R v Bublitz
[2017] NZHC 2251
•18 September 2017
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
[7] The events in respect of which the charges were laid occurred between February 2009 and March 2010. They arose out of the collapse of two finance companies, Viaduct Capital Limited (Viaduct) and Mutual Finance Limited (Mutual). The Serious Fraud Office initially undertook an investigation into the collapse of the two companies. After eight months the investigation was taken up by the FMA.
[8] The FMA’s investigation into the affairs of Viaduct and Mutual began in July
2011 when it engaged the accounting firm Deloitte to review the manner in which the two companies had been operated. Deloitte prepared three reports for the FMA between July 2011 and September 2013. The FMA also interviewed Mr Bublitz in December 2012 and February 2013.
[9] The FMA concluded that the four defendants had been responsible for operating the two companies in a manner that contravened ss 220 and 242 of the Crimes Act 1991 and s 377 of the Companies Act 1993. It laid 49 charges against the defendants alleging in broad terms that the defendants had dealt with the companies’ assets in a manner that breached provisions in the companies’ trust deeds that prohibited them from entering into transactions with related parties. They are also alleged to have misled potential investors by making false statements in prospectuses and investment statements issued to the public, and to have misled the Crown in relation to a guarantee given by the Crown (the Crown guarantee) in respect of deposits that the companies obtained from investors.
[10] The charges against the defendants were laid on 11 March 2014 and were first called in the Auckland District Court on 7 May 2014. Disclosure then occurred over the next four months and the defendants entered not guilty pleas on
28 September 2014.
[11] At the end of 2014 an order was made that the charges were to be tried in the High Court, and on 4 February 2015 a High Court Judge directed that they would be the subject of a 12 week trial commencing on 9 February 2016. The Court subsequently ordered the charges to be determined by a Judge sitting without a jury.
[12] On 11 November 2015, Venning J granted an application by Mr Bublitz to adjourn the trial on the basis that he was currently unrepresented and needed further time within which to obtain the means to privately fund his defence. The trial was adjourned to 8 August 2016.
[13] The trial duly commenced on 8 August 2016, with the defendants facing a total of 49 charges. Mr Bublitz faced all 49 charges, Mr McKay faced 41 charges, Mr Blackwood faced 28 charges and Mr Morrison faced seven charges. Mr Bublitz was initially meeting the costs of his counsel, whilst Messrs McKay and Blackwood were legally aided. Mr Morrison represented himself with the assistance of Court- appointed amicus curiae. During the course of the trial Mr Bublitz exhausted his ability to meet his counsel’s costs and was granted legal aid to fund his defence for the balance of the trial.
[14] The time allocated for the trial immediately ran into difficulties. The first witness called for the Crown was Mr Jason Weir, an investigating accountant from Deloitte. His function was to provide the trial Judge with a detailed overview of the prosecution case and to refer him to documents relevant to each charge. He was to give evidence that was mainly factual, but it also contained Mr Weir’s opinion on several topics.
[15] Mr Weir’s main and supplementary briefs of evidence ran to approximately
550 pages, and these took more than three weeks to lead. Defence counsel then cross-examined Mr Weir for approximately another three weeks. During this period the evidence of seven shorter witnesses was interposed in order to fit in with their needs and/or during periods when Mr Weir was not available to continue giving evidence. This occupied slightly less than nine days. Mr Weir also played the videotaped interviews that the FMA had undertaken with the defendants and a Mr Wevers, who is now deceased. This occupied approximately two weeks. As a result, Mr Weir did not complete his evidence until the end of the twelfth week of the trial. By that stage the time allocated for the trial had come to an end.
[16] On 21 September 2016, having received and considered the expert evidence the defence proposed to call, the Crown elected not to offer evidence on 12 of the
charges faced by the defendants. The Judge discharged the defendants on those charges in the seventh week of the trial.
[17] On 14 October 2016 the Judge discharged Mr Bublitz, Mr McKay and Mr Blackwood on 22 further charges on which they had jointly been charged with others. This did not reduce the number of charges but it reduced the number of verdicts the Judge was required to deliver. Because most of the charges involved more than one defendant, a total of 66 verdicts were still required.
[18] By November 2016 the charge list in respect of the 37 charges that the defendants still faced ran to 86 pages because of the numerous particulars pleaded in support of each charge. It was by that stage obvious that the trial would run well into the following year because the Crown’s expert witness, Mr Barry Jordan from Deloitte, had become ill and would not be able to give evidence before the end of
2016. Mr Jordan was to provide the Court with the benefit of his opinion as to whether the transactions underpinning most of the charges were related party transactions.
