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High Court of the Cook Islands |
IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
Misc No. 44/2015
IN THE MATTER an application under section 113(3) of the Crimes Act 1969
BETWEEN:
MAARA TETAVA,
Commissioner of the Cook Islands Police Service
Applicant
AND
TEINAKORE BISHOP,
a Minister of the Crown
Respondent
Hearing: 19 October 2015
Counsel: NR Williams and MK Thomas (both New Zealand Counsel) for Applicant
RE Harrison QC (New Zealand Counsel) for Respondent
Judgment : 10 November 2015 (NZT)
JUDGMENT OF THE COURT
[1] On 10 July 2015 the applicant (who is the Commissioner of the Cook Islands Police) gave notice of an application seeking leave under s113(3), Crimes Act 1969, to commence a prosecution. This application concerns two charges that the applicant intends bringing against the respondent under s113(1) of the Act alleging corruption. This is the first such application for leave considered by the High Court of the Cook Islands. As will be discussed below, though, there is relevant New Zealand authority in relation to the equivalent New Zealand provision and the argument proceeded on the basis of that law.
[2] Counsel for the respondent, Mr Harrison QC, commenced his submissions by noting that the respondent actively denied any wrongdoing in relation to the two proposed charges. He also stated that if leave were given in relati the two proposed charges then the respondent would vigorougorously defend them.
[3] The applicant submitted that there was a low standard both for the leave application and, indeed, in relation to the corruption allegations generally which standards were said to reflect the pernicious nature of corruption. The respondent disagreed in each case.
The relevant sections in the Crimes Act
[4] Sections 113(1) and 113(3) are as follows:
“113(1) Corruption and bribery of Minister of the Crown - Every Minister of the Crown or member of the Executive Council is liable to imprisonment for a term not exceeding fourteen 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 Minister or member of the Executive Council.
113(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.”
[5] It was common ground that in order to succeed in a charge under s113(1) the prosecution would need to prove the following four elements:
- [a] The respondent was a Minister of the Crown at all relevant times;
- [b] The respondent accepted or obtained a bribe (as defined in s110) for himself or another person;
- [c] That acceptance/obtaining was in respect of an act done or to be done by him in his capacity as a Minister; and
- [d] 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 Minister.
[6] S110 defines bribe “as meaning: ...any money, valuable consideration, office, or employment, or any benefit, whether direct or indirect”.
The proposed charges
[7] The two charges were put before the Court by way of draft Informations attached to the application. During the course of argument these charges were referred to, as a convenience, by the labels:
- [a] “the Bounty charge” concerning a fishing boat known as the “Bounty”; and
- [b] “the Samade charge” concerning a loan made to purchase the Samade Resort on Aitutaki.
[8] In relation to the Bounty charge, the applicant proposes alleging that between 1 October 2012 and 30 June 2013 the respondent:
“Did corruptly accept or obtain a bribe for himself or another person in respect of an act done or to be done by him in his capacity as a Minister of the Crown, namely in his capacity as the Minister of Marine Resources he issued a foreign fishing vessel licence to Luen Thai Fishing Venture Limited on 3 January 2013 for the fishing vessel “CFA 21”.
Particulars of bribe:
(1) possession and use of the fishing vessel called “Bounty” for himself or another person;
(2) NZ$26,744.36 received from Huanan Fishery (Cook Islands) Co Limited.”
[9] The proposed Samade charge (as amended at the hearing) is that between 14 October 2011 and 10 July 2013 the respondent:
“Did corruptly accept or obtain a bribe for himself or another person in respect of an act done or to be done by him in his capacity as a Minister of the Crown, namely in his capacity as the Minister of Marine Resources he issued foreign fishing vessel licences to vessels owned or operated by Huanan Fishery (Cook Islands) Co Limited and Luen Thai Fishing Venture Limited.
Particulars of bribe: US$256,745 received from Century Finance Company Limited, a subsidiary of the Luen Thai Group of companies.
Particulars of foreign fishing vessel licences issued:
[18 licences then listed signed between 14 October 2011 and 24 April 2013]”
Issuing fishing licences
[10] Central to both proposed charges is the statutory role of the Minister in issuing fishing licences. Licences are issued under s35, Marine Resources Act 2005, which provides:
(1) Subject to the provisions of this Act, and unless a multilateral access agreement or related agreement provides otherwise for licence issuance, the Secretary, or in the case of a vessel other than a Cook Islands vessel, the Minister, may issue a licence with the concurrence of Cabinet to the owner or operator of any vessel authorising that vessel...”
