Justice Pamela Andrews has abandoned the High Court trial of three Dominion Finance directors – three days in – over a career crossover with defendant Robert Whale.
They were both partners at law firm Kensington Swan between 1996 and 2001.
The judge alone trial of Dominion Finance boss Paul Cropp, director Robert Barry Whale and a third man with name suppression began on Monday at Auckland High Court.
Before the trial began, Justice Andrews raised her concern that her previous job as a partner of law firm Kensington Swan had also crossed paths with a witness due to be called to testify in the trial.
The witness is a well-known, high-profile professional company director who held a position at Kensington Swan.
Justice Andrews made an order prohibiting publication of any reference to the man, who – despite the judge's order – was named on the Stuff website this afternoon and his connection to the trial detailed.
When Justice Andrews raised her concern about it in chambers on Monday, lawyers on both sides agreed that her link to the man would not pose a conflict of interest.
Yesterday, however, Justice Andrews became aware of another potential conflict of interest with defendant Mr Whale, a partner at Kensington Swan between 1996 and 2001.
She stepped down from hearing the trial before proceedings entered a third day today.
A statement has been released, in which Justice Andrews says she must not continue to try the case.
“Notwithstanding that the legal partnership with Mr Whale ceased in 2001, any legal partnership requires, as between the partners, trust and good faith,” Justice Andrews said.
“For that reason I have concluded that I must not continue to try this case.
“I have no doubt that, had I recalled the partnership when I was assigned to this trial, I would have declined to try the case for the reasons I have set out above.”
A new trial will begin on Monday, before Justice Graham Lang.
This means Crown prosecutor Brian Dickey will have to deliver his opening statements again and recall the first of the Crown's witnesses, including ex-Kiwi league player Matthew Ridge, who gave written evidence to the trial on Monday.
COMMENT by Jock Anderson:
Having already clocked up a tidy sum on Court and lawyer time on a trial which has to start all over again, it would have served Justice Andrews better if she had considered more closely any potential for conflict before this aborted trial began.
Did she not get any paperwork in advance before the trial began?
Did she not know a defendant and a witness held key positions in the law firm she also previously worked in?
Did their names not ring any warning bell earlier?
Had she forgotten?
It seems the judge – now more alert – has done the right thing, but not without considerable inconvenience and public cost.