EDWARDS V DEPARTMENT OF LABOUR HC WN CRI 2007 485 113 [2008] NZHC 950 (20 June 2008)

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
                                                                 CRI 2007 485
113


                IN THE MATTER OF         an application for leave to appeal from a
                                       
 determination of the High Court of New
                                         Zealand on appeal from the District Court
     
                                   at Wellington

                BETWEEN                  REBBECCA LOUISE EDWARDS
             
                           (AKA REBBECCA LOUISE ALZAIDY)
                                         Applicant

                AND
                     DEPARTMENT OF LABOUR
                                         Respondent


Hearing:        10 June 2008

Counsel:
       C R Carruthers QC & D A Ewen for applicant
                M D Downs for respondent

Judgment:       20 June 2008



    
               RESERVED JUDGMENT OF DOBSON J



[1]      This is an application for leave to appeal to the Court of Appeal, brought
pursuant to s 144 of the Summary Proceedings Act 1957. The proceedings have a
relatively protracted history. The applicant for leave
("the appellant") was charged
with four counts of supplying misleading information to an immigration officer
without reasonable excuse
under s 142(1)(c) of the Immigration Act 1987 ("the
Act").     The appellant pleaded not guilty and her initial defence was that
the
prosecution had failed to establish that the informations had been commenced by an
immigration officer or another of the defined
categories of competent persons
specified by s 145(3) of the Act.




EDWARDS V DEPARTMENT OF LABOUR HC WN CRI 2007 485 113 20 June
2008

[2]    This challenge was raised after the prosecution had closed its case. The
initial reaction was an application for leave
to adduce evidence that would prove that
the informant was indeed an immigration officer in terms of the Act. District Court
Judge
Behrens QC treated that application as having acknowledged the validity of
the appellant's defence, but did not grant the prosecution
leave to adduce further
evidence. Given his view that there was no evidence that an immigration officer had
laid the informations,
each of the charges was dismissed.


[3]    The respondent appealed by way of case stated to the High Court, framing a
question of
law intended to clarify the evidentiary requirements as to the status of an
informant under the relevant section. On 16 February
2007, Justice Clifford upheld
the manner in which the informations had been laid, and remitted the matter back to
the District Court.


[4]    At the rehearing in the District Court, it was argued for the appellant that
there was a reasonable doubt that the misleading
information had in fact been
supplied to an immigration officer. However, the District Court Judge was satisfied
that the evidence
surrounding each document indicated that they were in fact
supplied to an immigration officer and the appellant was duly convicted
on each
count and later sentenced to a $200 fine on each conviction.


[5]    The appellant then appealed to this Court on two grounds.
First, that there
was no evidence that any of the information referred to was received by persons who
were immigration officers in
terms of the Act. Secondly, that the re-hearing of the
informations by the District Court was a nullity because the notice of appeal
had
been filed by a person with insufficient standing. In a 27 February 2008 judgment, I
found that neither ground of challenge was
made out, and dismissed the appeal.


[6]    The criteria for the grant of leave to further appeal under s 144 of the
Summary Proceedings
Act was addressed by the Court of Appeal in R v Slater
 [1997] 1 NZLR 211 at 215:

       ...there must be: (i) a question of law; (ii) the question must be one which,
       by reason of its general and
public importance or for any other reason, ought
       to be submitted to the Court of Appeal; and (iii) the Court must be of the
       opinion that it ought to be so submitted. It is probably neither necessary nor

       desirable, however, to break the requirements
of the subsection down in this
       way. Such an analysis merely serves to highlight the essential elements
       which must be
present before leave to appeal can be granted.

[7]    In seeking leave, Mr Carruthers QC contended that there are three issues
raising
questions of law that were reasonably arguable, and which warranted a grant
of leave to further appeal:


       ·   Whether the
informant can rely on the "presumption of regularity"
           (omnia praesumuntur rite esse acta done probetur in contrarium)
to
           prove an ingredient of the offence where conviction could lead to
           imprisonment;


       ·   If direct evidence
of some element (relevantly, the status of recipients as
           immigration officers) is available, but such witnesses are not
called and
           other evidence does not explain their absence, are inferences available
           that either the evidence
would not have assisted the case of the party
           failing to call it, or that such evidence would have been adverse to that
           party's case; and


       ·   Whether the right to appeal could only be exercised personally by the
           informant
(rather than by the Department of Labour, acting by another
           employee).


