R v Kong [2011] NZCA 537 (25 October 2011)

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R v Kong [2011] NZCA 537 (25 October 2011)

Last Updated: 2 November 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA571/2010 [2011] NZCA 537

BETWEEN THE QUEEN Appellant

AND HONG SHENG KONG Respondent

Hearing: 24 August 2011

Court: O'Regan P, Arnold and Ellen France JJ

Counsel: J C Pike for Appellant P J Davison QC and R C Woods for Respondent

Judgment: 25 October 2011 at 2.30 pm

JUDGMENT OF THE COURT

A The appeal is allowed and the acquittal is quashed.

B A new trial is directed under s 382(2)(b) of the Crimes Act 1961.

REASONS OF THE COURT
(Given by Ellen France J)

Table of Contents

Para No.

Introduction [1]
Factual background [3]
The decision in the District Court [8]
The relevant statutory provisions [12]
Section 117(e) of the Crimes Act [13]
The 1994 Act [14]
Issues on the appeal [23]
Is the Commissioner’s preliminary inquiry stage outside the scope
of s 117(e)? [25]
The submissions [26]
Discussion [32]
The effect of s 63 and the offences in s 73 [48]
The relevant provisions [49]
The submissions [53]
Discussion [55]
Disposition [59]

Introduction

[1] The respondent is a general practitioner. He operated a medical practice in Auckland. The family of one his patients made a complaint under the Health and Disability Commissioner Act 1994 (the 1994 Act) to the Health and Disability Commissioner about his care of their father. The Crown alleges that, in his response to the Commissioner’s request for information, the respondent altered clinical records. This allegation forms the basis of a charge under s 117(e) of the Crimes Act 1961 that the respondent attempted to pervert the course of justice.
[2] The matter went to trial. At the end of the Crown case the respondent applied for a discharge under s 347 of the Crimes Act. Judge Aitken discharged the respondent on the basis that the inquiries undertaken by the Commissioner in relation to the complaint were outside of the scope of the course of justice.[1] On the Crown’s application, the Judge stated a case to this Court pursuant to s 381A of the Crimes Act. The question of law posed is as follows:

Was I wrong to hold that the [respondent’s] actions in providing false information to the Health and Disability Commissioner could not constitute an attempt to obstruct, prevent, pervert or defeat the course of justice in New Zealand?

Factual background

[3] Chanxing Du was one of the respondent’s patients. Mr Du saw the respondent in relation to a lesion on his foot. The critical visit took place in July 2005. Subsequent to that visit there was some anxiety on the part of Mr Du’s family about whether more should be being done about the lesion. Ongoing contact between the respondent and the family continued although there was no suggestion over this period that a complaint about Mr Du’s care and treatment might be made.
[4] It transpired that the lesion was cancerous. Mr Du died in January 2007 from the melanoma. It is not suggested the respondent was responsible for the death.
[5] Mr Du’s family made a complaint to the Commissioner soon after Mr Du’s death. The Commissioner wrote to the respondent on 22 March 2007 in relation to the complaint. The respondent was asked to provide a response to the complaint and a copy of the clinical records relating to Mr Du.
[6] The respondent replied to the Commissioner and supplied the clinical records. After considering the matter, the Commissioner told the Du family he was satisfied with the respondent’s care of Mr Du.
[7] The Crown case was that subsequent forensic examination showed that changes had been made to the clinical records relating to Mr Du. The most significant change is alleged to have been made in early November 2005. This change involved the addition of material to the effect that a punch biopsy in the surgery or a biopsy done by Diagnostic Medlab were discussed at the July 2005 consultation but that Mr Du declined to pursue these options. The summary of facts alleges further changes were made to the clinical records on 15 and 16 November 2005. Another change, to a note of 19 September 2005, is alleged to have been made on 24 March 2007, the day after the respondent drafted his letter to the Commissioner about the complaint. Finally, it is alleged that, on 27 March 2007, the respondent altered Medlab referral forms (initially created on 2 July 2005 and 29 October 2005) to include references to histology.

