Commissioner of New Zealand Police v Rae

[2021] NZHC 2629

ORDER PROHIBITING PUBLICATION OF NAMES OR ADDRESSES IDENTIFYING PARTICULARS OF CONNECTED PERSONS

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-43

[2021] NZHC 2629

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER OF

an application under ss 48, 50, 55, and 58

BETWEEN

COMMISSIONER OF NEW ZEALAND POLICE

Applicant

AND

DAVID CHARLES RAE

Respondent

SARAH LOUISE RAE
First Interested Party

S LTD
Second Interested Party

R LTD
Third Interested Party

AVA CONSULTING LIMITED

Fourth Interested Party

Hearing:

4&5 October 2021

Counsel:

A Britton and S McCusker for Applicant

Y Mortimer-Wang and R Langdana for Respondent

Judgment:

4 October 2021

ORAL JUDGMENT OF CHURCHMAN J

COMMISSIONER OF NEW ZEALAND POLICE v RAE [2021] NZHC 2629 [4 October 2021]

[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 general right of cross-examination in relation to witnesses.

[2]                  The application to cross-examine H is opposed by Mr Britton, counsel for the Commissioner. There are a number of separate grounds of the opposition. The first point relates to what is said to be a degree of communication and co-operation between H and the advisors of Mr Rae. It is said that this is of such magnitude or extent as to effectively 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 communication with the legal team presently acting for Mr Rae in New Zealand in relation to these proceedings. However, Mr Britton refers me specifically to correspondence between Mr Young and H. Mr Young is described as Mr Rae’s UK agent. I am referred in particular to certain passages in the evidence (page 1375), and an email of 4 March 2021 which refers expressly to the conduct of these proceedings and makes some observations about an approach taken by a Judge who had heard the matter and the aspirations 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 these proceedings to the extent that he is clearly involved with them, and has been given knowledge of them, effectively through Mr Rae.

[5]                  A second ground is the ground of mutuality of interest. It is submitted that the recovery of some $96,000 which was described by Mr Britton as fiduciary fees, I think it probably best described them as consulting fees, and therefore because they have a common interest in recovering this money which is the subject of the various applications before the Court, essentially that puts H in the same boat, as it were, as Mr Rae.

[6]                  By way of response, the submissions are opposed by Ms Mortimer-Wang. It is confirmed by her that Mr Rae intends to rely upon the answers to the questions to be 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 obliged to do in civil proceedings such as these is to look at the substance of the matter. The substance of the matter is that there is clearly a mutuality of interest as between H and Mr Rae. It is also clear that, notwithstanding the comments by Ms Mortimer-Wang that H has been in close communication with Mr Rae’s UK agent, Mr Young, about this trial. It is conceded by Ms Mortimer-Wang that there is no hostility as between H and Mr Rae.

[8]                  Normally where the parties’ interests are aligned in civil proceedings, before leave to cross-examine can be granted, there has to be the declaring of a witness to be hostile or at least the identification of some issues in respect of which there is a clear divergence of interests. Often that is something that has arisen unexpectedly and there is an application for leave to cross-examine during the course of the giving of evidence.

[9]                  In the present case, I am satisfied that the interests of Mr Rae and those of H are mutual, that Mr Rae has sought explicitly to rely upon the evidence of H and that it would not be appropriate, or in the interest of justice, for any cross-examination to occur.

[10]              As an alternative argument, Ms Mortimer-Yang submitted that, were I not to permit cross-examination, that she would wish to put questions which could be described as of the type normally proposed when leading a witness. I did not hear specifically from Mr Britton on that by way of a response. I infer from that that he has 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 is leading in support of one’s case. I reiterate that these are not permitted to be leading questions. If they stray into that territory then I will intervene.

Churchman J

Solicitors:

Crown Solicitor, Wellington for Applicant K3 Legal Limited, Auckland for Respondent