[11] Counsel for the respondent strongly contended, both in his written submissions and also orally, that the respondent’s role as Minister in signing foreign fishing licences was effectively a rubber stamp of decisions made by others. Reference was made to the detailed processes undertaken by the Ministry in receiving and assessing a fishing licence and the particular role of the Secretary in recommending the issue of licences. At the macro level, reference was also made to various agreements entered into with the Government of the Cook Islands that set the framework for the issue of fishing licences to foreign vessels. All of this background lay behind a submission that the Minister had little if any role to play in issuing a fishing licence. It was said that the proposed charges foundered on this fact alone.
[12] The applicant accepted, for the purposes of the leave application, that the respondent properly followed the relevant procedures in signing the licences. In other words, it was accepted that the licences, as issued, were proper and binding. There was nothing the Minister had done which subverted the proper process. But the applicant submitted that none of this mattered for the purposes of the leave application. The applicant emphasised that the respondent had a discretion about issuing fishing licences and was obviously a key part of the statutory process by which they were issued.
The New Zealand law
[13] As introduced above, the Cook Islands legislation is effectively the same as the relevant New Zealand legislation. Indeed, it was submitted that the Cook Islands statute was based upon the New Zealand statute. It seems that the New Zealand statute, in turn, was based upon previous Canadian legislation.
[14] The corresponding New Zealand sections are s103 (corresponding with s113 in the Cook Islands) and s99 in defining “bribery” (which corresponds with s110 in the Cook Islands).
[15] The applicant made very extensive submissions on the New Zealand law. While challenging some aspects of that analysis (see below) the respondent broadly accepted that the New Zealand law could be applied for the purposes of the present application.
[16] The central focus of the applicant’s case was the series of decisions concerning a former Member of the New Zealand Parliament, Mr Field faced charges of corr corruption and bribery. There were some factual differences between that case and the present. For example, Mr Field was a Member ofiamenh rather than a Minister of the Crown. It was alleged eged (and eventually found) that he had received tiling services from persn connection with him making submissions to the relevant Minister on their behalf in relatielation to their immigration status.
[17] The relevant New Zealand decisions were these:
- [a] A decision of Randerson J, the Chief Hiurt Judge, ege, establishing the relevant legal standard: Burgess v Field [2007] NZHC 1944; [2007] 3 NZLR 832;
- [b] A second dec by Randerson J addresddressing acts of t of the particular case in order to determine whether to grant leave to prosecute: Burgess v Field (unreported, High Court, Auckland Registry, CIV 2007-404-3206, 5 October 2007);
- [c] The summing up by Rodney Hansen J as trial Jud the subsequesequent jury trial of the charges against Mr Field;
- [d] The appeal conviction in the High Court to the Court of Appeal: FiField v R [2010] NZCA 556; [2011] 1 NZLR 784;
- [e] The subsequent appeal from the Court of Appeal to the Supreme Court: Field v R [2011] NZSC 129; [2012] 3 NZLR 1.
[18] In his second judgment, Randerson J summarised the legal csiolusions reached by him in the first case as follows:
“[2] In summary, I decided that, without fing the broad judicial discretion under s 103(3) Crimes Act, the following guidelines shoulshould 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.”
[19] This is a convenient summary of the conclusions reached by the Court in the first judgment. However, some aspects of that first judgment need more detailed consideration. In paragraphs [45]-[47] the Judge set out the important policy reasons that lay behind the need for a leave application in a case such as this. He accepted there was a risk that members of the Executive and Parliament might be susceptible to ill-founded, vexatious or politically motivated allegations. However, he did not believe that that set the limits of the Court’s considerations on a leave application. He concluded:
“[47] Parliament did not intend that the Judge considering the grant of leave to prosecute would be a mere cypher or rubber stamp but would conscientiously assess the evidence in all the circumstances presented to the Court to ensure it was proper to permit the prosecution to proceed. That intention is reinforced by the obligation to give notice to the respondent and an opportunity to be heard.”
[20] The Judge characterised the leave stage as a screening or filtering process. So far as the Court’s assessment of the evidence was concerned he described it as “a preliminary assessment of its strength and sufficiency to ensure it is proper to grant leave...” (paragraph [51]).
[21] He elaborated upon this proposition in the following two paragraphs:
“[52] If there were obvious evidential or legal flaws in the case it would not be proper to grant leave. That could arise, for example, if there were a misconception of the legal elements necessary to establish the offence; an obvious and material gap in the evidence; or substantial reliance on evidence that is inadmissible.
