Supreme Court of SA|1996-07-19|Before: Doyle CJ

QUESTION OF LAW RESERVED (NO.2 OF 1996) No. SCCRM 96/131 Judgment No. 5674 Number of pages - 30 Criminal law - statutes - Acts of Parliament (1996) 67 SASR 63 [1996] SASC 5674 (19 July 1996)

COURT IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA DOYLE CJ(1), OLSSON(2) AND DUGGAN(3) JJ

CWDS Criminal law - particular offences - miscellaneous offences and matters - official misconduct - 64 counts of "abuse of public office" between May 1988 and April 1995 - statutory abolition of common law offences in 1992 and replacement with statutory regime - an offence, adequately described as "abuse of public office", existed at common law prior to abolition act - a general offence rather than a mere description of a series of specific offences - offence sufficiently stated in count and particulars - duplicity of some counts charging an offence both at common law and contrary to statutory regime. R v Bembridge (1873) 3 Dougl 327; ; R v Llewellyn-Jones ; R v Dytham ; R v Bowden , applied.

Statutes - Acts of Parliament - interpretation - Schedule to Act listing common law offences to be abolished - specific forms of offence listed, rather than generic offence - overriding intention of Parliament was to abolish common law offences in a general manner, even if it proceeded upon an incorrect assumption - intention appearing from enactment of a comprehensive statutory code.

Acts of Parliament - operation and effect of statutes - bolition of common law offence and enactment of statutory regime

whether abolition precludes prosecution for offences occurring before abolition - approach to repeal of statutes is a technical one and not to be applied to the abolition of common law doctrines - ultimate question is always that of Parliamentary intention
Acts Interpretation Act does not apply - reference to dictionary definitions not decisive - reference to Attorney-General's Second Reading Speech - modification and refinement of policy underlying offences rather than rejection of that policy
unlikely that Parliament intended an interregnum, given the retention of criminal liability in this area - appropriate time for the law to change should not be arbitrary - criminal liability should remain constant, irrespective of exactly when prosecution commenced - criminal liability only abolished in relation to acts taking place after the date of abolition of the offence. Owen v State of South Australia ((1996) [1996] SASC 5574; 66 SASR 251), applied. Surtees v Ellison (1829) 9 BandC 750[1829] EngR 594; , 109 ER 278; Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261; Chang Jeeng v Nuffield (Australia) Pty Ltd [1959] HCA 40; (1959) 101 CLR 629; R v McKenzie (1820) Russ and Ry 429[1821] EngR 42; , 168 ER 881; R v Denton [1852] EngR 59; (1852) 3 Dears 3, 169 ER 612; Bennett v Tatton (1918) 88 LJKB 313; Kay v Goodwin [1830] EngR 605; (1830) 6 Bing 576, 130 ER 1402; R v Mawgan (1846) 8 Ad and E 496, distinguished. Papatheodorakis v Cleland (1992) 165 LSJS 424, discussed. DPP v Ottewall (1970) AC 642; R v West London Stipendiary Magistrate ex parte Simeon (1983) 1 AC 234; R v Swan (1849) 4 Cox CC 108; Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261; Victrawl Pty Ltd v Telstra Corporation Ltd (1995) 193 CLR 595, considered.

Criminal law - general matters - ancillary liability - statutory offence - whether ancillary liability applies - no intention to exclude liability to be discerned from statutory provisions.

Counsel for applicant B D Gehling: Mr D J Stokes

Solicitors for applicant B D Gehling: David Stokes and

Counsel for applicant W D Gardiner: Mr M David QC with

Solicitors for applicant W D Gardiner: Mcgee and Associates

Applicant G J Twohill:
No Attendance

Counsel for applicant F B Carbone: Mr M Abbott QC with

Solicitors for applicant F B Carbone: Douglas Wardle

Counsel for respondent R: Ms W Abraham with Mr K Soetratma

ORDER Answer the questions reserved as follows: (i)a Yes. (i)b Yes. (ii) No. (iii) Yes. (iv) Yes.

JUDGE1 DOYLE CJ

The questions of law to be answered in this case, and the circumstances in which they have arisen, are stated in the reasons of Olsson J.

Question (i)(a) 2. I am in general agreement with the reasons of Olsson J relating to this question.

In my opinion the law on this matter is correctly stated by Dr Finn (as His Honour then was) in his article "Official Misconduct" (1978) 2 Crim LJ 307 at 307- 308 (footnotes omitted): "By at least the middle of the 18th Century the common law had evolved a general, though ill-defined, offence variously described as 'official misconduct', 'breach of official trust', or 'misbehaviour in a public

office'. To this day the precise metes and bounds of this offence remain uncertain. Indeed, there has been - and still is

a tendency to regard 'official misconduct' as but a descriptive formula for a series of specific but inter-related offences such as oppression, neglect of duty, abuse of official power, fraud in office, etc. As a general offence it is, nonetheless, still recognised and applied as part of the common law of England......Unlike with the more narrow offences of bribery and extortion, official misconduct is not concerned primarily with the abuse of official position for pecuniary gain, with corruption in the popular sense. Its object is simply to ensure that an official does not, by any wilful act or omission, act contrary to the duties of his office, does not abuse intentionally the trust reposed in him."

As Dr Finn points out, much of what has been said in this area of the law derives from Lord Mansfield's reasons in R v Bembridge (1783) 3 Dougl 327; 99 ER 679, where he said (99 ER at 681): "The law does not consist of particular cases but of general principles, which are illustrated and explained by these cases. Here there are two principles applicable: first, that a man accepting an office of trust concerning the public, especially if attended with profit, is answerable criminally to the King for misbehaviour in his office....Secondly, where there is a breach of trust, fraud or imposition, in a matter concerning the public, though as between individuals it would only be actionable, whereas between the King and the subject it is indictable."

I have examined a number of authoritative texts dealing with the criminal law, including those referred to by Olsson J. In my opinion they indicate that there is (or was) at common law both a generally described offence based on misconduct or misbehaviour and a number of specific offences which might be regarded as specific instances of the general offence or as additional to it (and it does not seem to matter how one puts it). In this respect I agree in general terms with what Olsson J has said.

The current vitality of the common law on this topic is illustrated by recent English cases. In R v Llewellyn-Jones (1968) 1 QB 429 at 436-437 the Court of Appeal declined to attempt an "exhaustive definition of what was covered by misbehaviour in a public office", being satisfied that what was alleged was sufficient. In R v Dytham (1979) 1 QB 722 the approach was similar. The Court of Appeal then accepted as correct the concession that "...there does exist at common law an offence of misconduct in a public office" (at 725), but made no attempt to define its limits. More recently, in R v Bowden (1995) 4 A11 ER 505 the Court of Appeal reviewed the English cases, clearly accepting them as correct, referring along the way to the offence of "misconduct in a public office" and "misbehaviour in public office" (at 508).

I reject the submission, by counsel for the accused, that the common law recognised no generic offence and recognised only a number of specific types of misconduct, such as those listed in Schedule 11 to the Criminal Law Consolidation Act ("the CLCA"), the relevant paragraphs of the Schedule being set out below. The generic offence, however it may be entitled, does exist. "Misconduct in a public office" (or some other term) is not merely a descriptive term used to describe a group of offences in the way in which the term "sexual offences" or "sexual misconduct" might be used to describe offences such as rape, unlawful sexual intercourse and other sexual offences.

I agree that the offence might be better described as "misconduct in a public office" or as "misbehaviour in a public office". But, as yet, no particular description has received an authoritative stamp of approval, and on that state of authority it is my opinion that the person drawing the Information was at liberty to use "abuse of public office" in the "Statement of Offence". That part of the Information must "....describe the offence shortly in ordinary language...": see Rule 4(3) in Schedule 3 to the CLCA. In my opinion, there being no settled description of the offence in question, some latitude is allowed, and the words used are apt to indicate the offence referred to in the cases cited by me.

Question (i)(b) 10. In my opinion the statement of offence in count 1 and the particulars which form part of that count are a sufficient statement of the offence.