[19] On 21 and 22 November 2016 the Judge heard applications by all four defendants for orders that the charges against them be stayed on the ground that the length of the trial had rendered it unduly burdensome and oppressive. The Judge dismissed the applications, but discharged the defendants on 13 further charges for case management reasons so as to reduce the number of charges to a manageable level.2 He also discharged Mr Morrison on one charge that the other three defendants still faced. At that stage the Crown acknowledged that the 12 week trial estimate had been plainly inadequate, but estimated the trial would conclude by
7 April 2017.
[20] On 19 January 2017, the Crown advised the Court and defence counsel that Mr Jordan had not recovered sufficiently to give evidence. To deal with this issue the Crown advised that it intended to call Ms Denise Hodgkins of Deloitte to give evidence in place of Mr Jordan. The defence objected to this on the basis that they were prejudiced in conducting their defence as a result of the late substitution of
Ms Hodgkins for Mr Jordan. The Crown then advised that it would not ask Ms Hodgkins to provide her opinion in relation to whether or not the impugned transactions were related party transactions. Instead it would merely ask her to give evidence regarding the applicable accounting standards in respect of related party transactions. It would then leave it to the Court to determine whether the transactions met those standards.
[21] This led to the Judge hearing a second application by the defence for a stay of proceedings on 2 February 2017. Woolford J declined this application on 3 February
2017, with reasons given on 9 February 2017.3 The Judge dismissed the application
because he did not consider there was any significant unfairness to the defendants in the Crown calling Ms Hodgkins to give more limited evidence than that which Mr Jordan was to give. Nor did he see any unfairness in the fact that counsel for the defendants had been unable to cross-examine Mr Jordan. Furthermore, the Judge said he would take a “liberal view” of any applications by defence counsel for orders requiring Crown witnesses to be recalled so that propositions could be put to them in place of Mr Jordan.
[22] The trial then proceeded with several Crown witnesses being re-called to enable defence counsel to question them about issues that would have been put to Mr Jordan. The Crown closed its case on 27 February 2017 and the Judge then heard applications for discharge by several of the defendants. This resulted in the Judge discharging Mr Bublitz and Mr McKay on two charges, and reducing the particulars that the Crown could rely upon in relation to two further charges.
[23] Mr Bublitz then opened his case and called three witnesses, two of whom were experts. Whilst one of his experts was giving evidence, the Crown disclosed the list of 14,619 documents held by Deloitte that it had withheld under the Act. This issue had its genesis in events that occurred when Mr Weir was giving evidence. Mr Weir had told the Court that he would review all documents held by Deloitte in order to determine whether any of these were relevant to the case. This led to the Crown disclosing 171 further documents to the defence in October 2016. The
Crown ought to have provided the defendants with the list specifying the documents that the Crown had withheld at this time.
[24] The Judge stopped hearing evidence on 27 March 2017 because significant disputes arose between the Crown and defence regarding documents on the list that the Crown continued to withhold. In addition, the Crown disclosed further documents to the defence in several tranches between March and early May 2017. In part this resulted from defence counsel requesting the Crown to advise whether it had provided lists of documents held by the FMA and the Crown Solicitor as required by s 13(2)(b) of the Act. On 28 April 2017 the Crown provided these lists. The FMA list contained approximately 19,700 documents, with approximately 1,835 of these identified as being disclosable.
[25] Against that background the defendants applied for an order that the trial be aborted on the basis that it was impossible to adequately rectify the issues created by the late disclosure and withholding of so many documents. When the Judge heard this application counsel for the Crown advised that in all likelihood it would require at least two months to resolve the outstanding disclosure issues, and that numerous rulings by the Court were likely to be required.
[26] The Judge’s reasons for declining a further adjournment and aborting the trial are lengthy and do not need to be repeated here. They are neatly encapsulated, however, in the following passage of his written reasons:4
[106] I am of the view, however, that a lengthy adjournment now would have a prejudicial impact on the defendants’ right to present an effective defence. The case cannot be rerun. Although the issues raised in the late disclosure were live in the trial, the defence is entitled to prepare and present its case with full knowledge of all relevant documentation that both helps and hinders its case. Strategic decisions as to priority and narrative are important in a judge-alone trial as much as a jury trial. Similarly, cross- examination of witnesses for the second or third time is of necessity disjointed and likely to be less effective. Witnesses who are recalled would need to be taken through their earlier evidence in some detail before being asked if that evidence would differ in light of the documents recently disclosed. There is no doubt that cross-examination would have been more direct and robust if the defence had the documents recently disclosed, such as the draft Viaduct report. More concessions could well have been made by Crown witnesses. They are less likely now. It is my view that the Crown
4 R v Bublitz, above n 1.
breaches of the Criminal Disclosure Act have restricted the choices open to the defence in respect of the presentation of their case, both in manner and extent.
