The State of Western Australia v Burke - [2011] WASCA 190

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: THE STATE OF WESTERN AUSTRALIA -v- BURKE [2011] WASCA 190

CORAM: MARTIN CJ
BUSS JA
MAZZA J

HEARD: 35 MAY 2011

DELIVERED : 14 SEPTEMBER 2011

FILE NO/S: CACR 86 of 2010

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
BRIAN THOMAS BURKE
First Respondent
JULIAN FLETCHER GRILL
Second Respondent
NATHAN JOHN HONDROS
Third Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MURRAY J
Citation  :THE STATE OF WESTERN AUSTRALIA -v- BURKE [No 3] [2010] WASC 110
File No  :INS 121 of 2009

Catchwords:

Criminal law - State appeal - Trial by judge alone - Judgments of acquittal entered upon a submission of no case to answer by the respondents - Applicable test where a submission of no case to answer is made in a criminal prosecution which depends upon circumstantial evidence

Criminal law - Government contractor - Duty not to make disclosure of official information - Criminal Code (WA) s 81

Criminal law - Public officer - Official corruption - Criminal Code (WA) s 83

Criminal law - Proviso in Criminal Appeals Act 2004 (WA) s 33(2a) - Whether no substantial miscarriage of justice had occurred as a result of the trial judge's erroneous decision that none of the respondents had a case to answer

Legislation:

Criminal Appeals Act 2004 (WA), s 24(2), s 33(2a)
Criminal Code (Qld), s 408C
Criminal Code (WA), s 1(1), s 7, s 31, s 81, s 83, s 266(2)
Criminal Code Act 1924 (Tas), s 110
Criminal Code Amendment Act 2004 (WA)
Criminal Law and Evidence Amendment Act 2008 (WA)
Criminal Procedure Act 2004 (WA), s 108, s 117, s 119
Pearling Act 1990 (WA), s 24, s 38
Police Service Act 2003 (Tas), s 42
Public Officers' Superannuation Benefits Recovery Act 1998 (Qld), s 4, s 6
Public Sector Management Act 1994 (WA), s 3(1), s 9, s 21, s 68
State Service Act 2000 (Tas), s 9

Result:

Leave to appeal granted on grounds 1, 4, 5, 6 and 7
Appeal allowed
Notice of contention dismissed
Judgments of acquittal on counts 1, 2, 3 and 4 set aside
New trial ordered on counts 1, 2, 3 and 4 before a differently constituted court

Category: A

Representation:

Counsel:

Appellant:     Mr B Fiannaca SC & Ms L E Christian
First Respondent           :     Mr G R Donaldson SC & Ms P M Tantiprasut
Second Respondent       :     Mr T F Percy QC
Third Respondent         :     Mr M T Ritter SC & Ms C H Meighan

Solicitors:

Appellant:     Director of Public Prosecutions (WA)
First Respondent           :     Lemonis/Tantiprasut Lawyers
Second Respondent       :     Freehills
Third Respondent         :     Talbot Olivier

Case(s) referred to in judgment(s):

Agnew v The Queen [2003] WASCA 188
Bosselman v United States 239 F 82 (2d Cir 1917)
Callaghan v The Queen [1952] HCA 55; (1952) 87 CLR 115
Chew v The Queen [1992] HCA 18; (1992) 173 CLR 626
Cortis v The Queen [1979] WAR 30
Director of Public Prosecutions (Cth) v Hogarth (1995) 93 A Crim R 452
Director of Public Prosecutions (Cth) v Pirone (1997) 68 SASR 106
Director of Public Prosecutions (Vic) v Marks [2005] VSCA 277
Director of Public Prosecutions (Vic) v Zierk [2008] VSC 184; (2008) 184 A Crim R 582
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Gebert v The Queen (1992) 60 SASR 110
Grant v Headland (1977) 17 ACTR 29
Johnston v Director of Public Prosecutions (1989) 97 FLR 424
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
Kessing v The Queen [2008] NSWCCA 310; (2008) 73 NSWLR 22
May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
Pense v Hemy [1973] WAR 40
Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1
R v Bailey [2003] QCA 506
R v Bilick (1984) 36 SASR 321
R v Crisp (1919) 83 JP 121
R v Goreng‑Goreng [2008] ACTSC 74; (2008) 220 FLR 21
R v Guise (1998) 101 A Crim R 143
R v Hodgetts & Jackson [1990] 1 Qd R 456
R v Hyman (1990) 2 WAR 222
R v Moran [2007] QCA 428
R v Smith [1960] 2 QB 423
Re Austin [1994] 1 Qd R 225
Rompotis v The Queen (1996) 18 WAR 54
Snell v Pryce (1990) 99 FLR 213
The State of Tasmania v Johnston [2009] TASSC 60; (2009) 197 A Crim R 152
The State of Western Australia v Burke [No 3] [2010] WASC 110
The State of Western Australia v Montani [2007] WASCA 259; (2007) 182 A Crim R 155
United States v Fasolino 586 F 2d 939 (2d Cir 1978)
United States v Polakoff 121 F 2d 333 (2d Cir 1941)
Willers v The Queen (1995) 81 A Crim R 219

Table of Contents

Martin CJ's reasons................................................................................................................. 7
Buss JA's reasons...................................................................................................................... 7
The test to be applied in determining a submission of no case to answer
Mr Hondros and his employment
Mr Burke and Mr Grill and their work
Section 81 and s 83 of the Code
The letter from Mr Ford to Senator Abetz
The conduct concerning count 1
The Pearling Industry Advisory Committee
The development of the Phase III policy
The conduct concerning counts 2, 3 and 4
The organisation of the balance of these reasons
Count 1: the elements of the offence
Count 1: the State's particulars
Count 1: the trial judge's construction of s 81 of the Code: the duty not to make disclosure
Count 1: the trial judge's construction of s 81 of the Code: 'without lawful authority'
Count 1: the trial judge's findings in relation to the material facts and circumstances
Count 1: the trial judge's construction of par 3.8 of the Code of Conduct
Count 1: the trial judge's view of the express instructions by Mr Ford not to make disclosure of information
Count 1: the trial judge's conclusion in relation to whether there was an unauthorised disclosure
Count 1: the trial judge's alleged errors
Count 1: matters not in issue in the appeal
Count 1: was there a case to answer at the close of the State's case?
Count 1: conclusion
Count 3: the elements of the offence
Count 3: the State's particulars
Count 3: the trial judge's findings in relation to the material facts and circumstances
Count 3: the trial judge's conclusion in relation to whether there was an unauthorised disclosure
Count 3: the trial judge's alleged errors
Count 3: matters not in issue in the appeal
Count 3: was there a case to answer at the close of the State's case?
Count 3: conclusion
Count 2: the elements of the offence
Count 2: the trial judge's findings in relation to the material facts and circumstances
Count 2: the trial judge's conclusion in relation to whether Mr Hondros acted corruptly
Count 2: the trial judge's alleged errors
Count 2: matters not in issue in the appeal
Count 2: was there a case to answer at the close of the State's case?
Count 2: conclusion
Count 4: the elements of the offence
Count 4: the State's particulars
Count 4: the trial judge's reasoning and conclusion
Count 4: the trial judge's alleged errors
Count 4: matters not in issue in the appeal
Count 4: was there a case to answer at the close of the State's case?
Count 4: conclusion
Mr Hondros's notice of contention
Ground 1 of the notice of contention: Mr Hondros's submissions
Ground 1 of the notice of contention: its merits
Ground 2 of the notice contention: Mr Hondros's submissions
Ground 2 of the notice of contention: its merits
A miscellaneous issue: the 'proviso' in s 33(2a) of the Criminal Appeals Act
The result of the appeal
Mazza J's Reasons

MARTIN CJ: For the reasons given by Buss JA, with which I agree, this appeal should be allowed, the notice of contention dismissed, the judgments of acquittal on counts 1, 2, 3 and 4 of the indictment set aside, and a new trial ordered on each of those counts before a court differently constituted.
BUSS JA: On 11 August 2009, an indictment was presented against the first respondent (Mr Burke), the second respondent (Mr Grill) and the third respondent (Mr Hondros), which alleged:
(1)On 25 September 2006, at Perth, Nathan John Hondros, a government contractor, without lawful authority made an unauthorised disclosure to Brian Thomas Burke, in that he disclosed official information, namely a letter from the Hon Jonathon Ford MLC to Senator Eric Abetz, in circumstances where Nathan John Hondros was under a duty not to make the disclosure.
(2)Between 8 October 2006 and 12 October 2006, at Perth, Nathan John Hondros, a public officer, without lawful authority or a reasonable excuse acted corruptly in the performance or discharge of the functions of his office or employment so as to gain a benefit for Brian Thomas Burke, Julian Fletcher Grill and others.
(3)In the alternative to Count 2, on 11 October 2006, at Perth, Nathan John Hondros, a government contractor, without lawful authority made an unauthorised disclosure, in that he disclosed official information, namely a draft version of the Pearl Oyster Hatchery Policy: Phase III, in circumstances where he was under a duty not to make the disclosure.
(4)Between 8 October 2006 and 12 October 2006, at Perth, Brian Thomas Burke and Julian Fletcher Grill counselled or procured Nathan John Hondros, a public officer, without lawful authority or a reasonable excuse to act corruptly in the performance or discharge of the functions of his office or employment so as to gain a benefit for Brian Thomas Burke, Julian Fletcher Grill and others.
(5)In the alternative to Count 4, between 8 October 2006 and 12 October 2006, at Perth, Brian Thomas Burke and Julian Fletcher Grill counselled or procured Nathan John Hondros, a government contractor, to make, without lawful authority, an unauthorised disclosure, being disclosure of official information, namely a draft version of the Pearl Oyster Hatchery Policy: Phase III, in circumstances where Nathan John Hondros was under a duty not to make the disclosure.

Count 1 alleged a contravention of s 81(2) of the Criminal Code (WA) (the Code), count 2 a contravention of s 83(c) of the Code, count 3 a contravention of s 81(2) of the Code, count 4 a contravention of s 83(c) read with s 7 of the Code, and count 5 a contravention of s 81(2) read with s 7 of the Code.
Count 3 was in the alternative to count 2. Count 5 was in the alternative to count 4.
Each of the respondents pleaded not guilty.
On 20 April 2010, the trial commenced in the Supreme Court before Murray J sitting alone and without a jury.
The State opened its case and led evidence from numerous witnesses over 10 sitting days between 20 April 2010 and 4 May 2010.
When the State closed its case, a submission was made on behalf of each of the respondents, pursuant to s 108 of the Criminal Procedure Act 2004 (WA) read with s 117 and s 119(1) of that Act, that there was no case to answer.
After hearing submissions from counsel for the State and counsel for each of the respondents, the trial judge reserved his decision. On 10 May 2010, his Honour held that there was no case to answer in respect of each of the counts in the indictment. He published written reasons. See The State of Western Australia v Burke [No 3] [2010] WASC 110. His Honour therefore entered a judgment of acquittal on each count.
The State appeals to this court, pursuant to s 24(2)(e)(i) of the Criminal Appeals Act 2004 (WA), against the trial judge's decision in respect of counts 1, 2, 3 and 4 (but not count 5).
The State relies on seven grounds of appeal. On 16 August 2010, Mazza J granted leave to appeal on grounds 2 and 3, and referred the application for leave to appeal on grounds 1, 4, 5, 6 and 7 to the hearing of the appeal.

