IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-004-11829
[2023] NZHC 2635
THE KING v
PETER ALAN HARRIS CARDEN JAMES MULHOLLAND
Hearing: 17-18 April; 20-21 April; 24 April; 26-28 April; 1-2 May; 4-5
May; 8-9 May; 12 May; 15-17 May; 22 May; 24-26 May; 29-30
May; 2 June; 6 June 2023Appearances:
B Dickey, D Luo and K Parkash for the Crown
R Reed KC, D Salmon KC, J Cundy and T Hu for Mr Harris
D Jones KC, C Morris, S Cameron and B Shen for Mr MulhollandJudgment:
21 September 2023
Verdicts:
21 September 2023
JUDGMENT OF ROBINSON J
[Reasons for Verdicts]
Solicitors: MC, Auckland; LeeSalmonLong, Auckland; Cook Morris Quinn, Auckland
Counsel:R Reed KC, Auckland; D Salmon KC, Auckland; D Jones KC, Auckland; B Dickey, Auckland; T Hu, Auckland; J Cundy, Auckland
R v HARRIS [2023] NZHC 2635 [21 September 2023]
BACKGROUND AND INTRODUCTORY MATTERS [1]
Introduction [1]
Background [1]
The charges [5]
The Samoa Transactions charges (charges 6-8) [7]
The RBNZ Directions charges (charges 1 – 5) [8]
Verdicts [9]
Relevant rules of law and practice [11]
Judge alone trial [11]
Presumption of innocence, burden and standard of proof [20]
Separate trials [23]
Prejudice and sympathy [24]
Circumstantial evidence and inferences [25]
Question Trail [26]
Regulatory framework [27]
Insurance (Prudential Supervision) Act 2010 [29]
Purposes and principles of IPSA [33]
Licensing [36]
Investigation [39]
Recovery plan [42]
Directions [43]
Appointed Actuary [47]
Solvency Standards [49]
Insurance solvency [51]
CBLI’s business (from Robert Cole’s Formal Witness Statement) [59]
THE SAMOA TRANSACTION | CHARGES 6 - 8 [63]
Introduction [63]
Summary of charges [66]
Relevant chronology [71]
Negotiations with Alpha [71]
The transaction [98]
Documentation [98]
The payments [105]
(Alleged) concealment [110]
Events post liquidation [145]
CHARGE 6 | OBTAINING BENEFIT BY DECEPTION (FRAUDULENT STRATAGEM) [152]
The charge [152]
Legal principles [155]
Question 1: Am I sure that between 9 May 2014 and 22 October 2014 Mr Harris, directly or indirectly, obtained a pecuniary advantage, benefit, or valuable consideration (benefit); namely the €12.5m paid to and for the benefit of Alpha Insurance A/S (Alpha) on or about 15 October 2014 from or through the National Bank of Samoa (NBoS)? [160] Question 2: Am I sure that Mr Harris engaged in a fraudulent stratagem as described and particularised in charge 6 of the Crown Charge Notice and set out above (stratagem)? [161]
The documents [166]
Discussion [169]
Question 3: Am I sure that Mr Harris used the stratagem with intent to deceive the RBNZ or the FMA? [178]
Question 4: Am I sure that the stratagem was a material cause of the defendant obtaining the benefit? [180]
Question 5: Am I sure that when Mr Harris engaged in the stratagem, he did not believe that it was lawful to do so? [181] CHARGE 7: OBTAINING BENEFIT BY DECEPTION (OMISSION OF MATERIAL PARTICULAR) [183]Introduction [183]
Elements of the charge [185]
Question 1: Was the deposit of €12.5m at NBoS…
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- AGLC
- R v Harris [2023] NZHC 2635
- Case
- [2023] NZHC 2635
- Decision Date
CaseChat Overview and Summary
The court found Harris not guilty on all charges, and Mulholland not guilty on all charges he faced. The reasoning for these verdicts involved a detailed examination of the legal framework under the Insurance (Prudential Supervision) Act 2010 (IPSA), the nature of the RBNZ's regulatory powers, and the specific circumstances of each charge. Key issues included the validity of the RBNZ directions as "requirements" under the Crimes Act 1961, the mens rea required for charges of theft in a special relationship, and the sufficiency of the Crown's evidence to prove each element of the charges beyond reasonable doubt. The court also considered the broader implications of the case for New Zealand's commercial and insurance sectors.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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