Citation: Regina v Munro [1999] NSWCCA 31
Court: NSW Court of Criminal Appeal
Date: 9 March 1999
Judge(s): Meagher JA, Grove J, Dunford J
Background
The appellant was a planning and environmental consultant working in the Tweed Shire area. He was tried in the District Court on three counts of common law bribery, with the charges relating to payments allegedly made to councillors of the Tweed Shire Council to induce them to act contrary to their official duties.
The second count, which is the subject of this appeal, alleged that the appellant offered a councillor $5,000 between 1 and 20 October 1988 as an inducement to show favour to the appellant's interests. Evidence established that a cheque for $5,000 drawn by one of the appellant's companies and made out to a real estate firm was, in practice, treated as the councillor's money and ultimately disbursed to a third party. A false receipt was also created in connection with the cheque.
The jury convicted the appellant on the second count. The trial judge had already directed an acquittal on the first count at the close of the Crown case, and the jury acquitted on the third count. The appellant appealed his conviction on the second count to the Court of Criminal Appeal.
Legal Issues
- Whether there was sufficient evidence to establish that the $5,000 payment was made as an inducement to incline the councillor to act contrary to his official duty in the future.
- Whether the evidence was capable of sustaining an inference by the jury that the specific purpose alleged in the indictment had been proved.
Decision
Grove J, with whom Meagher JA and Dunford J agreed, identified the critical deficiency in the Crown's case: the indictment pleaded that the payment was an inducement to incline the councillor to act contrary to his duty in the future. That future-directed corrupt purpose was an essential element of the charge that the Crown was required to prove.
The court accepted that the circumstances were suspicious. The councillor received money traceable to the appellant, there was no legitimate commercial explanation for the payment, the appellant's own account was rejected by the jury, and steps were taken to create a false receipt. However, suspicion, even strong suspicion, does not substitute for evidence capable of supporting an inference as to the specific purpose alleged.
When the Crown was asked to identify facts from which the jury could infer that purpose, it could not do so. On the contrary, Grove J noted that whatever the payment related to, the evidence pointed to matters in the past rather than to future conduct by the councillor. This stood in contrast to the first and third counts, where the evidence did connect the payments to particular projects and permitted an inference of expected future benefit.
Because the Crown failed to adduce evidence capable of establishing this essential element, the court held the conviction could not stand, regardless of the other grounds of appeal.
Orders Made
- Appeal allowed.
- Conviction and sentence on the second count of the indictment quashed.
- Verdict and judgment of acquittal on the second count directed.
Key Takeaways
- A conviction for common law bribery requires proof that the payment was made as an inducement to incline the recipient to act contrary to their official duty in the future; where the indictment is framed in those terms, that future-directed purpose is an essential element the Crown must establish.
- Circumstantial evidence that is suspicious, even very suspicious, does not satisfy the evidentiary threshold if it cannot support an inference as to the specific purpose charged.
- The Court of Criminal Appeal confirmed that a jury verdict cannot be sustained where an essential ingredient of the offence is simply absent from the evidence, regardless of how otherwise questionable the conduct appeared.
- Where the Crown relies on inference to establish purpose, it must be able to identify the specific facts from which that inference can be drawn; a general invitation to infer wrongdoing is insufficient.
- The contrast between counts in the same indictment can illuminate evidentiary gaps: here, the counts that resulted in acquittals were better evidenced in terms of linking payments to particular projects, which highlighted the absence of equivalent evidence on the count in question.
Legislation and Cases Referenced
Cases:
- Fleming v The Queen (1998) 73 ALJR 1 (noted in the judgment in the context of the now-precluded "unsafe and unsatisfactory" ground of appeal)
Legislation: No specific legislation was cited in the judgment or metadata.