Ripperger v Kelly
[2014] NSWSC 584
•16 May 2014
Supreme Court
New South Wales
Case Title: Ripperger v Kelly Medium Neutral Citation: [2014] NSWSC 584 Hearing Date(s): 17/10/2013; 7/11/2013 Decision Date: 16 May 2014 Before: Fullerton J Decision: 1. The summons is dismissed.
2. The plaintiff is to pay the defendant's costs of the appeal.Catchwords: APPEAL - appeal from Local Court - corruptly offering to give an agent a benefit as inducement or reward for doing or not doing something in relation to the affairs or business of the agent's principal - adequacy of reasons in dismissing the information - whether matter should be remitted - meaning of "agent" - purporting to be an agent - meaning of "corruptly" Legislation Cited: Crimes Act 1958 (Vic), s 175(1), s 176(2)
Crimes Act 1900 (NSW), s 249
Crimes (Appeal and Review) Act 2001 (NSW), s 59(2)(a)
Criminal Procedure Act 1986 (NSW), s 214(1)(b)Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27
Director of Public Prosecutions (NSW) v Elias [2013] NSWSC 28
Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402
Jagdeo Singh v State of Trinidad & Tobago [2006] 1 WLR 146
Jamieson v R [1988] VR 879; 34 A Crim R 308
R v Gallagher [1986] VR 219
R v Harrington (English Court of Appeal (Criminal Division), 28 September 2000, unrep)
Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449Category: Principal judgment Parties: Bernhard Ripperger (Plaintiff)
Jason Michael Kelly (Defendant)Representation - Counsel: Counsel:
M Higgins/B Baker (Plaintiff)
B Pierce (Defendant)- Solicitors: Solicitors:
Crown Solicitor's Office (Plaintiff)File Number(s): 2013/182189 Decision Under Appeal - Court / Tribunal: Local Court - Before: Stevenson LCM - Court File Number(s): 2013/526
JUDGMENT
HER HONOUR: On 12 September 2012 the defendant, Jason Michael Kelly, was served with a Court Attendance Notice alleging that on 8 March 2008 he committed an offence contrary to s 249B(2)(a) of the Crimes Act 1900 (NSW).
The particulars of the offence alleged that the defendant gave his barrister, John Hart, as agent, the sum of $12,000 to pay to a Crown prosecutor, Gary Corr, as Hart's principal, so that a prosecution of the defendant and two others (Christopher Trinder and Jeffrey Nankivell) would not proceed.
Omitting parts of s 249B of the Crimes Act which have no application to this case, the section is in the following terms:
249B Corrupt Commission or Rewards
(2) If any person corruptly gives or offers to give to any agent, or to any other person with the consent or at the request of any agent, any benefit:
(a) as an inducement or reward for or otherwise on account of the agent's:
(i) doing or not doing something, or having done or not having done something ...
(ii) ...in relation to the affairs or business of the agent's principal ...
(b) ...
the first mentioned person is liable to imprisonment for 7 years.
Section 249A defines "agent" to include:
249A Definitions
agent includes:
(a) any person employed by, or acting for or on behalf of, any other person (who in this case is referred to in this Part as the person's principal) in any capacity,
(b) any person purporting to be, or intending to become, an agent of any other person (who in this case is referred to in this Part as the person's principal) ...
In order for the prosecution to prove a breach of s 249B in the case as particularised in the Court Attendance Notice, and as supported by the statement of agreed facts tendered at the hearing in the Local Court, the following matters needed to be proved beyond reasonable doubt:
(1)the defendant "gave a benefit" (namely $12,000);
(2)the benefit was given to "an agent" (namely to Hart, a person "purporting to be an acting for or on behalf of another person" under s 249A(b), namely Corr, his principal);
(3)the benefit was given to Hart, as Corr's agent, "corruptly";
(4)the benefit was given to Hart as a reward or otherwise on account of Hart doing something in relation to Corr's business as a Crown prosecutor.
The only element not in dispute in the proceedings below was (1). Although, as the Magistrate was not satisfied of the requisite relationship between Hart (as agent) and Corr (as principal) as the second element, she was not persuaded that the benefit was given corruptly, per (3), or given to Hart for the purposes specified in (4).
