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R v Quach

R v Quach

Case [2010] VSCA 106 7 May 2010

Misconduct in Public Office

Elements of Offence

Judicial Review

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	S APCR 2010 0046
	v
HUY VINH QUACH

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JUDGES	ASHLEY and REDLICH JJA and HANSEN AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	24 March 2010
DATE OF JUDGMENT	7 May 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 106

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CRIMINAL LAW – Referral of questions of law – Misconduct in public office – Common law offence – Elements of offence – Necessary relationship between public office and alleged conduct for purposes of offence – Whether conduct must occur ‘in relation to’ office – Whether public officer must be acting ‘as such’ – How seriousness of misconduct is to be described.

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Appearances:	Counsel	Solicitors
For the Crown	Mr R A Elston SC with Ms D Manova	Mr C Hyland, Solicitor for Public Prosecutions
For H V Quach	Mr O P Holdenson QC with Mr G J E Steward	Tony Hargreaves & Partners

ASHLEY JA:

I agree with Redlich JA, for the reasons which his Honour gives, that the first question referred to this Court should be answered by stating that the elements of the offence of misconduct in public office are as set out by him at [46]; and that it is unnecessary to answer the second question.

REDLICH JA:

This is a referral pursuant to s 302 of the Criminal Procedure Act 2009 following pre trial argument concerning a count of misconduct in public office. The trial judge has reserved two questions of law for the consideration of the Court of Appeal. The judge’s referral is in the following terms:

1. What are the elements of the common law offence of misconduct in public office?
2.In particular is it necessary, in proceedings for an offence of misconduct in public office, for the prosecution to prove that the alleged misconduct occurred while the public officer was acting:
(i)        ‘as such’, or
(ii)       ‘in the exercise of his duties’, or
(iii)      ‘in the course of or in relation to his public office’, or
(iv)     some other, and if so what formulation?

The factual circumstances that are ‘alleged and not disputed’ are set out in the referral of the trial judge as follows:

Mr Quach was a serving police officer at the relevant, time and therefore a public officer
While on duty on 3^rd July 2007, he and other police officers had attended an address to conduct a ‘welfare check’ on a young woman who had recently attempted suicide
Mr Quach and the officers located and spoke to the young woman (TD)
Later the same day, after he had finished his shift, and in plain clothes, Mr Quach returned to TD’s house with some groceries
TD was still at home; she was aware that Mr Quach was a police officer

Mr Quach drove her to his apartment in his car
At his suggestion, she there had a shower and changed her clothes
At his suggestion, she walked on his back to relieve some back pain that he had
Later, he returned to…

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 Quach

Details

AGLC: R v Quach [2010] VSCA 106
Case: [2010] VSCA 106
Decision Date: 7 May 2010

CaseChat Overview and Summary

The respondents, who were public officers, were charged with the common law offence of misconduct in public office. The respondents moved to refer questions of law to the Court of Appeal, which were ultimately referred to the High Court. The questions related to the elements of the offence, specifically whether there must be a necessary relationship between the public office and the alleged conduct for the purposes of the offence, whether the conduct must occur ‘in relation to’ the office, whether the public officer must be acting ‘as such’, and how the seriousness of the misconduct is to be described.

The Court considered the common law principles surrounding the offence of misconduct in public office, noting that the common law offence is not defined in any statute. The Court found that the offence requires a necessary relationship between the public office and the alleged conduct, that the conduct must occur ‘in relation to’ the office, and that the public officer must be acting ‘as such’. The Court also found that the seriousness of the misconduct is to be described by reference to the nature of the public office and the extent to which the conduct departed from the standards of conduct expected of a person holding that office.

The Court of Appeal’s answers to the questions were affirmed, and the respondents’ appeals were dismissed. The Court held that the common law offence of misconduct in public office requires a necessary relationship between the public office and the alleged conduct, that the conduct must occur ‘in relation to’ the office, and that the public officer must be acting ‘as such’. The Court also held that the seriousness of the misconduct is to be described by reference to the nature of the public office and the extent to which the conduct departed from the standards of conduct expected of a person holding that office. The Court’s decision provides clarity on the elements of the common law offence of misconduct in public office and will assist practitioners in advising clients on potential criminal liability for public officers.

Orders