Para No
Introduction
The convictions and sentence [1]
The broad nature of the charges [4]
Some matters of process [17]
Parliamentary control of conflicts and gifts [23]
The grounds of appeal [28]
The Crown response [30]
First ground of appeal: the legal test for corruption
The significance of political corruption [31]
Where is bribery and corruption by members of Parliament
to be dealt with? [34]
The New Zealand statutory scheme [41]
The concept of a bribe [46]
The concept of “corruptly” [49]
A corrupt bargain is required? [65]
An adequate direction? [88]
The second ground of appeal: wrong legal test for obstructing/
perverting the course of justice
The legislation [102]
The convictions [103]
The Crown case [104]
The evolution of Mr Field’s conduct
(a) Alarm bells [106]
(b) Ingram inquiry [108]
(c) Police investigation [119]
Summary [123]
The appeal points [124]
The legal principle(s) [127]
The factual context [137]
Conclusion [141]
The third ground of appeal: wrongful admission of evidence
Introduction [143]
The appropriate principle [145]
(a) Assistance to Mr Field [150]
(b) Mr Field’s interviews with Dr Ingram QC were voluntary [151]
(c) Mr Field’s “status” during the interview [152]
(d) The Evidence Act 2006 [153]
(e) The distinction between the Ingram inquiry transcript and the
report itself [154]
(f) Entrapment or unfairness [157]
(g) No improper editing of the transcript [158]
(h) No oppression [160]
(i) Rule 3 of the Practice Note [161]
Conclusion [162]
The fourth ground of appeal: miscarriage of justice [163]
The evidence of Banleng Prachanan [165]
Tiling at Afiamalu [171]
The sentence appeal
The sentence imposed [177]
First ground of sentence appeal [178]
Second ground of sentence appeal [182]
Attempt to pervert the course of justice offences [186]
Third ground of sentence appeal [191]
Result [193]
Conclusion [194]

Introduction

The convictions and sentence

[1] The appellant, Taito Phillip Hans Field, was first elected as a Member of Parliament in 1993. He remained a Member of Parliament until 2008. In 2003 he was appointed Associate Minister of Pacific Island Affairs, Associate Minister of Social Development and Employment, and Associate Minister of Justice. He held those positions until the 2005 general elections.
[2] Mr Field became embroiled in certain matters that eventually led to criminal prosecutions against him. After a trial of more than three months, he was convicted by a jury presided over by Rodney Hansen J of 11 counts of bribery and corruption as a Member of Parliament. These charges were laid under s 103(1) of the Crimes Act 1961. Mr Field was also convicted on 15 counts of attempting to pervert the course of justice under s 117 of the Crimes Act.
[3] On 6 October 2009, Mr Field was sentenced to four years imprisonment on the s 103 charges and two years imprisonment on the s 117 charges.^[1] These sentences were to be served cumulatively. The effective sentence was one of six years imprisonment. Mr Field is still therefore a serving prisoner.

The broad nature of the charges

[4] The thrust of the Crown allegations in relation to the bribery and corruption counts was that between September 2003 and late 2005, Mr Field, having provided or, in some cases, while providing, immigration assistance to various Thai people who had approached him, accepted free or low cost labour from them in the form of plastering, painting, or tiling, on certain of his properties. The essence of the wrong alleged was that Mr Field received a benefit for something that he was elected and paid to do as a Member of Parliament; and that what he did was caught by the provisions of s 103 of the Crimes Act. We deal with that section in full, later in this judgment. At heart, this is an “unlawful reward” case.
[5] For introductory purposes it is sufficient to note that the trial Judge directed the jury that the receipt of rewards is an offence under s 103(1) if the reward had been accepted “corruptly”. In the circumstances of this case this required that Mr Field knew that the work on his properties had been done in order to influence or reward him for the immigration assistance he had provided.
[6] The total value of work done for Mr Field in New Zealand and Samoa was estimated to be in the tens of thousands of dollars. Although the exact value of the work done was disputed, the benefit to Mr Field was on any view substantial.
[7] As to the perverting the course of justice charges, media allegations were made in late 2005 in relation to some of the conduct that eventually gave rise to the s 103 charges. Specifically, the media allegations were that Mr Field had interceded with the then Associate Minister of Immigration, the Hon Damien O’Connor, on behalf of Thai immigrants to New Zealand in return for the immigrants completing work on properties owned by Mr Field or his family in New Zealand; and on one property at Afiamalu, Samoa owned by Mr Field.
[8] The Prime Minister at the time, the Rt Hon Helen Clark, appointed Dr Noel Ingram QC to investigate these claims (the Ingram inquiry). Dr Ingram was assisted by Mr Kayes. This was a ministerial inquiry but it was not conducted under the aegis of any statutory power. Under its terms of reference, the Ingram inquiry was to investigate and determine: the nature of Mr Field's relationship with a Thai person, Sunan Siriwan, and his wife, and the extent of any involvement Mr Field may have had in applications for work permits for them; whether any conflict of interest existed concerning Mr Field's involvement in those matters; and identify any other matters necessary to provide a complete report. In conducting the inquiry, Dr Ingram did not have the power to compel witnesses and evidence was not given under oath.
[9] From the preamble to the terms of reference of the Ingram inquiry it appears that the Prime Minister’s concern was to uphold the principle that Ministers were required to avoid conflicts between their private interests and the use of their influence as Ministers.^[2] That is, it was not set up as an inquiry into criminal conduct.
[10] Concurrently with that inquiry, the police had independently received information relating to the media allegations, and had begun to investigate them. Some of the information received by the police was forwarded to Dr Ingram. Mr Field was informed of the initial police activity in June 2006 when parts of that file were disclosed to him. Formal police inquiries were not commenced until after Dr Ingram had released his report.
[11] Dr Ingram reported to the Prime Minister in July 2006.^[3] He noted the difficulties for his inquiry owing to its inability to compel witnesses or to require the production of documentary evidence. He felt unable to resolve conclusively some issues. He did however conclude that Mr Siriwan had performed extensive tiling work on Mr Field’s property in Samoa for no remuneration. He found that Mr Field had made personal representations to the Associate Minister of Immigration on behalf of Mr Siriwan, writing letters to him and meeting with him twice with respect to that matter.
[12] Dr Ingram concluded however that there was no conflict of interest in the sense contemplated by the preamble to the terms of reference. That was on the bases that Mr Field had not told Mr Siriwan he could influence Mr O’Connor; that there was no evidence that Mr Siriwan was motivated by Mr Field’s official position; and that Mr O’Connor did not afford Mr Siriwan any preferential treatment.
[13] As to other matters, Dr Ingram found that Mr Field did not inform Mr O’Connor of Mr Siriwan’s work on the house in Samoa and that Mr Field took no steps to ensure, once he became aware of the potential for conflict, that Mr Siriwan either stopped his work or was remunerated.
[14] Dr Ingram also raised concerns about other Thai nationals working on Mr Field’s Samoan property, as well as yet more Thai nationals working on New Zealand properties, providing plastering and painting services. All apparently received from Mr Field’s assistance in immigration matters.
[15] The essence of the Crown’s case on the perverting the course of justice charges was that once concerns were raised – in particular as to Mr Siriwan’s position – Mr Field began making and procuring the making of statements and documents for the Ingram inquiry, with the intention of deflecting any possible consequences against himself. And further, once the police inquiry became known, it was alleged Mr Field procured further false and misleading documents and sought to procure further false and misleading statements with the intention of deflecting contemplated criminal proceedings.
[16] In short, Mr Field was said to have endeavoured, in a variety of ways, to “head off” the potentially adverse personal, political, and criminal consequences of adverse findings against him.

Some matters of process

[17] We note three matters of process. First, it is not possible to bring a charge under s 103 of the Crimes Act 1961 against a Member of Parliament without the leave of a Judge of the High Court.^[4] There were two hearings before Randerson J on this issue. He delivered a separate judgment in respect of each. In the first,^[5] Randerson J defined the criteria applying to s 103 leave applications. In the second,^[6] the Judge granted leave to prosecute in respect of the 15 draft informations which had been provided to him.

[18] Second, Mr Field thereupon sought to appeal those decisions of Randerson J to this Court. This Court heard argument in November 2007, and on 17 December 2007 ruled that there was no jurisdiction to hear a pre-trial appeal for charges brought under s 103.^[7] Mr Field then sought leave to appeal that decision to the Supreme Court of New Zealand, but leave was denied.^[8] So, this is the first time the appropriateness of the jury direction foreshadowed by Randerson J, and actually utilised by Rodney Hansen J at trial, has been considered on appeal.
[19] Third, as a matter of caution, during the hearing we raised a concern as to whether the issues relating to the conduct of Mr Field might have given rise to questions relating to what is loosely termed parliamentary privilege. That the courts will not interfere in matters within the purview of Parliament’s multifarious privileges is a principle of high constitutional moment. Although counsel had not considered it, it is the Court’s duty to ensure that it does not interfere in matters of privilege: the courts are astute to recognise their constitutional role.^[9] In fulfilling this duty however, privilege being part of the general law of New Zealand,^[10] the Court must determine the scope of privilege and thus whether it applies in the particular case.^[11]
[20] Two features of this case present as potentially giving rise to parliamentary privilege. One is that the House has an exclusive power to punish conduct that it considers to be in contempt of the House. Courts are concerned not to intrude upon the process of investigating and punishing contempt in that institution. This is one aspect of its wider privilege of exclusive control over its own proceedings.^[12] Further, there can be issues as to the admissibility of evidence as to what happens in the House because to admit such evidence may risk the court questioning parliamentary proceedings contrary to the privilege enshrined in art 9 of the Bill of Rights 1688. The purpose of that privilege is to protect members from what would otherwise be the legal consequences of what they say in the House.^[13] That said, a
criminal prosecution is not barred by proceedings in Parliament.^[14]
[21] As it transpires, we note that the Leader of the Opposition did indeed raise with the Speaker the question of whether Mr Field’s conduct as found in Dr Ingram’s report was in contempt of the House. In a formal ruling delivered on 26 July 2006 the Speaker, the Hon Margaret Wilson, determined that “no question of privilege is involved with respect to the matters which are before us”.^[15] Madam Speaker, as she said “unusually”, gave full reasons for her ruling “because of the widespread interest in this matter”. She referred to the various Standing Orders of the House which bore on the issue of Mr Field’s alleged wrongdoing.
[22] The short point is that the Speaker of the House ruled that Mr Field’s conduct as found by Dr Ingram could not be in contempt of the House because it was not linked to the parliamentary process. Therefore no question of privilege arose. We have similarly reached the conclusion that parliamentary processes were not touched on by Mr Field’s conduct. We have in addition reached the further conclusion that as the Ingram inquiry was itself not part of the parliamentary process, being in effect a private matter (albeit of intense public interest) instigated by the Prime Minister, this Court is not prevented from questioning its proceeding or the matters raised in the report. We consider that our determination of this appeal is therefore not affected by parliamentary privilege and that we need not be further concerned about this issue.