The matter was heard in the Local Court sitting at the Downing Centre before Stevenson LCM. At the close of the prosecution case, the defendant's counsel submitted that on the facts as agreed the prosecution had failed to establish a prima facie case and that the information should be dismissed. Her Honour dismissed the information accompanied by short reasons delivered ex tempore. Her Honour also ordered costs in favour of the defendant pursuant to s 214(1)(b) of the Criminal Procedure Act 1986 (NSW).
By summons, the plaintiff seeks an order pursuant to s 59(2)(a) of the Crimes (Appeal and Review)Act 2001 (NSW) that the order dismissing the information be set aside as constituting an error of law and that the matter be remitted to the Local Court to be dealt with according to law.
The filed grounds relied upon by the plaintiff are as follows:
(a)The Magistrate erred in law in her construction of s 249B(2)(a) of the Crimes Act 1900; and
(b)The Magistrate erred in law in finding that John Hart was not capable of being an "agent" for Gary Corr within the definition in s 249A of the Crimes Act 1900 for the purposes of s 249B(2)(a) of the Crimes Act 1900; and
(c)The Magistrate further erred in law in failing to find that the acts proved against the defendant, prima facie, constituted the corrupt payment of a benefit to an agent contrary to s 249B(2)(a) of the Crimes Act 1900.
During the course of oral argument on the hearing of the summons the plaintiff applied for and was granted leave to amend the summons to include an additional ground of appeal as follows:
(d)The Magistrate erred in law in that the reasons for judgment delivered on 20 May 2013 in which her Honour found that the plaintiff had failed to demonstrate a prima facie case and dismissing the charge were inadequate.
The plaintiff also seeks an order that the costs order in favour of the defendant be set aside.
The defendant relied upon an amended notice of contention. He submits that even if the error identified in the plaintiff's amended grounds of appeal is made out, the decision of the Magistrate should be affirmed on the following grounds in the filed notice of contention. I have summarised the grounds to better correspond with the defendant's submissions concerning them. As will become clear, it is unnecessary that I consider all issues raised in the notice of contention. They are as follows:
(1)The terms "purporting to be" and "intending to become" an agent, for the purpose of s 249A(b), are mutually exclusive.
(2)The actus reus of "purporting to be" an agent for the purposes of s 249A(b) required the actual communication of all the material facts to the defendant sufficient to make Hart Corr's agent as a matter of law; otherwise the actus reus of the offence against s 249B(2)(a) is not made out and was not made out in this case.
(3)Even were a person in Hart's position as a solicitor, relative to Corr's position as Crown prosecutor, capable of constituting Hart as an agent for Corr for the purposes of the attribution of criminal liability to the defendant under s 249B(2), there was insufficient evidence to establish that fact in this case to a prime facie level.
(4)Since there was no evidence that Hart ever intended to become Corr's agent, even if the relationship of agent and principal were established, the defendant did not act "corruptly" for the purposes of s 249B(2) in circumstances where he merely believed (or was given to believe) that Hart (as agent) and Corr (as principal) were in a corrupt relationship.
(5)In giving the money to Hart in the belief that he would give it to Corr, the defendant did not act corruptly where he believed the payment of the money was to bribe Corr and not as a reward for Hart or otherwise on account of Hart doing something in relation to Corr's practice as Crown prosecutor.
(6)The money the defendant paid to Hart was not for Hart (as agent) to do something in relation to any affairs or business of Corr (as principal) but paid as a bribe to Corr with Hart merely acting as intermediary.
Both parties filed extensive submissions which they also addressed in lengthy oral submissions. These were supplemented by reference to the legislative history of ss 249A and 249B in this State and in other jurisdictions, and a large body of caselaw.
In dismissing the summons, and for the reasons that follow, it is unnecessary that I refer to counsel's submissions or the authorities to which they referred at length. I will, however, refer to some authorities, although for the purpose of distinguishing their application to the legal issues that arise in the particular facts of this case both raised by the appeal and the defendant's notice of contention.
The Local Court hearing
A statement of agreed facts and a folder of transcripts of lawfully intercepted telephone conversations were tendered by consent in the proceedings below. No oral evidence was called.
Briefly, the agreed facts established the following:
(a) In February 2008 the defendant, and another person, were tried and acquitted of a charge of sexual assault. Hart represented the defendant in those proceedings.