The decision in the District Court

[8] Judge Aitken found that by providing altered records, the respondent “may well have deflected any investigation by the [Commissioner] as to whether there had been a breach” of Mr Du’s rights.[2] The Judge also considered that proceedings before the Health Practitioners Disciplinary Tribunal and the Human Rights Review Tribunal must form part of the administration of justice. Accordingly, an act attempting to obstruct their administration might amount to obstruction in the course of justice. However, Judge Aitken said it did not follow that “all paths” leading to proceedings before those tribunals fell within the ambit of the course of justice.[3]
[9] In deciding whether the Commissioner’s inquiries fell within s 117(e), the Judge emphasised that the Commissioner’s jurisdiction in this case did not extend to enforcing or adjusting rights and liabilities. Accordingly, Judge Aitken considered it would be artificial to describe the commencement of the complaint procedure before the Commissioner as a process of the administration of justice.
[10] The Judge also found that the 1994 Act excluded the application of the criminal law to the Commissioner’s investigatory procedures. It would be illogical then, she found, to apply the criminal law at the preliminary stage.
[11] Judge Aitken’s conclusion is expressed as follows:[4]

In the course of this trial, I have had to make a broad, evaluative judgment as to whether the process before the ... Commissioner should properly be regarded as within the course of justice. As noted, I have relied on the definition (or the scope) of the “administration of justice”, as defined by the High Court of Australia in R v Rogerson. Given the limited power of the ... Commissioner, notwithstanding that it includes some judicial functions; given the statutory framework which excludes the operation of the criminal law where obstructing or misleading conduct arises in the course of the [Commissioner’s] investigation; and notwithstanding that the alleged conduct by [the respondent] could be said to have to have deflected an application to the Health [Practitioners] Disciplinary Tribunal, I am not persuaded that the function of the ... Commissioner meets the definition of an administrative tribunal, as identified in R v Rogerson, such that its assessment or investigatory processes should properly be described as falling within the course of justice, nor am I satisfied that Parliament intended it to be, having set up a comprehensive regime for the very sort of complaints to be addressed. It seems to me that the intention of Parliament was not to bring the conduct in issue within the purview of the criminal court. I record also that lawful procedures and remedies still exist to meet the conduct of [the respondent] in this particular case.

The relevant statutory provisions

[12] In terms of the statutory provisions, it is helpful to begin with s 117(e) of the Crimes Act and then we turn to the 1994 Act.

Section 117(e) of the Crimes Act

[13] Under s 117(e) of the Crimes Act, it is an offence punishable by a maximum term of imprisonment of seven years to:

wilfully attempt [...] 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 1994 Act

[14] The purpose of the 1994 Act is to “promote and protect” the rights of consumers of health and disability services.[5] To that end, the 1994 Act provides a process for the “fair, simple, speedy, and efficient resolution” of complaints by consumers that their rights have been breached and for the appointment of a Health and Disability Services Commissioner.[6] In very general terms, that process involves an initial assessment of complaints by the Commissioner. After that assessment, the options which may follow include a formal investigation by the Commissioner and the institution of proceedings by the Director of Proceedings before the Health Practitioners Disciplinary Tribunal or the Human Rights Review Tribunal.[7] The Health Practitioners Disciplinary Tribunal is established under the Health Practitioners Competence Assurance Act 2003 which deals with, amongst other things, discipline of health practitioners.
[15] Under the 1994 Act, the Commissioner has a number of functions. Some of these relate to the Code of Health and Disability Services Consumers’ Rights (the Code).[8] The Commissioner also has educative functions.[9] For present purposes, the relevant functions are those that relate to complaints. Section 14(1) relevantly provides that the Commissioner has the following functions:

(da) to act as the initial recipient of complaints about health care providers[10]..., and to ensure that each complaint is appropriately dealt with:

(e) to investigate, on complaint or on the Commissioner’s own initiative, any action that is or appears to the Commissioner to be in breach of the Code ... :

(f) to refer complaints, or investigations on the Commissioner’s own initiative, to the Director of Proceedings for the purpose of deciding whether or not any further action should be taken in respect of any such breach or alleged breach:

(g) ... to make recommendations to any appropriate person or authority in relation to the means by which complaints involving alleged breaches might be resolved and further breaches avoided:

...

