Andrews v R [2021] NZCA 412 (31 August 2021)

Last Updated: 10 September 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA352/2019 [2021] NZCA 412

	BETWEEN	RAYMOND ANTHONY ANDREWS Appellant
	AND	THE QUEEN Respondent

Hearing:	21 June 2021
Court:	Gilbert, Mander and Hinton JJ
Counsel:	M J Taylor-Cyphers for Appellant Z R Johnston and M R L Davie for Respondent
Judgment:	31 August 2021 at 9.30 am

JUDGMENT OF THE COURT

A 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 Andrews was convicted on various charges of breaching the conditions of his bankruptcy and fraudulent conduct. Mr Andrews appeals his convictions. He alleges that his trial counsel failed to prepare adequately and advance his defence in accordance with his instructions 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, to discharge 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 of six and a half years’ imprisonment.^[1] He appeals that sentence primarily on the basis that it was manifestly excessive.

Background

2008 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 income and employment and to disclose all property in his possession. He was also prohibited from managing a business or being a company director without the consent of the court or the Official Assignee.

2013 prohibition on being involved in the management of companies

• [4] In February 2013, Mr Andrews was convicted of dishonesty offending and offences against the Insolvency Act 2006.^[2] Mr Andrews was sentenced to 15 months’ imprisonment for this offending.^[3] Because of that offending, the Registrar of Companies notified Mr Andrews on 28 March 2013 that he was prohibited from being involved directly or indirectly in the management of a company for five years without the consent of the court.^[4]

The present offending

Taking part in the management of a business whilst prohibited (charge 1)

• [5] Mr Andrews was charged with taking part in the management of a company over a three year period between February 2014 and June 2017 whilst prohibited from doing so without the leave of the court.^[5] The particulars of that charge alleged that between 28 February 2014 and 25 November of that year he took part in the management of the business of Max Imports Ltd, and that between 2 October 2015 and 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 from Australia. Mr Andrews was found guilty of this representative charge.
• [6] His conviction on this charge was in addition to earlier charges of participating in the management or control of companies involved in the same activity that arose from a separate prosecution to which he pleaded guilty in 2017.^[6]

Taking part in the management of a New Zealand vehicle import business while bankrupt 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 was alleged that between October 2015 and June 2017 Mr Andrews was also involved in the business of importing, repairing and selling vehicles from Australia. It was the Crown’s case that Mr Andrews represented that his business was part of or affiliated with Maxium. Robert denied that was the case.
• [8] Evidence of Mr Andrews’ involvement in Maxium’s business of importing and selling vehicles was provided by companies that were engaged to repair and certify these vehicles, and by individuals who purchased them from Mr Andrews. Between December 2015 and September 2016, Mr Andrews arranged for a number of imported vehicles to be repaired by a company called Total Auto Therapy Ltd. Twenty-one invoices were purportedly issued to Maxium for this work but the company dealt exclusively with Mr Andrews. Between January 2016 and August of that same year, Mr Andrews also arranged for vehicles to be certified at a business called Drivesure Vehicle Testing. It carried out work on seven vehicles, again purportedly 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 number of individuals who gave evidence of personally dealing with Mr Andrews and receiving invoices from him for the purchase price. Details on the invoices included Mr Andrews’ address (described as the New Zealand Sales Office for Maxium) and his 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 and paid $290,500 into the ANZ account. Jonathan Prentice described purchasing a vehicle for $28,500 and paying a 50 per cent deposit into the ANZ bank account on 30 March 2016. In March 2016, Trevor Strange placed an order with Mr Andrews for a BMW motor vehicle and received an invoice from him for payment of $37,500, and in April entered into a similar transaction with Mr Andrews for a motorbike in respect of which he received an invoice for $14,900. In November 2015, Scott Wilson purchased four Grand Cherokee vehicles and a Mercedes Benz from Mr Andrews for a total price of $183,000, and made payments to the ANZ account (following initial payments to Robert’s account).
• [10] The Official Assignee was unaware of Mr Andrews’ involvement in this business and did not consent to it, nor had Mr Andrews sought the court’s consent to be involved in this business. At trial, Mr Andrews was found guilty of a charge of taking part in the management of a business that imported, repaired and sold motor vehicles whilst bankrupt without the consent of the Official Assignee (charge 3).^[7] This charge was laid as an alternative to charge 2, which alleged the same conduct but that it had involved Mr Andrews taking part in the management of the business of Maxium (charge 2). The jury did not find Mr Andrews guilty of charge 2.^[8]

Forgery 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 in relation to the sales of imported vehicles.^[9] He created and used invoices purporting to be from Maxium but which listed Mr Andrews’ own ANZ bank account details for the purpose of payment. The invoices also falsely represented that Maxium was a licensed motor vehicle dealer (LMVD) in New Zealand, and were sent to buyers for payment with incorrect vehicle identification numbers (VINs), which the Crown maintained was to prevent them from being traced. Many of the victims made multiple purchases and sustained losses as a result of Mr Andrews either not supplying the vehicles which he had promised or supplying inferior vehicles in poor condition.^[10]

Wilfully misleading the Official Assignee (charge 5)

• [12] Unbeknownst to the Official Assignee, Mr Andrews operated three bank accounts. 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, Alexandra Andrews, did not access it. Between October 2015 and June 2017, Mr Andrews also operated a Kiwibank bank account that was in the name of his daughter but to which he had access and that she never used. There was also a Westpac bank account into which Mr Andrews received his superannuation payments.
• [13] When examined by the Official Assignee on 31 May 2016, Mr Andrews said he had not opened any new bank accounts and stated he was only “using the bank accounts you think I have”. He did not disclose the ANZ, Westpac or Kiwibank accounts. As a result, he was found guilty of wilfully misleading the Official Assignee.^[11]

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 into Mr Andrews’ ANZ account. Neither the existence of the bank account nor the money held within it was disclosed to the Official Assignee. Similarly, between October 2015 and June 2017, Mr Andrews received a total sum of $55,113.31 into the Kiwibank account 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 to the 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 as a result of an agreement to supply her with a vehicle. This money was not disclosed to the Official Assignee. Mr Andrews was found guilty of three charges of concealing property to the value of $500 or more.^[12]

