Burgess v Field HC Auckland CIV 2007-404-3206

[2007] NZHC 1944

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2007-404-3206

BETWEEN  MALCOLM JAMES BURGESS Applicant

AND  PHILLIP HANS FIELD Respondent

Hearing:         20 June 2007

Counsel:        S J E Moore and D G Johnstone for Applicant

P E Dacre and S S Perese for Respondent

Judgment:      6 July 2007

JUDGMENT (NO 1) OF RANDERSON J – CRITERIA FOR THE APPLICATION

This judgment was delivered by me on 6 July 2007

at 12.15 pm, pursuant to r 540(4) of the High Court Rules

Registrar/Deputy Registrar

Solicitors:           Crown Solicitors, PO Box 2213, Auckland

P E Dacre, PO Box 47963, Ponsonby, Auckland

BURGESS V FIELD HC AK CIV 2007-404-3206  6 July 2007

Introduction

[1]      The respondent Mr Field is facing allegations of corruption and bribery in his capacity as a Member of Parliament.   For some time the police have been investigating these allegations led by the applicant Mr Burgess, a Detective Superintendent based in Christchurch.

[2]      As a result of the police investigation, Mr Burgess now seeks leave of this Court to prosecute Mr Field for alleged offences under s 103(1) Crimes Act 1961. The  offences  alleged  are  described  in  15  draft  informations  attached  to  the application.  Application for leave of a High Court Judge is required under s 103(3). Although s 103 has been in force for some 46 years, this is the first occasion when it has been invoked.  So far as counsel and the Court are aware, no similar provision exists elsewhere in comparable Commonwealth countries.

[3]      The  purpose  of  this  judgment  is  to  define  the  criteria  to  be  applied  in assessing  the  application.    This  judgment  does  not  deal with  the  merits  of  the application.   Those will be dealt with at a subsequent hearing on a date yet to be confirmed.

The statutory framework

[4]      Section 103 is one of a series of offences relating to corruption and bribery contained in Part 6 Crimes Act.  Section 103 provides:

Corruption and bribery of member of Parliament

(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.

[5]      The only material change to s 103 since it was enacted has been the increase in the maximum penalty from three to seven years imprisonment effected by s 5

Crimes (Bribery of Foreign Public Officials) Amendment Act 2001.   This change was part of a wider Bill to bring New Zealand law into conformity with the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions 1997.   New Zealand is a party to this treaty but it does not bear on the matter at issue here.

[6]      The other sections of the Crimes Act dealing with corruption and bribery are s 100 (corruption by judicial officers), s 101 (bribery of judicial officers), s 102 (corruption and bribery by Ministers of the Crown), s 104 (corruption and bribery of law enforcement officers) and s 105 (corruption and bribery of public officials). Sections 105A to 105E relate to the corrupt use of official information and bribery in relation to foreign public officials.

[7]      Section 106 provides for certain restrictions on prosecution:

Restrictions on prosecution

(1)     No one shall be prosecuted for an offence against any of the provisions of sections 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.

(2)     No Judge who holds his 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.

[8]      The statute provides different restrictions on prosecution for crimes alleged under these provisions.   The leave of the Attorney-General is required before any prosecution may be brought under all the provisions discussed except in respect of Ministers and Members of Parliament.  In their case, no prosecution may be brought without the leave of a High Court Judge.

[9]       Clearly, Parliament must have considered it necessary to distinguish the case of prosecutions under these provisions in the case of Ministers and Members of Parliament by requiring a High Court Judge to consider any application for leave to prosecute.  Unfortunately, neither Hansard nor any other extrinsic materials throw any light on Parliament’s reasons for this distinction.

[10]     The only other provision relating to the grant of leave is s 314 Crimes Act which provides that, if leave is granted, it must be endorsed on the information or set out in a memorandum.  The endorsement or memorandum must be accepted by the Court as proof that leave has been given.

[11]     There are many other offences under a variety of statutes which require the leave of the Attorney-General  before a prosecution  may commence.    These are detailed  in  New  Zealand  Law  Commission  Criminal  Prosecution  (NZLC  PP28

1997) at 174-175.  In some cases (for example, s 12 Secret Commissions Act 1910) the Attorney-General may grant leave without notice to the prospective defendant. The fact that s 103 Crimes Act requires notice to be given to the respondent and an opportunity to  be  heard  suggests  that  an  application  to  this  Court  for  leave  is expected to be more than a mere formality.