(m) to gather such information as in the Commissioner’s opinion will assist the Commissioner in carrying out the Commissioner’s functions under this Act:

[16] To assist in the exercise of these functions, the Act provides for the establishment of a Director of Proceedings (the Director) who is an employee of the Commissioner but acts independently.[11]
[17] Complaints can be made under the Act in relation to an alleged breach of the Code.[12] On receipt of a complaint, the Commissioner undertakes a preliminary assessment.[13] The purpose of this assessment is to decide what steps to take next. The Commissioner can take any of the following steps: refer the matter on to another agency, for example, the Accident Compensation Corporation, or to an advocate; call a mediation conference; commence an investigation; or take no action.[14] A preliminary assessment can be re-visited.[15]
[18] In terms of s 40, the Commissioner may decide to investigate any action of a health care provider if the action is, or appears to the Commissioner to be, in breach of the Code. The Commissioner may investigate an action under this section either following a complaint or on the Commissioner’s own initiative.[16] The effect of notice of an investigation by the Commissioner is that any disciplinary action under the Health Practitioners Competence Assurance Act is suspended until the Commissioner notifies the relevant authority under that Act that the matter is not to be investigated further, the complaint has been resolved or the matter is not to be referred to the Director.[17]
[19] Section 59(1) of the 1994 Act provides that an investigation of complaints relating to the Code by the Commissioner may be conducted in public or in private. The Commissioner has power to hear or obtain information and make such inquiries as the Commissioner thinks fit.[18] With some limited exceptions relating to the right to respond to prejudicial material, there is no right to be heard by the Commissioner.[19]
[20] If, after an investigation, the Commissioner is of the opinion that any action that was the subject matter of the investigation was in breach of the Code, the Commissioner can take a number of steps. One of those steps is referring the health care provider to the Director for the purpose of deciding whether other action should be taken.[20] That other action may involve disciplinary proceedings or the institution of proceedings before the Human Rights Review Tribunal.[21] Section 91 of the Health Practitioners Competence Assurance Act states that the Director may lay a charge against a health practitioner before the Health Practitioners Disciplinary Tribunal.
[21] Section 62 deals with evidential matters. We come back later to the detail of this and the related sections.[22] For present purposes, we note that the Commissioner can require information to be provided for the purposes of an investigation and may summon persons to appear before him or her and examine those persons on oath.[23] Section 63 sets out various matters relating to the protection and privileges of persons who are required to provide information to the Commissioner.
[22] Finally, s 73 establishes various offences. For example, it is an offence to knowingly provide false or misleading information to the Commissioner.[24]

Issues on the appeal

[23] As the appeal has developed, the issues arising from the question of law posed by the District Court are fairly narrow. Mr Davison QC for the respondent accepts that s 117(e) may apply to the investigatory processes of the relevant tribunals. However, he submits that at the preliminary stages where the Commissioner is deciding whether or not such an investigation is necessary, s 117(e) can have no application. At this early stage, Mr Davison says the only offence that the respondent could have committed is that set out in s 73(c) of the 1994 Act.
[24] The appeal can accordingly be dealt with by answering two questions. The first question is whether a distinction should be drawn for the purposes of s 117(e) between what occurs as part of the Commissioner’s preliminary assessment, and a subsequent investigation or disciplinary proceeding. The second question relates to the effect of s 63 of the 1994 Act, dealing with the protection and privileges of witnesses, and the offence provision (s 73) of that Act. We deal with each question in turn.

Is the Commissioner’s preliminary inquiry stage outside the scope of s 117(e)?

[25] In order to put this aspect in context we set out the terms of the Commissioner’s initial letter of 22 March 2007 to the respondent. The letter referred to a complaint having been received and continued:

One of the Commissioner’s functions, as set out under section 14(1)(m) of the ... 1994 [Act], is “to gather such information as in the Commissioner’s opinion will assist the Commissioner in carrying out the Commissioner’s functions under the [1994] Act”.

To assist the Commissioner to decide what action, if any, to take on this matter, he would appreciate receiving your response to this complaint, and a copy of Mr Du’s clinical records. Please provide this information by 12 April 2007.

Once this information has been reviewed, the Commissioner will decide what further action to take on this complaint. You will be contacted again in due course.