The particulars allege that the accused was a public officer, that he made improper use of information, and that he did so to receive a benefit for himself and for another.

In my opinion these elements are capable of constituting the stated offence.

It is clear, I consider, that the generic offence (as I have described it), strikes at the public officer who deliberately acts contrary to the duties of the public office in a manner which is an abuse of the trust placed in the office holder and which, to put it differently, involves an element of corruption. It may be that the mere deliberate misuse of information is sufficient to give rise to an offence, but the further allegation of an intent to receive a benefit clearly, in my opinion, brings the matter within the ambit of the common law offence.

I agree with what Olsson J has said about those counts which allege an offence at common law and contrary to s251 of the CLCA.

I leave until later the issue of liability as an accessory.

Question (ii) 17. In relation to this question, the first issue is whether the common law offence identified in count 1 is abolished by the statutory amendments to the CLCA encompassed by the Statutes Repeal (Public Offences) Act 1992 ("the Public Offences Act"). Section 10 of the latter Act inserts into the CLCA a schedule, Schedule 11, which abolishes a large number of common law offences. The Schedule relevantly provides: "1. The following common law offences are abolished: .... (8) bribery or corruption in relation to judges or judicial officers; (9) bribery or corruption in relation to public officers; (10) buying or selling of a public office; (11) obstructing the exercise of powers conferred by statute; (12) oppression by a public officer; (13) breach of trust or fraud by a public officer; (14) neglect of duty by a public officer; (15) refusal to serve in public office;"

However, the question remains of whether this measure did indeed abolish the common law offence of abuse of public office or of misconduct in public office. This is because the Schedule follows the same tendency described by Dr Finn in the passage cited above; that is, the legislature has turned its attention to the repeal of specific forms of the offence rather than the generic offence itself.

This would lead to no difficulty if the sum of those parts constituted the whole. However, as I have already said, the offence is not easily capable of exhaustive definition, and therefore may well (and in my opinion does) extend beyond these particular forms: see Finn, "Official Misconduct" (supra) at 310.

In these circumstances, although many of the forms which the crime can take have now been expressly abolished, it is arguable that there is a residual category of unspecified forms of the offence, which forms have not been expressly abolished by Schedule 11 of the CLCA.

However, it is my opinion that the intention of Parliament was to abolish common law offences relating to misbehaviour in public office in a general manner. In attempting to specify the entire range of such offences, it may have operated upon an incorrect assumption as to the nature of the existing common law offences. However, I think that the over-riding intention is nevertheless clear enough.

Any uncertainty about Parliament's intention, due to the form of Schedule 11 is, I consider, reduced by the enactment of Division 4 of Part 7 of the CLCA, which is headed "Offences Relating to Public Officers".

This intention can be found in the enactment of what appears to be a comprehensive code dealing with misbehaviour in public office, a code no doubt intended to be exclusive. I do not think that any presumption that statutory offences are intended to supplement, rather than abolish, common law offences is applicable here, given the existence of such a code. The legislature may not have known of various pockets of common law liability, and hence not expressly dealt with them, but the general intention is clear enough: to repeal all relevant common law offences and to replace them with a general statutory regime. I do not consider that general intention to be thwarted by a failure to identify specifically the exact scope of each common law offence to be abolished.

In short, the combined effect of the enactment of what appears to be a comprehensive code and of the abolition of a number of specific common law offences indicates an intention to abolish any common law criminal liability previously identified as misconduct in public office and misbehaviour in a public office. It indicates such an intention despite the somewhat curious failure to act specifically with respect to the generic common law offence.

The Extent of that Abolition 25. Having concluded that the common law offence was indeed abolished by section 10 of the Public Offences Act, there remains the question of whether that abolition precludes the prosecution of persons who would otherwise have been liable to prosecution for common law offences committed before 6 July 1992.

Neither the Public Offences Act nor the Schedule itself give any express guidance as to the manner in which the common law offence is abolished. That is, there are no transitional or commencement provisions which indicate whether prosecutions which are pending or in progress (or indeed successfully completed and awaiting sentence) are to be stopped because of the abolition of the offence.

It is therefore a nice question of statutory interpretation to ascertain whether, on the one hand, the Parliamentary intention to "abolish" the offence included an intention to at once decree that there was to be no criminal liability for the offence, whenever committed; or whether the intention was rather to abolish any new criminal liability from accruing after the date of enactment.

In my opinion, the latter interpretation should be preferred. I now state my reasons for coming to this conclusion.

I should first mention two presumptions relating to statutory interpretation. The first relates to the construction of penal statutes, namely that such statutes are to be construed strictly. I have not found this presumption of much assistance. From the authorities it appears that the presumption is something of a last resort in the event of continuing ambiguity: see, for example, DPP v Ottewall (1970) AC 642 at 649 Lord Reid. I have not had need for this resort, and indeed do not think it particularly appropriate to the legislation under question, in which an offence is abolished rather than enacted. I note that in R v West London Stipendiary Magistrate ex parte Simeon (1983) 1 AC 234, a case in which a statutory offence was repealed, the House of Lords was not, it seems, referred to this presumption nor did its members require its assistance in coming to their conclusion. However, I note in passing the reference made to the maxim by Coleridge J in the context of a statutory repeal in R v Swan (1849) 4 Cox CC 108 at 114.

The second presumption relates to retrospective operation. It might be argued that, if the Public Offences Act was to be given a wide operation in order to abolish liability for offences already committed but not yet prosecuted, this would be to give the Act retrospective operation. There is a presumption against such operation as a general rule: Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267 Dixon CJ, 285 Fullagar J; Rodway v R [1990] HCA 19; (1990) 169 CLR 515 at 518 Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ; Victrawl Pty Ltd v Telstra Corporation Ltd [1995] HCA 51; (1995) 183 CLR 595 at 620 Deane, Dawson, Toohey and Gaudron JJ.

This presumption is also of limited utility in the present case. It is undoubtedly applicable to support the conclusion that those offences where convictions were recorded before 6 July 1992 are unaffected, these convictions now being completed transactions. However, such a result could be achieved equally well through the application of common sense in deciding what the legislature would have intended.

On the other hand, in the murkier waters which must be navigated in this case, the presumption does not, in my opinion, afford much guidance. It is not clear that any retrospective operation is involved in the wider interpretation (abolition of all criminal liability) which I have identified above. Nor do I think that it is realistic in these present circumstances to impute an intention to Parliament based on a technical approach to interpretation. Rather, the paramount consideration must be the language and policy of Parliament.

The same might be said of another factor, namely, an argument based upon analogy to the repeal of statutes at common law. The law relating to the effect of a repeal (putting aside the Acts Interpretation Act 1915 and its equivalents) was based on considerations relating to statutes and was not of general applicability to the common law; nor, in my opinion, is it a particularly desirable approach to adopt today.

The common law rule as to statutory repeal was that, except in relation to transactions past and closed, the repealed Act is considered to be of no force: Surtees v Ellison (1829) 9 BandC 750 at 752; [1829] EngR 594; 109 ER 278 at 279; Maxwell v Murphy (supra) at 266-7 Dixon CJ; Chang Jeeng v Nuffield (Australia) Pty Ltd [1959] HCA 40; (1959) 101 CLR 629 at 637 Dixon CJ. The consequence of this was that an offence committed before the repeal of an Act, but tried after, was not liable to be punished, even where a new penal Act had immediately replaced the old: see, R v McKenzie (1820) Russ and Ry 429[1821] EngR 42; , 168 ER 881; R v Denton [1852] EngR 59; (1852) 3 Dears 3, 169 ER 612; R v Swan (supra); Bennett v Tatton (1918) 88 LJKB 313.

However, this approach depended upon rather technical reasoning which I would not choose to apply to the abolition of common law doctrines. The common law approach seems to have been based upon a technical interpretation of the word "repeal", fairly inflexibly applied. The central pillar of this doctrine may be found in the statement of Lord Tindal CJ in Kay v Goodwin [1830] EngR 605; (1830) 6 Bing 576 at 582-3[1830] EngR 614; , 130 ER 1402 at 1405 that: "I take the effect of repealing a statute to be, to obliterate it as completely passed from the records of the Parliament as if it had never passed; and, it must be considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted, and concluded whilst it was an existing law."