[53] In the end, it is not desirable to lay down firm guidelines because to do so could risk fettering judicial discretion. While there must be something more than “reasonable grounds to suspect” (which is a standard more properly applicable to earlier investigatory stages), the evidence need not be “sufficient to put the defendant on his trial” (which is the standard required for the later committal stage). All the evidence presented on both sides is to be considered and objectively assessed. The onus is on the applicant to demonstrate there are proper grounds for the grant of leave. That assessment is to be made against the background that the prosecution must, at trial, prove the alleged offence beyond reasonable doubt. But proof to that standard is not required at the leave stage.”
[22] Having reached his conclusions as to the appropriate legal standard (as summarised above), he then considered the actual facts of the case in August 2007. His second written judgment followed. Leave was granted.
[23] At [17] and [18] of the second judgment, the Judge addressed the question of whether there needed to be a corrupt arrangement between the relevant parties. He observed:
“[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....”
[24] The Judge noted that the offer and acceptance of a bribe need not coincide in time. Indeed, he noted that the offering of a bribe logically proceeded the acceptance of it. Moreover, the offence of corruption could be completed by the instigator before an offence was committed by the other party (see [24]).
[25] Corruption does not necessarily mean dishonesty. But it does require knowledge by the recipient that the bribe has been given or offered. This was explained by Randerson J more fun paragraphs [33] [33] and [34].
[26] As already noted, the Judge concluded that those factors, together with a public interest assessment, supported the granting of leave to prosecu respect of the 15 draft inft informations attached to the amended application before the Court.
[27] Counsel in the present case did refer to some aspects of the decision of the Court of Appeal. For example, at [58] the Court noted that corruption may or may not involve dishonesty or fraud. At [64] the Court noted that a bribe is corruptly accepted if, in accepting the bribe, the relevant recipient is knowingly outside the recognised bounds of his or her duties. This topic achieved some prominence in argument before me and I return to it shortly.
[28] Then, at [85]-[87], the Court of Appeal noted some concern in relation to the width of the statutory provision. It invited the Legislature to consider whether there should be express reference to defences in the statute. Ultimately, the Supreme Court (as is now discussed) was not of a similar view. The Court of Appeal dismissed the appeal.
[29] The Supreme Court set out the primary issue before it at [8] and [9]. In particular, the summing up of the trial Judge was quoted at [8]. Then, at [9], the Court noted a key argument that Mr Field was contending for which was that liability under the New Zealand provision required a corrupt bargain rather than, as it was also in the present case, a gratuity (or reward) after the event.
[30] Mr Harrirgued, as a consequencquence of these two paragraphs in the decision, that the ultimate conclusion of the Supreme Court was not as broad as it might otherwise sHe reserved the right to argue a more nuanced legal test inst in due course if that were necessary. But he was prepared to accept, for the purposes of this leave application, that the Supreme Court conclusion accurately and fully stated the law.
[31] At paragraph [14], the Supreme Court noted the Court of Appeal’s indication that Mr F#8217;s conduct was knowinnowingly outside the recognised bounds of his duties. This is mentioned at [27] above. The Supreme Court was not inclined toed to think that this added anything to the assessment made by the Court. In the present case, the applicant made detailed submissions about Parliamentary Standing Orders and the Cabinet Manual. I do not believe it is necessary to get into either of these documents in order to address the proper legal test.
[32] At [18] and [19] the Court discussed the nature of a bribe noting the value-neutral definition in the statute. At [19] the Court said:
“[19] We see no need to engage with whether a gratuity could be a bribe at common law. This is because s 99 defines “bribe” in non-pejorative terms, focussing simply on the element of benefit rather than the context in which it is provided (or agreed to be provided). As will become apparent, it is clear that when enacting s 103 (and a number of related and similarly worded provisions), the legislature wished to avoid the need to repeat the words “any money, valuable consideration, office, or employment, or any benefit, whether direct or indirect”. It did this by the common shorthand method of replacing them with a single word (in this case “bribe”) which it then separately defined. This means that s 103(1) is to be cond as if s if it relevantly provided:
... corruptly accepts ... any ... benefit, whether direct or indirect for himself ... in respect of any act done....
It follows that the receipt of a gratuity can be within s 103(1) providing it is accepted “corruptly”. This approach to s 103 is consistent with the legislative history which we will discuss shortly.”
