R v Hutt

[2012] NZHC 593

THIS JUDGMENT IS NOT TO BE PUBLISHED UNTIL FINAL DISPOSITION OF THE TRIAL OR EARLIER ORDER OF THE COURT. THIS PUBLICATION RESTRICTION DOES NOT APPLY TO THE FACT OF THE APPLICATION AND THE RESULT, AS SET OUT IN [4]. IT ALSO DOES NOT APPLY TO LEGAL REPORTS.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2011-085-4011 [2012] NZHC 593

THE QUEEN

v

GREGORY ALEXANDER HUTT

Hearing:         15 March 2012

Counsel:         G Burston for the Crown

D Stevens QC for the Accused

Judgment:      30 March 2012

JUDGMENT OF MALLON J

Contents

Introduction ....................................................................................................................................... [1] The committal evidence .................................................................................................................... [5] The charges ...................................................................................................................................... [20] Evidence that Mr Hutt had an intent to influence Mr Mason? ................................................... [23] Does s 105 cover a “bribe” made after the acts by the official in his official capacity? ............ [35] Other applications ........................................................................................................................... [52] Publication restriction..................................................................................................................... [54]

Admissibility of evidence relating to “loan”.................................................................................. [55]

R v HUTT HC WN CRI 2011-085-4011 [30 March 2012]

Introduction

[1]      Mr Hutt applies for a discharge under s 347 of the Crimes Act on two of four counts on which he is to be tried.   The charges relate to a Whangarei property development carried out by Mr Hutt’s company.  The property was purchased by Mr Hutt’s company following discussions with the then national property manager of Accident Compensation Corporation (“ACC”) (Mr Mason), and in anticipation of obtaining an agreement from ACC to lease the property.  Once the development was completed and the lease agreement in place, Mr Hutt sold the property at a profit. He paid $160,000 from that profit to Mr Mason.

[2]      For his part, Mr Mason pleaded  guilty to charges of corruptly disclosing information and accepting $160,000 from Mr Hutt.  He was sentenced in March this year. The four counts which Mr Hutt faces are:

(a)      Corruptly agreeing to give a bribe to a public official with intent to influence that official (section 105(2) Crimes Act 1961).

(b)Corruptly giving a bribe to a public official with intent to influence that official (section 105(2) Crimes Act 1961).

(c)      Corruptly making a gift to an agent as a reward for having shown favour in relation to the principal’s business (section 3(1) Secret Commissions Act 1910).

(d)      Attempting to pervert the course of justice (section 117(1)(e) Crimes

Act 1961).

[3]      Mr Hutt applies for a discharge under s 347 of the Crimes Act on the first two counts.  The application on both counts is on the basis that there is no evidence that the payment of $160,000 (the alleged “bribe”) was made with intent to influence Mr Mason  (the  official).    It  is  said  that  it  was  Mr Mason  who  instigated  the transaction and the actions of Mr Mason (recommending to his superiors that ACC

lease the property) would have been carried out even without the payment.   An application for a discharge on count two is also made on the basis that the payment was  made  after  Mr Mason  recommended  the  lease  to  his  superiors  and  so  that payment could not have been made with an intent to influence the official.  Mr Hutt says that the proper charge on the alleged facts is the third count.

[4]      For the reasons that follow I dismiss the s 347 application.

The committal evidence

[5]      There were 11 witnesses for the prosecution at the preliminary hearing in respect of Mr Hutt.   The witnesses included Mr Mason, who gave his  evidence orally.  It is his evidence that is relevant for the purposes of the present application. The  following  description  of  the  arrangement  between  Mr Mason  and  Mr Hutt comes from Mr Mason’s evidence at the preliminary hearing.

[6]      The evidence was that, from time to time, it was necessary for ACC branches to establish new premises.  Once a need for new premises was established, one of Mr Mason’s responsibilities was to locate a suitable site.   Mr Mason’s role was “reasonably autonomous”.  Once he had located a suitable site he would report back and make recommendations to the relevant General Managers.

