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Sullivan v Ministry of Fisheries HC Christchurch A197/00 [2001] NZHC 313 (30 April 2001)

Last Updated: 6 November 2013

IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY A197/00

BETWEEN MICHAEL SEAN SULLIVAN
Appellant

AND MINISTRY OF FISHERIES
Respondent

Hearing: 19 & 20 March 2001

Counsel: C R Carruthers QC and S J Grey for Plaintiff
C A McVeigh QC and A J Riddell for Defendant

Judgment: 30 April 2001

JUDGMENT OF PANCKHURST J

Introduction:

[1] Mr Sullivan is a solicitor in private practice. His specialist area is marine and fisheries law. Formerly he was employed by the Ministry as a legal advisor and advocate. Arising from his acting for a client in a fisheries context he now stands convicted of obstructing a fisheries officer in the execution of his duty. In this appeal the correctness of that conviction is challenged on four substantive grounds. In the alternative there is an appeal against the fine and costs order which were imposed in the District Court.

[2] The case concerned an interview of the managing director of a company which chartered a non-New Zealand fishing boat, a Mr Ching. On the afternoon of 19 March 1999 an officer of the Ministry endeavoured to interview Mr Ching concerning allegations that the chartered vessel had illegally fished within New Zealand territorial limits. Mr Sullivan advised Mr Ching before and during the interview. It was his conduct during the course of the interview itself which gave rise to the obstruction charge. Put shortly the prosecution alleged that Mr Sullivan so interfered in the process of interview that it was he who answered the questions as they were put, not his client. The defence was that Mr Sullivan did no more than provide legal advice with reference to questions asked at the interview.

[3] To appreciate the respective cases it is necessary to refer to the statutory scheme provided by the Fisheries Act 1983. It is also necessary to provide something more by way of background to the interview and concerning the interview itself. I turn first to the background facts.

Background:

[4] The Fu Yuan No. 4 is a Chinese registered squid jigger owned by the China National Fisheries Yantai Marine Fisheries Corporation. In late 1998 the vessel was chartered to Sea Bounty Limited, a New Zealand fishing company. Mr Ching is the managing director of that company. He lives in Auckland.

[5] Subsequently Mr Ching was instrumental in Sea Bounty Limited obtaining a
certificate of registration for the Fu Yuan No. 4 as a commercial fishing vessel in terms of the Fisheries Act 1983 (the Act). Being a non-New Zealand vessel the Fu Yuan No. 4 was not entitled to fish within the territorial sea of New Zealand, that is within twelve nautical miles of the coastline.

[6] Between 14 January and 17 February 1999 the Fu Yuan No. 4 was engaged in fishing off the New Zealand coast. A scientific observer with the Ministry was on board. On the basis of information provided in the main by the observer Messrs Green and Backhouse, two Fisheries officers (although the validity of Mr Green’s appointment is under challenge), formed the view that the Fu Yuan No. 4 had fished within New Zealand territorial waters and therefore in breach of the Act.

[7] On 17 March 1999 the Ministry was involved in various investigative initiatives. Officers boarded the Fu Yuan No. 4 off the Canterbury coast and seized the vessel. It was brought back to Lyttelton and detained there. At the same time Mr Green was involved in the execution of an authority to enter Mr Ching’s home in Auckland, which was also the business premises of Sea Bounty Limited. A further intended step in the investigation was to interview Mr Ching and the master of the Fu Yuan No. 4. Arrangements were made for the interviews to be conducted in Lyttelton. Mr Sullivan was retained to advise the company and the individuals. To that end he travelled from Nelson to Christchurch on 17 March.

[8] On 18 March Mr Ching flew from Auckland to Lyttelton and met Mr Sullivan. Time was allowed that day for Mr Sullivan to obtain instructions from his clients. On the morning of 19 March Mr Backhouse endeavoured to interview the master of the Fu Yuan No. 4 at the Lyttelton Police Station. An interpreter was required. Mr Sullivan was present in his capacity as a solicitor. Difficulties were encountered and the interview was terminated part way through the process.

[9] That afternoon at about 2.25 pm Mr Green interviewed Mr Ching also at the Lyttelton Police Station. Again, Mr Sullivan was present. The interview was to be recorded, Mr Backhouse being responsible for that aspect. In discussions prior to the commencement of the interview it was made clear that questioning would be in English and that an adjacent room was available should Mr Sullivan wish to consult with his client in private at any stage.

[10] The interview occupied approximately one hour 35 minutes. There were two breaks to enable the tape to be changed. In addition Mr Green refrained from asking questions on three occasions while Mr Sullivan answered calls on his cell phone. After the first such call Mr Sullivan declined a request to turn his cell phone off indicating that it was imperative people be able to contact him. On the other hand, Mr Ching agreed to switch his cell phone to record after the first interruption occasioned by it.

