Bribery is an offence – even if there is no attempt to influence

The Court of Appeal has confirmed that bribing a public official is an offence, even if there is no specific intent to influence the official’s decision-making. A corrupt payment, of itself, shows impropriety.

The decision reflects the strong stance taken in New Zealand’s anti-bribery legislation.

The case

Stephen Borlase, the managing director of engineering company Projenz Limited, was appealing his conviction for bribing Murray Noone (a former Auckland Transport manager) on the basis that the prosecution had not shown the $1.15 million in cash and other benefits provided to Noone over seven years, had been paid with the intent that Noone would act improperly to Borlase’s advantage.

The law

The relevant provision, section 105(2) of the Crimes Act 1961, states:

Every one is liable to imprisonment for a term not exceeding 7 years who corruptly gives or offers or agrees to give any bribe to any person with intent to influence any official in respect of any act or omission by him or her in his or her official capacity.

The decision

The Court denied the appeal, holding that demonstrating (by reference to a specific, express or implied request) intent to influence for an improper purpose was not required. The requirement for intention can be met if the payment is demonstrated to have been made in connection with the public official’s duties, regardless of any specific purpose. A corrupt payment, of itself, shows impropriety.

Here, both Borlase and Noone knew the payments were in connection with Noone’s duties. Both knew the payments were additional to Noone’s official remuneration, and both used sham arrangements to try and disguise them. Therefore it was implicit that Borlase had intended to influence Noone in his official capacity.

Chapman Tripp comment

The wording of s 105(2) plainly targets corrupt payments intended to influence public officials. Any other decision would have resulted in an inappropriate restriction on the scope of the offence. Both the "corrupt" and "intent to influence" elements are not difficult to prove. The Crown does not need to show the payer was acting for any improper purpose; only that there was connection between the public official’s duties, and the benefits given and received.

In essence, any payment to a public official connected to his or her official capacity will satisfy s 105(2). The purpose of the payment is irrelevant. As the Court noted, normal business people do not pay officials additionally for acting properly.

Together with the Supreme Court’s judgment in Field v R (relating to Taito Phillip Field’s acceptance of payments in kind from immigrants in connection with assistance on immigration issues), this case reiterates that the NZ courts have a low tolerance for corrupt activity in NZ.

The full Court of Appeal judgement is available here.

Our thanks to Matt Fowler for writing this Brief Counsel.

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