[7]      In 2005 the premises housing the ACC branch office in Whangarei failed an audit and was considered to be unsuitable.   Mr Mason looked for an alternative location and reached the view that a new building would have to be constructed. Mr Mason found a site centrally located in Whangarei, where a building could be constructed to meet ACC’s requirements.

[8]      Mr Mason  did  not  enquire  with  the  owner  as  to  whether  it  would  be interested in developing the site.   Instead he discussed the development with two people he had known and dealt with for a number of years.  One of those two people was Mr Hutt.  The other was a developer Mr Mason had worked with on premises in Nelson.      Mr Mason   sent   the   Nelson   developer   details   about   the   potential development in Whangarei by email on 13 February 2007.   Mr Mason’s evidence

was that the Nelson developer was very interested in undertaking the development but Mr Mason did not take it further with him once he had reached an agreement with Mr Hutt.

[9]      Mr Mason and Mr Hutt had known each other from about 2000.  They met in a professional capacity through Mr Hutt’s company being the successful tenderer on a number of ACC premises’ fit outs.  They became friends and used to meet quite regularly for drinks on a Monday night.  Mr Mason’s evidence was that it was on one of those Monday night get togethers that Mr Mason first told Mr Hutt about the development  opportunity  in  Whangarei.    Mr Mason  had  initiated  the  idea  and Mr Hutt expressed an interest in it.

[10]     Mr Mason’s evidence at the preliminary hearing was not precise about what was said at what particular time.  However there was evidence that Mr Mason sent Mr Hutt an email on 19 February 2007 enclosing details about the site.  This email contained no covering message.   Mr Mason said that there were discussions with Mr Hutt both before and after sending Mr Hutt this email.   His evidence at the preliminary hearing was that the discussions with Mr Hutt were that Mr Mason had identified a site, that Mr Hutt could purchase the site, that Mr Mason could get the development approved by ACC and a lease signed and that Mr Mason would receive some sort of payment from Mr Hutt for that.

[11]     As to the amount of payment Mr Mason would receive, Mr Mason said “we sort of discussed it on occasion  ... we didn’t really dwell on it because it was implicit.”  Mr Mason said that he expected to receive “a fair share ... of the profit”, which  he  thought  would  be  about  half  the  profit  and  would  be  “in  excess  of

$100,000”.  The discussion “was [along] the lines of once that we’ve got this over the line, he’d sort me out”.  Mr Mason “left the decision of how much and when to Mr Hutt”.

[12]     On 20 March 2007 Mr Hutt’s company entered into an agreement to purchase the property.  On 4 April 2007 Mr Mason provided Mr Hutt, by email, a copy of the site and location plan as designed by the ACC architect.   As with the earlier 19

February 2007 email there was no cover message with this site and location plan.

On 7 May 2007 the agreement to purchase the property was unconditional.  On 8

May 2007 Mr Mason sent Mr Hutt an offer to lease the property conditional on ACC approval being obtained by 18 May 2007.   Mr Hutt’s company sought a capital contribution  from  ACC  for  the  development.     Mr Mason  confirmed  ACC’s agreement to this contribution.

[13]     By  memorandum  dated  23  May  2007,  and  sent  to  Mr Mason’s  General Managers on 24 May 2007, Mr Mason sought approval for ACC agreeing to go unconditional on the lease for the building.  Mr Mason’s memorandum set out why the  property  was  suitable.    Mr Mason  said  in  the  memorandum  that  following negotiations  with  the  developer  “we  have  now  achieved  a  position  that  our contracted property valuer endorses as a fair market value deal for ACC”.  In fact the valuer had not been asked to provide a fair market value for this property.  Later in the day on 24 May 2007, Mr Mason received an email response to his memorandum which advised that the lease was approved.  The agreement to lease was executed on

28 November 2007.

[14]     Meanwhile, in July 2007 Mr Hutt contacted a real estate agent enquiring whether the agent could sell the property if he had a tenant arranged.  The real estate agent confirmed that the property could be sold, and Mr Hutt asked the agent to discreetly approach potential purchasers.   In March 2008 the real estate agent put together a package for potential investors in the property, with the lease with ACC in place.   On 1 May 2008 a sale and purchase agreement was entered into with a purchaser, with settlement to occur after the property had been developed and the lease had come into effect.

