Sullivan v Ministry of Fisheries [2002] NZCA 124; [2002] 3 NZLR 721 (10 June 2002)

Last Updated: 16 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 230/01

	BETWEEN	MICHAEL SEAN SULLIVAN
		Appellant

	AND	MINISTRY OF FISHERIES
		Respondent

Hearing:	13 February 2002
Coram:	Elias CJ Blanchard J Anderson J
Appearances:	C R Carruthers QC and F M R Cooke for Appellant C A McVeigh QC and A J Riddell for Respondent
Judgment:	10 June 2002

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

Table of Contents
	Paragraph Number
Nature of the appeal	[1]
Relevant provisions of the Fisheries Act	[3]
New Zealand Bill of Rights Act 1990	[8]
Factual material	[9]
The District Court hearing	[18]
The District Court decision	[22]
High Court appeal	[32]
Appellant’s arguments on appeal	[35]
Respondent’s arguments on appeal	[42]
Discussion	[47]
Result	[69]
Schedule

Nature of the appeal

[1] Mr Sullivan is a practising barrister and solicitor experienced in fisheries law. He had a client who was questioned by a fishery officer in connection with suspected offences under the Fisheries Act 1983 (the Act). In the course of the interrogation Mr Sullivan advised his client how to answer the questions, including 25 at issue in this case. There is no suggestion that the answers given in accordance with the advice were false. The 25 questions in issue seem innocuous. Indeed, the respondent asserts as part of its case that none of those 25 questions called for answers which would have incriminated or tended to incriminate Mr Sullivan’s client. Many, in fact, were inquisitive only as to form, not substance, such as seeking an acknowledgement from the client that information plainly shown on the face of a document was so shown. Yet the lawyer was prosecuted for the offence under s95(1)(a) of the Act of encouraging his client to obstruct the fishery officer. He was convicted on his summary trial in the District Court and appealed unsuccessfully to the High Court.
[2] Because the case could raise serious issues about a person’s right to seek and receive legal advice, both privileged and otherwise, when detained under an enactment, leave was given by the High Court to appeal to this Court in respect of two questions of law and leave was given by this Court to appeal in respect of a further question. These are:

• (1) In the context of Section 79 of the Fisheries Act 1983 was the finding that the appellant encouraged his client to obstruct a Fishery Officer available in the circumstances of this case?
• (2) Was the finding that the fact that the appellant encouraged an obstruction in itself rendered the statutory defence under Section 105 Fisheries Act 1983 unavailable, correct in the circumstances of the case?
• (3) Was the finding that communications between the appellant and his client in the course of the interview were not intended to be confidential available in the circumstances of this case?
  

Relevant provisions of the Fisheries Act

[3] Many provisions of the Act have now been repealed but as there are analogous provisions in the Fisheries Act 1996 the issues discussed in this judgment still have currency. By virtue of s79 of the Act, fishery officers, warranted or deemed as such, had extensive powers for the purposes of the enforcement of the provisions of the Act and any regulations made under it. They could, for example, question anyone in terms of subs (1)(c) which provided:

79 Powers of Fishery Officer

“(1) Every person holding a warrant designating that person as a Fishery Officer, and every other person who by this Act is deemed to be a Fishery Officer, may, for the purpose of the enforcement of the provisions of this Act and any regulations made under it, at all reasonable times,—

...

(c) Question any person and require the master of any vessel, or any other person, to give any explanation or information concerning that vessel, or any place or thing, or any fish, aquatic life, seaweed, fishing method, gear, apparatus, record, document, article, device, or thing, and require such persons to produce any permit, authority, licence, or certificate issued in respect of that vessel, person, or thing where that Fishery Officer believes on reasonable grounds that such person has been engaged in taking or selling fish, aquatic life, or seaweed, or, where the Fishery Officer believes on reasonable grounds that an offence against this Act or any regulations made under this Act is being or has been committed, has purchased or is or has been in possession of fish, aquatic life, or seaweed.

[4] An obligation to answer lawful questions was implied by the terms of subs (1)(c); also by subs (3) which provided:

(3) Nothing in subsection (1) of this section shall be construed so as to require any person to answer any question tending to incriminate himself.

[5] Expressly however, it was an offence pursuant to s95(1)(c) to fail to comply with the lawful requirements of any fishery officer and, more specifically, it was an offence pursuant to s96(a) to neglect or refuse to furnish information when lawfully requested to do so pursuant to the Act. A person’s right to silence, affirmed by s23(4)(b) of the New Zealand Bill of Rights Act 1990 (the Bill of Rights), was of course over-ridden by these provisions, which had to be given effect – see s4 of the Bill of Rights.
[6] The offence with which this appeal is concerned was specified in s95(1)(a) which provided as follows:

95 Obstructing Fishery Officers

(1) Every person commits an offence who—

(a) Resists or obstructs, or incites or encourages any other person to resist or obstruct, any Fishery Officer while in the execution of the Fishery Officer's powers or duties, or any person lawfully assisting the Fishery Officer; or

[7] Strict liability for offences was stipulated by s105 of the Act which provided:

105 Strict liability

(1) In any prosecution for any offence against this Act or any regulation made under this Act it shall not be necessary for the prosecution to prove that the defendant intended to commit an offence.
(2) It shall be a defence in any such prosecution if the defendant proves—

(a) That the defendant did not intend to commit the offence; and

(b) That—

(i) In any case where it is alleged that anything required to be done was not done, the defendant took all reasonable steps to ensure that it was done; or

(ii) In any case where it is alleged that anything prohibited was done, that the defendant took all reasonable steps to ensure that it was not done.

