R v Sullivan (No 7) - [2014] NZHC 925

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2011-076-1948 [2014] NZHC 925

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 and 6 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:

6 May 2014

JUDGMENT (NO. 7) OF HEATH J

This judgment was delivered by me on 6 May 2014 at 4.30pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

R v SULLVIAN [2014] NZHC 925 [6 May 2014]

Introduction

[1] The Crown alleges that Mr Sullivan, Mr White and Mr McLeod engaged in dishonest conduct in the course of particular activities which they carried out while acting on behalf of South Canterbury Finance Ltd (South Canterbury). At material times, Mr Sullivan and Mr White were directors of South Canterbury; Mr McLeod was its Chief Executive. The trial began on 12 March 2014.

[2] On 28 April 2014, immediately after the Easter break, Mr Sullivan, supported by Mr White and Mr McLeod, applied for additional disclosure from the Crown. The application is made under s 30 of the Criminal Disclosure Act 2008 (the Act).1

[3] The application was heard on 30 April 2014. On that day, a consent order was made in respect of one class of the documents to which the application was directed. They were documents to which reference was made in a brief of evidence from Mr Grant Graham, a forensic accountant from Korda Mentha, a firm based in Auckland. He is being called as an expert witness by the Crown. The remaining
aspects of the application are opposed.2

The scheme of the Act3

[4] The purpose of the Act “is to promote fair, effective, and efficient disclosure of relevant information between the prosecution and the defence, and by non-parties, for the purposes of criminal proceedings”.4 Disclosure is required to promote an accused person’s rights to a fair trial, and equality of arms. Those objectives are affirmed by the New Zealand Bill of Rights Act 1990.5 As the Law Commission made clear in a report that was partially responsible for introduction of the regime:6

A person accused of a crime must be made aware of the nature and extent of the allegation; without adequate disclosure, a defendant will be unable to prepare their defence properly. The extent to which defendants should be entitled to disclosure of information from the prosecution depends upon a

1      Set out at para [8] below.
2      The nature of the documents that remain in issue is set out at para [18] below.
3      Generally, see Cant v R [2013] NZCA…

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 (No 7)

Details

AGLC: R v Sullivan (No 7) [2014] NZHC 925
Case: [2014] NZHC 925
Decision Date: 6 May 2014

CaseChat Overview and Summary

In the case of R v Sullivan (No 7), the High Court of New Zealand considered an application for additional disclosure made by the defendants under the Criminal Disclosure Act 2008. The defendants sought disclosure of various documents, including invoices rendered by Korda Mentha in relation to investigations into South Canterbury Finance, and all documents/correspondence/records between the Serious Fraud Office (SFO), Crown, Meredith Connell, and any witness or potential witness in relation to the investigation. The Crown opposed the application, arguing that the documents were either irrelevant or could be withheld under the Act. The Court examined the application in light of the statutory framework and the principles of fair trial and equality of arms. The Court found that the invoices rendered by Korda Mentha were not relevant to the case against the accused and that disclosure would likely prejudice the commercial position of Korda Mentha or the SFO. The Court also held that there was no obligation to disclose general communications between the prosecutor and proposed witnesses about the form of any brief of evidence. As a result, the application for additional disclosure was dismissed, except in respect of the consent order made on 30 April 2014.

Orders