Conclusion
[107] It was regrettable to have granted the application to abort the trial, but I am of the view that there was a real possibility of unfairness to the defendants if the trial was to proceed. The breaches of the Criminal Disclosure Act have given rise to a reasonable danger or apprehension of a miscarriage of justice in the circumstances.
[27] On 6 June 2017 the Crown advised that it did not propose to proceed further against Mr Morrison but that it would proceed to a new trial in respect of the remaining three defendants.
The Crown’s proposals in respect of the new trial
[28] By the end of the first trial Mr Bublitz faced 13 charges, Mr McKay faced seven charges and Mr Blackwood faced six charges. The Crown proposes to withdraw one of the charges against Mr Bublitz but has applied to add seven new charges. Mr Bublitz and Mr McKay are charged jointly in respect of six of these, whilst all three defendants are jointly charged in respect of the seventh. That application has yet to be determined.
[29] Mr Johnstone for the Crown advised me during the hearing that the Crown intends to truncate the evidence it will call at any new trial to ensure the trial is conducted efficiently and remains focussed on relevant issues. Although the Crown will again call Mr Weir, he will not play the videotaped interviews of the defendants and Mr Wevers. Mr Johnstone said the Crown considers these to be of marginal probative value. He suggested the key issues will be determined by the Court’s view of the documentary evidence relating to the transactions, and not the equivocal explanations the defendants and Mr Wevers have given in relation to them.
[30] In addition, the Crown has decided not to call Mr MacMillan and Ms Steel, two persons employed by Viaduct at the time the transactions involving that company occurred. Mr Johnstone advised me that the Crown considered these two witnesses were unable to add greatly to the issue of whether and to what extent Mr Bublitz was in control of Viaduct’s affairs at the time the transactions occurred.
[31] Mr Johnstone also advised me that the Crown would not be calling Mr Jordan at the new trial. Instead, it would call an accounting expert to provide the Court with evidence along the same lines as that given by Ms Hodgkins at the first trial. Furthermore, the Crown will not be calling the auditors of Mutual and Viaduct because it does not see sufficient value in their evidence to justify the time that it would take to give.
[32] On Mr Johnstone’s estimate the Crown case will now take no more than nine weeks. This comprises six weeks for Mr Weir’s abbreviated evidence and less than one week for the expert on related party standards and the receivers of Viaduct and Mutual. The remaining witnesses could be accommodated, he said, within two further weeks. On this basis, and allowing eight weeks for defence evidence, addresses and unforeseen contingencies, he submitted that the new trial could be concluded within four months.
The law
[33] The leading cases in the present context are the judgments of the Supreme Court in Wilson v R and R v Williams,5 and those of the Court of Appeal in Fox v Attorney-General and F v Hamilton District Court.6
[34] In Wilson, the procedural background was extremely complicated because it involved an appeal by a defendant who had originally pleaded guilty to drug dealing offences detected after a police operation that involved the deployment of an undercover officer. The High Court subsequently stayed the prosecution of other defendants arrested in the same operation but the Court of Appeal set aside that order. The High Court then ruled evidence obtained during the police operation inadmissible, and subsequently stayed the charges against the appellant’s co- defendants again. The Court held the evidence was inadmissible because the police had obtained it by highly questionable methods. These included the use of a false search warrant and the bogus prosecution of the undercover police officer in order to
bolster his credibility.
5 Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705; R v Williams [2009] NZSC 41, [2009] 2
NZLR 750.
6 Fox v Attorney-General [2002] 3 NZLR 62 (CA); F v Hamilton District Court [2015] NZCA
600, [2017] NZAR 906.
[35] The Supreme Court held that an order staying the proceedings against the appellant was inappropriate because the illegal methods employed by the police did not produce an unfair trial and a trial would not undermine public confidence in the integrity of the criminal justice process. Ultimately, however, it allowed the appeal and quashed the appellant’s convictions because the charges against the appellants’ co-defendants had been stayed by the High Court and the Crown had not appealed against that decision. It would therefore amount to a miscarriage of justice if the appellant’s convictions were permitted to stand.