Obtaining by deception (charges 22–25)

• [15] Wayne Dobson was the owner of a laser hair removal machine that was valued at $127,258.50 at the time of its acquisition in 2007. In 2018, he was introduced to Mr 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 Andrews take possession of the machine but he also induced Mr Dobson to pay him $5,000 to upgrade it. No money was received by Mr Dobson and the machine has not been recovered. Mr Andrews later claimed it was stolen.
• [16] In 2011, Mr Andrews purchased what was described as an E-Light IPL beauty machine from Mr Russell Smith that was valued at $4,000. Mr Andrews represented that 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 $5,000 by deception.^[13] Mr Andrews was also found guilty of obtaining credit by deception by obtaining accommodation from serviced apartments in Mount Maunganui between August 2012 and February 2013, during which he incurred a bill of $1,050 which he never paid.^[14]

Procedural background

• [18] Mr Andrews’ first trial was scheduled to proceed in July 2018. However, in the preceding month his counsel was granted leave to withdraw and Mr Gardiner was engaged. At Mr Andrews’ instructions, Mr Gardiner obtained an adjournment of the trial in order to better prepare and a new trial date was set. Mr Andrews stood trial on 4 March 2019.
• [19] The Crown had available to it, and relied on, interviews the Official Assignee had conducted with Mr Andrews and an interview he had provided to the police. The Crown called a number of witnesses, including representatives of the Official Assignee’s office, people who had dealt with Mr Andrews in relation to transactions 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, an accountant.
• [20] Mr Andrews’ defence was that he had attempted to meet his commercial obligations and that it was not his fault the victims had sustained losses. In relation to his New Zealand vehicle import business, Mr Andrews maintained he was in an agency 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 trial counsel, Mr Gardiner, was not sufficiently prepared and that the conduct of his defence at trial was inadequate. Mr Andrews maintained the failure by his counsel to prepare a brief of evidence resulted in his defence not being advanced in accordance with his instructions. He alleges his trial counsel failed to discharge duties of cross‑examination and gave an inadequate closing address and that these were further material defects in the conduct of his defence that either individually or cumulatively constituted a departure from good practice that was so prejudicial as to render his trial unfair and result in a miscarriage of justice.
• [22] Mr Andrews also relies on a number of subsidiary points which, while not individually determinative, it is submitted were contributory factors that jointly may have caused his trial to miscarry. These include a lack of advice regarding his decision to give evidence and to permit an agreed summary of facts, particularly as it related to his previous convictions, to be admitted in that form; and a failure by the trial Judge to put the defence position regarding Mr Andrews’ agency relationship with his son to the jury. While not pursued in oral submissions before us, further complaints included the failure to call particular evidence and to obtain a second sentence indication.
• [23] On behalf of Mr Andrews, Ms Taylor-Cyphers submitted that trial counsel error caused a miscarriage of justice, either because the error gave rise to a real risk that the outcome of the trial was affected but primarily because it meant the trial was unfair.^[15]
• [24] The approach to appeals involving an issue of trial counsel’s competence ordinarily requires the appeal court to consider whether there has been an error or irregularity on the part of counsel and, if so, whether there is a real risk it affected the outcome of the trial by rendering the verdict unsafe.^[16] Where counsel has made a tactical decision that was deliberately judged at the time to be in the interests of the defendant and was reasonable in the context of the trial, a complaint subsequently made on appeal regarding that decision is unlikely to be successful.^[17]
• [25] There are only a limited number of circumstances where counsel error, without more, will potentially give rise to a miscarriage of justice. Not every error, even in respect of one or more facet of the trial, will result in an unfair trial.^[18] An assessment of 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 be condemned as unfair and the conviction quashed as unsafe.^[19] However, fundamental decisions where trial counsel has failed to follow specific instructions will generally give rise to a miscarriage. These have been identified by this Court as those relating to plea, electing whether to give evidence, and to advance a defence based on the defendant’s version of events.^[20]
• [26] Having identified the issues raised on Mr Andrews’s appeal, a number of which are interrelated, and set out the required approach to our assessment, we turn to consider 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 Andrews faced, 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 or has indicated his or her intention to do so, the preparation of a brief of evidence is a necessary step to ensure cross-examination duties are complied with by counsel. It was also noted that a number of inconsistencies arose from statements Mr Andrews made 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 of preparing a brief of evidence, trial counsel’s preparation did not meet the requirements of best practice. However, Ms Johnston submitted this failure had not prejudiced Mr Andrews’ defence, nor had Mr Andrews been able to demonstrate how better preparation or a brief of evidence would have resulted in a better outcome for him, or deprived him of a fair trial.
• [29] Those critical overarching considerations of whether Mr Andrews’ defence was prejudiced by the failure to prepare a brief of evidence and whether his defence was advanced in accordance with his instructions are issues that will be addressed shortly. However, in mitigation for the lack of a brief of evidence, Ms Johnston said one was not prepared because of Mr Andrews’ vacillation over pleading guilty and his reluctance 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 had equipped him to run, and that Mr Gardiner experienced considerable difficulties in getting Mr Andrews to articulate his defences to the various charges.
• [30] In oral evidence before us, Mr Andrews said he never had any intention of pleading guilty and maintains that Mr Gardiner’s evidence of him having discussions with 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 give instructions to Mr Gardiner to seek a second sentence indication — indeed it is a 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 shortly before trial to ascertain whether a resolution could be reached in relation to plea and sentence indication. Mr Andrews maintains that any such approach was without his instructions, although it is apparent from the available emails that this initiative was taken with Mr Andrews’ knowledge and authority. Despite this, Mr Andrews is adamant that he would have pleaded guilty to nothing.
• [31] We doubt much turns on this conflict but we are bound to observe that there would be no point in seeking a sentence indication if there was no possibility of guilty pleas being considered. We have also sighted an email from Mr Andrews to Mr Gardiner that indicates he may have been prepared to consider such a course in the month prior to his trial when he instructed Mr Gardiner to obtain another sentence indication.
