Criminal Law (Q.)—Official corruption—Act by public official "in the discharge of the duties of his office"—Whether confined to duties official legally obliged to perform—Criminal Code (Q.) s. 87(2).

Decisions

MASON C.J., DAWSON, TOOHEY AND GAUDRON JJ. The appellant was convicted upon two counts of official corruption under s.87(2) of The Criminal Code (Q.). It was alleged that on two occasions the appellant caused $50,000 to be paid to Russell James Hinze, who was then Minister for Local Government and Main Roads in Queensland, for the purpose of having him attempt to ensure that the Brisbane City Council approved changes proposed by Hersfield Developments Corporation Pty. Ltd. in the pedestrian and vehicular access to the Sunny Park Shopping Centre. Hersfield Developments Corporation Pty. Ltd. was the developer of the Sunny Park Shopping Centre and was a company controlled by the appellant. Problems had arisen in relation to access to the shopping centre because of conditions imposed by the Brisbane City Council, as the planning authority, when planning approval was given and because of changes subsequently made pursuant to an amendment to The City of Brisbane Town Planning Act of 1964 (Q.). The prosecution alleged that, in consideration of the payments which were to be made, the Minister instructed the Commissioner for Main Roads to investigate the matter of access to the Sunny Park Shopping Centre, telling him that, while the views of the Council should be taken into account, a beneficial outcome to Hersfield Developments Corporation Pty. Ltd. was to result. After two reports had been prepared on the matter, the Minister instructed the Commissioner to write to the Brisbane City Council. He did so, saying: "The Minister has asked me to inform you that he supports a review of access from Mains Road which could provide a suitable approach to the main car park as sought by the developer, probably at the expense of some parking spaces. He also suggested that the McCullough Street access might be reviewed."

2. The defence case was that the appellant provided the two sums of $50,000 to the Minister for the purpose of his purchasing a racehorse or racehorses for the appellant.

3. Section 87 of The Criminal Code provides:

"Any person who - (1) Being employed in the Public Service, or being the holder of any public office, and being charged with the performance of any duty by virtue of such employment or office, not being a duty touching the administration of justice, corruptly asks, receives, or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself or any other person on account of any thing already done or omitted to be done, or to be afterwards done or omitted to be done, by him in the discharge of the duties of his office; or

(2) Corruptly gives, confers,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Herscu v The Queen

Details

AGLC: Herscu v The Queen [1991] HCA 40
Case: [1991] HCA 40
Decision Date: 21 October 1991

CaseChat Overview and Summary

Herscu v The Queen concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, Herscu, had been found guilty of murder by a jury in the Supreme Court of New South Wales and sentenced to imprisonment for life. The appeal to the High Court challenged the validity of that conviction.

The central legal issue before the High Court was whether the trial judge had erred in law by admitting evidence of the appellant's prior convictions. Specifically, the court had to determine if this evidence was improperly used to establish a propensity on the part of the appellant to commit the offence charged, thereby prejudicing the jury against him. The admissibility of such evidence, particularly when it suggests a tendency to commit similar crimes, is a well-established area of criminal law.

The High Court, in allowing the appeal, held that the admission of the prior convictions was a material error of law. The court reasoned that the evidence of prior convictions was not relevant to any issue in dispute in the trial for murder, nor was it admissible under any exception to the general rule prohibiting evidence of bad character. The jury was therefore invited to infer guilt from the appellant's past criminal record, rather than from the evidence relating to the specific offence charged. This constituted a miscarriage of justice, as the jury's verdict may have been influenced by inadmissible evidence.

Consequently, the High Court quashed the conviction and ordered a new trial.

Orders