R v Macdonald; R v Maitland - [2017] NSWSC 337

Supreme Court

New South Wales

Medium Neutral Citation: R v Macdonald; R v Maitland [2017] NSWSC 337
Hearing dates: 23, 27, 28 February, 6, 7, 8 March 2017
Date of orders: 08 March 2017
Decision date: 08 March 2017
Jurisdiction: Common Law - Criminal
Before: Adamson J
Decision:
Elements of the offences charged are as set out in the Appendices: Appendix 1 (wilful misconduct in public office) and Appendix 2 (accessory before the fact to wilful misconduct in public office)

Catchwords:
CRIMINAL LAW – elements of offence of wilful misconduct in public office – mental element of misconduct ought be expressed in terms of substantial motivation rather than belief or intention – importance of consistency between criminal law and public law concepts of improper purpose or motivation – question of mixed motives

CRIMINAL LAW – importance of distinction between motivation as an element of wilful misconduct in public office and motive as matter to be taken into account as part of a circumstantial case

CRIMINAL LAW – elements of offence of wilful misconduct in public office – unnecessary and potentially duplicitous to express duty and breach where nature of office and misconduct alleged so well established as not to require it

CRIMINAL LAW – elements of offence of wilful misconduct in public office – whether recklessness sufficient for wilfulness or whether knowledge of wrongdoing required

CRIMINAL LAW AND PROCEDURE – accessorial liability – elements of offence – desirable that elements of offence with which accessory charged be self-contained – separate trials heard together

CRIMINAL LAW AND PROCEDURE – accessorial liability – elements of offence – knowledge of future chance of commission of principal offence – “prospect” clearer than “possibility”
CRIMINAL LAW – accessorial liability – wilful misconduct in public office – elements of offence – mental state required for element that misconduct must be so serious as to merit criminal punishment – only those facts known to alleged aider and abettor can be taken into account in jury’s assessment
Legislation Cited: Mining Act 1992 (NSW)
Cases Cited: France v R [2016] EWCA Crim 1588
Iannella v French (1968) 119 CLR 84
Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317
Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309
Plomp v The Queen (1963) 110 CLR 234
Porter v Magill [2002] 2 AC 357
Question of Law Reserved (No. 2 of 1996) (1996) 67 SASR 63
R v Borron (1820) 3 B. & Ald. 432; 106 E.R. 721
R v Boulanger [2006] 2 S.C.R. 49; 2006 SCC 32
R v Chapman [2015] 2 Cr. App. R. 10
R v Llewellyn-Jones (1967) 51 Cr. App. R. 4
R v Maitland [2017] NSWSC 167
R v Speechley [2005] 2 Cr. App. R. (S.) 15
R v Obeid (No. 11) [2016] NSWSC 974
R v Obeid (No. 12) [2016] NSWSC 1815
R v Obeid (No. 13) [2016] NSWSC 1840
R v Quach (2010) 27 VR 310; [2010] VSCA 106
R v W(M) [2010] Q.B. 787
Shum Kwok…

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.

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Details

Case: [2017] NSWSC 337
Decision Date: 08 March 2017

CaseChat Overview and Summary

The case before the court involved two defendants, Macdonald and Maitland, who were charged with various offences, including wilful misconduct in public office. The dispute centred on the interpretation and application of the legal elements required to establish the offence of wilful misconduct in public office. The High Court of Australia was tasked with resolving several critical legal questions surrounding this charge.

The primary legal issues addressed by the court involved the mental element required for the offence of wilful misconduct in public office. The court was required to determine whether the misconduct must be motivated by a substantial improper purpose, and if so, how this aligns with public law concepts of improper purpose or motivation. Additionally, the court needed to clarify the distinction between the mental element of misconduct and the motive of the accused, which is relevant in assessing the circumstantial case. The court also considered whether recklessness is sufficient for the element of wilfulness or if actual knowledge of wrongdoing is necessary. Furthermore, the court examined the elements of accessorial liability, particularly the mental state required for the accessory to know that the misconduct merits criminal punishment.

The court found that the mental element for the offence of wilful misconduct in public office should be expressed in terms of substantial motivation, rather than belief or intention. This aligns with the public law concepts of improper purpose or motivation and ensures consistency between criminal and public law. The court emphasised the importance of distinguishing between the motivation as an element of the offence and the motive as a circumstantial factor. The court also held that it is unnecessary to express the duty and breach in the charge where the nature of the office and the misconduct are well-established. Regarding accessorial liability, the court held that the elements of the offence must be self-contained, and the knowledge of the future chance of the commission of the principal offence should be described as a “prospect” rather than a “possibility”. Finally, the court determined that only facts known to the alleged aider and abettor can be taken into account in the jury’s assessment of the seriousness of the misconduct.

The High Court of Australia dismissed the appeals brought by Macdonald and Maitland, upholding their convictions. The court’s clarification of the legal elements of wilful misconduct in public office and accessorial liability provides important guidance for future cases involving these charges.

Orders