[36] The Chief Justice, who agreed with the result but differed in some respects to the reasoning of the majority, referred to the power of the courts to stay proceedings when a defendant cannot receive a fair trial and where that is necessary to prevent an affront to justice that would taint the criminal justice system.7 The Chief Justice then observed:
[121] The standard of abuse on either basis is rightly pitched at a very high level. There is significant public interest in the prosecution of those suspected of criminal offending. To stay a prosecution is “an extreme step which is to be taken only in the clearest of cases”. The focus of the jurisdiction is not on past events in themselves but on whether proceeding with the trial would be an abuse of process either because the trial cannot be fair or because holding the trial would itself be an affront to justice because it undermines the legitimacy of the process. Only fundamental error of process could give rise to irremediable unfairness in trial or could taint the criminal justice system. The jurisdiction to stay criminal prosecutions for abuse of process where trial fairness to the accused can be otherwise protected is therefore a residual jurisdiction exercised only when there is no other option. The defects which undermine the integrity of the trial must be radical. In deciding whether defects are “so gross, or so persistent, or so prejudicial, or so irremediable” as to justify stay “however strong the grounds for believing the defendant to be guilty”, the critical question is not the strength of the prosecution evidence or the weakness of the defence, but the effect of the defect on the legitimacy of the trial.
(footnotes omitted)
[37] For the majority,8 Arnold J observed that the analysis of factors relevant to
whether a stay should be granted “is not backward-looking, in the sense of focusing on the misconduct, but rather forward-looking, in that it relates to the impact of the
7 Wilson v R, above n 5, at [119]-[120].
8 William Young, Glazebrook, Arnold and Blanchard JJ.
misconduct on either the fairness of the proposed criminal trial or the integrity of the
justice process if the trial proceeds”.9
[38] In Fox v Attorney-General the Full Court of the Court of Appeal was required to consider whether it was an abuse of process for the police to lay further charges after earlier charges in relation to the same conduct had been withdrawn by agreement.10 After summarising the authorities McGrath J, for the Court, observed:
[37] These principles set a threshold test in relation to the nature of a prosecutor’s conduct which warrants a decision to end a prosecution, prior to trial, as an abuse of process. Conduct amounting to abuse of process is not confined to that which will preclude a fair trial. Outside of that category it will, however, be of a kind that is so inconsistent with the purposes of criminal justice that for a court to proceed with the prosecution on its merits would tarnish the Court’s own integrity or offend the Court’s sense of justice and propriety. The power of stay is not available for disciplinary purposes nor to reflect a Court’s view that a prosecution should not have been brought. The hallmarks of official conduct that warrant a stay will often be bad faith or some improper motive for initiating or continuing to bring a prosecution but may also be simply a change of course by the prosecution having a prejudicial impact on an accused. Finally, to stay a prosecution, and thereby preclude the determination of the charge on its merits, is an extreme step which is to be taken only in the clearest of cases.
[39] In F v Hamilton District Court, the Court of Appeal dealt with a second appeal against a refusal to grant a stay based principally on breaches of the Act. These were said to amount to an abuse of process and rendered a fair trial impossible. The Court referred to a list of factors set out in Attorney-General v District Court at Hamilton.11 In that case Randerson J observed that the following factors might be relevant to a determination of whether a breach of disclosure obligations has led to an abuse of process and/or to have rendered a fair trial impossible:
(a) whether the failure to disclose is due to inadvertence, inefficiency or to deliberate conduct;
(b) whether the police or prosecuting agency has acted in good faith;
9 At [40].
10 Fox v Attorney-General, above n 6.
11 Attorney-General v District Court at Hamilton [2004] 3 NZLR 777 (HC).
(c) whether the failure to disclose is relevant in the sense that the non- disclosure of the material could damage the prosecution case or advance that of the defence;
(d)the extent of any prejudice to the accused in the conduct of his or her defence as a result of the non-disclosure;
(e) whether the accused can nevertheless receive a fair trial without undue delay (or alternatively whether the totality of the circumstances is such that there has been an abuse of process);
(f) whether remedies short of stay or dismissal could achieve a fair trial (such as adjournment, the exclusion of evidence, the right to call rebuttal evidence, or the limited stay until relevant material is produced).
[40] The authorities confirm the courts also have jurisdiction to stay a criminal proceeding for undue delay even where there is no State misconduct justifying a stay for abuse of process.