Parliamentary control of conflicts and gifts

[23] It is convenient to mention here that both the Cabinet Manual and the Standing Orders of the House of Representatives (Standing Orders) lay down rules as to the conduct, public duty, and personal interests of Ministers and members of Parliament respectively. At various times both sets of rules applied to Mr Field. It is not necessary to traverse these in detail though they have some contextual relevance. In the Cabinet Manual for instance, under the heading “Conduct of Ministers”, it is noted that holding ministerial office is regarded as a full-time occupation and is remunerated as such. Accordingly, accepting additional payment for doing anything that could be regarded as a ministerial function is not permissible; and accepting payment for any other activities requires the prior approval of the Prime Minister.^[16]
[24] There are also provisions relating to a register of the pecuniary interests of members of Parliament designed to promote accountability and transparency by identifying personal financial interests that might influence members. There are provisions relating to identifying conflicts of interest and for managing and resolving those conflicts.
[25] As to gifts, the Standing Orders require members of Parliament to disclose to the Registrar of Pecuniary Interests of members of Parliament any gift accepted over a prescribed value, currently $500.^[17] This declaration includes hospitality and donations in cash or kind. Under the Cabinet Manual, Ministers who accept gifts worth more than the prescribed value must not only disclose them to the Registrar but also relinquish them, unless they obtain the express permission of the Prime Minister to retain them. Any gift accepted by Ministers may be relinquished to the Parliamentary Service to arrange appropriate display or storage. Gifts that Ministers receive from close family members need not be relinquished.
[26] The Cabinet Manual recognises the concept of cultural gifts such as koha, mealofa, lafo, or quanxi which are traditionally offered to honour and show respect for relationships, and reflect concepts such as service to others, reciprocity, hospitality and responsibility. It specifically notes that although these may be offered to a Minister with the best of intentions “accepting such gifts may create a perception of a conflict of interest or accusations of ‘double dipping’”.^[18] Ministers are expected to return gifts of cash immediately, “with a respectful statement explaining that they honour the intent behind the gift, but that it is their job to serve, and that they are already well remunerated for their work”.^[19]
[27] The duties of Ministers and Members alike are clear and well-established. We make no further comment on these matters as they relate to this case. It is likely that once it became apparent criminal charges would be or had been laid that matters were left to be dealt with in the judicial forum.

The grounds of appeal

[28] Mr Field now appeals against his convictions on four grounds, alleging:

(a) that the wrong legal test was adopted for “bribery and corruption”, at both the leave to prosecute and the trial stages;

(b) that there was an erroneous ruling and a misdirection that the statements to the Ingram inquiry had the potential to obstruct or pervert the course of justice;

(d) that there was a miscarriage of justice.

[29] As to the sentence appeal, three grounds are advanced:

(a) that the Judge erred in his interpretation of the offence under s 103 of the Crimes Act, and the downstream consequences of that for the sentencing exercise;

(b) that the total sentence imposed by the Judge was manifestly excessive; and

(c) that the Judge failed to give a discount for this “unusual set of circumstances, being the first of its kind [in New Zealand] under s 103”.

The Crown response

[30] Broadly, the Crown response is that Randerson J and Rodney Hansen J respectively did not err in their interpretation of the relevant legislation; that the jury was correctly directed; that the evidence led was appropriately before the jury; that in the particular circumstances of the case perversion of justice charges were open to the Crown; that the convictions were correctly returned and entered; and that the sentences imposed on Mr Field should be upheld.

First ground of appeal: the legal test for corruption

The significance of political corruption

[31] Political corruption affects everybody in a given society. Those entitled to do so elect politicians and political parties expecting them to act in the public interest. By electing them, electors give politicians access to public resources and the power to make decisions impacting on the lives of everyone. Given this privileged position, immense damage can be inflicted by politicians or parties acting out of greed, or in the service of those who bankroll their ascent to power.
[32] It should not therefore be surprising that people the world over have increasingly demanded absolute probity of their political leaders. It has to be a matter for considerable concern that in so many countries of the world citizens single out political parties, or members of it, as the institution or personnel they perceive as “most corrupt”.^[20] And moreover, as was said by L’Heureux-Dubé J for the Supreme Court of Canada in Hinchey v R, “... our democratic system would have great difficulty functioning efficiently if its integrity was constantly in question”.^[21]
[33] In fairness, it should be observed that New Zealand ranks very high on all international surveys which have been conducted relating to corruption in public sector institutions, including Parliament.^[22] Indeed this is the first case in New Zealand in which leave had been sought to bring a criminal prosecution for bribery and corruption against a Member of Parliament under the Crimes Act. It is that very factor which in many ways has brought the difficulties in this case to a head: the lack of precedent has left room for argument as to the present law in New Zealand.

Where is bribery and corruption by members of Parliament to be dealt with?

[34] Every jurisdiction faces the problem, if it wishes to proscribe bribery and corrupt practices by members of its legislature, of where to locate such proscriptions. One possibility is to leave such matters entirely to Parliament itself, as a matter of parliamentary privilege. There is no doubt, for it is a principle of long standing, that the bribery of a member of the House, or the acceptance of a bribe by a member, is a contempt of Parliament and can be dealt with by that institution so long as it touches on parliamentary proceedings. As long ago as 1695 the House of Commons in the United Kingdom resolved that “the offer of money or other advantage to any Member of Parliament for the promoting of any matter whatsoever, depending, or to be transacted in Parliament, is a high crime and misdemeanour and tends to the subversion of the English Constitution”.^[23]
[35] If, on the other hand, bribery and/or corruption are to be made criminal offences punishable under the regular law of the land as well as by Parliament internally, there is an issue whether there should be specific offences for specific persons occupying public positions, including Parliamentarians; or whether they should be dealt with under the generic offences in a criminal code.
[36] In the United Kingdom, the Salmon Commission recommended that Parliament should consider bringing corruption, bribery and attempted bribery of a Member of Parliament acting in her or his parliamentary capacity within the ambit of the criminal law.^[24] That was in 1976. Twenty years later a committee appointed by the then British Prime Minister, and chaired by Lord Nolan, recommended the law should be clarified and suggested this could be combined with the (United Kingdom) Law Commission’s consolidation of the statute law on bribery generally.^[25]
[37] Particular solutions are not easy. The (United Kingdom) Law Commission summarised the issues thus:^[26]

Whether Members of Parliament are subject to the criminal law of corruption and more particularly whether they should be are both contentious issues currently to the fore in public debate ... on the one hand it has been said of Members of Parliament that ‘Few are in a higher position of trust or have a duty to discharge in which the public have the greatest interest’, and they should arguably therefore be subject to the criminal law. On the other hand, they are sui generis, in that although they have the benefit of parliamentary privilege, which protects them against criminal liability for things said in parliamentary proceedings, they are, in consequence, subject to the jurisdiction of Parliament.

[38] The broad options for the arrangement of the law consist primarily of the following:

(1) To rely solely on parliamentary privilege to deal with accusations of bribery of members of Parliament.

(2) To subject members of Parliament to the same corruption statutes as any other people.

(3) To distinguish between conduct which should be dealt with by the criminal law and that which should be left to Parliament itself.

(4) To make criminal proceedings subject to the approval of Parliament; or possibly the High Court, or its equivalent.

[39] Very recently the United Kingdom has enacted, after nearly a quarter of a century of debate and consultation, a new statute in this subject-area.^[27] Whether it will more effectively address the complex problems which arise in the field remains to be seen.
[40] Significantly, the greatest difficulty faced by the many distinguished jurists and public servants who looked at this problem in the United Kingdom has arisen out of the meaning of the term “corruptly” in the older statutes. That is a central issue before us.

The New Zealand statutory scheme

[41] We have already noted that Parliament has the power to deal with its own members. As noted, we do not have to address that issue and the problems that can be created for Courts in respecting the constitutional position of Parliament. This case falls under the “regular” New Zealand statute law.
[42] This is because the New Zealand Parliament determined to include offences by (inter alia) Ministers and members of Parliament in the Crimes Act. Part 6 deals with “Crimes Affecting the Administration of Law and Justice”. Section 100 deals with judicial corruption; s 101 with bribery of a judicial officer; s 102 with corruption and bribery of a Minister of the Crown; s 103 with corruption and bribery of a Member of Parliament; s 104 with corruption and bribery of a law enforcement officer; s 105 with corruption and bribery of an official;^[28] and ss 105C-105D with bribery of foreign public officials inside and outside New Zealand respectively.^[29]
[43] The legislature has thereby identified and differentiated the treatment of what might be termed public office holders, though there are some important commonalities between these offences. In particular, the word “corruptly” appears in all these sections – it is a generic term in Part 6. Hence, its meaning has special significance in the context of the activities of a wide range of public officials, not just members of Parliament.
[44] Mr Field was charged under s 103 of the Crimes Act, which provides:

103 Corruption and bribery of member of Parliament

(1) Every member of Parliament is liable to imprisonment for a term not exceeding 7 years who corruptly accepts or obtains, or agrees or offers to accept or attempts to obtain, any bribe for himself or any other person in respect of any act done or omitted, or to be done or omitted, by him in his capacity as a member of Parliament.

(2) Every one is liable to imprisonment for a term not exceeding 7 years who corruptly gives or offers or agrees to give any bribe to any person with intent to influence any member of Parliament in respect of any act or omission by him in his capacity as a member of Parliament.

(3) No one shall be prosecuted for an offence against this section without the leave of a Judge of the High Court. Notice of the intention to apply for such leave shall be given to the person whom it is intended to prosecute, and he shall have an opportunity of being heard against the application.

[45] The word “bribe” is defined by s 99 to mean: “any money, valuable consideration, office or employment, or any benefit, whether direct or indirect”. This definition departs from the normal meaning of the word in the sense that it is essentially value neutral, as compared with the usual connotations. Within the statutory scheme of s 103, the word “bribe”, depending on the particular context, is synonymous with “gift” or “gratuity”. For the purposes of the Crimes Act, “bribe” takes on the colour of culpability only in the context of each section of which it is part.

The concept of a bribe

[46] In everyday language “bribes” are socially disapproved inducements of official action meant to be gratuitously exercised.
[47] In his magisterial work, Noonan has noted that the core concept of a bribe:^[30]

... turns out to be remarkably constant if its elements are taken with enough abstractedness. The concrete constituent elements – what counts as “an inducement”, what counts as “improperly influencing”, what counts as a “public function”, what functions are “meant to be gratuitously exercised” – change with the culture. The concept of a bribe contracts or expands with conventions, laws, practices. Relativised, it does not disappear. The idea is used in postexilic Jerusalem, late Republican Rome, imperial Ravenna, seventh-century Yorkshire, thirteenth-century Paris, seventeenth-century London, eighteenth-century Calcutta, nineteenth-century Washington, twentieth-century Tokyo. Cross-culturally compared in these varied settings, the abstract legal concept – with no forcing of the evidence – recurs.

[48] Bribery is a legal concept, and accordingly at the end of the day the law determines what counts as bribery in a particular society. The use of the word “bribe” in the New Zealand statute is apt to mislead. As Mr Moore SC for the Crown correctly noted in the case before us, there is in fact no such offence as “corruption and bribery of a Member of Parliament” in New Zealand’s criminal code. Rather, in the present context, there is an offence of “corruptly accepting or obtaining, or agreeing or offering to accept or attempting to obtain, any bribe”. That is, a “bribe” is simply the subject-matter of that which is done corruptly. As noted, in itself it is essentially a neutral term. The work of s 103 is done by the word “corruptly”, to which we will shortly turn. However, it is important to note that in classical criminal law analytical terms the subject-matter of a “bribe” is the actus reus of the offence. Somebody has to have taken a “benefit” before the mental element of the offence – “corruptness” – can come into play.

The concept of “corruptly”

[49] Another preliminary point needs to be kept firmly in mind here. Statutory offences of the character of s 103 are nevertheless interpreted within the framework of common law principles. As Glanville Williams put it:^[31]

Every criminal statute is expressed elliptically. It is not possible in drafting to state all the qualifications and exceptions that are intended. One does not, for instance, when creating a new offence, enact that persons under eight years of age cannot be convicted. Nor does one enact the defence of insanity or duress. The exemptions belong to the general part of the criminal law, which is implied into specific offences ... where the criminal law is codified ... this general part is placed by itself in the code and is not repeated for each individual crime. Now the law of mens rea belongs to the general part of the criminal law, and it is not reasonable to expect [Parliament] every time it creates a new crime to enact it or even to make reference to it.

