Home | Databases | WorldLII | Search | Feedback Court of Appeal of New Zealand

R v Aspinall CA295/06 [2006] NZCA 459 (19 September 2006)

Last Updated: 2 February 2014

ORDER PROHIBITING PUBLICATION IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA295/06

THE QUEEN

v

MARK ASPINALL

Hearing: 12 September 2006

Court: O'Regan, Robertson and Ellen France JJ Counsel: M I Koya for Applicant

P K Feltham for Crown

Judgment: 19 September 2006 at 2.15 pm

_{JUDGMENT OF THE COURT}

A Leave to appeal is granted, but the appeal is dismissed.

2. We make an order prohibiting publication in the news media or on the internet or other publicly available database until final disposition of

_{trial. Publication in law report or law digest permitted.}

R V ASPINALL CA CA295/06 19 September 2006

REASONS OF THE COURT

_{(Given by Ellen France J)}

Introduction

[1] In a trial commencing on 25 September 2006 the applicant will face two charges of making secret payments contrary to the Secret Commissions Act 1910. The charges were laid following an investigation by the Serious Fraud Office.

[2] In the course of the investigation, the applicant agreed to supply certain documents to the Serious Fraud Office. He also agreed to attend a voluntary interview conducted by two members of the Serious Fraud Office. The interview took place on 3 June 2005 when the applicant was accompanied by his legal counsel.

[3] The interview was video-taped and the Crown intend to lead evidence of the interview. The applicant indicated he challenged the admissibility of the interview and so the Crown made an application under s 344A of the Crimes Act 1961 to have the question of admissibility determined.

[4] In a decision delivered on 11 August 2006, Randerson J ruled that the evidence of the voluntary interview was admissible. The applicant seeks leave to appeal from that decision. There were a number of issues before the High Court Judge but the only two issues we are asked to decide are as follows:

(a) Whether Randerson J was right that the Serious Fraud Office had the ability to conduct the interview; and

(b) Whether Randerson J was right to reject a complaint by the applicant that the interview was unfair because he was not told by the Serious Fraud Office that the contents of the interview could be used against him.

[5] There is no challenge to the admissibility of the statement on any other ground.

Ability of Serious Fraud Office to conduct a voluntary interview

(i) The arguments

[6] The applicant’s argument is that the Serious Fraud Office’s powers to interview members of the public are confined to those set out in the Serious Fraud Office Act 1990. Mr Koya on behalf of the applicant points out that the Act has two relevant parts: Part I, which deals with the detection of serious or complex fraud; and Part II, which deals with the investigation of suspected offences involving serious or complex fraud.

[7] In terms of s 4 of the Act, where the Director of the Serious Fraud Office has “reason to suspect that an investigation into the affairs of any person may disclose serious or complex fraud, the Director may exercise any power conferred by” Part I. Those powers include the power in s 5(1) by notice in writing to require a person to produce documents for inspection and to answer various questions about the whereabouts or the existence of the documents. Mr Koya places particular reliance on s 5(3) which states that nothing in s 5 “requires any person to supply any other information or to answer any other questions.”

[8] The Part II powers come into play where the Director has reasonable grounds to believe that an offence involving serious or complex fraud may have been committed (s 7). Those powers include the power under s 9 to require the attendance at an interview of a person whose affairs are being investigated or of any other person the Director believes may have information or documents.

[9] Mr Koya points out that where the compulsory powers in either s 5 or s 9 are utilised, s 28(1) of the Act restricts the admissibility of self-incriminating statements to cases where the person gives evidence inconsistent with the self-incriminating statement.

[10] By contrast to the protections in the Act applicable to the compulsory powers, Mr Koya says that if the Serious Fraud Office has power to conduct a voluntary interview, that power is unsupervised. It would be subject only to the jurisdiction to exclude for unfairness.

[11] In terms of this issue, the Crown relied on the reasoning in Randerson J’s judgment and submitted that reasoning was correct. We agree.

(ii) Discussion

[12] Randerson J accepted that members of the Serious Fraud Office do not have the common law powers and duties of a Police constable. That was not the end of the matter because Randerson J considered that there were two bases on which the legality of the voluntary interview could be established. The first approach was to rely on the general principle that ancillary powers reasonably and properly incidental to carrying out statutory functions may be implied: The Attorney-General and Another v The Directors of the Great Eastern Railway Company (1880)

5 AC 473 (HL). As the Judge noted, those general principles have been applied in the context of the Serious Fraud Office in Jaffe v Bradshaw (1998) 16 CRNZ 122 at

129 where Paterson J found that there was an implied power when conducting an interview under s 9 to record the interview on video tape for evidential purposes.

