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Tim Murphy is co-editor of Newsroom. He writes about politics, Auckland, and media. Twitter: @tmurphynz
COMMENTS BY Peter Davis, Grahame Savage
Justice
The Serious Fraud Office’s three-party prosecutions over political donations have exposed concerns about the use of its extensive coercive powers and secrecy, and the manner in which it treated suspects, withheld information from them and blanked their lawyers.
Tim Murphy looks at how it went about its inquiries and why it might face its own examination once the dust settles.
The narrow, white-walled room with its big, ticking analogue clock and long wooden table seems too small for five people, a video camera and all the human, legal and personal rights hung up on the back of the door.
On one side of the table sits Joe Zheng, an Auckland building contractor, with his lawyer, Rosemary Thomson. On the other are two Serious Fraud Office investigators, and at the end, an interpreter. An SFO lawyer is said to be watching proceedings remotely.
Thomson later describes the venue as “a windowless, small room, a foreign environment.”
Zheng is at the SFO on December 3, 2019 under a compulsory order, known as a Section 9, issued by these investigators pursuing leads on donations to the Labour Party in 2017 and National Party in 2017 and 2018, which appeared to have been broken into smaller amounts to conceal the identity of its true donor.
A High Court trial of seven people over those donations has given a rare insight into what goes on in this room – one of the places in New Zealand with the least personal rights and freedoms other than places of incarceration.
The case underlined the extent of the SFO’s unfettered power during an investigation.
A person under investigation and hit with a Section 9 notice and compulsory interview, a search warrant and all the rest has no legal right even to seek a Judicial Review before the courts. The SFO director’s actions are exempt.
Check your rights at the door
Joe Zheng’s interview would not normally be one seen by anyone other than the SFO itself. It is usually an interview that dares not speak its own name.
It is only on view, years later, because it was part of the evidence in Zheng’s subsequent High Court trial for obtaining by deception in connection with those donations.
And it is only in evidence because Thomson and Zheng have waived his legal privilege that would have kept it beyond the view or detailed knowledge of others – effectively by asking that it be shown in full to the judge, Justice Ian Gault, and a court room full of six other defendants, their lawyers, five prosecution lawyers, journalists and members of the public.
Thomson later tells the court this interview and another demanded of Zheng six weeks later in January 2020 are being played in full in court after her application was granted, to “give context.”
At the beginning of the interview, Zheng gets to realise exactly what standard legal rights he has had stripped off him when he walked through that door on the fifth floor or the office’s former premises in lower Queen St.
The main interrogator, lead investigator on the case Lee Taylor, runs through a series of secrecy provisions and a list of rights that citizens in Zheng’s situation give up when faced with a Section 9.
“The Director has required you to appear and answer questions,” he begins.
“Section 9 removes your right to silence. You must answer all the questions we ask of you.”
Then, another right is suspended: There is no privilege in this room against self-incrimination. You have to answer even if that might incriminate you.
Taylor moves on to Zheng’s obligation to keep his very attendance at the interview secret.
“Information will be disclosed to you subject to the secrecy obligations imposed by Section 36 [of the Serious Fraud Office Act].
“The fact of you being served a Section 9, and anything from this interview, are also covered.
“This is an obligation under Section 41, giving you the notice to come here and our conversation, is protected information, meaning you cannot talk to anyone else about it apart from your lawyer.”
It goes on.
“If you wish to disclose or talk to anyone on the contents of it, you must obtain the authority of the Director of the Serious Fraud Office first. It’s a criminal offence to knowingly breach the secrecy provisions of the Act. Doing so may result in a fine or even imprisonment.”
“The [SFO] Director has a great deal of autonomy from external scrutiny and is not limited to any degree by statute in the cases he or she can investigate.”
– Law Commission
Pleasantries out of the way, Taylor then proceeds to ask Zheng detailed questions about his coming to New Zealand in 2001, work for his brother Colin’s construction firm Anco Property Development, knowledge of some of the other defendants in that later court case and his involvement in a deposit of $100,000 from China first to his bank account and then transferred to others to donate to National.
Zheng, in his early 30s and able to converse in English despite the presence of the translator, answers as required, offering up at least one piece of evidence the SFO had not been aware of.
