Jones v The Queen; Webster v The Queen

[1993] HCATrans 18

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IN THE HIGH COURT OF AUSTRALIA	•
Office of the Registry

Sydney No Sl04 of 1992

B e t w e e n -

LESLIE WILLIAM JONES

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Sydney No Sl05 of 1992

B e t w e e n -

RAYMOND FREDERICK WEBSTER

Applicant

and

THE QUEEN

Jones.L 1 11/2/93

Respondent

Applications for special leave

to appeal

BRENNAN J
DEANE J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 11 FEBRUARY 1993, AT 9.30 AM

Copyright in the High Court of Australia

MR P.J.HIDDEN, QC:  May it please the Court, I appear with

my learned	friend, MR S.J. ODGERS, for the
applicant,	Jones. (instructed by Horowitz &
Bilinsky)

MR R.O. BLANCH, QC:  May it please the Court, I appear with

my learned friend, MR T.R. HOYLE, for the Crown.

(instructed by S.E. O'Connor, Solicitor for Public

Prosecutions (New South Wales))

MR R.C. BROADHEAD:  May it please the Court, I appear for

the applicant, Webster. (instructed by Caldecott &

Williams)

BRENNAN J: Yes, Mr Hidden?

MR HIDDEN:  If the Court pleases. Your Honours, this is an

application for special leave to appeal from a

decision of the New South Wales Court of Criminal Appeal, dismissing the applicant's appeal against

his conviction on a charge of, in effect,

conspiracy to bribe. Your Honours, the evidence

against the applicant, and indeed against the

co-applicant Webster, consisted entirely of

intercepted telephone conversations, and they are

set out, or at least the relevant parts are set out,

verbatim, Your Honours, in the summing up

commencing at page 20 of the application book.

It may be necessary to take Your Honours to

some of the detail of that evidence. The Court of

Criminal Appeal itself summarized the effect of the

conversations, to some extent, we would

respectfully submit, wrongly in the application

book at pages 55 to 57. May we take it that

Your Honours have some familiarity with the

evidentiary material.

BRENNAN J: Yes, the appeal book has been read.

MR HIDDEN: Yes, thank you, Your Honours. Your Honours, the

charge was that this applicant, the co-applicant

Webster and a man called Hakim conspired to pay to
Webster, and that Webster should receive corruptly,

moneys to induce him to deflect him, in effect,

from the discharge of the duties of his office.

Now, Your Honours, the major problem which was

agitated in the appeal related to the learned trial

judge's directions on law as to the elements of the

offence, together with the question of whether

there was evidence to go to the jury and if so,

whether the verdict could be said to be unsafe and

unsatisfactory. And really the whole argument

turned upon what inferences could properly be drawn

from the intercepted telephone conversations.

Jones.L 2 11/2/93

If I could say this in a preliminary way,

Your Honours, our primary submission is, as it was

in the Court of Criminal Appeal, that from the

intercepted telephone conversations no inference

can be drawn with any comfort at all, that the most

that one can talk about are possibilities as to

what it might all mean.

McHUGH J:  Why could you not draw an inference that Webster

was on the payroll and so was Owen?

MR HIDDEN: 

Even if one did, Your Honour, for what purpose?

McHUGH J: 

They were payments that were made in secrecy,

they were very guarded in their tone, the tone of
the conversations, according to the Court of

Criminal Appeal, it was money paid to a police

officer, and there is a suggestion that Owen had

been going around shaking down the proprietors of
coffee houses.

MR HIDDEN:  Yes. To which we would respond, Your Honours,

any payments made to a police officer, whether the circumstances amount to bribery or not, are likely

to be made in secrecy for one reason or another,

and people are likely to speak about them in a

guarded fashion.	One of the possibilities here,
Your Honours - - -

BRENNAN J:  Why is that, Mr Hidden?

