Field v R (SC3/2011; [2011] NZSC 129), 21 June and 27 October 2011, to be reported in Volume 25 Criminal Reports of New Zealand

Supreme Court decision by Elias CJ, Blanchard, Tipping, McGrath, and William Young JJ

 H A Cull QC and M A Karam for Appellant

D B Collins QC, S J E Moore SC and D G Johnstone for Crown

Background

Former MP Taito Phillip Field (“F”) appears to have finally come to the end of his many attempts to avoid responsibility and punishment for his corrupt actions. This case was his final appeal against conviction on 11 counts of bribery and corruption as a Member of Parliament under s 103 Crimes Act 1961 (“CA”).

Unsuccessful in appeal from High Court to Court of Appeal   

In the Court of Appeal (Field v R [2010] NZCA 556; [2011] 1 NZLR 784; (2010) 25 CRNZ 29) F had unsuccessfully argued re his convictions that at trial: 

• the wrong legal test for bribery and corruption had been adopted, as it also had when leave to prosecute had been given earlier by a Judge under s 103(3) CA (Burgess v Field (No 2) HC Auckland CIV-2007-404-3206, 5 October 2007),
• the wrong legal test had also been applied on other charges of perverting the course of justice (convictions not further appealed against to the Supreme Court) 
• evidence had been wrongfully admitted, and
•  a miscarriage of justice had occurred.

He also unsuccessfully appealed against his sentences totalling six years’ imprisonment.

Basis of appeal to Supreme Court

F’s appeal to the Supreme Court was confined to his convictions on the 11 charges of corruptly accepting “benefits”, which are included in the definition of “bribe” in s 99 CA for the purposes of s 103 CA.

Because the High Court jury had rejected his primary defence that the Thais did not provide their services to him in connection with his immigration assistance, and as a reward for it, the Supreme Court approached the appeal on the basis that when F provided that assistance he knew he would be rewarded by those services. 

Having provided (or, in some cases, while providing) immigration assistance to various Thai people who had approached him as an MP, attempting to avoid apprehension by immigration authorities, F corruptly accepted bribes from them comprising free or low-cost labour by them on some of his properties in the form of plastering, painting, or tiling, with benefits to him estimated to be worth about $50,000.

This was the first prosecution of an MP under s 103.

Is a prior agreement for bribe, or offer of it, required? 

The Supreme Court accepted that F did not act improperly in respect of the immigration assistance he gave, but the propriety or otherwise of that assistance was irrelevant to the appeal. The relevant question was whether his actions were improper in their totality, including receipt of benefits for assistance provided. In his summing up the High Court trial Judge had ruled that all the Crown had to prove to establish that F had acted “corruptly” was that he “ … must have known or believed that the work done on his property was done because he had provided or it was anticipated that he would provide immigration services.” Thus the jury was directed that it could find F guilty if it found that he received the services in question after providing immigration services, irrespective of whether there was any preceding agreement (or offer) that the services would be provided, or anything else (such as impropriety in the immigration services provided) that smacked of corruption. 

The Court of Appeal judgment 

The Court of Appeal’s judgment indicated that F acted corruptly for the purposes of s 103(1) CA if he was “knowingly outside the recognised bounds of his … duties” in accepting the Thais’ services, and that if he had accepted them as a reward for his immigration services (as the jury must have concluded) he had knowingly been outside those recognised bounds.

Field’s arguments on appeal to Supreme Court

On appeal F: 

• argued that there should have been separate and alternative counts in relation to inducement and reward, or perhaps in relation to “acts done” and “acts to be done” within s 103(1) CA, and
• challenged both the Court of Appeal's formulation of the test of corruption and its application of that test to the way in which the trial Judge had summed up.

Held

Argument for separate and alternative counts dismissed

(1) There was nothing in F’s argument for separate and alternative counts. The case was presented at trial on the basis of both inducement and reward. When the indictment referred to acts “done or to be done” it was replicating the language of s 103(1) and was therefore in accordance with s 330(1) CA, which permits charges in the alternative; significantly, no application was made at trial for the allegations in the counts to be separated. (para 13)

High Court trial Judge correct in his summing up?

