Paul Bublitz sits in the High Court at Auckland during the opening morning of the trial against him and three colleagues from finance companies Viaduct Capital and Mutual Finance. Photo / Greg Bowker.
Paul Bublitz sits in the High Court at Auckland during the opening morning of the trial against him and three colleagues from finance companies Viaduct Capital and Mutual Finance. Photo / Greg Bowker.
The amount of information prosecutors provided late to the defendants in the now-aborted Viaduct Capital and Mutual Finance trial appears "unprecedented in New Zealand", a High Court judge says.
The Financial Markets Authority, which was prosecutor in the case, says it is reviewing its processes after the 9-month-long trial was aborted earlier this month.
The four company directors who were facing charges had not, as of Monday afternoon, been told of whether they will face any further action.
Paul Bublitz, Bruce McKay, Richard Blackwood and Lance Morrison were on trial in the Auckland High Court before Justice Mark Woolford.
McKay and Blackwood served as directors of Viaduct Capital while Morrison and Bublitz were on Mutual Finance's board.
Their judge-alone trial was originally expected to take 12 weeks when it started last August but stretched on and the FMA's prosecution was whittled down numerous times.
Richard Blackwood. Picture / NZ Herald
After aborting the trial earlier this month, Justice Woolford has now released his full reasons on why he made that decision.
The judge said a list detailing 14,619 documents withheld by prosecutors - for reasons such as irrelevancy or litigation privilege - was not provided to the defendants until March this year.
This breaches criminal disclosure rules as defendants are entitled to know "as soon as is reasonably practicable" when documents are withheld so they can push to get them if they wish.
The document list was provided by the Crown on March 23 and the trial ground to a halt shortly after that as the defence was of the view that many of the 14,619 documents should be disclosed.
Although more than 5000 documents have since been shared with defendants, the quartet were successful in their bid to abort the trial.
Justice Woolford said the Crown was clearly in breach of the disclosure rules.
"The breach was particularly problematic given it began to be rectified only after the principal defendant's case was nearly complete ... not only is the Crown required to disclose information to allow for equality of arms, but also because of the practical reality that the information relevant to the trial is in its hands. The obligation is further strengthened by the nature of the prosecutorial role. Crown prosecutors are required to act fairly," the judge said.
Bruce McKay. Picture / supplied
The errors in disclosure were the responsibility of the Crown, he said.
"There is no waiver of the prosecution's obligations if the defence does not enquire. I appreciate, however, that the burden of disclosure on the prosecution is enormous in a case of this kind," Justice Woolford said.
"There is, however, no suggestion that the disclosure breaches arose out of any bad faith on the part of the Crown. I do not consider, and I do not understand the defence to have submitted, that the Crown held back any documents or any lists in an attempt to derive benefit for themselves at trial. Non-compliance with disclosure obligations was inadvertent. Nonetheless, the scope of non-compliance was extensive. The volume of late disclosure is seemingly unprecedented in New Zealand," he said.
Justice Woolford, in considering whether or not to abort the trial, had to weigh up whether there was a real risk that the disclosure breach led to unfairness for the defendants.
While arguably none of the documents by themselves would have made a difference to the outcome, the judge said he believed the cumulative effect of them may have.
He also considered the impact of the long delays and complications of the trial to date.
"The changes to evidence called and the numerous adjournments necessary in this trial have made it increasingly complex and difficult to understand," the judge said.
"This is not just a result of the length of the trial, but of unnecessary length and complexity brought about by disruptions and changes in approach It will be further exacerbated by the current disclosure problems. Additional adjournments, followed by recall of witnesses and disjointed revisiting of evidence will provide further obstacles in the trial. By that stage the trial will have been beset by a range of errors and anomalies contrary to good practice for a fair trial ... there must be a point at which a trial becomes sufficiently long and convoluted to give rise to a risk of a miscarriage of justice," he said.
One of the biggest factors in granting the application to abort the trial was the timing of the late disclosure.
If the documents lists were disclosed during the first three months of the trial, the situation could have been remedied.
"The case cannot be rerun," he said.
"Although the issues raised in the late disclosure were live in the trial, the defence is entitled to prepare and present its case with full knowledge of all relevant documentation that both helps and hinders its case ... it is my view that the Crown breaches of the Criminal Disclosure Act have restricted the choices open to the defence in respect of the presentation their case, both in manner and extent," Justice Woolford said.
"It was regrettable to have granted the application to abort the trial, but I am of the view that there was a real possibility of unfairness to the defendants if the trial was to proceed," the judge said.
An FMA spokesman said yesterday that the issues over disclosure were inadvertent.
"There is no suggestion of any bad faith. We will consider our processes concerning disclosure in light of the issues that have arisen during the course of this trial," he said.
