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…