Commissioner of Police v A
[2021] NZHC 2195
•26 August 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV2017-404-2713
[2021] NZHC 2195
BETWEEN COMMISSIONER OF POLICE
Applicant
AND
A
First Respondent
B
Second Respondent
Hearing: On the papers Counsel:
S Earl and L Rangamuwa for Applicant
Judgment:
26 August 2021
[REDACTED] JUDGMENT OF WHATA J
This judgment was delivered by me on 26 August 2021 at 1.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Solicitors: Meredith Connell, Auckland
COMMISSIONER OF POLICE v A [2021] NZHC 2195 [26 August 2021]
[1] This is an application by way of memoranda seeking an order permitting the Commissioner and the Commissioner’s witnesses to disclose information relating to suspicious transaction reports in the present proceedings. The application is made on a without notice basis.
Background
[2] On 30 April 2021, the Commissioner filed an application for civil forfeiture orders under the Criminal Proceeds (Recovery) Act 2009 (the Act). Multiple affidavits were filed in support of that application. The Commissioner’s applications and supporting affidavits make no reference to transactions entered into by the respondents that were reported to the Financial Intelligence Unit (FIU) of the New Zealand Police. This is because the reporting of suspicious transactions is captured by the express disclosure limitation set out in ss 46 and 47 of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (AML/CFT Act). Given those limitations, the Commissioner filed an application under the AML/CFT Act seeking leave for the Commissioner and the Commissioner’s witnesses to disclose that information.
The suspicious transactions
[3] The Commissioner has identified three suspicious transaction reports from a money remitter regarding the first respondent, A’s, and second respondent, B’s, attempts to remit cash from New Zealand to China in [redacted] 2016. In particular, the Commissioner notes that the money remitter had concerns regarding the large amount of cash the respondents attempted to remit to China, noting that they sought to transfer up to NZ$[redacted] cash at one time. The Commissioner says the money remitter had reservations about the source of the cash, noting that the respondents attempted to remit large quantities over a [redacted]-day period from [redacted] 2016. The remitter declined the full value, and only allowed transfer of NZ$[redacted] cash during this [redacted]-day period.
[4] Further, the Commissioner submits the cash referred to in the suspicious transaction reports to the FIU does not correlate with the withdrawals or activity observed in the bank accounts of the respondents or accounts they are believed to have
controlled. The Commissioner’s case is that these suspicious transaction reports are evidence of the respondents’ access to cash beyond what is reflected through an analysis of the bank accounts and was derived from their contended significant criminal activities.
[5] The Commissioner’s calculation of the quantum of the respondents’ alleged unlawful benefit includes cash A and B had access to outside the banking system in 2016 NZ$[redacted]. This value includes the NZ$[redacted] in cash A and B successfully remitted to China between [redacted] and [redacted] 2016, which the Commissioner says is evident only through the relevant suspicious transaction reports.
Threshold
Section 46 of the AML/CFT Act provides:
46 Disclosure of information relating to suspicious activity reports
(1)This section and section 47 apply in respect of the following information:
(a)any suspicious activity report:
(b)any information the disclosure of which will identify, or is reasonably likely to identify, any person—
(i)as a person who, in his or her capacity as an officer or employee of a reporting entity, has handled a transaction in respect of which a suspicious activity report was made; or
(ii)as a person who has prepared a suspicious activity report; or
(iii)as a person who has made a suspicious activity report:
(c)any information that discloses, or is reasonably likely to disclose, the existence of a suspicious activity report.
(2)A reporting entity must not disclose information to which this section relates to any person except—
(a)a Police employee who is authorised by the Commissioner to receive the information; or
(b)the reporting entity’s AML/CFT supervisor; or
(c)an officer or employee of the reporting entity, for any purpose connected with the performance of that person’s duties; or
(d)a lawyer, for the purpose of obtaining legal advice or representation in relation to the matter; or
(e)another member of a designated business group of which the reporting entity is a member, to the extent necessary for the reporting entity to decide whether to make a suspicious activity report.
(3)A Police employee may disclose information to which this section applies only for law enforcement purposes.
(4)An AML/CFT supervisor may disclose information to which this section applies only to the Police for law enforcement purposes.
(5)A person to whom a function or power has been delegated under section 134 may disclose information to which this section applies only to the AML/CFT supervisor that made the delegation.
(6)A person (person A) referred to in subsection (2)(c) to whom disclosure of any information to which that subsection applies has been made must not disclose that information except to another person of the kind referred to in that subsection for the purpose of—
(a)the performance of person A’s duties; or
(b)obtaining legal advice or representation in relation to the matter.