• [32] Mr Gardiner’s evidence was that he met with Mr Andrews on at least three occasions in the month before trial and a further two occasions in the days leading up to it, on 1 and 3 March 2019. He calculated from his work records that he spent some 52 hours on trial preparation, not including the hours spent preparing and meeting with Mr Andrews during the trial, outside sitting hours. Throughout this period Mr Gardiner exchanged emails with Mr Andrews regarding his case. Mr Gardiner deposed that he discussed with Mr Andrews the preparation of a brief of evidence but that his client was considering pleading guilty, and it was only as the trial became imminent that Mr Andrews was forced to consider what his defences to the charges might be. Mr Gardiner deposed this was the reason for the late preparation.
• [33] Mr Gardiner’s evidence was that he explained to Mr Andrews that it was important to know his response to the various charges so he could put propositions to prosecution witnesses and that he provided an example of a “narrative” or brief in the form of a template to be completed by Mr Andrews, requiring him to state his position and response to the Crown’s allegations. On 2 March 2019, Mr Gardiner emailed Mr Andrews asking him to complete a draft of his evidence and to consider questions he believed should be asked of prosecution witnesses, all of which they would discuss the following day at a scheduled meeting on 3 March.
• [34] This document was not completed, and during the trial Mr Gardiner followed up the issue with Mr Andrews. In an email on 13 March, Mr Gardiner advised that he understood Mr Andrews was preparing points for his evidence and that he would need to elicit that evidence by asking questions of Mr Andrews. He stated that the starting point for doing this is usually a narrative, as they had previously discussed. He asked whether 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 obtained specific instructions relating to various aspects of the evidence, including in relation to his bankruptcy, and received detailed notes from Mr Andrews regarding a number of the witnesses. In addition to emails sent by Mr Andrews prior to trial outlining his position on various points, Mr Andrews continued to give Mr Gardiner instructions during his trial, and it is apparent he was actively engaged with his counsel during this period.
• [36] Ms Johnston submitted that there is no prescribed standard for obtaining instructions and that a failure to follow “best practice” does not necessarily equate to incompetence.^[21] We accept that what will be considered adequate will depend on the circumstances of the individual case and the defence to be advanced. We also acknowledge 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 not adequate 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 is demonstrated that it has resulted in a miscarriage of justice, either because Mr Andrews was not provided with a fair opportunity to put his defence or because his 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 of prejudice to Mr Andrews in the conduct of his trial that rendered it unfair.
• [37] Apart from Mr Andrews’ contentions regarding his involvement with his son and the agency role he claims he was performing for Maxium, Mr Andrews has not identified what other material information was either not advanced or was inadequately 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 detail later in this judgment when we address the adequacy of Mr Gardiner’s cross‑examination of Robert at [44]–[59]. However, putting that issue aside for the present, we do not consider the absence of a brief of evidence has manifested itself in a way that caused prejudice to Mr Andrews’ defence, or that there were other defences that Mr Andrews wished to raise that he was not able to put before the jury because 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 Gardiner referred to receiving emails from Mr Andrews regarding this issue. While not pursued in oral argument, it was submitted the genuineness of Mr Andrews’ bankruptcy was a germane, if not crucial, issue that could have provided a partial or complete defence to 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 to him to bring a collateral challenge to the validity of the bankruptcy order made in the High Court which was binding and conclusive until set aside on appeal or, for any other reason, lawfully quashed.^[23] As held by the Supreme Court in Siemer v Solicitor‑General, collateral attacks on court orders are not permitted and parties cannot arrange their affairs on the basis of their own perceived flaws in the order or individual views they may have concerning its validity.^[24] It follows that Mr Gardiner, who did make enquiries into the issue of Mr Andrews’ bankruptcy and provided him with advice, cannot be criticised for not challenging the bankruptcy order. It is not a matter which if included in a brief of evidence would have advanced Mr Andrews’ defence.
• [40] Ms Taylor-Cyphers also maintains that it would have been of assistance to have explained to the jury the inconsistencies in the answers Mr Andrews gave in his various interviews. However, Mr Andrews has provided no details regarding what those explanations are that could have been included in a brief of evidence. Similarly, there is a complaint that enquiries were not made about the circumstances of Mr Andrews obtaining credit for his accommodation at the serviced apartments. However, apart from the fact Mr Andrews continued to use the apartments notwithstanding his debt, which was a circumstance that was before the jury, no detail was provided as to what information was available that could have been included in a brief of evidence.
• [41] The main consequence that Mr Andrews puts forward from there having been no prepared brief of evidence is that his claimed defence regarding his involvement in the importation of vehicles from Australia and his “agency” relationship with his son’s company was not advanced in accordance with his instructions. He argued the jury did not therefore have the opportunity to properly consider that defence, and that he was thereby prejudiced in his ability to secure different verdicts. However, Mr Andrews canvassed the business relationship he contended he had with his son and his company, Maxium, in some detail in the evidence that was led from him by Mr Gardiner and about which he was extensively cross-examined. This aspect of his defence was squarely before the jury at his trial.
• [42] In his affidavit prepared for this appeal Mr Andrews again traversed his relationship with his son and repeated his claim there was an unwritten agency agreement between them in respect of the business of importing vehicles from Australia and selling them in New Zealand. Indeed, Mr Andrews deposed that he and his son were “in business together”. While the trial Judge permitted Mr Andrews to rely on this narrative as a defence to some of the charges, we doubt it provides an answer 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 in business with his son or, as he has variously put forward, acting as his agent or even as his employee, we are satisfied this was fully canvassed in his evidence at trial and adequately put before the jury.
