Hearing: 4 - 9 May 2017

Appearances:

D Johnstone, B Finn and D Robinson for the Crown
R Reed, H Ford and Y Wang for Mr Bublitz
G Bradford and S Withers for Mr McKay
S Kilian, D Dufty and F Hawkins for Mr Blackwood
Mr Morrison in person
J Dixon as Amicus Curiae

Results:

10 May 2017

Reasons:

19 May 2017

REASONSJUDGMENT OF WOOLFORD J [Reasons to abort trial]

This judgment was delivered by me on Friday, 19 May 2017 at 4:30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Counsel/Solicitors:
Meredith Connell, Crown Solicitor, Auckland
Ms R Reed, Barrister, Auckland, for Mr Bublitz
Mr G Bradford, Barrister, Auckland, for Mr McKay
Mr S Kilian, Kilian & Associates, Solicitors, Auckland, for Mr Blackwood
Mr L Morrison, Palmerston North
Mr J Dixon, Barrister, Auckland, Amicus Curiae

R v BUBLITZ [2017] NZHC 1059 [19 May 2017]

Introduction

[1] The Lord Chief Justice of England and Wales has commented that:1

In fraud cases the volume of documentation obtained by the prosecution is liable to be immense. The problems of disclosure are intractable and have the potential to disrupt the entire trial process.

[2] So it has proven to be in this long running trial of four company directors of two failed finance companies, Viaduct Capital Ltd (Viaduct) and Mutual Finance Ltd (Mutual), undertaken by the Financial Markets Authority (FMA). The case started on 8 August 2016. On 23 March 2017, the Crown provided to defence a list of documents from the files of Deloitte (the Deloitte list), who were the investigative agents for the FMA, which were not disclosed on various grounds such as irrelevancy or litigation privilege. The list identified 14,619 documents. At that stage, the prosecution had closed its case and the evidence called on behalf of the principal defendant, Mr Paul Bublitz, was nearing its end. Such late disclosure was an admitted breach of the Criminal Disclosure Act 2008.

[3] The taking of evidence continued until 27 March 2017, but the trial has been at a standstill since then because of unresolved disclosure issues that arose following the provision of the Deloitte list and a further list of undisclosed documents from the files of the FMA itself (the FMA list). Defence counsel have taken the view that many of the withheld documents are properly disclosable. All counsel have worked hard to resolve those issues, with 5,506 documents recently disclosed. These disclosure issues will, however, probably require another two months to fully resolve, according to Crown counsel. It is only then that the trial could proceed. Defence counsel have already signalled their intention to apply to recall a large number of witnesses to question them about the recently disclosed documents.

[4] All four defendants made an application to abort the trial on the basis…

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 1059
Case: [2017] NZHC 1059
Decision Date: 19 May 2017

CaseChat Overview and Summary

In this case, four defendants were directors of two failed finance companies, Viaduct Capital Ltd and Mutual Finance Ltd. They were charged with various offences following an investigation by the Financial Markets Authority. The trial was a lengthy and complex one, marked by difficulties with disclosure. The prosecution breached the Criminal Disclosure Act 2008 by not disclosing a significant volume of documents. The defence argued that the timing and volume of the late disclosure substantially impacted their right to present an effective defence, resulting in prejudice. The court agreed and declared a mistrial, remanding the defendants to a further callover. The court considered that the breaches of the Criminal Disclosure Act gave rise to a reasonable danger or apprehension of a miscarriage of justice in the circumstances. The court found that the cumulative effect of the late disclosure, along with the delays and inability to cross-examine certain witnesses, had prejudiced the defendants' right to present an effective defence. The court exercised its inherent jurisdiction to declare a mistrial and abort the trial. The defendants were remanded to a further callover, and the Crown was required to advise the defendants whether it intended to proceed further against them and file an amended chargelist if so.

Orders