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R v Petricevic HC Auckland CRI 2008-004-029179 [2011] NZHC 665 (12 July 2011)

Last Updated: 2 August 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2008-004-029179}

THE QUEEN

v

RODNEY MICHAEL PETRICEVIC CORNELIS ROBERT ROEST GARY KENNETH URWIN PETER DAVID STEIGRAD BRUCE NELSON DAVIDSON

Hearing: 11 July 2011

Counsel: B Dickey, T Molloy and W Cathcart for Crown

C Cato for Accused Petricevic

R Butler for Accused Roest

D Chisholm for Accused Urwin

B Keene QC and S Nicolson for Accused Steigrad

D Hurd for Accused Davidson

Judgment: 12 July 2011

ORAL JUDGMENT OF VENNING J PRE-TRIAL APPLICATIONS

Solicitors: Crown Solicitor, Auckland brian.dickey@meredithconnell.co.nz tom.molloy@meredithconnell.co.nz

Cook Morris Quinn, Auckland rowanbutler@cmqlaw.co.nz

Lowndes Jordan, Auckland mhm@lojo.co.nz sjn@lojo.co.nz

Kensington Swan, Auckland D M Hughes

Copy to: C Cato, Auckland charles.cato@xtra.co.nz

T Simmonds, Auckland todd@toddsimmonds.co.nz

D Chisholm, Auckland david@dchisholm.co.nz

B Keene QC, Auckland brian@keene.co.nz

C Carruthers QC, Auckland crc@crcarruthers.co.nz

D Hurd, Auckland david@davidhurd.co.nz

Legal Services Agency. Legal Aid Review Panel.

R V RODNEY MICHAEL PETRICEVIC HC AK CRI-2008-004-029179 12 July 2011

[1] The five accused in this case face charges under the Securities Act 1978 and, in the case of Messrs Petricevic and Roest, additional charges under the Crimes Act

1961 and Companies Act 1993. The charges arise out of the failure of the finance company Bridgecorp Ltd and its associated entity Bridgecorp Investments Ltd. They are for trial to commence on 8 August this year. It is estimated the trial will run for

12 weeks.

Applications

[2] There are a number of applications before the Court. Mr Petricevic applies for a stay and related orders. Mr Roest also applies for a stay and related orders. He also applies to quash counts 1 to 6 in the indictment. That application will be the subject of a separate reserved decision.

[3] Mr Urwin has an application before the Court to amend a number of counts in the indictment affecting him and for orders that he not be arraigned in relation to counts 10, 13, 16 and 18 or, in the alternative, that he be discharged.

[4] Mr Steigrad has also made application for discharge in relation to counts 11 and 14. The applications by Messrs Urwin and Steigrad are affected by the Court of Appeal decision delivered on 5 July 2011. Counsel agree that those applications can be held over pending a decision whether leave will be sought from the Supreme Court to appeal the decision and, if so, the outcome of any such application. During the course of the hearing yesterday Mr Keene QC also orally applied to adjourn the start date of the trial.

[5] Mr Davidson has no applications before the Court.

[6] This decision focuses on the applications by Messrs Petricevic and Roest for stay and the oral application by Mr Keene for adjournment of the trial until next year.

_{[7] Mr Petricevic seeks orders:}

permanently staying the proceedings against him;

granting leave to counsel Mr Cato to withdraw;

in the alternative, staying or adjourning the proceedings until such time as suitable State funded arrangements have been made to retain counsel.

[8] Mr Roest also seeks an order for stay. It is premised on the basis that his counsel has sought and will be granted leave to withdraw.

Mr Petricevic’s application

[9] I deal with Mr Petricevic’s application first. The application is advanced on the grounds that it is in the interests of justice to grant a stay and in particular that the orders sought are necessary to give effect to the accused’s rights under ss 24 and 25 of the New Zealand Bill of Rights Act 1990.

[10] Mr Petricevic says that without State assistance he will be unable to defend himself against the current allegations. He cannot expect counsel to continue to act pro bono for him or even to assist further with preparation.

[11] He says that he has exhausted every avenue to secure funding for his defence and the situation is very stressful for him and his family. He says he is not in a position to represent himself and does not want to be forced into that position.