New Zealand Bill of Rights Act 1990

[8] Relevant to this case are other provisions of the Bill of Rights and in particular ss6, 14 and 23(1) which are now set out:

6 Interpretation consistent with Bill of Rights to be preferred

Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning

14 Freedom of expression

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

23 Rights of persons arrested or detained

(1) Everyone who is arrested or who is detained under any enactment—

...

(b) Shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and

Factual material

[9] The appellant’s client, Mr Ching Tay Hang, was the Managing Director of a company which took a charter of a squid jigging vessel owned by a Chinese fishing corporation. Early in 1999 the Ministry of Fisheries had reasonable grounds to believe that this vessel had, contrary to ss57 and 60 of the Act, fished within New Zealand’s territorial waters. Those grounds were the foundation and justification for the questioning of Mr Ching pursuant to s79(1)(c) of the Act.
[10] Responsibility for the interrogation was undertaken by Fishery Officer Mr Michael Green, who arranged with Mr Sullivan and Mr Ching for an interview in a room at Lyttelton Police Station. The room was about 20 feet square and contained a desk approximately five feet wide. Mr Green intended that the interview should be recorded on audio tape by another Fishery Officer, Mr Backhouse. He told Mr Sullivan and Mr Ching that this would be the case, that the interview would be conducted in English and that it would be between him and Mr Ching. Mr Green advised Mr Ching that he would be free to consult with Mr Sullivan at any time and that such consultation could be in an adjacent smaller room.
[11] The interview was conducted with Mr Sullivan sitting alongside Mr Ching and opposite Mr Green. A multi-directional microphone linked to the recording equipment was on the desk. Mr Backhouse operated the recording equipment but did not otherwise participate in the interrogation.
[12] At the beginning of the recorded interview Mr Green told Mr Ching of the purpose of the interview and that he required Mr Ching to answer questions pursuant to s79(1)(c) of the Act. He told Mr Ching that he was not required to answer questions which might tend to incriminate himself or his company and that he could consult and instruct a lawyer in private and without delay and could confer with Mr Sullivan at any time during the interview. Because Mr Ching’s command of English was imperfect, Mr Green inquired whether Mr Ching felt confident enough not to require an interpreter. Mr Ching indicated he was.
[13] Over the next hour and a half Mr Green put to Mr Ching more than 200 questions, obviously in accordance with a list he had prepared for that purpose before the meeting. Mr Ching refused to answer 108 of the questions on the basis of the privilege against self-incrimination preserved by s79(3). In each of those 108 instances the privilege against self-incrimination was invoked by Mr Ching on Mr Sullivan’s express advice. But the charge against Mr Sullivan of encouraging obstruction does not relate to that advice. It relates to advice given to Mr Ching in respect of 25 questions which the prosecution alleged were evasive and in the nature of “blocking” answers; that Mr Sullivan in effect pre-empted the answering of the questions by his client by telling him what to say rather than the client answering for himself.
[14] Mr Sullivan’s advice to Mr Ching in respect of the 25 questions and many others was whispered or spoken quietly, but was picked up by the sensitive microphone. On four occasions other advice was given by Mr Sullivan in the privacy of the adjacent room during a suspension of questioning to allow that to be done. The process of breaking off for advice to be given was an awkward procedure and it was expedient for Mr Sullivan to advise his client sotto voce to minimise disruption of the interview process. The frequency with which Mr Ching, on advice from Mr Sullivan, invoked the privilege against self-incrimination itself proved awkward. Following a comment from Mr Green, Mr Sullivan said that he would write “79(3)” on a bit of paper and draw his client’s attention to that at appropriate points rather than advising orally for that purpose.
[15] Appended to this judgment is a schedule of the 25 questions in issue, Mr Sullivan’s advice thereon and Mr Ching’s answers. It will be seen that many of the questions seek Mr Ching’s confirmation of what is self-evident. On many occasions Mr Ching was asked to confirm that certain information appeared on the document put to him or that a document had a certain character equally obvious on its face. Plainly, if Mr Green was seeking information such questions were somewhat vacuous. Equally plainly, such questions were not intended to be merely inquisitive. They were in the nature of cross-examination. Whether a fishery officer was empowered by s79(1)(c) to cross-examine a person, particularly in the course of an extended interview may be arguable, although the point has not been put in issue or tested on this appeal. What is obvious, however, is that the fishery officer could hardly have been deprived of information which he needed for the discharge of his powers and duties in getting the answers he did.
[16] In his evidence Mr Green did not allege that the answers to the 25 questions were in any case incorrect and he testified that it was not his criticism that the questions put were not answered fully. When asked what his criticism was he replied:

My criticism now is if it is a criticism is that they were not answered by Mr Ching they were parroted by Mr Ching from Mr Sullivan’s answer to the question. (sic) He was encouraging Mr Ching to answer the question with his response.