The statutory history

[12]     Prior  to  the  1961  Act,  the  Crimes  Act  1908  contained  three  offences specifically related to  corruption affecting public office.   Section 126  related to judicial corruption; s 127 applied to  corruption by justices,  constables or  public officers employed in any capacity for the prosecution, detection or punishment of offenders; and s 128 applied to anyone engaging in corruption in relation to the appointment of any person to any public office or employment.   There was no specific  offence  relating  to  Ministers  of the  Crown  or  Members  of  Parliament. Leave to prosecute was required only in respect of offences under ss 126 and 128. The leave required was from the Attorney-General under ss 361 and 362.   These sections did not require notice to be given to the prospective defendant.

[13]     The offences created by ss 102 and 103 Crimes Act 1961 were introduced for the first time by that Act.  The requirement for leave of a High Court Judge rather than that of the Attorney-General was a departure from the previous practice and legislation.   This suggests that the requirement for leave of a High Court Judge is related to the nature of the roles within government of Ministers and Members of Parliament.

Other jurisdictions

[14]     I am grateful to the applicant’s counsel for their research into the legislative history and the law in other jurisdictions.  The explanatory note to the Crimes Bill stated that ss 102 and 103 were based on s 100 of the Canadian Criminal Code (1954) but were “wider in their effect”.  Section 119 of the Canadian Criminal Code (1954) created an offence of corruption  for the holder  of a  judicial office or  a member of Parliament or of a provincial legislature.  Under s 119(2), the consent of the Attorney-General of Canada was required in respect of any prosecution relating to the holder of a judicial office.   The same position applied under the Canadian Criminal   Code   (1892).      An   examination   of   the   records   of   the   Canadian Parliamentary debates for 13 June 1892 and Chapter 5 of Wharton A Manual of Canadian Criminal Law (1951) shows that the Canadian Criminal Code 1892 required leave of the Attorney-General in order to  protect those holding  judicial office from malicious and vexatious attack.  The current position in Canada remains unchanged in the consolidated Criminal Code (1985).

[15]     In the United Kingdom, the Public Bodies Corrupt Practices Act 1889 and the Prevention of Corruption Act 1906 (which deal with corrupt practices of members, officers or servants of public bodies and “agents” generally) both make the leave of the Attorney-General a prerequisite to prosecution under those enactments.

[16]     The  United  Kingdom  Parliament  is  currently  considering  a  public  Bill entitled “The Corruption Bill”.  The Joint Parliamentary Committee reported on the draft Bill in July 2003.  The Joint Committee stated at page 47:

137.     We have been told that MPs and peers, among other public figures, are vulnerable to frivolous or vexatious private prosecutions for corruption. These could, if raised during an election or other sensitive time, distort the political process.   We therefore accept the need for some filter before prosecutions are launched.

138.     Where some consent to prosecution is required for other offences, the decision-maker  is  usually the Director  of Public Prosecutions.    This responsibility  is  normally  exercised  through  delegated  powers  by  Chief Crown Prosecutors.  We understand that there is little practical advantage in requiring the consent of the Attorney as opposed to the DPP.  Furthermore, involving a member of the Government in the decision to prosecute may be counter to our international obligations.  Without doubting the independence of the Attorney General and his predecessors, we accept that the appearance of  ministerial  involvement  in  the  prosecution  decision  would  best  be avoided.

139.     Ideally the consent to prosecute would be vested in the Director of Public Prosecutions and exercised either by him personally or in his absence by one nominated deputy.  In cases involving MPs it would be open to the DPP to consult the Parliamentary Commissioner for Standards on the interpretation of the Code of Conduct.  We recommend that Clause 17 be replaced by a requirement for the consent to be given by Director of Public Prosecutions or one nominated deputy.

[17]     It appears the present draft of the Corruption Bill (UK) does not contain any prerequisite to prosecution.   However, two points of relevance emerge  from the report of the Joint Committee.  First, the suggestion that Members of Parliament as public figures may be vulnerable to frivolous or vexatious private prosecutions for corruption.   Second, the concern that the grant of leave to prosecute a Member of Parliament by the Attorney-General might give an undesirable appearance of ministerial involvement.