This approach is also reflected in the dictum of Lord Tenterden CJ in Surtees' Case (supra) that (at 9 BandC 752, ER 279): "It has long been established, that, when an Act of Parliament is repealed, it must be considered (except as to transactions past and closed) as if it had never existed. That is the general rule; and we must not destroy that, by indulging in conjectures as to the intention of the Legislature."

This approach was applied to wide and pernicious effect, for instance in denying the ability of the Court to have reference to repealed legislation in interpreting new Acts: see eg Te Kloot v Te Kloot [1894] NSWLawRp 16; (1894) 15 LR(NSW) 1. It seems also to have been the basis of the general rule as to the effect of repeal on proceedings still on foot: see R v Mawgan (1846) 8 AdandE 496[1838] EngR 700; , 112 ER 927, R v Denton (supra).

However, this is not in my opinion an approach that should be adopted today by analogy in relation to the effect of statutes upon the common law. It seems to me to pay insufficient attention to the intention of Parliament. In construing legislation the ultimate question is always that of parliamentary intention; "conjectures as to the intention of the Legislature" are indeed what the courts might be said to make in this process. For that reason, a technical rule as to the meaning of "repeal" should never prevail over the intention of Parliament in using that word. If some of the cases might be taken to rest the technical rule upon the intention of the legislature, this only underlines the point that Parliamentary intention is the decisive factor.

Other reasons occur for not applying the technical rule to the abolition of common law offences, but prominent among them is the inconvenience of the rule. Rather, I propose to take an approach based, as I have said, upon the language and policy of Parliament.

A point that should also be addressed here is the ambit of section 16 of the Acts Interpretation Act. Section 16(1) relevantly provides: "(1) Where an Act is repealed or amended, or where an Act or enactment expires, then unless the contrary intention appears the repeal amendment or expiry does not - ... (d) affect any duty, obligation, liability or burden of proof imposed, created or incurred or any penalty, forfeiture or punishment incurred or imposed, or liable to be incurred or imposed prior to the repeal, amendment or expiry."

The alteration of substantive doctrines of the common law may be achieved by an enactment that is also an amendment of a statute. If that happens, as has happened here, then on a literal reading of the section an amendment of an Act has occurred, and the section comes into play. However, I do not think that this is the scope intended for the section. The mere fact that a change in the common law is accomplished by an amendment to an Act, without changing the substantive statutory law under that Act as such, rather than by an Act designed to stand alone, does not bring it within the contemplated operation of s.16(1) of the Acts Interpretation Act. Therefore, this section does not apply to the present case.

4Parliamentary Intention 2. That said, the question arises as to the proper construction of the Act and in particular of the word "abolished".

As I have noted, the abolition of the offence as such, as opposed to a number of its component parts, has been achieved by implication rather than expressly. However, I do not think anything turns upon this.

In my opinion, arguments which rely upon dictionary definitions of the word "abolished" are not decisive. Among such dictionary definitions is the following from Black's Law Dictionary (6th ed, 1990): "Abolish: To do away with wholly; to annul; to repeal; to rescind; to abrogate; to dispense with. Put an end to. ... Imports absolute destruction having its root in the Latin word "abolere", meaning to destroy utterly. Applies particularly to things of a permanent nature, such as institutions, usages, customs, as the abolition of slavery."

However, it is clear that the matter is not as simple as that. For instance, as I have pointed out above, it would be against common sense and the presumption against retrospective operation to suppose that Parliament intended to abolish the offence in relation to people already tried, convicted and sentenced, or even those who have served their sentences. Nor, in my opinion, does the abolition of the offence extend to the cancellation of an offender's prior criminal record. For this reason, it is clear that more is involved than conceptual reasoning based on dictionary definitions. The question cannot be determined in absolutes, but rather is to be determined by locating Parliamentary intention on a continuum of possibilities.

As I have noted, there is little assistance to be gained from the terms of the legislation. However, I think assistance is to be gained from the policy of the legislation, both as directly expressed in its operation and in the second reading speech of the Attorney-General in relation to the Public Offences Bill. I consider that it is appropriate to have regard to the latter in the circumstances: see Owen v State of South Australia ((1996) [1996] SASC 5574; 66 SASR 251).

A relevant consideration to my mind is the way in which Parliament has approached the abolition of this offence as opposed to others, such as those of being a common scold, embracery and champerty, which were also abolished at the same time. While some offences were completely abolished as being "anachronistic" or "inappropriate", others, including those offences relating to public officers, were re-enacted in a modernised form. I refer to the Second Reading Speech of the Attorney-General, Legislative Council, Hansard 26 November 1991 at 2246 and 2247.

In the case of an offence which is considered anachronistic or undesirable, the abolition of the offence is more easily seen as being a sweeping away of an inappropriate liability, never to be enforced again. The abolition of the offence in that context may imply also the abolition of its enforcement from the date of the abolishing statute. On the other hand, when a statute re-enacts what are modified forms of common law offences, where the same fundamental policies underlie both the old and the new rules, this conclusion is much more difficult to draw. There is no repugnance expressed at the policy of the old rule, and a corresponding requirement that prosecutions under it be stopped; rather, there is a modification and refinement of that policy. This seems to me to be a very different thing.

Further, given the continued retention of punishment for this sort of offence, albeit in modified and statutory form, it seems difficult to believe that Parliament would intend that people liable under the old regime would escape punishment by the enactment of the new. This does not seem to me a sensible or likely result, or one that should be lightly imputed to Parliament. I have already referred to some of the cases on statutory repeal. In a number of them such an argument was advanced, namely that Parliament could not have intended some sort of interregnum for the prosecution of offenders: see R v McKenzie (supra); R v Swan (supra). However, the rejection of these arguments was on the basis of factors peculiar to the repeal of statutes, an approach which, as I have explained, I do not find it appropriate to apply here.

Related to this point is another relating to the appropriate time for the law to change. On the wider interpretation of "abolish" the law would vary, in some cases, depending upon whether a person had been prosecuted for an offence by the time of the repeal. This is a rather arbitrary means of determining liability in a particular case. It is more consonant with justice that an offender's criminal liability remains the same, irrespective of whether the prosecution was undertaken before or after a certain date. In this context I refer to the remarks of Perry J in Papatheodorakis v Cleland (1992) 165 LSJS 424 in relation to the legislation which at the end of 1991 repealed the previous statutory provisions as to the law of self-defence and replaced them with a new provision. The accused had been charged with an offence said to have occurred before the provisions were enacted. His Honour said (at 429): "The question as to what, if any, retrospective operation should be given to an amending Act is always a question of statutory construction which, in turn, depends upon the nature and purpose of the amendment in

the context of the remaining provisions of the Act the subject of the amendment. I agree with the learned Magistrate that in passing the amendment which substituted the present s.15, Parliament could not have intended to alter the characterisation, for the purposes of the law, of potentially criminal acts committed before the amendment came into effect. Such a construction would mean that the same conduct could be held either lawful or unlawful, depending upon whether or not the charge happened to be disposed of before or after the amendment. The clearest possible mandate for such a construction would have to appear

in the amending legislation before such an arbitrary and capricious result could be held to have been intended."

Further, the language of the Attorney-General is, in my opinion, consistent with the prospective operation of the legislation without the abolition of liability for previously committed offences. In relation to offences relating to public officers, the Attorney-General spoke of giving "guidance to the courts, to the public and to public officers....and those who deal with them. It seeks to draw the boundaries - to set the right sort of questions to ask." (at 2247). Later, the Attorney-General spoke again in this vein, referring to the object of the legislation as being "to provide a non-technical standard expressed in ordinary language which would guide the users of the code in a helpful way." (at 2247).