[12] Mr Petricevic was adjudicated bankrupt on 7 August 2008. Initially his defence of these charges was funded under an insurance policy but that has been exhausted. The Court has been advised that there is an outstanding issue as to payment of counsel’s fee under that policy. For present purposes, the important point is that because of his financial position, Mr Petricevic applied for legal aid and that application was declined.

[13] Mr Petricevic’s position in relation to legal aid was most recently considered by Wylie J in this Court on an appeal from a decision of the Legal Aid Review Panel. I take the brief background to his legal aid application from that judgment, which he delivered on 3 June this year.

[14] Mr Petricevic applied for a grant of criminal legal aid in September last year. The application was declined by the Legal Services Agency on 11 January 2011. He then requested the Agency reconsider his application. The Agency did so. On

28 February 2011 it confirmed its earlier decision. Mr Petricevic then applied for a review of the decision by the Legal Aid Review Panel. After receiving submissions from both parties, the Legal Aid Review Panel issued a decision on 29 April 2011 confirming the Agency’s decision to decline aid.

[15] Mr Petricevic then appealed the Panel’s decision to this Court pursuant to s 59 of the Legal Services Act 2000.

[16] In declining legal aid, the Legal Aid authorities took into account Mrs Petricevic’s position and the position of the R M Petricevic Family Trust. Mr Petricevic and his wife are trustees of that Trust. There is no independent trustee. Mr Petricevic was the settlor. He has the power to remove and appoint trustees. The discretionary beneficiaries were, in general terms, Mrs Petricevic, any of Mr Petricevic’s children and any grandchildren or great grandchildren. Mr Petricevic himself was not a beneficiary of the Trust. However, the Legal Aid Agency considered that under s 4 of the Act Mrs Petricevic’s resources, including her interest as a beneficiary under the Trust, had to be treated as Mr Petricevic’s resources. The Agency also considered that on the information before it the Trust had substantial

assets. It considered that Mr Petricevic could properly be regarded as having a

substantial interest in those Trust assets through his wife’s interest.

[17] As noted the matter was taken on appeal to this Court. In his reserved judgment Wylie J concluded that in terms of the statutory framework the Trust assets could properly be regarded or described as Mrs Petricevic’s resource, and if they were her resource, then equally they must also be treated as Mr Petricevic’s resource. Further, on the information before the Agency, the Judge found the Agency was correct to conclude that at the relevant time the Trust had substantial assets. He found the Panel was correct when it held the Agency’s decision was not manifestly unreasonable. He dismissed the appeal.

[18] Mr Cato criticised the decision and referred to an opinion he had obtained from Queen’s Counsel suggesting that it was arguable that it made no sense for the Trust to spend its funds on Mr Petricevic’s representation and if that was right, and counsel was paid from that source, counsel might be liable to repay such fees upon demand from a beneficiary. However, that opinion cannot affect the existing decision of this Court and I note no further appeal has been taken from the Court’s decision.

[19] Mr Cato submitted the practical result of all this is that Mr Petricevic, if aid is not granted, will be forced to represent himself and that he could not adequately do so. Mr Cato submitted strongly that it would be difficult enough for one counsel to adequately prepare for a trial of this nature, he suggested two would be required, and that a litigant in person would be in an impossible position representing himself so that if Mr Petricevic was required to represent himself, he would not get a fair trial.

[20] Mr Cato made the point that this was a complex trial involving a number of accused. It is scheduled to run for 12 weeks. He submitted complicated legal issues would arise in relation to the charges and the potential defences of materiality and reasonable belief. He referred to the High Court of Australia case of Dietrich v R1 and the observations of the Court in that case. Mr Cato also referred to the difficulties Mr Petricevic faced in managing the documents involved in the trial and

the issues that the accused had regarding the provision of documentation through the

Crown in this case.

[21] Mr Cato submitted the position facing Mr Petricevic threatened his right under s 24 to adequate facilities to prepare a defence and particularly the right under s 25 to a fair trial. He submitted this Court had an obligation to intervene at this stage and stay the proceedings because Mr Petricevic could not obtain a fair trial if forced to represent himself.

