The saga of Allan Hubbard has taken a bizarre twist, with lawyers acting for the troubled financier submitting unsolicited brain scan images to the Serious Fraud Office.
But legal and medical specialists says they are astonished by that and suspect the use of an MRI brain scan is part of an attempt to prove Mr Hubbard is not fit to stand trial.
Both Serious Fraud Office director Adam Feeley and Mr Hubbard’s lawyer, Russell McVeagh partner Mike Heron, have indicated a decision on whether the Timaru accountant will face charges over Aorangi Securities is likely to be made late next week.
NBR understands the Serious Fraud Office has not requested any medical information about Mr Hubbard.
Asked if he was sending MRI scan images of Mr Hubbard to the SFO, Mr Heron said: “I wouldn’t be able to make any comment on that.”
Rumours of a brain scan being used by the defence, since confirmed through independent sources by the National Business Review, this week circulated among Mr Hubbard’s supporters.
Travelling salesman Paul Carruthers, who has appointed himself an unofficial spokesman for Mr Hubbard, said the move was “a slippery road that we do not want to go down under any circumstances” as it raised the prospect of an end-game.
“What if they say he is not fit for trial? Therefore he can’t run a company [and] it allows them to strike him off the companies register while bypassing the courts,” Mr Carruthers said.
Possible defence strategies
Otago University professor of law Kevin Dawkins said the use of MRI scans in a fraud defence was unusual.
“He’s getting on in years. It could be aimed at possibly proving his capacity to stand trial.”
Professor Dawkins said the Bill of Rights Act and the solicitor-general’s prosecution guidelines could be applicable.
The guidelines state that even if there is sufficient evidence likely to result in a conviction, a case should be less likely to be taken to trial if the defendant was suffering “significant mental or physical ill-health” at the time of the offending.
Mr Hubbard, 82, has suffered a brush with cancer and is on regular dialysis treatment for malfunctioning kidneys.
Professor Dawkins said the MRI scan could also be part of a negotiation with the SFO: “The only other place where it might be of relevance is a plea bargaining process They could be looking for reduced charges or fewer charges and asking ‘please don’t put it to trial.’ I’ve done this in my previous capacity as a barrister.”
But there were risks to this strategy, he said. Being unfit for trial would count against Mr Hubbard’s stated intention to exit statutory management and return to running his financial empire.
“Quite so but that’s water under the bridge now. From his perspective, he may be conceding his ability to be a director,” Professor Dawkins said.
MRI scans not enough
Otago University’s senior lecturer in neurology Dr Graeme Hammond-Tooke said MRI scans were unreliable if used in isolation. “Mostly MRIs show structure rather than function. As a rule it doesn’t tell you much how the brain is working,” he said.
Generally only severe problems like tumours showed up on MRI scans, he said: “I guess if somebody had something wrong on their brain scan it would certainly be a mitigating factor.”
Mr Hammond-Tooke said the use of an MRI scan by Mr Heron was probably only part of the defence: “As a medical person, if you want evidence that somebody’s not functioning well, rather than presenting an MRI a neuropsychology test would be better. That’s what I would do if I were a defence lawyer. The MRI, if it was abnormal, would be useful supporting evidence.”
When Mr Heron was told legal and medical experts had expressed astonishment at the dramatic turn of events he urged patience and said: “Wait and see, wait and see.”
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