It seems to me that this language talks of guidance and standards for the future, rather than the replacement and abolition of a previous offence in total. The intention is, I consider, one of refinement but not one of sweeping away an offence in order that it never be punished again.

I accept that the terms of clause 3 of Schedule 11 of the CLCA appear to support a contrary argument. Clause 3(2)(a) provides as follows: "(2) The abolition of criminal and civil liability for maintenance and champerty does not affect - (a) any civil cause of action accrued before the abolition,"

The express preservation of civil liability in respect of an accrued cause of action might imply that, but for that, there would be no liability in respect of an accrued cause of action. By a parity of reasoning it could be argued that no criminal liability was preserved unless specific provision to that offence is made.

I can see the force of that argument. It is, in my opinion, not sufficient to alter the conclusion which I have reached. First, because of the force of the argument already adverted to. Secondly, because maintenance and champerty are abolished as crimes and torts. No replacement civil liability is provided for. That being so, preservation of accrued liability requires an express provision to that effect. The matters that lead to the conclusion that express preservation of accrued liability is not necessary in relation to offences involving public officers are not present, hence the need in this case for an express provision.

For these reasons, I conclude that the legislation is best understood as abolishing the common law offences in question (that is, those relating to offences relating to public officers) only in relation to acts taking place after the day of enactment, while leaving unaffected liability for acts taking place before the day of enactment.

Therefore, I would answer question (ii) of the case stated, "No".

Question (iii) 59. In relation to this question, I agree that, for the reasons given by Olsson J, the answer should be "Yes".

Question (iv) 60. In my opinion there is no reason to take an approach in relation to s251 of the CLCA which differs from the approach taken in relation to the common law offence.

It is true, of course, that the section deals only with the liability of the public officer, the principal offender, and makes no reference to accessorial liability. But that is true of other statutory provisions under which secondary participants have been convicted. I can discern nothing in the nature or terms of the offence created by s251 which indicates an intention to exclude secondary liability.

Nor, in my opinion, does s249 indicate any such intention. That provision makes it an offence improperly to give, offer or agree to give a benefit to a public officer as a reward or inducement for certain acts or omissions, some of which fall within s251. It also makes it an offence for a public officer to seek, accept or agree to accept a benefit under like circumstances. There may well be situations in which conduct by a person not a public officer would constitute a breach of s249(1), and would expose that person to prosecution as an accessory to an offence by the relevant public officer against s251. But one can readily envisage situations in which facts giving rise to liability as an accessory to an offence under s251 would not give rise to any liability under s249.

That is not conclusive. But, treating the matter as one of the intent of Parliament, it is my opinion that the fact that there may be some overlap between liability under s249(1) and liability as an accessory does not lead to the conclusion that Parliament intended that the former provision should be the sole provision dealing with secondary involvement in a breach of s251. It would be another thing if one could discern in s249 an intention to regulate generally secondary involvement in breaches of s251, but no such intention emerges. Section 249(1) is directed to the giving and offering of benefits to a public officer in association with the exercise of a public office. Section 249(2) is directed to the accepting and seeking of benefits by a public officer in connection with the exercise of a public office. Section 251 is directed to misuse of a public office with a view to a benefit to the public officer or harm or benefit to another person. There is, as already noted, an obvious area of overlap, but to my mind there is a sufficient difference in the reach of each provision to prevent any conclusion that s249(1) is intended to be the sole provision relating to secondary liability for conduct falling within s251.

Accordingly, I would answer question (iv) "Yes".

Conclusions 65. I would therefore answer the questions reserved as follows: (i)a Yes. (i)b Yes. (ii) No. (iii) Yes. (iv) Yes.

JUDGE2 OLSSON J 66. This court has before it four questions of law reserved for its consideration, as set out in a case stated by Nyland J pursuant to s350(1) of the Criminal Law Consolidation Act, 1935 ("the CLCA").

The facts giving rise to the case stated are of simple compass.

By an ex officio information presented on 15 March 1996 four persons were, collectively, charged with a total of 64 counts of an offence specified as "Abuse of Public Office".

One of the accused, Francesco Bagyio Carbone ("Carbone"), is a private investigator. The other three accused, Gehling, Gardiner and Twohill, were, at the times of the offences alleged against them, police officers. In essence the Crown says that the accused Gehling, Gardiner and Twohill, by virtue of their positions as police officers, gained access to confidential information, which they then passed on to Carbone. There is no allegation in the information that this was done for reward. It is alleged that Carbone instigated each of the offences, by requesting the procurement of the information in question, by one or other of his co-accused. He is charged with all counts, on an accessorial basis.

The alleged offences, in their totality, range over a total time span extending from 17 May 1988 to 28 April 1995.

Relevant background 71. Prior to 6 July 1992, a variety of situations related to behaviour on the part of persons holding public office could be charged as common law offences. However, as of that date, the CLCA was amended, inter alia, by insertion of Schedule 11 to the statute. So far as relevant, that Schedule read as under:- "SCHEDULE 11

Certain common law offences abolished 1. The following common law offences are abolished: ...

(8) bribery or corruption in relation to judges or judicial officers; (9) bribery or corruption in relation to public officers; (10) buying or selling of a public office; (11) obstructing the exercise of powers conferred by statute; (12) oppression by a public officer; (13) breach of trust or fraud by a public officer; (14) neglect of duty by a public officer; (15) refusal to serve in public office ..."

At the same time the Act was amended to create, as from 6 July 1992, a series of new statutory offences related to persons holding public office. Without attempting to be definitive, these encompassed topics such as "bribery or corruption of public officers", "threats or reprisals against public officers", "abuse of public office", "trafficking in public offices" and "offences related to appointment to public office". The statutory scheme of offences so created differs, in significant respects, from the original basis of relevant common law offences and possible defences to them.

The "new" statutory scheme is to be found in Divisions 1 and 4 of Part 7 of the CLCA. It contains comprehensive definitions related, inter alia, to public officers; erects a defined concept of "acting improperly"; and creates a series of specific offences which may be committed either by public officers, as defined, or persons interacting with public officers. It does not therefore simply rely on the general accessorial provisions found in s267 of the CLCA. In the specification of offences coming into existence as from 6 July 1992, the elements of the offending conduct are spelt out in a very specific fashion. Clearly those offences are intended to constitute a comprehensive "code" of offences to take the place of the relevant prior types of offending behaviour spelt out in Schedule 11.

The offences charged in the information presently under consideration fall into various categories, although the statement of offence, in each instance, is expressed to be "Abuse of Public Office".

The first nine counts assert similar type offences against Carbone and Gehling, albeit in respect of varying time periods prior to 6 July
Typical of these is count 1, which reads as under:-

Bruce Douglas Gehling between the 5th April, 1991 and the 12th June, 1991 at Adelaide or another place, being a public officer, namely a police officer, improperly used information that he had gained by virtue of his public office with the intention of securing a benefit for himself or another.

It is further alleged that between the same dates Francesco Bagyio Carbone aided, abetted, counselled or procured the said Bruce Douglas Gehling to commit the said crime."

It will be seen that these counts each aver the commission of what is said to be a common law offence.

There are a total of 40 counts proffered jointly against Carbone and Gardiner. Of those 37 are expressed in the same format as count 1 and arise from events said to have taken place prior to 6 July 1992. (The remainder contain a common, important difference, to which I shall shortly come.)

There are 11 counts jointly against Carbone and Twohill, which are also couched in the same format and are referable to the pre 6 July 1992 period. A further four counts against these accused allege differing offences.

The second grouping of counts encompasses two charges jointly against Carbone and Gardiner, and one jointly against Carbone and Twohill. Count 13 is typical of this format. It reads as follows:- "Thirteenth Count

Abuse of Public Office. (Common Law and Section 251 of the Criminal Law Consolidation Act, 1935.)

Wayne Douglas Gardiner between the 22nd November, 1988 and the 21st August, 1992 at Adelaide or another place, being a public officer, namely a police officer, improperly used information that he had gained by virtue of his public office with the intention of securing a benefit for himself or another.

