The King v Gwynne (No 2)
[2023] NTSC 22
•6 March 2023
CITATION:The King v Gwynne (No 2) [2023] NTSC 22
PARTIES:THE KING
v
GWYNNE, Colleen Marie
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:21934234
DELIVERED: 6 March 2023
HEARING DATE: 3 March 2022
JUDGMENT OF: Burns J
Criminal Code Act 1983 s 75B, s 75C, s 81(3)
Criminal Law Consolidation Act 1935 (SA) s 238, 251
Independent Commissioner Against Corruption (Consequential and Related Amendments) Bill 2017, Explanatory Statement
Interpretation Act 1978 (NT) s 62B(1) and (2)
Public Sector Employment and Management Act 1993 (NT) s 5DBoulanger v The Queen [2006] SCR 49; Charlie v The Queen (1999) 199 CLR 387 at 394 per Kirby J; Maitland v R; Macdonald v R [2019] NSWCCA 32; Maudsley v The Queen [2021] QCA 268; Nolan V MBF Investments Pty Ltd [2009] VSC 244; Obeid V The Queen (2015) 91 NSWLR 226; Pregelj v Manison (1987) 88 FLR 346; R v Carroll (2002) 213 CLR 635; R v J [2005] 1 AC 562; R v Quach (2010) 201 A Crim R 522; Soulemezie v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Vallance v The Queen (1961) 108 CLR 56; Williams v Spautz (1992) 174 CLR 509, referred to.
REPRESENTATION:
Counsel:
Crown:G Wright SC with T Grealy
Accused:P Boulten SC with G O’Brien-Hartcher
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Bowden McCormack Lawyers
Judgment category classification: C
Judgment ID Number: Bur2306
Number of pages: 36
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe King v Gwynne (No 2) [2023] NTSC 22
No. 21934234
BETWEEN:
THE KING
AND:
COLLEEN MARIE GWYNNE
CORAM: BURNS J
REASONS FOR RULING
(Delivered 6 March 2023)
Introduction
The accused, Colleen Gwynne, has entered a plea of not guilty to one Count alleging an offence in the following terms:
That between 1 December 2018 and 15 June 2019 at Darwin in the Northern Territory of Australia, [the accused] being a public officer, intentionally engaged in conduct, namely did take steps to secure the employment of Laura Dewson, which conduct was intentionally arbitrary or an abuse of process, and the said Colleen Gwynne was reckless as to the circumstance of the conduct being prejudicial to the rights of another person and the conduct was improper and engaged in with the intention of obtaining a benefit.
This Count charges an offence contrary to s 81(3) of the Criminal Code Act 1983 (‘the Code’). That section provides:
81 ABUSE OF OFFICE – ARBITRARY AND PREJUDICIAL CONDUCT
(1) A public officer commits an offence if:
(a)the officer intentionally engages in conduct; and
(b)the conduct is intentionally arbitrary or an abuse of process; and
(c)the conduct is prejudicial to the rights of another person and the officer is reckless in relation to that circumstance; and
(d)the conduct is improper.
Maximum penalty: Imprisonment for 2 years
(2) Absolute liability applies to subsection 1(d).
(3) A public officer commits an offence if:
(a)the officer intentionally engages in conduct; and
(b)the conduct is intentionally arbitrary or an abuse of process; and
(c)the conduct is prejudicial to the rights of another person and the officer is reckless in relation to that circumstance; and
(d)the conduct is improper.
Maximum penalty: Imprisonment for 3 years
(4) Absolute liability applies to subsection 3(d).
The Crown accepts that in order to prove the charges against the accused, the Crown must prove each of the following elements beyond reasonable doubt:
That between 1 December 2018 and 15 June 2019:
(a)The accused was a public officer;
(b)The accused intentionally engaged in conduct;
(c)The conduct was intentionally arbitrary or an abuse of process;
(d)The conduct was prejudicial to the rights of another person;
(e)The accused was reckless in relation to the conduct being prejudicial to the rights of another person;
(f)The conduct was improper; and
(g)The conduct was engaged in with the intention of obtaining a benefit.
Element (f) requires the Crown to prove that the accused’s alleged conduct was improper. This requires consideration of s 75C of the Code, which is in the following terms:
75C IMPROPER CONDUCT
(1) A person’s conduct is improper if the conduct, in the circumstances, warrants criminal sanction.
(2) The finder of fact must find the conduct improper unless:
(a)the finder of fact is satisfied that:
(i)the conduct is trivial; or
(ii)the conduct has caused only minimal damage to the public interest; and
(b)the finder of fact is satisfied that the conduct, in the circumstances, does not warrant criminal sanction.
(3) In deciding whether a person’s conduct, in the circumstances, warrants criminal sanction, the finder of fact must have regard to the following matters:
(a)if the person is a public officer – whether the person behaved in a way reasonably expected of a public officer;
(b)if the person is not a public officer – whether the person behaved in a way reasonably expected of the person;
(c)whether the person acted in an honest and reasonable belief that the person was lawfully entitled to act in the manner the person acted in the conduct being considered;
(d)the seriousness of the conduct and any result of the conduct;
(e)whether the conduct occurred:
(i)as an isolated incident; or
(ii)as part of repeated similar conduct; or
(iii)as part of a course of conduct.
At this point, I will also set out the provisions of s 75B of the Code, which deal with the meaning of “benefit” within the provisions of Part IV of the Code, which includes s 81.
75B MEANING OF “BENEFIT”
(1) Benefit means a benefit of any kind, including a non-pecuniary benefit.
