R v Forsyth - [2013] NZHC 1246

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-004-10228 [2013] NZHC 1246

THE QUEEN

v

PAUL WINSTONE FORSYTH RICHARD GILBERT BETTLE VANCE ERIC ARKINSTALL

Hearing: 23 May 2013

Counsel

B Dickey for Crown
T J Castle for R G Bettle and V E Arkinstall
M Corlett for P W Forsyth

Judgment:

29 May 2013

JUDGMENT OF KATZ J [Application for adjournment]

This judgment was delivered by me on 29 May 2013at 2:30 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Auckland
Anderson Creagh Lai, Auckland
Breaden McCardle Chubb, Paraparaumu

R v FORSYTH & BETTLE & ARKINSTALL [2013] NZHC 1246 [29 May 2013]

Introduction

[1] Dominion Finance Group Limited (“Dominion Finance”) and its related company North South Finance Ltd (“North South”) were finance companies that raised funds for investment from members of the public. Paul Forsyth was a director of those companies. Three years ago, on 3 June 2010, Mr Forsyth and his co-directors were charged with seven offences under s 58 the Securities Act 1978. In particular it is alleged that during 2007 and 2008 they signed prospectuses and distributed advertisements relating to both companies that included untrue statements. The charges carry a maximum term of imprisonment of five years.

[2] One of the six directors has since died and two others have pleaded guilty. The charges against the remaining three (Messrs Forsyth, Bettle, and Arkinstall) are scheduled for a six week trial, commencing 17 June 2013.

[3] Mr Forsyth was represented by the law firm Gilbert Walker between July

2010 and February 2013. Gilbert Walker was given leave to withdraw in February

2013, as QBE Insurance would not confirm insurance cover and Mr Forsyth was

unable to meet Gilbert Walker’s ongoing legal fees out of his own resources.

[4] Following Gilbert Walker’s withdrawal, Mr Forsyth engaged two barristers to act for him. They undertook some work on Mr Forsyth’s behalf during February and March 2013. This included advising Mr Forsyth in relation to evidence he gave for the Serious Fraud Office in proceedings brought by it against a director and the Chief Executive Officer of Dominion Finance and North South:1

[5] On 5 April 2013 Mr Forsyth was provided with the terms on which his then legal team would be willing to represent him at trial. Those terms required Mr Forsyth to provide his legal advisers with cleared funds of $150,000, with the final instalment due by 20 June 2013.

[6] This was significantly less than previous estimates of Mr Forsyth’s likely defence costs. Mr Forsyth deposes, however, that despite his best efforts he has not

1 R v Whale & Ors [2013] NZHC 731.

been able to raise that sum. He has provided detailed evidence of his financial position to support his claim that he has neither net liquid assets nor a sufficient income stream to be able to fully fund his defence at trial. Mr Forsyth’s income is, however, significantly above the relevant legal aid threshold. He has accordingly been…

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 Forsyth

Details

AGLC: R v Forsyth [2013] NZHC 1246
Case: [2013] NZHC 1246
Decision Date: 29 May 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Mr Paul Forsyth, a former director of Dominion Finance Group Limited and North South Finance Ltd, applied for an adjournment of his trial on charges under the Securities Act 1978. The Crown opposed the adjournment. The Court was required to decide whether it was in the interests of justice to adjourn the trial, particularly given Mr Forsyth’s inability to fund his defence. The Court considered the right to a fair trial, the complexity of the charges, and the potential for an amicus curiae to assist Mr Forsyth. The Court concluded that there was a reasonable prospect of Mr Forsyth receiving a fair trial despite his lack of legal representation, provided certain measures were taken, such as appointing an amicus curiae and providing additional time for preparation. The Court declined the adjournment application but directed the appointment of an amicus, the provision of a written synopsis of the Crown’s opening, and additional time for preparation. The trial was scheduled to commence on 24 June 2013.

Orders