[33] So far as the question of the bribe (the benefit) was concerned, the Court addressed the extent of that benefit. For example, in [61] it used the language of “substantial benefits” and in [64] and [66] it used the contrasting language of “de minimis”. Mr Harrison relied uhis dicta icta to submit that benefit needed to be substantial in a quantitative sense. This overstates the correct position. Threme Court did not use “substantial” as, necessarily, denoting a signifignificant quantifiable benefit. Rather, the point was to carve-out benefits that might be said to be de minimis – “which are just part of the usual courtesies of life”. I do not believe the Supreme Court intended to require an applicant for leave accurately to quantify benefits allegedly received. Of course, such benefits may be quantifiable but the absence of quantification, without more, is not fatal to a leave application.
[34] Mr Harrison focused upon a number of expressions used by the Supreme Court which he said were relevant to the third element of the charge (what he described as the causative connection between the Ministerial conduct and the receipt of the bribe). In particular:
- [a] In paragraph [59] the Supreme Court used the language “in return for”;
- [b] In paragraph [62] it used the language “for doing so”;
- [c] In paragraph [66] it used the language “in connection with”.
[35] In reliance upon these formulations, Mr Han argued for a significanficant degree of causal relationship between the Ministerial conduct in issuing licences and the receipt of the alleged benefits. Altho discuss this in more detail below, I am satisfied that thet the Supreme Court did not use the above described language in the sense contended for by Mr Harrisortainly, there needsneeds to be a causative link, but it is not as significant as was submitted to be the case.
[36] The Supreme Court noted, for example at [66], that there did not need to be a corrupt bargain established. Indeed, paragraph [66] is of significance and needs to be set out in full:
“[66] While we are satisfied that the acceptance of gifts which are de minimis (as just explained) should not be considered corrupt under s 1, the acceptance of other ther benefits in connection with official actions is rightly regarded as corrupt irrespective of whethere was an antecedent promise or bargain. We do not accept that this approach means that that the word “corruptly” in s 103(1) is deprived of effect. In part it captures the requirement for a defendant to have acted knowingly. In the present case, this requirement required the Crown to establish that the appellant knew that the services he received were provided in connection with the immigration assistance he gave, meaning that he knowingly engaged in conduct which the legislature regards as corrupt. As well, it is the presence in s 103(1) (and like provisions) of the word “corruptly” which permits the de minimis exception to liability which we accept exists.” (emphasis added)
[37] Paragraph [66] makes it clear that the key assessment of corruption takes place at the point of receipt of the alleged benefit by the recipient. Even if the relevant ministerial services had been rendered earlier (in this case, the granting of the fishing licences) it does not mean that those earlier licences are, without more, irrelevant. Rather, the assessment is upon the state of mind of the respondent (Mr Bishop) at the point the itnefits were received.
Good Faith Prosecution?
[38] The first of the four factors identified by Randerson J as relevant guidelines for the exercise of the judicial discretion (see paragraph [18] above) is the question of good faith. That is, the applicant needs to satisfy the Court that the proposed prosecutions are being brought in good faith. That means that there was no improper or collateral purpose involved and that no improper pressure had been brought to bear on the investigation.
[39] The applicant submitted this was the most significant matter to be considered by the Court on the leave application. The applicant referred to the supporting affidavit of Detective Inspector Ingaua which set out the overall trajectory of the investigation including the role of the (NZ) Serious Fraud Office (SFO) in pursuing the investigation and then briefing counsel to pursue two charges.
[40] As the applicant noted, the respondent did not challenge that evidence and there was no suggestion anywhere of any improper purpose or bad faith on the part of the applicant. I accept that the evidence generally shows that the applicant conducted a thorough investigation and made a proper decision to prosecute having received legal advice. There is no evidence that any improper pressure was brought to bear on the investigation.
[41] In all respects, then, I find that the first of the four factors is satisfied in relation to both of the proposed charges.
Sufficiency and strength of evidence
[42] The second factor to be considered by the Court in exercising its discretion is the examination of the strength and sufficiency of the evidence.
[43] The applicant filed three affidavits in support of its leave application including the affidavit of Inspector Ingaua already mentioned. In addition, Ms Pettifer, Forensic Accountant employed by the SFO, filed an affidavit. Mr Shane Mannix, a Senivestigastigator and Electronic Forensic Investigator at the SFO also filed an affidavit setting out details of the investigation of electronic devices that wereed or otherwise investigated as part of the overall investivestigation.
[44] Ms Pettif217;s affidavit, in p in particular, was constructed to give support to the draft summary of facts that was produced by the applicant. This 13 page document setthe facts relied upon by the applicant as underpinning each each of the two charges. In the main, this was dependent upon documentary references (or documents generated as a result of investigating the electronic devices). Relevant documents and printouts from the electronic devices were put before the Court by way of a bundle.