MR HIDDEN: Because one of the possibilities here,

Your Honours, which we submit was not dealt with at

all, was that if there were payments to Webster, it

was because it was to prevent him from acting in

some way illegally. What does appear,

Your Honours, in so far as one can say anything

appears, is that if this applicant and Hakim were

involved in making payments, it was probably as

some sort of intermediaries for coffee shop or
restaurant proprietors.	What does appear or what

could appear is that through Jones and Hakim as

intermediaries, payments were then made to Webster

because he was a police officer.

But there it ends, in our submission,

Your Honours, and one possibility which is as good

as any other is that Webster himself was in some

way a party to improper harassment of these

restaurant proprietors and that an arrangement had
been reached whereby that would be contained by

payments to Webster through the intermediary of

Jones and Hakim.

McHUGH J: That is a possibility, but the jury might have

thought that other possibilities were that there

Jones.L 3 11/2/93

was gambling going on there or prostitution or

something of that nature, so - - -

MR HIDDEN: All possibilities, Your Honour, yes.

McHUGH J:  Or illegal activity, drug sales or something.

MR HIDDEN: It is all possible, Your Honour, but not a jot

of evidence of it. All these things are possible, yes. But our submission, of course, Your Honours,

is that if payments were being made to Webster to

dissuade him - perhaps I should complete this,

Your Honours - a possible scenario is that such

payments as were being made to Webster were not

related to the duties of his office but rather to

dissuade him from some illegal behaviour directed

at the restaurant proprietors, and that Owen - - -

BRENNAN J: That is a matter of possible inference, and

where is the special leave point in that?

MR HIDDEN:  Your Honour, firstly, our submission is that in

the light of the various possibilities the jury was inadequately directed as to the elements of the law of bribery and the Court of Criminal Appeal, by

largely adopting those directions as correct,

inadequately stated the law of bribery for the

State of New South Wales, principally,

Your Honours, because it failed to distinguish

between both the trial judge and the Court of

Criminal Appeal; it failed to distinguish between

payments made to a police officer because he is a

police officer, on the one hand, and payments made

to a police officer to effect the exercise of his

functions as a police officer on the other.

If, for example, Webster and Owen were

involved in some sort of illegality against the

restaurant proprietors, their status as police

officers would make that illegality much the more

threatening than if they were not police officers,

and their status as police officers may have

induced the payments.

McHUGH J: But is that not really why it was a jury question

because the tone of the conversation and their

contents indicated a degree of friendliness between

Webster and Hakim, in particular.

MR HIDDEN:  Yes.

McHUGH J: It was not as though they felt threatened by

Webster but that there was some very friendly

arrangement whereby Webster was protecting them,

protecting them not against himself but against

others.

Jones.L 4 11/2/93

MR HIDDEN: Again a possibility, Your Honour, but an equal

possibility, we would submit, is that there was by

this stage an arrangement in place which everyone
accepted and, in particular, which the
intermediaries Jones and Hakim accepted as in

place, and Webster had to be dealt with with tact

and friendliness to preserve the existing

arrangement. Owen horns in and inflames the

situation, but an equal possibility, in our

submission.

Another possibility, Your Honours, which again

affected how the jury ought to have been directed

as to what the relevant law was - - -

McHUGH J:	Can I just interrupt for a moment.
MR HIDDEN:	Yes.

McHUGH J: After all, Jones offered to increase the payment

and Hakim said, "No, they've got enough really", or
whatever it was he said, "They don't do anything,

anyway; they do nothing."

MR HIDDEN: Yes, clearly one possible explanation of the

desire to increase the payments was to calm Owen

down because he is complicating the existing

arrangement, whatever that was. And, of course,

another possibility from the expression "Well,

they're not doing anything" is that they were in

fact being paid for - we are looking at another

scenario altogether now - they were in fact being

paid for action rather than inaction which was the

view which the Court of Criminal Appeal preferred

as an interpretation of the conversations. But if

they were being paid for action, then what action.