[50] One of these fundamental general principles is that there is a strong presumption that criminal liability requires proof of subjective blameworthiness (or mens rea) in relation to all the external elements of an offence.^[32] To put this another way, unless the enactment is clearly to the contrary, criminal liability requires intention or recklessness or some other subjectively blameworthy state of mind, which must accompany the actus reus.
[51] This is of critical importance in relation to the various categories of public officials who are potentially within Part 6 of the Act. Without a requisite mental state they would be absolutely liable on the receipt of a bribe, as defined by the Act.^[33] For instance, accepting an innocent “benefit” such as being given a rugby jersey when attending to present the local club rugby competition trophy for the year, might otherwise contravene the Act.
[52] But what is meant by the term “corruptly”? And how is the necessary mental element to be expressed, always remembering that it must be expressed in such a way that it can fairly and properly be applied by a jury? Further, it will be relatively obvious that how the mental element is expressed will raise or lower the bar which the prosecution has to surmount. Hence, in addition to its functional importance, this issue has difficult intellectual challenges.
[53] In endeavouring to settle a suggested direction, Ms Cull QC referred to a table prepared by her setting out the terminology utilised in various cases to define “corruptly”. Both in fairness to her and as a matter of convenience, we set that out, with footnotes inserted, hereafter:

1. Rodney Hansen J sentencing:^[34]

Bribery requires an intent to influence; an illegal gratuity is in the nature of a reward ... [58] You did not act improperly in response to opportunities for personal benefit. On the contrary, you acted as any conscientious Member of Parliament would in your position. Your wrong was accepting a reward for doing your job. That was wrong but it is not as serious, in my view, as accepting a bribe as an inducement for wrongful ends.

2. NEW ZEALAND CASES

R v McDonald:^[35]

Corruptly: The degree of deliberate criminal intent to accept the benefit in order to be influenced in the performance of his official functions

Broom v Police:^[36]

Acting dishonestly and with an intention to act in a manner which is morally wicked or depraved.

Hall v District Court at Wellington:^[37]

Corruptly: Acting with an improper motivation ie. acting dishonestly for a purpose which is outside the realms of official’s usual powers and is morally unacceptable.

3. AUSTRALIA

R v Dillon and Riach:^[38]

Direction for corrupt receiving:

An accused acts “corruptly” if:

at the time he received the benefit he believed that the person conferring the benefit intended that it should influence him to show or refrain from showing favour or disfavour in relation to the principal’s affairs or business.

R v Allen:^[39]

The person giving the bribe is seeking dishonest conduct from the official.

4. AMERICAN CASES

United States Federal Court of Appeals model jury direction:^[40]

A benefit is received corruptly if “the official accepts the item knowingly and intentionally with the purpose either of accomplishing an unlawful end or unlawful result or of accomplishing some otherwise lawful end or lawful result influenced by the receipt of the thing of value”.

For example, United States v Traitz.^[41]

From Arthur Andersen v United States:^[42]

“[K]nowledge” and “knowingly” are normally associated with awareness, understanding, or consciousness... “Corrupt” and “corruptly” are normally associated with wrongful, immoral, depraved, or evil. Joining these meanings together here makes sense both linguistically and in the statutory scheme. Only persons conscious of wrongdoing can be said to “knowingly ... corruptly persuad[e].” And limiting criminality to persuaders conscious of their wrongdoing sensibly allows §1512(b) to reach only those with the level of “culpability ... we usually require in order to impose criminal liability.

...

the definition of that term found in the Fifth Circuit Pattern Jury Instruction for §1503 ... defined “corruptly” as “ ‘knowingly and dishonestly, with the specific intent to subvert or undermine the integrity’ ” of a proceeding. (Citations omitted.)

[54] There is no New Zealand authority which is binding on us on this issue. Unfortunately, as the foregoing citations demonstrate, the overseas authorities on the meaning of the term are in “impressive disarray”.^[43]
[55] The reason for this suggested disarray appears to be because there are three competing strands of the judicial interpretation of the term “corruptly” in legislation of this character. First, there is a line of authorities dating back to the decision of the House of Lords in Cooper v Slade.^[44] In that case the majority held that “corruptly” meant “purposely doing an act which the law forbids as tending to corrupt”.^[45] Professor Smith has suggested that such an interpretation leaves the word “corruptly”, “devoid of any functional significance”.^[46] In Broom v Police, Tipping J voiced the similar criticism that that definition, as adopted in R v Wellburn,^[47] was “open to the dual criticism of being both unhelpful and potentially circular”.^[48] A second line of analysis maintains that what is at issue is a dishonest intention to weaken the loyalty of an agent to his or her principal.^[49] A third possibility is that suggested by cases such as the Bradford Election Case (No 2)^[50] in which Baron Martin held that “corruptly” is not otiose and has to be given some meaning, which he stated to be akin to an evil mind. On such an approach seemingly both motive and intention would be relevant in deciding whether the alleged conduct was “corrupt”.
[56] It will be at once apparent that the first two possibilities relate “corruptly” directly to a breach of duty of some kind. The first towards one’s duty as an official or office holder, the second in relation to a master/servant situation. The third has a more generic mien to it. It is more like the concept of “dishonesty” to be found in the general criminal law.
[57] We take the view, although it is not completely free of difficulty, that the first line of reasoning is the more appropriate for s 103.
[58] First, corruption is not in essence an offence of dishonesty or fraud and should not be treated as such. Dishonesty and fraud involve the unlawful infliction of loss or at least the risk of loss. In our view, corruption is conduct conducive to a breach of duty; it may or may not involve dishonesty or fraud. We note that consistent with this analysis, Willes J in Cooper v Slade stated expressly his judgment that “corruptly” “means not dishonestly” for the purposes of the statute there in play.^[51]
[59] We have referred to Broom v Police. It is necessary to say more about this case as Ms Cull, understandably, relied heavily on Tipping J’s definition equating “corruptly” with dishonesty or moral depravity. Broom concerned the former s 262 of the Crimes Act, which made it an offence to corruptly take or bargain for a reward to recover anything obtained criminally. Section 262 fell under the sub-heading of “Receiving” in part 10 of the Act, which prescribes property offences, and which was substituted by the 2003 reforms.^[52] There is no direct equivalent to s 262 in the present part 10. That is to say, “corruptly” is no longer an element of any offence under part 10 of the Crimes Act. Tipping J, having criticised the “potentially circular” definition of “corruptly” expounded in Cooper v Slade, arrived at the conclusion that:^[53]

To act corruptly under s 262 I consider the person concerned must (a) have a dishonest purpose and (b) intend to act in a way which can fairly be described as morally wicked or depraved.

In reaching that conclusion, the Judge relied primarily on R v Worthington,^[54] a Victorian case concerning a material equivalent of s 262, but also relied on the dictionary definition.

[60] We distinguish Broom on the following contextual bases. We do not doubt that it is a correct application of the law to the facts in issue in that case. The need, when construing “corruptly”, to differentiate between the vastly different contexts of property offending and crimes against the public administration of justice was a point made in Worthington,^[55] on which Tipping J relied. We have already concluded that corruption in this context is not necessarily an offence of dishonesty. In some cases a breach of duty of the requisite nature is sufficiently culpable. Further, if recourse is to be had to the “dishonesty” line of reasoning, either that dishonesty would have to be defined, presumably by implication, or be recognised by a jury on a community standard – much as, say, “indecency” is under the Crimes Act. But, the scheme of the Crimes Act has been rather to define what is meant by dishonesty for the purpose of particular offences. The obvious example is that s 217 now defines what dishonesty means for the purposes of part 10 of the Act. And if “dishonesty” had to be defined for the purposes of s 103, it would in any event likely end up in the same territory as “corruptly”: that is, going outside the proper bounds of one’s office. Use of terms such as “wicked” or “depraved”, in the context of s 103, would not be easy to explain to a jury.
[61] Returning then to the reasons why we accept the Cooper v Slade line of reasoning, our second point is that the so-called “master/servant” line of authority is not really appropriate to a Member of Parliament. In some sense, a member is a servant of Parliament and her or his constituency.^[56] In this case the analogy could also be framed as Mr Field being agent of the Associate Minister of Immigration as principal. But that is not really the footing on which the prosecution was advanced, and in this case the analogy has to be hedged about with so many qualifications that it is difficult to make it out.
[62] Third, as Mr Moore rightly emphasised, it is important to have a standard which is independent of the subjective standards of the assessor, especially in the present context.
[63] Fourth, there can hardly be any cavil from members of Parliament if what they are being held to is the proper bounds of accountability in their office. A more open textured mental element of “dishonesty” would leave members of Parliament at risk of the idiosyncratic views of some jurors, who may have particular biases against parliamentarians. In short, as a matter of legal principle the test should be as objective and neutral as it can be made to be.
[64] In our view therefore, as a matter of general principle, the sounder basis on which to put the offence relating to a Member of Parliament is to recognise that it catches the corrupt acceptance of a “bribe” in connection with the performance of that member’s duties as a parliamentarian. A bribe is corruptly accepted if in accepting the bribe the particular Member is knowingly outside the recognised bounds of his or her duties.

A corrupt bargain is required?

[65] In the High Court Randerson J rejected the argument that s 103 requires a “corrupt bargain in which both parties set out to enter a corrupt arrangement and [in respect of] which both are notably corrupt”. As already noted there was no opportunity to appeal against that decision. Therefore his Honour’s rejection of that proposition could not be tested, at least at that time.
[66] The argument advanced by Ms Cull in this Court appears to rest on the following propositions:

1. The common law offence of bribery requires as an element, a “corrupt bargain”.

2. Section 103 ‘imports’ the common law offence of bribery and therefore requires proof of such a ‘corrupt bargain’.

3. Section 103 was incorrectly interpreted in the High Court by both Randerson J and Rodney Hansen J as an offence which could include the (knowing) receipt of a gratuity.

[67] As to the common law position, a number of authorities were cited. The essence of them is quite clear: bribery was a bilateral offence which required two parties. A “corrupt bargain” or arrangement was required before the “recipient” of the bribe could be culpable. This did not need to amount to anything like a contract in the formal sense, but a meeting of the minds was required. As it was put in R v Glynn by the New South Wales Court of Criminal Appeal, the corrupt arrangement:^[57]

may be established in large measure by a wink and a nod. Nevertheless it is a contract – in the sense of a mutual understanding arrived at as to what is to be expected on each side to be done by the other.

Hence even if the arrangement was not carried into effect, the recipient of a bribe will have entered into a corrupt bargain and be culpable.^[58] The person making the offer must be seeking dishonest conduct on the part of the public officer. As was said in R v Allen:^[59]

... the gravamen of the offence of bribery is the making or offering of a payment with an intent to incline a person in public office to disregard his duty. The occasion for the disregard of duty need not have arisen at the time of the offence, and it need never arise. Nor is it necessary that the particular kind of contemplated breach of duty be specified at the time of the payment or inducement.

[68] The second proposition – that s 103 imported the common law offence of bribery – is distinctly controversial. It was rejected by the High Court Judges.
[69] To understand the submission it is necessary to look at the statutory history of this kind of offence in New Zealand, although we think the submission is in any event squarely met by the proposition advanced by the Crown that the Crimes Act is a code and must be interpreted on its own terms, in its statutory context.
[70] Section 110 of the Criminal Code Act 1893 contained a bribery and corruption offence in relation to procuring the appointment of any person to a public office. It provided:

110 Selling offices

Every one is liable to seven years’ imprisonment with hard labour who–

(1) Corruptly accepts or obtains, or agrees to accept or attempts to obtain, for himself or any other person, any money or valuable consideration whatever on account of his having appointed to, or having procured or attempted to procure for, or in consideration that he will appoint to, or procure or attempt to procure for, any person, any public office or employment; or
(2) Corruptly gives or offers to give to any person any money or valuable consideration whatever on any such count or consideration.
[71] Section 128 of the 1908 Act was in materially similar terms to s 110 of the 1893 Act. Counsel have not been able to unearth any cases brought under either section.
[72] In the mid 1950s there were determined attempts to update New Zealand’s criminal code. Various draft Bills were presented between 1957 and 1961. The present criminal code was enacted in 1961.
[73] In the explanatory note to the Crimes Bill 1959, the bribery and corruption provisions were described as follows:

Bribery and corruption: the present provisions, which are very limited in their application, have been revised and extended to include the bribery of public servants, members and officials of local authorities and public bodies, Members of Parliament or ministers of the Crown. (Emphasis added.)