(7)A person referred to in subsection (2)(d) to whom disclosure of any information to which that subsection applies has been made must not disclose that information except to a person of the kind referred to in that subsection for the purpose of giving legal advice or making representations in relation to the matter.
(8)Any other person who has information to which this section applies may disclose that information only to the Police for law enforcement purposes.
[7]Section 47(1) also relevantly provides:
47 Disclosure of information in proceedings
(1) No person may disclose, in any judicial proceeding (within the meaning of section 108(4) of the Crimes Act 1961), any information contained in a suspicious activity report unless the Judge or, as the case requires, the person presiding at the proceeding is satisfied that the disclosure of the information is necessary in the interests of justice.
[8] As noted by the Commissioner, the purposes of the AML/CFT Act, as set out in s 3, are:
(a)to detect and deter money laundering and the financing of terrorism; and
(b)to maintain and enhance New Zealand’s international reputation by adopting, where appropriate in the New Zealand context, recommendations issued by the Financial Action Task Force; and
(c)to contribute to public confidence in the financial system.
[9] Counsel for the Commissioner, Ms Earl, advised she was unable to find any judicial discussion or commentary exploring the specific purposes of ss 46 and 47, or the test to be applied under s 47. Reference is made to instances where the Court has granted leave for disclosure under s 47 in similar cases to the present; however, no reasoning was recorded in those cases.1
[10] In any event, as is submitted on behalf of the Commissioner, the evident purpose of ss 46 and 47 of the AML/CFT Act is to protect or preserve the confidentiality of the person supplying information. The disclosure, in that context, is only justified when it is necessary to do so in the interests of justice. I largely agree with Ms Earl’s proposed (non-exhaustive) factors to determine whether disclosure will be necessary and in the interests of justice, namely:
(a)the nature and seriousness of the allegations made against a respondent;
(b)the importance of the evidence;
(c)the availability or unavailability of alternative evidence establishing the same facts which is less likely to lead to the identification of those who reported the offending or suspicious activity;
(d)any matters relevant to the interests of those who made the disclosure;
(e)the downstream effect that granting an application for leave under s 47 may have on the general reporting of suspicious activities under the AML/CFT Act; and
1 Commissioner of Police v [Y] HC Auckland CIV-2021-404-401 (Minute of Campbell J, 17 March 2021); and Commissioner of Police v [G] [2017] NZHC 556.
(f)the maintenance of the integrity of the law with respect to financial transactions.
[11]I address each of these considerations in turn.
Nature and seriousness of the allegations made
[12] The alleged “significant criminal activity” forming the basis of the Commissioner’s case against A and B is the importation and sale of cocaine, and money laundering and receiving. These are undoubtedly serious charges attracting high penalties.2
The importance of the evidence
[13] The proposed evidence is probative insofar as it suggests access to monies by the respondents not otherwise disclosed in a publicly accessible way.
Availability of alternative evidence
[14] It is not clear to me that there is any alternative basis upon which to establish the same facts as disclosed in the information sought to be produced.
Any matters relevant to the interests of those who made the disclosure
[15] The Commissioner has set out a detailed proposal to maintain confidentiality in disclosing the documents, including the following terms:
(a)The relevant affidavits will not contain the names of any individuals working for the company that reported the suspicious activity.
(b)The name of the company could also be redacted if the Court considers that necessary.
2 See Crimes Act 1961, ss 243-247; and Misuse of Drugs Act 1975, s 6 and sch 1, “Class A controlled Drugs”.
(c)Disclosure of the information will be limited to the Court, the respondents and interested parties.
(d)Reference to such information could be redacted in any publicly available judgment and can be made subject to a non-search and/or confidentiality order.
Downstream effect
[16] I consider that, with the appropriate redactions and anonymisation, the interests of confidentiality can be maintained so that the downstream effects are acceptably limited.
The maintenance of integrity of law with respect to financial transactions
[17] Given the nature of the claims and the importance of the evidence, I accept that allowing disclosure of the evidence on the limited basis proposed will assist in maintaining the integrity of the law with respect to financial transactions.
Result
[18] For the above reasons, I am satisfied that I should make the order as sought, subject to the proposed terms of anonymisation set out above.
[19] I grant the Commissioner’s application for disclosure of the suspicious transaction reports under s 47 of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009, subject to the Commissioner undertaking the steps in [15](a)-(d) above.
Suppression
[20] To maintain the confidentiality of the disclosed information, the names of the parties and of the relevant financial institutions have been anonymised. Identifying particulars, including the sums involved, have also been redacted.
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