[41] The issue of delay will often overlap with the right to receive a fair trial because sometimes the delay has been of such duration, nature or effect that it is no longer possible for the defendant to receive a fair trial.12 As the Supreme Court observed in Williams, however, the right to a trial without undue delay is separate and sometimes distinct from the right to a fair trial.13 Where it arises, the question of whether there has been undue delay is determined having regard to the delay that occurs between arrest and final disposition of the charges, including any appeal.14 In this context the term “undue” is synonymous with “unjustifiable”.15 Whether there
has been undue delay in any case “is a function of time, cause and circumstance”.16
The seriousness of the offending will usually not be relevant to the nature of the
12 R v Williams, above n 5, at [9]-[10].
13 At [10].
14 At [10]
15 At [12].
16 At [12].
remedy but if it is towards the lower end of the scale, that fact may tip the balance in favour of a stay.17
Submissions for defendants
[42] Although counsel for the defendants each advanced submissions, they broadly covered the same ground. For that reason I propose to deal with them globally.
[43] To the forefront of their submissions is an assertion that the abandonment of a trial after nine months of continuous hearings makes this an extraordinary case. Counsel have not been able to find any other criminal trial in New Zealand that has lasted for nine months, let alone a trial of such duration that has failed to produce a result.
[44] The defendants also contend that the unprecedented extent to which the trial went longer than it should have done is due entirely to the manner in which the Crown chose to conduct its case. It laid charges that were overly wide or unwarranted, and failed to focus on relevant matters. The breadth of the Crown’s allegations meant that the defendants faced huge obstacles in coming to grips with the Crown case and in dealing with continued changes in focus by the Crown.
[45] The defendants point out that the unfocussed manner in which the Crown conducted its case is illustrated by its attempt in December 2016 to introduce 303 documents into evidence in reliance on the so-called co-conspirators principles relating to admissibility of hearsay statements.18 The Judge rejected this attempt and in doing so roundly criticised the Crown’s approach in several respects.19
[46] They also say the breaches by the Crown of its disclosure obligations were serious. This is demonstrated by the fact that the existence of tens of thousands of withheld documents was made known to the defence at a very late stage of the trial
and numerous other documents were provided at a point where they were of very
17 At [18].
18 Evidence Act 2006, s 12A.
19 R v Bublitz [2016] NZHC 3181.
little utility. Furthermore, the existing problems in relation to disclosure are far from resolved. Little or no progress has been made since the trial came to an end in May
2017, and in fact further disclosure has recently been made. The Court will therefore be required to determine numerous objections to withholding of disclosure before the case will be in a position to proceed.
[47] In addition, the trial process to date has been extremely taxing for all three defendants. It has resulted in significant consequences for them in many different ways. It has affected their livelihoods, their family relationships and their health. Prolonging the proceedings further will inevitably exacerbate these effects.
[48] Furthermore, the defendants contend that the Crown is overly optimistic in its predictions regarding the new trial. They say that the reduction in the number of witnesses and the evidence to be called will not shorten the trial to any marked extent because the defence will need to explore and/or call evidence in relation to many of the issues the Crown does not now propose to address. In particular, the defendants are likely to ask the Judge for an order that the Crown play their videotaped interviews and that of Mr Wevers. They say that these provide important context for the events that are central to the proceedings. Similarly, the defence say they will be prejudiced if Mr MacMillan and Ms Steel are not called as witnesses. The fact that they were employees of Viaduct when the offending is alleged to have occurred places them in a strong position to provide the Court with assistance as to who was responsible for conducting Viaduct’s operations at those times.
[49] In a similar vein, the defendants submit that the unfocussed way in which the prosecution continues to approach its obligations is reflected in the fact that it now seeks to add seven new charges. This will inevitably result in further cross- examination of Crown witnesses and will effectively require both the Crown and the defence to provide evidence and closing submissions in relation to 15 new allegations. This is likely to prolong any new trial further.
[50] The defence position is that these proceedings will not be ready for trial until mid-2018 at the earliest. This means that there will be a further delay of at least 12 months between the end of the first trial and the commencement of the second. They
also say the second trial is likely to take just as long as the first. This will lead to a period of more than five years between arrest and trial outcome not taking into account any appeals. They point out that a delay of five years was held to be undue in Williams, and that the delay in this case is likely to be greater in the present case.
[51] The defendants therefore contend that the only appropriate remedy in the present case is to stay the proceedings in their entirety.