[17] Vexed by Mr Sullivan’s involvement the Ministry of Fisheries decided to charge him in respect of the 25 questions. They laid an information originally informing, duplicitously, that Mr Sullivan obstructed or encouraged Ching Tay Hang to obstruct a fishery officer. The information was amended without objection to allege that Mr Sullivan:

did commit an offence against Section 95(1)(a) and 107 of the Fisheries Act 1983 in that he did encourage Ching Tay Hang to obstruct a Fishery Officer, namely Fishery Officer Michael Green, while in the execution of the Fisheries Officer’s powers or duties in conducting an interview of Ching Tay Hang.

The District Court hearing

[18] In the course of the summary trial, counsel for Mr Sullivan objected to the admission of the audio tape and related evidence on the ground that the advice given to Mr Ching was the subject of legal professional privilege. The District Court Judge conducted a voir dire on the issue of admissibility and held that there was no privilege. He came to that conclusion for two reasons. First, the communications, although whispered or spoken quietly, were not and were not intended to be confidential. Second, and equally decisive, Mr Sullivan’s advice in respect of the 25 questions did not constitute legal advice.
[19] The basis of the first ground of rejection of the plea of legal privilege was factual. The Judge found that the only reasonable inference, which as a matter of common-sense could be drawn, was that Mr Sullivan and Mr Ching were aware that Mr Green was hearing what Mr Sullivan was saying and to what Mr Ching’s answers were responding.
[20] The second ground was explained by the Judge in these terms:

In my view, leaving aside for present purposes all the “79(3)” answers (on which the prosecution has disclaimed reliance), the answers which Mr Sullivan provided to the 25 questions on which the prosecution relies in support of the charge did not constitute legal advice to Mr Ching in respect of those questions. In each case what Mr Sullivan did was to provide an answer to the question which Mr Green had just asked, which Mr Ching then parroted, although not necessarily always with total accuracy.

Put shortly, my conclusion on this issue is that, while a solicitor is entitled to provide advice to a client in an interview situation, whether in the context of a Fisheries Act investigation or otherwise, it is a misuse of that position of privilege to effectively step into the shoes of the client and to provide the client with answers to the questions which are asked. It remains the client’s prerogative, and, more importantly, it remains the client’s responsibility, to answer the questions, subject of course to any proper legal advice which he or she may be given by his or her legal adviser as to the appropriateness and fairness of a question and as to whether the privilege against self-incrimination may arise in respect of it.

[21] Apart from briefs of evidence formally approving Mr Green’s status as a fishery officer, and the evidence on the voir dire, the prosecution case essentially comprised the evidence of Mr Green and the transcript and tapes of the interview as well as some ancillary documents. The evidence for the defence was solely the testimony of Mr Sullivan. He said that it was his intention to provide Mr Ching with advice as to how to frame his answers to the questions so Mr Ching could truthfully and accurately answer them but avoid adding any incriminating element to the answer. He said that he took steps to try and ensure that there was no obstruction. He considered it apparent from the outset of the interview that the fundamental purpose of it was to incriminate Mr Ching and that practically every question was designed for that purpose. In cross-examination he said that to the best of his knowledge and honest belief he gave what he thought was legal advice, gave it for the purposes of legal advice and had no intention to obstruct the fishery officer.

The District Court decision

[22] In respect of the elements of the offence, the District Court Judge directed himself that the prosecution must prove beyond reasonable doubt that Mr Sullivan’s conduct in respect of the 25 questions, or any of them, did constitute encouragement to Mr Ching to obstruct Mr Green. He held that the effect of s105(1) of the Act was that it was unnecessary for the prosecution to prove that any such encouragement to obstruct was intentional or deliberate.
[23] The Judge rejected a submission that if any of the questions was incriminating, with the result that the privilege against self-incrimination could be invoked, the fishery officer was not lawfully entitled to ask such a question. That submission was rightly rejected. The legislation excuses answering. It does not prohibit the questions.
[24] Counsel for Mr Sullivan then submitted that for his client to be guilty of encouraging Mr Ching to obstruct, Mr Ching’s answers to the 25 questions must themselves have been obstructive. The Judge did not accept this submission. As will appear in the course of this judgment we think that in the circumstances of this case the Judge erred, but we indicate his reasons. He held that encouraging another person to obstruct a law enforcement officer does not itself necessarily involve there being actual obstruction by the person being encouraged:

In simple terms, the act which gives rise to potential criminal liability on a charge of encouraging another person to obstruct a fishery officer is the act of encouragement itself, and, if that act is committed without lawful justification or excuse, the offence has then been committed, irrespective of the effect of the encouragement on the person with whom the fishery officer is dealing. ... in the context of advice which is given by a solicitor to a client during an interview by a fishery officer, for the solicitor to tell the client how to answer a particular question is to encourage the client to answer the question in that manner. If the suggested answer to the question would be obstructive, then the solicitor has encouraged the client to obstruct the fishery officer.

