OY v Assessors HC Auckland CIV-2009-404-005165
[2010] NZHC 806
•30 March 2010
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2009-404-005165
BETWEEN "OY" Plaintiff
AND THE ASSESSORS First Defendant
AND COMPLAINTS HEARING COMMITTEE Second Defendant
AND JUDICIAL COMMISSION (AS APPOINTED BY THE COUNCIL OF ASSEMBLY OF THE PRESBYTERIAN CHURCH OF AOTEAROA NEW ZEALAND)
Third Defendant
AND PRESBYTERY OF AUCKLAND (FORMED BY THE GENERAL ASSEMBLY OF THE PRESBYTERIAN CHURCH OF AOTEAROA NEW ZEALAND)
Fourth Defendant
Hearing: 19 February 2010
Appearances: Colin Pidgeon QC for Plaintiff
Christine Gordon SC and Gareth Kayes for Fourth Defendant
Judgment: 30 March 2010
JUDGMENT OF HARRISON J
In accordance with R11.5 I direct that the Registrar endorse this judgment with the delivery time of
3:00 pm on 30 March 2010
SOLICITORS
Kenton Chambers (Auckland) for Plaintiff
Meredith Connell (Auckland) for Fourth Defendant
COUNSEL
CR Pidgeon QC
"OY" V THE ASSESSORS AND ORS HC AK CIV-2009-404-005165 30 March 2010
Introduction
[1] The Presbyterian Church of Aotearoa New Zealand is subject to a comprehensive constitution including a set of rules for the investigation and determination of complaints of breaches of discipline. The Church appointed assessors to investigate complaints of sexual misconduct made by one of its female assistant ministers against a male minister following her complaint to the police about the same behaviour. The minister was later acquitted at trial in the District Court on charges of sexual violation and indecencies. The assessors then resolved to lay three charges of "grave impropriety of conduct" against him.
[2] The minister now applies by way of judicial review to restrain a complaints hearing committee from determining the charges laid by the Church. His counsel, Mr Colin Pidgeon QC, says the hearing will be an abuse of process given the acquittals and what Ms Christine Gordon SC for the Church acknowledges is a factual congruity between the criminal and disciplinary proceedings. Mr Pidgeon's proposition may seem surprising given that its constitution expressly empowers the Church to proceed with a disciplinary hearing against a minister who has been acquitted on a criminal charge of sexual misconduct. Nevertheless, Mr Pidgeon relies in support upon Z v Dental Complaints Assessment Committee [2009] 1 NZLR
1 (SC) and this case raises important issues about the decision's applicability to the
Church's disciplinary process.
[3] Both the minister and the complainant are Korean nationals, giving rise to a secondary issue about the Church's constitutional obligation to appoint a representative of the Korean community to the complaints hearing committee.
Background
[4] The complainant, AB, arrived in New Zealand in June 1997. She was appointed to act as an assistant minister at the Korean Presbyterian Church at St David's Presbyterian Church in Auckland. OY, the plaintiff in this proceeding, was the minister and her immediate superior.
[5] AB complained to the New Zealand Police in May 2006 that OY had subjected her to sexual abuse between 1997 and 2004. She made a similar complaint to the Presbytery of Auckland in July 2006. The Church then set in train its complaints process but suspended it at OY's request pending determination of his criminal proceedings.
[6] OY was tried before a Judge and jury in the District Court at Auckland in October 2007 on four counts of indecent assault of AB, five counts of rape, and one count of assault with intent to commit sexual violation. The trial was essentially a contest between the credibility and reliability of AB and OY who each gave evidence. OY's primary defence was a denial of any sexual relationship with AB. Thus issues of consent did not directly arise. The trial lasted for about 10 days. Mr Pidgeon advises that the jury deliberated for less than 15 minutes before acquitting OY on all counts.
[7] The Church resumed its disciplinary investigation following conclusion of the criminal trial. The relevant procedures are set out in the Church's constitution, The Book of Order: Rules and Forms of Procedure of the Presbyterian Church of Aotearoa New Zealand (February 2003) (the Book of Order), Appendix E-9. The Church's first step was to appoint three assessors: Appendix E-9, clause 5.6. They considered AB's written complaint, OY's response and AB's reply before deciding on
11 December 2007 that the complaint was of a nature which justified laying charges before a complaints hearing committee. The assessors concluded that "the complaint covers issues wider than those dealt with in the criminal trial and [the Church] has different standards of conduct than those addressed under the Crimes Act 1961".