The test to be applied in determining a submission of no case to answer

The test to be applied by a trial judge in determining a submission of no case to answer at the close of the prosecution case has been considered and discussed in numerous authorities. See, for example, May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654; R v Bilick (1984) 36 SASR 321; Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482; The State of Western Australia v Montani [2007] WASCA 259; (2007) 182 A Crim R 155. The question is not whether, on the evidence as it stands, the accused ought to be convicted, but whether, on the evidence as it stands, he or she could lawfully be convicted.
In Bilick, the Full Court of the Supreme Court of South Australia considered the application of the test in a case which depends on circumstantial evidence. King CJ (Mohr J agreeing) said:
The same test is to be applied to deciding a submission of no case to answer in a case depending upon circumstantial evidence as in a case depending upon direct evidence, although the manner of its application will be different. The question to be answered by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt. Where there is direct evidence of the actus reus and that evidence is capable of supporting an inference of mens rea, there is a case to answer except in the extreme case, as perhaps of testimony which is manifestly self-contradictory or the product of a disorderly mind, envisaged by the Privy Council [in Haw Tua Tau v Public Prosecutor [1981] 3 WLR 395] in which the direct 'evidence' is so incredible as to amount to no evidence. Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused? That, as it seems to me, was the question which the learned trial Judge was required to answer in deciding on the submission of no case to answer (337).
See also Morrison (489 ‑ 491); Montani [39] ‑ [40].
In Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1, King CJ (Bollen J agreeing) referred to the Bilick test and re‑stated the principles, in summary form, as follows:
If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence (5). (original emphasis)
In Questions of Law (No 2 of 1993), King CJ noted that suggestions had been made by counsel in the course of argument that certain expressions used in Gebert v The Queen (1992) 60 SASR 110 may not be consistent with the principles his Honour had re‑stated. In Gebert, the appellant appealed against his conviction on a charge of conspiracy to commit armed robbery. The Court of Criminal Appeal of South Australia upheld the refusal of the trial judge to rule that there was no case to answer. Mullighan J wrote the reasons of the Court of Criminal Appeal and King CJ and Olsson J agreed with them. Mullighan J said:
If the evidence in the Crown case cannot exclude any reasonable hypothesis consistent with the innocence (Peacock v The King (1911) 13 CLR 619), then the evidence is not capable in law of proving the charge beyond reasonable doubt and there is no case to answer. In the present context that means that if the evidence cannot exclude any reasonable hypothesis that the appellants were guilty of some conspiracy other than as charged, there is no case to answer (115 ‑ 116).
In Questions of Law (No 2 of 1993), King CJ explained that passage in Mullighan J's reasons in Gebert, as follows:
The emphasis in that passage is on the word 'cannot' twice appearing. That word denotes incapacity. There is no implication that it is for the judge to decide whether any hypothesis consistent with innocence is reasonable. There is no case only if the evidence lacks the capacity to lead a reasonable mind to reject all such hypotheses as unreasonable. At 116‑117, Mullighan J crystallised the question to be answered in relation to the particular issues in that case as follows:
'The question is whether the evidence and the inferences which could safely be drawn are capable of excluding any reasonable hypothesis that there was an agreement to commit some other crime.'
That formulation is clearly not intended as an exhaustive formulation of principle. It was sufficient for the purpose of the case. There was no intention on the part of the Court to modify the test in Bilick which Mullighan J was purporting to apply. Stated more fully the formulation would have referred to the acceptance, for this purpose, of the evidence for the prosecution and to the inferences as being those most favourable to the prosecution. The word 'safely' is used in the sense of 'reasonably' and is, of course, not intended to suggest that it is the function of the judge to consider whether any verdict of guilty would be unsafe. That is plainly not his function: Doney v The Queen (supra) (at 215). If there is evidence capable in law of supporting a conviction, the case must go to the jury. The question of the safety of any consequent verdict of guilty is for the Court of Criminal Appeal (5 ‑ 6). (emphasis added)
Senior counsel for Mr Hondros, in his oral submissions (appeal ts 71 ‑ 72), referred to Gebert in support of the proposition that it is for the trial judge to decide, on a no case submission, whether any hypotheses consistent with innocence are reasonable. Senior counsel for Mr Grill referred to Gebert in his written submissions (WAB 54). None of the counsel who appeared cited Questions of Law (No 2 of 1993).
I respectfully agree with King CJ's explanation in Questions of Law (No 2 of 1993) of Mullighan J's reasons in Gebert and with King CJ's re‑statement of the principles.
Accordingly, where a submission of no case to answer is made in a criminal prosecution which depends upon circumstantial evidence, the trial judge should rule on the submission on the basis of such inferences as are reasonably open on the evidence and as are most favourable to the State. The trial judge should not choose between such inferences. He or she is concerned only with whether a reasonable tribunal of fact, properly instructed, could conclude beyond reasonable doubt that the accused is guilty or, to put it another way, could exclude all hypotheses consistent with innocence as not reasonably open on the evidence.
This test applies where the tribunal of fact is a jury and, also, where the tribunal of fact is a judge in the context of a trial before a judge alone without a jury. See Morrison, where the principles formulated by King CJ in Bilick were followed in relation to the decision of a magistrate that there was no case for the respondents to answer.

Mr Hondros and his employment

At all material times, Mr Hondros was a 'ministerial officer', as defined in s 3(1) of the Public Sector Management Act 1994 (WA). He was appointed under s 68(1) of the Public Sector Management Act to assist the Honourable Jonathon Ford MLC who was, at all material times, the Minister for Fisheries of Western Australia. Mr Hondros was employed as Mr Ford's chief of staff under a written contract of employment dated 5 September 2006. See s 68(2) and s 68(3) of the Public Sector Management Act.

At all material times, s 9 of the Public Sector Management Act applied to Mr Hondros. Section 9 reads:
The principles of conduct that are to be observed by all public sector bodies and employees are that they ‑
(a)are to comply with the provisions of ‑
(i)this Act and any other Act governing their conduct;
(ii)public sector standards and codes of ethics; and
(iii)any code of conduct applicable to the public sector body or employee concerned;
(b)are to act with integrity in the performance of official duties and are to be scrupulous in the use of official information, equipment and facilities; and
(c)are to exercise proper courtesy, consideration and sensitivity in their dealings with members of the public and employees. (emphasis added)
The term 'public sector body' is defined in s 3(1) of the Public Sector Management Act to include, relevantly, 'ministerial office'. The term 'ministerial office' is defined in s 3(1) to mean 'one or more ministerial officers appointed to assist a particular political office holder'. The term 'political office holder' is defined in s 3(1) to include, relevantly, a Minister of the Crown. The term 'ministerial officer' is defined in s 3(1) to mean a person appointed under s 68 as a ministerial officer.
At all material times, Mr Hondros was obliged under cl 9.1 of his contract of employment to comply with 'the principles of official conduct set out in [the Public Sector Management Act], as well as the Western Australian Public Sector Code of Ethics and the Department of the Premier and Cabinet's Code of Conduct'.
Also, at all material times, Mr Hondros was obliged under cl 3 of his contract of employment to perform 'the functions as are from time to time specified by the Minister or the political office holder'.

Mr Burke and Mr Grill and their work

At all material times, Mr Burke was a former Premier of Western Australia and Mr Grill was a former Cabinet Minister of this State. Each of them had been a member of Parliament for many years, but had ceased to hold office well before the events giving rise to the counts in the indictment.
At the material time, Mr Burke and Mr Grill worked together as consultants and lobbyists.

Section 81 and s 83 of the Code

Section 81 of the Code is contained in ch XII of pt III. Section 83 is contained in ch XIII of pt III.
Part III is headed, 'Offences against the administration of law and justice and against public authority'. Chapter XII bears the heading, 'Disclosing official secrets'. Chapter XIII bears the heading, 'Corruption and abuse of office'.
Section 81 provides:
(1)In this section ‑
disclosure includes ‑
(a)any publication or communication; and
(b)in relation to information in a record, parting with possession of the record;
government contractor means a person who is not employed in the Public Service but who provides, or is employed in the provision of, goods or services for the purposes of ‑
(a)the State of Western Australia;
(b)the Public Service; or
(c)the Police Force of Western Australia;
information includes false information, opinions and reports of conversations;
official information means information, whether in a record or not, that comes to the knowledge of, or into the possession of, a person because the person is a public servant or government contractor;
public servant means a person employed in the Public Service;
unauthorised disclosure means ‑
(a)the disclosure by a person who is a public servant or government contractor of official information in circumstances where the person is under a duty not to make the disclosure; or
(b)the disclosure by a person who has been a public servant or government contractor of official information in circumstances where, were the person still a public servant or government contractor, the person would be under a duty not to make the disclosure.
(2)A person who, without lawful authority, makes an unauthorised disclosure is guilty of a crime and is liable to imprisonment for 3 years.
Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.
By s 83:
Any public officer who, without lawful authority or a reasonable excuse ‑
(a)acts upon any knowledge or information obtained by reason of his office or employment;
(b)acts in any matter, in the performance or discharge of the functions of his office or employment, in relation to which he has, directly or indirectly, any pecuniary interest; or
(c)acts corruptly in the performance or discharge of the functions of his office or employment,
so as to gain a benefit, whether pecuniary or otherwise, for any person, or so as to cause a detriment, whether pecuniary or otherwise, to any person, is guilty of a crime and is liable to imprisonment for 7 years.

The letter from Mr Ford to Senator Abetz

Count 1 relates to the disclosure by Mr Hondros to Mr Burke, on 25 September 2006, of a letter from Mr Ford to the Honourable Senator Eric Abetz, the then Minister for Fisheries, Forestry and Conservation of the Commonwealth.
The letter related to the management of a southern and a northern fishery for which Western Australia and the Commonwealth share responsibility.
A major difficulty in the management of the northern fishery was poaching by foreign fishermen. There was an issue between Mr Ford and Senator Abetz as to whether the Commonwealth was taking adequate steps to prevent the poaching.
The impact of poaching upon Australian fishermen and the regulation by the Commonwealth and Western Australian Governments of the northern fishery was described by the trial judge, as follows:
One of the issues was the taking of sharks, for their fins particularly, to the extent that the numbers of fish were reduced by what were regarded as the depredations of overseas fishermen. It put pressure on the Australian and WA regulation of locally based fishermen, and the result was measures to preserve the fishery by reducing their catch, and the number of days in any given month of the season when they were entitled to fish. The numbers of locally based fishermen were small, but they were in the habit of petitioning the Minister for financial assistance when Government action to restrict their fishing rights had adverse economic consequences for their business [94].
Mr Ford's letter to Senator Abetz was headed, 'JOINT AUTHORITY MANAGED FISHERIES ACCESS TO THE AUSTRALIAN GOVERNMENT'S $220 MILLION "SECURING OUR FISHING FUTURE" PACKAGE'.
Mr Ford requested Senator Abetz to allow 'operators in the two Western Australian Joint Authority managed fisheries (the Joint Authority Southern Demersal Gillnet and Demersal Longline Managed Fishery and the Joint Authority Northern Shark Fishery) to access' this financial package.
As to the southern fishery, Mr Ford said, amongst other things:
As you are aware, substantial management changes have recently been introduced into the Joint Authority Southern Demersal Gillnet and Demersal Longline Managed Fishery. As a result, and in addition to other fishing adjustments faced by them, the operators in this fishery have effectively incurred effort reductions of approximately 40%. Introduction of these management changes and effort reductions has resulted in the two operators with the greatest share of units and largest catch history in the fishery facing extreme adjustment pressures. As a result the fishing businesses of these two operators are likely to suffer substantial losses for several years into the future.
While it is accepted that the fishery is managed under State law, I consider that there is a clear obligation for the Commonwealth to provide some financial assistance to assist with the required adjustments (BAB/GAB 484).
As to the northern fishery, Mr Ford said, amongst other things:
The impact of illegal foreign fishing in the Joint Authority Northern Shark Fishery means that consideration is also being given to significant changes in the way that fishery is managed. It is already considered that the extent of illegal foreign fishing in this region means that neither the ecological sustainability of the fishery nor the conservation of certain vulnerable species can be assured. Therefore, to ensure that the operations of the domestic fishing fleet are not compounding the adverse effects of the illegal foreign fishing this and other domestic fisheries in the region (eg trochus) may need to be closed.
In this situation, and in the context of the Commonwealth's responsibility to control and prevent illegal foreign fishing, there is a strong case to argue that the 'Securing our Fishing Future' package should be available to compensate fishers in these northern fisheries or provide them with financial assistance to help them meet any associated adjustment requirements. Certainly, if the Joint Authority Northern Shark Fishery needs to be closed to ensure the conservation of species placed at‑risk by the illegal foreign fishing, I believe that the Commonwealth would have an obligation to contribute to funding any related compensation, adjustment or buy back costs (BAB/GAB 485).