[15]     On 1 July 2009 the settlement of the sale took place. The proceeds of the sale

were paid into the trust account of the solicitors’ acting for Mr Hutt’s company.  On

3 July 2009:

(a)      From these proceeds, $353,471.51 was transferred by journal entry from the solicitors’ trust account for one of Mr Hutt’s companies to another of his companies.

(b)      That sum was then transferred by journal entry to the trust account of

Mr Hutt’s family trust.

(c)       That  sum  was  then  direct  credited  to  the  family  trust’s  cheque

account.

(d)      From that cheque account, a cheque for $160,000 was made out to

Mr Mason and his wife and deposited in their joint bank account.

[16]     From 3 July 2009 Mr Mason and his wife used the money in the account to repay debt and to purchase various things.   By March 2010, the balance in the account was $31,208.04.

[17]     Mr Mason became the subject of an investigation which was referred to the Serious Fraud Office (“the SFO”). As part of this investigation a search warrant was executed on Mr Hutt’s business property and his home in April 2010.  Although the records were well kept, the SFO did not locate the bank statement or cheque butt book for the month of July 2009.   On the same day as the search warrant was executed, the SFO served on Mr Hutt a notice to produce all documents relating to financial transactions with Mr Mason.   No documents were produced pursuant to that notice.

[18]     Mr Mason  was  first  interviewed  by  the  SFO  on  27  July  2010.    In  that interview Mr Mason said that the $160,000 he had received was a loan.  He said that it was agreed that he would repay the loan within a year, if he was able to, and that the loan would incur interest at 6%.   Mr Mason did not bring any documentation with him to the interview to support the existence of loan.  However, consistent with his claim that there was a loan, on 26 July 2010 Mr Mason had transferred $9,600 (ie. 6% of $160,000) to Mr Hutt’s bank account. At some stage an acknowledgement of debt of $160,000 in favour of Mr Hutt’s family trust, bearing a date of 21 May

2010, was signed by Mr Mason.

[19]     The SFO did not accept the loan explanation and Mr Mason returned for a second  interview  in  August  2010.    At  this  interview  Mr Mason  admitted  his

offending and that the loan explanation was intended to put the SFO off the scent. Mr Mason  and  Mr Hutt  were  arrested  and  charged  on  23  November  2010. Subsequently,  Mr Mason  entered  guilty pleas  to  the charges  he faced.    He was sentenced to home detention.

The charges

[20]     Count 1 alleges that:

THE SOLICITOR-GENERAL CHARGES that GREGORY ALEXANDER HUTT  between  1  February  2007  and  24  May  2007,  at Wellington,  did corruptly agree to give a bribe to Malcolm David Mason with intent to influence an official in respect of an act by him in his official capacity, namely by agreeing to give a bribe to Malcolm David Mason, an employee of ACC,  for  referring  information  about ACC’s  development  of  a  new Whangarei office to Mr Hutt, for assisting Mr Hutt’s  company to obtain finance for the development, and for recommending that ACC enter into a lease with Mr Hutt’s company.  (Emphasis added.)

[21]     Count 2 alleges that:

THE SOLICITOR-GENERAL FURTHER CHARGES that GREGORY ALEXANDER HUTT on or about 3 July 2009, at Wellington, did corruptly give a bribe to Malcolm David Mason with intent to influence an official in respect of an act by him in his official capacity, namely by giving $160,000 to Malcolm David Mason, an employee of ACC, for referring information about ACC’s development of a new Whangarei office to Mr Hutt and for recommending  that  ACC  enter  into  a  lease  with  Mr Hutt’s  company. (Emphasis added.)

[22]     The Crown advises that it intends to amend count 2 so that the particulars include “for assisting Mr Hutt’s company to obtain finance for the development” as per count 1.   For the purposes of this application the focus has been on the lease recommendation.