[45] In due course each of Ms Pettifer and Inspector Ingaua filed reply affidavits to the respondent’s evidence now discussed.
[46] The respondent filed extensive evidence including his own affidavit. In addition to his affidavit, there were another six affidavits supported by two substantial bundles of documents.
[47] There was a dispute between the parties in relation to the respondent’s affidavits and what the Court was to make of them. The applicant accepted, following the approach of Randerson J, that the Court woake acce account of any evidence submitted by the proposed defendant. Primarily, though, the applicant submitted that the Court d assess the evidence put forward by the applicant. The purpose of this exercise was to asso assess whether the Crown case was flawed as a result of:
- [a] A misconception of the legal elements necessary to establish the offence;
- [b] An obvious and material gap in the evidence;
- [c] Substantial reliance on inadmissible evidence.
[48] In the present case, the respondent’s focus came on the second of those three issues – was there an obvious and material gap in the applicant’s evidence? The respondent said there were multiple gaps in the evidence.
[49] The applicant submitted that the Court could find assistance from those cases where the Court was addressing an application for discharge under s111, Criminal Procedure Act 1980-81. The equivalent New Zealand provision was, until comparatively recently, s347, Crimes Act. Counsel referred to a number of the relevant authorities including, more recently, Heath J in R v McLeod [2NZ3] NZHC 2126. At [17] the Judge noted the general rule that, even though there was jurisdiction for the Court to consider further evidence from both the Crown or an accused, a s347 applicati normally addressed by refe reference only to the evidence of the Crown. That is because the Court must focus on whether, on the Crown case, there is evidence on which a properly directed fact-finder could convict.
[50] The respondent firmly resisted the applicant’s submission that there should be any limitation upon the use to which the respondent’s evidence could be put. Moreover, counsel for the respondent submitted that the cases under s111, Criminal Procedure Act, were of no assistance. Mr Williams, for the appl, rep, replied that the relevance of the jurisprudence under s111 was this. Such an application normally would occur later in the process than the current leave application. In those circumstances, there could be no basis to put the barrier for the prosecution at a higher level than at the subsequent stage.
[51] Broadly speaking, I believe that is correct. Randerson J utilised the adjective “obvious” when he spoke of “obvious evidential or legal flaws in the case”. Bearing in mind that the Court is reviewing only the papers, and that the evidence is not tested by cross examination, it would not be appropriate for the Court to make a minute examination of the respondent’s evidence as if this were a mini-trial.
[52] As it happens, and on reasonably close analysis, it does not seem that there was much difference between the evidence put forward by the applicant and that put forward by the respondent. Mr Harrison was vritical of thof the applicant’s evidence and also submitted there were large gaps in it. With respect, I believe these subons were overdone (except in one respect).
[53] Having compared the evidence in t in the two sets of affidavits it seems, rather, that there is significant overlap between the two accounts. The respective bundles of documents frequently include the same documents. It is true there are some differences. In at least one respect Ms Pettifer affidavit was iwas incorrect (in her reading of the participants in the Merio Fishing Entity – relevant to the Bounty charge). But most of these differenere not of large moment.
[54] Indeed, and the appe applicant so submitted, there were some aspects in the respondent’s affidavit which positively supported the charges. That appears to be so.
[55] The respondent contrasted the process by which the evidence was put before the Court in the Field litigation discussed above. For example, see [57] of the first decision by Randerson J. at case, draft briefs offs of evidence were put before the Court. That procedure was not followed here. Mr Harrison criticised M0;Pett;Pettifer’s affidavit as simply being a narrative stringing together the relevant documents (generated by the respondent and/or various Chinese nationals). In some respects that description is fair. But it is reasonably common in SFO prosecutions for documentary evidence to be produced in such a manner. Ultimately, the documents must speak for themselves (subject to cross examination). Here, the applicant’s case on the leave application was largely a documentary one. Therefore, the approach taken was justified. There is one exception to this, in relation to the Bounty charge, which is discussed in more detail below.
[56] One of Mr Harri8217;s criticisms was was the lack of any evidence from any Chinese national involved in the various fishing ventures. Mr Williought to meet that by t by suggesting (on the basis of a rece in one of the affidavitsavits) that the Chinese witnesses had fled the jurisdiction. Mr Harrison st was not proper oper to drch an inference from the evhe evidence. Ultimately, there is no need to reach any view on this. I do not believe there was any materiidence (at least for the purposes of the leave application)tion) which was obviously missing and which might have been given by a relevant Chinese national. In [82] below, I note a puzzling aspect of the case concerning the motives of the Chinese. Conceivably, the applicant could have called evidence in relation to this but I doubt it would have added much to this leave application if such evidence had been available.
