Charges were laid against two people last week by the Serious Fraud Office after an investigation into the New Zealand First Foundation. So why did we only find out about it at 5pm on Tuesday? Sam Hurley explores what was suppressed and secret.
NZ First's attempts to prevent news of two people being charged by the Serious Fraud Office (SFO) included hastily arranged hearings, including one at 4.50pm, "surprisingly broad" suppression orders, and even confusion between judges.
One of those charged also desperately wanted to avoid publicity and was granted secrecy by the District Court despite the absence of an SFO lawyer.
Back in February, the Electoral Commission said it believed the New Zealand First Foundation had received donations that should have been treated as party donations.
It referred the matter to police to investigate.
The police then referred it on February 11 to the SFO and a week later a formal investigation was launched.
Months went by and the election came closer into view, while rumours and rumblings grew louder in political, legal and media circles.
Then last week, criminal charges were laid. But nobody knew.
Wednesday, September 23
At 10.25am an SFO investigator advised NZ First's solicitors that the government department would make a press release "mid-afternoon" announcing charges had been laid earlier in the day at the North Shore District Court.
The investigator also told NZ First no charges would be laid against any sitting Members of Parliament or party staffers.
At 11.09am, NZ First's lawyers at Cook Morris Quinn requested a copy of the intended press release.
Then things ramped up at the law firm on Shortland St.
At 11.42am Cook Morris Quinn advised the SFO that NZ First wanted to urgently apply to the High Court for an injunction prohibiting its director Julie Read from making the statement.
NZ First's lawyers, including well-known barrister Fletcher Pilditch, also invited the SFO to make a written undertaking that the press release would not be distributed until a hearing could be held. The SFO did not reply.
At 1.37pm, NZ First's application to keep things under wraps arrived on the desk of a High Court judge. Justice Matthew Palmer, the son of former prime minister Geoffrey Palmer, was the duty judge that day.
Pilditch wanted orders stopping the SFO from issuing the press release not only until after the General Election on October 17 but until after a government was formed.
He also wanted the entire proceeding and all matters relating to it suppressed and kept confidential until then.
At 1.53pm, Justice Palmer directed the application be served on the SFO.
A hearing was then hastily arranged for him to hear arguments from Pilditch and the SFO's lawyer John Dixon QC. The hearing lasted nearly two hours from 3.45pm until about 5.30pm.
Pilditch argued publicity from the SFO's statement so close to an election could influence voters' decisions and the news was likely to affect the outcome of the election.
He said the public may also incorrectly believe charges had been laid against sitting MPs or their staff, and the public was unlikely to distinguish between NZ First and the NZ First Foundation.
Pilditch further argued the SFO's investigation has been a rush, and may have come after it a commitment to the media that it would have a decision on charges before the election.
Dixon opposed any interim orders being granted.
He said the SFO may be damned if it does make an announcement and damned if it doesn't.
Dixon also argued there was a public interest in open justice, in seeing the outcomes of investigations by the SFO and what charges are laid, especially where it concerns donations to a political party.
He said suppression for a month or longer would disregard the damage to the public interest and voters not being more informed by knowing charges have been filed but not against candidates.
The publicity may even be helpful to NZ First in that respect, he argued.
Dixon further highlighted that if suppressed, the information could also be kept from other political parties which may or may not want to form a government with NZ First - if in a position to do so.
Thursday, September 24
At 11am, Justice Palmer delivered his judgment.
"I do not consider NZ First's case is particularly strong, on the basis of the evidence and information before me," he said.
"There may be a sustainable argument that the SFO, as part of the politically neutral public service, must not be influenced by political considerations in its decisions, especially regarding criminal law enforcement. But there is no evidence before me that the director's decision was influenced by political considerations."
However, he did accept there was a risk of public confusion from the announcement.
"The media articles before me indicate there is significant interest by the media and public commentators in the potential for criminal charges brought by the SFO in relation to the Foundation to impact negatively on NZ First's electoral prospects. There is a risk of that.
"Against that is the possibility that a public statement by the SFO that it is not charging any Ministers, sitting MPs, candidates or their staff may assist NZ First's electoral prospects. But there is little time in which to get that message through and, no doubt, explaining is often losing in politics."
Justice Palmer ultimately considered there was significant public interest in the voting public being informed during an election campaign about the criminal charges.
He said the interim orders sought "would conceal a politically relevant fact from the public during an election campaign" and also potential coalition partners.
This was reinforced, he added, by the New Zealand Bill of Rights Act.
"I do not consider the proposed interim orders are a reasonable limit on the freedom of the New Zealand public to receive information that can be demonstrably justified in a free and democratic society.
"Ultimately, I consider the public interest in transparency outweighs the inconvenience of the announcement to NZ First. I do not consider the Court is justified in inhibiting the value of that transparency for the New Zealand public.
"It will be up to the political system including the media, rather than the judicial system, to ensure the transparency of the announcement is not obscured by confusion and misinformation."
