R v Dougas; R v Read; R v Linke (No 12)

[2022] NSWSC 332

Supreme Court

New South Wales

Medium Neutral Citation:

R v Dougas; R v Read; R v Linke (No 12) [2022] NSWSC 332

Hearing dates:

24 March 2022

Decision date:

24 March 2022

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

Ruling made regarding directions to be given to jury

Catchwords:

CRIME — Federal offences — Conspiracy — bribing a foreign public official — elements of offence — ‘obtain or retain business’

CRIMINAL PROCEDURE — Trial — Directions to jury — where indictment includes one of eight potential offences in provision — whether to make direction on offence provisions not in indictment — where direction made

STATUTORY INTERPRETATION — Importance of context — Consistency of operation — where broad interpretation would result in redundancy of alternate offence provision

STATUTORY INTERPRETATION — Literal meaning — Natural and ordinary meaning — where natural and ordinary meaning constrained by surrounding provisions

Legislation Cited:

Criminal Code (Cth), s 70.2

Texts Cited:

OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions

Category:

Procedural rulings

Parties:

Proceedings 2018/150442
Regina
Paul Peter Dougas (Accused)

Proceedings 2018/150387
Regina
Mark Andrew Read (Accused)

Proceedings 2018/150400
Regina
Geoffrey Kym Linke (Accused)

Representation:

Counsel:
S Flood / K Heath (Crown)
N Clelland QC / S Pararajasingham (Paul Peter Dougas)
P Boulten SC / J Gullaci (Mark Andrew Read)
I Hill QC / C Morgan (Geoffrey Kym Linke)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Arnold Bloch Leibler (Paul Peter Dougas)
Stary Norton Halphen (Mark Andrew Read)
Colin Biggers & Paisley Lawyers (Geoffrey Kym Linke)

File Number(s):

2018/150442; 2018/150387; 2018/150400

Judgment: EX TEMPORE

1. The three accused stand charged on an indictment which charges:

“Between about 1 January 2000 and about 30 June 2005 in the Republic of the Philippines, the State of New South Wales, the State of Victoria and elsewhere, did conspire with each other, Lyndsay Gordon Chapple, Mohit Kumar, Angus Brodie, Yolanda Fernandez and divers others to provide a benefit to another person, such benefit being not legitimately due to the other person, with the intention of influencing a foreign public official in the Republic of the Philippines in the exercise of the official’s duties as a foreign public official in order to obtain or retain business.”

[Emphasis added.]

2. Section 70.2 of the Criminal Code (Cth) relevantly provided, at the time of the events the subject of the indictment:

“70.2 Bribing a foreign public official

(1)   A person is guilty of an offence if:

(a)   the person:

(i)   provides a benefit to another person; or

(ii)   causes a benefit to be provided to another person; or

(iii)   offers to provide, or promises to provide, a benefit to another person; or

(iv)   causes an offer of the provision of a benefit, or a promise of the provision of a benefit, to be made to another person; and

…

(c)   the first‑mentioned person does so with the intention of influencing a foreign public official (who may be the other person) in the exercise of the official’s duties as a foreign public official in order to:

(i)   obtain or retain business; or

(ii)   obtain or retain a business advantage that is not legitimately due to the recipient, or intended recipient, of the business advantage (who may be the first‑mentioned person).

…”

3. All references to legislation in these reasons will be to the Criminal Code.

4. It is evident from the wording of the indictment that the Commonwealth Director of Public Prosecutions has elected to charge the offence under s 70.2(1)(a)(i) and s 70.2(1)(c)(i), being one of the eight permutations available under s 70.2.

5. A question has arisen as to what directions should be given to the jury concerning:

1. a conspiracy to provide a benefit within the meaning of s 70.2(1)(a)(i); and

2. the meaning of the phrase “in order to obtain or retain business” in s 70.2(1)(c)(i).

6. This question, which turns on statutory construction of s 70.2, is an important one which, if there were more time, would warrant an examination of the ways in which other nation states have implemented their obligations under the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. However, as the parties wish me to determine the question before the final address on behalf of Mr Dougas, which is due to commence tomorrow, I have decided to give reasons ex tempore. Accordingly, the reasons are necessarily briefer than they might otherwise be. Although reference will be made to principles of statutory construction, I do not propose to refer to the well established authority for such principles.

7. Mr Pararajasingham, who appears with Mr Clelland QC on behalf of Mr Dougas, has provided a draft direction (MFI 24) which seeks directions in the following terms:

“1.   The Crown case is that the agreement was ‘to provide a benefit’. You must be satisfied beyond reasonable doubt that was the subject of the agreement. The following would not amount to an agreement to provide a benefit.

(i)   To commit to make payments during the life of a project.

(ii)   To make an offer to make payments.

(iii)   To honour commitments made prior to signing a contract.

(iv)   To promise that there would be forthcoming payments.

2.   Further, the Crown case is that the agreement was to provide a benefit ‘in order to obtain or retain business’. You must be satisfied beyond reasonable doubt that was the purpose of the agreement. The following would not amount to an agreement to provide a benefit in order to obtain or retain business.

