Supreme Court of WA|2010-05-25|Before: Ms P, Murray J

THE STATE OF WESTERN AUSTRALIA -v- BURKE [No 3] [2010] WASC 110 (25 May 2010)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE STATE OF WESTERN AUSTRALIA -v- BURKE [No 3] [2010] WASC 110

HEARD : 20-23 APRIL, 27-30 APRIL, 3-7 MAY, 10 MAY 2010

Criminal law and procedure - Trial by judge alone - Charges of disclosing official secrets and official corruption - Charges of counselling or procuring those offences - Use of particulars - Elements of offences - Duty not to disclose information - The concept of corruption - 'Without lawful authority' - Meaning of counselling or procuring - Submission that accused have no case to answer - The test where the primary facts are established beyond reasonable doubt

Accused Burke : Mr G R Donaldson SC & Ms P M Tantiprasut

Cortis v The Queen [1979] WAR 30

Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373

Director of Public Prosecutions (Vic) v Zierk [2008] VSC 184; (2008) 184 A Crim R 582

Environmental Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481

Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473

Morrison v Kiwi Electrix Pty Ltd [1998] WASCA 203; (1998) 19 WAR 482

R v Oberbillig [1989] 1 Qd R 342

Rompotis v The Queen (1996) 18 WAR 54

Rook v Maynard (No 2) [1994] TASSC 104; (1994) 123 ALR 677

State of Western Australia v Burke [No 1] [2010] WASC 73

State of Western Australia v Burke [No 2] [2010] WASC 74

Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426

Tasmania v Johnston [2009] TASSC 60

Ward v The Queen (1997) 19 WAR 68

Western Australia v Montani [2007] WASCA 259; (2007) 182 A Crim R 155

Willers v The Queen (1995) 81 A Crim R 219

Williams v The Queen (1979) 23 ALR 369

1 At the end of the prosecution case, each of the three accused persons submitted that he had no case to answer upon the whole of the indictment as it affected him. Under the Criminal Procedure Act 2004 (WA) (CPA) s 108, if I upheld those submissions or any of them in relation to any accused person and in respect of any count in the indictment which charges that person with an offence, I was to acquit the accused of that offence and discharge him. I did arrive at that conclusion and made those orders. These are my reasons.

2 In considering such a submission, the test to be applied is authoritatively laid down by the decision of the Full Court in Morrison v Kiwi Electrix Pty Ltd [1998] WASCA 203; (1998) 19 WAR 482 per Malcolm CJ, Kennedy and Ipp JJ agreeing. The court is required to decide whether the evidence for the prosecution, taken at its highest, is capable of establishing the guilt of the accused beyond reasonable doubt. It will be significant to have regard to the burden of proof stated in that way in a case where the finding of the primary facts upon which a conclusion about the proof of the elements of an offence charged will depend, relies upon evidence which may be subject to a decision about its weight and its acceptance by the tribunal of fact.

3 There are some aspects of the evidence in this case to which that consideration may apply. But, as I think will be seen, in truth there is very little material dispute about the primary facts and the question really does resolve itself into the need to ask whether there is evidence which, when it is accepted, is capable as a matter of law of sustaining the relevant conclusion that the elements of the offence charged are established beyond reasonable doubt.

4 In other words, this is not a case, I think, where any of the evidence upon which the prosecution relies would be described as 'tenuous or inherently weak or vague': Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, 214 - 215, but it is a case in my view where some of the evidence has little or no capacity to establish the element of an offence to which it relates. Generally, see also Western Australia v Montani [2007] WASCA 259; (2007) 182 A Crim R 155.

5 There are five counts in the indictment. Count 1 charges the accused Hondros with an offence given the shorthand title in the Criminal Code (WA) of disclosing official secrets. The offence is alleged to have been committed on 25 September 2006. It is factually related to the other counts in the indictment, but is, in truth, quite separate. The offence is defined in s 81(2) of the Criminal Code. There is no alternative conviction open on such a charge.

6 Mr Hondros is also charged, by counts 2 and 3, with offences which are charged in the alternative. Count 2 charges an offence of official corruption allegedly committed between 8 - 12 October 2006. That is an offence defined in s 83 of the Code. Again, no alternative conviction is available in relation to such a charge. However, in the alternative to count 2, count 3 charges that on 11 October 2006, Hondros committed a further offence of disclosing official secrets. They are all charges against Mr Hondros alone.

7 Counts 4 and 5 are, however, charges brought jointly against the accused persons Burke and Grill, charges that they counselled or procured Hondros to commit the offences charged by counts 2 and 3. Count 4 relates to count 2, and count 5 relates to count 3.

8 The charges against Messrs Burke and Grill rely on the Code, s 7(d). There is no need, in the circumstances of this case, for the prosecutor to rely upon s 9 of the Code. But under s 7(d), when an offence is committed, among those who are guilty of the offence will be those who counsel or procure any other person to commit the offence. In this case, it is said that Messrs Burke and Grill in fact counselled Mr Hondros to commit the offences in question.

9 There are a number of matters of law which, in this case, it is important to bear in mind in relation to the charges of counselling or procuring brought against Messrs Burke and Grill as alternatives, in just the same way that counts 2 and 3 charge Mr Hondros alternatively with the commission of offences against ss 81 and 83 of the Code.

10 In the first place, it is obvious, of course, that unless the accused Hondros is convicted of one or other of counts 2 and 3, Messrs Burke and Grill cannot be convicted, as it is only in relation to an offence committed by Mr Hondros that their accessorial liability as persons who counselled or procured the commission of that offence, needs to be considered and found to be proved beyond reasonable doubt, if either is to be convicted.

11 They are charged jointly, but in truth, as will be seen, having regard to the particulars of the charges which have been provided, their liability is alleged to be, in effect, joint and several. It is alleged that they were acting in concert, and so their liability is said to be derived from their complicity in statements made by each of them. In addition, as the charges are particularised, each of them is said to be guilty as a principal who made statements counselling the commission of an offence by Hondros, or procuring its commission.

12 Provided the twofold nature of the alleged criminal complicity of Burke and/or Grill in an offence committed by Hondros is understood (and the particulars make it clear), the form of pleading of counts 4 and 5 in the indictment which simply allege, respectively, that Burke and Grill counselled or procured Hondros to commit an offence of official corruption or disclosing an official secret, is a legitimate mode of criminal pleading.

13 I say that although one would ordinarily indict A and B jointly with the commission of a crime if it was alleged that one was a principal offender and the other an accessory, or if it was alleged that they were acting in concert and, for example, it was not possible to say which of A and B was the principal offender who did the acts constituting the commission of the offence, and which of them was the accessory.

