Love v R

Case [2017] NZCA 265 26 June 2017

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA535/2016
[2017] NZCA 265

BETWEEN	RALPH HEBERLEY NGATATA LOVE Appellant
AND	THE QUEEN Respondent

Hearing:	25 May 2017
Court:	Harrison, French and Brown JJ
Counsel:	J G Krebs for Appellant G J Burston and M J Ferrier for Respondent
Judgment:	26 June 2017 at 10.15 am

JUDGMENT OF THE COURT

AThe application for leave to adduce further evidence is declined.
BThe appeal against conviction is dismissed.
CThe appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Table of Contents

Para

Introduction  [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

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.
[1]R v Love [2016] NZHC 2046 [Reasons for Verdict].
[2]R v Love [2016] NZHC 2394 [Sentencing Remarks].
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.
[3]R v N [2016] NZHC 1062 [Pre-trial Ruling].
[4]Evidence Act 2006, s 80.
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 necessary context for Dr Love’s discrete grounds of appeal.

Facts

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 trustees elected by beneficiaries at annual general meetings. The trustees are authorised to make major decisions about the Trust’s affairs by way of resolution.
[5]The Trust was established in its present form in 1985 pursuant to s 438(1) of the Māori Affairs Act 1953.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Love v R

Details

AGLC: Love v R [2017] NZCA 265
Case: [2017] NZCA 265
Decision Date: 26 June 2017 at 10.15 am

CaseChat Overview and Summary

Dr Ngatata Ralph Heberley Ngata Love was found guilty of obtaining by deception under s 240 of the Crimes Act 1961 by the High Court at Wellington. Dr Love appeals against his conviction and sentence. The appeal raises issues of fitness to stand trial, communication assistance, and the admission of additional evidence. The Court of Appeal declines the application for leave to adduce further evidence, dismisses the appeal against conviction, and dismisses the appeal against sentence. Dr Love, the chair of the Wellington Tenths Trust, was found guilty of obtaining by deception in relation to the Trust's negotiations with developers for the Pipitea Street land. The Court of Appeal found that the evidence clearly established that Dr Love had obtained by deception funds to which the Trust was entitled. The Court found that the appeal against conviction is without merit as Dr Love has failed to show that justice miscarried. The appeal against sentence is also dismissed as the sentence of two and a half years' imprisonment is well within range.

Orders