Legal Research
Cases
McLeod v R

McLeod v R

Case [2016] NZHC 221 19 February 2016

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV 2011-076-1148 [2016] NZHC 221

BETWEEN
LACHIE JOHN MCLEOD

Applicant

AND

THE QUEEN Respondent

Hearing: 2 November 2015

Counsel:

J H M Eaton QC for Mr McLeod
C R Carruthers QC and P W Gardyne for Crown

Judgment:

19 February 2016

JUDGMENT OF HEATH J

This judgment was delivered by me on 19 February 2016 at 12 noon pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar

Solicitors:
Serious Fraud Office, Auckland Meredith Connell, Auckland Counsel:
J H M Eaton QC, Christchurch

MCLEOD v R [2016] NZHC 221 [19 February 2016]

CONTENTS

The application  [1] Context  [2] Costs in criminal cases: legal principles  [8] The investigation and the prosecution
(a)      Introduction  [12]

(a) The Crown theory of the case [39]

(b) Count 11 [41]

(c) Count 10 [44]

(d) Count 7 [47]

(e) Count 8 [51]

(f) Count 12 [56]

(b)      The investigation  [15] (c)      The prosecution  [32] The charges

Relevance of dismissal of s 347 application  [63] My approach to the costs application  [67] Category A charges
(a)      Count 11  [70]

(a) Count 8 [91]

(b) Count 12 [93]

(c) Category B charges: should costs be ordered? [98]

(b)      Count 7  [81] (c)      Category A charges: should costs be ordered?  [87] Category B charges

Category C charge: Count 10 [104] Quantum [114] Result ` [125]

The application

[1] Mr Lachie McLeod, the former Chief Executive Officer of South Canterbury Finance Ltd (South Canterbury), seeks costs from the Crown, under s 5 of the Costs in Criminal Cases Act 1967 (the Act).1 The application is made in the aftermath of a lengthy and complex trial arising out of the financial demise of South Canterbury. Mr McLead was acquitted on all charges following a Judge-alone trial over which I presided in 2014.2

Context

[2] From 1 October 2003 until December 2009, Mr McLeod was employed as

Chief Executive Officer of South Canterbury. The company was placed in

1 Set out at para [8] below.
2 R v Sullivan [2014] NZHC 2500 (verdicts and summary of reasons) and [2014] NZHC 2501 (reasons for verdicts).

receivership on 31 August 2010. At that time, there was a deficiency to investors of about $1.6 billion. Those investors were paid 100 cents in the dollar out of taxpayers’ funds. The payments were made to meet the Crown’s obligations under a deed (the Guarantee Deed) by which certain deposits were guaranteed under the Non-Bank Retail Deposit Takers’ Scheme (the Guarantee Scheme) established in
October 2008.3

[3] South Canterbury’s collapse was followed by an investigation by the Serious Fraud Office. Although incorporating the conduct of other officers and employees, it is fair to say that, at least initially, the investigation was focussed primarily on the activities of Mr Allan Hubbard, the chairman of directors. After Mr Hubbard died in a motor vehicle accident on 2 September 2011, the investigation continued.

[4] Mr Adam Feeley, the then Director of the Serious Fraud Office (the Director), decided…

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 McLeod v R

Details

AGLC: McLeod v R [2016] NZHC 221
Case: [2016] NZHC 221
Decision Date: 19 February 2016

CaseChat Overview and Summary

Lachie John McLeod sought costs from the Crown under section 5 of the Costs in Criminal Cases Act 1967. The application arose out of a lengthy and complex trial that arose out of the financial collapse of South Canterbury Finance Limited. McLeod was acquitted on all charges. The trial judge dismissed McLeod's application for discharge on the basis of evidential insufficiency on 8 August 2013. McLeod was acquitted on all charges on 14 October 2014. The trial judge found that McLeod was not guilty of the charges because the Crown had not proved them beyond reasonable doubt. The judge identified three categories of charges for the purpose of determining the application: Category A charges in respect of which McLeod was found not guilty because the Crown had not proved the charges beyond reasonable doubt (counts 7 and 11); Category B charges on which McLeod was acquitted in circumstances that more nearly resembled a conclusion of innocence (counts 8 and 12); and Category C charge, the major charge, in respect of the Guarantee Scheme (count 10). The trial judge concluded that an order for costs should be made in relation to McLeod's acquittals on counts 8 and 10. The trial judge took the view that the investigation into the Guarantee Scheme charge was inadequate. The failure to obtain evidence from the decision-maker led to the conclusion that the Crown did not have sufficient evidence to support a conviction of McLeod in the absence of contrary evidence. The trial judge awarded McLeod $225,000 for his acquittal on count 10, and a modest uplift of $15,000 in respect of count 8, making the total award $240,000. McLeod was awarded costs of $240,000 to be paid by the Crown out of the consolidated fund.

Orders