[25] The District Court Judge rejected counsel’s argument that on the basis of Mr Green’s evidence there was in fact no obstruction and did so for three reasons. First, the focus in the present context must be on Mr Sullivan’s conduct not on Mr Green’s. Second, it was not for Mr Green to decide whether Mr Ching obstructed him or whether Mr Sullivan encouraged Mr Ching to obstruct him. Third, the course which Mr Green took during the interview is consistent with the inference that he decided to follow his predetermined interview plan notwithstanding the unsatisfactory answers which were being given by Mr Ching at Mr Sullivan’s instigation.
[26] The Judge held that “when Mr Ching gave the answers which Mr Sullivan fed to him, Mr Green’s legitimate expectation that Mr Ching would provide his own answers to the questions was frustrated”. The Judge held that it was no answer to say that Mr Ching could have declined to answer a particular question in the manner which Mr Sullivan suggested having regard to the dynamics of the interview including Mr Ching’s less than perfect command of English.
[27] The Judge held that Mr Sullivan’s suggested answers to the 25 questions were all obstructive, that they resulted in actual obstruction. He made particular reference to question no. 104 suggesting that the answer was simply farcical.
[28] The learned District Court Judge was aware of the significance of the case in respect of the role of a solicitor required to advise a client in an interview situation. He referred to Simpson v Ministry of Agriculture and Fisheries [1996] 3 HRNZ 342, where the High Court held that acting on the advice of a lawyer would not avoid strict liability in terms of s105 of the Fisheries Act 1983. The Judge referred to other cases of obstruction or potential obstruction by lawyers. These were Neave v Police (1994) 11 CRNZ 374, where Holland J made an obiter observation at p379; Carr v Gauthier (1992) 97 DLR (4th) 651; and R v Gunn (1997) 113 CCC (3d) 174. (In the two Canadian cases the lawyer’s conduct, not any advice given, was found to be obstruction.) The Judge held:

Against that background, in my view Mr Sullivan had no greater right than a lay person to provide Mr Ching with answers to questions which, subject to the privilege against self-incrimination being exercised, Mr Ching was required by law to answer himself honestly and to the best of his ability.

[29] Dealing with the defence under s105(2) the Judge held it could not be said that Mr Sullivan took all reasonable steps to ensure that he did not encourage Mr Ching to obstruct Mr Green. The advice by which Mr Sullivan provided Mr Ching with blocking or unco-operative answers to questions could not in any sense be viewed as consistent with his having taken all reasonable steps to ensure that there was no obstruction during the interview. He held that Mr Sullivan had not persuaded him, on the balance of probabilities, that he did not intend to encourage Mr Ching to obstruct Mr Green. Again, he made particular mention of question 104.
[30] The District Court Judge summarised his findings in the following terms:

...Mr Sullivan should have provided Mr Ching with advice regarding any legal issues which arose in the context of a particular question, leaving it then to Mr Ching to decide how, with the benefit of that advice, he should then answer the question. To go further than that, and to provide verbatim answers for Mr Ching to parrot, was not an appropriate exercise of the role of a legal adviser, in particular having regard to the privileges which a solicitor enjoys, and the concomitant responsibilities which are inherent in that role, in the context of an interview of a client by a law enforcement officer.

[31] Mr Sullivan was subsequently convicted, fined $15,000, ordered to pay Court costs of $130 and the sum of $10,000 towards the costs of the prosecution.

High Court appeal

[32] Mr Sullivan appealed against conviction and sentence. On the issue of legal privilege Panckhurst J was disinclined to exclude the privilege on the basis of the nature and quality of the communications. Simply because the advice tendered was wrong or ill-considered did not, in his opinion, necessarily rob it of the protection and he did not see this case as straight-forward in that respect. We agree with this view. But he excluded legal privilege on the alternative basis on which the District Court had found it not to apply. This is that the communications between Mr Sullivan and Mr Ching were not in any event confidential in nature. The District Court Judge had extensively reviewed the rival submissions of counsel and the evidence. He ultimately concluded that confidentiality was not intended. Panckhurst J held that the realities of the situation well permitted the conclusion that there was no intention of confidence and he agreed with the District Court Judge’s decision in that respect.
[33] On the issue of obstruction he accepted the submission for Mr Sullivan that generally a person is not guilty of obstruction unless the particular conduct is without lawful excuse. Advice to Mr Ching to rely on the privilege against self-incrimination was conduct which was lawfully excused. But in relation to the 25 questions and answers in issue he held:

Mr Sullivan was still entitled to advise and assist his client to answer the questions. But what he was not lawfully entitled to do was to deny the effect and operation of s79(1)(c), under which Mr Ching was obliged to answer if such questions were non-incriminatory. The Judge, I think, was alive to that obligation and to the fact that no one, including a solicitor, was entitled to interfere in the suspect’s performance of the obligation. In that regard the line between legitimate performance of a solicitor’s advisory role and obstruction was properly drawn by the Judge in a passage quoted earlier (para [26]). Put shortly, advice and assistance is one thing but to subvert the interview process by stepping into the shoes of the client and dictating the answers to the questions was another. I am satisfied this was the underlying basis of the finding that Mr Sullivan encouraged obstruction and that such finding was open on the evidence.

[34] In respect of the statutory defence under s105, Panckhurst J held that the finding that Mr Sullivan encouraged an obstruction in itself rendered the statutory defence unavailable. The appeal against sentence succeeded, however, to the extent that the fine was quashed although the orders for costs remained.

