Bublitz v The Queen - [2019] NZSC 138

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 91/2019
[2019] NZSC 138

BETWEEN	PAUL NEVILLE BUBLITZ Applicant
AND	THE QUEEN Respondent

SC 92/2019
BETWEEN	BRUCE ALEXANDER MCKAY Applicant
AND	THE QUEEN Respondent

Court:	Winkelmann CJ, Glazebrook and Ellen France JJ
Counsel:	W P Jeffries for Applicant in SC 91/2019 D H O’Leary for Applicant in SC 92/2019 R K Thomson for Respondent
Judgment:	9 December 2019

JUDGMENT OF THE COURT

The applications for leave to appeal are dismissed.

____________________________________________________________________

REASONS

Introduction

The applicants, Mr Bublitz and Mr McKay, were convicted after a Judge‑alone trial before Toogood J of charges of theft by a person in a special relationship, an offence under s 220 of the Crimes Act 1961.[1] Mr Bublitz was convicted of four charges under s 220 (charges 10–13)[2] and Mr McKay was convicted as a party to three charges (charges 10–12). Their appeals against these convictions were dismissed by the Court of Appeal.[3] They seek leave to appeal to this Court.

Background

[1]R v Bublitz [2019] NZHC 222 [Verdicts judgment].

[2]Mr Bublitz was acquitted of a number of other charges.

[3]Bublitz v R [2019] NZCA 364 (Gilbert, Wylie and Thomas JJ) [CA judgment]. The Court allowed Mr Bublitz’s conviction appeal in part, setting aside convictions on charges 14 and 15 (making a false statement as a promoter in a prospectus, an offence under s 242 of the Crimes Act 1961). Mr Bublitz’s appeal against sentence was allowed.

The factual background is set out in detail in the Court of Appeal.[4] The summary which follows of the key points from that material will suffice for present purposes.
[4]At [1]–[22].
Mr Bublitz had a property development business owned through various companies which were part of a group known as the Hunter Capital Group (Hunter). The various arrangements at issue at trial were put in place to take advantage of market conditions affecting commercial property developments in New Zealand after the 2008 global financial crisis (GFC). In particular, Mr Bublitz sought to take advantage of the Crown Retail Deposit Guarantee scheme to make his portfolio more attractive to investors. On the Crown case, the steps taken were a response to serious cashflow problems being experienced by Mr Bublitz’s ventures in the wake of the GFC.
The facts involve interaction between two companies which Mr Bublitz had effective control over during the period, Mutual Finance Ltd (Mutual) and Viaduct Capital Ltd (Viaduct). The Crown case was that Mr Bublitz knowingly misapplied public funds raised by Mutual through a series of transactions between Mutual and Viaduct which amounted to related party transactions under a deed of guarantee dated 8 December 2009 between Mutual and the Crown (Mutual Crown guarantee).[5] There were various requirements under the Mutual Crown guarantee relating to related party transactions which Mr Bublitz did not comply with. Its case against Mr McKay, who was the Chief Financial Officer and Director of Viaduct at the relevant times, was that he knew all of 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 The Queen

Details

AGLC: Bublitz v The Queen [2019] NZSC 138
Case: [2019] NZSC 138
Decision Date: 9 December 2019

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Paul Neville Bublitz and Bruce Alexander McKay, both convicted in the High Court of New Zealand, sought leave to appeal against their convictions to the Supreme Court. Bublitz was convicted of four charges of theft by a person in a special relationship under s 220 of the Crimes Act 1961, and McKay was convicted as a party to three of those charges. Their appeals against these convictions were dismissed by the Court of Appeal. The applicants argued that the Court of Appeal erred in determining which definition of "control" to adopt in the Mutual Crown guarantee, and they contended that the principle of strict construction applicable to penal statutes should have been applied. They also argued that the Court of Appeal should have ordered a stay of proceedings given the delays involved. McKay sought to challenge the decision of the Court of Appeal upholding the Judge's findings he had the requisite knowledge.

The Supreme Court held that the applicants' proposed appeal did not raise any question of general or public importance. The Court found that the exercise was not one of statutory interpretation but rather one of the construction of the Mutual Crown guarantee, a question confined to the particular facts. The Court also found that the arguments based on a lack of certainty were all evaluated by the Court of Appeal and nothing raised by the applicants called into question that careful assessment. Whether a stay of proceedings should have been ordered was also a fact-specific inquiry. The Court of Appeal applied the principles in Wilson v R and found there was no material change of circumstance justifying revisiting the decision of Lang J. In terms of McKay's knowledge, the Supreme Court found that there were concurrent factual findings on this point. For the same reasons, nothing raised by the applicants gave rise to the appearance of a miscarriage of justice. The applications for leave to appeal were dismissed.

No orders as to costs were made.

Orders