The submissions

[26] The crux of the submissions for the Crown on this point is that the District Court has erred in treating each step in the process potentially leading to a hearing before a tribunal as separate and unconnected. Rather, Mr Pike on behalf of the Crown argues, the Commissioner’s inquiry set in train a process. Deflection of that process, viewed as a whole, can involve the “course of justice”.
[27] The essential submission for the respondent is that the inquiry process initiated by the letter of 22 March is too remote from the investigatory or disciplinary parts of the process to invoke the criminal sanction under s 117(e).
[28] In developing this submission Mr Davison says, first, that the authorities suggest that “investigation” captures the nature of the function that is caught by s 117(e). Applying this approach to the present case, the Commissioner when writing to the respondent was not conducting an investigation. Rather, as the letter of 22 March made clear, this was an information gathering exercise under s 14(1)(m).
[29] Secondly, Mr Davison emphasises that at this preliminary assessment stage an array of responses is open to the Commissioner. The 1994 Act in fact places an emphasis on meeting and reaching agreements on a consultative basis. These possible outcomes, and their range and nature, militate against the conclusion that any deflection of the Commissioner’s preliminary assessment can comprise an offence in terms of s 117(e). While Mr Davison accepts that a disciplinary proceeding was “on the landscape” of potential outcomes, the point made is that this was but one of a number of possibilities.
[30] Finally, even at the investigative stage, Mr Davison notes the absence of some of the features of a quasi-judicial body. In this context, reference is made to the fact the Commissioner’s investigation may be conducted in public or in private; that no hearing is necessary; and there is no right to be heard by the Commissioner.
[31] Accordingly, the respondent says, the Commissioner was not undertaking any adjudicative or prosecutorial role when dealing with the Du family’s complaint. The Judge was therefore right that s 117(e) does not apply.

Discussion

[32] It is plain on the authorities that tribunals can come within the “course of justice”. In R v Meyrick, this Court said that that the course of justice “undoubtedly includes the administration of justice by publicly established tribunals”.[25]
[33] The Court referred in this respect to the decision of the High Court of Australia in R v Rogerson.[26] In that case, Mason CJ said that the course of justice was not confined to justice as it is administered by the “orthodox court system”.[27] Mason CJ continued that the course of justice relevantly included the proceedings of judicial tribunals, namely, tribunals having authority “to determine the rights and obligations of parties and having a duty to act judicially”.[28] Brennan and Toohey JJ said this:[29]

Justice, as the law understands it, consists in the enjoyment of rights and the suffering of liabilities by persons who are subject to the law to an extent and in a manner which accords with the law applicable to the actual circumstances of the case. The course of justice consists in the due exercise by a court or competent judicial authority of its jurisdiction to enforce, adjust or declare the rights and liabilities of persons subject to the law in accordance with the law and the actual circumstances of the case ... The ways in which a court or competent tribunal authority may be impaired (or prevented from exercising) its capacity to do justice are various. Those ways comprehend ..., erosion of the integrity of the court or competent judicial authority, hindering of access to it, deflecting applications that would be made to it, denying it knowledge of the relevant law or of the true circumstances of the case, and impeding the free exercise of its jurisdiction and power including the powers of executing its decision.

(Emphasis added.)

[34] Similarly, in McMahon v R, with reference to Rogerson and Meyrick, this Court said that the propositions to emerge from the case law included the following:[30]

(a) The object of the offence of attempting to obstruct or pervert the course of justice is to protect the process and procedures of the courts (and other tribunals).

...

(e) Police investigations in themselves do not form part of the course of justice. However, an act which has a tendency to deflect the police from prosecuting ... is an act which tends to pervert the course of justice if undertaken with this purpose in mind.

[35] As Mr Davison accepts, the proceedings of the relevant tribunals in this case (in particular, the Health Practitioners Disciplinary Tribunal) could be part of the course of justice. Certainly, the Disciplinary Tribunal has the requisite impact or potential impact on rights and obligations. This is the point made by the Supreme Court of Canada in Wijesinha v R:[31]

[48] In Rogerson ... Mason C.J. wisely observed that the course of justice is not confined to justice as it is administered by the orthodox court system. His words recognize the realities of today’s society.

[49] There may be some reluctance on the part of the courts to recognize that a serious perversion of justice can occur just as readily in the work of administrative tribunals or disciplinary bodies as it can in the proceedings of the courts. Yet, I think this is the situation that exists in our contemporary society. It cannot be forgotten that so much of the conduct of people’s affairs today is no longer controlled by the courts but by statutory tribunals. The courts simply cannot cope with the vast multitude of problems requiring investigation, regulation and enforcement to protect the health and safety of Canadians. That role has of necessity been undertaken by statutorily empowered administrative tribunals or discipline panels.