14 If the allegation is that each of them separately committed the offence charged, then one would ordinarily charge them separately, in separate counts in the indictment. The same would hold good in relation to alleged offending by counselling or procuring the commission of an offence by another.

15 These are, it must be said, technical matters, probably of interest only to practitioners of the criminal law. But I feel it is necessary to mention them because of the way in which the indictment is formulated in conjunction with the particulars which have been provided at length in relation to each offence charged.

16 Against that background, I turn to instruct myself about the concepts involved in the charges that the accused persons Burke and Grill counselled or procured Hondros to commit, in the alternative, either of the offences charged against him in counts 2 and 3 of the indictment.

17 There is no magic about the terms 'counsels' and 'procures' as used in s 7(d) of the Code. They are words of ordinary meaning, although there are different nuances in their meaning. They are often used, as s 7 uses them, together, and s 7 makes it clear that the conviction will be for the offence of counselling or procuring the commission of an offence. Section 7 provides that where a person is alleged to have counselled or procured another to commit an offence, 'he may be charged either with himself committing the offence or with counselling or procuring its commission'. The section continues:

A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

18 A person counsels the commission of an offence by another if he urges its commission, advises its commission or asks that it be committed: Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426; R v Oberbillig [1989] 1 Qd R 342, 344.

19 A person procures the commission of an offence if he causes it to be committed, he persuades the principal offender to commit it, or brings about its commission. This requires a causal relationship between the commission of the offence and the conduct of the procurer to be established. That will not necessarily be the case in relation to counselling the commission of an offence. This case, as will appear, is actually concerned with counselling the commission of either offence with which Hondros is charged in counts 2 and 3 of the indictment.

20 In relation to counselling the commission of an offence, s 9 of the Code provides that:

When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counselled or a different one, or whether the offence is committed in the way counselled, or in a different way, provided in either case that the acts constituting the offence actually committed are a probable consequence of carrying out the counsel.

In either case the person who gave the counsel is deemed to have counselled the other person to commit the offence actually committed by him.

21 I would summarise the matter in this way. The counsellor or procurer must intend that the offence counselled or procured will be committed. He need not, of course, know that the acts he is counselling or procuring would constitute an offence, but he must know and intend that those acts which do in fact constitute the offence, should be committed: Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473. In this case, the acts in question are either acts which are alleged to amount to corruption, or acts by way of the unauthorised disclosure of official information which it is the principal offender's duty to keep secret.

22 The case of Giorgianni and other authorities were helpfully discussed by Steytler J in Ward v The Queen (1997) 19 WAR 68. The question in that case was whether the accused aided the unlawful detention of a person by his co-accused. The co-accused and the victim were seated in the rear of a motor vehicle which was being driven by the accused. In fact, the co-accused was detaining the victim. So it was a case which turned on the question whether the accused, by driving the vehicle, was aiding the commission of the offence by the co-accused. But the statement of the law in that context is equally apposite to a statement of the law in relation to counselling or procuring the commission of an offence by another.

23 The law in relation to accessorial criminal responsibility may, in my opinion, relying on Ward and the authorities reviewed by Steytler J, be stated generally, whether the liability is said to arise from acts done in aid of the commission of an offence, or counselling or procuring its commission, before the offence is committed or during the commission of the offence, or in relation to aiding and abetting the commission of an offence, after it has been committed. In each case, the accessory must know the essential facts which would constitute the commission of an offence.

24 Having reviewed the relevant authorities, Steytler J said:

[I]t seems to me to follow, from these cases and from that of Giorgianni, that there is, for present purposes, a distinction to be drawn between cases in which those who, by their acts committed in advance of the commission of the crime by the principal offender, are 'aiders' of the crime committed by the principal offender, on the one hand, and those in which the 'aider' assists the principal offender in the actual commission of the offence in circumstances in which that assistance is not provided in the furtherance of any pre-existing common purpose, on the other. In cases of the former kind it is enough, for liability, that the aider contemplate only that the principal might commit the crime rather than that he or she will necessarily do so. In cases of the latter kind there can ordinarily be no liability unless the aider knows all of the facts constituting the offence which is then being committed and to the commission of which he or she is then lending assistance (75 - 76).

25 If the principal offender does commit an offence, the person who counsels or procures the commission of the offence will be found liable for its commission, under s 9 of the Code, even if the offence is committed in a different way from that counselled or is actually a different offence, provided, 'the acts constituting the offence actually committed are a probable consequence of carrying out the counsel': Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373.

26 None of the accused may be convicted unless their guilt is established beyond reasonable doubt. Until such time as that burden of proof is discharged by the prosecutor, there is a presumption of innocence available to each accused. The prosecution assumes the onus to negate that presumption by establishing guilt beyond reasonable doubt. The burden never shifts. Each element of the offence charged must be proved to that standard of proof.

27 Extensive particulars of the charges laid in the indictment have been provided. There was some debate about the significance of that process, and I should record my views.

28 The indictment is the essential criminal pleading. It is by the lodgment of the indictment that the prosecution in a superior court is commenced: CPA, s 83. Schedule 1 to the CPA applies: s 85. Clause 5 of Sch 1 describes the requirements for an indictment. It is in the following terms:

(1) A charge in a prosecution notice or indictment must inform the accused of the alleged offence in enough detail to enable the accused to understand and defend the charge, and in particular must -

(a) describe the offence with reasonable clarity;

(b) identify the written law and the provision of it that creates the offence;

(c) identify with reasonable clarity -

(i) the date when the offence was committed or, if the date is not known, the period in which the offence was committed; and

(ii) where the offence was committed;

(d) if the offence is one against a person, identify the person concerned in accordance with clause 6(2); and

(e) if the offence relates to property, comply with clause 6(4) and (5).

(a) it is sufficient to describe an offence in the words of the written law that creates it;

(b) if that written law states that alternative acts, omissions, capacities, or intentions, constitute the offence, the alternatives may be set out;

(c) a charge is not defective only because an element of the offence is not stated; and

(d) it is not necessary to allege -

(i) any matter, or any particulars as to a person or thing, that need not be proved; or

(ii) the means or thing used to do an act constituting an offence unless the means or thing is an element of the offence.

29 Importantly, cl 5(1) will be complied with if the count in the indictment describes the offence in the words of the section of the Act which creates the offence; in this case, s 81 and s 83 of the Code.

30 The CPA, s 131, provides for a court to order a prosecutor to give the accused further particulars of a charge. Ordinarily, that should not be done, as the section makes clear, without reason, to better inform the accused person of the nature of the offence charged. In this case, no order was required. As I have said, extensive particulars were provided upon the request of the accused persons.