Evidence that Mr Hutt had an intent to influence Mr Mason?

[23]     Section 105 of the Crimes Act provides as follows:

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 any other person in respect of any act done or omitted, or to be done or omitted, by him in his official capacity.

(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 official in respect of any act or omission by him in his official capacity.

[24]     Counts 1 and 2 are charges under s 105(2) of the Crimes Act.  Section 105(2)

has two elements:

(a)       Corruptly giving or offering or agreeing to give any bribe to any person;

(b)With intent to influence an official in respect of any act or omission by him in his official capacity.

[25]     For the purposes of this application it is accepted on Mr Hutt’s behalf that there is prima facie evidence as to the first element.  Mr Hutt submits that there is no evidence on which a properly instructed jury could find to the beyond reasonable doubt standard that the second element is proven.  It is said that there was absolutely no need to influence Mr Mason – in fact, the position was the opposite:  Mr Mason (the official) was the initiator of the whole project, who was influencing Mr Hutt.  It is said that the official was an opportunist, seeking a commission and Mr Hutt went along with it.

[26]     It is said that the critical time to establish an agreement is before Mr Hutt received the 19 February 2007 email and then proceeded to buy the land.  It is said that there is no evidence that, before that email, a payment was discussed or agreed to by Mr Hutt.  It is said that the evidence only establishes that Mr Hutt agreed to look into the development.   After that Mr Hutt purchased the site without telling Mr Mason and, having done that, the development was going to go ahead anyway.

[27]     In support of this submission reliance is placed on the evidence from Mr

Mason in particular that:

(a)      Mr Mason was a “wheeler and dealer” who was accustomed to going off and “making things happen”.

(b)Mr Mason discovered the site and approached Mr Hutt about it and provided him with the details of it.  They discussed its potential and the development just “morphed out” of the discussions.

(c)       Mr Mason  was  intent  on  selling  the  whole  concept  to  Mr Hutt.

Mr Mason presented the concept as “an opportunity for us to make some money together” and said they should exploit it.

(d)Mr Mason expected a ‘fair share” of any profit, which he thought would be about half of it.  Mr Mason accepted in cross examination that Mr Hutt could have said that he would give Mr Mason a “finder’s fee for having given him the development opportunity.”   Mr Mason also accepted in cross-examination that “the reality” was that Mr Hutt would  pay  him  a  sum  of  money  “for  having  given  him  the development opportunity.”

(e)      Mr Mason accepted in cross-examination that the project would have gone ahead even if nothing were said about a payment and that this was  because  there  was  a  pressing  need  and  it  had  to  go  ahead. Mr Mason also accepted in cross-examination that the payment was not an additional influencing factor in Mr Mason putting the project to his superiors or getting the project approved by his superiors, and Mr Mason  thought  Mr Hutt  knew  that  the  payment  was  not  an influencing factor.

[28]     In these circumstances, the submission for Mr Hutt is that that the payment could not be characterised as one intended to influence Mr Mason with respect to any act or omission by him.  Rather, it is said, the evidence suggests the payment was a gratuity made to the official (Mr Mason) for his having taken the development opportunity to the person who made the payment (Mr Hutt).   It is said that the

arrangement was more in the nature of a sharing of the profit from a joint venture in respect of which Mr Mason had a conflict of interest.

[29]     The  Crown  submits  that  the  critical  time  period  is  not  simply  the  first meeting.  The counts refer to the period from 1 February 2007 to 24 May 2007.  The Crown submits that, even if Mr Mason was the instigator, Mr Mason’s evidence in chief supports the Crown’s case: that over the period alleged in the charge, Mr Hutt agreed to proceed with the development on the understanding that Mr Mason would recommend that ACC lease the property and in return Mr Mason would make a payment to Mr Mason.

[30]     The  Crown  submits  that  the  answers  given  by  Mr Mason  in  cross- examination would not necessarily be given much weight by the Judge or jury determining the facts.  In any event, the Crown submits that once the agreement was made and pursuant to that agreement the development opportunity had been taken up by Mr Hutt, it does not matter that Mr Mason would have recommended the lease to his superiors at ACC anyway, even without the payment.