[8] The Convenor and Deputy Convenor of the Council of Assembly and the Assembly Executive Secretary of the Church were then required to and did appoint a complaints hearing committee drawn from a panel of persons whose membership was maintained by the Council of Assembly: clause 6.1. The Presbytery of Auckland, formed by the General Assembly of the Church, filed three charges with the committee on 7 April 2008 which scheduled a two week hearing to commence on
24 September 2008. The Supreme Court delivered its judgment in Z on 25 July
2008. OY applied to the committee on 17 September 2008 to strike out or stay its
proceedings. The substantive hearing scheduled for a week later was adjourned pending determination of OY's application.
[9] There was a great deal of activity for the balance of 2008, culminating in a resolution by the Presbytery to refer four questions to a specially constituted Judicial Commission to whom the General Assembly is able to delegate its powers: Reg 460. The validity of the resolution is not in issue here. The Presbytery's purpose was to obtain advice on whether it was an abuse of process to continue the disciplinary procedure in the light of the decision in Z. A Commission was convened under the chairmanship of Sir Rodney Gallen QC, a retired Judge of this Court.
[10] The Commission ruled on 28 April 2009 that the assessors and the committee had not committed an abuse of process by invoking the disciplinary procedure. Further issues arose before OY applied to this Court for judicial review of the Church's decisions, citing the assessors, the complaints hearing committee, the Commission and the Presbytery successively as defendants. OY maintained his argument that the proceeding was an abuse of process and sought interim relief. In a comprehensive oral decision, Asher J stayed the hearing of the disciplinary charges pending a substantive determination of OY's application in this Court on the ground that the Church had arguably failed to discharge its obligation to appoint a Korean member of the complaints hearing committee: OY v The Assessors & Ors HC Auckland, CIV-2009-404-005165, 27 August 2009.
[11] However, Asher J was not apparently impressed by OY's abuse of process argument, and Mr Pidgeon takes particular issue with his observation that:
[21] It is not necessary for me to express any final view on the application of Z v Dental Complaints Assessment Committee to the present complaints. However, given the basic distinction which appears to exist between the lack of any authority given to the Dental Complaints Assessment Committee to consider charges where there had been previous acquittals in a Court of law, and the express power in rule 3.3 of Appendix E-9 given to the Complaints Hearing Committee, the submission that these charges are an abuse of process must be categorised at this stage as weak.
[12] Ms Gordon submits that the Church entities were not exercising a "statutory power" but one conferred by the Book of Order; and that the Church is not a body corporate: ss 3 and 4 Judicature Amendment Act 1972. However, she concedes that
the High Court retains an inherent jurisdiction to review public power and thus to hear OY's application to review: Royal Australian College of Surgeons v Phipps [1999] 3 NZLR 1 (CA) at [11]-[12]. I am exercising jurisdiction on that concession without deciding the point.
Charges
[13] The first two of the three charges laid by the Presbytery are divided by time. The first alleges that between 4 June 1997 and 29 October 2000 and "while in a relationship of pastoral care and spiritual guidance as a minister", OY "was guilty of grave impropriety of conduct [under Reg 474] in that he committed various acts of sexual misconduct" against AB particularised as (1) touching her on the leg; (2) touching her on the breasts; (3) kissing her; (4) hugging her; and (5) having sexual intercourse with her. The charge does not allege indecent assault or sexual violation, and consent or a reasonable belief in its existence are not elements.
[14] The Crown had charged OY with four counts of indecent assault under the Crimes Act 1961, corresponding with particulars (1)-(4) of the first charge laid by the Church. The fifth, sixth, seventh, eighth and ninth counts charged OY with rape, again under the Crimes Act, on various dates between June 1998 and December
2000 at various locations including an office, a car and in two separate hotels, corresponding with particular (5) of the first charge.
[15] The second charge alleges that between August 2004 and October 2004 OY was guilty of the same impropriety of conduct by touching AB and attempting to have sexual intercourse with her. The tenth and final count in the criminal proceedings alleged that OY assaulted AB in October 2004 with intent to commit sexual violation, apparently corresponding with the second charge.
