Citation: R v Dougas; R v Read; R v Linke (No 9) [2022] NSWSC 299
Court: Supreme Court of New South Wales
Date: 21 March 2022
Judge(s): Adamson J
Background
Three accused, the Chief Executive Officer, a senior manager, and another manager of a large Australian multinational engineering firm, faced a single count on indictment of conspiring to bribe foreign public officials in the Philippines. The alleged conspiracy spanned roughly January 2000 to June 2005 and involved arranging payments to Filipino public officials to secure publicly funded contract work. The charge was brought under s 70.2(1)(a)(i), (b) and (c)(i) of the Criminal Code (Cth), which targets bribery intended to obtain or retain business (as distinct from obtaining a business advantage, which attracts a separate offence under a different subsection).
The Crown's case rested substantially on the oral evidence of the firm's Philippines Country Manager, who was himself criminally involved in the alleged events and gave evidence as the Crown's principal witness. The Crown also relied on emails and financial records from the charge period. It was not disputed that at least two other individuals connected to the firm's Philippines office had themselves engaged in a bribery arrangement.
At the conclusion of the Crown case, two of the three accused applied for directed verdicts of acquittal, arguing there was insufficient evidence to support a conviction. The third accused did not bring a separate application, though his position was addressed in the judgment.
Legal Issues
- Whether, taking the Crown's circumstantial evidence at its highest, a jury could lawfully convict the two applicant accused of the conspiracy charge
- What test applies on a no-case-to-answer application, and how it applies to a case built substantially on circumstantial evidence
- Whether the Crown evidence was sufficient to establish each essential element of the foreign bribery conspiracy offence against each accused
Decision
Adamson J applied the well-established test from May v O'Sullivan (1955) 92 CLR 654: the question on a no-case application is whether, on the evidence as it stood at the time of the application, the accused could lawfully be convicted. Critically, drawing on Doney v The Queen (1990) 171 CLR 207, the court confirmed that this is not a question about the quality or reliability of the evidence. Whether a guilty verdict would be unreasonable on the evidence is a matter for the Court of Criminal Appeal, not for the trial judge at this stage.
On the case against the manager who became involved from approximately 2004, the court found that the emails and financial records, taken at their highest, permitted the jury to infer that he was a knowing party to the inner circle of the conspiracy. The court reasoned that certain emails, including one referring to payments being delivered by the business development manager "due to the sensitive nature of the transaction," were probative of his awareness that "external marketing costs" meant something other than legitimate consulting payments. The proximity in time and amount between specific emails and Intelmar payments also gave rise to available inferences supportive of the Crown case.
The court was careful to note that its analysis focused only on the Crown evidence taken at its highest, expressly setting aside evidence favourable to the accused. It emphasised that this approach does not constitute a finding of guilt, and that reliability concerns about the principal Crown witness had already been the subject of a jury warning under s 165 of the Evidence Act 1995 (NSW).
Both applications for directed verdicts of acquittal were refused, and the trial was permitted to proceed to a verdict by the jury.
Orders Made
- The applications by the accused Mark Read and the accused Geoffrey Linke for directed verdicts of acquittal are refused.
Key Takeaways
- The test on a no-case-to-answer application in NSW remains whether a lawful conviction is possible on the evidence as it stands, not whether a conviction would be reasonable. Questions of reasonableness are reserved for appellate review.
- Adamson J confirmed that, on a no-case application, a trial judge assesses the Crown evidence at its highest and does not weigh evidence favourable to the accused, even where key Crown witnesses fall into a category warranting a reliability warning under s 165 of the Evidence Act 1995 (NSW).
- Circumstantial evidence, including emails and financial records, can satisfy the no-case threshold where those materials, taken together, permit the jury to draw inferences as to each essential element of the offence charged.
- Under s 70.2(1)(c)(i) of the Criminal Code (Cth), the relevant offence requires that the bribe be paid to obtain or retain business, not merely to gain a business advantage. The judgment illustrates that the distinction between these two subsections is material to what the Crown must prove.
- Sufficient evidence existed, on the Crown case taken at its highest, to allow the conspiracy charge to proceed to verdict against all three accused, notwithstanding that the case against some accused rested more heavily on documentary inference than on direct testimony.
Legislation and Cases Referenced
Legislation
- Criminal Code (Cth), s 70.2(1)(a)(i), (b), (c)(i) and (c)(ii)
- Evidence Act 1995 (NSW), ss 66, 69, 165
Cases
- May v O'Sullivan (1955) 92 CLR 654; [1955] HCA 38
- Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51
- Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39
- The Queen v LK (2010) 241 CLR 177; [2010] HCA 17
- Constantinidis v R; Lazar v R [2022] NSWCCA 4
- Gant v R [2017] VSCA 104
- Reg v Galbraith [1981] 1 WLR 1039
- R v Saffron (No 1) (1988) 17 NSWLR 395