(2) The obvious problem with a strict approach to s 103 CA is that it might catch innocent transactions, e.g. the gift of a rugby jersey to an MP who opens a rugby club. It was that problem which the Court of Appeal was trying to address with its “knowingly outside the recognised bounds” test. The formulation of that test of corruption was essentially by way of comment because the jury’s findings meant that F must have knowingly been outside the recognised bounds of his duties, given the substantial value of the services he received. And if the trial Judge was correct in his summing up the appeal must fail, irrespective of any criticisms which might be made of the Court of Appeal’s reasoning. Therefore the only significant issue in the appeal was whether the summing up was correct. (para 15)

Defining “corruptly”

(3) Section 99 CA defines “bribe” in terms which focus simply on the element of benefit to the recipient, rather than the context in which it is provided or agreed to be provided. Section 103(1) CA is therefore to be construed as if it relevantly provided: “ … corruptly accepts … any … benefit, whether direct or indirect for himself … in respect of any act done …  ”. Thus the receipt of a gratuity can be within s 103(1) if it is accepted “corruptly”.  That approach to s 103 is consistent with its legislative history for more than 150 years. The legislature saw the acceptance of benefits “in respect of” official acts as unacceptable, regardless of whether the acts have already occurred or still lie in the future; it 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”. The significance of this point 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 under that subsection by providing benefits or making offers and agreements which are intended to influence (and thus must logically precede) the relevant official acts. If (as F contended) the offence of receiving a bribe can be committed only if the benefit was accepted either before the acts or omissions or pursuant to a preceding offer or agreement, the MP could be convicted only if the person providing the bribe was liable to conviction under s 103(2), so there was no point in defining the s 103(1) offence more broadly than the s 103(2) offence. An “intent to influence” is an essential component of the s 103(2) offence, and the absence of that requirement in s 103(1) suggests very strongly that the legislature did not see liability as depending on the presence of such an intention. (paras 19 to 22, and 25)

Two reasons why it is wrong to accept benefits

(4) It is simply wrong for an official to accept substantial benefits in return for what he or she has done in an official capacity, for two overlapping reasons:

(a) the offering and acceptance of such benefits in relation to official acts is corrupt because it has the tendency to promote corruption, a tendency which does not depend on a preceding bargain or promise. The tendency arises because the giving and acceptance of such benefits creates an environment in which

(i) an official who receives such benefits will come to expect similar benefits in the future and is likely to act accordingly, and

(ii) members of the public who know about or suspect what has happened will come to believe that unless they too provide such benefits they will not receive dispassionate consideration and, if prepared to provide such benefits, they will receive corresponding advantages, and 

(b) there is a fundamental inconsistency between the performance of official functions and accepting private rewards for doing so. In large measure this is a corollary of the first reason, but associated with it are related expectations about the way in which those in official positions, including MPs, can be expected to act. That consideration was illustrated by the facts of the present case. (paras 59 to 62) 

Conflict between representation and benefits

(5) Though F was not a decision-maker in respect of the Thai nationals’ immigration issues, he was part of an official process in which those he was helping obtained the immigration outcomes they were seeking. In his representations to the Immigration Service and the Associate Minister of Immigration he was vouching for them. Given the favourable outcomes achieved, his willingness to do so must have been an influential consideration in the decisions which were ultimately made. The people who actually made the immigration decisions, including his colleague the Associate Minister, did not know that F was receiving benefits from those for whom he was vouching. If they known that, his representations should have been completely discounted. There was thus a fundamental conflict between the representations he was making and the fact that he was receiving quid pro quo benefits for doing so, and his receipt of those benefits tended to devalue the ordinary currency of New Zealand political life. (para 63) 

Interpreting de minimis defence

(6) Too broad an approach to s 103 CA carries the risk of criminalising activity involving unexceptionable token gifts or other benefits. That risk is substantially mitigated by the requirement of consent by a High Court Judge before a prosecution can be commenced, but that requirement is not a complete and principled answer to the risks of over-criminalisation and oppressive and unfair prosecutions. There must be a de minimis defence in relation to gifts of token value which are just part of the usual courtesies of life. While satisfied that the acceptance of gifts which are de minimis should not be considered corrupt under s 103(1), the acceptance of other benefits in connection with official actions is rightly regarded as corrupt whether or not there was a preceding promise or bargain. That approach did not deprive the word “corruptly” in s 103(1) of effect. In part it captures the requirement for a defendant to have acted knowingly. In the present case, this requirement required the Crown to establish that F knew that the services he received were provided in connection with the immigration assistance he gave, meaning that he knowingly engaged in conduct which the legislature regards as corrupt. It is the presence of the word “corruptly” which permits the de minimis exception to liability. Because the services in this case were not de minimis, the trial Judge’s jury directions were correct. (paras 64 to 67)

 Appeal dismissed

Update:

 4th September, 2012 - from Stuff website:
"Former MP Taito Phillip Field says a court order to pay back nearly $30,000 for renovations carried out on his homes by Thai nationals hoping to gain entry to New Zealand is an arbitrary figure which he will question." Read more ...

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