New Zealand First, and one defendant, really didn’t want the public to know the SFO is laying charges in the NZ First Foundation case. Tim Murphy outlines the extent of their legal manoeuvrings.

As the Serious Fraud Office prepared to announce charges against two people in its New Zealand First Foundation investigation, the New Zealand First political party and one of the accused were so desperate for secrecy they launched a blizzard of legal action claiming to involve three courts at once.

Even the courts and judges appeared to struggle to keep up with applications being sought, withdrawn, granted, appealed and delayed as New Zealand First and Co tried to stop the news of the “obtaining by deception” charges, which carry penalties of up to three years’ imprisonment, from being made public.

In the end, the public’s right to know such information in the lead-up to the election won the day.

Here’s a timeline of the legal manoeuvres:

Wednesday September 23: After a seven month investigation, the SFO advises solicitors for New Zealand First that it will announce it is laying charges against two people in the New Zealand First Foundation case. NZ First, the party, instructs barrister Fletcher Pilditch to go to the High Court to seek an injunction stopping the SFO from going public about the charges until not just after the October 17 election but until after a new government is formed. The duty judge, Justice Matthew Palmer, asks to hear also from the SFO and a hearing is held late afternoon. NZ First indicates it wants the secrecy and the delay so it can seek a High Court judicial review of the SFO’s actions in seeking to make public the charges. The SFO offers to amend its proposed media statement to explicitly say those charged are not NZ First ministers, MPs, candidates or party officials.

Thursday September 24: Justice Palmer rules against NZ First, saying the SFO can make its statement and the public has a right to receive that information under the Bill of Rights Act, but he gives the party until 5pm the next day, Friday September 25, to consider his judgment, and he suppresses his ruling, the very fact of NZ First’s application and the details raised in court.

Friday September 25: One of the two people charged, later named by Justice Palmer as ‘X’, makes a separate application to the High Court to stop the SFO from making a statement about laying charges, and to suppress the fact this person had made this application, so X can have time to seek name suppression in the District Court. Then, X withdraws the High Court action, saying the application for name suppression is instead to be dealt with that very day by the District Court.

Judge Simon Maude of the North Shore District Court, who apparently has not seen Justice Palmer’s ruling from the previous day, grants a sweeping suppression order stopping the naming or use of photos or video of X in relation to the New Zealand First Foundation case. However the SFO then appeals that order to the High Court, where Justice Simon Moore over-rides Judge Maude and institutes more limited suppressions of name, address and occupation – this time for both of the two people facing charges, not just X. Lawyers for X indicate they will in turn appeal this Justice Moore judgment (to the Court of Appeal) and want Judge Maude’s wide suppression conditions to remain in effect until that appeal can be resolved.

Friday September 25: While that is going on, NZ First also threatens to go to the Court of Appeal, deciding to challenge Justice Palmer’s decision to allow the SFO to make its statement. It asks for his leave to appeal and wants the ban on the SFO announcing the laying of charges extended and the secrecy over the NZ First application for these orders to also be extended.

Justice Palmer convenes a hearing at 4.50pm. For NZ First, Pilditch complains of the SFO’s “arbitrariness and unreasonableness” in intending to go public and alleges it could cut across the court’s rights to determine matters in the criminal justice system. Interestingly, he alleges an SFO public statement could risk identifying those charged now that its statement had agreed to rule out the NZ First ministers, MPs, candidates or party officials. He says news of the charges would have significant consequences for NZ First – and in effect the party’s bid to stop the SFO statement is “effectively substantive” not just interlocutory, meaning this legal action is not just a precursor but is the major thrust of the party’s case.

The SFO’s QC, John Dixon, argues against allowing NZ First to take the matter to the Court of Appeal, saying the party’s application is without merit and the appeal cannot succeed. In the end, Justice Palmer allows NZ First to appeal his ruling that the SFO can make its statement. He gives the party until 5pm on Tuesday, September 29 to do so, otherwise his ruling stands and the SFO statement can be made.

Tuesday September 29, afternoon: NZ First leader Winston Peters advises media he will hold a press conference on a matter of importance at 5pm. Soon after, the SFO says it, too will make a statement on the NZ First Foundation inquiry at 5pm. This is the deadline for NZ First to have lodged its appeal to Justice Palmer’s ruling. When the clock ticks over, Peters and the SFO separately announce two people will be charged. It is apparent that NZ First did not follow through with its Court of Appeal action, as if it had done so and succeeded, the fact of the charges could not have been announced by either Peters or the SFO.

Peters claims his party will still go on to ask the High Court for a judicial review of the SFO’s actions in deciding to make a public statement now, even though Justice Palmer has said its case is not “particularly strong”. If that further action occurs, it will be after the October 17 election and any government formation, in any case.

Tuesday September 29, 6pm: Two separate decisions by Justice Palmer outlining the complex matters above are released by the High Court. What is left unclear is whether X has gone ahead and appealed Justice Moore’s narrowing of the suppression order approved in the district court by Judge Maude. 

The upshot: the SFO won the right to tell the public it has charged two people with “obtaining by deception” in relation to the New Zealand First Foundation inquiry. The charged pair appear to have had their names suppressed by the High Court until at least their first appearance in court on October 29. The charged person X could yet appeal the conditions of that suppression to the Court of Appeal. The NZ First party claims it will press ahead with a bid for a High Court judicial review of the SFO’s actions.

Tim Murphy is co-editor of Newsroom. He writes about politics, Auckland, and media. Twitter: @tmurphynz

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