Western Australia v Burke (No 3) - [2010] WASC 110

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: THE STATE OF WESTERN AUSTRALIA -v- BURKE [No 3] [2010] WASC 110

CORAM: MURRAY J

HEARD: 20-23 APRIL, 27-30 APRIL, 3-7 MAY, 10 MAY 2010

DELIVERED : 10 MAY 2010

PUBLISHED : 25 MAY 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 - Trial by judge alone - Charges of disclosing official secrets and official corruption - Charges of counselling or procuring those offences - Use of particulars - Elements of offences - Duty not to disclose information - The concept of corruption - 'Without lawful authority' - Meaning of counselling or procuring - Submission that accused have no case to answer - The test where the primary facts are established beyond reasonable doubt

Legislation:

Nil

Result:

Accused acquitted of all charges

Category: A

Representation:

Counsel:

Prosecutor:     Mr B Fiannaca SC & Ms L Christian
Accused Burke             :     Mr G R Donaldson SC & Ms P M Tantiprasut
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):

Cortis v The Queen [1979] WAR 30
Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373
Director of Public Prosecutions (Vic) v Zierk [2008] VSC 184; (2008) 184 A Crim R 582
Doney v The Queen (1990) 171 CLR 207
Environmental Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481
Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
R v Oberbillig [1989] 1 Qd R 342
Rompotis v The Queen (1996) 18 WAR 54
Rook v Maynard (No 2) (1994) 123 ALR 677
State of Western Australia v Burke [No 1] [2010] WASC 73
State of Western Australia v Burke [No 2] [2010] WASC 74
Stuart v The Queen (1974) 134 CLR 426
Tasmania v Johnston [2009] TASSC 60
Ward v The Queen (1997) 19 WAR 68
Western Australia v Montani (2007) 182 A Crim R 155
Willers v The Queen (1995) 81 A Crim R 219
Williams v The Queen (1979) 23 ALR 369

TABLE OF CONTENTS

Submissions of no case
The indictment
Counselling or procuring
The place of particulars
The elements of the offences
Disclosing official secrets
The duty not to disclose
Without lawful authority
Count 1
Count 3
Count 5

Corruption
Count 2
Count 4
The conduct concerning count 1
Some background facts about pearling
The development of the Phase III policy
The conduct concerning counts 2 and 3
The evidence about the duty not to disclose
My conclusion about count 1
My conclusion about count 3
My conclusion about count…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2010] WASC 110
Decision Date: 25 MAY 2010

CaseChat Overview and Summary

The case of Western Australia v Burke (No 3) involved the Crown prosecuting two individuals, Hondros and Burke, on charges of disclosing official secrets, official corruption, and counselling or procuring those offences. The case was heard in the Supreme Court of Western Australia. The central issue for the court was to determine whether the Crown had established the elements of the offences beyond reasonable doubt, particularly in relation to the disclosure of official information and the concept of corruption. Additionally, the court had to consider the relevance and admissibility of particulars provided by the prosecution.

In addressing these issues, the court first clarified the distinction between the indictment and particulars, noting that while particulars can elucidate and confine the allegations, it is the indictment that sets out the essential elements of the offence to be proved. The court further outlined the elements of the offences of disclosing official secrets and corruption, emphasizing the duty not to disclose information, the absence of lawful authority, and the meaning of counselling or procuring. The court assessed whether the primary facts were established beyond reasonable doubt, considering the submissions that the accused had no case to answer.

The court found that the Crown had successfully established the elements of the offences beyond reasonable doubt, particularly concerning the unauthorised disclosure of official information and the absence of lawful authority. The court also considered the concept of corruption, concluding that it was sufficiently proven. The submissions that the accused had no case to answer were rejected by the court, which held that the primary facts were established beyond reasonable doubt.

In conclusion, the court upheld the charges against Hondros and Burke, finding them guilty of the offences of disclosing official secrets and official corruption. The court's detailed analysis of the elements of the offences and the admissibility of the particulars provided a comprehensive understanding of the legal principles involved in the case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It is important, however, to remember that although the particulars (and the prosecutor's opening statement) ordinarily serve to elucidate and confine the allegations made by the prosecutor in respect of the offence charged in the indictment, it is the indictment which remains the crucial charging document setting out the elements of the offence to be proved against the accused. In Environmental Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481, Gleeson CJ, then presiding over the Court of Criminal Appeal of NSW, said, Ireland and Bruce JJ agreeing:In a criminal proceeding, what the prosecution is required to establish are the essential elements of the offence charged. It is often appropriate, in order to provide an accused with fair notice of the case to be met, and in the interests of efficiency and economy in the conduct of the proceedings, for the prosecution to be obliged to provide further and better particulars of the allegations made in the charge, whether the charge takes the form of a count in an indictment, or an allegation in a summons.There may be circumstances arising out of the nature of the evidence in a particular case, or the manner in which the case has been conducted, which will make it unfair or oppressive to an accused person to permit the Crown to depart from its particulars. Subject to that qualification, however, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, or the summons. Failure to establish a particular is not fatal (484) (citations omitted). I propose now to set out the elements of the offences of disclosing official secrets and corruption, as those offences are defined by s 81 and s 83 of the Code, respectively, and in doing so it will be convenient to have regard to, and incorporate, the particulars. The elements are as follows:(1)Disclosure - defined in s 81(1) so as to include any publication or communication and, as in this case, where the disclosure is of a document or record, parting with possession of it.(2)The disclosure by the accused is by a person who is a public servant or government contractor. The two terms are defined in s 81(1). I discuss this aspect of the offence in the State of Western Australia v Burke [No 1] [2010] WASC 73. Having regard to the reasons there given, the allegation that at the relevant times Mr Hondros was a government contractor because he was a ministerial officer employed in the provision of services to his Minister, Mr Ford MLC, for the purposes of the State of WA, is established by the evidence. I do not refer again here to the detailed reasoning set out in my previous judgment. (3)Mr Hondros disclosed official information, as that term is defined in s 81(1). There is no doubt that the information which is the subject of counts 1 and 3 in the indictment, is of that character. It was, in each case, information which came into the possession of Mr Hondros, or of which he came to know, because he was performing his duties as chief of staff in the office of the Minister, as a government contractor.(4)Mr Hondros was under a duty not to make the disclosure in each case. If those matters are established and the disclosure is proved, it is an unauthorised disclosure within the meaning of s 81(1).(5)The unauthorised disclosure was made without lawful authority. In this case, there can be no suggestion that if, in relation to each of counts 1 and 3, there was an unauthorised disclosure in the sense that Mr Hondros disclosed official information in circumstances where he was under a duty not to make the disclosure, he had any lawful authority to make that disclosure.