The Queen v Leolahi
[2000] NZCA 347
•23 November 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 304/00 |
THE QUEEN
V
PHILLIP LEOLAHI
| Hearing: | 4 October 2000 |
| Coram: | Gault J Thomas J Tipping J |
| Appearances: | M A Kennedy for Appellant J C Pike for Crown |
| Judgment: | 23 November 2000 |
| JUDGMENT OF THE COURT DELIVERED BY THOMAS J |
Question in issue
The question in issue in this case is whether, for the purposes of a charge under s 105B of the Crimes Act 1961 of receiving personal information knowing that the information had been obtained corruptly contrary to ss 105A of the Act, the Crown must establish that the offender knew the information had been obtained criminally.
The conviction and appeal
The appellant, Mr Leolahi, was found guilty following a trial before a judge alone of five representative counts of knowingly using corruptly disclosed information contrary to s 105B. Mr Leolahi was sentenced to nine months imprisonment. He has been subsequently granted home detention.
Mr Leolahi appealed against his conviction on the basis that the trial Judge misdirected himself in law. He commenced, but later abandoned, an appeal against sentence.
The facts
The charges against Mr Leolahi were one of a number of prosecutions which were brought following the discovery that certain employees of the Inland Revenue Department were leaking confidential taxpayer information to members of the public.
At all relevant times Mr Leolahi worked for an Otahuhu firm, The Money Shop, which specialised in offering finance to persons whose applications had been rejected by larger institutions. His responsibility was to locate the addresses of defaulting debtors and arrange for repayment. In performing this task he would generally use the services of Telecom or make enquiries through debtors’ relatives.
These avenues of inquiry did not always work. Then, in 1996, an IRD employee, a Ms Matagi, sought finance from The Money Shop. Mr Leolahi noted her occupation on her loan application form. He quickly set up a meeting with her. It was agreed that he would pay Ms Matagi $10.00 for each address supplied to Mr Leolahi from the IRD information database. The evidence shows that Ms Matagi was initially reluctant to co-operate, but Mr Leolahi brought pressure to bear on her and she finally agreed to disclose the information. Mr Leolahi was the more dominant party in a position of power over Ms Matagi, and he was able to manipulate her weakness and financial problems to his own advantage. The trial Judge described Mr Leolahi as “very persuasive” and Ms Matagi as a “gentle biddable person”. Ms Matagi made it clear to Mr Leolahi that what she was doing was wrong and that she could lose her job. But Mr Leolahi, in the words of Ms Matagi, just “laughed it off”.
Between June and October 1996, Mr Leolahi obtained a large number of addresses of debtors. For much of this period, he got in touch with Ms Matagi every day. Ms Matagi initially faxed Mr Leolahi the addresses from her office, but later did so from a library fax machine and by post. The two also met frequently away from their respective offices. Physical exchanges of money and information were executed in a clandestine fashion.
The arrangement was eventually discovered and Ms Matagi, after pleading guilty, was convicted of offences against s 105A and sentenced to nine months imprisonment. She later testified against Mr Leolahi in Court, conceding that she knew her actions were illegal.
As stated above, Mr Leolahi was eventually convicted on five representative counts under s 105B. Each count relates to a separate month during the term of the arrangement between Mr Leolahi and Ms Matagi, that is, between June and October 1996.
The ground of appeal and the Judge’s direction
It is convenient to first set out the relevant statutory provisions. Section 105A reads as follows:
Corrupt use of official information - Every official is liable to imprisonment for a term not exceeding 7 years who, whether within New Zealand or elsewhere, corruptly uses or discloses any information, acquired by him in his official capacity, to obtain, directly or indirectly, an advantage or a pecuniary gain for himself or any other person.
