner focused onthe Kiwibank account and did not raise the ANZ account with her, in accordance withthe written comments he had provided to him. However, in those instructionsMr Andrews expressly stated that "on a regular basis we were both using the accountsas there were two cards for them". It is unclear therefore how cross-examination ofAlexandra on this point would have assisted, as it represented at least a partialadmission to the charge of concealing the ANZ account from the Official Assignee.[61] In any event, Mr Gardiner did in fact question Alexandra about her access tothe ANZ account and she acknowledged she may have used the account when she wasat high school, before opening her own accounts at university. But the short point isthat it is not apparent, at least on the information provided by Mr Andrews to his trialcounsel, that anything further would have been gained by cross-examining hisdaughter about this account. Mr Gardiner in his affidavit on appeal notes that he didnot address the ANZ account in detail because it involved large sums of money andthat, in his view, it stretched credulity to argue that Alexandra was using that accountat all, let alone in any significant way. Mr Andrews has not provided any material onappeal to suggest Mr Gardiner's approach constituted a tactical error or how anythingmore was to be gained in relation to the subject of the ANZ account by furtherquestioning.[62] Ms Taylor-Cyphers submits that cross-examining Alexandra about the ANZaccount was important because the account was used to pay for accommodation andwas relevant to the charge of obtaining credit by deception, and not to any defence ofusing an undisclosed bank account. Mr Andrews maintained that it showed he stayedat the accommodation "countless times" following the incurring of the debt.However, we fail to see how cross-examination of Alexandra would have assisted herfather on this point. Her evidence was to the effect that the transactions in the accountswere unfamiliar to her. Moreover, it was open to Mr Andrews when he gave evidenceto identify the relevant transactions that he says would have supported his defence tothe charge, although that would no doubt have also constituted an admission to havingused an undisclosed bank account, contrary to his representation to theOfficial Assignee. We also note that Alexandra would have been in her mid-teensduring the period relevant to this particular offending. Furthermore, Mr Andrews doesnot claim to have instructed his counsel regarding such a line of cross-examinationand this topic was not included in the written notes he provided to Mr Gardiner viaemail on 7 March 2019 regarding Alexandra.Conclusion regarding cross-examination ground of appeal[63] The Crown emphasised to us that cross-examination is an area where trialcounsel are afforded some latitude to determine the appropriate approach to be taken,and the fact that cross-examination might have been conducted more effectively is nota ground for appeal provided the defence was put.25 Ms Taylor-Cyphers, however,submits the basis of this ground of appeal is not that the cross-examination could havebeen stronger, nor that more could or should have been made of discrete points, but25 Hall v R, above n 166, at [74]–[75].that there was a failure to advance Mr Andrews' defence on his instructions and thatthis rendered his trial unfair.[64] We consider the defence was put in the course of the cross-examination ofRobert and, while it may have been preferable for Mr Andrews' position regarding hisbusiness relationship with his son to have been put in a more forthright manner, we donot consider that Mr Gardiner had been required by his client to allege his son waslying. It is apparent that Mr Andrews' preferred course was to adopt a less directapproach based on demonstrating to the jury that Robert was now seeking to distancehis business from his father because of the difficulties he was now in and to avoidissues for himself and Maxium. This was the approach he took in his own evidenceuntil the Crown effectively forced him to admit that he was saying his son was lying.While the defence approach may have been exposed as a tactical error, we do notconsider there was a failure by trial counsel to follow his client's instructions toadvance a particular defence, nor do we consider Mr Gardiner's cross-examination ofRobert resulted in Mr Andrews receiving an unfair trial.Closing address[65] Mr Andrews also contends that his trial counsel's closing address was deficientand that, as a result, he was deprived of the right to fairly present his defence. We donot consider this criticism is sustainable. Mr Gardiner did not specifically addresseach of the 35 charges in his closing to the jury but he did canvass the defence as itrelated to each group of charges, which was also the approach adopted bythe prosecutor.26[66] In relation to the forgery charges Mr Gardiner argued that, while some detailson the documents were incorrect, the invoices represented real transactions and thatthere was no fraud because each of the victims considered it to be in their commercialinterests to enter into the deals. Where vehicles had not been supplied, it was arguedthis was through no fault of Mr Andrews. In respect of the bankruptcy-related charges,the agency arrangement with Robert was reiterated to the jury, as were the reasons for26 As previously noted, charge 4 had been dismissed under s 147 of the Criminal Procedure Act bythis point in time.Robert denying his business relationship with his father in order to put distancebetween himself and Mr Andrews when he came under investigation. The obtainingby deception charges were addressed individually.