R v Sullivan - [2014] NZHC 1365

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2011-076-1948 [2014] NZHC 1365

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, 22, 26, 27, 28, 29, 30 May 2014
3, 4, 5, 10, 11, 12 and 17 June 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
R Raymond for Mr G R Brown (potential witness)

Judgment:

17 June 2014

Reasons:

17 June 2014

REASONS FOR (ORAL) JUDGMENT (NO. 13) OF HEATH J

R v SULLIVAN [2014] NZHC 1365 [17 June 2014]

Background

[1] During the course of an argument about whether the (so-called) co- conspirators’ rule of evidence should be applied in this trial,1 counsel for the Crown identified Mr Graeme Brown as an alleged unindicted participant in an unlawful joint enterprise in which the three accused, Messrs Sullivan, White and McLeod, together with the late Mr Hubbard, were said to be involved. This issue arose in the context of a trial arising out of the collapse of South Canterbury Finance Ltd (South
Canterbury). Messrs Hubbard, Sullivan and White were directors of that company, and Mr McLeod a former Chief Executive Officer. At material times, Mr Brown was the company’s Chief Financial Officer.

[2] It transpired that Mr Sullivan intended to call Mr Brown as a witness. I was alerted by counsel for Mr Sullivan to potential difficulties in calling Mr Brown, given the Crown’s additional indication that he might be at risk of prosecution. Mr Brown has previously been charged with one count of false accounting, but had been released from the indictment for reasons set out later.2

[3] Counsel for the accused advised Mr Brown’s counsel, Mr Raymond, of the Crown position in relation to Mr Brown’s potential criminal culpability. An application to the Solicitor-General was made to have Mr Brown immunised against further prosecution.

[4] For reasons into which it is unnecessary to go for present purposes, the Deputy Solicitor-General dealing with the application declined to make a final decision until such time as a draft brief of evidence for Mr Brown had been made available to counsel conducting this prosecution for comment. Understandably, counsel for Mr Sullivan was reluctant to provide the Crown with an opportunity to review the brief in advance of a likely witness being called, whether voluntarily or under subpoena. At that stage, it was clear that the immunity application would
founder.

1 The outcome of which is set out in R v Sullivan (No. 11) [2014] NZHC 1312.
2 See paras [15]–[19] below.

[5] This morning, I…

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 1365
Case: [2014] NZHC 1365
Decision Date: 17 June 2014

CaseChat Overview and Summary

The case of R v Sullivan arose from the collapse of South Canterbury Finance Ltd (SouthCanterbury) and involved the directors and former Chief Executive Officer, including the accused Messrs Sullivan, White, and McLeod. The trial faced complexities when the Crown identified Mr Graeme Brown, the Chief Financial Officer, as a potential unindicted participant in an unlawful joint enterprise. Mr Sullivan intended to call Mr Brown as a witness, but faced difficulties as the Crown suggested Brown might be at risk of prosecution. The primary legal issue was whether Mr Brown could invoke the privilege against self-incrimination under s 60(1)(b) of the Evidence Act 2006 if he were to give evidence. The court had to determine the likelihood of prosecution for Mr Brown for various offences related to his involvement with SouthCanterbury.

The court considered the potential jeopardy Mr Brown faced if he testified. This included his compliance with a Serious Fraud Office notice, his involvement in the Kelt Finance Ltd transaction, his role in preparing prospectuses, and the Crown Guarantee. The court found that Mr Brown was unlikely to face prosecution for most of these issues, considering the evidence already available to the Crown and the minimal likelihood of further charges. However, regarding the banking facilities disclosed in Prospectus 59, the court decided that Mr Brown should receive a self-incrimination warning due to the unclear evidence on whether he had passed on crucial information to the directors. The court ruled that Mr Brown would be entitled to invoke the privilege against self-incrimination if any information he provided would likely incriminate him for an offence punishable by fine or imprisonment.

The final ruling was that Mr Brown would not receive a self-incrimination warning for most issues, except for the banking facilities issue in Prospectus 59. This decision was based on the minimal likelihood of prosecution for most matters and the necessity to protect Mr Brown's rights under the Evidence Act.

Orders