R v Faapoi

[2017] NZHC 1538

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-004-9701 [2017] NZHC 1538

THE QUEEN

v

FARANI JUNIOR FAAPOI

Hearing:	5 July 2017
Appearances:	B Finn for the Crown J Mather for the Defendant
Judgment:	5 July 2017

ORAL JUDGMENT OF GORDON J

Solicitors:           Crown Solicitors, Auckland

R v FAAPOI [2017] NZHC 1538 [5 July 2017]

Counsel:           J Mather, Auckland

Introduction

[1]      Farani Faapoi was employed by Serco New Zealand Ltd as a Corrections Officer at Mt Eden Correctional Facility (MCEF). The Crown alleges that he was paid to smuggle prohibited items into the prison for two prisoners, Travis Sadler and Duane Keil, and that two others, Te Here Maaka and Jenny Dufresne, were involved in the arrangements for delivery of those items.

[2]      Mr Faapoi faces six charges that, being an official, he corruptly agreed to accept a bribe for himself in respect of an act, namely the introduction of an unauthorised item into prison done by him in his official capacity, under s 105(1) of the Crimes Act 1961.   He brings an application pursuant to s 147 of the Criminal Procedure Act 2011 (CPA) for orders that the charges against him be dismissed on the basis that Mr Faapoi was not an “official”, as that term is defined in s 99 of the Crimes Act.

[3]      The Crown opposes the application.

Legal principles – section 147 of the Criminal Procedure Act 2011

[4]      Section 147(4) of the CPA relevantly provides:

(4)      Without limiting subsection (1), the court may dismiss a charge if—

…

(c)       in relation to a charge to be tried, or being tried, by a jury, the Judge is satisfied that, as a matter of law, a properly directed jury could not reasonably convict the defendant.

[5]      The outcome of the s 147 application in this case turns upon a question of law. Mr Faapoi contends that he is not an “official” within the terms of the Crimes Act.  If that submission is correct in law, it follows that a properly directed jury could not reasonably convict Mr Faapoi under s 105 of the Crimes Act.

Discussion

[6]      Section 105(1) of the Crimes Act provides:

105     Corruption and bribery of official

(1)       Every official is liable to imprisonment for a term not exceeding 7 years  who, whether within New  Zealand  or  elsewhere, corruptly accepts or obtains, or agrees or offers to accept or attempts to obtain, any bribe for himself or herself or any other person in respect of any act done or omitted, or to be done or omitted, by him or her in his or her official capacity.

[7]      An “official” is relevantly defined to mean “any person in the service of the

Sovereign in right of New Zealand”.1

[8]      Mr Mather, for Mr Faapoi, makes the simple submission that Mr Faapoi, being an employee of Serco, was not an official for the purposes of s 105. He annexes to his submissions a copy of a letter dated 25 August 2014 to Mr Faapoi on Serco letterhead, which commences:

We are pleased to offer you employment as a Corrections Officer with Serco

New Zealand Limited (“the company”) based at Mt Eden Corrections Facility.

[9]      It is common ground that at the time of the alleged offending MECF was operated by Serco and the Crown accepts that Mr Faapoi was employed by Serco rather than by the Department of Corrections.

[10]     The issue which this Court must determine is whether Mr Faapoi, a Corrections Officer employed by Serco, is a “person in the service of the Sovereign in right of New Zealand”.  This is an issue of statutory interpretation.  The meaning of the enactment must be ascertained from its text and in the light of its purpose.2

[11]     I turn first to the text of the enactment.  The phrase “person in the service of the Sovereign in right of New Zealand” is not defined in the Crimes Act; nor is the phrase defined in the State Sector Act 1988, which deals more generally with matters relating to the public service.  However, the Crimes of Torture Act 1989 helpfully

provides as follows:

1      Crimes Act 1961, s 99, definition of “official”.

2      Interpretation Act 1999, s 5; see also R v Karpavicius [2004] 1 NZLR 156 at [15].

public official means—

(a)       any person in the service of Her Majesty in right of New Zealand, including—

(i)       a member of any of the Armed Forces of New Zealand; and

(ii)      a judicial officer and a law enforcement officer within the meaning of Part 6 of the Crimes Act 1961; and

