R v Sullivan - [2014] NZHC 519

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2011-076-1948 [2014] NZHC 519

THE QUEEN

v

EDWARD ORAL SULLIVAN, ROBERT ALEXANDER WHITE and LACHIE JOHN McLEOD

Hearing: 12, 13 and 17 March 2014

Counsel: C Carruthers QC, N Flanagan and P Gardyne for Crown
P H B Hall QC, M Corlett and K H Cook for Mr Sullivan
R B Squire QC for Mr White
J H M Eaton QC for Mr McLeod

Judgment: 17 March 2014

Reasons: 20 March 2014

REASONS FOR JUDGMENT (NO. 5) 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 and ORS [2014] NZHC 519 [17 March 2014]

The application

[1] Messrs Sullivan, White and McLeod have been charged with various crimes of dishonesty arising out of the collapse of South Canterbury Finance Ltd (South Canterbury). On 11 March 2014, the day before the trial was due to begin, the Registrar referred a memorandum to me that had been signed by senior counsel for each accused. It identified a comment made by Ms Julie Read, the Director and Chief Executive of the Serious Fraud Office, at a conference in Auckland on Friday
7 March 2014.1

[2] Counsel for the accused took the view that Ms Read’s comment was such as to require me to recuse myself on grounds of apparent bias. Reliance was placed on the decision of the Supreme Court in Saxmere Company Ltd v Wool Board Disestablishment Co Ltd.2 On receipt of counsel’s memorandum, I prepared and issued a Minute in which I set out my recollection of events.3

[3] Before the trial commenced, counsel indicated that they wished to advance a submission that I should recuse myself. They asked for an adjournment of the trial to consider whether additional evidence should be put before the Court. I heard from counsel briefly at that time. I was not convinced that there was an arguable case for apparent bias on the basis advanced by counsel. Accordingly, I directed that the trial would proceed by having the accused arraigned and the Crown’s opening presented. I reserved to the accused the right to make a formal recusal application (with evidence) at the conclusion of the Crown opening, if that were considered
appropriate.4

[4] Following completion of the Crown’s opening, a formal application was signalled. After timetabling directions were made, an application was filed, with affidavit evidence in support. Two affidavits were received from Ms Read, in
opposition. Following a hearing on 17 March 2014, I dismissed the application. I

1 See para [8]…

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 519
Case: [2014] NZHC 519
Decision Date: 20 March 2014

CaseChat Overview and Summary

In the case of R v Sullivan, the accused, Edward Oral Sullivan, Robert Alexander White, and Lachie John McLeod, were charged with crimes of dishonesty related to the collapse of South Canterbury Finance Ltd. Before the trial began, the accused sought the recusal of the presiding Judge, Justice Heath, on the basis of a comment made by Julie Read, Director and Chief Executive of the Serious Fraud Office, at a conference in Auckland. The accused argued that Ms Read's comment, in which she said that they were "very fortunate to have Justice Heath as our trial Judge," indicated apparent bias on the part of the Judge. The Judge dismissed the application for recusal, and provided detailed reasons for his decision. The Judge found that an independent observer would not regard the comment as indicating bias on his part and that there was no logical connection between the comment and a reasonable apprehension of partiality. The Judge concluded that the application for recusal should be dismissed, as there was no real possibility that he would not act impartially.

Orders