R v Bublitz - [2018] NZHC 323

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2014-004-002293

[2018] NZHC 323

THE QUEEN

v

PAUL NEVILLE BUBLITZ BRUCE ALEXANDER MCKAY

RICHARD TIMOTHY BLACKWOOD

Hearing: 2 March 2018

Appearances:

DG Johnstone for the Crown R Reed QC for Mr Bublitz GNE Bradford for Mr McKay SM Kilian for Mr Blackwood

Judgment:

5 March 2018

JUDGMENT OF WOOLFORD J

[On Application for Leave to Amend Crown Charge Notice]

This judgment was delivered by me on Monday, 5 March 2018 at 4:00 p.m. 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

R v BUBLITZ & ORS [2018] NZHC 323 [5 March 2018]

Introduction

[1] On 10 May 2017, I aborted this trial because of late disclosure by the Crown.1 At the time, Mr Bublitz faced 13 charges, Mr McKay faced seven charges and Mr Blackwood faced six charges. The defendants are to be retried in this Court on 6 July 2018. Twenty-two weeks have been allocated for the retrial.

[2] The Crown now applies for leave to amend the Crown charge notice. It seeks to add seven new charges, amend various charges and withdraw one charge.

[3] The Crown submits it is in the interests of justice to grant leave for the following reasons:

(a)The additional charges are founded in the evidence called at the first trial.

(b)The trial Judge will have to consider the allegations that underlie the additional charges in any event. In other words, the conduct that is the subject of the additional charges will be an integral part of the Crown’s case at the retrial, as it was at the first trial.

(c)Guilty verdicts on the remaining charges will not adequately cover the scope of the defendants’ criminality, particularly now that a substantial number of charges have been dismissed for case management reasons.

(d)Case management reasons do not preclude the formal determination of the additional charges, especially given the trial Judge will have to consider the allegations in any event. Any delay attributable to the formal determination of these charges will be insubstantial.

(e)There is no prejudice to the defendants in terms of conducting their defence, and no prejudice arises simply because there will be an insubstantial delay.

1 R v Bublitz [2017] NZHC 1059.

[4] The defence opposes the addition of seven new charges and the amendment of charge five. They say, in broad terms, if these charges were so significant to the Crown’s case, it would have pursued them in the first trial. The factual and legal basis for the charges was available then. The defendants also argue the additional charges will force them to incur further expenditure, and that it adds unnecessary complexity to the trial.

The law

[5] The Crown is entitled to add new charges to the Crown charge notice within a prescribed time period:2

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 323
Case: [2018] NZHC 323
Decision Date: 5 March 2018

CaseChat Overview and Summary

In this criminal case, the Crown sought leave to amend the Crown charge notice by adding seven new charges and amending various others. The defendants opposed the amendment. The case involved multiple defendants and a complex web of charges, stemming from alleged breaches of trust and related party transactions involving Viaduct Capital Ltd and Mutual Finance Ltd. The High Court of New Zealand was required to decide whether the Crown's application should be granted.

The legal issues centered on the discretion of the court to allow the Crown to amend the charge notice beyond the prescribed time period, and whether such an amendment would be in the interests of justice. The court had to consider the Crown's arguments that the additional charges were founded on the evidence called at the first trial, and that the trial judge would have to consider the allegations in any event. The court also had to weigh the defence's arguments that the additional charges would cause prejudice in terms of increased costs and complexity, and that the case management reasons weighed heavily against granting leave.

The court decided that it would not be in the interests of justice to grant the Crown's application to add the seven additional charges or to amend Charge 5. The court found that the Crown's error in not pursuing these charges in the first trial had been perpetuated for many years, and that the additional charges were not necessary to reflect the culpability of the defendants if found guilty. The court also considered that case management reasons, as well as the undue burden and waste of public resources already experienced in this prosecution, weighed heavily against granting leave. Therefore, the Crown's application to add the seven additional charges and to amend Charge 5 was declined, while leave to amend the rest of the charges and to withdraw Charge 22 was granted as sought.

The final orders of the court were that leave to add the seven additional charges (Charges 1, 2, 3, 4, 15, 19 and 23) and to amend Charge 5 was declined, and leave to amend the rest of the charges and to withdraw Charge 22 was granted as sought.

Orders