The State of Western Australia v Godbold
[2022] WADC 112
•18 NOVEMBER 2022
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- GODBOLD [2022] WADC 112
CORAM: LEVY DCJ
HEARD: 15 NOVEMBER 2022
DELIVERED : 18 NOVEMBER 2022
FILE NO/S: IND 2314 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
LEANNE GODBOLD
AMBER CLAIR HALLSON
D-LVM
WAYNE ALLAN RUSSELL
Catchwords:
Criminal law - Application for a permanent stay pursuant to s 90 of the Criminal Procedure Act 2004 (WA) - No case to answer s 98 of the Criminal Procedure Act 2004 (WA) - 'Official secrets' pursuant to s 81 of the Criminal Code of Western Australia - Duty not to disclose
Legislation:
Criminal Code of Western Australia, s 81
Criminal Procedure Act 2004 (WA), s 90, s 98
Result:
Fourth named accused's application for a permanent stay dismissed
Representation:
Counsel:
| The State of Western Australia | : | Mr D L S Davidson |
| First Named Accused | : | No appearance |
| Second Named Accused | : | No appearance |
| Third Named Accused | : | No appearance |
| Fourth Named Accused | : | Mr F P Merenda |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| First Named Accused | : | Not applicable |
| Second Named Accused | : | Not applicable |
| Third Named Accused | : | Not applicable |
| Fourth Named Accused | : | Francis Burt Chambers |
Case(s) referred to in decision(s):
Attorney General v Guardian Newspapers Ltd [No 2] [1990] 1 AC 109
Attorney‑General v Guardian Newspapers Ltd (No 2) [1988] UKHL 6; (1988) 3 All ER 545
Australian Football League v Age Co Ltd [2006] VSC 308
Barton v The Queen (1980) 147 CLR 75
Buitendag v Ravensthorpe Nickel Operations Pty Ltd [2012] WASC 425
Clyne v New South Wale Bar Association (1960) 104 CLR 186
Coco v AN Clark (Engineers) Ltd [1969] R.P.C. 41
Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654
Morris v Hanley [2003] NSWSC 42; (2003) 173 FLR 83
Morrison v Kiwi Electrix Pty Ltd [1998] WASCA 203; (1998) 19 WAR 482
National Tertiary Education Industry Union v University of Sydney [2012] FCAFC 159
R v Bilick (1984) 36 SASR 321
Rob v Green (1895) 2 QB 315
Salmat Document Management Solutions Pty Ltd v The Queen [2006] WASC 65
The State of Western Australia v Burke [2011] WASCA 190; (2011) 42 WAR 124
The State of Western Australia v Montani [2007] WASCA 259; (2007) 182 A Crim R 15
Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77
Williams v Spautz (1992) 174 CLR 509
Woodward v Hutchins [1977] 1 WLR 760
Zafiriou v Saint-Gobain Administration Pty Ltd [2013] VSC 377
LEVY DCJ:
[This judgment was delivered extemporaneously on 18 November 2022 and edited from the transcript to correct matters of grammar and to include complete and correct references.]
Wayne Allan Russell (the accused) is charged on an indictment that contains 14 counts. The indictment, dated 8 June 2022, was presented against the accused as well as three other people (the co‑accused), namely:
•Leanne Godbold;
•Amber Clair Hallson;
•D-LVM.