31 It is important, however, to remember that although the particulars (and the prosecutor's opening statement) ordinarily serve to elucidate and confine the allegations made by the prosecutor in respect of the offence charged in the indictment, it is the indictment which remains the crucial charging document setting out the elements of the offence to be proved against the accused. In Environmental Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481, Gleeson CJ, then presiding over the Court of Criminal Appeal of NSW, said, Ireland and Bruce JJ agreeing:

In a criminal proceeding, what the prosecution is required to establish are the essential elements of the offence charged.

It is often appropriate, in order to provide an accused with fair notice of the case to be met, and in the interests of efficiency and economy in the conduct of the proceedings, for the prosecution to be obliged to provide further and better particulars of the allegations made in the charge, whether the charge takes the form of a count in an indictment, or an allegation in a summons.

There may be circumstances arising out of the nature of the evidence in a particular case, or the manner in which the case has been conducted, which will make it unfair or oppressive to an accused person to permit the Crown to depart from its particulars. Subject to that qualification, however, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, or the summons. Failure to establish a particular is not fatal (484) (citations omitted).

32 I propose now to set out the elements of the offences of disclosing official secrets and corruption, as those offences are defined by s 81 and s 83 of the Code, respectively, and in doing so it will be convenient to have regard to, and incorporate, the particulars.

(1) Disclosure - defined in s 81(1) so as to include any publication or communication and, as in this case, where the disclosure is of a document or record, parting with possession of it.

(2) The disclosure by the accused is by a person who is a public servant or government contractor. The two terms are defined in s 81(1). I discuss this aspect of the offence in the State of Western Australia v Burke [No 1] [2010] WASC 73. Having regard to the reasons there given, the allegation that at the relevant times Mr Hondros was a government contractor because he was a ministerial officer employed in the provision of services to his Minister, Mr Ford MLC, for the purposes of the State of WA, is established by the evidence. I do not refer again here to the detailed reasoning set out in my previous judgment.

(3) Mr Hondros disclosed official information, as that term is defined in s 81(1). There is no doubt that the information which is the subject of counts 1 and 3 in the indictment, is of that character. It was, in each case, information which came into the possession of Mr Hondros, or of which he came to know, because he was performing his duties as chief of staff in the office of the Minister, as a government contractor.

(4) Mr Hondros was under a duty not to make the disclosure in each case. If those matters are established and the disclosure is proved, it is an unauthorised disclosure within the meaning of s 81(1).

(5) The unauthorised disclosure was made without lawful authority. In this case, there can be no suggestion that if, in relation to each of counts 1 and 3, there was an unauthorised disclosure in the sense that Mr Hondros disclosed official information in circumstances where he was under a duty not to make the disclosure, he had any lawful authority to make that disclosure.

34 The nature of this duty in the context of s 81 of the Code, has with respect, been usefully discussed in two cases cited to me.

35 The first is Director of Public Prosecutions (Vic) v Zierk [2008] VSC 184; (2008) 184 A Crim R 582. That was an appeal against the dismissal by a magistrate of a charge against a Victorian police officer of disclosing material in the police manual relating to speed detection devices and how they worked, to a friend who had been charged with a speeding offence.

36 Warren CJ dismissed the appeal against the dismissal of the charge which was the disclosure of information which it was the police officer's duty not to disclose. Her Honour said at 591 [41]:

[A] duty not to disclose the information did not arise in the present circumstances. It is not necessary, nor appropriate, to define where the line is to be drawn in determining the existence of a duty, as it must depend on the nature of the information and the circumstances of its disclosure. However, here, where some of the released information was freely available and the rest was otherwise available by application, and where the proper exercise of police functions could not be said to have been jeopardised, it has not been demonstrated that the respondent was subject to a duty of non-disclosure of the information.

37 In Tasmania v Johnston [2009] TASSC 60, Evans J had to deal with a case where the Tasmanian Commissioner of Police was charged with disclosing official secrets to the then Premier, Mr Lennon. The charges were brought under s 110 of the Tasmanian Criminal Code which is the equivalent of s 81 of our Code. At [52] his Honour made the useful observation that the question in that case was whether the sections of the relevant legislation relied upon by the prosecution to establish the duty not to disclose, 'impose a duty, the breach of which has criminal consequences for the purposes of the Code, s 110, as distinct from disciplinary requirements of the nature of functions of office.' In other words, one must not overlook the fact that in relation to s 81, the duty not to disclose should be of a kind, breach of which may properly attract the sanction of punishment by the criminal law.

38 I accept that that is the law. Therefore, unless it is right to consider that the disclosure was, in the circumstances, punishable as a crime, there can be no duty not to disclose the information within the meaning of s 81 of the Code, even though the disclosure may be of a kind which is punishable by disciplinary processes concerned with the accused's office or employment.

39 At [62] and [65] his Honour also drew attention to the fact that in that case the duty of non-disclosure under the relevant legislative enactments was discretionary in character, importing a judgment as to the appropriateness of the disclosure. That was a factor, his Honour thought, in considering whether there was, in the particular circumstances, a duty not to disclose the information.

40 I have said that Mr Hondros was employed as a government contractor. He was employed within the meaning of the Public Sector Management Act 1994 (WA) (PSMA), under s 68 of that Act, as a ministerial officer, the chief of staff in the office of Mr Ford MLC who, among his portfolios, was the Minister for Fisheries. As such, Mr Hondros was bound by the terms of s 9 of the PSMA, as follows:

The principles of conduct that are to be observed by all public sector bodies and employees are that they -

(a) are to comply with the provisions of -

(i) this Act and any other Act governing their conduct;

(ii) public sector standards and codes of ethics; and

(iii) any code of conduct applicable to the public sector body or employee concerned;

(b) are to act with integrity in the performance of official duties and are to be scrupulous in the use of official information, equipment and facilities; and

(c) are to exercise proper courtesy, consideration and sensitivity in their dealings with members of the public and employees.

41 In addition, in my view, a duty not to disclose official information may be derived from the express instruction of the accused's superior to keep particular information secret, in the sense that it must not be disclosed. When I refer to the accused's superior in this context, I would include in that concept a person whose directions the accused was contractually bound to obey, provided those directions themselves were made lawfully.

42 In my opinion, therefore, a duty not to make a disclosure may be derived from the terms of the law applicable to the circumstances of the proposed disclosure, or from the lawful direction of a superior authority not to make the disclosure of particular information, the subject of the direction. Further, I see no reason why the direction could not be to prohibit disclosure to nominated individuals: cf Cortis v The Queen [1979] WAR 30.

