The commissioner applied to the same court for civil forfeiture orders under the Criminal Proceeds (Recovery) Act 2009 of funds of more than $10 million, alleging it was connected to the money laundering activities.
The forfeiture application is scheduled to be heard in May.
Meanwhile, Rae has made an application to the Court of Appeal for leave to appeal a High Court decision declining his application for a non-party discovery order against the United States Government.
Yesterday, the Court of Appeal released its decision, which detailed the grounds on which he proposed to defend the commissioner’s forfeiture application, including that he was not guilty of the money laundering and was unaware of the underlying criminality of the schemes.
Rae sought the non-party discovery order to support this defence, appealing to have his testimony, documents and other evidence that had been provided to the grand jury in the United States, as well as documents relating to its prosecution decisions and investigations, released.
When Rae previously applied to the High Court, it found the documents sought were not “material and necessary” and therefore did not meet the test for non-party discovery.
Rae had also claimed the commissioner had acted in bad faith, but the High Court found there was nothing to indicate that and labelled the claim a “fishing expedition”.
The High Court noted that even if it was wrong on whether the documents were material or necessary, it would have used discretion to decline the application for discovery.
Putting aside the jurisdictional issues, granting the application would “require the Court to embark on a relitigation of the United States proceedings and the decisions made by authorities in the context of criminal proceedings”, the High Court ruled when dismissing the earlier application.
In applying to the Court of Appeal for leave to challenge that decision, Rae proposed five grounds of appeal, including that the High Court failed to consider the relevance and necessity of the documents and disregarded the fact that the forfeiture application was based on an international investigation, making foreign discovery necessary.
“Mr Rae submits that these errors constitute arguable questions of law and that the proposed appeal has a reasonable prospect of success,” the decision stated.
But the Court of Appeal disagreed, finding the proposed grounds “did not identify any error capable of bona fide or serious argument, let alone one of general or public importance”.
“Rather, the proposed appeal appears to largely be an attempt to relitigate the Judge’s factual evaluation,” it ruled, declining the application for leave to appeal.
“Even if, contrary to our view, one or more of the grounds of appeal was seriously arguable, we would decline leave as the circumstances do not justify further delay.”
The decision stated Rae had confirmed in 2021 that the forfeiture application was ready for hearing and no concerns were raised then regarding the adequacy of discovery.
As the forfeiture application is scheduled for hearing in two months, granting leave to appeal would result in that hearing having to be adjourned, it stated.
Al Williams is an Open Justice reporter for the New Zealand Herald, based in Christchurch. He has worked in daily and community titles in New Zealand and overseas for the last 16 years. Most recently he was editor of the HC Post, based in Whangamata. He was previously deputy editor of Cook Islands News.