[57] There is no obvious issue in the current application that is dependent upon whether the relevant evidence before the Court comes from the applicant or from the respondent. Consequently, I do not need to reach a final view as to exactly what weight I should put on the respondent’s evidence.
[58] Having reached that conclusion, I now turn to consider each of the four elements which the prosecution must prove under s113(1). These are set out at paragraph [5] above.
[59] The first of those four issues (in relation to the two proposed charges) will be addressed at the same time. This is because nothing turns on the individual charges. In respect of the other three elements, however, it will be necessary to consider each proposed charge separately. The Bounty charge will be considered first, followed by the Samade charge second. The purpose of this exercise is to assess the strength and sufficiency of the evidence said to support the two proposed charges.
[60] During the course of argument I raised one issue with counsel concerning how the Court’s reasons on the facts should be recorded if the conclusion were that leave to prosecute should be given. I did not want there to be any risk of prejudice to the defendant if I were to reach what might appear to be factual findings at this preliminary stage. Counsel were agreed that, if leave were to be given, then they would understand that my reasons, necessarily, would be truncated.
[61] For the record, though, all of the evidence submitted by the parties as summarised above has been fully considered.
First element – Cabinet Minister
[62] The first relevant element of the proposed charges is that the respondent, at all material times, was a Minister of the Crown. While there was some dispute as to the respondent’s status during the latter period that he held a Ministerial warrant none of that matters for present purposes. So far as the relevant charges are concerned, it is common ground that the respondent was a Minister of the Crown and this element is satisfied.
The Bounty charge – an overview
[63] The “Bounty” is a fishing boat. In this short overview, mention also needs to be made of a second fishing boat known as the “Orongo”.
[64] The following entities also need introduction:
- [a] TNM Limited, a company owned by Mr and Mrs Bishopi>
- [b] Manuae Fishing Limited, previously owner of the “Orongo”. TNM purchased the “OrongoRi> in July 2012;
- [c] Luen Thai Fishing Venture Limited (Luen Thai). This company is part of a wider group of companies known as the Luen Thai Group;
- [d] Huanan Fishery (Cook Islands) Co Limited, a company incorporated in the Cook Islands as the local entity associated with Luen Thai.
[65] There are also two Chinese nationals to be introduced. The first of these is Mr Chou, aor officer of Luen Tuen Thai. Mr Matthew Wang is another senior officer within the Luen Thai Group.
[66] Huanan was incorporated in the Cook Islands in April 2012 against a stated intention by the Luen Thai Group tain 20 foreign fishing licences in Cook Islands’ wate waters. The Government was supportive of this ambition and a general title was given to this of the Golden Tuna Project.
[67] The respondent became close to Mr Chou. Indeed, Mr Chou was ated as an honorarnorary fishing adviser to the Government in 2012. The evidence shows there were many discussions between M0;Cho the respondent by way of Skype.
[68] The evidence shows there are a lima limited ited number of fishing licences available. Initially the figure was 40 which was then increased to 50. Mr Ponia’s evidence was that the Ministry did not publicly disclose how many licences were issued at any one time, preferring to keep that information close to its chest.
[69mid 2012, Mr Chou was asking theondent, ent, by Skype,kype, for assistance with regard to obtaining further licences for Luen Thai’s fishing vessels.
[70] On 4 September 2012, Mr Wang sent an email to the respondent requesting assistance with obtaining a fishing licence for the Luen Thai vessel known as CFA 21.
[71] Against that background, I now return to wo fishing vessels known as the “Bounty”; and the “Orongo” introduced above. As at September 2012 the “Orongo” was owned by TNM. The “Bounty” was then owned by a third party of no other relevance to this application. In or about September, though, the respondent was approached about the possibility of purchasing the “Bounty” from its then owner who was in financial difficulty. On or about 1 October 2012 TNM (the respondent’s company) purchased the “Bounty” for a payment of $20,000 plus taking over some liabilities of the vendor company. On the same day Mr Chou and the respo discussecussed the “Bounty” by way of Skype. On 10 October 2012 TNM applied for a new fishing licence for the “Bounty” (the existing licence was not tranble). That new licence was was granted on 16 October.
[72] There were various communications on 4 October 2012 between the respondent and Mr Chou conng the “Bo20;Bounty”.
[73] In mid November, Luen Thai applied for a licence for the vessel CFA 21 and in mid December Mr Ponia, Secy of the Ministryistry, determined to issue that licence.