(b) On 26 February 2008, Detective Senior Constable Tina Hall, who was the informant in those proceedings, spoke with Hart outside the Wagga Wagga Court House and informed him that the police were investigating a fresh matter involving allegations of sexual assault perpetrated by the defendant and two other men, Nankivell and Trinder. Those allegations were described as the "Miss X" allegations.
(c) On 29 February 2008, Trinder withdrew $5,000 from his bank account and deposited it into the defendant's bank account.
(d) On 4 March 2008 the defendant withdrew $5,000 from his bank account.
(e) On 8 March 2008 the defendant deposited $7,000 into a TAB betting account belonging to Hart.
The prosecution relied upon a number of intercepted telephone conversations between various people including, in particular, between the defendant and Hart, as evidence of the arrangement the defendant had made with Hart in relation to the $12,000, or the defendant's understanding of that arrangement. On the prosecution case, the intercepted conversations showed that the defendant believed that the money he had given to Hart (at Hart's request) had been given to Corr (a prosecutor in the employ of the Director of Public Prosecutions) so that any charges laid by police in respect of the "Miss X" allegations would not be prosecuted.
On 18 April 2008 the defendant spoke to Hart after Trinder had advised that Constable Hall wanted to speak to him. In the course of that conversation, Hart said:
Hart: You got a phone call from Chris [Trinder]?
Kelly: Yeah, oh actually he just sent me a text saying that Tina Hall just rang him and wants to talk about the ... matter.
Hart: Ah is that the same one that we talked about or another one?
Kelly: No same one.
Hart: Ah with, because I, I, my bloke said he wouldn't do anything about that.
Kelly: Well Tina --
Hart: Leave it, leave it with me.
Kelly: Yep.
Hart: Leave it with me otherwise, it'll be straight back, don't worry about that.
Kelly: What's that?
Hart: Otherwise it'll be straight back.
Kelly: Well I'd rather not fuckin' have it get to that.
Hart: Oh (unintelligible) that'd be fuckin' right otherwise it'd be straight back, don't worry about that, they're the rules. Mate they're the rules. Mate she just fuckin' hates you mate. Ah mate well any way I'll tell you my boke said 'he would not do anything about it'. I'm telling' ya. Alright? That's what we, we organised.
[Emphasis added.]The prosecutor alleged that the reference to "my bloke" by Hart was a reference to Corr, and "it'll be straight back" was a reference to the $12,000 the defendant had given to Hart in the belief it would be given to Corr for agreeing to act corruptly, and that the money would be returned if charges were laid.
On 21 April 2008 the defendant said to Trinder after Trinder enquired whether he (the defendant) had spoken with Hart:
I left a message for him [Hart] to call me back and find out if we can get our money back and deal with it ourselves, or whether we wait and see if it gets to the DPP [to Corr] and that's the bloke that hits it on the head.
The reference to "dealing with it ourselves" in this exchange, on the prosecution case, refers to the charges the defendant and Trinder were concerned would or might be laid.
On 27 April 2008 the defendant telephoned Hart to advise him that Constable Hall had telephoned and wanted to interview him. Hart told him the following:
Hart: Ohhhh mate well she's entitlted to do that. Now, I'm telling ya my bloke, Gary Corr who's the, the, it's gotta go through him, he said he won't pursue it. I'm telling ya.
Kelly: Righto.
Hart: Alright, and that, as you know, we've, we've organised it.
[Emphasis added.]Hart's reference to Corr as "my bloke" was relied upon by the prosecution as further support for the submission that Hart was "purporting" to act as Corr's agent. The prosecution submitted that Hart's representation to the defendant in this telephone conversation and the conversation on 18 April extracted at [18] that Corr was "his [Hart's] bloke" or "my bloke" permitted reliance upon the extended definition of "agent" in s 249A(b) because Hart was "purporting" to be Corr's agent by describing himself in that way. Reliance on the extended definition of "agent" was an essential first step to the attribution of criminal liability to the defendant under s 249B(2)(a). It was also the prosecution case that Hart's continued reference to "my bloke" was a reference to Corr as his (Hart's) principal (in the sense that Hart was representing that to be their relationship) and his claim that Corr had taken receipt of the money in that capacity.