(2) For this Part:
(a)a benefit is taken to be requested by a person:
(i)whether the benefit is a current benefit or a promise of a future benefit; and
(ii)whether the benefit is to be received by the person or another person; and
(b)a benefit is taken to be obtained by a person:
(i)whether the benefit is a current benefit or a promise of a future benefit; and
(ii)whether the benefit is received by the person or another person; and
(c)a benefit is taken to be offered by a person to a public officer:
(i)whether the benefit is a current benefit or the promise of a future benefit; and
(ii)whether the benefit is to be received by the public officer or another person; and
(d)a benefit is taken to be given by a person to a public officer:
(i)whether the benefit is a current benefit or the promise of a future benefit; and
(ii)whether the benefit is received by the public officer or another person.
The offence created by s 81(3) is one to which the provisions of Part IIAA of the Code apply.[1] The meaning of “intention” is found in s 43AI of the Code:
43AI INTENTION
(1) A person has intention in relation to conduct if the person means to engage in that conduct.
(2) A person has intention in relation to a result if the person means to bring it about or is aware that it will happen in the ordinary course of events.
(3) A person has intention in relation to a circumstance if the person believes that it exists or will exist.
It is also important to consider the provisions of s 43AD of the Code dealing with the meaning of “conduct”:
43AD CONDUCT AND ENGAGING IN CONDUCT
(1) Conduct is an act, an omission to perform an act or a state of affairs.
(2) Engage in conduct is to:
(a)perform an act; or
(b)omit to perform an act.
The Crown case against the accused, put very briefly, is that the accused in her position as Children’s Commissioner sought to have her friend, Laura Dewson, appointed as Assistant Children’s Commissioner based on her friendship with Ms Dewson.
A jury was empanelled on Wednesday, 1 March 2023 to try the accused. The Crown began its opening address that afternoon, and continued into Thursday, 2 March 2023. In the course of her opening address, senior counsel for the Crown identified the conduct which the Crown alleged against the accused:
Members of the jury, the accused, Colleen Marie Gwynne, is the Northern Territory’s Children’s Commissioner…. This trial concerns events that took place between 2017 and June 2019. The Crown alleges that in the period 1 December 2018 to 15 June 2019, the accused abused her office as the Children’s Commissioner by attempting permanently to appoint a close friend, Laura Dewson, to the position of Assistant Children’s Commissioner. This was a senior position in the accused’s office, being second in charge to the accused in the office of the Children’s Commissioner.
Now, the Crown alleges that the accused had a conflict of interest due to her close friendship with Laura Dewson and that she deliberately failed to declare that friendship when attempting to secure the employment of Laura Dewson as the Assistant Children’s Commissioner.
And the Crown contends that not only did the accused fail to declare her conflict of interest, the accused also gave a misleading negative reference about another candidate for the position in an attempt to influence the outcome of the recruitment process in favour of Laura Dewson.
The Crown alleges that in giving that reference, the accused was driven by malice towards the other candidate and by her friend, Laura Dewson. And in conducting herself in these ways, the Crown says the accused is guilty of the offence of abuse of office, which is a crime under the law of the Northern Territory
During the course of her opening address, senior counsel for the Crown provided the jury with a copy of the indictment which included particulars of the alleged conduct. These particulars were:
(a) the accused’s failure over the charged period to properly declare and manage her conflict of interest in relation to Laura Dewson, a person seeking a permanent appointment to the Office of the Children’s Commissioner as Assistant Children’s Commissioner;
(b) the accused’s actions in being involved in the selection panel determining the most suitable applicant for the position of Assistant Children’s Commissioner; and
(c) the accused’s actions in providing referee reports about another candidate for the position of Assistant Children’s Commissioner, Ms Nicole Hucks, née Butler.
Later in her opening address, the Crown prosecutor took the jury to the indictment and referred to the elements of the offence charged. Regarding the element of the offence charged which requires the Crown to prove that the accused’s conduct was intentionally arbitrary or an abuse of process, the prosecutor said:
Then you can see the words on the charge or on the indictment, rather, “which conduct was intentionally arbitrary or an abuse of process”. Now they are ordinary English words, though they’re not words which one normally uses on a day-to-day basis. So I’ll just describe their relevance in this trial.
In this case, as I’ve already highlighted, you’re considering the accused’s conduct as the Children’s Commissioner in a recruitment process. And recruitment, as you’d all know, is a process for employing a person to fill a job vacancy. In the public sector there are strict processes which apply to recruitment, as government jobs are funded by the taxpayer and are jobs that are intended to work towards the public interest. I’ll expect you’ll hear evidence during the trial about how recruitment processes are expected to be carried out in the government sector, that’s the public sector in the Northern Territory, and the rules and guidelines around them.
And you’ll hear about the reason for those rules and guidelines being to ensure that people are employed on merit alone and by impartial decision-makers, without favour to private interests, such as friendships or family relationships or financial interests. Now those words, “intentionally arbitrary” or “an abuse of process” relate to that context.
At the conclusion of the Crown’s opening address, late in the afternoon of 2 March 2023, senior counsel for the accused raised a question of law relating to the elements of the charge about which he sought the guidance of the Court before commencing his opening address. The issue, expressed briefly, was whether:
(a) an intention on the part of the accused to engage in the alleged conduct for the purpose of ensuring that the best candidate was appointed to the Assistant Children’s Commissioner position is relevant to the jury’s determination whether the alleged conduct was arbitrary or an abuse of process; and
(b) in particular whether the jury would have to be satisfied beyond reasonable doubt that the accused did not act with that intention before the accused could be convicted of the charge as pleaded and particularised.
I agreed to allow the Crown to consider its position overnight with regard to this issue. The next day the Crown provided me with written submissions (the initial submissions), the effect of which may be summarised in the following extract from the submissions:
[2] In the course of her trial, a question has arisen as to whether the Crown has to negative an honest belief on the part of the accused that Ms Dewson was the best person for the job and that is why she acted as she did.