The conduct concerning count 1

Brian Scimone and John Triantafyllou were Western Australia based fishermen who made representations personally to Mr Ford for financial assistance. Also, they engaged Mr Burke to assist in advancing their case.
In or about mid‑2006, Mr Ford and Mr Hondros became aware that Mr Burke was acting for Mr Scimone and Mr Triantafyllou. Mr Ford was endeavouring to deal with their applications for financial assistance.
On 18 August 2006, Mr Ford made a ministerial statement to the media. He said that the northern fishery would remain open and that new management controls were being prepared. The statement referred to Mr Ford's frustration that the Western Australian authorities could not obtain a clear indication from the Commonwealth as to the true impact of poaching on the fishery. The statement also referred to correspondence with Senator Abetz in relation to their joint responsibility for the management of the fishery.
On 25 September 2006, Mr Burke telephoned Mr Hondros. Mr Hondros was unavailable. Mr Burke left a message. In the message, Mr Burke requested Mr Hondros to send him a short email 'about the position in respect of the fishing discussions we had'. The trial judge made these observations about the message:
It is clear that Mr Hondros knew what that meant because, on the same date, he obtained from Ms Comrie, an administrative [assistant] in the office of the Minister, who acted primarily as Mr Hondros's personal assistant, an electronic version of the undated letter which had been written to Senator Abetz by Mr Ford, as Minister for Fisheries, in which he expressed views about a number of issues concerning fisheries which were jointly managed by the State and the Commonwealth [97].
His Honour then summarised what, in his view, were the essential aspects of the letter from Mr Ford to Senator Abetz:
The particular topic was a request to allow WA fishermen in the jointly managed fisheries access to the Australian Government's $220M fund entitled, 'Securing our Fishing Future'. That was a request made, among other fisheries, in respect of the Joint Authority Northern Shark Fishery in which Mr Burke's clients were engaged. The letter presents arguments in an endeavour to persuade the Federal Minister to the point of view being put by Mr Ford that WA fishers should have access to those funds which, as I understand the evidence, among other things, would provide money which might be used to meet compensation claims made by fishermen who suffered financially as a result of tightening management controls [98].
Mr Ford gave evidence at the trial that he regarded a letter written by him to another Minister as a confidential communication which only he might release publicly. However, Mr Ford said that his letter to Senator Abetz did not contain anything of substance that was not already publicly released information [99].
On 25 September 2006, Mr Hondros, without the knowledge or consent of Mr Ford, sent Mr Burke an email. Mr Hondros attached to the email the electronic copy of Mr Ford's letter to Senator Abetz which Mr Hondros's personal assistant, Claire Comrie, had sent him. The contents of this email were reported by Mr Burke to his clients [100].
The email from Mr Hondros to Mr Burke is the disclosure with which count 1 is concerned. The portion of the email which is relevant to count 1 is this:
Jon Ford has also written to Abetz seeking access for these fishermen to the Commonwealth's 'Securing our fishing future' package, which is a $220 million buy-out of Commonwealth fisheries (the shark fishery is a joint Cth-WA fishery). I have attached that letter and will let you know when we have a response. This might also be of some assistance if Abetz agrees (BAB/GAB 482).

The Pearling Industry Advisory Committee

The Pearling Industry Advisory Committee (PIAC) is part of the statutory structure for the governance of the pearling industry in Western Australia.
PIAC was established under s 38 of the Pearling Act 1990 (WA). It provides advice to the Minister or the chief executive officer (CEO) of the Department of Fisheries concerning the pearl industry and, in particular, hatchery activities in this State.
The trial judge made these observations in relation to people who were 'members' of PIAC, and people who were 'observers' to PIAC, in 2006:
The members of PIAC … were ministerial appointees, but it is evident that the industry nominees and appointees were substantially drawn from major industry participants. They included Mr Kelly, the CEO of the Paspaley group, Mr Nicholas Paspaley and Mr George Kailis of the Kailis group. Mr Smith, an 'independent' ministerial appointee, was PIAC's chairman. Mr Rogers [the CEO of the Department of Fisheries] was an ex officio member of PIAC.
In addition, a number of people were appointed as observers to PIAC, and the practice seems to have permitted them not only to attend meetings, but, when called upon, to make a contribution to debate. Those observers included Mr McCallum, the CEO of the [Pearl Producers Association], Mr Barton of the NT Fisheries Department, and Ms Kennedy, a senior officer in the WA Department of Fisheries, acting as Principal Management Officer (Pearling). There were other departmental observers including, for example, Dr Hart and Dr Jones, officers of the Department of Fisheries who would provide technical advice, and Ms McCrea, the manager of the Pearling and Aquaculture Program at the Department of Fisheries. From time to time, witnesses before me described PIAC as not only an advisory committee, but as a body which tended to act as an industry lobby group. Perhaps, given the membership, that was not surprising [122] ‑ [123].

The development of the Phase III policy

By s 24(1) of the Pearling Act, the Minister may issue, from time to time, 'for the assistance of the CEO [that is, the chief executive officer of the Department] and the information of the pearling industry a policy statement consisting of guidelines in respect of matters considered by the Minister to be of significance' in relation to licences and the general administration of the Act in connection with pearling and hatchery activities.
In March 2005, Mr Ford became the Minister for Fisheries and Mr Hondros became his chief of staff. At that time, the then current pearl hatchery policy had been in place since 1992. It was embodied in Ministerial Policy Guideline No 17. The policy was designed to develop the hatchery process within the industry, but it was outdated and due to expire at the end of 2005. At the beginning of 2005, a new hatchery policy was being developed [126].
The development of the new pearl hatchery policy comprised three phases.
Phase I, which had already occurred, involved the review of the successes, failures and inadequacies of the previous policy.
Phase II culminated in Fisheries Department Occasional Publication No 27, which was released publicly in September 2005. This document considered the various options for the establishment of a new pearl hatchery policy. It was available for public comment. Comments were received, especially from participants in the industry [127].
Three options were under consideration. The trial judge described them, as follows:
Essentially three options were discussed. The first would see existing quota levels maintained. I was told that that was unpopular with everyone. The second proposal was to increase quotas for hatchery farming, recognising that because existing quotas for the fishing of wild stock were at about the limit of the fishery's capacity to sustain the current level of fishing, it was in the area of hatchery development that increases in quota would need to be made.
The overwhelming consensus in the industry, unsurprisingly having regard to what I have already written about the dominance in the industry of major participants, favoured pro rata increases in licence quotas. That would preserve the position of the larger participants as against smaller producers. The third proposal, favoured by the small producers, would see the increases in quota administered on a case by case basis, but recognising that small producers needed relatively greater increases in quota if they were to remain viable in the changing economic circumstances to which I have referred [128] ‑ [129].
Phase III began with PIAC preparing a policy document to be presented to Mr Ford for his adoption or endorsement, after he had received advice from the Department. If the document was adopted or endorsed by the Minister, it would be published as a Fisheries Department Occasional Publication and be available generally within the industry and to the public at large [130] ‑ [131].
His Honour described the next stage in the process, as follows:
The policy would then be the basis for a new policy guideline formulated within the framework of amendments to the Pearling Act or the enactment of new legislation [132].
The trial judge recounted the history of the development of the Phase IIII policy document up to 10 October 2006:
It appears that the Phase III policy document emerged from PIAC in November 2005, although the document also bears the date February 2006. At about that time, it was therefore submitted to Mr Ford for his endorsement. As I understand Mr Ford's evidence, that was the recommendation of the CEO of the Department, Mr Rogers. The Phase III policy is set out in a comprehensive document. Unsurprisingly, in view of its origin, it presents what is described in the document as the consensus of the industry. I need not discuss its terms, and it is sufficient to note the essential thrust of the policy, as set out in the report, as follows:
Policy includes:
1.1No new licences ‑ except where a person or corporate entity acquires quota from an existing quota holder. There is no barrier to entry for new entrants into the pearling industry as the secondary market exists and functions well.
1.2Changes to legislation to ensure that all future allocations are pro-rata and administratively allocated in line with combined current hatchery and wild quotas.
1.3Industry to have a formal role of advising on timing and allocation of quota. The details of business rules would need to be determined by industry (exhibit 4).
Mr Ford's evidence was that he read the document carefully and took some time to understand it. He was not happy with the policy direction recommended. It seemed to him to be weighted in favour of the major participants in the industry, which he described as the Paspaley/Kailis interests. It did not permit the interests of small WA producers to be fostered, he thought, and it did not provide adequately for a particular interest which Mr Ford had in fostering the participation in the industry of indigenous groups and people.
Nonetheless, after a time, Mr Ford endorsed the policy and it became publicly available. On 25 May 2006, he signed and sent letters advising his acceptance of the policy to all concerned in the industry who needed to know …
Shortly after [Ms Kennedy] became the Acting Principal Management Officer (Pearling) she received and reviewed the endorsed Phase III policy document. She was centrally placed in the Department in relation to the processes to which I have referred above. For example, it was she who provided the departmental liaison with PIAC, upon which body she was an observer. She would draft background papers for PIAC, attend meetings, draft PIAC's policy recommendations, and forward those recommendations to the Minister's office, together with advice which she would prepare for Mr Rogers, to be provided to the Minister in relation to PIAC's recommendations or otherwise.
So it was she who was primarily responsible for implementing the endorsed Phase III policy, and when she received the document she formed the view that it required amendment, not substantively, but so that it would be in harmony with legislative drafting instructions for amendments to the legislation which were in the course of preparation in the Department. As she said, the changes which she thought were required were 'operational in nature'. They did not concern the underlying principles of the policy, but dealt with the practicalities of their implementation. So far as she dealt with the Minister's office, it was Mr Hondros who was her contact.
On 15 September 2006, Ms Kennedy circulated by email to Mr Rogers, her immediate superior (as I understood it), Ms McCrea, the Manager of the Pearling and Aquaculture Program in the Department, and Mr McCallum [the chief executive officer of the Pearl Producers Association], a copy of the Phase III policy with suggested revisions 'to deal with the separation of fishing and first operation seeding rights and the concept of secure rights under the PMB [Pearling Management Bill]'. She asked for their comments (exhibit 158).
As I understand it, Ms Kennedy then proposed that the amended document would be placed before PIAC for its consideration at the October meeting of that body. The changes she made are tracked in the document, and, in its amended form, it can be compared with the original. In cross‑examination Ms Kennedy was taken through the changes she had proposed. She agreed that none were of a substantive character.
…
The next step in the process was to take the Phase III policy, as amended, to the PIAC meeting which was held on 6 October 2006. Exhibit 162 includes all the documentary material, including the Phase III policy document prepared by Ms Kennedy which was provided to PIAC and discussed. The record shows that, apart from ten members of PIAC, including Mr Rogers, who were present, there were six observers and a minute secretary in attendance. From the Department, apart from Ms Kennedy and her superior, Ms McCrea, Dr Jones and Dr Hart were present. The other two observers were Mr Barton, from the NT, and Mr McCallum.
…
Following that meeting, Ms Kennedy made the various small changes required, and circulated the document within the Department, to Mr McCallum and to the members of PIAC. She received no further advice that changes were required … [134] ‑ [149].

