R v Dougas; R v Read; R v Linke (No 4)

[2022] NSWSC 51

Supreme Court

New South Wales

Medium Neutral Citation:

R v Dougas; R v Read; R v Linke (No 4) [2022] NSWSC 51

Hearing dates:

1 February 2022

Decision date:

03 February 2022

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

Finding made

Catchwords:

CRIME — Federal offences — Conspiracy — bribing a foreign public official — elements of offence — whether crown required to identify foreign public official

STATUTORY INTERPRETATION — Extrinsic materials — Acts Interpretation Act 1901 (Cth), s 15AB — use of second reading speech — use of external report on implementation of convention

STATUTORY INTERPRETATION — Legislative history — where subsequent amendment was made to clarify interpretive question or rectify deficiency in original enactment

STATUTORY INTERPRETATION — Treaties — Convention on Combating Bribery of Foreign Public Officials in International Business Transactions

STATUTORY INTERPRETATION — Legislative purpose — Acts Interpretation Act 1901 (Cth), s 15AA — where purpose is found in Convention

STATUTORY INTERPRETATION — Extrinsic materials — Judicial interpretation — where no domestic jurisprudence — where limited international jurisprudence

Legislation Cited:

Acts Interpretation Act 1901 (Cth), ss 15AA, 15AB

Corruption of Foreign Public Officials Act (S.C. 1998 c. 34)

Crimes Act 1900 (NSW), s 193C

Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth)

Criminal Code Act 1995 (Cth), ss 11.5, 70.1, 70.2, 70.3, 141.1

Cases Cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41

Allina Pty Ltd v Federal Commission of Taxation (1991) 28 FCR 203

CIC Insurance v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2

Commonwealth Director of Public Prosecutions v Brady [2016] VSC 334; (2016) 346 FLR 1

Grain Elevators Board (Vic) v Dunmunkle Shire (1946) 73 CLR 70; [1946] HCA 13

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; [1985] HCA 48

Karigar v The Queen [2017] SCCA 385

Lin v R [2015] NSWCCA 204; (2015) 253 A Crim R 1

Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476; [2002] HCA 2

Povey v Qantas Airways Ltd (2005) 223 CLR 189; [2005] HCA 33

R v Masters; R v Richards; R v Wunderlich (1992) 26 NSWLR 450

R v Saffron (1988) 17 NSWLR 395

SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55

The Queen v A2 (2019) 269 CLR 507; [2019] HCA 35

The Queen v Holliday (2017) 260 CLR 650; [2017] HCA 35

The Queen v Karigar 2013 ONSC 5199

WGC v The Queen (2007) 233 CLR 66; [2007] HCA 58

Xue v R [2021] NSWCCA 270

Texts Cited:

Commonwealth, Parliamentary Debates, House of Representatives, 3 June 1999

Commonwealth, Parliamentary Debates, House of Representatives, 19 March 2015

Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth)

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

OECD Foreign Bribery Report - An analysis of the Crime of Bribery of Foreign Public Officials, 2014

Parliament of the Commonwealth of Australia, Joint Standing Committee on Treaties, 16th Report OECD Convention on Combating Bribery and Draft Implementing Legislation, June 1998

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:
G Craddock SC / S Flood (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

Introduction

1. Before the trial is due to begin, the parties have raised a dispute about the elements of the offence charged in the indictment. The Crown charges that Paul Dougas, Mark Read and Geoff Linke (the accused):

“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.

Contrary to sections 11.5(1) and 70.2(1) of the Criminal Code (Cth).

Law Part Codes: 41450 and 41451 [Generic Modifier Code: 51].”

2. The issue is whether the Crown is required to prove the identity (by name or office) of the public official which the payment to a “person” was intended to influence. The accused submitted that this requirement was an element of the substantive offence and therefore an element of the offence of conspiracy to commit the substantive offence. The Crown contended that it was sufficient that it prove that the person whom the accused intended to influence was a public official and that there was no need for it to identify the public official by name or office.

3. In addition to construing the statutory language, the Court is obliged, by s 15AA of the Acts Interpretation Act 1901 (Cth) to prefer an interpretation of a provision of the Act which would best achieve the purpose or object of the Act, whether or not that purpose or object is expressly stated in the Act. The Court is also entitled, in some circumstances, to take into account extrinsic material as an aid to interpretation: s 15AB of the Acts Interpretation Act. These matters will be addressed below.

4. Unless otherwise stated all references to legislation in these reasons are reference to the Criminal Code Act 1995 (Cth) (the Code).