The presumption of regularity


[8]    The first
of these possible grounds owes more to my reasoning on the appeal,
than to the original decision. I entertained argument on the basis
that, to the extent
reliance on the presumption of regularity might be inferred, whether that would
render the reasoning on entry
of convictions vulnerable to challenge. Having dealt
with what is a somewhat imprecise position on the law, I relegated its importance
in
the following terms:

       [25]    That leads to the second reason. Reliance on the presumption was
       not the only factor
that the learned Judge used to decide that this element
       was made out. In fact, at [18], he states that evidence of practice
was

       insufficient to prove the element. Instead, he used evidence of practice in
       concert with evidence that the practice
had been followed (eg the date
       stamps on the documents) to justify his conclusion that the element had been
       proved
beyond reasonable doubt. Simply, the appellant adduced no
       evidence whatsoever to raise any possible doubt, and in those circumstances,
       Judge Behrens legitimately determined the element as being proved.

[9]    It was argued for the respondent on the leave application
(somewhat more
forcefully than on argument of the appeal) that it is a misconstruction of the District
Court Judge's reasoning to
attribute to him any reliance on the presumption at all.
There is certainly no explicit reference to the presumption at any point
in his
judgment. Logical and legitimate inferences drawn from circumstantial evidence
were relied on but that cannot imply invocation
of the presumption.


[10]   Mr Carruthers' response to this was to infer that the presumption must have
been applied by the Judge,
because there was no way in which he could have been
satisfied that the documents were received by persons having the standing of
immigration officers, without resort to the presumption. However, it is not essential
to draw that inference to explain the outcome.
Without any acknowledged reliance
on the presumption, it could equally be open to treat the decision as arrived at by the
Judge on
the evidence adduced, whether or not the evidence reasonably supported
the finding. There is no right of general appeal, but were
there to be one, an
alternative to the inferred reliance on the presumption would obviously be that the
finding was not supported by, or was contrary
to, the evidence.


[11]   Given the absence of any reliance by the Judge, it was my own reasoning that
was focused on to identify
the arguability of another view, as to the circumstances in
which the presumption of regularity might apply. My reasoning recognised
that the
presumption ought only to be applied in cases where the defendant is not vulnerable,
on conviction, to a sentence of imprisonment,
and implicitly treating it as available
in the present circumstances was therefore wrong, given the maximum penalty of
seven years'
imprisonment for these offences.


[12]   It was also argued that the law on the availability of the presumption is
somewhat uncertain,
as a ground justifying the reference of the issue to the Court of
Appeal.

[13]    However, in the present context, the qualified
comments about the
presumption appear in the appellate judgment because it was put in issue by the
appellant, but its application
in the circumstances is not able to be measured against
the reasoning of the original fact-finder. Where the issue arises after the
original
hearing in this way, it does not seem appropriate to recognise it as a question of
general or public importance, warranting
further appellate consideration. The mere
existence of a state of some uncertainty about the application of the presumption
does
not automatically qualify the question as one for further appeal: it ought to be
before the Court where reliance on it is was explicit,
and ideally in a case where both
parties joined issue on it at the trial. This is not that case.


Adverse inference from prosecution's
"failure" to call direct evidence


[14]    In my judgment, I commented on this argument as it was advanced in the
appeal in the
following terms:

        [31]     A first point made on this argument was that the prosecution's
        failure to call a witness
who can give relevant evidence should lead to the
        inference that such evidence would be helpful to the other side. The cases
        cited for this proposition arose in civil disputes, and it is not apt in the
        criminal, summary proceedings context.
Formal proof of all elements by the
        personnel with original, first-hand knowledge would impose a burden on
        prosecuting
entities such as the Department of Labour, out of all proportion
        to any requirement for fair trial that might suggest it
was necessary.

[15]    The first sentence of this paragraph was criticised as mis-stating the
argument, which on the present application
was expressed that "the available
inferences were that the evidence would not have assisted the party failing to call, or
that it
would have been adverse".


[16]    I note that the passage most relied on at the hearing of the appeal was from
page 546 of the
Canadian decision in Claiborne Industries Ltd v National Bank of
Canada  (1989) 59 DLR (4th) 533:

        It is a well-established principle that the unexplained failure to call a witness
        who can give relevant evidence
leaves open the natural inference that the
        evidence of that witness would be helpful to the opposite party...