[3] In the Crown’s submission, a belief as to who was the best person for the job does not arise. The process being one with special measures attached meant that proper procedure precluded Ms Dewson’s application being reached where Nicole Hucks met all selection criteria. The question was about suitability/merit principle, not who was the best person for the job. Even if the accused believed that Ms Dewson was the best person for the job, this is academic where Ms Dewson’s application was required to be excluded from the first round of assessment in a special measures process. It is that process the accused is alleged to have abused in the charged conduct.
[4] The Crown submits that in any event a belief by the accused in the appropriateness of the outcome she sought is not a determinative fact for liability for the offence. It is one factor among others that the jury must consider in determining whether her conduct warrants criminal sanction in the circumstances.
Some explanation of the facts alleged by the Crown is necessary in order to understand the above extract. The position of Assistant Children’s Commissioner which was advertised, and for which Ms Dewson and Ms Hucks were applicants, was a position to which “special measures” were applied. This meant that if there were applicants of Aboriginal or Torres Strait Islander background who fulfilled the selection criteria, those applications would be considered first and the successful applicant would be chosen from that cohort of applicants. If there was only one applicant who possessed that background and who fulfilled the selection criteria, that person would be chosen as the successful applicant. It would be only if there were no applicants with that background, or no such applicants who fulfilled the selection criteria, that the other applicants who did not have an Aboriginal or Torres-Strait Islander background would be considered. Ms Hucks was a person of Aboriginal or Torres Strait background, but Ms Dewson was not.
The reference to the “suitability/merit principle” is a reference to the provisions of s 5D of the Public Sector Employment and Management Act 1993 (NT) (‘the PSEMA’) which is found within Part 1A of the PSEMA, which is headed “General principles relating to Public Sector”. Section 5D is in the following terms:
5D Merit Principle
(1) The merit principle is that the employment of a person as an employee, or the promotion or transfer of an employee, under this Act must be based solely on the person's suitability:
(a)to perform the relevant duties; and
(b)for employment in the relevant workplace; and
(c) for employment in the Public Sector.
(2) A person’s suitability is to be determined having regard to the person’s:
(a)knowledge; and
(b)skills; and
(c)qualifications and experience; and
(d)potential for future development.
(3) The merit principle applies subject to sections 35(7), 38B(1), 42(2), 46(3), 49C(3).
Later in the initial submissions, the Crown submitted with regard to the requirement that the accused’s conduct be demonstrated to be intentionally arbitrary or an abuse of process:
[7] The conduct…must be intentionally arbitrary or an abuse of process. “Arbitrary” is a departure from an established system on person (sic) whim. An abuse of process refers to doing something to subvert said processes, in this case the recruitment requirements.
[8] Neither arbitrariness nor abuse of process require the jury to consider the accused’s belief in the suitability of Ms Dewon’s (sic) for the position. This element will be satisfied if the accused’s conduct was done intentionally to subvert an applicable process. The element does not concern the intended outcome of the conduct.
The above extracts from the Crown’s initial submissions make it clear that the Crown’s position at that time was:
(a) any belief on the part of the accused that Ms Dewson was the best person for appointment as the Assistant Children’s Commissioner is irrelevant to the jury’s determination of whether the Crown has proven that the accused’s conduct was “intentionally arbitrary or an abuse of process” as required by s 81(3)(b);
(b) in the present case, that was so because the position of Assistant Children’s Commissioner was a position to which special measures applied; and
(c) the element of the offence that the accused’s conduct be proven to be “intentionally arbitrary or an abuse of process” will be satisfied simply by proving that the accused’s conduct was done intentionally to subvert an applicable process.
Having received the Crown’s initial submissions on the morning of Friday, 3 March 2023, further submissions were made in Court by both senior counsel for the Crown and senior counsel for the accused. At the request of counsel, I indicated my preliminary view that an intention on the part of the accused to engage in the conduct alleged by the Crown to constitute the offence with the intention, or for the purpose of, ensuring that the best applicant was appointed was a matter which was relevant to the jury’s determination whether the Crown had proven that the alleged conduct was “intentionally arbitrary or an abuse of process”. My initial view was that if the jury harboured a reasonable doubt that the accused had acted with an intention of ensuring that the best applicant was appointed to the position of Assistant Children’s Commissioner, this would be inconsistent with the accused’s guilt of the charged offence. I advised counsel that this was my view, but that I would be assisted by further submissions on this point.
The Crown sought a short adjournment to obtain instructions. Upon resumption, the Crown requested that I provide full reasons for my proposed direction to the jury on this issue as the Crown believed that the proposed direction could have a significant impact upon the course of the trial. I agreed to that proposal, but also sought further assistance from counsel. I released the jury until 10:00am on Tuesday, 7 March 2023.
I received further submissions in writing from the Crown by email at 9:01pm on 3 March 2023 (the further submissions). The submissions address whether the element in s 81(3)(b) of the Code imports consideration of the accused’s purpose or belief in engaging in conduct. The effect of these submissions may be summarised as follows:
(i)the issue is a matter of statutory construction;
(ii)the expressions “abuse of process” and “arbitrary” are not defined in the Code;
(iii)the ordinary meaning of an abuse of process is that it is conduct that departs from, interferes with or undermines an established process;
(iv)the motivation for or purpose of the conduct is not a necessary consideration;
(v)the word “intentionally” found in s 81(3)(b) means only that the accused means to engage in the conduct and by reason of s 43AI of the Code, the fault element in s 83(3)(b) does not entail a consideration of the accused’s purpose or motivation;
(vi)acting arbitrarily refers similarly to departing from an established system. While an arbitrary act may, in a particular case, involve acting on a personal preference, in the Crown’s submission, motivation is not a precondition to establishing that conduct is arbitrary. A random or capricious choice could be arbitrary conduct, where no motivation or purpose is in contemplation;[2]
(vii)in a judicial context, an “arbitrary decision” in administrative law is contrasted to a “judicial decision”, the hallmark of which is the quality of rationality.[3] Arbitrariness, therefore, need not be done for a particular purpose but could be done on an irrational basis;
(viii)the question is not whether the decision-maker intended to make the right decision or not – where there is no adherence to process the decision is arbitrary;
(ix)nowhere in the text of s 81 does the concept of “purpose” appear;
(x)if the absence of an honest purpose was an essential element of s 81(3)(b), this would leave no work for s 75C to do, as the jury would not reach consideration of whether the conduct was “improper” if they were not satisfied the Crown had not disproven an honest purpose or belief; and
(xi)in any event, a purpose of ensuring that the best person was appointed to the Assistant Children’s Commissioner position is not necessarily inconsistent with conduct that is arbitrary or an abuse of process. More than one purpose may be involved. The honesty of the accused’s belief fall for consideration under s 75C.