If, for example - perhaps we should confine

our comments to Webster, Your Honours, because it

was he who was the person said to be paid under the

count in the indictment - if, for example, Webster

were being paid to perform his duty properly,

perhaps to patrol the area appropriately, to attend

promptly if there were trouble at the restaurants,

then a very nice question arises as to whether that

is bribery and that is not an easy question to

answer and, if appropriate, we will take

Your Honours to the law on that. Much would then

depend, in our submission, or much may then depend

upon whether it was Webster who made the approach

for the payments or whether it was the restaurant

proprietors through their intermediaries who

approached Webster to encourage him to protect them

by the payment of money.

Jones.L

11/2/93

McHUGH J: 

Why could not the Court of Criminal Appeal take

the view that the Crown case was actually
strengthened by the defence?

MR HIDDEN: For this reason, Your Honours - - -

McHUGH J:  I mean, Jones said that they were giving them

food; that was what they were - - -

MR HIDDEN: Yes. Your Honours, I must say this: the real

question at the trial really, and in our submission
the real error at the trial, was that the matter

ever got to the jury, but allowing that it did,

Your Honours, in our submission what you had was

evidence suggesting that the accused were involved

in some sort of funny business. Now, the Crown

sought to say that funny business is bribery in the

strict sense of the word and nothing less and

nothing other than that.

Now, if the evidence were incapable of leading

to that inference in preference to any other, then

even if the jury rejected the explanations tendered
by the accused, they were left simply with the

proposition that there was some funny business

going on. They may well have rejected the innocent

explanations, but they were still left to decide

what incriminating explanation there might be and

it was not necessarily bribery.

Your Honours, we say that, perhaps developing

the law on the latter, to some extent - there was a

list of authorities provided to the Court, we trust

in time, Your Honours. In this Court the question

of bribery was dealt with in the R v Boston, 33 CLR

386 - perhaps it is not necessary to turn to it

immediately, Your Honours - in Herscu v Reg, (1991)

173 CLR 276, and there is a decision in the New

South Wales Court of Criminal Appeal under the

Privy Council to which we wish to turn. Well, in

fact, Your Honours, it is -

BRENNAN J:  Now, before you do that, can you direct us to

the passage in the summing up which, in your

submission, is erroneous in law?

MR HIDDEN:	Yes.
BRENNAN J:	And then you can take us from there to the consideration of that passage by the Court of
Criminal Appeal.

MR HIDDEN:  May it please the Court. Your Honours, the law

was summed up by His Honour, commencing at page 14

of the application book at line 15. Having pointed out that the object of the conspiracy was to bribe,

Jones.L 6 11/2/93

His Honour then went on to describe bribery.	He
said it:

is to give a person holding a public office
money, property, or an advantage in the sense

of a job or something of that nature, to

induce that person to act contrary to the

dictates of his office.

And it involves the concept of corruption. Now,

Your Honours, with respect, so far so good. if no advantage is taken of the offer, and we do

not argue with that, Your Honours. His Honour

said:

It does not matter that what is being sought would have happened quite legitimately anyway.

It does not matter that nothing is required at the present or that no specific dereliction of duty is in mind at the time of the offer and

acceptance of the offer, as one of the

dictates of the duty of every public official

in this state is that he only has one pay

master for the performance of his duty and
that is the Government. It does not matter if

he just receives the money to perform the duty

that he would have otherwise performed,

because to receive the money is contrary to

the dictates of his office. So if a person is

a public official and money is received to do

nothing, to turn a blind eye, it is a bribe.

It is also a bribe to receive money just to do

the job that would have been done anyway.

Because it is contrary to the dictates of the duty of the public official.

And His Honour went on to say that the Crown did

not have to:

demonstrate ..... precisely the nature ..... of

the task to be performed or not to be

performed upon receipt of the money.

