Commissioner of Police v Thacker

[2025] NZHC 764

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV 2020-463-50

[2025] NZHC 764

UNDER

The Criminal Proceeds (Recovery) Act 2009

BETWEEN

COMMISSIONER OF POLICE

Plaintiff

AND

JIM DAVID THACKER

First Respondent

HONE JOHN MCCAULEY RONAKI
Second Respondent

PANE JASMIN HART
Third Respondent

KELLY JAMES PETROWSKI
Fourth Respondent

Continued….

On the papers

Counsel:

L J Clay for the applicant

M Phelps for the third respondent

Date:

3 April 2025

JUDGMENT OF BLANCHARD J

[Application for access to Court documents]

This judgment was delivered by me on 3 April 2025 at 9.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors/Counsel:

Pollett Legal, Tauranga M J Phelps, Hastings

COMMISSIONER OF POLICE v THACKER and OTHERS [2025] NZHC 764 [3 April 2025]

AND

LANCE THACKER

Interested party

DIANE MAGGIE TAMAKU THACKER
Interested party

BARBIE JEAN JAMIE REID
Interested party

PAULA MARINA WANOA

Interested party

JACOB MICHAEL ANARU MASON
Interested party

GARRY NORMAN
Interested party

EPHRON RONAKI
Interested party

PETER NEHANA TE HAU

Interested party

[1]                 Geogia Clifton, an investigator in the Fraud Intervention Services team at the Ministry  of  Social  Development  (MSD),  applies  to  access  an  affidavit  of Bruce Russell, a police investigator, filed in support of the Commissioner’s application for asset and profit forfeiture orders under the Criminal Proceeds (Recovery) Act 2009.

[2]In her application, Ms Clifton explains:

[MSD] has information that one of its clients may have acted unlawfully in obtaining benefits and it is conducting an investigation. The affidavit of Bruce Russell is likely to assist in [MSD]’s investigation of this matter.

[3]                 Pane Hart, the third respondent, opposes the application. He suspects the MSD investigation concerns him. The Commissioner and the other respondents do not oppose the application.

[4]                 The application for forfeiture orders is yet to be determined. Mr Hart says he has reached a settlement agreement with the Commissioner that will be brought before the Court for approval.

The affidavit

[5]                 Mr Russell has filed several affidavits in this proceeding. Ms Clifton’s application does not specify which affidavit MSD is seeking.

[6]                 Mr  Hart  says  MSD  is   likely   seeking   Mr   Russell’s   affidavit   dated  12 March 2024 that runs to 1,982 pages. It identifies the significant criminal activity that the police say justifies making the forfeiture orders sought.

The rules

[7]                 Ms Clifton applies for access to the affidavit under r 11 of the Senior Courts (Access to Court Documents) Rules 2017.

[8]                 The Court must consider the nature of, and the reasons given for, the request. It must take into account each of the following matters that is relevant to the request or any objection to the request:1

(a)the orderly and fair administration of justice:

(b)the right of a defendant in a criminal proceeding to a fair trial:

(c)the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice:

(d)the protection of other confidentiality and privacy interests (including those of children and other vulnerable members of the community) and any privilege held by, or available to, any person:

(e)the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions):

(f)the freedom to seek, receive, and impart information:

(g)whether a document to which the request relates is subject to any restriction under rule 7:

(h)any other matter that the Judge thinks appropriate.

Discussion

[9]                 Mr Hart says it would be unfair to provide MSD with the affidavit. It contains information Mr Hart provided in, and a transcript of, an examination interview, where he had no right to decline to answer questions.2 Mr Hart says he would not otherwise have had to divulge this information, including to MSD investigators. He notes any self-incriminating statement that a person makes orally in response to an examination order under the Criminal Proceeds (Recovery) Act is not admissible in any civil or criminal proceedings.3 Mr Hart says granting access would cut across his right against self-incrimination and the right to silence, and it would be contrary to the fair administration of justice.

[10]I do not think Ms Clifton’s application should be granted for three reasons.

1      Senior Courts (Access to Court Documents) Rules 2017, r 12. The restriction on access in r 7 (referred to in sub-r (g)) is not relevant to this application.

2      Criminal Proceeds (Recovery) Act 2009, ss 107 and 163.

3      Section 165.

[11]              First, I consider the orderly and fair administration of justice consideration favours declining the application. MSD has extensive information gathering powers under sch 6 to the Social Security Act 2018. These include powers to require a person to answer all questions MSD may ask about a person who has or is receiving a benefit,4 or to require a person to give MSD information for the purposes of assessing a person’s entitlement to a benefit.5 These powers to gather information extend to making requests from other government departments and public bodies.6 It is open to MSD  to request information about a beneficiary directly from the police in the course of its investigation.

[12]              However, unlike police examination orders under the Criminal Proceeds (Recovery) Act,7 no person is required to provide MSD with any information that would be privileged in a court of law (unless the exception concerning financial records in sch 6 cl 4(3) applies).8 Mr Hart says Mr Russell’s affidavit contains information that attracts such privilege.

[13]              Similarly, MSD’s information gathering  powers  are  regulated  by  a  code of conduct.9     The code stipulates that MSD must first request information about      a beneficiary from that person directly and give them reasonable time to provide information (except if compliance would prejudice the maintenance of the law). MSD may only then obtain information from a third party if it has reasonable cause, and the beneficiary has not provided the information requested or MSD suspects that the information supplied has been altered or is not a genuine copy of the original document.

[14]              I consider it would be a circumvention of the MSD statutory scheme and code of conduct to grant the  application.  The orderly and fair  administration of justice   is better ensured by MSD following its usual investigation processes — gathering

4      Social Security Act 2018, sch 6 cl 1.

5      Schedule 6 cls 2 and 3.

6      Schedule 6 cl 2(3).

7      Criminal Proceeds (Recovery) Act, ss 107 and 163.

8      Social Security Act, sch 6 cls 1(2) and 4(1).

9      Schedule 6 cls 8–12; and Ministry of Social Development Code of Conduct for Obtaining Information under Clause 2 of Schedule 6 of the Social Security Act 2018 (1 March 2021).

information from the beneficiary and/or third parties directly with the safeguards provided for in the code of conduct.

[15]              Second, this is not an application for information by the media for the purpose of reporting on the substantive proceedings. Ms Clifton seeks the affidavit to assist an MSD investigation. The principle of open justice carries less weight in this context. Granting this application will not support the fair and accurate reporting of, and comment on, court hearings and decisions.

[16]              Third, the application for forfeiture orders (or any proposed settlement) is yet to be heard. Protection of confidentiality and privacy interests and the orderly and fair administration of justice carry greater weight before a substantive hearing occurs.10

[17]              While Ms Clifton’s application likely relates to Mr Russell’s affidavit dated 12 March 2024, I am satisfied an application by MSD for any affidavit filed by Bruce Russell in this proceeding should be declined for the reasons I have explained.

Conclusion

[18]Ms Clifton’s application is declined.

Blanchard J

10     Senior Courts (Access to Court Documents) Rules, r 13(a).