[16] The third charge alleges that between June 1997 and December 2004 OY was guilty of the same offence in that he "abused [AB] physically, verbally and emotionally, and was exploitative of her".
[17] The three charges were laid by the Presbytery pursuant to specific regulations found in the Book of Order, chapter 10, dealing with Church discipline as follows:
471Discipline is an ordinance appointed by the Lord Jesus Christ, as King and Head of the Church, to be applied within the spiritual province of the same, and administered by those appointed to rule in the Church.
472The ends contemplated by discipline are the glory of God, the purity of the Church and the spiritual good of her members.
473The subject of disciplines are ministers and other office bearers, communicants and adherent members who have arrived at the years of discretion.
474The ground of discipline is a sin or offence of the nature either of doctrinal error or of grave impropriety of conduct especially when, on account of its publicity, the sin of offence is a scandal and is calculated to bring a reproach on religion. In the case of an offence which has not created scandal, brought under the notice of a judicatory, the ends of discipline may frequently be obtained by private admonition, counsel and proof.
[18] Procedures for investigating complaints of sexual misconduct "… including sexual abuse, sexual harassment and any other improper breach of the pastoral relationship" are specified: Appendix E-9. The rationale is that: clause 1.2:
The Church, like society generally, recognises the special relationship between Churchworkers and those with whom they come into contact. Churchworkers have a responsibility towards the spiritual, emotional, and sometimes physical, wellbeing and protection of persons who come to them for help, their families and whanau, and persons with whom they have a relationship of trust and care. Breach of this special relationship is regarded by the Church as unethical and improper.
[19] "Sexual misconduct" is defined as follows: clause 2.1:
'Sexual misconduct' includes any form of sexual behaviour or attention which is offensive or unwelcome to the person who receives it and/or is repeated or of a significant nature. [...] It can include a breach of the pastoral relationship which may be, have been, or have appeared to be, consensual but which, by virtue of the pastoral relationship, the Church deems improper. 'Sexual misconduct' includes sexual abuse and sexual harassment but is not limited to that. Sexual misconduct includes any direct or indirect request of another person for sexual intercourse, sexual contact, or other form of sexual activity that contains:
• an implied or overt threat of some form of detriment; or
• an implied or overt promise of some form of benefit; or
•an implied or overt threat about the present or future status of the person or any other person related in any way to the person.
[Emphasis added]
Z v Dentists Disciplinary Committee
[20] It is appropriate to say something about Z at this juncture. The majority (Blanchard, Tipping and McGrath JJ) held that it was not an abuse of process for a dental complaints assessment committee to refer to a disciplinary tribunal a charge against a practitioner of professional misconduct by administering excessive or inappropriate levels of sedation to patients. The particulars related to female patients who had earlier complained to the police of indecencies committed while under sedation: at [88]-[92]. The dentist was acquitted of all four charges laid by the police following a trial before a Judge and jury in the District Court. Elias CJ took the dissentient view that it would undermine the jury verdict and unfairly bypass "the proper processes for establishing criminal responsibility" if the tribunal heard the charge in those circumstances: at [74]. The fifth member, Anderson J, largely supported the majority's reasoning.
[21] The threshold point of division in Z related to the standard of proof. The majority and Anderson J favoured the civil standard of the balance of probabilities, to be applied flexibly "according to the seriousness of the matters to be proved and the consequences of proving them": at [112]. In the Chief Justice's opinion the criminal standard of proof beyond reasonable doubt should be applied "at least where the charges are serious or entail conduct which is criminal": at [48]. The majority observed:
[105] The natural tendency to require stronger evidence is not a legal proposition and should not be elevated into one. It simply reflects the reality of what judges do when considering the nature and quality of the evidence and deciding whether an issue has been proved to “the reasonable satisfaction of the tribunal”. A factual assessment has to be made in each case. That assessment has regard to the consequences of the facts to be proved. Proof to a tribunal’s reasonable satisfaction will, however, never call for that degree of certainty which is necessary to prove a matter in issue beyond reasonable doubt.