The accused provided submissions in reply at 3:39pm on Sunday, 5 March 2023. The undesirability of requiring the jury to remain out of Court for any significant time makes it desirable that the provision of reasons to the Crown be done as urgently as possible. These are those reasons. They are not, perhaps, as fulsome as they might have been had time permitted, or as well expressed. They nevertheless encapsulate my reasons.
In interpreting a provision of an Act, a court may consider material not forming part of the Act if that material is capable of assisting in ascertaining the meaning of the provision where the meaning of the provision is ambiguous or obscure.[4] The material that may be considered includes any explanatory memorandum relating to the Bill containing the provision and any explanatory speech given by a Minister to the Legislative Assembly on introducing the Bill.[5] I have referred to the Explanatory Statement to the Independent Commissioner Against Corruption (Consequential and Related Amendments) Bill 2017 (No 35) (‘the Bill’), which was the Bill which subsequently became the Act that introduced the present s 81 of the Code. With regard to the proposed definition of “benefit” in s 75B, the Explanatory Statement said:
Further, the definition clarifies that a benefit can include anticipated future benefits, and that a benefit given to another person is relevant (subject to certain causal connections specified in the offences in this Part). Hence, if a person is influenced to improperly perform the duties in a particular way because another person (e.g. a spouse, friend, business associate) will receive a benefit, this is still receiving a benefit for the purpose of the relevant offences.
(Emphasis added)
With regard to proposed s 81 itself, the Explanatory Statement provided:
Section 81 (Abuse of office – arbitrary and prejudicial conduct) updates the offence of abuse of office. This offence covers abuse through making arbitrary or prejudicial use of one’s role as a public officer, for example through exercising decision-making power in an intentionally arbitrary way. Where the existing offence referred only to arbitrary conduct, this has been amended to also include conduct that is deliberately intended to harm as well. Given that it is not necessary to prove that the person obtained any gain from the conduct, it must be proved that the person was intentionally arbitrary or intentionally abused the process…
This charge cannot be made out in relation to a public officer who was trying to do the right thing but adopted a poor process, as such conduct would not be intentionally arbitrary or intentionally an abuse of process. Poor practices are a matter for disciplinary action rather than a criminal sanctions.
(Emphasis added).
I have also had regard to the relevant Minister’s presentation speech with regard to the Bill, where the relevant Minister (the Attorney-General) said with regard to proposed s 81:
The new section 81 will cover the same matters as the existing offence at section 82 by continuing to make it an offence for a public officer to use their power arbitrarily to the detriment of another person. However the existing offence does not cover deliberately prejudicial actions. The amended offence will apply to conduct that is a deliberate abuse of process, as well as to arbitrary conduct.
……….
The government recognises that the scope of conduct covered by these offences is very broad, ranging from very serious corruption by experienced and senior persons to naïve error of judgment by junior administrative offices. The maximum penalty is for the most serious offences have been raised to reflect the seriousness of public sector corruption.
(Emphasis added)
The Crown referred me to a number of previously decided cases, either with regard to cognate common law offences or offences in other Code jurisdictions, but sought to distinguish those cases on various grounds. The first case in point of time was Obeid v The Queen (2015) 91 NSWLR 226, where the New South Wales Court of Criminal Appeal adopted the identification of the elements of the offence of misconduct in public office formulated by the Victorian Court of Appeal in R v Quach (2010) 201 A Crim R 522 at [46]:
[T]he elements of the offence are:
1)a public official;
2)in the course of or connected to his public office;
3)wilfully misconduct himself; by act or omission, for example, by wilfully neglecting or failing to perform his duty;
4)without reasonable excuse or justification; and
5)where such misconduct is serious and meriting criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects.
The second case to which I was referred was Maitland v R; Macdonald v R [2019] NSWCCA 32 (‘Maitland’). In that case, the appellant Macdonald was convicted of two offences of misfeasance in public office. This was a common law offence. The appellant Maitland was charged with aiding and abetting Macdonald. The Crown’s case on the first charge was that the appellant Macdonald’s conduct in granting a consent under the Mining Act1992 (NSW) to a company, DCM, to apply for an exploration license was misfeasance in public office because he granted the consent with an improper motive, that of benefiting DCM and the appellant Maitland who was the chairman of DCM and one of its shareholders. The Crown case on the second charge was that the license was granted with the same improper motivation. Upon conviction, the appellants appealed. It was submitted on behalf of the appellant Macdonald that in order to be convicted of the offence of misfeasance in public office, the accused must have acted solely on the basis of an improper motive. In considering this submission, the Court (Bathurst CJ, Beazley P, Ward CJ in Eq, Hamill J and N Adams J) considered the nature of the offence of misfeasance in public office, at [68] to [70]:
68. The object of the offence is to prevent public officers (in the case of misfeasance) from exercising their power in a corrupt and partial manner. Thus, in R v Bembridge (1785) 22 State Trials 1, Lord Mansfield at 155 formulated the liability of officers in the following terms:
“[I]f a man accepts an office of trust and confidence, concerning the public, ... he is answerable to the king for his execution of that office; and he can only answer to the king in a criminal prosecution... [Secondly] where there is a breach of trust, a fraud, or an imposition in a subject concerning the public, which, as between subject and subject, would only be actionable by a civil action, yet as that concerns the king and the public (I use them as synonymous terms), it is indictable.”