The operative provision

5. Division 70 of the Code, entitled “Bribery of foreign public officials”, is contained in Ch 4, which is entitled “The integrity and security of the international community and foreign governments”. Section 70 is the only provision in Division 70.

6. At the time of the alleged offending, s 70.2 relevantly provided:

“Bribing a foreign public official

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

(a)  the person:

(i)  provides a benefit to another person;

... and

(b)  the benefit is not legitimately due to the other 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 ... business;

...

Note: For defences see sections 70.3 and 70.4.

(1A)  In a prosecution for an offence under subsection (1), it is not necessary to prove that business, or a business advantage, was actually obtained or retained.

Benefit that is not legitimately due

(2) For the purposes of this section, in working out if a benefit is not legitimately due to a person in a particular situation, disregard the following:

(a)  the fact that the benefit may be, or be perceived to be, customary, necessary or required in the situation;

(b)  the value of the benefit;

(c)  any official tolerance of the benefit.

Business advantage that is not legitimately due

(3) For the purposes of this section, in working out if a business advantage is not legitimately due to a person in a particular situation, disregard the following:

(a)  the fact that the business advantage may be customary, or perceived to be customary, in the situation;

(b)  the value of the business advantage;

(c)  any official tolerance of the business advantage.

...”

7. Section 70.1 of the Code defines benefit as “any advantage”. Section 70.1 defines “duty” as follows:

“duty, in relation to a foreign public official, means any authority, duty, function or power that:

(a)  is conferred on the official; or

(b)  that the official holds himself or herself out as having.”

8. The term “foreign public official” is broadly defined and extends to individuals who perform work for organisations which are, in effect, owned or controlled by foreign government bodies, foreign public enterprises or public international organisations.

9. Section 70.3 of the Code provides that it is a defence to an offence under s 70.2 where the conduct is shown by written proof to be lawful in the foreign public official’s country.

10. Although the offence is punishable as if the offence to which the conspiracy relates had been committed, the relevant conduct in the present case is the agreement that constitutes the conspiracy: s 11.5(1) of the Code.

The legislative history of Division 70

The 1999 Amendment

11. Division 70 was added to the Code by the Criminal Code Amendment (Bribery of Foreign Public Officials) Act 1999 (Cth) (the 1999 Amendment), which commenced on 17 December 1999. While the 1999 Amendment does not specifically refer to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (the Convention), the then Attorney-General, the Hon. Daryl Williams, said in his Second Reading Speech on the bill which became the 1999 Amendment:

“The purpose of the bill is ... to provide for new offences prohibiting the bribery of foreign officials ... by Australians or companies incorporated in Australia. The offences are designed to implement the OECD Convention on Combating Bribery of Foreign Officials in International Business Transactions, which is a very significant response by the international community to the problem of transnational corruption ...

The bill is very much one of the consequences of globalisation. We live in a time of unparalleled social and cultural interactions which demand that we have an international perspective in relation to our ethical and value systems as well as the conduct of business. I believe the bill and subsequent ratification of the convention will convey a message to the world and the Australian community that the parliament takes the problem of bribery seriously. There are those who believe official corruption is part of the way of life in some countries. However, it is almost always illegal and I doubt that it really reflects the true community values of the country concerned. However, where laws are not enforced for any reason, corruption will thrive.

... It is important that Australia should support the OECD's initiative to combat the bribery of foreign public officials and take a principled stand against corruption ...

There is good business sense, as much as morality, in introducing this legislation. Bribery distorts attempts at international competitive bidding, bribes themselves are non-productive and are therefore paid from profits and bribes distort trade in that contracts are not based on merit and can lead to production of poor quality goods and services. In the aid context, bribery can lead to a very poor selection of projects, and this can in turn lead to diversion of resources away from areas of greatest need.”

(Parliamentary Debates (Cth), House of Representatives, 3 June 1999, pp.6044-6045)

[Emphasis added.]

12. The Second Reading Speech can be taken into account under s 15AB(2)(f) of the Acts Interpretation Act as well as under s 15AA of the Acts Interpretation Act since it exposes the purpose of the provision. As is evident from the Second Reading Speech, the amendment was designed to implement the Convention, which came into force on 15 February 1999. The preamble to the Convention commences as follows:

“The Parties,

Considering that bribery is a widespread phenomenon in international business transactions, including trade and investment, which raises serious moral and political concerns, undermines good governance and economic development, and distorts international competitive conditions;

Considering that all countries share a responsibility to combat bribery in international business transactions; ...”