Now, Your Honours, the complaint is perhaps more

inadequacy than inaccuracy. But, Your Honours, we

do submit that it is not the law or it is very

doubtful whether it is the law, that where money is

paid to a public officer to perform the duty he

should perform anyway, that is bribery, and in this

case that was as much a possibility as any other.

McHUGH J: That was not the view the Court of Criminal

Appeal took of that particular passage, because at

page 64 Their Honours said at line 8:

Jones.L 11/2/93

It can hardly have been regarded as a serious

possibility that Webster was being paid as an

inducement to added vigilance or diligence in

enforcing the law.

MR HIDDEN:  Your Honours, with respect, why not? It is as

possible as any other, it is as likely as any other
possibility that he was being paid to look after

the restaurants or coffee shops rather than to

neglect, in accordance with his duties as a police

officer.

DEANE J: But according to conversation he was being paid on

a total basis. Now, when you are talking about

police officers in relationship to businesses such

as coffee shops, to accept and offer payment on a

total basis in this community can readily be

understood as having the meaning that the jury

obviously gave to it. I mean, you might argue, and

I would doubt that counsel argued at the trial

though, that to offer and accept money to a police

officer on a total basis means merely to perform

his duty. But I think the jury would be perfectly

entitled to think that that argument bordered on

the absurd.

MR HIDDEN:  Your Honour, with respect, unless the expression

has a technical meaning in the area of corruption

of which I am unaware, I would have thought it

could have many meanings, including just periodic

payments rather than payments for specific favours.

DEANE J:  Or when it is expanded by another police officer

trying to shake down, been pulled off on the basis

that that was contrary to the agreement of payment

on a total basis, you may well have succeeded in

convincing the jury that it does not mean what it

seems to me to scream out as meaning. There is

nothing gone much wrong when the jury accepted the

obvious meaning.

MR HIDDEN:  Your Honours, another real possibility was that

payments would have been made for some sort of

extra protection, above and beyond the call of

duty, by the police.

DEANE J:  Or painting-the outside walls?

MR HIDDEN: It is almost as possible as anything else. But,

Your Honours, in so far as His Honour said, and the

Court of Criminal Appeal accepted, that payments to

a public officer to perform what is his duty in any
event is a bribe, then, in our submission, that is

not an easy question at all. Certainly,

Your Honours, in Boston, 33 CLR - - -

Jones.L 11/2/93

BRENNAN J: Again, if I can deflect you from going straight

to the authorities and take you back to the Court

of Criminal Appeal at page 62, where at line 7 it

is said:

No innocent explanation for the making of

payments to Webster was advanced by the

appellants.

And there follows a passage in which His Honour is

considering the possibilities that there might be,

and towards the end of that page he comes to the

possibility that money be paid:

so that he will not, for example, maliciously

destroy property -

et cetera.

MR HIDDEN:	Yes.
BRENNAN J:	Now, there is a reference then to

Attorney General v Ip Chiu, and then:

However, in the present case the jury were

entitled to infer.

Now, what is the error of law apparent on the face of that which, if an appeal were admitted to this

Court, this Court might set right?

MR HIDDEN: One, Your Honour, is this: even if the payments

were in some way related to Webster's performance

of his duties as a police officer, if the payments

were made to encourage him to perform correctly his duties as a police officer, in our submission there

is a strong argument that at common law that is not

a bribe.

BRENNAN J:

And that would include the payment to Webster to

ensure that Owen steps into line?

MR HIDDEN:  Your Honour, with respect, is there any evidence

at all that Webster was paid to ensure that. The

evidence suggests, if anything, that some sort of

payments were in train and Webster was asked to use

his good officers to get Owen out of the way.

BRENNAN J:  So that the innocent explanation which is

proffered is that payment may have been made to

Webster in order to ensure that both he and Owen

performed their police duties correctly?