[22] Significantly, the Church's constitution defines the standard of proof to be applied by a complaints hearing committee as follows: clause 6.4:
In determining whether or not a respondent is guilty or not guilty on any particular charge, the Complaints Hearing Committee shall determine the matter on the balance of probabilities. Where the subject matter of the complaint is of a serious nature, then guilt must be established to a sufficiently high degree of probability, which is as convincing in its nature as the charge is grave. This is not proof beyond reasonable doubt. However, the difference between the criminal standard (of proof beyond reasonable doubt) and the civil standard (proof on the balance of probabilities) diminishes in this context with the seriousness and/or criminality of the conduct complained of.
[23] Ms Gordon is correct that there is no material difference between the majority's formulation of the appropriate standard of proof in Z in disciplinary proceedings and the Church's own definition of the standard to be applied by the complaints hearing committee.
Abuse of Process
[24] The majority in Z defined an abuse of process as arising in one of these two alternative ways:
[119] An allegation of abuse of process in the public law context is in essence a complaint that discretionary power has been exercised in a way which falls outside the scope of the authority conferred by Parliament, or for a purpose for which the power was not conferred.
[Emphasis added]
[25] By reference to the first alternative, the assessors and complaints hearing committee appointed by the Church do not derive their authority from an act of Parliament, unlike the dental complaints assessment committee and the tribunal in Z. Instead, that authority is conferred by the constitution, the Book of Order, which is a full set of rules designed to regulate the Church's relationship with its ministers and members. It is plainly within the scope of that authority for the assessors to lay and the committee to hear charges of sexual misconduct. Mr Pidgeon does not suggest otherwise. Significantly, the authority expressly extends to a discretionary power to investigate or prosecute a complaint based on the same facts as a criminal prosecution despite an acquittal: Appendix E-9, clause 3.3:
If the respondent has been acquitted in a court of law of any criminal charge relating to sexual misconduct the Church may, in its discretion, investigate and/or prosecute a complaint concerning the same matter under these procedures.
[26] By reference to the second alternative, the purpose for which the power to hear the charge was conferred is expressly one of Church discipline. However, Mr Pidgeon submits that the committee will still be abusing its process by hearing the charges, relying on this passage from Z (which Ms Gordon characterises as obiter):
[133] Nevertheless, there will be some situations in which it would be an abuse of a Complaints Assessment Committee’s discretionary power to refer allegations of aberrant conduct by a practitioner to the Tribunal because the scope of a disciplinary inquiry would simply replicate the exercise that a criminal court has undertaken, where that process has resulted in an acquittal. Bodies such as the respondent must be careful not to permit their processes to be used simply as a reserve means of punishing conduct of a criminal nature after criminal proceedings have been unsuccessful. Subject to one qualification, that is not, however, the present case.
[Emphasis added]
[27] While the first sentence of this passage from Z focuses on a misuse of the scope of the power, the succeeding highlighted sentence imports a misuse of its purpose. The two concepts are different, as the earlier passage at [119] explains, but they are necessarily interdependent and the permissible scope must ultimately be governed by the purpose of the power. I construe the majority's statement as a warning against allowing a disciplinary process to be abused, in the ordinary sense of that word, where its purpose would be solely ('simply') punitive, in effect as a surrogate for a failed prosecution. And the hypothetical situation mooted in Z is unlikely to occur very often in the Church disciplinary environment. That is because Church bodies do not exercise their disciplinary powers "as a reserve means of punishing conduct of a criminal nature" but for the distinctively different purpose of protecting their members.
[28] This view is reinforced when the statement in Z at [133] is read in its context, following the majority's earlier discussion about the distinction between criminal proceedings and the disciplinary process: [127]-[132]. In summary the majority stated:
(1)The function of the criminal justice system is to determine whether a person has committed a crime and if so to punish, and the integrity of that process would be offended by allowing further proceedings "of the same nature" to continue "in a different forum": at [127];
(2)However, while disciplinary proceedings are conducted in a different forum, they are not of the same nature as the criminal process because the purposes are materially different. The purpose of the disciplinary process is to determine whether a professional has "met appropriate standards of conduct", where the protection of the public is the central focus: at [128]. The disciplinary process, among other things, is of an inquisitorial nature; the standard of proof is different; and the tribunal includes other professionals: at [129];
(3)In a criminal proceeding the jury must decide if all elements of the criminal charge are proven beyond reasonable doubt, whereas the question for the tribunal is whether or not the professional is guilty of grave impropriety by committing acts of misconduct, considered from the viewpoint of a patient's welfare: at [130];
(4)In the particular case before the Court in Z, the Dental Act 1988 did not address the disciplinary consequences where the conduct under investigation resulted in an acquittal "because an acquittal in itself will not reflect adversely on fitness to practice": at [131].
