IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV PHILLIP HANS FIELD Respondent

Transcription

1 IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV BETWEEN AND MALCOLM JAMES BURGESS Applicant PHILLIP HANS FIELD Respondent Hearing: 16 August 2007 Counsel: S J E Moore and D G Johnstone for Applicant P E Dacre and S S Perese for Respondent Judgment: 5 October 2007 JUDGMENT (NO 2) OF RANDERSON J Determination of the Application for Leave to Prosecute This judgment was delivered by me on 5 October 2007 at 3.00 pm, pursuant to r 540(4) of the High Court Rules Registrar/Deputy Registrar Solicitors: Counsel: Crown Solicitors, PO Box 2213, Auckland P E Dacre, PO Box 47963, Ponsonby, Auckland S I Perese, PO Box 47114, Ponsonby, Auckland BURGESS V FIELD HC AK CIV [5 October 2007]

2 Introduction [1] In my judgment delivered on 6 July 2007 I set out the criteria to be applied in deciding whether this Court should grant leave to prosecute the respondent Mr Field for alleged offences of corruption and bribery under s 103(1) Crimes Act [2] In summary, I decided that, without fettering the broad judicial discretion under s 103(3) Crimes Act, the following guidelines should apply: a) The applicant would need to satisfy the Court the prosecutions were being brought in good faith; that there was no improper or collateral purpose involved; and that no improper pressure had been brought to bear on the investigation of the alleged offences or on the decision to prosecute. b) The Court would examine the strength and sufficiency of the evidence. c) Consideration would be given to whether the public interest required a prosecution in the circumstances of the case. d) The Court would take into account any other relevant matters. [3] In this decision, I consider the submissions made by the parties on these issues and conclude that leave should be granted. Are the prosecutions brought in good faith without improper or collateral purpose and with no improper pressure? [4] It is not disputed by the respondent that the applicant has satisfied this criterion. That concession is properly made in the light of the applicant s affidavit sworn on 12 June This shows that the applicant was appointed to conduct an investigation into the alleged offences on 30 August 2006 following allegations made public in September This step was taken following the completion of a report to the Prime Minister by Dr Noel Ingram QC in July 2006.

3 [5] The evidence discloses that the applicant conducted a thorough investigation of the allegations. The applicant deposes that the decision to prosecute was made by him after receiving legal advice. The decision to seek leave to prosecute was taken by the applicant as the officer in charge of the investigation. [6] The applicant confirms that he acted entirely independently and did not receive any instruction from any person in government or the police on whether criminal charges should be laid. The applicant confirms that political considerations took no part in his decision. [7] Accordingly, I am satisfied that leave to prosecute is sought in good faith and that no improper or collateral purpose is involved. I am also satisfied that no improper pressure has been brought to bear on the investigation of the alleged offences or on the decision to prosecute. The strength and sufficiency of the evidence The elements of the offence [8] Before reviewing the evidence to be offered if leave to prosecute is granted, it is necessary to identify the legal elements the Crown must prove to establish an offence against s 103(1). That section provides: 103 Corruption and bribery of member of Parliament (1) Every member of Parliament is liable to imprisonment for a term not exceeding 7 years who corruptly accepts or obtains, or agrees or offers to accept or attempts to obtain, any bribe for himself or any other person in respect of any act done or omitted, or to be done or omitted, by him in his capacity as a member of Parliament. (2) Every one is liable to imprisonment for a term not exceeding 7 years who corruptly gives or offers or agrees to give any bribe to any person with intent to influence any member of Parliament in respect of any act or omission by him in his capacity as a member of Parliament. (3) No one shall be prosecuted for an offence against this section without the leave of a Judge of the High Court. Notice of the intention to apply for such leave shall be given to the person whom it is intended to prosecute, and he shall have an opportunity of being heard against the application.