43 It is important, however, in this case to bear in mind that what s 81 is concerned with is disclosure of information. If the information is contained in a 'record' (a term widely defined in s 1(1) of the Code) then the disclosure of that information may be proved simply by proving that the accused parted with possession of the record. That may widen considerably what would constitute a disclosure. A computer or document left on a train might well constitute disclosure of the information contained in it without the need to prove that the information came to the notice of any person who was not authorised to know it or to be in possession of it.

44 However, it is the information, not the record, with which s 81 of the Code is concerned. It is the information which must come within the definition of official information and it is the disclosure of information which must be unauthorised so as to constitute the commission of the offence.

45 In my view, a disclosure which is unauthorised, in either of the senses referred to above, may nonetheless be made with lawful authority in the circumstances set out in s 31 of the Code:

(1) A person is not criminally responsible for an act done, or an omission made, in any of the following circumstances -

(a) in execution of the law;

(b) in obedience to the order of a competent authority which the person is bound by law to obey, unless the order is manifestly unlawful.

(2) Whether an order is or is not manifestly unlawful is a question of law.

46 The section was repealed and re-enacted as part of the reform of the law of homicide made by the Criminal Law Amendment (Homicide) Act 2008 (WA). But that is of no moment for present purposes. In my view, the effect of s 81 and s 31 of the Code, read together, is as follows. A particular disclosure might be unauthorised because, by the operation of the law or in accordance with instructions given by a superior authority, there exists a duty not to make the disclosure.

47 On the other hand, if the disclosure was itself in the execution of a different law, conflicting with the general duty not to make the disclosure, or was in obedience to the order of a competent authority countermanding the earlier instruction, which itself was not manifestly unlawful, then, under s 31, the accused would not be criminally responsible for the unauthorised disclosure, which would properly be held to have been made with lawful authority.

48 It is, of course, because s 31 prevents the accused being held to be criminally responsible for the conduct in question, that it is an element of the offence to be proved beyond reasonable doubt by the prosecution that the unauthorised disclosure was made without lawful authority. However, as I have mentioned, in the case of neither of the offences alleged in count 1 or in count 3, is there is any suggestion of lawful authority. Indeed, the issue in the case of both of the offences charged in count 1 and count 3 of the indictment is whether Hondros was under a duty not to make the disclosure with which the count is concerned.

49 I appreciate that this view does not accord with the submissions of counsel who put to me that my view of the meaning of 'without lawful authority' was too narrow. It was argued that the lawful authority could be derived from consideration of the scope of authority accorded to Mr Hondros as the chief of staff in the office of the Hon Minister for Fisheries and by reference to the fact that, as it was asserted, the information which it was said there was a duty not to disclose might have been obtained by an application under the Freedom of Information Act 1992 (WA) by a person who might be qualified to make such an application (such as an agent in certain circumstances) in respect of the information the subject of the charge.

50 Reliance was placed upon the decision of Rook v Maynard (No 2) [1994] TASSC 104; (1994) 123 ALR 677. That was a decision of Zeeman J in the Supreme Court of Tasmania on a review of the decision of a magistrate that an accused person had no case to answer in relation to charges brought under the Crimes Act 1914 (Cth) that the accused, 'intentionally and without authority' obtained access to data stored on a commonwealth computer.

51 Zeeman J appears to have accepted the submission which was made to him that the term 'without authority' would equate to 'without lawful authority', but his Honour held that in the context of the offence with which he was dealing, the question whether an act was done without authority or without lawful authority, 'depends upon the nature of the act and the nature of the authority which is capable of being provided for the doing of that act' (679). I found the case to be unhelpful in dealing with the question of the meaning of the phrase, 'without lawful authority' in s 81 and s 83.

52 But in truth, this is a side issue, because in my opinion there is no evidence to suggest that the conduct or acts performed by Mr Hondros which are said to constitute the commission of the offences charged in counts 1 - 3 of the indictment were performed in circumstances where, if the performance of those acts would otherwise constitute the offence charged, Mr Hondros would be relieved of criminal responsibility by the failure of the prosecution to prove beyond reasonable doubt that the acts in question were positively without lawful authority. None of them might be taken to have been performed with authority derived from the nature of Mr Hondros' duties and responsibilities as chief of staff in the Minister's office if it was the case that the disclosures the subject of the charges were made in contravention of a duty not to make them.

53 Further, it seems to me, with respect, that the question of lawful authority cannot be answered by reference to a consideration of the application of the Freedom of Information Act in the context of an hypothetical application. Such a consideration is, in my respectful opinion, simply irrelevant.

54 Particulars of all the offences charged were, it appears, sought by each accused person, provided by the State, presented in consolidated form and ultimately explained by an email dated 16 April 2010, of which the author was senior counsel prosecuting. The prosecution case was further explained in an exchange between counsel during the course of the trial. Particularity may therefore be given to the elements of the offences charged, to be proved by the prosecution, having regard to the particulars alleged against each accused person, and the elements may be restated in the specific terms of the particulars from which, it seems to me, there was no departure in the presentation of the prosecution case.

55 The disclosure is that alleged to have occurred on 25 September 2006 when Hondros forwarded by email to Mr Burke a copy of a letter which is undated, but was written by the Hon Mr Ford MLC, the State Minister for Fisheries, to his Federal counterpart, the Hon Senator Abetz, the Federal Minister for Fisheries, Forestry and Conservation (exhibits 72A and 72B).

56 At the relevant time, Mr Hondros was a government contractor. I have mentioned briefly the reasons I gave at some length in WA v Burke [No 1]. Mr Hondros was alleged to be, and, on the prosecution evidence, I would find him to be, employed under contract as a ministerial officer as the chief of staff in Mr Ford's office. In that capacity, he provided services for the Hon Minister in the performance of his official duties, and therefore he provided services for the purposes of the State of WA.

57 Mr Hondros disclosed official information. It is alleged, and on the evidence I would find, that the letter sent by Mr Ford to Senator Abetz contained information which came into Hondros's possession because he was a government contractor, Mr Ford's chief of staff. It is alleged, and the evidence supports a finding, that he received the letter electronically from a Ms Comrie, who gave evidence that she was an administrative officer in Mr Ford's office, and was his personal assistant.

58 As I have said, generally, there is no evidence to suggest that if the disclosure of the letter was unauthorised, within the meaning of the Code, it was made other than without lawful authority. The evidence supports that conclusion. No law required the disclosure and it was not made on Mr Ford's instructions. Indeed, on the evidence, it was made without Mr Ford's knowledge and entirely of Mr Hondros's own initiative.

