PM BRIGHT V JP KEY HC AK CRI 2009-404-11 [2009] NZHC 641 (28 May 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                             
CRI 2009-404-11



                               PENELOPE MARY BRIGHT
                                      Appellant



      
                                           v



                                    JOHN PHILLIP KEY
                           
           Respondent



Hearing:         4 May 2009

Appearances: Appellant in person
             No appearance for respondent

Judgment:        28 May 2009


                                 JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the
Registrar endorse this judgment
with the delivery time of 11.00 am on Thursday 28 May 2009



Solicitors/parties
P M Bright, 86A
School Road, Kingsland, Auckland [e-mail]




PM BRIGHT V JP KEY HC AK CRI 2009-404-11 28 May 2009
[1]    On 3 November
2008, Ms Bright, in her capacity as a private citizen, filed an
information in the Auckland District Court in which she named Mr
John Phillip Key
as defendant. The information, laid indictably, alleged that Mr Key, then a member
of Parliament but now Prime Minister
of New Zealand, had between 16 February
2002 and 13 June 2003:

        ... dishonestly and without claim of right attempted to use
documents with
       intent to obtain pecuniary advantage, (the liability for imprisonment being a
       term not exceeding seven
years).

[2]    Ms Bright requested that the Registrar of the District Court issue a summons
to Mr Key, in reliance on the information
filed by her. In accordance with the
ordinary practice of the District Court the Registrar referred the file to a District
Court
Judge.


[3]    On 7 November 2008 Judge Bouchier declined to authorise the issue of a
summons, upon the ground that the information
supplied by Ms Bright to the Court
did not disclose the commission of an offence under s 228(b) of the Crimes Act
1961, and that
the action which Ms Bright proposed to take against Mr Key was
therefore vexatious.


[4]    Ms Bright now appeals against the Judge's
refusal to authorise the issue of a
summons.


Procedural issues


[5]    Ms Bright commenced proceedings in this Court by way of
a notice of
general appeal filed in reliance on s 115 of the Summary Proceedings Act 1957.
Mr Key was named as respondent but Ms
Bright had done nothing about serving the
papers on him.


[6]    Section 115 provides a general right of appeal, but only to a defendant
and
not an informant. Montalk v Hobbs  [1999] DCR 1115. It may be that in declining to
authorise the issue of a summons, the District Court Judge was exercising a statutory
power of decision
which would be reviewable under the Judicature Amendment Act
1972. But Ms Bright has not applied to the Court in its civil jurisdiction
for review.


[7]    Because I was uncertain prior to the hearing as to whether Ms Bright was in
truth seeking to review the decision,
I caused copies of the papers to be sent to the
Crown Solicitors. Ms V Singh appeared at the hearing as observing counsel.


[8]
   However, it transpired that Ms Bright simply wished to appeal against Judge
Bouchier's decision. An informant has no right of
appeal. The proceeding in this
Court is therefore irretrievably flawed, and the appeal must be dismissed.


[9]    But because I
have reached a clear view that Ms Bright is unlikely to succeed
on an application for judicial review either, I propose to deal briefly
with the
substance of her appeal.


Factual background


[10]   In 2003, Mr Key was the member of Parliament for Helensville. During
April of that year he asked several oral and written questions in the House of
Representatives, directed at the then Minister of
Finance, about meetings thought to
have taken place between Treasury Officials and TranzRail management.                In
particular,
Mr Key asked for the dates of certain meetings, the names of those
attending, and the agenda for each meeting. Subsequently, he sought
the information
from the Minister of Finance pursuant to the provisions of the Official Information
Act. The Minister refused to
provide this information on the grounds of commercial
confidentiality, citing ss 9(2)(a), 9(2)(b)(ii), and 9(2)(ba)(i) of the Act.
Mr Key
complained to the Ombudsman about the refusal of the Minister of Finance to supply
the information sought, but the outcome
of the complaint is not in evidence.


[11]   It appears that Mr Key may at the time have owned certain shares in
TranzRail, both
in his own right and in his capacity as trustee. Ms Bright does not
argue that in principle a member of the House may not ask questions
about
commercial matters such as the affairs of TranzRail, nor does she say that in
principle a member of Parliament may not make
a request under the provisions of the
Official Information Act. But she claims that Mr Key's various requests, against the
background
of his shareholdings in TranzRail, were criminal, because he failed to
disclose his pecuniary interest in TranzRail at the time at
which he participated in the
House's consideration of the relevant item of business.


