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THIS JUDGMENT IS NOT TO BE PUBLISHED UNTIL FINAL DISPOSITION OF THE TRIAL OR EARLIER ORDER OF THE COURT.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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hutt

Details

AGLC: R v Hutt [2012] NZHC 593
Case: [2012] NZHC 593
Decision Date: 30 March 2012

CaseChat Overview and Summary

In the High Court, Gregory Alexander Hutt applied for a discharge under s 347 of the Crimes Act on two of the four counts on which he was to be tried. The charges related to a Whangarei property development carried out by Hutt’s company. The property was purchased by Hutt’s company following discussions with Mr Mason, the then national property manager of the Accident Compensation Corporation (ACC), and in anticipation of obtaining an agreement from ACC to lease the property. Once the development was completed and the lease agreement in place, Hutt sold the property at a profit and paid $160,000 from that profit to Mr Mason. Hutt applied for a discharge under s 347 of the Crimes Act on the first two counts on the basis that there was no evidence that the payment of $160,000 (the alleged “bribe”) was made with intent to influence Mr Mason (the official). It was said that it was Mr Mason who instigated the transaction and that the actions of Mr Mason (recommending to his superiors that ACC lease the property) would have been carried out even without the payment. Hutt also submitted 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. Hutt said that the proper charge on the alleged facts was the third count. The court dismissed the s 347 application. It was open to the trier of facts, depending on their view of the evidence reliably established, to infer that the purchase took place because Hutt and Mr Mason already had an understanding that Mr Mason would recommend the lease to his General Managers, and in return Hutt would make a payment to Mr Mason from the profits. The court was not persuaded that the first meeting was the only crucial time period. 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, there was an understanding between Hutt and Mr Mason that 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. The court was 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.

Orders