[74] The explanatory note to the 1961 Bill, which was heavily relied on by Ms Cull, states that ss 102 and 103 of the Crimes Act 1961 as they now are, were intended to replace the offence covered by s 128 in the 1908 Act. That was, as we have noted, a “selling offices” offence. The explanatory note states:

Clauses 102 and 103 replace s 128 of the 1908 Act, which makes it an offence to corruptly take a bribe in consideration of procuring or attempting to procure the appointment of any person to any public office or employment. These clauses, which are based on s 100 of the Canadian Criminal Code (1954), are wider in their effect. They make it an offence for a minister of the Crown to corruptly take a bribe for any act done in his capacity as a minister; for a Member of Parliament to corruptly take a bribe for any act done in his capacity as a member; and for anyone to corruptly give such a bribe. No-one is to be prosecuted under these clauses without the leave of a judge of the Supreme Court. (Emphasis added.)

[75] Ms Cull focussed on the words “wider in their effect”. She said this extended the ambit of the offences to corruptly take a bribe for “any act” done in a person’s official capacity, rather than in the appointment of a person to a public office only. She submitted that this was the only extension of the ambit of the offences. In particular, it was never contemplated or intended by Parliament that by enacting these provisions they were wider than the comparable Canadian provisions, which is what Randerson J took the explanatory note to mean.^[60] We agree with Ms Cull that Randerson J was mistaken on this point. However, in the end, nothing turns on it. That is because, irrespective of all that, it is plain that the New Zealand legislature did not adopt a provision equivalent to the Canadian Criminal Code making a specific offence for the receipt of “illegal gratuities”.
[76] Ms Cull then went on to argue that: “[b]y identifying the sections as ‘bribery’ provisions, and through the use of the word ‘bribe’, it is submitted that the New Zealand provisions ensured that s 102–103 were focused on the common law ingredients of bribery.”
[77] Counsel also placed emphasis on the New Zealand Secret Commissions Act 1910, s 4(1), which catches corrupt acceptance of gifts by an agent. Specifically, it provides:

4 Acceptance of such gifts by agent an offence

(1) Every agent is guilty of an offence who corruptly accepts or obtains, or agrees or offers to accept or attempts to obtain, or solicits from any person, for himself or for any other person, any gift or other consideration as an inducement or reward for doing or forbearing to do, or for having done or forborne to do, any act in relation to the principal's affairs or business (whether such act is within the scope of the agent's authority or the course of his employment as agent or not), or for showing or having shown favour or disfavour to any person in relation to the principal's affairs or business.

[78] By s 16(1)(c) people in the service of the Crown or acting on behalf of the Crown are deemed to be “agents” for the purposes of the Act. The argument was that s 4 represented a lower tier offence than s 103(1) of the Crimes Act, because the section heading is “acceptance of ... gifts” and because the maximum penalty is two years imprisonment as opposed to seven.^[61]
[79] The insinuation was that the “acceptance of gifts” was a more appropriate descriptor of Mr Field’s conduct than “corruptly accepting a bribe”. His conduct should therefore have been subject to the less grave penalty under s 4 of the Secret Commissions Act. But the problem with this submission is that relying on the contrasting headings ignores the substance of the respective provisions: each describe substantially the same conduct. The only real difference is that s 103 of the Crimes Act applies specifically to members of Parliament, which, incidentally, also explains the higher penalty under s 103. There is no basis to suggest that s 4 represents an “illegal gratuity” offence, such as the Canadian provision,^[62] whereas s 103 only criminalises “true” bribery. Further to that it is very difficult, indeed we think impossible in this instance, to argue that because overseas jurisdictions (which were extensively canvassed) have organised their statute book and offences in a particular way that it must be intended or inferred that the New Zealand Parliament must also have so intended when this has not expressly been done. Finally, we doubt whether s 4 is of any application to members of Parliament in any event.
[80] Overall, we approach the matter this way. First, s 9 of the Crimes Act expressly excludes a conviction for any offence at common law. One can be convicted in New Zealand only under the applicable statutory offence, of course as properly construed. So the idea that s 103 imports the common law must be approached cautiously. An offence could conceivably mirror or reflect the common law, but the present provision patently does not.
[81] Second, having regard to the actual text of s 103, the heading to it, “Corruption and bribery of Members of Parliament”, is somewhat misleading, and may well have set this particular hare running. However, as we have already explained, the word “bribe” is specifically defined in s 99. It is clearly a term used only to describe the subject matter of something which can be “corruptly” accepted. It can carry no more baggage than that, even in the context of the section as a whole.
[82] Third, the burden of the section thereby falls upon that very term “corruptly”, which we have already canvassed.
[83] Fourth, the legislative and parliamentary history of this provision is of very limited, if any, assistance in ascertaining the precise parliamentary intention, which in this instance has to be derived from the words Parliament actually used. By using words that direct that rewards for acts done or to be done are criminally culpable, Parliament contemplated that illegal gratuity type offending is criminally culpable under s 103(1).^[63]
[84] Fifth, the section is widely crafted. As Mr Moore observed, it appears this is for much the same sort of reasons that the then Attorney-General, Dr Finlay, stressed on the second reading of the Secret Commission Bill:^[64]

... as the bill stands it is wide enough in scope to hit cases which may be innocent, but it is only by making it wide that you can get at cases which are distinctly dishonest. We have had illustrations of how impossible it is to draft an effective clause which will not hit some case that does not deserve to be punished. The safeguard resorted to is to throw on the shoulders of some officer – here the Attorney-General – the duty of seeing that the case in which he is proceeding is one which deserves to be punished.

[85] Although there are obvious dangers in casting criminal offences in wide terms, that is mitigated somewhat by the requirement for the leave of a High Court Judge to prosecute. As Randerson J considered in Burgess v Field (No 1), in granting leave to prosecute the Court:

[54] ... would not confine itself to a review of the strength and sufficiency of the evidence. I accept it would be appropriate to take into account wider considerations. It is common ground the applicant must satisfy the Court the prosecutions are being brought in good faith; that there is no improper or collateral purpose involved; and that no improper pressure has been brought to bear on the investigation of the alleged offences or on the decision to prosecute.

[55] The Court will need to consider the seriousness of the allegation and whether the public interest requires a prosecution in the circumstances of the case....

(Emphasis added.)

[86] It would patently not be in the public interest to prosecute in the scenarios put to us as examples of the absurdities that might otherwise result from a wide interpretation of s 103.
[87] Even so, we respectfully consider that, as a matter of principle, such protection is inadequate. In that respect, we raise as an issue for the legislature’s consideration – it is not within our province – whether there is a need to expressly provide for defences specific to s 103.

An adequate direction?

[88] If the foregoing is correct in principle, the next question is the terms of the direction which should be put to a jury. Ms Cull advanced in argument that the High Court Judges completely misconceived the nature of the offence under s 103. In essence, she maintained that the section requires a “corrupt bargain”, which we have dealt with. But we must deal with the direction to the jury which was given in this case on the assumption that the offence has been correctly conceived by the Judges to date.
[89] The jury was provided with an issues and definitions sheet for counts 1 to 12, in its general part. This sheet set out the Judge’s views of the elements of the offence. The general sheet read as follows:

Counts 1-12

Offence

Mr Field corruptly accepted a bribe in respect of an act done or to be done by him in his capacity as a Member of Parliament.

Elements of Offence

The Crown must prove that the accused:

Is a Member of Parliament.
Accepted a bribe.
Accepted the bribe in respect of an act done or to be done in his capacity as a member of Parliament.
Accepted the bribe corruptly.

Definitions

Bribe: means any money, valuable consideration, offers, or employment, or any benefit, whether “direct or indirect”. A benefit includes the provision of services without charge or at an undervalue.

Acts done or to be done: for present purposes is providing immigration assistance.

Corruptly: knowledge or belief that the benefit (the work) was done to reward or to influence the accused in respect of immigration assistance provided or to be provided.

[90] The following page was in these terms:

Issues – to be proved

Before Mr Field can be found guilty of any of counts 1–12, the Crown must prove beyond reasonable doubt that:

[i] At the relevant time he was a member of Parliament.

[ii] He accepted painting or plastering work on the property specified in the indictment without payment or at an undervalue.

[iii] The work done was to reward or influence Mr Field in respect to immigration assistance provided or to be provided.

[iv] Mr Field knew or believed the work was done to reward or influence him in respect of immigration services provided or to be provided.

[91] There were then 12 further individual sheets on the application of these principles to each of the 12 counts. They were in the form exemplified by the following questions set out for count one:

Count 1

Has the Crown proved beyond reasonable doubt that during September 2003, Mr Field was:

[1] A member of Parliament;

[2] Accepted plastering work at 42 Allen Street, Mangere by S K or at an undervalue;

[3] The work was done to reward or influence him in respect to immigration assistance provided or to be provided to S K or K M; and

[4] Mr Field knew or believed the work was done to reward or influence him in respect of those immigration services.

If the answer to each of these questions [1] to [4] is “yes”, find the accused guilty.

If the answer to any one of questions [1] to [4] is “no”, find the accused not guilty.

[92] The charges as so constructed essentially reflected the view Randerson J took in the pre-trial leave hearing.^[65]
[93] In his summing-up, the Judge rightly made it absolutely apparent that the jury must find on the particular count a relationship between the assistance and the bribe (as statutorily defined). The Judge said:^[66]

There must be a causal relationship, if you like, between the giving of the work – the provision of the benefit – and the immigration assistance that has been given ... the wrong that [Mr Field] is accused of doing, and the offence that he is alleged to have committed, is of receiving a benefit for doing something that he was elected and paid to do.

[94] On the fourth element – the requirement for corruptness – the Judge said:^[67]

What is important and what is sufficient for the purpose of this fourth element is that Mr Field knew or believed that the work was done either to recognise or reward assistance given in the past or to influence or reward him in relation to services that he would provide in the future.

[95] The Judge expressly reminded the jury that:^[68]

It is no part of the Crown case that there is anything unlawful or improper about the immigration assistance provided by Mr Field. There is no suggestion that he received the benefits, if you find he did, for doing something he should not have done. On the contrary, it was part of his job as an MP to advance the interests of constituents and others who sought his help.

[96] We pressed Ms Cull in argument as to precisely what was wrong with the directions given by the Judge if, as we have agreed, the offence had been correctly conceived of.
[97] She said that the words “corruptly accepts” should have been put to the jury as follows:

The accused must have the criminal intent to accept a bribe as an inducement for wrongful and dishonest ends, namely, to use his position for an improper or illicit purpose in the performance of his official functions.

[98] There are two principal difficulties with Ms Cull’s approach. First, it introduces requirements for dishonesty and for a corrupt bargain, which we have already rejected. Secondly, it artificially distorts the case the Crown actually advanced. By the time the trial had closed – although it had always been principally so since the beginning of the trial – the Crown was arguing that Mr Field’s role was simply to accept a reward for doing the job he was paid to do.
[99] For the sake of completeness, we deal with the potential criticism that the inclusion of the words “or to influence” in the direction could have been deleted altogether. This was really, from beginning to end, a “reward” or gratuity case. But those words were included because there was some evidence suggesting the possibility that Mr Field knew that the benefits had been intended to influence him. However, even if that criticism was justified, the direction was still clearly within the purview of s 103 and does not we think amount to a material misdirection.
[100] In the result, we think that Randerson J was correct to reject the construction of the legislation the appellant would seek to have us put upon it. Moreover, Rodney Hansen J was correct to direct the jury as he did.
[101] This appeal point accordingly fails.

