Field v R

• Jurisdiction: New Zealand
• Judge: William Young J
• Judgment Date: 27 October 2011
• Neutral Citation: [2011] NZSC 129
• Docket Number: SC 3/2011
• Court: Supreme Court
• Date: 27 October 2011

Taito Phillip Hans Field

and

The Queen

[2011] NZSC 129

Court:

Elias CJ, Blanchard, Tipping, McGrath and William Young JJ

SC 3/2011

IN THE SUPREME COURT OF NEW ZEALAND

Appeal against conviction for corruptly accepting benefits under s103 Crimes Act 1961 (“CA”)(corruption and bribery of member of Parliament) — appellant was MP — provided immigration assistance to Thai nationals including writing letters vouching for them to Immigration Service — appellant subsequently received substantially valuable services in the form of plastering and painting services — absence of an express promise or bargain — whether receipt of after-the-event reward was corrupt in absence of antecedent bargain or promise — whether receipt of services or benefit by appellant would come within de minimis exception to liability.

Counsel:

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

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by William Young J)

Introduction

The appeal

1 At the conclusion of his trial before Rodney Hansen J and a jury, Taito Phillip Field was found guilty on 11 counts of corruptly accepting benefits in connection with acts carried out by him in his role as a Member of Parliament (laid under s 103(1) of the Crimes Act 1961). He was also found guilty on 15 counts of attempting to pervert the course of justice (laid under s 117 of the Crimes Act). He was subsequently sentenced to a total of six years imprisonment. 1 He unsuccessfully challenged in the Court of Appeal both the convictions and the sentences imposed. 2 His appeal to this Court is confined to the convictions on the charges of corruptly accepting benefits.

The core facts

2 The appellant was a Member of Parliament between 1993 and 2008. Although he also held Ministerial office (as Associate Minister of Pacific Island Affairs, Associate Minister of Social Development and Employment, and Associate Minister of Justice) between 2003 and 2005, the charges he faced related only to his activities as a Member of Parliament. It was in this role that he came into contact with a number of Thai nationals who faced immigration difficulties. The appellant was very knowledgeable about the way the immigration system operated and he advised them as to how they could best secure the immigration outcomes they wanted. He and his staff also wrote letters to the New Zealand Immigration Service and the Associate Minister of Immigration. As well, the appellant had a number of personal meetings with the Associate Minister. The Thai nationals he was helping were involved in the building industry and, in the representations he made on their behalf, the appellant often stressed their expertise as plasterers, painters and tilers. In terms of outcomes achieved, his assistance was very effective, indeed far more so than the paid assistance which they had previously obtained from immigration consultants and lawyers.

3 The appellant started to provide this assistance in late 2002 and, on the Crown case, soon afterwards received plastering and painting services in respect of one of the houses he had an interest in. There were no charges in relation to this first round of assistance and receipt of benefits. Instead, the Crown relied on these events as the beginning of what soon became an established pattern involving the appellant providing immigration assistance and receiving, in return (as the Crown maintained

and the jury must have found), plastering, painting and later tiling services. On the Crown case, this pattern of events became so settled that the appellant knew, from what had gone before, that if he provided immigration assistance the Thais he was helping would reciprocate; and this despite the absence of an express promise or bargain to that effect

4 The relevant charges which the appellant faced covered the period September 2003 to late 2005. On the Crown case the value of the plastering, painting and tiling services the appellant received was in excess of $50,000. While that figure was disputed at trial, it is clear that the services had a substantial value.

5 The primary defence at trial was that the plastering, painting and tiling services were not provided, at least in the appellant's mind, in connection with, and as a reward for, the immigration assistance he provided. That defence was rejected by the jury. That rejection means that we must approach the case on the basis that when the appellant provided immigration assistance he received what he knew were rewards in the form of plastering, painting or tiling services. Given this, he must have recognised early in the piece that such assistance as he provided would, in due course, be rewarded.

The propriety of the actions of the appellant

6 At trial the prosecutor criticised the propriety of some aspects of the immigration assistance provided by the appellant. These criticisms did not amount to much in the context of the case as a whole, were peripheral to the way the Crown case was advanced and irrelevant on the approach to the law taken by the Judge. And by way of preface to what we are about to say, we should also record that, in his sentencing remarks, the Judge in effect acquitted the appellant of having acted improperly in the particular ways in which he assisted the Thai nationals. 3

7 We therefore accept that the appellant did not act improperly in respect of the particular assistance he gave to the Thais. In saying this, however, we should make

it clear that this acceptance leaves distinctly open a rather different question, which is whether in their totality – including receipt of benefits for assistance provided – the appellant's actions were improper

The primary issue

8 As we have just noted, the propriety or otherwise of the assistance given by the appellant to the Thais was irrelevant to the outcome of the case. This is because, on the legal approach adopted by the Judge in his summing up, all the Crown had to prove to establish that the appellant had acted “corruptly” was that he:

[32] … 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.

The Judge thus left it open to the jury to find the appellant guilty if he received the services in question after providing immigration services and irrespective of whether there was any antecedent 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 central issue in the case is whether the Judge was right to do so.

9 The primary argument of Ms Cull QC for the appellant was that liability under s 103(1) requires a corrupt bargain and does not apply to what she called a “gratuity”, that is, a benefit provided after the relevant actions of the Member of Parliament and not pursuant to an antecedent offer or agreement. In the context of the case as a whole, this is perhaps a slightly artificial point because (a) some plastering, painting and tiling was carried out at the same time as, or before, the relevant immigration assistance was provided, and (b) the appellant must have soon realised that he would be rewarded for the assistance he provided despite the absence of offers or agreements to this effect. We will, however, address the argument in the terms in which it was advanced.

10 The Judge's direction was given in relation to the acceptance of services of substantial value, meaning that de minimis considerations could not be, and were not, invoked by the appellant. Given this, we are satisfied that the direction was correct; this in light of the relevant statutory language and context, the legislative history, the leading authorities on similar statutory provisions and the requirements of policy. We will elaborate on these reasons shortly, but before we do so we should refer briefly to the way in which the case was dealt with in the High Court and Court of Appeal and, in the course of doing so, discuss and dismiss subsidiary arguments advanced on behalf of the appellant.

The way the case was dealt with in the High Court and Court of Appeal

11 A prosecution under s 103 may only be commenced with the leave of a High Court judge. The application for leave to prosecute the appellant was opposed on grounds which required the Judge (Randerson J) to address what the Crown would have to show to establish that the appellant had acted corruptly. In granting leave to prosecute, Randerson J held that the appellant would have acted corruptly if: 4

[47] … he deliberately accepted the [services provided] knowing or believing that [their provision] was intended to influence or reward him in respect of assistance given (or to be given) by him in his capacity as a member of Parliament.

Because the appellant's attempt to appeal against the judgment of Randerson J failed on jurisdictional grounds, 5 there was no pre-trial opportunity for the appellant to challenge the approach taken by Randerson J. And, as is apparent from what we have already said, the same test was adopted by Rodney Hansen J at trial.

12 In the course of dismissing the appellant's conviction appeal, the Court of Appeal judgment asserted that the prosecution against the appellant was “really, from beginning to end, a ‘reward’ or gratuity case”. 6 Ms Cull complained that this was not the way the case was advanced at trial. On this point we agree with Ms Cull. It was certainly part of the Crown case that some at least of the services provided to the appellant were by way of inducement in relation to immigration assistance which had not been completed. The same is apparent from the indictment which alleged that services had been corruptly accepted in respect of acts “done or to be done”. It

follows that the Court of Appeal's characterisation of the...