Section 105B provides:
Use or disclosure of personal information disclosed in breach of section 105A - (1) Every person is liable to imprisonment for a term not exceeding 7 years who,-
(a) Having received personal information (being information that comes into that person's possession as a result of the commission of an offence against section 105A of this Act); and
(b) Knowing that the information has been disclosed in contravention of that section,-
uses or discloses that information to obtain, directly or indirectly, an advantage or pecuniary gain for that person or any other person.
(2) It is a defence to a charge under this section if the person charged proves that the person was legally authorised to use or disclose the information.
(3) In this section, the term “personal information” means any information about an identifiable natural person, including a deceased natural person.It is immediately obvious that s 105B (the section under which Mr Leolahi was convicted), is closely linked to s 105A (under which Ms Matagi was convicted). While s 105A is directed at officials who corruptly abuse their position, s 105B is directed at private citizens who profit from such corruption. Paragraph (b) of subs (1) requires the Crown to prove that the accused received the information knowing it to have been disclosed in contravention of s 105A. Information is disclosed in contravention of s 105A where it is acquired by an official acting in an official capacity and then corruptly disclosed to a third party for an advantage or pecuniary gain.
Mr Leolahi does not dispute any part of the actus reus of the offence. His sole argument is that the Crown did not adduce sufficient evidence to prove that he received the information with the requisite knowledge prescribed in paragraph (b). Thus, Mr Leolahi accepts that he knew that Ms Matagi acquired the addresses in her official capacity as an IRD employee, and that she disclosed the addresses to him for pecuniary gain. He claims, however, that he did not know that she was acting “corruptly” by passing the information on to him. His argument is essentially that, even though he realised that it was wrong for Ms Matagi to disclose the information, he did not realise that this was a “criminal” wrong as opposed to a mere breach of employee confidentiality. He therefore did not have the “deliberate criminal intent necessary” to commit the offence: see R v McDonald [1993] 3 NZLR 354, at 358.
In dealing with this argument, the trial Judge discussed Mr Leolahi’s knowledge and actions in some detail. He found that Mr Leolahi was persistent in pressing Ms Matagi for more and more information. He also found that Mr Leolahi knew that the information he was given came from the IRD computer and that he could not have obtained this information across the main counter. The Judge also commented on the clandestine nature of the dealings. Mr Leolahi and Ms Matagi met away from their respective places of work and Mr Leolahi paid Ms Matagi in cash passed over in blank envelopes. While he would sometimes ring Ms Matagi at work, telephone conversations would be cut short if other people were nearby.
In the result, the Judge held that Mr Leolahi knew it was wrong or improper for Ms Matagi to disclose the information to him. He “certainly … knew, so I am entirely persuaded, that Matagi was abusing her position”. The Judge concluded:
In the vernacular he, so I find, had it over her; and there was nothing of the essence of what she did, and of the context in which she did it that escaped him;. He was surely close to being, if not in fact and law, a party to Matagi’s own offending. Certainly, in terms of the knowledge pre-requisite to s 105B, the accused knew that he was involving Matagi in turning aside from what was right. He had her putting her data base access to an improper use. It amounted to a ‘perversion of the power or position held’ by Matagi, to use the words of Gallen J in Hall and Latimer at p 11. That was the area of corruption.
The Judge gave short shrift to the argument advanced on behalf of Mr Leolahi that Mr Leolahi needed to have specific knowledge of the criminality of Ms Matagi’s actions. He believed that this argument amounted to a plea of ignorance of the law contrary to s 25 of the Crimes Act. On this basis, the Judge found Mr Leolahi guilty on all counts and convicted him accordingly.
