Whitley v R [2010] NZCA 35 (18 February 2010)

Last Updated: 25 February 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA742/2009

[2010] NZCA 35

BETWEEN PHILIP JAMES WHITLEY
Appellant

AND THE QUEEN
Respondent

Hearing: 18 February 2010

Court: William Young P, Wild and Heath JJ

Counsel: A J D Bamford for Appellant
J D Upton QC and H C Walker for Respondent

Judgment: 18 February 2010

ORAL JUDGMENT OF THE COURT

The application for leave to appeal is granted but the appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by William Young P)

[1] In a ruling delivered on 18 November 2009 Judge McKegg directed that the appellant (who is facing charges under s 242(1)(a) of the Crimes Act 1961 – false statements by a promoter) be tried before a Judge without a jury.[1] The appellant now seeks leave to appeal.
[2] The order made by the Judge was under s 361D of the Crimes Act 1961 which relevantly provides:

361D Judge may order trial without jury in certain cases that are likely to be long and complex

(1) This section applies only to a person (the accused person) who is committed for trial for an offence that is not –

(a) an offence for which the maximum penalty is imprisonment for life or imprisonment for 14 years or more; or

...

(2) The Judge may, on a written application for the purpose made by the prosecutor to the Judge and served on the accused person before the accused person is given in charge to the jury, order that the accused person be tried for the offence before the Judge without a jury.

(3) However, the Judge may make an order under subsection (2) only if the prosecution and the accused person have been given an opportunity to be heard in relation to the application, and following such hearing, the Judge is satisfied –

(a) that all reasonable procedural orders (if any), and all other reasonable arrangements (if any), to facilitate the shortening of the trial, have been made, but the duration of the trial still seems likely to exceed 20 days; and

(b) that, in the circumstances of the case, the accused person’s right to trial by jury is outweighed by the likelihood that potential jurors will not be able to perform their duties effectively.

(4) In considering, for the purposes of subsection (3)(b), the circumstances of the case, the Judge must take into account the following matters:

(a) the number and nature of the offences with which the accused person is charged:

(b) the nature of the issues likely to be involved:

(c) the volume of evidence likely to be present:

(d) the imposition on potential jurors of sitting for the likely duration of the trial:

(e) any other matters the Judge considers relevant.

...

[3] The case is based around Mr Whitley raising money from investors on the basis of compression software which he claimed could reduce computer files to one seventh of their original size, something which, on the Crown case, is technically impossible. On the basis of what we were told by Mr Bamford today, this is now accepted by the defence.
[4] It is common ground that the s 361D(1) threshold is met. As well, Mr Bamford did not really challenge the way the Judge addressed the s 361D(3)(b) issue. In that context we will simply focus on the Judge’s approach to the s 361D(3)(a) criterion.
[5] As to likely duration of trial Judge McKegg said this:

[11] It is common ground between the parties that there are no further reasonable procedural orders or arrangements which could facilitate the shortening of the trial. Defence counsel has consented to the majority of formal witnesses, that is those witnesses involved in document production, having their briefs read. Notwithstanding that, the Crown have a witness list containing 34 witnesses, some of whom are being described as occupying the witness stand for a long or very long period. In a summary of the length of time expected to be occupied by its witnesses in evidence-in-chief, the Crown estimates a total of 16.5 days. Cross-examination would add to that time.

[12] As is usual in trials, the defence is reluctant to commit to calling evidence but suggests that if evidence were called there would be four to five witnesses. Added to that would be the empanelling of jurors, the Crown opening and any defence opening statement and any judicial comment. Allowance has to be made for final addresses for both Crown and defence and summing up.

[13] I am satisfied that the duration of the trial seems more than likely to exceed 20 days and that the provisions of subs (3)(a) are satisfied.

