Bublitz v Solicitor-General - [2020] NZHC 2476

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2014-004-002293

[2020] NZHC 2476

BETWEEN
PAUL NEVILLE BUBLITZ

Applicant

AND

SOLICITOR-GENERAL (THE CROWN)

Respondent

Hearing: 2 September 2020

Appearances:

D Johnstone for the Crown

R Reed QC and Y Wang for the Respondent

Judgment:

22 September 2020

JUDGMENT OF WOOLFORD J

[As to costs]

This judgment was delivered by me on Tuesday, 22 September 2020 at 3:00 pm.

Registrar/Deputy Registrar

Solicitors: Beca & Co (R Beca), Auckland for the Applicant
Meredith Connell (Office of the Crown Solicitor), Auckland Counsel: R Reed QC, Auckland

BUBLITZ v SOLICITOR-GENERAL (THE CROWN) [2020] NZHC 2476 [22 September 2020]

[1] Mr Paul Bublitz applies for costs under the Costs in Criminal Cases Act 1967 (CCCA) in respect of charges he faced during an aborted first trial, which were either dismissed during the first trial or on which he was acquitted following a second trial. He says the charges were inappropriately brought and pursued by the Crown because they lacked underlying merit. He also says the nature and number of the dismissed and acquitted charges was disproportionate to the actual scope of criminality, which imposed an unfair cost burden on the defence.

[2] Mr Bublitz’s application for costs is opposed by the Crown. It has filed its own application under the CCCA seeking costs in the same amount against Mr Bublitz.

Earlier costs judgment

[3] Mr Bublitz applied for costs following the aborted first trial, but before the second trial. I awarded Mr Bublitz $10,000 in respect of a disclosure failure under s 364 of the Criminal Procedure Act 2011 (CPA), but refused costs under the CCCA as I considered that the appropriate time to hear Mr Bublitz’s CCCA application was after all charges against him had been heard and determined.1 The Court of Appeal subsequently dismissed an appeal from my decision.2 The Supreme Court then refused leave to appeal.3

Charges of which Mr Bublitz was convicted

[4] The second Judge-alone trial concluded on 5 February 2019 with verdicts of guilty against Mr Bublitz on six charges. He was acquitted on six charges.4 Of the six charges on which he was convicted, four were theft by a person in a special relationship. Mr Bublitz had control over investor funds in Mutual Finance Ltd (Mutual) and knew that he could only deal with the funds in accordance with the requirements of the Crown under a replacement Crown guarantee. Nonetheless, he intentionally dealt with the funds otherwise than in accordance with the Crown’s requirements when he arranged for the purchase by Mutual of a number of loans from Viaduct Capital Ltd (Viaduct) or arranged for loan advances to be made from Mutual

1      R v Bublitz [2018] NZHC 373 [Earlier costs judgment (HC)].
2      Bublitz v R [2019] NZCA 379 [Appeal against earlier costs judgment (CA)].
3      Bublitz v R [2019] NZSC 139 [Leave to appeal against earlier costs judgment (SC)].
4      R v Bublitz [2019] NZHC 222 [Verdicts judgment…

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 Solicitor-General

Details

AGLC: Bublitz v Solicitor-General [2020] NZHC 2476
Case: [2020] NZHC 2476
Decision Date: 22 September 2020

CaseChat Overview and Summary

Paul Bublitz, an applicant, filed an application for costs under the Costs in Criminal Cases Act 1967 (CCCA) against the Solicitor-General (the Crown). Bublitz was charged with multiple counts of theft by a person in a special relationship and making or concurring in making a false statement in a prospectus. Bublitz faced the charges during an aborted first trial, which were either dismissed during the first trial or on which he was acquitted following a second trial. Bublitz claimed that the charges were inappropriately brought and pursued by the Crown because they lacked underlying merit and that the nature and number of the dismissed and acquitted charges was disproportionate to the actual scope of criminality. The Crown opposed Bublitz's application for costs and filed its own application under the CCCA seeking costs against Bublitz. The primary legal issue in this case was whether Bublitz was entitled to an award of 75 per cent of the costs incurred by him towards his defence, which he claimed were attributable to the 36 charges which were dismissed under s 147 of the CPA during trial or the eight charges (six by Toogood J and two by the Court of Appeal) on which he was acquitted following the final outcome of the second trial. The court considered the relevant provisions of the CCCA and the circumstances of the case, including the nature of the charges, the evidence presented, and the outcome of the trials. The court concluded that Bublitz's application for costs under the CCCA should be dismissed for three major reasons. Firstly, a costs award would "sit uncomfortably with [the] verdicts of guilty," namely, the four theft convictions entered against Bublitz. Secondly, no reparation was ordered or contemplated at sentencing because of Bublitz's impecuniosity. Thirdly, Bublitz's costs had already been indirectly taken into account in the 19-month discount on sentence he was granted by the Judge. Therefore, the court dismissed Bublitz's application for costs under the CCCA and also dismissed the Crown's application for costs under the CCCA, as it was contingent on a successful application by Bublitz.

Orders