The submissions in this Court
In this court Ms Kennedy, counsel for Mr Leolahi, again accepted that Mr Leolahi knew that what Ms Matagi was doing would have been contrary to the terms of the contract of employment with the IRD but, Ms Kennedy urged, he would not necessarily have known that Ms Matagi was breaking the law. It had not therefore been established that Mr Leolahi had the necessary criminal intent. He was required to know that Ms Matagi’s actions were illegal, not merely immoral. In support, Ms Kennedy relied on two New Zealand cases: R v McDonald, supra; and Hall and Latimer v Attorney-General (25 September 1998, HC Wellington, CP 256/98, Gallen J). The former case concerned an allegation of corruption in a private business deal contrary to the Secret Commissions Act 1910. Williamson J stated (at 357-358) in the context of that Act, that the word “corruptly” -
…would appear to be one designed to describe the mental element which an offender must have when giving or accepting a gift, namely that degree of deliberate criminal intent necessary not only to perform the act itself but also to do it for the purpose of influencing another person or to be influenced to the detriment of a third party’s business.
We do not discern anything in those observations or in that case which would support the proposition that Mr Leolahi had to know that Ms Matagi was acting illegally. The word “corruptly” is not to be equated with the word “illegally”.
In the Hall and Latimer case, Gallen J noted (at 9) that the term “corruptly” has been the subject of a number of judicial interpretations, and that “Judges have pointed out the difficulty in adequately determining precisely what is meant” by the word. The learned Judge agreed that there must be a “degree of criminal intent”. He expanded his observation as follows (at 10):
That intent it seems to me must be one which so colours an official action that it may be said to be done for an improper motivation and a motivation will be improper if it is one which has an element of purpose outside that which is contemplated by the conferment of the power concerned and it moreover one which could properly be described as morally unacceptable. It is for that reason that some of the authorities use the term ‘dishonest’.
While we do not disagree with Gallen J’s dictum, we do not consider that it is prudent to seek to proffer a precise definition of what is meant by the word “corruptly” in s 105A. In broad terms, however, it connotes the improper use by an official of information which belongs to a governmental body. The official abuses his or her official capacity and the trust that is reposed in them as a holder of a public office. Being a public office the information is ultimately public property and must be treated as such. The application of this broad meaning will depend on the circumstances of the particular case. Whatever meaning is given to the term in this case, however, we have no doubt that Ms Matagi acted corruptly, a fact no doubt reflected in her guilty plea.
Whether the person to whom an official discloses information knows that the official is acting corruptly will depend on the recipient’s knowledge of what the official is doing. Again, there can be no real dispute as to Mr Leolahi’s knowledge in this case. The Judge found that he knew that he was coercing Ms Matagi to do that which was wrong and that what she was doing at his bidding was an improper use of her position. In fact, the Judge said, “there was nothing of the essence of what she did, and of the context in which she did it that escaped him”. This knowledge amounts to knowledge that Ms Matagi disclosed the information “corruptly”. The trial judge’s conclusion was undoubtedly correct.
With respect to Ms Kennedy, her argument reduces to the assertion that Mr Leolahi did not realise such behaviour in a public official amounted to a criminal offence. This contention is, as was argued by Mr Pike for the Crown and recognised by the trial Judge, a plea of ignorance of the law. Such pleas are barred by s 25 of the Crimes Act. Lord Bridge’s dictum in Grant v Borg [1982] 2 All ER 257, at 263, is apposite:
…the principle that ignorance of the law is no defence in crime is so fundamental that to construe the word ‘knowingly’ in a criminal statute as requiring not merely knowledge of the facts material to the offender’s guilt, but also knowledge of the relevant law, would be revolutionary and to my mind, wholly unacceptable.
This dictum is directly relevant to this case. In accordance with traditional doctrine, the Crown in a prosecution under s 105B is only required to prove that the offender knew the “facts material to the offender’s guilt”. As found by the trial Judge, Mr Leolahi knew these facts, including the fact that Ms Matagi was acting corruptly. He may not have known that his dealings with Ms Matagi amounted to a criminal offence or, if he appreciated that it was an offence, he may not have realised how serious the offence is regarded. But he knew the facts material to the elements of s 105B. These facts are all the Crown must show.
For these reasons, the appeal is dismissed.
Solicitors
Crown Law Office, Wellington for Crown
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