69. In R v Borron, a case involving criminal information against a magistrate, Abbott CJ made the following comments at 434:
“They [the magistrates] are, indeed like every other subject of this kingdom, answerable to the law for the faithful and upright discharge of their trust and duties. But, whenever they have been challenged upon this head, either by way of indictment, or application to this Court for a criminal information, the question has always been, not whether the act done might, upon full and mature investigation, be found strictly right, but from what motive it had proceeded; whether from a dishonest, oppressive, or corrupt motive, under which description, fear and favour may generally be included, or from mistake or error. In the former case, alone, they have become the objects of punishment.”
The same point was made in Boulanger v The Queen [2006] 2 SCR 49 at 73 where the Supreme Court of Court made the following remarks referring to the ruling of Widgery J to which we have referred at [35];
“As with any offence, the mens rea is inferred from the circumstances. An attempt by the accused to conceal his or her actions may often provide evidence of an improper intent: Arnoldi. Similarly, the receipt of a significant personal benefit may provide evidence that the accused acted in his or her own interest rather than that of the public. However, the fact that a public officer obtains a benefit is not conclusive of a culpable mens rea. Many legitimate exercises of public authority or power by a public servant confer incidental advantages on the actor.”
See also Horne v Barber (1920) 27 CLR 494; [1920] HCA 33 at 500; R v Boston (1923) 33 CLR 386; [1923] HCA 59 at 403.
70. More recently Lord Millett NPJ in Hong Kong Special Administrative Region v Wong Lin Kay [2012] HKCFA 33; [2012] 2 HKLRD 898 summarised the rationale for the offence in the following terms:
“[45] Every such power, duty, discretion or responsibility is granted for the benefit of the public and for a public purpose. For the person having such a power, duty or responsibility to exercise it or refrain from exercising it for his or her own private purposes, whether out of malice, revenge, friendship or hostility, or for pecuniary advantage is an abuse of power and amounts to the offence of misconduct in public office.”
The Court went on to say that it was not necessary for an improper motive to have been the sole motive for engaging in the alleged conduct in order for the accused to be convicted. In a case where an accused acted with multiple motives, not all improper, “if the transaction in question would not have been undertaken but for the improper purpose, then subject to the other elements being made out, the offence, in our opinion, would have been committed”. In other words, the accused would not be guilty of the offence of misfeasance in public office if he or she would have undertaken the same conduct if there had been no improper motive.
After reviewing a number of authorities, the Court said “it seems to us that the direction as to the mental element of the offence should have been that Mr Macdonald could only be found to have committed the crime (subject to the other elements being made out) if the power would not have been exercised, except for the illegitimate purpose of conferring a benefit on Mr Maitland and DCM”.
A further decision to which I was referred was the decision of the Queensland Court of Appeal in Maudsley v The Queen [2021] QCA 268 (‘Maudsley’) The appellant, Maudsley, was convicted of one offence contrary to s 92A(1)(c) of the Criminal Code (Qld), which provides:
92A MISCONDUCT IN RELATION TO PUBLIC OFFICE
(1) A public officer who, with intent to dishonestly gain a benefit for the officer or another person or to dishonestly cause a detriment to another person –
(c)without limiting paragraphs (a) and (b), does an act or makes an omission in abuse of the authority of office;
is guilty of a crime.
The substantial issue in that case was whether the appellant had acted in abuse of the authority of his office. It was argued by the appellant at trial that his only purpose in engaging in the impugned conduct was the interest of his employer, a local Council. The Crown’s case was that he was also motivated by a desire to help a third-party, or to cause detriment to another third-party. The jury was directed that they would still find the appellant guilty of the offence if they were satisfied that one of the purposes for which the appellant had engaged in the conduct was an improper purpose.
On appeal, McMurdo JA, with whom Daubney and Boddice JJ agreed on this issue, said at [13]:
The language of s 92A is to be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. However where a provision of a code is ambiguous or imports terms to which the common law or statute has assigned a special meaning, it can be necessary to resort to the common law for the purpose of aiding in the construction of the Code.
(Footnotes omitted)
For the purpose of construing s 92A, McMurdo JA considered the common law offence of misconduct in public office. McMurdo JA referred approval to the judgment of Sir Anthony Mason NPJ in Shum Kwok Sher v Hong Kong Special Administrative Region [2002] HKCFA 27 where it was stated:
A dishonest or corruptive motive or be necessary as in situations where the officer is exercising a power or discretion with a view to conferring a benefit or advantage on himself, a relative or friend. A malicious motive will be necessary where the officer exercises a power or discretion with a view to harming another. And a corrupt, dishonest or malicious motive will be required where an officer acts in excess of power. The point about these cases is that, absent the relevant improper motive, be a dishonest, corruptible malicious, the exercise of the power or discretion would not, or might not, amount to culpable misconduct.
McMurdo JA went on to say, at [27]:
The offence under s 92A requires the proof of an intention. Generally, motive and intention mean different things, and the motive by which a person is induced to form an intention is immaterial so far as regards criminal responsibility: s 23 (3) of the Code. Nevertheless, in the context of s 92A, the intention which is required under s 92A refers to a purpose for which the officer acted. It may be accepted that where the officer acted with an improper purpose as described in s 92A, that need not have been the officer’s sole purpose for the offence to have been committed. The critical question here is whether an offence is committed in a case where, absent the improper purpose, the officer would still have acted as he did.