[6] The trial is due to start next Monday, meaning that the application for leave to appeal is being heard in circumstances where a final decision one way or other on the jury trial issue must be given today. The requirement to act under this time constraint is, at least in part, a result of failure by the appellant to comply with timetable orders.
[7] The s 361D application was signalled at the first pre-trial callover on 8 July 2009. The application was timetabled by Judge McKegg on 10 September 2009, requiring the Crown to file its application and supporting documentation by 2 October 2009. The appellant’s response was due by 9 October. He did not comply with this direction. Instead, on 14 October 2009 he sought an adjournment which was granted on the basis that the application be dealt with on the papers. Another timetable order was made as to the appellant’s submissions (which were to be filed by 27 October). As it turned out, they were received late, on 29 October, and this in turn put back the receipt of the Crown submissions. The submissions in relation to the present application were not received until yesterday evening.
[8] Mr Bamford explained this by saying that, in the context of an evolving Crown case and legal aid issues in terms of obtaining expert assistance, it is only now, with the case effectively ready for trial, that he can give an accurate estimate of the likely duration of the evidence. We accept the force in this explanation and recognise that we now have a more informed assessment from the defence perspective of the likely length of the trial than was available to the Judge. For this reason we propose to grant leave to appeal.
[9] On the Judge’s approach there was an error which was acknowledged by Mr Upton QC for the Crown. The 16½ day estimate for the hearing of evidence included cross-examination and not just evidence in chief. So what was said in the last two sentences in [11] of the ruling is wrong. But on the Crown case, this error is immaterial. Mr Upton maintained that with allowances for preliminaries, the defence case, closing addresses, summing up, deliberation time and contingencies, it remains true that the trial seems likely to exceed 20 days.
[10] In a letter to the Serious Fraud Office of 17 February 2010, Mr Bamford re-analysed the witness list in terms of the likely time each witness will give evidence. His conclusion is that the Crown case will run for approximately 11 days. He asserts that the defence case will take three days at the most (which he said allows for the possibility of Mr Whitley giving evidence) and that the defence witnesses are likely to number between three and five. On this basis - and allowing a day to select a jury, opening addresses and any other preliminary matters, another day for admissibility issues and other contingencies, a day for closing addresses and a day for a summing up – the case remains, in his contention, under the “likely to exceed 20 days” threshold.
[11] To juxtapose the conflicting positions:

(a) Current estimate by the Crown of the time which will be required to hear the evidence is 83 hours (at 5 hours a day, around 16 days);

(b) Mr Bamford’s estimate is 56 hours (or 11 days).

There will also be preliminaries (jury selection, opening addresses) taking, say, one day, a day for contingencies, a day for closing addresses, a day for summing up, and sufficient time for the defence case (estimated by Mr Bamford at three days but which the Crown suggests may take rather longer). As well, because the test is based on the duration of trial (which will not end until verdicts are returned), some allowance for deliberation time is appropriate.

[12] Mr Bamford told us that the defence will accept the thrust of the evidence of the Crown expert that the appellant’s compression technology is mathematically and scientifically impossible. This, however, is not an end to the technical difficulties thrown up by the case because the appellant’s software was put to a series of tests by technically aware investors and these tests seemed to validate the efficacy claims which Mr Whitley made. On the Crown case, Mr Whitley was able to finesse these software tests in various ways
[13] Relevant to this is the proposed evidence of Professor Tim Bell (the leading Crown expert), whose evidence is presently in the form of a brief of evidence of 11 pages, and that of Messrs Shaun Johnston, Titus Kahu and Richard Jaffares, the investors who carried out their own tests on the software. On Mr Bamford’s current time estimates, Professor Bell’s evidence will in total take four hours and the evidence of the other witnesses (Messrs Johnston, Kahu and Jaffares) will take between 2½ hours and 3½ hours each. Presumably Mr Whitley will have to come up with technical explanations for how tests on the software, which he now accepts does not work, satisfied technically savvy investors. These technical explanations will have to be put to the Crown witnesses and they may be the subject of defence evidence. All in all, it seems perfectly clear to us that those who explain the relevant technical concepts, the tests which were carried out, how they may have been finessed by Mr Whitley (which will be the Crown contention) or how they innocently indicated efficacy (which will be the defence contention) will have to be in low gear if the case is before a jury. On this basis, we are left with the sense that the relevant defence time estimates are distinctly on the low side.
[14] As well, given the honest belief defence to be advanced and the need (just discussed) to explain how the software passed the efficacy tests, it “seems likely” that Mr Whitley will give evidence. Given the ground which such evidence will have to cover, the three day defence case estimate also seems to us to be light.
[15] All in all, we are satisfied, as was the Judge, that the “seems likely to exceed 20 days test” was satisfied. Accordingly, although we grant leave to appeal, we dismiss the appeal.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] The Serious Fraud Office v Whitley DC Nelson CRI-2008-042-3052, 18 November 2009.