Counts 1 and 2 on the indictment do not involve the accused. Each of the other three people named on the indictment have pleaded guilty. Consequently, Mr Russell faces a trial with respect to only the 12 counts against him being counts 3 - 14 on the indictment. The State intends to provide a dummy indictment to the jury renumbering the counts on the indictment. I will adopt the numbering of the counts set out on the dummy indictment for ease of reference. The counts on the indictment are ('Dummy Indictment' number in brackets):
Count
Alleged Offence Dates Alleged Alleged Offenders 1 Bribery of public officer (Rebekah Rose Tilbury) - s 82 27/8/2017 - 31/1/2019 Leanne Godbold
Amber Clair Hallson
D-LVM2 Fraud - s 409(1)(d) 23/8/2018 Leanne Godbold
Amber Clair Hallson3 (1) Disclosing official information (Pippa Jay Clinch) - s 81(2) 2/2/2019 Wayne Allan Russell
Leanne Godbold
D-LVM4 (2) Disclosing official information (Pippa Jay Clinch) - s 81(2) 2/2/2019 Wayne Allan Russell
Leanne Godbold
D-LVM5 (3) Disclosing official information (Pippa Jay Clinch) - s 81(2) 9/2/2019 Wayne Allan Russell
Leanne Godbold
D-LVM6 (4) Disclosing official information (Pippa Jay Clinch) - s 81(2) 9/2/2019 Wayne Allan Russell
Leanne Godbold
D-LVM
7 (5) Disclosing official information (Pippa Jay Clinch) - s 81(2) 9/2/2019 Wayne Allan Russell
Leanne Godbold
D-LVM8 (6) Disclosing official information (Pippa Jay Clinch) - s 81(2) 10/2/2019 Wayne Allan Russell
Leanne Godbold
D-LVM9 (7) Disclosing official information (Pippa Jay Clinch) - s 81(2) 10/2/2019 Wayne Allan Russell
Leanne Godbold
D-LVM10 (8) Disclosing official information (Pippa Jay Clinch) - s 81(2) 26/2/2019 Wayne Allan Russell
11 (9) Disclosing official information (Pippa Jay Clinch) - s 81(2) 5/3/2019 Wayne Allan Russell
12 (10) Disclosing official information (Pippa Jay Clinch) - s 81(2) 5/3/2019 Wayne Allan Russell
13 (11) Disclosing official information (Pippa Jay Clinch) - s 81(2) 17/3/2019 Wayne Allan Russell
14 (12) Disclosing official information (Pippa Jay Clinch) - s 81(2) 17/3/2019 Wayne Allan Russell
In relation to each offence, the State alleges that the accused 'counselled, procured or aided Pippa Jay Clinch, a government contractor, without lawful authority, to make an unauthorised disclosure to him and Leanne Godbold, in that she disclosed official information, namely the location of a motor vehicle crash, in circumstances where Pippa Jay Clinch was under a duty not to make the disclosure'.
Each of the alleged unauthorised disclosures is constituted by a text message allegedly sent by Ms Clinch to either the accused or Ms Godbold containing information about a crash location.
The accused's application to permanently stay the indictment
Section 90 of the Criminal Procedure Act 2004 (WA) (CPA)
The accused has brought an application seeking an order that the indictment be permanently stayed pursuant to s 90 of the Criminal Procedure Act 2004 (WA) (CPA) on the basis that the prosecution of him on each and every count constitutes an abuse of process as it is foredoomed to fail. In essence, the accused submits that the evidence, taken at its highest, is incapable of proving beyond reasonable doubt the guilt of the accused on any of the counts on the indictment.
This court has the power, at any time after a prosecution has been commenced in the court, to permanently stay a prosecution 'if it is in the interests of justice to do so'.[1] The phrase 'if it is in the interests of justice to do so' has wide import and adopts the earlier common law authorities which recognised the need for courts to be able to exercise effectively the inherent jurisdiction to ensure fairness in proceedings.[2]
[1] CPA s 90(1).
[2] Clyne v New South Wale Bar Association (1960) 104 CLR 186; Barton v The Queen (1980) 147 CLR 75; Williams v Spautz (1992) 174 CLR 509.
Consequently, the circumstances in which the interests of justice may require that a prosecution be permanently stayed are extremely varied and there are no fixed categories.[3]
[3] Hunter v Chief Constable of the West Midlands Police [1982] AC 529, 536 (Lord Diplock), dealing with abuse of process.
One such category recognised and long established as an abuse of process is where the prosecution of the matter is foredoomed to fail.[4]
[4] Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77, 392 - 393, [23] (Mason CJ, Deane & Dawson JJ).
Ordinarily, courts will only stay prosecutions on the basis that they constitute an abuse of process if exceptional circumstances are established.[5] This in turn requires a consideration of many factors including:[6]
(a)the requirements of fairness to the accused;
(b)the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime;
(c)the need to maintain public confidence in the administration of justice;
(d)the conduct of the prosecution.
[5] Walton v Gardiner (392).
[6] Walton v Gardiner (396).
It may be argued that, given that s 90 of the CPA simply only requires that it be in the interests of justice to do so, that in circumstances where the application is brought on the basis that the prosecution is foredoomed to fail, no additional considerations are necessary.[7]
[7] See Salmat Document Management Solutions Pty Ltd v The Queen [2006] WASC 65 [54] (McKechnie J).
At the commencement of the accused's application, which was ultimately clarified as an application brought pursuant to s 90 of the CPA, given that the application was based upon a contention that the State's evidence, taken at its highest, could not in law sustain a conviction beyond reasonable doubt, I raised the question of whether this was, in truth, an application brough pursuant to s 98 of the CPA, namely an application that the accused has no case to answer with respect to any of the charges.[8]
[8] CPA s 98(2)(c).