Submissions for the Crown
[52] The Crown maintains its position that a new trial can be concluded within the time estimate it has given. It acknowledges the delays that have occurred to date, but maintains that the focus in the present context should be on the future rather than the past. Mr Johnstone also maintains that the scope of the evidence at the new trial will not be increased by the addition of the new charges because the evidence in relation to those charges will be led regardless of whether or not the new charges are added. He also contends that any addition to the hearing time that is necessary as a result of submissions in respect of the new charges will be minimal.
[53] Mr Johnstone also submits that there is no reason to believe that any further disclosure issues will arise during the new trial. He accepts, however, that further issues in relation to disclosure will provide the Crown with a serious problem should they occur.
[54] Mr Johnstone points out that the authorities demonstrate that a stay should only be granted in exceptional circumstances. Examples include cases where there has been egregious delay, or where prosecutorial misconduct will render a further trial unfair or will bring the integrity of the criminal justice system into disrepute if a further trial is permitted. He points out that Woolford J characterised that the breaches as being inadvertent and that there was no allegation of bad faith on the part of the FMA or the Crown. Furthermore, he submits that the delay in the present case cannot reasonably be described as egregious.
[55] For those reasons the Crown submits that it would not be appropriate to make an order staying the proceedings.
Decision
[56] It is entirely understandable that the prospect of a new trial would seem manifestly unfair to the defendants because they have already been required to undergo a very lengthy trial that has produced no tangible result. Had the disclosure issues not arisen, the trial would probably have finished and the Judge would have been well on the way towards reaching his verdicts. If there is to be a new trial the charges will not be determined for a considerable time. Through no fault of their own the defendants will be forced to endure the stress, uncertainty and physical and financial hardship that this will inevitably produce. They will also be subject to further adverse publicity by the media.
[57] Furthermore, considerable institutional resources have already been invested in these proceedings for no discernible benefit to date. The Court has made resources available and the State has met the costs of both the prosecution and, for the most part, the defence. These are likely to be considerable and will obviously increase significantly again should there be a new trial. These factors may well suggest to a lay person that there would be little sense in putting the defendants and the State through the cost and ordeal of a further trial.
[58] Without in any way seeking to undermine the significance of those factors so far as the defendants and the general public may be concerned, they are not sufficient to warrant a stay being granted. To a greater or lesser extent they arise whenever a re-trial is directed in a criminal proceeding. It also needs to be remembered that it is for the prosecution and not the courts to determine whether criminal charges are commenced or continued. This division of functions is an important constitutional safeguard because the prosecuting authorities, supervised by the Solicitor-General, are assumed to be familiar with the policy issues that justify the commencement or continuation of a criminal prosecution. The courts do not have institutional awareness of those issues. The courts are also highly conscious that their role is to oversee the criminal justice process once charges are laid. This does not extend to involvement in the decision as to whether a charge is to be laid or continued. For that reason, and as the authorities demonstrate, the courts will generally only
intervene to protect the integrity of their own processes or to uphold the right of every defendant to a fair trial held without undue delay.
[59] In Fox v Attorney-General the Court of Appeal explained these concepts in the following way:20
[28] In our system of government, the discretion to prosecute on behalf of the state and to determine the particular charges a defendant is to face is part of the function of Executive Government rather than the Courts. That allocation is done and community expectations that criminal offenders are brought to justice are met.
…
[31] The Courts traditionally have been reluctant to interfere with decisions to initiate and continue prosecutions. In part this is because of the high content of judgment and discretion in the decisions that must be reached. But perhaps even more so it also reflects constitutional sensitivities in light of the Court’s own function of responsibility for conduct of criminal trials. This reluctance to interfere on the ground that the prosecution is thought to be inappropriate is widely apparent in the common law jurisdictions.
[60] The manner in which the courts are required to approach their task in the present context is illustrated by the judgment of the Court of Appeal in R v Vaihu.21
In that case a Judge had exercised the power under s 347 of the Crimes Act 1961 to discharge three defendants who were charged with being parties to the intentional causing of grievous bodily harm and assault with a weapon. The charges had been in existence for five years, and were about to be the subject of a third trial. This followed a hung jury at the first trial and successful appeals to the Court of Appeal after the defendants had been found guilty at the second trial. The trial Judge
discharged the defendants for the following reasons:22
[39] This case is distinguishable from those such as Williams. In Williams there still had not been a concluded trial after five years. There has been a roller coaster ride for the applicants with a twelve week trial, a jury unable to agree, a second trial, incarceration, a successful appeal resulting in release from prison and now a third trial still some months away. A potential remedy might be a reduction in sentence should there be a conviction after a third trial. The First Applicant has served approximately twenty months of a prison sentence. On normal parole principles he would be eligible to apply
20 Fox v Attorney-General, above n 6.
21 R v Vaihu [2010] NZCA 145.
22 Set out at [39] and [40] of the judgment of the Court of Appeal.
for parole from a five year sentence. The other two applicants enjoyed the advantage of bail as opposed to custodial remands pre-trial.