At the end of the hours of questions, Taylor asks Zheng if he has any other comments or questions.
“Not really,” the suspect answers.
Taylor smiles across the table, and perhaps with some intended irony remarks: “That’s okay. It’s not compulsory.”
As it turns out it was about the only thing not compulsory about Zheng’s engagement that day, and earlier, when the office had issued him a Section 9 ‘forthwith’ demand forcing him to give up all his electronic devices, storage and his passwords and ‘swiping patterns’.
Joe Zheng is subsequently re-interviewed compulsorily in January 2020 and later charged under Section 45 of the SFO Act with knowingly lying to its officers during those compulsory interviews.
His twin brother Colin also gave an interview to the SFO, three days after Joe’s December 3 2019 compulsory sit-down.
But Colin, with his lawyer Paul Dacre QC, had chosen to go in voluntarily. The Crown later told the High Court it believed Colin, too, had lied to the SFO but because he had done so at a voluntary interview he could not be charged alongside his brother with that offence.
It is also played in court. As Colin sits in one of the SFO’s little windowless rooms, he is told by Taylor: “You are welcome to leave at any time you want to. You are not detained or under arrest.”
He’s told the SFO believes he has been implicated in an offence in 2017/18. “We’re not sure on the exact offence,” Taylor confesses, “and it’s going to be breaches of the Electoral Act or Crimes Act.”
Colin Zheng also gets the secrecy treatment, with repeated warnings that only he and Dacre can discuss what goes down and, ultimately, prison could await those who breach those conditions. “You are obliged to observe the strictest secrecy obligations under Section 41 of the SFO Act.”
He would be able to request in writing a transcript copy of the videotaped interview, but the SFO director would need to decide what parts it could share with him. There’s no automatic right to see what you actually said.
By the time Joe Zheng returns for his follow up compulsory interview, he knows the secrecy drill, declining a copy of Taylor’s warnings. “Got a copy already,” he says.
The final defendant to be interviewed, businessman Yikun Zhang, returned from China for his voluntary four-hour session on January 24, 2020. Five days later, charges were filed against him and the others.
You have no right to remain silent
The SFO’s legislation removing the right to silence and the privilege not to self-incriminate has sat uncomfortably with some in the law from the time the office was created.
The loss of those rights came in 1990, not long before Parliament passed the Bill of Rights Act. The SFO measures were immediately in conflict with that law.
During the parliamentary debates of the Serious Fraud Office Bill, at least one MP, the next Attorney General, Paul East KC, argued for a broader consideration of the right to silence, rather than simply removing it for interviews by one agency.
The Third Labour Government considered the office needed “special powers to be able to unravel complex transactions and documentation that accompany such offences.”
The SFO advised the Department of Justice in the mid 1990s that a suspect’s right to remain silent “had no relevance to serious and complex fraud offences given the sophistication of the persons involved with such offences and the legal and financial advice available to those persons.”
The then-director felt the protection of silence was no longer necessary as “the threat of torture has receded and because of the use of video recording to protect the interests of both sides.”
The blunt instrument of the Serious Fraud Office Act meant that, for example, when National’s general manager Greg Hamilton, received the demand for its donations records for 2017, he could not under law even tell the members of his own party’s board.
As long ago as 1996 the Law Commission expressed concerns. “There is no evidence that large numbers of guilty people are escaping by claiming the privilege in the serious fraud context.”
It noted the inequality with police inquiries. “The privilege is available if the police investigate serious or complex fraud offences, but is not available if the investigation is under the auspices of the director of the Serious Fraud Office.”
The police and SFO have a protocol which sees cases moved to the fraud agency if the dollar value involved is over $500,000, the case is particularly complex or it involves “great public interest or concerns and/or involves a public figure.”
The Commission’s preliminary paper recommended the right to silence and privilege against self-incrimination should be restored for people investigated by the SFO.
The commission also noted: “The Director has a great deal of autonomy from external scrutiny and is not limited to any degree by statute in the cases he or she can investigate.”
No one’s safe from Section 9
The office’s use of its powers – orders to provide documents and devices, demands of compulsory interviews, and search warrants – came in for extensive criticism from defence lawyers during the seven-week trial of the Zheng brothers, Zhang, former MP Jami-Lee Ross and three others with name suppression.