[12]      In so doing, Ms Bright alleges,
Mr Key was acting unlawfully because he
was in breach of Parliament's Standing Orders. He was thereby dishonest, she
claims.


Discussion


[13]      Without embarking upon a detailed analysis of the topic, it seems to me that
Ms Bright's proposed criminal proceedings
must lie outside the jurisdiction of the
Courts, because in order to establish the vital ingredient of dishonesty, she relies
upon
Mr Key's alleged breach of Standing Orders. The Courts will not in general
assume jurisdiction over the proceedings of Parliament.
Article 9 of the Bill of
Rights 1688 (Eng) is in force in New Zealand. It reads:

          That the freedom of speech, and debates
of proceedings in Parliament, ought
          not to be impeached or questioned in any Court or place out of Parliament.

[14]  
   The privilege of freedom of speech covers all proceedings in Parliament and
provides immunity from suit or prosecution to members
of Parliament. No action
will lie against members for things they say or do in Parliament.              However, a
member's freedom
of speech, while protected from external interference, is subject
to the discipline of the House. In particular, Parliament itself
may punish a member
for breach of Standing Orders; but the House is the only proper authority for
addressing a breach and imposing
the appropriate penalty: Joseph's Constitutional
and Administrative Law in New Zealand (3rd ed 2007) at 12.4.1 (pp 411-413).


[15]      Of course, not everything said
or done in Parliament is inadmissible in a
Court of law. Where the proceedings of Parliament are relied upon simply to
establish
that something was said or done in the House as a matter of historical fact,
such evidence may well be admissible: Prebble v TVNZ
Ltd [1994] 3 NZLR 1 (PC).
There, the Privy Council said that what was crucial was the purpose for which the
evidence was sought
to be adduced, not its origin or source as part of the
Parliamentary record. But the Courts will not admit evidence of the proceedings
of
Parliament where the purpose is to question or impeach what was said or done.


[16]   Here, Ms Bright does seek to question or
impeach Mr Key's conduct, and in
so doing she trespasses on the exclusive jurisdiction of the House.


[17]   Quite apart from that
fundamental difficulty, not discussed by Judge
Bouchier, the Judge's decision to refuse to authorise the issue of a summons was
plainly
right. Judge Bouchier referred to a number of authorities including Daemar v
Soper  [1981] 1 NZLR 66 (CA) and R v West London Justices Ex Parte Klahn  [1979]
1 WLR 933.      In each case the Court discussed the character of the discretion
conferred upon a Magistrate, Justice or Registrar (as the case
may be) to authorise
the issue of a summons and in each case the Court confirmed that the discretion must
be exercised judicially.
In West London Lord Widgery CJ observed that the judicial
officer considering the request to issue a summons should take into account
whether
the essential ingredients of the offence charged were prima facie present.


[18]   That is the approach adopted by Judge
Bouchier in the present case. She
considered that Ms Bright had not prima facie established any of the four ingredients
of an offence
under s 228(b), namely that the accused :


       a)     used, or attempted to use, any document;


       b)     did so dishonestly;


       c)     did so without claim of right;


       d)     did so with intent to obtain a pecuniary advantage.


[19]   As I
have already observed, it will not be possible for Ms Bright to establish
dishonesty without referring to Mr Key's alleged breach
of Standing Orders, a matter
wholly within the province of the House.
[20]     But in addition, it is difficult to see how Mr Key
can be said to have "used or
attempted to use any document". He simply asked questions orally or in writing and
then made a written
request pursuant to the Official Information Act. None of those
steps, it seems to me, could be said to amount to the "use" of a
document for a
dishonest purpose.


[21]     Likewise, it is difficult to see how Mr Key can be said to have been acting
without
claim of right. In his capacity as a Member of Parliament he was entitled
ask questions of the appropriate Minister. He was also
entitled, as is any citizen, to
make a written request for information pursuant to the provisions of the Official
Information Act.
Mr Key's requests were declined on the basis of commercial
sensitivity, and there matters rested.     It seems to me that Mr Key
was simply
exercising his legitimate rights. That was plainly the view to which Judge Bouchier
came. Her decision is perfectly understandable.


[22]     However, I stop short of a formal ruling on the substance of Ms Bright's
challenge, because I did not have the benefit
of full argument from her, and there
was no other appearance apart from that of Ms Singh. Given that the appeal must
fail on procedural
grounds, it is inappropriate to say anything more.


Result


[23]     For the foregoing reasons the appeal is dismissed.




C J
Allan J