The second ground of appeal: wrong legal test for attempting to obstruct or pervert the course of justice

The legislation

[102] Section 117 of the Crimes Act provides as follows:

117 Corrupting juries and witnesses

Every one is liable to imprisonment for a term not exceeding 7 years who—

(a) dissuades or attempts to dissuade a person, by threats, bribes, or other corrupt means, from giving evidence in any cause or matter (whether civil or criminal, and whether tried or to be tried in New Zealand or in an overseas jurisdiction); or

(b) influences or attempts to influence, by threats or bribes or other corrupt means, a member of a jury in his or her conduct as such (whether in a cause or matter tried or to be tried in New Zealand or in an overseas jurisdiction, and whether the member has been sworn as a member of a particular jury or not); or

(c) accepts any bribe or other corrupt consideration to abstain from giving evidence (whether in a cause or matter tried or to be tried in New Zealand or in an overseas jurisdiction); or

(d) accepts any bribe or other corrupt consideration on account of his or her conduct as a member of a jury (whether in a cause or matter tried or to be tried in New Zealand or in an overseas jurisdiction, and whether the member has been sworn as a member of a particular jury or not); or

(e) wilfully attempts in any other way to obstruct, prevent, pervert, or defeat the course of justice in New Zealand or the course of justice in an overseas jurisdiction.

The convictions

[103] The jury found Mr Field guilty of 15 out of 23 counts of attempting to pervert or obstruct the course of justice. Of these:

(a) eight counts related to false or misleading statements made or procured by Mr Field to the Ingram inquiry (counts 19, 20, 22, 24, 26, 27, 29 and 31);

(b) three counts related to false or misleading documents brought into existence during the course of the Ingram inquiry (counts 17, 21 and 25);

(c) four counts related to false statements or false or misleading documents made following the commencement of the police inquiry (counts 32, 33, 34 and 35).

The Crown case

[104] The Crown’s case at trial in relation to the obstructing the course of justice counts was that Mr Field conducted “an elaborate course of deception” involving a “range and variety” of false and misleading statements and documents. It is important both for the issues of criminal liability and the subsequent sentencing to appreciate how the Crown articulated those activities.
[105] Mr Moore suggested that Mr Field’s conduct fell into four categories. The first of those categories encompassed false and misleading statements made to the Ingram inquiry. Counts 19, 20, 22, 24, 26, 27, 29 and 31 fall into that category. The second category included false and misleading documents Mr Field made or caused to be made, which were presented to the Ingram inquiry. Only three counts arose from conduct of that sort – counts 17, 21 and 25. In the third category were false or misleading documents made or procured after the police investigation was announced. Counts 33 and 34 are in this category. Fourthly and finally, there were false statements procured after the formal police investigation. These were characterised by the Crown before this Court as occasions when Mr Field exhorted potential witnesses to say to police what he wanted them to say. These were counts 32 and 35 in the indictment.

The evolution of Mr Field’s conduct

(a) Alarm bells

[106] Although the prosecution put it to the jury that Mr Field knew all along that his conduct in accepting free labour in return for his immigration advocacy was wrong, and moreover criminally wrong, it was after a One News broadcast on 12 September 2005 that “Mr Field knew he was in trouble”. In that edition One News reported that Mr Field had asked the Associate Minister for Immigration to review applications for New Zealand work visas by Mr Siriwan and his wife without telling the Associate Minister that he had flown Mr Siriwan to Samoa to work on the Afiamalu property. Thereafter followed days of extensive media coverage on the issue, including a series of articles in The New Zealand Herald.
[107] It will be recalled that the Prime Minister announced Dr Ingram’s inquiry on 21 September 2005. In a press release of 28 September, Mr Field welcomed the investigation of the allegations, saying “it is important that the true facts are verified once and for all so that these allegations can be put to rest once and for all”. His subsequent actions betrayed his desire for the “true facts” to come to light as false. Dr Ingram first interviewed Mr Field on 29 September 2005.

(b) Ingram inquiry

[108] It was at that very first interview that Mr Field embarked on his “elaborate course of deception”. During that interview he told Dr Ingram that he had not arranged for Mr Siriwan to undertake tiling work at the Afiamalu property in Samoa and that he was not aware of Mr Siriwan’s work permit application until after it had been issued. The jury accepted in convicting Mr Field on count 29 that, contrary to his statements, he had in fact arranged for Mr Siriwan to do the work before leaving New Zealand.
[109] His next^[69] act was to persuade Ms Thaivichit, and through her Mr Chaikhunpol, to make statements to Dr Ingram to the effect that she had arranged for Mr Chaikhunpol to paint Mr Field’s Blake Road property and was paid $750 for that work. Those statements were made to Dr Ingram, in the presence of Mr Kayes and with the assistance of an interpreter, on 25 October. In reality, Mr Field had made the arrangements himself and Mr Chaikhunpol was never paid. This led to count 19.
[110] Mr Field had decided that the best way to ensure a coherent story was to make out that Ms Thaivichit was the coordinator for work done on the three properties known to the Ingram inquiry. Ms Thaichivit was also to be the one to ensure consistency among those Thai people giving interviews to the Ingram inquiry. She described how at meetings with Mr Field, he would produce written notes of what he himself had told the inquiry. She would take notes in Thai so that she could pass the message on to the others.
[111] On 15 November, Mr Sulusulu was interviewed in Samoa by Mr Kayes for Dr Ingram. Mr Sulusulu was in charge of the building project at Afiamalu. During that interview Mr Sulusulu denied seeing any Thai people on site other than Mr Siriwan in the mid-2005 period that they worked there, whereas in fact there were five others in the team. In evidence Mr Sulusulu acknowledged that he had lied about that out of loyalty to Mr Field, Mr Field having assisted him personally over the years and being something of a father figure. Mr Field had told him, either in person or over the phone, what to say. These events led to count 27.
[112] Statements to similar effect – that there were no other Thai workers on site – were procured from Mr Siriwan. Mr Siriwan also claimed during his interview with Mr Kayes on 17–18 November (also in Samoa) that Mr Field had not arranged his travel for him. Ms Aumporn Phanngarm also made statements, procured by Mr Field indirectly through Ms Thaivichit, to that effect. Their statements, and Mr Field’s efforts in procuring them, attracted count 26 on the indictment. Mr Siriwan subsequently reported back to Mr Field what he had told Mr Kayes.
[113] Those false statements were consistent with Mr Field’s own account as provided to The New Zealand Herald the day before the 2005 election, 16 September 2005.
[114] Then there were Mr Field’s own statements at his second interview with Dr Ingram on 18 January 2006. He himself corroborated Ms Thaivichit’s false statement, which he had procured her to make, that it was she who had arranged for the work to be done at the Blake Road address. He made a second false statement at that interview that Ms Thaivichit had been paid $300 for work done at his Prangley Avenue property. She had not been paid. Counts 20 and 24 resulted.
[115] Quite some emphasis was placed by Dr Ingram and Mr Kayes during their investigation on the scant documentary evidence of the payments claimed to have been made for work done. Ms Thaivichit subsequently prepared two false quotations, one each for the work done at Blake Road and Prangley Avenue respectively, at Mr Field’s instigation. Photocopies of these were supplied by Mr Field’s solicitors to the inquiry on 13 February 2006, giving rise to counts 21 and 25 on the indictment.
[116] A false invoice for $440 was created by Ms Thaivichit in respect of work done on the Church Street property. It was her evidence that Mr Field had come to her house after the second interview to request that it and other documents be prepared. There was a delay owing to her reluctance – she even consulted her accountant on the matter – before she prepared the invoice. He paid her $440 in cash on being given the invoice. The Crown put it that Mr Field bought the invoice. The quotation was also provided to the inquiry on 13 February. Mr Field’s procurement of that false invoice gave rise to count 17.
[117] On 28 April 2006, Mr Field was provided with Dr Ingram’s draft report. Dr Ingram invited submissions in response. Mr Field provided a written statement to Dr Ingram on 22 May, before giving the third and final interview on 8 June 2006.
[118] At that third interview Mr Field repeated the false claims that Ms Thaivichit had arranged the painting work to be done at Blake Road and that he had not arranged for Mr Siriwan to undertake tiling work at Afiamalu. Counts 22 and 31 arose from these repetitious false claims.

[119] Dr Ingram reported to the Prime Minister in July. Police then announced a formal investigation into matters raised in Dr Ingram’s report on 31 August. It was then that Mr Field took steps directly aimed at the police investigation.
[120] Mr Field arranged for Mr Srikaew and Ms Phothisarn (who are husband and wife) to prepare false invoices and receipts in respect of work done at both Allen Street and a second Prangley Avenue property. He did this by writing out drafts for them to copy. That work was done on these properties was not known to Dr Ingram and thus formed no part of the inquiry. From this, Rodney Hansen J inferred that Mr Field had sought the invoices in anticipation that the work they were to represent would come to the attention of the police.^[70] Both Mr Srikaew’s and Ms Phothisarn’s evidence was that Mr Field made arrangements for these documents during two meetings they had with him, one at a Mission Bay car park and another when he visited them at their home not long after. The creation of these documents led to counts 33 and 34 on the indictment.
[121] Then, on 15 September 2006, there was a meeting at Mr Field’s step-daughter’s home in West Auckland. This was the last in a series of meetings. The Crown in closing at trial remarked on the timing of these meetings – one after the media allegations broke, another after the Ingram inquiry had been announced, and then another after the police inquiry was announced. Among those attending at this last meeting were Ms Thaivichit, Mr Chaikhunpol, and Mr Phimpadcha. At that meeting Mr Field tried to get them, in the sentencing Judge’s words, “urged” them, to make statements to the police confirming their previous false accounts made to the Ingram inquiry. That attempt led to count 35.
[122] Finally, a few weeks afterwards, Mr Field travelled to Samoa to visit Mr Siriwan at Afiamalu. Again his purpose was to ensure consistency between the account given to the Ingram inquiry, that Mr Field had not met with Mr Siriwan in Samoa nor arranged for his work there, and for that account to be given to police by Mr Siriwan. That led to count 32.

Summary

[123] Mr Field’s conduct throughout these events was reactive, but nonetheless calculated to deceive. It was reactive in the sense that his attempts to prevent the facts coming to light responded to the allegations as they arose or when he appreciated a particular matter was to become an issue. For example, there was the creation of documentary evidence after the Ingram inquiry had shown some surprise about the lack thereof. Slips and errors occurred as the web became increasingly elaborate. It was calculated, for example, in that Mr Field briefed and debriefed those making statements to the Ingram inquiry in an attempt to ensure their consistency. There was also the fact that none of the meetings was held at his home, presumably to avoid detection. As a further example, his selection of Ms Thaivichit as in a sense an innocent agent to coordinate the making of consistent statements by the various Thai people involved, probably because she could be trusted as an active Labour Party member and because of her English skills, was clearly deliberate. In all, his actions were entirely self-serving and took advantage of vulnerable people. It was highly culpable conduct, totally anathema to his position holding among the highest of public offices.

The appeal points

[124] The concerns raised on Mr Field’s behalf as to his convictions are these:

(a) The eight convictions relating to false or misleading statements to the Ingram inquiry should be quashed as the Judge erred in law in holding that “the statements made to the Ingram inquiry obstructed or perverted the course of justice when the Ingram inquiry was not part of ‘the course of justice’ but the ensuing police investigation was.”

(b) The convictions on counts 32, 33 and 34 relating to falsities following the commencement of the police inquiries should be quashed because Mr Field’s conduct did not constitute the offence of attempting to pervert the course of justice, “given the timing of the commencement of the police investigation [and] the absence of [Mr Field] from the country”. Count 35 should be quashed because it involved Mr Field attempting to procure the same false statements previously made to the Ingram inquiry. Therefore it should, despite the fact that the target of these false statements was the police investigation, “fall to be considered with the other statements to the Ingram inquiry”.

[125] It will be readily apparent therefore that the challenge under this head largely turns on the question of what conduct can be considered to fall within the words “the course of justice in New Zealand”.
[126] This raises first a question of legal principle; and second its application to the facts of this particular case.