4 [9] The 15 draft informations attached to the amended application for leave to prosecute allege the respondent committed offences against s 103(1) in that: he corruptly accepted a bribe for himself in respect of an act done or to be done by him in his capacity as a member of Parliament, namely immigration assistance provided to [a series of named individuals]. [10] Each draft information alleges that the bribe consisted of plastering or painting work carried out by the named individuals at five South Auckland properties, one in Wellington and another in Samoa. In the case of the property in Samoa, it is also alleged that levelling and tiling work was carried out. These properties are alleged to be owned by the respondent or a company under his control. [11] The Crown allegation is that this work was carried out for the respondent free of charge or at rates well below the market. [12] It was submitted on behalf of the applicant that the offences under s 103(1) required proof that: The respondent is a member of Parliament; He accepted a bribe for himself; In respect of an act done or to be done by him in his capacity as a member of Parliament; and He did so corruptly. [13] It is not in dispute that, at all material times, the respondent was and remains a member of Parliament. Nor is it in dispute that the respondent provided immigration assistance to the named individuals and did so in his capacity as a member of Parliament: see Attorney General of Ceylon v de Livera & Anor [1963] AC 103 (PC). [14] Counsel were also in agreement that the provision of services such as those alleged either gratuitously or at below market rates could constitute a bribe as defined by s 99 Crimes Act: Bribe means any money, valuable consideration, office, or employment, or any benefit, whether direct or indirect.

5 [15] As noted in Adams on Criminal Law at CA99.01, the common law offence of bribery requires that the payment or offer of money or benefits is something which the recipient is able to choose to accept or reject: R v Glynn (1994) 71 A Crim R 537, This proposition is an illustration of the well-established principle of criminal law that an accused person may only be convicted if he or she carries out the proscribed act voluntarily. Accepting any bribe for himself in respect of any act to be done or omitted, by him in his capacity as a member of Parliament. [16] Mr Dacre submitted for the respondent that the offence of bribery required a corrupt bargain in which both parties set out to enter a corrupt arrangement and which both know to be corrupt. I do not accept that submission. [17] It is true that the cases refer to the notion of a corrupt bargain (or sometimes a corrupt contract). But to think of such a bargain in a contractual sense is misleading. First, a corrupt bargain in this sense is likely to lack formality in its making and precision in its expression, as observed by Allen J in Glynn at 542. As Allen J said, it may be established in large measure by a wink and a nod. The intentions of the parties are most likely to be established by inference from the facts and surrounding circumstances. [18] Secondly, as I note below, the offence of corruption or bribery can be completed by the instigator before an offence is committed by the other party. Thirdly, it is not necessary that the understanding or arrangement be carried into effect by the member of Parliament. It is enough if the bribe is accepted or obtained on the understanding that it was intended to be given in respect of the acts done by the member of Parliament in his capacity as such. And, the offence may be established where the bribe is accepted or obtained in anticipation of acts to be done in the future by the member of Parliament, or where it is accepted or obtained in recognition of acts done by the member after they are completed. Finally, and importantly, one party may be guilty of bribery while the other is not. I elaborate on this later.

6 What does corruptly mean in s 103(1)? [19] Counsel also differed over the meaning to be attributed to the expression corruptly. Mr Moore for the applicant accepted that the Crown must prove that the respondent knew that the work on his properties was being done (or was to be done) with the intention that he would assist the named individuals with their immigration cases. While submitting it may be necessary to show that the respondent knew his actions were manifestly improper or wrong, Mr Moore also submitted that the issue of whether the respondent s conduct constituted corruption could be left to the jury. [20] For the respondent, Mr Dacre submitted that the prosecution had to prove there was an intention on the part of the respondent to use a power in a way which could properly be described as morally unacceptable or, alternatively, a dishonest purpose which could be described as morally wicked or depraved. [21] At common law, it was an indictable misdemeanour to bribe or to attempt to bribe any person holding public office and for any person in an official position corruptly to use the power of his or her position for reward or promises, by asking for or accepting a bribe. Russell on Crime (12 ed 1964) at 381 states: Bribery is the receiving or offering any undue reward by or to any person whatsoever, in a public office, in order to influence his behaviour in office, and incline him to act contrary to the known rules of honesty and integrity. [22] Nowadays, many jurisdictions have established bribery and corruption as statutory offences. As well, the expressions corrupt or corruptly are used in other statutes creating separate crimes. It must be acknowledged there has not been an entirely consistent judicial approach to defining what is meant by these expressions. Care must be taken to consider the differences in statutory language and context where these expressions are used. [23] One of the early cases is the decision of the House of Lords in Cooper v Slade (1858) 6 HL Cas 746 in which Willes J, delivering the judgment of the