By reference to the decision in Maitland v R; Macdonald v R, the Court of Appeal in Maudsley held that the direction of the trial judge to the jury on the question of mixed purposes was erroneous.
The Crown submitted that those cases addressed above dealing with common law offences were of little assistance in interpreting s 81 of the Code. In that regard, the Crown referred to the text, Criminal Laws Northern Territory by Stephen Gray, Jenny Blokland, Ben Grimes and Julian Murphy, third edition, 2021, at page 6, where the learned authors state:
The purpose of the Criminal Code is to replace the common law in the areas with which it deals. It is not simply a further elaboration upon the common law. If that were the case, the whole purpose of enacting a Criminal Code would be defeated, and one further layer of complexity added to the common law. Admittedly, there are other sources of criminal law in the Northern Territory. These include a few old English and South Australian statutes, Commonwealth statutes dealing with matters that fall under Commonwealth constitutional heads of power and various Northern Territory statutes which deal with criminal offences or aspects of criminal procedure not covered by the Code. However, the Code is intended to be a complete statement of the law on the criminal offences and other matters dealt with by the Code. Contempt remains the only common law crime.
(Footnotes omitted)
While this is undoubtedly true, it does not mean that reference to the common law is impermissible in interpreting aspects of offences found in the Code. The learned authors of the same text acknowledge as much. While, in theory, Courts should not look beyond the words of the Code in order to interpret the provisions of the Code, in practice this has proved to be impractical. As the learned authors of the text quoted by the Crown say, at pages 7 to 9:
In practice, however, if courts were deprived of access to the common law, their most important tool in interpreting the words of the Code would be taken away. The twin goals of codification are that the law be set out in a simple and accessible form and that it be stated exhaustively. These are often impossible to reconcile. If the law is set out simply, then it will fail to cover the complexities of human behaviour. Recourse will frequently be necessary to the common law. If it is set out exhaustively, the document would be an enormous and constantly growing accretion of rules, interpretations and exceptions. It would be an effective reproduction of the common law itself.
These difficulties of interpretation may partly be the result of the “inevitable ambiguities of language”. It is even arguable that codification “tends to a vastly greater extent than any decision or series of decisions by the courts to fix the content of the law as at one point in time. Unless a code is revised at frequent intervals it obliges the judiciary either to do increasing violence to its literal terms or else to abandon progress”. In practice, however, the Northern Territory courts have swung between literal and purposive interpretations of the words of the Code. This has occurred in a manner not fundamentally to similar to judicial interpretations of the common law in common law jurisdictions.
(Footnotes omitted)
One example given by the learned authors of Criminal Laws Northern Territory is the decision in Pregelj v Manison (1987) 88 FLR 346, where Nader J undertook an extensive examination of the common law doctrine of mens rea and the meaning of the word “act” at common law which was used as an aid to understanding the intention of the Code.[6] In Vallance v The Queen (1961) 108 CLR 56 (‘Vallance’), Windeyer J, in dealing with the provisions of the Tasmanian Criminal Code, stated, at 75, “Where the Code states exactly what a particular word means it is not necessary to go outside the Code. But where it does not, legal definition must be sought elsewhere.” His Honour went on to say, at 75 to 76:
It comes to this: The Code is to be read without any preconception that any particular provision has or has not altered the law. It is to be read as an enactment of the Tasmanian Parliament. And, interesting though it is to compare it with other codes, such as that of Queensland from which it is derived, or with projected codes such as Stephen’s Code, they cannot govern its interpretation. But it was enacted when it could be said of the criminal law that it was “governed by established principles of criminal responsibility”. And for that reason we cannot interpret its general provisions concerning such basic principles as if they were written on a tabula rasa, with all that used to be there removed and forgotten.
The issue in Vallance was one relating to basic principles of criminal responsibility, and perhaps it may be said that resort to the common law is particularly apt in cases where consideration of the proper interpretation of Code provisions relating to basic principles of criminal responsibility arise.[7] Nevertheless, the authorities do not confine circumstances in which it is appropriate to have reference to the common law in interpreting provisions of a Code to those where the provision concerns a basic principle of criminal responsibility.
The decision in Maudsley was, of course, a decision in a Code jurisdiction relating to the interpretation of a Criminal Code. What is significant about the decision in Maudsley is that the Court of Appeal resorted to consideration of common law principles relating to a cognate offence in ascertaining the meaning of terms used in the Code provision. By reference to the common law offence of misconduct in public office, the Court of Appeal determined that the mental element required for the offence under s 92A required consideration of the purpose for which the accused engaged in the conduct.
The Crown also referred to the provisions of s 251 and s 238 of the Criminal Law Consolidation Act 1935 (SA) which, respectively, create an offence of abuse of public office and define the concept of acting improperly for the purposes of that provision. It is unnecessary to refer in any greater depth to these provisions because, as the Crown acknowledges, there are significant textual differences between those provisions and the relevant provisions of the Code.
Section 81 of the Code presents significant difficulties in interpretation. Many of the important terms are undefined, and their intended meaning obscure or ambiguous. The Code does not define the vital terms “arbitrary” or “abuse of process”. Nor does the Code provide any guidance as to what form of “process” is relevant to the offence. The Oxford English Dictionary, second edition, 1991, provides the following definitions for the word “arbitrary”:
1. To be decided by one’s liking; depended upon will or pleasure; at the discretion or option of anyone.
3. Derived from mere opinion or preference; not based on the nature of things; hence, capricious, uncertain, varying.
4. Unrestrained in the exercise of will; of uncontrolled power or authority, absolute; hence despotic, tyrannical.
The Macquarie Dictionary, sixth edition, 2013, provides the following definitions for the word “arbitrary”:
1. subject to individual will or judgement; discretionary.