13. Article 1.1 of the Convention requires parties to criminalise offers of undue pecuniary or other advantage to a foreign public official. Article 1.2 requires parties to criminalise attempt and conspiracy to bribe a foreign public official “to the same extent” as attempt and conspiracy to bribe a local public official. Article 3.1 requires criminal penalties to be “proportionate and dissuasive” and “comparable” to that applicable to local public officials.

14. It is important to note that the Convention does not require parties to criminalise receipts of bribes by officials, this being a matter for the domestic law of signatories.

Subsequent amendment to s 70.2(1A)

15. In 2015, s 70.2(1A) was amended by the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth) (the 2015 Amendment) as follows:

“(1A)  For the purposes of paragraph (1)(c):

(a)  the first‑mentioned person does not need to intend to influence a particular foreign public official; and

(b)  business, or a business advantage, does not need to be actually obtained or retained.”

16. The 2015 Amendment, which came into force on 26 November 2015, had the effect of either confirming (as submitted by the Crown), or providing (as submitted by the accused), that the Crown did not have to prove that a defendant intended to influence a particular foreign public official.

17. The Explanatory Memorandum for the bill that became the 2015 Amendment (the 2015 Bill) said, of present relevance:

“6. Schedule 2 will amend the Criminal Code to clarify the operation of the offence of bribing a foreign public official in Division 70.2. The amendment clarifies that proof of an intention to influence a particular foreign official is not required to establish the offence.

7. Clarifying the offence will ensure that a defendant in a foreign bribery matter is not able to argue that prosecution needs to establish an intention to bribe a particular foreign official.”

18. In the Second Reading Speech to the 2015 Bill, the Minister for Justice, the Hon. Michael Keenan, said in part:

“Foreign bribery, war crimes

Certain measures in the bill are designed to ensure that Australia meets its obligations under international laws.

The bill will strengthen the [offence] of bribing a foreign public official to clarify that proof of intent to influence a particular foreign official is not required to establish the offence. This reflects Australia's obligations under the OECD Anti-Bribery Convention and sends a strong message that Australia takes a zero-tolerance approach to corruption.”

(Parliamentary Debates (Cth), House of Representatives, 19 March 2015, p.2910-2911)

[Emphasis added.]

19. As referred to in more detail below, the accused relied on the words “will strengthen” to support their contention that the 2015 Amendment had an operative effect. The Crown relied on the words “to clarify” to support its contention that the 2015 Amendment had no operative effect but was simply inserted to clarify that which was implicit in the provision before its amendment.

20. The 2015 Amendment is relevant because it was submitted on behalf of the accused that the 2015 Amendment demonstrated that Parliament appreciated that there was a deficiency in s 70 as enacted which needed to be rectified to assist the Crown to prosecute future foreign bribery charges.

21. The impetus for the 2015 Amendment cannot be established from the evidence. There are various possibilities. One possibility is that Commonwealth authorities became aware of the argument which is referred to in paragraph 7 of the Explanatory Memorandum (set out above) because it was made on behalf of accused charged with conspiracy to bribe a foreign public official. The committal proceedings in that matter took place in 2014 (prior to the 2015 Amendment). In Commonwealth Director of Public Prosecutionsv Brady [2016] VSC 334; (2016) 346 FLR 1, Hollingworth J referred at [893]-[894] to the accused having argued that the Crown was required to specify the public official whom the accused intended to influence. As this argument was not ultimately pressed, it did not need to be determined. Although the idea that Parliament scrutinises what courts say about statutes may be dubious in most cases, the comparative rarity of foreign bribery prosecutions and the international concern with the sanctioning of such offences make it less so in the present case. Indeed, Mr Boulten SC, who appeared with Mr Gullaci for the accused, Mr Read, (and whose submissions were adopted by the other accused) accepted orally that it was “almost certain that the Department or whoever it was that initiated the legislative amendments in 2015 were aware of the argument that was ventilated, although not pressed.”

22. It is also possible that the 2015 Amendment arose in response to the 2014 OECD Foreign Bribery Report - An analysis of the Crime of Bribery of Foreign Public Officials (the 2014 Report), which found that 75% of the 427 cases which had been concluded between 15 February 1999 (when the Convention came into force) and 1 June 2014 involved payments through intermediaries. The 2014 Report found that 80.11% of the total bribes recorded in the concluded cases were promised, offered or given to officials in public enterprises or State-owned or controlled enterprises. The 2014 Report noted that only 17 out of the total of 41 parties to the Convention had successfully sanctioned foreign bribery. Australia was not included in the 17 as no cases in Australia had been concluded in the 15 years to 1 June 2014.