[36] The Court went on to note that society “for its safety and health” has to be concerned with a number of different aspects of daily life.[32] In those various areas, the failure to maintain the statutory standards may have a significant adverse impact. The corollary of this is that the various statutorily authorised boards must investigate and commence appropriate proceedings to ensure minimum standards are maintained. As Mr Pike says, the Commissioner in the present case exercises a public function involving potentially at least matters with a high public safety interest.
[37] Assuming then that the tribunals involved may comprise the course of justice, how does the Commissioner fit in to the process?
[38] As we have noted, Mr Davison relies on the focus in the authorities on the fact that the conduct leading to the offence involves deflecting an “investigation” rather than some less formal process. In Rogerson, for example, Brennan and Toohey JJ observe that although police “investigations” into possible criminal offences or disciplinary matters are not part of the course of justice, “an act calculated to mislead the police during investigations” may comprise an attempt to pervert the course of justice.[33] Further, Mr Davison relies on these passages from Wijesinha:

Does the “course of justice” include investigations?

[27] The proceedings of a court, or indeed those of most administrative tribunals, will almost invariably commence with an investigation. Investigation ... . [i]s the essential first step in any judicial or quasi-judicial proceeding which may result in a prosecution.

...

[34] In summary, since a false statement at the stage of the investigation may prevent any proceedings from taking place and thus pervert the course of justice, s 139(2) [of the Canadian Criminal Code] must encompass investigatory proceedings.

[39] On this aspect, we agree with the submission for the Crown that the Commissioner’s inquiry itself does not have to be part of the course of justice. With respect, that seems to have been the error in the Judge’s approach.
[40] The point is made by Brennan and Toohey JJ in Rogerson who explain that an act which has “a tendency to deflect” the police from a prosecution or instituting disciplinary proceedings before a judicial tribunal is an act which tends to pervert the course of justice.[34] If done with the intention of achieving that result, the act amounts to an attempt to pervert the course of justice. Reference is made in this respect to Kalick v R in which Anglin J said it was sufficient that the appellant gave the bribe (to a police officer) with intent “to head off” any prosecution.[35]
[41] The position is made clear in Field v R, which provides a good analogy to the present case.[36] Mr Field was a former Member of Parliament. He was charged with and convicted of various charges including counts of attempting to pervert the course of justice under s 117(e) of the Crimes Act. The thrust of the Crown’s case on the perverting the course of justice counts was that Mr Field took steps to deflect the course of a Ministerial inquiry (the Ingram inquiry) into claims made about Mr Field’s activities as well as police investigations. The Ingram inquiry was set up by the Prime Minister who appointed Dr Noel Ingram QC to investigate various claims made in relation to Mr Field’s activities as a Member of Parliament. “In short”, as this Court put it, “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”.[37]
[42] The Court accepted that the trial judge, Rodney Hansen J, had correctly directed the jury when he said the course of justice included the prosecution of criminal offending and the court proceedings which follow. The Court rejected the submission that Rodney Hansen J had somehow erroneously held that the Ingram inquiry constituted the course of justice. Rather, as the Judge told the jury:[38]

... 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.

(Emphasis added.)

[43] The upshot was that by attempting to deflect the Ingram inquiry, as well as that of the police, Mr Field’s actions could comprise an offence under s 117(e).
[44] Mr Davison seeks to distinguish Field on the basis of the close involvement of the police in the Ingram inquiry and the more direct proximity to a police investigation. Those factors do not, however, detract from the basic proposition emerging from the case, namely, that by attempting to cut the Ingram inquiry off at the pass, Mr Field’s actions could amount to an attempt to pervert the course of justice even though the Ingram inquiry had no adjudicative or prosecutorial functions nor even any investigative powers. On this basis, it is not critical that the Commissioner’s role at the preliminary assessment stage is not adjudicative and that, even at the investigative stage, it does not incorporate all of the trappings of a quasi-judicial body.
[45] We add that we do not attach any weight to s 62(3) of the 1994 Act, a matter also raised by Mr Davison in this context. That subsection provides that when the Commissioner examines a person on oath, the examination is deemed to be a judicial proceeding within the meaning of s 108 of the Crimes Act (perjury).[39] The offence of perjury is confined to judicial proceedings which are defined in s 108(4) of the Crimes Act. If it is intended s 108 is to apply here, it is necessary for the statute to say so. Nothing further can be drawn from this clarification of the position.
[46] We accept Mr Davison’s submission that there must some outer limits to the reach of the “course of justice”. It is also important, as he argues, to have some clarity about where the lines between criminal and non-criminal behaviour are drawn. The issue then is whether there is sufficient proximity between the initial phase and the later investigative or hearing stages in the 1994 Act to potentially engage s 117(e).
[47] We consider it is artificial to draw the line between the preliminary assessment and subsequent investigations or referral to the Disciplinary Tribunal. The reality is that, on the Judge’s finding, the respondent’s actions stymied any possible investigation or referral. It would be odd if the provision of the same information to the Director, say, at one stage further down the track could potentially involve s 117(e) but the act of stopping the matter so that it does not get to that stage would not. The respondent’s approach, which involves a step by step dissection of what is in fact a continuum of possible action, is not consistent with the general direction in the authorities we have discussed. In terms of Mr Davison’s concern about the potential reach of the criminal law, the mental element of the offence will of course provide a moderating influence.

