R v Bublitz
[2017] NZHC 752
•19 April 2017
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 CuriaeJudgment:
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 are before me in the current trial.
[6] Ms Reed identifies five particular “factual findings” from Mr Chevin’s sentence indication or sentencing that she considers relevant. Of these, the latter two are emphasised most in her submissions:
(a) that Mr Bublitz was in control of various Hunter Capital entities;
(b)that Mr Chevin was from the outset substantially involved in the planning around Mutual Finance Limited’s operations;
(c) that Mr Chevin worked for Mr Bublitz;
(d)that Mr Chevin was part of a “scheme”, impliedly including the defendants in this proceeding, which caused significant loss to the Crown; and
(e) that Mr Bublitz directed Mr Chevin to destroy or dispose of documents sought by the Financial Markets Authority (FMA).
[7] For the Crown, Mr Johnstone submits that this case does not meet the threshold for recusal. He submits that the Court did not make “factual and credibility findings” on central factual issues in this trial in Mr Chevin’s sentencing. Instead, as is required by s 61(3) of the Criminal Procedure Act, the sentence indication proceeded on the basis of an agreed set of facts. The sentencing did likewise. The Crown submits that the agreed facts were not limited to the summary of facts provided for that purpose, but were also contained in the submissions of counsel.
[8] Accordingly, the Crown submits that the Court was required to undertake limited factual assessments for the purposes of Mr Chevin’s sentence indication and sentencing. The Court did not receive competing accounts of the nature of the scheme, nor of Mr Chevin’s cooperation with authorities.
[9] Importantly, in light of Ms Reed’s submissions, the Crown submits that there was no factual finding on the issue of Mr Bublitz and Mr Chevin’s respective roles in any concealment of documents. The Crown chose not to dispute this fact for the purposes of the sentencing (in part because they would have been required by s 24 to disprove it beyond reasonable doubt). Therefore the Crown’s submissions included the following acknowledgement:
It is not in dispute that following notice of the FMA’s investigation in 2012, Mr Chevin was instructed by Mr Bublitz to destroy or dispose of a substantial volume of documents. In response he instead drew those documents to the attention of the proper authority (the FMA).
[10] The Crown submits that as the Court was not called upon to resolve any of the issues relied upon to establish the appearance of bias, there can be no basis for any apprehension that I might not bring an impartial mind to the ultimate resolution of those questions. Nonetheless, the Crown submits that even if I had determined matters of fact for the purposes of Mr Chevin’s sentencing, there remains no reason for a fair-minded, fully informed observer to reasonably apprehend that an impartial mind would not be brought to bear on trial issues.
Analysis
[11] Both parties pointed to the test for recusal of a judge identified in Saxmere Co v Wool Board Disestablishment Co Ltd, in which the Supreme Court held unanimously that the enquiry was directed towards whether:1
a fair-minded and informed lay observer would have a reasonable apprehension that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
[12] As Ms Reed notes, this acknowledges the requirement that justice “should both be done and be seen to be done” as “[u]nless the judicial system is seen as independent and impartial the public will not have confidence in it and the judiciary
who serve in it”.2
1 Saxmere Co v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [89] per McGrath J. See also at [3] per Blanchard J, at [37] per Tipping J, at [127] per Anderson J. The test arose from a consideration of international authorities, notably Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337.
2 At [3].
[13] The principle expressed in Saxmere gives rise to a two stage test:3
(a) first, the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; and
(b) secondly, there must be “an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.”
[14] This test was adopted by the High Court Recusal guidelines in February this year.4
[15] The lay person from whose perspective apparent bias is assessed is “a reasonable, informed, practical and realistic person who considers the matter in some detail”.5 Although the test is one of possibility of bias, not probability, “a vague
sense of unease or disquiet” is not enough.6 The person asserting a reasonable
apprehension of apparent bias is required to firmly establish that is the case.
[16] The following observation of McGrath J in Saxmere is also germane:7
…of particular relevance is that judges should not automatically disqualify themselves in response to litigants’ suggestions that there is an appearance of lack of impartiality. Judges allocated to sit in a case have a duty to do so unless they are disqualified. If a practice were to emerge in New Zealand of judges disqualifying themselves without having good reason, litigants may be encouraged to raise objections which are based solely on their desire to have their case determined by a different judge who they think is more likely to decide in their favour. Such a development would soon raise legitimate questions concerning breach of the rights of other parties.
[17] This is adopted in the High Court Recusal Guidelines, which note that a Judge should “not accede too readily to suggestions of bias”.8 However, this must be balanced against the guideline that if “there is doubt about whether there may properly be an appearance of bias, it may be prudent for the judge to decline to sit in
that case”.9
3 Saxmere at [4], per Blanchard J, citing Ebner v Official Trustee in Bankruptcy, above n 1, at [8].
4 High Court of New Zealand Recusal Guidelines, 28 February 2017 at [1.2].
5 Saxmere, above n 1, at [78].
6 Saxmere, above n 1, at [94]
7 At [88].
8 At [1.5.1].
9 At [1.5.4].
To what extent were factual findings made during the sentencing process?
