R v Sullivan - [2014] NZHC 446

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2011-076-1948 [2014] NZHC 446

THE QUEEN

v

EDWARD ORAL SULLIVAN, ROBERT ALEXANDER WHITE and LACHIE JOHN McLEOD

Hearing: 12 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: 12 March 2014

(ORAL) JUDGMENT (NO. 4) 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 446 [12 March 2014]

Introduction

[1] Messrs Sullivan, White and McLeod are to be tried on various counts of fraud arising out of the collapse of South Canterbury Finance Ltd. The trial was due to start today.

[2] Yesterday, the Registrar referred to me a memorandum signed by senior counsel for each accused in which reference was made to a comment that occurred during the course of a conference in Auckland last Friday, 7 March 2014. I was chairing that conference. The speaker at the relevant time was Ms Julie Read, the Director and Chief Executive of the Serious Fraud Office. Counsel asked that I consider recusal, having regard to the decision of the Supreme Court in Saxmere
Company Ltd v Wool Board Disestablishment Company Ltd.1

Background

[3] On receipt of counsel’s memorandum, I prepared and issued a Minute in which I set out my recollection of events. I summarise the content of that Minute. The conference held in Auckland last Thursday and Friday (6 and 7 March) is an annual conference on insolvency law presented by INSOL New Zealand. It is generally attended by senior and intermediate practitioners in that field, from legal, accounting and banking backgrounds. I have chaired that conference since its inception in 2002, at a time just before my appointment to the Bench. I am asked to chair the conference because of my experience, both as a practising lawyer and a judicial officer, in dealing with corporate and insolvency law.

[4] One of the sessions was being presented by Ms Read. Her co-presenter was Ms Belinda Moffatt, of the Financial Markets Authority. The purpose of the session was to apprise delegates of the work being undertaken by the Serious Fraud Office and the Financial Markets Authority, and the policies each was employing in carrying out their respective functions.

[5] Before the conference I had not met Ms Read. In the break preceding her session, I introduced myself to her. My recollection…

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 446
Case: [2014] NZHC 446
Decision Date: 12 March 2014

CaseChat Overview and Summary

The case of R v Sullivan involved Messrs Sullivan, White, and McLeod, who were facing various counts of fraud related to the collapse of South Canterbury Finance Ltd. The trial was set to commence, but the accused's counsel requested the trial judge, Heath J, to consider recusal. This request followed a comment made by Ms Julie Read, the Director and Chief Executive of the Serious Fraud Office, during a conference where she stated that it was fortunate to have Justice Heath as the trial judge. The accused's counsel argued that this comment raised the possibility of perceived bias.

The legal issue before the court was whether the comment made by Ms Read during the conference warranted the trial judge's recusal. Heath J examined the test for recusal, which involves a two-stage inquiry: identifying what might lead a judge to decide a case other than on its merits and articulating the logical connection between the matter and the feared deviation from deciding the case on its merits. The Supreme Court in Saxmere had established that the question is whether a fair-minded lay observer might reasonably apprehend a possibility of bias. Heath J considered whether, based on the current information, there was a basis for such apprehension.

Heath J concluded that there was no evidence to suggest that the comment indicated any bias on his part. He believed that the comment was more of an expression of satisfaction with having an experienced judge presiding over the trial. Heath J found no link between the comment and any potential deviation from impartial judgment. Therefore, on the available information, he decided not to recuse himself but allowed the accused the opportunity to revisit the issue if new material evidence emerged. Heath J proposed that the trial should proceed, and if the accused wished to pursue the recusal issue further, they could do so after the Crown's opening statement.

In summary, Heath J ruled that the trial would proceed as scheduled, allowing the accused to address the issue of potential bias further if they wished, after the Crown had presented its opening statement.

Orders