Appellant’s arguments on appeal

[35] We intend to summarise only briefly the respective arguments on appeal for two reasons in particular. First, the examination earlier in this judgment of the District Court trial and High Court appeal adequately indicates the respective positions of the parties and these are largely repeated on this appeal. Second, the appeal is on questions of law and is not in the nature of a general appeal. To the extent that counsel’s submissions discuss evidential material, there is no need to reproduce it except where particularly germane to our decisions on the questions of law.
[36] Counsel for the appellant submitted that Mr Sullivan could not have been guilty of encouraging obstruction because Mr Ching was not obliged to answer the 25 questions. It was submitted he was not obliged because the questions had an underlying incriminatory purpose, of which Mr Sullivan was aware from his experience in fisheries law, and Mr Ching could have invoked s79(3). This argument seems to be a paraphrase of the proposition, rejected by the District Court, that the questions were invalid because they were incriminatory in nature. Mr Carruthers submitted that the lower courts were wrong to conclude that Mr Ching had a duty to answer those questions.
[37] Then it was submitted that advice given by a lawyer to a client not to answer a question or to answer it in a particular way will not amount to an encouragement of an obstruction unless the solicitor does not honestly believe that the client has a right to respond to the question in the way advised.
[38] Next, it was submitted that an obstruction was not proved. Mr Green never reached the point of being prevented from obtaining substantive answers, nor did Mr Ching or Mr Sullivan refuse to allow him to do so.
[39] On the matter of the statutory defence under s105, it was submitted that if Mr Sullivan misunderstood his responsibilities it follows he did not intend to commit the offence in terms of s105(2)(a); and Mr Sullivan honestly believed he was giving assistance within proper boundaries.
[40] On the question of privilege much significance was attached to the fact that Mr Sullivan had already given advice to Mr Ching before the interview and that during the interview he gave further advice in the adjacent room. Mr Sullivan explained in his evidence that the comments which he made to Mr Ching inside the interview room were directly related to the advice given in the side room. His counsel submitted that the Court should have considered whether, in the circumstances of the case, the truncated part of the communication heard by Mr Green and recorded on the tape recorder was still covered by the protection of the privilege which existed in respect of the advice in the side room.
[41] Counsel took issue with the District Court’s finding that the advice was not legal advice but illegitimate instruction. Reliance was placed on this Court’s decision in Gemini Personnel Ltd v Morgan & Banks Ltd [2001] 1 NZLR 672 at 679, involving the application of the long-standing principle that in order to obviate the privilege there must be a purpose of getting advice for the commission of fraud and a prima facie evidential foundation for that in fact. Counsel submitted that in order to establish offending when Mr Sullivan gave his advice and assistance dishonesty must be established. But Mr Sullivan honestly believed that Mr Ching was advised properly to answer the questions in the manner he formulated and accordingly privilege attached. Privilege would not be displaced by incorrect advice.

Respondent’s arguments on appeal

[42] The respondent adhered to its case that where a solicitor, in the course of an interview where the client is compelled to answer certain questions, effectively subverts the interview process by providing verbatim answers to the client for the client to parrot, then the solicitor encourages the client’s obstruction of the fishery officer in exercising his powers or duties. The District Court Judge had found that the 25 questions were not potentially incriminatory and such findings should not be re-opened on an appeal on questions of law. In any event, according to the respondent, the learned District Court Judge was correct both in law and in fact on the issue and there was no evidential foundation for the proposition that answers to the 25 questions might in any case have incriminated Mr Ching.
[43] Contrary to any submission by the appellant, the prosecution did not have to prove as part of its case that Mr Sullivan did not have a genuine belief that he was acting lawfully. The question of lawful justification was objective and subjective belief became relevant only for the purposes of the defence under s105(2).
[44] Arguments of the appellant based on s95(2) are not relevant because at no stage did the prosecution rely on that subsection. Generally the submissions supported the District Court Judge’s findings on the issue whether there had been an encouragement to obstruct.
[45] Concerning the defence under s105(2), it was submitted that a distinction had to be drawn between motive and intention. A mistake could not be relied upon and in any event the appellant was caught by the factual finding in the District Court that he did intend to obstruct.
[46] On the question of confidential advice, counsel principally relied upon the factual findings and submitted that the correct legal test was applied both in the District Court and the High Court. That test was whether the communications were intended to be confidential and there was a sufficient evidential basis for the Court to find that it was not.

Discussion

[47] For convenience, we repeat the questions of law:

• (1) In the context of Section 79 of the Fisheries Act 1983 was the finding that the appellant encouraged his client to obstruct a Fishery Officer available in the circumstances of this case?
• (2) Was the finding that the fact that the appellant encouraged an obstruction in itself rendered the statutory defence under Section 105 Fisheries Act 1983 unavailable, correct in the circumstances of the case?
• (3) Was the finding that communications between the appellant and his client in the course of the interview were not intended to be confidential available in the circumstances of this case?