One of the Crown’s two KCs, Paul Wicks, dismissed the attack on the SFO’s processes, telling Justice Gault there was “no basis” for the criticisms put to Taylor and the court over the agency’s actions.
However a picture emerged – in cross examination of Taylor and his forensic accountant colleague Blair Bulloch, and in the defence closing statements – of a heavy hand of the law in action. One that made sufficient errors or omissions in a vast, sprawling and multi-tiered investigation to prompt a level of uproar from the defence.
One lawyer complained of the SFO’s political motives, including suggesting it had acted to stop any move by the Labour Government to abolish it as a standalone agency.
The counsel questioned tactics used in the compulsory interviews, detailing repeated instances of information that the Crown later relied on as pivotal to its case as having been deliberately not raised with Zheng, Zheng, Zhang and others.
They protested at the SFO refusing requests during its investigation to hand over the applications that it made to the courts to obtain search warrants, citing statutory secrecy powers.
When the Serious Fraud Office has you in its sights, it has some of the most extensive powers in the land to force documents, files, computers, devices, call histories, and passwords from those it hits with a Section 9 order. It has similar search and production levers to the likes of the Inland Revenue Department and Security Intelligence Service, but seems to exceed even them on some secrecy aspects.
Taylor told the High Court the orders are statutory demands, often a single page but with broad demands.
On at least two occasions Lee Taylor opted to go around the lawyers and tried to contact the people direct, once calling in person at a woman’s home when her husband, who had been interviewed previously, was overseas.
“You issued a bunch?” a Crown lawyer asked him. “Yes.”
Recipients of these Section 9 notices also can’t, by law, tell anyone else they’ve been served and must hand over whatever is demanded.
This investigation into donations to Labour and National saw 170 Section 9 notices issued.
In court, it emerged the Ministry of Business, Innovation and Employment received one. Telecommunications companies, a courier business, banks, airlines, internet domain hosting companies, the Immigration Service were all served with the investigators’ demands.
Curiously, the office even issued a Section 9 notice against the Stuff media business demanding it hand over what turned out to be a generally issued press release from a public relations firm on behalf of Yikun Zhang. Stuff, under the law, couldn’t tell anyone, let alone publish the fact, that it had been compelled to produce a press release the SFO should have been able to find under its own steam.
All up, millions of documents or items of data were obtained and in the end, 60,000 pages of documentation was turned over to defence lawyers under the court discovery process.
Some of those pages were Immigration Service records tracing the movements into and out of the country of not only the defendants but also their known family members.
Many were logs of message conversations, in text and audiotapes which had been transcribed and listened to, from the Chinese messaging app WeChat. There were bank statements, phone bills, international money transfer records and property contracts.
Taylor confirmed follow up search warrants were also deployed at the National Party, defendants’ homes and at Labour’s offices across September and October 2020.
He and his offsiders conducted around 30 interviews of National figures and 25 with those from Labour.
The blunt instrument of the Serious Fraud Office Act meant that, for example, when National’s general manager Greg Hamilton, received the demand for its donations records for 2017, he could not under law even tell the members of his own party’s board. Just his lawyer.
Cabinet ministers faced the same demand – the court heard Michael Wood and Andrew Little gave written Section 9 interviews, a list of questions which they had to answer or face the consequences. One to the Labour Party was 12 pages long. From the timings given in court when these Section 9 interviews were raised, they appear to have fallen just before the 2020 election.
So secret is the process that, for all the public knows, the Prime Minister Jacinda Ardern, who was at one of the fundraising events targeted by the Serious Fraud Office, might have had to turn over her devices, data and submit for a written interview. In her case it could have fallen in the period that she oversaw the Covid pandemic response, as well as campaigned for re-election.
Or perhaps the Commissioner of Police, or the Attorney General, or any other senior person deemed to potentially hold relevant information, might have been put through this compulsory process.
If they had been, they can’t say, and because any possible SFO demands on them were not raised in evidence in court, the public might never know.
