COMMISSIONER OF NEW ZEALAND POLICE v RAE [2021] NZHC 2629

COMMISSIONER OF NEW ZEALAND POLICE v RAE [2021] NZHC 2629 [4 October 2021]ORDER PROHIBITING PUBLICATION OF NAMES OR ADDRESSESIDENTIFYING PARTICULARS OF CONNECTED PERSONSIN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2020-485-43[2021] NZHC 2629UNDER the Criminal Proceeds (Recovery) Act 2009IN THE MATTER OF an application under ss 48, 50, 55, and 58BETWEEN COMMISSIONER OF NEW ZEALANDPOLICEApplicantAND DAVID CHARLES RAERespondentSARAH LOUISE RAEFirst Interested PartyS LTDSecond Interested PartyR LTDThird Interested PartyAVA CONSULTING LIMITEDFourth Interested PartyHearing: 4&5 October 2021Counsel: A Britton and S McCusker for ApplicantY Mortimer-Wang and R Langdana for RespondentJudgment: 4 October 2021ORAL JUDGMENT OF CHURCHMAN J[1] As a preliminary question in relation to this civil hearing, Ms Mortimer-Wang,counsel for the respondent, Mr Rae, has sought leave to cross-examine a witness, H.In terms of the High Court Rules 2016, in particular rr 9.74 and 1.94, there is a generalright of cross-examination in relation to witnesses.[2] The application to cross-examine H is opposed by Mr Britton, counsel for theCommissioner. There are a number of separate grounds of the opposition. The firstpoint relates to what is said to be a degree of communication and co-operation betweenH and the advisors of Mr Rae. It is said that this is of such magnitude or extent as toeffectively mean that the two are ad idem or of one mind.[3] It is accepted by Mr Britton that there may not have been direct communicationwith the legal team presently acting for Mr Rae in New Zealand in relation to theseproceedings. However, Mr Britton refers me specifically to correspondence betweenMr Young and H. Mr Young is described as Mr Rae's UK agent. I am referred inparticular to certain passages in the evidence (page 1375), and an email of 4 March2021 which refers expressly to the conduct of these proceedings and makes someobservations about an approach taken by a Judge who had heard the matter and theaspirations that were held as to how this matter would proceed further.[4] It is submitted to me by Mr Britton that H has been kept abreast of theseproceedings to the extent that he is clearly involved with them, and has been givenknowledge of them, effectively through Mr Rae.[5] A second ground is the ground of mutuality of interest. It is submitted that therecovery of some $96,000 which was described by Mr Britton as fiduciary fees, I thinkit probably best described them as consulting fees, and therefore because they have acommon interest in recovering this money which is the subject of the variousapplications before the Court, essentially that puts H in the same boat, as it were, asMr Rae.[6] By way of response, the submissions are opposed by Ms Mortimer-Wang. Itis confirmed by her that Mr Rae intends to rely upon the answers to the questions tobe given by H, but it is said that this does not effectively make him Mr Rae's witness.[7] In terms of strict legal doctrine that is so. However, what the Court is obligedto do in civil proceedings such as these is to look at the substance of the matter. Thesubstance of the matter is that there is clearly a mutuality of interest as between H andMr Rae. It is also clear that, notwithstanding the comments by Ms Mortimer-Wangthat H has been in close communication with Mr Rae's UK agent, Mr Young, aboutthis trial. It is conceded by Ms Mortimer-Wang that there is no hostility as between Hand Mr Rae.[8] Normally where the parties' interests are aligned in civil proceedings, beforeleave to cross-examine can be granted, there has to be the declaring of a witness to behostile or at least the identification of some issues in respect of which there is a cleardivergence of interests. Often that is something that has arisen unexpectedly and thereis an application for leave to cross-examine during the course of the giving ofevidence.[9] In the present case, I am satisfied that the interests of Mr Rae and those of Hare mutual, that Mr Rae has sought explicitly to rely upon the evidence of H and thatit would not be appropriate, or in the interest of justice, for any cross-examination tooccur.[10] As an alternative argument, Ms Mortimer-Yang submitted that, were I not topermit cross-examination, that she would wish to put questions which could bedescribed as of the type normally proposed when leading a witness. I did not hearspecifically from Mr Britton on that by way of a response. I infer from that that hehas no particular objection to it. On that basis, I am prepared to allow Ms Mortimer-Yang to ask questions of H of the type that can be asked of a witness whom one isleading in support of one's case. I reiterate that these are not permitted to be leadingquestions. If they stray into that territory then I will intervene.Churchman JSolicitors:Crown Solicitor, Wellington for ApplicantK3 Legal Limited, Auckland for Respondent