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 judgment, Randerson J granted leave to prosecute and in that context dealt with an argument as to the mental elements of the offence.  The Judge concluded at [47] that the Crown had to prove that Mr Field must have acted corruptly in the sense that he deliberately accepted a bribe knowing or believing that it was intended to influence or reward him in relation to assistance given, or to be given, by him in his capacity as a member of Parliament.  However, Randerson J decided, the Crown did not have to prove that Mr Field acted dishonestly as the appellant had contended.

[7]       Subsequently, in an oral judgment delivered on 17 October 2007, Randerson J concluded that a stay of the earlier decision should not be granted pending an appeal to this court.  A stay was declined on the basis that, even if Mr Field’s appeal as to the elements the Crown was required to prove under s 103(1) was successful, that was unlikely to alter the “ultimate decision as to whether leave should be granted” (at [21]).  That was because:

[21]     … [T]here is a substantial body of evidence which (if accepted) would fulfil those elements or, at least, that there is a proper basis for a jury to infer that those elements are properly proved if the evidence intended to be adduced by the Crown is accepted.

[8]       An interim stay was however ordered for the purpose of enabling Mr Field to apply to this Court for a stay pending appeal.  The parties have, in the meantime, made arrangements to enable the informations to be filed and the appellant summoned on a date after 26 November 2007 a time-frame that falls outside of the present sitting of Parliament.  We note that this has now happened.

[9]       The matter has come before us on the preliminary question of whether there is jurisdiction to appeal under s 66.

Relevant statutory provisions

[10]     Section 103 is in Part 6 of the Crimes Act and is one of a number of crimes affecting the administration of law and justice.  Definitions relevant to Part 6 are set out in s 99.

[11]     Section 103(1) creates an offence punishable by a maximum of seven years imprisonment for a member of Parliament to corruptly accept or obtain a bribe in respect of any act done or omitted in the member’s capacity as a member of Parliament.  Leave of a High Court Judge is required for a prosecution under s 103.  Section 103 reads as follows:

(1)Every member of Parliament is liable to imprisonment for a term not exceeding 7 years who corruptly accepts or obtains, or agrees or offers to accept or attempts to obtain, any bribe for himself or any other person in respect of any act done or omitted, or to be done or omitted, by him in his capacity as a member of Parliament.

(2)Every one is liable to imprisonment for a term not exceeding 7 years who corruptly gives or offers or agrees to give any bribe to any person with intent to influence any member of Parliament in respect of any act or omission by him in his capacity as a member of Parliament.

(3)No one shall be prosecuted for an offence against this section without the leave of a Judge of the High Court.  Notice of the intention to apply for such leave shall be given to the person whom it is intended to prosecute, and he shall have an opportunity of being heard against the application.

[12]     Section 102 creates a similar offence for Ministers of the Crown and members of the Executive Council.  It is an offence for those persons to corruptly accept or retain etc any bribe in respect of any act done or omitted by that person in his or her capacity as a Minister or member of the Executive Council.  As with the provision dealing with members of Parliament, there is a requirement for the leave of a Judge of the High Court to be obtained before there is a prosecution.

[13]     Sections 100, 101, 104, 105, 105C and 105D deal respectively with judicial corruption, bribery of a judicial officer, corruption and bribery of law enforcement officers, corruption and bribery of officials, bribery of a foreign public official and with bribery outside New Zealand of foreign public officials.  Sections 105A  and 105B deal with the corrupt use of official information and with the use or disclosure of personal information obtained through the corrupt use of official information.

[14]     No one shall be prosecuted for an offence against any of the latter provisions (ss 100, 101, 104, 105, 105A, 105B, 105C and 105D) without the leave of the Attorney-General “who before giving leave may make such inquiries as he thinks fit” (s 106(1)).  That formula is repeated, for example, in s 78B of the Crimes Act which requires the consent of the Attorney-General for prosecutions relating to espionage or wrongful communication, retention, or copying official information, and in s 20A of the Summary Offences Act 1981 dealing with unauthorised disclosure of official information.

[15]     Section 106(2) provides that no Judge who holds his or her office subject to a power of removal by Her Majesty on an address of the House of Representatives shall be prosecuted for any such offence except by the Attorney-General “in pursuance of a resolution of that House”. 