[22] Mr Cato argued the Court should stay the proceedings until such time as suitable and sufficient State funded arrangements were made to retain counsel or, alternatively, if that was not possible the proceedings should be permanently stayed.

[23] The Crown’s position is that this Court cannot revisit its previous finding that Mr Petricevic was not entitled to legal aid, and further, the Court should not order a permanent stay of the prosecution as Mr Petricevic could still have a fair trial, even if self represented.

[24] As noted, Mr Cato relied on passages from the High Court of Australia decision of Dietrich v R. Mr Dietrich was an indigent accused charged with importing heroin. He applied for legal aid but was declined. Before trial he sought an adjournment which was refused. He was convicted. The conviction was upheld in the Court of Criminal Appeal but the High Court of Australia, with Brennan and Dawson JJ dissenting, allowed the appeal. Mason CJ and McHugh J in a joint

decision referred to the Canadian authority of R v Rowbotham.2 The Court drew the

conclusion that that authority supported the proposition that where an accused has been denied legal aid the trial Judge may direct the appointment of counsel if satisfied the accused is impecunious, and that the nature of the case was such the accused cannot receive a fair trial without representation. Mr Cato urged that approach on this Court.

[25] He also relied on a subsequent passage in the judgment of Mason CJ and

McHugh J that:3

However, even in those cases where the accused has been refused legal assistance and has unsuccessfully exercised his or her rights to review of that refusal, it is possible, perhaps probable, that the decision of a Legal Aid Commission would be reconsidered if a trial judge ordered that the trial be adjourned or stayed pending representation being found for the accused.

[26] The position in the present case, however, is somewhat different to the position that was before the High Court of Australia. Mr Dietrich’s application for legal aid was declined because it was considered aid was only available for representation on a plea of guilty, rather than a plea of not guilty. There does not appear to have been any dispute or issue that Mr Dietrich was unable to fund his own representation. The position in the present case is different. The Legal Services Act does not give an absolute right to legal aid. Aid is restricted to persons who do not have the means or resources to pay for legal services themselves. The effect of the findings of the Legal Aid Authority, confirmed by the Review Panel and upheld by Wylie J in this Court is that Mr Petricevic does have access to resources which would enable him to instruct counsel to defend this proceeding. Mr Petricevic and counsel do not accept that but that is the effect of the previous finding of this Court.

[27] To the extent the Trust no longer has sufficient assets because its position has changed, then Mr Petricevic would of course be entitled to apply to make a fresh application on the ground of changed circumstances, indeed I understand he may have done so. The present position however is that until such review this Court has previously confirmed he has access to resources from which he could fund his defence.

[28] Mr Cato also referred to other passages in the decision of Dietrich, in particular the obligations of the Court referred to by Toohey J that:

In performance of its duty to conduct a trial fairly, a court may stay proceedings as “an incident of the general power of a court of justice to ensure fairness”. It may be said that a court cannot control the allocation of government funds such as those provided for a legal aid scheme and that a court is not responsible for the fact that an accused appears unrepresented before it. Those assertions are no doubt true. The organisation of legal aid is

3 At 397.

a matter for government. Many considerations enter into the provision of legal aid, not the least of which are the many other demands made on the resources of government. However, once an accused appears before a court, the unavailability of legal representation does become a matter for the court, not because the court can remedy the situation by insisting upon the appointment of counsel, but because the court must then assess whether a fair trial may be had by the accused without legal representation. It cannot be said that the matter is truly beyond the control of the court because it is for the court to decide whether, in all the circumstances, the trial should proceed.

In Re Ewing and Kearney192 Seaton JA remarked: “If a trial judge concluded that he could not conduct a fair trial without defence counsel and his requests for counsel were refused, he might be obliged to stop the proceedings until the difficulties had been overcome. Our law would not require him to continue a trial that could not be conducted properly “

(Emphasis added.)

[29] He noted the comments of Gaudron J to the same effect.