The test of 'no case to answer' is well known. The test is, on the evidence as it stands, can the accused be lawfully convicted. The test is not whether, on the evidence as it stands, should the accused be convicted.[9]
[9] 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] WASCA 203; (1998) 19 WAR 482; The State of Western Australia v Montani [2007] WASCA 259; (2007) 182 A Crim R 15.
Furthermore, as Buss JA noted in The State of Western Australia v Burke[10] (Martin CJ & Mazza agreeing), where such as in this case, a no case to answer is made in a prosecution which depends wholly or significantly,
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.
[10] The State of Western Australia v Burke [2011] WASCA 190; (2011) 42 WAR 124 (Burke).
Although no application has formally been made pursuant to s 98 of the CPA by the accused, whether the application is brought pursuant to s 90 or s 98(2)(c), ultimately the same issue arises, namely whether the evidence intended to be relied upon by the State could properly sustain a verdict of guilty on each of the charges on the indictment.
Section 81(2) of the Code
The offences are brought pursuant to s 81(2) of the Code, which reads as follow:
A person who, without lawful authority, makes an unauthorised disclosure is guilty of a crime and is liable to imprisonment for 3 years.
Section 81(1), relevant to this case, defines the following terms:
An 'unauthorised disclosure' relevantly means and includes:
… the disclosure by a person who is a … government contractor of official information in circumstances where the person is under a duty not to make the disclosure;
…
A '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; or
(b)the Public Service; or
(c)the Police Force of Western Australia.
'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 ……. government contractor.
…
'Information' includes:
… false information, opinions and reports of conversations.
With reference to Burke at [101], leaving aside the need to prove that the accused counselled, procured or aided Ms Clinch to disclose the unauthorised disclosure, the elements that the State is required to prove against the accused in relation to each offence are as follows:[11]
•First, that Ms Clinch was, at the material time, a 'government contractor', as defined in s 81(1).
•Secondly, that Ms Clinch disclosed 'official information', as defined in s 81(1), that is, the content of the communication made by Ms Clinch to either the accused and Ms Godbold contained 'official information'.
•Thirdly, that the disclosure was an 'unauthorised disclosure', within par (a) of the definition of that term in s 81(1), in that Ms Clinch was in the circumstances under a duty not to make the disclosure.
•Fourthly, that the disclosure was made 'without lawful authority', within the meaning of s 81(2).
[11] Burke [101] (Buss JA).
In this case, there is no dispute that Ms Clinch:
(a)was, pursuant to an employment agreement made between her and St John Ambulance Australia (WA) Inc (SJA) on 30 September 2011 (the Employment Agreement), employed as a communications operator in the period between 2 February 2019 and 17 March 2019 and was therefore a government contractor providing services to the State of Western Australia; or
(b)became aware of the relevant information because of her role as a government contractor; or
(c)that the information she came into possession of as a government contractor was 'official information'; or
(d)that she disclosed the 'official information' to the accused and Ms Godbold in the course of her employment as a government contractor by sending the relevant text messages.
What is in dispute and goes to the heart of the case is whether the disclosure of the 'official information' was an 'unauthorised disclosure'.
With respect to the third and critical element identified and in dispute between the State and the accused, the State is required to prove beyond reasonable doubt that at the time Ms Clinch disclosed the official information, she was under a duty not to make the disclosure. That, the accused submits, on the state of the proposed evidence, could not be proved beyond reasonable doubt.
Whether there was such a duty not to disclose unauthorised information and the source of the duty is not defined by any provision of the Criminal Code: 'Section 81 assumes the existence of the duty under an external source'.[12]
[12] Burke [159].
In this case, the State contends that the duty imposed upon Ms Clinch as a government contractor, namely 'not to make disclosure of official information', comes from four separate and discrete sources.
First, cl 7.1 and cl 7.2(b) of Ms Clinch's Employment Agreement which expressly imposed a duty upon her not to disclose confidential information that was not public knowledge.[13]
[13] Outline of the State's Submissions As (sic) Opposed to Permanent Stay dated 14 November 2022 par 30(i).
Secondly, cl 3.1(d) of the Employment Agreement in combination with cl 5 of the SJA Computing Resources Acceptable Use Policy (SJA Policy) which prohibited the disclosure of information that 'was in SJA's computer system or came into or was being entered into the SJA systems'.[14]
[14] Outline of the State's Submissions As (sic) Opposed to Permanent Stay dated 14 November 2022 par 30(ii).
