Citation: R v Macdonald; R v Maitland (No 8) [2022] NSWSC 1421
Court: Supreme Court of New South Wales
Date: 20 October 2022
Judge(s): Dhanji J
Background
The accused in this retrial were a former NSW Minister for Mineral Resources (the Minister) and the chairman of a mining company (the Company Chairman). The Crown alleged that the Minister wilfully misconducted himself in public office by granting consent for, and then granting, an exploration licence under the Mining Act 1992 (NSW) to the Company Chairman's company. The Crown's case was that both decisions were driven by an improper purpose: namely, a desire to confer a benefit on the Company Chairman and his company.
The Company Chairman was charged as an accessory before the fact to both counts. The Crown alleged he assisted and encouraged the Minister to commit the principal offences, with knowledge of the facts that made the Minister's conduct criminal.
Both accused had been convicted by a jury in 2017, but the Court of Criminal Appeal quashed those convictions and ordered a retrial. The retrial proceeded as a judge-alone trial before Dhanji J. During the trial, a question arose about how the court should direct itself on one element of the offence: specifically, what the Crown must establish about the accused's improper purpose in order to prove "misconduct."
Legal Issues
- What standard must the Crown meet to prove the "misconduct" element of wilful misconduct in public office, where a decision may have been influenced by both legitimate and improper purposes?
- Is it sufficient that an improper purpose was a "but for" cause of the decision (i.e., that the decision would not have been made without it), or must the improper purpose be the "driving force," "moving cause," or "real reason" behind the decision?
- Does the additional requirement that the misconduct be "serious" affect the analysis of whether a lower causation standard might suffice?
Decision
Dhanji J identified that the Court of Criminal Appeal, in the earlier appeal, had been critical of the original trial directions. Those directions had required the Crown to prove that the Minister was "substantially motivated" by the improper purpose and "not motivated to any significant degree" by legitimate considerations. The Court of Criminal Appeal found that formulation was infected by error, concluding that the improper purpose must be the "driving force," "moving cause," or "real reason" behind the decision rather than a mere contributing factor.
After examining whether a "but for" causation test alone would suffice, Dhanji J concluded it would not. A "but for" test can be satisfied even where an improper purpose plays only a minor role in a decision, and such a test could extend criminal liability too broadly. The court reasoned that liability should not attach simply because an illegitimate consideration had some causal connection to the outcome.
Drawing on the Court of Criminal Appeal's reasoning, Dhanji J held that the element of misconduct requires proof that the improper purpose was the "driving force" behind the decision, in the sense that the decision would not have been made but for that improper purpose. This formulation requires more than mere causation: the improper purpose must be the dominant, operative reason for the decision.
On the question of whether the "seriousness" element could compensate for a lower threshold on improper purpose, Dhanji J noted the point was arguable but left it undecided. The court observed that, where an improper purpose is only a minor consideration that happens to tip the balance, the conduct may not satisfy the seriousness requirement in any event. However, resolving that question was unnecessary given the conclusion reached on the misconduct element itself.
Orders Made
No orders were made in this decision.
Key Takeaways
- To prove the "misconduct" element of wilful misconduct in public office, the Crown must establish that the improper purpose was the driving force behind the relevant decision, such that the decision would not have been made but for that improper purpose.
- A simple "but for" causation test is insufficient on its own: proof that an improper purpose contributed to, or had a determinative effect on, a decision does not automatically satisfy the misconduct element where the purpose was not the dominant operative reason.
- The earlier jury direction requiring proof that the decision-maker was "substantially motivated" by an improper purpose and "not motivated to any significant degree" by legitimate considerations was found by the Court of Criminal Appeal to have been erroneous, and Dhanji J applied that binding conclusion in framing the retrial directions.
- Where a principal offender's liability turns on the driving force test, the same standard applies to any accessory charges that depend on proof of the principal offence's misconduct element.
- Dhanji J left open whether the "seriousness" element of the offence could independently address situations where an improper purpose plays only a peripheral role in a decision, noting the point did not require resolution in this matter.
Legislation and Cases Referenced
Legislation
- Mining Act 1992 (NSW)
Cases
- Maitland v R; Macdonald v R (2019) 99 NSWLR 376; [2019] NSWCCA 32
- Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Obeid (No 12) [2016] NSWSC 1815
- R v Macdonald; R v Maitland [2017] NSWSC 337
- Shum Kwok Sher v Hong Kong Special Administrative Region (2002) 5 HKCFAR 381
- Sin Kam Wah v Hong Kong Special Administrative Region (2005) 8 HKCFAR 192
- R v Quach (2010) 27 VR 310; [2010] VSCA 106
- Mills v Mills (1938) 60 CLR 150; [1938] HCA 4
- Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285; [1987] HCA 11
- Thompson v The Council of the Municipality of Randwick (1950) 81 CLR 87; [1950] HCA 33
- R v Dytham [1979] QB 722
- R v Llewellyn-Jones (1966) 51 Cr App R 4
- R v Speechley [2004] EWCA Crim 3067