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Corruption -“Corruptly” accepting a bribe – What does it mean?

18/05/2011

In March this year the Supreme Court gave leave to Taito Phillip Field to appeal to New Zealand’s highest appellate court against his bribe-taking convictions.  Leave was granted on one ground only – whether the Court of Appeal, which had upheld Field’s convictions by a High Court jury, applied a correct meaning of the word “corruptly” in the relevant provision (section 103 – bribery of a member of Parliament) in the Crimes Act 1961.

The Court of Appeal decision has been reported at [2011] 1 NZLR 784, access to which requires a pay subscription.  A copy is freely available at the website of the NZ Legal Information Institute – see here – but the layout, and especially the lack of distinction between the narrative and quoted material, makes it a difficult read.

The Supreme Court is slow to grant leave to appeal from decisions of the Court of Appeal.  But in this instance the public interest clearly warranted this further judicial examination of the issue.  Not only was Field – now doing six years’ imprisonment – the first sitting MP to face corruption charges, but there has been no prior appellate level consideration of the law in New Zealand relating to bribery and corruption generally.

I wrote a commentary on the subject back in 1998 (see here), which focused especially on the issue which is now to be considered by the Supreme Court.  Namely, what meaning should be given to the word “corruptly” as used in both the Crimes Act offences, which penalise the giving and acceptance of bribes in relation to public officers (including MPs), and in the Secret Commissions Act 1910, which penalises certain corrupt practices in the private sector.

Of course, the Supreme Court is to consider the issue only in respect of one offence – the acceptance by a member of Parliament of a bribe, contrary to section 103 of the Crimes Act.  But it can be anticipated that the court will take the opportunity – indeed, that it will be obliged – to provide more general guidance on what, if anything, the word “corruptly” adds to the ingredients which the Crown must prove to secure conviction for bribe-taking and giving in New Zealand.

In Field’s case, a number of points were taken on appeal to the Court of Appeal and all were rejected.  As was the appeal against the effective sentence of six years’ gaol.  But as noted above only the “corruptly” issue is to go to the Supreme Court, it opining when granting leave that the others were “unarguable” (and that the sentence was not manifestly excessive).

A key function of the judge in a jury trial is to give the jury directions on the law which it must apply in deciding on an accused’s guilt.  In many instances the directions are oral.  But in the Field trial, the presiding judge provided the jury with carefully formulated written directions which, in relation to the bribe-taking charges, spelt out the ingredients the Crown had to prove before the jury could convict him.

Of course, it had to be proven that Field was at the material times a sitting MP.  This was not at issue.  Also, that he had received something which could come within the term “bribe”.  The statutory definition made it clear – and the jury was so directed – that non-monetary benefits can constitute bribes.  There was no argument on appeal that bribe-taking could extend to the extensive decorating and repair work done for no payment or at undervalue by Thai immigrants, on whose behalf Field had interceded with the New Zealand immigration authorities, on properties owned by Field in New Zealand and Samoa.

It had also to be proven that Field accepted the bribes – the work done on his properties – in respect of acts performed by him in his capacity as an MP.  Despite Field’s protestations to the contrary from the moment the scandal was first exposed in the media back in 2005, the necessary linkage was sheeted home in evidence at his trial.

The critical issue remained whether Field had accepted those bribes “corruptly”.  In my 1998 commentary I reviewed the limited – and inconsistent – case-law in New Zealand and in other common law jurisdictions where variants of our Secret Commissions Act 1910 had also been enacted.  I surmised that, in relation to bribe-taking and giving under that legislation at least, “a payment will be made corruptly when the payer intends that it should operate as an inducement or reward to the agent to act in a certain way in relation to the principal’s business.”  Conversely, “it will be received corruptly when the agent believes the payer to have that intent”.

In similar vein (as I was gratified to see!), the Field jury was directed that as a matter of law Field acted corruptly under s. 103 of the Crimes Act if he accepted the work on his properties in the “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”.  It was of course for the jury to decide on the presence or absence of such state of mind.

On appeal to the Court of Appeal, Field’s lawyers strongly challenged the direction given by the trial judge on the meaning to be given to the term.  It was urged on the appellate court that this direction was wrong.  Rather,  the term “corruptly” required proof that Field accepted the work done by the Thai immigrants 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”.

This need for “dishonesty” and its associated moral obloquy was firmly rejected by the Court of Appeal.  In particular, the court held that there was no requirement for the bribe to induce the recipient to do something he should not have done (or forbear from doing something he should) or in any other way to depart from his permitted duties.  The requirement that the bribe-taker must receive the bribe “corruptly” is satisfied albeit the payment is received as an inducement to act – or a reward for having acted – within the scope of the recipient’s functions.

This, one suspects, will be a key focus of the Supreme Court’s deliberations.  If the only requirement for “corruptly” receiving a bribe is an awareness on the recipient’s part that the payment is inducement or reward for doing one’s job, what role does that leave for the term?  Such awareness is arguably inherent elsewhere in the wording of s. 103 – the bribe must be received in respect of an act performed by the accused in his capacity as an MP.  Self-evidently, so the argument would run, this connection could not be established absent proof of the recipient’s awareness of the purpose for which the payment was made to and received by him or her.

It was such considerations that led the eminent New Zealand jurist and exponent of the criminal law, Sir Francis Adams, to doubt that the word “corruptly” added anything to the ingredients of the Crimes Act bribery offences and to suggest that it functioned simply as a “designation” of the proscribed conduct (see the second edition of Adams, Criminal Law and Practice in New Zealand (1971), at para. 821).

What the Supreme Court makes of the issue remains to be seen.  But it can be pertinently observed that, in countries where corruption is rife – where the practice of soliciting and paying bribes is entrenched in all aspects of public life, it is a commonplace for the bribe to act as a reward or inducement to a public servant simply to do his or her job.  It is this culture, this mindset that public service – be it as a police officer, a judge or a politician – provides an opportunity for enrichment over and above one’s salary, which New Zealand must be vigilant to resist.

Update:

Field’s appeal to the Supreme Court was heard on 21 June 2011 with the reserved judgment delivered on 27 October. His appeal was dismissed. Between the hearing and the release of the decision, Field was granted parole. The Supreme Court decision can be accessed here – scroll down the page to the October judgments and click on the link for Field v R (opens in PDF format).

I comment briefly on the Supreme Court judgment elsewhere in my blog – see here.  My more detailed commentary is published in the New Zealand Law Journal at [2012] NZLJ 99.

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