[30] In New Zealand the decision of the Supreme Court in Condon v R4 is the most relevant authority for present purposes. Mr Condon’s counsel had withdrawn the day before trial. Mr Condon had not endeavoured to obtain the appointment on legal aid of alternative counsel nor had the Court suggested he do so. Instead Mr Condon represented himself. He did not acquit himself well and was convicted. Ultimately the appeal was allowed but, in the course of its decision the Supreme Court reviewed the jurisprudence from overseas, including the decisions of Rowbotham and Dietrich referred to by Mr Cato and then also considered the application of the provisions of the New Zealand Bill of Rights Act. After referring

to the case of Rowbotham the Supreme Court noted the position in Canada as being:5

Representation by a lawyer, even where an accused desires it, is not necessarily regarded as a pre-requisite of a fair trial.6 The absence of legal representation in trial is not, therefore, viewed as automatically giving rise to a miscarriage of justice. Where it does, that is because of an appearance of unfairness in the trial.7

4 _{Condon v R [2006] NZSC 62, [2007] 1 NZLR 300.}

5 _{At [50].}

6 R v Phillips (2003) 172 CCC (3d) 285 at [10]; New Brunswick (Ministry of Health and

_{Community Services) v G(J) [1999] 3 SCR 46 at [86].}

7 Rowbotham at 69; R v McCallen (1999) 131 CCC (3d) 518 at [38]; R v Drury and Hazard

(2000) MBCA 100 at [20].

[31] The Supreme Court concluded its review of the relevant Australian authorities by noting:8

It is clear that Australian Courts will be slow to find that an accused who is not relevantly at fault for his or her lack of representation could not have benefited from the assistance of competent counsel.

[32] The Supreme Court then directed itself to the New Zealand position and in particular in light of the New Zealand Bill of Rights Act. The Court stated:9

[66] Section 25(a) of the New Zealand Bill of Rights Act 1990 guarantees to every person charged with an offence the right to a fair hearing. Such a person also has the rights under s 24(c), (d) and (f) to consult and instruct a lawyer, to adequate time and facilities to prepare a defence and to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance. The provisions of the Legal Services Act 2000 pertaining to criminal matters are the means chosen by Parliament to fulfil the Crown’s obligation under s 24(f).

[33] The relevant sections of the New Zealand Bill of Rights for this application are s 24(d) and (f) and s 25(a). Mr Cato submitted the right guaranteed under s 24(d) to adequate facilities to prepare a defence would be breached if counsel was not provided.

[34] The leading authority on s 24(d) is the decision of the full Court of the Court of Appeal in R v Griffin.10 The issue in that case was whether the appellant had been denied his right under s 24(d) because the complainant had allowed herself to be examined by prosecution experts but refused consent to examination by defence experts. By a majority the Court held the appellant had been denied access to facilities by denial of relevant evidence which he required to present his case.

Different issues arise in this case. Mr Petricevic will have access to all relevant evidence to enable him to prepare for the case. He has the necessary facilities to prepare for trial. The only possible issue in relation to this might be an argument based on the equality of arms argument in relation perhaps to expert evidence on the basis it may be necessary for the defence to present expert accounting evidence. I

_{understand the Crown intend to call two experts, Mr Crichton and Mr Graham. The}

8 _{At [65].}

9 _{At [66].}

10 R v Griffin [2001] 3 NZLR 577 (CA).

response to that, however, is that if it is necessary for an expert to support the defence case it is almost inevitable one of the other accused who are represented will call such an expert and even if unrepresented Mr Petricevic would have the benefit of that expert.

[35] Next, given the finding of this Court confirming the decision of the Legal Aid Authority the position is that Mr Petricevic has access to resources to present his defence, including to instruct an expert if necessary. Finally, failing all else, the issue could be addressed to the extent it is still a live issue if necessary by the partial exclusion of such expert evidence as was suggested by the majority of the Court in Griffin, if necessary.

[36] Further, the submission as to a lack of facilities to present a defence must be seen in context. These charges were initially laid in December 2008. Mr Petricevic has been represented throughout. He has been at large, in the community, and able to consult with his lawyers. Even if at this late stage he was left without representation, it cannot be said he has not had adequate facilities to prepare his defence. The right to facilities under s 24(d) is different to the specific right guaranteed under s 24(f) to legal assistance.