Further, on 29 April 2008 Trinder was recorded asking the defendant if he had heard from Hart, to which he responded:
... yeah he rang the other night and he said when it gets to the next stage is where the insurance kicks in.
Finally on 30 April 2008 Hart told the defendant:
Hart: No. Mate I told AP, I just got off the phone to him. We're gonna send a letter up to the police to Tina Hall and put her on notice that we consider it very close to vexatious litigation.
Kelly: Yeah.
Hart: And ah we will be pursuing upon ah, if, if they're prepared, if they're gonna run it and Garry Corr told me they won't. He's the Crown. If they want to run it we will be again seeking costs as we did on the last occasion.
The prosecution alleged that the reference to "our money" in the conversation between the defendant and Trinder on 21 April 2008 and to "the insurance [kicking] in" in the conversation between the defendant and Hart after Hart on 29 April 2008 related to the $12,000 the defendant had given to Hart in the belief it would be passed on to Corr on the understanding that if charges were referred to the Director of Public Prosecutions Corr would ensure they did not proceed.
It was conceded in the Court below and on the appeal that the evidence established, at least to a prima facie level, that the defendant gave $12,000 to Hart (at Hart's request) and that he did so on the understanding that Hart would forward the money to Corr, (and in the belief that he had done so) to ensure that, in the event that he was charged with sexual assault arising out of the "Miss X" allegations, he would not be prosecuted. It was also common ground that Hart never intended to give the money to Corr since Hart had no corrupt relationship with him, and that Hart intended at all times to retain the money for his own benefit and that he in fact did so. Although no charges were ever laid against the defendant with respect to the "Miss X" allegations, there was no suggestion that was the result of any wrongdoing by Corr or as a result of the intervention by anyone in the office of the Director of Public Prosecutions.
What was in issue in the Court below (and what occupied much of the hearing on the appeal) was whether the evidence was capable of establishing, as a matter of law, that the defendant's conduct in giving $12,000 to Hart in these circumstances constituted the giving of a benefit to an agent, corruptly, for the purposes of the offence under s 249B(2)(a). A further refinement of that question was whether Hart received the $12,000 as an "agent" for Corr as "principal" in circumstances where the defendant believed or expected that Hart would simply act as the conduit to pass the $12,000 to Corr in order that Corr would determine the prosecution of criminal charges in his favour in the event that the charges were sent for his (Corr's) consideration. That is a mixed question of fact and law but one that is foundational to the attribution of criminal liability to the defendant under s 249B(2).
Counsel for the defendant submitted that by Hart soliciting $12,000 from him, and in the limited conversations about that subject as set out above, there was nothing that permitted a finding that Hart "purported to be" acting as agent on behalf of Corr as principal, in the sense that he represented that Corr had requested money as a reward for "no billing" the "Miss X" allegations or, more importantly, that Hart represented that he was acting as Corr's agent in receiving the money for that purpose. Counsel submitted that the only available inference to be drawn from the evidence was that Hart asked for the money falsely claiming that he would then offer it to Corr as a bribe (a person who he knew he could bribe or who would be willing to be bribed). It was then submitted that the act of "giving" the money to Hart in those circumstances was not as a reward or on account of Hart doing something in relation to Corr's business as a Crown prosecutor as particularised in the charge. Rather, the money was simply given to Hart in the belief or expectation that he would be a conduit or an intermediary because Hart claimed to know that Corr would be willing to be bribed.
Counsel further submitted that the essential relationship of agent and principal between Hart and Corr, a relationship fundamental to the offence under s 249B(2)(a) where the conduct of the donor of a corrupt reward is criminalised, could not be proved where Corr was not privy to the arrangement that he was to be paid money for ensuring that any prosecution of the defendant not proceed, despite Hart's false representation to that effect.
The prosecution case below, and the position for which the plaintiff contended on appeal, was that by the act of receiving the $12,000 from the defendant, Hart was purporting to act as an agent for Corr (his principal) as provided for in s 249A(b), and on that basis, irrespective of the defendant's ignorance of the true situation, the defendant gave the money to Hart as Corr's agent as a matter of law, thereby attracting the sanction in s 249B(2)(a). The prosecution submitted that it was irrelevant that Hart did not intend to pass the money to Corr, or that Corr was unaware that he had been named as a willing recipient. The plaintiff submitted that by Hart purporting to be Corr's agent by referring to him in the terms set out in [18] and [21], the extended definition of agent in s 249A(b) was satisfied and, by necessary extension, this constituted Corr as Hart's principal for the purposes of the offence under s 249B(2)(a).
