Field loses Appeal Court move

Independent MP Taito Phillip Field is to head to the Supreme Court after the Court of Appeal rejected his latest legal move today.

The Appeal Court said Field could not appeal against a decision by the High Court to grant police permission to prosecute a sitting member of Parliament.

The complex ruling however included a commentary by one of the judges who said the law needed to be changed.

Field's lawyer Sitiu Simativa Perese told Fairfax Media said the decision today, which does not deal with the criminal charges but deals with process, was complex and precedent setting.

"Our instructions are to appeal this to the Supreme Court, the nation's highest court," he said. The Court of Appeal also said they were not dealing with the "rightness or wrongness" of the decision to prosecute Field but whether they had jurisdiction to deal with an appeal.

Field appeared on Monday facing 40 charges of bribery, corruption and perverting the course of justice linked to three year old claims he gave immigration favours in return for work on properties he owned in Samoa, Auckland and Wellington.

Police needed the permission of the High Court to lay the charges against Field as a sitting MP.

This was granted last month Chief High Court Justice Randerson and Field's lawyers appealed the decision by the court to give the leave.

The Court of Appeal decision out today turns on whether the High Court's grant of leave was a civil jurisdiction matter or a criminal one. In the case of a criminal matter there is no right of appeal.

The Appeal Court ruling says their short answer "is that the leave decision is inextricably linked to the criminal process". Field's lawyers argued there was a disjunct between the application for leave and the decision to prosecute.

"We consider that the distinction the appellant seeks to draw between the leave decision and the criminal process is an artificial one," the Appeal Court said.

Justices William Young and Ellen France sat on the Appeal along with Justice Robert Chambers who agreed with the other two but gave his own analysis of the application.

"I agree Mr Field's appeal must be dismissed for want of jurisdiction. I have come to that conclusion with some reluctance, as I believe he should have been able to appeal."

Under the Crimes Act the application for leave to prosecute a sitting MP was "so necessarily linked to the proposed criminal process against Mr Field that it must be regarded as an application in the criminal proceeding itself...

"I do think, however, the law needs to be changed." MPs, he said, were in a worse position than ordinary people charged under the consent of the Attorney-General.

"This is clearly not intentional: it is simply a consequence of switching the leave-granting officer from Attorney-General to Judge of the High Court, a switch made for obvious and sound reason," Justice Chambers said.

Its importance could not b e underestimated.

"Once the prosecution is under way, the member's political future is probably irretrievably damaged, whatever the jury's ultimate verdict.

"It is no answer that a "wrong" leave decision could in theory be challenged in the event the member of Parliament was convicted. In theory, of course, all 'wrong' pre-trial decisions are ultimately correctable under the broad 'miscarriage of justice' ground of appeal following conviction."

Appealing after the verdict was reached meant an MP would still have to under go the criminal process.

"It seems wrong in principle that the High Court Judge's decision cannot be challenged. He or she may have applied quite the wrong test, but nothing can be done about it.

"A member of Parliament may face a prosecution he or she should not have faced because the judge set the bar too low; conversely, the Crown or a private prosecutor may be barred from proceeding with a prosecution because the bar has been fixed too high," Justice Chambers said.

In what is now a dual track process, Field will appeal to the Supreme Court on one aspect of the case while facing criminal charges on the other.

He is due to appear in the Manukau District Court on December 12 for a pre-depositions

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