[67] We are satisfied Mr Andrews' defences to the charges were advanced byMr Gardiner in his closing address.Judge's summing up[68] In support of his contention that the Judge failed to put the defence position inhis summing up, particularly as it related to his purported agency relationship withRobert, Mr Andrews placed reliance on the obligation of a trial Judge to correct errorsor omissions in defence counsel's closing address. We consider that criticism isunsustainable. The Judge's summing up of the defence case was comprehensive.Not only was Mr Andrews' evidence, including his testimony that he had an unwrittenagency agreement with his son summarised by the Judge, but the defence case wasrepeated when the Judge reviewed counsel's closing addresses. The following passagedisposes of Mr Andrews' criticisms of the Judge's summing up insofar as it relates toa failure to put Mr Andrews' position regarding his business relationship with his son:The defence says that when you consider the charges that relate tomanagement of a business you have a situation where Mr Robert Andrews wasput in a very uncomfortable position, that had he admitted being engaged inbusiness as a principal for an agent, that agent appeared to be trading whileinsolvent and breaching various aspects of their duties under the InsolvencyAct, then Mr Robert Andrews could be in trouble. So he was facing a situationin which you can understand why he would distance himself from his father,that he would distance himself from his father because it was inconvenientand potentially hazardous for him to remain in an agreement, and that you cansee in the evidence that there are occasions when Mr Robert Andrews is inNew Zealand, that he was at Stoddard Road, that he spoke to a number ofthe people who bought vehicles. And so you will see that there isa connection, there has been a business connection. The defendant is engagedin buying cars, or was engaged in buying cars from his son among otherpeople, so there is a connection which is there. The extent of the connection,the defence says, is the issue, and that you are not able to be sure that therewas not some form of agreement where Maxium Pty Limited was a part ofthe process of the buying and selling, on a wholesale basis at least, intoNew Zealand and to the various persons who bought vehicles.The section 9 agreement[69] Mr Andrews asserts that he did not receive advice regarding the inclusion ofhis previous convictions in an admitted facts memorandum (the s 9 notice) and that henever agreed to the content of these agreed facts.27 We have received Mr Gardiner'sevidence on the point which is supported by emails that demonstrate the issue wasdiscussed with him on several occasions. These emails also show that the content ofthe s 9 notice, particularly as it related to the previous convictions, was the subject ofa process of negotiation with the Crown that involved Mr Andrews. The email recordrefers to discussions between Mr Gardiner and Mr Andrews about this topic, and wenote that an earlier version of the s 9 notice with proposed handwritten amendmentswas sent from Mr Gardiner to Mr Andrews shortly before the trial.[70] In order to reach a consensus, the Crown had been required to furnish copiesof Mr Andrews' certified convictions. It also provided a copy of a memorandum thatMr Andrews' first lawyer had previously filed which recorded there was no oppositionto either the previous convictions or facts relating to those convictions being admitted.However, in accordance with his initial discussions with Mr Andrews, Mr Gardinerinformed the prosecutor that reference to the previous convictions was not presentlyagreed. At that time Mr Gardiner advised the Crown that he had discussed the matterwith his client and that further consideration would be given to the matter when henext met with him. Mr Gardiner's diary entry for 3 March 2019 then records a meetingwith Mr Andrews that included discussion of "s 9".[71] Later that same night, Mr Gardiner advised the prosecutor that the defencewould "not be arguing against the reference to convictions as agreed by [Mr Andrews'previous counsel]". In a further email of 4 March, Mr Gardiner sent a copy ofthe signed s 9 notice to Mr Andrews with the accompanying note: "[a]mended as wediscussed last two days. They have also omitted Section 3, the reference to chain ofpossession." Mr Andrews replied: "Thanks". We are satisfied there is no merit in thisground of appeal.27 Evidence Act 2006, s 9.Mr Andrews' decision to give evidence[72] Mr Andrews also asserts that his decision to give evidence was not fullyinformed and that there was a lack of written instructions recording this decisionsetting out relevant advice. However, Mr Andrews has not provided any evidence insupport of this ground of appeal. He does not refer in his affidavit to his decision togive evidence and there is no evidence that his choice to do so was made withoutadvice or was one that he would not otherwise have made. Furthermore, there is nocomplaint that his decision to give evidence was an error or that the absence of adviceled Mr Andrews into any misjudgement that resulted in a miscarriage of justice.