[11] At the commencement of the interview Mr Green identified the allegation which was under inquiry and confirmed that pursuant to s 79(1)(c) he required Mr Ching to answer the questions he was about to pose. Pursuant to that subsection a Fisheries officer may require a suspect to answer questions relevant to a suspected offence and the interviewee is obliged to answer, unless he claims the protection of s 79(3) namely that his response would tend to incriminate him. Further, Mr Green confirmed that Mr Ching was being detained for the purpose of the interview and was therefore entitled in terms of s 23(1)(b) of the New Zealand Bill of Rights Act 1990 to consult and instruct a lawyer in private and without delay.

[12] Mr Green obviously had a comprehensive interview plan, since it is apparent that the questions he asked were pre-prepared. I shall return to the content of the interview shortly, when I consider the specific grounds of appeal.

The District Court Hearing:

[13] The case was heard over four days in June 2000 in the District Court at Christchurch. Initially there was to be a joint hearing of charges against both Mr Ching and of the one charge against Mr Sullivan. However, in the event counsel agreed that it was preferable for the single charge against Mr Sullivan to be heard first and it occupied more hearing time than had been allocated for the entire joint hearing.

[14] The charge against Mr Sullivan was that “he did encourage Ching Tay Hang to obstruct a fishery officer Michael Green, while in the execution of the Fisheries Officer’s powers or duties in conducting an interview of Ching Tay Hang”, contrary to ss 95(1)(a) and 157 of the Act.

[15] Mr Green was the first witness to be called. Part way through his evidence in chief objection was taken to the admissibility of the three audio tapes of the interview. This on the basis that the tapes contained whispered conversations between Messrs Sullivan and Ching which were privileged, being protected by legal professional privilege, and which were therefore inadmissible. The objection, if sustained, would have been fatal to the prosecution case since the tapes (and the transcripts of them) contained the central evidence of the alleged obstruction. In these circumstances there was a voir dire. Messrs Green and Backhouse gave evidence, as did Mr Sullivan. Extensive legal submissions were then made, at the conclusion of which the learned Judge ruled that there remained a case to answer.

[16] Mr Sullivan also gave evidence in his own defence, in particular in an endeavour to avail himself of the statutory defence in s 105(2) of the Act. Thereby it is provided that although infringements of the Act are offences of strict liability and an intent to commit the offence need not be proved, nonetheless a defendant shall have a defence if he proves that he did not intend to commit the offence and took all reasonable steps in the circumstances.

[17] The case was hard fought. Every possible point was taken. These included the argument that the tapes were privileged and therefore not admissible, that in any event Mr Sullivan’s actions did not constitute obstruction, alternatively that the statutory defence was established on balance, and that there was no adequate proof of Mr Green’s appointment to the position of fisheries officer.

[18] In light of the extended reference to authorities and the detailed submissions which he heard, the Judge reserved his decision. A written judgment was delivered on 12 September 2000. It ran to ninety pages. Undoubtedly its length reflected the multiple points taken on Mr Sullivan’s behalf and the nature of the hearing itself. To my mind observations made in R v Connell [1985] 2 NZLR 233 (CA) bear repeating. The then President, Cooke P, in delivering the judgment of the Court said at 237-8:

“Further, what the Judge sitting alone delivers is intended to be a verdict. It need not be supported by elaborate reasons. To require the Judge to set out in writing all the matters that he has taken into account and to deal with every factual argument would be to prolong and complicate the criminal process to a degree which Parliament cannot have contemplated. There are cases where a point or argument is of such importance that a Judge’s failure to deal expressly with it in his reasons will lead this Court to hold that there has been a miscarriage of justice. A demonstrably faulty chain of reasoning may be put in the same category. But it is important that the decision to convict or acquit should be made without much delay. Careful consideration is an elementary need but not long exposition.”

And a little later:

“. . . in general no more can be required than a statement of the ingredients of each charge and any other particularly relevant rules of law or practice; a concise account of the facts; and a plain statement of the Judge’s essential reasons for finding as he does. There should be enough to show that he has considered the main issues raised at the trial and to make clear in simple terms why he finds that the prosecution has proved or failed to prove the necessary ingredients beyond reasonable doubt.”

Measured against this standard (which concerned the role of a Judge sitting alone to hear an indictable case) the length and complexity of the present judgment was perhaps unfortunate.

[19] I turn now to the specific broad grounds of appeal. The convenient course is to first examine the privilege point, then the rather more technical contention that Mr Green’s appointment as a fisheries officer was not proved to the required standard, the argument concerning obstruction, and finally whether the statutory defence was established.

Legal Professional Privilege:

[20] The judgment contains a detailed analysis of this topic (which I need not repeat) and which was not in large measure criticised by Mr Carruthers QC. His argument raised two issues by way of challenge to the District Court decision. These were that the learned Judge wrongly defined the subject-matter of solicitor/client privilege as being legal advice, not legal advice and assistance. Secondly, with reference to waiver of the privilege by the client, Mr Carruthers submitted that “the Judge applied the wrong test as to (the) onus of proof and, was wrong in finding that privilege had been waived”. Before I turn to these contentions it is necessary to refer to the process of interview in a little more detail.