[18] Mr Chevin’s sentencing arose as a result of a guilty plea and a sentence indication. The sentence indication proceeded on the basis of an agreed set of facts.10 At the sentencing, significant factual matters were not in dispute, except to the extent that Mr Chevin’s culpability and agreed personal factors compared to precedent and impacted upon the starting point.
[19] The Sentencing Act 2002 sets out how such agreed upon facts should be treated:
24 Proof of facts
(1) In determining a sentence or other disposition of the case, a court—
(a) may accept as proved any fact that was disclosed by evidence at the trial and any facts agreed on by the prosecutor and the offender; and
(b) must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.
…
[20] Ms Reed’s primary concern is that during the course of sentencing I made factual and credibility findings that may give rise to apparent bias. Ms Reed notes that the indication and decision found that there was a scheme or criminal conspiracy of the type alleged by the Crown, and that Mr Chevin was involved and played a central role in Mutual Finance Limited. Moreover, that Mr Bublitz had control over the Hunter Capital group of entities.
[21] These facts are essential to the offence to which Mr Chevin pleaded guilty, either expressly or impliedly. It was inherent in Mr Chevin’s guilty plea as a party to theft by a person in a special relationship under s 220 of the Crimes Act 1961 that Mr Chevin had participated in a scheme which had dealt with funds over which members of the scheme had control.
[22] As a result, I was required to accept these facts as proved under s 24(1)(b) of the Sentencing Act for the purpose of sentencing. This did not amount to a finding
10 Criminal Procedure Act, s 61(3).
of fact by me. I did not review evidence or make a finding of fact or credibility in relation to these matters. There were not competing accounts put before me.
[23] I acknowledge that other factual matters relevant to the sentencing, such as the degree of Mr Chevin’s cooperation with the FMA, were not essential to the guilty plea. Nonetheless, these matters were not disputed at sentence. In particular, that Mr Bublitz had attempted to conceal the documents, and the circumstances in which Mr Chevin drew them to the attention of the FMA were facts agreed by the prosecutor and the offender. As a result I was able to accept these facts as proved under s 24(1)(a).
[24] I am therefore satisfied that I did not make substantive factual findings on matters relevant to this trial. I accepted as proved facts essential to the plea of guilty and those agreed on by the prosecutor and offender, but did not consider and reach conclusions on the evidence. It is clear from Saxmere that the reasonable observer has an understanding (albeit not perfect) of the legal system and the facts of the matter. That reasonable observer would therefore be alive to the reality that the Judge at sentencing had not been presented with detailed evidence, but with facts agreed to by the parties.
Do serious allegations about factual matters give rise to apparent bias?
[25] The issue giving rise to any apprehension of apparent bias, therefore, is that the facts listed by Ms Reed have been put before me in advance of the trial. This amounts to Ms Reed’s secondary concern, that in the course of sentencing I heard “serious allegations” about matters now before me. It is the hearing of these serious allegations that is the matter that might possibly lead me to decide this case other than on its legal and factual merits for the purposes of the first step of the Saxmere two-stage test.
[26] The lay observer can be taken to have some knowledge about the practice of judges, much as the Supreme Court in Saxmere found that the properly informed observer will have an understanding of the relationship between judges and members
of the legal profession.11 I accept that “[t]he courts must be careful not to subvert the hypothesis by ascribing too much legal knowledge” but “if the court does not impute to the observer some knowledge about how barristers and judges commonly interact, it may arrive at a hypothetical opinion of a hypothetical observer which does not reflect reality”.12
[27] A fair-minded and informed lay observer who had inquired into the details of this case and understood that the facts at issue had been agreed and put before the Judge by the parties would not reasonably apprehend that the Judge would be unable to consider disputed evidence on those facts at trial without unconscious bias. There is little to lead to a suspicion of bias. A decision made in the context of agreed facts and a guilty plea is unlikely to prejudice the Judge in favour of a particular finding on expanded and fresh evidence. The Judge has not engaged in a considered weighing up of competing evidence or assessment of credibility, nor reached a conclusion based on his or her own observations or concerted contemplation. A reasonable observer may well feel that the Judge has yet to consider the evidence as to those facts at all; rather accepted them as proved for the purpose of the sentencing, knowing full well that they may be contested at a later point on fuller evidence. There is little to give rise to the apprehension that the Judge would have any reason to lean towards a particular view of the facts, even unconsciously. There is nothing to suggest that the Judge has a closed mind to the merits of the case.