[17]   I
was criticised for suggesting a distinction between civil and criminal cases
per se, whereas the latter part of paragraph [31] of
my judgment quoted above was
intended only to convey that the inference will not be apt in respect of formal
elements of charges
in summary proceedings where the burden that would impose
would be out of all proportion to the requirements for fair trial.


[18]
  On argument of the application for leave, Mr Carruthers drew attention to the
way this prospect of an adverse inference was dealt
with by the Court of Appeal in
Perry Corporation v Ithaca (Custodians) Ltd  [2004] 1 NZLR 731 at 767. The
passage in the following paragraphs deals with the point:

       [153] In our view, it is not helpful to analyse the
position in terms of broad
       and narrow views. Neither is it helpful to refer to the "rule" in Jones v
       Dunkel. There
is no rule. Rather, there is a principle of the law of evidence
       authorising (but not mandating) a particular form of reasoning.
The absence
       of evidence, including the failure of a party to call a witness, in some
       circumstances may allow an inference
that the missing evidence would not
       have helped a party's case. In the case of a missing witness such an
       inference
may arise only when:

               (a)     the party would be expected to call the witness (and this can
                     
 be so only when it is within the power of that party to
                       produce the witness);

               (b)     the
evidence of that witness would explain or elucidate a
                       particular matter that is required to be explained or
                       elucidated (including where a defendant has a tactical
                       burden to produce evidence to
counter that adduced by the
                       other party); and

               (c)     the absence of the witness is unexplained.

       [154] Where an explanation or elucidation is required to be given, an
       inference that the evidence would not have helped
a party's case is
       inevitably an inference that the evidence would have harmed it. The result
       of such an inference,
however, is not to prove the opposite party's case but
       to strengthen the weight of evidence of the opposite party or reduce
the
       weight of evidence of the party who failed to call the witness.

[19]   That represents a clear and current statement
of the law on the second issue
which the present application seeks leave to argue. Whether conditions (a) and (c)
set out in paragraph
[153] in the Perry judgment are met is a question of fact in each
particular case.     I have taken the view that it would not be
reasonable to
acknowledge a standard expectation in such prosecutions that the particular

immigration officer be called, to confirm
first-hand the receipt of the misleading
document.


[20]     The appellant also argued that the availability of this inference against
the
prosecution when direct evidence is not called is supported by the decision in
Trompert v Police  [1985] 1 NZLR 357.            That was an appeal confirming the
appropriateness of some reliance on the absence of defence evidence where a prima
facie
case is established, leading to an expectation that it would be answered, and it
is not. The appeal confirmed that in evaluating
what weight is to be given to the
prosecution evidence, some regard may be had to the absence of evidence in answer
to it.


[21]
    Mr Carruthers argued that logic required the same recognition of an inference
against the prosecution when it elects not to adduce
direct evidence, the absence of
which is unexplained. However, there is a clear difference between the party bearing
the onus choosing,
for whatever reason, to attempt to make out its case by indirect
evidence, and the defence electing not to call any evidence when
confronted with a
prima facie case that the Court may well consider to be sufficient, and is more likely
to find adequate in the
absence of any challenge.


[22]     I do not treat the prospect of re-evaluating the weight to be given to
prosecution evidence,
in the absence of any answer, as adding to the arguability of
the inference contended for against the prosecution, to the extent
it elects to rely on
other than direct evidence. It was submitted for the respondent that the approach in
Trompert has in any event
received much reduced recognition more recently, and
both silence before trial, and the decision of a defendant not to give evidence,
are
now both expressly dealt with in ss 32 and 33 of the 2006 Evidence Act.


[23]     The position for the respondent was also that
there can be no such uniform
expectation of direct evidence that would apply against the prosecution. Further, that
characterisation
of a decision not to call any particular immigration officer as a
"failure" to do so implies a breach of a duty to call that person
when there is none,
and that it is for each party to decide what evidence it will call. If the prosecution
elects to attempt to prove
the necessary elements of a charge without direct evidence,

then the prosecution takes the chance that there will not be a sufficient
foundation to
establish the necessary elements to the requisite standard. It is open to the defence to
argue that the evidence does
not go far enough, but the defence could not invoke any
principle in the law of evidence which requires the Court to recognise that
an
absence of direct evidence on a particular element necessarily leads to a finding that
such witnesses, if called, would not have
supported the prosecution case, or further
that the charge is not proven. If the proposition is put in any less than those absolute
terms, then it is a question of the sufficiency of all the evidence, and that does not
amount to a question of law, let alone one
of general importance.