23. It was ultimately common ground that the speculative nature of these hypotheses about the genesis of the 2015 Amendment was insufficient to provide a reliable indication whether the Parliament wished to put to rest what it regarded as a spurious argument, or one which it had not contemplated when it passed s 70 in its original form, or whether it wished to correct a deficiency in s 70 as originally enacted.

Domestic analogues

24. Section 141.1, which was introduced into the Code in 2000 (after the insertion of s 70 in 1999), is, in part, in similar terms to the original s 70 and makes it an offence to bribe a Commonwealth public official and provides that the maximum penalty for an individual is 10 years’ imprisonment or 10,000 penalty points, or both. This penalty is identical to that provided for by s 70.2. Section 11.5(1) has the same effect of making the maximum penalty the same for the conspiracy as for the substantive offence in both cases.

25. There is, however, an important difference between Division 70 and Division 141. Section 141.1(1) criminalises giving or offering a bribe and s 141.1(3) criminalises receiving a bribe. There is no corresponding provision to s 141.1(3) in Division 70. This is consistent with the concern of the Convention being to criminalise the conduct of those offering or giving bribes to foreign public officials but not the conduct of the foreign officials themselves, this being a domestic matter for the nation State which employs or engages the public official.

26. Parliament did not enact a corresponding amendment to s 141 when it enacted the 2015 Amendment.

The parties respective contentions

27. The arguments for the competing interpretations of s 70 can be briefly summarised.

The arguments in favour of the Crown’s construction

28. The Crown submitted that the purpose of creating the offence of foreign bribery was to fulfil Australia’s international obligations as a party to the Convention. It relied on the statutory injunction in s 15AA of the Acts Interpretation Act that the interpretation that would best achieve the purpose or object of the Act is to be preferred to “each other interpretation”.

29. It relied on material which can be taken into account under s 15AB(2)(c) and (d) of the Acts Interpretation Act, including the Convention itself and the Parliament of the Commonwealth of Australia, Joint Standing Committee on Treaties, 16th Report OECD Convention on Combating Bribery and Draft Implementing Legislation, June 1998 (the 16th Report).

28. In Chapter 6 of the 16th Report, the Joint Standing Committee on Treaties considered the definitions in the Bill, including the definitions of “duty” and “foreign official”. At paragraph 6.5 of the 16th Report, the Committee said:

“‘Duty’ of a foreign public official is defined to mean any duty, authority, function or power conferred on the official, or which the official holds out as having. This definition is intended to cover every situation where an official is required to make a decision in the course of her/his work.”

31. The Committee also said, at 6.11:

“The term ‘foreign public official’ is widely defined to mean a member of a legislature of the country, or anyone employed by, under contract to, appointed by or otherwise in the service of a foreign government or international organisation.”

32. The Crown submitted that there was significant discussion in the extrinsic material about the importance of intermediaries or agents in the commission of foreign bribery offences. It highlighted that such offences are commonly committed when a company engages an agent in a foreign country to identify a person who is corruptible with a view to advancing the principal’s interests by conferral of a benefit, of which the agent is the conduit. In this scenario, the company and its officers and employees may never know (or want to know) who exactly receives the benefit. The Crown argued that to require it to prove matters which are typically unknown by the principal would be to emasculate the offence and subvert the purpose of the Convention and the legislation enacted to implement it.

33. The Crown submitted that, in order to prove its case against each accused, it needed only to prove that the payment to a person was made with the intention of influencing a (in the sense of any) public official and that it was not necessary to establish the identity of the public official. While the onus of proof could, presumably more readily be discharged if the identity or office of the public official was the subject of evidence, the Crown submitted that this was a matter relevant to the mode of proof, rather than to the elements.

34. The Crown relied on R v Saffron (1988) 17 NSWLR 395 (Saffron) and R v Masters; R v Richards; R v Wunderlich (1992) 26 NSWLR 450 (Masters) in support of the proposition that the Crown could charge a conspiracy which encompassed illegal acts which were not in contemplation at the time the agreement to commit a crime was formed.

