Vector Limited v H Limited - [2022] NZHC 181

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF DEFENDANTS PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-004-3323

[2022] NZHC 181

BETWEEN
VECTOR LIMITED

Prosecutor

AND

H LIMITED, M & S

Defendants

Hearing: 14 February 2022

Counsel:

DPH Jones QC and S S McMullan for the prosecutor

T M Molloy for H’s liquidators (excused from appearances) P F Wicks QC for M

J R Billington QC and HMZ Lanham for S L A O’Gorman QC to assist the Court

Date of reasons:

14 February 2022

Reissued:

16 February 2022 (redacted)

REASONS FOR JUDGMENT OF JAGOSE J

[Leave to withdraw charges: Criminal Procedure Act 2010, s 146]

This reasons for judgment was delivered by me on 15 February 2022 at 11.30am.

………………………… Registrar/Deputy Registrar

VECTOR LIMITED v H LIMITED, M & S [2022] NZHC 181 [14 February 2022]

[1] Prior to commencement of this five-week trial today, Vector sought leave to withdraw its charges against the individual defendants, M and S. I granted that leave this morning, on terms Vector will not in future lay charges against them concerning the Hobson Street Substation, with reasons to follow. These are those reasons.

[2]Section 146 of the Criminal Procedure Act 2010 relevantly provides:

Withdrawal of charge

(1) The prosecutor may, with the leave of the court, withdraw a charge before the trial.

(2) The withdrawal of a charge under this section is not a bar to any other proceeding in the same matter.

[3] Section 146 is the subject of at least four recent decisions of this Court.1 All identify the question of leave is “a case-specific assessment”, in which “potentially relevant considerations, no doubt not exhaustive” include:2
(a) the likelihood of further evidence emerging;

(b) the impact of the charges on the defendant. This includes matters such as the length of the period, what processes have happened such as a trial, whether there has been time in custody, and generally the effect of what has happened to date on the defendant;

(c) the reason for the evidential insufficiency arising;

(d) the seriousness of the charge;

(e) the existence of an ongoing investigation;

(f) the weight to be placed on the retrial provisions. This is twofold in the sense that they have the potential to impede further investigation but also can be seen as defining the circumstances in which there should be such an investigation; and

(g) the fact that a dismissal is the orthodox response.

So far as para (g) above is concerned, that ‘orthodoxy’ preceded s 146, “so there was no real choice”.3 Now, dismissal’s availability only is a factor, rather than

1 R v AB [2021] NZHC 3524, R v X [2021] NZHC 3279, R v Fawcett [2021] NZHC 2969 and R v Dronsfield [2021] NZHC 2561.
2 R v AB, above n 1, at [13].
3 At [14].

a presumptive or default position…

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 Vector Limited v H Limited

Details

AGLC: Vector Limited v H Limited [2022] NZHC 181
Case: [2022] NZHC 181
Decision Date: 14 February 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Vector Limited sought leave to withdraw charges against H Limited, M, and S concerning the Hobson Street Substation. The case required the court to decide whether Vector Limited should be allowed to withdraw the charges against the individual defendants, M and S, under section 146 of the Criminal Procedure Act 2010. This section allows a prosecutor to withdraw a charge with the leave of the court before the trial. The court had to consider several factors in granting this leave, including the likelihood of further evidence emerging, the impact of the charges on the defendants, the reason for the evidential insufficiency, the seriousness of the charge, the existence of an ongoing investigation, and the weight to be placed on the retrial provisions.

The court determined that it was in the interests of justice to grant Vector Limited the leave to withdraw the charges against the individual defendants, on the condition that Vector would not in future lay charges against them concerning the Hobson Street Substation. The court noted that Vector only sought findings of the defendants' guilt, rather than any penalty, and that the individuals' conduct was attributable to the corporate defendant, which would stand to bear the consequences. The individual defendants did not object to the withdrawal of the charges against them. The court also appointed Laura O’Gorman QC to assist in submissions on issues of law arising at trial. The names of all defendants continue to be suppressed from publication until the final disposition of the trial.

The final orders of the court were that Vector Limited was granted leave to withdraw the charges against the individual defendants, M and S, on the specified terms. The court formally appointed Laura O’Gorman QC as counsel to assist the Court, and all defence counsel were excused from attendance at the trial. The reasons for the judgment were embargoed from publication until 12 noon on Wednesday, 16 February 2022, to allow counsel to advise if there was anything warranting suppression.

Orders