While some of those sought for interview engaged lawyers, on at least two occasions Lee Taylor opted to go around the lawyers and tried to contact the people direct, once calling in person at a woman’s home when her husband, who had been interviewed previously, was overseas. Taylor was left in little doubt in the courtroom of the profession’s distaste for such a breach of accepted etiquette.
“If this was a game of monopoly, the Crown just wouldn’t get past go. The Labour charges would fail.”
– Defence lawyer Sam Lowery
Lawyers’ letters to the SFO on behalf of those being Section Nined or sought for interview elicited little response, still less action. The court heard lawyers’ requests in writing for explanations or more detail or offers to supply more information if requested were at times ignored entirely, or responded to too late and with minimal engagement by the SFO.
One defendant, whose name is suppressed, had both a former SFO director and now barrister Simon McArley, and the former Solicitor General Mike Heron, write strongly worded letters to the agency about its investigative approach and tactics. Both were used in evidence or cross examination during the trial. Heron went further, after an unsatisfactory reply, raising a complaint to the Public Service Commissioner Peter Hughes over the “performance and integrity” of then director Julie Read.
In court, Sam Lowery, a lawyer for one of the defendants connected with the Labour donation, who had name suppression, revealed the SFO had demanded the man’s phone and laptop despite the fact he had previously acted in support of another defendant as interpreter on National Party-related interviews by the office.
The other defendant’s lawyer “hit the roof, didn’t he?’ Lowery asked the SFO’s Taylor. “Nevertheless the SFO cloned all [his] devices and there was some correspondence about how those devices could be searched in a way that did not impugn [the other candidate’s] privilege.”
Taylor: “Yes, that’s right.”
The name-suppressed man found himself dealing with an SFO document which specified National donations when he was being investigated over a Labour matter.
Another defence lawyer Marc Corlett KC grilled Taylor about what Corlett alleged were deliberate, careless or incompetent errors in Taylor’s affidavit to a judge seeking a search warrant against Corlett’s client.
Corlett contended the SFO had not known the difference between a MacBook Pro and a MacBook Air, and did not realise a data back-up of an iPhone by the man’s employer was the reason another device (the employer’s, not the defendant’s) showed up in metadata records.
The lawyer highlighted instances when, later, Taylor failed to ask his client about SFO suspicions, key events or meetings, including its belief that the man had failed to provide the agency with one device.
“I’m inclined to say I do not remember asking that particular question,” Taylor offered.
He thought the totality of the affidavit met the need for care and candour, “but in relation to these parts you’ve been through are incorrect and I agree more care could have been taken in respect of those paragraphs.”
As the lawyers questioned Taylor, the shoe was on the other foot from when he had pressed Zheng and Zheng and others in his interview room under the Section 9 authority. Lawyers who had had to sit across the table from him as he grilled their clients were able to put his conduct and sworn statements to the test.
Many defence lawyers – apart from Ron Mansfield KC, for former National MP Jami-Lee Ross, who pointed out he was not criticising the SFO’s behaviour in the case – did not hold back when they had their opportunity.
Corlett had openly suggested the SFO went after Labour Party-connected defendants because that party in government had been considering the very future of the SFO itself. He claimed in closing the SFO wanted to find a Labour element to balance its National prosecution, had a theory not based in facts but on speculation of a conspiracy and worked backwards to make that theory into a case.
Mansfield and Blair Keown, a lawyer for Yikun Zhang, both said the SFO’s intercepted communications failed to identify their clients as being involved in a fraudulent scheme. The communications mentioned others but, Mansfield said, ‘There was no evidence of any statements between co-conspirators suggesting involvement of Mr Ross’.”
Keown pointed to the SFO relying heavily on ‘fund flow diagrams’ drawn up by its forensic accountant Blair Bulloch, which purported to show where the money for the donations to Labour and National originated. Defence lawyers had attempted through the trial to demonstrate that just because money was transferred between people in China then sent from China to New Zealand by a funds transfer firm, that did not mean anyone was trying to act deceptively.
“The SFO fund flow diagrams were simply taken at face value, [language] translations were assumed to be accurate.”
When the SFO had, during pre-trial hearings, succeeded in having communications introduced as evidence that did not involve certain defendants, but it alleged were signs of a conspiracy, “judgment as to the basic unreality of the SFO case was suspended.” The Crown had then applied a “gloss” to the SFO case which had, in the trial, had its “inconsistencies illuminated, ignored avenues of investigation identified.”