Thirdly, '[a]n express or implied contractual obligation of good faith, not to misuse or disclose information (confidential or otherwise) received by her in the course of employment other than in the course of her employment, to her own benefit or to the detriment of SJA. The express duty [arising] from subclauses 3.2(a) to (c) of [the Employment Agreement]'.[15]
[15] Outline of the State's Submissions As (sic) Opposed to Permanent Stay dated 14 November 2022 par 30(iii).
Fourthly, a fiduciary duty owed by Ms Clinch to SJA[16] in circumstances where her duty 'not to disclose information (confidential or otherwise)'[17] arose whereby the disclosure of the information was for her to:
(a)make a profit or benefit from the information; or
(b)constituted an act in conflict with SJA's interests.
[16] Outline of the State's Submissions As (sic) Opposed to Permanent Stay dated 14 November 2022 par 30(iv).
[17] State's particulars dated 17 November 2022.
The State contends that the question of whether a duty not to disclose existed is a question of law. It is therefore necessary to consider the various issues raised by the State relating to:
1.the interpretation and meaning of the Employment Agreement and SJA Policy; and
2.whether Ms Clinch had a fiduciary duty to SJA, and if so, whether it included a duty not to disclose; and
3.whether Ms Clinch had a duty to act in good faith towards SJA, and if so, whether it included a duty not to disclose.
These are all questions of law to be considered on the available material.
The Employment Agreement
So far as the State relies upon the Employment Agreement as imposing a duty not to disclose confidential information, as noted by Buss JA in Burke:[18]
the definition of 'government contractor' in s 81(1), by the words 'contractor' and 'employed' and the reference to 'goods or services', contemplates that a person within the definition will be engaged to provide, or will be employed to provide, goods or services under a contract. A government contractor is not employed in the Public Service. In these circumstances, the duty with which s 81 is concerned also includes, at least in the case of a government contractor, a duty of confidentiality imposed on the government contractor (in his or her capacity as such) by contract.
[18] Burke [165].
Ms Clinch was contractually obligated to carry out various duties set out pursuant to the Employment Agreement. They are set out at cl 3 ('Employee's duties') and cl 7 ('Confidential Information'), namely:
3.1Duties Employee must perform (cl 3.1(a) - cl 3.1(f))
3.2What the Employee must not do (cl 3.2(a) - cl 3.2(e))
7.1Duty not to disclose Confidential Information (qualified by the exceptions to the duty not to disclose set out at cl 7.2).
Furthermore, pursuant to cl 9.3 of the Employment Agreement, Ms Clinch was liable to have her employment with SJA terminated without notice in certain circumstances, including if:
(a)pursuant to cl 9.3(c) she breached her duty not to disclose confidential information under cl 7; or
(b)pursuant to cl 9.3(d) she materially failed to perform her employee's duties.
Clauses 7.1 and 7.2(b) of Ms Clinch's Employment Agreement
The relevant parts of Clause 7 of the Employment Agreement are reproduced as set out in the document as follows:
7. Confidential Information
7.1 Duty not to disclose
Without limiting the Employee's duties at law, the Employee must keep Confidential Information confidential.
7.2 Exceptions to duty not to disclose
Despite clause 7.1, the Employee may disclose Confidential Information:
(a)…..
(b)that was public knowledge when this agreement was signed or became so at a later date (other than as a result of a breach by the Employee); (the Public Knowledge Exception); or
(c) …..
Clause 1.1 of the Employment Agreement defines 'Confidential Information' to mean 'all confidential information of the Employer and the Employer's customers of which the Employee becomes aware or generates (both before and after the day this agreement is signed) and all operational requirements of the Employer and Medic Alert'.
It is obvious that the definition of 'Confidential Information' contained in the Employment Agreement is somewhat circular.
Clause 7.2(b) expressly permits the disclosure of confidential information that 'was public knowledge'. In that way, although the information may still be deemed pursuant to the Employment Agreement to be 'confidential information', if it was information that was public knowledge, the duty not to disclose the information would no longer apply.
There is no dispute that the Employment Agreement imposed upon Ms Clinch a duty not to disclose confidential information that was not public knowledge.
So far as this source of the duty is concerned, the accused submits that all of the Confidential Information disclosed by Ms Clinch was 'public knowledge'. If the exception contained in cl 7.2(b) applied, the disclosure could not be said to have been, and could not therefore be, an 'unauthorised disclosure' and the charge must necessarily fail. Indeed, the accused submits that, even if there were other sources of the duty not to disclose official information which are outside of the Employment Agreement, which is very much disputed by the accused, each one would still be subject to the Public Knowledge Exception.