At the close of the prosecution case, the defendant's counsel made a no case submission. He argued that the agreed facts did not establish the necessary relationship of agent and principal as between Hart and Corr, whether within the extended definition in s 249A or at common law. He submitted that Hart's conduct in soliciting and receiving $12,000 from the defendant, at all times on the pretence that it would be paid to Corr as a bribe, was insufficient to create the necessary relationship of agent and principal with which the offence created by s 249B(2)(a) is concerned. In addition, and in particular, with regards to s 249A(b), counsel submitted that there was no evidence that Hart ever "purported to act for or on behalf" of Corr such as to render Corr his principal. Counsel submitted that Hart's reference to Corr as "my bloke" did not amount to a representation (albeit false) to that effect. Nor was there evidence that Hart received the money from the defendant as an inducement or reward for Hart "doing something" in relation to Corr's business as a Crown prosecutor since, so far as the defendant believed, all that Hart said he would do was pass on the money to Corr. Finally, as regards s 249A(c), counsel submitted that in his role as a Crown prosecutor, Corr could not, in any event, act in any capacity as Hart's principal, Corr could only ever be an agent of the Crown.
The Magistrate's decision
The plaintiff submitted that her Honour's reasons for finding there was no case to answer were flawed in two related respects: firstly, that Hart did not qualify as an agent for the purposes of the attribution of criminal liability under s 249B(2)(a) and, secondly, that the defendant's conduct in giving the money to Hart was not corrupt because it was never intended by Hart that the money would be paid to Corr.
Her Honour's reasons were expressed in the following terms:
249B - and I might say there is limited either literature or judgments in this area - appears designed to catch employees or ostensible employees seeking commissions. That is, for example, "I work for the Roads and Maritime Services (the principal) and I (agent) can get you a licence without you having to do your testing if you pay me some money, inducement or reward", or, "I (agent) am just purporting to work for the Roads and Maritime Services (the principal) and I (agent) can get you a licence without you having to do testing if you pay me some money, inducement or reward". It does not appear that this section is designed to catch up [sic] the person initially supplying the inducement or reward.
I do not find that Hart was an agent of Corr pursuant to s 249B. At all times the benefit or inducement given to Hart by the accused was, although unknown to him, purely for the benefit of Hart. To try and place a prosecution case into the terms of 249B is akin to trying to put a cat into a cage. Bits and pieces fit and bits and pieces keep sticking out. The factual case I find supports a gross wrong but not the wrong designed to catch up [sic] this accused pursuant to s 249B.
During the course of making a professional costs order in favour of the defendant, her Honour made the following observations with regards to the application of s 249B(2)(a):
There are always going to be problems because really the section is just not designed to catch up the person giving money, which was Mr Kelly, as opposed to the person he gave the money to.
The prosecution is seeking a broad interpretation of the Act and they say to me that they should not be stigmatised, punished, for doing so unsuccessfully, but I think they would have had problems at any time before any bench.
Appeal ground (d) - The Magistrate erred in law in that the reasons for judgment delivered on 20 May 2013 in which her Honour found that the plaintiff had failed to demonstrate a prima facie case and dismissing the charge were inadequate.
The plaintiff did not furnish written submissions in support of this ground of appeal nor did counsel for the defendant endeavour to defend her Honour's reasons as adequate as a matter of law. For the reasons that follow, I am satsified that her Honour's reasons were inadequate and, on that basis, that an error of law has been made out. However, I do not propose to order that the matter be remitted to the Local Court for re-hearing since I am satisfied on the basis of the defendant's notice of contention, or more particularly some of the grounds in the notice, that the decision of the Magistrate in dismissing the information is otherwise correct as a matter of law and, for that reason, the summons should be dismissed.
It is well settled that a juducial officer is obliged to provide adequate reasons for a decision and that failure to do so will constitute an error of law.