7 majority in a case concerned with the bribery of voters contrary to the Corrupt Practices Convention Act 1854, stated at 773: I think the word corruptly in this statute means not dishonestly, but in purposely doing an act which the law forbids as tending to corrupt voters, whether it be to give a pecuniary inducement to vote, or a reward for having voted in any particular manner. Both the giver and receiver in such a case may be said to act corruptly. [24] But it is not necessary that the offer and acceptance of a bribe should coincide in time. Indeed, the offering of a bribe logically precedes the acceptance of it. As already stated, the offence of corruption or bribery can be completed by the instigator before an offence is committed by the other party. [25] Furthermore, one person may be guilty of bribery even though the other is not. This is essentially the point made by the English Court of Appeal in R v Smith [1960] 2 QB 423. The appellant, through an intermediary, had offered a payment to a public official in exchange for a favour relating to a building. The official resisted the advance and the appellant was prosecuted. In his defence, the appellant accepted he made the offer but argued that he did not act corruptly because he did not intend to carry through with the payment. To the contrary, he intended to expose the public official as corrupt. [26] Lord Parker CJ dismissed the appeal. In his view, the term corruptly did not require that the offender knew he was doing something wrong. The policy underpinning the offence of corruption was to prevent public officials being put in a position where they would be subject to temptation. Consistent with that policy, his Lordship adopted a strict interpretation. That treated corruptly as describing a conclusion rather than establishing a formal element in its own right. At 428 he said: It seems to this court that the word corruptly here used is used in the former sense, namely, that it denotes that the person making the offer does so deliberately and with an intention that the person to whom it is addressed should enter into a corrupt bargain.

8 [27] A similar point was made in obiter in R v Mills (1978) 68 Cr App R 154 at from the point of view of the recipient of a bribe: in our judgment it is enough that the recipient takes the gift knowing that it is intended as a bribe. By accepting it as a bribe and intending to keep it he enters into a bargain, despite the fact that he may make to himself a mental reservation to the effect that he is not going to carry out his side of the bargain. The bargain remains a corrupt bargain, even though he may not be intending to carry out his intended corrupt act. Such a private determination avails him no more than would a private determination that a similar payment in respect of past favours was received by him because of some innocent matters other than a past favour. [28] The principles established in Cooper v Slade have recently been adopted and confirmed by the Privy Council in Singh v State of Trinidad & Tobago [2006] 1 WLR 146 dismissing an appeal against a conviction for corruptly soliciting, and corruptly receiving, a sum of money as an inducement to a magistrate to grant bail and, as an inducement to a prosecutor, not to object to bail. The case involved a charge under s 3(1) Prevention of Corruption Act 1987 for corruptly soliciting or receiving an inducement to, or reward for, an agent doing or forbearing to do anything in respect of any matter or transaction in which the State or a public body was concerned. The expression agent was widely defined to include a range of public officials including the magistrate and prosecutor. The section in the law of Trinidad and Tobago was closely modelled on s 1 Public Bodies Corrupt Practices Act 1889 (UK). [29] Delivering the advice of the Privy Council, Lord Bingham reviewed the authorities and adopted them at [13] to [16]. Applying the principle in Cooper v Slade, the Privy Council held at [15] that the appellant committed an offence if he purposely did an act which s 3(1) forbade as tending to corrupt public officers, in soliciting and receiving money for the purpose of bribing them. [30] In New Zealand, there is no authority addressing the meaning of the word corruptly as used in s 103 Crimes Act. But the expression has been considered in other contexts. For example, in Broom v Police [1994] 1 NZLR 680, Tipping J considered the use of the expression corruptly in the context of s 262 Crimes Act

