Blackwood v R - [2020] NZCA 504

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA187/2019
[2020] NZCA 504

BETWEEN	RICHARD TIMOTHY BLACKWOOD Appellant
AND	THE QUEEN Respondent

Court:	Gilbert, Thomas and Wylie JJ
Counsel:	M A Corlett QC and J D Ryan for Appellant D G Johnstone for Respondent
Judgment: (On the papers)	16 October 2020 at 9.30 am

JUDGMENT OF THE COURT

The application for costs is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

Following a lengthy Judge-alone trial in the High Court at Auckland, Mr Blackwood was convicted on four charges (charges 10–13) of theft by a person in a special relationship.[1] His appeal against these convictions was allowed by this Court in a judgment delivered on 16 August 2019.[2] Mr Blackwood now seeks indemnity costs for the appeal in the sum of $76,526.75. The appeal occupied one day of hearing time. Mr Blackwood contends that costs should be awarded in full as the prosecution ought never to have been brought against him, there being no evidence to prove one of the elements of the charges.
[1]R v Bublitz [2019] NZHC 222 [Verdicts judgment].
[2]Bublitz v R [2019] NZCA 364, [2019] 3 NZLR 533 [Appeal judgment].
The Crown opposes the making of any order for costs.
The relevant background is summarised in our judgment on the substantive appeal and need not be repeated here. Briefly, Paul Bublitz, Bruce McKay and Mr Blackwood were all charged with theft by a person in a special relationship, an offence under s 220 of the Crimes Act 1961. It was alleged that Mr Bublitz knowingly misappropriated funds raised from the public by Mutual Finance Ltd (Mutual), a company he controlled, in breach of related party restrictions in a deed of guarantee between Mutual and the Crown (the Crown guarantee). Messrs McKay and Blackwood were charged as parties to this offending.
Charges 10–12 arose out of the purchase by Mutual of loans made by Viaduct Capital Ltd (Viaduct) to various companies in the Hunter group of companies through which Mr Bublitz undertook various property development projects. Charge 13 concerned advances made by Mutual to one of the Hunter group companies. Toogood J was satisfied these were all related party transactions because Mr Bublitz controlled Mutual, Viaduct and Hunter for the purposes of the Crown guarantee at the relevant times.[3] The Judge was satisfied that Mr Bublitz knowingly breached the restrictions on related party transactions in the Crown guarantee when entering into these transactions.[4]
[3]Verdicts judgment, above n 1, at [229]–[265].
[4]At [269]–[271] and [281]–[291].
Messrs McKay and Blackwood were convicted as parties on these charges (save that Mr McKay did not face charge 13). Mr McKay was a director and the chief financial officer of Viaduct and had a central role in the administration of both Viaduct and Mutual. He also owned 51 per cent of the shares in Phoenix Finance Holdings Ltd (Phoenix) which wholly owned Viaduct. Mr Blackwood played a lesser role. He was engaged…

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 Blackwood v R

Details

AGLC: Blackwood v R [2020] NZCA 504
Case: [2020] NZCA 504
Decision Date: 16 October 2020 at 9.30 am

CaseChat Overview and Summary

Blackwood v R is a case concerning the application for indemnity costs by the appellant, Richard Timothy Blackwood, following his successful appeal against convictions on four charges of theft by a person in a special relationship. The appeal was heard by the Court of Appeal of New Zealand, with Gilbert, Thomas, and Wylie JJ presiding. The primary legal issue was whether the prosecution should have been brought against Mr Blackwood in the first place, and if so, whether costs should be awarded on an indemnity basis. Mr Blackwood argued that there was no evidence to prove one of the elements of the charges, while the Crown opposed the making of any order for costs.

The court examined the background of the case, including the initial charges, the various applications for a stay of proceedings, and the lengthy trial process. It was noted that despite significant scrutiny over the five-year period, it was never suggested that the charges against Mr Blackwood lacked a sufficient evidential foundation. The court found that the proper inference to draw from the proven facts was one on which reasonable minds might differ, and that the prosecution was not overreached or misconducted. The court concluded that there was a proper basis for the charges to have been brought against Mr Blackwood, and that there was nothing out of the ordinary in the way the appeal was conducted that would justify an award of costs.

The court declined the application for costs, stating that the underlying premise of Mr Blackwood's costs application was not made out, and that there was nothing that could justify an award of costs for the appeal. The court emphasized that costs in criminal cases are seldom awarded, as criminal proceedings are pursued by the prosecuting agency in the public interest. The court also noted that the mere fact that the prosecution was properly brought and continued does not create a presumption that costs to a defendant should be refused. However, in this case, the court found that the prosecution was not improperly or unreasonably conducted, and that there was no basis for awarding costs on the appeal.

Orders