MR HIDDEN:  Or that at least he, Webster. You see,

Your Honours, the point is this: the most you can

say is the tapes disclosed that some sort of

payments were already in force to Webster and maybe

Jones.L 9 11/2/93

to Owen, and as I apprehend it, the Crown case was

directed at whatever existing arrangement there was

at the time Owen started to make a nuisance of

himself, and I do not believe anyone has suggested

that there was any payment directed specifically to

the encouragement of Webster to get Owen out of the

way and, in our submission, Your Honours, nothing

in the evidence could remotely suggest that as an

inference. It was rather about payments which this
conversation suggested were already being made to

which the Crown case was directed, as we apprehend

it.

McHUGH J: But the fact is that Jones raised the possibility

of increasing the payments and Hakim repudiated

that suggestion and suggested there was some sort

of ongoing arrangement.

MR HIDDEN:  Yes, indeed so, Your Honour, but for what; what

was the ongoing arrangement about? In our

submission, Your Honours, that is a matter of

little more than speculation. And if one of the

possibilities was that the police were being paid

to ensure that they did their job and did not

neglect the protection to which the coffee shops

were entitled from the police, then, in our

submission, that is not a bribe at common law and

so the jury should have been told.

In fact, the learned trial judge in the Court

of Criminal Appeal proceeded from the assumption

that even that would be a bribe. Now, in our

submission, that is wrong in law and that is a

question which this Court ought examine.

McHUGH J: Supposing you had a case where the police were

paid to protect the coffee shop proprietors against

those standover men;	do you say that would not be
bribery at common law?

MR HIDDEN:  No, excepting that to protect the coffee shops

from standover men would be the proper exercise of

their police duties. Now, it is not an easy

question, Your Honours. Boston certainly suggests

that you are talking about bribery when a public

officer has a discretion to exercise and where the

free exercise of that discretion is fettered by the

promise of reward. In that situation there is

bribery and it is not to the point that the way in

which the discretion is sought to be exercised may

well be in the public interest.	Your Honours, we
accept that.

DEANE J: But suppose the police have been paid to have a

particular relationship with a particular business

on a total basis. Surely, the payment of the

police for that special treatment in the discharge

Jones.L 10 11/2/93

of their duties of office, obviously involving

preference to those premises over other premises

that have not got this relationship on a total

basis, must be bribery or a corrupt payment, on any

approach.

MR HIDDEN: If it could be characterized, Your Honour, as

fettering the exercise of the police officer's
discretion in the course of his daily duties, then

consistently with Boston that would be so. But

then another interesting question arises; much may

depend on who approaches whom to pay the money.

DEANE J: But, at the very least, say there are two coffee

shops next to one another - one is making the

payment for the relationship on a total basis and

obtaining that relationship; the other is not

making the payment. The payment is clearly a

corrupt payment and bribery.

MR HIDDEN:  It may be, Your Honour, and we would need to

know more about what was going on to

determine - - -

McHUGH J: Is not the fact of payment itself enough, because

as it was said in Boston, it operates as an

incentive for the recipient to prefer the interests
of the paymaster regardless of the public interest

or regardless of the interest of other law-abiding

citizens.

MR HIDDEN: Yes, Your Honour, always assuming that you could

infer that the payments spoken of in this case

related to the duties of Webster as a police

officer at all, which we would say you cannot, or

you cannot in preference to any other inference.

McHUGH J:  I must say, speaking for myself, that is the

weakest of your submissions, Mr Hidden.

MR HIDDEN: But, Your Honours, the other question which

arises even if that be so, is Boston, of course,

deal with a situation where the approach was made
to the member of Parliament and the offer made, and

it may well be that in a police officer situation

where a civilian approaches a police officer and

says, "Do the right thing by me as a police officer

and I'll pay you X a month", there may consistently

with Boston be a situation of bribery there.

What would the situation be if it is the police officer who approached the citizen and says,

"If you want me to do my job I want X dollars a

month" and the citizens pays it. In our

submission, Your Honours, that is a significantly

different situation and different from Boston, and

it may well be that in that situation the old

Jones.L 11 11/2/93

common law offence of extortion as a public officer

is still alive. It has fallen into disuse and has

been abolished in England, but that is really what extortion as a public officer was, as we apprehend

it, and that was at common law a different offence

from bribery.