35. The Crown argued in that context that the offence was complete when the agreement was made to pay a bribe (even though no particular public official had yet been identified) as long as there was at least one overt act done in furtherance of the conspiracy. The Crown instanced the following scenarios each of which, on its construction, and none of which, on the accuseds’ construction, would amount to a criminal conspiracy:

Scenario	Agreement	Overt act
1	The foreign intermediary (IM) informs the Australian principal (P) that payments to foreign public officials (PO) will be required to win government contracts in the foreign country.	P tells IM to go ahead and identify someone and revert to P’s employee, X, for approvals for payment.
2	Ditto	P asks IM who will be susceptible to influence.
3	Ditto	IM tells P, “I know who to pay, just get me the money.”

The arguments in favour of the accuseds’ construction

36. Mr Boulten submitted that the elements of the substantive offence (foreign bribery) informed the elements of the conspiracy offence but not the other way around. While he accepted that it was not necessary that the public official be named, he contended that it was necessary that the person be identified by his or her office in order that the person’s duties and susceptibility to influence could be identified and described. Mr Boulten argued that this requirement explained why all of the domestic cases identified a relevant public official by name or office.

37. Mr Boulten contended that it would be open to the Crown, in a case where a public official could not be identified by name or office, to charge an accused with attempted foreign bribery. However, he argued that a conspiracy charge required greater precision because the gravamen of a conspiracy charge was an agreement to commit a crime and without an identifiable public official, there was no crime which could be the subject of an agreement. Mr Boulten confirmed that while a conspiracy to commit foreign bribery could be established even though some parties to the conspiracy did not know the identity of the public official who would receive the benefit of the bribe, it was nonetheless necessary for the Crown to identify the public official.

38. Mr Boulten submitted that it was significant that the offence of bribing a Commonwealth public official (s 141.1 of the Code) was not amended to add a similar provision to that inserted by the 2015 Amendment with respect to foreign bribery. He contended that the amendment to s 70.2 demonstrated an appreciation by the Commonwealth that the wording of s 70.2, as originally enacted, was likely to prove too great an impediment to a successful prosecution under that provision and that the Crown in such a case needed a dispensation, which was not warranted for cases of domestic bribery of a Commonwealth public official (who might be thought to be more easily identified and less likely to be obscured by intermediaries).

39. Mr Boulten argued that Saffron and Masters were unhelpful in the present context. He submitted that Saffron did not assist as the crime charged was conspiracy to fail to declare tax from certain venues and that there was, as he put it, “only one tax office”. He argued that Masters, too, was unhelpful, as the crime was conspiracy to cultivate cannabis and that there was a limited number of methods for cultivating cannabis. He contended that, in the present case, failure to identify the public official whom an accused intended to influence through the payment of a benefit to a “person”, either by name or office, rendered the charge so lacking in specificity that the tribunal of fact ought not be left to speculate who might have been the ultimate recipient. Thus, he submitted that if the public official could not be identified, attempt was the appropriate charge and not conspiracy.

40. Mr Clelland QC, who appeared with Mr Pararajasingham for the accused Mr Dougas, further submitted that the contemplation of the involvement of an intermediary was not peculiar to foreign bribery offences, as evident from the similar wording between ss 70.2 and 141.1. He relied on the circumstance that no corresponding amendment was made to s 141.1 when the 2015 Amendment was passed in support of the proposition that Parliament must have considered that the prosecution of foreign bribery offences needed to be made easier by dispensing with the requirement to identify the public official whom the benefit was intended to influence.

41. He argued that the 2015 Amendment reflected the realisation by the Parliament that proof of an offence under s 70.2 would be difficult if the same principles as applied to domestic bribery of a Commonwealth public official (which he contended included the identification of the public official by name or office) applied to bribery of foreign officials.

42. Mr Clelland contended that the Crown’s construction of what s 70.2 required was, in the absence of the provision added by the 2015 Amendment, “too abstract for a criminal offence carrying a maximum penalty of ten years”.

Consideration

The relevant principles

43. The relevant principles include the following:

1. text is the “surest guide to legislative intention”: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47] (Hayne, Heydon, Crennan and Kiefel JJ);

2. context is fundamental, whether or not any ambiguity has been identified: K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315 (Mason J); [1985] HCA 48 and CIC Insurance v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); [1997] HCA 2;

3. the interpretation which would best achieve the object is to be preferred to each other interpretation: s 15AA of the Acts Interpretation Act and SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at [41] (Gageler J);

4. where legislation has been enacted to fulfil Australia’s international obligations, the Court, in the case of ambiguity, should prefer a construction which accords with Australia’s obligations: Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476; [2002] HCA 2 at [29] (Gleeson CJ);

5. consideration may be given to extrinsic material (as defined): s 15AB of the Acts Interpretation Act;

