On Friday 9 December Mr Murray Noone and Mr Stephen Borlase were found guilty of multiple charges of 'corruption and bribery' concerning $1.2 million in payments and other benefits between 2005 and 2013. This case confirms the New Zealand position that there is no requirement for an official to act improperly to satisfy the test for bribery and corruption under s 105 of the Crimes Act.
Mr Borlase was a Director of Projenz (2005) Limited, a supplier to Auckland Transport and Rodney District Council. Mr Noone was in senior management roles at Auckland Transport and Rodney District Council, both of which were recipients of fraudulent payments by Mr Borlase.
The charges concerned a number of payments by Mr Borlase to Mr Noone between 2005 and 2013. The case also considered payments made to a Mr George, who pleaded guilty at an earlier date and was sentenced to 10 months' home detention. Such payments encompassed unjustified consultancy fees, corporate hospitality, and extensive personal travel costs. Mr Borlase was also accused of knowingly "inflating invoices".
The defence argued that the receipt of such monies was justified as it was "consistent with industry standards".
The Court examined the legal principles underpinning the "corruption and bribery of an official" under s 105 of the Crimes Act with reference to the Supreme Court decision of Field v R  NZSC 556, which concerned the conviction of a Member of Parliament under s 103 of the Crimes Act. There, the Supreme Court confirmed that there is no requirement for an element of impropriety for an act of an official to be corrupt. It stated that, subject to a de minimus exception, "it is simply wrong for an official to accept money or like benefits in return for what has been done in an official capacity". The UK position safeguards against legislative over-reach by requiring an improper act to satisfy the test for corruption. However, Fitzgerald J held that the New Zealand position differed from the UK, and therefore rejected Mr Borlase's argument that because there was allegedly no impropriety in Mr Borlase's actions s 105(2) was not satisfied.
The High Court also held, in reliance on Field v R, that "bribery" as defined in the Crimes Act departs from its ordinary meaning in that it encompasses "value neutral" consideration. Fitzgerald J also considered that bribery payments could be made "through or via a corporate entity", emphasising that it would be unjust to enable key players in such activities to hide behind a corporate shield.
Mr Noone was found guilty on six charges of receiving bribery payments from Mr Borlase under s 105(1) of the Crimes Act. Although noting that if the civil burden of proof had been in question, the outcome would likely have differed, Mr Borlase was found not guilty of four charges relating to the "inflation" of certain invoices. He was, however, found guilty on eight charges of offering bribes to officials pursuant to s 105(2) of the Crimes Act.
Sentencing is to take place on 22 February 2017.
See the Court's decision here.