In Director of Public Prosecutions (NSW) v Elias [2013] NSWSC 28 I made the following observations (at [44]-[46]):
... As Basten JA observed in Workers Compensation (Dust Diseases) Board of NSW v Smith, Munro and Seymour [2010] NSWCA 19 at [136]-[138] this obligation derives from the nature of judicial power and the proper means of its exercise. In Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449, Santow JA (with whom the other judges of the Court of Appeal, Mason P and Sheller JA agreed) said (at [41]):
It is clear that the duty to give reasons is a necessary incident of the judicial process. Without adequate reasons, justice has not been seen to be done, so that failure to give adequate reasons may be an error of law: Pettit v Dunkley [1971] 1 NSWLR 376, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278-9 per McHugh JA, Mifsud v Campbell (1991) 21 NSWLR 725, Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. But the duty does not require the trial judge to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings.
In Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402 Johnson J cited the paragraph from Stoker extracted above and went on to say:
[18] One of the conventional functions of the requirement to give reasons is that a statement of reasons may be necessary to enable a party to exercise a right of appeal or such other rights as the party may have to contest the decision: Pettitt v Dunkley (1971) 1 NSWLR 376, 387, 388; Donges v Ratcliffe (1975) 1 NSWLR 501 at 507; Housing Commission of NSW v Tatmar Pastoral Co Pty Limited (1983) 3 NSWLR 378 at 386. The defendant and the prosecutor have a statutory right of appeal to this Court under the Appeal and Review Act arising from the determination of criminal proceedings in the Local Court.
[19] It is not satisfactory that an appeal court is left to undertake an analysis of exchanges between the bench and counsel during submissions in an attempt to ascertain a magistrate's reasons for determination: R v Pham [2005] NSWCCA 94 at paragraph 11; R v Thompson (2005) 156 A Crim R 467 at 474-5 (paragraph 32). The provision of concise reasons as required by law will avoid this circumstance occurring. It is necessary that magistrates keep in mind the obligation to provide reasons when determining summary proceedings under s.202 Criminal Procedure Act 1986.
The collected authorities were considered by Schmidt J in Director of Public Prosecutions (DPP) v Abouali [2011] NSWSC 110 from [5] to [8] and the relevant principles and the rationale underlying the requirement for adequate reasons were recently reviewed by Johnson J in Director of Public Prosecutions (NSW) v Wililo and Anor [2012] NSWSC 713 at [54] to [65].
The central issue in dispute both in the proceedings below and on appeal was whether it was open to find that Hart was Corr's "agent" within the extended definition of "agent" in s 249A, by reason of what the prosecution alleged was his conduct in "purporting to act" as agent by claiming Corr was "his man" or "his bloke".
Counsel for the plaintiff submitted that whilst her Honour referred to the extended definiton of "agent", she did not do so referable to the evidence relied upon by the prosecution to establish that fact nor to counsel's submissions concerning that evidence. Neither did she provide any reasons for finding that Hart was not an agent, nor refer, in any meaningful way, to counsel's competing submissions as to the operation of s 249A or its application to the facts.
Her Honour's reasons consist of a brief summary of the prosecution case, the terms of ss 249A(a), 249A(b) and 249B(2)(a), and an observation as to what conduct the section was designed to criminalise. Her Honour was not required to resolve the intended ambit of s 249B(2)(a) as the offence creating provision (which, as I have emphasised, was directed to criminalising the conduct of the donor of a corrupt reward in any event), but whether Hart was an "agent" within the extended definition of agent in s 249A. She was also obliged to consider the critical and related question of whether the prosecution could establish, beyond reasonable doubt, that the provision of $12,000 to Hart by the defendant was capable of constituting "the giving of a benefit as a reward, or on account of Hart doing something in relation to Corr's business as a Crown prosecutor", the gravamen of criminal liability under s 249B(2)(a). Her Honour simply stated that she did not accept that Hart was an agent of Corr, and dismissed the information without referring to any of the evidence to support that finding. While it might be possible to discern her Honour's reasoning from the exchanges with counsel during submissions, even then the reasons for her ultimate disposition of the matter are opaque. As Johnson J observed in Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402 at [19], that state of affairs is unsatisfactory.