[21] In total Mr Green asked just over two hundred questions in the course of the interview. In the most part these were answered by Mr Ching saying “section 79(3)” at Mr Sullivan’s prompting. In the first part of the interview such prompting occurred by Mr Sullivan whispering “79(3)” to Mr Ching who then repeated this. Significantly the advice tendered by Mr Sullivan to his client on these occasions is consistently preceded in the transcript by “MS : sotto voce to Mr Ching”. At about the half way point, after Mr Sullivan had again quite audibly prompted Mr Ching to invoke s 79(3), Mr Green said “Mr Sullivan, I’d rather if Mr Ching could answer, please. I know it’s difficult but we could do a move or something that makes it a bit easier, instead of duplicating everything”. To this Mr Sullivan replied “Tell you what, I will write it down and I will point to it”. Thereafter when Mr Sullivan wished his client to decline to answer a question which may tend to incriminate him he pointed to a piece of paper which recorded s 79(3). Importantly the prosecution disavowed reliance upon all of the occasions when Mr Sullivan prompted Mr Ching to invoke s 79(3). Rather the prosecution was based upon about twenty-five occasions when Mr Sullivan supplied to his client a substantive answer, of sorts, to the particular question.

[22] Some examples will sufficiently demonstrate the flavour of these occasions. Relatively early in the interview Mr Ching was asked who were Sea Bounty Limited’s solicitors to which Mr Sullivan responded “Answer that legal professional privilege” and Mr Ching said “legal professional privilege”. Then followed a significant segment of the interview in which Mr Green referred to various documents (certificates under the Act and the like) and sought confirmation of aspects of their contents. To these questions Mr Sullivan advised his client to say “That is what it appears to be” and Mr Ching endeavoured to repeat that phrase but generally got it wrong. At other times Mr Sullivan suggested the answer “That’s what it purports to be”. There were other variants such as “That is my understanding”.

[23] Other examples of suggested answers are “That could be correct”, “That would be my understanding”, “If you say so”, and “I would need to refer to the licence”. At one point when Mr Green referred to an exhibit recovered from the Fu Yuan No. 4, requested Mr Ching to look at it, and asked what he made of it the suggested answer was “It is a document with writing on it”. When Mr Green asked what type of document the suggested answer was “I do not understand the question”.

[24] Mr McVeigh QC rested the prosecution case on Mr Sullivan’s actions with reference to these twenty-five or so questions scattered throughout the interview as a whole. He contended that Mr Sullivan encouraged obstruction of Mr Green by effectively subverting the interview. It ceased to be an interview of Mr Ching, assisted by his solicitor advising him when to invoke the protection against self-incrimination, and rather became a process by which Mr Sullivan provided essentially meaningless answers for his client to parrot.

[25] I have of course listened to the recording of the interview. Its flavour is consistent throughout. There is a complete absence of spontaneity. The questions are asked in a very deliberate, if not stilted, manner. There are frequent pauses although many of these may have been required to enable Mr Ching to consider documents. Exchanges between Mr Sullivan and Mr Ching are clearly audible, albeit softly spoken. It is apparent that while Mr Ching is far from fluent he has an adequate grasp of English. At one point towards the end of the interview Mr Green asked questions concerning a document in Chinese recovered from the Fu Yuan No. 4. It had been translated and the interviewer sought Mr Ching’s confirmation of its meaning. Mr Sullivan commented to his client “You can answer any of those questions” and a series of about eight answers followed without further contribution from Mr Sullivan. It is the one time when the interview flowed to any extent and also demonstrated Mr Ching’s ability to respond adequately to questions.

[26] With reference to the answers which Mr Sullivan suggested to and his client repeated, the Judge found that legal professional privilege did not apply because the purpose of the communication between solicitor and client was not to give or obtain legal advice. He put the matter in this way:

“Put shortly, my conclusion on this issue is that, while a solicitor is entitled to provide advice to a client in an interview situation, whether in the context of a Fisheries Act investigation or otherwise, it is a misuse of that position of privilege to effectively step into the shoes of the client and to provide the client with answers to the questions which are asked. It remains the client’s prerogative, and, more importantly, it remains the client’s responsibility, to answer the questions, subject of course to any proper legal advice which he or she may be given by his or her legal adviser as to the appropriateness and fairness of a question and as to whether the privilege against self-incrimination may arise in respect of it.”

[27] Mr Carruthers criticised this process of reasoning as erroneous because privilege attaches to not only communications within the context of legal advice but also to communications to give and obtain legal assistance. He cited R v Uljee [1982] 1 NZLR 561 (CA), Cooke J at 570:

“The privilege undoubtedly exists. It relates to communications for the purpose of obtaining or giving legal advice or assistance. The client cannot be compelled to disclose what was said at any stage for such a purpose to or by his professional legal advisor in intended confidence. A legal adviser must not do so without the client’s consent. “ (The emphasis is mine)

Then followed a passage in which the Judge concluded that equally the law should not shrink from recognition of the privilege where a third party had overheard the relevant conversation and proposed to give evidence of it.