9 (taking a reward for the recovery of stolen goods). Section 262 was repealed in 2003 and has not been replaced. But it provided: 262. Taking reward for recovery of stolen goods Every one is liable to imprisonment for a term not exceeding 3 years who corruptly takes or bargains for any reward, directly or indirectly, in consideration that he will help any person to recover anything obtained by any crime, unless he has used all due diligence to cause the offender to be brought to trial for the crime. [31] After noting at 687 that the word corruptly is sometimes found in legislation relating to elections of public officials in which it has been equated with the concept of intentionally doing something forbidden by the statute, Tipping J said, in the context of s 262: I have found it difficult, indeed impossible, to capture the full connotation of the word "corruptly" in a single synonym or short phrase. The exercise may well be unnecessary and undesirable in any event. It has been said that the word "corruptly" does not mean "dishonestly" but rather purposely doing an act which the law forbids: see Archbold, Pleading, Evidence and Practice in Criminal Cases (44th ed, 1992) at paras In R v Wellburn (1979) 69 Cr App R 254 the English Court of Criminal Appeal approved a direction by the recorder of London as follows: "Corruptly is a simple English adverb and I am not going to explain it to you except to say that it does not mean dishonestly. It is a different word. It means purposefully doing an act which the law forbids as tending to corrupt." With respect, that is open to the dual criticism of being both unhelpful and potentially circular. As earlier mentioned the Full Court of Victoria in Worthington considered that something more was implicit in the word "corruptly". While the idea of corruption may not be the same as the idea of dishonesty I take the view that dishonesty is part of the concept of corruption for present purposes. To act corruptly under s 262 I consider the person concerned must (a) have a dishonest purpose and (b) intend to act in a way which can fairly be described as morally wicked or depraved: see The Concise Oxford Dictionary (6th ed, 1976). [32] Hall v Wellington District Court HC WN CP256/98 25 September 1998 was a case involving s 105A Crimes Act (corruptly using or disclosing information acquired in an official capacity to obtain an advantage or pecuniary gain). Gallen J considered there must be an improper motivation which he described as: one which has an element of purpose outside that which is contemplated by the conferment of the power concerned and is moreover one which could

10 properly be described as morally unacceptable. It is for that reason that some of the authorities use the term dishonest For corruption to occur, there must in my view be some quality of the action under consideration which involves a perversion of the power or position held by the person concerned. A disclosure of information however reprehensible that might be in terms of confidence, falls short of the kind of action which I see as being categorised as corrupt. [33] I agree with the view expressed by Tipping J in Bloom that the inclusion of the word corruptly must mean something more than intentionally doing an act forbidden by statute. To so hold would do no more than confirm the fundamental proposition that, as a general rule, the criminal law only proscribes deliberate and not accidental conduct. However, in my view, the additional element is that described by Geoffrey Lane LJ in Mills, namely knowledge or a belief on the part of the recipient that the consideration or benefit offered or given was intended for the purpose of influence or reward in respect of some act done (or to be done) by the member of Parliament. [34] In that respect, I adopt the English line of authority dealing directly with corruption cases. This necessarily involves knowledge by the member of Parliament that the bribe has been given or offered. Self-evidently, one cannot accept that of which one is unaware. [35] This approach draws some support from the judgment of Williamson J in R v McDonald [1993] 3 NZLR 354 in the context of the use of the expression corruptly in ss 3 and 4 of the Secret Commissions Act Williamson J held at 358 that the word corruptly : would appear to be one designed to describe the mental element which an offender must have when giving or accepting a gift, namely that degree of deliberate criminal intent necessary not only to perform the act itself but also do it for the purpose of influencing another person or to be influenced to the detriment to a third party s business. [36] To adopt in the present context the approach of Tipping J in Broom (requiring an intention to act in a way which is morally wicked or depraved) is not consistent with the accepted proposition that it is not necessary to prove an intention on the part of the member of Parliament to act in response to the bribe (see Mills at [27] above).

