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Supreme Court 3 February 2022

R v Dougas; R v Read; R v Linke (No 4)

[2022] NSWSC 51

Fraud & dishonesty
CRIME FEDERAL OFFENCES CONSPIRACY BRIBING A FOREIGN PUBLIC OFFICIAL ELEMENTS OF OFFENCE STATUTORY INTERPRETATION

Citation: R v Dougas; R v Read; R v Linke (No 4) [2022] NSWSC 51
Court: Supreme Court of New South Wales
Date: 3 February 2022
Judge(s): Adamson J

Background

Three accused faced trial on a charge of conspiracy to bribe foreign public officials under section 70.2 of the Criminal Code Act 1995 (Cth). Before the trial commenced, a dispute arose about an element of the offence: whether the Crown was required to identify, by name or position, the specific foreign public official whom the accused allegedly intended to influence through payments made to a third party.

The accused argued that identification of the public official was an element of both the substantive offence and the conspiracy charge. The Crown contended that it needed only to prove that the accused intended to influence someone who was a foreign public official, without specifying who that person was.

The court was asked to resolve this question as a preliminary matter, with the answer shaping how the Crown would be required to put its case at trial.

Legal Issues

  • Whether the Crown must prove the identity (by name or office) of the foreign public official whom the accused intended to influence, as an element of an offence under section 70.2(1) of the Criminal Code.
  • Whether the 2015 amendment to section 70.2(1A) corrected a deficiency in the original provision or merely clarified what was already implicit in it.
  • How the statutory purpose of Division 70, including Australia's obligations under the OECD Convention on Combating Bribery of Foreign Public Officials, bears on the proper construction of section 70.2.
  • What role extrinsic materials, including the Convention, parliamentary second reading speeches, and international jurisprudence, play in resolving the interpretive question.

Decision

Issue 1: Whether identification of the public official is an element of the offence

Adamson J held that the Crown is not required to identify, by name or office, the foreign public official whom the accused intended to influence (at [63]). The court found that Parliament's use of the phrase "a public official" rather than "the public official" or "a specified public official" evinced a legislative intention to criminalise payments intended to influence any foreign public official (at [44]). The gravamen of the offence is the bribery of a person who is a foreign public official; it does not depend on the particular office held by that person (at [54]).

Issue 2: Effect of the 2015 Amendment

The court found that the 2015 amendment to section 70.2(1A) was ambiguous: it could either have clarified what was always implicit in the provision, or corrected a deficiency in the original enactment (at [23]). The competing hypotheses about what prompted the amendment, including possible awareness of an argument ventilated in committal proceedings and the findings of a 2014 OECD report on foreign bribery, were too speculative to provide a reliable guide to Parliament's intent (at [23]). The ambiguity about the amendment's purpose did not alter the court's construction of the original provision.

Issue 3: Statutory purpose and intermediaries

The court found that Division 70 was enacted to fulfil Australia's obligations under the OECD Convention, which focused on deterring citizens and residents of signatory States from bribing foreign officials to secure commercial advantages (at [47]). Requiring identification of a public official by name or office would make proof of the offence considerably more difficult, and in many cases impossible, particularly given the widespread use of intermediaries in foreign bribery arrangements (at [48]). Imposing such a requirement would subvert the Convention's purpose and emasculate the offence.

Issue 4: Particulars and proof

The court distinguished between the elements of an offence (which the Crown must prove beyond reasonable doubt) and the related but separate questions of particularisation, evidentiary onus, and mode of proof (at [49]). The Crown's obligation to particularise requires it to provide as much specificity as the available evidence permits, to enable the accused to understand the case to be met at trial (at [53]). The Crown may discharge its onus by direct evidence identifying a particular official, or by circumstantial evidence establishing that the only available non-fanciful hypothesis is that the accused intended to influence someone who was a foreign public official (at [63]).

Orders Made

Finding made.

Key Takeaways

  • The Supreme Court held that the identity of a foreign public official by name or office is not an element of the offence of bribing a foreign public official under section 70.2(1) of the Criminal Code Act 1995 (Cth); the Crown need only prove that the accused intended to influence someone who was a foreign public official (at [63]).

  • Parliament's choice of the phrase "a public official" rather than "the public official" or "a specified public official" reflects a legislative intention to capture conduct directed at influencing any foreign public official, not just a particular identified person (at [44]).

  • Requiring identification of a public official by name or office would undermine the purpose of Division 70 and Australia's obligations under the OECD Convention, particularly given that foreign bribery offences are commonly committed through intermediaries who may ensure that the principal never knows the identity of the ultimate recipient (at [47]-[48]).

  • A clear distinction exists between the elements of a foreign bribery offence and the Crown's separate obligation to particularise the charge: the Crown must supply as much specificity as available evidence permits, but those particulars do not become elements of the offence requiring proof beyond reasonable doubt (at [49], [53]).

  • The 2015 amendment to section 70.2(1A) was insufficient to resolve the interpretive question, as the speculative hypotheses about its genesis could not reliably indicate whether Parliament intended to clarify existing law or remedy a deficiency in the original provision (at [23]).

Legislation and Cases Referenced

Legislation
- Acts Interpretation Act 1901 (Cth) , ss 15AA, 15AB
- Corruption of Foreign Public Officials Act (S.C. 1998 c. 34)
- Crimes Act 1900 (NSW), s 193C
- Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth)
- Criminal Code Act 1995 ( Cth), ss 11.5, 70.1, 70.2, 70.3, 141.1

Cases
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41
- Allina Pty Ltd v Federal Commission of Taxation (1991) 28 FCR 203
- CIC Insurance v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2
- Commonwealth Director of Public Prosecutions v Brady [2016] VSC 334; (2016) 346 FLR 1
- Grain Elevators Board (Vic) v Dunmunkle Shire (1946) 73 CLR 70; [1946] HCA 13
- K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; [1985] HCA 48
- Karigar v The Queen [2017] SCCA 385
- Lin v R [2015] NSWCCA 204; (2015) 253 A Crim R 1
- Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476; [2002] HCA 2
- Povey v Qantas Airways Ltd (2005) 223 CLR 189; [2005] HCA 33
- R v Masters; R v Richards; R v Wunderlich (1992) 26 NSWLR 450
- R v Saffron (1988) 17 NSWLR 395
- SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55
- The Queen v A2 (2019) 269 CLR 507; [2019] HCA 35
- The Queen v Holliday (2017) 260 CLR 650; [2017] HCA 35
- The Queen v Karigar 2013 ONSC 5199
- WGC v The Queen (2007) 233 CLR 66; [2007] HCA 58
- Xue v R [2021] NSWCCA 270