Burgess v Field - [2007] NZCA 547

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA557/07
[2007] NZCA 547
BETWEENPHILLIP HANS FIELD

Appellant

ANDMALCOLM JAMES BURGESS

Respondent

Hearing:15 November 2007

Court:William Young P, Chambers and Ellen France JJ
Counsel:S I Perese for Appellant

D B Collins QC Solicitor-General and E J Watt for Respondent

Judgment:29 November 2007 at 11 am

JUDGMENT OF THE COURT

The appeal is dismissed for want of jurisdiction.

REASONS
William Young P and Ellen France J  [1]
Chambers J  [46]
WILLIAM YOUNG P AND ELLEN FRANCE J
(Given by Ellen France J)
Introduction
[1]       Leave has been granted by the High Court to enable Mr Field to be prosecuted for alleged offences of bribery and corruption as a member of Parliament under s 103(1) of the Crimes Act 1961. Mr Field wants to appeal against the leave decision.
[2]       The issue before us is whether Mr Field can bring this appeal under s 66 of the Judicature Act 1908. The parties agree that turns on whether the appeal involves the exercise of this court’s civil jurisdiction. If it does, there is a right of appeal under s 66. But if the appeal involves the court’s criminal jurisdiction, it is agreed that there is no right of appeal.
Background
[3]       Detective Superintendent Burgess of the Christchurch police was appointed on 30 August 2006 to conduct an investigation into alleged offending by Mr Field. The appointment followed a completion of a report to the Prime Minister by Dr Noel Ingram QC in July 2006. That report in turn had followed allegations about Mr Field’s conduct which were made public in September 2005.
[4]       An application for leave to prosecute under s 103 of the Crimes Act with supporting affidavit evidence was filed by police in mid-June 2007. The application had annexed to it 15 draft informations alleging offences under s 103.
[5]       In a decision delivered on 6 July 2007, now reported as Burgess v Field [2007] 3 NZLR 832 (HC), Randerson J set out the criteria he considered should be applied to determine the application for leave to prosecute (“Judgment (No 1)”). Randerson J summarised those criteria as follows in his second judgment delivered on 5 October 2007 which determined the application for leave to prosecute (HC AK CIV 2007-404-3206):
[2]       In summary, I decided that, without fettering the broad judicial discretion under s 103(3) Crimes Act, the following guidelines should apply:
a)The applicant would need to satisfy the Court the prosecutions were being brought in good faith; that there was no improper or collateral purpose involved; and that no improper pressure had been brought to bear on the investigation of the alleged offences or on the decision to prosecute.
b)The Court would examine the strength and sufficiency of the evidence.
c)Consideration would be given to whether the public interest required a prosecution in the circumstances of the case.
d)The Court would take into account any other relevant matters.

[6] In the second…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burgess v Field

Details

AGLC: Burgess v Field [2007] NZCA 547
Case: [2007] NZCA 547
Decision Date: 29 November 2007

CaseChat Overview and Summary

Phillip Hans Field, the appellant, sought leave from the Court of Appeal to appeal against a decision by the High Court that granted leave to prosecute him for alleged offences under section 103(1) of the Crimes Act 1961 for bribery and corruption as a member of Parliament. The respondent, Malcolm James Burgess, opposed the appeal. The central issue before the Court of Appeal was whether the appeal involved the exercise of the court's civil jurisdiction, thereby permitting an appeal under section 66 of the Judicature Act 1908. The Court of Appeal determined that the leave decision was an integral step in the criminal process and thus involved the exercise of the court's criminal jurisdiction. Consequently, there was no right of appeal under section 66 of the Judicature Act, and the appeal was dismissed for want of jurisdiction.

The Court of Appeal considered the statutory provisions and previous case law, such as Mafart v Television New Zealand Ltd, to conclude that appeals were only permissible from the exercise of the court's civil jurisdiction. The Court found that the leave decision was inextricably linked to the criminal process and therefore constituted a criminal proceeding. The Court also noted that the appellant had other remedies available, such as challenging the interpretation of the elements of the offence during the criminal process. The Court further held that the leave requirement was not a matter of standing and that the nature of the jurisdiction being exercised in the leave decision should be considered in the context of the Crimes Act as a whole. The Court of Appeal was unanimous in its decision that the leave decision was the exercise of the court's criminal jurisdiction, and there was no right of appeal under section 66 of the Judicature Act. The appeal was dismissed for want of jurisdiction.

Orders