[31]     The Crown submits that this was not the type of agreement that one would expect to be spelled out in detail by the parties.  The Crown submits that it need not prove that there was an agreement with an “intent to influence” by direct evidence. It submits that in this case the intent to influence will be inferred from a number of matters, including the evidence of Mr Mason about their discussions, the absence of any covering note with the email containing the details of the property, the actions of Mr Hutt in proceeding to buy the property, the recommendation to enter into the lease which was made a day after the purchase was unconditional, Mr Hutt’s sale of the property after the lease was in place, the payment to Mr Hutt from the settlement proceedings, and the subsequent attempt to make the payment look like a loan.

[32]     I agree with the Crown’s submissions.   Even if the first meeting (before Mr Hutt proceeded to buy the property) is the critical one, at the preliminary hearing Mr Mason was not specific about the extent of the discussions at that point in time. He did not say that no understanding was reached at this point of time.  Although the property was in a desirable location, the existing owner had apparently not been able

to put it to the use to which it had originally envisaged.  After the discussion with Mr Hutt, Mr Mason did not pursue the opportunity with the Nelson developer he had initially contacted.   Soon after the initial discussion and the email, Mr Hutt went ahead and purchased the property.  It would be open to the trier of facts, depending on their view of the evidence reliably established, to infer that the purchase took place because Mr Hutt and Mr Mason already had an understanding that Mr Mason would recommend the lease to his General Managers, and in return Mr Hutt would make a payment to Mr Mason from the profits.  In my view it does not matter that Mr Mason was the instigator of what his counsel refers to as a “joint venture”, providing Mr Hutt knew what the arrangement was and proceeded on that basis.

[33]     Additionally, I am not persuaded that the first meeting is the only crucial time period.  This submission depends on the cross-examination which was to the effect that  once  the  property  had  been  bought  by  Mr Hutt,  Mr Mason  would  have recommended that ACC lease it even if no payment had been made.  However, this cross-examination involved propositions being put to Mr Mason with which he then agreed.   As the Crown says, the Judge or jury determining the facts would not necessarily accept this evidence.   It would be open to the Judge or jury to accept from Mr Mason’s evidence and the subsequent events that, as alleged in the counts, between 1 February 2007 and 24 May 2007 there was an understanding between Mr Hutt  and  Mr Mason  that  Mr Hutt  would  buy the  property,  Mr Mason  would secure the lease and a payment would be made to Mr Mason from the profits on sale. Providing that was the understanding as at 24 May 2007 when the lease recommendation was made (or at the time of any of the other acts relied upon as the acts carried out by Mr Mason in an official capacity), in my view it does not matter whether  the  understanding  was  reached  at  the  first  meeting,  or  before  Mr Hutt purchased the property, or in the course of ongoing discussions.

[34]     I therefore dismiss the s 347 application on counts 1 and 2 on the first basis that was put forward to support the application.

Does s 105 cover a “bribe” made after the acts by the official in his official capacity?

[35]     For Mr Hutt it is submitted that there is a further basis on which he should be discharged in respect of count 2. That count alleges that on 3 July 2009 – the date on which Mr Mason was given the cheque for $160,000 - Mr Hutt corruptly gave the alleged  bribe  with  intent  to  influence  Mr Mason  in  his  official  capacity.    It  is submitted that, by this time, the transaction was completed: the building had been constructed, the lease had been entered into and Mr Hutt’s company had sold the land and the building.  On this basis it is said that the payment on 3 July could not have been made with intent to influence the official: everything was well past the stage where there could have been an intent in making the payment to influence the recipient.

[36]     Whether this submission is correct depends upon the meaning of the words “who corruptly gives ... any bribe to any person with intent to influence any official”. The submission is that, where the charge is one of giving a bribe the intent to influence must be present at the time the bribe is given.  The Crown submits that s

105(2) covers the situation where the “bribe” is given after the acts of the official providing that is given pursuant to an antecedent agreement which was made with intent to influence the official.  In this way it is said that the section covers both the actus reus of agreeing to give a bribe, and the actus reus of giving a bribe pursuant to that agreement.