• [43] This is not a situation where an important aspect of a defence has been overlooked or where a piece of evidence such as a written agency agreement or employment document has not been identified that might otherwise have been put forward 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 of cross‑examination) and he has failed to identify on appeal what piece of material information relating to his defence was not advanced at his trial because a brief was not prepared. We conclude that the absence of a brief of evidence did not result in a failure by Mr Gardiner to advance Mr Andrews’ defence in accordance with his instructions or that Mr Andrews’ chances of obtaining a different verdict were prejudiced. In that regard we do not overlook Mr Andrews’ claim that inadequacies in Mr Gardiner’s cross-examination and closing were to the same effect, and it is to those 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 attack the credibility of witnesses on the basis they were lying, mistaken or had fabricated their evidence, we doubt such a wholesale attack on these witnesses would have been productive. The prime focus of this ground of appeal relates to the cross-examination of 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 that his 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 Zealand bank accounts and he denied the various invoices that were the subject of the forgery charges were authorised by his company.
• [46] In his affidavit prepared for this appeal, Mr Andrews refers to notes he says he provided to Mr Gardiner that set out questions to be put to Robert in cross‑examination. Mr Andrews says he does not recall Mr Gardiner asking Robert any of these questions. While Mr Andrews accepts that Mr Gardiner in his capacity as counsel was better placed to judge the worth of some questions, he maintains that a number were particularly important and that Mr Gardiner did not ask Robert a pivotal question about how he got paid for vehicles once they arrived in New Zealand, or about payments that Mr Andrews says Robert sent to him for the work he did for Maxium.
• [47] Mr Gardiner confirms that Mr Andrews provided him with these notes, and that they were made either the night before Robert gave evidence or during his examination-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 identified by Mr Andrews in his written note to be raised in cross-examination. These included the 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 in New Zealand; and how he received payment for any car acquired or worked on for his father. Robert either denied the propositions put to him or provided explanations and reasons that demonstrated that the business relationship Mr Andrews claimed to have with him was incorrect. In the absence of any documentation to contradict Robert’s evidence, we do not consider Mr Gardiner was in a position to press those matters further.
• [48] Specifically, Mr Gardiner put to Robert that he had been importing cars “in conjunction with” Mr Andrews, who was acting as his agent in New Zealand. Robert denied any such relationship or arrangement with his father. In support of his position he referred to Maxium’s website, which clearly stated that it had no agents and no staff in New Zealand. Mr Andrews complains that Mr Gardiner failed to challenge Robert regarding his denial that the invoices were from his company. However, in making that denial, Robert highlighted other erroneous details in the invoices and the incongruity of the moneys charged being directed to be paid to a bank account of which he was unaware and to which he did not have access. It is difficult to perceive what would have been achieved by questioning Robert further about the invoices which he unequivocally stated were not from his company.
• [49] The nub of Mr Andrews’ complaint on this ground is that, despite Robert’s emphatic denial that Mr Andrews was Maxium’s agent, or that he was authorised to issue invoices in the name of that company, Mr Gardiner failed to put to Robert during cross-examination that he was lying or was mistaken. This point is emphasised because of the trial Judge’s criticism of Mr Andrews after he (finally) asserted that he believed that was the case during his own cross-examination.
• [50] Ms Taylor-Cyphers submits it was always apparent that Mr Andrews would dispute Robert’s evidence regarding his business involvement with his son. She relied on Mr Gardiner’s opening statement at trial, where he referred to Mr Andrews’ position that his son knew what was happening and that while he may state the opposite in evidence that would be untrue. In that opening statement, Mr Gardiner explained that the defence case was that Robert was protecting himself because he did not want to be associated with his father. Ms Taylor-Cyphers is critical of Mr Gardiner not cross‑examining Robert to the effect that he was mistaken or was lying when denying there was no agency relationship between his company and Mr Andrews.
• [51] We accept that trial counsel could have been more direct in his cross‑examination of Robert on this point and that it would have been preferable for him to have clearly put it to Robert that his evidence in respect of this issue was not accepted. However, Mr Andrews’ version of his relationship with his son’s business was canvassed with Robert at some length, and it was inevitable that a proposition to the witness that he was wrong, either because he was mistaken or lying, would have been rejected. We do not consider Mr Andrews’ defence would have been advanced by putting a question to that effect, or that the failure to do so of itself prejudiced Mr Andrews’ defence.
• [52] Mr Gardiner put to Robert that he had been attempting to “put as much distance” between himself and his father as possible once he became aware that MBIE and the police were investigating Mr Andrews. This was a reference to an email dated 14 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 any type of business relationship with Maxium. Having put the propositions to Robert that he and his father had been importing cars together, that Mr Andrews was acting as his agent in New Zealand, and that he was now attempting to distance himself from Mr Andrews as a result of the authorities’ interest in his father, we doubt little more would have been able to have been achieved.
• [53] That those lines of cross-examination could have been pursued more directly or in stronger terms does not provide a proper basis to challenge counsel’s conduct or to bring into question the fairness of Mr Andrews’ trial. However, that is not the extent of the alleged difficulties arising from Robert’s cross-examination. During the course of Mr Andrews’ evidence-in-chief, Mr Gardiner referred him to the email sent by Robert on 14 October 2016, in which he asked his father not to represent himself as being associated with his business. In his response, Mr Andrews suggested the date on 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 to have seen the email. At that point, the trial Judge observed that no suggestion had been made to Robert that he had concocted or altered the email. Upon inquiry from the Judge about whether he had previous knowledge of this theory, Mr Gardiner replied that he had not. We pause at this point to note there is no evidence that Mr Andrews had informed Mr Gardiner of this type of response to the 14 October email before he gave his answer.
• [54] After being referred to the different versions of accounts Mr Andrews had given in his three interviews about his business relationship with his son, Mr Andrews was asked in cross-examination about Robert’s evidence that he was never Maxium’s agent. 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 to Robert was to some extent, particularly once MBIE and the police got involved, was to 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 whether he was saying Robert was lying when he had said Mr Andrews was not an agent for Maxium. Mr Andrews was clearly reluctant to accuse his son of lying, and only did so after some pressure by the prosecutor and the intervention of the Judge:
  17. So when Robert said to us you were not an agent for his company in any way, shape or form. Was he lying?
  1. There was a transition in the way that we did business once MBIE and the police got involved. And he became very concerned because of the issues relating to the stock that he, his company would be personally, would be liable for restitution to people who had not received –