[18]     A similar  comment  is  made  in the Prosecution Guidelines  issued  by the Crown Law Office in this country in March 1992 at para 4.2 dealing with offences for which the consent of the Attorney-General is required before prosecution:

The reasons for requiring that consent vary.   In general terms however the consent  requirement  is  imposed,  to  prevent  the  frivolous,  vengeful  or

‘political’ use of the offence provisions.

[19]     In  Australia,  there  do  not  appear  to  be  any  requirements  for  leave  to prosecute for official corruption and there does not appear to be any material assistance to be gained by a review of comparable provisions in the United States.

The criminal libel cases

[20]     Counsel for the applicant properly referred me to cases where the consent of a Judge was required before a prosecution could be brought for criminal libel.  Our Defamation Act 1992 abolished the offence of criminal libel which existed until that time under s 215 Crimes Act.  Under that provision, anyone publishing any criminal libel could be imprisoned for up to one year, or for two years if the publication was made in the knowledge it was false.  The expressions criminal libel and publishing were defined in s 211:

211.  Criminal libel and publishing defined  -

(1)  A  criminal  libel  is  matter  published,  without  lawful  justification  or excuse, either designed to insult any person or likely to injure his reputation by exposing him to hatred, contempt, or ridicule or likely to injure him in his profession, office, business, trade, or occupation,  whether  such  matter  is expressed by words, written or printed, or legibly marked on any substance, or by an object signifying such matter otherwise than by words, and whether expressed directly or by insinuation or irony.

(2)  Publishing a criminal libel is – (a)  Exhibiting it in public; or

(b) Causing it to be read or seen, or showing or delivering it, or causing it to be shown or delivered, with a view to its being read or seen by any person other than the person defamed.

[21]     A prosecution for criminal libel could not be commenced without the leave of a High Court Judge. Section 213 provided:

212.  No prosecution without leave of Judge

(1)   No prosecution for criminal libel shall be commenced without the leave of a Judge of the High Court.

(2)   Notice of intention to apply for such leave shall be given to the person to be charged, who shall have an opportunity of being heard against the application.

(3)   An information for an alleged criminal libel shall be taken before a

District Court Judge only.

(4)   This section shall not apply to any summary proceedings under section

16 of the Defamation Act 1954.

[22]     There are two reported New Zealand cases relating to the grant of leave to prosecute for criminal libel.  These are Police v McLachlan [1989] 3 NZLR 689 and Police v W [1989] 3 NZLR 696. In each case, leave was granted following consideration of factors identified by Wien J in Goldsmith v Pressdram Ltd  [1977] 2

All ER 557.    The  New  Zealand  cases  adopted  the  following  passage  from the judgment of Wien J at 562:

First before a discretion can be exercised in favour of an applicant who wishes  to  institute criminal  proceedings  in  respect  of  a  libel,  which  he contends is criminal, there must be a clear prima facie case.  What I mean by that is that there must be a case to go before a criminal court that is so clear at  first  sight  that  it  is  beyond argument  that  there is  a  case to  answer. Secondly, the libel must be a serious one, so serious that it is proper for the criminal law to be invoked.  It may be a relevant factor that it is unusually likely for the libel to provoke a breach of the peace, although that is not a necessary ingredient at all.  Thirdly, the question of the public interest must be taken into account, so that the judge has to ask himself the question:

‘Does the public interest require the institution of criminal proceedings?’ What is not appropriate, in my judgment, is the question whether damages might or might not afford an adequate remedy to a complainant.  I consider that that question is irrelevant.  Once one arrives at the conclusion that the criminal law ought to be invoked, then it  is  not  a  private case between individuals:  the state has an interest and the state has a part in it.

[23]     The New Zealand cases emphasised, as did Wien J, that  rigid guidelines should not be applied so  as to fetter the broad discretion intended by the  leave requirement.   Nor was it  suggested that  the  matters  identified  by  Wien  J  were exhaustive.  It was accepted that any discretion must be exercised judicially.