Her Honour's observation that the prosecution case was akin to an attempt to "put a cat into a cage", while perhaps apt as a colloquial way of describing the evidence in the prosecution case relied upon in proof of the elements of the offence, was no substitute for the necessary transparency in her Honour's reasoning process or the specific findings that were critical to the determination of the proceedings (see Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449 at [41]).
Appeal ground (a) - The Magistrate erred in law in her construction of s 249B(2)(a) of the Crimes Act 1900
Appeal ground (b) - The Magistrate erred in law in finding that John Hart was not capable of being an "agent" for Gary Corr within the definition in s 249A of the Crimes Act 1900 for the purposes of s 249B(2)(a) of the Crimes Act 1900
It is convenient to deal with these grounds together.
The plaintiff submitted that although her Honour referred to the extended definition of "agent" in s 249A, she did not address the application of that section to the agreed facts. The plaintiff submitted that her Honour's observation that s 249B "appears designed to catch employees or ostensible employees seeking commissions" suggests that her Honour considered that s 249B(2)(a) would not apply where the defendant/agent was not an employee of the principal. If her Honour understood that s 249B(2)(a) operated subject to that limitation as I have already observed, she was wrong. Just as s 249B(2)(a) is not limited in that way, the plaintiff submitted that the extended definition of "agent" in s 249A(a) or (b) does not exclude persons who purport to be employees of a principal for the purposes of s 249B(2)(a). In summary, the plaintiff submitted that the breadth of the definition of "agent" in s 249A includes many persons who would not be considered agents at common law and, were a "plain reading" of s 249A to be applied to the agreed facts in accordance with Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27, what Hart said about Corr "purporting to be an agent" was sufficient for the purposes of the section.
The plaintiff referred me to R v Gallagher [1986] VR 219, which concerned the definition of "agent" in s 175(1) of the Crimes Act 1958 (Vic). That definition included any person "desirous or intending to act for" any principal. Young CJ, Kaye and Gray JJ observed (at 224) that the definition of agent:
...includes many who would not be within the common law concept of an agent. Thus is includes someone who has no authority, express or implied, for his principal, for it includes a person who is "desirous" of acting on behalf of someone else.
For the purposes of the attribution of criminal liability in s 176(2) of the Crimes Act (Vic) (expressed in almost identical terms to s 249B(2)), the extended definition of "agent" in s 175(1) of the Crimes Act (Vic) is expressed as follows:
'Agent' includes any corporation or other person acting or having been acting or desirous or intending to act for or on behalf of any corporation or other person whether as agent partner co-owner clerk servant employee banker broker auctioneer architect clerk of works engineer barrister and solicitor surveyor buyer salesman foreman trustee executor administrator liquidator trustee within the meaning of any Act relating to bankruptcy receiver director manager or other officer or member of committee or governing body of any corporation club partnership or association or in any other capacity either alone or jointly with any other person and whether in his own name or in the name of his principal or otherwise and a person serving under the Crown.
Importantly, despite its considerable breadth, s 175(1) of the Victorian Act does not include any reference to someone "purporting to be" an agent for another as provided for in s 249A(b). The plaintiff was unable to identify any provision in the criminal statutes of the other Australian states or in other common law jurisdictions where it was included.
I accept that the definition of agent in ss 249A(a) and 249A(b) should be construed widely, with the result that people who would not normally be considered an agent at common law would be agents for the purpose of s 249B, including those who are in fact unable to affect the legal relations of their principal. However, I do not see how the decision in R v Gallagher or the Victorian legislation addresses the question of whether Hart was an agent in his dealings with the defendant under the Crimes Act (NSW) or whether he purported to be an agent on the available, and somewhat limited, evidence led by the prosecution in the form of agreed facts to support that proposition and prove it beyond reasonable doubt.
In the result, while it appears that there is error in her Honour's construction of s 249A, the material error is her failure to deal in any reasoned way with what conduct "purporting to be an agent" might encompass and, as I have emphasised, whether the evidence in this case was capable of establishing that as a fact essential to proof of the offence with which the defendant was charged.
Appeal ground (c) - The Magistrate further erred in law in failing to find that the acts proved against the defendant, prima facie, constituted the corrupt payment of a benefit to an agent contrary to s 249B(2)(a) of the Crimes Act 1900.