THE COURT:

17. It’s not a question of what his motivation is. It’s a question of whether he deliberately told an untrue statement. That’s what you’re asked to answer. That’s a yes or no answer.
1. Well clearly again, I’ve made a statement which, that contradicts what he 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.

17. 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]

17. You disagree that he was lying is that what you mean? I’m struggling to follow.
1. What I’m saying to you is that he may have made a statement in that point in time that was true, that historically it was not true.

THE COURT:

17. No, Mr Andrews, it’s a direct question, it will harm your credibility if you 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.

17. 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 or form 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?

17. I think you could have passed one of your notes forward to my friend here.

A. I probably did.

Q. And –

1. Every single note that I put through to Mr Gardiner, he had to make a judgement as to whether it was appropriate. What I am trying to point out was that the relationship I had with Robert moved significantly over towards the end of that period following that investigation getting underway which is my point. So what was the truth six months prior or three months prior changed significantly at that point.
17. So that links to a point you made before when you said that your business transitioned once the police and MBIE got involved, what did it transition from and what did it transition to?
1. I repeat, Robert was very concerned that he was at risk of being prosecuted by MBIE essentially for employ[ing] me for – not employing me but for having a business relationship with me.

Q. And do you think that’s why he lied?

1. Again, as I’ve indicated, his concern was by the time all this blew up that his company was going to be liable for the repayment to the people who had not received stock. That was his concern.
17. And so is that why he came to give evidence unfavourable to you in Court?
1. 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 other either there will be conclusive evidence that will support my position or the jury will agree with what the Crown is presenting and we have other 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 that Robert changed the date of the email led to an adverse comment being made by the trial Judge in his summing up:

What would be damaging to the defendant’s credibility would be if you thought that his case was changing with a view to try to respond to evidence that was given, people not being asked about things that they were going to say that was different to him, and him to come in later and give a different version, because the witness, of course, would not have a chance to say, “Well that’s not right.” Potentially the witness may have other evidence they could give if they knew they were going to be challenged. So it is important for witnesses to know.

Now, there were specific examples, they were that Robert had lied about the degree of involvement that he had with his father about [Maxium] Pty Limited. That is a very significant aspect of the trial. Also, that he had altered the 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 doing this before and it still keeps happening.” Now, that would be a critical supporting piece of evidence to Mr Robert Andrews. The defendant said in evidence that it is easy to doctor these things and change the dates. It was never 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 for the defendant were not put to prosecution witnesses. You are entitled to take that into account when you consider the evidence that he gave.

• [56] Mr Andrews’ claim that he was in an agency relationship with Maxium could not be reconciled with Robert’s position to the contrary. Mr Andrews was aware of Robert’s likely evidence contradicting his account of his business relationship with Maxium and he maintained that his son’s evidence on that point was untrue because he was protecting himself and did not want to be associated with his father. Mr Gardiner in cross-examination canvassed these aspects of Mr Andrews’ defence with Robert and gave him the appropriate opportunity to comment. While the two different versions of their commercial relationship clearly could not be reconciled, it is 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 an allegation. Despite that reluctance, we consider the defence case as it related to whether an agency relationship had existed was squarely before the jury.
• [57] On appeal, Mr Andrews complains of a range of matters that he alleges Mr Gardiner failed to traverse with Robert, although in his affidavit he only put it as high 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 making that 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 his son in that way. We do not therefore consider that Mr Gardiner can be fairly criticised for not doing so despite the significantly divergent defence and prosecution cases.
• [58] Ultimately, Mr Andrews was unable to avoid alleging that Robert must have been lying, which resulted in the trial Judge commenting adversely on the position Mr Andrews finally took in relation to his son’s evidence. However, we consider Mr Andrews had already opened himself up to such a credibility direction as a result of the claim that Robert had doctored the email of 14 October 2016 for his own purposes. There was no evidence to support Mr Andrews’ suggestion that the date of the email was altered, nor is it contended that Mr Gardiner was aware that his client would make such a remark. We think it likely that this was an ad lib comment introduced on the fly by Mr Andrews in an effort to respond to Robert’s observation that the email had been sent a considerable period of time before the initial Official Assignee and police enquiries. We therefore do not consider Mr Andrews’ response was a matter about which Mr Gardiner would have been alerted even if Mr 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 of Robert was adequate and, while it could have been conducted in a more robust manner and in a way that challenged the veracity of Robert’s position more directly, we do not consider that was either necessary in order to properly put Mr Andrews’ defence before the jury or that was required by Mr Andrews’ instructions to him. Mr Andrews chose in his evidence to theorise about his son’s conduct in respect of the email in a way that could not have been reasonably anticipated by Mr Gardiner, and when persistently pressed opted to allege that his son was lying. That was a course he had previously avoided and, in light of his reluctance to do so, we are not satisfied he had instructed his counsel to directly challenge Robert in that way. In any event, we consider it would have added little or nothing to the case if Mr Gardiner had specifically put it to Robert that he was lying. We therefore do not consider this aspect of the appeal has given rise to a miscarriage of justice.

Alexandra Andrews

• [60] Mr Andrews is also critical of Mr Gardiner’s cross-examination of his daughter regarding the ANZ account. Mr Andrews’ criticism is that Mr Gardiner focused on the Kiwibank account and did not raise the ANZ account with her, in accordance with the written comments he had provided to him. However, in those instructions Mr Andrews expressly stated that “on a regular basis we were both using the accounts as there were two cards for them”. It is unclear therefore how cross‑examination of Alexandra on this point would have assisted, as it represented at least a partial admission 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 to the ANZ account and she acknowledged she may have used the account when she was at high school, before opening her own accounts at university. But the short point is that it is not apparent, at least on the information provided by Mr Andrews to his trial counsel, that anything further would have been gained by cross-examining his daughter about this account. Mr Gardiner in his affidavit on appeal notes that he did not address the ANZ account in detail because it involved large sums of money and that, in his view, it stretched credulity to argue that Alexandra was using that account at all, let alone in any significant way. Mr Andrews has not provided any material on appeal to suggest Mr Gardiner’s approach constituted a tactical error or how anything more was to be gained in relation to the subject of the ANZ account by further questioning.
• [62] Ms Taylor-Cyphers submits that cross-examining Alexandra about the ANZ account was important because the account was used to pay for accommodation and was relevant to the charge of obtaining credit by deception, and not to any defence of using an undisclosed bank account. Mr Andrews maintained that it showed he stayed at the accommodation “countless times” following the incurring of the debt. However, we fail to see how cross-examination of Alexandra would have assisted her father on this point. Her evidence was to the effect that the transactions in the accounts were unfamiliar to her. Moreover, it was open to Mr Andrews when he gave evidence to identify the relevant transactions that he says would have supported his defence to the charge, although that would no doubt have also constituted an admission to having used an undisclosed bank account, contrary to his representation to the Official Assignee. We also note that Alexandra would have been in her mid-teens during the period relevant to this particular offending. Furthermore, Mr Andrews does not claim to have instructed his counsel regarding such a line of cross-examination and this topic was not included in the written notes he provided to Mr Gardiner via email 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 trial counsel 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 not a 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 have been stronger, nor that more could or should have been made of discrete points, but that there was a failure to advance Mr Andrews’ defence on his instructions and that this rendered his trial unfair.
• [64] We consider the defence was put in the course of the cross-examination of Robert and, while it may have been preferable for Mr Andrews’ position regarding his business relationship with his son to have been put in a more forthright manner, we do not consider that Mr Gardiner had been required by his client to allege his son was lying. It is apparent that Mr Andrews’ preferred course was to adopt a less direct approach based on demonstrating to the jury that Robert was now seeking to distance his business from his father because of the difficulties he was now in and to avoid issues for himself and Maxium. This was the approach he took in his own evidence until 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 not consider there was a failure by trial counsel to follow his client’s instructions to advance a particular defence, nor do we consider Mr Gardiner’s cross-examination of Robert resulted in Mr Andrews receiving an unfair trial.