[74] On 28 December 2012, TNM entered into an agreement to sell the “Bounty” to Huanan for a figure of $2.36 representing the cost tost to it of purchasing the vessel. That figure included the sum of $2,000 representing the purchase cost of the local licence granted on 16 October mentioned above. The agreement included a provision whereby the “Bounty” would be donated to an NGO (which was not identified).
[75] It is reasonably clear, from reading the relevant email and Skype communications, that Huanan purchased the “Bounty” in order to free up the licence that it had. Initially, it seems that the Chinese interests may had thought that they were purchasing the licence itself but, as time went on, they obviously appreciated that they needed to apply for a fresh licence. It appears to have been assumed by all relevant persons (including the respondent and Mr Ponia) that the licereviousviously held by the “Bounty” would be relinquished. It appears to have been further assumed that this would free up a slot for a new fishing licence to be issued in ron to CFA 21.
[76> [76] The Chinese interests, in purchasing the “Bounty”, determined to donate it to a non-Government organisation. Mr Bishop, in his affidavit, referred to charitable intentions on the part of the Chinese. Presumably, too, the Chinese had no particular interest in the boat – only the licence. The intention to donate the vessel toGO is mentioned in the 4 Oc 4 October 2012 correspondence addressed above. Furthermore, in a meeting held on 14 December 2012 between the respondent and Mr Wang#160;Wang offered to doto donate the “Bounty” to an appropriate NGO. This ultimately became a term of the agreement for sale and purchase.
[77] It seems that the “Bounty”, though, was not particularly welcome so far as any prospective donee was concerned. It had not been successful as a fishing boat and had only limited use as a carrier of freight. Mr Bishop, it seehen offered tred to swap the two vessels so that TNM would keep the “Bounty” and the NGO could take the “Orongo”.
[78] The relevant NGO selected nown as Merio Fishing EntitEntity. There is little satisfactory evidence about this entity. Mr B says he was not involved lved with it. There are various newspaper articles which show a formal handing over ceremony of the “Orongo” to theo Fishing Entity representatives.
[79] In a practpractical sense, the following occurred:
- [a] It seems that TNM retained possession of the “Bounty” throughout the relevant period (at least December 2012-February 2013);
- [b] TNM received the sum of $26,774.36 from Huanan to purchase the “Bounty” and which covered the costs associated with the “Bounty”;
- [c] Mr Bishop’s ists continuntinued paying the borrowing costs on the “Orongo”, which had been slipped, did not return to duty, and still remains ashore in dry dock;
- [d] In January 2013, at least, it seems that TNM used the “Bounty” to undertake some freight carriage.
[80] It is, frankly, hard to get a complete grip on what occurred. The evidence is not complete. Indeed, I think the applicant failed to provide sufficient assistance in relation to the swap of the “Bounty” and the “Orongo” and the composition and role of Merio Fishing Entity.
[81] Mr Harrison strongly urgon then the Court that there was no advantage to Mr Bishop from f the transactisactions as summarised above. Indeed, he saiwas to Mr Bishop’s detriment because he swapped the “Orongo” for the “Bounty” bntinued to meet the borrowirrowing costs on the “Orongo”.
[82] It is a little puzzling that the Chinese interests sought to purchase the “Bounty” even though their only interest was in the licence. However, the licence was not transferable and there was no necessary reason to issue a foreign licence to CFA 21 simply because the “Bounty” licence would be relinquished (in fact, it seems it was not relinquished until July 2013).
[83] The applicant took this confusing series of facts as leading to a simple conclusion that the transaction involving the “Bounty” was corrupt. This is reflected in the proposed charge – and, specifically, the two particulars to it.
[84] Counsel for the respondent focused much attention upon the proposed Bounty charge. He was critical of the two particulars and said that neither of them could amount to a bribe. For example, he said that the sale of the “Bounty” by TNM to Huanan Fishery was at cost. Where was the benefit, he asked? He argued that the respondent was, in fact, doing Huanan Fishery a favour – he was freeing up the licence for CFA 21. Ultimately, he said, that the overall transaction (including the swap of the two vessels) was to the respondent’s detriment rather than benefit.
[85] Mr Harrison submitted that tpl applicant’s submissions in relation to the alleged benefit were “extremely cursory” and the evidence submitted by the Crown was “extremely weak”. There is force in each submission and, as explained below, I do not think the applicant fully grappled with the difficulties that the facts present. Certainly, the written submissions were sparse but the applicant did not, at the hearing, then take the opportunity to say much more than was contained in the written submission.