The plaintiff submitted that her Honour misconstrued s 249B(2)(a) in two ways. I have already referred to her Honour's observation that the section is not designed "catch up the person initially supplying the inducement or reward" which, I am satisfied, both misconstrues and unduly limits the operation of the section.
Secondly, the plaintiff submitted that her Honour's reasoning seems to suggest that s 249B(2)(a) has no application where the payment or reward was in fact made solely for the benefit of the agent because, were that the case, the benefit or reward would not be given "corruptly". The plaintiff submitted that the operation of s 249B(2)(a) is not restricted to situations where the payment or reward was in fact passed to the principal. It is the intention or belief at the time of giving the benefit which is relevant to determining whether the act of giving was done corruptly (see Jamieson v R [1988] VR 879; 34 A Crim R 308). Further, the plaintiff submitted, to the extent that her Honour dismissed the information because Corr was not complicit in Hart's scheme to extract money from the defendant (because as she observed, and correctly, the benefit the defendant gave to Hart was, although unknown to him, purely for Hart's benefit), she was in error.
Although no offence is committed under s 249B(2) unless the defendant gives a benefit corruptly (or, under s 249B(1), where an agent receives a benefit with that intention), "corruptly" is not defined.
What is encompassed by the concept for the purposes of the section was the subject of detailed submissions and an excursion through the legislative history of ss 249A and 249B in this State and elsewhere. A similarly extensive body of caselaw was referred to by both counsel. Because I propose to uphold the notice of contention on the issue of agency, whether the defendant gave the money to Hart "corruptly" does not need to be resolved. That said, I am of the opinion that "corruptly" in s 249B encompasses, at least, "acting with some wrongful intention" (R v Gallagher) or "purposely doing an act which the law forbids as tending to corrupt" (see R v Gallagher and Jagdeo Singh v State of Trinidad & Tobago [2006] 1 WLR 146 at [16]-[17]).
The plaintiff submitted that, for the purpose of s 249B(2)(a) it is irrelevant that Hart was intending to keep the money for himself. It is sufficient if the defendant gave the money to Hart in the belief that he was Corr's agent, and that he intended that the money would be given to Corr so that he would not be prosecuted. As I see it, this conflates two essential elements of the offence created by that section. I accept that the authorities to which I was referred support the plaintiff's submission that in order to prove that the money was given to Hart corruptly, it is not necessary to prove that Corr was complicit in that illegal arrangement, or that the money given for that purpose was in fact provided to Corr (see R v Harrington (English Court of Appeal (Criminal Division), 28 September 2000, unrep); and Singh v State of Trinidad & Tobago). However, the requisite relationship of agent and principal between Hart and Corr (including, in this case, that Hart was "purporting to be" Corr's agent) does have to be proved independently of the defendant's intention by his willingness to pay money to ensure that the allegations of criminal conduct against him would not be pursued.
Conclusion
Leaving to one side the ground of appeal which concerns the adequacy of the Magistrate's reasons, there is a considerable overlap between the plaintiff's grounds of appeal and the defendant's notice of contention, particularly with regards to the construction of s 249A and the meaning of "corrupt". It is sufficient for the disposition of the summons that the joinder of issue between the plaintiff's grounds of appeal and the defendant's notice of contention (grounds 1-4) on the question of agency be resolved. That issue is resolved in the defendant's favour. I am not persuaded that what Hart said to the defendant in the extracted telephone conversation about his relationship with Corr constituted Hart as Corr's agent at that time, whether or not he was purporting to intend to become Corr's agent at any future time (a question raised by ground 1 of the notice of contention that I do not need to resolve). I am of that view irrespective of what I am satisfied on the authorities was the defendant's (corrupt) intention in giving the money to Hart. Having regard to the authorities to which I have referred, and without restating the arguments below, developed and recast in part on the appeal, I am not persuaded that the money given to Hart was as a reward or on account of Hart doing something in relation to Corr's business as a Crown prosecutor. It was equally open, indeed in my view more likely, that the money was simply given to Hart in the belief that he would hand it on to Corr without Hart ever representing that he was acting as Corr's agent in so doing.
Accordingly, the orders are as follows:
1. The summons is dismissed.
2. The plaintiff is to pay the defendant's costs of the appeal.**********
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