The State of Western Australia v Burke - [2010] WASC 73

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: THE STATE OF WESTERN AUSTRALIA -v- BURKE [2010] WASC 73

CORAM: MURRAY J

HEARD: 7 APRIL 2010

DELIVERED : 12 APRIL 2010

PUBLISHED : 16 APRIL 2010

FILE NO/S: INS 121 of 2009

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecutor
AND
BRIAN THOMAS BURKE
Accused Burke
JULIAN FLETCHER GRILL
Accused Grill
NATHAN JOHN HONDROS
Accused Hondros

Catchwords:

Criminal law and procedure - Charges of disclosing official secrets and official corruption against same accused person - Application for declaration that accused has no case to answer on charges of disclosing official secrets or for permanent stay of all charges - Applicant admitted to be a 'public officer' - Whether applicant may also be a 'government contractor'

Legislation:

Nil

Result:

Application dismissed

Category: A

Representation:

Counsel:

Prosecutor:     Mr B Fiannaca SC & Ms L Christian
Accused Burke             :     Mr G R Donaldson SC
Accused Grill                :     Mr T F Percy QC & Mr A Golem
Accused Hondros          :     Mr M Ritter SC & Ms C H Meighan

Solicitors:

Prosecutor:     Director of Public Prosecutions (WA)
Accused Burke             :     Fairweather & Lemonis
Accused Grill                :     Freehills
Accused Hondros          :     Talbot Olivier

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

Project Blue Sky Inc v Australian Broadcasting Authority [1989] HCA 28; (1998) 194 CLR 355
WA v Watson [1990] WAR 248

MURRAY J:

The application

These reasons concern applications made by Mr Hondros. He applied for an order that the prosecution of the charges brought against him upon indictment should be stayed permanently in the interests of justice: Criminal Procedure Act 2004 (WA) (CPA), s 90. If such an order is made, the accused may be discharged from the charges so stayed. The application is framed as seeking orders in respect of all three counts on the indictment which are against Mr Hondros, but in argument, it seemed clear that the orders were sought in relation to counts 1 and 3.
Alternatively, Mr Hondros made an application that I find him not guilty of counts 1 and 3, on the ground that he has no case to answer on those charges as a matter of law. On that ground, he again sought to be discharged from prosecution upon those counts.
The power to order a permanent stay of a prosecution, under CPA, s 90, may be exercised, 'at any time'. There was potentially a technical problem in respect of the power to acquit the accused. The application was heard and determined before the commencement of the trial which is to be before me, as a trial by judge alone. The CPA, s 108, provides the trial judge's power to acquit the accused on the ground that he has no case to answer. It may be exercised, 'at any time after the close of the prosecutor's case'. As I have mentioned, the trial has not yet commenced. The CPA, s 119(1), provides that in a trial by judge alone, the judge must apply the same principles of law and procedure as would be applied in a trial before a jury. In my opinion, these provisions are fairly open to the interpretation that, strictly speaking, I had no power to consider and rule upon an application of this kind until the close of the prosecutor's case.
However, no such point was taken, and the application relied upon the general provisions of the CPA, s 98, which provides the matters which may be dealt with before trial. In particular, s 98(2)(e) gives the court power, at any time before the trial begins, to deal with 'any application made by a party under this Part'. An application under s 108 is such an application, but the difficulty, of course, is that the power conferred upon the court to acquit the accused on the ground that he has no case to answer, is limited in the time of its exercise.
However, as I say, no such point was taken, and because both limbs of the application depended upon the same matters of law, it was convenient to deal with them before the trial commenced so that the parties would know the legal framework, in terms of the indictment presented, which would be applicable to the trial. The application was heard on admitted facts and I dismissed both limbs of the application. These are my reasons for that decision.