The State accepts that if the information disclosed by Ms Clinch was information within the public domain, then it could not be Confidential Information.[19] It would therefore follow that the disclosure of that information could not be an unauthorised disclosure pursuant to the duty prescribed by cl 7.1 of the Employment Agreement.
[19] Outline of the State's Submissions As (sic) Opposed to Permanent Stay dated 14 November 2022 par 31.
The State does not accept that the disclosure of the information was incapable of being characterised as 'Confidential Information'[20] in the circumstances in which the disclosures were made by Ms Clinch to the accused and Ms Godbold.
[20] Outline of the State's Submissions As (sic) Opposed to Permanent Stay dated 14 November 2022 par 32.
Furthermore, the State submits that even if this limb of the source of the duty not to disclose fails, the other sources of the duty would still apply and that the Public Knowledge Exception contained in cl 7.2(b) has no application to the other sources of the duty.
Clause 3.1(d) of the Employment Agreement in combination with cl 5 of the SJA Computing Resources Acceptable Use Policy (SJA Policy)
The State submits that, independent of the duty not to disclose expressly contained in cl 7 of the Employment Agreement, a further source of the duty is found in cl 3.1(d) of the Employment Agreement in combination with cl 5 of the SJA Computing Resources Acceptable Use Policy (SJA Policy) which prohibited the disclosure of information that 'was in SJA's computer system or came into or was being entered into the SJA systems'.[21]
Clause 3.1(d) of the Employment Agreement
[21] Outline of the State's Submissions As (sic) Opposed to Permanent Stay dated 14 November 2022 par 30(ii).
Clause 3.1(d) of the Employment Agreement is relevantly set out below as it appears in the Employment Agreement as follows:
3.Employee's Duties
3.1 Duties Employee must perform
The Employee must:
(a)….;
(b)….;
(c)….;
(d)comply with all policies of the Employer [SJA] in place or as varied or replaced that are intended to apply to the Employee and provided or made available to the Employee (although these do not form part of the contract of employment);
(e)….; and
(f)…...
Clause 5. SJA Policy
Security and Organisational Information
Clause 5 of the SJA Policy relied upon by the State, is in the following terms:
Information on the organisation's system is confidential particularly information relating to the business affairs of the organisation or its customers and patients and is not to be disclosed unless it is authorised by the Chief Executive Officer (or his representatives) or is information that would come within the scope of authority applicable to the employee's position to be disclosed …
The State submits that, save where Ms Clinch was specifically authorised by the CEO or it was within the scope of her authority to do so, she was prohibited from disclosing any information on SJA's system. This follows from reading cl 5 of the SJA Policy together with cl 3.1(d) of the Employment Agreement.
There is no dispute that Ms Clinch was bound to comply with the SJA Policy.
There is no dispute that the information Ms Clinch received in her capacity as a communications operator for SJA was 'on the organisation's system'[22] and was 'official information'[23] within the meaning of s 81 of the Code.
[22] Accused's admission 17.
[23] Accused's admission 18.
There is no suggestion that Ms Clinch was authorised by the CEO to disclose the information.
Clause 5 of the SJA Policy appears to deem all information contained on its systems to be confidential. In the context of this case, whilst it is not in dispute that the information disclosed by Ms Clinch was 'official information', despite the terminology used in the SJA Policy, it is not conceded by the accused that all information contained on SJA's system could properly be described as 'confidential information'.
If the State's contention on this issue is correct it would mean that, for example, notwithstanding the fact that the information had been nationally broadcast on television to millions of viewers before it was disclosed by the employee, merely by virtue of the fact that it was on SJA's system would mean that it would still be information prohibited from disclosure. That would lead to an absurd interpretation and application of the clause.
In any event, for the reasons that follow, nothing turns on this issue. Nor does the accused, for the purposes of this application, seek to challenge this issue.[24]
[24] See counsel for the accused's oral submissions, ts 223.
As already noted, the State submits that cl 3.1(d) read together with cl 5 of the SJA Policy provides a separate and discrete source of the duty imposed upon Ms Clinch not to disclose official information. Consequently, the State submits that the Public Knowledge Exception has no application to this source of the duty. In essence, Mr Davidson, counsel for the State submitted that the 'plain and ordinary meaning'[25] of the words 'Despite clause 7.1' found in cl 7.2 was that the only application of the Public Knowledge Exception was with respect to cl 7, and it had no application to any other parts of the Employment Agreement.
