Chew v The Queen; Edwards v The Queen

The High Court of Australia heard appeals from the Court of Criminal Appeal of Western Australia in two cases, *Chew v The Queen* and *Edwards v The Queen*. Both appellants were convicted under section 229(4) of the Criminal Code of Western Australia, which deals with the improper use of a corporate position for personal gain. The appeals concerned the proper interpretation of the elements of this offence.

The central legal issue before the High Court was the mens rea required for an offence under section 229(4) of the Criminal Code. Specifically, the Court had to determine whether the prosecution was required to prove that the accused intended to gain an advantage, or whether it was sufficient to prove that the accused made an improper use of their position, with the advantage being a consequence of that improper use. This involved considering the relationship between the "improper use" of a position and the "gain" of an advantage, and whether these were distinct elements requiring separate proof of intention.

The Court's reasoning focused on the structure of section 229(4). It was submitted on behalf of the appellants that the offence comprises several distinct elements: that the accused was an officer or employee of a corporation, that they used their position as such, that this use was improper, and that this improper use was made in order to gain an advantage for themselves or another, or cause detriment to the company. The Court considered that the question of whether the use of position was made in order to gain a relevant advantage involved a question of subjective intention, whereas the question of whether the use of the position was improper was a descriptive or objective question. The Court noted that difficulties had arisen in distinguishing these elements, particularly as they often related to overlapping facts. The Chief Justice of the Court of Criminal Appeal in *Chew*'s case had interpreted the mens rea as requiring a deliberate act with knowledge that it was not for the company's interest but for a collateral purpose, which was less than a specific intent but still involved an intention to achieve a particular result. The High Court's ultimate decision on these matters was not detailed in the provided transcript.