Tuesday, 31 July 2012

John Banks and the Local Electoral Act 2001

Outcome of Police investigation into electoral returns of Hon John Banks

July 26, 2012, 11:59 am
Statement from Assistant Commissioner Malcolm Burgess:
Police investigating allegations that the Hon John Banks knowingly transmitted a false electoral return have decided there is insufficient evidence to consider a prosecution for an offence under section 134(1) of the Local Electoral Act 2001.
This follows complaints about returns filed relating to donations from Sky City Casino, Mr Kim Dotcom and a radio advertising donation to the 2010 Auckland Super City mayoralty campaign of Mr Banks.
The inquiry has established the return was compiled by a campaign volunteer who assured Mr Banks it was accurate before Mr Banks signed and transmitted the return.
In terms of Section 134 (2) of the Local Electoral Act relating to transmitting a false return there is a statutory limit of six months from the time of elections when complaints must be laid. Police first received the complaint for investigation on 27 April 2012, well after the expiry of six month period. Police are therefore unable to consider charges pursuant to Section 134 (2).
Issued by:
Grant Ogilvie
Chief Media Adviser, PNHQ
04 474 9476, 027 236 9974

Were Police correct to not prosecute John Banks for an alleged breach of s134(2) of the Local Electoral Act 2001 as it was outside the 6 month time frame for prosecutions under s14 of the Summary Proceedings Act 1957?

At first blush I think Police are correct. As Miller J in observes in McVicar v District Court at Wellington; High Court, Wellington (CIV 2010-465-1834):

Summary Proceedings Act time limit for laying informations does not apply by default
[42] Mr Lithgow emphasised that under the Summary Proceedings Act an information must be laid within six months after the event. I did not understand him to argue, as a matter of construction, that because the Health and Safety in Employment Act does not fix a time limit for a private informant by reference to the event, the Summary Proceedings Act time limit must apply to such informant. He emphasised rather that the policy of the Summary Proceedings Act is that summary proceedings should be commenced within six months.
[43] The Summary Proceedings Act time limit applies to the filing of informations only where the Act creating the offence docs not provide some other period of limitation. In my opinion the Health and Safety in Employment Act does so provide. Section 54B fixes a limitation period by reference to knowledge of the event rather than its happening, so ousting s 14. Section 54C merely creates an exception to that time limit, just as s 540 does. And as noted, s 54C clearly contemplates that an information may be laid outside the period provided in s 54B. Finally, any time limit to be read into s 54C would necessarily relate not to the laying of an information, since that is within the District Court’s discretion where it enjoys jurisdiction, but the making of the application for extension. So s 14 of the Summary Proceedings Act does not supply a default rule for extension applications. This is not to deny that the Health and Safety in Employment Act values diligence in a prosecutor, as I next explain.

The Court appears to accept that s14 does provide a limitation period of 6 months for laying informations. That time runs from the date of the commission of the offence unless there is another time limit allowed elsewhere. The 6 month time limit does not operate from the date of detection unless expressly allowed in legislation, for example s338(4) of the Resource Management Act 1991:
  • 338. Offences against this Act —
  • . . .   
  • (4) Notwithstanding anything in the Summary Proceedings Act 1957, any information in respect of any offence against subsection (1), (1A), or (1B) of this section may be laid by any person at any time within 6 months after the time when the contravention giving rise to the information first became known, or should have become known, to the local authority or consent authority.

So unless the Act creating the offence expressly allows for laying an information beyond 6 months from the date of the commission of the offence, say where the legislation expressly provides you have 6 months from the point of knowledge of the offence for example,  you are out of time for laying an information.

This was the interpretation adopted by Young J in Nelson City Council v Diamond Offshore Netherlands BV - [2010] NZRMA 22 where between 7 December and 23 December 2007 the respondent committed an offence against s 338(1A) of the Resource Management Act 1991 (the Act) by dumping in the coastal marine area waste or other matter from an offshore installation (a drilling rig) without a resource consent in contravention of s 15A(1)(a) of the Act. The alleged offending arose out of a defouling operation to remove mussels and other marine organisms from the subsurface structures of the drilling rig. The District Council would or should have become aware that the defouling took place within the coastal marine area on about 27 February 2008. The information was laid on 6 August 2008, which was within six months of the date upon which the District Council (and the City Council) became aware of or should have become aware of the alleged contravention, but more than six months after the date the alleged contravention actually occurred. Young J upheld the decision of the Nelson District Court that the prosecution for a breach of the RMA was statute barred as it was out of time and s338(4) did not apply.

However, s 138 of the Local Electoral Act 2001 appears to say that where an electoral officer receives notice that an offence has been committed they have a duty to take action:
Duty to take action in respect of offences
  • (1)
    If the electoral officer at any election or poll—
    • (a)
      receives a written complaint that an offence under this Part has been committed; or
    • (b)
      believes for any other reason that an offence under this Part may have been committed,—
  • the electoral officer must report that matter to the Police together with the results of any enquiries made by the electoral officer that he or she considers appropriate.

    Subsection (1) does not prevent any person from reporting an alleged offence to the Police.

    Despite subsection (1), an electoral officer is not required to report the failure by a candidate at an election to file the return required by section 109(1) within the period prescribed in section 109, if the candidate files that return promptly after being required by the electoral officer to file the return.

So upon notice or for any other reason if an electoral officer believes an offence has been committed they must report the matter to Police together with their enquiries. That suggests that the officer has a duty to make enquiries to see if an offence has been committed. This does not appear to be statute barred. However, whether Police can lay an information in relation to the offence is a different question. Also one would assume that Police made their own enquiries.  In any event in terms of statutory construction and precedent as there is no express time extension section for bringing a prosecution outside of 6 months under the Local Electoral Act 2001, I think the ability to prosecute is time limited in the manner asserted by Police. That however does not mean that no offence was committed.

1 comment:

  1. And the letter of the law is no base line for what is right - John Banks Must Go http://www.avaaz.org/en/petition/John_Banks_Must_Go_1/