In three years of investigation and with millions of documents, Keown said, the SFO found “not one single communication where Yikun Zhang discusses any donation.”
“Any time Colin Zheng failed to remember correctly, or got confused, the SFO said ‘No,’ you’re a liar’. It turned into a memory test.”
– Paul Dacre KC
He claimed the Crown’s case, when it ended the trial, was no longer as reliant on the SFO forensic accounting information. “The fact that it’s not relied on so heavily indicates it no longer does the work the Crown needs it to do.”
Lowery highlighted that Taylor in court had conceded that while in an affidavit he had told a judge more work needed to be done in valuation of two paintings from the Labour Party donation fundraiser, officers had later decided not to do that.
By not giving the High Court a proper value for those two paintings, the whole foundation of the case over the Labour donation was thrown into doubt. If the values assumed weren’t right, the level of donations was not to be relied on and it was possible no qualifying donation had been made at all.
“The SFO was alive to this issue early. It made a conscious decision not to obtain valuations. That omission was particularly concerning given information obtained from [a name suppressed defendant and his wife] that the value may well be well north” of the $17,000 used by the SFO.
“If this was a game of monopoly, the Crown just wouldn’t get past go. The Labour charges would fail.”
The defence bench criticisms were more deep-seated than the standard legal attempts to undo a prosecution case.
They went to the SFO’s motive, tactics, failures to pursue lines of inquiry that didn’t fit with its theory, relying on a tame translator, providing wrong information to a judge in application for a search warrant, ignoring or disregarding communications from suspects’ counsel, overusing the Section 9 ‘forthwith’ production notices and conversely under-using the agency’s ability to re-interview people under S9 to test new information shaping the SFO theory.
Lowery told Justice Gault: “The SFO has come in for criticism from some of us. No one in this room would dispute the importance of respecting the integrity of the electoral system or the appropriateness for the SFO to dedicate resources, or fault the SFO for taking this case.
“But it is important that at the end, decisions are made on where the evidence leads. It is tempting to say ‘We’ve committed a lot of resources to this, let’s just barrel ahead with charges and if the prosecution fails at trial it might just spark debate about changes to the law, as we’ve seen with the New Zealand First case.
“Criminal proceedings are not a game, not monopoly. The Crown has levelled some very serious allegations against these defendants… [but] the Crown has been big on allegations, short on facts.”
Paul Dacre KC faulted the SFO for not consulting or looking at the evidence through a “different prism or telescope”, a cultural point of view that might have helped it understand relationships and guanxi in the Chinese community. “It is the key to understanding the relationships and what may be formally required and expected at arms’ length.”
Dacre took the court back to that interview process at the SFO. “It is quite a different type of interview, compared with the interview the police conducted with Jami-Lee Ross sitting on the couch. It was a very formal, monitored interview.
The SFO could well succeed in winning convictions against anywhere between one and all seven of the National and Labour defendants … But it may not be judged in the broader corridors of state by its conviction rate but the appropriateness of its methods and use of its powers.
“Any time Colin Zheng failed to remember correctly, or got confused, the SFO said ‘No,’ you’re a liar’. It turned into a memory test,” said Dacre, who sat through the interview, shown on screen in the court.
Rosemary Thomson, for Zheng’s brother, Joe, the one charged with lying during his two Section 9 interviews, said her client cooperated fully, answered everything and tipped the SFO to existence of a contract for a house building project for Yikun Zhang’s sister Shaona that the agency had not been aware of.
The SFO later alleged the contract was made up to cover the arrival of $108,000 in Joe Zheng’s bank account, used for a donation to National.
But Thomson said the reality proved different. Despite that house contract being the basis for charging her man with lying, the SFO had never checked, before trial, if that house had been built.
It was, and stands now at 18 Ahumoana Ave, in Weiti Bay.
Justice Gault’s decision on the Labour and National donations charges against Zheng, Zheng, Zhang, Ross and the three people with name suppression is expected within weeks.