[25] Outline of the State's Submissions As (sic) Opposed to Permanent Stay dated 14 November 2022 par 18.
I do not accept that cl 3.1(d) and cl 5 of the SJA Policy excludes the operation of the Public Knowledge Exception contained in cl 7.2(b) of the Employment Contract. In the absence of any express and clear words in the Employment Agreement, ordinary principles of contractual interpretation require that the plain meaning of the words be applied and that the contract be read as a whole. The words 'Despite clause 7.1' make it clear that, notwithstanding the duty not to disclose set out at cl 7.1, there were exceptions to that duty as set out under cl 7.2(a) - cl 7.2(c). There is nothing in the plain and ordinary meaning of those words that would allow it to mean that it had no application to the other parts of the Employment Agreement.
Despite the fact that cl 3.1(d) of the Employment Agreement purports to exclude the SJA Policy from forming part of the contract itself, cl 3.1(d) clearly imposes a duty upon Ms Clinch to comply with the SJA Policy. Furthermore, the SJA Policy makes clear that an employee's breach of cl 5 by an unauthorised or impermissible disclosure of information on the organisation's system would render the employee liable to be dismissed, thus making such an act a breach of the Employment Agreement.
Consequently, whilst the SJA Policy may not form part of the contract of employment itself, the only way that cl 3.1(d) of the Employment Agreement can be interpreted in the context of this case is by reading cl 5 of the SJA Policy with cl 3.1(d). Clause 5 of the SJA Policy thus informs and enables a proper interpretation of cl 3.1(d).
This construction is further reinforced by the fact that one of the ways that the SJA Policy permits an employee to disclose confidential information is if the information disclosed by the employee (i.e. Ms Clinch) was information that came 'within the scope of authority applicable to the employee's position'.[26] Whether or not the information was information that would come within the scope of the employee's authority to disclose could only be determined with reference to the Employment Agreement itself.
[26] SJA Policy cl 5.
Furthermore, to the extent that the SJA Policy, which is required to be read together with the Employment Agreement, may be inconsistent with the express terms of the contract itself, the Employment Agreement takes precedence over any purported limitations imposed by a policy. The terms of the SJA Policy cannot take precedence over the terms of the contract (the Employment Agreement) itself.[27]
[27] National Tertiary Education Industry Union v University of Sydney [2012] FCAFC 159 [16] (Allsop CJ); Zafiriou v Saint-Gobain Administration Pty Ltd [2013] VSC 377 [235] - [236] (Emerton J).
In this context, to the extent that the SJA Policy is said to apply to any information, not merely confidential information, and whether or not it was information that was public knowledge, that would be inconsistent with the clear terms of cl 7.1 which expressly limits the duty not to disclose Confidential Information which is not subject to the Public Knowledge Exception.
Consequently, I am satisfied that a source of the duty imposed upon Ms Clinch not to disclose official information in this case lies within cl 3.1(d) when read together with cl 5 of the SJA Policy, and that the Public Knowledge Exception contained in cl 7.2(b) also applies to that source of the duty.
Other sources of the duty not to disclose contained within the Employment Contract - duties to 'Act in Good Faith' to SJA and 'Fiduciary Duty' owed to SJA
The State submits that, in addition to the duties not to disclose confidential information pursuant to cl 7.1 of the Employment Agreement, and the duty to comply with the SJA Policy read together with cl 3.1(d), Ms Clinch was also bound to comply with the other duties set out at cl 3.2(a) - cl 3.2(c) which either expressly or impliedly imposed upon Ms Clinch a duty not to disclose any information.
Although Mr Davidson's oral submissions at times suggested that the implied duties relied upon by the State, namely the duty to act in good faith and the fiduciary duty owed by Ms Clinch to SJA, were at least in part or in combination based upon the duties contained not only in cl 3.2(a) - cl 3.2(c), but also cl 3.1(a) - cl 3.1(c), the particulars subsequently filed by the State makes clear that so far as these two limbs are concerned, there was:[28]
(a)an express duty to act in 'good faith' towards SJA, contained in cl 3.2(a) - cl 3.2(c) which impliedly prohibited her from disclosing official information; and
(b)an implied duty to act in 'good faith' which prohibited her from disclosing official information in circumstances where to do so would be a misuse of the information; and
(c)a 'fiduciary duty' owed by Ms Clinch which impliedly imposed upon her a duty not to disclose.
[28] State's particulars dated 17 November 2022.