[48] For the reasons appearing hereafter, this Court’s responses to the question are respectively, “No”, “Not applicable” and “Yes”. The answers to (2) and (3) above are not dispositive of the appeal. It is possible to deal with them reasonably succinctly and expedient to do so now.
[49] The second question is not reached because of our finding that the appellant should not have been convicted of the alleged offence. But if there were otherwise an adequate evidential basis for convicting the appellant, he would not have been saved by s105(2). This is because he could not have established essential requirements of the statutory defence. These were that he “did not intend to commit the offence” and that “he took all reasonable steps to ensure that it [viz, the prohibited encouraging of obstruction] was not done”.
[50] The very acts said to constitute obstruction were intentional. The proposition that he took all reasonable steps not to say what he did is untenable. The statutory defence is inapt in the particular circumstances. It is not as if, for example, a person has inadvertently fallen over in the way of a fishery officer giving chase to a poacher; or made an understandable mistake about where he is fishing through an unforeseen failure of navigational equipment. The advancing of the defence confuses the concepts of, on the one hand, an intention to commit an offence and, on the other hand, an intention to do the acts which amount to the offence in terms of strict liability. It is self-evident that Mr Sullivan cannot assert that he took all reasonable steps to ensure that he did not give his client the advice said to constitute encouragement of obstruction.
[51] As to the question concerning confidentiality, we do not accept the submissions for Mr Sullivan that the District Court Judge was not entitled to find as a fact that the relevant communications were not intended to be confidential. There was an adequate evidential basis for the District Court’s findings indicated at paragraphs [18] and [19] of this judgment.
[52] We turn therefore to matters ultimately of more significance concerning the legal implications of the evidence in relation to alleged encouragement to obstruct.
[53] It is highly pertinent that the offence for which Mr Sullivan was tried was encouraging obstruction, not obstruction itself. In the unusual circumstances of this case the distinction is material and, we think with respect, was not adequately recognised in the District Court and High Court.
[54] The District Court held that encouraging another person to obstruct a law enforcement officer does not necessarily involve there being actual obstruction by the person being encouraged. As a generalisation, that is correct, but in the circumstances of this case it is not. In taking the view that Mr Sullivan subverted the interview process by stepping into the shoes of the client and dictating the answers to the questions, the High Court also treated the facts as if Mr Sullivan were the obstructer, not the encourager.
[55] What Mr Sullivan encouraged is exactly what Mr Ching did. It is axiomatic that if Mr Ching’s conduct did not amount to the offence of obstruction under s95(1)(a) of the Act, Mr Sullivan’s encouragement of that very conduct could not amount to the offence of encouragement of obstruction.
[56] Because Mr Sullivan’s encouragement in fact of the specific conduct is plain, the focus should be on Mr Ching’s conduct, including its context of his rights under the Bill of Rights. The District Court Judge’s opinion was that Mr Sullivan had no greater right than a lay person to provide Mr Ching with answers and that the focus must be on Mr Sullivan’s conduct. That was a wrong approach.
[57] As we noted at the beginning of this judgment, none of the answers given by Mr Ching was false. On the Crown’s own case none would tend to incriminate. Mr Ching, being detained under an enactment, had the right to consult and instruct a lawyer without delay (s23(1)(b) Bill of Rights). The right to legal advice has of course been construed in numerous cases as importing confidentiality but is not limited to confidential advice. He also had the right, more general in its nature, to receive information and opinions, affirmed by s14 of the Bill of Rights.
[58] There are few statutory pre-emptions of the right to silence affirmed by the Bill of Rights, and of the constraints on cross-examination of detainees. The Fisheries Act is one such exception. But its limitations on fundamental rights should not be construed expansively having regard to s6 of the Bill of Rights.
[59] The District Court Judge’s opinion that Mr Green had a “legitimate expectation that Mr Ching would provide his own answers to the questions”, by implication without receiving and acting upon legal advice in respect of them as he did, places an interpretation upon the statutory obligation to answer which unnecessarily limits Mr Ching’s right to receive information, particularly from his lawyer, affirmed by the Bill of Rights.
[60] Of course, “legitimate expectation” is essentially a concept of public law and has no real relevance in the circumstances of this case. Its invocation appears to have deflected consideration of Mr Ching’s rights and obligations, which do not necessarily correlate with what Mr Green hoped or expected.
[61] Just because the Fisheries Act gives a power to question, with a concomitant implied power to detain for that purpose, and a duty to answer, it does not mean that a person questioned is to be denied the right to legal consultation and advice; nor that the person interrogated is obliged to answer effusively rather than strictly correctly. Persons interviewed cannot be required to promote the questioner’s obvious or concealed motives, nor to facilitate their own conviction, beyond compliance with a duty to give honest answers which meet the question.
[62] In the present case the structure of the detention and interrogation created practical difficulties for Mr Ching to obtain legal advice in private. If he had sought a private consultation with Mr Sullivan after every question the inquiry would have become extended and he would have been detained for considerably longer. But the right to legal advice could not be and should not be regarded as depreciated or extinguished by practical constraints on private consultation. Nor could Mr Ching’s rights be attenuated or effectively negated by a view that he was not entitled to follow lawful advice which he was entitled to receive. On the contrary, where human rights and fundamental freedoms have been truncated by statutory provisions, the residuary rights of the subject should be fully emphasised. This is such a case. Mr Ching was subjected to compulsory detention for the purpose of interrogation. Unlike someone being interviewed, with or without detention, for even the most serious offences under the Crimes Act 1961, for example, Mr Ching could not decline to answer or invoke the law’s protection against unfair cross-examination in detention.
[63] In these circumstances an opinion that the person being interrogated commits the offence of obstruction by answering innocuous questions strictly correctly in terms of legal advice entitled to be received, pays insufficient regard to the subject’s relevant rights affirmed by the Bill of Rights. If the learned District Court Judge intended to convey that Mr Ching had to answer to the best of his ability without legal advice, we cannot agree.
[64] Nor can we accept that in deciding to follow his lawyer’s advice Mr Ching was in some entirely involuntary way merely “parroting”. He was entitled to follow the advice and must be taken to have elected to do so. If the answers had been unlawfully obstructive it would not have availed him to say that he was not guilty because he merely parroted. Simpson v Ministry of Agriculture & Fisheries, supra, is indicative. By the same token if, as we hold, the answers were not unlawfully obstructive they do not lose that character through having been given on legal advice.
[65] We are not dissuaded from this view in the present case by the perception by the District Court Judge that Mr Ching’s answers were sometimes “farcical”. To the extent that any answers may have seemed vacuous they reflected the quality of the question to which they responded. Consider the example which was particularly criticised in the District Court:

