Herscu v The Queen

[1991] HCA 40

HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Dawson, Toohey and Gaudron JJ.

HERSCU v. THE QUEEN

(1991) 173 CLR 276

21 October 1991

Criminal Law (Q.)

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, or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, upon, or for, any person employed in the Public Service, or being the holder of any public office, or to, upon, or for, any other person, any property or benefit of any kind on account of any such act or omission on the part of the person so employed or holding such office;

is guilty of a crime ..."

4. This appeal raises only one point, namely, whether an attempt by the Minister to secure the approval of the Council to changes in the access to the shopping centre could, as a matter of law, be regarded as an act done "in the discharge of the duties of his office" as Minister for Local Government and Main Roads. The requirement that, in order to constitute an offence under sub-s.(2) of s.87, the act or omission alleged should be done or made by the holder of a public office in the discharge of the duties of his office, is imported from sub-s.(1) by the use in sub-s.(2) of the words "any such act or omission on the part of the person ... holding such office". The appellant's argument was that, because the Minister lacked any power as a matter of law to require the Council to change the conditions of the planning consent in relation to access, he could be under no duty to do so and his attempt to procure a change was not an act done in the discharge of the duties of his office as Minister.

5. Section 33(4) of The Acts Interpretation Act of 1954 (Q.) (now s.33(7)) provided that, upon publication in the Queensland Government Gazette, any notification by the Governor in Council distributing the public business amongst the several Ministerial Departments of the Government, or showing the offices placed under the control of, or the Acts administered by, each Minister of the Crown is to be judicially noticed. In 1975 the Governor in Council published such a notification headed "Administrative Arrangements". It contained the following:

"THE MINISTER FOR LOCAL GOVERNMENT AND MAIN ROADS ... is charged with the business connected with - ... Local Government Matters ... He is responsible for the supervision and control of - ... Local Government Department Main Roads Department. He administers the undermentioned Acts:- ... City of Brisbane Act City of Brisbane Town Planning Act ... Local Government Act ..."

6. It was not contested that at all relevant times Russell James Hinze was the Minister for Local Government and Main Roads. In that capacity he took an oath of office to "honestly, zealously, and impartially discharge and exercise the duties, powers, and authorities appertaining to me in the said Office". The Local Government Act of 1936 (Q.) applies to all local authorities and for most purposes the Brisbane City Council is included. However, in some areas the Brisbane City Council is governed by particular legislation such as the City of Brisbane Town Planning Act. Section 4A(1) of the Local Government Act provides for the appointment of a Director of Local Government and s.4A(2) provides that the Director shall, subject to the Minister, be charged with the administration of that Act. Under the Local Government Act various specific powers are conferred upon the Minister or the Governor in Council. In relation to the Governor in Council, it is clear that the Minister for Local Government and Main Roads bears the primary responsibility for advising the Governor upon matters within the Minister's portfolio.

7. There is no point in enunciating all of the specific powers conferred upon the Minister or Governor in Council, since it is common ground that no specific power is given to the Minister to make representations concerning the alteration of conditions attaching to a planning consent. It is sufficient to observe that the powers given to the Minister and the Governor in Council are wide-ranging. For example, the Minister may direct the Director to make inspections, investigations and inquiries in relation to any matter respecting the administration of the Local Government Act (s.4A(3)). The Governor in Council may at any time suspend or rescind any resolution or order of a local authority or prohibit the expenditure of moneys in certain circumstances (s.4(5)(i)), and may by Order in Council repeal any by-law or part of any by-law (s.4(8)). The Governor in Council may dissolve any council and appoint an administrator in its stead (s.4(9)) and the Minister may appoint an executive committee to assist such an administrator (s.4(9C)). Under s.4(2) of the City of Brisbane Town Planning Act the Governor in Council is given the power to amend the town plan for the City of Brisbane and, under sub-ss.(19) and (20), the power to reject or approve of a proposed new plan, or to alter a proposed new plan, upon the recommendation of the Minister.

8. Although these specific provisions are an indication of the breadth of the responsibilities of the Minister, they do not express the limits of the functions imposed upon him by the office which he held. He was charged with the business connected with local government matters and with the administration of the relevant legislation; he bore individual ministerial responsibility for the supervision and control of his department. For these purposes, he was clothed with general authority in addition to the powers specifically conferred by statute. As McHugh J.A. observed in G.J. Coles &Co. Ltd. v. Retail Trade Industrial Tribunal (1) (1986) 7 NSWLR 503 at p 524:

"A public office holder assumes the burdens and obligations of the office as well as its benefits. By accepting appointment to the office, he undertakes to perform all the duties associated with that office and, as long as he remains in office, he must perform all its duties: Peery v. Coffman (2) (1964) 137 SE 2d 5 at p 8; State ex rel Preissler v. Dostert (3) (1979) 260 SE 2d 279 at p 286. The duties of a public office include those lying directly within the scope of the office, 'those essential to the accomplishment of the main purpose for which the office was created and those which, although only incidental and collateral, serve to promote the accomplishment of the principal purposes': Nesbitt Fruit Products Inc v. Wallace (4) (1936) 17 F Supp 141 at p 143."