It is further alleged that between the same dates Francesco Bagyio Carbone aided, abetted, counselled or procured the said Wayne Douglas Gardiner to commit the said crime."

It will be observed that the general expression of the offence alleged is similar to that in the first grouping. The critical difference is that the offence is said to be both an offence at common law and an offence by virtue of s251 of the CLCA. In each instance the time period pleaded spans a timeframe commencing prior to 6 July 1992 and concluding subsequently to that date.

The remaining counts all simply plead alleged breaches of s251 of the CLCA. Typical of those is count 62 which alleges:- "Sixty Second Count

Abuse of Public Office. (Section 251 of the Criminal Law Consolidated Act, 1935.)

George John Twohill between the 31st July, 1992 and the 26th October, 1992 at Adelaide or another place, being a public officer, namely a police officer, improperly used

information that he had gained by virtue of his public office with the intention of securing a benefit for himself or another.

It is further alleged that between the same dates Francesco Bagyio Carbone aided, abetted, counselled or procured the

said George John Twohill to commit the said crime."

For the sake of completeness it should be recorded that s251 of the CLCA stipulates:- "(6246) Abuse of public office

251 A public officer who improperly - (a) exercises power or influence that the public officer has by virtue of his or her public office; (b) refuses or fails to discharge or perform an official

duty or function; or (c) uses information that the public officer has gained by virtue of his or her public office, with the intention of - (d) securing a benefit for himself or herself or for another person; or (e) causing injury or detriment to another person, is guilty of an offence. Penalty: Imprisonment for 7 years."

It is at once seen that the particulars of all 64 counts adopt the phraseology of paragraphs (c) and (d) of that section.

The issues 84. Against the foregoing background the case stated poses the following questions, namely:- (i) (a) Was there a common law misdemeanour known as abuse of public office, misconduct in public office or misbehaviour in public office prior to 6 July 1992? (b) Is the statement of offence, abuse of public office with the particulars as set out in count 1 a sufficient statement of the offence?

(ii) If the answer to question (i)(a) is "Yes" :- Does the Statutes Amendment and Repeal (Public Offences) Act 1992 prohibit the Director of Public Prosecutions from now commencing a prosecution for that common law offence where the behaviour giving rise to the charge occurred prior to 6 July 1992?

(iii) Can the accused Carbone be indicted as a principal for the commission of the common law misdemeanour where his participation is that he is alleged to have aided, abetted, counselled or procured the commission of the offence.

(iv) Can the accused Carbone be indicted as a principal for the commission of an offence against Section 251 of the Criminal Law Consolidation Act where his participation is that he is alleged to have aided, abetted, counselled or procured the commission of that offence.

It is convenient to address those questions seriatim.

Discussion of Question 1 86. Prior to 6 July 1992 the common law offences which existed with regard to public officers derived from very ancient origins. With some exceptions, such as situations amounting to what was termed bribery and extortion, offences of this type did not appear to have had any particular, generic title.

In the 1822 edition of "Archbold's Criminal Cases" the learned author simply makes the statement that every malfeasance or culpable non-feasance of an officer of justice, with relation to his office, is a misdemeanour, and punishable with fine or imprisonment, or both. He cites, as authority for that proposition Reg v Wyat 1 Salk 380, in which the point was made that a constable is, in the relevant sense, a subordinate public officer and, as such, indictable for neglect of a duty incumbent on him, whether by common law or statute.

In the 1865 edition of "Russell on Crimes and Misdemeanours", the learned author deals with this topic in a little more detail. He advances these propositions -
- where an officer neglects a duty incumbent on him, either by common law or by statute, he is indictable for his offence.

any public officer is indictable for misbehaviour in office (Anon. 6 Mod 96)

this situation embraces a person who is either an officer of the common law or appointed by statute.

Russell deals separately with the offences of buying and selling offices and bribery. He deals, somewhat globally, with situations characterised as oppression, negligence, fraud, extortion and refusal of persons to execute the duties of their office.

In general, this text broadly categorises offences into those of misfeasance (or positive misconduct) in the execution of office on the one hand, and neglect of duty or negligent performance of duty, on the other - although the author appears to treat all as amounting to forms of culpable misconduct in office.

In his 1877 work "Principles of the Criminal Law" Harris adopted a somewhat similar approach, inter alia, he had this to say:- "Every malfeasance, or culpable non-feasance of an officer of justice, with relation to his office, is a misdemeanor punishable by fine or imprisonment, or both. Forfeiture of his office, if a profitable one, will also generally ensue. Under the term 'officers of justice' are included not only the higher officers, as judges, sheriffs, but also those of a lower rank, as constables, overseers, etc.

As to malfeasance - In cases of oppression and partiality the officers are clearly punishable: and not only when they act from corrupt motives, but even when this element is wanting, if the act is clearly illegal.

As to non-feasance. - An officer is equally liable for neglect of his duty as for active misconduct. Thus an overseer is indictable for not providing for the poor. A refusal by any person to serve an office to which he has been duly appointed, and from which he has no ground of exemption, is an indictable offence."

It will, however, be seen that he adopts the two broad categories of "malfeasance" and "non-feasance".

The 1898 edition of "Roscoe's Digest of the Law of Evidence in Criminal Cases" adopts a categorisation similar to that in Russell.

All of these authors take, as baseline authorities, the two cases above cited, and also R v Bainbridge (1783) 3 ER 679 and R v Sainsbury [1791] EngR 1486; 4 TR 451. Unfortunately the reports of them do not deal with the precise forms of the indictments which were prosecuted. The early editions of Archbold suggest that a detailed particularisation of the conduct complained of was more important than any specific "Label" for an offence. The only generic words which are to be found in reported cases are misfeasance" (or "malfeasance"), "misbehaviour" or "misconduct" and "non-feasance" or "neglect" in office.

Bearing in mind that situation, it seems questionable as to whether Schedule 11 of the CLCA has ever operated so as to abolish ALL pre-existing common law offences related to public officers; although, particularly given the very wide ambit attributed by the old authorities and text writers to the word "oppression", it was, no doubt, effective to abolish many of them.

My researches suggest that the common law did not ever contemplate closed, specifically titled, categories of offences in relation to public officers.

Quite apart from specific offences termed bribery, extortion, buying and selling public offices and the like, a public officer could, it appears, have been indicted for ANY conduct which amounted to misconduct or misbehaviour and which could fairly be categorised as misfeasance, malfeasance or non- feasance in office of a criminally culpable nature. (To employ the language of Lord Widgery CJ in Reg v Dytham (1979) 1 QB 722 at 727, there must be an element of culpability which is not restricted to corruption or dishonesty, but which is of such degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment.) The emphasis was not on any generic description, by way of nomenclature, but, rather, the inherent nature of the detailed conduct. So much appears from Reg v Llewellyn-Jones (1968) 1 QB 429 at 437, in which the Court of Appeal eschewed any attempt at precise definition of what constituted the common law offence, which was then charged as "Misbehaviour in Public Office". (See also R v Dytham (supra) at 726, where the offence was charged as "Misconduct of an Officer of Justice" and was an example of alleged neglect of duty (on the part of a police officer).

It seems to me that, if it was the intention of the draftsman, by Schedule 11, to abolish ALL common law offences and replace them by a new, all embracing statutory code on the subject, then that attempt has signally failed. It has not been successful because of the width of the old common law, open category, offence and the strategy, in Schedule 11 of seeking to identify each specific discrete class of case said to arise in the common law offence context, which is to be abolished. Nowhere is there to be found any general statement to the effect that ALL common law offences related to persons holding public offices are abolished. The abolition, in terms, focuses only on the classes of situation definitively stated. To the extent that the whole potential field has not been covered, then the common law offence still exists.

In my opinion, given that the language employed in the particulars of each count in this case appears to have been culled from the present s251 of the CLCA, it is none-the-less apt to describe a situation which would have constituted a common law offence falling within the rubric of what is collectively described by the old text writers "Offences against Public Justice".