11 And to import a requirement of proof of dishonesty is to add an unnecessary gloss to the statute which has been rejected in the English cases in this field. [37] The approach in Broom under the former s 262 Crimes Act can also be readily distinguished from the context under s 103. The distinction between the two contexts was made clear by Cussen J in R v Worthington [1921] VLR 660 at 673: it becomes at once obvious that there may be many cases in which a person may take a reward even for himself for aiding to recover stolen, etc., property, in which no one would dream of imputing any criminality in the ordinary sense of the word, and this no doubt led to the introduction of the word corruptly. There have been cases, chiefly under laws relating to elections, in which the word corruptly has been used merely to indicate that the act forbidden by the Statute has been done intentionally, but in this case something more is clearly intended: [38] There may be many situations under the former s 262 where a member of the public may, for quite legitimate reasons, negotiate with the owner of stolen property for some form of reward without in any way breaching ordinary standards of morality. The addition of the requirement for corruption implying some form of dishonesty or moral wickedness can be readily understood in that context. But given the community s high expectations of the standard of conduct of members of Parliament, the need for an equivalent additional element of culpability is unnecessary and inappropriate. [39] The approach I have adopted for cases of corruption under s 103(1) would exclude criminal responsibility where, for example, the member of Parliament believed that a payment was made or offered to a campaign fund and was not intended to influence, or to be connected with, any act in the member s Parliamentary capacity. It would also exclude the receipt of a necessary expense such as an application fee payable to a government agency. [40] In my view, there are several policy reasons supporting the adoption of the English line of authority dealing with cases of corruption in relation to public officials:

12 a) The essential criminality under s 103(1) lies in the obvious impropriety of a member of Parliament accepting or obtaining a bribe in respect of acts done or omitted in his or her capacity as such. b) Given the expectations of a high standard of conduct by members of Parliament and other public officials and the repeatedly expressed policy of preventing the temptation of public officials, and upholding standards of integrity, the stricter interpretation adopted in the English cases is to be preferred. c) Undesirable uncertainty would result if juries were left to determine vague notions such as moral depravity or wickedness in the conduct of members of Parliament. [41] Mr Dacre also submitted that, in order to establish an offence against s 103(1), it is necessary to prove that the person giving or offering the bribe knew it was wrong or improper to do so. I am unable to accept that submission. It is important not to confuse the separate offences created by ss 103(1) and (2). While it is not uncommon elsewhere for both the offerer and offeree of a bribe to be charged, the named individuals said to have provided the bribes in the present case have not been charged. The Court has not been told the reasons for that and it is not relevant to the issues I have to decide. [42] When an offence is alleged under s 103(1), the focus is on the corrupt conduct of the member of Parliament as the person accepting or obtaining the bribe. If the member of Parliament knows or believes that the bribe is intended to influence or reward him or her in respect of any act done in his or her capacity as a member of Parliament, then, for the purposes of s 103(1), it cannot matter whether the person giving or offering the bribe may not have been aware it was improper or wrong. As I put to counsel in argument, the legislature cannot have intended that a member of Parliament could escape responsibility under s 103(1) for receiving a bribe on the grounds that the person offering it believed there was nothing wrong in doing so.