(iii)     an officer within the meaning of the Corrections Act 2004;

and

(iiia)    a security officer within the meaning of the Corrections Act

2004; and

(iv)     a member and an employee of any local authority or public body; …

…

[12]     This definition is helpful, for two reasons.  The first, more general reason is that this definition shows that the categories of persons who can be said to be “in the service of Her Majesty [the Sovereign] in right of New Zealand” extend beyond those employed in the executive branch of government.  Judges, for example, are included in the list as being persons “in the service of Her Majesty [the Sovereign] in right of New Zealand”.   Rather, the characteristic which each of the persons listed in this definition shares is that they each exercise, in one form or another, the power of the State.

[13]     The definition is also helpful for a second, more specific reason. According to this definition, “an officer within the meaning of the Corrections Act 2004” is a “person in the service of Her Majesty [the Sovereign] in right of New Zealand”.  The Corrections Act defines an “officer” as follows:3

officer—

(a)       means—

(i)       the manager of a prison:

(ii)      any person appointed or engaged under section 11 to provide custodial services in respect of a prison:

…

3      Corrections Act 2004, s 3, definition of “officer”.

[14]     Section 11 of the Corrections Act relevantly provides:

11       Prison manager and other staff of prisons

…

(2)      For every contract prison, the contractor must appoint— (a)         a suitable person as prison manager; and

(b)      as many other suitable persons as are required as employees.

[15]     It is clear from these provisions that Mr Faapoi, as an employee of Serco, is an “officer” within the meaning of the Corrections Act 2004 and therefore falls within the category of persons said to be “in the service of Her Majesty [the Sovereign] in right of New Zealand” for the purposes of the Crimes of Torture Act.

[16]     There is nothing to indicate that the phrase “in the service of the Sovereign in right of New Zealand” under s 99 of the Crimes Act should bear a different meaning from that incorporated into the Crimes of Torture Act.  Accordingly, the text of the enactment favours the interpretation put forward by the Crown.

[17]     The purpose of the enactment must also be considered.

[18]     There is a previous instance of a Corrections Officer being prosecuted under s

105 of the Crimes Act.4  Mr Mather, who appears on behalf of Mr Faapoi, accepts that the definition of an “official” under s 99 would apply to a person employed as a Corrections Officer by the Department of Corrections.

[19]     The Corrections Act makes provision for the management of prisons under contract.  Section 198(1) provides:

198     Management of prisons under contract

(1)       The chief executive may from time to time, in the name and on behalf of the Crown, enter into a contract with any other person for the management, by that other person, of a corrections prison.

…

[20]     Section 199AA provides for the delegation of powers and functions of the

Chief Executive to a contractor:

199AA Delegation of powers and functions of chief executive to contractor

(1)       Without limiting sections 41 and 42 of the State Sector Act 1988, but subject to section 10 of this Act, the chief executive may delegate to a contractor or an employee of a contractor, either generally or particularly, any of the functions or powers of the chief executive under this Act.

(2)       Subject  to  any  general  or  special  directions  given  or  conditions imposed by the chief executive, a contractor or an employee of a contractor to whom any functions or powers are delegated may perform those functions or exercise those powers in the same manner and with the same effect as if they had been conferred directly by this Act and not by delegation.

…

[21]     Contractor is defined to mean “a person who is a party to a prison management contract under which that person is to manage a prison”.5

[22]     I accept the Crown submission that in performing prison management services, Serco employees were in the same position as Corrections Officers employed by the Department of Corrections.  Accordingly, Mr Faapoi was exercising the powers and functions of the Chief Executive in a manner that was no different from Corrections employees themselves.  It would be contrary to public interest if the employees of a private company operating under a prison management contract were treated differently, for the purposes of s 105 of the Crimes Act, from Corrections Officers employed directly by the Department of Corrections.

[23]     I am accordingly satisfied that Mr Faapoi is an “official” within the terms of ss

99 and 105 of the Crimes Act.

Result

[24]     Mr Faapoi’s application for dismissal of the charges against him pursuant to s 147 of the CPA is dismissed.

Gordon J