[37] I turn to s 24(f). As the Supreme Court observed the provisions of the Legal Services Act are the means chosen by Parliament to fulfil the Crown’s obligation under this section. Mr Petricevic has exhausted his rights under the Legal Services Act save for any fresh application based on fresh information. But that does not mean there has been any breach of his rights. As the Supreme Court noted in Condon:11

... Section 24 does not guarantee the provision of a lawyer for the defence in all cases, even when the charge being faced by the accused is of a serious crime. An accused has the right to employ a lawyer, but the State does not guarantee to provide the lawyer’s services – in this respect its role is passive, in a sense that it must not impede the exercise of the right by the accused.12

The exception is under s 24(f) when the accused does not have sufficient means to provide for legal assistance. Even in such a case, however, it is the

11 _{At [76].}

12. To similar effect is s 354 of the Crimes Act 1961 (“Every person accused of any crime may make his full defence thereto by himself or by counsel.”).

accused who must take the necessary steps to obtain assistance under the

Legal Services Act.

[38] The Court then went on to consider the separate right affirmed by s 25(a) to a fair trial confirming that that right was an absolute right.13

In contrast, the right to a fair trial, affirmed by s 25(a), is an absolute right. If, because the accused had no lawyer or for any other reason, the trial is fundamentally flawed, the accused will not have had a fair trial and the conviction must be quashed.14

[39] The Supreme Court then went on to say:15

So the appropriate question in a case like the present is whether the accused’s lack of the proper opportunity to have legal representation made or contributed to making the trial, looked at as a whole, unfair so that there has been a substantial miscarriage of justice. In our view, the High Court of Australia in Dietrich was right to conclude that in the great majority of cases, that is, other than in exceptional circumstances, an accused who conducts his or her own defence to a serious charge, without having declined or failed to exercise the right to legal representation, will not have had a fair trial. That is the reason why s 30 of the Sentencing Act exists, with its policy of ensuring that those facing imprisonment if convicted are afforded the opportunity of being represented by a lawyer. Where, in the absence of waiver or forfeiture as explicitly contemplated by Parliament in subss (2) and (4) of s 30 of the Sentencing Act, legal counsel was not available at trial there will have been a breach of one or more of the subsidiary rights in s 24 of the Bill of Rights and prima facie an unfair trial will have resulted from that breach.

(Emphasis added.)

[40] As noted, as matters stand and given the findings of this Court upholding a decision for the Legal Aid Panel by reference to s 30 of the Sentencing Act 2002, if Mr Petricevic does not engage a lawyer he will effectively be deemed to have refused or failed to exercise his right to legal representation under s 30(4). The Supreme Court then continued:16

In contrast, if the accused makes an informed choice to go to trial without a lawyer, or is rightly refused legal aid, or by conduct creates a situation in which, on a proper balancing of the various interests, further delay in the holding of the trial is not to be tolerated, there will have been no breach of the s 24 rights. But even in such circumstances an appeal Court must still examine the overall fairness of the trial, as was done in the New Zealand

13 _{At [77].}

14 _{R v Howse [2006] 1 NZLR 433 (PC).}

15 _{At [79].}

16 At [80].

cases cited earlier, because the right to a fair trial cannot be compromised – an accused is not validly convicted if the trial is for any reason unfair. If there has been no breach of the appellant’s right to representation, because the trial Court was properly “satisfied” in terms of s 30(2) of the Sentencing Act, the conviction will not be set aside unless the appellant can persuade the Court that the trial was unfair because the defence could not, in the particular case, have been adequately conducted without the assistance of counsel. In some circumstances the manner in which the accused through his or her own choice or conduct came to be unrepresented may be relevant to the assessment of fairness.

(Emphasis added.)

[41] Returning to the present application then there are three possibilities for the future of this case as it involves Mr Petricevic:

(a) first, the Court could make an order staying the proceeding until, in

Mr Cato’s words, sufficient State funding is made available;

(b) second, if that is not possible, these criminal proceedings against Mr

Petricevic could be permanently stayed; or

(c) third, the matter could proceed to trial, which on Mr Cato’s current

instructions would have Mr Petricevic representing himself.