9. Whilst it is possible to point to particular statutory functions which may be regarded as imposing a duty upon the Minister, these by no means exhaust the whole of his executive or administrative responsibilities. Conferred upon him by his office were many other functions of a general as well as a particular kind. It is hardly likely that s.87 was aimed against the corrupt performance by public officials of the responsibilities of their office only where a specific statutory duty could be identified and not otherwise. There is, moreover, nothing in the section which requires it to be construed in that way. In the context of s.87 the phrase "duties of his office" may be read, as it ought to be, in the sense of "functions of his office". The words of Dixon C.J. (in the context of secrecy provisions in the Income Tax and Social Services Contribution Assessment Act 1936 (Cth)) in Canadian Pacific Tobacco Co. Ltd. v. Stapleton (5) (1952) 86 CLR 1 at p 6 are apposite:

"... I think that the words 'except in the performance of any duty as an officer' ought to receive a very wide interpretation. The word 'duty' there is not, I think, used in a sense that is confined to a legal obligation, but really would be better represented by the word 'function'. The exception governs all that is incidental to the carrying out of what is commonly called 'the duties of an officer's employment'; that is to say, the functions and proper actions which his employment authorizes." (6) See also Attorney-General v. Cooper (1974) 2 NZLR 713 at p 720; R. v. Patel (1944) AD 511 at p 519.

10. The appellant nevertheless argued that, in the context of s.87, a narrower view of the duties of the holder of a public office should be adopted. He submitted that a person is not charged with the performance of such a duty unless he is subjected to a legally binding obligation to do a particular act or make a particular omission. Such a construction would obviously give s.87 an unduly narrow operation and, as a consequence, the appellant was compelled to include the exercise of a discretion within the performance of a duty. And then, since the section would otherwise have little meaning, he was forced to include within the expression "in the discharge of the duties of his office" the purported discharge of a duty (including the exercise of a discretion) which, because it was the result of corrupt influence, could not be said to be the valid discharge of a duty of office. We think that it is apparent from the need to make these qualifications that an act of a public official, or at all events a Minister, can constitute an act "in the discharge of the duties of his office" when he performs a function which it is his to perform, whether or not it can be said that he is legally obliged to perform that function in a particular way or at all. Sometimes the same act may be performed by a private individual as well as by an office holder. In that event, it is for the jury to decide whether the act, if done by the office holder, was done in the discharge of the duties of his office. That was what the jury decided in this case.

11. In support of his argument the appellant referred to R. v. David (7) (1931) QWN 2. In that case a policeman was given a travelling rug to do away with a jar of petrol found on the accused's premises after a fire. The accused was charged under s.87 of the Queensland Criminal Code. The prosecution submitted that, whilst the policeman had no duty to get rid of the petrol, he did have a duty to retain it and the expression "in the discharge of the duties of his office" meant "in the course of his duties". Macrossan S.P.J. rejected this submission saying:

"The act referred to - the getting rid of the petrol - did not come within the proper discharge of the officer's duty. It was not the carrying out of a duty which he had. Section 87 applies to cases where the act, sought to be performed or omitted arises out of a duty already incumbent on the official - as in the granting of licenses. The chairman of a Board which grants licenses might be offered money to grant a certain license. ... That would come within s.87 - 'in the discharge of his duty.'"

In our view, R. v. David was wrongly decided and ought not to be followed. If s.87 were confined to acts or omissions within the proper discharge of the duties of office, its application would be curtailed in a way which was clearly not intended. The section is concerned with the violation or attempted violation of official duty rather than with the actual performance of official duty. Official corruption necessarily involves impropriety and it is not to be supposed that s.87 is limited to those cases where the act or omission in question would, apart from the corrupt influence, be proper. In any event, the policeman in R. v. David was clearly under a duty to preserve the evidence and his failure to do so constituted an omission within the meaning of the section.