[16]     By contrast, under the Crimes Act 1908 there were three offences specifically relating to corruption affecting judicial office but none relating specifically to Ministers of the Crown or to members of Parliament.  The relevant sections were s 126 dealing with judicial corruption, s 127 which related to corruption by justices, constables or public officers employed in any capacity for the prosecution, detection or punishment of offenders, and s 128 dealing with persons engaging in corruption in relation to appointment of any person to any public office or employment.  Leave to prosecute was required only in relation to offences under ss 126 and 128 and the leave required was that of the Attorney-General under ss 361 and 362.  There was no provision for notice to be given to the prospective defendants as in ss 102 and 103.

[17]     Randerson J in Judgment (No 1) said that the requirement for leave of a High Court Judge:

[45]     …  [I]s a recognition that members of the Executive and Parliament are likely to be more susceptible to ill-founded, vexatious or politically motivated allegations of this kind than public officials or members of the judiciary.  I am also satisfied that the leave of a High Court Judge is required (rather than the Attorney-General), in order to avoid any suggestion of improper political involvement, or the appearance of such involvement, in the decision to prosecute.  That is the plain inference to be drawn from the statutory distinction made for ministers and Members of Parliament on the one hand and the members of judiciary and public officials on the other. 

[18]     We note in this respect the observations made by Zellick “Bribery of Members of Parliament and the Criminal Law” [1979] Public Law 31 at 54 emphasising the practical difficulties of subjecting members of Parliament to the law of bribery.  Zellick notes as follows:

Viscount Dihorne, a Lord of Appeal and former Lord Chancellor, while calling for a joint committee of both Houses to study the question, was opposed to such liability, because prosecutions would produce inevitable probing in the courts as to what had passed in Parliament.  But such probing, even if it were inevitable, is surely undesirable only in so far as it subverts the objective for which the immunity has been established.  … But is not the real practical difficulty that Members of Parliament may, as we have seen, legitimately receive payment from outside sources in connection with their parliamentary activities, and to distinguish these from improper payments with that degree of precision required by the criminal law is not easy?

[19]     These practical considerations may have been relevant to the decision to require leave of the Court and to the requirement to give the member of Parliament an opportunity to be heard.

Is the leave decision the exercise of the civil or criminal jurisdiction?

The relevant considerations

[20]     The Supreme Court in Mafart v Television New Zealand Ltd [2006] 3 NZLR 18 confirmed that s 66 provides for appeals only from the exercise of the civil jurisdiction (Elias CJ writing for herself and for Blanchard and McGrath JJ at [12]; Tipping J at [42] and [51]; and Eichelbaum J at [54]). There is no right of appeal under the Crimes Act from the leave decision under s 103. Whether there is jurisdiction to hear an appeal from the leave decision turns on whether that decision is a civil or a criminal proceeding.

[21]     The considerations relevant to determining this question were discussed by the Supreme Court in Mafart in the context of deciding whether there was jurisdiction for this court to hear an appeal from a High Court determination of an application under the Criminal Proceedings (Search of Court Records) Rules 1974. 

[22] The Chief Justice said that the question is one of substance and not form (at [31] and [32]). Accordingly, for example, as Mr Field accepts, it is not relevant that the proceeding was apparently commenced by way of an originating application.

[23] The Chief Justice said at [29] that if proceedings can result in conviction for a crime or punishment of an offender, “they are clearly criminal”. Further, Elias CJ observed that “[a]pplications necessarily linked to determinations of crime or punishment are also properly regarded as criminal proceedings” (at [30]). The Chief Justice said that it is not necessary for someone to be in jeopardy of conviction or facing sentence for an application to be properly viewed as criminal, “if it is inextricably linked with criminal process” (at [30]).

[24]     The Chief Justice in this context referred by way of footnote to Amand v Home Secretary and Minister of Defence of Royal Netherlands Government [1943] AC 147 at 156 (HL), where Viscount Simon LC placed reliance on whether “the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so”. Elias CJ noted that, as Lord Hoffmann in Government of the United States of America v Montgomery [2001] 1 WLR 196 at [17] (HL) had pointed out, Lord Simon was not suggesting a test but illustrating a case in which the nature and character of the proceedings were regarded as clearly criminal.

