R v Sullivan - [2014] NZHC 1023

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2011-076-1948 [2014] NZHC 1023

THE QUEEN

v

EDWARD ORAL SULLIVAN ROBERT ALEXANDER WHITE 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 Apri 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

(ORAL) JUDGMENT (NO. 9) 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 Corlett, PO Box 4338, Shortland Street, Auckland

R v SULLIVAN [2014] NZHC 1023 [15 May 2014]

[1] I am currently presiding over a Judge-alone trial in respect of charges brought against Messrs Sullivan, White and McLeod arising out of the collapse of South Canterbury Finance Ltd (South Canterbury). The trial began on 12 March 2014.

[2] Yesterday, on 14 May 2014, evidence was being given by Mr Pearson. He was the person responsible for the audit of South Canterbury. He is currently under cross-examination.

[3] During the course of cross-examination it emerged that he had been interviewed by someone from the Financial Markets Authority (FMA). A transcript of that interview had not been disclosed to defence counsel. It was disclosed late yesterday afternoon before the Court rose.

[4] It had also become clear earlier that Mr Loader, a director of Ernst Young who was responsible for conducting a peer review of one of the audits, had been interviewed by FMA and that, at the time that information came to hand, had not been disclosed. Mr Loader is not a prosecution witness.

[5] Inquiries were made overnight, at my request, about any further transcripts of interviews or documents that might be relevant to the trial that were conducted by FMA. As a result of correspondence among counsel overnight and discussions this morning, Mr Corlett, on behalf of all accused, raised some disclosure questions with me.

[6] I was told, initially, that a number of people, some of whom have been witnesses in the trial, may have been interviewed by FMA without disclosure of any transcript. Mr Carruthers QC, for the Crown, informs me that FMA advises that the witness in respect of whom protection has been claimed represents the only witness interviewed whose transcript has not yet been disclosed.

[7]…

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 1023
Case: [2014] NZHC 1023
Decision Date: 15 May 2014

CaseChat Overview and Summary

This case involves a judge-alone trial against Messrs Sullivan, White, and McLeod, arising from the collapse of South Canterbury Finance Ltd. The trial commenced on 12 March 2014, with the latest developments occurring on 14 May 2014, during the cross-examination of Mr. Pearson, the auditor responsible for South Canterbury. Issues arose regarding the disclosure of transcripts from interviews conducted by the Financial Markets Authority (FMA) with certain individuals, including a witness under cross-examination, who were not initially disclosed to the defence counsel. This led to questions about jurisdiction and the disclosure obligations under the Criminal Disclosure Act 2008. Specifically, the court had to determine whether the prosecutor for disclosure purposes included both the Serious Fraud Office (SFO) and FMA or only SFO.

The court had to decide whether it had jurisdiction to compel FMA to disclose the transcripts, and if not, whether the defence could make an application under the Act against the Crown and FMA as a non-party. The court noted that it was necessary to identify all witnesses interviewed by FMA, ascertain any claims of confidentiality, and determine what documents could be disclosed without objection. The Crown presented a memorandum outlining its position on disclosure, indicating that FMA had an interview with a witness protected under certain statutes and would not disclose the transcript to SFO. The court issued directions for the defence to file applications for additional disclosure and for a non-party hearing against FMA by 10am on 19 May 2014, with the applications to be heard on 22 May 2014. These directions interrupted the ongoing evidence, with Mr. Pearson still under cross-examination and the forensic accountant's evidence deferred pending the resolution of disclosure issues.

Orders