[42] In my judgment the first option is not available to the Court. To adopt it would be to accept the proposition that contrary to the findings of the Legal Aid Authority confirmed by the Review Panel and upheld by this Court, Mr Petricevic does not have access to resources to fund his defence. Such a finding would effectively uphold a collateral attack on an existing decision of this Court. It would undermine the review and appeal process provided for by the Legal Services Act. As the Supreme Court observed, Parliament has chosen to satisfy its obligations under s 24(f) by the provisions of that Act. This Court cannot go behind the provisions of that Act and the existing findings in relation to them.

[43] That leaves the alternatives of a permanent stay of the prosecution or proceeding to trial with Mr Petricevic apparently opting to be unrepresented. Neither are particularly attractive propositions.

[44] Mr Cato argues that the Court should grant a permanent stay because in the circumstances of this case it would be impossible for Mr Petricevic to have a fair trial if he represented himself.

[45] Permanent stay, in advance of hearing, while an option will not be granted lightly.

[46] The general principles relating to a stay of proceeding are established and are outlined in the decision of Moevao v Department of Labour17 and confirmed in Fox v Attorney-General.18 Relevant for present purposes are the principles that:

(a) The justification for staying a prosecution is that the Court is obliged to take that extreme step to prevent its own processes from abuse, and it does so to prevent the criminal processes from being used for purposes alien to the administration of criminal justice.

(b) The yardstick is not simply fairness to the particular accused but whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court.

(c) To stay a prosecution, and thereby preclude the determination of the charge on its merits, is an extreme step which is to be taken only in the clearest of cases. It would only be justified where continuation of the proceedings would be contrary to the recognised purposes of the administration of criminal justice.

[47] In R v Horseferry Road Magistrates’ Court Lord Lowry cited Moevao v

Department of Labour with approval noting:19

I agree that prima facie it is the duty of a court to try a person who is charged before it with an offence which the court has power to try and therefore that the jurisdiction to stay must be exercised carefully and sparingly and only for very compelling reasons.

17 _{Moevao v Department of Labour [1980] 1 NZLR 464 (CA) at 482.}

18 _{Fox v Attorney-General [2002] 3 NZLR 62 (CA) at [32]-[37].}

19 R v Horseferry Road Magistrates’ Court [1994] 1 AC 42 at 74.

[48] While the right to fair trial is not to be compromised, where an accused is rightly refused legal aid (which is the present position at law) and chooses to represent himself, any conviction will not be set aside unless the accused can persuade the Court the trial was unfair because the defence could not, in the circumstances of the particular case, have been adequately conducted without the assistance of counsel.

[49] A number of issues are relevant to determination of that ultimate question, which, in my judgment, cannot be determined in advance of trial. The manner in which an accused came to be unrepresented may be a relevant consideration to the assessment of overall fairness. But the Court must also examine other factors including the manner in which the Judge presided over the trial and whether the Judge explained procedures and minimised the disadvantage of being unfamiliar with the trial process and laws of evidence. It may also be relevant whether the accused had the benefit of guidance from a lawyer or an amicus at any time prior to or during trial. The Court must also have regard to the personal characteristics and circumstances of the appellant such as his or her level of intelligence and education and ability to express him or herself clearly and sensibly. The Court must also consider the difficulty of the legal issues, the nature and complexity of the Crown case and how effectively the accused managed to convey and present the nature of

the defence.20

[50] There are a number of relevant factors that inform those assessments in this case at this stage. The trial will be a Judge alone trial. There is no danger of an unrepresented accused making a poor impression upon a jury or running the risk of allowing inadmissible and prejudicial evidence to come before a jury.

[51] While the trial will be lengthy and complex in that the documentation will be voluminous, it is important to note that Mr Petricevic was an executive director, indeed the managing director, of Bridgecorp and as such might be expected to have a

_{degree of familiarity with a substantial part of the documentation.}

20 At [82].

[52] The charges allege that documents Mr Petricevic either signed or will at the very least be intimately familiar with contained false statements. The charges have been before the Court since December 2008. Up until this point Mr Petricevic has had the benefit and advantage of counsel’s assistance in considering the issues and in preparation for trial.