[25]     Similar considerations are identified in the judgment of Tipping J who at [48] said that the focus should be on “the nature of the issues presented” by the particular application.  Tipping J also emphasised the importance of providing at least one appeal from the exercise of judicial authority (at [48]).

[26]     Finally, Eichelbaum J referred to “criminal proceedings as including applications so related to a criminal proceeding as to be subject to the same appellate limitations” (at [54]).  His Honour also emphasised the need to give “sufficient weight” to the substance of the application (at [57]).

The appellant’s case

[27]     There are two broad propositions emerging from Mr Perese’s helpful submissions.  The first is that the nature of the decision is such that it affects civil interests.  He says that the leave decision is a discretionary one requiring consideration of the circumstances of the particular case and is not a rubber stamp.  Further, Mr Perese submits that the decision is designed to protect the right of a member of Parliament not to have that status interfered with except where that is appropriate.  In this context, Mr Perese emphasises the involvement of the High Court rather than that of the Attorney-General in order to ensure there is no improper political involvement or appearance of that.

[28]     The submission is that any error in the decision taken on leave is not necessarily going to be corrected by the criminal process and, even if it can be,  Mr Field should not have to go through that process in order to get it right.

[29]     The second proposition is that the leave decision and the initiation of a prosecution involve two separate steps.  Mr Perese described the leave provision as a means of giving standing to the applicant in order to then proceed to the prosecution decision.  The other way he put this was to say that the leave decision was not “self executing” so that a prosecution inexorably followed.

Discussion

[30]     In our view, the short answer is that the leave decision is inextricably linked to the criminal process.  It is, as the Solicitor-General put it, an integral step in that process.  In that respect, the interests to be balanced are criminal ones. 

[31]     The appellant’s argument is premised on the basis that there is a disjunct between the application for leave and the decision to prosecute.  We consider that the distinction the appellant seeks to draw between the leave decision and the criminal process is an artificial one.  Nor does it sit well with the words of s 103(3) which require notice to be given to the person “whom it is intended” to prosecute.  It is not realistic to suggest that, having obtained leave, the discretion to prosecute will be exercised afresh in some substantive way.  That is not to say of course that if, for example, witnesses died an information may not be withdrawn or that there may not be reasons for a case ultimately not to proceed.  But, apart from matters of that sort, in a practical sense it is not possible to separate the leave decision out from the criminal process and the consequences that may follow.

[32]     The closeness of the leave decision to the criminal process is apparent in s 314 of the Crimes Act which sets out the procedure to be followed where prior consent to prosecution is required.  The section reads:

314Procedure where prior consent to prosecution required

Where any one is charged with any offence in respect of which the leave or consent or certificate of a Judge or of the Attorney-General or of any other person to the laying of an information is required, the leave or consent or certificate may be endorsed on the information or set out in memorandum, and the endorsement or memorandum shall be accepted by the Court as proof that the leave or consent or certificate has been given.

[33]     The link to the criminal process is also reflected in the fact that this is not a case where there are no other remedies for the appellant.  To illustrate the point, the appellant’s specific grounds of appeal all relate to the interpretation of the elements of the offence under s 103(1) of the Crimes Act.  If Randerson J is wrong in that respect, that matter plainly would be a basis for, ultimately, an appeal to this court on the basis of a miscarriage of justice.  Potentially, if the appellant was able to convince the trial judge that the elements were different there may be grounds for an application for a discharge under s 347 of the Crimes Act at some earlier point in the trial process.  Finally, were new information to come to light about the decision to prosecute, there is the possibility of a stay on the basis set out in Fox v Attorney‑General [2002] 3 NZLR 62 at [37] (CA). The types of cases referred to in Fox will be rare but the point is that there can be no suggestion of a remorseless prosecution process that cannot be interrupted.

[34]     If there is a leave requirement which is overlooked for some reason and so not obtained, that will be a bar on the entry of a conviction: R v O’Connell [1981] 2 NZLR 192 at 194 – 195 where this Court noted that sometimes the necessity for leave or consent to commence a prosecution is described as a matter of form (Price v Humphries [1958] 2 QB 353 (DC)) but, the Court said, “if at the end of the day it is found that the necessary leave has not been given the prosecution has not been commenced as required by law and the Court cannot enter a conviction”.