12. In Reg. v. Hyman &French (8) (1990) 2 WAR 222 at p 228; (1990) 46 A Crim R 217 at p 223 Malcolm C.J. expressed the view that s.82 of the Western Australian Criminal Code, which was at that time the equivalent of s.87 of the Queensland Criminal Code, may have been directed only at actions which fell within a positive duty to act, there being "much to be said for the construction adopted" in R. v. David. But his Honour's remarks were clearly obiter and were not adopted by the other members of the Court. A new s.82 has since been substituted which reads: "Any public officer who obtains, or who seeks or agrees to receive, a bribe, and any person who gives, or who offers or promises to give, a bribe to a public officer, is guilty of a crime and is liable to imprisonment for 7 years" (9) Criminal Law Amendment Act 1988 (W.A.) s. 16.

13. There was no error involved in the case being left to the jury on the basis that an attempt by the Minister to have the Council review a planning decision could constitute an act done in the discharge of the duties of his office. There was, of course, evidence of an actual attempt on the part of the Minister to have the Council review its decision, but the offence lay not in this act but in the provision of a benefit to the Minister "on account of" such an act.

14. The Council was the creature of the legislation which the Minister was charged with administering. He had general responsibility for business connected with local government matters and was responsible for the Local Government Department. Those responsibilities imposed upon the Minister the function of supervising generally the activities of local government authorities and conferred upon him a wide discretion in the performance of that function. It is a proper use of language also to describe that function as a duty. It was, we think, within the scope of that duty for the Minister, in his capacity as Minister, to seek to influence an individual authority in reaching a decision upon a local government matter and, in particular, to persuade an authority to review a planning decision. Such a discretion was a necessary accompaniment of the more drastic powers which the Minister had under the relevant legislation in relation to local authorities. In the exercise of his duty the Minister was under an obligation to act honestly and it was for the purpose of ensuring that a public official should so act, and not sacrifice duty for gain, that the offences found in s.87 were created.

15. The appellant's contention was that the trial judge ought to have ruled as a matter of law that any attempt by the Minister to secure the approval of the Council to changes in the access to the Sunny Park Shopping Centre could not amount to an act done in the discharge of the duties of his office and that the trial judge should have directed a verdict of acquittal. For the reasons which we have given, it would have been wrong of the trial judge to have adopted that course. It was in the end for the jury to determine whether the sums of money alleged to have been paid were corruptly paid on account of the Minister acting in the discharge of the duties of his office.

16. The grounds of appeal raised several matters in respect of which the trial judge was said to have misdirected the jury. Those grounds formed no part of the application for special leave to appeal nor were they pursued in argument before us. Having rejected the submissions which were put on behalf of the appellant, we think that the appeal ought to be dismissed.

BRENNAN J. Hersfield Developments Corporation Pty. Ltd., a company controlled by the appellant, was the developer of the Sunny Park Shopping Centre in Sunnybank, a suburb of Brisbane. The vehicular and pedestrian access which had been approved for the site was unsatisfactory and the appellant wished to obtain an amendment of the conditions applicable to development approval to allow for improved access. The power to amend conditions applicable to development approval was vested in the Brisbane City Council, the planning authority, by s.22AA of The City of Brisbane Town Planning Act of 1964-1983 (Q.). The Council had delegated its power to a Board consisting of officers of the Council pursuant to s.39B of The City of Brisbane Act of 1924-1982 (Q.). The Minister administering these Acts together with The Local Government Act of 1936-1981 (Q.) and The Main Roads Act of 1920-1983 (Q.) was the Minister for Local Government and Main Roads. In the months of November and December 1983, the Hon. Russell James Hinze held that portfolio in the Queensland Government. He had the ministerial responsibility for supervision and control of the Local Government Department and the Main Roads Department.

2. An indictment was presented before the District Court of Queensland charging the appellant with corruptly paying two amounts of $50,000 each in November and December 1983 through his solicitors to a company which acted as an agent for or nominee of Hinze on account of Hinze's "attempting to ensure that the Brisbane City Council approved changes proposed by Hersfield Developments Corporation Pty. Ltd. in pedestrian and vehicular access at the Sunny Park Shopping Centre". The evidence adduced at the trial showed that Hinze gave instructions to the Commissioner of Main Roads that the Department should investigate the matter of access to the Sunny Park Shopping Centre, that Council views should be taken into account but that some outcome to the benefit of Hersfield Developments in relation to access was to result. Hinze had the Commissioner of Main Roads write to the Council in the following terms on 19 December 1983:
"The Honourable R.J. Hinze, M.L.A., Minister for Local
Government, Main Roads and Racing has been receiving representations for some time from Hersfield Developments Corporation Pty. Ltd. concerning certain aspects of the Sunny Park Shopping Centre, Sunnybank. The matters of concern can be summarised as:- 1. Access from Mains Road should be modified to provide an

approach to the centre's main car park as well as the parking area it already serves.

