Bublitz v R - [2019] NZSC 139

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 93/2019
[2019] NZSC 139

BETWEEN	PAUL NEVILLE BUBLITZ Applicant
AND	THE QUEEN Respondent

SC 94/2019
BETWEEN	LANCE DAVID MORRISON Applicant
AND	THE QUEEN Respondent

Court:	William Young and Ellen France JJ
Counsel:	R S Reed QC and H M Z Ford for Applicant in SC 93/2019 D H O’Leary for Applicant in SC 94/2019 R K Thomson for Respondent
Judgment:	9 December 2019

JUDGMENT OF THE COURT

A The applications for leave to appeal are dismissed.

B There is no order as to costs.
____________________________________________________________________

REASONS

Introduction

The applicants, Mr Bublitz and Mr Morrison, initially faced a number of criminal charges arising out of the collapse of two finance companies, Viaduct Capital Ltd and Mutual Finance Ltd.[1] Their trial was aborted by Woolford J after nine months because of disclosure failures by the Crown.[2] Costs were sought with regard to the aborted trial. Woolford J awarded Mr Morrison $75,000 under s 5 of the Costs in Criminal Cases Act 1967 (the 1967 Act) and made an award of $50,000 under s 364 of the Criminal Procedure Act 2011 (to be split between the four defendants and the Ministry of Justice for the Court).[3] The Court of Appeal dismissed the appeals of both applicants against the quantum of their awards (the costs appeals).[4]
[1]There were charges under ss 220 and 242 of the Crimes Act 1961; respectively, theft in a special relationship and false statements by promoters, as well as s 377 of the Companies Act 1993; false statements. Four others were also charged, one of whom pleaded guilty to all charges; a second man died shortly after he was charged, and two did not appeal the costs decision.
[2]R v Bublitz [2017] NZHC 1059.
[3]R v Bublitz [2018] NZHC 373 [Costs decision].
[4]Bublitz v R [2019] NZCA 379 (Kós P, Winkelmann and Williams JJ) [CA judgment].
The Crown chose not to proceed against Mr Morrison again and the remaining charges against him were dismissed. It did proceed against Mr Bublitz on some of the charges and he was convicted after a Judge‑alone trial on four charges of theft by a person in a special relationship and two charges of making a false statement. His appeal to the Court of Appeal on the latter two charges was allowed.[5]
[5]Bublitz v R [2019] NZCA 364.
This judgment deals with the applications for leave to appeal against the dismissal of the costs appeals. Judgment in the application by Mr Bublitz for leave to appeal against conviction on the charges of theft by a person in a special relationship is being delivered contemporaneously.[6]

Background

[6]R v Bublitz [2019] NZSC 138.

The background is set out in the judgment of the Court of Appeal and need not be repeated here.[7] It is sufficient to refer to the key points in the judgments in the Courts below.
[7]CA judgment, above n 4, at [4]–[14].
The…

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 Bublitz v R

Details

AGLC: Bublitz v R [2019] NZSC 139
Case: [2019] NZSC 139
Decision Date: 9 December 2019

CaseChat Overview and Summary

The applicants in this case, Mr Bublitz and Mr Morrison, sought leave to appeal against the dismissal of their costs appeals. The appeals arose from the aborted trial related to charges under the Crimes Act 1961 and the Companies Act 1993. Their initial trial was aborted due to disclosure failures by the Crown. The trial was halted after nine months and costs were sought in relation to the aborted trial. The primary legal issue before the court was whether the appeals should be allowed given the specific circumstances of the case and the discretion exercised by the courts below.

The court found that the applications did not raise any questions of general or public importance. The reasoning of the Court of Appeal was careful and thorough, and there was no basis to revisit their assessment. The court was not persuaded that the Court of Appeal had erred in principle in its conclusions as to the purpose of the relevant statute and in its assessment of the award as against the statutory test. The court also noted that the applicants had benefited from sentence reductions due to the delays and wasted costs, albeit in part, to the failures of disclosure and the aborted initial trial.

The applications for leave to appeal were dismissed. The court made no order as to costs. This decision highlights the importance of discretion in awarding costs under the relevant statutes and the limited circumstances in which the Supreme Court will allow appeals against the dismissal of costs appeals.

Orders