Consequently, the purported additional sources of the duty not to disclose, whether it be express or implied, is confined to the duties set out at cl 3.2(a) - cl 3.2(c) of the Employment Agreement.[29]
[29] State's particulars dated 17 November 2022.
The State's submission is fundamentally based upon the notion that, if Ms Clinch disclosed information (confidential or otherwise), she would be in breach of these various other duties and therefore in breach of her duty not to disclose as defined by s 81(1) of the Code.
An unauthorised disclosure of official information (confidential information or otherwise) may well constitute a breach of one or more of these other duties either expressly or impliedly imposed upon Ms Clinch. It does not necessarily follow however, that the source of her duty not to disclose is founded in these other duties. Whilst those other duties are separate duties imposed upon Ms Clinch, for the reasons now explained, they do not provide the source of her duty not to disclose confidential information in this case.
The 'Good Faith' duty
There is no doubt that, save where it may be expressly excluded by the words and intent of the parties to a contract of employment, all employees have a duty to act in good 'faith and fidelity' towards their employer and that this duty is to be implied in every contract of employment.[30]
[30] Rob v Green (1895) 2 QB 315; Buitendag v Ravensthorpe Nickel Operations Pty Ltd [2012] WASC 425 (Le Miere J).
The State submits that Ms Clinch was expressly and impliedly duty bound to act in 'good faith' towards her employer. As already noted, the State relies upon the express duties set out at cl 3.2(a) ‑ cl 3.2(c) impliedly prohibiting Ms Clinch from misusing any information that she came into possession of in her role as a communications operator. Where the duties are not express, the same duty of 'good faith' is said to arise implicitly from her duty not to misuse any information, whether confidential or not.
Fiduciary duties
In addition to the duty to act in 'good faith' in the service of her employer, the State also submits that Ms Clinch also owed SJA a 'fiduciary duty' not to 'misuse information obtained in the course of employment.'[31] Furthermore, that implied duty not to disclose information does not require that the information disclosed be confidential information.[32]
[31] Outline of the State's Submissions As (sic) Opposed to Permanent Stay dated 14 November 2022 par 75.
[32] Outline of the State's Submissions As (sic) Opposed to Permanent Stay dated 14 November 2022 par 76.
The State submits that the duty to disclose is informed by the express prohibitions not to act in conflict with SJA's interests (cl 3.2(a)) and not to in the course of her employment use the information to make a profit or benefit from it (cl 3.2(c)).
In Hospital Products Ltd v United States Surgical Corporation,[33] Mason J noted that 'the 'critical' feature of fiduciary relationships was that the fiduciary 'undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense'.
[33] Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41, 96 ‑ 97.
In his paper 'The Role of Status in the Law of Obligations: Common Callings, Implied Terms and Lessons for Fiduciary Duties,' Edelman J explained that, in Australia:[34]
•'[A] fiduciary duty requires an undertaking' and that 'the fiduciary undertaking is always manifested by the conduct of the fiduciary.'
•The fiduciary undertaking must be voluntary; and
•It is widely accepted that 'a fiduciary duty requires that the undertaking be performed in the best interests of the principal'.
[34] Edelman, J - 'The Role of Status in the Law of Obligations: Common Callings, Implied Terms and Lessons for Fiduciary Duties' Paper presented at the University of Alberta, 18 July 2013 and DePaul University conference, Chicago, 19 - 20 July 2013.
In this case, that undertaking was manifested by Ms Clinch by entering into the Employment Agreement.
For the reasons I have already expressed, whilst a misuse of any information, whether it be confidential or otherwise, may well constitute a breach of any one or more of these other express or implied duties, they do not themselves provide a source of the duty not to disclose information, confidential or otherwise.
In any event, even if they could be considered to be sources of a duty not to disclose information, the additional express and implied duties relied upon by the State would necessarily expand the terms of the Employment Agreement since they are said to apply irrespective of whether the information disclosed was confidential or not. Where, such as in this case, the Employment Agreement specifically prohibits the disclosure of confidential information, not merely any information, its terms are paramount: 'Equitable obligations [or duties] add to but do not alter the parties' contractual rights'.[35]
[35] Dean's 'The Law of Trade Secrets and Personal Secrets', 3rd Edition (2018) at [40.1900] noting Morris v Hanley [2003] NSWSC 42; (2003) 173 FLR 83 [71] - [74].
In this case, it is clear that cl 7.2(b) expressly limited the duty to not disclose confidential information. For reasons already stated, any wider interpretation of the nature of the information said to be prohibited by any other duty not to disclose could not be inconsistent with cl 7.2(b).
