22 September 2008

Peters, Privileges Committee, and "knowingly"

> NZParliament: "Question of privilege relating to compliance with a member’s obligations under the Standing Orders dealing with pecuniary interests (I.17D)" The report is out. And there's a lot in it. No doubt lots of folk will have different things to say about the report. What interested me was the Committee adopted a rather unsympathetic approach to the meaning of "knowingly", in the context of the contempt provision in SO 400(h) ("knowingly provide false or misleading information in a return of pecuniary interests"):

Members must make honest attempt to return all pecuniary interests. It is appropriate to expect members to make an honest attempt to return all of the pecuniary interests that they hold. In order to make such an honest attempt, members are obliged to turn their minds to the interests that they have. The onus is on members to recognise and declare relevant interests.Initially, the rules for the register were to be set out in statute, which would have left open the possibility of the courts ruling on their application. This proposal was not pursued, and the House instead established its own rules to deal with pecuniary interests, within the Standing Orders.If legislation had been employed, a legalistic approach to registering interests would have been appropriate. However, the House chose to keep the matter within its own confines. This places a stronger moral imperative on members to comply with the requirements, and to do so in the spirit of the House’s own rules. If a member genuinely missed something, having turned his or her mind to the interests they hold, that would not be a contempt. However, if a member knew of an interest and decided not to declare it, the member would have “knowingly” failed to declare an interest if it were subsequently established definitively to be a pecuniary interest. Members should follow the approach used in relation to the Standing Orders relating to the declaration of financial interests under Standing Orders 165 to 176 — if in doubt, declare it.

This is carried through into the finding of contempt:

Finding of contempt We have been asked to consider whether Mr Peters knowingly provided false or misleading information in a return of pecuniary interests. To make such a finding, there are two matters to be established. The first is whether false or misleading information was provided in a return. If that is established, it must also be shown that the member provided the false or misleading information knowingly. We found that the payment of $100,000 by Owen Glenn to Brian Henry constituted a gift to Mr Peters. Mr Peters benefited from the payment, as it reduced the amount he was morally obliged to contribute to meeting Mr Henry’s fees. We have also found no evidence that Mr Peters made an “honest attempt” to ascertain whether any donations had been received before making his return in February 2006, despite his knowledge of his arrangement with Mr Henry and the likelihood of donations being received towards his costs. The majority of us find that Mr Peters had some knowledge of the $100,000 donation. Further, we find that Mr Peters, having an understanding of the arrangement by which funds were raised by Mr Henry, needed to make an honest attempt to file a correct return. For both these reasons, the majority of us find that a contempt occurred. The minority of us do not agree that the evidence is sufficient to conclude that Mr Peters had knowledge of the $100,000 donation and are uncomfortable in applying the test of an “honest attempt” retrospectively, as this test has emerged as a result of this committee’s deliberations. The minority of us note that, had Mr Peters asked the registrar for advice, it is likely that he would have been advised to seek his own legal advice. Mr Peters’ lawyer, Mr Henry, submitted to the committee that, in his view, donations of this kind did not require a return under the pecuniary interests register, which would lead to the conclusion that this is the legal advice Mr Peters would have received in any case. This inquiry has revealed a lack of clarity in the definition of a pecuniary interest. We believe all members must make an honest attempt to declare all matters that may amount to a pecuniary interest. It is regrettable that Mr Peters did not make a return covering the donations received in support of his legal costs but, in the face of this uncertainty, the minority of us do not believe it appropriate to find that his actions amount to a contempt.

Certainly, the meaning ascribed to the term "knowingly" differs from the orthodox standard at criminal law. Adams on Criminal Law, para CA20.20 says:

Where the legislation expressly requires only “knowledge” of existing circumstances it appears that, at least as a general rule, it will not suffice that an accused was “suspicious”, and thought that there was a real risk that they existed. In R v Crooks [1981] 2 NZLR 53 (CA), the Court of Appeal gave extensive consideration to the meaning of “knowing that thing to have been dishonestly obtained” in the definition of receiving, in what was then s 258. The Court held that “knowing” in this context meant “knowing or believing” and the effect of the rather involved, and at times circular, judgment seems to be that mere suspicion is not enough, even if accompanied by a decision not to inquire about the facts, and that what is needed is that the accused is sure about the relevant matter, or has no real doubt. “Knowing” was said to involve “a certainty that the point of his inquiry is free from doubt”, and a “belief” is an “acceptance of a proposition”, based on information not mere intuition. Mere “suspicion” or “doubt” is not enough, and a failure to inquire may support an inference of knowledge or belief only if the accused was confronted by circumstances which were “so compelling” that it can be inferred that the accused failed to inquire “because he knew what the answer was going to be”. ...

(Although the proceedings for contempt aren't themselves "criminal", the principles seem analogous; the Committee notes the allegations were serious and applied a high standard of proof.)

It seems to me the Committee effectively applied a "recklessly" (deliberate risk-taking), not "knowingly", standard by adopting the "honest attempt" language. I'm not convinced that was proper.

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Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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