59 The live question is, all other elements of count 1 being proved beyond reasonable doubt, whether the disclosure of the letter was an unauthorised disclosure in that the letter contained information which Mr Hondros was under a duty not to disclose.

60 The particulars allege that, as I have already indicated, as a ministerial officer Mr Hondros was obliged to comply with the requirements of the PSMA, which required him to comply with the Department of Premier and Cabinet's Code of Conduct. It is alleged that the Code of Conduct prohibited the disclosure of the contents of internal reports or documents to unauthorised persons, or giving to such persons information relating to the business of a department or other government agency.

61 The information in the letter is said to fall into this category and, in addition, it is alleged that in February 2006 Mr Ford directed Mr Hondros that he was not to have contact with Messrs Burke or Grill or to organise meetings with them, without the Minister's permission. The disclosure is alleged to have been unauthorised within the meaning of s 81 because it was made in breach of the duty not to disclose it arising under the Code of Conduct and out of the Minister's direct instruction.

62 I turn my attention to count 3 and note that the framework of the allegations in the particulars is essentially the same as for count 1. In this case, the information about which complaint is made is, 'a draft version of the Pearl Oyster Hatchery Policy: Phase III'. I shall refer to this information in general terms as the Phase III policy.

63 The particulars of the alleged disclosure are that on 10 October 2006 Mr Hondros sought and obtained from Ms Kennedy, a fisheries management officer at the Department of Fisheries, an electronic version of the Phase III policy document. It was a draft of the document which, at that time, Ms Kennedy was working on and which, it is alleged, was then being considered by the Pearling Industry Advisory Committee (PIAC). It is alleged that on 11 October 2006, Mr Hondros disclosed the information in the draft Phase III policy to Mr Grill, by forwarding the document to him by email. Again, the evidence establishes that that occurred, and there is no contest about it.

64 Mr Hondros is said to have done that in his capacity as a government contractor. Nothing more need be said about this issue.

65 It is alleged that the Phase III policy document contains official information. There is no doubt that this is so. It came into Mr Hondros's possession because he was Mr Ford's chief of staff performing the duties of his office, in other words, because he was a government contractor.

66 Again, there is no suggestion that Mr Hondros was under any statutory duty to make that disclosure or was acting in accordance with instructions given by Mr Ford, or anyone else in authority over Mr Hondros, specifically with respect to the draft Phase III policy document, to give it to Mr Grill. There is no question that if the disclosure was unauthorised, it was made without lawful authority.

67 It is upon the question of the alleged unauthorised disclosure that the charge against Mr Hondros in count 3 in the indictment turns. The allegation is that the disclosure was made contrary to a duty not to make it, derived from the Code of Conduct to which I have previously referred, and the instruction alleged to have been given to Mr Hondros in February 2006, by Mr Ford, that he was not to have contact with Messrs Burke or Grill, or to organise meetings with them, without the Minister's consent. It is alleged that Mr Ford gave no authority to provide Mr Grill with the draft Phase III policy on 11 October 2006.

68 The particulars against both Messrs Burke and Grill are effectively the same, and they are the same with respect to the allegation of counselling and procuring. In other words, having regard to the terms of s 7 of the Code, Messrs Burke and Grill are alleged to have counselled or procured the commission of the offence in count 3 by Mr Hondros.

69 Given that the guilt of Mr Hondros of the offence alleged in count 3 is established, the allegation is that:

On 9 October 2006, at Mr Grill's residential unit in Mount Street, Perth, Mr Grill and Mr Burke, by the statements that each made and by their complicity in the statements made by the other, advised and urged Mr Hondros to provide them with the Pearl Oyster Hatchery Policy endorsed by the Minister for Fisheries, in order that Mr Grill and Mr Burke might make amendments to the policy favourable to their client [Mr Kel Brown of Nor-West Fisheries] with a view to the amended policy being submitted to Cabinet for approval without further review by the Department of Fisheries.

70 Essentially the proposition is that if Mr Hondros's guilt of count 3 is established, the guilt of Messrs Burke and Grill of count 5 follows, because the unlawful disclosure without lawful authority made by Hondros of the Phase III policy was at the advice and urging of Messrs Burke and Grill acting in concert on 9 October 2006 so that they might make amendments to the policy which would help the case of their client, Mr Kel Brown, and after the incorporation of those amendments, the Minister, Mr Ford, would take the policy to Cabinet for its adoption without further review by the Department of Fisheries and PIAC.

71 It is noteworthy, however, that although both count 3 against Mr Hondros, and count 5 against Messrs Burke and Grill, allege that the unauthorised disclosure made by Mr Hondros, and counselled or procured by Messrs Burke and Grill, was the disclosure of, 'a draft version of the Pearl Oyster Hatchery Policy: Phase III', the particulars in relation to each of counts 3 and 5 are worded rather differently.

72 The particulars of the unauthorised disclosure in respect of count 3 are that Mr Hondros sought from Ms Kennedy at the Department of Fisheries, 'an electronic version of the Pearl Oyster Hatchery Policy: Phase III' on 10 October 2006, and on 11 October 2006 he forwarded this electronic version of the Phase III policy to Mr Grill by email. As I have indicated, the particulars of the counselling and procuring alleged against Messrs Burke and Grill are that they advised and urged Mr Hondros to provide [them] with the Pearl Oyster Hatchery Policy endorsed by the Minister for Fisheries (my emphasis).

73 The indictment alleges that Mr Hondros, a public officer, 'acted corruptly in the performance or discharge of the functions of his office or employment so as to gain a benefit for [Messrs Burke and Grill] and others.' As I have said, this is an allegation that Mr Hondros committed the offence of corruption, contrary to s 83 of the Code.

(1) Mr Hondros was a 'public officer'. Again, there is no contest in relation to that matter. All the evidence establishes that Mr Hondros was indeed such a public officer. I discuss the detail of this allegation in WA v Burke [No 1], and I need not repeat that detailed discussion here. Mr Hondros was a public officer within the definition of that term in s 1(1) of the Code, because he was an employee within the meaning of the PSMA. He was employed under contract as a ministerial officer, as the chief of staff in the office of the Hon Minister for Fisheries, Mr Ford MLA.

(2) Mr Hondros was acting in the performance or discharge of the functions of his office or employment. Again, all the evidence in respect of that question is one way. At the relevant time, between 8 - 12 October 2006, Mr Hondros was acting in the performance of the functions of his office as the chief of staff to the Minister of Fisheries.