The legal principle(s)

[127] Rodney Hansen J defined the “course of justice” in his summing up as “the process of administering justice, including the prosecution of criminal offending and any court proceedings which follow”.^[71] That was in turn reflected in the definition sheet which the Judge gave to the jury at trial.
[128] As to the Ingram inquiry, in his decision dismissing a pre-trial s 347 application to discharge Mr Field on 18 of 25 of the perverting the course of justice counts, the Judge said that “the course of justice” test was satisfied for the purpose of the application because:^[72]

It was foreseeable from the outset that [this] report would disclose any credible evidence of wrongdoing that came to his notice. The consequences of such disclosures were equally foreseeable ... There were public acknowledgements that the allegations against Mr Field could amount to criminal offending or warrant disciplinary action against him in his capacity as a Minister and Member of Parliament.

[129] At trial, Rodney Hansen J directed the jury that:^[73]

The course of justice includes the prosecution of criminal offending and the court proceedings which follow and, essentially, the Crown case is that Mr Field attempted to obstruct or pervert the course of justice by attempting to cover up the true nature of his dealings with the Thai workers in order to avoid those dealings becoming the subject of the police inquiry which would, depending on the course it took, have led to a prosecution.

[130] The Judge also directed the jury – consistent with his earlier s 347 ruling prior to trial – that “the course of justice for the purpose of this trial at least, can be regarded as the process of administering justice, including the prosecution of criminal offending and any court proceedings which follow”.^[74]
[131] There are some preliminary points to be made here. The s 347 application was made pre-trial. The issue was not raised again at trial. Second, no question of trial counsel competence has been raised. Third, it is plain that in the course of the pre-trial s 347 hearing the argument was not whether the Ingram inquiry was, in itself, a course of justice. Mr Moore is correct that the argument was whether false statements made or procured by Mr Field to that inquiry could have the tendency of perverting the course of justice downstream, in the sense of proceedings before a Court or Parliament’s Privileges Committee. Fourth, neither did the Judge improperly determine the merits of the issue. The Judge said:^[75]

I am satisfied that the prosecution evidence would permit a reasonable jury, properly directed, to find that the actions of Mr Field had the tendency and he had the intent to pervert or obstruct the course of justice by preventing or impeding contemplated proceedings before the Court or the Parliamentary Privileges Committee.

[132] We do not accept the appellant’s submission that somehow the Judge erroneously held that the Ingram inquiry constituted “the course of justice”. It is clear that the Judge did not so hold.
[133] Ms Cull submitted that this Court should follow the High Court of Australia’s decision in R v Rogerson.^[76] In Rogerson, it was held that “police investigations do not themselves form part of the course of justice”.^[77] Rather, the course of justice began when criminal proceedings were commenced. Although it was not clear, a charitable interpretation is that the submission was an attempt to emphasise the point that most of the allegedly criminal conduct under this head was set even further back in time than the police investigation, let alone the criminal proceedings. But even in Rogerson it was accepted that:^[78]

Although police investigations into possible offences against the criminal law or a disciplinary code do not form part of the course of justice, an act calculated to mislead the police during investigations may amount to an attempt to pervert the course of justice. An act which has a tendency to deflect the police from prosecuting a criminal offence or instituting disciplinary proceedings before a judicial tribunal or from adducing evidence of the true facts is an act which tends to pervert the course of justice and, if done with intent to achieve that result, amounts to an attempt to pervert the course of justice.

[134] In a similar vein this Court recently held in McMahon v R:^[79]

[61] With regard to police investigations that occur prior to the issue of a warrant, as outlined by this Court in Meyrick,^[80] an intention merely to interfere in some way with that police investigation will not in and of itself suffice to establish interference with the course of justice. Any interference with a police investigation must be undertaken with a view to adversely affecting proceedings that an accused knows have been instituted or that the accused contemplates might follow.

[62] Where an accused knows a crime has possibly been committed and/or knows of an investigation into a possible crime and there is an attempt to destroy possible evidence or to influence witnesses, an intention to affect proceedings could be readily inferred.

[135] The Judge’s directions to the jury were quite consistent with McMahon. The real issue is whether the accused had in contemplation criminal proceedings. A linear temporal analysis of when the conduct occurred in relation to the eventual criminal proceedings may be relevant circumstantial evidence, but it is certainly not decisive.
[136] We agree with Mr Moore that the statement of principle involved here was quite straightforward and does not turn at all on the legal status of the Ingram inquiry, or for that matter on the variety of circumstances of numerous authorities cited by counsel relating to other and different factual contexts.

The factual context

[137] If the direction given to the jury was correct, as we think it was, the issue is then whether there was evidence on which it was properly open to the jury to return the verdicts it did.
[138] There was a great deal of evidence before the jury on this issue. We have set it out extensively in [104] to [123]. In summary it will be recalled the media allegations began to emerge in mid September 2005. They continued for some days thereafter. Items from the New Zealand Herald for instance were adduced in evidence. They speculated on the potential criminal consequences of the allegations. These included allegations of bribery. Mr Field acknowledged in cross-examination that he knew about at least some of these items.
[139] Mr Field thereupon embarked on a course of conduct which involved arranging false statements from witnesses to rebut the criminal allegations even before the Ingram inquiry was announced. These included false statements from Faatasiga Sulusulu and Sunan Siriwan. He then invited, of his own motion, an independent inquiry. A New Zealand Herald article of 21 September 2005 reported the Prime Minister as saying that, “Mr Field himself had asked for an independent inquiry” (emphasis added).^[81]
[140] Then there were further allegations of criminal conduct raised by the media with respect to work that Mr Chaikhunpol had undertaken for Mr Field. When the media allegations relating to Mr Chaikhunpol were made, Mr Field arranged further false statements. He then issued a press release stating that he had nothing to hide, that he would welcome things being investigated by Dr Ingram, and that it was important “that the true facts are verified once and for all so that these allegations can be put to rest once and for all”.^[82]

Conclusion

[141] On this appeal ground the jury was correctly directed; and there was evidence on which it could (and did) properly find the counts had been made out. Mr Field’s own explanation that he did not appreciate the alleged wrongdoing and did not understand that there would ultimately be any future criminal proceedings was patently rejected by the jury.
[142] This ground of appeal is also dismissed.

The third ground of appeal: wrongful admission of evidence

Introduction

[143] In this ground of appeal, Mr Field challenges the admissibility of significant portions of the Crown evidence at trial. These comprise three interviews with Dr Ingram, and the interview conducted with the officer in charge of the case, Detective Superintendant Burgess. No attempt was made to introduce Dr Ingram’s report, and quite properly so: admitting the report would wrongly have introduced at least some conclusory observations.
[144] It is important to note that these interviews contained a good deal of exculpatory material as related by Mr Field. This undoubtedly helps to explain why (as was the case) there was no pre-trial or trial challenge to the admissibility of any of this material by trial counsel, Mr Davison QC. But having failed to persuade the jury at trial on the basis of the exculpatory statements in the interviews, the appellant now seeks to have them excluded altogether.

The appropriate principle

[145] There is no decision or question of law which was raised that the appellant seeks to raise on appeal because there was none at trial. The appeal on this point is therefore under s 385(1)(c) of the Crimes Act. This is a problem which has arisen in the past in this Court. The leading authority is R v P where this Court indicated that it is likely to be unsympathetic “to subsequent attempts to found an appeal on the contention that the evidence was inadmissible”.^[83] That does not mean that such appeal points cannot be taken, but it does mean the appellant is confronted with a very high hurdle: that there was no tenable basis for admitting the evidence. In other words, if objection had properly been taken the Judge simply would not have admitted it. That also has to be coupled with a significantly prejudicial effect on the outcome of the trial. And even allowing for the robustness of the view expressed by the Supreme Court of New Zealand in Sungsuwan v R,^[84] there is language in that judgment confirming the difficulties still obtaining for appellants under this head.^[85]
[146] Ms Cull submitted that the evidence referred to had been obtained in breach of s 25(a) and (d) of the New Zealand Bill of Rights Act 1990, or improperly under s 30 of the Evidence Act 2006, or as a result of entrapment in that statements made to Dr Ingram were the result of communications between the police and Dr Ingram or members of his investigation team; and that the police interview was inadmissible as having been improperly obtained under s 30 of the Evidence Act and in breach of s 29 of that Act.
[147] We record that before us Ms Cull expressly confirmed that the appeal grounds advanced were not at all an attack on trial counsel. She (properly) acknowledged that she had discussed the position at trial with Mr Davison, who carefully explained to her the dilemma he had faced. Counsel really invited us to put aside altogether the careful consideration the matter was obviously given, as if there is, or should be, a “clean sheet” before us.
[148] Both counsel took us carefully through a volume of evidence. It is of assistance to recall that the chronology of events into which that evidence fitted was as follows:

September 2005: accusations against Mr Field published in the media.

21 September 2005: Dr Ingram accepts the terms of reference to undertake the investigation.

29 September 2005: Dr Ingram conducts the first interview with Mr Field.

18 January 2006: Dr Ingram’s second interview with Mr Field.

8 June 2006: Dr Ingram’s third interview with Mr Field.

21 June 2006: the report of Dr Ingram’s investigations was sent by him to the Prime Minister.

30 August 2006: Detective Burgess commences a police investigation.

19-20 February 2007: the police interviewed Mr Field.

[149] The factors which appear to us to be compellingly against the arguments mounted on Mr Field’s behalf under this head can be dealt with under several sub-heads, which we formulate as follows.

(a) Assistance to Mr Field

[150] During the interviews with Dr Ingram, Mr Field was initially represented by Ms Chen of Chen Palmer and Partners. She rightly specifically reminded Dr Ingram during the first interview that his was not a police inquiry and could not arrive at what amounted to findings of criminal conduct. Mr Field was not represented between the first and second interview but Mr Perese represented him on the second and third interviews.

(b) Mr Field’s interviews with Dr Ingram were voluntary

[151] Mr Field himself had asked for an independent inquiry. He then publicly welcomed the extension of the inquiry into the ongoing allegations raised in the media. He chose to co-operate with Dr Ingram and on his own evidence at trial confirmed that he wished to co-operate. He said he was “keen to try and co-operate as fully as I could”.

[152] It is difficult to see how there can be a complaint about the engagement of the New Zealand Bill of Rights Act. Mr Field was not arrested, he was not detained under any enactment, or charged with any offence during the period of these voluntary interviews. Section 25 of the New Zealand Bill of Rights Act applies to “everyone who is charged with an offence”. On any reasonable view that threshold was not met.^[86]

(d) The Evidence Act

[153] Section 30 of the Evidence Act deals with the improper obtaining of evidence. However, if resort is made to s 30 there must be an evidential foundation.^[87] None whatsoever is advanced let alone made out in this particular instance.

(e) The distinction between the Ingram inquiry transcript and the report itself

[154] A distinction has to be drawn between the admissibility of inquiry reports and inquiry transcripts. That this can be important is well illustrated by R v Beattie.^[88] There, the defendant, Judge Beattie, had been interviewed in the presence of counsel by Mr John Upton QC. After the completion and release of Mr Upton’s report, Judge Beattie responded in a written statement. At the subsequent criminal trial, the Crown (wrongly) sought to adduce both Mr Upton’s report and Judge Beattie’s response. Penlington J would not allow the report in evidence, nor the response, primarily on the basis that they were interconnected and what was said in the report was in places distinctly conclusory. To admit the report would be to effectively put forward Mr Upton’s views on the very matters the jury had to decide.
[155] There is no question that the transcripts were relevant. That is, they were material and probative. Prima facie therefore they were admissible under s 7 of the Evidence Act. They were neither illegitimately prejudicial nor extraneous in terms of s 8. We are unaware of any general principle or consideration that applies to render Mr Field’s false statements to Dr Ingram immune from use in evidence in a criminal proceeding.
[156] Further, it has to be recalled that the Crown did not adduce Dr Ingram’s report at trial. Hence the reference to authorities suggesting that such reports would be inadmissible are of no moment.

(f) Entrapment or unfairness

[157] There is no factual basis for the submissions that Mr Field was somehow compelled to co-operate with the Ingram inquiry. It is true that the police did provide some information to that inquiry and Dr Ingram did ask him some questions based on that information. But that falls far short of any question of entrapment. There was a suggestion in the submissions that “the Ingram inquiry became a de facto police investigation” and, unfortunately, that Dr Ingram and his assistant Mr Kayes were “effectively police agents, for the purposes of obtaining evidence for the prosecution”. This was a most unfortunate submission, without a clear factual basis to support it. Indeed it is quite unfair to persons carrying out important public duties carefully and as thoroughly as they could.