Closing address

• [65] Mr Andrews also contends that his trial counsel’s closing address was deficient and that, as a result, he was deprived of the right to fairly present his defence. We do not consider this criticism is sustainable. Mr Gardiner did not specifically address each of the 35 charges in his closing to the jury but he did canvass the defence as it related to each group of charges, which was also the approach adopted by the prosecutor.^[26]
• [66] In relation to the forgery charges Mr Gardiner argued that, while some details on the documents were incorrect, the invoices represented real transactions and that there was no fraud because each of the victims considered it to be in their commercial interests to enter into the deals. Where vehicles had not been supplied, it was argued this 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 for Robert denying his business relationship with his father in order to put distance between himself and Mr Andrews when he came under investigation. The obtaining by deception charges were addressed individually.
• [67] We are satisfied Mr Andrews’ defences to the charges were advanced by Mr Gardiner in his closing address.

Judge’s summing up

• [68] In support of his contention that the Judge failed to put the defence position in his summing up, particularly as it related to his purported agency relationship with Robert, Mr Andrews placed reliance on the obligation of a trial Judge to correct errors or omissions in defence counsel’s closing address. We consider that criticism is unsustainable. The Judge’s summing up of the defence case was comprehensive. Not only was Mr Andrews’ evidence, including his testimony that he had an unwritten agency agreement with his son summarised by the Judge, but the defence case was repeated when the Judge reviewed counsel’s closing addresses. The following passage disposes of Mr Andrews’ criticisms of the Judge’s summing up insofar as it relates to a failure to put Mr Andrews’ position regarding his business relationship with his son:

The defence says that when you consider the charges that relate to management of a business you have a situation where Mr Robert Andrews was put in a very uncomfortable position, that had he admitted being engaged in business as a principal for an agent, that agent appeared to be trading while insolvent and breaching various aspects of their duties under the Insolvency Act, then Mr Robert Andrews could be in trouble. So he was facing a situation in which you can understand why he would distance himself from his father, that he would distance himself from his father because it was inconvenient and potentially hazardous for him to remain in an agreement, and that you can see in the evidence that there are occasions when Mr Robert Andrews is in New Zealand, that he was at Stoddard Road, that he spoke to a number of the people who bought vehicles. And so you will see that there is a connection, there has been a business connection. The defendant is engaged in buying cars, or was engaged in buying cars from his son among other people, 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 there was not some form of agreement where Maxium Pty Limited was a part of the process of the buying and selling, on a wholesale basis at least, into New 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 of his previous convictions in an admitted facts memorandum (the s 9 notice) and that he never agreed to the content of these agreed facts.^[27] We have received Mr Gardiner’s evidence on the point which is supported by emails that demonstrate the issue was discussed with him on several occasions. These emails also show that the content of the s 9 notice, particularly as it related to the previous convictions, was the subject of a process of negotiation with the Crown that involved Mr Andrews. The email record refers to discussions between Mr Gardiner and Mr Andrews about this topic, and we note that an earlier version of the s 9 notice with proposed handwritten amendments was 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 copies of Mr Andrews’ certified convictions. It also provided a copy of a memorandum that Mr Andrews’ first lawyer had previously filed which recorded there was no opposition to either the previous convictions or facts relating to those convictions being admitted. However, in accordance with his initial discussions with Mr Andrews, Mr Gardiner informed the prosecutor that reference to the previous convictions was not presently agreed. At that time Mr Gardiner advised the Crown that he had discussed the matter with his client and that further consideration would be given to the matter when he next met with him. Mr Gardiner’s diary entry for 3 March 2019 then records a meeting with Mr Andrews that included discussion of “s 9”.
• [71] Later that same night, Mr Gardiner advised the prosecutor that the defence would “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 of the signed s 9 notice to Mr Andrews with the accompanying note: “[a]mended as we discussed last two days. They have also omitted Section 3, the reference to chain of possession.” Mr Andrews replied: “Thanks”. We are satisfied there is no merit in this ground of appeal.

Mr Andrews’ decision to give evidence

• [72] Mr Andrews also asserts that his decision to give evidence was not fully informed and that there was a lack of written instructions recording this decision setting out relevant advice. However, Mr Andrews has not provided any evidence in support of this ground of appeal. He does not refer in his affidavit to his decision to give evidence and there is no evidence that his choice to do so was made without advice or was one that he would not otherwise have made. Furthermore, there is no complaint that his decision to give evidence was an error or that the absence of advice led 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 on which trial counsel’s failure to follow specific instructions will generally give rise to a miscarriage of justice.^[28] There is no evidence that Mr Gardiner failed to follow Mr Andrews’ instructions regarding his wish to give evidence in his defence, and he did in fact give evidence. This ground must fail.