I do not consider that a statement of offence "Abuse of Public Office" is entirely apposite to that type of offence, because such language was not generally employed by the common law in this area. The word "abuse" is of more recent colloquial usage in this type of context. That word is normally taken to mean "improper use; misuse; or corrupt practice". A happier and more appropriate phraseology in the instant case would, in traditional common law terminology, be either "Misconduct in Public Office" or "Misfeasance in Public Office".

On the other hand there is, in my mind, no doubt that, read as a whole, as it must be (R v Johnson (1979) 22 SASR 161 at 171), each relevant count in the instant information, patently identifies a situation known to the common law (at least prior to 6 July 1992) as constituting an indictable offence. I consider, however, that the statement of offence should be amended to what is a more appropriate title, as indicated above. This is, in my opinion, a matter of form rather than of substance.

On the reasoning set out above I would answer questions 1(a) and (b), collectively, in this manner:- "Prior to 6 July 1992 conduct which amounted to misfeasance or non-feasance in relation to a public officer of a criminally culpable nature constituted an indictable offence at common law. Whilst some examples of such conduct were categorised by means of specific titles others were not. The conduct alleged in the particulars in the several counts of alleged common law offences in the instant case, if proved, would have constituted indictable offences. However, the statement of offence, in each such instance, might, more appropriately read either "Misfeasance in Public Office" or "Misconduct in Public Office"."

Before departing from Question 1 it should be recognised that there is an important issue which arises in relation to those counts which assert the commission of offences both at common law and under s251 of the CLCA; although it is not expressly raised by any question in the case stated.

Quite apart from the impact of any potential answer to Question 2, the practical effect of the counts in question is that they either seek to aver a hybrid type of offence which simply does not exist or, alternatively, in each instance, they allege in a single count what are, in reality, two separate offences.

Such an attempted form of pleading is plainly void for duplicity, because each count can only attract a single verdict and it would not be possible to determine, in relation to a count of this type, to which type of offence a verdict attached. In any event such a formulation is not authorised by and is contrary to the rules set out in Schedule 3 to the CLCA.

It is further objectionable because the relevant common law offence is said only to have existed up to 6 July 1992, whilst the relevant statutory offence only existed thereafter. It is simply not permissible to allege in a single count, two separate offences alleged to have been committed over a period of time spanning either side of that date, there not even being a specification of what type of offence was said to have been committed at what period of time.

In my opinion the counts of this type are patently bad and must be struck out as incompetent.

Discussion of Question 2 108. In practical terms this court is asked to declare whether or not the introduction of Schedule 11 operated, as from 6 July 1992, to abolish the existing common law offences of misfeasance or non-feasance in public office in a manner which operated retrospectively.

In addressing that topic the first point to be made is that, to the extent that the Schedule does not specify situations which constitute such offences, it plainly did not do so. Indeed, it did not, in terms, set out to abolish criminal conduct other than that discretely identified by detailed description. To the extent that it purported to abolish so-called "common law offences" of the types recited above, it was somewhat ineptly expressed. As I have already sought to demonstrate, the "offences" stipulated in the Schedule are, in reality, no more than practical examples of conduct constituting the broader generic offences of misfeasance or non-feasance in public office. To the extent that Mr Abbott QC, of senior counsel for Carbone, submitted that the only common law offences known to the law were those relevantly set out in Schedule 11 then, for reasons already indicated by me, I am unable to accept that contention. It follows that his ancillary submission, to the effect that the asserted "offences" particularised in the information in this case were never known to the common law, must, similarly, be rejected.

One practical question which immediately arises in the case at bar, given my lastmentioned conclusion, is as to whether the relevant conduct averred against the accused Gehling, Gardiner and Twohill falls within the description of any of the common law "offences" described in Schedule 11.

I took counsel for those accused, collectively, to contend, at least as a secondary argument, by implication, that the conduct in question was encompassed in the detail set out in Schedule 11. However, I pose the rhetorical question "Within which stated 'offence' listed in the Schedule does the conduct complained of fall?" The obvious response is that it does not appear to be readily comprehended by most of them. It is not "bribery" in the long accepted sense of that word (because it does not, in terms, assert relevant corrupt use of power for reward or promises); it does not constitute breach of trust in the well understood legal connotation of that phrase; and it does not amount to neglect of duty in a phrase which is taken to describe situations in which a public officer has failed or refused to do some positive act which, by virtue of his public office, he was bound to carry out.

It is, I suppose, possible to come to the view that the conduct averred may well fall within the description of "corruption in relation to public officers" (adverted to in paragraph (9) of Schedule 11). The notion of corruption is traditionally linked with bribery (as, indeed, it is in Schedule 11) and necessarily imparts the concept of dishonesty. It seems to me that the particulars relied on do not clearly and specifically establish such a situation; and I consider that such an issue ought to be left open in the instant case. This is particularly so as the old common law offences were not, as I have already pointed out, limited to situations in which corruption, in the technical sense of that expression, was proved.

As the parties clearly desire a ruling on the law, on the assumption that the Crown allegations are capable of bringing the circumstances within Schedule 11 I am content to respond to the question posed on the assumption that they can, without purporting, finally, to decide such a question.

Strangely enough neither the researches of myself or those of counsel have elicited any published authority which appears to be of direct assistance.

One commences with the basic legal proposition that, prior to the enactment of legislation akin to s16 of the Acts Interpretation Act, 1915 ("the AIA") the law was, quite clearly, that, when a statutory provision was repealed, the effect of the repeal was "to obliterate the ...(provision)... repealed as completely from the records of Parliament as if it had never passed; and that it must be considered as a law that never existed, except for the purpose of those actions or suits which were commenced, prosecuted, and concluded while it was an existing law". So said Tindal CJ in Key v Goodwin 4 Moore and Payne 341, (followed in Surtees and Anor v Ellison (1829) 9 B and C 750; [1829] EngR 594; 109 ER 278, Maggs v Hunt [1827] EngR 479; 4 Bing 212 and Kay v Goodwin [1830] EngR 605; 6 Bing 576). A similar statement is to be found in Hale's "Pleas of the Crown" Volume 1, 291; and the concept was reiterated by Lord Evershed MR in Boddington v Wisson (1951) 1 KB 606 at 610-612.

Thus it was held that, upon the unqualified repeal of a statutory provision constituting a criminal offence, the repeal not only put an end to any potential prosecutions in respect of prior conduct constituting the repealed offence, but it also did away with the basis for any incomplete, pending prosecution proceedings actually in train at time of repeal. (R v McKenzie and Anor (1820) Russ and Ry 430; [1821] EngR 42; 168 ER 881).

The authorities also establish that the same principle is applicable where a statute contains a "sunset" clause, by reason of which it ceases to have effect as at a specified date. (R v Ellis; ex parte Amalgamated Engineering Union (1921) 125 L.T. 397 at 401).

It was this rule of law (also applicable in the United States of America) which, in time, prompted the enactment of various legislative saving provisions akin to those currently found in s11 of the AIA, although these were not always expressed in identical terms.

One of the problems associated with the early authorities on this topic is that they did little more than state the rule, without really dilating on the underlying rationale for it. At best there are statements such as that to be found in Anon 1 Wash, C.C.R. 84, (referred to in the 1857 edition of Sedgwick "Statutory and Constitutional Law") in which Washington J is reported as saying "Every offense for which a man is indicted must be laid against some law, and it must be shown to come within it, and the law must be subsisting. If the legislature has ceased to consider the act in the light of an offense, the purposes of punishment are no longer to be answered". On the old authorities it mattered not that proceedings were actually pending in the court at the time of repeal (Stoever v Immell 1 Watts, 258, Butler v Palmer 1 Hill, 324).

I consider that, logically, the same rule and reasoning must equally be applicable in relation to the enactment of a statute which abolishes a prior common law offence or rule, to which s16 of the AIA, does not, in terms, have any application.

That action adverts only to the effect of repeals of or amendments to previous statutory provisions. By a parity of reasoning, the effect of the abolition must clearly be that, in absence of clear statutory stipulation to the contrary, the abolished offence is, to employ the description used by Tindal CJ, to expunge the common law offence as if it never existed.