[28] McGrath J noted in Saxmere that it is important to be specific in considering the connection under the second limb. Thus “the facts in relation to the association relied on must be spelt out, as well as why it is reasonable to be concerned that they, objectively, might lead the Judge to decide the case other than on its true merits”.13 I do not consider that Mr Bublitz has firmly established that connection. The question of unconscious bias “must be answered in an analytical way rather than as a matter of general impression or presumption”.14 I do not see a clear link between a judge
hearing an allegation as to facts without serious evidential dispute in a sentencing of
11 See, for example, [39] per Tipping J.
12 At [6].
13 At [93].
14 At [42].
a co-defendant, and a real possibility that the judge would weigh that unduly in a subsequent trial.
[29] I consider McGrath J’s warning that judges should not recuse themselves too lightly of relevance in this instance. If the mere fact of having heard serious allegations was sufficient to give rise to apparent bias, then judges would be expected to recuse themselves in a great deal of cases merely due to having carried out their routine judicial role. Judges would not, for example, be able to hear evidential matters in advance of trials over which they presided. Ms Reed argues that this could be limited only to judge-alone trials. I am not convinced of the distinction, but even if it is applied there would still be a considerable number of cases affected. Similarly, judges who had heard guilty pleas from co-defendants in advance of judge-alone trials might, on Ms Reed’s logic, be seen by a reasonable observer to be subject to unconscious bias as they would know that the guilty plea of the co-defendant meant that the essential facts must be accepted as proved in respect of the co-defendant. I do not accept that apparent bias arises in all those cases; nor do I consider it arises here.
[30] My view on this matter aligns with that of the Court of Appeal in Bancroft v R.15 The Court of Appeal commented on Brewer J’s decision to recuse himself in R v Bogue.16 Brewer J was scheduled to hear a disputed facts hearing in advance of Mr Bogue’s sentencing. The Judge recused himself on the basis that he had previously presided over the trial of, and then sentenced, Mr Bogue’s co-
offenders.17 During the course of those hearings, he had made evidential decisions
averse to Mr Bogue, and heard evidence about conduct by Mr Bogue relating to charges that had been withdrawn following a deal between Mr Bogue and the Crown. Further, at the sentencing of Mr Bogue’s co-offenders, he had rejected counsel’s submission as to the quantum of methamphetamine involved in a charge relating to Mr Bogue and a co-offender, and made a factual finding as to the quantum involved. This bore directly on the question to be determined at the disputed fact
hearing.
15 Bancroft v R [2015] NZCA 192.
16 R v Bogue [2014] NZHC 1989.
17 R v Murray [2014] NZHC 1843.
[31] While Brewer J recused himself from Mr Bogue’s disputed fact hearing, the
Court of Appeal commented:18
In our view, there was no need in the circumstances for the trial Judge to feel constrained about conducting the disputed facts hearing. On the contrary, it was the most desirable course of action. He had presided over an eight week trial and had a comprehensive knowledge of the background facts and the activities of the syndicate. He was in a far better position than any other judge to determine the quantity of methamphetamine involved. He was, of course, required to keep an open mind to the possibility that the fresh evidence might raise doubts about his prior conclusions but there is no reason why a fair-minded, impartial and properly informed observer could reasonably think that he would not do so.
[32] In doing so, the Court of Appeal explicitly held that the Saxmere test as to whether a judge ought to recuse him or herself on the basis of unconscious bias was not met by the situation in Bogue.19 As I have made clear, I am of the view that the current case is less likely to give rise to a reasonable apprehension of bias than Bogue, as Brewer J had previously considered evidence and made factual findings, whereas I am of the opinion that I have not. In light of the Court of Appeal’s
reasoning, there is no reason to think that an informed observer would think that a judge in my situation would not have an open mind to new evidence.
Summary
[33] I am not satisfied that in the circumstances of this case, a fair-minded and properly informed lay observer would have a reasonable apprehension that I might not bring an impartial mind to the trial. Any apprehension would certainly not go beyond a “vague sense of unease or disquiet”. There is not a sufficient logical connection between the fact that I presided over Mr Chevin’s sentencing and any likelihood of bias.
[34] Accordingly, I decline the application for recusal.
[35] As requested by counsel, I further emphasise that I decided Mr Chevin’s
sentence on the basis of agreed facts put before me by counsel. The sentencing did not result in factual findings by me after hearing evidence. The sentencing decision
18 Bancroft v R, above n 12, at [14].
19 Bancroft v R, above n 12, at footnote 10.
certainly does not have any bearing on the factual matters now before the Court. The agreed facts relied on for the purposes of that sentencing have not been agreed for the purposes of the current trial. All the facts listed by Ms Reed, set out in this judgment at [5], are vehemently denied by the defence. This includes allegations of the existence of a “scheme” in the first place. It appears that some of the media reporting around that sentencing may not have made that position clear. This is unfortunate. The factual matters at issue in this case will not be determined by this Court until after all the evidence and the submissions of counsel have been heard.
……………………………….
Woolford J
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