6. although the ordinary rules of construction apply to penal statutes, doubt concerning an ambiguous provision can, as a last resort, be resolved in favour of an accused: The Queen v A2 (2019) 269 CLR 507; [2019] HCA 35 at [52] (Kiefel CJ and Keane J); The Queen v Holliday (2017) 260 CLR 650; [2017] HCA 35; and

7. in some cases, as in Grain Elevators Board (Vic) v Dunmunkle Shire (1946) 73 CLR 70; [1946] HCA 13, an amendment may be taken into account in construing an earlier provision but care must be taken to ensure that the amendment was not passed to remove possible doubt about the meaning or effect of the earlier provision: Allina Pty Ltd v Federal Commission of Taxation (1991) 28 FCR 203 at 212.

The application of the principles

44. When one has regard to the text of the provision (and the corresponding provision for bribery of local public officials), it is noteworthy that Parliament uses the term a public official rather than the public official or a specified public official. Thus, the legislative intention evinced is to criminalise a payment to a person (who needs to be identified – see s 70.2(b)) with the intention of influencing any public official.

45. At my request, the parties conducted extensive searches with a view to finding any decision which had addressed the present question in the context of the offence of bribery of a local public official (in the Commonwealth, in the various States and Territories of Australia and in Australia under the common law). I am grateful for the submissions that reflect that research and, in the case of the Crown, the investigation of the Commonwealth Director of Public Prosecutions’ own files and holdings. No case of bribery of a local public official where the public official has not been named has been identified. However, this feature may simply reflect the circumstance that public decision-making in Australia is more transparent, at least to Australian prosecutors, and greater forensic tools are available for the investigation of purely local crimes. Further, it can be assumed that, when investigating a suspected offence of bribing a local public official, the identity of the local public official is of pre-eminent importance, both to prosecuting authorities and to the community generally.

46. It does not follow from the invariable identification of the local public official in prosecutions for local bribery that the identification of a public official is an element of the offence, although it serves to explain why the point has not previously been argued in that context. It may also explain, assuming that thought was given to the possibility, why a corresponding amendment was not made to s 141.1.

47. Division 70 was enacted to fulfil Australia’s international obligations under the Convention. The purpose of criminalising the conduct which falls within s 70.2 is to deter Australian companies and individuals from paying benefits to persons with the intention of influencing foreign public officials and to punish those who are proved to have done so. Importantly, the conduct of the foreign official is not criminalised, as this is not the focus of the Convention, as the extrinsic material demonstrates. The conduct of the foreign public official is a matter for the law of the State which employs the official (which serves to explain why receiving a bribe is not criminalised in Division 70). A principal concern of the Convention is to ensure that the citizens and residents of signatory States do not undermine the governments and economies of other States by bribing public officials to obtain benefits, including government contracts.

48. To require the identification of a public official by name or office would make proof of the offence of foreign bribery and of conspiracy to bribe a foreign official more difficult, and, in many cases, impossible, particularly in the context of widespread use of intermediaries. It would also do little or nothing to advance the purpose identified above.

49. It is important in this context to distinguish between, on the one hand, an element of an offence (which must be proved beyond reasonable doubt); and, on the other, an evidentiary onus, mode of proof and the requirement for particulars. For example, it is not an element of the offence of murder or manslaughter that the Crown must establish the place where a deceased was killed or even the cause of death. If these matters are known, they ought be provided as particulars. The Crown must, however, prove the deceased is dead in order to prove that the accused killed the deceased. While it will be easier to prove that the deceased is dead and that the accused killed the deceased if the Crown can adduce evidence about the deceased’s body (where it was located, its condition at the time of being found, whether the accused’s DNA was found on or in the vicinity of the body), and these matters may properly be the subject of a request for particulars, these matters do not thereby become elements of the offence.

50. In the present case, there are various degrees of specificity by which the Crown can identify a public official, ranging from the name of the official, his or her position, or his or her membership of a category of person. In the last-mentioned instance, the category might be small and well-defined (such as a member of a panel responsible for awarding a Government contract), large and less well defined (an employee of a Government Department responsible for awarding Government contracts) or relatively undefined (any public official, the exercise of whose duties involved the assessment of tenders and the award of a particular government contract). As referred to above, the accused accepted that the Crown could identify the public official by position and not merely by name. However, it is difficult to see why the identification of a public official must stop with the identification of a single person or position, having regard to the terms of the provision, if the inference can otherwise be drawn that the only non-fanciful hypothesis is that a payment was made to a person with the intention of influencing a public official, even though the Crown may have no information as to the position occupied by the public official whom it was contemplated would be influenced by the bribe.

