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R v Bublitz

R v Bublitz

Case [2018] NZHC 373 9 March 2018

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2014-004-002293 [2018] NZHC 373

THE QUEEN

v

PAUL NEVILLE BUBLITZ BRUCE ALEXANDER MCKAY

RICHARD TIMOTHY BLACKWOOD LANCE DAVID MORRISON

Hearing: 28 February and 1 March 2018

Appearances:

B Horsley and D Johnstone for the Crown R Reed QC and H Ford for Mr Bublitz

G Bradford and S Withers for Mr McKay S Kilian and F Hawkins for Mr Blackwood D O’Leary for Mr Morrison

Judgment:

9 March 2018

JUDGMENT OF WOOLFORD J

[As to Application for Costs]

This judgment was delivered by me on Friday, 9 March 2018 at 4:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Meredith Connell, Crown Solicitor, Auckland Ms R Reed QC, Barrister, Auckland
Mr G Bradford, Barrister, Auckland
Mr S Kilian, Kilian & Associates, Auckland Mr D O’Leary, Barrister, Wellington

R v BUBLITZ & ORS [2018] NZHC 373 [9 March 2018]

Introduction

[1] The four defendants were charged with various financial crimes. Twelve weeks were allocated for the trial. That allocation was grossly inadequate. The trial started on 8 August 2016. I aborted the trial nine months later, on 10 May 2017, because of late disclosure by the Crown. The Crown intends to continue the prosecution against Mr Bublitz, Mr McKay and Mr Blackwood. It offered no evidence against Mr Morrison and the charges against him were dismissed on 7 June 2017. The retrial is set down for 16 July 2018. Twenty-two weeks have been allocated.

[2] Mr Bublitz, Mr Blackwood and Mr Morrison apply for costs in relation to the first trial. They do so under the Costs in Criminal Cases Act 1967 and Criminal Procedure Act 2011. Mr McKay originally also applied for costs. He withdrew the application on 24 January 2018 without prejudice to bringing the same application again at a later time.

Background

[3] Following a lengthy investigation by the Financial Markets Authority (FMA), Mr Bublitz, Mr McKay, Mr Blackwood and Mr Morrison were charged with various financial crimes on 11 March 2014. This followed the collapse of two small finance companies, Viaduct Capital Limited (Viaduct) and Mutual Finance Limited (Mutual), in 2010.

[4] The original Crown charge notice contained 49 charges. Mr Bublitz faced all 49 charges. Mr McKay faced 41 charges. Mr Blackwood faced 28 and Mr Morrison faced seven. One hundred and twenty-five verdicts were therefore required on the original Crown charge notice. The defendants pleaded not guilty on 28 September 2014.

[5] The Crown’s case, in broad terms, is the defendants dealt with Viaduct’s and Mutual’s assets in a way that breached provisions in the companies’ trust deeds that prohibited related party transactions. Viaduct and Mutual had the benefit of Crown guarantees, which made them attractive options to the defendants. The Crown alleges the defendants completed these transactions to benefit Mr Bublitz’s group of

companies, collectively referred to as Hunter Capital, ahead of Viaduct, Mutual and the Crown.

[6] The Crown further…

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 R v Bublitz

Details

AGLC: R v Bublitz [2018] NZHC 373
Case: [2018] NZHC 373
Decision Date: 9 March 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, Woolford J heard an application for costs brought by three defendants in a criminal prosecution. The defendants, who were charged with various financial crimes, sought costs under the Costs in Criminal Cases Act 1967 and the Criminal Procedure Act 2011. The trial was aborted due to late disclosure by the Crown, and a retrial has been set for 16 July 2018. The defendants applied for costs related to the aborted trial.

The court considered the applications under the Costs in Criminal Cases Act 1967. The Crown argued that the court should not determine the costs application by Mr Bublitz, as significant charges remained outstanding against him. The court found that the appropriate time to consider Mr Bublitz's application was after the ultimate outcome of the charges against him. Regarding Mr Morrison, the court found that all charges against him had been dismissed, and there was no impediment to determining his application under the Costs in Criminal Cases Act. The court granted Mr Morrison an award of $75,000.00 under the Costs in Criminal Cases Act.

The court then considered the applications under s 364(2) of the Criminal Procedure Act. The court found that the purpose of s 364 was primarily to serve as a means of sanction, but may offer some compensation to defendants and others who have incurred loss. The court held that the prosecutor for the purpose of s 364 was the Financial Markets Authority (FMA) as the prosecuting agency. The court awarded the FMA to pay $10,000.00 each to Mr Bublitz, Mr McKay, Mr Blackwood, Mr Morrison, and the Ministry of Justice under s 364 of the Criminal Procedure Act.

Orders