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The King v Gwynne (No 2)

The King v Gwynne (No 2)

Case [2023] NTSC 22 6 March 2023

Abuse of Process

Breach of Trust

Unconscionable Conduct

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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 5D
Boulanger 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 DARWIN
The 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The King v Gwynne (No 2)

Details

AGLC: The King v Gwynne (No 2) [2023] NTSC 22
Case: [2023] NTSC 22
Decision Date: 6 March 2023

CaseChat Overview and Summary

In the case of The King v Gwynne (No 2), the Supreme Court of the Northern Territory was tasked with determining the appropriate legal interpretation of the term "intentionally arbitrary or an abuse of process" as used in s 81(3) of the Criminal Code Act 1983 (NT). The accused, Colleen Gwynne, was charged with abusing her office as the Children's Commissioner by attempting to secure the appointment of her friend, Laura Dewson, as Assistant Children's Commissioner. The court had to decide whether the accused's intention to ensure the best candidate was appointed was relevant to the jury's determination of whether her conduct was "intentionally arbitrary or an abuse of process".

The court considered the relevant statutory provisions, including s 75C of the Code, which states that a person's conduct is improper if it warrants criminal sanction, and s 75B, which defines "benefit" within the context of the Code. The court also examined the meaning of "intention" as provided in s 43AI of the Code. Additionally, the court reviewed the Explanatory Statement to the Independent Commissioner Against Corruption (Consequential and Related Amendments) Bill 2017, which provided insight into the legislative intention behind s 81.

After considering the arguments from both the Crown and the accused, as well as relevant case law, the court concluded that the interpretation of s 81(3)(b) should include consideration of the accused's purpose in engaging in the alleged conduct. This interpretation is consistent with the apparent legislative intention that an offence under s 81 should be a serious criminal offence, and it provides clarity on when conduct may amount to an offence under s 81. The court proposed directing the jury to consider the accused's reason for engaging in the alleged conduct, as well as whether her conduct involved a deliberate departure from public sector requirements concerning the appointment of persons to positions in the Public Service.

This interpretation ensures that public officers are aware of the line that distinguishes administrative fault from criminal culpability, and it allows for a more comprehensive understanding of the elements required to prove an offence under s 81(3) of the Code.

Orders