2. not attributable to any rule or law; accidental.
3. capricious; uncertain; unreasonable.
4. uncontrolled by law; using or abusing unlimited power; despotic; tyrannical.
5. selected at random or by convention.
The term “abuse of process” is one which is well known to lawyers, although, as Lord Clyde said in R v J [2005] 1 AC 562, “the concept of abuse may defy exhaustive definition”. In R v Carroll (2002) 213 CLR 635, Gleeson CJ and Hayne JJ said, at 650 to 651, “The circumstances that may constitute oppression or an abuse of process are various”. One circumstance that may constitute an abuse of process, and which has been the subject of considerable judicial consideration, is the commencement of judicial proceedings for an improper purpose.[8] Where the improper purpose is the predominant purpose of commencing proceedings, there will be an abuse of process which may justify a stay of proceedings.[9]
Leaving aside the range of meanings attributed to the term “abuse of process” in the law, and the multitude of circumstances which may be covered by that concept, it is possible to divide the term into its constituents and to approach interpretation of the term by considering the meaning of each operative word. The Oxford English Dictionary relevantly defines the word “abuse” as:
2. To use improperly, to misuse, to make a bad use of, to pervert, or misemploy; to take a bad advantage of.
The Macquarie Dictionary relevantly defines the word “abuse” as:
1. to use wrongly or improperly; misuse.
5. wrong or improper use; misuse.
11.a corrupt practice or custom.
The Oxford English Dictionary relevantly defines the word “process” as:
6. A continuous and regular action or succession of actions, taking place or carried on in a definite matter, and leading to the accomplishment of some result; a continuous operation or series of operations (The chief current sense).
The Macquarie Dictionary relevantly defines the word “process” as:
1. a systematic series of actions directed to some end.
2. a continuous action, operation, or series of changes taking place in a definite manner.
From the above, it will be obvious that the words “arbitrary”, “abuse” and “process” are susceptible to different nuances of meaning. The legislatively intended meaning cannot be discerned within the covers of the Code. To say to the jury that they are ordinary English words is to simply obscure the question of interpretation. At least some of the meanings that may be attributed to the word “abuse” require, or at least permit, consideration of the purpose for which the conduct which is said to be an abuse is engaged in; others, perhaps, less so. The potential ambit of the word “process” is extensive. The word may cover a wide range of circumstances. There is nothing in the text of s 81, or s 75C, which requires that the process be a process of the Northern Territory Public Sector, or connected with a public officer’s duties as a public officer.
Had time permitted, it would have been useful to have undertaken a historical analysis of the development of the criminal law relating to offences of abuse of office in the Northern Territory prior to the commencement of the Code. As I understand it, however, the applicable law was found within the Criminal Law Consolidation Act (formerly Ordnance), which had originally been an enactment of the State of South Australia which had been received into and became part of the law of the Northern Territory. It is probable that one could trace the development of the law relating to offences of abuse of office in the Northern Territory from the common law. When the Code was first introduced in this Territory in 1983, the cognate offence to that which is now found in s 81 was to be found in
s 82. The offence, which remained in force until it was amended into its present form and with its present section number by the Independent Commissioner Against Corruption (Consequential and Related Amendments) Act 2018, was in the following form:(1) Any person who, being employed in the public service, does or directs to be done, in abuse of the authority of his office, any arbitrary act prejudicial to the rights of another is guilty of a crime and is liable to imprisonment for 2 years.
The provisions of the Code, as introduced in 1983, provided no assistance in interpreting the word “arbitrary” as used in that section. It would have been necessary to look beyond the confines of the Code in order to ascertain the legislative intention with regard to that word.
It is unnecessary to establish such a definitive link in the present case. It is sufficient to observe that where the Code does not define important terms, resort to the common law regarding cognate offences is permissible as a guide to ascertaining the legislative intention behind the provision of the Code under consideration. The primary obligation of any Court in interpreting a statutory provision is to attempt to ascertain the intention of the legislature. In interpreting a provision of an Act, the Court must prefer a construction that promotes the purpose or object underlying the Act to one which does not promote the purpose or object.[10] This applies to interpreting a part of an Act, such as a section.[11]
The exceptionally ill-defined nature of the offence created by s 81, the result in large part of the ambiguous language employed in the section, requires careful attention to the legislative intention in enacting the provision in order to give meaning to the words used. From the Minister’s presentation speech it is apparent that the offence in s 81 is intended to be an offence addressing public sector corruption. From the Explanatory Statement I derive the following propositions:
·the legislature intended that the word “intentionally” in s 81(3)(b) of the Code would apply to both arbitrary conduct and abuse of process;
·the charge was not intended to cover circumstances where the public officer was “trying to do the right thing” but adopted a poor process; and
·whether the public officer was attempting to do the right thing but simply adopted a poor process is relevant to a jury determination of whether the conduct was intentionally arbitrary or intentionally an abuse of process.
The Crown’s submission, as I understand it, in the further submissions that “intentionally” in s 81(3)(b) refers only to the accused meaning to do the conduct and nothing more is unconvincing. The Explanatory Statement makes it clear that the legislature intended something more: that by requiring that the Crown prove that the conduct was intentionally arbitrary or an abuse of process, the legislature intended that the Crown intended that the accused intended that her conduct would have those characteristics. It is of some assistance in reaching this conclusion that there is a long history of the reason for a public officials engaging in conduct being relevant to an offence of abuse of office.
