The only possible defence to fraud charges (unless the Hubster pleads guilty) laid against Allan Hubbard on Monday afternoon would run along the lines of this scenario; making "unwise' decisions because of diminished responsibility - age, mental acuity, physical health, and so forth.
Hubbard's lawyers have already made great mileage out of Hubbard's mental stability a few months ago to stall an impending trial, and given the massive amount of evidence of fraud against him the defence of Mr Hubbard can only be made around his ability to stand trial. If this fails and he does go to trial and he is found guilty then any possible judicial or financial punishment is likely to be argued down by the defence for the same moral reasoning. They might argue for these reasons that it is not in the public interest to take this case to court and if convicted not in the public interest to seriously punish Hubbard.
In a post here yesterday the Serious Fraud Office outlined the possible defence Hubbard might have in lieu of any concrete evidence to refute the fraud charges that he faces.
Public interest considerations against prosecution include:
1. Where the Court is likely to impose a very small or nominal penalty;
2. Where the offence is not on any test of a serious nature, and is unlikely to be repeated;
3. Where there has been a long passage of time between an offence taking place and the likely date of trial such as to give rise to undue delay or an abuse of process unless:
a. the offence is serious;
b. delay has been caused in part by the defendant;
c. the offence has only recently come to light; or
d. the complexity of the offence has resulted in a lengthy investigation.
4. Where a prosecution is likely to have a detrimental effect on the physical or mental health of a victim or witness;
5. Where the defendant is elderly or a youth;
6. Where the defendant has no previous convictions;
7. Where the defendant was at the time of the offence or trial suffering from significant mental or physical ill-health;
8. Where the victim accepts that the defendant has rectified the loss or harm that was caused (although defendants must not be able to avoid prosecution simply because they pay compensation);
9. Where the recovery of the proceeds of crime can more effectively be pursued by civil action;
10. Where any proper alternatives to prosecution are available.
Hubbard's lawyers are likely to argue a number of the above points, especially points 5 and 6 that relate to his age and lack of previous form in trying to have the case thrown out of court, to mitigate a guilty verdict in terms of sentencing or to use as a bargaining chip to have the number of charges whittled down from the current 50 to a handful of the less serious breaches and a couple of the more serious ones.
He could of course just save investors in Hubbard Management Funds, and Aorangi more money by admitting his guilt before a trial because cash will be probably paid out of the remainder of what hasn't been squandered, to his extensive defence team that has already grabbed $2.5 million from Statutory Managers to cover legal fees thus far.
Hubbard and his defence team are unlikely to do that because of the time that can be bought with a drawn out defence and a legal bill that is going to make the eyes water.
Allan Hubbard Saga
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c Share Investor 2011