(3) Mr Hondros acted corruptly. The word 'corruptly' is not defined in the Code. It is to be given its ordinary meaning which, in my opinion, when one is concerned with the quality of the act or omission which is said to be corrupt, will involve the notion that there has been a dereliction of duty, an element of fault, some perversion of the proper performance of the duties of office: Williams v The Queen (1979) 23 ALR 369, 373, per Blackburn J. If the misconduct of that kind is performed by the accused for the purpose of gaining a benefit or causing a detriment, and the misconduct is without lawful authority or a reasonable excuse, then the offence of corruption, defined by s 83 of the Code, will be committed.

On the other hand, that offence may be committed even though the conduct in question would be regarded as the proper performance or discharge of the duties of the accused person's office, and I turn now to that concept.

The term 'corruptly' was discussed by the Court of Criminal Appeal in Willers v The Queen (1995) 81 A Crim R 219. Malcolm CJ, referring to the accused who had been charged with an offence against s 83 of the Code, said:

[T]hat which would otherwise be within his lawful authority became an act which was without his authority and involved him in acting corruptly because the act was performed for the purpose of causing a detriment. To put it another way, if an otherwise authorised act is done for an improper purpose by acting maliciously to cause a detriment, such an act becomes a corrupt act (225).

Rowland J agreed. Referring to s 83, his Honour said:

[T]he section is to be read and understood to make criminal an act undertaken by a public officer which could include an act which is ordinarily properly performed by that officer in the conduct of his or her duties, but which is a corrupt act because it is performed for the purpose of gaining a benefit or causing a detriment. ... In the context of s 83, the word 'corrupt' is conditioned by the prohibited purpose, so that if the purpose of a public officer in performing an otherwise lawful act is improper in the sense that it is for the purpose of the improper use of his office to gain a benefit or cause a detriment, then such act is a corrupt act (231).

In other words, the proper interpretation of s 83 is that an act is corrupt, within the meaning of the section, even though it would otherwise be proper to do it in the discharge of the functions of the office or employment of the accused person, if it is performed to gain a benefit for, or to cause a detriment to, any person, including, of course, the accused, when the purpose of gaining the benefit or causing the detriment cannot be a proper purpose for the performance of the act.

(4) So as to gain a benefit or cause a detriment: part of the concept of corruption.

Relevantly for present purposes, s 83 makes it an offence for a public officer to act corruptly in the performance or discharge of the functions of his office or employment, 'so as to gain a benefit, whether pecuniary or otherwise, for any person, or so as to cause a detriment, whether pecuniary or otherwise, to any person'. It has been held that the words, 'so as to', show that the gaining of a benefit or causing a detriment are to be interpreted purposively.

There is no need for the prosecution to establish that any person received an improper benefit from the performance of the corrupt act or that any person was caused improperly to suffer a detriment from the performance of that act. It is necessary, however, before it will be held that the accused has acted corruptly, for it to be proved that he acted for the purpose of gaining an improper benefit for, or causing an improper detriment to, any person: Rompotis v The Queen (1996) 18 WAR 54 per Malcolm CJ at 59.

(5) Without lawful authority or a reasonable excuse.

In my view, the concept of 'lawful authority' is, in relation to s 83 of the Code, precisely that which I have discussed above in relation to s 81 of the Code. In other words, lawful authority is that which is described by s 31 of the Code. Criminal responsibility is negated if the act was done in execution of the law or in obedience to the order of a competent authority, which the accused was bound by law to obey, unless the order given was itself manifestly unlawful.

As I have said in the context of s 81, there is in this case no suggestion that any act said to have been performed corruptly by Mr Hondros was performed in execution of the law or in obedience to an order given to Mr Hondros, presumably by the Minister, Mr Ford MLA, which order Mr Hondros was bound by law to obey. Upon the evidence I would find, beyond reasonable doubt, that the conduct complained of was performed without lawful authority. The question of lawful authority simply does not arise.

On the other hand, the question whether Mr Hondros acted with a reasonable excuse may be a live issue, and in that regard I think a reasonable excuse would be an excuse which the court of trial considers to be reasonable in the sense that it considers that the accused person has acted reasonably, albeit corruptly, in the circumstances as they were presented to him.

The question is not whether there was, in the broad, an objectively reasonably excuse, but whether, from the point of view of the accused person in the circumstances in which he found himself, there was a reasonable excuse for his conduct which would otherwise be found to be corrupt in that it was for the purpose of securing an improper benefit to any person or causing an improper detriment to any person.

75 Again it is now possible, having regard to the extensive particulars provided, to put the alleged offence which is count 2 in the indictment in terms of the particulars. I have referred to the allegation that Mr Hondros was a public officer.

76 The act which is the subject of count 2 is a course of conduct to which I have previously referred. It is alleged that on 10 October 2006, Mr Hondros made an email request of Ms Kennedy at the Department of Fisheries, for an electronic version of the Phase III policy. Ms Kennedy is alleged to have sent to him, on that date, the latest draft of the Phase III policy, which was then before the PIAC for its consideration. It is alleged that, on 11 October, Mr Hondros sent Mr Grill an email to which he attached the electronic version of the Phase III policy which he had received from Ms Kennedy. All of that, it is said, he did as the chief of staff in the office of the Hon Minister for Fisheries, and there is no dispute that that was so. All the evidence leads to that conclusion.

77 The central and most important allegation, as count 2 is particularised, is that Mr Hondros acted corruptly in sending the electronic version of the Phase III policy which he had received from Ms Kennedy to Mr Grill because he did so improperly for the purpose of gaining an improper benefit, a benefit which Mr Hondros was not entitled or permitted to afford them, for Mr Burke, Mr Grill and others.

78 The benefit that it is alleged Mr Burke and Mr Grill were to obtain was access to the Phase III policy which was then in the form of a draft under the consideration of PIAC, and had not been endorsed by the Minister so as to permit its publication generally to the pearling industry and other interested persons. The 'others' who were intended to gain a benefit from the alleged corrupt behaviour of Mr Hondros are particularised as Mr Grill's client, by whom he had been engaged as a lobbyist to achieve change in the publicly announced policy concerning pearl oyster hatcheries and the quotas fixed in respect of hatchery production.

79 Mr Grill had been engaged according to the terms of an agreement dated 30 April 2003, as varied by a letter agreement dated 1 February 2005 (exhibits 178A and 178B). It matters not how Mr Grill's client was identified, but it was effectively a pearling business, the principal of which was Mr Kelvin Waldron-Brown, to whom I have been referring and to whom I shall henceforth refer as Mr Kel Brown, the name by which he seems to be generally known. His business was conducted by various corporate vehicles, sometimes known as Nor-West Seafoods Pty Ltd, Nor-West Pearls, West Australian Southsea Pearls or Pilbara Pearls.

