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    (at   least    in    circumstances    of   evidential insufficiency).

[4]    Charging documents here initially were lodged with the District Court in Auckland on 10 February 2017. As I previously have recounted, the proceeding’s commencement against the individual defendants since has been at issue in all the senior courts.4 There plainly is at least an evidential foundation for the charges.

[5]    Explicitly relying on ‘the impact of the charges on the defendant’, Vector tenders expert evidence — [redacted] — to the effect they are “significantly adversely affected as a result of the prosecution”. As against the ‘orthodox response’, Vector contends for “a sufficiency of evidence” against them as would make dismissal “inapt”, but on which it relies in any event against the corporate defendant as “principal offender”.

[6]    Having read those reports — [redacted] — I was satisfied it is in the interests of justice to grant Vector the leave sought, on terms (as Vector concedes) it will not in future lay charges against them concerning the Hobson Street Substation.

[7]    In reaching that conclusion, I noted Vector only sought findings of the defendants’ guilt, rather than any penalty. On Vector’s case, the individuals’ conduct is attributable to the corporate, which is to stand that consequence. Little thus was served by maintenance of the charges against the individuals, who do not object to the charges’ withdrawal against them. The factors that led me earlier to refuse severance are met by Vector’s concession.5

[8]    I therefore granted Vector leave to withdraw the charges against the individual defendants. The corporate defendant’s receivers do not intend to take any active steps to defend the company. There no longer are charges against which to defend the individual defendants. All defence counsel were excused from attendance at trial.

4      Vector Ltd v H Ltd [2021] NZHC 2093.

5      At [19]–[22].

[9]    Anticipating such excusal, I had made arrangements to, and now formally, appoint Laura O’Gorman QC as counsel to assist the Court, by making submissions on issues of law arising at trial. I previously have indicated some of those issues.6

[10]   All defendants’ names continue to be suppressed from publication “until the final disposition of trial”.7 I then will invite submissions on permanent suppression, better informed by the evidence at trial. Finally, these reasons for granting leave also are embargoed from publication until 12 noon on Wednesday, 16 February 2022, to enable counsel earlier to advise if there is anything in them warranting suppression.

—Jagose J

Counsel/Solicitors:

DPH Jones QC, Auckland P F Wicks QC, Auckland

J R Billington QC, Auckland L A O’Gorman QC, Auckland

T M Molloy, Barrister, Auckland HMZ Lanham, Barrister, Auckland Meredith Connell, Auckland Gilbert Walker, Auckland

Copy to:
Victoria Young, BusinessDesk

Dita De Boni, National Business Review

6      At [15]–[18].

7      Vector Ltd v H Ltd [2021] NZHC 1090 at [34].