[29] As the majority concluded in Z:
[132] Taken together, these considerations do, however, signal the importance of the public interest served by the disciplinary process and the difference in nature of that process from criminal justice. These are clearly important policy factors in addressing the abuse of process issue in this case. They tell strongly against the proposition that the initiation of disciplinary proceedings, for the intended statutory purpose, is an abuse of process even if they include the same allegations as those in earlier criminal proceedings which resulted in an acquittal.
[30] It could not be said, according to the principles explained by the majority in Z
at [119]-[132], that it would be an abuse of the Church's disciplinary process for the
complaints hearing committee to hear the three charges laid against OY. The proposed inquiry falls squarely within the scope and purpose of the Church's constitutional powers. What then is the effect, if any, of the succeeding passages in Z at [133] onwards? Mr Pidgeon does not identify an abuse of a particular power, other than submit that the scope of the Church's intended disciplinary inquiry will replicate the criminal proceeding: see Z at [137].
[31] In my judgment the answer to this question is found in the carefully drafted rules set out in the Book of Orders, bearing in mind their purpose and the necessary scope of any inquiry under them. The rules are designed to regulate the Church's relationship with its ministers and members; as the Statement records, they are intended "to guard the interests of individuals and on the one hand to protect the peace and wellbeing of the church and its Congregations". The constitution establishes a Code of Ethics in Pastoral Care, which the General Assembly encourages its Church workers including ministers to adopt as minimum standards of practice. The code is a statement of the high standards of conduct expected by the Church of its members who undertake the work of pastoral care in its name, which involves the formation of special relationships characterised by "openness and trust". Among them are the responsibilities imposed on ministers not to "abuse their position by taking advantage of people for personal, financial or institutional gain" and to "recognise that sexual intimacy in the pastoral situation is unacceptable".
[32] The code itself provides the ethical backdrop to the sexual misconduct procedures discussed at [18] and [19] above, reinforcing the constitution's own particular standards for the ends of the "glory of God, the purity of the Church, and the spiritual good of its members". Its ethical concerns are plainly broader than the criminal law, and the express prohibition on sexual intimacy within the pastoral relationship shows that the Church is entitled to hold its ministers to higher moral standards than those giving rise to culpability for sexual offences under the criminal law. Thus the investigation of complaints of sexual misconduct may include: Appendix E-9:
Sexual abuse, sexual harassment or any other improper breach of the pastoral relationship.
[Emphasis added]
[33] Also, the nature of the charges themselves reflects the Church's broader moral and ethical concerns. In conformity with the prohibition upon sexual intimacy in a pastoral relationship, "sexual misconduct" mandates an inquiry that is potentially broader than criminal proceedings. The charges rely as framed on proof of prolonged sexual acts, and not necessarily on any degree of force, threat or duress. While that factor may fall within the definition of "sexual misconduct" and is essential to proof of the crimes of rape or indecent assault within the ambit of a lack of consent or of a reasonable belief in its existence, it is not an element of these charges.
[34] That point of distinction between the two processes is also critical. The charges are not "in all respects identical to the charges which resulted in an acquittal": compare Z at [134]. And it is neither necessary nor permissible to speculate on the extent to which the requirement to prove lack of consent or reasonable belief in its existence influenced the jury's verdict to acquit: Z at [124].
[35] As the majority noted in Z:
[126] There is no rule of law that prevents inquiry into some of the essential facts in issue in a criminal trial where they are relevant to an accusation of a different character. Where an element of a criminal charge was not necessarily resolved in the criminal process, and could found a finding of unprofessional conduct, it is not in principle an abuse of process for a later disciplinary inquiry to examine that element.
[36] Thus the scope of the Church's inquiry will not "simply replicate the exercise that the criminal court has undertaken": compare Z at [137]; it will incorporate all the features of difference from the criminal process - it will be inquisitorial, the standard of proof is different, and the power of determination is to be exercised by a group appointed from within the Church.