80 I am satisfied that Mr Grill was engaged to effect change in the government pearl hatchery quota policy so that it would be expressed and reflected in legislation more favourably to Mr Brown and his businesses, as well as to others engaged in the pearling industry, the scale of whose operations was relatively small, as was Mr Brown's business when compared with the scale of involvement in the industry of corporate concerns referred to as the major players in the industry. The small producers felt that the policy reflected currently in legislation and guidelines published under it was unduly favourable to those major players, and operated so as to disadvantage small producers. I shall need to mention aspects of this policy contest in a little more detail in due course.

81 I have mentioned the conduct of Mr Hondros which is alleged to be corrupt. Essentially, it is the obtaining of the electronic version of the Phase III policy from Ms Kennedy, and by the email dated 11 October 2006, its provision to Mr Grill, which was the purpose for which it was obtained, so that Mr Grill could, with the assistance of Mr Burke and others, change the policy favourably to Mr Brown and other small producers, conduct which was allegedly not authorised and is said to have been engaged in for an improper purpose without reasonable excuse.

82 This is the charge by which Messrs Burke and Grill are alleged to have counselled or procured the commission of the offence in count 2 by Mr Hondros. The allegation of what they did and the purpose of their conduct, which is also alleged to be part of the improper purpose of Mr Hondros, is identical to the allegation made against them in respect of count 5, by which it is alleged that Burke and Grill counselled or procured the commission of the offence alleged in count 3 by Mr Hondros. I have set it out at [69] above. It focuses upon the discussion between the three men on 9 October 2006 at Mr Grill's home in Mount Street, Perth, and again, the alleged conduct of Mr Burke and Mr Grill which is relied upon is the same for each accused person.

83 The allegation of corruption by Mr Hondros is, of course, central to count 4, as it is to count 2, in respect of which I have set out the conduct relied upon. The particulars allege that:

Mr Hondros did not have authority to forward the document to Mr Grill, and did not inform the Minister for Fisheries that he was doing so. In doing so -

(a) he used his position for an improper purpose;

(b) he acted in dereliction of his duty to keep official information received by him confidential; and

(c) his integrity in the discharge of his duty was perverted.

84 The ultimate objective, to have amendments made to the Phase III policy, 'with a view to the amended policy being submitted to Cabinet for approval without further review by the Department of Fisheries' was elaborated upon by further particulars provided under the hand of senior counsel for the State, Mr Fiannaca SC. He said:

The State's case, based on statements made by each of the accused at the meeting on 9 October 2006 and in some of the subsequent communications, is that the document was to be altered in a manner which would not appear obvious and was to be presented to the Minister for submission to the Cabinet as the policy prepared by PIAC (that is what the document purports to be).

85 In opening the case for the prosecution, Mr Fiannaca SC put the State's case of corruption on two alternative bases. He said that the purpose which was improper on the part of Hondros, at the urging of Burke and Grill, for the provision of the Phase III policy to them by Mr Hondros, was that they would then subtly or imperceptibly amend the Phase III policy so that it might operate in a way which was more favourable to Mr Kel Brown and the other small producers in the industry. They would then return the amended Phase III policy to Mr Hondros.

86 Mr Hondros would take it to the Minister, Mr Ford, who would then present the document to Cabinet for the approval of the government without the amended Phase III policy being returned to the Department of Fisheries for their further consideration and for the further consideration of PIAC, whose document had been amended, but the document would purport to present the policy as one recommended by PIAC, an outcome which, as Mr Fiannaca put it, 'might well have some persuasive value so far as government was concerned' (ts 145).

87 It follows from that that the purpose alleged may have been to dupe the Minister into thinking that the amended Phase III policy had come from PIAC via the Department of Fisheries so that he could present it to Cabinet in those terms. Alternatively it appears to be put, particularly at ts 145, that the Minister would take the document to Cabinet for its final approval of the policy without the Minister, and therefore Cabinet, realising that amendments had been made to the policy following the process which saw it endorsed by the Minister in May 2006.

88 During the trial, I was advised that the prosecution conceded that it may, upon all the evidence, remain unclear what, if any, intention the accused persons had about the involvement of Mr Ford in this process. Did they think about it at all? If they did, did they propose that Mr Ford should be deceived into thinking that the amended draft Phase III policy incorporated changes which had in fact been approved by the Department and by PIAC (a highly unlikely scenario, given the nature of the advice tendered to Mr Ford from those sources thus far)?

89 Or did they imagine that Mr Hondros would tell the Minister that the amendments made were designed to give him control of the industry and allow him to prefer the position in the industry of small producers, and to advance his interest in indigenous involvement in the industry? Did they propose to suggest to Mr Ford that he should take the amended policy directly to Cabinet for its endorsement by Government without exposing it to the Department, and to PIAC and the industry generally?

90 This aspect of the prosecution case is of interest, it seems to me, because although at the stage of evaluating submissions that the accused persons have no case to answer, the court should take a view of the evidence which puts, at its highest, the capacity of the evidence to establish guilt beyond reasonable doubt, in my opinion, that cannot require the court to ignore an incapacity to establish guilt beyond reasonable doubt derived from the fact that the evidence about an issue concerned with the proof of an element of the offence is equivocal. Unless, in such a circumstance, the court is able to say that it might properly prefer a view of the evidence consistent with proof of guilt beyond reasonable doubt over one which is consistent with an incapacity to establish guilt to that standard of proof, a view of the primary facts which is consistent with innocence must be taken. I think that follows from the decision in Morrison and the discussion there of the approach to be taken by the court in a circumstantial evidence case.

91 However that may be, it is submitted by the prosecution that the proper conclusion is that Hondros acted corruptly when counselled to do so by Burke and Grill because the purpose of doing so was the improper purpose of subverting the processes of government by which the pearl hatchery policy was to be formulated, and to do so deceptively to conceal what had really occurred. For that conduct, the prosecution alleges, there was certainly no lawful authority, nor, in the circumstances, could it be contended that there was any reasonable excuse for the behaviour.

92 I have dealt with the way in which count 1 is pleaded, having regard to the particulars. I need not go over that material again, except to say that the count concerns the disclosure, on 25 September 2006, to Mr Burke, of information in a letter from the Hon Minister for Fisheries, Mr Ford MLC, to the Federal Minister for Fisheries, the Hon Senator Abetz. That came about in this way.

93 One of the issues of concern to Mr Ford, as the Minister for Fisheries, was the management of the northern fishery, where WA shared responsibility with the Commonwealth. The Federal Minister for Fisheries was Senator Abetz, and it appears from Mr Ford's evidence that he and Mr Abetz were not necessarily of the same mind in relation to management issues concerning the fishery. A major difficulty was poaching by fishermen from countries to the north of Australia, and there was an issue between the Ministers as to whether the Commonwealth was doing enough to prevent this poaching of what was regarded as an Australian resource.

