Court of Appeal sets aside convictions of Simon Nikoloff and Gerard Gallagher
In two separate hearings, the Court of Appeal has set aside the convictions of Simon Nikoloff and Gerard Gallagher. They were found guilty by a jury following a five-week trial in February 2023 on corruption charges, specifically the Crimes Act offences of corrupt use of official information.
The decision to set aside the convictions arose from an issue with the delegations associated with the consent to prosecute process. Charges of corrupt use of official information under s 105 of the Crimes Act 1961 requires the Attorney-General’s consent to prosecute.
In practice, consent is considered by the Deputy Solicitor-General (Criminal) by delegation under the Constitution Act 1986. In August 2019, the SFO obtained this consent; however, an issue arose before the trial relating to the delegation of the authority to grant consent to the Acting Deputy Solicitor-General (Criminal). The High Court accepted the Attorney-General and Solicitor-Generals’ ratification of the consent and the prosecution proceeded.
Upon appeal of the convictions, the Court of Appeal held the issue of delegations could not be fixed with the Instrument applied by the Crown and, therefore, the original consent to prosecute was invalid. Accordingly, the Court held the prosecution, and subsequent convictions were a nullity. The Solicitor-General has sought leave to refer a question of law arising from the decision to the Supreme Court. However, the outcome of this appeal will not change the Court’s decision to set aside the convictions of Mr Nikoloff and Mr Gallagher.
As the prosecution was held to be a nullity due to the absence of a valid charging document, the Director of the SFO was required to consider afresh the decision to prosecute Mr Nikoloff and Mr Gallagher. A reassessment of the decision, including the application of the Solicitor-General’s Prosecution Guidelines, has led the Director to decide against commencing a fresh prosecution.
The SFO will continue to investigate cases which have the potential to undermine trust in our public service and threaten the success of projects which are intended to benefit New Zealand, including in times of disaster recovery.
About the SFO
The SFO is responsible for investigating and prosecuting serious or complex fraud, including bribery, and corruption in New Zealand. With a focus on maintaining integrity and trust in the financial system, the SFO has developed strategic areas of focus to ensure it has the greatest impact with the cases it takes in. These are reviewed and updated every 12-18 months.
SFO Strategic Areas of Focus(external link)