The charges against Hondros

The first three counts in the indictment are against Mr Hondros. Count 1 charges him as a 'government contractor' with an offence of making an unauthorised disclosure of official information to Mr Burke without lawful authority, on 25 September 2006. The particulars of that alleged disclosure are presently immaterial.
Count 2 charges Mr Hondros with the offence known as corruption. It is alleged that between 8 ‑ 12 October 2006, without lawful authority or a reasonable excuse, he acted corruptly in the performance or discharge of the functions of his office or employment as a 'public officer'. Count 3 is charged in the alternative to count 2, and alleges an offence committed by Mr Hondros on 11 October 2006 as a 'government contractor', when it is alleged he made an unauthorised disclosure of official information.
If one focuses upon the counts of the indictment, counts 4 and 5, against the accused persons Messrs Burke and Grill, their interest in Mr Hondros's application is revealed, because they are charged, in the alternative, with counselling or procuring Mr Hondros to act corruptly (count 4), or with counselling or procuring Mr Hondros to make an unauthorised disclosure (count 5), in both cases between 8 ‑ 12 October 2006, a consequence of acquitting Mr Hondros of count 3 or of permanently staying the prosecution of that count, would therefore be the dismissal of count 5.
Counts 1 and 3 charge an offence against s 81(2) of the Criminal Code (WA) which makes it an offence, without lawful authority, to make an unauthorised disclosure. The section was inserted in the Code in 2004 by the Criminal CodeAmendment Act 2004 (WA). Since then, the penalty provision has been amended, but the section is otherwise unchanged.
Section 81(2) provides an offence which may be committed by any person who makes an unauthorised disclosure. But s 81(1) defines a number of the terms used in the section. By that subsection:
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.
Therefore, although in theory any person may commit the offence, the requirement that it be an unauthorised disclosure means that the accused must be a person who is or has been, 'a public servant or government contractor'.
A 'public servant' is defined in s 81(1) as, 'a person employed in the Public Service'. The term, 'person employed in the Public Service', is and has always been partly defined in s 1 of the Code to include:
members of the defence force and police officers, and persons employed to execute any process of a court of justice, and persons employed by the Commissioner of Railways.
Prior to the enactment of the present form of s 81 in 2004, the section and the offence it creates did exist in the Code, but it was then an offence which might be committed by a person who was or had been, 'employed in the Public Service'. As I have said, the term 'person employed in the Public Service', has always been defined in s 1(1) of the Code as it now is.
When the section was repealed and re‑enacted in 2004, it was somewhat modernised in the terminology employed. But the substantive change was to extend the ambit of the section from the definition of an offence which could be committed by a person who was or had been a public servant, to an offence which could be committed by such a person or a 'government contractor'.
The term 'government contractor' is defined in s 81(1) as follows:
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;
I was invited to refer to the explanatory memorandum and second reading speech on the introduction of the Criminal Code Amendment Bill into the Parliament. The second reading speech, by the Hon J A McGinty MLA, the Attorney‑General (Hansard, Legislative Assembly, 3 April 2003, 6170) contains a brief reference to s 81. The Hon Attorney referred to the amendments made in 1996 to extend the operation of the section to those who had been, but were no longer in the public service, in respect of the disclosure of information which had come to them while they were so employed. He added:
With the increasing use of contracted labour to supply government services to the community, contracted people are, of necessity, becoming aware of confidential or private information. The extension of these non‑disclosure provisions to government contractors, such that they will be subject to the same sanctions as public servants for breaches of confidentiality, is an important step in ensuring public confidence in the provision of government services by contractors. The Bill proposes to replace the existing secrecy provision with a new section 81 that applies to public servants, government contractors and those people who have been either a public servant or government contractor.'
That sort of extrinsic information provides little assistance, in my opinion, in respect of the proper interpretation of the section.
Part III of the Code, 'Offences against the administration of law and justice and against public authority', commences with Chapter XII, 'Disclosing official secrets'. Section 81 is the only section in that chapter, but it is immediately followed by Chapter XIII, 'Corruption and abuse of office'. It is in that linked chapter that s 83, defining the offence of corruption, appears. It is an offence which may be committed by a 'public officer', relevantly for present purposes, who:
without lawful authority or a reasonable excuse -
(a)…
(b)…
(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 …
This section has a different lineage from s 81. Originally it defined an offence capable of being committed by a person 'employed in the Public Service' who sought or accepted a bribe or a promise of reward for the performance of his duty. The marginal note entitled the section, 'Extortion by public officers'. The ambit of the offence was considerably widened upon its repeal and re‑enactment by the Criminal Law Amendment Act 1988, an omnibus enactment which did much in addition to re‑enacting the sections concerned with corruption and abuse of office.
But it was then that s 83 took advantage of the newly defined term, 'public officer', which appeared in s 1(1). As that definition is now, it is 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;
The term is a very wide one. Were it not for s 84, which excludes judicial officers, it would no doubt include judges.
So far as Mr Hondros is concerned, the particulars of count 2 of the indictment make it clear that he is alleged to have been a public officer, under par (c) of the definition, in that he was an employee within the meaning of the Public Sector Management Act 1994 (WA), 'in that he was a person employed by the Minister for Public Sector Management as a ministerial officer in the position of Chief of Staff'.
On the other hand, so far as counts 1 and 3 are concerned, the particulars provided by the prosecution assert that Mr Hondros was a government contractor in that he:
was employed under contract as a ministerial officer, in the position of Chief of Staff in the office of the Minister for Local Government and Regional Development; Fisheries; the Kimberley, Pilbara and Gascoyne, Jonathan Ford MLA. In that capacity, Mr Hondros provided services for the purposes of the State of Western Australia.