The Crown’s further submission that to allow consideration of “an honest purpose” when considering whether conduct was intentionally arbitrary or intentionally an abuse of process would leave s 75C with no work to do, should not be accepted. The specific provision in s 75C which is relevant is paragraph (c), which requires a jury in determining whether conduct warrants criminal sanction, to take into account whether the person acted in an honest and reasonable belief that they were lawfully entitled to act in the manner in which they did. It is clear that this provision is restricted to consideration of the public officer’s state of mind regarding the lawfulness of their action. One could posit cases where a jury would find that a public official has engaged in conduct for a purpose unconnected with their office, but which is nevertheless conduct which they believed was lawful.
To interpret s 81(3) in the manner urged by the Crown would reduce the offence in that provision to one concerned purely with process: did the accused intentionally depart from the processes and requirements of the Public Service for the appointment of a person to positions in that Service? If so, all that remains, the Crown says, is for the jury to determine whether the conduct warrants criminal sanction, at which point the jury may consider the accused’s reasons for engaging in the conduct in determining whether the conduct is worthy of criminal sanction, although it is not obliged to do so by the provisions of s 75C. The provisions of s 75C are not concerned with identifying the conduct to which the provision relates. What s 75C requires is an assessment of that conduct for the purpose of determining whether the conduct warrants criminal sanction. In my opinion, it is unlikely that the legislature intended that the gravamen of the offence found in
s 81(3) would simply be an intentional failure to follow public sector procedures or requirements, with the question of the accused’s purpose in engaging in conduct being relegated to an assessment of whether the conduct warrants criminal sanction.By virtue of the provisions of s 43AD of the Code, “conduct” includes not only an act or omission to perform an act, it also includes a state of affairs in which the act is performed or in which the omission occurs. The Crown’s case against the accused, as I earlier noted, is that the accused misused her office to attempt to have Ms Dewson appointed as Assistant Children’s Commissioner because of her friendship with Ms Dewson. The state of mind of the accused, that her reason for engaging in the conduct alleged was to have a friend appointed to a position in her office, is a state of affairs in which the acts and omissions alleged by the Crown occurred.
Adopting this interpretation of the provisions of s 81(3)(b) is consistent with the apparent legislative intention that an offence under s 81 should be a serious criminal offence, and with the legislative intention concerning the interpretation of “intentionally arbitrary or an abuse of process” as explained in the Explanatory Statement.
Such an interpretation also provides a degree of otherwise absent clarity regarding when conduct may amount to an offence under s 81. The Crown’s interpretation means that any intentional departure from Public Sector requirements may be a serious crime punishable by imprisonment, depending upon the assessment of a jury whether the conduct warrants criminal sanction. It is therefore not possible for a public service employee to know in all cases whether their conduct is criminal or merely a breach of public sector requirements. To recognise that conduct for the purposes of
s 81(3)(b) includes not only an act or omission, but also the state of affairs in which that act or omission occurs, gives greater certainty to the application of s 81. I respectfully adopt what was said by the Supreme Court of Canada, and quoted with approval in Maitland, in Boulanger v The Queen [2006] SCR 49 at 68-69: “[p]ublic officers, like other members of the public, are entitled to know where the line lies that distinguishes administrative fault from criminal culpability”.The approach which I have adopted does not involve implying an extra element into the offence created by s 81(3) of the Code. Rather, it elucidates the proper approach to be taken to interpretation of the element found in
s 81(3)(b).Acknowledging that some refinement to my directions regarding s 81(3)(b) may be required depending upon what occurs in the course of the trial, I would propose directing the jury as follows:
· conduct is arbitrary if it is engaged in in an exercise of personal will or preference, and not because of the application of any relevant principle;
· conduct will be an abuse of process if it involves the exercise of a power for a purpose other than the purpose for which the power was granted;
· the Crown must prove that the accused intended to engage in arbitrary conduct or in an abuse of process;
· in deciding whether the Crown has proven that the accused’s conduct was intentionally arbitrary or an abuse of process, the jury will consider not only whether the accused’s conduct involved a deliberate departure from public sector requirements concerning appointment of persons to positions in the Public Service imposed on the accused by her office, but also the reason for the accused engaging in that conduct;
· the Crown’s case is that the accused engaged in the alleged conduct for the purpose of having a friend appointed to the position of Assistant Children’s Commissioner. If the Crown satisfies the jury beyond reasonable doubt that the accused engaged in the conduct solely for the purpose of having a friend appointed to the position of Assistant Children’s Commissioner, then the jury will be satisfied that the accused engaged in conduct that is intentionally arbitrary or an abuse of process;
· if, on the other hand, the jury are not satisfied that the accused engaged in the conduct for the purpose of having a friend appointed to the position of Assistant Children’s Commissioner, then the Crown has not proven that element of the offence. If the jury consider that it is a reasonable possibility that the accused engaged in the conduct solely for the reason of having the best qualified person appointed to the position of Acting Children’s Commissioner, then the Crown has not proven this element of the charge;
· if the jury are satisfied that the accused acted with more than one purpose, in this case both the purpose of having a friend appointed and having the best person appointed to the position of Assistant Children’s Commissioner, the jury may only convict the accused if they are satisfied that the accused would not have acted as she did but for the desire to have a friend appointed to the position.
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[1]See Schedule 1 to the Code relating to offences under Part IV, Division 1 of the Code, which includes s 81.
[2]Nolan V MBF Investments Pty Ltd [2009] VSC 244.
[3]Soulemezie v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.
[4] Interpretation Act 1978 (NT) s 62B(1)(b)(i).
[5]Ibid s 62B(2)(e) and (f).
[6]See also Ladd v The Queen (2009) 27 NTLR 1.
[7]Charlie v The Queen (1999) 199 CLR 387 at 394 per Kirby J.
[8]Williams v Spautz (1992) 174 CLR 509.
[9]Ibid per Mason CJ, Dawson, Toohey and McHugh JJ.
[10]Interpretation Act s 62A.
[11]See the definition of “Act” in s 17 of the Legislation Act.
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