[37] However, what is determinative is my satisfaction that the Church is not permitting "its processes to be used as a reserve means of punishing conduct of a criminal nature": Z at [133]. The purpose of this proceeding is not to punish but to protect Church members from "grave impropriety of conduct". This difference of purpose was decisive in Parsons v Attorney-General [2009] NZAR 537 where Clifford J held that it was not an abuse of process for the Commissioner of Police to
conduct disciplinary proceedings against officers who had been acquitted of criminal charges relating to the same events. The officers had been charged with assaulting a man with weapons while he was in custody. As Clifford J noted, the purpose of the police disciplinary process was distinct from that of the criminal law; it was to uphold and promote the reputation and integrity of the police and so "the Commissioner may set standards of conduct for police officers that require more - or a higher standard of conduct - than simple compliance with the criminal law": at [70].
[38] The Church's protective role in this case is more concerned with a discrete and definable group than with the general public whose interests are at risk from the misconduct of a health professional or police officer. That is because the Church itself has a unique and immediate relationship of pastoral care towards each member including an assistant minister who is under the control and guidance of her direct superior. The minister is in a general sense the Church's agent responsible for forging a spiritual bond with other Church members, in recognition of which it has seen fit to impose strict constraints designed to ensure that any imbalance is not abused. Thus even a consensual sexual relationship between a minister and another Church member is defined as sexual misconduct which may be sufficient to constitute gross impropriety and justify disciplinary sanctions.
[39] The specific constitutional recognition that an acquittal in criminal proceedings will not act as a bar to investigating and prosecuting a minister on the same facts reinforces the Church's distinctive purpose in investigating sexual misconduct: clause 3.3, Appendix E-9. This provision, far from giving rise to an abuse whenever it is invoked, demonstrates the Church's interest in addressing misconduct allegations through its own channels of redress, independent of any action taken under the criminal law. By contrast, the Dental Act, which was under consideration in Z, was silent on the consequences of an acquittal, and the majority's comments at [133] were made in this context.
[40] According to its constitution, the maintenance of trust and protection of the spiritual sanctity and purity of relationships between ministers and other members is central to Church discipline. Its community must be allowed to determine
allegations of misconduct or abuse in order to maintain the confidence in and integrity of its ministers, as representatives of God. The wider interests of a congregation also come into play. There is no principled justification for excluding the Church from investigating what it would regard as "an unethical or improper" breach in order to redress an imbalance which has occurred within a pastoral relationship. Indeed, the Church would arguably be derelict in failing to investigate further a complaint of this nature.
[41] The available forms of censure reinforce the Church's constitutional purpose of regulating its integrity and identity as a private association and community: see Chapter 10. The complaints hearing committee has power to impose various forms of censure in ascending degrees of severity, including admonition, rebuke, suppression, deposition and excommunication. Even excommunication, which is the most severe form of censure, is focused primarily on regulating the Church's membership and integrity as an association, requiring the offender's removal from the fellowship of the Church. To the extent that it exists, the punitive element is ancillary.
[42] Thus in my judgment it was not an abuse of process for the assessors to determine that the charges should be heard by the complaints hearing committee and there will be no abuse if the committee proceeds despite OY's acquittal on criminal charges relating to the same conduct. The charges brought by the Church are not "of the same nature" or "in all respects identical" to the criminal charges. The hearing to be undertaken for the discrete purpose of Church discipline would not replicate the exercise followed by the criminal law.
Complaints Hearing Committee
[43] The constitution provides: Appendix E-9, clause 6.1:
On receipt of a determination by any of the Church's Assessors, that the complaint should proceed to a hearing before a Complaints Hearing Committee, or upon receipt of a report from a Facilitator that the parties have been unable to resolve matters, the Convenor and Deputy Convenor of the Council of the Assembly and the Assembly Executive Secretary shall appoint a Complaints Hearing Committee drawn from a panel of persons
whose membership is maintained by the Council of Assembly. Such Hearing Committee shall be chaired by a member of the Presbyterian Church of Aotearoa New Zealand who has legal training, and shall include at least one man and one woman, and one member of the clergy and, if the Complainant or Respondent is of a particular ethnic group, then a representative from that group, provided however that if there is no such person on that panel for that ethnic group, the Council of Assembly may appoint a member of that ethnic group from outside the panel.
[Emphasis added]
[44] As noted, both AB and OY are Korean. A Korean member of the appropriate panel was originally appointed to the complaints hearing committee to hear these charges but then resigned. The Church has not replaced him and OY requires that the committee include a Korean member.
