NZ First Foundation case: Media lose argument for voters' right to know who accused duo are before election

The two people charged by the Serious Fraud Office after an investigation into the New Zealand First Foundation will keep their names suppressed until after the election, a High Court judge has ruled.

The Herald and a collection of the country's news organisations argued constituents must know who the two criminally accused are before entering the ballot box on Saturday.

The High Court at Auckland today heard an urgent appeal by the media in an attempt to lift a suppression order for the accused duo, who were each charged by the SFO with obtaining by deception over allegations of improper political donations.

Neither are a minister, sitting MP, candidate in the upcoming election or a member of their staff, or a current member of the New Zealand First political party.

But neither have they been named after a series of hastily arranged court hearings and interim suppression orders were made, which were described by one High Court judge as "surprisingly broad".

The court hearings, which were held in the absence of journalists, also included NZ First's failed attempt to stop the public knowing of the charges until after a government is formed.

Media lawyer Robert Stewart, now representing Herald publisher NZME, Stuff, RNZ, TVNZ and MediaWorks, challenged the suppression order in the Waitakere District Court last week.

The media group's lawyer Robert Stewart argues the public have a right to know who the accused pair are before election day. Photo / Peter Meecham

He argued voters had a right to be fully informed before they step into the ballot box on October 17.

However, Judge Peter Winter decided to keep the gag order in place.

He said in his decision last Friday that publication of the accused may "unfairly unsettle those who already cast their vote as much as it informs those who have not".

"The publication of [one of the accused's name] at this particular time when there will be intense media focus on his name and connection with the general election will mean that [the person] may be unfairly vilified in the minds of potential jurors when [the person] eventually stands trial..."

The media then filed an appeal and Justice Pheroze Jagose heard further arguments this afternoon.

Stewart today said Judge Winter failed to take into account relevant considerations and was wrong to find the hardship threshold test had been met for one of the defendants.

He said the judge taking into account the "unsettling" of early voters as a factor was an irrelevant consideration.

"The public interest in knowing the identity of the defendant[s] is now, we say, three days out from an election," Stewart said.

"The public shouldn't have to speculate or guess, they should just be told."

Justice Pheroze Jagose heard the appeal today in the High Court at Auckland. Photo / Doug Sherring

Stewart added it was "very important" for those New Zealanders who are still yet to vote.

"There may be those waiting until the last minute to wait and see what information may or may not be placed into the public domain."

The accused believed the case to be a "politicised prosecution" and supported Judge Winter's reasons as to why there was an arguable case for continued suppression, the court heard.

Prosecutor John Dixon QC said the SFO would abide by the court's decision.

Justice Jagose found Judge Winter "was not wrong" and dismissed the media's appeal.

The group of media companies are considering whether to seek a second urgent appeal at the Court of Appeal before the end of the week.

Charging documents allege the pair deposited a total of $746,881 into two bank accounts, including one belonging to the New Zealand First Foundation, between September 30, 2015 and February 14 this year.

The documents claim the money was deposited with "intent to deceive the donors of the monies, the party secretary of the New Zealand First Party and/or the Electoral Commission".

"The defendants adopted a fraudulent device, trick or stratagem, whereby party donations for the party were paid into the bank accounts of [suppressed] and the New Zealand First Foundation and not notified to the party secretary, or declared by the party secretary to the Electoral Commission," the papers read.

"Those undeclared funds thereby became available to [suppressed]/New Zealand First Foundation to use as the defendants saw fit, and were used to pay expenses of the party and to develop a fundraising database for the benefit of the party and [suppressed]."

The accused duo are due to appear in the North Shore District Court to face the charges on October 29. Their names are also suppressed until this date.

After dozens of media reports last year, largely led by a Stuff and RNZ investigation, the Electoral Commission announced in February 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, which was then passed on to the SFO.

After the charges were laid, NZ First leader and Deputy Prime Minister Winston Peters claimed he and the party were "exonerated" and was highly critical of the SFO.

He told a press conference the timing of the decision to lay charges so close to the election was "an appalling intrusion".

"The SFO cannot justify the timing of its decision," he said.

Peters has distanced himself from the foundation - reported to have bankrolled the political party - and has denied any wrongdoing after it first came under scrutiny last November.