Defence lawyers attack the actions of the Serious Fraud Office in its political donations inquiry, questioning the overuse of compulsory interviews, and what investigators told judges to obtain warrants to raid people's homes
Convinced by a photo that one of the suspects in the political donations inquiry had withheld a particular laptop with pertinent information on it, the Serious Fraud Office raided the man's home under search warrant, only to find that it was a child's MacBook for school work.
The early morning call at the home of one of the defendants in the High Court trial of seven people charged over donations to Labour and National came months after the SFO had already compelled the man to hand over all his electronic devices containing relevant information, and made him front for a compulsory interview in which he lost the right to silence or to avoid self-incrimination.
The man is one of three defendants with name suppression.
Between the compulsory interview and the executing of the search warrant, the man's then-solicitor had written to the SFO providing information and offering, twice, to answer any further questions, the court was told on Monday.
The lawyer's letter said the man felt the SFO had been undertaking a "political prosecution" and that it had the potential to inflame political and ethnic tensions.
In court, the man's current counsel, Marc Corlett QC opened his cross examination of the SFO's lead investigator Lee Taylor by asking if his sworn affidavit had intentionally misled a judge to obtain a warrant to search his client's home.
"No," Taylor replied.
"[So] if it turns out to be misleading, that would not be because you were intending to mislead the court? Corlett continued: "It would be more explicable on the basis of a lack of care, or incompetence?"
Taylor said he would have to look at what Corlett suggested could be misleading.
Corlett questioned him over his sworn affidavit in support of the application for a search warrant at the defendant's house.
"When swearing an affidavit you should do so with care and candour."
"Yes," Taylor agreed.
"Care is in being accurate. Candour is being fulsome in what you disclose and what you should not hide from a judge considering a warrant application."
Taylor: "That's right."
Corlett suggested it was even more important to provide a full picture to a judge when it was an ex parte application - in which the target person did not get the opportunity to respond or argue their case to the judge.
"You shouldn't just, in your affidavit, put the Serious Fraud Office's spin on things."
Asking Taylor if he stood by an earlier statement to another defence lawyer that he would not mislead the court, Corlett said: "Let's see how you get on with that."
His questioning focused on the affidavit's allegations that the SFO had four grounds to believe the man had not provided it with all electronic devices containing information relevant to their inquiry when he was legally compelled to do so in July 2020.
Corlett said that demand did not mean the target person had to provide devices that had nothing of relevance to the inquiry on them. "There's no requirement to provide irrelevant information to the Serious Fraud Office, is there?"
"No."
The lawyer examined Taylor's allegation on oath that the man had committed a serious criminal offence by failing to comply with the SFO's 'Section 9' order to hand over all relevant devices.
Six weeks beforehand, Taylor had interviewed the defendant at the SFO offices. "You never suggested to him that he had failed to provide any device, did you?"
Taylor: "I don't recall. I would have to review the transcript." Pressed, he said: "I'm inclined to say I do not remember asking that particular question."
Corlett: "You did not ask him during that interview whether he used a MacBook Air?"
Taylor agreed that question would not have been asked.
However the MacBook Air laptop later formed part of the SFO's reason for seeking a search warrant. It had found a photo on one of the man's devices which showed him on the screen of a MacBook Air laptop. The SFO believed it was a device that he used but had not supplied the agency.
The photo that provoked the SFO suspicions was of the man participating in a Zoom conference call, with his image on screen and the MacBook Air branding and keyboard showing in the image.
Corlett said there was nothing to suggest his client was actually using the device on which his face appeared, or that he had somehow kept his hands out of the way and taken the photo of himself.
"No," the investigator conceded.
When the SFO searched the defendant's home, they found a MacBook Air but it was one used by the man's children, including for school work. It was seized and examined, with the man's solicitor appealing for its return as the child could not get on with schooling.
Taylor could not recall what had been seized but when shown an SFO 'exhibit receipt' for a MacBook Air, said: "I"m inclined to say no information that was relevant was found on the MacBook Air but that is just from me sitting here trying to recall where documents were located at various devices."
Corlett said another of the other grounds used to convince the judge that his client had broken the law and withheld devices was a claim that WeChat messages between the man and three other defendants had been deleted after he had received the demand to hand over all devices.
But there was no evidence of conversations involving those four defendants having been deleted. One, between the man and another defendant, had been deleted but that message had been about their two addresses being served the Section 9 notices almost simultaneously.
"When the Section 9 notice was executed [client] voluntarily disclosed to you that he had been communicated with at that time by [the other defendant]..."
Taylor: "I don't recall that."
Corlett said his client had offered via his lawyer to provide any more information at any time, with the lawyer signing off to the SFO that "I look forward to hearing from you" - but the SFO never went back to the lawyer or the man to clear up its concerns.
He confirmed with Taylor that the investigator had not shown his client the photo showing the MacBook Air, nor had he asked the man if he had checked his desktop computer to see if there were any additional relevant documents on the device.
"But you still accused him of serious criminal offending?"
"Yes."
Lawyer Sam Lowery, for another defendant with name suppression, focused on the Serious Fraud Office's failure to obtain an independent valuation of artworks that are at the centre of the donation in March 2017 of a net $35,000 to the Labour Party.
The SFO knew, from a public statement by one of the named defendants Yikun Zhang, that the paintings concerned were all on display at his Remuera home. But, Lowery said, it made no effort to follow up on its own claim that further inquiries should be undertaken into the values ascribed to the artworks.
"All were available for valuation if the SFO had chosen to do so," Lowery said.
When told by Taylor that an art gallery dealer in Ohope - who had sold a group of paintings to one of the defendants to use in the Labour fundraising auction - had been asked about values of two further paintings, Lowery suggested the SFO had sent her pictures of two unrelated images, from an auction previously arranged by Labour MP Carmel Sepuloni.
Taylor said: "There was a period of time when there was some mystery about which paintings were which."
Lowery said the SFO's reluctance to get to the bottom of the valuations of the two paintings was because if the value was higher than it had listed, that could change the calculation on how much had actually been a 'donation' to Labour - "which could cause the whole prosecution to collapse."
"The Serious Fraud Office never obtained a valuation did it? It could have issued a Section 9 notice to Yikun Zhang to obtain the paintings for valuation purposes".
Lowery also asked Taylor about Crown evidence of WeChat threads involving three named people, his client plus Zhang and another defendant Colin Zheng. The threads, including thousands of audio recordings, showed that his client did not respond or did not participate in any discussion about paintings or donations to Labour.
"There's no suggestion that the thread had been set up to discuss Labour or National donations, is there?"
Taylor: "No."
Zhang, Zheng and his twin brother Joe Zheng, former MP Jami-Lee Ross and the three defendants with name suppression have all pleaded not guilty to charges of obtaining by deception. The trial, before Justice Ian Gault, is in its fifth week. Taylor is the last Crown witness.