[73] The election whether to give evidence is one of the fundamental decisions onwhich trial counsel's failure to follow specific instructions will generally give rise toa miscarriage of justice.28 There is no evidence that Mr Gardiner failed to followMr Andrews' instructions regarding his wish to give evidence in his defence, and hedid in fact give evidence. This ground must fail.Miscellaneous points[74] A number of other issues were raised regarding the conduct of the trial thatwere not seriously pursued in oral argument before us, and for good reason given theirworth.[75] Mr Andrews claimed that Mr Gardiner failed to call a Mr Scott Wilson as adefence witness, who was a person involved in a number of vehicle sales. Mr Andrewsclaims he asked Mr Gardiner on a number of occasions to contact this person to giveevidence at his trial and that he is unaware why this did not occur. In fact, Mr Wilsonwas the Crown's first witness and he was cross-examined by Mr Gardiner.Mr Andrews refers to evidence that Mr Wilson could give in support of his appeal butno affidavit from this person has been provided.[76] Mr Andrews is also critical of Mr Gardiner for not obtaining evidenceregarding his stays at the serviced apartments. Mr Andrews says there is evidence he28 Hall v R, above n 16, at [65]; Weston v R [2019] NZCA 541 at [24]–[26]; and van der Krogt v R[2020] NZCA 512 at [29].stayed at the apartments on occasions following the period that he is alleged not tohave made payment, and that the issue of non-payment was never raised bythe apartments' manager. We have already referred to this issue in our discussion ofthe cross-examination of Alexandra at [62] above. Mr Gardiner responded in hisaffidavit by noting that Mr Andrews was best placed to provide such evidence of hisstays at the apartments in the form of receipts or credit card payments, whichMr Andrews has failed to produce. In any event, we doubt the relevance of suchevidence in light of the testimony of the apartments' manager that Mr Andrews neverpaid for the accommodation (which formed the basis of charge 25, being one of thecharges of obtaining by deception).[77] Mr Andrews also complains of Mr Gardiner's failure to explore with a defencewitness, Mr Hobbs, evidence of meetings he attended with Mr Andrews and Robert,and in particular a meeting where Robert had said that Mr Andrews owed a debt tohim. Mr Andrews states that the reason for these meetings and the discussion of thedebt was because he and Robert "were in business together". Leaving to one side thefact that any such evidence of Robert and Mr Andrews being in business togetherwould likely be supportive of the Crown's case as it related to the bankruptcy charges,Mr Gardiner was already on notice that Mr Hobbs may damage Mr Andrews' case.[78] In an email exchange between Mr Gardiner and Mr Hobbs on 12 March 2019,the witness observed: "not sure if I am the greatest help for Ray", and in response towhat he could say about Mr Andrews' relationship with his son, Mr Hobbs replied:not sure what you want here, you do realise that every meeting [I] went to withRobert he said he was not in business with Ray etc etc, but when Ray had anyproblems then Robert would help out [where] he could.Clearly, further examination of Mr Hobbs regarding Mr Andrews' relationship withRobert would have been fraught with risk.[79] Mr Andrews also claims that he asked Mr Gardiner about "adducing industryevidence about working with the VIN numbers, and the standard practi[c]e of alteringthem so as to preserve commercial competition between traders". Mr Andrewscomplains that no witnesses were questioned or briefed regarding this type ofevidence. However, Mr Andrews has provided no evidence on his appeal of any suchcommercial practice of the type he claims he wanted to have called at his trial.Mr Gardiner has no recollection of Mr Andrews raising the possibility of adducingsuch "industry evidence". In any event, we consider an explanation along the linesprovided to Mr Gardiner by Mr Andrews himself, of omitting a numeral from the VINnumber so that a buyer could not ascertain the vehicle's original purchase price orwhere it had been bought was unlikely to be accepted by a jury as a legitimate ortenable industry practice that excused that particular false detail on the invoice.In contrast, Robert gave evidence that he had no experience of such a practice andquestioned its rationale.