BRENNAN J:  And what if there is a conspiracy to meet an

extortionate demand?

MR HIDDEN: That would be an unlawful conspiracy, but it is

not the one charged here. That would involve quite a different object of the conspiracy and it was not

the one alleged here. And given that all these

inferences are open, Your Honours, the jury should

have been told that, and if that is the inference

they preferred then this charge was not made out,

or the charge as laid and argued was not made out.

Your Honours, the other matter raised by this

application, in our submission, quite apart from

what is the law of bribery, is this: assuming that

the law were correctly stated by the Court of

Criminal Appeal, the question is whether the appeal

should none the less have been allowed on the

basis, at least, that the verdict was unsafe.

Now, Your Honours, this Court has, of course,

dealt with the principles governing the unsafe and

unsatisfactory ground in a number of decisions,

particularly recent ones. In Chidiac the question
was the credibility of witnesses; in Morris the

question was the weight of confessional material;

Chamberlain was a truly circumstantial case but a

case in which there was a large body of evidence,
much of it in dispute, but if the disputed evidence
had been accepted as the Crown presented it, there

was the powerful inference of guilt.

What one has here, Your Honours, is an unusual

case where the Crown evidence is in a very small

compass and is entirely undisputed, and the only

question which arose was: could you draw the

inference of guilt from that uncontested material.

Now, Your Honours, in our submission, it may

be that the Court was dealing with some such

situation in Plomp, but it is not entirely clear.

In our submission, this Court has not dealt with the question of how an appellate court should

approach an assertion that a verdict is unsafe in

this situation where the question of guilty or not

guilty is entirely a matter of whether an inference

can be drawn to the requisite standard of proof

from an admitted set of facts.

Jones.L 12 11/2/93

McHUGH J:  I must say that seems to me that this is the one

case where unsafe and unsatisfactory has nothing to

do with it. Once the case gets to the jury you

cannot say in a case like this that the verdict is

unsafe and unsatisfactory. It cannot get to the jury unless it is reasonably open to the jury to find on the evidence, and there is no questions of

credibility; there is no question of counter

evidence.

MR HIDDEN:  Your Honour, I must say it is not squarely

raised in the material, but it might also be said

of this case that it also raises the question of

what is the proper test for whether a verdict ought

to be directed where the Crown seeks the jury to

draw an inference from undisputed facts.

In Doney this Court was not really dealing with that situation. In Doney there was direct

evidence of an accomplice, and the only question

there was whether that ought to have been left to

the jury and the Court said it was a jury question,

and this case raises that issue also, and on the

question of circumstances in which a directed

verdict is appropriate, in a case such as this,

this Court has not spoken.

I should say this, Your Honours: the Court of Criminal Appeal judgment suggests at times that, in

a sense, a ground that there should have been a

directed verdict was abandoned and not pressed, and

that the case was argued purely on the basis that

their verdict was unsafe. Your Honours, I should

perhaps say that I appeared in the appeal but was

not involved in the preparation of the papers in

this Court, because if I may say so from the bar

table, Your Honours, that is simply not so. The

ground that a verdict should have been directed was

strongly argued and was primarily the matter relied

upon.

McHUGH J: Is there not a passage in the Court of Criminal

Appeal judgment where they say, it can be seen with

hindsight, having regard to your defence, that the

real issue in the case was whether the case should

get to the jury?

MR HIDDEN: Yes. But, Your Honours, in our submission - it

is interesting to note, for example, if I

could take Your Honours to page 63 of the

application book, after the passage to which

Your Honour Justice Brennan earlier referred me,

Their Honours say at line 5:

The content of the conversations indicates

that they were made in consideration for

inaction, rather than action of some kind.