However, Pilditch indicated that if the decision went against NZ First he would need
time to consider the decision and get instructions from his clients, including about whether to continue to seek suppression and appeal.
He requested the existence of the application be suppressed for a few days.
"I accept suppression of the application and this judgment for a brief period is warranted in order to allow NZ First to consider the judgment and its position," Justice Palmer ruled.
"But the urgency and significance of the issues, the conclusion I have reached, and the interests of NZ First and the public in allowing as much time as possible for clarification of the situation before the election, suggest a slightly faster timetable than counsel proposed."
Justice Palmer suppressed his judgment, the application and all matters relating to it until 5pm last Friday.
Friday, September 25
As Friday dawned and the 5pm deadline approached, a separate proceeding began.
One of those charged by the SFO, identified in court documents as defendant X, also asked the High Court to prohibit the SFO from issuing the statement until after their first appearance on October 29.
And they also wanted to keep secret their application until the District Court had determined an application for suppression of their identity.
A hearing was set for 11.45am in the High Court with lawyers for X and the SFO to appear.
But at 9.53am, X suddenly withdrew their application after Judge Simon Maude indicated he was going to deal with it that day in the North Shore District Court.
Despite this, the SFO was left in the dark and not advised of the developments.
Judge Maude was also seemingly unaware of Justice Palmer's judgment - creating even more confusion.
Regardless, Judge Maude granted X interim suppression.
The wording of his order, however, was also somewhat unusual.
It prohibited "publication of X's name, any details identifying X and publication of any image of X on any television or social media site run by anybody and publication of any picture or still or moving image of X associated with [two entities]."
Eventually the SFO found out about X's suppression order and appealed.
An urgent hearing was heard in the High Court that day in front of Justice Simon Moore.
He allowed the appeal and replaced the District Court's suppression order with an order of his own suppressing the name, address and occupation of both defendants until their first appearance.
But more confusion arose when X indicated a potential appeal of Justice Moore's decision, wanting Judge Maude's orders to remain in place until another hearing could be held.
Meanwhile, at 3.21pm, NZ First was launching a potential appeal of its own.
It asked for leave to appeal Justice Palmer's ruling from the previous day to the Court of Appeal. NZ First also wanted the suppression orders - due to expire in a less than two hours - to be extended.
At 4.50pm, just 10 minutes before news was due to break, a hearing was convened.
Pilditch was concerned at the haste of the hearing and wanted it pushed into the following week.
Despite his objections, the hearing went ahead and he argued that the timing of the notice by the SFO to NZ First of the intention to make a public statement was "an indication of arbitrariness and unreasonableness".
Pilditch also now said there was a risk the SFO statement would identify X, while information about the charges was capable of fuelling gossip and misinformation.
Pilditch also advised that if Justice Palmer was to decline leave he would seek leave to appeal to the Court of Appeal.
Dixon argued there was public interest in people knowing the SFO has completed its investigation and that certain categories of people are not being charged, which provides the voting public with important information.
"I consider there is a significant public interest in information proposed to be made public, being made public. But, given that NZ First is appealing the decision, if I do not maintain the suppression order, I would effectively determine NZ First's appeal against it," Justice Palmer said in his second judgment.
"Reluctantly, for that reason, in order to preserve that right of appeal, I consider I am required to extend the interim suppression order I made."
But Justice Palmer said he would only do so for the "shortest time I consider reasonable".
He gave NZ First until 5pm on Tuesday, September 29, to appeal or the SFO's statement would be released.
"The SFO's proposed statement does not identify X, X's gender, or whether or not X was part of the foundation or a donor. It does identify that the charges are the result of an investigation and it identifies categories of people who are not charged," Justice Palmer said.
"There is likely to be speculation about X's identity once the laying of charges is made public, but I do not consider the SFO's proposed announcement identifies X or the other defendant. It does not even transgress the surprisingly broad interim order made by the District Court or the narrower order foreshadowed by [Justice Moore]."
Tuesday, September 29
During the day NZ First leader Winston Peters informs media he will hold an important press conference at 5pm.
Immediately journalists believe it has something to do with the SFO's investigation.
Soon after, at about 3.12pm, the SFO announces it will release a statement at the same time and confirms it is about its NZ First Foundation investigation.
Just after 5pm the SFO's statement announces it has laid a charge of obtaining by deception against two people. It also notes that "neither defendant is a Minister, sitting MP, or candidate in the upcoming election (or a member of their staff), or a current member of the New Zealand First party".
Meanwhile, at the press conference, Peters declares himself and his party have been "exonerated" but is highly critical of the SFO.
He tells reporters NZ First will seek a judicial review of the SFO's actions, alleging it abused its statutory powers.
He said the timing of the decision to lay charges against two people was "an appalling intrusion" and a "James Comey level error of judgment".
"The SFO cannot justify the timing of its decision," he said.
Finally, after 6pm, the High Court publicly releases Justice Palmer's two decisions, revealing much of the detail from the past week's hidden events.