[37]     The Crown submits that its view is supported by dicta of the Supreme Court in Field v R.[1]   That case concerned a Member of Parliament who was convicted of receiving “bribes” under s 103(1) of the Crimes Act.  Section 103(1) and (2) are in identical terms to s 105(1) and (2), except that s 103 is concerned with Members of Parliament and s 105 is concerned with “officials”.

[1] Field v R [2011] NZSC 129.

[38]     The issue before the Supreme Court was the meaning of “corruptly” under

s 103(1) when the payments (“bribes”) were made after the acts carried out by the

Member of Parliament and not necessarily pursuant to an earlier agreement.   In discussing this issue the Supreme Court said:[2]

[2] At [20]-[22].

[20]      Under s 103(1), the word “corruptly” is applied to the actions of a Member of Parliament who accepts benefits in respect of both an “act ... to be done” and an “act done”.   This suggests that the legislature saw the acceptance  of  benefits  “in  respect   of”  official  acts  as   unacceptable irrespective of whether the acts have already occurred or still lie in the future.  To put this another way, the legislature had in mind a single concept of  “corruptly”  that  was  equally  applicable  whether  the  official  acts  in question were “to be done” or had been “done”.  If the legislature had seen an antecedent bargain or promise as a prerequisite to finding that a Member of Parliament had acted “corruptly”, rather more elaborate drafting might have been expected.

[21]     Although  this  point  may  seem  a  little  subtle,  its  significance becomes more apparent when the language of s 103(1) is compared with that used in s 103(2).  The narrower drafting of s 103(2) means that an offence is only committed in respect of the provision of benefits or the making of offers and agreements which are intended to influence, and thus must logically precede, the relevant official acts.  If (as the appellant maintains) the offence of receiving a bribe can be committed only if the benefit was accepted either before  the  acts  or  omissions  or  pursuant  to  an  antecedent  offer  or agreement, the Member of Parliament could be convicted only if the person providing the bribe was liable to conviction under s 103(2).   If Parliament had intended this result, there was no point in defining the s 103(1) offence more broadly than the s 103(2) offence.

[22]     To develop a little further what is essentially the same point, an “intent to influence” is an essential component of the s 103(2) offence.  In this context, the absence of such a requirement in the language used in s 103(1) suggests very strongly that the legislature did not see liability as depending upon such an intention being present.  As will become apparent when we discuss the relevant legislative history, s 103(2) is expressed in distinctly more narrow terms than the corresponding subsection in the provision which provided the model for s 103. (Emphasis added.)

[39]     The Crown refers to third sentence in the middle paragraph of the above quote.    It  says  that  the  important  point  is  that  for  s 105(2)  there  must  be  an antecedent offer or agreement when a payment is made, whereas for s 105(1) there needs to be no such agreement.  For Mr Hutt it is said that the Crown is reading the Supreme Court’s dicta too far and out of context.  It refers to the second sentence in the middle paragraph of the above quote.  There the Court says that s 103(2) (and therefore s 105(2)) is concerned with the provision of benefits which are intended to influence “and thus must logically precede, the relevant official acts.”

[40]     I agree with counsel for Mr Hutt that the sentence they refer to does appear to support its submission that, where it is alleged that the offence is the “giving” of a “bribe”, that giving cannot be with an intent to influence when the official acts have already occurred.   I also agree with the Crown that the third sentence appears to indicate that a payment made pursuant to an antecedent agreement could give rise to a conviction under s 103(2) (and therefore s 105(2)).  However the Supreme Court does not say whether that conviction would be for the agreement, the payment or both.