The trial judge referred, in the passage set out at [50] above, to the Pearl Producers Association (PPA). At all material times, Brett McCallum was the executive officer of the PPA. The PPA was established to represent pearl producers. Its membership comprises Western Australian and Northern Territory fishing and hatchery licence holders who pay membership fees. In 2006, of the 17 licensees in Western Australia, only one, being a small producer known as Arrow Pearls, was not a member. His Honour found that the decisions of and submissions to Government made by the PPA were 'very much influenced by the views of the major producers' [117].

The conduct concerning counts 2, 3 and 4

When Dr Gallop was the Premier of Western Australia, he imposed a ban upon any member of his government and any government officer having any contact with Mr Burke or Mr Grill. In January 2006, Dr Gallop resigned as Premier and as a member of Parliament. Mr Carpenter then became the Premier. Soon afterwards, he removed the ban from members of his government.
At all material times, Mr Burke and Mr Grill had represented Kelvin Waldron‑Brown. Mr Waldron‑Brown appears to be generally known as Kel Brown. He is the principal of a pearling business. This business has been conducted through various entities, some of which are known as Nor‑West Seafoods Pty Ltd, Nor‑West Pearls, West Australian Southsea Pearls or Pilbara Pearls [79].
Mr Brown is a small producer. The trial judge described the views of Mr Brown in relation to the pearling industry, as follows:
People like Mr Kel Brown were apparently of the view that, to remain viable producers, they needed to increase their production and, by aggressive marketing, endeavour to increase their market shares. As I understand it, the large producers were not averse to increased quotas, but argued for the maintenance of a policy which would see any increases given proportionately to existing holdings to enable them to maintain their competitive power in the local industry [120].
At all material times, Mr Brown had retained Mr Burke and Mr Grill to assist him in lobbying for changes to government policy in the pearling industry; in particular, to improve the prospects of Mr Brown and other small producers in remaining viable in the industry [157].
Mr Brown had also retained the services of John Nicholls, an economist. Mr Brown had sought Mr Nicholls' assistance in preparing a case to be put to Mr Ford with a view to obtaining an easing of the restrictions on competition in the pearling industry, and achieving a restructuring of the industry so that it was more favourable to small pearl producers. Mr Nicholls was very familiar with the pearling industry and the structures of government administering the industry. He was also well acquainted with the governmental and political processes involved in the adoption of policy and its implementation [108] ‑ [110].
In early to mid‑2006, Mr Burke was endeavouring to make contact with Mr Ford as part of his lobbying activities on behalf of Mr Brown. This was complicated by the existence of a personal animosity by Mr Ford towards Mr Burke. The trial judge described this animosity and Mr Burke's attempts to lobby on behalf of Mr Brown:
There is evidence that in the early part of 2006, Mr Burke was in regular contact with Ms Archer MLC. She was a member of Parliament for the mining and pastoral region, as was Mr Ford. She too had an interest in the pearling industry, on behalf of her constituents, and it is evident that Mr Burke was using his friendship with her to endeavour to arrange a meeting with Mr Ford, or otherwise to advocate the case of Burke's client, Mr Brown, and incidentally to advance the interests of the other small WA producers.
Mr Ford's evidence was that, from time to time, Ms Archer would pester him to meet with Burke, towards whom Ford had a personal animosity, such that he made it clear to Mr Hondros that those who engaged Burke as a lobbyist did themselves a disservice, in Ford's eyes, because even if their case had merit, Mr Ford would feel unable to advance it or provide a remedy if there was any prospect that Burke may be able to claim the credit for achieving that result.
The evidence shows that Burke was making efforts, through third parties, to make contact with Ford throughout the earlier part of 2006. There was a flurry of activity in May, particularly around the time of the release of the Phase III policy, and in early June, when the commercial association between the Paspaley and Kailis interests became public. There is evidence that, despite the tone of the publicly released Phase III policy, Mr Brown's contacts with the Minister enabled him to report that Mr Ford seemed sympathetic to their case. Burke had discussions with Mr Brown, Ms Archer and Grill about how best to make a case to be submitted to Ford [158] ‑ [160].
By early August 2006, Mr Burke had persuaded Mr Hondros to arrange an appointment for him with Mr Ford. Mr Ford gave evidence that he agreed to meet with Mr Burke. Mr Ford hoped that if he met with Mr Burke then contact between Mr Burke and Mr Hondros would cease and Shelley Archer MLC would stop pestering him. The meeting was held on 16 August 2006 at Mr Ford's ministerial office. It was attended by Mr Ford, Mr Hondros, Mr Burke and Mr Grill [161] ‑ [163].
Mr Ford said in evidence that he made no specific commitment to Mr Burke and Mr Grill at the meeting, but he did indicate that he was sympathetic to the need to structure the industry so as to permit the advancement of the interests of small producers [163].
Mr Ford gave evidence that in the days shortly after the meeting on 16 August 2006, Mr Hondros asked him if he could provide a copy of the Phase III policy to Mr Burke and Mr Grill. Mr Ford said that he told Mr Hondros that he could give them a copy because it had been released publicly. It appears that Mr Hondros did not in fact provide Mr Burke and Mr Grill with a copy of the document at that time. On the evidence, Mr Brown already had a copy [166].
On 7 September 2006, Mr Hondros sent an email to Mr Burke (exhibit 63). The email said, relevantly:
I'm still working out a way that Jon Ford can unpick the appalling parts of the current pearling regime (including issues around quota). Would I be able to quietly seek your advice on that in the near future, if that's not too much of an imposition? (BAB/GAB 457)
The trial judge made the following observations in relation to this passage in the email:
Two things would seem to be clear. Mr Hondros recognised that he was not supposed to have contact with Burke (it will be recalled that Mr Ford's principal reason for holding the meeting on 16 August was that there might then be no more meetings with Burke). Secondly, there would seem to be no reason to suppose that Mr Hondros's request for advice was not genuine. It seems that he was having difficulty devising an amended policy to put to the Minister to take to Cabinet, by his own efforts. I shall return to the significance of this, but one can understand his difficulty.
Mr Ford had given him the responsibility of progressing the formulation of a new pearl hatchery policy to give effect to the Minister's views. He could not get advice as to how to go about that directly from PIAC or from the PPA, because he knew the predominant industry view was not that espoused by the Minister. He knew he could not go to the Department because he was aware that the CEO, Mr Rogers, also espoused the predominant industry view. On the other hand, he knew of the interest of Burke and Grill, and that Mr Nicholls had been recruited to advise and support Brown's case [172] ‑ [173].
On 26 September 2006, Mr Burke requested Mr Nicholls to send him a short and simple policy that might be adopted by Mr Ford. On 28 September 2006, Mr Nicholls sent Mr Burke a document. The essence of the policy embodied in the document was this:
The allocation of additional future hatchery shell entitlement and seeding rights will be:
(a)administered to provide, as a priority, a basis for a viable future operation among the small entitlement holding producers in this State under likely prospective market conditions and for encouraging participation by the indigenous community; and
(b)granted so as to not add unnecessarily to industry costs in the face of increasing overseas competition (BAB/GAB 503).
On 3 October 2006, Mr Grill sent Mr Nicholls' draft policy document to Mr Hondros. At the time, Mr Burke was absent from Perth. Mr Grill offered to meet with Mr Hondros upon Mr Burke's return to Perth to discuss the draft [177].
Mr Hondros accepted this offer. On 5 October 2006, he telephoned Mr Grill [178]. The conversation, which was intercepted and recorded by investigators with the Corruption and Crime Commission (CCC), was, relevantly, as follows:
HONDROS: … Mate uhm I'd love to catch up uhm early next week if I could.
GRILL:Great.
HONDROS:Uhm.
GRILL:Where do you want to do it, up at my place, down at your office?
HONDROS:I wouldn't mind coming to see you guys just
GRILL: … good.
HONDROS:I know that uhm, er, you know, my boss will, if we could do it sometime Monday when my boss is in cabinet it would be sort of a bit easier for me uhm you know save explaining what I'm up to, if you know what I mean so.
GRILL:Good.
HONDROS:Uhm.
GRILL:So uhm, I think we could probably do it at ten thirty.
HONDROS:Ten thirty sounds good, I'm down at er Fisheries at nine for er for a briefing on a separate matter so ten thirty might, might slot in perfectly.
GRILL:Great.
…
HONDROS:Okay I'll be able to give you a run down of er where I'm up to, also where I'm up to with er, with [Jon] so uhm
GRILL:Great.
HONDROS:[It's], [it's] positive but tricky, I think is the best way to er, to look at it, yeah. Okay, mate.
GRILL:Great, see you then.
HONDROS:Look forward to seeing you there (BAB/GAB 522 ‑ 525).
Accordingly, arrangements were made for Mr Hondros to meet with Mr Burke and Mr Grill at Mr Grill's home in Perth, on 9 October 2006 at 10.30 am.
Mr Hondros made a note in his diary to the effect that on 9 October 2006 he had a 'Private Appointment (Doctor)' between 10.30 am and 11.00 am.
Mr Hondros met with Mr Burke and Mr Grill, as arranged. The conversation was intercepted and recorded by investigators with the CCC [181].
At the meeting, Mr Hondros informed Mr Burke and Mr Grill of the current status of the draft Phase III policy and why amending the policy to improve the position of small producers in relation to the allocation of quotas was 'possible but hard':
BURKEMate what do you think about this pearling business, Julian sent me a note saying it's possible but hard?
HONDROSAh possible but hard, should I give you a run down where I'm,
BURKEYeah.
HONDROSI think I'm up to? Ah I think [Jon] is ah turned around to the point where he sees the, the sense in the argument that if he proceeds down the path he's proceeding down it's gunna damage ah, you know the small producers in the industry and ah you know the quality of the, the WA you know side of the,
BURKEYeah
HONDROSof the bargain. Ah he's got ah, he's he's got a number, a number of problems in front of him. Firstly, his first problem that he thinks err what he's got, Roger's pushing hard for the alternative, he's got uhm the industry on his pearling industry advisory committee pushing hard, ah for, what they've proposed in the legislation, uhm, and he's got ah, ah you know he's got ah, I guess an imperative that comes out of the Premier's Office, and from the Premier to not create any fuss or stink about anything what so ever. That er, that's holding him back. Ah, all on top of that err he's made a ah, you know he's made a statement to industry regardless of you know what he said I think in the meeting ah with you and Julian, that he will endorse the hatchery policy ah and uhm look at putting it in legislation. Ah that was, that was sometime ago. Ah since then the industry's had its restructure and Kailis and Paspaley are working closer together … (BAB/GAB 581).
Mr Grill suggested at the meeting that they look at the draft Phase III policy, as endorsed by Mr Ford, and see 'how with a few words' the policy could be changed to accommodate the interests of the small producers. The following exchange occurred:
HONDROSYeah. Do you think uhm, do you think it's ah it's ah step too far, and they'd sniff it out too quickly if you if you make it indigenous interests and you know for the interests of the industry or?
GRILLI think we've got to make it a bit wider. What I was going to suggest is we ah actually have a look at the hatchery policy that he's
HONDROSYeah.
GRILLinformally endorsed.
HONDROSYeah.
GRILLAnd just see how with a few words
HONDROSYeah.
BURKEwe can change
HONDROSI can get a copy of that.
BURKEYeah that's a good idea Julian.
GRILLWould you send that?
BURKEWould you send that to Julian?
HONDROSAbsolutely. Absolutely (BAB/GAB 585 ‑ 586).
A little later at the meeting, there was discussion about how the draft Phase III policy might be approved by Cabinet after it had been amended by Mr Burke and Mr Grill:
HONDROS[I]t's, it's a matter of how to unpick it and frame it so he can actually get it right.
BURKEI reckon what happens is this, that when you get the decision from Rogers, it comes to you, Julian will look and I'll look at the guidelines that you send us.
HONDROSYeah.
BURKEWe'll send them back to you
HONDROSMm hm
BURKEThen you take those to cabinet after [Jon's], don't send them back to Rogers
HONDROSNo no I won't
BURKEJust take them straight to cabinet and let cabinet endorse them and then if the industry wants to kick up a fuss, it has to then do two things.
HONDROSMm mm
BURKEArgue about the
HONDROSYep.
BURKEcontent of the guidelines but secondly
HONDROSYeah.
BURKEthrow back in every cabinet minister's face that he or she made a wrong decision.
HONDROSYes.
BURKEAnd once you get it through
HONDROSYeah.
BURKEthey're not going to want to do that, cos no one likes to admit they're wrong.
HONDROSThat's right, (laughs) especially cabinet, yeah.
GRILLYes.
HONDROSOkay, that's a great idea.
BURKESo I, if you can get that to us, it will be changed imperceptibly I reckon.
HONDROSYeah
BURKEAnd then the other thing is this, if Jon doesn't want to, he needn't.
HONDROSMm mm
BURKESo if he doesn't want to give x y z or Kel Brown or Bill Smith additional quota he doesn't have to but he's got the authority to do it if he judges he should.
HONDROSYeah (BAB/GAB 587 ‑ 589).
During this discussion Mr Burke referred to 'Rogers'. At all material times, Peter Rogers was the chief executive officer of the Department of Fisheries.
Towards the end of the meeting, Mr Burke summarised what had been agreed upon:
BURKEAlright mate that's good. Thanks for your time with that and if you can get that policy to Jul, guidelines to Julian, we'll do em and send it back to you and make it as imperceptible as possible. But I wouldn't then just send it back to Rogers or anywhere else.
HONDROSNo that's a great idea. I'm gunna uhm, I've asked the question about when they'll be translated into ah guidelines and we'll just take the guidelines to, Cabinet.
BURKEAnd change what we want yeah. Goodo.
HONDROS You know, which is unusual but they won't know about it before we do it.
BURKENot at all.
HONDROSAnd they've plenty of chance to be consulted prior to whatever.
BURKEOh yeah, yeah, No I think it's very fair, and it, I can tell you from my own experience that there's plenty of precedent. Happened lots of times when I was Premier.
HONDROSMm mm (BAB/GAB 593).
As the meeting was finishing, the following exchange occurred:
BURKEAnd, when d'you reckon these guidelines'll go up?
HONDROSAh, I'd say they, they're preparing them now I think but, I I think they've got the ah, ah they've got the accelerator off pending, a decision from [Jon] on the legislation. So I will, I'll get em to proceed with the guidelines.
BURKEQuicker the better.
HONDROSquicker the better, uhm, and ah, y'know
GRILLSo in that context do, do we need to tweak the guidelines or tweak the policy?
HONDROSAh oh look I'll shoot through to you the uhm, the policy
GRILLYeah.
HONDROSthat'll, that'll give you an understanding about where
GRILLRight.
HONDROSit'll merge in the guidelines, as soon as the guidelines appear anyway.
GRILLOkay mate.
BURKEBut the guidelines must be in the legislation anyway.
HONDROSNo. No no, their their plan is to say, ah, you take the, take hatchery policy, that'll uhm, that'll create the, provisions in the, in the guideline, and moving from there they'll become legislation (BAB/GAB 597 ‑ 598).
On 9 October 2006, after the meeting with Mr Hondros, Mr Burke sent an email to Mr Brown, with a copy to Mr Nicholls and Mr Grill. In the email, Mr Burke said, relevantly:
Julian and I had a good meeting with Nathan Hondros today.
Nathan will be forwarding the Draft guidelines for the Hatchery Policy to Julian with an understanding that Julian and I will advise on how they might be amended to protect and enhance small producers.
You might like to ring Julian for further details (BAB/GAB 599).
On 10 October 2006, Mr Hondros requested Joanne Kennedy, who at that time was the Principal Management Officer (Pearling) at the Department of Fisheries, to send him an electronic version of the draft Phase III policy. She sent Mr Hondros an email on that date to which she attached the latest draft. Ms Kennedy's email reads:
As expected, PIAC considered the Phase III Hatchery Policy again on Friday. The main aim of these discussions was to amend the policy document to make it consistent with the separation of fishing and first operation seeding rights as proposed in the PMB drafting instructions. These amendments don't effect the essence of the policy. They do however greatly simplify its implementation.
I am currently in the process of finalising the required amendments with PIAC members. The finalised version will be sent to the Minister in the near future, but in the meantime I have attached the document currently being considered by the Committee.
Please note that as some minor changes may still be necessary before the final document is sent to the Minister by the PIAC Chair, it would be desirable for this version not to be released publicly (BAB/GAB 601).
As mentioned above, at the material time, Ms Kennedy attended meetings of PIAC as an observer and provided the committee with information and advice, as required, in respect of its deliberations on agenda items (ts 586).
On 11 October 2006, Mr Hondros sent an email to Mr Grill, to which he attached the latest draft Phase III policy forwarded by Ms Kennedy. Mr Hondros's email states:
As discussed, please find attached the latest incarnation of the Phase III Hatchery Policy, as prepared by PIAC and the Department of Fisheries (BAB/GAB 687).
On 26 October 2006, Mr Grill sent an email to Mr Nicholls, with a copy to Mr Brown and Mr Burke, which reads:
Here is the lastest [sic] draft of the Hatchery Policy. I was going to have a look at them on the weekend to ascertain how we could subtly amend them to meet our objectives.
Your input would be very much appreciated.
Naturally, this must be kept in confidence (BAB/GAB 687).
On 30 October 2006, Mr Grill telephoned Mr Nicholls. The conversation was intercepted and recorded by the CCC. During the conversation, the following exchange occurred about 'subtly amending' the latest draft Phase III policy and ensuring that the draft, with the 'subtle amendments', was not returned to anyone but the Minister:
GRILL:Yeah, I think we, we should address it but I'd think our job, you and I, if we could just sit down and just see how we can gently amend the guidelines um to um change it so that it's acceptable to our client. Um there's a chance we can get an amended document up but I think the um changes need to be fairly subtle.
NICHOLLS:Yeah.
GRILL:Does that make any sense to you?
NICHOLLS:Yeah, it does. Wonder what impact subtlety is going have unless the …
GRILL:Well it probably won't go back to that group.
NICHOLLS:Decision makers seize on it that's all.
GRILL:It probably won't get back to that group if we can work it properly. It's just something for the Minister.
NICHOLLS:Yeah.
GRILL:But I don't see that a, the industry should be taken out of his hands and that's what that document does.
NICHOLLS:Absolutely. I'm surprised the Minister's surrender.
GRILL:Yeah.
NICHOLLS:Yeah all over to you Paspaley. You tell me what you want.
GRILL:Yeah (BAB/GAB 690).