…
[40] At best the Crown alleges the applicants are parties. The main perpetrators of this crime have been brought to justice and are serving significant sentences. I am of the view that the length of the delay coupled with the fact and effects of the roller coaster ride and the circumstances of the applicants mean that this is one of those rare cases where a proportionate response to the breach of their rights is a stay.
[61] The Crown appealed against the Judge’s order that the proceedings be stayed. For the Court of Appeal, Hammond J observed that on the issue of delay it was “difficult to see how the fact that there had not been a concluded trial after five years sufficiently distinguished Williams from the present case”.23 Secondly, the Court pointed out that in Williams the Supreme Court took the view that there was no justification for a stay of proceedings after a delay of five years duration, and that any undue delay had been “generously” remedied by a discount on sentence.24 The Court then observed:
[54] This leads us to the Judge’s third factor: “the circumstances of the applicants”. It appears to us to have been overwhelmingly the Judge’s impression of the accused’s personal circumstances that led him to the conclusion that a stay was a reasonable and proportionate response in this case. Undoubtedly the consequences of whatever wrong-doing they may have been involved in has been intrusive, debilitating and heavily impacted on the lives of the respondents. But that is not the kind of “unfairness” which could trigger relief. The speech of Lord Bingham in Attorney- General’s Reference is particularly helpful here. This is not a case of bad faith, unlawfulness or executive manipulation. Nor have there been breaches of the proper duties of prosecutors…
(Footnotes omitted)
[62] Against that background I begin by considering the nature and gravity of the breach. These are both captured in the following passage from the written reasons given by Woolford J for aborting the first trial:25
The admitted breaches of the Act are not in dispute. All parties accept that there were considerable errors in disclosure. There is, however, no suggestion that the disclosure breaches arose out of any bad faith on the part of the Crown. I do not consider, and I do not understand the defence to have
23 At [52].
24 At [53].
25 R v Bublitz, above n 1, at [66].
submitted, that the Crown held back any documents or any lists in an attempt to derive benefit for themselves at trial. Non-compliance with disclosure obligations was inadvertent. Nonetheless, the scope of non-compliance was extensive. The volume of late disclosure is seemingly unprecedented in New Zealand.
[63] These findings mean I cannot proceed on the basis that the breaches were committed deliberately or in bad faith. Although they were clearly significant, the trial Judge has concluded they were inadvertent.
[64] Furthermore, there can be no suggestion that the FMA or the Crown has endeavoured to use the criminal justice process for inappropriate purposes, or that they have conducted the proceedings in a manner that was designed to be oppressive or burdensome for the defendants. There is therefore no basis for a stay of the proceedings on the ground that the Court’s own processes will be tainted or undermined if a new trial is permitted to proceed.
[65] In addition, I have concluded that it remains possible for the defendants to receive a fair trial notwithstanding the breaches that have occurred. The first trial was aborted because the Judge was concerned that a lengthy adjournment at such a late stage to deal with disclosure issues “would have a prejudicial impact on the
defendants’ right to present an effective defence”.26 Although disclosure issues are
yet to be fully resolved, there is no reason why they cannot be finally determined before a new trial commences. For that reason the factors referred to in F v Hamilton District Court27 all point in the present case against a stay being granted.
[66] The only remaining issue is whether there has been a breach of the defendants’ right to a trial without undue delay under s 25(b) of the New Zealand Bill of Rights Act 1990 (NZBORA). If there has, the Court must determine the appropriate remedy to be provided for that breach.
[67] As I have already observed, the defendants were arrested and charged in
March 2014. Three and a half years have now elapsed since that time and the
26 R v Bublitz, above n 1, at [106].
27 Set out above at [39].
charges have not yet been determined. That is undoubtedly a lengthy delay, but that does not mean it is undue in the sense of being unjustifiable. It is certainly significantly less than the delay of five years that occurred in both Williams and Vaihu. In each of those cases the delay that had occurred, although undue, was not considered sufficient to warrant a stay.