51. For example, if an Australian principal (P) engages an intermediary (IM) to identify a public official (PO) who can influence the award of a contract by a foreign State to P and makes a payment to IM for that purpose, it is difficult to accept that the offence does not become complete unless and until IM has identified the PO to whom the payment will be made. In this example, I consider that it would be open to the jury to infer that the only potential recipients of the payment would be public officials whose duties included assessing tenders or making a recommendation or decision as to the award of a contract. In these circumstances, it would be open to the jury to infer that P paid IM with the intention of influencing a public official.

52. Further, even if IM has absolutely no intention of doing anything other than pocketing the payment from P (who has made the payment believing that it will be passed on to a PO in order to get the contract), the offence of foreign bribery is complete because the payment need only be made to IM with the intention (which is P’s intention, and need not be IM’s intention) of influencing the PO. In this instance, it would make no sense to require the PO to be identified since P does not know (and does not want to know) and IM has no intention of paying the money received from P to anyone other than himself.

53. The Crown’s obligation to particularise the charge requires it to provide as much specificity on the commission of the alleged offence as is available in the circumstances of the case in order to assist the accused to understand the case to be faced at trial. The particulars which can be provided will depend on the evidence available to the Crown: WGC v The Queen (2007) 233 CLR 66; [2007] HCA 58 at [127]-[129] (Hayne and Heydon JJ). In the present case, it would appear that the Crown cannot particularise the identity of the public officials whom it alleges that the accused intended to influence. It may nonetheless be able to prove that the accused intended to influence people who were public officials and who played a role in awarding the contracts in respect of which the accuseds’ employer had lodged tenders.

54. Further, the level of specificity required of the elements of an offence will depend on the wording of the provision. For example, s 193C(1) of the Crimes Act 1900 (NSW) provides for an offence if a person deals with property, there are reasonable grounds to suspect that the property is proceeds of crime; and, at the time of the dealing, the value of the property is $100,000 or more. The argument that the Crown was required to prove the offence (or category of offences) from which the suspect property was derived was rejected in Xue v R [2021] NSWCCA 270 (N Adams J, Beech-Jones CJ at CL and R A Hulme J agreeing), which followed Lin v R [2015] NSWCCA 204 (Simpson J, R A Hulme and Bellew JJ agreeing) (2015) 253 A Crim R 1, which addressed and rejected a similar argument in relation to s 400.9 of the Code. These decisions demonstrate that recourse to general propositions relating to the level of specificity required for an indictable offence with a maximum penalty of ten years’ imprisonment is no substitute for close consideration of the statutory words. Further, these decisions are consistent with the proposition that the crime of dealing with the proceeds of crime (that is, money laundering) is to be sanctioned, irrespective of the nature of the predicate offence since the gravamen of the offence is dealing with the proceeds of a crime, not with any particular crime. In the present case, the gravamen of the offence is the bribery of a person who is a foreign public official, and does not depend on the particular office held by that person.

Decisions of other jurisdictions

55. As referred to above, there were 41 parties to the Convention. The only decision which I have been able to identify which bears, at least in part, on the current question is that of the Supreme Court of Canada in Karigar v The Queen [2017] SCCA 385, which dismissed an application by the offender, Mr Karigar, for leave to appeal. The point in that case was a different one in that the gravamen of Mr Karigar’s argument was that the Crown had to prove an agreement to which a particular public official was a party. However, I propose to consider it since international treaties should be interpreted uniformly by the courts of all the states parties, with due regard to the provisions of Australian law: Povey v Qantas Airways Ltd (2005) 223 CLR 189; [2005] HCA 33 at [25] (Gleeson CJ, Gummow, Hayne and Heydon JJ).

56. In The Queen v Karigar 2013 ONSC 5199 (Karigar), Mr Karigar was charged under s 3(b) of the Corruption of Foreign Public Officials Act (S.C. 1998 c. 34), (the Canadian Act), with offering or agreeing to give or offer bribes to officials of Air India (a State-owned enterprise) and India’s then Minister of Civil Aviation, in order to secure a major contract from Air India for the provision of facial recognition software and associated equipment. At the time, he was acting as a paid agent for Cryptometrics Canada of Ottawa, Ontario and certain related companies.