The material facts

Mr Hondros admits that he was, at the material times, a public officer because he was an employee within the meaning of the Public Sector Management Act 1994 (WA) (PSMA). An affidavit was filed on his behalf. An annexure is a letter dated 8 August 2006 under the hand of Mr Wauchope, the Director General of the Department of Premier and Cabinet. It offered Mr Hondros the position of Chief of Staff in the office of the Minister for Local Government and Regional Development; Fisheries; the Kimberley, Pilbara and Gascoyne.
The offer was made in accordance with PSMA, s 68, a provision in Part 4 of that Act, entitled, 'Assistance for political officeholders'. Section 68 provides for a Minister, in this case the Premier, to appoint a person as a ministerial officer to assist that minister or another political officeholder. PSMA, s 3(1), defines 'political officeholder' in such a way as to include a Minister of the Crown. In this case, that was Mr Ford, the Minister administering the portfolios identified in Mr Wauchope's letter.
Section 68(2) requires the employment of a ministerial officer to be governed by a contract of employment. The relevant contract of employment is an annexure to the affidavit. It was signed by the Minister or his nominee on 5 September 2006, having been signed by Mr Hondros on 13 August 2006.
Under the PSMA, a ministerial officer is part of a ministerial office, being appointed to assist a particular Minister. Ministerial offices are part of the 'public sector' as defined by s 3(1). A ministerial officer is therefore an 'employee' as defined by s 3(1). Such a person is therefore a 'public officer' within par (c) of the definition of that term in s 1(1) of the Code.
The public sector under the PSMA is not the same as the 'Public Service' as constituted under s 34 of that Act, and it is clear that Mr Hondros was never a 'public service officer' within the meaning of the PSMA. He was not, therefore a person employed in the Public Service within the meaning of the Criminal Code, and it will be recalled that the definition of a government contractor, in s 81(1), distinguishes between such a person and a person who is employed in the Public Service. In short, Mr Hondros's concession that he was a public officer, within the meaning of the Code, and s 83 in particular, was rightly made.
The question posed in this application is whether, as a matter of law and statutory interpretation, Mr Hondros might, at the one time, be both a public officer, because he was an employee within the meaning of the PSMA, and a government contractor because he was not employed in the Public Service, but upon the basis that he was employed in the provision of services for the purposes of the State of Western Australia, because he was a ministerial officer appointed to assist a political officeholder.

A government contractor

Typically of him, Mr Ritter SC developed his argument in support of the application carefully and comprehensively. But it can, I think, be reduced to a number of propositions which may be shortly put, although in doing so I do not overlook the more detailed development which Mr Ritter provided to the court.
A prime contention was that a proper interpretation of the relevant provisions of the Criminal Code should lead to the conclusion, relative to these charges, that so far as they are particularised against Mr Hondros, s 81 and s 83 of the Code cannot both apply to him. To plead that he was both a government contractor, as defined, and a public officer, as defined, would therefore be inconsistent and impermissible as a matter of law. It would follow, so it was argued, that if Mr Hondros was charged as a public officer, he could not also be charged, by counts 1 and 3 of the indictment, as a government contractor. Mr Hondros was not, having regard to the agreed and admitted facts, a government contractor as defined by s 81(1) of the Code. He was not, so it was argued, employed in the provision of goods or services for the purposes of the State of Western Australia. I am of the view that neither proposition is correct.
It is well settled, of course, that a purposive construction of legislation is to be adopted. The task is to ascertain the meaning of a legislative provision intended by the legislature. Therefore, it will be necessary to have regard to the statutory context in which the particular provision to be interpreted is found, and the purpose of the enactment. To that end, extrinsic aids to interpretation may be resorted to. The Interpretation Act 1984 (WA), s 18 and s 19, so provide, and put in those general terms, that is the common law: Project Blue Sky Inc v Australian Broadcasting Authority [1989] HCA 28; (1998) 194 CLR 355, where, at 384, McHugh, Gummow, Kirby and Hayne JJ said:
the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning [78].
I have had regard to the extrinsic material brought to my attention on behalf of Mr Hondros. As I have already indicated, I derived little assistance from it, but I do note that the re‑enactment of s 81 had nothing to do with giving the section a field of operation distinct from s 83, but was directed to the new problem potentially presented by government contractors, within the meaning of the PSMA, being brought under the provisions of s 81.
In my opinion, the ordinary natural meaning of the words used in the legislation may be applied. Section 83 is obviously the wider provision in terms of the ambit of the section, applying generally as it does, to conduct which may be described as corruption by a public officer. It may well overlap the more particular offence provided by s 81(2) in relation to unauthorised disclosure of what the heading to the section refers to as official secrets. Further, one can well imagine cases where such a disclosure without lawful authority might not amount to the commission of an offence against s 83. There is no reason, in my view, to read s 81 down so that it does not apply to conduct which would constitute an offence against s 83.