On 7 November 2006, Mr Grill met with Mr Nicholls. Their conversation was recorded by the CCC. They discussed possible amendments to the latest draft Phase III policy.
On 13 November 2006, Mr Grill sent Mr Burke, Mr Brown and Mr Nicholls a note he wanted to give 'to Government' in relation to the draft Phase III policy. He also sent a copy of the draft policy itself, which incorporated 'the very modest changes that [Mr Nicholls] and I agreed to recommend' to the draft.
The proposed changes incorporated by Mr Grill in the version forwarded by Ms Kennedy to Mr Hondros (and subsequently sent by Mr Hondros to Mr Grill) were, relevantly, as follows:
Policy includes:
1.1No new licences - except where a person or corporate entity acquires quota from an existing quota holder. There is no barrier to entry for new entrants into the pearling industry as the secondary market exists and functions well.
1.2Changes to legislation to ensure that all future allocations are ~~pro~~ ~~rata~~ equitable, ~~and~~ in accordance with past history of the industry and administratively allocated in line with the existing first operation seeding rights held.
1.3Industry to have a ~~formal~~ role in of advising on timing and allocation of quota. The details of business rules would need to be determined by the Minister after consultation with industry (BAB/GAB 807).
As the trial judge noted in relation to Mr Grill's changes:
It can be seen that the changes were directed to remove the final control of allocation of quota units from the pro rata process and from the industry and to vest it again in the discretionary powers of the Minister [200].
His Honour then summarised what happened next:
A debate then ensued, principally between Messrs Grill and Nicholls, with occasional comments by Mr Burke. All the email exchanges were copied to Mr Brown. The nature of the debate is really immaterial for present purposes. It is fair to say that Mr Nicholls continued to wish to run economic arguments against the policy, which he thought had been deliberately ignored by PIAC and the Department because they were contrary to the position adopted in the Phase III policy document.
Finally, on 21 November, Mr Brown sent by facsimile to Mr Hondros a covering note and the letter which Mr Grill had earlier drawn up, containing the critique of the Phase III policy document. Mr Brown said that he, later on the same day, organised for Mr Schaap, in his office, to send Mr Hondros, by email, the electronic version of the Phase III policy marked up with Mr Grill's proposed changes (exhibits 134 and 135) [201] ‑ [202].
Mr Brown's facsimile transmission of 21 November 2006, referred to by the trial judge, was marked for the attention of Mr Hondros. The subject matter of the transmission was described as 'Hatchery Policy "Pearling"'. The facsimile reads, relevantly:
Dear Nathan,
Please find attached a covering letter on my thoughts on the future direction of the above, the full document will be forwarded by e'mail.

I would also like to arrange a time to meet with you at your convenience along with John Nicholls.
I am quite alarmed at the prospect of losing control of 'our' pearling industry to interests based in the Northern Territory (BAB/GAB 953).
His Honour noted that in a telephone conversation between Mr Grill and Mr Brown on 22 November 2006, Mr Grill was 'keen to be sure' that Mr Hondros was aware that he [Mr Grill] was the author of the proposed changes to the draft policy and that these changes were made as a result of 'previous conversations' between Mr Grill and Mr Hondros [202].
The trial judge recorded the conclusion of the scenario, as follows:
The evidence indicates that the debate, particularly between Grill and Nicholls, continued in the dying weeks of 2006. I can see no evidence that the letter from Brown to Hondros was taken any further, and there is certainly no evidence that Mr Ford was asked to do anything with the Phase III policy document which was returned to Hondros. Mr Ford seems to have been unaware of its existence until during the investigation of this matter [203].

The organisation of the balance of these reasons

It is convenient, first, to examine the appeal in relation to count 1, then count 3, next count 2 and, finally, count 4. I will then deal with a notice of contention filed by Mr Hondros and a submission made about the 'proviso' in s 33(2a) of the Criminal Appeals Act.
Counts 1 and 3 have a common feature in that each alleges a contravention of s 81(2) of the Code.
Counts 2 and 4 have a common feature in that each alleges a contravention of s 83(c) of the Code.

