Justice summit puts Serious Fraud Office future up in air

Julie Read, director of the Serious Fraud Office. Photo / File

The future of the Serious Fraud Office is under the microscope, the Government has confirmed, after complaints alleging the office may be losing the confidence of the commercial sector.

Established in 1990, the small office - employing about 50 people with an annual budget of only $9.3 million - has the job of investigating and prosecuting serious or complex financial crime.

Weekend Herald interviews with senior commercial and legal figures canvassed concerns over a declining number of prosecutions launched by the office - and that many prosecutions targeted relatively small, sub-million-dollar offending - driven by what was claimed to be a conservative, risk-minimising approach under director Julie Read.

According to annual reports filed by the SFO over the past decade, in the five years before Read's appointment, the office launched an average of 15 new prosecutions every year. In the five years since, this has dropped 40 per cent to an average of nine.

"They're only interested in low-hanging fruit," said a senior prosecutor who did not want to be named as he acted for the SFO.

Stuart Nash, Minister responsible for the Serious Fraud Office, said he had been aware of similar complaints. "I was approached by someone, who will remain nameless, who was concerned about the performance of the SFO, and asked me to look at the stats on prosecutions."

Nash said he had discussed the matter with Read and was satisfied with her explanation that "cases are bubbling away, and the level of investigations taking place are about the same as they were before".

But the Minister did emphasise that the entire justice sector was under review, the SFO was part of this, and he did not dismiss the possibility that the office's functions could be folded into the police or Financial Markets Authority - as has been mooted in the past.

"Labour had a look at this last term, National had a look at it too," he said. "Nothing is off the table ... but whether it's on the table is still to be determined."

A possible closure of the office has alarmed the Opposition, with the National Party spokesman for the SFO, Chris Bishop, signalling that such a move would face a challenge in Parliament.

"The SFO does a good job and specialises in sophisticated and complex fraud. We're opposed to folding the office into police," he said.

The SFO has a set of unique powers - above those available to police- which sit uncomfortably with the Bill of Rights, including the ability to issue document production notices which are unable to be challenged in the courts, and demand interviews with subjects who are unable to claim a right to silence.

Bishop said extending these powers to police would be "inappropriate" and noted current discussions had parallels with the last time the SFO's future was under discussion in 2007. "This seems to arise whenever Labour and New Zealand First govern together and we oppose it," Bishop said.

These plans were put on hold after the then-Foreign Affairs Minister Winston Peters was investigated in 2008 over controversy surrounding his solicitation of donations from Sir Robert Jones and Sir Owen Glenn.

The SFO subsequently declined to prosecute Peters, and the stalled plans were abandoned by the National Party-led Government that swept to power in the subsequent general election

Australian lawyer Read has kept a relatively low profile since being appointed in 2013, and after her initial term of three years ended in 2016 was - unusually - given two shorter-term extensions, the first for two years and the latest only eight months. Her term is now scheduled to end in June next year.

Speaking in the lower Queen St offices of the Serious Fraud Office, overlooking the Commercial Bay construction site, she was unwilling to say if she would seek to continue in the role.

"That's not something I've decided yet," Read said.

She does, however, defend her tenure. "It's an extraordinarily good office, and I've seen quite a few in my time. We've got great skill and great dedication to the cases that we run. We've got really high success rates, which isn't always considered good, but I've never seen evidence of people thinking we walk away from things we should be looking at."

Her role as director has contrasted with predecessor Adam Feeley, whose aggressive pursuit of collapsed finance companies following the global financial crisis - with more than $1 billion of investors' losses prosecuted, and numerous long jail terms handed out to directors - attracted both glowing and scathing headlines.

Read defended her tenure - pointing to digitising the SFO's evidence and paperwork as a key achievement - and said she wasn't given instructions by Ministers to keep her head below the parapet, but saw her role as being above the fray.

"I wasn't really specifically given a brief about public profile, but I guess generally they like us to keep out of trouble. Which is not to suggest that anyone in particular was in trouble," she says.

"I think it's more appropriate for a prosecutor not to have a high profile. It's not for us to determine guilt or innocence, it's for us to determine what goes before the court."

The Weekend Herald investigation examined several recent cases - or rather, decisions by the Serious Fraud Office not to open cases.

Last month the SFO announced an investigation into the office of the Maori King, but this came a full year after the matter was first raised with the office in a complaint which was instead referred to the Charities Service. After investigating the matter for 12 months, the Charities Service passed the ball back to Read.

Read denies suggestions that this boomerang meant she'd dropped this ball. "There wasn't enough for us in the first instance. What Charities did assisted us enormously in making a decision about where to go," she said.

"We refer quite a few cases to other agencies - we got over 1000 complaints this year - and not many of them come back."

A similar pattern of a complaint being dismissed, only to later be found to require investigation, can also be seen in the Fuji Xerox saga.

In 2016, following a series of reports from Karyn Scherer in the National Business Review about dubious accounting in the multinational company's New Zealand office, the SFO made initial enquiries but declined to investigate.

The following year, an audit by the company's parent, conducted by Deloitte, found $355m in "inappropriate accounting", and the SFO was forced to look anew and open a formal investigation.

Again, Read defended her handling of the case. "I don't think we dropped the ball at all, I think we did that as effectively as we could," she said.

"Fuji Xerox brought out their CFO from Singapore who went through the books. His information was there was nothing obviously wrong with accounting treatments - which are very difficult to prove anyway, whether they're right or wrong - so as a consequence we closed the case at that point."

Another case, currently covered by suppression orders preventing the naming of parties, saw a complaint made to the SFO, which was dismissed as presenting insufficient grounds for prosecution. But later, a District Court judge was convinced that enough grounds existed for the complainant to advance a private prosecution.

Read said the SFO's handling of this case had been independently reviewed by two QCs, and noted the SFO had a more stringent mandate when laying charges than those bringing private prosecutions.

"We've got a whole lot of other things we have to take into account. It will be interesting to see what happens when this is heard, which I understand is next week," she said.

Read said the future of her office was a matter for politicians, but there were advantages in having an independent prosecutor for matters of serious concern.

"I think the independence is important. And I think it's particularly important in relation to corruption. The prosecution of corruption needs to be independent, because you can't be beholden to anyone."