13 [43] Section 103(2) does not precisely mirror s 103(1). It refers both to the specific mental element of an intention to influence the member of Parliament as well as using the term corruptly in relation to the giving or offering of the bribe. But for consistency with s 103(1), corruptly must be taken to require proof of knowledge or a belief on the part of the person giving or offering the consideration or benefit that the member of Parliament is receiving it on the understanding it is for the purpose of influence or reward in respect of some act or omission in his or her capacity as a member of Parliament. [44] Counsel for the applicant sought leave after the hearing to refer to the decision of the Supreme Court United States v Brewster 408 US 501 (1972). The Court was considering charges brought against a former United States senator charged with the solicitation and acceptance of bribes in violation of two different provisions within Title 18 of the United States Code. One of these provisions contained the expression corruptly while the other did not. [45] This decision has no direct bearing on the meaning of the expression corruptly but it does confirm at 526 that: the Government need not show any act of [the member] subsequent to the corrupt promise for payment, for it is taking the bribe, not performance of the illicit compact, that is a criminal act. [46] This supports the proposition that the criminality lies in the giving and acceptance of a bribe and that the reference to the expression corruptly is properly concerned with the member s knowledge or belief as to the purpose of the payment or benefit. Summary of legal elements [47] In summary, in order to establish the offences alleged against s 103(1) Crimes Act, the Crown must prove beyond reasonable doubt that: The respondent is a member of Parliament

14 He accepted a bribe (as defined by s 99) for himself or for any other person. In respect of the immigration assistance given (or to be given) by him in his capacity as a member of Parliament; and He did so corruptly in the sense that he deliberately accepted the bribe knowing or believing it was intended to influence or reward him in respect of assistance given (or to be given) by him in his capacity as a member of Parliament. Evidence as to the giving and acceptance of bribes in respect of immigration assistance. [48] The 15 draft informations allege that work was carried out on some seven properties owned or under the control of the respondent at varying times over the period November 2002 to June [49] The Crown alleges that the respondent was providing immigration assistance to the individuals named in the informations either contemporaneously with the work being undertaken on the properties or, in some cases, that the respondent rendered immigration assistance after he became aware that work was being done on the relevant property free of charge or at a reduced rate. [50] There is unchallenged documentary and other evidence that the respondent did in fact provide immigration assistance to the individuals undertaking the work or to close relatives of those individuals. It is alleged the assistance was given personally by Mr Field and, on some occasions, by his staff. At this stage, it is reasonable to assume that, where the assistance was given by the respondent s staff, they did so with the respondent s knowledge and under his direction. [51] The evidence produced includes statements from 13 principal witnesses, documents drawn from the files of the New Zealand Immigration Service, and a transcript of lengthy interviews the police have conducted with the respondent. It is unnecessary to traverse this evidence in detail since the respondent did not press any detailed submissions designed to attack the strength or sufficiency of the evidence.

15 The respondent denies any wrongdoing and will no doubt mount a concerted attack on the prosecution evidence at a later stage, should leave to prosecute be granted. [52] I have considered all the material placed before the Court. At this stage, it is sufficient to state the general nature of the evidence. It is to the effect that the respondent had become known amongst the Thai immigrant community in the South Auckland area as providing immigration assistance in his capacity as a member of Parliament. Most of the individuals were known to each other. There is a substantial body of evidence to the effect that a series of named individuals having skills in painting and plastering and, in one case, in tiling, approached the respondent for immigration assistance. The respondent arranged for these tradespeople to undertake work on his various properties. Some did work on more than one of them. The respondent gave advice to them on immigration matters, assisted with the preparation of applications for work permits and residency, and interceded on their behalf with relevant ministers. [53] In the main, the evidence shows it was the respondent who initiated contact with those seeking his assistance. He told them the work he wished to have undertaken on his properties. The general pattern of the evidence is that, when the subject of payment for the work was raised, usually by the respondent, he was told the work would be carried out free of charge because he was assisting them and no payment was necessary. In general, the respondent accepted that position, but in some cases, he paid expenses such as the cost of materials and petrol. [54] I raised with counsel a potential difficulty for a member of Parliament in the position of the respondent when faced with a refusal, after the event, to accept payment for work done for the benefit of the individual concerned. The Crown s response is that a member of Parliament should not permit individuals for whom he or she is rendering assistance to carry out work for them at no cost or below market rates. The member should agree in advance on appropriate rates of payment and have the agreement recorded in writing. If no arrangement is made before the work is carried out and payment is afterwards refused, the Crown response is that the member should immediately disclose the situation to the relevant minister (in this