Count 1: the elements of the offence

The elements of the offence alleged against Mr Hondros in count 1, being an alleged contravention of s 81(2) of the Code, are:
(a)At the material time, was Mr Hondros a 'government contractor', as defined in s 81(1)?
(b)If 'yes' to par (a), did Mr Hondros disclose 'official information', as defined in s 81(1), that is, were the contents of the letter from Mr Ford to Senator Abetz 'official information'?
(c)If 'yes' to par (b), was the disclosure an 'unauthorised disclosure', within par (a) of the definition of that term in s 81(1), in that Mr Hondros was under a duty not to make the disclosure?
(d)If 'yes' to par (c), did Mr Hondros make the disclosure 'without lawful authority', within s 81(2)?
It is unnecessary, in this appeal, to decide whether an accused who has been charged with a contravention of s 81(2) bears any evidential onus in relation to whether the information in question was published with 'lawful authority'. Similarly, it is unnecessary, in this appeal, to determine the proper construction of the phrase 'without lawful authority' or the relationship between that concept and s 31 of the Code. As I will recount, the trial judge found, in the present case, that there was no evidence to suggest that if the disclosure of the letter from Mr Ford to Senator Abetz was an 'unauthorised disclosure', it was made other than 'without lawful authority'.

Count 1: the State's particulars

The State gave particulars of the counts in the indictment.
The particulars given of the allegation in count 1 that Mr Hondros disclosed the letter to Mr Burke 'without lawful authority' were as follows:
As a ministerial officer Mr Hondros was obliged to comply with the requirements of the Public Sector Management Act 1994, which Act required Mr Hondros to comply with the Department of Premier and Cabinet's Code of Conduct. The Code precluded disclosing the contents of any internal reports or documents to unauthorised persons, or the giving to unauthorised persons of information relating to the business of a Department or other government agency.
In February 2006 Mr Hondros was directed by [Mr Ford] that he was not to have contact with Brian Burke or Julian Grill, or to organise meetings with them, without the Minister's permission.
Mr Hondros received no authorisation from the Minister to provide Mr Burke with a copy of the Minister's letter to Senator Abetz (BAB/GAB 73).
The particulars given of the allegation in count 1 that the disclosure was an 'unauthorised disclosure', in that Mr Hondros was under a duty not to make the disclosure, were identical to the particulars given of the allegation that the disclosure was made 'without lawful authority'.

Count 1: the trial judge's construction of s 81 of the Code: the duty not to make disclosure

The trial judge construed s 81 of the Code for the purpose of determining the nature and source of the duty not to make disclosure which is referred to in the definition of 'unauthorised disclosure'.
His Honour referred to the decision of the Supreme Court of Tasmania in The State of Tasmania v Johnston [2009] TASSC 60; (2009) 197 A Crim R 152, as follows:
In Tasmania v Johnston [2009] TASSC 60, Evans J had to deal with a case where the Tasmanian Commissioner of Police was charged with disclosing official secrets to the then Premier, Mr Lennon. The charges were brought under s 110 of the Tasmanian Criminal Code which is the equivalent of s 81 of our Code. At [52] his Honour made the useful observation that the question in that case was whether the sections of the relevant legislation relied upon by the prosecution to establish the duty not to disclose, 'impose a duty, the breach of which has criminal consequences for the purposes of the Code, s 110, as distinct from disciplinary requirements of the nature of functions of office.' In other words, one must not overlook the fact that in relation to s 81, the duty not to disclose should be of a kind, breach of which may properly attract the sanction of punishment by the criminal law [37]. (emphasis added)
His Honour said that he accepted that 'that is the law' [38].
The trial judge then elaborated that:
[U]nless it is right to consider that the disclosure was, in the circumstances, punishable as a crime, there can be no duty not to disclose the information within the meaning of s 81 of the Code, even though the disclosure may be of a kind which is punishable by disciplinary processes concerned with the accused's office or employment [38]. (emphasis added)
Next, his Honour made this reference to other observations of Evans J in The State of Tasmania v Johnston:
At [62] and [65] [Evans J] also drew attention to the fact that in that case the duty of non-disclosure under the relevant legislative enactments was discretionary in character, importing a judgment as to the appropriateness of the disclosure. That was a factor, his Honour thought, in considering whether there was, in the particular circumstances, a duty not to disclose the information [39].
The trial judge expressed the view that a duty not to disclose 'official information', as defined in s 81(1), may be derived from the express instruction of the accused's superior to keep particular information secret, 'in the sense that it must not be disclosed' [41]. His Honour thought that the accused's superior, for this purpose, included a person whose directions the accused was contractually bound to obey, 'provided those instructions themselves were made lawfully' [41].
His Honour concluded:
[A] duty not to make a disclosure may be derived from the terms of the law applicable to the circumstances of the proposed disclosure, or from the lawful direction of a superior authority not to make the disclosure of particular information, the subject of the direction. Further, I see no reason why the direction could not be to prohibit disclosure to nominated individuals: cf Cortis v The Queen [1979] WAR 30 [42].
Finally, in this context, the trial judge emphasised that s 81 is concerned with information as distinct from a 'record'. In particular, it is 'the information which must come within the definition of official information and it is the disclosure of information which must be unauthorised so as to constitute the commission of the offence' [44].

Count 1: the trial judge's construction of s 81 of the Code: 'without lawful authority'

The trial judge said that a disclosure which is unauthorised, in either of the senses he had discussed, may nevertheless be made 'with lawful authority' in the circumstances set out in s 31 of the Code [45]. His Honour set out s 31 as currently enacted, rather than s 31 as in force at the material time, but nothing turns on this error.
At the material time, s 31 provided:
A person is not criminally responsible for an act or omission if he does or omits to do the act under any of the following circumstances, that is to say -
(1)In execution of the law;
(2)In obedience to the order of a competent authority which he is bound by law to obey, unless the order is manifestly unlawful;
(3)When the act is reasonably necessary in order to resist actual and unlawful violence threatened to him, or to another person in his presence;
(4)When he does or omits to do the act in order to save himself from immediate death or grievous bodily harm threatened to be inflicted upon him by some person actually present and in a position to execute the threats, and believing himself to be unable otherwise to escape the carrying of the threats into execution;
But this protection does not extend to an act or omission which would constitute an offence punishable with strict security life imprisonment, or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element, nor to a person who has, by entering into an unlawful association or conspiracy, rendered himself liable to have such threats made to him.
Whether an order is or is not manifestly unlawful is a question of law.
His Honour expressed the view that the effect of s 81 and s 31 of the Code, read together, was this:
A particular disclosure might be unauthorised because, by the operation of the law or in accordance with instructions given by a superior authority, there exists a duty not to make the disclosure [46].
The trial judge continued:
On the other hand, if the disclosure was itself in the execution of a different law, conflicting with the general duty not to make the disclosure, or was in obedience to the order of a competent authority countermanding the earlier instruction, which itself was not manifestly unlawful, then, under s 31, the accused would not be criminally responsible for the unauthorised disclosure, which would properly be held to have been made with lawful authority.
It is, of course, because s 31 prevents the accused being held to be criminally responsible for the conduct in question, that it is an element of the offence to be proved beyond reasonable doubt by the prosecution that the unauthorised disclosure was made without lawful authority. However, as I have mentioned, in the case of neither of the offences alleged in count 1 or in count 3, is there is [sic] any suggestion of lawful authority. Indeed, the issue in the case of both of the offences charged in count 1 and count 3 of the indictment is whether Hondros was under a duty not to make the disclosure with which the count is concerned [47] ‑ [48].

Count 1: the trial judge's findings in relation to the material facts and circumstances

The 'unauthorised disclosure' was alleged to have occurred on 25 September 2006 when Mr Hondros sent to Mr Burke by email a copy of the letter from Mr Ford to Senator Abetz.
As I have mentioned, Mr Hondros was a ministerial officer. He was employed under contract in Mr Ford's office as his chief of staff [56]. As chief of staff, Mr Hondros provided services for Mr Ford, in the course of Mr Ford's official duties, and he therefore provided services for the State [56]. The trial judge was satisfied that, at the material time, Mr Hondros was a 'government contractor', as defined in s 81(1) of the Code [33], [56].
The letter from Mr Ford to Senator Abetz contained information which came into Mr Hondros's possession because he was a government contractor; that is, Mr Ford's chief of staff [57]. Mr Hondros received the letter by email from his personal assistant, Ms Comrie [57]. His Honour was satisfied that Mr Hondros disclosed 'official information', as defined in s 81(1) of the Code [33], [57].
The trial judge found that there was no evidence to suggest that if the disclosure of the letter was an 'unauthorised disclosure', as defined in s 81(1), it was made 'other than without lawful authority', within s 81(2) [58]. That is, if the disclosure was an 'unauthorised disclosure', Mr Hondros did not have any 'lawful authority' to make the disclosure [33]. No law required disclosure, and the disclosure was not made on Mr Ford's instructions. Indeed, his Honour found that, on the evidence, it was made without Mr Ford's knowledge and entirely on Mr Hondros's own initiative [58].
According to his Honour, the critical question was whether the disclosure of the letter was an 'unauthorised disclosure'; that is, did the letter contain information which Mr Hondros was under a duty not to disclose? [59]

Count 1: the trial judge's construction of par 3.8 of the Code of Conduct

At the material time, par 3.8 of the Department of the Premier and Cabinet's Code of Conduct (the Code of Conduct) read:
3.8Confidentiality
In the course of official duties, Department employees will have access to information classified as restricted or confidential information. Classified information must be captured and stored in approved records systems with appropriate security and access controls applied. Employees dealing with highly sensitive material may be required to sign confidentiality agreements.
Classified information may only be used in the course of official duties or for other lawful purposes eg under the requirements of Freedom of Information Act 1992. In general, employees are not to disclose classified information nor use information for any purpose other than the purpose for which it was retained. Improper disclosure includes any of the following:
•Giving unauthorised persons information relating to the business of the Department or any other government agency.
•Giving unauthorised persons access to personal logons or passwords.
•Giving unauthorised persons access to information classified at a higher security classification level than they are entitled to receive.
•Disclosing the contents of any official papers including internal reports or documents to unauthorised persons.
•Disclosing the contents of any Advertised Vacancy file, (other than the Convenor of a selection panel providing relevant feedback to applicants for advertised positions).
•Using information in pursuit of a private interest for employees, family members, friends or associates.
Section 81 of the Criminal Code makes it illegal for a public official to disclose confidential information, and prohibits employees of the public service from publishing or communicating any fact or document that came to their knowledge or possession by virtue of their office and which it is their duty to keep confidential (BAB/GAB 1053 ‑ 1054).
The Code of Conduct was developed under s 21(1) of the Public Sector Management Act. By s 21(1)(c), the functions of the Commissioner for Public Sector Standards are, relevantly, to assist public sector bodies to develop, amend or repeal codes of conduct setting out minimum standards of conduct and integrity to be complied with by themselves and their employees, and to monitor compliance with those codes.
The trial judge expressed the view that par 3.8 was 'badly drafted' [208]. After recounting what he perceived to be the deficiencies in the drafting, his Honour said:
In my opinion, the best that can be said for par 3.8 of the Code of Conduct is that, for present purposes, I should treat it as imposing a duty not to disclose information to persons who may, by the application of undefined criteria, be judged not to be persons who are authorised to receive the information. While the paragraph refers to s 81 of the Criminal Code, it does not attempt to define the relationship between a 'duty' expressed in those terms, and a duty not to disclose information which would be recognised for the purpose of deciding whether a person has committed an offence against s 81. Nor, I note, does par 3.8 refer to s 83 of the Criminal Code [213].