[86] Mr Williams argued that the two particulars to the proposed charge were discrete. It would be enough if one were proved. He submitted that these particulars were capable of amendment up to trial. He said it was important not to become too immersed in the detail. He said there was plainly benefit of $2,000 included within the purchase price of the vessel because this reimbursed the price of the local licence – and Huanan Fishery was not buying that. He also said there was sufficient evidence that TNM used the “Bounty” at least in January 2013 to carry cargo.
[87] Much time was spent during the course of the hearing addressing this issue. In reality, this goes to the question of whether there was a bribe (a benefit to the respondent). This is now addressed.
The Bounty charge – second element – did the respondent accept a bribe?
[88] As already noted, the applicant’s written submissions on this were comparatively brief. Mr Williams referred to road doad definition of a bribe in s110 and the discussion of it in the Supreme Court of New Zealand in Field v R. The written submissions said that, in relation to the “Bounty1;, the respondent reta retained possession and use of the “Bounty” after it was sold to Huanan and that this fell within the meaning of “any benefit” to the respondent. The applicant also referred to the payment of $26,774.38 received from Huanan on the same day that the licence was signed by the respondent (3 January 2013). That fishing licence related to the vessel CFA 21 already mentioned.
[89] The respondent’s strong rebuttal of those submissions has already been introduced above. The respondent’s conclusion was that there was no arguable benefit or bribe flowing to Mr Bishop – or indeed any other person. Counsel compared that with the fact situation in Field v R.
[90] Mr Harrison particularly attacked the oral submissions of Mr Wms focusing upon the $2,00$2,000 reimbursement and the use of the “Bounty” for freight purposes in January 2013. Even if these could be thought of as benefits, he submitted were entirely de minimis.
[91] It is true that Mr Bishop’s interests received a payment of $26,774.38. But that was payment for a fishing boat and, in essence, reimbursed costs in acquiring the vessel. In those circumstances, it seems hat artificial to refer to the payment as a benefit. Of couf course, it is most unusual that a Minister responsible for issuing fishing licences should, in effect, sell a fishing vessel to the entity to whom he is issuing those licences. At the very least, this relationship was unwise, but does the payment qualify as a benefit?
[92] Mr Williams separated out $2,000 from the total purchase price representing reimbursement for the local fishing licence. He said this was truly a benefit for Mr Bishophat it reimbursed cosd costs his interests had incurred but for which there was no corresponding benefit to the purchaser. I do hink this is a valid argument – at least, on the evidence before the Court. I do not not believe there are grounds to analyse this payment as if it is in some way different from the balance of the payments made. Moreover, and as set out above, the Chinese interests (as did Mr Ponifectively assumed they they were purchasing the local licence so that it would be relinquished and free up a slot for CFA 21.
[93] It also appears that Mr Bishop’s interests were able to use the “Bounty” in at least January 2013 (although the evidence in support of this was fairly thin). Although the boat had been so Huanan Fishery, it remained, in effect, in Mr Bishopishop̵ossession. ion. He used it to carry freight. There is potentially a relevant benefit in that. But this needs to be assessed in the context that there was a swap of the “Bounty”“OrongoRo” as mentioned.
[94] It is not possible to approach the particulars of the proposed charge as two discrete alternatives. The payment of $26,774.38 did not occur in a vacuum. It was said to be payment for the purchase of the vessel in terms of a written agreement. The applicant did not suggest the agreement was a sham. Moreover, it was a term of the agreement that the vessel would then be donated to a NGO. There was no contemplation that the purchaser Huanan would take possession of the “Bounty”. So it is not surprising that it remained effectively in the respondent’s hands. The “Bounty” cannot be considered absent any consideration of the “Orongo” and the swap of the two vessels. Yet the applicant’s particulars seek to focus upon two parts only of a wider series of transactions.
[95] There may be further, but unexplained, aspects of the case which would justify inferences being drawn that benefits were obtained by the respondent. But, on the evidence before the Court, there would need to be quite some speculation in order to draw such inferences. This is because there was not sufficient evidence before the Court in relation to the swap of the two vessels and the apparent donation of one to the Merio Fishing Entity. It seems most odd that a Minister of the Crown would involve himself in such a series of transactions. Yet, is all of that enough to conclude that the respondent received the necessary benefit?
[96] In my view, there are significant unresolved issues. The strength and sufficiency of the evidence relied upon by the applicant is unsatisfactory. I return to this in assessing my discretion below.
The Bounty charge – third element – causal connection