Jones.L 13 11/2/93

The "greedy bastards" were said to be "not

doin' anything" .

Now, Your Honours, that is an example of the very

real danger in this case of leaping to conclusions.

When one looks at the conversation to which

Their Honours were there referring, set out at
page 26 of the application book, this is the third

telephone conversation of 9 April, where Jones is

complaining to Hakim about Owen shaking down the

coffee shops, and at line 5 - F, Your Honours, is

Frank Hakim - Hakim says:

You know they give him on total basis and all

that sort of thing -

whoever they are -

And he shouldn't do that.

A little later there is the reference at line 13

to:

L We could increase it a bit", says Jones,

"you know".

And Hakim says, "No, no, we don't want to

increase it - don't want to increase nothing.

Fuck 'em.

L Well, they're not doin' anything.

Your Honours, to extrapolate from that that the

purpose of the payments was to induce inaction on

the part of the police officers is, with respect,

pure speculation. If you can reach any conclusion

from that, it is more to the effect that, "We won't

increase the payments because they're not doing

what they're supposed to be doing, anyway." But

who knows what it means? It really is highly

speculative.

At the end of the day, Your Honours, in our submission, the Court of Criminal Appeal drew an

inference which it was not open to a jury to draw

beyond a reasonable doubt. It drew an inference as

to which any reasonable jury should have had a

reasonable doubt. The verdict was unsafe. If

there is any analogy, Your Honours, in decisions of

this Court, I suppose it is with the line of

authorities in civil cases such as Holloway v

McFeeters, Jones v Dunkel - they were usually

compensation to relatives cases where there no

eyewitnesses to the accident which caused the death of the plaintiff's relative. The question arose as

to whether inferences could be drawn as to the

cause of the accident from objective facts such as

Jones.L 14 11/2/93

the position in which the vehicles were found and

points of impact and the like.

This Court had a deal to say about the

distinction between speculation and proper

inference, but of course they are dealing only with

civil cases where the inference merely had to be

drawn on the balance of probabilities. But

certainly they were cases dealing with the drawing
of an inference of liability from objective facts

which were not themselves disputed.

Your Honours, this case very much raises that

question in a criminal case. In our submission,

this Court has not dealt with that question and it

falls to be dealt with. It is our respectful

submission, Your Honours, that in this case the

admitted facts gave rise to no lawful inference of
guilt of the crime charged and the case should have

been taken from the jury for that reason, but it

having been left to the jury - and so should the

Court of Criminal Appeal have said.

But if we be wrong in that, certainly this was

a case where the inference of guilt of the crime
charged - not of some other funny business, but of
the crime charged - from the undisputed facts, even
assuming that the jury rejected the accused's

explanations, could not reasonably have been drawn

beyond a reasonable doubt.	May it please the
Court.

BRENNAN J: Mr Broadhead?

MR BROADHEAD:  May it please Your Honours, the application

for special leave on behalf of the person Webster,

Your Honours would no doubt be aware that the

application is, except for the names, almost a

duplicate of the application on behalf of the

person Jones. It is not my intention to reiterate

that material which Mr Hidden has referred to, but
to take the course of adopting on behalf of Webster

that material and those arguments.

If I could just take it one step further, the

evidence that was relied upon as to the unsafe and

unsatisfactory aspect of the jury's decision, the
evidence that was relied upon by the jury to bring

a verdict of guilty in as to the indictment of

Webster bribing Owen would no doubt have been

relied upon in their mind to some extent to find

the conspiracy also proven.

The Court of Criminal Appeal was reasonably

short in	holding that that	conviction should be
quashed.	It would then be	that if the Court of
Criminal	Appeal was of the	view that there was

Jones.L 15 11/2/93

insufficient to establish the charge of Webster

bribing Owen, then one of the errors that we rely

upon that has been referred to is that it was

similar material to establish the conspiracy.