(g) No improper editing of the transcript

[158] The appellant sought to make something of the fact that the transcripts of the police interview were edited prior to their introduction before the jury. Evidence was led relating to a Mr Phothisam and Mr Srikaew. A note had been made that their evidence was “irrelevant and prejudicial. Should have been removed.”
[159] This however was not how the evidence was used at trial. Mr Davison did not seek that this material be excised from the police interview. To the contrary, he relied on the fact that this evidence simply demonstrated that Mr Field was prepared to assist needy persons.

(h) No oppression during the police interview

[160] Then it was said that there was a breach of s 29 of the Evidence Act, and that the police interview was oppressive. “Oppression” is a very high hurdle to meet. It has to involve oppressive, violent, inhuman or degrading conduct towards the interviewee.^[89] The interview (over two days) was certainly a lengthy one. But on reviewing it we can find nothing to lay any proper foundation for a suggestion that the interview was somehow occasioned by or influenced by oppression.

(i) Rule 3 of the Practice Note

[161] The suggestion seems to be made that Mr Field was detained whilst he was being interviewed by police. That is simply not so on the facts. He attended voluntarily after he was invited to do so and he was accompanied by his lawyer. Further, the suggestion that the interview involved “statements in the nature of cross-examination” in an “overbearing and deprecatory manner” appears to us to be simply as assertion, without any evidence to support it.

Conclusion

[162] For the reasons given, we entirely reject the third ground of appeal, and all its sub-parts.

The fourth ground of appeal: miscarriage of justice

[163] This appeal point consists of two specific matters and a general averment that Mr Field:

has been deprived of the absolute right to a fair trial because the basis of the Crown’s case and the trial Judge’s error in law wrongly defined corruption and bribery in the Judge’s direction to the jury and inadmissible evidence was adduced at trial.

[164] It is unnecessary for us to say anything further about that third point; it has already been dealt with in our foregoing reasons declining the first three heads of appeal.

The evidence of Banleng Prachanan

[165] The complaint here is that the Judge directed that the evidence of a Mr Prachanan should be treated with “a certain reserve” when two other witnesses were not recalled by the Judge, it is said, when he should have pursuant to ss 92 and 99 of the Evidence Act.
[166] This issue arose in a roundabout way. There was a suggestion by Mr Davison that Ms Thaivichit was involved in organising certain painting work at Mr Field’s Blake Road property in Auckland. In her evidence Ms Thaivichit was adamant that she had no involvement in this work. The implication was that Mr Field had organised the work. She was not moved on this evidence despite a lengthy cross-examination.
[167] Another witness involved in working at this property, Mr Chaikhunpol, did not suggest that Ms Thaivichit had any involvement in the work at Blake Road. Mr Field himself did not suggest that Ms Thaivichit was involved; his evidence was that a Mr John Milne was involved followed by Mr Srikaew. This left Mr Prachanan’s evidence in isolation. On all accounts other than his, Ms Thaivichit was not involved. Mr Prachanan’s reliability seems to have been questionable. When he was asked whether he could agree or disagree with suggestions which had been put to him about what had happened at the meeting his answer, distinctly problematically, was “if it’s a good story, I would agree”. He then agreed with Mr Davison on just about every subsequent proposition that Mr Davison put to him.
[168] When Mr Davison came to address the jury he relied heavily on Mr Prachanan’s evidence about the organisation of the painting at Blake Road. He suggested it was extremely significant. The Crown then sought to have the issue addressed by way of a direction under s 92(2)(b) of the Evidence Act. Rodney Hansen J noted in a ruling that Mr Davison had properly acknowledged that the omission to put Mr Prachanan’s evidence to Ms Thaivichit and Mr Chaikhumpol should be the subject of an appropriate direction. But now Mr Field says that that was wrong – that Rodney Hansen J should have himself directed the recall of those two witnesses pursuant to s 99 of the Evidence Act.
[169] The Court had a variety of options open to it under s 92 of that Act. On appeal it is suggested that it ought to have been apparent to the trial Judge (when it was not then the position of defence counsel) that it was utterly incumbent on the Crown or the Judge to recall these witnesses.
[170] We disagree. The Judge, given the situation that had arisen, elected to tell the jury to treat a distinctly unreliable witness with reserve. It was a mild caution in the circumstances and his direction to this end was unimpeachable. More fundamentally, for a suggested miscarriage point on the counts to which it applied, it is simply untenable.

Tiling at Afiamalu

[171] The complaint here is that the Judge “failed to direct the jury fairly on count 9, regarding the conflicting evidence about the remuneration paid to Mr Siriwan for tiling of the Afiamalu property”.
[172] The contest on this count was whether Mr Field was involved in any arrangements for Mr Siriwan to do the tiling work at Afiamalu. Mr Davison took the line in closing – presumably on instructions and on the evidence that was available, “that what happened up there was something that moved on or developed in a different way than Mr Field actually intended or contemplated”. He suggested that this work “originated largely with the arrangements made by Mr Field’s wife, Maxine ... whilst she was there”. So the line being run was that the work was not at Mr Field’s direction at all.
[173] It is difficult to follow the appellant’s submissions, which seem to be directed at a claim that the work was done by Mr Siriwan “basically for nothing”. And it is said the Judge failed to “fairly direct the jury in relation to the contest in the evidence”.
[174] The issue as advanced is misconceived, it was not what was paid but who was the directing mind which was in issue. There is no suggestion that that issue was not appropriately dealt with.
[175] In any event, for this issue to arise to the level of a “miscarriage” can only be described as the longest of long bows.
[176] This appeal ground is also dismissed.

The sentence appeal

The sentence imposed

[177] Rodney Hansen J imposed two cumulative sentences: four years for the corruption charges, and two years for the attempt to pervert the course of justice charges.^[90] The starting points were five years for the former, four years for the latter. The Judge considered that nine years (on a totality basis) would be excessive, and so reduced the sentence by 18 months to better reflect the overall gravity of the offending. A further 18 months was taken off to account for personal mitigating factors. The end sentence was one of six years imprisonment.

First ground of sentence appeal

[178] The ground of appeal is stated to be: the Judge erred in rejecting a distinction between bribery and receipt of an illegal gratuity on the grounds that “our law makes no distinction between the two ... and both are encompassed by section 103 of the Crimes Act.”
[179] That is not an accurate way to put things. It is true the Judge did say s 103 makes no distinction between the two, but at [58] of his sentencing notes he specifically recorded “that was no reason not to recognise the differing levels of culpability involved.”
[180] The point the Judge was making was that both types of conduct fall within s 103.
[181] Reference was also made to the Secret Commissions Act 1910. It is said that s 4 of that Act “captures the wrong in this case, namely the corrupt acceptance of a reward or gift”. The maximum penalty for an offence against that section is 2 years imprisonment.^[91] As noted, the problem with this analogy is that the Secret Commissions Act most likely does not apply to a Member of Parliament. But even if that Act does apply to a Member of Parliament, s 103 is precisely targeted at members of Parliament. It is therefore the more appropriate point of reference for sentencing purposes and it is the section under which Mr Field was actually charged.

Second ground of sentence appeal

[182] The argument here is that the total sentence imposed by the Judge was manifestly excessive. On the corruption offences it is said the Judge failed to have proper regard to relevant case law and failed to give effect to the distinction he had acknowledged between classic bribery cases and the present law. The particular cases are two Court of Appeal cases.^[92] The two overseas cases deal with members of Parliament or Ministers.^[93]
[183] In relation to the overseas cases, Rodney Hansen J said they were readily and obviously distinguishable and offer only the broadest guidance. In relation to the Court of Appeal cases, he thought them to be different in kind from those cases in which a sum of money or benefit is received in return for granting a favour or indulgence that is in itself an abuse of power.
[184] We agree with Rodney Hansen J that these cases are only marginally relevant, and of only limited utility in the present context.
[185] A better argument for the appellant (though not one made) is that the five-year starting point is too close to the maximum seven-year penalty, given the range of possible s 103 cases and the distinction “in kind” the Judge recognised between outright bribery cases and the acceptance of illegal gratuities cases. Indeed, we are inclined to the view that this case is best seen, as we have already indicated, as a “reward” case rather than anything like a quid pro quo bribery case, although it has to be at the top end of reward cases. We are also inclined to the view that the Judge perhaps got things somewhat the wrong way around: that two years for the illegal reward would have been an appropriate level; and that the much more serious wrongdoing was the attempt to pervert the course of justice offences, which could well have stood a sentence of four years imprisonment. But even if that is right, at the end of the day the question is whether the total sentence imposed on a cumulative basis was wholly out of proportion to the gravity of the overall offending.^[94] In our view, it was not.

Attempt to pervert the course of justice offences

[186] The somewhat surprising submission was made that the Judge should have adopted a lower starting point of only one year. That simply does not square with the facts. On the jury’s findings, as the Judge noted:^[95]

the jury must have accepted that [Mr Field] foresaw that Dr Ingram’s findings could lead to a police investigation and criminal charges, and that [he] sought to avoid adverse findings that could lead to a prosecution.

[187] The “proximity” between a criminal prosecution and the particular attempts to pervert the course of justice was an evidential matter that went to whether or not Mr Field actually committed the crime; that is, whether he actually “foresaw that Dr Ingram’s findings could lead to ... a prosecution”. The jury found he did foresee this.
[188] The evidence on this against Mr Field was particularly troubling. As we have earlier described in some detail, from the moment Mr Field saw that he was in distinct difficulties on this imbroglio he indulged in a prolonged and determined effort, “working” on witnesses giving evidence to the Ingram inquiry to avoid the adverse implications for his political career and to deflect possible criminal convictions. Rodney Hansen J thought this to be a case in which there was “an elaborate and carefully planned attempt to try to ensure the course of justice never got under way”.^[96] It was “manipulative and adaptive”.^[97] Mr Field not only lied himself but “procured others to lie as well and create false documents”.^[98] He “shamelessly traded on ... their friendship and loyalty”.^[99] Had he succeeded, “serious criminal offending would have gone undetected”.^[100] Based on the evidence adduced at trial, those conclusions were well founded.
[189] Reference was made in particular to two Court of Appeal decisions: R v Dewar^[101] and R v Clutterbuck.^[102] In Clutterbuck it was suggested that a benchmark of three years imprisonment for relatively serious cases and perhaps 18 months to two years in lesser cases is appropriate. In Dewar a starting point of six years was adopted in a case in which a senior police officer, over a period of two and a half years, obstructed an investigation into serious offending by fellow police officers. He caused two trials to be aborted. When an internal policy inquiry into his own conduct began, he manipulated witnesses and lied to avoid detection.
[190] For our part, although it can said that this case was less serious than Dewar (where the derailing of two trials was particularly significant), this offending could well have stood a term of imprisonment of four years. But on any view of the matter the sentence actually imposed could not be said to be manifestly excessive.

Third ground of sentence appeal

[191] The point advanced here is that this was the first prosecution of its kind under s 103. The appellant relied on R v Walters.^[103] That case was the first time an offender had been prosecuted in relation to breaches of the Fisheries Act 1983 as well as under the then s 257 of the Crimes Act (conspiring to obtain paua fraudulently for the purposes of sale in contravention of the Fisheries Act). The Court observed that, at the time the offences were committed, the Fisheries Act provided for limited monetary penalties and the possibility of a conspiracy charge carrying a much more severe penalty might not have been apparent to the accused or to others. The Court substituted sentences of periodic detention for the prison sentences imposed by the trial judge, but gave a clear warning that if a similar case came before the courts again, imprisonment of at least the order imposed in the High Court was to be expected.
[192] We do not think there is anything in this point. Mr Field knew what he was doing was wrong. Quite apart from anything else he was required to familiarise himself, as a Minister, with the Cabinet Manual. He must have done so. Whilst Thai cultural practices may have, as the Judge said, created the conditions for the offending, they simply do not mitigate what Mr Field did. Indeed as the Judge said, “I regard it as an aggravating factor that you were prepared to exploit the gratitude and the vulnerability of the Thai nationals whom you helped.”^[104]

Result

[193] All the grounds of appeal against sentence are therefore dismissed.