[24]     It was submitted on behalf of the applicant in the present case that the libel decisions should be distinguished.  In particular, it was submitted there was no need under s 103(3) for the Court to be satisfied there was a prima facie case.  Rather, it was  submitted  it  was  only  necessary  for  the  Court  to  be  satisfied  that  the prosecutions were brought  in  good  faith  and  without  improper  influence.    It  is therefore necessary to consider the criminal libel cases in a little detail.

[25]     In Goldsmith, Wien J was considering an application for leave to commence a criminal prosecution under s 8 of the Law of Libel Amendment Act 1888 (UK) which provided:

No criminal prosecution shall be commenced against any proprietor, publisher,  editor,  or  any  person  responsible  for  the  publication  of  a newspaper for any libel published therein without the order of a Judge at Chambers being first had and obtained.  Such application shall be made on notice to the person accused, who shall have an opportunity of being heard against such application.

[26]     Leave to prosecute is required only if the prosecution is to be brought against a proprietor, publisher, editor or other person responsible for the publication of a newspaper containing the alleged  libel.   Much of the  judgment  in Goldsmith  is concerned with the elements necessary to establish criminal libel and whether the prosecution must prove the libel was likely to result in a breach of the peace, perhaps by the person allegedly defamed taking some form of direct action.  Wien J rejected that proposition by reference to earlier English authorities.   It was sufficient if the imputation was calculated to vilify someone and bring them into hatred, contempt and ridicule.

[27]     In discussing the principles which should guide the exercise of discretion to grant leave, Wien J did not refer to any prior authority.  His statement of principles, already cited at page 562, appears to place a very high onus on an applicant seeking leave to prosecute for criminal libel.  In particular, the requirement for “a clear prima facie case” by which Wien J meant “that there must be a case to go before a criminal court that is so clear at first sight that it is beyond argument that there is a case to answer”.

[28]     There is no discussion in Goldsmith nor in the New Zealand authorities in relation to the grant of leave for a criminal libel prosecution, of the relationship between the grant of leave to prosecute and the committal process which would follow  if  leave  were  granted  to  prosecute  on  indictment.    Wien  J  rejected  a submission made that criminal proceedings for libel could only be justified if an award of damages was unlikely to be satisfied.  While Wien J does not give reasons for adopting the principles laid down, it is an obvious fact that a civil remedy in damages would ordinarily lie for libel and the implicit policy rationale for setting such a high hurdle for criminal libel must have taken that fact into account.   This distinction was picked up by Fisher J in Police v W to which I will shortly refer.

[29]     In McLachlan, Fraser J granted leave to the police to prosecute the publisher of a magazine containing alleged libels in respect of Sir Robert Muldoon relating to a period when he had been Prime Minister of New Zealand.  The Judge referred to the English authorities and criticism by the House of Lords in Gleaves v Deakin [1980] AC 477 of the requirement under s 8 of the Law of Libel Amendment Act 1888 (UK) for leave of a Judge in criminal libel cases. In Gleaves, their Lordships were critical both of the requirement for the leave of a Judge (rather than the Attorney- General or Director of Public Prosecutions) as a pre-requisite to prosecution and the fact  that  no  leave  of  any  type  was  required  in  respect  of  persons  other  than proprietors,  publishers,  or  editors  of  newspapers.    The  view  was  expressed  in Gleaves that the law should be reformed so that no prosecution for criminal libel could be instituted without leave of the Attorney-General.

[30]     Fraser  J  noted  in  McLachlan  that  counsel  were  agreed  that  the  proper approach was that adopted by Wien J in Goldsmith which was approved by Taylor J in Desmond v Thorne [1982] 3 All ER 268. Fraser J considered that the allegedly libellous statement was serious, there was a clear prima facie case and that the public interest required the institution of criminal proceedings. In exercising his discretion, he considered those factors outweighed issues such as delay in bringing the application and the prospect that the offence of criminal libel was likely to be abolished by the Defamation Bill then before the House.

[31]     In Police v W, Fisher J granted leave to the police to prosecute the respondent for alleged criminal libels contained in anonymous letters written to various people in a sports club of which the complainant was President.  Discussing the guidelines referred to in Goldsmith, Fisher J was in agreement with Wien J that it would be inappropriate to authorise the institution of criminal proceedings for libel unless the case is a clear one.   He added that “one would also need to be satisfied that the statements were seriously defamatory of the complainant.” (at 699).