[35]     The appellant has to say that the fact that the offence is linked to the status as a member of Parliament somehow alters the interests involved.  In the context of the decision to approve prosecutions more generally, the Prosecution Guidelines published by the Crown Law Office at 9 March 1992 discuss the statutory provisions creating offences which require the consent of the Attorney‑General before a prosecution is obtained.  The Guidelines note that the reasons for requiring consent vary but, “[i]n general terms however the consent requirement is imposed to prevent the frivolous, vengeful or political use of the offence provisions” (at [4.2]).  (See also McGrath “Principles for Sharing Law Officer Power:  The Role of the New Zealand Solicitor-General” (1998) 18 NZULR 197 at 212 - 213.)  The approach taken by Randerson J in the present case arguably goes further in the consideration the Judge gives to the strength and sufficiency of the evidence but the substance of the interests being weighed is no different.

[36]     We do not agree that the leave requirement can be characterised as one of standing.  The starting point is the general proposition in s 13 of the Summary Proceedings Act 1957 that, except where it is expressly otherwise provided in any Act, anyone may lay an information.  Section 103(3) is simply an example of a provision that provides an exception to the general rule.

[37]     The nature of the jurisdiction being exercised in the leave decision also has to be considered in the context of the Crimes Act as a whole.  Part 13 of the Crimes Act sets up a scheme of appeals for specified decisions and it would be odd to see the leave decision under s 103 as somehow operating under a different appellate regime.  There is, for example, no right of appeal against the decision in s 345(3) which enables anyone, with the written consent of a Judge of the High Court or of the Attorney-General, to file an indictment.  By contrast, there is a right of appeal against the decision in s 345B to extend the time for the filing of an indictment and against the decision in s 345D granting or refusing leave to file an amended indictment (s 379A(1)(ca) and (cc)).

[38]     In this context, we do not think anything turns on the fact that the right of appeal in s 379A is the right of an “accused”.  This is really an argument that there should be an appeal right not that there is one.

[39]     The appellant relies on the fact s 103(2) provides a right to be heard at the leave application.  However, as a matter of practice, there may be no difference in terms of the process adopted in cases where a prosecution requires leave and that applicable under s 103(3).  In Polynesian Spa Ltd v Osborne [2005] NZAR 408 (HC), for example, there is a discussion about the policy adopted by the Department of Labour for occupational health and safety prosecutions. The policy provided that before any decision was made after an investigation preceding the decision to prosecute, the company or person involved was to have an opportunity to comment on various matters relevant to that decision (at [73]). In any event, we do not consider anything turns on the right to be heard in terms of the characterisation of the nature of the leave decision.

[40]     A “pragmatic” consideration identified in Mafart as having been treated as relevant to the characterisation of the proceedings in issue was whether an appeal right would lead to disruption to the criminal trial (at [34]). Here, the parties have been able to make an accommodation that addresses that concern in this particular case. Obviously, however, there is potential for disruption to the criminal trial process were there to be an appeal right in this case. While as the Chief Justice says at [34], such risks should not be overstated that potential is a factor supporting the view that the decision in issue is criminal in kind.

[41]     Finally, we consider that the question of any unevenness in approach between cases where the decision is that of the Attorney-General and that of the High Court is not determinative.  Mr Perese suggests that it is possible that the decision of the Attorney-General to consent to prosecution is reviewable by way of judicial review and that it would be an absurd result if this decision, by contrast, was not reviewable by way of an appeal. 

[42]     There is High Court authority for the proposition that the decision to prosecute may be challenged by way of judicial review: Polynesian Spa at [68]. (The amenability of the decision not to prosecute is considered in Hallett v Attorney‑General (No 2) [1989] 2 NZLR 96 (HC)).

[43]     Randerson J in Polynesian Spa at [62] set out a number of constitutional and policy reasons for the courts’ reluctance to interfere in relation to the prosecutorial discretion. This court in Fox at [31] referred to the traditional reluctance across the common law jurisdictions to interfere with decisions to initiate and continue prosecutions and discussed the compelling reasons for that reluctance. (See also the discussion in Edwards The Attorney-General, Politics and the Public Interest (1984) at 29-32.) 

[44]     Assuming, without deciding, that the Attorney-General’s decision to consent to a prosecution is reviewable, we do not accept any absurdity arises.  In the criminal process there is, ultimately, an appeal and we agree with the Solicitor-General that the reality is that Parliament has determined the grounds upon which criminal proceedings may be appealed.  A decision under s 103 is not amenable to appeal under the Crimes Act and that in the end, is the principal reason why no appeal can be brought in this case.