[28] I accept the point made by counsel. Necessarily the privilege extends beyond straight legal advice. It encompasses those exchanges between solicitor and client which surround and are necessary for advice to be given. But I am not sure that the Judge’s focus upon legal advice to the exclusion of legal assistance was of much moment. Regardless of the label used he concluded, in the passage quoted above, that privilege did not affix because of the nature and quality of Mr Sullivan’s actions. Put shortly, that he ceased to be involved in giving legal advice (or legal assistance), rather that he overstepped the mark and commenced to supply verbatim answers to the questions as opposed to advice or assistance to enable Mr Ching to answer them.

[29] For my part I consider that distinction to be a fine one. I should have thought that the distinction between legal advice/assistance and supplying answers for a suspect to parrot is a tenable one with reference to the question whether the appellant was involved in the obstruction of the fishery officer, more accurately in the encouragement of obstruction. In that context what was said, and how it was said, seem to me to be pointers to whether the conduct was obstructive or not.

[30] But in the present context, given that the communications were between solicitor and client and in the very situation in relation to which legal advice was required, I am hesitant to conclude that legal professional privilege does not attach on account of the nature and quality of the communications. Simply because the advice tendered was wrong or ill-considered does not, I think, necessarily rob it of the protection. That is not to say there will not be clear cases where communications between a solicitor and client, on account of the subject-matter, do not attract legal professional privilege. But I do not see this case as a straight-forward one in that category.

[31] The alternative basis on which privilege was found not to apply was that the relevant communications between the appellant and Mr Ching were not in any event confidential in nature. In his analysis of the legal principles the Judge noted observations in Uljee concerning the requirement of confidence. For example McMullin J at 576:

“. . . there seems no reason in principle why privilege should be lost merely because a communication has been overheard by a third party whose presence the client had no reason to suspect. That is not to say that the presence of a third party may not be highly relevant to the question of whether the person making it intended that it should be confidential at all - R v Braham & Mason [1976] VicRp 56; [1976] VR 547.”

The Victorian case concerned a telephone conversation by a suspect to his solicitor conducted in the presence of a police officer. The latter was permitted to give evidence of what he overheard. The Judge accepted that in all the circumstances the suspect did not have an intention that it be a confidential communication. Hence, legal professional privilege did not apply. By contrast, in Uljee (where a constable overheard the conversation unbeknown to the solicitor and his client), privilege did attach. Confidentiality was still intended.

[32] Mr Carruthers argued this point as one of waiver. He submitted it was for the prosecution to establish a conscious, informed, and voluntary waiver of confidence by Mr Ching. I doubt that this reference to waiver was helpful. In the context of legal professional privilege waiver has a well understood meaning, being where a client disavows reliance upon the privilege which is otherwise available to him. Here, more accurately, the issue is whether the situation was one of confidence in the first place. Did Messrs Ching and Sullivan intend that the relevant communications between them in the course of the interview were in confidence? If that was not the intention then privilege did not arise. There was nothing to require waiver.

[33] As to this the Judge extensively reviewed the rival submissions of counsel, the evidence, and ultimately concluded that confidentiality was not intended. He was considerably influenced by what he described as the “realities” of the situation. He was satisfied it must have been self evident during the interview that Messrs Green and Backhouse could overhear what was being said. Although Mr Sullivan spoke softly to his client, his comments were nonetheless quite audible on the audio tape. The Judge saw significance in the fact that on some occasions Mr Sullivan and Mr Ching left the interview room in order to consult in private before a topic or question was addressed. Further, he viewed the softer tones reserved by Mr Sullivan for advice to his client, and his pointing to the piece of paper with “79(3)” on it, as more consistent with an endeavour to comply with Mr Green’s requirement that the interview be between himself and Mr Ching rather than indicative of an intention to achieve confidentiality.

[34] In my view the conclusion reached in the District Court was entirely open. In short the realities of the situation did well permit of the conclusion that there was no intention of confidence with reference to what was said in the presence of the interviewer and his assistant in the interview room itself. To my mind what can be heard on the audio tape is the most compelling evidence on this point. It follows that I agree with the decision of the learned Judge that legal professional privilege did not apply and, accordingly I conclude that the tape was properly received in evidence.

Proof Mr Green was a Fisheries Officer?:

[35] Integral to the offence of obstruction faced by the appellant was the element that Mr Green was a fishery officer and engaged in the execution of his powers as such at the relevant time (see s 95(1)(a)). In two respects proof of this essential element was challenged in the District Court. Such challenge was repeated on appeal. The two matters raised may be referred to as the appointment issue and the authority issue.

[36] In terms of the Act a fishery officer must both be appointed to that position and authorised by warrant to exercise the powers of a fishery officer. This follows from the statutory scheme. Section 76 provides:

“Appointment of fishery officers - (1) There may from time to time be appointed under the State Sector Act 1988 such fishery officers and other officers as may be required for the proposes of this Act.”

