R v Bublitz - [2017] NZHC 752

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-004-002293 [2017] NZHC 752

THE QUEEN

v

PAUL NEVILLE BUBLITZ
BRUCE ALEXANDER MCKAY RICHARD TIMOTHY BLACKWOOD LANCE DAVID MORRISON

Hearing: 13 April 2017

Appearances:

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

Judgment:

19 April 2017

JUDGMENT OF WOOLFORD J [As to Recusal Application]

This judgment was delivered by me on Wednesday 19 April 2017 at 3.00pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

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 752 [19 April 2017]

[1] The current trial commenced on 8 August 2016. It was originally set down for 12 weeks, but it has well exceeded its allotted time. It is now April 2017.

[2] There were originally five defendants. On 5 August 2016, the Friday before the trial commenced, I provided a sentence indication to Peter Chevin, one of the co- defendants, on the basis of agreed facts provided by counsel. He accepted that indication and pleaded guilty on the morning that the trial commenced. Mr Chevin’s sentencing was delayed due to the fact that the current proceedings were ongoing. However, Mr Chevin was eventually sentenced on 28 February 2016, more than six months after his guilty plea. To delay the sentencing any longer would have been contrary to the interests of justice.

[3] On 3 April 2017, counsel for Mr Bublitz filed a memorandum setting out concerns about apparent bias in this trial following findings made by me in the course of sentencing Mr Chevin. Counsel now applies for recusal of me as trial judge on the grounds that a fair-minded independent lay observer would have a reasonable apprehension of bias arising from the sentencing decision.

Submissions

Applicant’s submissions

[4] Ms Reed for Mr Bublitz acknowledges that the application is focused solely on apparent bias, and that actual bias is not at issue. Ms Reed submits that an independent observer would be concerned if, having already recorded a decision including factual findings in relation to Mr Chevin’s offending, I continue to preside over these proceedings as a finder of fact in a judge-alone trial. As a consequence, a fair-minded independent lay observer would consider there was a real possibility that I would not be impartial in determining the charges before the Court.

[5] This appears to arise from concerns about two issues:

(a) That in the course of sentencing I made “factual and credibility findings… on central issues in this trial”;

(b) That in the course of sentencing I heard “serious allegations” about

factual matters that…

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 752
Case: [2017] NZHC 752
Decision Date: 19 April 2017

CaseChat Overview and Summary

The case of R v Bublitz involved a complex criminal trial in the High Court of New Zealand. The defendants, Paul Neville Bublitz, Bruce Alexander McKay, Richard Timothy Blackwood, and Lance David Morrison, faced charges related to their involvement in a financial scheme that allegedly caused significant loss to the Crown. The case was notable for the application for recusal filed by counsel for Mr Bublitz, who argued that the trial judge had a reasonable apprehension of bias due to his involvement in the sentencing of a co-defendant, Peter Chevin. The application hinged on the judge's prior factual findings and the hearing of serious allegations during the sentencing process.

The primary legal issue before the court was whether the trial judge should be recused based on the grounds of apparent bias. The court was required to determine if a fair-minded, informed lay observer would have a reasonable apprehension that the judge might not bring an impartial mind to the resolution of the current trial. The court considered the submissions from both the Crown and the defence, as well as relevant legal principles and precedents.

In its judgment, the court thoroughly examined the nature of the factual findings made during the sentencing of Mr Chevin. It noted that the sentencing was based on an agreed set of facts and did not involve a detailed review of evidence or the making of credibility findings. The court concluded that the judge did not make substantive factual findings on matters relevant to the current trial but rather accepted certain facts as proved for the purpose of sentencing. The court also assessed whether hearing serious allegations during the sentencing process could give rise to apparent bias. It found that a fair-minded, informed lay observer would not reasonably apprehend that the judge would be biased, as the judge had not engaged in a detailed assessment of evidence or reached conclusions based on his own observations or contemplation.

Ultimately, the court declined the application for recusal, finding that there was no sufficient logical connection between the judge's prior involvement in the sentencing of Mr Chevin and any likelihood of bias in the current trial. The court emphasised that the agreed facts relied on for the purposes of the sentencing had not been agreed for the current trial, and all the facts in question were vehemently denied by the defence.

The court's decision was based on a careful analysis of the principles of apparent bias, the nature of the factual findings made during sentencing, and the understanding of a fair-minded, informed lay observer. The court's judgment highlighted the importance of maintaining public confidence in the impartiality of the judiciary and the need to balance the application of recusal guidelines with the practicalities of judicial proceedings.

Orders