[53] While he may not hold any formal, legal or accounting qualifications Mr Petricevic can, given his background in business and his position as managing director of a public company, be expected to have certain qualities and attributes that a number of other persons facing criminal charges will not have the advantage of, and also an ability to order his thoughts and present his case.

[54] In the circumstances I am not prepared to say at this stage that there can be no possibility of Mr Petricevic having a fair trial such that the extreme step of directing a stay at this stage is required.

[55] As I have noted the prospect of proceeding to trial with Mr Petricevic unrepresented is not an attractive one for the Court, nor perhaps for other accused, but that is the position the Court faces. If that is the ultimate position it is on the basis that, despite findings of this Court that Mr Petricevic has resources to instruct counsel, for his and his own family’s reasons that will not be done.

[56] Mr Petricevic’s application for permanent stay is declined. It follows I

formally grant Mr Cato leave to withdraw as counsel.

Mr Roest’s application

[57] I turn to consider Mr Roest’s position. He is also bankrupt. Mr Butler adopted Mr Cato’s submissions and, in addition, submitted that Mr Roest had always anticipated he would have legal representation and when the funding under an existing insurance policy expired he applied promptly for legal aid. Mr Roest was initially declined aid by the Legal Services Agency. There has been an internal reconsideration. Mr Butler understands the existing position is that Mr Roest has applied for a review to the Legal Aid Review Panel.

[58] Mr Butler submitted that he and counsel Mr Simmonds were in an impossible position in that they were without funds at the moment and were not able to continue preparation. They sought leave to withdraw. Mr Butler suggested it may take another four weeks for the Review Panel to come to its decision. I will make a copy of this decision available to the Panel and Agency and urge them to determine both Mr Roest’s and Mr Petricevic’s recent applications as promptly as possible.

[59] Mr Butler also referred to Mr Roest’s personal factors which may make it difficult for him to represent himself. There is, however, no evidence before the Court about those matters.

[60] It may be the Legal Aid Review Panel will grant the review in which case Mr Roest will have the ability to be represented at trial. Existing counsel and solicitors may be available to be re-engaged. That may necessitate a delay in the start date for the trial, a matter that I address shortly. Otherwise, however, largely for the reasons given above, I decline the application for stay made on behalf of Mr Roest. His position is similar to that of Mr Petricevic. He was also an executive director. Indeed he was the finance director. However I acknowledge Mr Butler and Mr Simmonds’ position and grant them leave to withdraw.

The further issues

[61] I turn to the matters raised by Mr Keene. Mr Keene raised a number of points on behalf of Mr Steigrad which other counsel largely adopted. Mr Keene raised a number of points to support an adjournment of the trial date, he suggested until 2012. He submitted generally that if Mr Petricevic and Mr Roest were not represented at trial the impact of losing the kind of reliance intended to be built up from issues that the other non-executive directors would have expected Mr Petricevic and Mr Roest as the executive directors to take, would affect his preparation of the case for his client and other non-executive directors.

[62] Mr Keene also advised the non-executive directors have a current proceeding in the Commercial List seeking a declaration as to the insured’s rights under a policy to cover trial representation and challenging a claim by the receivers for a charge on

proceeds. Although no hearing date has been allocated for that proceeding he expects that, if the non-executive directors are successful, the principles established might (but he responsibly accepted he could put it no higher than that) assist Mr Petricevic and Mr Roest in formulating a claim for cover. The uncertain nature of those proceedings does not support an adjournment of the scheduled criminal trial. The most counsel can responsibly say is that if ultimately successful, whenever the case is heard, it may assist Mr Petricevic and Mr Roest to make a claim on another insurance policy. But that is not enough. Neither of them are parties to that current litigation.