Mr Green

104. I want to show you a further Exhibit that was taken from the Fu Yuan No.4 by Fisheries Officer Backhouse. The Exhibit is FUY/GB/009. I’d like you to look at this, please. What is that document to you?
     

Mr Sullivan

Sotto voce to Mr Ching: It is a document with writing on it.

Mr Ching

It is a document with writing on it.

[66] The question “What is that document to you” is largely meaningless. We have difficulty in understanding not only the question but, more importantly, how such a question could reasonably be perceived as within the statutory power to question for the purposes of the enforcement of the provisions of the Act.
[67] Overall, however, we think it unnecessary for us to dissect each of the 25 questions in issue. It is sufficient for the purposes of the judgment to repeat that each such question could not tend to incriminate, was indeed harmless; that no answer has been shown to be false; that every answer was given in accordance with legal advice; and that in all the circumstances Mr Ching could not be considered to have committed the offence of obstruction.
[68] The nature of the charge and the circumstances of the case require, as we have determined, that Mr Sullivan could not be guilty of encouraging obstruction if the very thing he encouraged was not obstructive. But even if Mr Sullivan had been tried for actual, rather than encouraging, obstruction, as he was originally charged, we think that in the circumstances of this case the prosecution should have failed. This is because a subject’s rights under s23(1)(b) of the Bill of Rights would be defeated if the lawyer whose advice was sought could be enjoined from giving legal advice to a client to answer a question or question in a way in which the client was himself entitled to answer. An inevitable concomitant of a detained subject’s right to legal advice must be a right in the subject’s lawyer to give advice. The lawyer also has a personal right by virtue of s14 of the Bill of Rights to impart information. Although that right, like all others affirmed by the Bill of Rights, is subject to justified limitations in terms of s5, it could hardly be constrained in circumstances where the lawyer’s client has a specific right of consultation. By reason of those provisions of the Bill of Rights, in combination, a lawyer is not the same as any other person. To the extent that Mr Sullivan’s situation may seem to rely on features of Mr Ching’s rights under the Bill of Rights we are mindful, of course, that usually an accused cannot rely, parasitically, on another’s rights. But his own right to impart information affirmed by s14 and Mr Ching’s rights affirmed by ss14 and 23(1)(b) take a case of this nature beyond mere parasitism.

Result

[69] For these reasons we are satisfied that the answer to the first question of law is “No”. That renders the answer to the second question “Not Applicable”. The answer to the third question is “Yes”. In view of the answer to the first question the conviction cannot stand. The appeal is therefore allowed. The conviction and orders for costs are accordingly quashed.

Solicitors
M S Sullivan & Associates, Nelson for Appellant
Crown Solicitors, Christchurch for Respondent

