R v Harris - [2021] NZHC 468

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2019-004-011829

CRI 2019-004-011837

[2021] NZHC 468

THE QUEEN

v

PETER ALAN HARRIS

&

CARDEN JAMES MULHOLLAND

Hearing: 25 & 26 November 2020

Appearances:

B H Dickey and J A P Hilario for the Crown R S Reed QC and T Hu for Mr Harris

D P H Jones QC and D C S Morris for Mr Mulholland P F Wicks QC for the Reserve Bank

Judgment:

11 March 2021

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 11 March 2021 at 3.30pm and
re-delivered by me on 19 March 2021 in accordance with High Court Rules 2016, r 11.10

…………………………
Registrar/Deputy Registrar

Solicitors/Counsel: Meredith Connell, Auckland
Cook Morris Quinn, Auckland Lee Salmon Long, Auckland D P H Jones QC, Auckland
R S Reed QC, Auckland

Copyto: Serious Fraud Office, Auckland Reserve Bank of New Zealand

R v HARRIS & MULHOLLAND [2021] NZHC 468 [11 March 2021]

Introduction

[1] The defendants, Peter Alan Harris and Carden James Mulholland, apply for the following orders under the Criminal Disclosure Act 2008 (CD Act):

(a)An order under s 30(1)(a)(i) that information in the possession of the Reserve Bank of New Zealand (RBNZ) be disclosed to the defendants (the first application);

(b)An order under s 30(1)(a)(ii) that information in the possession and control of the Serious Fraud Office (SFO) that has been withheld by the SFO be disclosed to the defendants (the second application);

(c)An order under s 30(1)(b) that documents over which the RBNZ has claimed legal privilege be disclosed to the defendants (the third application).

[2] In addition, Mr Harris applies for a declaration or other remedy that recognises that the SFO breached Mr Harris’s right to be free from unlawful search and seizure in accordance with s 21 of the New Zealand Bill of Rights Act 1990 by accessing documents stored on the SFO’s database which are subject to legal privilege held by Mr Harris.

[3] The applications were heard on 25 and 26 November 2020. During the hearing, a Crown witness, Joanne Pettifer, a forensic accountant at the SFO, undertook to see whether she could locate documents relevant to the orders in [1](a) and (c) above. It was agreed that time should be allowed for those documents to be located and, if located, for further submissions to be filed in relation to those orders.

[4] By affidavit sworn on 30 November 2020, Ms Pettifer said that she had located various documents, copies of which were annexed as exhibits. Further submissions were filed as follows:

(a)On 4 December 2020 by counsel for the defendants;

(b)On 9 December 2020 by counsel for the Crown and by counsel for the RBNZ;

(c)On 15 December 2020, by counsel for the defendants in reply to counsel for the Crown.

[5] This judgment deals only with the first disclosure application. My judgment on the other applications will follow as soon as possible.

The charges…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Harris

Details

AGLC: R v Harris [2021] NZHC 468
Case: [2021] NZHC 468
Decision Date: 11 March 2021

CaseChat Overview and Summary

The case of R v Harris and Mulholland involved applications by the defendants for disclosure of information held by the Reserve Bank of New Zealand (RBNZ) and the Serious Fraud Office (SFO). The defendants argued that the RBNZ was either a co-prosecutor with the SFO or the SFO’s agent, and therefore any information held by the RBNZ was subject to the prosecutor’s disclosure obligations. The court rejected these arguments, finding that the RBNZ was not a co-prosecutor or the SFO’s agent. The RBNZ’s cooperation with the SFO was limited to providing information and witnesses in response to SFO notices, and the SFO led the criminal investigation. The court also found that there was insufficient evidence to order a non-party disclosure hearing to determine whether the RBNZ held relevant information not disclosed by the SFO. The court dismissed the defendants’ application for disclosure under the Criminal Disclosure Act.

The court held that the RBNZ was not a co-prosecutor or the SFO’s agent for the purposes of the prosecutor’s disclosure obligations. The Memorandum of Understanding between the SFO and RBNZ did not make the RBNZ the agent of the SFO. The RBNZ provided information to the SFO, but that information was generated before the two bodies agreed to cooperate and was not information generated or received by the RBNZ for or on behalf of the SFO. The court also held that there was insufficient evidence to order a non-party disclosure hearing to determine whether the RBNZ held relevant information not disclosed by the SFO. The RBNZ had not checked whether certain information existed, and its test for relevance fell short of the definition in the Criminal Disclosure Act. The court dismissed the defendants’ application for disclosure.

Orders