As to the fact of appointment a brief of evidence was admitted from a Mr Crothers, the Ministry’s Deputy Chief Executive, by consent. In it the witness referred to his delegated authority to appoint permanent employees of the Ministry.

[37] This aspect was not disputed. His evidence continued “. . . in accordance with s 76 of the Fisheries Act 1983, on 11 July 1997 I appointed Michael Green as a fishery officer holding the designated position of Fisheries Investigator”. He then produced a copy of the letter of appointment of that date. Such letter commenced “I am pleased to offer you employment with the Ministry of Fisheries at Wellington as Fisheries Investigator, Serious Offences Unit”. The letter then advised that the appointment was made in terms of the State Sector Act, was subject to review (or appeal) by other employees, and requested that Mr Green sign and return a letter of acceptance and a contract of employment.

[38] The short point raised was that despite the terms of Mr Crothers’ brief of evidence, the actual letter effected an appointment of Mr Green to the position of “Fisheries Investigator” not that of fishery officer. Mr Carruthers argued that this gave rise to a fatal defect in the chain of proof. He also submitted that there was nothing untoward in allowing Mr Crothers’ evidence to be admitted by consent and without cross-examination. He suggested the lacuna arose from the letter of appointment and the defence was quite entitled to take advantage of it.

[39] The Judge disagreed. So do I. In the first place the letter is not to be read in a vacuum. Mr Green in giving evidence described himself as, and conducted the interview of Mr Ching in the capacity of, a fishery officer. Consistent with that the letter of appointment invites the inference that the position of Fisheries Investigator in the Serious Offences Unit involves appointment as a fishery officer. To my mind it is unthinkable that someone could hold such a position and not have the powers of a fishery officer under the Act.

[40] But in the event it is not necessary to resort to inference. Mr Crothers in his unchallenged brief of evidence stated and confirmed (what I think was obvious anyway) that Mr Green was appointed a fishery officer holding the designated position of Fisheries Investigator. Hence, I agree with the conclusion reached in the District Court that there was no lacuna, the fact of appointment was established through Mr Crothers’ direct evidence.

[41] The second issue was whether there was proof that Mr Green at the time of the interview held a warrant authorising him to exercise the powers of a fishery officer, relevantly the power to question a suspect and require answers subject only to the protection against self-incrimination. Section 78 provides:

“Issue of Warrants (1) The Director General may, from time to time, issue - (a) to any fishery officer appointed . . . under this Act, a warrant authorising him to exercise the powers conferred on fishery officers under this Act . . .”.

On this point the evidence was given by Mr McCulloch, a District Compliance Officer with the Ministry at the relevant time. In October 1997 he exercised a delegated authority he held in order to issue a warrant to Mr Green.

[42] The warrant, which was formally produced at the commencement of the interview with Mr Ching on 19 March 1999, read as follows:

“WARRANT OF AUTHORITY
Pursuant to Section 76 of the FISHERIES ACT 1983
MICHAEL GREEN
Is hereby appointed as a FISHERY OFFICER under the State Sector Act 1988 and is duly authorised to exercise all the powers conferred on any such officer by the FISHERIES ACT 1983

‘D C McCulloch DGM Wgtn’ Date 29/10/97

Acting under the delegated authority of the Chief Executive of the Ministry of Fisheries.”

Two points arise: first the warrant is expressed to be issued pursuant to s 76, the appointment section rather than s 78 the warrant section, and second, consistent with the section reference, it purports to effect the appointment of Mr Green as a fishery officer (as well as authorise him to exercise the powers of that office).

[43] It was common ground that Mr McCulloch could not appoint a fishery officer. He held no delegated authority to do so. His function was limited to the issue of warrants to persons already appointed to that office. In these circumstances the Judge below held that the warrant dated 27 October 1997 was “defective”. However, he concluded that s 204 of the Summary Proceedings Act 1957 applied. That section provides that no warrant (nor information, complaint, summons, conviction, sentence etc) shall be held invalid by reason only of a defect, irregularity, omission or want of form unless the Court is satisfied there has been a miscarriage of justice.

[44] The Judge then noted that correctly the warrant should have referred to s 78 and to Mr Green being a fishery officer, and then should have conferred the authority for him to exercise the statutory powers of that office. Finally in reliance upon s 204 he concluded that

“. . . the fact that, when he commenced the interview, Mr Green produced a warrant of authority which was defective is therefore not fatal to the exercise of his powers as a fishery officer, if in fact he was properly so appointed.

Put shortly, the warrant is merely evidence of that appointment, and any defect or want of form in the warrant would not invalidate either the warrant itself or the exercise of any powers in purported reliance upon it.”

Hence while having found a defect, the Judge was satisfied s 204 covered the situation.