[80] Finally, Mr Andrews asserts that Mr Gardiner had failed to discuss with hima resolution offer made by the Crown shortly before the trial on 27 February 2019based on pleas to seven representative charges. However, the record shows thatMr Gardiner forwarded the Crown's email to him on the same day, noting "asdiscussed". In any event, Mr Andrews' complaint is at odds with his oral evidence atthe hearing of the appeal that he had no intention of pleading guilty. A similarirrelevant criticism is made of Mr Gardiner's failure to secure a second sentenceindication but, again, this cannot advance his appeal when regard is given to his stancethat he was never considering the possibility of pleading guilty.Conclusion on appeal against conviction[81] Notwithstanding the extent of the criticisms levelled at trial counsel byMr Andrews in support of his conviction appeal, we are not satisfied that any ofthe grounds, either individually or in combination, have resulted in a miscarriage ofjustice. Particular reliance was placed on the failure to prepare a brief of evidence andinadequate cross-examination of Robert, which it was submitted resulted inMr Andrews not being able to advance his defence and resulted in an unfair trial.However, we do not consider that, either alone or together, those issues give rise toany real risk of a different outcome, nor, as was primarily contended on behalf ofMr Andrews, that he did not receive a fair trial.29 We do not consider the multitude ofother issues raised by Mr Andrews on his appeal have merit. The appeal againstconviction must therefore be dismissed.29 Criminal Procedure Act, s 232(2)(c) and (4).Sentence appeal[82] Before dealing with the substance of the sentence appeal, we deal with a furthercomplaint made by Mr Andrews against his trial counsel. A concern is raised aboutMr Gardiner withdrawing as counsel and no longer acting for Mr Andrews atsentencing. This arose because, prior to the sentencing date, Mr Gardiner wasinstructed to seek an adjournment in order for Mr Andrews to retrieve files from hisprevious counsel that related to his 2013 and 2017 convictions. Mr Andrews'instructions were that if an adjournment was not granted he would represent himselfat sentencing. The Judge declined to adjourn the sentencing, which it should be notedtook place some three months after the jury's verdicts.[83] We accept that it was regrettable that a situation developed where Mr Andrewswas unrepresented at his sentencing and that the Court did not have the benefit ofwritten submissions prepared on behalf of Mr Andrews. However, that wasMr Andrews' choice. In the event, Mr Andrews directly addressed the Court andMr Gardiner was also permitted to make oral submissions at sentencing.[84] Ms Taylor-Cyphers submits that, as a result of how matters unfolded, there wasmaterial that may have been able to be produced in mitigation in relation toMr Andrews' personal circumstances and sentencing authorities brought tothe attention of the Court that could have assisted Mr Andrews. Mr Andrewsmaintains that he requested a cultural report, pursuant to s 27 of the Sentencing Act2002, but that this was declined by the Judge on the day of his sentencing. However,no such report has been prepared for the purposes of his appeal, nor has any otherinformation relating to Mr Andrews been put before us in addition to that available tothe sentencing Court. Insofar as Mr Andrews complains that certain sentencingauthorities were not taken into account by the Judge, they are now able to be reviewedon his appeal, as can the other issues raised in relation to his sentence.[85] In sentencing Mr Andrews, the Judge adopted a starting point of six years'imprisonment.30 The Judge identified premeditation, the duration of the offending,the breach of trust and the extent of the unrecovered loss, estimated to be around some30 Sentencing notes, above n 1, at [21].$500,000, as the relevant aggravating features of the offending. An uplift of one yearwas imposed to take into account Mr Andrews' previous convictions before asix month deduction was made for his age (69 years) and health, reflecting the harshereffect a custodial sentence would have on Mr Andrews compared to a younger andhealthier person. An end sentence of six years and six months' imprisonment wasimposed.31[86] The appeal against sentence now largely rests on two grounds. First, thatthe Judge erred in his assessment of the amount of loss suffered by Mr Andrews'victims. Second, that the starting point of six years was too high.Quantum of loss[87] Mr Andrews is critical of the fact that no reparation schedule was preparedahead of sentencing and that, although he requested a breakdown of the quantum ofthe loss he was alleged to have caused, no "record of quantum" was provided atsentencing. Mr Andrews claimed this is of some significance because some ofthe vehicles were either delivered, albeit late, or were replaced with different vehicles,so that the loss alleged in respect of each charge is unlikely to have been the actualloss suffered by the particular victim.[88] We do not consider the Judge erred in his approach to estimating the size ofthe loss caused by Mr Andrews' offending. The Crown estimated losses somewherein the vicinity of $700,000. Mr Andrews disputed that figure at his sentencing andargued the loss was not as great. The Judge made his own assessment based onthe evidence given at trial. It was noted that the scale of deposits into bank accountsduring the course of his offending was some $775,000, and that losses may have beenless than that sum because on some occasions (although rare) vehicles had beensupplied. The Judge acknowledged that the extent of the loss and harm caused byMr Andrews was difficult to determine accurately, but he considered that significantharm had been caused. The Judge concluded the monetary loss to individuals waslikely to be "something in the vicinity of $500,000".3231 At [27].32 At [7].