NEW ZEALAND FIRST PARTY v THE DIRECTOR OF THE SERIOUS FRAUD OFFICE NO 2 [2020] NZHC 2528

NEW ZEALAND FIRST PARTY v THE DIRECTOR OF THE SERIOUS FRAUD OFFICE NO 2 [2020] NZHC2528 [25 September 2020]PUBLICATION OF THE JUDGMENT IS PROHIBITED UNTIL 5 PMTUESDAY 29 SEPTEMBER 2020 UNLESS OTHERWISE ORDERED BY THECOURT OF APPEALIN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-1721[2020] NZHC 2528BETWEEN NEW ZEALAND FIRST PARTYApplicantAND THE DIRECTOR OF THE SERIOUSFRAUD OFFICERespondentHearing: 25 September 2020Appearances: A F Pilditch for the applicantJ C L Dixon QC and R J Williams for the respondentJudgment: 25 September 2020ORAL JUDGMENT OF PALMER JSolicitors:A F Pilditch, Barrister, AucklandJ C L Dixon QC, AucklandCook Morris Quinn, AucklandSerious Fraud Office, AucklandWhat happened?[1] On Thursday 24 September 2020, I issued a judgment in these proceedings.1In summary, it said:[1] The Director of the Serious Fraud Office (SFO) intends to issue a publicstatement announcing that the SFO has filed a criminal charge of "obtainingby deception" against two defendants in the New Zealand First Foundation(the Foundation) electoral funding case. The two defendants are notMinisters, sitting MPs, candidates at the election or members of their staff.The New Zealand First Party (NZ First) applies for orders prohibiting theDirector from issuing the statement until after a government has been formedfollowing the General Election on 17 October 2020. NZ First also applies forthis application and all matters relating to it to be suppressed until the sametime.[2] I do not consider NZ First's case for judicial review is particularly strong,on the basis of the evidence and information before me. There is no evidencebefore me that the Director's decision to issue the public statement wasinfluenced by political considerations or that the timeframe she announced forthe investigation's completion was set because of the election. I accept thereis a risk of confusion and a negative impact on its electoral prospects.However, I consider there is a significant public interest in the New Zealandvoting public being informed during an election campaign about criminalcharges of serious fraud against people or organisations related to politicalparties. Ultimately, I consider the public interest in transparency outweighsthe inconvenience of the announcement to NZ First. It will be up to thepolitical system including the media, rather than the judicial system, to ensurethe transparency of the announcement is not obscured by confusion andmisinformation.[3] In order to allow NZ First to consider this judgment and its position, Imake an interim order suppressing the judgment, the application and allmatters relating to it, which lapses at 5 pm Friday 25 September 2020 unlessthe Court otherwise orders.[2] The statement the Director now proposes to issue says:SFO files charges in relation to NZ First donationsThe SFO has filed a charge of 'Obtaining by deception' against two defendantsin the New Zealand First electoral funding case.As the defendants have the right to apply for name suppression, we are unableto name them at this time. We note, however, that neither defendant is aMinister, a sitting MP, a candidate in the upcoming election, or a member ofthe staff of a Minister or MP.The SFO has no further comment.1 New Zealand First Party v Director of the Serious Fraud Office [2020] NZHC 2502.[3] In a separate proceeding filed in the High Court this morning, Friday25 September 2020, one of the defendants, X, applied for different interim orders:(a) prohibiting the Director from issuing the statement until after the firstmention of the charges in the District Court on 29 October 2020; and(b) suppressing that application and all matters relating to it until theDistrict Court has finally determined an application by X forsuppression of identity.[4] That application was set down for hearing at 11.45 am and counsel for X andthe Director were to appear. But at 9.53 am, X withdrew the application on the basisthe matter was before the District Court under s 200 of the Criminal Procedure Act2011 (the Act). That was heard by Judge S M Maude, of the North Shore DistrictCourt. The SFO was not advised of the hearing and did not appear. I understand the24 September 2020 judgment was not before Judge Maude. He observed "suppressionshould not be granted in a substantive form on a without notice basis on the papers".2But he appears to have granted the interim order sought until a half-day hearing isallocated in the District Court as a matter of urgency.3 The order granted appeared toprohibit:4publication of X's name, any details identifying X and publication of anyimage of X on any television or social media site run by anybody andpublication of any picture or still or moving image of X associated with [twoentities].[5] The SFO appealed that order. The appeal has just been heard in the High Courtby Moore J, the duty judge today. Mr Dixon QC advises that Moore J has allowed theappeal and will issue a minute to that effect shortly. He advises Moore J indicated hewill replace the District Court order with an order suppressing the name, address andoccupation of the defendants until the first call on 29 October 2020, under s 200 of theAct, to which the SFO did not object. But, apparently, there will be an appeal of2 Director of the Serious Fraud Office v X, DC North Shore, CRN 20044500393, 25 September2020, at [9].3 At [10].4 At [8].Moore J's decision and an application made that District Court orders remain in placepending the appeal.[6] At 3.21 pm today NZ First applied for leave to appeal the 24 September 2020judgment to the Court of Appeal and to extend the interim orders suppressing thatjudgment, NZ First's application and all matters relating to it and suppressing theproposed SFO statement. I convened a hearing of the application around 4.50 pm.Submissions[7] Mr Pilditch, for NZ First, indicated he was concerned at the haste with whichthe application for leave is being heard and would prefer it to be heard next week.Mr Dixon for the SFO is concerned if there is a lack of haste. If I do not hear theapplication today the SFO will consent to leave being granted. I indicated that I wouldhear counsel's submissions on whether leave should be granted and then decidewhether I needed to hear more from them next week. Having heard counsel, I considerI am in a position to decide the question on the basis of their submissions.