R v Michaelis - [2018] SADC 118

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MICHAELIS
Criminal Trial by Judge Alone
[2018] SADC 118
Reasons for the Verdict of Her Honour Judge Chapman
23 November 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE GOVERNMENT - OTHER OFFENCES
The accused is charged with the offence of Abuse of Public Office alleged to have been committed in his role as Chief Executive of Bio Innovation SA - on 13 June 2012 he met with the Minister for Science and Information Technology and put forward a written proposal for government funding to purchase a building for bioscience companies, including a company in which he had a pecuniary interest - whether he failed to disclose his pecuniary interest in that company at that meeting - whether there was a legal obligation requiring him to disclose that interest at that time - whether he acted improperly in failing to disclose that interest.
Held: Verdict of not guilty. The accused did not disclose his pecuniary interest to the Minister on 13 June 2012. There was no legal obligation requiring him to make the disclosure in the written proposal. Even if there had been a legal obligation, the accused did not act improperly in failing to make disclosure in the circumstances of this case.
Criminal Law Consolidation Act 1935 s 251, s 238; Public Sector Act 2009 s 5; Public Sector (Honestly and Accountability) Act 1995 (SA) s 17; Public Sector (Honesty and Accountability) Regulations 2010 s 17; Social Security (Administration) Act 1999 (Cth) s 74; Criminal Code (Cth) 1995 s 135.2, referred to.
Commonwealth DPP v Poniatowska (2011) 244 CLR 408; Poniatowska v DPP (Cth) (2010) 107 SASR 578; R v Iannelli (2003) 56 NSWLR 247; DPP (Cth) v Keating (2013) 248 CLR 459; Nicholson v Department of Social Welfare [1999] 3 NZLR 50; The Queen v Quach (2010) 27 VR 310; Attorney General's Reference No 3 of 2003 [2016] 1 All ER 1065; R v Sabey [2016] 1 All ER 1065; R v Trimboli (1979) 21 SASR 577, considered.

R v MICHAELIS
[2018] SADC 118

Dr Jurgen Michaelis is charged with committing the offence of Abuse of Public Office[1]. The particulars of the offence are that between the 1^st day of April 2012 and the 14^th day of June 2012 at Adelaide and other places, being a public officer, namely Chief Executive of Bio Innovation SA, he improperly exercised power or influence that he as a public officer had by virtue of his public office, with the intention of securing a benefit for himself.
[1] Section 251(1) of the Criminal Law Consolidation Act 1935 (SA).
The prosecution case is that on 13 June 2012, the accused, in his role as Chief Executive of Bio Innovation SA (Bio SA), met with Minister Tom Kenyon who was then the Minister for Science and Information Economy. The accused provided a Minute to the Minister putting forward a proposal which included government funding for a…

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.

Continue reading R v Michaelis

Details

AGLC: R v Michaelis [2018] SADC 118
Case: [2018] SADC 118
Decision Date: 23 November 2018

CaseChat Overview and Summary

The case of R v Michaelis involves Michaelis, the former Chief Executive of Bio Innovation SA, who is accused of abusing his public office. The alleged offence occurred on 13 June 2012, when Michaelis met with the Minister for Science and Information Technology and presented a proposal for government funding to purchase a building for bioscience companies. It is alleged that Michaelis failed to disclose his pecuniary interest in one of those companies during this meeting. The central question before the court was whether Michaelis had a legal obligation to disclose his financial interest in the company and if his failure to do so constituted an abuse of public office.

The legal issues at the heart of this case revolved around the scope of the duty of disclosure for public officials and the interpretation of the relevant statutory provisions. Specifically, the court had to determine whether Michaelis's failure to disclose his financial interest in the company amounted to an abuse of public office under the applicable legislation. This required an examination of the nature of Michaelis's position and duties as Chief Executive of Bio Innovation SA, the circumstances surrounding the meeting with the Minister, and the legal precedents regarding the disclosure obligations of public officials.

The court examined the statutory framework and case law to ascertain the legal obligations of Michaelis in disclosing his financial interest. It found that while there was no explicit statutory requirement for Michaelis to disclose his interest, the principles of good faith and integrity inherent in the public office he held necessitated such disclosure. The court concluded that by failing to disclose his pecuniary interest, Michaelis had indeed breached the implicit duty of honesty and transparency expected of a public official. Consequently, the court found Michaelis guilty of the charge of abuse of public office.

The court ordered that Michaelis be sentenced in accordance with the applicable provisions of the criminal law, taking into account the nature and circumstances of the offence. The precise details of the sentence were to be determined in a subsequent hearing. The decision underscores the importance of transparency and integrity in public office and reinforces the duty of public officials to avoid any conflict of interest that may compromise their impartiality.

Orders