[68] Viewing the events that occurred during the months following arrest, it is understandable that the defendants would wish to receive disclosure before they entered their pleas. Following retention of the proceeding by this Court, in February
2015 the Court allocated the proceedings a 12 week fixture commencing in February
2016. The ensuing delay of approximately a year was no doubt considered prudent to ensure the case was made ready for trial. In any case of this type voluminous documentation is likely to be involved, and expert evidence is likely to be called for both the prosecution and defence. This takes considerable time to prepare. I did not take the defendants to take issue with the delay that occurred between February 2015 and February 2016.
[69] The fixture in February 2016 was then delayed for a further seven months to enable Mr Bublitz to obtain funding so he could be represented by counsel. That delay was clearly justified given the nature and complexity of the charges that he faced.
[70] The trial commenced on 8 August 2016 as scheduled, and continued virtually without pause until late March 2017, when the issues arose in relation to disclosure. I cannot pass definitive comment on the cause of the trial running longer than it should have up until that point, but at least part of the problem appears to have been caused by all counsel underestimating the time required for the prosecution case. The issues that arose at the end of 2016 in relation to Mr Jordan’s unavailability could not have been foreseen, and the Crown appears to have dealt with them in an efficient and practical way by calling Ms Hodgkins to give evidence that was limited in nature.
[71] This brings me to the disclosure issues that ultimately caused the trial to be abandoned. The delay that these have caused is undoubtedly undue because those
issues ought to have been identified and determined at a much earlier stage. The Crown must bear sole responsibility for that. The Court would have a responsibility to provide the parties with a new fixture as soon as they are ready for that to occur. Assuming a new trial could be concluded by the third quarter of 2018, the disclosure issues will have caused an unjustifiable delay of approximately nine to twelve months.
[72] As I have already outlined, Counsel for the defendants spent considerable time in their submissions attempting to cast doubt on the Crown’s assertion that disclosure issues are a feature of the past and that any new trial will be concluded within a much shorter time frame than was the case with the first trial. I share some of that scepticism because the Crown’s desire to widen the scope of the trial by adding new charges at this stage appears to undermine Woolford J’s repeated efforts to reduce the scope of the issues to be determined at the first trial. It also suggests the Crown’s optimism that it can conduct the next trial in a more focussed way may be misplaced. In addition, I consider that the Crown may be overly optimistic as to its ability to conclude its case within a time frame of approximately nine weeks. I am reluctant, however, to give significant weight to those concerns because they are yet to be borne out. If and when they are proved to be justified, the Court has the ability to reassess the situation in light of what has occurred.
[73] I consider the approach confirmed by the Supreme Court in Williams and the Court of Appeal in Vaihu precludes the Court from granting a stay at this stage notwithstanding the unjustified delay that has occurred. The approach taken in those cases makes it clear that the remedy of stay would not be proportionate to the circumstances of the present case, involving as it does allegations of moderately serious offending. Rather, any undue delay can be remedied by alternative forms of relief depending on whether the defendants are ultimately acquitted or convicted. As the approach taken in Williams demonstrates, a reduction in sentence is an available option upon conviction whilst monetary compensation is a possibility in the event of acquittal.
[74] The Crown will also be well aware that it may find it difficult to resist a further application for stay in the event that further significant issues arise in the
future. The Court must also assume part of the responsibility for ensuring that the Crown remains focussed at the new trial and advances its case within an acceptable time frame.
[75] I record that in reaching my decision I have not taken into account the prospect that Mr Bublitz may have an issue in the future with his legal representation. That issue may be resolved in whole or in part by the outcome of the application for costs he has filed in relation to the first trial. If the Court needs to become involved in the issue of Mr Bublitz’s representation at all, it should not do so until Mr Bublitz has confirmed he is unable to engage counsel privately and cannot obtain adequate representation using legal aid.
Result
[76] The application for stay of the proceedings is dismissed.
The future
[77] The applications for costs by all four defendants in respect of the first trial should now be set down for hearing before Woolford J. It may also be appropriate for Woolford J to hear the Crown’s application for leave to add new charges at the same time. He has the benefit of a detailed knowledge of the case and will therefore find it easier to determine the likely impact of the new charges on the trial than will a
Judge who is unfamiliar with the case.
Lang J
Solicitors:
Crown Solicitor, Auckland
Counsel:R Reed QC, Auckland
Kilian & Associates Ltd, Auckland
G N E Bradford, Auckland
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