R v Sullivan - [2014] NZHC 1105

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2011-076-1948 [2014] NZHC 1105

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 and 22 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
H B Rennie QC and P O'Neil for Financial Markets Authority

Judgment:

23 May 2014

JUDGMENT (NO. 10) OF HEATH J

This judgment was delivered by me on 23 May 2014 at 10.00am pursuant to Rule
11.5 of the High Court Rules
Registrar/Deputy Registrar

R v SULLIVAN [2014] NZHC 1105 [23 May 2014]

The applications

[1] Mr Sullivan, Mr White and Mr McLeod are being tried on charges involving dishonesty arising out of the collapse of South Canterbury Finance Ltd (South Canterbury). Mr Sullivan and Mr White were, at material times, directors of that company. Mr McLeod was its Chief Executive Officer.

[2] On 15 May 2014, another question concerning disclosure was raised on behalf of the accused. Counsel expressed disquiet at an alleged failure of the Crown to disclose information that was available to the Financial Markets Authority (the Authority). There had been evidence that there was a degree of collaboration between the Serious Fraud Office (the agency that initiated charges against the accused) and the Authority, in relation to the former’s investigation.

[3] As a result of that development I adjourned the trial to enable counsel for the accused to apply under s 30 of the Criminal Disclosure Act 2008 (the Act) for additional disclosure against the Crown.1 Timetabling directions were made.2

[4] As the Crown took the view that it had no obligation to disclose information in the possession or control of the Authority, as distinct from the Serious Fraud Office, I directed that the accused could apply, in the alternative, for a non-party disclosure hearing to obtain documents from the Authority. On 19 May 2014, I made an order for a non-party disclosure hearing (the non-party application), to be held on
22 May 2014. Both applications were to be heard together.

Background

[5] On 14 May 2014, while South Canterbury’s auditor, Mr Pearson was giving evidence, it became apparent that he had previously been interviewed by the Authority. It seemed likely that this was done as part of the Serious Fraud Office’s investigation into the possibility of fraudulent behaviour by directors, executives and employees of South Canterbury. That conclusion was supported by earlier evidence
from Serious Fraud Office’s Case Manager, Ms Tierney. She said that Mr Loader, a

1 R v Sullivan (No 9) [2014] NZHC 1023.
2 Ibid,…

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 1105
Case: [2014] NZHC 1105
Decision Date: 23 May 2014

CaseChat Overview and Summary

In this case, Edward Oral Sullivan, Robert Alexander White, and Lachie John McLeod were on trial for charges related to dishonesty arising from the collapse of South Canterbury Finance Ltd (South Canterbury). Sullivan and White were directors of the company, while McLeod was its Chief Executive Officer. The case involved issues of disclosure of information between the prosecution and the defence, and by non-parties, for the purposes of criminal proceedings. The court was required to decide whether the Financial Markets Authority (the Authority) was a "prosecutor" under the Criminal Disclosure Act 2008 (the Act), and whether the Authority had generated or received disclosable information while undertaking investigative functions on behalf of the Serious Fraud Office. The court found that the Authority was not a "prosecutor" as defined in the Act, and that the Serious Fraud Office, as the principal, had the ability to call for information from the Authority (as its agent) if it had been generated or received during investigations on behalf of the Serious Fraud Office. The court also noted that disclosure issues must always be considered on the basis that information in the possession or control of the Crown is not something held by it for the purpose of securing a conviction, but rather the property of the public to be used to ensure that justice is done. The application under s 30 of the Act and the application for non-party disclosure were both adjourned for further consideration, if necessary.

Orders