R v Bublitz - [2017] NZHC 2251

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2014-004-002293 [2017] NZHC 2251

THE QUEEN

v

PAUL NEVILLE BUBLITZ RICHARD TIMOTHY BLACKWOOD BRUCE ALEXANDER MCKAY

Hearing: 11-12 September 2017

Appearances:

D G Johnstone and B M Finn for Crown

R S Reed QC and H M Z Ford for Mr Bublitz S M Kilian and F Hawkins for Mr Blackwood G N E Bradford and S Withers for Mr McKay

Judgment:

18 September 2017

JUDGMENT OF LANG J

[on application for stay of proceedings]

This judgment was delivered by me on 18 September 2017 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

R v BUBLITZ, BLACKWOOD & MCKAY [2017] NZHC 2251 [18 September 2017]

[1] The applicants, Mr Bublitz, Mr McKay and Mr Blackwood, face charges initially laid by the Financial Markets Authority (FMA) under the Crimes Act 1961 and the Companies Act 1993. Their trial before Woolford J sitting without a jury began on 8 August 2016. Twelve weeks had been allocated for the trial. That allocation was to prove woefully inadequate.

[2] By March 2017 the trial was still in progress. It stalled on 27 March 2017 after the Crown had disclosed a list specifying 14,619 documents that were relevant but had been withheld by the Crown under the Criminal Disclosure Act 2008 (the Act). That list ought to have been provided to the defence much earlier, and the Crown accepted that its inadvertent failure to disclose the list amounted to a breach of ss 13(2)(b) and (5) of the Act.

[3] The Crown provided the defence with the list of documents on 23 March

2017. This occurred after the Crown had closed its case and whilst Mr Bublitz was presenting his evidence. By May 2017 the issues caused by the late disclosure had not yet been resolved. On 10 May 2017, the Judge granted an application by the defence for an order that the trial be aborted. He gave his written reasons for doing so on 19 May 2017.1

[4] The Crown has elected not to proceed further against Mr Morrison. It has decided, however, to proceed with the bulk of the existing charges against the remaining defendants. It also seeks to add seven new charges to the Charge List.

[5] The applicants now seek an order that the proceedings against them be stayed. They say there has been undue delay up to this point and that this will continue to the point where they cannot receive a fair trial. They also contend the integrity of the judicial process will be called into question if a second trial is permitted to proceed.

[6] In order to understand the issues that the present application raises, it is necessary to set out in greater detail the events that led to the first trial being
terminated.

1 R v Bublitz [2017] NZHC 1059.

The events that led to the first trial being terminated

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 [2017] NZHC 2251
Case: [2017] NZHC 2251
Decision Date: 18 September 2017

CaseChat Overview and Summary

This case concerns an application for a stay of criminal proceedings against three defendants, Bublitz, Blackwood and McKay, in the High Court at Auckland. The proceedings are for charges laid under the Crimes Act 1961 and the Companies Act 1993 in relation to the collapse of two finance companies. The defendants sought a stay on the basis of undue delay and the Crown's breaches of its disclosure obligations under the Criminal Disclosure Act 2008. The Crown opposed the application and submitted that the new trial could be concluded within four months. After considering the submissions, the Court held that there had been undue delay caused by the Crown's breaches of the Criminal Disclosure Act. Those breaches, however, were inadvertent and did not amount to bad faith or a breach of the proper duties of prosecutors. The Court also held that it remained possible for the defendants to receive a fair trial. The Court therefore dismissed the application for stay and ordered the proceedings to continue. The Court also directed that the applications for costs in relation to the first trial be listed before the Judge who conducted the first trial.

Orders