[41]     This issue arose in Cooper v Slade,[3] a 19th century English case discussed by the Supreme Court in Field v R.[4]    The case arose in the context of a parliamentary by-election.   Prior to polling day, the committee supporting one of the candidates wrote to a voter asking him to vote for the candidate and stating that his railway

expenses would be paid.  The voter voted and his railway expenses were reimbursed. Under  the  relevant  legislation  it  was  an  offence  to  (inter  alia)  offer  money  or valuable consideration to a voter to induce the voter to vote, or to provide money or valuable consideration on account of any such voter having voted.  The sanction for this offence was the payment of a penalty.

[3] Cooper v Slade (1858) 6 HLC 746.

[4] Field v R [2011] NZSC 129 at [26]-[36].

[42]     Penalties were sought in relation to both the letter and the payment.  The trial Judge had regarded the two counts as alternatives: namely (1) an offer; and (2) a reward made not pursuant to any promise.   As explained on the appeal this was because the Judge:[5]

[felt] certain that the Legislature could not mean to impose two penalties for the same transaction, namely one for the promise to give money in order to induce a person to vote, and another for afterwards giving the money for having so voted...

[5] Cooper v Slade (1858) 6 HLC 746 at 790.

[43]     The jury entered judgment on both counts apparently not understanding that there were alternatives.  After trial, the plaintiff indicated a willingness to enter a nolle prosequi (ie to not proceed with) on one of the counts.   There were three questions stated for the consideration of the House of Lords, but the issue of whether

there could be judgment on both counts was not one of them.  Apart from the above

comments from the trial judge, the only other comment on this topic came from Lord

Cranworth who said:[6]

“Although there was evidence of [a corrupt payment of which the statute intended to prohibit], I think it is clear that the Legislature did not mean that there should be two penalties recovered.  If you said, “I will give you eight shillings if you come and vote for me,” and on the man coming to vote for you, you gave the eight shillings, it is clear to my mind that in such a case the Legislature meant that to be only one act of bribery; but here the counts are two, although there is only evidence to support one count.

[6] At 788.

[44]     A similar situation arose a few years later in Milnes v Bale.[7]   In that case an offence was created for “bribery” at a municipal election.  Bribery was defined as including anything committed “before, at, after, or with respect to an election” which would be bribery in the case of a parliamentary election.  In that case the accused faced a count of bribery for giving money to five voters, and a second count of bribery for the alleged agreements to these same five voters to give that money.  The focus of the issue in the Court of Common Pleas was on whether there should be a penalty in respect of each voter referred to in the counts, rather than on whether it was correct to charge the defendant in respect of both the agreement to pay and the payment.  The Court of Common Pleas held that the penalty was payable in respect

of each individual act of bribery.  In reaching this view Denman J commented that:[8]

In all the decisions it seems to me that the distinction is between cases where the penalty is imposed in respect of a complex and continuous act, and those where it is imposed in respect of a single uncomplicated offence, and may be proved by evidence of one isolated act.

[7] Milnes v Bale (1875) LR 10 CP 591.

[8] At 597.

[45]     Section 105(2) is not in the same terms as the legislation considered in the above two election cases.   In those cases the legislation specifically made it an offence to make a payment made after the relevant actions (ie the voting at the elections) had occurred.   The terms of section 105(2) capture three possibilities, which are expressed as alternatives:

(a)      “corruptly gives...” any bribe

(b)      “corruptly ... offers” any bribe

(c)       “corruptly ... agrees to give” any bribe

[46]     Whichever alternative applies, it must be “with intent to influence” an official in respect of his/her actions or omissions.  Offering and agreeing to give a bribe are squarely directed to actions of the accused undertaken before the acts or omissions of the official which the offer or agreement is intended to influence.  The giving a bribe might also be done before the acts or omissions of the official which the bribe is intended to influence. All three possibilities are captured by s 105(2), and if any one of those occurs there is an offence.  The position is different where the payment is made as a reward for actions of the official, where there was no prior offer or agreement made.  Section 3(1) of the Secret Commissions Act 1910 captures such a position, but s 105(2) does not.

[47]     There might be a situation, however, where there is an offer to give a bribe, then an agreement to give the bribe, and then the bribe is given. That is there may be an ongoing transaction, the final step of which is the payment. All three parts to this transaction may precede the acts undertaken by the official.  Or, as is alleged here, the agreement may have been made before the acts were undertaken and the payment may be made afterwards.   It is not clear that the Legislature would have intended there to be any difference in what was captured by s 105(2) in these two situations.