[32]     Prominent  among the considerations relevant  to  applications  for  leave  in criminal libel cases is the conclusion the Judge reached at 701 that:

In the finish I think that the choice between criminal and civil sanctions will usually turn on quite pragmatic considerations.   The ultimate question is

likely to be which procedure and remedy are most suited for the control of a given type of undesirable behaviour …

[33]     The Judge concluded that the special factor in the case before him was the anonymity of the allegedly libellous letters and the need to secure the assistance of the police to identify the author (at 701).

[34]     The Judge considered that  the seriousness of the  libels,  the  respondent’s motive, the duration of the campaign and the anonymity element outweighed delay factors and the then current reconsideration of the law of criminal libel.  However, leave was not granted in respect of all the proposed informations.  Some of them did not seem to the Judge to warrant what he called “the heavy impost of a criminal prosecution” (at 703).

[35]     Fisher J’s discussion of public interest factors at 701 is also of interest.  He considered there were three situations where it would often be in the public interest to prosecute:

The State will often prosecute when the conduct of one of its citizens is seriously  injurious  to:    (i)  effective  government  and  conduct  of  public affairs; (ii) the maintenance of peace among its citizens; or (iii) the welfare of individuals.   The first two more obviously involve the peace, order and good government of the whole community in the public interest.  The third involves the state in a more paternalistic role where the public interest may be less obvious.

[36]     I consider there are several considerations suggesting it is not appropriate to adopt the principles established  in the criminal libel  cases when considering an application for leave under s 103(3):

a)        There is no obvious parallel civil remedy for corruption and bribery as there is for libel.

b)       Unlike libel, corruption is not dependent on the existence of a victim.

Rather,  criminal  sanctions  are  imposed  in  order  to  advance  the broader  public  interest  in  upholding  good  government  and  the integrity of Ministers, Members of Parliament and public officials.

c)       No consideration is given in the criminal libel cases to the scrutiny which must follow during the committal process should leave to prosecute be granted.

d)From a practical point of view, a libel is necessarily expressed  in writing.    Generally,  the assessment  of whether  an  alleged  libel  is capable of bearing a defamatory meaning is likely to be a much more straightforward  exercise  than  an  assessment  on  the  papers  of  the merits of a corruption allegation where proof of a corrupt intention is an essential element.

Submissions

[37]     Helpful  written  submissions  have  been  presented  on  both  sides.     The applicant’s central submission has already been mentioned.   Mr Moore submitted that leave was required from a High Court Judge under ss 102 and 103 in the case of Ministers of the Crown and Members of Parliament to ensure there is no risk of political influence or the appearance of political involvement.  He also submitted that the  requirement  for  leave  of a  High  Court  Judge  emphasised  the  constitutional separation of powers between the Executive, Parliament and the Judiciary.

[38]     The applicant’s submissions focused on the statutory framework and history already discussed.  It was said to be significant that the requirement for the leave of a High Court Judge applied only to corruption allegations in respect of Ministers of the Crown and Members of Parliament.  It was submitted this recognised that MPs were particularly  vulnerable  to  vicious  or  vexatious  attack  for  political  or  vengeful reasons.   Reference was also made to the United Nations Convention Against Corruption 2003 signed by New Zealand on 10 December 2003 but not yet ratified. Finally, Mr Moore emphasised the traditional reluctance of the Courts to become involved in reviewing prosecutorial discretion and referred to the usual evidential safeguards of the committal process and the criminal onus and standard of proof as providing  a  sufficient  barrier  to  ill-founded  prosecutions.    He  submitted  that  to require proof of a prima facie case at the leave stage would render the committal process meaningless.

[39]     In respect  of the reluctance  of the  Courts to  interfere  with  prosecutorial discretion, Mr Moore referred to Fox v Attorney-General [2002] 3 NZLR 62, 69-72 (CA) and Polynesian Spa Limited v Osborne [2005] NZAR 408, 422-424. I do not see those cases as having any direct relevance here where Parliament has provided specifically for the leave of a High Court Judge to be obtained before a prosecution can proceed.

