Citation: R v Dougas; R v Read; R v Linke (No 12) [2022] NSWSC 332
Court: Supreme Court of New South Wales
Date: 24 March 2022
Judge(s): Adamson J
Background
Three accused faced trial on a conspiracy charge arising from alleged conduct between 2000 and 2005 in the Philippines, New South Wales, Victoria, and elsewhere. The indictment alleged a conspiracy to provide a benefit to another person with the intention of influencing a foreign public official in the exercise of their duties, in order to obtain or retain business. The charge was brought under s 70.2 of the Criminal Code (Cth), which creates the offence of bribing a foreign public official.
Section 70.2(1) sets out eight permutations of the offence, covering different methods of providing a benefit (including causing, offering, and promising) and two distinct purposes: obtaining or retaining "business" (s 70.2(1)(c)(i)), or obtaining or retaining a "business advantage that is not legitimately due" to the recipient (s 70.2(1)(c)(ii)). The prosecution charged only one of those eight permutations: actually providing a benefit with the purpose of obtaining or retaining business.
Shortly before closing addresses, a dispute arose as to what directions Adamson J should give the jury about the elements of the charged offence. Defence counsel for one accused proposed specific directions distinguishing the charged sub-provision from the uncharged alternatives, and the Crown opposed aspects of those proposed directions.
Legal Issues
- Whether the jury should receive a direction distinguishing "providing" a benefit under s 70.2(1)(a)(i) from the other conduct forms in s 70.2(1)(a), such as causing, offering, or promising a benefit.
- What meaning the phrase "obtain or retain business" in s 70.2(1)(c)(i) should bear, and in particular how it relates to the separate concept of "obtain or retain a business advantage" in s 70.2(1)(c)(ii).
- Whether the jury direction on "obtain or retain business" should specify that a direct connection between the benefit and the business purpose is required.
Decision
On the "provide a benefit" direction
Adamson J accepted that a direction distinguishing s 70.2(1)(a)(i) from the other sub-paragraphs was appropriate, given that the charge was confined to actually providing a benefit. However, her Honour preferred to use the statutory language from s 70.2(1)(a) rather than the paraphrased formulations proposed by defence counsel. The direction stated that causing, offering, or promising a benefit would not, of themselves and without more, satisfy this element, but also made clear that proving one of those matters did not preclude a finding that the agreement was to actually provide a benefit.
On the "obtain or retain business" direction
Adamson J held that the legislative context of s 70.2 requires the phrase "obtain or retain business" in s 70.2(1)(c)(i) to be read more narrowly than its plain terms might otherwise suggest. The existence of s 70.2(1)(c)(ii), addressing "business advantage," demonstrates that Parliament chose to legislate separately for indirect benefits. To read s 70.2(1)(c)(i) as encompassing indirect pathways to obtaining business would render s 70.2(1)(c)(ii) redundant. The Crown accepted that the two sub-provisions are mutually exclusive.
The court construed s 70.2(1)(c)(i) as covering direct obtaining or retaining of business only. Section 70.2(1)(c)(ii), by contrast, captures business advantages that may indirectly lead to obtaining or retaining business. Paying a bribe to be awarded a contract falls within s 70.2(1)(c)(i); paying a bribe to have a tender considered alongside others falls within s 70.2(1)(c)(ii) as an indirect business advantage.
Adamson J accepted the introductory formulation proposed by defence counsel for the second direction but confined the examples to two (excluding one due to overlap), substituted neutral language for a company name, and framed the direction in general terms. The resulting direction told the jury that there must be a direct connection between the benefit and the purpose of obtaining or retaining business, with examples illustrating what would not satisfy that requirement.
Orders Made
No orders were made in this decision.
Key Takeaways
- Section 70.2(1)(c)(i) of the Criminal Code (Cth), which targets conduct carried out "in order to obtain or retain business," requires a direct connection between the provision of the benefit and the obtaining or retaining of business.
- The presence of s 70.2(1)(c)(ii), addressing "business advantage," informed the court's interpretation: a broad reading of "business" in s 70.2(1)(c)(i) that encompassed indirect benefits would render the "business advantage" sub-provision redundant.
- Where only one of the eight permutations of s 70.2 appears on an indictment, the jury may properly be directed on the distinction between that charged form of conduct and the uncharged alternatives within the provision.
- Paying a bribe to secure the award of a contract constitutes directly obtaining or retaining business under s 70.2(1)(c)(i); paying a bribe merely to be included in a tender process does not, though it may fall within the business advantage limb in s 70.2(1)(c)(ii).
- Adamson J delivered reasons ex tempore given trial timetable constraints, acknowledging that a fuller analysis (including comparative review of how other OECD Convention states implement equivalent obligations) would have been warranted had more time been available.
Legislation and Cases Referenced
Legislation:
- Criminal Code (Cth), s 70.2 (bribing a foreign public official)
International Instruments:
- OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (referenced but not analysed in detail)
Cases:
No cases were cited in the provided text.