R v AB; R v CD; R v EF - [2023] NSWCCA 168

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v AB; R v CD; R v EF [2023] NSWCCA 168
Hearing dates: 12 September 2022
Date of orders: 30 June 2023
Decision date: 30 June 2023
Before: Meagher JA; Harrison J; Hamill J
Decision:
Answers to the questions submitted are:
Question 1: No
Question 2: No
Question 3: No

Catchwords:
CRIME — federal offences — bribing a foreign public official — elements of offence — “obtain or retain business” — whether limited to directly obtaining or retaining business — where alternative purpose element of offence is “obtain or retain a business advantage” — whether meaning of “obtain or retain business” should be narrowed beyond ordinary meaning to allow effective application of “obtain or retain a business advantage”

Legislation Cited:
Criminal Code (Cth), ss 5.4(1), (4), 5.6(1), (2), 11.5(1), 70.2(1)
Crimes (Appeal and Review) Act 2001 (NSW), s 108(2), (5), (6)
Judiciary Act 1903 (Cth), s 68
Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, Article 1, paragraphs 1 and 3

Cases Cited:
Alqudsi v The Queen (2016) 258 CLR 203; [2016] HCA 24
Attorney-General’s Application pursuant to s 108 Crimes (Appeal and Review) Act 2001 (NSW): Re Robert Burton (a pseudonym) [2021] NSWCCA 87
Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55
Fothergill v Monarch Airlines [1981] AC 251
Mellifont v Attorney-General for the State of Queensland (1991) 173 CLR 289; [1991] HCA 53
Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1
R v Cook; ex parte Director of Public Prosecutions (Cth) [1996] 2 Qd R 283
R v Gee (2003) 212 CLR 230; [2003] HCA 12
R v Thaller and Gee (Question of Law Reserved) (2001) 79 SASR 295; [2001] SASC 14
Re Australian Industrial Relations Commission; Ex parte Australian Transport Officers Federation (1990) 171 CLR 216; [1990] HCA 52
Romeyko v Samuels (1972) 2 SASR 529
SZTAL v Minister for Immigration and Boarder Protection (2017) 262 CLR 362; [2017] HCA 34

Texts Cited:
Explanatory Memorandum, Criminal Code Amendment (Bribery of Foreign Public Officials) Bill 1999 (Cth)
Commentaries on the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions

Category: Principal judgment
Parties: Rex (Applicant)
AB (Respondent in the first proceeding below)
CD (Respondent in the second proceeding below)
EF (Respondent in the third proceeding below)
Representation:
Counsel:

P Herzfeld SC with C Tran and K Heath (Crown)
S Pararajasingham with E Beljic (Contradictor)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Arnold Bloch Liebler (Contradictor)

File Number(s): Restricted
Publication restriction: Refer to Crimes (Appeal and Review) Act 2001 (NSW), s 108(6)
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Criminal

Citation:

Restricted

Date of Decision:

Restricted

Before:

Restricted

File Number(s):

Restricted

Judgment

THE COURT: Following a trial before a judge of the Supreme Court, each…

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.

Keep reading for free

Create a free CaseChat account to read R v AB; R v CD; R v EF and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NSWCCA 168
Decision Date: 30 June 2023

CaseChat Overview and Summary

The case before the court involved three separate defendants charged with federal offences related to bribing foreign public officials. The defendants were alleged to have engaged in conduct intended to influence public officials for commercial gain. The court had to determine the meaning of certain elements of the offence, specifically the phrases "obtain or retain business" and "obtain or retain a business advantage." The defendants argued that the ordinary meaning of "obtain or retain business" should not be limited to directly obtaining or retaining business. They contended that the phrase should not be narrowed beyond its ordinary meaning to allow for the effective application of the phrase "obtain or retain a business advantage."

The court was required to decide whether the phrase "obtain or retain business" should be interpreted narrowly or broadly. The defendants' argument hinged on the contention that a narrow interpretation would not allow for the full scope of the offence to be applied effectively. The court had to consider the ordinary meaning of the phrase and whether it should be interpreted in a manner that would allow for the full scope of the offence to be applied effectively, particularly in relation to the phrase "obtain or retain a business advantage."

The court determined that the phrase "obtain or retain business" should be interpreted according to its ordinary meaning. The court found that the ordinary meaning of the phrase was broad enough to encompass the full scope of the offence. The court rejected the defendants' argument that the phrase should be narrowed to allow for the effective application of the phrase "obtain or retain a business advantage." The court found that the phrase "obtain or retain a business advantage" was a separate element of the offence and did not require a narrowing of the meaning of "obtain or retain business." The court held that the ordinary meaning of "obtain or retain business" was sufficient to allow for the effective application of the offence.

The court ordered that the defendants' appeals be dismissed, and the original convictions were upheld. The court found that the defendants' arguments regarding the interpretation of the phrase "obtain or retain business" were not persuasive and did not warrant a departure from the ordinary meaning of the phrase. The court found that the phrase "obtain or retain a business advantage" was a separate element of the offence and did not require a narrowing of the meaning of "obtain or retain business." The court held that the ordinary meaning of "obtain or retain business" was sufficient to allow for the effective application of the offence. The court found that the defendants' conduct fell within the scope of the offence as defined by the ordinary meaning of the phrase "obtain or retain business." The court found that the defendants' conduct was intended to influence public officials for commercial gain, and the phrase "obtain or retain business" was broad enough to encompass such conduct.

Orders