(i)   Payments for the purpose of ensuring that SKM would not be excluded from the tendering process.

(ii)   Payments for the purpose of implementing a project.

(iii)   Payments for the purpose of ensuring the job runs smoothly.

(iv)   Payments for the purpose of ensuring the client makes milestone payments.”

8. The Crown opposes the giving of either direction. It submits in relation to the proposed direction in paragraph 1 that it has a tendency to over-complicate the jury’s task and that all is required is that the jury be directed, in accordance with the express words of s 70.2(1)(a)(i) that they must be satisfied that the agreement was to provide a benefit. In respect of paragraph 2, the Crown submits it is not necessary to explain to the jury what “in order to obtain or retain business” means by reference to what it is not.

9. In relation to the first paragraph I am persuaded that it is desirable that the jury be directed broadly along the lines in paragraph 1 of MFI 24, since the charge has been brought under s 70.2(1)(a)(i) and not under any other subparagraph of s 70.2(1)(a). However, I have been persuaded by the Crown that it is preferable to use the wording in s 70.2(1)(a) when giving a direction to the jury about the distinction to be drawn between s 70.2(1)(a)(i) and (ii), (iii) and (iv).

10. Accordingly, I will direct the jury, in relation to s 70.2(1)(a)(i) as follows:

“The Crown case is that the conspiratorial agreement was to provide a benefit. You must be satisfied beyond reasonable doubt that there was such an agreement. The following would not, of themselves and without more, amount to an agreement to provide a benefit:

(i)   causing a benefit to be provided to another person;

(ii)   offering to provide or promising to provide a benefit to another person; or

(iii)   causing an offer of the provision of a benefit or a promise of the provision of a benefit to be made to another person.

Of course, if you consider that any one of (i), (ii) or (iii) is also made out, this does not mean that you cannot find that the agreement was to provide a benefit. However, you cannot find this ingredient of the offence made out unless you are satisfied that the conspiratorial agreement was actually to provide a benefit.”

11. Turning now to paragraph 2 of MFI 24, I am satisfied that having regard to the context in which the words “obtain or retain business” appear in s 70.2, it is necessary to distinguish the concept of obtaining or retaining “business” in s 70.2(1)(c)(i) from the concept of “obtain or retain a business advantage”, which is referred to in s 70.2(1)(c)(ii). The Commonwealth Parliament has made a choice to legislate separately in relation to “business advantage” and has thereby, in my view, narrowed the plain meaning of the words “obtain or retain business”, which might otherwise, but for the context provided by s 70.2(1)(c)(ii), have been thought to encompass concepts of indirectly obtaining or retaining business as well as directly obtaining or retaining business. I note that the Crown accepts that s 70.2(1)(c)(i) is mutually exclusive from s 70.2(1)(c)(ii).

12. Having regard to the legislative context in which these provisions operate, I consider that s 70.2(1)(c)(i) ought be construed as covering, and limited to, directly obtaining or retaining business; whereas s 70.2(1)(c)(ii), dealing as it does with “business advantage”, would cover business advantages which might indirectly lead to obtaining or retaining business. Paying a bribe to be awarded a contract would amount, in this context, to obtaining or retaining business, whereas paying a bribe to have one’s tender considered with others would not, although it would amount to a business advantage (albeit one to which the payer of the bribe would be entitled on submission of a compliant tender).

13. I am persuaded by Mr Pararajasingham that it is appropriate to draw that distinction in a direction to the jury which makes a reference to directly obtaining or retaining business and the indirect concept of obtaining or retaining a business advantage.

14. I consider that the introduction which precedes the examples in paragraph 2 in MFI 24 is appropriate. However, I accept the Crown’s submission that there is a degree of overlap between the concepts in (ii), (iii) and (iv) which makes it necessary to refer only to (i) and (iii).

15. In addition, I consider it to be preferable for the direction to be in general terms, rather than to include specific reference to “SKM” [Sinclair Knight Merz]. Accordingly, I will not include a reference to “SKM” in (i), but rather substitute the word “the tenderer” for “SKM” in (i).

16. The direction I propose to give to the jury on these matters is as follows:

“The Crown case is that the conspiratorial agreement was to provide a benefit ‘in order to obtain or retain business’. You must be satisfied beyond reasonable doubt that was the purpose of the agreement. In order to be satisfied of this, you must be satisfied that there was a direct connection between the provision of the benefit and the purpose of obtaining or retaining business.

The following examples would not amount to an agreement to provide a benefit in order to obtain or retain business:

(i)   payments for the purpose of ensuring that the tenderer would not be excluded from the tendering process;

(ii)   payments for the purpose of ensuring the job runs smoothly; or

(iii)   payments for a visa or tax concession.

While the payments in these three examples might have an indirect connection with the obtaining or retaining of business, this is not enough. There must be a direct connection.”

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Decision last updated: 20 April 2022