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Supreme Court 8 March 2017

R v Macdonald; R v Maitland

[2017] NSWSC 337

Public order & justice offences
CRIMINAL LAW QUESTION OF MIXED MOTIVES CRIMINAL LAW ACCESSORIAL LIABILITY ELEMENTS OF OFFENCE CONTAINED ACCESSORIAL LIABILITY

Citation: R v Macdonald; R v Maitland [2017] NSWSC 337
Court: Supreme Court of New South Wales
Date: 8 March 2017 (reasons published 31 March 2017)
Judge(s): Adamson J

Background

A former NSW Minister for Mineral Resources faced two counts of wilful misconduct in public office. The charges alleged that in 2008 he granted a consent to apply for, and then granted, an exploration licence under the Mining Act 1992 to a mining company while substantially motivated by an improper purpose: to confer a benefit on the company and its chairman. A co-accused, the company's chairman, faced corresponding charges as an accessory before the fact on both counts.

The trial raised substantial contested questions about how the elements of wilful misconduct in public office should be formulated and put to the jury. Adamson J heard argument over several days before the Crown's opening address, with both the Crown and defence advancing competing formulations. The judgment explains the court's resolution of those disputes and reproduces, as appendices, the final element documents handed to the jury.

  • Whether the mental element of wilful misconduct in public office should be framed in terms of "motivation" rather than "belief" or "intention"
  • Whether the Crown had to prove the accused's "sole" improper purpose, or whether substantial improper motivation was sufficient in a case involving mixed motives
  • Whether the accused also had to be shown to lack any genuine belief that his conduct was in the interests of the State
  • Whether it was necessary to include express elements relating to the duty and breach of duty in circumstances where the nature of the misconduct was already well established
  • Whether recklessness (knowledge of the possibility of wrongdoing) was sufficient to satisfy "wilfulness," or whether knowledge of wrongdoing was required
  • How the elements should be formulated for the accessory before the fact, including the requisite knowledge of the principal offence
  • What mental state an alleged aider and abettor must have regarding the seriousness of the principal's misconduct

Decision

Motivation, not belief or intention. Adamson J held that the mental element of improper conduct is most accurately expressed as a question of "substantial motivation" rather than one of "belief" or "intention." This framing aligns the criminal law elements with the public law concept of improper purpose, which is well established in administrative law. The court drew on Shum Kwok Sher v HKSAR and Porter v Magill to support the view that consistency between criminal and public law concepts is important in this context.

Mixed motives and the "sole purpose" question. The court rejected the defence's submission that the Crown must prove the accused's "sole intention" was to confer a benefit. Where a public official acts with mixed motives, it is sufficient to prove that the improper purpose was the "substantial" motivation and that the official was not motivated to any significant degree by the proper object of furthering the interests of the State. Requiring proof of a sole improper purpose would set too high a threshold and would not accord with the public law approach to improper purpose.

Wilfulness and recklessness. Adamson J accepted that the Crown need not prove actual knowledge that the accused was obliged not to act as he did. It is sufficient to prove the accused knew it was possible he was so obliged but chose to proceed regardless. This means recklessness of a specific kind, namely, awareness of the possibility of obligation combined with a decision to act anyway, satisfies the wilfulness element.

Accessorial liability. For the accessory charges, the court required that the elements of the principal offence be set out in a self-contained form within the accessory's own elements. The court adopted "real prospect" rather than "possibility" as the clearer formulation for describing the accused's knowledge of the chance that the principal offence would be committed. On the seriousness element, only the facts actually known to the alleged aider and abettor could be taken into account when assessing whether the misconduct was serious enough to merit criminal punishment.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The mental element of wilful misconduct in public office is best expressed as "substantial motivation" by an improper purpose, not as a matter of belief or intention, reflecting consistency with public law concepts of improper purpose.
  • A "sole intention" test for improper purpose was rejected. In mixed-motive cases, the Crown must prove that the improper purpose was the substantial motivation and that the proper public object was not a significant motivation.
  • Wilfulness does not require proof that the accused knew he was obliged not to act as he did; it is satisfied if the accused knew it was possible he was so obliged and chose to act anyway.
  • In accessorial liability for wilful misconduct in public office, elements of the principal offence should be set out self-containedly within the accessory's elements, and the formulation "real prospect" of commission is preferable to "possibility."
  • For the seriousness element in an accessory charge, only the facts actually known to the alleged aider and abettor at the relevant time can be considered when assessing whether the principal's misconduct was serious enough to warrant criminal punishment.

Legislation and Cases Referenced

Legislation
- Mining Act 1992 (NSW), ss 13(4), 22

Cases
- Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381
- Porter v Magill [2002] 2 AC 357
- Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309
- R v Obeid (No. 11) [2016] NSWSC 974
- R v Obeid (No. 12) [2016] NSWSC 1815
- R v Obeid (No. 13) [2016] NSWSC 1840
- R v Maitland [2017] NSWSC 167
- R v Boulanger [2006] 2 SCR 49; 2006 SCC 32
- Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317
- R v Quach (2010) 27 VR 310; [2010] VSCA 106
- France v R [2016] EWCA Crim 1588
- R v Chapman [2015] 2 Cr App R 10
- Sin Kam Wah & Lam Cheun Ip v HKSAR [2005] 2 HKLRD 375
- Iannella v French (1968) 119 CLR 84
- Plomp v The Queen (1963) 110 CLR 234
- Question of Law Reserved (No. 2 of 1996) (1996) 67 SASR 63
- R v Borron (1820) 3 B & Ald 432; 106 ER 721
- R v Llewellyn-Jones (1967) 51 Cr App R 4
- R v Speechley [2005] 2 Cr App R (S) 15
- R v W(M) [2010] QB 787