Count 1: the trial judge's view of the express instructions by Mr Ford not to make disclosure of information

The trial judge was of the view that 'a duty not to disclose information for the purpose of s 81 (and, incidentally, in this case, for the purpose of s 83) may be derived from the express instruction of the accused's superior not to make a disclosure of the information, within the meaning of s 81, either generally or to specified persons' [214].
Mr Ford gave evidence to the effect that he informed Mr Hondros and other members of his staff that they were not to contact Mr Burke or Mr Grill. His Honour recorded the evidence of Mr Ford, Ms Comrie and Dennis Liddelow, Mr Ford's appointments secretary, as follows:
Mr Ford gave an instruction about meeting with Burke and Grill after the Premier, Mr Carpenter, had told his ministers that the ban on contact with Burke and Grill which, during the period when Mr Gallop was Premier, had been imposed on ministers and their staff, was to be lifted. Mr Ford's evidence was that he gathered his staff together, including Mr Hondros, and told them that no matter what announcement was made by Mr Carpenter, the ban would remain in effect, in his office.
His evidence was that he said to his staff that if they met with Burke or Grill, without his permission and knowledge, and he found out about it, he would dismiss them. If any staff member met with them by accident, eg, if they turned up at a meeting uninvited, and the staff member did not inform Mr Ford and he found out about it, again he would dismiss them (ts 237). It has to be said that it is not abundantly clear that meeting with Burke and Grill was the same as having any contact with them. In re-examination he was also asked about the instruction he gave:
'So far as the direction that you had given in relation to contact with Mr Burke and Mr Grill was concerned, how did you regard that?‑‑‑You weren't allowed to go out and have contact with Burke and Grill. In the first part of my ministry it was still under the Gallop government, and so that was the Premier's rule. When that was lifted, I sought to maintain Geoff's rule by imposing it myself on the office.'
I have mentioned Ms Comrie. In the early part of 2006, she was Mr Hondros's personal assistant. At ts 659, she gave evidence that Mr Ford's instructions were:
'that it didn't matter what Premier Carpenter had said, that no-one in his office was to have contact with Brian Burke or Julian Grill. He said that if you were found to be contacting them, that you would be sacked and that there was no coming back from that position. He also said that if they contacted you unsolicited that you were to let him know immediately (ts 659 and see also ts 668).'
The evidence of Mr Liddelow, the appointments officer, in relation to this matter was much less positive. He said that to the best of his recollection there were two meetings when the matter of Messrs Burke and Grill was broached by the Minister. On both occasions he gave the same instruction, that no-one was to meet with Burke and Grill. Mr Liddelow could not recall Mr Ford giving any reason for that direction (ts 682). When cross‑examined, he repeated that evidence and said that it was not his recollection that Mr Ford said that there was a ban on staff making contact with or receiving contact from Mr Grill or Mr Burke without his permission.
When it was put to the witness that that is what he had said when he made a statement during the investigation, he agreed that what had been said by Mr Ford in about September 2006 was a reiteration of the previous instruction that there was a blanket ban on staff making contact with or receiving contact from Mr Grill or Mr Burke without his permission (ts 684 ‑ 687). Mr Liddelow conceded that his recollection about those matters was not good.
For my part, I would find it difficult [to] rely upon evidence given by Mr Liddelow as an unsupported recollection of the events of 2006, but given the nature of the application that I should conclude that the accused persons have no case to answer, I should, I think, proceed upon the basis that the best view of the evidence of these three witnesses was that Mr Ford instructed generally that no member of his staff was to seek out or receive contact from Messrs Burke and Grill without his permission, and that Mr Ford said that if such contact should occur uninvited, they were to tell the Minister what had happened [216] ‑ [221].

In my opinion, on the best view of the evidence (from the State's perspective), at the close of the State's case, it was open to conclude, beyond reasonable doubt, that Mr Hondros deliberately gave the draft Phase III policy to Mr Burke and Mr Grill in an electronic format for an improper purpose, such as to render his conduct corrupt. In particular, it was open to conclude, beyond reasonable doubt, that:
(a)the respondents' plan was to have the draft Phase III policy amended subtly or imperceptibly by Mr Grill, in a manner favourable to Mr Brown, and then presented to Cabinet for approval, as if it had been approved by the Department of Fisheries and PIAC, but without the changes in fact being disclosed to the Department of Fisheries or PIAC or sent to them for consideration; and
(b)this plan involved deceiving Cabinet in relation to the provenance of the Phase III policy document.
Put another way, on the best view of the evidence (from the State's perspective), at the close of the State's case, it was open to exclude all hypotheses consistent with the innocence of Mr Hondros as not reasonably open on the evidence.
The hypotheses consistent with the innocence of Mr Hondros that it was open to exclude included the hypothesis that Mr Hondros did not act for an improper purpose because his purpose was 'achieving the formulation of a change in policy so that it was expressed in terms of which the Hon Minister might approve' [259].
In my opinion, the trial judge was in error in failing to find, on the assumption that all inferences most favourable to the State, which were reasonably open, were drawn, that the evidence of the meeting on 9 October 2006, in the context of the relevant background to that meeting and the relevant aspects or consequences of the plan agreed upon at that meeting, was capable of establishing Mr Hondros's guilt in respect of count 2 beyond reasonable doubt. In particular, on this assumption, the evidence of the meeting, in the applicable context, was capable of establishing, beyond reasonable doubt, that Mr Hondros acted 'corruptly' in the performance or discharge of the functions of his office or employment, by deliberately giving the latest version of the draft Phase III policy in electronic format to Mr Burke and Mr Grill for an improper purpose involving deception, so as to gain a benefit for Mr Burke, Mr Grill and others (including Mr Brown).
It is unnecessary, in the circumstances, to consider that aspect of the State's grounds of appeal which attacks the adequacy of the trial judge's reasons as to why, in his view, the evidence could not establish the impugned purpose or why, if the evidence was capable of establishing the impugned purpose, that purpose would not be improper such as to render Mr Hondros's conduct corrupt.

Count 2: conclusion

Subject to my consideration of Mr Hondros's notice of contention and the possible application of the 'proviso', the State succeeds in its appeal against the trial judge's decision that Mr Hondros had no case to answer on count 2.

Count 4: the elements of the offence

The elements of the offence alleged against Mr Burke and Mr Grill in count 4, being an alleged contravention of s 83(c) read with s 7 of the Code, are:
(a)At the material time, was Mr Hondros a 'public officer', as defined in s 1(1) of the Code?
(b)If 'yes' to par (a), did Mr Hondros act corruptly in the performance or discharge of the functions of his office or employment so as to gain a benefit for Mr Burke, Mr Grill and others?
(c)If 'yes' to par (b), did Mr Hondros act corruptly 'without lawful authority' or 'a reasonable excuse', within s 83?
(d)If 'yes' to pars (a), (b) and (c), did Mr Burke or Mr Grill counsel or procure Mr Hondros to act corruptly?

Count 4: the State's particulars

The particulars given by the State in relation to the alleged counselling and procuring by Mr Burke in relation to count 4, were as follows:
4.1Counselling (by Mr Burke)
On 9 October 2006, at Mr Grill's residential unit in … Perth, Mr Burke, by his own statements and by his complicity in the statements of Mr Grill, advised and urged Mr Hondros to provide him and Mr Grill with the Pearl Oyster Hatchery Policy endorsed by the Minister for Fisheries, in order for Mr Burke and Mr Grill to make amendments to the policy favourable to their client, with a view to the amended policy being submitted to Cabinet for approval without further review by the Department of Fisheries: see transcript of conversation recorded 9 October 2006 pursuant to CCC Warrant 10/05 at pp 45 ‑ 48.
4.2Procuring (by Mr Burke)
On 9 October 2006, at Mr Grill's residential unit in … Perth, Mr Burke, by his own statements and by his complicity in the statements of Mr Grill, advised and urged Mr Hondros to provide him and Mr Grill with the Pearl Oyster Hatchery Policy endorsed by the Minister for Fisheries, in order for Mr Burke and Mr Grill to make amendments to the policy favourable to their client, with a view to the amended policy being submitted to Cabinet for approval without further review by the Department of Fisheries: see transcript of conversation recorded 9 October 2006 pursuant to CCC Warrant 10/05 at pp 45 ‑ 48 (BAB/GAB 78).
The particulars given in relation to the alleged counselling and procuring by Mr Grill were, relevantly, identical to those given in relation to Mr Burke.
The particulars given in relation to the alleged benefits that Mr Burke and Mr Grill stood to gain were as follows:
4.5Benefit (Mr Burke stood to gain)
The benefit that Mr Burke stood to gain from the corrupt conduct was access to the then current draft of the Pearl Oyster Hatchery Policy Phase III, to which he would not otherwise have had access (and was not authorised to have access), and the opportunity to make amendments to the document beneficial to his client before it was submitted to Cabinet for approval.
4.6Benefit (Mr Grill stood to gain)
The benefit that Mr Grill stood to gain was the same as that for Mr Burke. Further, Mr Grill's client also stood to benefit as a result of Mr Grill and Mr Burke having the opportunity to amend the Pearl Oyster Hatchery Policy before it was submitted to Cabinet, in that the amendments were intended to improve his prospects of an increased hatchery quota (BAB/GAB 79).

Count 4: the trial judge's reasoning and conclusion

The trial judge's conclusion in relation to Mr Hondros and count 2 necessarily disposed of count 4, in that count 4 alleged, relevantly, that Mr Burke and Mr Grill had counselled or procured the criminal conduct alleged against Mr Hondros in count 2. As a result, neither Mr Burke nor Mr Grill could be convicted of count 4.
His Honour made these additional observations about count 4:
[I]t will be evident from what I have written that although the purpose was clear, in my judgment, to amend the document so as to have it go to Cabinet without reference to the Department or PIAC, or without anyone in the Department or PIAC realising that it had been materially changed, this was not a corrupt purpose under s 83 [262].
The trial judge therefore decided that Mr Burke and Mr Grill did not have a case to answer on count 4 and that a judgment of acquittal should be entered on that count.

Count 4: the trial judge's alleged errors

The grounds of appeal allege, in essence, that the trial judge also made in the context of count 4 the errors alleged at [274] above in the context of count 2.

Count 4: matters not in issue in the appeal

It was not in dispute, either at the trial or on the appeal, that at the material time Mr Hondros was a 'public officer', as defined in s 1(1) of the Code.
Also, it was not in dispute, on the appeal, that if Mr Hondros acted corruptly in the performance or discharge of the functions of his office or employment so as to gain a benefit for Mr Burke, Mr Grill and others, then Mr Hondros acted 'without lawful authority' and without 'a reasonable excuse', within s 83.

Count 4: was there a case to answer at the close of the State's case?

For the reasons I have given at [275] ‑ [298] above, in the context of count 2, on the best view of the evidence (from the State's perspective), at the close of the State's case, it was open to conclude, beyond reasonable doubt, that Mr Burke and Mr Grill had deliberately counselled or procured Mr Hondros to act corruptly, as alleged against Mr Hondros in count 2.
Put another way, on the best view of the evidence (from the State's perspective), at the close of the State's case, it was open to conclude that all hypotheses consistent with the innocence of Mr Burke or Mr Grill had been excluded as not reasonably open on the evidence. See [296] ‑ [297] above.

Count 4: conclusion

Subject to my consideration of Mr Hondros's notice of contention and the possible application of the 'proviso', the State succeeds in its appeal against the trial judge's decision that Mr Burke and Mr Grill had no case to answer on count 4.

Mr Hondros's notice of contention

Mr Hondros filed a notice of contention in which he asserted that the orders of the trial judge should be affirmed on grounds other than those relied on by his Honour.
There are two grounds in the notice of contention, which read:
Ground 1
That (contrary to his Honour's findings of law at paragraphs [33], [40] and [56] in The State of Western Australia v Burke [No 3] [2010] WASC 110 (Burke [No 3]) Mr Hondros was not a 'government contractor' for the purposes of s 81 of the Criminal Code.
Ground 2
That, instead of deciding that count 2 could not be proved in accordance with the law as wrongly explained in Willers v The Queen (1995) 81 A Crim R 219, his Honour ought to have dismissed the count against Mr Hondros as there was no evidence his conduct was 'corrupt' within the meaning of s 83(c) of the Criminal Code, in that his conduct was not:
(a)deliberate;
(b)contrary to the duties incumbent upon him by virtue of his office; and
(c)dishonest or attended by moral turpitude in the sense of a perversion of integrity.