16 case the minister responsible for immigration matters) and ensure no further work is carried out by the individual involved. [55] In this case, it may be possible for the respondent to plead on the early occasions that he was not aware in advance that the work would be done free of charge. But as a pattern of similar work developed later with other individuals, it is possible for the Crown to invite a jury to conclude that the respondent ought to have declined to have any part of such arrangements since he must have known, after the initial occasions, that the work was intended to be carried out free of charge or at reduced rates. [56] In the case of the respondent s property in Samoa, there is evidence that an illegal overstayer sought the respondent s assistance. The overstayer had skills in tiling work and was asked by the respondent to travel to Samoa to carry out some 400 square metres of tiling work on the respondent s property there. It is accepted that the tiler was given accommodation and weekly payments but the Crown allegation is that the sums received did not represent anything close to the proper market value for the work and were intended only to cover some expenses. The tiler s evidence is that the arrangement was that he would carry out the work free of charge in return for immigration assistance the respondent was providing for himself, his wife and his son. Several other witnesses have described carrying out other work on the respondent s Samoa property in return for immigration assistance. [57] There is evidence that when the allegations against the respondent became public, he called at least one meeting of a number of the Thai immigrants involved and that he attended the meeting with his wife. There is evidence from a number of the Thai immigrants that efforts were made by the respondent at that stage to document the work done by the raising of invoices and the preparation of receipts. There are also allegations that the respondent spoke to a number of the witnesses regarding evidence to be given to the Ingram inquiry. Several of the witnesses now say they gave false evidence to the Ingram inquiry at the respondent s request. [58] As already indicated, the respondent denies any offending and has done so throughout. In general terms, he asserts he did not fully appreciate the identities of

17 the particular workers or immigrants with whom he had dealings and did not make any particular connection between the work they did and the assistance he provided. He says he was not influenced when providing immigration assistance by the work done on the various properties. He accepts that some documentary records were prepared but only for the purpose of setting out payment arrangements reached or recording payments made. He denies seeking to make or to have anyone else make false or misleading statements and asserts that, in a number of respects, the witnesses are not telling the truth. [59] Having reviewed the material presented to the Court, I am satisfied that it is sufficiently strong to warrant the grant of leave to prosecute. There is no question that the respondent undertook immigration work for the named individuals and that they carried out painting, plastering and tiling work for the respondent on the various properties. The issues for trial are likely to be whether the work was carried out at an undervalue as alleged by the Crown, whether there was a corrupt arrangement between the respondent and the named individuals whereby the work would be carried out in recognition of the immigration assistance provided, and whether the respondent appreciated this was the nature of the arrangement. [60] The evidence presented, if accepted, is such that a jury could conclude the respondent was aware that the work was being undertaken on his properties in recognition of his help with their immigration cases. But much will depend on the credibility and reliability of the Thai immigrants involved. Their evidence as a whole is substantial and draws some cogency from the similar pattern of their accounts and the support which the witnesses give to each other in evidential terms. No doubt, as all counsel accept, there will be trial issues going to the reliability of the Thai witnesses given the potential for misunderstanding to have arisen from language difficulties. [61] Issues of this kind can be expected at trial but I am satisfied the evidence presented is sufficiently cogent to warrant the grant of leave to prosecute.

18 Public Interest and other Considerations [62] There can be no question that the allegations made against the respondent are extremely serious in that they strike at the heart of the administration of government and the integrity of members of Parliament. Where allegations of this nature are made, there is a strong public interest in authorising a prosecution in order to ensure the allegations are thoroughly tested in a court of law. There are no relevant public interest considerations which would suggest otherwise. [63] It has not been suggested there are any other considerations relevant to the grant of leave which I should take into account. Result [64] The application under s 103(3) Crimes Act 1961 for leave to prosecute the respondent is granted in respect of the 15 draft informations attached to the amended application. A P Randerson, J Chief High Court Judge