The effect of s 63 and the offences in s 73

[48] We first set out the provisions in issue.

The relevant provisions

[49] Section 63 is headed “Protection and privileges of witnesses, etc”. Section 63(1) makes it plain that except as provided in s 64(2) (public interest immunity), every person has the same privileges in relation to the giving of information to, the answering of questions put by and the production of documents and things to the Commissioner as witnesses have in any court. Section 63(2) provides as follows:

No person shall be required to supply any information to or to answer any question put by the Commissioner ... in relation to any matter, or to produce to the Commissioner ... any document or thing relating to any matter, in any case where compliance with that requirement would be in breach of an obligation of secrecy or non-disclosure imposed on that person by the provisions of any Act or regulations, other than the Official Information Act 1982 or the State Sector Act 1988.

[50] Of importance to the respondent’s case is s 63(3) which states:

No person shall be liable to prosecution for an offence against any enactment, other than section 73, by reason of that person’s compliance with any requirement of the Commissioner ... under section 62.

[51] Under s 62, the Commissioner can require the provision of information or the production of documents and can also summon a person for examination under oath.
[52] Section 73 provides that every person commits an offence against the Act and is liable on summary conviction to a maximum fine of $3000 who:

(a) without reasonable excuse, obstructs, hinders, or resists the Commissioner or any other person in the exercise of their powers under this Act:

(b) without reasonable excuse, refuses or fails to comply with any lawful requirement of the Commissioner or any other person under this Act:

(c) makes any statement or gives any information to the Commissioner or any other person exercising powers under this Act, knowing that the statement or information is false or misleading:

(d) represents directly or indirectly that he or she holds any authority under this Act when he or she does not hold that authority.

The submissions

[53] The Crown submits that the purpose of s 63(3) is to protect witnesses from collateral criminal proceedings. Further, Mr Pike says that there is nothing in s 73 to say that this is the necessary extent of the processes applicable to a person providing information to the Commissioner.
[54] The respondent says that a person who provided false or misleading information to the Commissioner, after being required to appear before the Commissioner to give evidence on oath or to provide information, would only be liable under s 73 of the 1994 Act and not under any other Act. Mr Davison draws on the meaning of “compliance” in s 63(3) and on the inter-relationship between subss 63(2) and (3). The submission is that it would be wrong if a person were liable for the much harsher punishment under s 117(e) of the Crimes Act if false or misleading information were provided after a request made by the Commissioner without invoking the powers of compulsion. The correct approach to this matter, it is submitted, is that s 73 of the 1994 Act encompasses all conduct that involves the provision of information to the Commissioner. This leaves no room for the application of s 117(e).

Discussion

[55] We accept the submissions for the Crown that the purpose of s 63(3) is to protect those who provide information to the Commissioner from prosecution under other statutes simply because they have complied with a requirement of the Commissioner under s 62. In particular, if a person, in order to comply with a requirement under s 62 breaches a secrecy obligation in another Act he or she is immune from collateral prosecution under that other Act but may, if false information is provided, commit an offence under s 73.
[56] We consider this meaning is apparent from the words used in s 63(3). In addition, that interpretation is supported by the heading of s 63 which makes it plain the section deals with the “protection” of witnesses. The other parts of s 63, particularly s 63(2), also support the interpretation we favour.
[57] The same approach has been taken to similar provisions which appear in other statutes, for example, s 94 of the Privacy Act 1993. The High Court briefly discussed s 94(2) in Jeffries v Privacy Commissioner.[40] That case dealt with whether Mr Jeffries was required to provide information requested by the Privacy Commissioner under s 91(4) of the Privacy Act. Ronald Young J said of s 94 that it gives “protection and privileges to those who are required to give information but it does not allow refusal to provide the information”.[41] The matter ultimately proceeded to the Supreme Court. In terms of s 94, the Court said it “provides for claims of privilege and the manner in which any such claim is to be treated.”[42] The commentary on this section is to similar effect, as is the commentary on the equivalent provisions in other statutes.[43]
[58] We do not consider that s 63(3) and s 73 alter the conclusion that the deflection of the Commissioner’s inquiry, if proven to have occurred with the requisite intent, could comprise an offence under s 117(e).

