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Court of Criminal Appeal 11 November 2024

Macdonald v R

[2024] NSWCCA 198

Public order & justice offences
CRIMINAL LAW APPEALS APPEAL AGAINST CONVICTION COMMON LAW OFFENCE WILFUL MISCONDUCT IN PUBLIC OFFICE WHETHER FINDINGS OF GUILT IN JUDGE

Citation: Macdonald v R [2024] NSWCCA 198
Court: Court of Criminal Appeal, New South Wales
Date: 11 November 2024
Judges: Leeming JA; Mitchelmore JA; Garling J

Background

The appellant was a former NSW Minister for Mineral Resources who, in 2008, granted an exploration licence over coalfields at Jerrys Plains to a company called Doyles Creek Mining Pty Ltd. The grant was made by direct allocation, without competitive tender, under the Mining Act 1992 (NSW). The appellant's co-accused, the director of that company, was charged as an accessory before the fact.

In a judge-alone trial concluded in December 2022, the primary judge (Dhanji J) found the appellant guilty of two counts of wilful misconduct in public office. The co-accused was acquitted. The primary judge determined that the "driving force" behind the appellant's decision was the improper purpose of benefitting the company and its director, and imposed a sentence of eight years' imprisonment with a non-parole period of five years and six months on the first count, and six years and six months (with a non-parole period of four years and six months) on the third count, the second sentence running wholly within the first.

The appellant filed a notice of appeal in April 2024, raising five grounds against conviction and two grounds against sentence. The Court of Criminal Appeal heard the appeal and dismissed it in full.

  • Whether the primary judge erred in directing himself that an improper purpose must be the "driving force" behind the impugned conduct to constitute wilful misconduct in public office
  • Whether the primary judge wrongly conflated "purpose" with "motivation" in applying that test
  • Whether the primary judge erred in treating the appellant's failure to consult various bodies before granting the licence as indicative of guilt, given the minister's complete discretion
  • Whether the primary judge erred in finding that a competitive tender process and a "training mine" proposal were not mutually exclusive options
  • Whether the verdicts were unreasonable or unsupported by the evidence
  • Whether the primary judge erred in assessing the objective seriousness of the offending
  • Whether the sentence was manifestly excessive

Decision

Grounds 1 and 2 (the "driving force" direction and purpose versus motivation): Leave to appeal on Grounds 1 and 2 was refused. At trial, counsel for the appellant had expressly urged the primary judge to apply the "driving force" test, which was the very formulation now challenged on appeal. The Court found the alternative test advanced on appeal (that the decision would not have occurred "but for" the improper purpose) was actually less favourable to the appellant, meaning no substantial miscarriage of justice arose. On the purpose/motivation distinction, the Court read the primary judge's reasons as accepting that the Crown had not established the appellant's personal financial motive, while treating "motivation" and "purpose" as interchangeable concepts in context, consistent with the law.

Grounds 3 and 4 (failure to obtain advice; tender process): The Court held that, although the minister had a complete legal discretion and was under no obligation to consult external bodies, the failure to do so remained a legitimate circumstantial consideration. Similarly, the fact that a departmental briefing note did not expressly include a competitive tender as an option did not preclude the Crown from relying on that option's availability as part of its circumstantial case. Critically, even if one factor in the primary judge's reasoning were erroneous, it does not follow that the verdict must be set aside. It would also be necessary to show the erroneous finding deprived the appellant of a reasonable possibility of acquittal, and no such showing was made.

Ground 5 (unreasonable verdict): The Court was not persuaded the verdicts were unreasonable. The Department had advised against the proposal; the terms of the licence were considerably more unfavourable to the State than comparable licences in the region; the appellant knew there was competing commercial interest in the area; and there was evidence he acted with unusual haste. These matters together amply supported the primary judge's conclusions.

Grounds 6 and 7 (sentence): Leave to appeal against sentence was granted but both grounds failed. The Court accepted the appellant received no personal financial benefit, a matter the primary judge had expressly taken into account. However, the seniority of the ministerial role, the deliberate and sustained nature of the conduct over several months, and the quantum of the benefit conferred on the company all supported the primary judge's assessment of objective seriousness. While the sentence was not lenient, particularly given the appellant's age, it was not so far outside the available range as to compel a conclusion that error of principle had occurred.

Orders Made

  • Leave to appeal granted, confined to Grounds 3 to 7; leave to appeal refused in respect of Grounds 1 and 2.
  • Appeal dismissed.

Key Takeaways

  • A convicted person cannot obtain leave to appeal on the basis that the trial judge adopted the very legal direction that defence counsel expressly invited the judge to apply, particularly where the alternative test now proposed would have been less favourable to the accused.
  • The Court of Criminal Appeal confirmed that, where multiple circumstantial factors collectively support a finding of improper purpose, demonstrating that one individual factor was erroneous is insufficient to disturb the verdict without also showing that the error created a reasonable possibility of acquittal.
  • In assessing wilful misconduct in public office, a minister's complete legal discretion does not render failures of process irrelevant; such failures may still be treated as circumstantial evidence of an improper purpose.
  • Absence of personal financial benefit to an offender does not preclude a finding of high objective seriousness in a misconduct in public office case, where other aggravating features, such as the seniority of the role, the deliberateness of the conduct, and the scale of the benefit conferred on others, are present.
  • Sentencing comparisons with decisions from many decades ago carry limited weight, with the Court noting that sentencing patterns for public office corruption have increased markedly since older authorities such as Jackson v R; Hakim v R (1988).

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), Pt 4A
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Appeal Rules 1952, r 4
- Criminal Code Act 1995 (Cth), s 142.2
- Criminal Procedure Act 1986 (NSW), ss 132, 133
- Mining Act 1992 (NSW), ss 13, 22, 51
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases:
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- R v Macdonald; R v Maitland (No 10 – verdict) [2022] NSWSC 1765
- R v Macdonald [2023] NSWSC 270
- Macdonald v The King (sentence) [2023] NSWCCA 253
- Macdonald v R; Obeid v R; Obeid v R (2023) 112 NSWLR 402; [2023] NSWCCA 250
- Maitland v R; Macdonald v R (2019) 99 NSWLR 376; [2019] NSWCCA 32
- Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309
- Jackson v R; Hakim v R (1988) 33 A Crim R 413
- R v Nuttall; ex parte Attorney-General [2011] 2 Qd R 328; [2011] QCA 120
- R v Quach (2010) 27 VR 310; [2010] VSCA 106
- EE v The King [2023] NSWCCA 188