[89] We accept that, in the absence of an agreed figure, it was for the Judge to assessthe harm caused by the offending based upon the trial evidence.33 There was norealistic prospect of Mr Andrews being able to pay reparation, and the absence ofa schedule which is ordinarily compiled for the purpose of such a potential sentencingoption was understandable. The Crown has pointed us to examples of the evidencethe Judge heard about losses suffered by the victims. Mr Rishi, who paid $290,500for 12 vehicles, did not receive any; Mr Wilson paid $183,000 for three vehicles, ofwhich he received one, another was a wreck, and the third was never delivered.No money was returned to these individuals by Mr Andrews. Other evidence of losswas provided by other witnesses who dealt with Mr Andrews.[90] Mr Andrews has provided no evidence to suggest the Judge's assessment of thevalue of loss in the region of $500,000 was in error, or that the Judge failed toappreciate the difference between the amount Mr Andrews was calculated to havereceived (around $775,000) and the victims' actual monetary losses after taking intoaccount those rare occasions when a working vehicle was supplied.Sentence starting point[91] Ms Taylor-Cyphers also argues that the starting point of six years'imprisonment adopted by the Judge was excessive. However, while it wasacknowledged that a quantum of loss is only one factor in assessing the appropriatepenalty, the argument that the starting point was too high rested solely on an analysisof sentencing decisions that compared the length of the sentence imposed to the sizeof loss caused by the offending.34 Despite the authorities referred to us, we do notconsider the Judge erred in imposing a six-year starting point. The Judge took intoaccount relevant factors when assessing culpability for fraud offending.3533 Sentencing Act 2002, s 24(1).34 Aryasomayajula v R [2011] NZCA 633, where a $4 million loss relating to falsified propertypurchase documents attracted a starting point of five years' imprisonment that was upheld onappeal; Serious Fraud Office v Ellis HC Auckland CRI-2005-404-15827, 18 July 2006, wherea starting point of five years' imprisonment was adopted for deception charges resulting in lossesof $460,000 over a two year period; R v Colosimo [2012] NZCA 60, where a starting point of fouryears' imprisonment was applied for forging and using a false document that resulted in a loss of$433,000; Mayer v R [2015] NZCA 206, which involved the imposition of a six year term ofimprisonment coupled with a minimum period of imprisonment of three years for offending thatinvolved a total loss of $19.1 million, and a consistent pattern of deceit and forgery.35 R v Varjan CA97/03, 26 June 2003.These included the significant extent of the harm caused to persons who were misledby Mr Andrews, the premeditated and concerted nature of the offending that occurredover a four year period and the involvement of multiple victims who Mr Andrewsdeceived and misled.[92] The Judge referred to a number of cases from which he drew guidance insetting the starting point. R v Joshi involved similar fraudulent conduct relating tothe importation of vehicles, the exploitation of business relationships and significantlosses to numerous victims.36 It is not suggested that the parallels drawn by the Judgebetween that case and Mr Andrews' offending were inappropriate. In that casea starting point of six years and six months' imprisonment was adopted.37 He alsoreferred to Mount v R, another sentencing decision that involved a greater number ofcharges and more victims that resulted in a comparable level of loss ($500,000).38There, a six-year starting point was also adopted for dishonesty offending. This Courttook no issue with the starting point adopted in that case on appeal.39[93] An important aggravating aspect of Mr Andrews' offending that was requiredto be reflected in the starting point was that it was committed while he was trading asa bankrupt person, wilfully misleading the Official Assignee, and concealing property.As submitted by Mr Davie, who presented this aspect of the argument on behalf ofthe Crown, Mr Andrews' conduct in that regard was towards the more serious end ofthe spectrum, involving the receipt of substantial sums of money and concealment ofsome $775,000.[94] We acknowledge that Mr Andrews is able to point to other cases of fraudoffending which involve very large losses, sometimes running into the millions ofdollars, where lower or similar starting points were adopted. However, as alreadynoted, quantum of loss is only one element of sentencing for fraud offending.In addition to substantial loss, other aggravating features were present in this case thatdemonstrated Mr Andrews' high level of culpability, including the duration andbreadth of his offending as an undischarged bankrupt.36 R v Joshi [2015] NZHC 2215.37 At [23].38 Mount v R [2015] NZCA 489.39 At [95].[95] There is no complaint regarding the various adjustments made from the startingpoint, which we consider were in range. We find the final sentence imposed wasavailable to the Judge in the exercise of his sentencing discretion.Result[96] The appeal against conviction is dismissed.[97] The appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent