R v Sullivan - [2014] NZHC 725

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2011-076-1948 [2014] NZHC 725

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 and 9 April 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:

9 April 2014

JUDGMENT (NO. 6) OF HEATH J

This judgment was delivered by me on 9 April 2014 at 2.00pm pursuant to Rule 11.5 of the High
Court Rules

Solicitors:

Registrar/Deputy Registrar

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
Cameron & Co, PO Box 1985, 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 and Ors [2014] NZHC 725 [9 April 2014]

The application

[1] On 25 March 2014,1 the Crown signalled an intention to apply to amend count 10 of the indictment. Count 10 is one of a number of charges of dishonesty brought against Messrs Sullivan, White and McLeod, arising out of the collapse of South Canterbury Finance Ltd (South Canterbury).2 At material times, Messrs Sullivan and White were directors of that company, and Mr McLeod its Chief Executive Officer.

[2] A formal application was filed on 28 March 2014.3 Substantive amendments are opposed by all three accused. Having received written submissions in advance, I heard the application on 4 April 2014, the 15th day of the trial.

Background

[3] In September 2008, as a result of the failure of significant financial institutions in the United States, financial markets around the world went into turmoil. A massive loss of public confidence in the financial sector resulted. Governments in different parts of the world were driven to decide what steps to take to restore public confidence.

[4] On Sunday 12 October 2008, the Minister of Finance announced the terms of (what I shall call) the Crown Guarantee Scheme, which was designed to protect investors and to restore confidence in the New Zealand financial markets. An explanation of the raison d’être of the scheme can be found in the Preamble to (the subsequently executed) deed of 19 November 2008, between Her Majesty the Queen (in right of New Zealand) and South Canterbury (the Guarantee Deed).

AGiven turmoil in world financial markets and the need to maintain public confidence in New Zealand’s financial system and in order to maintain the confidence of general public depositors in…

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 725
Case: [2014] NZHC 725
Decision Date: 9 April 2014

CaseChat Overview and Summary

In the High Court of New Zealand, the case of The Queen v Edward Oral Sullivan, Robert Alexander White, and Lachie John McLeod addresses allegations of dishonesty arising from the collapse of South Canterbury Finance Ltd (South Canterbury). Sullivan and White were directors of South Canterbury, while McLeod was its Chief Executive Officer. The Crown sought to amend count 10 of the indictment, which charges the accused with providing misleading information to the Minister of Finance through Treasury, leading to the execution of the Crown Guarantee Deed. The Crown alleged that the accused failed to disclose material related party lending while applying to join the Crown Guarantee Scheme. The accused opposed the amendments, arguing there was no variance between the proof and the charge and that the amendments would prejudice their defence.

The legal issue before the court was whether the proposed amendments to the indictment were justified under section 335 of the Crimes Act 1961. The court considered whether there was a variance between the proof and the charge, and if the accused would be misled or prejudiced by the amendments. The Crown argued that the amendments were formal and would not prejudice the accused. In contrast, the accused's counsel contended that the amendments would alter the nature of the charge and cause prejudice.

The court found that there was no variance between the proof and the charge that would warrant an amendment under section 335. The term "on or about" in the indictment was sufficiently broad to encompass the period in question. Additionally, the court determined that adding a new particular referring to a letter dated 17 November 2008 would not be appropriate, as it did not introduce a new charge but rather clarified the period of alleged offending. Therefore, the application to amend the indictment was dismissed, except for a formal correction to the date of Prospectus 58. The court ordered that the correction be made on the copy of the indictment used for the trial, with the change initialed and dated on 9 April 2014.

Orders