Nor can I see any reason why a person may not, at the same time, be properly described as a public officer within the meaning of s 83, and a government contractor within the meaning of s 81. There is no discernable legislative intention that a person who is a public officer may not also be a government contractor, as defined. Were that the legislative intention, one might have expected the definition of government contractor to say so. What it does do is what the Hon Attorney and the Government, in 2004, said they wanted to do. It creates an offence which may be committed by a public servant or a person who, although not employed in the public service, is or was employed to provide goods or services for the purposes set out in the definition.

The purposes of the State

I turn my attention to the second part of the argument which advanced the proposition that Mr Hondros was not employed in the provision of services for the purposes of the State of Western Australia. The phrase used in the definition of government contractor, in s 81(1), refers to a person, 'who provides, or is employed in the provision of, goods or services'. In that context, it is clear, in my view, that the use of the word 'employed' is intended to provide generally for a person who may not be said, himself, to provide the goods or services, but who is employed in their provision, in the sense that he or she works to assist in the provision of the goods or services.
It would not matter what sort of contractual arrangement there might be. The legislation is not distinguishing between people on that basis. It would not matter, therefore, if the person was a volunteer, or an independent contractor or an employee in the strict sense known to the law. The PSMA itself speaks about a person being employed in the sense of being appointed to do something: s 68. There can be no doubt that, under the contract into which he entered, Mr Hondros was employed in the provision of services generally described as the provision of assistance to the Minister as Chief of Staff in his office.
Under PSMA, s 69, as a ministerial officer, Mr Hondros was to perform, under the supervision of the Minister in question, such functions as were specified in the contract, or as directed by the Minister to whose office he was attached. Clause 3 of the contract itself simply required Mr Hondros to, 'perform the functions as are from time to time specified by the Minister or the political officeholder'. Those functions would be official functions, functions directed to be performed by a Minister of the Crown, acting as such, in the performance of that person's constitutional role.
I am satisfied that Mr Hondros was employed in the provision of services. The question then is whether that was, 'for the purposes of the State of Western Australia'.
As it was put by the Full Court in WA v Watson [1990] WAR 248 at 266, the State is a legal person which may be proceeded against, or may take proceedings, in the name, 'the State of Western Australia': Crown Suits Act 1947 (WA), s 5. It is that entity which was deemed to be established on 1 June 1829: Interpretation Act, s 73. The term 'the State of Western Australia' may also refer to the Government of the State, ie: the Executive and the holders of executive office constituted under s 43 of the Constitution Acts Amendment Act 1899 (WA). It follows that when a Minister of the State or other holder of executive office, acts in an official capacity, that person personifies the State of Western Australia, and when acting in an official capacity, that person does so, in my opinion, for the purposes of the State of Western Australia.
It follows, in my view, that a person who is employed, in the broad sense of the word, to assist the appointing Minister or another political officeholder in the performance of his or her duties, provides services or is employed in the provision of services, for the purposes of the State of Western Australia. On the admitted facts, Mr Hondros was a government contractor at the material times within the meaning of s 81 of the Code.
In my view, that interpretation is consistent with the purpose of the enactment of s 81 to which I have referred above. It extends the operation of s 81 to those persons who learn of, or come into possession of, 'official information', as that term is defined in s 81(1) of the Code, because of their employment in the provision of goods or services for the purposes of the State. The intention is that such persons may come under a duty to keep such information secret. In that event, the 'disclosure', as defined in s 81(1) to mean any publication or communication of such official information without lawful authority, constitutes the relevant offence.
It was for those reasons that I dismissed both limbs of Mr Hondros's application.