HIGH COURT OF AUSTRALIA
KIEFEL CJ,
GAGELER, GORDON, EDELMAN, STEWARD, GLEESON AND JAGOT JJTHE KING APPELLANT
AND
JACOBS GROUP (AUSTRALIA) PTY LTD
FORMERLY KNOWN AS SINCLAIR KNIGHT MERZ RESPONDENTThe King v Jacobs Group (Australia) Pty Ltd
[2023] HCA 23
Date of Hearing: 12 April 2023
Date of Judgment: 2 August 2023S148/2022
ORDER
1. Appeal allowed.
2. Set aside the order of the Court of Criminal Appeal of New South Wales made on 11 July 2022, in so far as it dismissed the appeal against sentence for sequence three, and remit the matter to that Court for redetermination of that part of the appellant's appeal under s 5D of the Criminal Appeal Act 1912 (NSW).
On appeal from the Supreme Court of New South Wales
Representation
J T Gleeson SC with C J Tran for the appellant (instructed by Commonwealth Director of Public Prosecutions)
B W Walker SC with N M Kirby for the respondent (instructed by Jones Day)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
The King v Jacobs Group (Australia) Pty Ltd
Statutes – Construction – Where respondent pleaded guilty to offences of conspiracy to cause offer of provision of bribe to foreign public official contrary to ss 11.5 and 70.2(1) of Criminal Code (Cth) – Where s 70.2(5) of Criminal Code (Cth) relevantly prescribed maximum monetary penalty for offence as not more than greatest of: (a) 100,000 penalty units; or (b) if court can determine value of benefit that body corporate obtained that is reasonably attributable to conduct constituting offence, three times value of that benefit – Where parties agreed "benefit" obtained was securing contracts for carrying out construction projects – Where parties also agreed "benefit" obtained was money received for performing contracts – Whether s 70.2(5)(b) required value of benefit obtained by respondent to be determined as sum of amounts respondent in fact received under contracts secured by bribery – Whether deduction could properly be made for any costs incurred in performing contracts.
Words and phrases – "any advantage", "benefit", "bribery", "effective, proportionate, and dissuasive", "fine", "foreign public official", "gross amount", "international obligations", "maximum penalty", "monetary penalty", "net benefit", "obtained directly or indirectly", "OECD Convention", "reasonably attributable", "sentence", "value of the benefit".
Criminal Code (Cth), s 70.2.
KIEFEL CJ, GAGELER, GORDON, STEWARD, GLEESON AND JAGOT JJ. If a body corporate bribes, or conspires to bribe, a foreign public official[1], it is liable to be punished on conviction by a monetary penalty[2]. The issue in this appeal is the proper construction of s 70.2(5) of the Criminal Code (Cth)[3], which is a provision that prescribes the maximum monetary penalty for that offence as a fine not more than the greatest of the following:
"(a) 100,000 penalty units[[4]];
(b)if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly…
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- AGLC
- The King v Jacobs Group (Australia) Pty Ltd [2023] HCA 23
- Case
- [2023] HCA 23
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the High Court was whether s 70.2(5)(b) required the value of the benefit obtained by the respondent to be calculated as the gross amount received under the secured contracts, or if deductions for costs incurred in performing those contracts were permissible. This question involved the interpretation of the phrase "value of the benefit" and what was "reasonably attributable" to the conduct constituting the offence.
The High Court, in a joint judgment, found no basis in the text, context, or purpose of s 70.2(5)(b) to confine the ordinary meaning of "benefit" by allowing for deductions of costs. The Court reasoned that the value of the money received under the contracts, at the time of receipt, was the full amount, and any further value accruing from the use of that money was also reasonably attributable to the offence. Consequently, the maximum penalty should have been calculated as three times the gross amount of money received under the contracts, which was $10,130,354, leading to a maximum penalty of $30,391,062.
The High Court allowed the appeal, set aside the order of the Court of Criminal Appeal of New South Wales that dismissed the appeal against sentence for sequence three, and remitted the matter to that Court for redetermination of that part of the appeal.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the order of the Court of Criminal Appeal of New South Wales made on 11 July 2022, in so far as it dismissed the appeal against sentence for sequence three, and remit the matter to that Court for redetermination of that part of the appellant's appeal under s 5D of the Criminal Appeal Act 1912 (NSW).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: KIEFEL CJ, GAGELER, GORDON, STEWARD, GLEESON AND JAGOT JJ, EDELMAN J
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