If thou dost not want our grapples, make no show above the pitch

Graeme McCready is trying to mount Len Brown's head alongside Trevor Mallard and John Banks' on his trophy wall. I think his shots might miss, this time.

Before anyone gets over-excited at the news that Graeme McCready is filing a private prosecution against Len Brown, let's just have a wee think about what is happening. 

First of all, the story about McCready's action on the stuff.co.nz website is somewhat misleading (the story on the NZ Herald website is better). According to it:

Retired Wellington accountant Graham McCready will bring a private prosecution against the second-term mayor alleging he broke the law by not declaring five free room upgrades from SkyCity for himself and his wife between November 2010 and November 2013.

That doesn't seem to be what McCready is claiming at all, and with good reason. There is no "law" that requires Brown to declare the receipt of benefits such as the hotel rooms, etc. That is a matter of internal Council rules - for which he has been censured by the Council already. So it is quite different to John Banks' case, where the alleged non-disclosure of donations from his failed mayoral campaign was (and is) a criminal matter in and of itself.

Instead, McCready is alleging that Brown received the hotel upgrades (as well as 3 free nights of accomodation) from Sky City as an inducement (or, at least, a reward) for his actions in support of the Auckland Convention Centre deal being worked out between Sky City and the Government. As such, the failure to declare the rooms really is neither here nor there - if they were in fact an inducement (or reward) for Brown's actions in support of that deal, then receiving them was a crime irrespective of whether they were declared.

(Of course, the failure to declare may be pointed to as evidence of a link between the hotel room benefits and Len Brown's actions; if they were so innocent, why didn't he tell the world about them? But it is no more than that. By the same token, declaring a benefit that was given to you as an inducement (or a reward) for your official actions doesn't wash it clean of any criminal taint. So it would be a mistake to automatically equate non-disclosure/disclosure with corrupt/not corrupt.)

All McCready has done today is file a "charging document" in the Auckland District Court under s.26 of the Criminal Procedure Act 2011; that is to say, he's put in the paperwork required to commence the prosecution. However, there's no certainty that the document will be accepted by the Court, as ss. 3 states:

A Judge may issue a direction that a charging document must not be accepted for filing if he or she considers that—

(a) the evidence provided by the proposed private prosecutor in accordance with subsection (1)(b) is insufficient to justify a trial; or

(b) the proposed prosecution is otherwise an abuse of process.

Assessing whether a Judge is likely to issue such a direction (or, instead, accept the documents for filing and start the case on its way through the court process) then requires that we look at the offence McCready is alleging Brown committed. It's contained at s.105(1) of the Crimes Act 1961:

Every official is liable to imprisonment for a term not exceeding 7 years who, whether within New Zealand or elsewhere, corruptly accepts or obtains, or agrees or offers to accept or attempts to obtain, any bribe for himself or herself or any other person in respect of any act done or omitted, or to be done or omitted, by him or her in his or her official capacity.

The elements of this offence provision were chewed over by the courts, up to and including the Supreme Court, in Phillip Field's case (there's a pdf of the Supreme Court's decision available from here). Basically, for McCready's prosecution to succeed, it will have to be shown that:

  • Brown accepted something that could amount to a bribe (the free hotel rooms and upgrades);
  • He accepted that something in respect of an act done in his official capacity (his support for the Convention Centre Deal); and
  • He did so "corruptly".

In regards the first element, the provision of hotel rooms and free upgrades could very well consitute a "bribe". There's no dispute that Brown actually got the benefit of them. And in the Phillip Field case, free work tiling and painting a house sufficed to constitute a "bribe", so by the same token the personal benefit of staying for free in a hotel's room (or, a nicer room than the one you paid for) could also form a "bribe". 

However, the second element is going to be a really, really difficult one to prove. About all that can be said about a link between the provision of rooms (and upgrades) and Len Brown's actions in support of the Convention Centre is:

(i): They occured at the same time; and

(ii): He didn't declare the benefit received on the pecuniary interests register.

That's pretty thin evidence for an asserted connection between the supply and acceptance of the hotel perks and helping Sky City out. After all, a bunch of other hotels also gave Brown free rooms and upgrades when he wasn't in a position to help their interests. So isn't the more likely explanation for Sky City's generosity simply that they liked having someone as high-profile as the Mayor patronising their establishment, especially when he did so on a regular basis?

Also, note what is missing in Brown's case that was present in Phillip Field's; evidence from the person providing the bribe as to why it was given. Once the tilers who did work on Field's house told the court that they did so because they wanted to pay Field back for his help, and that he knew that was why they were doing the work, his fate was pretty much sealed. But the chances of anyone from Sky City coming forward and saying "we were really grateful to Len Brown for his help on the Conference Centre and wanted to give him something back" are approximately zero.

Why zero? Well, under the Crimes Act, Sky City would be admitting to an offence of bribery themselves. And even if they weren't prosecuted, you can bet it would be the end of their Conference Centre deal - can you imagine National standing by the company after it admits paying-off the mayor for helping get it done? 

None of which is a complete excuse for Brown's actions, I hasten to note. Even putting himself in a position where it is even possible to ask "was there a link between his personal interests and his official actions?" was really, really dumb. And not declaring the free rooms was sloppy practice. (I'm a bit more forgiving of the upgrade issue - frankly, this is something that happens all the time to frequent guests, sometimes you don't even really know it is happening until you get into the room and see it is a nicer one than you thought you'd booked, and the "value" of such a "benefit" is notional at best.)

So for me the Mayor should be as Pompeia - above suspicion - and if he falls short of that standard then he has to wear the political flak for it. Whether that flak will bring him down is an ongoing question, one that only Auckland's councillors (and ratepayers) can really answer.

But I've also got to say, if I were a District Court Judge looking at this issue and considering whether there's sufficient evidence to go to trial on it, I'd want to see something more than a temporal connection between Brown getting the rooms and advocating for the Convention Centre deal. I'd want to see some evidence provided that can substantiate the allegation that Sky City gave the rooms because of Brown's actions. Because without such evidence, Brown may have acted in an ethically lax manner, but hardly a criminal one.

However, if it can somehow be shown that there was a linkage between Sky City providing the rooms/upgrades - let's say there's some internal Sky City memo floating around saying "we ough to comp Len Brown to keep him sweet on the deal" - and that Len Brown knew that this was why he was getting such favourable treatment, then the third element is pretty much satisfied automatically. Because it doesn't matter whether the rooms were provided to persuade Brown to act in a particular way, or to thank him for doing so; the Phillip Field case establishes that either reason is a "corrupt" one.

The only possible wiggle room might be to argue that the value of the rooms was so little that it falls beneath the threshold for criminality. The Supreme Court accepted that gifts of a de minimus nature can be given to politicians and other public actors as thanks for their official actions, otherwise (for instance) giving an MP a tie as a gift for speaking at the local Rugby Club's annual dinner would constitute a crime that could put both the giver and recipient in jail for up to seven years. Which would just be silly.

If it comes to arguing that matter in order to avoid a conviction, then Len Brown is politically toast. But for the moment, and in the absence of any other evidence emerging that links Sky City's actions to Brown's stance on the Convention Centre, I don't think it will.