[63] Mr Keene then submitted that the defendants continued to find themselves in an unsatisfactory position in relation to documentation. He accepted that the Crown does not appear to have a number of documents the defence have sought. The documents may be held by the receivers. Mr Keene advised that his client at least had taken the practical position that he would deal direct with the receivers about the documents. Mr Dickey does not accept the criticism levelled at the Crown relating to disclosure of source documents. Mr Dickey makes the point that the Crown has disclosed the documents that it has available to it and/or that it intends to rely on at trial. To the extent that the defence want documents that are not held by the Crown, the Crown is not obliged to obtain such documents even under the provisions of the Criminal Disclosure Act 2008, but the Crown has adopted a co-operative approach to date he submitted and it has sought to assist the defendants to obtain such documents from the receivers or other third party sources.

[64] Mr Dickey referred to a minute issued by the Court on 15 September last year that recorded at that time:

To the extent that the accused have any difficulty obtaining documents from the receivers Mr Dickey has confirmed the Crown would consent to the application of the Criminal Discovery Act insofar as it related to third party discovery. I leave that issue with counsel to resolve directly but reserve leave for any party to apply to the Court for further direction if necessary.

Mr Dickey noted no party had made such formal application.

[65] Mr Cato also raised the issue of documents. He submitted that bank statements and other source documents were required for preparation for trial. Mr Dickey’s response was that with the exception of statements showing cheques had been cleared as a matter of urgency, supporting the Crown case as to the financial position of Bridgecorp, the bank statements were not relevant. The bank statements do not record defaults and the company operated at a rather more sophisticated level than basic reliance on bank statements. It operated on a live profile. Mr Dickey says that all relevant documents the Crown has have been disclosed and the Crown does not hold other documents.

[66] In response to Mr Keene’s point that further documents had only recently been provided by the Crown, Mr Dickey submitted that such documents had been obtained and made available by the Crown in response to the defence requests, even though the Crown takes the position the documents are irrelevant and were not initially held by it.

[67] Mr Keene then submitted that in light of the recent Court of Appeal decision the ambit of the trial will be more extensive than previously thought. However, the charges have been before the Court since December 2008. In March this year, this Court allowed Mr Steigrad’s application for discharge and for an amendment to the particulars in relation to certain counts. The Court of Appeal judgment of 5 July

2011 has effectively reinstated the position that formerly prevailed. The accused will now be required to consider and address the financial position from 21 December

2006 to 30 March 2007 and from that date until the date of receivership in 2007. Once the appeal was lodged, however, that was always a possible outcome and it is not as though fresh matters are to be raised for the first time.

[68] Next, Mr Keene suggested that it would be unfortunate if the matter was not able to be concluded prior to the Christmas break and it had to be adjourned part- heard. I agree. However, there is the ability to delay the start of the case yet still accommodate a substantial fixture which would see the case resolved prior to the end of this year. It is in all parties’ interests to see this matter resolved. As noted the charges were originally laid in December 2008. Some of the parties face further prosecution in the District Court next year. If the trial date is put back a further four

weeks to start on 5 September that would still allow 15 full weeks prior to the end of the Court year. Mr Dickey’s estimate is that the Crown case could be completed within six weeks. Although the recent Nathans Finance case over-ran, Mr Dickey submits lessons have been learnt in terms of presentation from that case.

[69] The last matter Mr Keene referred to was personal to Mr Steigrad in relation to his health. With respect to that it does relate to matters of elective surgery which could be treated in the interim.

[70] Mr Chisholm and Mr Hurd also addressed the issue of start date but the

matters they raised do not alter the Court’s position on this issue.

[71] In summary, I do not accept the criticism made of the Crown in relation to the provision of documentation in the case to date, nor that, as a result of the Court of Appeal decision, the accused can say things have markedly changed. However, I accept that consideration must be given to the position of Mr Petricevic and Mr Roest. An adjournment of the scheduled trial date for a further four weeks, effectively eight weeks from yesterday, is appropriate to provide further time to them, if indeed they are to be unrepresented, to prepare for trial. Such an adjournment will also address in part at least some of the considerations raised by Mr Keene.

[72] For those reasons I direct the proposed trial will now start on 5 September

2011.

[73] I propose to convene a pre-trial conference at 9.00 a.m. on 29 July 2011 to confirm preparation for trial.

[74] As I have said I will deal with Mr Roest’s applications in relation to counts 1 to 6 separately.

Venning J