[40]     On Mr Field’s behalf, Mr Dacre submitted there is no fetter on the Court’s discretion when leave is sought under s 103(3).  He accepted that considerations such as good faith and the absence of undue influence were relevant but these were only two  of a  number  of  factors the  Court  might  decide  to  take  into  account.    He contended that, in order to exercise its discretion, the Court must be satisfied, on the basis of the criminal standard of proof, that the evidence which will be presented to the finder of fact is evidence which can properly be put to  them.   Although he submitted this would be an onerous task, it would not be a proper exercise of the Court’s discretion to confine itself to the terms of the informations.  In approaching the issue, the fact the respondent  has a statutory right  to  be heard on the leave application supported the submission that a review of the evidence is required.  That review, it was submitted, is to ensure the evidence supports a prosecution.

[41]     In  his  written  submissions,  Mr  Dacre  referred  to  the  assertion  in  the informations that the applicant had “just cause to suspect” the commission of an offence.  He submitted that this suggested the review should focus not only on the fitness of the evidence but should also embrace wider equitable considerations.  In short, Mr Dacre submitted that the grant of leave was not simply “a rubber stamping exercise”.  The Court must be satisfied that the prosecution was “fit to be brought”. An affidavit merely asserting an honest belief that there was a proper case was not enough.

[42]     In his oral submissions, Mr Dacre submitted that a prima facie case must be made out before leave could be granted.  He made the point that, where there was some obvious legal or factual flaw in the case, it would be futile for the Court to permit a prosecution to be brought when it would inevitably fail.  That supported his submission that the Court was required to review the evidence.  Mr Dacre submitted

that the committal process would not be rendered meaningless if there were a review of the sufficiency of the evidence at the prior leave stage because the preliminary and later assessment would necessarily be made on the basis of the evidence available at each stage.

[43]     The final point made by Mr Dacre was that it was difficult for a respondent effectively to challenge an application for leave in the absence of full disclosure by the police of relevant material on the police file.   That concern was met by Mr Moore’s agreement to an order that disclosure be made which would embrace not only the usual material bearing upon the informations identified in the application for leave, but also disclosure of any material which could tend to show a collateral purpose or improper motive in respect of the investigation or prosecution of the matters at issue.

[44]     I made that order by consent on 20 June 2007 requiring disclosure to be made by Friday 22 June 2007.  The order was later extended without opposition to require compliance by Wednesday 27 June 2007.

Discussion

[45]     The requirement for leave of a High Court Judge before a Minister of the

Crown or a Member of Parliament is prosecuted for corruption and bribery under ss

102 and 103 Crimes Act, appears to be unique.  I accept the applicant’s submissions that it is 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 members of the judiciary and public officials on the other.

[46]     But I do not accept the applicant’s submission that the Court’s role at the leave stage is confined to ensuring the prosecution is brought in good faith and has

not been instigated or influenced by improper or collateral considerations.    The discretion conferred by s 103(3) is unfettered, subject of course to the requirement, common to all judicial discretions, that it must be exercised judicially.

[47]     When the Crimes Act was enacted in 1961, Parliament deliberately amended the pre-existing legislation to create specific offences for corruption and bribery by Ministers  and  Members  of  Parliament  while  at  the  same  time  inserting  the requirement for the prior leave of a High Court Judge.  That was clearly intended to safeguard  the  interests of those  who  might  be  prosecuted  under  this  provision. Parliament did not intend that the Judge considering the grant of leave to prosecute would be  a  mere  cypher  or  rubber  stamp  but  would  conscientiously  assess  the evidence and all the circumstances presented to the Court to ensure it was proper to permit the prosecution to proceed.  That intention is reinforced by the obligation to give notice to the respondent and an opportunity to be heard.

[48]     Mr Moore accepted it was incumbent on the applicant to present at least some evidence to satisfy the Court the prosecution is being brought  in good faith but resisted the suggestion that the evidence would need to be sufficient to show a prima facie case.  I accept it is unnecessary for the applicant to satisfy the Court there is a prima facie case at this stage.  To do so would be premature and would encroach to an  inappropriate extent  on the  discretion of the  judicial officer  presiding at  the committal process  under  Part  5  Summary  Proceedings  Act  1957  (which  would follow if leave to prosecute were granted).  Where, as here the informations are laid indictably, the judicial officer presiding at depositions will be required to consider under s 168 Summary Proceedings Act whether “the evidence adduced by the informant is sufficient to put the defendant on his trial”.

