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Serious Fraud Office v Smith [2019] NZDC 3068

Published 07 October 2021

Theft by a person in a special relationship — perjury — obstruction of Serious Fraud Office investigation — liquidator — Crimes Act 1961, ss 108, 109 & 220 — Serious Fraud Office Act 1990, s 45 — Michael Main v New Zealand Police [2019] NZSC 2. The defendant faced two charges of theft by a person in a special relationship, two of perjury and three of obstruction of a Serious Fraud Office ("SFO") investigation. It was alleged that in 2013-2014 the defendant cashed 81 cheques totalling $270,000 drawn from the bank accounts of two companies while he was appointed as a liquidator. He did not apply those funds to creditors of the companies as he was required to by law. It was alleged in 2015 the defendant committed perjury by making false assertions in two affidavits filed in civil proceedings in the High Court relating to the liquidation and receivership of the companies. Across 2017 and 2018 it was alleged the defendant obstructed the SFO's investigation by failing to comply with several notices under the SFO Act which required the defendant to provide information and documents and attend compulsory interviews. This hearing faced two issues: whether the Judge would allow for the issue of a summons for witnesses to appear and give evidence and whether there should be a stay of proceedings as the defendant had immunity from prosecution. It was decided there was no need to allow for witnesses to be summoned as the hearing was always supposed to be submissions only and the defendant agreed it would delay the proceedings for too long. In terms of whether the defendant had immunity, the Judge had traversed a 27 page handwritten document submitted by the defendant. Some of his submissions included that he could not face prosecution as he was not a "person", he was a Freeman and was not subject to any laws he had not consented to, that New Zealand had not been properly defined in legislation and that the SFO had kidnapped him and owed him $1,000,000 per day he was imprisoned. There was no legal basis for the defendant's arguments which were described as "nonsense". The application was dismissed and the defendant was to appear at a Judge Alone trial in June 2019. Judgment Date: 22 February 2019.