Result

[45]     For these reasons, we consider that the decision to grant leave under s 103 of the Crimes Act is the exercise of the court’s criminal jurisdiction.  There is therefore no right of appeal under s 66 of the Judicature Act.  The appeal is dismissed for want of jurisdiction.

CHAMBERS J

[46]     I have read the opinion of the President and Ellen France J.  I agree Mr Field’s appeal must be dismissed for want of jurisdiction.

[47]     I have come to that conclusion with some reluctance, as I believe he should have been able to appeal.  But the law is clear: there is no possibility of appeal, even by leave, under the Crimes Act and s 66 of the Judicature Act confers a right of appeal only in civil cases.  I toyed with the idea whether the right of a member of Parliament not to be prosecuted for a s 103 offence without the leave of a Judge of the High Court could be categorised as a civil right, namely the right not to be interfered with in carrying out public functions as a member of Parliament other than in appropriate circumstances.  But in the end I have concluded such an interpretation of the right would be forced and wrong.  I agree with the President and Ellen France J at [23] and [30] above that the application for leave under s 103 is so necessarily linked to the proposed criminal process against Mr Field that it must be regarded as an application in the criminal proceeding itself.  The interpretation of s 66 given in Mafart permits no other conclusion.

[48]     I do think, however, the law needs to be changed.  As the opinion of the President and Ellen France J shows, there are a number of offences in ss 99 - 106 of the Crimes Act which require leave before a prosecution can be commenced.  I believe all those leave decisions should be appealable, either under s 379A of the Crimes Act or under an equivalent (new) provision.  Most of the prosecutions in question require the Attorney-General’s consent.  I consider it likely his or her decision to grant leave would be amenable to judicial review, but the accused should have an appeal right, not merely a right to judicial review.  Members of Parliament to be charged under s 103 are in a worse position, however: they do not even have the right to apply for judicial review.  This is clearly not intentional: it is simply a consequence of switching the leave-granting officer from Attorney‑General to Judge of the High Court, a switch made for obvious and sound reason. 

[49]     The importance of the leave decision to the member of Parliament sought to be charged cannot be underestimated.  Once the prosecution is under way, the member’s political future is probably irretrievably damaged, whatever the jury’s ultimate verdict.  It is no answer that a “wrong” leave decision could in theory be challenged in the event the member of Parliament was convicted.  In theory, of course, all “wrong” pre-trial decisions are ultimately correctable under the broad “miscarriage of justice” ground of appeal following conviction: Crimes Act, s 385(1)(c).  But Parliament realised as long ago as 1966, when s 379A was inserted into the Crimes Act, that an accused should generally be able to challenge pre-trial decisions prior to trial rather than having to postpone the challenge until after trial and conviction.

[50]     In addition, of course, the possibility of an appeal on broad “miscarriage of justice” grounds post-conviction is of no assistance to the member of Parliament if leave to prosecute is “wrongly” granted and then he or she is ultimately acquitted.  That member will have had to undergo wrongly the criminal process and a criminal trial. 

[51]     It seems wrong in principle that the High Court Judge’s decision cannot be challenged.  He or she may have applied quite the wrong test, but nothing can be done about it.  A member of Parliament may face a prosecution he or she should not have faced because the judge set the bar too low; conversely, the Crown or a private prosecutor may be barred from proceeding with a prosecution because the bar has been fixed too high. 

[52]     For these reasons, while I agree with the President and Ellen France J that Mr Field cannot appeal the High Court decision, I am of the view there ought to be a right of appeal.

[53]     I stress that no inference should be drawn from this opinion as to my views on the prosecution of Mr Field or on the leave decision of Randerson J, Chief High Court Judge.  I know none of the details of the Crown case against Mr Field.  Nor have we been concerned in any way with the rightness or wrongness of the test Randerson J applied on the leave application.  We have been solely concerned with the question of whether or not this court has jurisdiction to consider Mr Field’s purported appeal from Randerson J’s leave decision.  On that question the panel is unanimous we do not have jurisdiction. 

Solicitors:

Saseve Solictors, Manukau for Appellant
Crown Law Office, Wellington