There can, in absence of saving legislative provisions, be no conviction recorded of an offence which is no longer known to the law, despite the fact that, at the time of the conduct sought to be impugned, a relevant offence was known to the law. The word "abolish", in its normal connotation, means to do away with wholly, or to destroy utterly. Had the legislature intended a contrary situation it could readily have said so. It did not.

As to this the words of Patteson J in Reg v Mawgan (1838) 8 Ad and E 497; [1838] EngR 700; 112 ER 927 at 928 seem entirely apposite. There are simply no appropriate transitional provisions to be found in the amending enactment.

That being so I would respond to the second question to the effect that, if it be accepted that Schedule 11 to the CLCA abolished common law offences of the nature of those particularised in the information (an issue which is not specifically raised by the questions contained in the case stated), then the Director of Public Prosecutions may not now initiate or continue any prosecution for such common law offence, regardless of the fact that the conduct sought to be relied on occurred prior to 6 July 1992.

Discussion of Question 3 125. This question raises for consideration the issue of whether it is legally possible for the accused Carbone to be indicted, as a principal, in relation to a relevant common law offence, where his participation is said to be accessorial.

As I understand the argument of Mr Abbott QC in this regard it is to the effect that it is not possible for a person who is not a holder of a public office to be criminally responsible, as an accessory, to a misdemeanour of the nature of misfeasance or non-feasance, in public office. He contended that, at common law a person was charged as a principal offender even where participation was only secondary (Lee v Mallan [1948] SAStRp 41; (1949) SASR 17 at 32) and that, because the accused Carbone was not a public officer, he could not be so charged.

He went on to contend that s5D of CLCA (which abolished the distinction between felonies and misdemeanours) did not alter that situation; and that section 267 of the CLCA (operative from 1 January 1995) did no more than state the old common law rule, albeit that it made it applicable to old offences. That section enacts that:- "A person who aids and abets, counsels or procures the commission of an offence is liable to be prosecuted and punished as a principal offender."

The short answer to the submission of Mr Abbott QC is that which was advanced by Ms Abraham, Acting Director of Public Prosecutions. In Georgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473 the High Court reiterated the propositions that:- - Provisions such as s267 of the CLCA do not, themselves, create substantive offences. In essence they are declaratory of the common law and procedural in nature

at common law no distinction is drawn between the principal offender and a secondary participant in relation to misdemeanours. The latter are to be charged with having committed the relevant offence as a principal.

however, notwithstanding that procedural situation, a secondary participant, as charged, cannot be convicted unless the prosecution proves:- (1) that the person charged has in fact aided, abetted, counselled or procured the commission of the offence, and (2) that the alleged offence was actually committed by the primary offender.

the above situation remains unless it can be demonstrated that the nature of the substantive offence is such that secondary criminal responsibility is impliedly excluded, or the statute indicates a legislative intent to exclude that type of responsibility.

There is nothing, in my opinion, in the inherent nature of a common law offence of misfeasance or non-feasance in public office which operates to exclude accessorial liability. Nor is there any indication in the authorities of a legislative intent to exclude that type of responsibility unless the secondary participant is, himself, a holder of public office.

In R v Goldie; ex parte Picklum [1937] HCA 65; (1937) 59 CLR 254 at 271-2 Evatt J made the points:- "Nothing is better recognized in criminal jurisprudence than the principle that, although a person may even be incapable of being convicted of a principal offence, he may yet be convicted as a principal in the second degree. This is illustrated by the case of R. v. Ram (1893) 17 Cox's CC 609 where, before Bowen L.J., two prisoners, husband and wife, were indicted jointly for rape, the wife having aided and abetted the husband in the perpetration of the offence.

Therefore, the fact that an offence under sec. 7 of the Immigration Act can be committed only by a prohibited immigrant does not convert into a prohibited immigrant the person who aids in the commission of such offence. The aider is made liable to the same punishment as that to which a prohibited immigrant is made liable. It follows that, if the conviction of the appellant is confirmed, he is not exposed to the liability of being deported."

An argument somewhat similar to that advanced by Mr Abbott QC was advanced in Georgianni v The Queen (supra). That was a case of an employer aiding and abetting an employee driver to embark upon a course of culpable driving causing death. In response to a line of argument parallel to that of Mr Abbott QC, Mason J (as he then was) commented at 492:- "Contrary to the argument of counsel for the appellant, the mere description of the offender under s.52A as the driver of the motor vehicle cannot, therefore, be seen as evidencing a legislative intention to exclude the operation of the common law with respect to secondary participation. Nor, in my opinion, can any such intention be otherwise extracted from the nature of the offence or the terms of the section by which it is created. It follows that the applicant, although charged as a matter of procedure with the substantive offence, was liable to conviction on the

basis of having aided, abetted, counselled or procured the commission of the misdemeanour of culpable driving by Renshaw."

This reasoning is, with respect, entirely relevant to the instant case, notwithstanding that Mason J was there adverting to a statutory offence.

I would, unhesitatingly, respond to question 3 in the affirmative, save for a caveat. It is clear that, if any relevant common law offence has been abolished, then no accessorial liability can remain. This follows from the logic adverted to in relation to Question 3 and the fact that accessorial liability is dependent upon proof of commission of the primary offence.

Discussion of Question 4 134. This poses a question, similar to question 3, in relation to the new s251 offences. That section reads as under:- "Abuse of public office 251. A public officer who improperly - (a) exercises power or influence that the public officer has by virtue of his or her public office; or (b) refuses or fails to discharge or perform an official duty or function; or (c) uses information that the public officer has gained by virtue of his or her public office, with the intention of - (d) securing a benefit for himself or herself or for another person; or (e) causing injury or detriment to another person, is guilty of an offence. Penalty: Imprisonment for 7 years."

True it is that, in terms, the section deals only with the liability of the principal offender and makes no reference to accessorial liability. However, that is the situation with many, if not most, statutory offences. Section 267 of the CLCA is plainly intended to operate generally in respect of ALL offences, except where a statute expressly or impliedly excludes that operation.

The mere fact that the primary offence is committed only by a person who is a public officer, of itself, is not evidence of any such intent, as is seen from the authorities to which reference has already been made. As Ms Abraham stressed, there is nothing in s251 which even hints at a possible intent to exclude the operation of s267.

Section 251 is a far cry from the "purchaser" type cases such as Ellis v Guerin [1925] SAStRp 36; (1925) SASR 282, in which the obvious sole target of the legislation is the unlawful vendor and not a purchaser, who may not even appreciate relevant illegality. By way of contrast, it is actually inherent in many of the potential s251 scenarios that one or more persons other than the public officer, are likely to be involved in the perpetration of culpable conduct as instigators or initiators of it. Contrary to Mr Abbott's submissions, it seems highly likely that the legislature had it well in mind that, in such situations, those other persons involved would attract accessorial responsibility. The fact that the section does not specifically set out to punish the recipient of an improper benefit does not, in my opinion, detract from such a conclusion.

Inevitably, the response to question 4 must also be in the affirmative.

I would return the case stated to the learned trial judge with answers in conformity with these reasons.

JUDGE3 DUGGAN J 140. The background of the case stated by Nyland J is set out in the judgment of Olsson J.