Ground 1 of the notice of contention: Mr Hondros's submissions

According to counsel for Mr Hondros, Mr Hondros was neither a 'public servant', as defined in s 81(1) (that is, a person employed in the Public Service) nor a 'government contractor', as defined in s 81(1). Counsel argued that although Mr Hondros was a ministerial officer appointed under s 68(1) of the Public Sector Management Act, he was employed to provide services to the Minister but not to the State.
Counsel for Mr Hondros also submitted that Mr Hondros, as a ministerial officer, could not be a 'government contractor' for the purposes of s 81 of the Code. This submission was based on the assertion that the categories of 'public officer' and 'government contractor' under the Code are mutually exclusive. In other words, it was submitted that the expression 'government contractor' is used in contradistinction to 'public officer'.

Ground 1 of the notice of contention: its merits

In my opinion, Mr Hondros was a 'government contractor', as defined in s 81(1), in that he was a person who was not employed in the Public Service but who provided, or was employed in the provision of, services for the purposes of the State of Western Australia.
The phrase 'for the purposes of the State of Western Australia', in the definition of 'government contractor', connotes that the services in question are or will be provided for or in connection with, relevantly, activities which are within the exercise of the State's legislative or executive powers. The services provided by Mr Hondros fell within this description. It is unnecessary to state exhaustively the matters comprehended by the phrase 'for the purposes of the State of Western Australia'.
It is true that, by virtue of his appointment as a 'ministerial officer', Mr Hondros was appointed to assist a particular political office holder, namely, Mr Ford in his capacity as Minister for Fisheries. See the definitions of 'ministerial office', 'political office holder' and 'ministerial officer' in s 3(1) of the Public Sector Management Act.
However, Mr Ford, in his capacity as Minister for Fisheries, was a servant or agent of the State. He was the political head of the Department of Fisheries. Also, he was responsible for administering the statutes dealing with the Department's business. Services that are provided for a Minister in his or her capacity as a servant or agent of the State, or for the lawful activities of a department of government, are services 'for the purposes of the State of Western Australia', within the definition of 'government contractor' in s 81(1).
At the material time, the term 'public officer' was defined in s 1(1) of the Code, as follows:
The term 'public officer' means any of the following ‑
(a)a police officer;
(aa)a Minister of the Crown;
(ab)a Parliamentary Secretary appointed under section 44A of the Constitution Acts Amendment Act 1899;
(ac)a member of either House of Parliament;
(ad)a person exercising authority under a written law;
(b)a person authorised under a written law to execute or serve any process of a court or tribunal;
(c)a public service officer or employee within the meaning of the Public Sector Management Act 1994;
(ca)a person who holds a permit to do high level security work as defined in the Court Security and Custodial Services Act 1999;
(cb)a person who holds a permit to do high level security work as defined in the Prisons Act 1981;
(d)a member, officer or employee of any authority, board, corporation, commission, local government, council of a local government, council or committee or similar body established under a written law;
(e)any other person holding office under, or employed by, the State of Western Australia, whether for remuneration or not.
Section 81 is the sole provision in ch XII of the Code, headed 'Disclosing official secrets'. The offence created by s 81 expressly relates to public servants and government contractors, as defined. Section 81 makes no reference to public officers, as defined.
Chapter XIII of the Code, headed 'Corruption and abuse of office', comprises s 82 ‑ s 88. Section 82 is concerned with the bribery of a public officer, as defined; s 83 is concerned with corruption by a public officer, as defined; s 85 is concerned with the falsification of records by a public officer, as defined; and s 87 is concerned with impersonating a public officer, as defined. None of the provisions of ch XIII or the offences it creates refers to a 'public servant' or a 'government contractor'.
Section 81 and s 83 create different offences. No doubt, the definitions of 'government contractor' and 'public officer' overlap. Some 'government contractors' will be 'public officers' and some 'government contractors' will not be 'public officers'. Similarly, some 'public officers' will be 'government contractors' and some 'public officers' will not be 'government contractors'. There is no basis, in logic or on the application of the accepted principles of statutory construction, for concluding that the Parliament intended that the categories of 'public officer' and 'government contractor' under the Code should be mutually exclusive.
Ground 1 of the notice of contention is without merit.

Ground 2 of the notice contention: Mr Hondros's submissions

Counsel for Mr Hondros submitted that Willers was wrongly decided. It was asserted on behalf of Mr Hondros that:
(a)Malcolm CJ did not endeavour to construe and put together all elements of s 83(c) of the Code;
(b)The term 'corruptly' in s 83(c) involves conduct done deliberately, contrary to the duties incumbent upon the public officer by virtue of his or her office, and attended by 'moral turpitude', in the sense of the perversion of a person's integrity or dishonesty.
(c)Malcolm CJ erred in saying that s 83 is 'concerned with the use of power or authority for improper purposes' and that in relation to a 'public officer' the scope of s 83 was similar to the scope of s 232(6) of the Corporations Law, as then enacted, and as analysed by the High Court in Chew. Although Chew was relevant to an understanding of 'so as to gain a benefit', within s 83 of the Code, it was not relevant as to the meaning of 'corruptly'.
(d)Malcolm CJ erred in failing to discern the intention of the Parliament, and construe s 83, by an understanding of the meaning of the statutory text.
(e)The word 'corruptly' should be given the dictionary meanings quoted in Willers at 224.
According to counsel for Mr Hondros, it was not open to the tribunal of fact (taking the State's case at its highest), to find that the State had made out the 'corruption element' in count 2 beyond reasonable doubt.

Ground 2 of the notice of contention: its merits

The dictionary meanings set out by Malcolm CJ in Willers at 224 are these:
According to the Oxford English Dictionary (2nd ed 1989) Vol III at 974 the adverb 'corruptly' means to act 'In a corrupt or depraved manner; pervertedly; by means of corruption or bribery'. The participle 'corrupt' is said relevantly at 972 to include 'Debased in character, inflicted with evil, depraved; perverted; evil, wicked' and 'Perverted from uprightness and fidelity in the discharge of duty; influenced by bribery or the like'. The verb 'corrupt' includes 'To destroy or pervert the integrity or fidelity of (a person) in his discharge of duty; to induce to act dishonestly or unfaithfully; to make venal; to bribe'. See also the Shorter Oxford Dictionary at 400. The Macquarie Dictionary gives the meaning of the adjective 'corrupt' as including 'dishonest, without integrity; guilty of dishonesty, esp involving bribery'. This meaning is extended to the adverb which clearly includes acting dishonestly or without integrity. The noun 'corruption' includes the act of corrupting and extends to 'corrupt or dishonest proceedings' as well as 'bribery'.
It is apparent from these definitions that acting 'corruptly' can include acting 'dishonestly'. However, as Malcolm CJ went on to observe in Willers (224), acting 'corruptly' does not necessarily mean acting 'dishonestly'. See R v Smith [1960] 2 QB 423, 428 ‑ 429 (Lord Parker CJ).
It is unnecessary, in this appeal, to examine the correctness of Malcolm CJ's reasoning in Willers or to consider whether Willers was wrongly decided.
It is sufficient, for present purposes, to state that a government contractor who is a public officer will act 'corruptly' within s 83(c) if he or she, without lawful authority or a reasonable excuse, deliberately performs or discharges a function of his or her office or employment for an improper purpose, so as to gain a benefit, or so as to cause a detriment, to any person, at least where (as on the State's case in these prosecutions) the improper purpose involves a plan to deceive. See [278] ‑ [287], [295] ‑ [298] above.
For the reasons I have given at [275] ‑ [298], [309] ‑ [312] above, it was open to the tribunal of fact (taking the State's case at its highest), to find that Mr Hondros had a case to answer on count 3 and Mr Burke and Mr Grill had a case to answer on count 4.
Ground 2 of the notice of contention fails.

A miscellaneous issue: the 'proviso' in s 33(2a) of the Criminal Appeals Act

Section 33 of the Criminal Appeals Act applies in the case of an appeal by a prosecutor against any decision referred to in s 24(2) of the Act in relation to an indictable charge.
By s 24(2), the prosecutor may appeal to this court against any one or more of the following decisions by a judge of a superior court in relation to a charge of an indictable offence:
(a)a decision refusing to consent to the discontinuance of the prosecution of the charge;
(b)a judgment entered under the Criminal Procedure Act 2004 section 128(2) or (3);
(c)a decision ordering a permanent stay of proceedings on the charge;
(d)a decision ordering an adjournment of proceedings on the charge;
(da)a judgment of acquittal (other than a judgment of acquittal on account of unsoundness of mind) entered after a jury’s verdict of not guilty of a charge the statutory penalty for which is or includes imprisonment for 14 years or more or life, but only on the grounds that before or during the trial the judge made an error of fact or law in relation to the charge;
(e)a judgment of acquittal (other than a judgment of acquittal on account of unsoundness of mind) ‑
(i)entered after a decision by the judge that the accused has no case to answer on the charge; or
(ii)entered in a trial by the judge alone;
(f)any judgment entered as a result of any of the above decisions;
(g)any order made as a result of any of the above decisions or judgments.

Section 33(2a) provides that even if a ground of appeal might be decided in favour of the prosecutor, this court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
Section 24(2)(da) and s 33(2a) were inserted into the Criminal Appeals Act by the Criminal Law and Evidence Amendment Act 2008 (WA). Section 24(2)(da) confers a statutory right of appeal on the prosecutor from a judgment of acquittal (other than a judgment of acquittal on account of unsoundness of mind), entered after a jury's verdict of not guilty on a charge carrying a maximum penalty of at least 14 years' imprisonment or life, on the ground that the trial judge made an error of fact or law in his or her charge to the jury. It appears that s 24(2)(da) and s 33(2a) were enacted to give effect to recommendation 349 in the final report of the Law Reform Commission of Western Australia's Review of the Criminal and Civil Justice System in Western Australia, Project 92, September 1999.
I am not persuaded, in the present case, that no substantial miscarriage of justice has occurred as a result of the trial judge's erroneous decision that none of the respondents had a case to answer on any of counts 1, 2, 3 and 4 of the indictment.
The critical issue for the trial judge, on the no case submission, was whether a reasonable tribunal of fact, properly instructed, could conclude beyond reasonable doubt, in relation to each count, that the relevant respondent or respondents was guilty. Put another way, the critical issue for his Honour was whether a reasonable tribunal of fact, properly instructed, could exclude all hypotheses consistent with the innocence of the relevant respondent or respondents as not reasonably open on the evidence.
The critical issue for this court, on the appeal, is whether his Honour's decision on the no case submission was in error. For the reasons I have given, his Honour's decision was erroneous.
The State's case against the respondents has not been tried according to law. The trial judge should have decided that there was a case to answer on counts 1, 2, 3 and 4, and his Honour should have put each of the respondents to his election in relation to whether to give or adduce evidence. A final determination as to the facts to be found and the inferences to be drawn can be made only after each respondent has made his election and the procedures for the taking of evidence and the receipt

of submissions have been completed. A fair trial involves fairness both to the accused and the State.

In these circumstances, it is not open to conclude that no substantial miscarriage of justice has occurred. The 'proviso' in s 33(2a) should not be applied.

The result of the appeal

I would grant leave to appeal on grounds 1, 4, 5, 6 and 7, allow the appeal, dismiss the notice of contention, set aside the judgments of acquittal on counts 1, 2, 3 and 4 of the indictment, and order a new trial on each of those counts before a differently constituted court.
MAZZA J: I agree with Buss JA.