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‘Corruptly’ means ‘tending to corrupt’ – official

07/04/2012

My commentary on the Taito Phillip Field bribery case has just been published in the New Zealand Law Journal – the citation is [2012] NZLJ 99. (The NZLJ is subscription-only and published by Lexis-Nexis NZ.)

The commentary is on the decision of the Supreme Court to dismiss Field’s appeal against his convictions under s.103 of the Crimes Act 1961 for corruptly receiving bribes in his capacity as a member of Parliament – the first such case in New Zealand’s history. As is well enough known, Field provided assistance of various kinds to Thai immigrants seeking to gain permanent residence status in New Zealand. In return, and this is the critical point – as a quid pro quo and not as a gift, he accepted work by these Thai immigrants on property he owned in Auckland and Samoa.

Field had been duly convicted on a number of counts of bribe-taking, also of perverting the course of justice, in a jury trial and his appeal against conviction on a number of grounds had been dismissed by the Court of Appeal. The Supreme Court had granted him leave to appeal on just one ground, set out below. Field was sentenced to six years gaol (his appeal against sentence was also dismissed in the Court of Appeal) but he was released on parole at the earliest possible point in his confinement, which came between the hearing of his appeal in the Supreme Court and the release of its decision, four months later in October last year.

The one ground on which Field was permitted to go to the Supreme Court was this – whether, in order to say he had acted corruptly in accepting work done on his properties after he’d performed the related service, there had – as a matter of law – to be a prior bargain that he would be so rewarded. It was Field’s argument that without such a prior arrangement, a payment (including, as here, work with a monetary value) received after the event must be characterised as a ‘gratuity’, a gift, the receipt of which will not be a receipt  ‘corruptly’, as required by s. 103 of the Crimes Act (and the neighbouring sections dealing with bribery of cabinet ministers, judges and police officers).

Predictably, the Supreme Court rejected this contention. I say ‘predictably’ because there was ample evidence at trial that in a number of instances work was performed on Field’s properties before he interceded with the Immigration Service and his colleague, the Minister of Immigration.  Or else, in some instances, the two sides of the s.103 coin were happening simultaneously – work was being done while Field was interceding. So it was inherently implausible that there were cases where Field had no expectation that, if he interceded on behalf of one of these immigrants, he would later be gifted with work on his properties.

What was less predictable was the unsatisfactory way the Supreme Court went about dealing with the meaning of ‘corruptly’ in bribery offences in New Zealand. The court chose to rely on an English case from the mid-19th Century – called Cooper v Slade – as authority for the proposition that as used in s. 103, ‘corruptly’ means ‘tending to corrupt’. This is of course question-begging on quite a grand scale.  It’s like saying that ‘dishonestly’ means ‘being dishonest’ (which is not what New Zealand law says, by the way – see my commentary here).

So, to that extent, the Supreme Court decision in the Field case is unhelpful and does little to advance the law on bribery in New Zealand and, especially, on what it means to receive a bribe ‘corruptly’. Which is a shame because, as s. 103 is worded, that word ‘corruptly’ is the only thing that  prevents an MP from committing a crime by receiving his or her salary. This is because the word ‘bribe’, ordinarily understood to mean something illegal, is in the statutory definition shorn of any such loading and simply means a payment of any kind.

And then the Supreme Court added this proposition – that irrespective of whether there is a prior bargain or arrangement, an MP will always act corruptly in accepting payment for doing his or her job because it is ‘simply wrong’ to do so.  But this is a moral stance and whereas crimes invariably, or at least often, have a moral foundation, the commission of them is to be determined not by morality but by law.

A final comment. The Supreme Court addressed the dilemma of the public official who performs some public service and is pressed by the grateful recipient to accept a token of appreciation. The example was given of an MP who opens a rugby club’s new clubrooms and is given a club jersey. The court said that in accepting the jersey, the MP will not act ‘corruptly’. This not because the case falls outside s. 103 – indeed, it is no different in kind from the facts of Field – but because the term ‘corruptly’ does not apply to gifts or rewards which are ‘de minimis’. This Latin term may be equated with ‘of no consequence’.

At first sight, this is a neat way of dealing with the thorny issue in bribery law of where to draw the line between ‘token’ gifts and real bribes. But there are two observations which should be made here. First, there had in the appeal been no argument on this ‘de minimis’ rule before the Supreme Court pronounced it. Ordinarily, appellate courts will be slow to advance new rules of law – as this surely is – without the benefit of argument from the lawyers appearing before them. Secondly, the ruling amounts to legislating – that henceforth we are to read the world ‘corruptly’ in s. 103 of the Crimes Act and elsewhere as excluding ‘de minimis’ bribes – and legislating is the role of Parliament, not the courts.

In the result, an unsatisfying outcome to the Taito Field bribery case. The law on bribery in New Zealand has not been appreciably clarified and, in the ‘de minimis’ pronouncement, there is ample scope for obfuscation in future cases of what the British like to call ‘bung-taking’.

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