Miscellaneous points

• [74] A number of other issues were raised regarding the conduct of the trial that were not seriously pursued in oral argument before us, and for good reason given their worth.
• [75] Mr Andrews claimed that Mr Gardiner failed to call a Mr Scott Wilson as a defence witness, who was a person involved in a number of vehicle sales. Mr Andrews claims he asked Mr Gardiner on a number of occasions to contact this person to give evidence at his trial and that he is unaware why this did not occur. In fact, Mr Wilson was 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 but no affidavit from this person has been provided.
• [76] Mr Andrews is also critical of Mr Gardiner for not obtaining evidence regarding his stays at the serviced apartments. Mr Andrews says there is evidence he stayed at the apartments on occasions following the period that he is alleged not to have made payment, and that the issue of non-payment was never raised by the apartments’ manager. We have already referred to this issue in our discussion of the cross‑examination of Alexandra at [62] above. Mr Gardiner responded in his affidavit by noting that Mr Andrews was best placed to provide such evidence of his stays at the apartments in the form of receipts or credit card payments, which Mr Andrews has failed to produce. In any event, we doubt the relevance of such evidence in light of the testimony of the apartments’ manager that Mr Andrews never paid for the accommodation (which formed the basis of charge 25, being one of the charges of obtaining by deception).
• [77] Mr Andrews also complains of Mr Gardiner’s failure to explore with a defence witness, 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 to him. Mr Andrews states that the reason for these meetings and the discussion of the debt was because he and Robert “were in business together”. Leaving to one side the fact that any such evidence of Robert and Mr Andrews being in business together would 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 to what 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 with Robert he said he was not in business with Ray etc etc, but when Ray had any problems then Robert would help out [where] he could.

Clearly, further examination of Mr Hobbs regarding Mr Andrews’ relationship with Robert would have been fraught with risk.

• [79] Mr Andrews also claims that he asked Mr Gardiner about “adducing industry evidence about working with the VIN numbers, and the standard practi[c]e of altering them so as to preserve commercial competition between traders”. Mr Andrews complains that no witnesses were questioned or briefed regarding this type of evidence. However, Mr Andrews has provided no evidence on his appeal of any such commercial 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 adducing such “industry evidence”. In any event, we consider an explanation along the lines provided to Mr Gardiner by Mr Andrews himself, of omitting a numeral from the VIN number so that a buyer could not ascertain the vehicle’s original purchase price or where it had been bought was unlikely to be accepted by a jury as a legitimate or tenable 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 and questioned its rationale.
• [80] Finally, Mr Andrews asserts that Mr Gardiner had failed to discuss with him a resolution offer made by the Crown shortly before the trial on 27 February 2019 based on pleas to seven representative charges. However, the record shows that Mr Gardiner forwarded the Crown’s email to him on the same day, noting “as discussed”. In any event, Mr Andrews’ complaint is at odds with his oral evidence at the hearing of the appeal that he had no intention of pleading guilty. A similar irrelevant criticism is made of Mr Gardiner’s failure to secure a second sentence indication but, again, this cannot advance his appeal when regard is given to his stance that 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 by Mr Andrews in support of his conviction appeal, we are not satisfied that any of the grounds, either individually or in combination, have resulted in a miscarriage of justice. Particular reliance was placed on the failure to prepare a brief of evidence and inadequate cross-examination of Robert, which it was submitted resulted in Mr 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 to any real risk of a different outcome, nor, as was primarily contended on behalf of Mr Andrews, that he did not receive a fair trial.^[29] We do not consider the multitude of other issues raised by Mr Andrews on his appeal have merit. The appeal against conviction must therefore be dismissed.

