R v Love - [2016] NZHC 2046

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-485-379 [2016] NZHC 2046

THE QUEEN

v

RALPH HEBERLEY NGATATA LOVE

Hearing: 3-5, 8-11, 15-19, 22-25 August 2016

Appearances:

G J Burston, M J Ferrier and R Parlane for Crown
C R Carruthers QC and B Farquhar for Defendant

Verdict:

1 September 2016

VERDICT OF LANG J

R v LOVE [2016] NZHC 2046 [1 September 2016]

INDEX

Background to the charges ....................................................................................................................................... [3] The Crown and defence cases ................................................................................................................................. [24] Onus and standard of proof .................................................................................................................................... [30]

Evidential issues ..................................................................................................................................................... [33] Reliability issues .........................................................................................................................................................[34] Dr Love’s evidence ......................................................................................................................................................[35] The evidence given by Mr Stevens .............................................................................................................................[38] Circumstantial evidence .............................................................................................................................................[39]

The events leading up to 22 November 2006 .......................................................................................................... [40] The events that occurred on 22 and 23 November 2006 ......................................................................................... [48] The meeting of trustees on 28 November 2006 ...................................................................................................... [62] Events that occurred between 28 November and 31 January 2007 ......................................................................... [67]

Factual findings....................................................................................................................................................... [76] Dr Love’s knowledge of Matene Love’s involvement with the developers .................................................................[77] The ability of the Tenths to obtain a lease premium for the Pipitea Street development ..........................................[83] The events that occurred between 22 and 28 November 2006 .................................................................................[84] The events that occurred after 28 November 2006 ...................................................................................................[96]

Has the Crown proved the elements of the charge? ............................................................................................. [108]

The obtaining of property ............................................................................................................................................[108]

Deception ............................................................................................................................................................. [117] False representation.................................................................................................................................................[117] Omission to disclose a material particular in circumstances where there is a duty to disclose it ............................[123] A fraudulent stratagem used with intent to deceive ................................................................................................[129]

Without claim of right .......................................................................................................................................... [144] Result .................................................................................................................................................................... 148]

[1] Dr Ngatata Love (Dr Love) faces two charges laid in the alternative. The first is a charge of obtaining property by means of deception.1 The second is a charge of obtaining a secret commission.2

[2] For the reasons that follow, I am satisfied the Crown has proved the charge of obtaining property by deception beyond reasonable doubt. For that reason it has not been necessary for me to consider the alternative charge.

Background to the charges

[3] Dr Love is a prominent figure within Maoridom. He is a kaumatua of several iwi, and over the years has held many important public and commercial positions. At the time of the events giving rise to the charges he was a professor at the School of Business at Victoria University.

[4] The charges were laid as a result of Dr Love’s involvement during 2006 and 2007 with the Tenths Trust (the Tenths), a trust established in its present form in 1985 by orders made under s 438(1) of the Maori Affairs Act 1953 and s 50 of the Trustee Act 1956. The Tenths owns significant holdings of Maori freehold land in and about the Wellington region. It manages and administers the land for the benefit of the beneficiaries of the trust, all of whom belong to Wellington and Taranaki-based iwi.

[5] The governance of the Tenths during this period was prescribed by orders…

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 R v Love

Details

AGLC: R v Love [2016] NZHC 2046
Case: [2016] NZHC 2046
Decision Date: 1 September 2016

CaseChat Overview and Summary

In the case of R v Love, the defendant, Dr Ngatata Love, a prominent figure within Maoridom, faced two charges laid in the alternative. The first charge was obtaining property by deception, and the second was obtaining a secret commission. The proceedings involved Dr Love's involvement with the Tenths Trust, a trust established in 1985 by orders under the Maori Affairs Act 1953 and the Trustee Act 1956. The trust owned significant holdings of Maori freehold land in and about the Wellington region and managed and administered the land for the benefit of beneficiaries belonging to Wellington and Taranaki-based iwi.

The charges arose from Dr Love's involvement with the Tenths Trust during 2006 and 2007, specifically regarding the development of land situated in Pipitea Street, Thorndon. The Tenths Trust needed to develop the land to boost income, as it was producing very little at the time. To achieve this, the Tenths Trust needed to acquire ownership of 1 to 3 and 11 Pipitea Street from the Crown. Negotiations between the trustees and the Crown were in advanced stages, and the Tenths Trust was also involved in discussions with Auckland property developers, Redwood and Equinox, who were keen to build a large office complex on the Pipitea Street land.

The Crown alleged that Dr Love enabled a company, Pipitea Street Developments Ltd (PSDL), to obtain funds paid by the developers under a Services Agreement, by deception. Dr Love allegedly led the developers to believe that the Tenths Trust had approved the arrangement under which payments were to be made to PSDL when that was not the case. Additionally, he failed to inform the other trustees about the developers' offer to pay the Tenths $3 million to acquire the right to lease the Pipitea Street land and the arrangement between PSDL and the developers under the Services Agreement.

The court found that the Crown had proved the charge of obtaining property by deception beyond reasonable doubt. The court concluded that Dr Love created an environment in which the developers came to believe they were making the payments to PSDL for the benefit of the Tenths Trust, which was a material issue for the developers. Furthermore, the court found that Dr Love had omitted to disclose the information with the intention of deceiving the other trustees regarding the nature of the developers' offer. The court also concluded that Dr Love's actions were deceptive and dishonest, and that he obtained the property without claim of right.

Orders