55. The offence was created by s 3 of the Canadian Act, which provided:

“Bribing a foreign public official

3 (1)    Every person commits an offence who, in order to obtain or retain an advantage in the course of business, directly or indirectly gives, offers or agrees to give or offer a loan, reward, advantage or benefit of any kind to a foreign public official or to any person for the benefit of a foreign public official

(a)    as consideration for an act or omission by the official in connection with the performance of the official’s duties or functions; or

(b)    to induce the official to use his or her position to influence any acts or decisions of the foreign state or public international organization for which the official performs duties or functions.”

58. Mr Karigar argued at trial that the Crown had failed to prove the existence of an agreement whereby a particular foreign public official had agreed to receive a bribe in order to influence the award of the proposed contract. Hackland RSJ, the trial judge, who was also the tribunal of fact, rejected the argument that proof of such an agreement was required and said:

“[29]   I also reject the accused’s submission on a policy basis. In my opinion if the word ‘agrees’ in the Act is restricted to the act of essentially two parties, ‘one to pay the bribe and one to receive the bribe’, the scope of the Act would be unduly restricted and its objectives defeated. Moreover, to require proof of the offer of or receipt of a bribe and the identity of a particular recipient would require evidence from a foreign jurisdiction, possibly putting foreign nationals at risk and would make the legislation difficult if not impossible to enforce and possibly offend international comity.”

[30]   The evidence in this case satisfies me beyond a reasonable doubt that all of the contemplated recipients of bribes, as identified in the spreadsheets and in the electronic communications between the accused and his co-conspirators, were employees of Air India or the Minister of Civil Aviation himself and as such were foreign public officials within the meaning of [the Canadian Act].

[Emphasis added.]

59. Mr Karigar’s appeal to the Court of Appeal for Ontario was dismissed. Feldman JA (with whom Pardu and Benotto JJA agreed) said at [43]:

“In s. 3, the offence is committed when a person ‘directly or indirectly gives, offers or agrees to give or offer a loan, reward, advantage or benefit of any kind to a foreign public official or to any person for the benefit of a foreign public official.’ As the appellant submits, the offence is clearly committed when a person agrees with a foreign public official to give that official a benefit. But equally clearly, the offence is not limited to that scenario. It includes both a direct and an indirect agreement to give or to offer an advantage. There is no limiting language on who must ‘agree’, prescribing the parties to the agreement. It does not say that the agreement must be with the foreign official, only that the loan, reward, advantage or benefit that is the subject of the agreement must be a loan, reward, advantage or benefit to (or for the benefit of) a public official. On the language alone, there is no basis to read in a limitation on who must be parties to an agreement.”

60. Their Honours also rejected Mr Karigar’s submission that the Crown had not proved that the targeted public officials were able to influence decision-making at [52] and said:

“… There is no merit in this submission. The evidence was clear that the appellant and the co-conspirators believed that Praful Patel and Captain Mascarenhas, officials with Air India, had that ability. The offence under s. 3 of the Act only requires proof of the agreement to bribe a foreign public official – not that the official has any particular power or authority.”

61. The point taken in the present case is a different one. In Karigar, the Crown could prove that the persons to whom bribes were to be offered were officials with Air India and there was some evidence of the particular persons to whom the bribes were to be offered. However, it does not appear that it mattered whether the officials were simply identified either as belonging to the category of officials employed by Air India or as named persons. Indeed, as far as the purpose of the crime is concerned, the actual identity of the public officials is immaterial. What is at the heart of the offence is that the persons intended to be influenced by the bribes are public officials.

62. It was argued on behalf of the accused in the present case that Hackland RSJ’s analysis was wrong in so far as it appears to rest on the proposition that the identity of the public official would necessarily require evidence from the foreign jurisdiction and that therefore the whole of Hackland RSJ’s analysis was flawed. I do not accept this submission. Although the proposition may be overstated in that there are, potentially, other ways of identifying the identity of a public official (as occurred in Karigar itself when officers of Air India were named), I do not consider this to undermine the conclusion that the identity of a foreign public official, as distinct from a person’s status as such, is not particularly germane to the gravamen of the offence.

Conclusion

63. For the reasons given above, I am not persuaded that, in a prosecution for an offence under s 70.2(1), it is necessary for the Crown to identify, by name or office, the public official whom the accused intended to influence. All that is required in this context is that the Crown establish that the accused intended to influence someone who was a foreign public official. The onus can be discharged by adducing direct evidence to establish the identity of a particular public official who was the intended recipient of the bribe or by circumstantial evidence to persuade the jury that the only available non-fanciful hypothesis is that the accused intended that the bribe influence someone who was a public official.

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Decision last updated: 20 April 2022