Your Honours, the other aspect that I wish to

refer Your Honours to is as to the application that

leave be granted to file the application out of

time. As Your Honours will see, the

application - - -

BRENNAN J:	Do you object to the question of time?
MR BLANCH:	No, Your Honour.

BRENNAN J: You need not trouble us with that, Mr Broadhead.

MR BROADHEAD: That completes the submissions I wish to make

on behalf of the applicant Webster, Your Honours.

MR HIDDEN:  Might we have Your Honours' leave? There is just one further matter which I neglected to put.

BRENNAN J: Yes, Mr Hidden.

MR HIDDEN: It is simply this, Your Honours: in so far as

the state of the law of conspiracy is a matter of

some uncertainty - - -

McHUGH J: Conspiracy or conspiracy to bribe?

MR HIDDEN:  I am sorry, of bribe, Your Honours, is in a

state of some uncertainty - might we hand up to

Your Honours, without going to it in any detail, a

current discussion paper of the New South Wales

Attorney-General's Department relating to official

corruption, bribery and extortion including, as it

does, a draft bill to simplify and clarify the area of the law. Commencing at page 5, there is a brief

but useful review of the common law and the

uncertainties in it relating to common law

extortion and bribery. I wonder if we might just

hand copies of those up to Your Honours.

BRENNAN J: If you want us to consider this, we are not

going to be able to do it just by looking at the

outside of a document, Mr Hidden.

MR HIDDEN:  I appreciate that, Your Honour.

DEANE J: Is there something in it that bears particularly

on the problem in this case?

MR HIDDEN: At page 6, Your Honours, there is reference to

the common law offence of extortion, which is

different from bribery and which seems to be in

effect a public officer approaching a citizen and

Jones.L 16 11/2/93

seeking remuneration in addition to that to which

he is entitled to do his duty. The report notes

that the offence has fallen into disuse in this

State and, as we have said, Your Honours, has been

abolished by statute in England, but query whether

the offence is not indeed still alive in this State. That is one of the many possibilities

raised by these telephone conversations, or the

background to them. Thereafter, Your Honours,

pages 7 and following are just a useful - - -

McHUGH J: But just reading through it very quickly and

looking at the headings and the first sentences of

paragraphs, there does not seem to be any doubts

about the offence which relate to this particular

case, does there?

MR HIDDEN:  Of bribery?

McHUGH J: Yes.

MR HIDDEN: Except, Your Honours, to this extent - - -

DEANE J: Page 11 seems to have a peripheral relevance.

MR HIDDEN:	Yes.
McHUGH J:	"The problem of the 'general bribe'."

MR HIDDEN: That is the total basis, Your Honours. Except

to this extent: the question of whether it is

bribery to offer a public officer money to do his

or her duty is discussed at page 14 of the paper.

It is noted there, Your Honours, that there is some

uncertainty in the law in that respect. There is

reference to Boston and to the South African case

of Patel.

On the other hand, Your Honours, there is

reference to Williams v Reg, a decision of the

Federal Court where Mr Justice Blackburn was of the

view that bribery at common law, as opposed to

certain statutory offences, did not extend to the

payment to an officer to do what was, in any event,

his duty. Your Honours, we have obtained copies of

Williams v Reg, which is not on our list. Might we hand that up to Your Honours. The relevant passage

is, as the report notes, at pages 372 to 374.

The report also raises, of course,

Your Honours, the question, in so far as the common

law offence of extortion by a public officer

survives, to what extent does it overlap with the

offence of bribery.

Those are the additional matters, if the Court

please.

Jones.L 17 11/2/93

BRENNAN J:  We need not trouble you, Mr Blanch.

In our opinion the Court of Criminal Appeal

arrived at the correct conclusion in these cases.

The circumstances of the cases do not provide a

suitable vehicle to raise for consideration the

elements of the offence of bribery. The

application for special leave is refused.

AT 10.15 AM THE COURT WAS ADJOURNED SINE DIE

Jones.L 18 11/2/93