[8] Mr Pilditch, for NZ First, submits the judgment partly rested on a lack ofevidence, and was based on purely on the correspondence NZ First had whichcompromised the ability of NZ First to articulate matters, given the circumstances itwas placed in. He submits the grounds for the appeal have merit. He submits thetiming of the notice by the SFO to NZ First of the intention to make the publicstatement is an indication of arbitrariness and unreasonableness. He submits there is areal issue as to whether the SFO's practice of making public statements about chargesis reasonable without a high level of caution and a careful balancing of interests. Hesubmits that public statements that have the capacity to pre-empt the court's criminaljustice jurisdiction would not uphold the integrity of the criminal justice system. Hesubmits it risks undermining s 202 of the Act. Mr Pilditch submits there is a risk thatthe SFO statement would identify X, especially now the SFO has made clearer who isnot charged, which NZ First supports. Mr Pilditch submits NZ First does not say thereshould never be publication of the charges, but it is a matter of timing. He submits theinformation about the charges is not politically relevant in affecting the public interestbut is capable of fuelling gossip and misinformation because the information proposedto be released does not allow the public to reach an informed view of the issues andthere is nothing for the media to investigate. He submits the issues and theirconsequences for NZ First are significant and that the application for interim orders iseffectively substantive, not "just" interlocutory. He submits damage to association canoccur by near association and in making a press statement a purposive reading of theguidelines of the SFO and Crown Law requires consideration of the impact on thirdparties. Mr Pilditch also advises that, if I decline leave, NZ First will seek leave toappeal to the Court of Appeal because what is at stake is substantive in character.[9] Mr Dixon, for SFO, submits leave should be declined because the applicationis without merit and the appeal cannot succeed. He submits the challenge to thedecision to issue the public statement is really about the failure of the Director to takeinto account the impact on NZ First and there is no obligation on the Director to doso. He submits there is public interest in the public knowing the SFO has completedits investigation and that certain categories of people are not being charged, whichprovides the voting public with important information and responsible media with theopportunity to investigate and report. He also points to articles today criticising theSFO for not completing its investigation. Mr Dixon also advises that the SFO'sposition is that the statement it intends to issue does not identify the defendants.Should the interim order be extended?[10] Section 56(3) of the Senior Courts Act 2016 provides no appeal lies from anyinterlocutory decision of the High Court unless the High Court grants leave to appealto the Court of Appeal. Under s 56(5), the Court of Appeal can also grant leave if theHigh Court refuses it. I summarised the test for leave to appeal in Li v Chief Executive,Ministry of Business, Innovation and Employment by saying it is likely to be grantedwhere:5(a) there is good reason to consider it before, or separately to, thesubstantive appeal; and5 Li v Chief Executive, Ministry of Business, Innovation and Employment (No 2) [2018] NZHC1171, [2018] NZAR 1134 at [22].(b) it is sufficiently meritorious in substance and relates to a sufficientlyimportant issue as to outweigh the cost and delay of appeal.[11] The arguments in the appeal must be capable of bona fide and serious argumentand the issue must concern a decision of sufficient significance to the parties or aquestion of law or general principle of sufficient significance to outweigh the cost andany delay of the appeal.6[12] I do not agree with NZ First's submissions about the merits of the case, asmight be expected given that I issued the 24 September 2020 judgment. But I considerthere is good reason to have that considered before the substantive appeal. I considerthe proposed appeal does raise a question capable of serious argument and the caseclearly involves public and private interests of sufficient importance to outweigh thecost and delay of appeal. I grant leave to appeal.[13] As I noted at some length in the 24 September 2020 judgment, I consider thereis a significant public interest in information proposed to be made public, being madepublic. But, given that NZ First is appealing the decision, if I do not maintain thesuppression order, I would effectively determine NZ First's appeal against it.Reluctantly, for that reason, in order to preserve that right of appeal, I consider I amrequired to extend the interim suppression order I made in the 24 September 2020judgment. But, given the public interest, I do that for the shortest time I considerreasonable: the time it will take the Court of Appeal to consider whether to maintainthe interim order I am now granting if the appeal is filed immediately. I suppress the24 September 2020 judgment, NZ First's application that led to it, all matters relatingto it including this judgment and prohibit the proposed SFO statement until 5 pmTuesday 29 September 2020.[14] I note that I do not regard the order made by the District Court today as a reasonto extend the suppression orders made in this Court. The SFO's proposed statementdoes not identify X, X's gender, or whether or not X was part of the Foundation or adonor. It does identify that the charges are the result of an investigation and itidentifies categories of people who are not charged. There is likely to be speculation6 At [21]about X's identity once the laying of charges is made public, but I do not consider theSFO's proposed announcement identifies X or the other defendant. It does not eventransgress the surprisingly broad interim order made by the District Court or thenarrower order foreshadowed by Moore J.Result[15] I grant leave to appeal. I suppress the 24 September 2020 judgment, NZ First'sapplication that led to it, all matters relating to it including this judgment and prohibitthe proposed SFO statement until 5 pm Tuesday 29 September 2020 or untilotherwise extended by the Court of Appeal.Palmer J