SCHEDULE

Ching Interview Questions

No.	Question	Solicitor’s Comments	Answer
TAPE#1
45	I’ll get you to look at document no.4. Can you confirm that this document is a true and correct copy of an Automatic Location Communicator Registration certificate for Sea Bounty Ltd, client no.9520016, for the vessel Fu Yuan no.4?	Sotto voce to Mr Ching: That is what it appears to be. Say that, “That is what it appears to be”. Say, “That is what it appears to be”.	That is what it is be.
46	Can you confirm that the vessel’s automatic location communicator is described in this document?	Sotto voce to Mr Ching: It appears to be.	It be.
47	Can you confirm that this document also shows the vessel type to be charter?	Sotto voce to Mr Ching: It appears to be.	It appears to be.
48	I shall now show you document no.5. Can you confirm that this document is the original application for the registration of the fishing vessel Fu Yuan no.4, for Sea Bounty Ltd, client no.9520016?	Sotto voce to Mr Ching: It purports to be. It purports to be.	It purports to be.
51	Part 3 of this document refers to vehicle specifications. Is that correct?	Sotto voce to Mr Ching: That’s what it purports.	That’s what it purports.
53	Part 6 over the page indicates the vessel’s nationality to be Chinese and that it is registered in that country showing a registration number. Is that correct?	Sotto voce to Mr Ching: That’s what it purports to be.	That’s what it purports to be.
62	I refer you now to my previous Exhibits no.6. Can you confirm that this document is a true and correct copy of a Certificate of Registry for the vessel Fu Yuan no.4, which shows the owner to be Sea Bounty Ltd, owner type charterer?	Sotto voce to Mr Ching: Respond: “I don’t know the answer to that question”.	I don’t know to answer the question.
63	I refer you now to document no.7. Can you confirm that this document is a photocopy of a notification pursuant to Section 332 of the Fisheries Act 1996?	Sotto voce to Mr Ching: That’s what it purports to be.	That is what purports to be.
64	Does this document notify that Sea Bounty Ltd is an authorised agent to act on behalf of the China National Fisheries Yan Tai Marine Fisheries Corp. in respect of the fishing vessels Fu Yuan no.3 and Fu Yuan no.4?	Sotto voce to Mr Ching: That is what it purports to say.	That is what it purports to say.
66	I’ll show you document no.8. Can you confirm that this document is a photocopy of a Squid Fishing Contract or Agreement between China National Fisheries Yan Tai Marine Fisheries Corp. and Sea Bounty Ltd?	Sotto voce to Mr Ching: That is what it purports to be.	That is what it purports to be.
70	I refer you to document no.10. Can you confirm that this is a letter on Sea Bounty Ltd letterhead, addressed to the Ministry of Fisheries, regarding the registration of three Chinese vessels, chartered by your company this fishing year?	Sotto voce to Mr Ching: That is what it purports to be.	That it purports to be.
74	I now refer you to a document, no.24. Can you confirm that this is a Notification of Lease or Sub-Lease of Individual Transferable Quota, showing the lessee to be Sea Bounty Ltd, and the lessor to be Sanford South Island Ltd, dated the 30th November 1998?	Sotto voce to Mr Ching: That is what it purports to be.	That it purports to be.
75	This document, on the back of the front page, has a Schedule which shows your company leased five ton of squid SQUIJ quota from the lessor. Is that correct?	Sotto voce to Mr Ching: That is my understanding.	That is my understanding.
80	And the last document, no.25. Can you confirm that this is a Notification of Lease or Sub-Lease of Individual Transferable Quota, showing the lessee to be Sea Bounty Ltd, and the lessor to be Sanford South Island Ltd, dated the 12th of January 1999?	Sotto voce to Mr Ching: That is what it purports to be.	That’s what it purports to be.
81	This document, on the back of the front page, shows that your company leased 200 ton of SQUIJ quota from the lessor. Is that correct?	Sotto voce to Mr Ching: That is what it purports to be.	That it purports to be.
TAPE#2
98	I put it to you that you have three vessels chartered to your company this season. They are all foreign-owned vessels but registered as New Zealand fishing vessels, by your company and pursuant to your permit. Is that correct?	Sotto voce to Mr Ching: That could be correct.	That could be correct.
99	Do Sea Bounty Ltd lease quota for fish that get caught by these vessels?	Read that please.
	Do Sea Bounty Ltd lease in quota to cover fish caught by the chartered vessels?	Sotto voce to Mr Ching: That would be my understanding.	That would be my understanding.
104	I want to show you a further Exhibit that was taken from the Fu Yuan no.4 by Fisheries Officer Backhouse. The Exhibit is FUY/GB/009. I’d like you to look at this, please. What is that document to you?	Sotto voce to Mr Ching: It is a document with writing on it.	It is a document with writing on it.
105	Can you tell me what kind of document it is?	Sotto voce to Mr Ching: I do not understand the question.	I do not understand the question.
	You do not understand the question? Is that correct? I’ll read what I call a label to you. Product of New Zealand, Fu Yuan 4, licence no.L63281, whole jig arrow squid, 15kg nett weight, store below minus 18° Celsius, Grade, GM packing date. I put it to you that this is a fishing package label that is attached to the squid caught by your chartered vessels. Is that correct?	Sotto voce to Mr Ching: If you say so.	If you say so.
109	Where are the LFR premises?	Sotto voce to Mr Ching: The LFR premises are set out in the license. The LFR premises are set out in the license.	The LFR premises are those set up in the license.
110	Could you tell me their locations	Sotto voce to Mr Ching: Not without reference to the license. Not without reference to the license.	Not without reference of license.
111	Do you not know where they are? Where your licensed fish receivers are?	Sotto voce to Mr Ching: I can tell you where I think they are.	I can tell you where I think they are.
	Please do so.		In Timaru. Nelson. Dunedin.
112	Those three? What about Christchurch and Bluff?	Sotto voce to Mr Ching: I would need to refer to the license.	I would need to refer to the license.
	So you cannot remember, you’re telling me?	Sotto voce to Mr Ching: I wish to be accurate. I wish to be accurate.	I wish to be accurate.
154	The document that I just showed you is on a letterhead, China National Fisheries Corporation. Is that correct?	Sotto voce to Mr Ching: It purports to be.	It purports to be.
161	While I was in your office at home the other day, I located documentation amongst which was a Squid Jigger Catch Return and a Catch Landing Return. I have exhibited these as CNG/MG/018. I’d like you to look at these documents please. Can you confirm that the top documents are Squid Jigger Catch Effort Returns and the bottom ones are Catch Landing Returns?	Sotto voce to Mr Ching: That is what they appear to be.	That is what it be.