But the SFO’s prosecution earlier in 2022 over donations taken in for the New Zealand First Foundation by two people with name suppression failed in the High Court, and it is taking it to the Court of Appeal. Meanwhile Parliament is amending part of the Electoral Act to change the definition of ‘party’ donations as a direct result of that case.
Tellingly, the SFO never interviewed or sought evidence from NZ First party leader Winston Peters, despite calling a long list of officials and MPs. Defence lawyers in that case suggested he wasn’t interviewed because his evidence might have been inconvenient to the prosecution – that he might have been aware of the foundation set-up and been content for it to have played out as it had.
Peters, of course, had famously accused the SFO of meddling in the election in 2020 by having announced arrests in the NZF Foundation case not far out from polling day. To this day he suspects the SFO’s public intervention cost his party votes and a return to Parliament by crossing the 5 percent MMP threshold.
Beyond the NZ First appeal and the National and Labour judgment, however, institutional concerns over the SFO are yet to play out.
The SFO could well succeed in winning convictions against anywhere between one and all seven of the National and Labour defendants when Justice Gault brings down his verdicts.
But it may not be judged in the broader corridors of state by its conviction rate but the appropriateness of its methods and use of its powers. The ends may not be considered to have justified the means.
Former Solicitor General Mike Heron’s complaint to Read, the SFO director, in October 2020 labelled the agency’s conduct of the investigation “unnecessary and excessive”, and “overbearing and threatening” – including an attempt during one search warrant execution at a defendant’s home to enter the bedroom of an elderly mother to seize her devices, and the removal of children and spouses’ school and work computers.
He told Read his clients felt “the SFO’s actions can only be viewed by them as motivated by other considerations and calculated to inflict the maximum degree of distress.” In a reply shown to the court, the SFO’s legal counsel dismissed the complaint and rejected that quote, in particular.
Heron’s subsequent complaint to the Public Service Commissioner Peter Hughes was judged at the time to be inappropriate for any action while the SFO investigation was underway. But Hughes did leave it open for Heron, on behalf of one of the defendants, to make further representations once the matter had been resolved.
The strong complaints from a former Solicitor General and from McArley, the former SFO director, will likely carry weight with decision-makers beyond the courts. At least for reconsideration of the extent of SFO accountability, and its powers and their (mis)use.
Heron’s complaint to Hughes spoke of the SFO “promoting its strategic interests” in its decision to pursue the donation to Labour, and in the manner of its targeting – as witnesses or suspects – senior people associated with the governing party.
On Read, Heron told Hughes: “The protection conferred on her by s 20 of the Act [exempting her inquiries from judicial review] effectively prevents any other scrutiny of the Director’s actions.
“Your intervention is, accordingly, the only means by which the propriety of the Director’s actions can be tested and the Director, if necessary, be held to account.”
His request of Hughes was far-reaching – that he “commission the appointment of an external independent counsel to receive formal submissions and review and report on the Director’s actions in the commencement of the investigation, the conduct and continuation of the investigation in respect of my client, and her decision to exercise the statutory powers exercised.”
Too much power
The politically sensitive move in 2020 to demand interviews and information from senior cabinet members in election year would have been a big call for then SFO director Julie Read, whose agency reports to the Attorney General but by law cannot be influenced by that minister in its investigations.
Read served out the remainder of her term, departing early in 2022 and returning to Australia. She was replaced in April by former Financial Markets Authority general counsel Karen Chang.
Politicians cannot be seen to be reacting directly to investigations into their own party donations. The fact that cabinet ministers and the two major parties’ officials have been made to hand over their communications and answer questions could be seen to be a good thing – that no one is above the law.
But the broader picture painted through these prosecutions, and aired in extensive detail in the court, could be seen as one of an investigative agency with too few checks or balances, opening itself to questions over its integrity and standards.
If the complaint to the Public Service Commissioner is reignited, or legal and academic experts seek a review it could well be that MPs have the courage to refer the SFO’s powers to, say, the independent Law Commission for review, with a view to changes.
Four years after Jami-Lee Ross blew his whistle on what he called corrupt practices under the Electoral Act – leading first to the National, then Labour, and simultaneously but discretely the New Zealand First investigations – the agency that chose to push hard on the political, rather than its standard fare of financial, crimes could yet find itself under lasting scrutiny.
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