[13] In this context, Randerson J examined the Serious Fraud Office Act in some detail. The Judge concluded at [27] that it was a reasonable and proper interpretation that Parliament intended the Director to have “implied power to receive information or documents volunteered to him by any person for the purpose of facilitating the detection and investigation of serious fraud”. How else, he asked, would the Director get to the point of having reason to suspect that an investigation may disclose serious or complex fraud? Randerson J saw it as a “short step” from there to find that the Serious Fraud Office also has an implied statutory power to conduct enquiries and to interview witnesses on a voluntary basis in the course of its statutory functions. If that were not so, Randerson J concluded, the Serious Fraud Office would be “seriously hampered” in carrying out its statutory responsibilities:

[14] Similar reasoning was applied by the Judge to Part II. That Part, as has been seen, comes into play where the Director has reasonable grounds to believe that an offence involving serious or complex fraud may have been committed: s 7. Randerson J concluded that it was not possible to suppose that Parliament, in conferring powers of compulsory interview under Part II, did not envisage the Director having power to conduct a less “draconian” step of undertaking voluntary interviews for the purposes of the Act. Randerson J said, at [29], that “it is reasonable to assume that the legislature expressly stipulated the compulsory powers under Parts I and II since they clearly required express statutory authority”:

[15] The Judge also relied on s 36 which imposes secrecy obligations on members of the Serious Fraud Office in relation to various categories of information. The information specified includes information relating to the exercise or the “possible” exercise of any power conferred by Part II. Randerson J considered this reference to information relating to the possible exercise of a power indicated that the legislature contemplated the Director may come into the possession of information otherwise than through the exercise of statutory powers.

[16] The second basis on which the Judge concluded that the legality of conducting voluntary interviews could be supported was the well established principle that the executive may carry out any activity open to a private individual if it is not expressly or impliedly prohibited. Malone v Commissioner of Police of the Metropolis (No 2) [1979] Ch 344 at 367. In the present context, a private individual could have undertaken a voluntary interview of the applicant. The Serious Fraud Office must have the same power absent any prohibition on that. In this context, Randerson J found nothing in the Act which indicated that it was intended to a be a code excluding the existence of implied powers. We agree. In that respect, we observe that s 5(3) relied on by Mr Koya protects those who do not wish to provide further information. However, as Ms Feltham said, they can provide additional information, but are not required to do so.

[17] We have nothing to add to the reasons given by the Judge which we adopt. It must be the case that in order to facilitate the operation of the Act, the Serious Fraud Office can talk to an individual if the individual is willing to do so.

The Serious Fraud Office acting in this way will be subject to the usual safeguards such as the exclusion of any evidence obtained unfairly.

[18] Accordingly, the answer to the first question at issue is that Randerson J was right that the Serious Fraud Office was able to conduct a voluntary interview with the applicant.

Any unfairness in the interview?

(i) The arguments

[19] The focus of Mr Koya’s argument that the interview was unfair is that the applicant should have been told that the contents of the interview could be used against him. Because he was not told about the possible consequences in terms of the use of information, Mr Koya argues that at the time the applicant agreed to the interview he was a suspect and was not in a position to make an informed decision about participating in the interview.

[20] The Crown accepts that there is a discretion to exclude this evidence if unfairly obtained. Ms Feltham argued on behalf of the Crown that whether there has been an unfairness is a factual matter. There is nothing on the facts here, the Crown says, to support the conclusion that the interview was unfair.

(ii) Discussion

[21] On the facts before us, it is plain that there has been no unfairness. The relevant facts are helpfully set out in the judgment of Randerson J.

[22] In March 2005, the Director of the Serious Fraud Office instructed an investigator, Mr Harris, and a forensic accountant, Ms Pettifer, to undertake an investigation under Part II of the Act into the affairs of a Mr Ellis and Mr van Dam. Mr van Dam and Mr Ellis were employees of Wilson Parking at the relevant times. It is alleged that they caused their company, VistaCare Enterprises, to issue purchase

orders for a total of 17 telephone systems. The Crown case against the applicant is that he made two secret payments to these two men for the corrupt purpose of obtaining orders for the supply of emergency telephone systems to their employer company.

[23] In late March 2005, the Serious Fraud Office issued a notice to the ASB Bank under s 9 of the Serious Fraud Office Act seeking statements issued on the account of VistaCare Enterprises. Further enquiries were made by the Serious Fraud Office in that regard. From these enquiries, it was apparent to the Serious Fraud Office that VistaCare Enterprises had banked into their ASB account two cheques relating to the sums in question drawn on the account of a company called Enviro Doors Limited. The applicant was a shareholder and director of Enviro Doors Limited.

