R v Sullivan - [2014] NZHC 1312

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2011-076-1948 [2014] NZHC 1312

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 and 11 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

Judgment:

11 June 2014

(ORAL) JUDGMENT (NO. 11) 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 v SULLIVAN [2014] NZHC 1312 [11 June 2014]

[1] The Crown prosecutes Messrs Sullivan, White and McLeod on a series of discrete counts, all arising out of their participation in the management and affairs of South Canterbury Finance Ltd (South Canterbury). Messrs Sullivan and White are former directors of that company, while Mr McLeod was its Chief Executive Officer. The charges span a period from 19 November 2004 until 9 February 2010.

[2] Just before the conclusion of the Crown case, counsel for the Crown asked me for a ruling that it was permitted to rely on the so called co-conspirators’ rule. That common law rule has been expressly preserved by s 12A of the Evidence Act
2006. The expression is something of a misnomer as it extends beyond cases in which the crime of conspiracy is charged, to cases in which two or more alleged offenders are acting in furtherance of a common purpose.1 There are no conspiracy charges in the indictment, so the latter is the basis on which the Crown puts its application.

[3] Because fair trial issues were engaged, the application was argued over three days; 5 and 10 June 2014, and today. By the time the Crown came to reply this morning, it became apparent that the rationale for making the application disappeared if a more direct ruling were given on the extent to which statements made by one accused that were either made in the presence of another or copied to that person in writing, might be admissible in evidence against the co-accused.

[4] As Mr Eaton QC, for Mr McLeod submitted yesterday, that issue turns on s 12A(b)…

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 Sullivan

Details

AGLC: R v Sullivan [2014] NZHC 1312
Case: [2014] NZHC 1312
Decision Date: 11 June 2014

CaseChat Overview and Summary

The case of R v Sullivan concerns the prosecution of three individuals, Sullivan, White, and McLeod, who were directors or officers of South Canterbury Finance Ltd (South Canterbury). The charges stem from their involvement in the management and affairs of the company from 19 November 2004 until 9 February 2010. The Crown sought to apply the co-conspirators' rule, a common law principle preserved by section 12A of the Evidence Act 2006, to admit statements made by one accused in the presence of or copied to another accused. The primary legal issue was whether statements made by one accused, which were in the presence of or copied to another accused, could be admitted against the latter under section 12A(b) of the Act.

The court concluded that the statements could be admitted if the co-accused accepted the truth of the statement, either pre-trial, during police questioning, or when the co-accused testified. The court also ruled that cross-examination on the topic of any alleged joint unlawful enterprise by the witness called by the defence was impermissible, but that the Crown could cross-examine on issues of credit. The court ordered that certain discussions from the arguments be suppressed from publication due to the withdrawal of the Crown's application and the impermissibility of cross-examination on certain topics.

The court's ruling allowed the trial to proceed with the understanding that statements made by one accused could be admitted against a co-accused if the latter accepted the truth of the statement. The suppression order ensured that certain details from the arguments would not be published, maintaining the integrity of the trial process.

Orders