On 12 May 2020, the Serious Fraud Office (SFO) inadvertently disclosed two documents to the defendants in the National Party donations case. Those documents contained confidential information regarding donors to the National Party in 2017 and 2018. They were disclosed in error during the course of the SFO’s compliance with its normal disclosure obligations.
The SFO did not become aware of the error until 26 July 2020, when Mr Ross reported that he was in possession of the documents and expressed an intention to refer to the documents in the House of Representatives and to take legal advice about releasing them publicly if that was unsuccessful.
On 29 July 2020, the SFO brought an urgent ex parte application seeking orders requiring that Mr Ross refrain from publicly referring to the documents and requiring that they be destroyed. Interim orders were made against Mr Ross that day, without him having any opportunity to defend the application. Mr Ross asserts that the materials were subject to the Parliamentary privilege that applies to material that is connected to proceedings in Parliament (ss 9 and 10 of the Parliamentary Privilege Act 2014) and that he could not be ordered to destroy them.
Rather than continue to litigate the merits of that issue, however, the parties have reached a resolution, under which Mr Ross has agreed to destroy the electronic copy of the documents in his possession and to provide the hard copy to his counsel so that they can be held securely and only released (with prior notice to the SFO) for a proper purpose. This agreement in no way reflects any criticism of Mr Ross and/or his conduct in relation to these documents.
As a consequence of this resolution, the parties have agreed that the Court should rescind the initial order made by Jagose J on 29 July 2020. The Court has been invited to do so.
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About the SFO
The Serious Fraud Office (SFO) was established in 1990 under the Serious Fraud Office Act.
The SFO is the lead law enforcement agency for investigating and prosecuting serious or complex financial crime, including bribery and corruption.
The presence of an agency dedicated to white collar crime is integral to New Zealand’s reputation for transparency, integrity and low levels of corruption.
The SFO operates under two sets of investigative powers.
Part 1 of the SFO Act provides that it may act where the Director “has reason to suspect that an investigation into the affairs of any person may disclose serious or complex fraud.”
Part 2 of the SFO Act provides the SFO with more extensive powers where: “…the Director has reasonable grounds to believe that an offence involving serious or complex fraud may have been committed…”
In considering whether a matter involves serious or complex fraud, the Director may, among other things, have regard to:
- the suspected nature and consequences of the fraud and/or;
- the suspected scale of the fraud and/or;
- the legal, factual and evidential complexity of the matter and/or;
- any relevant public interest considerations.
The SFO’s Annual Report 2020 sets out its achievements for the past year, while the Statement of Strategic Intentions 2020-20204 sets out the SFO’s strategic goals and performance standards. Both are available online at www.sfo.govt.nz
The SFO Twitter feed is @SFO_NZ