[45] There is a problem with this reasoning. Although before me Mr McVeigh relied (somewhat faintly) on s 204 he acknowledged the section had not been referred to by counsel in the District Court. Accordingly the Judge’s resort to it was of his own volition. Moreover no case was cited to me where s 204 had been applied to some process or procedure outside the ambit of the Summary Proceedings Act itself. I am in no doubt that is the correct application of the section. It operates to overcome defects of form which have arisen in the summary proceedings arena. That is, where a search warrant, a criminal charge, or even a conviction or sentence are affected by a defect or irregularity but not one which has given rise to a miscarriage of justice. Here the warrant was not one issued under the Summary Proceedings Act, rather under the Fisheries Act. It does not enjoy the protection of s 204. The only connection between Mr Green’s warrant and the Summary Proceedings Act, was that he produced and relied upon it in the context of a summary prosecution. But that was not sufficient to bring s 204 into play.

[46] Nonetheless I agree with the conclusion reached in the District Court, although for different reasons. Plainly the warrant of authority could not be relied upon to establish the appointment of Mr Green as a fishery officer. But as to that point I have already set out my reasons for concluding that Mr Crothers’ evidence did establish the fact of appointment. The further and separate issue is whether Mr Green was also clothed with authority to exercise the powers of a fishery officer under the Act in terms of s 78(1)(a)? This too required proof since an element of the charge was obstruction of Mr Green in the execution of his powers (specifically his power to question and require answers: s 79(c)).

[47] Hence the question becomes whether the warrant of authority signed by Mr McCulloch validly authorised Mr Green to exercise the powers of a fishery officer, albeit such warrant wrongly purported to effect the appointment as well. To my mind two points arise in relation to the document itself, the warrant of authority dated 29 October 1997. Firstly, is the circumstance that it wrongly purports to effect the appointment of Mr Green as a fishery officer fatal to the authorisation which it also confers to exercise the powers of that office? I think not. The two aspects, in my view, are separate and severable. Mr McCulloch was indeed empowered to issue warrants which conferred powers under the Act and he did so. The fact that the document, or warrant, also purported to appoint Mr Green as a fishery officer does not rob the authorisation of its authenticity.

[48] Secondly, does the reference to s 76 of the Act in the intitulment of the warrant invalidate the conferment of powers contained in it? Again, I think not. It is obvious that the reference to s 76 is linked to the purported appointment of Mr Green as a fishery officer. One must read the sectional reference and the purported appointment together. Both are redundant since, as I have already found, Mr Crothers had appointed Mr Green to be a fishery officer a short time earlier. Putting to one side the s 76 and the appointment references, the balance of the document nonetheless contains sufficient to constitute a warrant of authority. It is headed with those words and, most importantly, is expressed to confer upon Mr Green the authority to exercise the powers of a fishery officer under the Act.

[49] Put another way, all the essential requirements were established namely that Mr McCulloch had delegated authority to act pursuant to s 78, that he did so, and that he issued a written warrant to that effect. Each of these requirements were proved, albeit that the warrant also contained references to the topic of appointment in relation to which Mr McCulloch had no jurisdiction.

[50] The position might have been different if something had turned upon the actual terms of the warrant at the interview on 19 March 1999. For example, if Mr Sullivan had called in question Mr McCulloch’s power to appoint Mr Green to be a fishery officer, perhaps in the knowledge that he had no delegated authority to do so, then the invalid aspects of the document could have assumed significance. But that is not this case. For these reasons I am satisfied Mr Green was at the relevant time the holder of a warrant designating him a fishery officer in terms of s 79(1). It follows he had authority to question Mr Ching and to require him to answer such questions, subject only to the protection against self-incrimination. This element of the charge was therefore established.

Was there Obstruction?:

[51] The District Court judgment contained a detailed analysis of this aspect. The Judge considered, and rejected, a number of submissions advanced by Mr Carruthers in support of the central thesis that Mr Sullivan did not encourage his client to be obstructive towards the interviewer.

[52] The Judge considered that the meaning of encourage was to extort, incite, urge or advise. He was in no doubt that in a situation where a suspect had a legal obligation to answer questions, a solicitor who supplied answers to his client was involved in encouragement.

[53] The more difficult question was whether the answers tendered in this fashion were also an obstruction of the interviewer in the execution of his powers. The Judge defined obstruction as to impede or to make something more difficult. He observed that whether a particular action constituted obstruction was a matter of degree. Although the Judge considered that proof of actual obstruction was not required, he found that such had occurred given the nature of a number of the answers which were supplied or prompted by Mr Sullivan.

[54] Mr Carruthers contended that the test of obstruction applied by the Judge was wrong and one which would lead to absurd results. In reliance upon the English Court of Appeal decision in Rice v Connelly [1966] 2 All ER 649 he submitted that obstruction connoted conduct which involved the breach of a legal duty. Mr Rice had refused to answer the questions of a constable and was convicted of obstruction. The conviction was quashed because in the particular circumstances there was no legal duty upon Mr Rice to answer. As the Court noted he had at most a moral or social duty to assist the police but that was insufficient.

[55] Building on this foundation Mr Carruthers submitted that for a solicitor to encourage an obstruction required that he act in breach of a legal duty, or put another way that his conduct was without legal excuse. Counsel continued that it was a fundamental right under our legal system that a suspect under detention may receive legal advice from a solicitor. Removal of that right would require the clearest of statutory language, which was not suggested here. This essential dimension of obstruction, counsel suggested, was overlooked on account of the definition which was adopted. Further submissions were advanced that there was no element of encouragement, nor obstruction as a matter of fact.

