R v Bublitz

[2017] NZHC 936

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-004-002293 [2017] NZHC 936

THE QUEEN

v

PAUL NEVILLE BUBLITZ BRUCE ALEXANDER MCKAY RICHARD TIMOTHY BLACKWOOD LANCE DAVID MORRISON

Hearing:	4 - 10 May 2017
Appearances:	D Johnstone, B Finn and D Robinson for the Crown R Reed, H Ford and Y Wang for Mr Bublitz G Bradford and S Withers for Mr McKay S Kilian, D Dufty and F Hawkins for Mr Blackwood Mr Morrison in person J Dixon as Amicus Curiae
Judgment:	10 May 2017

RESULTS JUDGMENT OF WOOLFORD J [AS TO APPLICATION TO ABORT TRIAL]

Meredith Connell, Crown Solicitor, Auckland

Ms R Reed, Barrister, Auckland, for Mr Bublitz

Mr G Bradford, Barrister, Auckland, for Mr McKay
Mr S Kilian, Kilian & Associates, Solicitors, Auckland, for Mr Blackwood
Mr L Morrison, Palmerston North

Mr J Dixon, Barrister, Auckland, Amicus Curiae

R v BUBLITZ [2017] NZHC 936 [10 May 2017]

[1]      Counsel, I have given the matter anxious consideration.

[2]      Because of the admitted breaches of the Criminal Disclosure Act and the stage of the trial at which those breaches are sought to be remedied, together with the impact on the rights of the defendants to present an effective defence, I have decided that I should declare a mistrial and abort the trial.

[3]      If the breaches were known and were sought to be addressed before trial or even  within  the  first  three  months  of  trial,  in  my  view,  they  could  have  been remedied without major impact on the defendants’ rights to present an effective defence.  However, the breaches only became known after the Crown closed its case and the evidence for Mr Bublitz was ending in late March.

[4]      As a consequence we have not heard evidence for six weeks.  Crown counsel, Mr Johnstone, submitted that he would like to say that it would only take another month  to  resolve  the  outstanding  disclosure  issues,  but  acknowledged,  quite properly, that another two months would be more likely.   There would then be applications to recall a large number of witnesses so that the issues arising from late disclosure could be put to them.  Mr Johnstone submitted that there was no need to recall witnesses as the issues had been live throughout the trial, but I am not so sure. Consideration  would  also  have  to  be  given  allowing  Mr Bublitz  to  re-run  his defence.

[5]      All this, in my view, must be seen in the context of a trial in which I have refused two applications to stay the proceedings or dismiss the charges on other grounds.  When I refused the first application last year, which was largely based on delays to date and the likely length of trial, I commented that it would be unnecessarily burdensome on all concerned if the trial continued to May or June this year.  It is now mid-May and there is still no end in sight.1

[6]      When I refused the second application earlier this year, I allowed applications to recall a number of witnesses to remedy any perceived prejudice when the Crown chose  not  to  call  Mr  Jordan  as  an  expert  witness  and,  instead,  wished  to  lead

evidence from Ms Hodgkins.2    If witnesses are now recalled it could well be the third time that some of them have given evidence.

[7]      In the circumstances, the trial is aborted.  I will issue a full reasoned decision in due course – hopefully by the end of next week.

[8]      All defendants are now remanded on existing terms of bail to callover at

9:00 am on Wednesday, 5 July 2017.    Personal attendance by the defendants is excused if they are represented by counsel.

Woolford J