[24] This led on to Ms Pettifer contacting the applicant by telephone. She asked him about the payments to VistaCare and their purpose. The applicant said he recalled that they were for licences to operate emergency telephones placed in carparks. The applicant at that time was in Australia and arrangements were made for Ms Pettifer to contact him when he came back to New Zealand when he said he would collect the relevant documents. In May 2005 he duly delivered a number of documents to the Serious Fraud Office.

[25] On 27 May 2005, Mr Harris telephoned the applicant and asked for a voluntary interview. Mr Harris told the applicant he could consult a solicitor and told him of the nature of the Serious Fraud Office’s investigation. Randerson J at [9] summarises the advice to the applicant from Mr Harris by telephone as follows:

He advised the [applicant] he could consult a solicitor and that the Serious Fraud Office was investigating criminal offending relating to fraud and that the Office wished to establish the [applicant’s] involvement in the sale and purchase of telephones and whether any criminal offending had been committed. Mr Harris has also deposed he advised the [applicant] at that time that if he thought he had done anything illegal he should speak to a solicitor. On the other hand, if he did not think he had done anything illegal, it was up to him whether or not he decided he needed a solicitor. The [applicant] responded by saying he had not done anything illegal and the interview was arranged for 3 June.

[26] The applicant attended the interview on that date accompanied by Mr Koya. The interview lasted about one hour and forty minutes. At the start of the interview, Mr Harris explained that the interview was voluntary. This advice is recorded in the following passage from the transcript:

My name is William Harris. Also present is Joanne Pettifer. We’re both designated by the Director of the Serious Fraud Office as persons who are able to exercise the powers conferred under the Serious Fraud Office Act

1990. It is 2:40 p.m. on Friday the 3^rd of June 2005. We’re at the Serious

Fraud Office, 120 Mayoral Drive, Auckland. This is a voluntary interview

which is being recorded. Can you please state your full name and home address.

[27] As the Judge notes, the applicant then gave his details and Mr Koya gave his details. As recorded in the next passage of the transcript, the applicant was then asked to confirm that he had agreed to attend a voluntary interview; that he had been told he was entitled to get legal advice; that he was free to leave at any time and that he understood that was the position. The advice is recorded in the following passage from the transcript:

Harris: We’re here today at the Offices of the Serious Fraud Office because the Director has directed that we carry out an investigation into the affairs of Tim Ellis and David van Dam. Mr Aspinall, just for the record, can you confirm that I spoke to you last week requesting that you voluntarily attend at the Office today which you agreed to do so. Is that correct.

Aspinall: That is correct.

Harris: In that conversation I also advised you that you should seek, you are entitled to seek legal advice.

Aspinall: That’s correct.

Harris: Which you obviously have done. Aspinall: Yes.

Harris: And the reason why Mr Koya is here with you today. There are a number of questions I wish to ask you in relation to our investigation. I must tell you that this is a voluntary interview and you are free to leave at any time. Do you understand that.

Aspinall: Yes I understand thank you.

Harris: You’re also, you’re also able to consult and instruct your barrister in private any time during the, during the interview if you wish to do so.

Aspinall: Thank you.

Harris: OK Mr Aspinall, as you, as you know, we’re investigating Tim

Ellis and David van Dam. Aspinall: Yes.

Harris: Are you aware that we were, prior to us contacting you, were you aware that Wilson Parking had made a complaint to the Serious Fraud Office about Mr van Dam, Mr Ellis.

[28] It is accepted by the Crown that the interview which followed contains a mixture of inculpatory and exculpatory statements. The applicant admitted making the two payments to VistaCare/Ellis and van Dam but denied any “kick back” or other offending.

[29] The Crown also acknowledge that whether or not the applicant was a suspect at this point is not clear. It was the case though that the other two men appear to have been the primary focus of the investigation.

[30] We agree with Randerson J that the applicant and his lawyer could not have been under any misapprehension as to the nature of the interview. The interviewing officers made it clear that the interview was voluntary and the applicant confirmed that he understood that and understood he did not have to continue with the interview if at any time he wanted to leave.

[31] There was no evidence before the High Court of any confusion on the part of the applicant or of his lawyer as to the evidential consequences of the interview. Finally, the fact that the applicant’s lawyer was present is also a relevant factor given, as the Judge said, Mr Harris was entitled to take some comfort from that.

[32] It follows from our view of the facts that we do not need to resolve any question about the applicant’s status at the time of the interview. Nor do we need to decide any broader questions about the obligations of the Serious Fraud Office in these situations. There is simply no evidential foundation for the suggested unfairness. The answer to the second issue is that there was no unfairness in the conduct of the interview.

Result

[33] For these reasons, leave to appeal is granted but the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington