R v Sullivan

[2014] NZHC 1359

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2011-076-1948 [2014] NZHC 1359

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, 22, 26, 27, 28, 29, 30 May 2014
3, 4, 5, 10, 11, 12 and 17 June 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
R Raymond for Mr Brown

Judgment:

17 June 2014

(ORAL) JUDGMENT (NO. 13) OF HEATH J

Solicitors:

Serious Fraud Office, PO Box 7124, Wellesley Street, Auckland

Meredith Connell, PO Box 2213, Auckland

Gresson Dorman & Co, PO Box 244, Timaru
Rhodes & Co, PO Box 13444, Armagh, Christchurch

Duncan Cotterill, PO Box 5, Christchurch

Counsel:
C Carruthers QC, PO Box 305, Wellington 6140

P H B Hall QC, PO Box 3750, Christchurch

R B Squire QC, PO Box 10157, Wellington

J H M Eaton QC, PO Box 13868, Armagh, Christchurch M A Corlett, PO Box 4338, Shortland Street, Auckland R Raymond, PO Box 9344, Christchurch

R v SULLIVAN [2014] NZHC 1359 [17 June 2014]

[1]      I will prepare and issue a written decision which I will endeavour to get to counsel today, or first thing tomorrow morning.

[2]      The decision will contain rulings which are (effectively) advance rulings on threshold issues arising from s 60 of the Evidence Act 2006.1   It will say that I will need to intervene with a self-incrimination warning in relation to any questions that may be put to Mr Brown about the interview (or interviews) with the Serious Fraud Office, to the extent it is suggested that false information was provided at any of them, or that documents were not supplied deliberately.

[3]      I will say that, as far as the Kelt transaction is concerned, I am not satisfied it is likely that a prosecution could result because I think it is inevitable that any Judge would conclude that Mr Brown should be treated as if he had been discharged on that count and received a s 347 discharge, which would have had the effect of an acquittal.

[4]      I take the view that, apart from the banking facility issue, any prosecution for an offence in relation to the prospectuses of the type set out in paragraph 3 of the Crown’s email to the Deputy Solicitor-General does not meet the threshold and no warning would be given.  It does not meet the threshold because I consider it would be fanciful that the Crown would issue proceedings after the conclusion of the trial that will have lasted more than four months and in respect of which the Crown had evidence available to it at the time it elected not to charge Mr Brown with such offences.

[5]      Given  that  Mr  Brown  was  involved  at  the  heart  of  the  email  traffic concerning the banking facilities I will give a warning in respect of any questions put to him about that.  So far as the Crown Guarantee is concerned, a warning would only relate to the banking facility aspect of the particulars, and that will be covered in any event by the warning relating to the possibility of prospectus charges. Otherwise,  I  consider  for  the  same  reasons  as  I  have  given  in  relation  to  the

prospectus  questions,  that  it  is  fanciful  that  any  further  prosecution  would  be

1      In particular, s 60(1)(b).

brought.  Having said that, I will remain alive to the possibility of any other issues arising.

[6]      Mr  Raymond  (counsel  for  Mr  Brown)  will  be  permitted  to  be  in  Court throughout the evidence of Mr Brown and, if he considered any specific issues arise that have the potential to put Mr Brown in jeopardy of criminal prosecution, he may raise them and I will deal with them in the course of the evidence.

[7]      Given the additional stress to which Mr Brown has been put, I make an order that he not be photographed or filmed during the course of giving evidence.   Nor should any report contain any reference to the presence of his counsel in Court while evidence is given.  Mr Raymond may not be filmed or photographed for the same reason.

[8]      So far as timetabling is concerned, Mr Hall will open for Mr Sullivan, at

2.15pm tomorrow, 18 June 2014.  He will lead evidence from three witnesses which is likely to take until the lunch break on 19 June 2014.

[9]      On the afternoon of 19 June 2014, Mr Eaton QC, for Mr McLeod, will call some character witnesses.  At 10am on Friday 20 June 2014, Mr Squire QC, for Mr White, will call two witnesses.

[10]     They will be called out of order so that final arrangements can be made in respect of the evidence to be given by Mr Brown whose evidence will commence at

10am on Monday 23 June 2014, subject to Mr Raymond’s availability.  Mr Raymond will check today whether he is required at another hearing in the High Court in Auckland next Monday.  If not, Mr Brown’s evidence will commence at that time. Otherwise, it will be delayed until 10am on 24 June 2014.

[11]     Reasons for these rulings will be set out in the written decision.

P R Heath J