[56] Mr McVeigh argued that there were problems with the central submission that for conduct to amount to an obstruction required that it be without lawful excuse. He drew attention to s 95(1)(a), the offence section, wherein obstruction is defined without reference to wilfulness or intention. In any event, he stressed that the focus must be upon the actions of the appellant and that in relation to those the Judge had made a positive finding that there was an actual intention to encourage Mr Ching to obstruct the fishery officer.

[57] Generally I accept Mr Carruthers’ argument that a person is not guilty of obstruction unless their conduct is without lawful excuse. That does not mean that the present offence is not one of strict liability (s 105). Nor does it involve reading in a mental element when the offence section does not contain one (s 95). Rather it reflects that before conduct may be characterised as obstructive it must also be conduct of a kind the defendant is not legally entitled to engage in. Accordingly the judgment whether particular conduct amounts to an obstruction requires account to be taken of the legal rights and duties of the actors.

[58] Regardless of the way in which he defined obstruction, I do not consider that the Judge erred in relation to this aspect. The manner in which the prosecution case was advanced correctly recognised the legal situation which pertained during the interview. In terms of s 79(1)(c) Mr Green was entitled to question Mr Ching and to require him to answer such questions, but on the other hand Mr Ching enjoyed the protection of s 79(3):

“Nothing in subsection (1) of this section shall be construed so as to require any person to answer any question tending to incriminate himself.”

Hence the prosecution disavowed reliance upon the numerous occasions when Mr Sullivan advised his client to invoke the protection. Put another way, the prosecution accepted that when Mr Sullivan as a solicitor advised his client to invoke s 79(3) he acted with lawful excuse.

[59] But in relation to the twenty-five questions and answers which were the focus of the charge the situation was somewhat different. Mr Sullivan was still entitled to advise and assist his client to answer the questions. But what he was not lawfully entitled to do was to deny the effect and operation of s 79(1)(c), under which Mr Ching was obliged to answer if such answers were non-incriminatory. The Judge, I think, was alive to that obligation and to the fact that no one, including a solicitor, was entitled to interfere in the suspect’s performance of the obligation. In that regard the line between legitimate performance of a solicitor’s advisory role and obstruction was properly drawn by the Judge in a passage quoted earlier (para [26]). Put shortly, advice and assistance is one thing but to subvert the interview process by stepping into the shoes of the client and dictating the answers to the questions was another. I am satisfied this was the underlying basis of the finding that Mr Sullivan encouraged obstruction and that such finding was open on the evidence.

The Statutory Defence - s 105:

[60] Section 105(1) provides that proof of any offence against the Act does not require the prosecution to prove that the defendant intended to commit that offence. But this imposition of strict liability is subject to ss (2):

“(2) It shall be a defence in any such prosecution if the defendant proves -
(a) That the defendant did not intend to commit the offence; and
(b) That- (i) In any case where it is alleged that anything required to be done was not done, the defendant took all reasonable steps to ensure that it was done; or
(ii) In any case where it is alleged that anything prohibited was done, that the defendant took all reasonable steps to ensure that it was not done.”

[61] Given the range of offences against the Act and the range of persons (fishers, licence holders, masters, owners etc) who may commit them, it is apparent that there is ample scope for a defence of total absence of fault to be raised. But for my part I find it difficult to envisage circumstances in which someone guilty of obstruction (or encouraging it) could nonetheless avail themself of the statutory defence. Mr Carruthers was not deterred and argued that the defence was made out on balance in this case. It seemed to me that his submissions were essentially a re-run of the argument that obstruction connoted conduct for which there was no lawful excuse.

[62] I have already considered that question and, moreover, concluded that the appellant clearly overstepped the mark in terms of his conduct at the interview. That he did so without a proper, or any, appreciation of where the boundary lay is beside the point. Ignorance of one’s professional responsibilities cannot found a defence. In this case the finding that Mr Sullivan encouraged an obstruction in itself rendered the statutory defence unavailable in my view.

[63] None of the grounds raised in support of the appeal against conviction are sustained. The conviction must stand.

The Sentence Appeal:

[64] There was a further hearing on 19 October 2000 in relation to sentence. The Judge reserved his decision and delivered a written judgment on 10 November 2000. It ran to thirty pages. In the result Mr Sullivan was convicted, fined $15,000, ordered to pay court costs of $130, and $10,000 towards the costs of the prosecution.

[65] Mr Carruthers submitted that the Judge was wrong to refuse a discharge without conviction, that he took into account irrelevant considerations and that the sentence imposed was manifestly excessive. Both counsel referred to a number of sentencing precedents in obstruction and other relevant cases.