Disposition

[59] For these reasons, the appeal is allowed and the acquittal is quashed. A new trial is directed under s 382(2)(b) of the Crimes Act.

Solicitors:
Crown Law Office, Wellington for Appellant

---

[1] R v Kong DC Auckland CRI-2007-004-27405, 13 August 2010.
[2] At [4].
[3] At [23].
[4] At [45].
[5] 1994 Act, Long Title.
[6] 1994 Act, Long Title (a) and (b) and ss 6 and 8.
[7] 1994 Act, s 45.
[8] For example, s 14(1)(a) and (b) of the 1994 Act.
[9] See 1994 Act, s 14(1)(c).

[10] The Health Practitioners Competence Assurance Act, s 64, which provides that complaints that the conduct of a health practitioner has affected a consumer must be forwarded to the Commissioner.
[11] 1994 Act, s 15.

[12] 1994 Act, s 31(1) provides that complaints may be made to an advocate or to the Commissioner.
[13] 1994 Act, s 33(1).
[14] Ibid. The Commissioner’s power to call a mediation conference is dealt with in s 61.
[15] 1994 Act, s 33(3).
[16] 1994 Act, s 40.
[17] 1994 Act, s 42(2). See also the Health Practitioners Competence Assurance Act, s 70.
[18] 1994 Act, s 59(2).
[19] 1994 Act, s 59(3).
[20] 1994 Act, s 45(2)(f).
[21] 1994 Act, s 45.
[22] At [49]–[52], below.
[23] 1994 Act, s 62(2).
[24] 1994 Act, s 73(c).
[25] R v Meyrick CA513/04, 14 June 2005 at [42].
[26] R v Rogerson [1992] HCA 25, (1992) 174 CLR 268, cited in Meyrick at [42].
[27] At 276.
[28] At 276.
[29] At 280.
[30] McMahon v R [2009] NZCA 472 at [87].
[31] Wijesinha v R (1995) 127 DLR (4th) 242.
[32] At [50].
[33] At 283–284. See also Field v R [2010] NZCA 556, [2011] 1 NZLR 784 at [133].
[34] At 284.

[35] Kalick v R (1920) 55 DLR 104 (SCC) at 109, cited in Rogerson at 284 per Brennan and Toohey JJ.
[36] Field v R [2010] NZCA 556, [2011] 1 NZLR 784 (CA).
[37] At [16].

[38] Cited in Field at [129]. The Supreme Court denied leave to appeal on this point: Field v R [2011] NZSC 21.
[39] 1994 Act, s 62(3).

[40] Jeffries v Privacy Commissioner HC Wellington CIV-2006-485-860, 22 May 2008. Section 94(2) equates to s 63(3) of the 1994 Act.
[41] At [53].
[42] Jeffries v Privacy Commissioner [2010] NZSC 99, [2011] 1 NZLR 45 at [9].

[43] Privacy Law and Practice, Lexis Nexis, at [94.2] and Laws of New Zealand Information (online ed) at [97]; Independent Police Conduct Authority Act 1988, s 25(3): Laws of New Zealand updated Police Reissue 1 (online ed) and see Williams v Attorney-General HC Auckland CIV-2001-404-199, 2 June 2004; Environment Act 1986, s 19(6): Laws of New Zealand Environment (online ed) at [6]; Ombudsmen Act 1975, s 19(7): Laws of New Zealand Administrative Law (online ed) at [233]; Human Rights Act 1993, s 128(3): Laws of New Zealand Discrimination (online ed) at [108], DeBres v McCully [2004] 1 NZLR 828 (HC) at [10]; and Human Rights Commission Act 1977 s 73(6).