[24]   Although I recognise a level of general importance in the scope of application
of the principle as
recognised in Perry, I am satisfied that the law is clear: its
application to particular circumstances is the issue causing concern
here and that is
not capable of formulation as a question of law. Where, as here, the misleading
content of the information supplied
was not contested, there is a lack of logic in
suggesting that not calling identified immigration officers signals that their evidence
would not assist in establishing their status as immigration officers.


[25]   I am also satisfied that the somewhat different formulation
of the argument
by Mr Carruthers on the leave application would not, if put on the appeal, have
altered the outcome.


Standing to
pursue an appeal


[26]   The appellant seeks to argue that the right to pursue an appeal from the
District Court could only be exercised
(so far as the prosecution was concerned) by
the particular informant. The appeal right is provided by s 107(1) of the Summary
Proceedings
Act. That provides:

       107     Appeal on question of law only by way of case stated

               (1)     Where any information
or complaint has been determined by
                       a District Court, either party may, if dissatisfied with the
                  
    determination as being erroneous in point of law, appeal to
                       the High Court by way of case stated for the
opinion of that
                       Court on a question of law only.

[27]   This argument requires "party" in the section to
be read as confined to
"informant" so far as the prosecution is concerned. My reasoning on the point is
criticised for treating the
Department of Labour as the informant when, in literal
terms, it could not be as the Summary Proceedings Act requires every informant
to
be a natural person. Although "person" is not defined in that Act, the inability of a
non-natural person to substantiate the information
on oath, as is required by s 15(1)
of the Summary Proceedings Act, confirms the limitation to natural persons. The
liberty in s 13
of the Summary Proceedings Act for any person to lay an information
is confined, in the case of the Act, by s 145(3), to an immigration
officer, member of
the Police, or some other person authorised for that purpose by the Minister.


[28]   However, that requirement
for someone with requisite standing to formally
commit to the essential elements of the alleged offence at the point of its
commencement
is neither required, nor necessary, thereafter.          To the contrary,
s 37(4) of the Summary Proceedings Act provides:

    
  37      Who may conduct proceedings

       ...

       (4)     Where an information has been laid by an officer or employee of
a
               Department of State or of a local body, any other officer or
               employee of that Department or of that
local body, as the case may
               be, may appear and conduct the proceedings on the informant's
               behalf.

[29]   The requirement for personification of the prosecution in an appropriate
person on commencement is not intended to give such
person any independent
standing beyond that of an agent for the government department or local body
charged with enforcing the Act
which has allegedly been breached. The prosecuting
party must be the relevant department or local body. I fail to see any tenable
question of law that "party", where used in s 107, is to be read down so as to limit its
ambit to the individual who swore the particular
information.


[30]   I acknowledge that I was wrong to treat the Department of Labour as literally
the informant. To be accurate,
I should have treated it as the government department
with statutory powers able to be vested in defined employees who would act
as its
agent in formally commencing a prosecution under the Act. That need for correction

does not turn the untenable proposition
into a question of law that ought to be
referred for argument on further appeal.


[31]    I record that the respondent opposed consideration
of this last potential
question of law as being out of time because it had originally arisen on the case
stated pursued in early
2007. The challenge to the standing of the senior Department
of Labour solicitor involved in pursuit of the appeal by way of case
stated was
implicitly rejected in the first High Court judgment. It was raised again before me,
and although I accepted the point
was res judicata, in the alternative I did go on and
deal with the point in my February 2008 judgment.


[32]    In these circumstances,
I prefer not to exclude consideration of the point on
the basis that it was out of time, but rather to consider the substance of
the
appellant's concerns.


Conclusion


[33]    I accordingly dismiss the application for leave to further appeal on the basis
that
none of the proposed questions are of general or public importance that warrant
further consideration by the Court of Appeal.




                                                                _________________
                                             
                           Dobson J



Solicitors:
Surridge & Co, Porirua for applicant
Crown Law Office, Wellington for respondent