I have no doubt that at common law there was an offence which can be described as "misconduct in public office". As is the case with a number of common law misdemeanours there is some uncertainty as to the precise content of the offence and even its correct title. The American system of common law, inherited as it was from England, has experienced the same confusion. In Perkins and Boyce, Criminal Law (3rd ed) p543 the following passage appears: "MISCONDUCT IN OFFICE

Confusion has been injected into this area of the law by resort to a multiplicity of names or terms with varying degrees of generality or specifity. 'Misconduct in office,' for example, is used at times merely as a literal statement. In this sense it does not indicate a

crime but merely one of the ingredients of a crime. And the phrase may have either one of two different meanings when employed to indicate a crime. This is because of the fact that some of the offenses of this nature have special names of their own, such as 'extortion' or 'oppression', whereas others do not. Thus the phrase may be used in a generic sense as in the statement: 'Oppression is one type of misconduct in office.' Or it may be used as the specific name of a crime in referring to an offense of this nature which has no name of its own, such as the case in which a prosecuting attorney corruptly procured the release of a prisoner by the improper approval of a bond. State v. Wedge 24 Minn. 150 (1877). The phrase actually used in this case was one of the synonyms mentioned infra, 'misbehaviour in office.' Id. at 151. When used to indicate a crime in either of the two senses mentioned - MISCONDUCT IN OFFICE IS CORRUPT BEHAVIOUR BY AN OFFICER IN THE EXERCISE OF THE DUTIES OF HIS OFFICE OR WHILE ACTING UNDER COLOR OF HIS OFFICE.

While misconduct in office Coffey v. Superior Court, 147 Cal. 525, 529, 82 P. 75, 76 (1905); People v. Ward, 85 Cal. 585, 24 P. 785 (1890); State v. Leach, 60 Me. 58, 67 (1872); Duncan v. State, 282 Md. 385, 384 A.2d 456 (1978) is the term frequently employed many substitutes have been used for this phrase in all of the meanings suggested, and the definition could be re-worded by the substitution of any of the following: official misconduct, State v. Winne, 12 N.J. 152, 175, 96 A.2d 63, 75 (1953); State v. Bolitho, 103 N.J.L. 246, 261, 136 A. 164, 172 (1926); Craig v. State, 31 Tex.Cr.R. 29, 30, 19 S.W. 504 (1892), misbehaviour in office, State v. Wedge, 24 Minn. 150, 151 (1877); Jacobs v Commonwealth, 29 Va. 709 (1830), and corruption in office Ex parte Amos, 93 Fla. 5, 17, 112 So. 289, 294 (1927). No doubt others have found their way into the cases.

In addition to the terms used to represent the entire area will be found others intended to indicate certain parts thereof, and these partitioning phrases may be based either upon the nature of the misbehaviour or upon the mode of misbehaviour."

Most of the early English commentators speak of an offence or offences of this nature. In Blackstone's Commentaries (3rd ed) Vol IV c10 there is reference to the offence of "negligence of public officers" and further offences of "oppression" and "extortion" by such officers. In Hawkin's Pleas of the Crown Vol I (8th ed) p412 it is stated: "OFFENCES BY OFFICERS seem reducible to the following heads:

The discussion of the first category includes the following observations: "I take it to be agreed, that in the grant of every office whatsoever, there is this condition implied by common reason, that the grantee ought to execute it diligently and faithfully; for since every office is instituted, not for the sake of the officer, but for the good of some other, nothing can be more just than that he who either neglects or refuses to answer the end for which his office was ordained, should give way to others, who are both able and willing to take care of it. And therefore it is certain, that an officer is liable to a forfeiture of his office, not only for doing a thing directly contrary to the design of it, but also for neglecting to attend his duty at all usual, proper, and convenient times and places, whereby any damage shall accrue to those by, or for, whom he was made an officer."

There is a more extensive categorisation of offences of this nature in Stephen, Digest of the Criminal Law. The third edition (1883) contains a discussion under the heading "Abuses and Obstructions of Public Authority". "Public Officer" is defined as "a person invested with authority to execute any public duty, and legally bound to do so." There follows a discussion of the misdemeanours of "extortion and oppression by public officers" (Art 119), "frauds and breaches of trust by officers" (Art 121), "neglect of official duty" (Art 122) and "refusal to serve an office" (Art 123). In the course of the discussion under Art 119 the learned author states: "Every public officer commits a misdemeanour who, in the exercise, or under colour of exercising the duties of his office, does any illegal act, or abuses any discretionary power with which he is invested by law from an improper motive, the existence of which motive may be inferred either from the nature of the act, or from the circumstances of the case. But an illegal exercise of authority caused by a mistake as to the law, made in good faith, is not a misdemeanour within this Article.

If the illegal act consists in taking under colour of office from any person any money or valuable thing which is not due from him at the time when it is taken, the offence is called 'extortion'.

If it consists in inflicting upon any person any bodily harm, imprisonment, or other injury, not being extortion, the offence is called 'oppression'."

R v Bembridge (1783) 3 Doug 327; 99 ER 679 is frequently cited as the leading authority in discussions on the topic. The facts disclose that the conduct in that case was of a fraudulent nature, but Lord Mansfield stated a principle of wide application when he said: "... if a man accepts an office of trust and confidence, concerning the public, especially when it is attended with profit, he is answerable to the king for his execution of that office; and he can only answer to the king in a criminal prosecution, for the king cannot otherwise punish his misbehaviour, in acting contrary to the duty of his office ..."

More recent English cases are referred to in R v Bowden (1995) 4 All ER 505. The appellant in that case was employed by a local authority as a maintenance manager. It was alleged that he caused maintenance works to be carried out by employees of the local authority on premises occupied by a friend when such works were not required under the authority's repair policy. It was not suggested that the offence of misconduct in the public office with which the appellant was charged was an offence unknown to the common law. However it was argued that the offence did not extend to local authority officers.The Court of Appeal referred to Henly v Lynne Corp [1828] EngR 701; (1828) 5 Bing 91 at 107; [1828] EngR 701; 130 ER 995 at 1001 where Best CJ said: "Now I take it to be perfectly clear, that if a public officer abuses his office, either by an act of omission, and the consequence of that, is an injury to an individual, an action may be maintained against such public officer. The instances of this are so numerous, that it would be a waste of time to refer to them."

Reference was also made to R v Llewellyn-Jones (1968) 1 QB 429 at 435 where Lord Parker CJ referred to the offence which "can in general terms be described as misbehaviour in a public office" and to R v Dytham (1979) QB 722 where a police officer had failed to intervene when he witnessed a serious assault. In the latter case Lord Widgery CJ said (p727): "The neglect must be wilful and not merely inadvertent; and it must be culpable in the sense that it is without reasonable excuse or justification. In the present case ... (t)he allegation made was not of mere non-feasance but of deliberate failure and wilful neglect. This involves an element of culpability which is not restricted to corruption or dishonesty but which must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment."

See also R v Arnoldi (1892) 23 O.R. 201 where the early English authorities were reviewed by a Canadian appellate court. The offence charged was misbehaviour in office and Chancellor Boyd concluded (p212): "The gravity of the matter is not so much in its merely profitable aspect as in the misuse of power entrusted to the defendant for the public benefit, for the furtherance of personal ends. Public example requires the infliction of punishment when public confidence has thus been abused, and my judgment is, that the conviction should be

In view of the allegations in the present case it is a matter of some interest that in another Canadian case, Wright, McDermott and Feeley v The Queen (1964) 43 DLR (2d) 597, the accused were charged with conspiring to obtain from a police constable information which it was his duty not to divulge. The Supreme Court of Canada relied upon Bembridge's case in holding that the object of the conspiracy was an unlawful act.

Despite some inconsistency in nomenclature I am of the view that prior to the enactment of the Statutes Repeal (Public Offences) Act 1992 ("The Public Offences Act") there was an offence known to the common law capable of answering the descriptions referred to in Question (i)(a) of the case stated. Accordingly the question should be answered "Yes".

Question (i)(b) asks whether the particulars as set out in count 1 of the information contain a sufficient statement of the offence. Count 1 is in the following terms: "Statement of Offence

It is further alleged that between the same dates Francesco Bagyio Carbone aided, abetted, counselled or procured the said Bruce Douglas Gehling to commit the said crime."

both at common law and contrary to statutory regime. R v Bembridge

At a glance

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Judgment (207 paragraphs)

QUESTION OF LAW RESERVED (NO.2 OF 1996) No. SCCRM 96/131 Judgment No. 5674 Number of pages - 30 Criminal law - statutes - Acts of Parliament (1996) 67 SASR 63 [1996] SASC 5674 (19 July 1996)

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Legislation Cited (3)

Cases Cited (12)