The Queen v Edward Oral Sullivan Robert Alexander White and Lachie John McLeod
| Jurisdiction | New Zealand |
| Judge | HEATH J |
| Judgment Date | 06 May 2014 |
| Neutral Citation | [2014] NZHC 925 |
| Docket Number | CRI 2011-076-1948 |
| Court | High Court |
| Date | 06 May 2014 |
[2014] NZHC 925
CRI 2011-076-1948
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
Application under s30 Criminal Disclosure Act 2008 (Court order for disclosure of information) for additional disclosure from the Crown — Crown alleged the accused directors had engaged in dishonest conduct while acting on behalf of South Canterbury Finance Ltd — documents sought were referred to in a brief of evidence from a forensic accountant being called as an expert witness by the Crown — defendants claimed information had bearing on the forensic accountant's independence — documents included invoices submitted by witness' employer to the Serious Fraud Office and/or Meredith Connell and documents involving potential witnesses — whether documents should be disclosed — whether s56 Evidence Act 2006 (privilege for preparatory materials for proceedings) applied in the context of a criminal proceeding
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
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
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
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.
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
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 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
fair balance between the general public interest and the important personal rights of individual citizens. Defendants should not be handicapped by a lack of relevant information and by an imbalance of resources available to them in preparing a case compared with those resources at the disposal of the State. …
In seeking to achieve the correct balance, Parliament created two distinct regimes. One requires the prosecution to disclose information in its possession, or under its control. The other is concerned with disclosure required from non-parties to the criminal proceeding. The former puts an affirmative obligation on a prosecutor to disclose certain types of documents within stipulated times. The latter requires the Court to be satisfied that it is appropriate to force an outsider to the prosecution process to provide information in its possession or under its control. In both types of case, the Act specifies grounds on which relevant information may be withheld, as part of the balancing exercise to which the Law Commission referred 7
Disclosure by a prosecutor has two stages; “initial disclosure” 8 and “full disclosure” 9 If a defendant believes that a prosecutor has not disclosed all relevant information, or has wrongfully withheld information on one or more of the grounds set out in ss 16, 17 and 18 of the Act, he or she may request “additional disclosure” 10 When considering an application for additional disclosure the Court exercises a supervisory function to ensure that information that has been wrongfully withheld is disclosed 11
The regime for non-party disclosure is different. The Court is involved from the outset. The starting point is an application to the Court for a non-party disclosure hearing 12 If the application for a non-party disclosure hearing were granted 13 service of the application and a summons for the non-party to produce the information would be required 14 The non-party is summoned to attend at the court
Section 30 of the Act provides:
30 Court order for disclosure of information
(1) The defendant may apply to the Court for an order that a particular item of information or type of information in the possession or control of the prosecutor be disclosed on the grounds that—
(a) the defendant is entitled to the information under section 12, 13, or 14, as the case may be, and—
(i) the prosecutor failed to disclose the information; or
(ii) the prosecutor refused under section 14, 16, 17, or 18 to disclose the information, and—
(A) none of the reasons described in section 16, 17, or 18 for which information could be withheld applies to the information; or
(B) in the case of a refusal under section 17, the information ought to have been disclosed under section 17(3); or
(C) in the case of a refusal under section 18, the information ought to have been disclosed under section 18(2); or
(b) even though the information may be withheld under this Act, the interests protected by the withholding of that information are outweighed by other considerations that make it desirable, in the public interest, to disclose the information.
(2) If the Court is satisfied, on an application made under this section, that the defendant is entitled to the disclosure of any particular item of information or type of information, or that any particular item of
information or type of information should be disclosed to the defendant under subsection (1)(b), the Court may order that the item or type of information be disclosed to the defendant.
(3) An order made under this section may be made subject to any conditions that the Court considers appropriate.
(Emphasis added)
“Initial disclosure” is required by s 12 of the Act. This is given at the commencement of criminal proceedings, or as soon as practicable thereafter. It includes a summary that is sufficient to inform a defendant fairly of the facts on which it is alleged an offence has been committed, and the facts alleged against the particular defendant.
Sections 13 and 14 deal with full disclosure and requests for additional disclosure. Certain “standard information” must be provided as soon as is reasonably practicable after a defendant has pleaded not guilty 19 Section 13(2) and (3) provide:
13 Full disclosure
…
(2) The information referred to in subsection (1) is—
(a) any relevant information, including, without limitation, the information (standard information) described in subsection (3); and
(b) a list of any relevant information that the prosecutor refuses under section 15, 16, 17, or 18 to disclose to the defendant together with—
(i) the reason for the refusal; and
(ii) if the defendant so requests, the grounds in support of that reason, unless the giving of those grounds would itself prejudice the interests protected by section 16, 17, or 18 and (in the case of the interests protected by section 18) there is no overriding public interest.
(3) The standard information referred to in subsection (2)(a) is—
(a) a copy of any statement made by a prosecution witness; and
(b) a copy of any brief of evidence that has been prepared in relation to a prosecution witness; and
(c) the name and, if disclosure is authorised under section 17, the address of any person interviewed by the prosecutor who gave relevant information and whom the prosecutor does not intend to call as a witness; and—
(i) any written account of the interview, whether signed or unsigned, and any other record of the interview; and
(ii) any statement made to the prosecutor by the person; and
(d) any convictions of a prosecution witness that are known to the prosecutor and that may affect the credibility of that witness; and
(e) a list of all exhibits that the prosecutor proposes to have introduced as evidence as part of the case for the prosecution; and
(f) a list of all relevant exhibits in the possession of the prosecutor that the prosecutor does not propose to have introduced as evidence; and
(g) a...
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