Sentence appeal

• [82] Before dealing with the substance of the sentence appeal, we deal with a further complaint made by Mr Andrews against his trial counsel. A concern is raised about Mr Gardiner withdrawing as counsel and no longer acting for Mr Andrews at sentencing. This arose because, prior to the sentencing date, Mr Gardiner was instructed to seek an adjournment in order for Mr Andrews to retrieve files from his previous counsel that related to his 2013 and 2017 convictions. Mr Andrews’ instructions were that if an adjournment was not granted he would represent himself at sentencing. The Judge declined to adjourn the sentencing, which it should be noted took place some three months after the jury’s verdicts.
• [83] We accept that it was regrettable that a situation developed where Mr Andrews was unrepresented at his sentencing and that the Court did not have the benefit of written submissions prepared on behalf of Mr Andrews. However, that was Mr Andrews’ choice. In the event, Mr Andrews directly addressed the Court and Mr Gardiner was also permitted to make oral submissions at sentencing.
• [84] Ms Taylor-Cyphers submits that, as a result of how matters unfolded, there was material that may have been able to be produced in mitigation in relation to Mr Andrews’ personal circumstances and sentencing authorities brought to the attention of the Court that could have assisted Mr Andrews. Mr Andrews maintains that he requested a cultural report, pursuant to s 27 of the Sentencing Act 2002, 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 other information relating to Mr Andrews been put before us in addition to that available to the sentencing Court. Insofar as Mr Andrews complains that certain sentencing authorities were not taken into account by the Judge, they are now able to be reviewed on 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 some $500,000, as the relevant aggravating features of the offending. An uplift of one year was imposed to take into account Mr Andrews’ previous convictions before a six month deduction was made for his age (69 years) and health, reflecting the harsher effect a custodial sentence would have on Mr Andrews compared to a younger and healthier person. An end sentence of six years and six months’ imprisonment was imposed.^[31]
• [86] The appeal against sentence now largely rests on two grounds. First, that the 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 prepared ahead of sentencing and that, although he requested a breakdown of the quantum of the loss he was alleged to have caused, no “record of quantum” was provided at sentencing. Mr Andrews claimed this is of some significance because some of the 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 actual loss suffered by the particular victim.
• [88] We do not consider the Judge erred in his approach to estimating the size of the loss caused by Mr Andrews’ offending. The Crown estimated losses somewhere in the vicinity of $700,000. Mr Andrews disputed that figure at his sentencing and argued the loss was not as great. The Judge made his own assessment based on the evidence given at trial. It was noted that the scale of deposits into bank accounts during the course of his offending was some $775,000, and that losses may have been less than that sum because on some occasions (although rare) vehicles had been supplied. The Judge acknowledged that the extent of the loss and harm caused by Mr Andrews was difficult to determine accurately, but he considered that significant harm had been caused. The Judge concluded the monetary loss to individuals was likely to be “something in the vicinity of $500,000”.^[32]
• [89] We accept that, in the absence of an agreed figure, it was for the Judge to assess the harm caused by the offending based upon the trial evidence.^[33] There was no realistic prospect of Mr Andrews being able to pay reparation, and the absence of a schedule which is ordinarily compiled for the purpose of such a potential sentencing option was understandable. The Crown has pointed us to examples of the evidence the Judge heard about losses suffered by the victims. Mr Rishi, who paid $290,500 for 12 vehicles, did not receive any; Mr Wilson paid $183,000 for three vehicles, of which 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 loss was provided by other witnesses who dealt with Mr Andrews.
• [90] Mr Andrews has provided no evidence to suggest the Judge’s assessment of the value of loss in the region of $500,000 was in error, or that the Judge failed to appreciate the difference between the amount Mr Andrews was calculated to have received (around $775,000) and the victims’ actual monetary losses after taking into account 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 was acknowledged that a quantum of loss is only one factor in assessing the appropriate penalty, the argument that the starting point was too high rested solely on an analysis of sentencing decisions that compared the length of the sentence imposed to the size of loss caused by the offending.^[34] Despite the authorities referred to us, we do not consider the Judge erred in imposing a six-year starting point. The Judge took into account relevant factors when assessing culpability for fraud offending.^[35] These included the significant extent of the harm caused to persons who were misled by Mr Andrews, the premeditated and concerted nature of the offending that occurred over a four year period and the involvement of multiple victims who Mr Andrews deceived and misled.
• [92] The Judge referred to a number of cases from which he drew guidance in setting the starting point. R v Joshi involved similar fraudulent conduct relating to the importation of vehicles, the exploitation of business relationships and significant losses to numerous victims.^[36] It is not suggested that the parallels drawn by the Judge between that case and Mr Andrews’ offending were inappropriate. In that case a starting point of six years and six months’ imprisonment was adopted.^[37] He also referred to Mount v R, another sentencing decision that involved a greater number of charges and more victims that resulted in a comparable level of loss ($500,000).^[38] There, a six-year starting point was also adopted for dishonesty offending. This Court took no issue with the starting point adopted in that case on appeal.^[39]
• [93] An important aggravating aspect of Mr Andrews’ offending that was required to be reflected in the starting point was that it was committed while he was trading as a bankrupt person, wilfully misleading the Official Assignee, and concealing property. As submitted by Mr Davie, who presented this aspect of the argument on behalf of the Crown, Mr Andrews’ conduct in that regard was towards the more serious end of the spectrum, involving the receipt of substantial sums of money and concealment of some $775,000.
• [94] We acknowledge that Mr Andrews is able to point to other cases of fraud offending which involve very large losses, sometimes running into the millions of dollars, where lower or similar starting points were adopted. However, as already noted, 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 that demonstrated Mr Andrews’ high level of culpability, including the duration and breadth of his offending as an undischarged bankrupt.
• [95] There is no complaint regarding the various adjustments made from the starting point, which we consider were in range. We find the final sentence imposed was available 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

---

^[1] R v Andrews [2019] NZDC 12700 [Sentencing notes].

^[2] These charges related to Mr Andrews’ involvement in the management or control of companies involved 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 of a business whilst bankrupt without the consent of the Official Assignee, concealing property from the Official Assignee, obtaining credit without disclosing his status as an undischarged bankrupt and 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).

^[5] Companies Act ss 382(4) and 373(4) (maximum penalty: five years’ imprisonment or a fine not exceeding $200,000).

^[6] These charges included being involved in the management or control of a business whilst bankrupt and without the consent of the Official Assignee, concealing property from the Official Assignee and charges of misleading the Official Assignee. Mr Andrews was sentenced to 10 months’ imprisonment: R v Andrews [2017] NZDC 28398.

^[7] 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, was withdrawn 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, seeking payment of $14,250 (charges 20 and 21); on 25 March and 11 April 2016, Mr Andrews sent invoices 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 to Mr 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 $5,000 fine).

^[12] Sections 420(2)(a) and 428 (maximum penalty: three years’ imprisonment and/or fine not exceeding $10,000).

^[13] Crimes Act 1961, ss 240(1)(a) and 241(a) (maximum penalty: seven years’ imprisonment).

^[14] Sections 240(1)(b) and 241(a) (maximum penalty: seven years’ imprisonment).

^[15] 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 R CA159/06, 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 16, at [66].

^[18] R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78].

^[19] R v Condon, above n 18, 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]; and Wiley v R, above n 16, at [35].

^[20] Hall v R, above n 16, at [65].

^[21] 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 21, at [16].

^[23] Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [191].

^[24] At [191].

^[25] Hall v R, above n 16, at [74]–[75].

^[26] As previously noted, charge 4 had been dismissed under s 147 of the Criminal Procedure Act by this point in time.

^[27] Evidence Act 2006, s 9.

^[28] 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].

^[29] Criminal Procedure Act, s 232(2)(c) and (4).

^[30] Sentencing notes, above n 1, at [21].

^[31] At [27].

^[32] At [7].

^[33] Sentencing Act 2002, s 24(1).

^[34] Aryasomayajula v R [2011] NZCA 633, where a $4 million loss relating to falsified property purchase documents attracted a starting point of five years’ imprisonment that was upheld on appeal; Serious Fraud Office v Ellis HC Auckland CRI-2005-404-15827, 18 July 2006, where a starting point of five years’ imprisonment was adopted for deception charges resulting in losses of $460,000 over a two year period; R v Colosimo [2012] NZCA 60, where a starting point of four years’ 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 of imprisonment coupled with a minimum period of imprisonment of three years for offending that involved a total loss of $19.1 million, and a consistent pattern of deceit and forgery.

^[35] R v Varjan CA97/03, 26 June 2003.

^[36] R v Joshi [2015] NZHC 2215.

^[37] At [23].

^[38] Mount v R [2015] NZCA 489.

^[39] At [95].