[49]     I am satisfied that the principle established in the criminal libel cases that a clear prima facie case is required before leave may be granted, sets the bar too high in corruption cases and should not be adopted for the reasons identified in [36] above.

[50]     It must be kept in mind that, at this stage the Court is essentially involved in a screening or filtering process.  No charge has been laid.   The committal stage and

any subsequent trial are yet to come if leave is granted.  The grant of leave under s

103(3) is also to be distinguished from the grant of leave to file an indictment under the exceptional process provided for in s 345(3) Crimes Act.  Under that section, the committal process may be partially by-passed or over-ridden.   Nor should  it  be overlooked that the courts retain a discretion to stay or dismiss a prosecution should an abuse of process emerge at a later stage.

[51]     But this Court would be failing in its duty if it did not review the evidence presented to make a preliminary assessment of its strength and sufficiency to ensure it is proper to grant leave and that the prosecution is brought in good faith.   It is reasonable to infer this was one of the reasons why Parliament provided that the respondent is to be given notice of an application for leave and the opportunity to be heard.

[52]     If there were obvious evidential or legal flaws in the case it would not be proper to grant leave.  That could arise, for example, if there were a misconception of the legal elements necessary to establish the offence; an obvious and material gap in the evidence; or substantial reliance on evidence that is inadmissible.

[53]     In the end, it is not desirable to lay down firm guidelines because to do so could risk fettering judicial discretion.   While there must be something more than “reasonable grounds to suspect” (which is a standard more properly applicable to earlier investigatory stages), the evidence need not be “sufficient to put the defendant on his trial” (which is the standard required for the later committal stage).  All the evidence presented on both sides is to be considered and objectively assessed.  The onus is on the applicant to demonstrate there are proper grounds for the grant of leave.   That assessment is to be made against the background that the prosecution must, at trial, prove the alleged offence beyond reasonable doubt.  But proof to that standard is not required at the leave stage.

[54]     The Court would not confine itself to a review of the strength and sufficiency of the evidence.   I accept it would be appropriate to take into account wider considerations.   It is common ground the applicant must satisfy the Court the prosecutions are being brought in good faith; that there is no improper or collateral

purpose involved; and that no improper pressure has been brought to bear on the investigation of the alleged offences or on the decision to prosecute.

[55]     The Court will need to consider the seriousness of the allegation and whether the public interest requires a prosecution in the circumstances of the case (see by analogy the Prosecution Guidelines issued by Crown Law at paragraph 3).   But unlike the criminal libel cases, an allegation of corruption against  a Minister or Member  of  Parliament  (except  where  it  can  truly  be  regarded  as  trivial)  will ordinarily be treated very seriously since, if established, corruption and bribery strike at the heart of good governance and compromise the integrity of the Executive and Parliament.   The maintenance of a system of government free from corruption or bribery must be viewed as being of the highest importance.

[56]     Matters   such   as   these   must   all   be   weighed   along   with   any   other considerations relevant to the particular case.

Process

[57]     The  applicant  has  filed  an  extensive  affidavit   describing  the   inquiry conducted by Dr N W Ingram QC and his subsequent  report; the investigations conducted by the police and the basis for the applicant’s belief as to the sufficiency of the evidence for the purposes of prosecution.  The affidavit also produces briefs of evidence in respect of the key prosecution witnesses and a transcript of a lengthy interview of the respondent.  The police have also agreed to provide full disclosure to the respondent of other documents and information as noted in [43] above.

[58]     It is possible that the applicant may wish to file further affidavits in the light of this decision and it is appropriate that the respondent be given the opportunity to file affidavits in response should he wish to do so.

[59]     A tentative date for consideration of the application for leave has been made for Thursday 26 July 2007 at 10 am.  The Registrar is directed to arrange a telephone conference with counsel as soon as convenient to ascertain whether that date is still appropriate and to establish a timetable for the filing of affidavits and submissions.

A P Randerson, J Chief High Court Judge