2. Boundary fencing now erected inhibits pedestrian access. 3. Access from McCullough Street should be modified to provide for right turning traffic by means of a median break.

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 the McCullough Street access might be reviewed. I would be pleased if you would carry out the reviews suggested by the Minister and advise him of the outcome in due course."

3. The appellant was convicted on two counts of official corruption under s.87(2) of The Criminal Code (Q.). Section 87 reads as follows: " 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, or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, upon, or for, any person employed in the Public Service, or being the holder of any public office, or to, upon, or for, any other person, any property or benefit of any kind on account of any such act or omission on the part of the person so employed or holding such office;

is guilty of a crime, and is liable to imprisonment for seven years, and to be fined at the discretion of the Court."

The question raised on appeal is whether the two payments made by the appellant were made "on account of any thing already done ... or to be afterwards done" by Hinze "in the discharge of the duties of his office".

4. Neither Hinze nor his Department had power to amend the conditions relating to access to the Shopping Centre; that power was reposed in the Council or its delegate. Hinze thus had no statutory duty either to amend or to consider an application for amendment to the conditions applicable to the development approval. The absence of any such duty founds a submission by the appellant that the offences charged were not established. It is submitted that the phrase "duties of his office" in s.87 refers only to duties imposed by law by virtue of the particular office held. On this argument, when s.87 refers to "being charged with the performance of any duty", it refers to a legal liability to perform a particular duty. No such duty was established in this case. I am unable to accept so narrow an interpretation of s.87. It is the leading Code provision dealing with official corruption, a social evil which might occur not only when the holder of a public office is given a benefit on account of doing what he is legally bound to do but also when the holder of a public office is given a benefit on account of his using the influence of his office to secure an object (though it lies in the power of others to effect the object sought) or on account of his exercising a discretion vested in him to secure an object. Indeed, official corruption is less likely to occur and is likely to be less insidious in relation to the performance of a duty which a public officer is obliged to perform than in relation to the use of influence or the exercise of a discretion. It would be absurd to interpret s.87 as applicable only to a case where a bribe was paid on account of a public officer doing what he is legally bound to do or on account of his abstaining from doing what he is legally bound not to do. The scope of s.87 can hardly be limited to the giving of a benefit to a public officer to induce him to act in accordance with his legal duty (10) See Attorney-General of Hong Kong v. Ip Chiu (1980) AC 663, where such a payment was thouight to fall outside the scope of a similar offence.

5. In ordinary speech, "the discharge of the duties" of the holder of a public office connotes far more than performance of duties which the holder of the office is legally bound to perform: rather the term connotes the performance of the functions of that office. The functions of an office consist in the things done or omitted which are done or omitted in an official capacity. The phrase "being charged with the performance of any duty" thus means no more than being responsible for performing the functions of the public office. That phrase distinguishes the holder of a merely honorific public office from the holder of a public office responsible for the performance of official functions. A broad interpretation of s.87 is better adapted to effect its purpose than a narrow interpretation. When the office is such that the holder wields influence or is in a position to wield influence in matters of a particular kind, the wielding of influence in a matter of that kind is a discharge of the duties of the office. Such a wielding of influence is something done in an official capacity.

6. The Minister administering the City of Brisbane Act under which the Council operates and the City of Brisbane Town Planning Act which confers power on the Council to amend the conditions applicable to a development approval might be expected to have considerable influence on the Council's consideration of an application to amend conditions. As Judge Shanahan, the learned trial judge, put to the jury in the course of his summing up:
" You look at the reality of the situation, members of
the jury. Does a local authority ignore a letter from the Minister for Local Government? ... if a developer or a ratepayer goes to the Minister with a problem and asks him to intervene, to help in the area of his responsibility, would the Minister be acting in the discharge of the duties with which he is charged by virtue of his being the Minister if he does something about that?" Sometimes the Minister's influence might be properly wielded - where, for example, considerations affecting main roads are relevant to planning issues - but there are opportunities for improperly influencing Council decisions.

7. The jury were entitled to find - indeed, they could hardly have refused to find - that the steps taken by Hinze to secure an amendment by the Council of the conditions relating to access to the Shopping Centre was an exercise by him of influence he possessed by reason of his holding the office of Minister of Local Government and Main Roads. There was no error of law affecting the summing up and there was ample evidence to support the conviction. The appeal should be dismissed.

Orders

Appeal dismissed.