The effect of the Public Knowledge Exception
Having concluded that the source of Ms Clinch's duty not to disclose official information comes from the Employment Agreement at cl 7.1 and cl 3.1(d) read together with cl 5 of the SJA Policy, and that the Public Knowledge Exception set out at cl 7.2(b) applies to both sources of that duty, before going to the fundamental question of whether a properly instructed jury could on the evidence in this case convict the accused, one further issue arises.
That is whether it is an essential ingredient of the elements of the offence that the State must prove beyond reasonable doubt that the Public Knowledge Exception does not apply, or whether the accused bears any evidentiary onus of raising the defence before it would be required to be negatived by the State.[36] It seems to me that it is not in this case necessary to determine this question as I am satisfied that, on the available evidence in the State's case, this factor will be raised.
[36] See Burke [102].
Consequently, either way, in this case the State will be required to prove beyond reasonable doubt that the official information disclosed by Ms Clinch was not public knowledge. This requires consideration of whether the official information disclosed by Ms Clinch was in the public domain.
In Attorney-General v Guardian Newspapers Ltd(No 2),[37] Lord Griffiths noted the reasons of Megarry J in Coco v AN Clark (Engineers) Ltd,[38] namely that where a contract imposes a duty of confidence on a party, and it is claimed that the duty of confidence has been breached, there are normally three essential elements required to be proved. Megarry J identified these essential elements as:
First, the information itself, in the words of Lord Greene M.R. in the Saltman case [(1948) 65 R.P.C. 203, 215] must 'have the necessary quality of confidence about it.' Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.
[37] Attorney‑General v Guardian Newspapers Ltd(No 2) 1 AC 109; 268.
[38] Coco v AN Clark (Engineers) Ltd [1969] R.P.C. 41, 47.
Lord Griffiths noted that:[39]
[t]he first of these elements will not normally be present if the information is in the public domain' and 'it must not be something that is public property and public knowledge' per Lord Greene M.R. in Saltman Engineering Co. V. Campbell Engineering Co. Ltd. (1948) 65 R.P.C. 203, 215. Furthermore, information may lose its original confidential character if it subsequently enters the public domain.
[39] Attorney‑General v Guardian Newspapers Ltd(No 2) 1 AC 109; 268.
As the accused readily accepts, confidential information does not cease to be confidential merely because it is known to a few people. It is a question of degree to be considered in each case.[40]
[40] Australian Football League v Age Co Ltd [2006] VSC 308.
In some cases, the fact that the incident has occurred in public has been held to be in the public domain.[41]
[41] Woodward v Hutchins [1977] 1 WLR 760.
As the State points out in its submissions[42] with reference to Scott J's decision in Attorney-General v Guardian Newspapers Ltd (No 2),[43] the question of whether information is in the public domain is one of fact and degree and the 'answer will depend upon the circumstances of the particular case bearing in mind the nature of the information, the nature of the interest sought to be protected, the relationship between [the parties], the manner in which the [relevant person] has come into possession of the information and the circumstances in which and the extent to which the information has been made public'.
[42] Outline of the State's Submissions As (sic) Opposed to Permanent Stay dated 14 November 2022 par 45.
[43] Attorney General v Guardian Newspapers Ltd(No ) [1990] 1 AC 109, 150.
I have heard submissions from both Mr Davidson for the State and Mr Merenda for the accused. Each has taken me through what has been submitted is the essential evidence to be led at trial relating to the alleged unauthorised disclosures made by Ms Clinch.
I have also separately reviewed the Prosecution Brief which now comprises two volumes of materials.
Mr Merenda submits that I am in the same position as a jury would be.
The evidence on each charge is not the same. There is clearly more surrounding circumstantial evidence on some counts than others. For example, in relation to some counts (counts 4, 6, 9 and 12) there are photographs available from which inferences may be capable of being drawn. I say may because it is not entirely clear when the photographs were taken.
Mr Merenda submits that where there is a dearth of surrounding evidence, the State cannot rely upon the absence of evidence to fill the void to prove that the information was not public knowledge.
Ultimately, I have come to the conclusion that, no matter how tenuous or weak, at this stage there is some evidence that, in relation to each charge, a properly instructed jury could, as opposed to should, be satisfied that the official information was not public knowledge at the time of the disclosure and thus could convict the accused.
As I noted during the hearing, that position may well change during the trial, but at this stage it is a jury question to be determined on all the available relevant and admissible evidence.
Conclusion
The accused's application for a permanent stay is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DF
Associate to Judge Levy
14 DECEMBER 2022
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