[48]     Providing  the  payment  (the  giving)  was  made  pursuant  to  an  offer  or agreement that it would be paid, and the offer or agreement was with the intent to influence the official, then the payment is part of the transaction which has been made with the intent to influence.  Or to put it another way, the payment is causally connected to the performance of the official acts and the payer and the official knew this when the official acts were carried out.

[49]     However, that does not necessarily mean that both the agreement and the payment should be charged as separate counts.  Separate charges should only arise where they are truly alternative (ie one may be established but not the other depending on the determination of the facts by the judge or jury) or where each represents a single complete offence.  Otherwise the charges may be duplicitous.

[50]     It seems to me that there may be only one offence where the payment is made pursuant to an earlier agreement.   The payment is not an offence under s 105(2) without the earlier agreement which itself is an offence.  There is a single intent to influence in respect of the agreement and the payment.  This is different from, for example,  charging  a  burglary  and  a  theft  for  the  one  break-in  because  in  that situation the actus reus and the mens rea of the theft offence are complete regardless

of the burglary and vice versa.[9]  And if both the agreement and the payment pursuant

to the agreement are separate offences, that seems to me to be like charging a person for an offer to sell controlled drugs, as well as charging them for the sale that was made pursuant to that single offer.[10]

[9] In R v Henderson [1999] 1 VR 830 at 835 it was held that a burglary of a building and theft of items in it were not one single offence.

[10] I distinguish this example from the situation where there is continuing conduct (eg a conspiracy to manufacture and supply drugs) and evidence of a particular offence (eg a single incident of manufacturing and possession for supply), and where the continuing conduct and the particular offence can be charged to reflect the total criminality, although severance of the counts may be necessary: R v Humphries [1982] 1 NZLR 353 at 355 and 356.

[51]     For these reasons, I am not persuaded that there should be a discharge on count 2.  The alleged giving of the bribe was made pursuant to an agreement to do so, and was the last step in the transaction made with the intent to influence the official.  However, I do raise the issue of whether there ought to be two counts.  I will leave that for the further consideration of counsel (and, potentially, the trial judge) as this issue was not addressed by counsel at the hearing, except in that counsel for Mr Hutt noted that he presumed the counts were in the alternative.

Other applications

[52]     Mr Hutt has applied for an order that he be tried before a Judge without a jury.    This  application  was  adjourned  because  Mr Hutt  wishes  to  make  a  final decision about whether he wants to pursue the application once the decision on the s

347 application has been given.   With the release of this judgment that decision should now be made.

[53]     Mr Hutt has also applied for a stay on the fourth count.  The application is made on the basis that it is contrary to justice and proprietary for Mr Hutt to be

facing this count when the more culpable person has not been charged.  The Crown wishes to adduce evidence in support of its opposition to the stay application.   The application has been adjourned for that reason.   The parties envisage that the stay application could be heard by the trial judge if the trial is to be by a Judge alone. Otherwise, it will be heard in advance of the trial on a date advised by the registry.

Publication restriction

[54] As set out in the banner on the front page of this judgment, the hearing and this judgment are not to be published until final disposition of the trial or earlier order of the Court. This publication restriction does not apply to the fact of the application and the result, as set out in [4]. It also does not apply to legal reports. The publication restriction is to preserve Mr Hutt’s right to a fair trial in the event that he is to be tried by a jury. It can be revisited if the trial is to be before a Judge alone.

Admissibility of evidence relating to “loan”

[55]     Counsel  for Mr Hutt  had  foreshadowed  at  the  committal  hearing that  an application might be made challenging the admissibility of the evidence relating to the “loan”.  Suppression of that evidence was granted by the Justices of the Peace because of that possibility.   Counsel for Mr Hutt advises that it is not intended to pursue such an application.  If the suppression order is still in existence it is now at an end.

Mallon J