Justice Paul Heath last night released his version of events that led to a challenge of perception of bias at the South Canterbury Finance trial in Timaru yesterday.
Defence counsel Pip Hall QC, supported by the two other defence lawyers, Jonathan Eaton QC and Bruce Squire QC, yesterday sought to de-rail the trial before it had begun.
Mr Hall claimed a comment by Serious Fraud Office director Julie Read at a recent insolvency conference in Auckland raised questions of “perception” of potential bias.
The comments had been reported to Mr Hall by a Wellington legal professional, who had sent him an email after attending the conference.
Justice Heath’s exasperation in court was palpable as he questioned how the comments by a third party could be construed as resulting in bias from him, requiring him to step down from the case.
He had managed the case for 18 months and had ruled on interlocutory matters, he said.
“What has changed?” he asked the lawyers.
“The only change is the nature of the comment made by Ms Read during the conference. Whatever her reasons may have been for expressing that view, I do not currently see on the evidence any link between it and whether I will perform my judicial function impartially.”
After considerable discussion and refusal by the defence lawyers to back down, Justice Heath decided to allow the Crown prosecutor Colin Corruthers QC to proceed with his two-day opening address and said time would be set aside next week to argue the bias question before 40 witnesses were called.
Last night Justice Heath released his written judgment about the comments by Ms Read.
“Before the conference I had not met Ms Read. In the break preceding her session, I introduced myself to her. My recollection is that I told her I did not want her to say anything about the South Canterbury Finance prosecutions as I was to be the trial judge.
“I intended to convey clearly that nothing should be said about the merits of the case. Ms Read did not appear to know that I was to be the trial judge or may have forgotten.
“During the course of her presentation, Ms Read reached a slide that referred, without any comment as I recall, to the South Canterbury Finance prosecutions.
“At that stage a comment was made to the effect that ‘we are very fortunate to have Justice Heath as our trial judge.’
“Those are the words that have been recalled by Ms Read in an affidavit that she swore today. My own recollection was that the word ‘lucky’ was used, but there is no material difference in the use of those words in the context in which they were spoken. They can be regarded as synonymous.
“The clear impression I formed was that the comment indicated no more than that Ms Read was pleased that a person with some experience in the area was presiding over the trial.
“I did not consider that any person in the audience could have thought that I was someone biased in the Serious Fraud Office’s favour. Had I thought that that was remotely possible, I would have raised the point with counsel.
“It is important that judges should not too readily disqualify themselves from hearing and determining cases. Public confidence in the judicial system is not necessarily enhanced if Judges are seen to shrink from making difficult decisions when there is demonstrably no injustice involved.
“The question is whether a fair-minded lay observer might reasonably apprehend a possibility of bias on the part of the Judge.
“On the information currently available I decline to recuse myself. I am, however, satisfied that the accused should have the opportunity of having this issue revisited should any material evidence that I have not considered to date become available for consideration.
“In the meantime, I propose to proceed with the trial by having the accused arraigned and by hearing the Crown opening. If, at the end of the Crown opening, counsel for the accused indicate that they wish to pursue this issue further, I will timetable the filing of a formal application and affidavits in support, responding material from the Crown and fix a date next week for the application to be heard before evidence begins," Justice Heath concludes.
• A key point Ms Read made to NBR ONLINE yesterday was that she did not say “our judge,” which has a different inference from “our trial judge.”