[45] Ms Gordon advises that the Church has attempted without success to locate an appropriate Korean national to sit on the committee. She submits that the constitution provides no guidance as to the appropriate procedure where this happens. She concedes that the requirement to appoint a Korean national appears to be mandatory, but submits that if an appropriate person cannot be appointed from the panel then the Church has a discretion on whether to appoint somebody from outside, relying on the words "the Council of Assembly may appoint a member of that ethnic group from outside the panel". She submits that, if the requirement to appoint a representative of the appropriate ethnic group is mandatory, it would result in frustration of the whole disciplinary process if an appropriate representative of the ethnic group cannot be appointed. Such an interpretation is, she says, untenable.
[46] I agree with Mr Pidgeon to the contrary. The meaning of the body of the rule is unequivocal. The complaints hearing committee convened to determine the charges against OY must include a male, a female, a member of the clergy and a Korean. The proviso vests a limited discretion in the Church to appoint a Korean member from outside the appropriate panel "if there is no such person on that panel for that ethnic group". The discretion would have to be invoked if no Korean members were available on the panel. But the discretion does not extend to allowing the Church to avoid appointment of a Korean member to the committee.
[47] In this respect I respectfully adopt Asher J's observations in OY v The
Assessors & Ors as follows:
[34] Ms Gordon argued that the word “shall” qualified only the initial phrase “include at least one man and one woman” and did not qualify “a representative from that group”. However, that would leave this part of the sentence without a governing verb and it would be meaningless. I consider that the words unambiguously require, when a complainant is of a particular ethnic group, that a representative from that group be appointed to the Complaints Hearing Committee. The final proviso does no more than give the Council of Assembly the ability to appoint such a person from outside the relevant panel.
[35] Ms Gordon submitted that it must be implied that there is an ability to waive the requirement if it is not possible to find a suitable representative from the ethnic group. This would effectively mean implying a further proviso to that effect. I do not accept that such a proviso could be sensibly implied in any event. It would have to read along the lines, “providing that if no member of the ethnic group could be located after reasonable enquiry, this requirement does not apply.” Such a qualification cannot be imputed from the context of the agreement and the practicalities do not demand it.
[36] It is easy to see why there is a requirement that someone from the particular ethnic group be appointed. Such a person can offer a particular cultural insight into the behaviour of those involved in a complaint not apparent to someone outside the ethnic group.
[37] It is not easy to see why or how this requirement should prove an insuperable obstacle to the Committee. The person does not have to come from the panel, or indeed from the Presbyterian Church. A responsible person of that ethnic group from any other Church, or indeed a person not connected to a Church, could be appointed. Mr Pidgeon observed from the bar that the ethnic group is, in New Zealand terms, a large group, and in any event judicial notice can be taken of this. It can be safely assumed that there are many responsible senior persons in that ethnic group available for a task such as this.
[38] Even if this interpretation is tested against the hypothetical situation of there being only a very small ethnic group, I consider it should be given its natural meaning, even if that obliged the Committee to go outside New Zealand to recruit an appropriate person. The purpose of the rule is to ensure that there is someone in the Complaints Hearing Committee who understands customs and practices of the particular relevant ethnic group. Given that, I conclude that the natural meaning of the rule should not be watered down.
[48] It is surprising that the Church has resorted to a strained argument of this nature in circumstances where the obligation to appoint a Korean national and its purpose are obvious, as Asher J points out. Its stance appears antithetical to the spirit and intent of its own rule. Auckland now has a large Korean community including professional people from whom it would not be difficult for the Church to
locate a number of suitably qualified individuals. I cannot help but think that the Church has overplayed its hand by arguing in terrorem that an otherwise lawful process will be frustrated by an inability to find an appropriate and qualified member of the Korean community on the appropriate panel to join the complaints hearing committee.
Result
[49] OY's application for orders reviewing the disciplinary decisions made by the Church, in particular a declaration that the charges are invalidly laid and should be quashed, is dismissed.
[50] However, I declare that the complaints hearing committee cannot hear the charges against OY unless and until it includes a Korean national and, in the event that the Church proceeds without taking that step, leave is reserved to OY to apply for further relief.
[51] The Church does not seek an award of costs, and no order is made.
Rhys Harrison J
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