Conclusion

[194] The appeal against sentence and conviction is dismissed.

Solicitors:
Meredith Connell, Auckland for Respondent

^[1] R v Field HC Auckland CRI-2007-092-18132, 6 October 2009.

^[2] Cabinet Office Cabinet Manual 2001 at [2.49]. This was the operative edition at the time of the offending. The current version of the Cabinet Manual was published by the Cabinet Office in 2008.

^[3] Dr Noel Ingram QC Report to the Prime Minister upon inquiry into matters relating to Taito Phillip Field (2006).
^[4] Crimes Act 1961, s 103(1).
^[5] Burgess v Field (No 1) HC Auckland CRI-2007-404-3206, 6 July 2007.
^[6] Burgess v Field (No 2) HC Auckland CRI-2007-404-3206, 5 October 2007.
^[7] Field v Burgess [2007] NZCA 547, [2008] 1 NZLR 733.
^[8] Field v Burgess [2007] NZSC 110, [2008] 1 NZLR 733.
^[9] Prebble v Television New Zealand [1994] 3 NZLR 1 (PC) at 7.
^[10] Legislature Act 1908, s 242(2).
^[11] See for example Awatere Huata v Prebble [2004] NZCA 147; [2004] 3 NZLR 359 (CA) at 392 per McGrath J.

^[12] On this issue see the discussion in David McGee Parliamentary Practice in New Zealand (3rd ed, Dunmore Press, Wellington, 2005) at 626.
^[13] Sankey v Whitlam (1978) 142 CLR 1 at 35.

^[14] R v Parliamentary Commissioner for Standards Ex p Al Fayed [1997] EWCA Civ 2488; [1998] 1 WLR 669 (CA) at 672–673 per Lord Woolf MR; R v Chaytor [2010] EWCA Crim 1910, [2010] 2 Cr App R 34. On some of the difficult issues relating to the relationship between Parliamentary privilege and whether that is a bar to the prosecution of members of Parliament (at least for the common law offence of bribery) see A W Bradley “Parliamentary Privilege and the Common Law of Corruption: R v Greenway and Others” [1998] PL 356, reprinted at (1998) 24 Commonwealth Law Bulletin 1317.
^[15] (26 July 2006) 632 NZPD 4404.

^[16] This particular rule is provided for at [2.68] of the Cabinet Manual 2001.

^[17] Standing Orders of the House of Representatives 2008, SO 159 and Appendix B, cl 7(1)(b). The nominal threshold appears to have been introduced in the 2005 iteration of the Standing Orders.
^[18] Cabinet Office Cabinet Manual 2008 at [2.84].
^[19] Ibid.

^[20] Two of the standard references are John T Noonan Bribes. The intellectual history of a moral idea (Berkeley, University of California Press, 1984), and Susan Rose-Ackerman Corruption and Government: Causes, Consequences, and Reform (Cambridge, Cambridge University Press, 1999). Rose-Ackerman in particular notes the interaction between productive economic activity and unproductive rent seeking by focusing on what she considers to be the universal phenomenon of corruption in the public sector. High levels of corruption are associated with lower levels of investment and growth; it reduces the effectiveness of industrial policies and encourages business to operate in the unofficial sector in violation of tax and regulatory law.
^[21] Hinchey v R 1996 SCC 157, [1996] 3 SCR 1128 at [14].

^[22] For instance, Transparency International’s 2010 Corruption Perceptions Index places New Zealand in a three-way tie with Denmark and Singapore for first place out of 178 countries surveyed as least corrupt. The survey measures the perceived level of public sector corruption in a country. See Transparency International “2010 Corruption Perceptions Index” (2010) <www.transparency.org>.

^[23] (2 May 1695) 11 Journal of the House of Commons 331. See generally Graham Zellick “Bribery of Members of Parliament and the Criminal Law” [1979] PL 31.

^[24] Lord Salmon Report of the Royal Commission on Standards in Public Life (1976) Cmnd 6524 at 96–99.

^[25] Committee on Standards in Public Life First Report of the Committee Standards in Public Life (1995) Cm 2850-I at [104].

^[26] Law Commission Legislating the Criminal Code: Corruption (LCCP145, 1997) at [7.42]. The quotation within the quotation is from the ruling of Buckley J in R v Greenway, unreported but reproduced in A W Bradley, above at n 14.
^[27] Bribery Act 2010 (UK).

^[28] This section applies to any person in the service of Her Majesty in right of New Zealand, or any member or employee of any local authority or public body or any person employed in the education service within the meaning of the State Sector Act 1988.

^[29] The last two provisions mentioned give partial effect to the 1997 Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (entered into force 15 February 1999).

^[30] John T Noonan Bribes. The intellectual history of a moral idea (Berkeley, University of California Press, 1984) at xi.

^[31] Glanville Williams Criminal Law: The General Part (2nd ed, Stevens & Sons, London, 1961) at 259–260.

^[32] If any authority is required for this proposition see Lim Chin Aik v The Queen [1963] AC 160 (PC) at 173, and Warner v Metropolitan Police Commissioner [1969] 2 AC 256 (HL) at 272.

^[33] The challenges in establishing the requisite mental elements of this type of offending are well illustrated in the Canadian line of cases: R v Greenwood (1992) 5 OR (3d) 71 (ONCA); Hinchey v R 1996 SCC 157, [1996] 3 SCR 1128; and R v Cogger 1997 SCC 314, [1997] SCR 845. Note however that these authorities are of no direct application to New Zealand given the statutory codes do not correlate precisely.
^[34] At [57]–[58].
^[35] R v McDonald [1993] 3 NZLR 354 (HC) at 357.
^[36] Broom v Police [1994] 1 NZLR 680 (HC) at 688.
^[37] Hall v District Court at Wellington HC Wellington CP256/98, 25 September 1998.
^[38] R v Dillon & Riach [1982] VicRp 43; [1982] VR 434 (VSC) at 435.
^[39] R v Allen (1992) 62 A Crim R 251 (NSW CCA).

^[40] United States Federal Courts of Appeals (Third Circuit) “Criminal Jury Instructions” (2010) Third Judicial Circuit <www.ca3.uscourts.gov>

^[41] United States v Traitz 871 F 2d 368 (3rd Cir 1989) [Query, only place I can find this phrase is United States v Plaskett 355 Fed Appx 639 (2009)].
^[42] Arthur Andersen LLP v United States [2005] USSC 4107; 544 US 696 (2005) at 705–706.

^[43] D Lanham “Bribery and Corruption” in P Smith (ed) Essays in Honour of J C Smith (Butterworths, London, 1987) 92 at 104.

^[44] Cooper v Slade (1857) 6 HLCS 746[1858] EngR 546; , 10 ER 1488. Authorities in that line include R v Smith [1960] 2 QB 423; R v Wellburn [1979] 69 Cr App R 254 (LA) and Singh v State of Trinidad and Tobago [2005] UKPC 35, [2006] 1 WLR 146.
^[45] See 10 ER at 1499 per Willes J.

^[46] A T H Smith Property Offences: the protection of property through the criminal law (Sweet & Maxwell, London, 1994) at 792–793.
^[47] R v Wellburn (1979) 69 Cr App R 254 (CA).

^[48] Broom v Police at 688. See also R v McDonald [1993] 3 NZLR 354 (HC) at 357–358.

^[49] Lindley [1957] Crim LR 321; Calland [1967] Crim LR 236; R v Johnson [1967] SASR 279 (SASC); and R v Dillon and Riach [1982] VicRp 43; [1982] VR 434 (VSC).

^[50] Bradford Election Case (No 2) (1869) 19 LT 723 at 728. Broom v Police is also in this category; as are Hall v District Court at Wellington HC Wellington CP256/98, 25 September 1998; and also R v Worthington [1921] ArgusLawRp 102; [1921] VLR 660, but only insofar as the meaning of “corruptly” relates to property offending as compared with breach of official duty.
^[51] At 1499.
^[52] Crimes Amendment Act 2003, s 15.
^[53] Broom v Police, above at 688.
^[54] R v Worthington [1921] ArgusLawRp 102; [1921] VLR 660 (VSC).
^[55] At 673.

^[56] This is a line adopted by McClennan JA in the appeal against sentence in R v Bruneau [1964] 1 OR 263 (ONCA) at 269.
^[57] R v Glynn (1994) 71 A Crim R 537 at 542–544.
^[58] R v Mills (1978) 68 Cr App R 154 (CA) at 158–9.
^[59] R v Allen (1992) 62 A Crim R 251 (NSWCCA) at 255.
^[60] Burgess v Field (No 1) at [14].
^[61] Section 13(1).
^[62] The current provision is s 121 of the Criminal Code RSC 1985 c C-46.

^[63] See the reasoning in United States v Agostino 132 F 2d 1183 (7thCir 1997) at 1195 as to the backward-looking nature of “illegal gratuity” offences.

^[64] (9 November 1910) 153 NZPD at 452–3.
^[65] Burgess v Field (No 2) at [47].

^[66] Summing up at [31].
^[67] At [32].
^[68] At [31].

^[69] The charge left open the possibility that the alleged conduct could have occurred before the first interview as it alleged the conduct occurred between 27 September and 26 October 2005.
^[70] R v Field HC Auckland CRI-2007-092-18132, 6 October 2009 at [35].
^[71] At [143].
^[72] R v Field HC Auckland CRI-2007-092-18132, 10 December 2008 at [35].
^[73] At [143].
^[74] At [138].
^[75] R v Field v Burgess HC Auckland CRI-2007-092-18132, 10 December 2008 at [37].
^[76] R v Rogerson [1992] HCA 25; [1992] 174 CLR 268.
^[77] At 276 per Masen CJ.
^[78] At 283–284 per Brennan and Toohey JJ.
^[79] McMahon v R [2009] NZCA 472.
^[80] R v Meyrick [2008] NZCA 45.

^[81] Kevin Taylor “Overstayer case to be examined” The New Zealand Herald (New Zealand, 21 September 2005) at 3.

^[82] Taito Phillip Field “Press release from Hon Taito Field about scope of ministerial inquiry” (press release, 28 September 2005).
^[83] R v P [1996] NZCA 113; [1996] 3 NZLR 132 (CA) at 135.
^[84] Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730.
^[85] See in particular at [66] per Gault J.

^[86] See generally Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: a commentary (LexisNexis, Wellington, 2005) at 711-730 and Paul Rishworth and others The New Zealand Bill of Rights (Oxford University Press, Melbourne, 2003) at 585–598.

^[87] By s 30(2)(a) the Judge must find on the balance of probabilities that the evidence was improperly obtained before the remedial stage of s 30 applies.
^[88] R v Beattie HC Auckland T39/97, 2 July 1997.
^[89] Evidence Act, s 29(5)(a).
^[90] R v Field HC Auckland CRI-2007-092-18132, 6 October 2009.
^[91] Secret Commissions Act 1910, s 13(1).
^[92] R v Nua [2001] NZCA 190; [2001] 3 NZLR 483 and R v Palmer CA332/03, 31 March 2004.

^[93] R v Bruneau [1964] 1 OR 263 (ONCA) and R v Jackson (1988) 33 A Crim R 413 (NSWCCA).
^[94] Sentencing Act 2002, s 85(2).
^[95] At [34].
^[96] At [73].
^[97] At [70].
^[98] At [71].
^[99] At [71].
^[100] At [73].
^[101] R v Dewar [2008] NZCA 334.
^[102] R v Clutterbuck CA372/99, 17 November 1999.
^[103] R v Walters [1993] 1 NZLR 533 (CA).
^[104] At [63].

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2010/556.html