R v O'Sullivan - [2014] NZHC 1019

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2011-076-1948 [2014] NZHC 1019

THE QUEEN

v

EDWARD ORAL SULLIVAN ROBERT ALEXANDER WHITE and LACHIE JOHN McLEOD

Hearing:
12, 13, 17, 18, 19, 21, 24, 25, 26, 27, 31 March 2014

1, 2, 3, 4, 7, 8, 9, 14, 15, 16, 28, 29, 30 April 2014
1, 2, 5, 6, 7, 8, 9, 13, 14, 15 May 2014

Counsel:

C R Carruthers QC, N F Flanagan, P W Gardyne and
E Rutherford for Crown
P H B Hall QC, M A Corlett and K H Cook for Mr Sullivan
R B Squire QC for Mr White
J H M Eaton QC for Mr McLeod

Judgment:

15 May 2014

JUDGMENT (NO. 8) OF HEATH J

This judgment was delivered by me on 15 May 2014 at 4.30pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

R v SULLIVAN [2014] NZHC 1019 [15 May 2014]

Contents

The application  [1] Background  [4] Analysis
(a)      The charge  [14]
(b)      The s 344A application: legal principles  [19] (c)      The proposed evidence  [35] (d)      What is the probative value of the proposed evidence?  [44] (e)      Does the unfairly prejudicial effect outweigh the probative value? [47] Result  [60]

The application

[1] South Canterbury Finance Ltd (South Canterbury) carried on business as a finance company. Two of its directors, Messrs Sullivan and White, and its Chief Executive Officer, Mr McLeod, are on trial on various counts alleging dishonest conduct in the management and affairs of South Canterbury. The charges cover a period between 18 November 2004 and 20 July 2009. On 31 August 2010, South Canterbury was put into receivership with an estimated deficiency to secured depositors of $1.6 billion.

[2] The Crown applies, under s 344A of the Crimes Act 1961,1 for an order that intended evidence from a senior Treasury official, Dr Brian McCulloch, is admissible. His proposed evidence relates to Count 10 of the indictment.2 Before the trial began, the Crown had stated unequivocally that it did not intend to call Dr McCulloch to give evidence.

[3] The accused oppose the application. They contend that, had they been aware that Dr McCulloch was to give evidence on Count 10, they would have made a number of non-party disclosure applications3 in order to prepare adequately for cross-examination. Their decisions not to do so were based on the Crown’s decision
that Dr McCulloch would not be called as a witness.

1      As informations were laid before 1 July 2013, the controlling law is that in force before relevant parts of the Criminal Procedure Act 2011 became operative: Criminal Procedure Act 2011, s 397.
2      Set out at para [14] below.
3      See the discussion of the disclosure regime established by the Criminal Disclosure Act 2008 in R
v Sullivan (No 7) [2014] NZHC 925 at paras [4]–[7].

Background

[4] In October 2008, the New Zealand Government established a Retail Deposit Guarantee Scheme (the Crown Guarantee Scheme) in an attempt to cushion the effect of…

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 O'Sullivan

Details

AGLC: R v O'Sullivan [2014] NZHC 1019
Case: [2014] NZHC 1019
Decision Date: 15 May 2014

CaseChat Overview and Summary

In the High Court of New Zealand, three former executives of South Canterbury Finance Ltd are on trial for allegedly providing false information to the Crown in an application for the company to be admitted into the Crown Retail Deposit Guarantee Scheme. The Crown applied under s 344A of the Crimes Act 1961 for Dr Brian McCulloch, a former Treasury official, to be called as an additional witness. The accused opposed the application and contended that had they been aware that Dr McCulloch was to give evidence, they would have made non-party disclosure applications in order to prepare adequately for cross-examination. The accused's decisions not to do so were based on the Crown’s decision that Dr McCulloch would not be called as a witness. The Crown contended that Dr McCulloch’s evidence was relevant to whether the Secretary was induced to sign the Guarantee Deed, by any false representations made on behalf of South Canterbury. The accused submitted that the Crown’s late decision to call Dr McCulloch has caused unfair prejudice to them and infringed their fair trial rights. The court ruled that Dr McCulloch’s proposed evidence had marginal probative value and that the risk that admission of it would have an unfairly prejudicial effect on the proceeding did not have to be high to outweigh it. The court ruled against the Crown on its s 344A application and Dr McCulloch could not be called as a witness.

Orders