[66] In relation to a discharge without conviction under s 19 of the Criminal Justice Act 1985, the Judge concluded that the matter which was under investigation was serious alleged offending involving a commercial fishing operation and that Mr Sullivan’s actions constituted a serious abuse of the privileged position of a solicitor. He also described the appellant as having committed serious errors of judgment, which thwarted Mr Green’s endeavour to conduct a productive interview. In my view these assessments were open and the conclusion reached that it would be inappropriate to discharge the appellant was likewise a legitimate exercise of discretion.

[67] The complaint that the Judge took into account irrelevant considerations concerned a related hearing of charges against the master of the Fu Yuan No. 4. That hearing commenced in the District Court in March 1999 but was aborted on account of the presiding Judge’s concern that Mr Sullivan could not continue as defence counsel when his conduct at the interview of the master (on the morning of 19 March 1999) was much in issue. The hearing resumed before a different Judge and, in May 1999, the master was fined $80,000 for illegal fishing offences, discharged without conviction on an obstruction charge, and the Fu Yuan No. 4 was forfeited. The Judge in the present case considered the file relevant to the master’s case, in particular the remarks of the Judge who aborted the hearing in March 1999.

[68] Specifically after he concluded that Mr Sullivan should not receive a discharge, he observed:

“Although, as I indicated earlier, my decision to refuse the application for a s 19 discharge is based on the factors to which I have referred, my conclusion in that respect is fortified by Judge Holderness’s mistrial judgment of 25 March 1999. The theme which emerges very clearly from that judgment is that during that hearing Mr Sullivan was unable to appreciate that it was impossible for him to continue to act as counsel for Captain Wu in respect of . . . charges . . . which involved a consideration of his own conduct during that interview.”

In my view there was nothing untoward in the Judge bringing to account the earlier hearing, to the limited extent that he did.

[69] I turn to whether the sentence imposed was clearly excessive. Mr Carruthers submitted the offence was “clearly at the minor end of the scale”, involved an error of judgment rather than anything more blatant, and that the fine and costs order were out of line when compared with the monetary consequences in other cases, particularly cases under the Fisheries Act. I am not prepared to differ from the assessment of the Judge as to the nature and seriousness of the offence. He saw and heard the witnesses. That represented a considerable advantage.

[70] However, I have some concern about the level of the fine and the costs order. Firstly, two features of the interview weighed with me. The bulk of the questions which were addressed to Mr Ching impressed me as of limited consequence. For example he was asked numerous questions concerning matters which were a matter of record since they appeared in Ministry documentation relevant to Sea Bounty Limited and the Fu Yuan No. 4. Although the questions may have been inconsequential, that does not excuse Mr Sullivan’s actions or detract from the fact that the offending under inquiry was serious. However I see this factor as of some passing relevance.

[71] It is also a feature of the interview that at no stage did Mr Green warn Mr Sullivan that he was personally at risk of an obstruction charge on account of his conduct. I accept there was no obligation to warn, the more so since Mr Sullivan was a solicitor. There may also have been other dynamics at play, given that Mr Sullivan had previously been a solicitor with the Ministry. Again however, I see this factor as of some relevance.

[72] I have considered the various cases upon which counsel relied with reference to monetary penalties. In the end result I did not find them of real assistance, because the facts of this case distinguish it from the run of obstruction cases whether under this Act or others. However, I was reminded of another case which involved a solicitor who faced a charge arising from a professional engagement, albeit a charge under the Crimes Act. The case was R v Taffs [1990] 6 CRNZ 274 (CA). The conviction was for wilfully attempting to defeat the course of justice. After dismissing an appeal against conviction the Court of Appeal at 278-9 said with reference to penalty:

“There is no appeal against sentence, but we think it right to make some observations about that, as the case is one of a kind that apparently has not come before the New Zealand Courts previously. The Judge fined the appellant $5,000 - on its face a sufficient penalty in the particular circumstances for an offender without substantial means. We were told that after the conviction the District Law Society required the appellant to undertake not to practise pending the present appeal, indicating that disciplinary proceedings here contemplated. While such proceedings are entirely a matter for the Law Society in the first instance, and while the appellant’s conduct deserves censure, it may perhaps be of some help to the Society to say that, on such knowledge of the facts as this Court has (which may of course be incomplete), the appellant acted in a hasty and ill-considered way, for which he has now been appropriately punished, bearing in mind that for a period he has had to abstain from practice. The prosecution has established an important principle and precedent. The facts of this particular case do not suggest that any further penal action, by way of future deprivation or restriction of his right to practise or monetary penalty is necessary in the public interest. Now that the law has been clarified, further offences of this kind may of course attract more severe penalties.”

To my mind the observations concerning the significance of a conviction for a professional person, the nature of the offending, and the precedent value of the case are equally apposite here.

[73] I do not consider sufficient weight was given to the fact that the entry of a conviction against Mr Sullivan, for conduct in his professional capacity, was in itself a very significant penalty. I am satisfied that the imposition of a fine of $15,000 coupled with an order to pay costs of $10,000, was unwarranted. In all the circumstances the appeal against sentence is allowed to the extent that the fine is quashed but leaving all other aspects of the sentence intact.