A third man charged by the Serious Fraud Office (SFO) after the collapse of a $747 million New Zealand insurance company has been denied continued name suppression.
But he will remain anonymous for at least another two weeks while he considers mounting another legal challenge.
The businessman, charged with a single count of obtaining by deception, asked the High Court last month to continue his name suppression ahead of a trial next year over allegations from the collapse of CBL in February 2018.
The firm’s former chief executive Peter Harris and ex-chief financial officer Carden Mulholland are also facing criminal charges, with a trial set for September.
At the hearing in Auckland, the third defendant’s lawyer, John Billington QC, argued publication would potentially be fatal to his client.
The defendant filed an affidavit – with several specialist medical reports – in support of his application and said the collapse of CBL, investigation by the SFO and Financial Markets Authority (FMA), and legal proceedings have all negatively contributed to his condition.
As a result of the increased stress, he said his blood pressure skyrocketed, suffered lung dysfunction, developed diabetes, was plagued by insomnia and had heart issues. This saw him admitted to hospital last year.
The man, who has never appeared in court before, said he was distraught at the prospect of his name being published and feared he would suffer a stroke and die.
But only one medical report expressly referred to the effect of publication on the man’s health, with the doctor stating in her opinion there was a significant risk of stroke. But she also said the defendant could cope with the stress of a criminal trial and better manage his blood pressure.
Auckland’s Crown Solicitor Brian Dickey opposed the man’s suppression and noted the significant public interest in the collapse of the former NZX-listed company, which had a market value of $747m when it went bust.
In his decision, released to the Herald, Justice Geoffrey Venning said he did not consider the likely increased stress from publication led to extreme hardship or danger to the man’s safety.
“Medical opinions may assume any risk is too much risk or urge suppression without addressing alternative ways in which the risk may be managed,” he said. “There are normally ways of managing risk.”
Justice Venning said there was no reason why, with the appropriate medical support, the man couldn’t cope with the temporary increase in stress caused by publication.
“Any publication is likely to be in the mainstream media and business papers. [The defendant] is not likely to be subjected to online social media attacks or bullying.”
In addition to his health concerns, the defendant said an “adjunct effect” to his name being published is on his business interests.
“I put that consideration to one side,” Justice Venning said. “That would not amount to hardship let alone extreme hardship. Even considered cumulatively it is so minor as to be inconsequential. As [the defendant] notes he has stepped back from day-to-day management of the companies.”
The judge said some of the factors in favour of publication included the public interest in CBL’s collapse and the number of potential members of the public affected by its failure.
However, despite dismissing the man’s bid for suppression, Justice Venning imposed a temporary publication prohibition until June 26 to allow him time to appeal against the decision.
The SFO, supported by the FMA, had sought immunity from prosecution for the man but it was declined by the Solicitor-General.
A group of civil cases are also running concurrently to the criminal prosecutions, including two class actions by CBL’s shareholders, FMA pecuniary penalty actions, and a liquidators’ action on behalf of unsecured creditors.
Both CBL Corporation and CBL Insurance were placed into liquidation by the High Court in 2018.
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