94 One of the issues was the taking of sharks, for their fins particularly, to the extent that the numbers of fish were reduced by what were regarded as the depredations of overseas fishermen. It put pressure on the Australian and WA regulation of locally based fishermen, and the result was measures to preserve the fishery by reducing their catch, and the number of days in any given month of the season when they were entitled to fish. The numbers of locally based fishermen were small, but they were in the habit of petitioning the Minister for financial assistance when Government action to restrict their fishing rights had adverse economic consequences for their business. Two such fishermen were a Mr Scimone and a Mr Triantafyllou. They had made representations personally to the Minister, and they had engaged Mr Burke to assist to advance their case for compensation. In the middle part of 2006, Mr Ford and Mr Hondros were both aware that Burke was acting for these men, and Mr Ford was endeavouring to deal with their applications for financial assistance.

95 Exhibit 150 is an undated letter written to the Hon Minister by Mr Scimone. It appears to have been written, but not necessarily sent, before 15 August 2006, which apparently marked a proposed closure of a fishing zone for a period. The detail of the letter does not matter for present purposes. But it argued for a restoration of more favourable conditions of licence to provide Mr Scimone with some assurance of viability in the industry into the future. At around this time it appears that Mr Ford met with the fishermen.

96 On 18 August 2006, he made a ministerial statement to the media, advising that the shark fishery would remain open and that new management controls were in the course of preparation. The statement refers to Mr Ford's frustration that the WA authorities could not obtain from the Commonwealth any clear indication of the true impact upon the fishery of illegal fishing. In the statement, exhibit 151, Mr Ford refers to correspondence with Senator Abetz in relation to their joint responsibility to manage the fishery.

97 On 25 September 2006, Mr Burke telephoned Mr Hondros, who was unavailable. A message was left (exhibit 70). One of the matters with which it dealt was Mr Burke's request for Mr Hondros to send him a short email 'about the position in respect of the fishing discussions we had'. It is clear that Mr Hondros knew what that meant because, on the same date, he obtained from Ms Comrie, an administrative assistance in the office of the Minister, who acted primarily as Mr Hondros's personal assistant, an electronic version of the undated letter which had been written to Senator Abetz by Mr Ford, as Minister for Fisheries, in which he expressed views about a number of issues concerning fisheries which were jointly managed by the State and the Commonwealth.

98 The particular topic was a request to allow WA fishermen in the jointly managed fisheries, access to the Australian Government's $220M fund entitled, 'Securing our Fishing Future'. That was a request made, among other fisheries, in respect of the Joint Authority Northern Shark Fishery in which Mr Burke's clients were engaged. The letter presents arguments in an endeavour to persuade the Federal Minister to the point of view being put by Mr Ford that WA fishers should have access to those funds which, as I understand the evidence, among other things, would provide money which might be used to meet compensation claims made by fishermen who suffered financially as a result of tightening management controls.

99 Mr Ford's evidence was that he regarded such a letter, from Minister to Minister, as a confidential communication which only he might publicly release. However, so far as the information in the letter was concerned, Mr Ford's evidence was that there was nothing of substance in the letter which was not publicly released information. As has been seen, he had himself made a contribution to that process and I understood from his evidence that the letter otherwise debated information which had been released by the Commonwealth Minister. Mr Ford said that the response to his letter was in fact unfavourable. He said that he could, legitimately, have made public comments upon his approach to the Commonwealth (ts 427 - 428).

100 On 25 September 2006, without the knowledge of the Minister, Mr Hondros sent Mr Burke an email (exhibit 72A) to which he attached the electronic copy of Mr Ford's letter to Mr Abetz which Ms Comrie had sent him (exhibit 72B). It is this email which is alleged to be the unauthorised disclosure with which count 1 is concerned. Its content was reported by Mr Burke to his clients (exhibit 74), but the evidence does not reveal any further dissemination.

101 The email reports Mr Ford's efforts on behalf of both of the fishermen who where Mr Burke's clients. Mr Hondros says that Mr Ford has submitted an application to the Treasurer for an act of grace payment to Mr Scimone for a greater sum than was originally proposed by the Department of Fisheries. Mr Hondros reports that he understands that this application has been approved and is simply awaiting the final approval of Executive Council.

102 Of course, as Mr Ford said in evidence, the making of an act of grace payment should be regarded as private, as between the Government and the recipient. If the fact of such a payment, and the amount of the payment, became generally known it might be thought by other potential claimants to have a precedent value. But this was a statement made by Mr Hondros to Mr Burke on behalf of Mr Scimone, and the prosecution rightly, in my view, makes no complaint about the disclosure of progress with Mr Scimone's claim.

103 Nor is there any complaint about the fact that Mr Hondros told Mr Burke that the efforts to compensate Mr Triantafyllou were a little more difficult. Mr Hondros said he had asked the Department to work with Triantafyllou to formulate his request for compensation and, when the final calculation was made, a decision would be taken whether to present the claim as an act of grace submission or to find the money in departmental funds.

104 The portion of the email about which complaint is made in count 1 is that which follows:

Jon Ford has also written to Abetz seeking access for these fishermen to the Commonwealth's 'Securing our fishing future' package, which is a $220 million buy-out of Commonwealth fisheries (the shark fishery is a joint Cth-WA fishery). I have attached that letter and will let you know when we have a response. This might also be of some assistance if Abetz agrees.

The question then is whether that disclosure to Mr Burke was the unauthorised disclosure of official information because it was made in breach of a duty, within the meaning of s 81 of the Code, not to disclose that information to Burke on behalf of Scimone and Triantafyllou, given that Mr Ford knew that Burke was representing these fishermen (ts 421).

105 The Western Australian pearling industry is, and was at all material times, effectively a highly regulated and controlled industry, as conducted both in Northern Territory waters and in Western Australian waters, in relation to declared pearl oysters and in the management of the fishery.

106 The stock of pearl oysters regulated in relation to pearling by the Pearling Act 1990 (WA) is comprised of both wild stock (oysters growing naturally) and hatchery stock, which for present purposes it is sufficient to describe as pearl oysters produced by farming processes. The right to participate in the industry of taking or producing pearl oysters to obtain pearls, whether natural or cultured, is limited by a licence or permit, of which there are various kinds, for which provision is made in s 23 of the Act. Further, licences and permits impose quotas stipulating the maximum number of pearl oysters which may be taken in the wild or used in a hatchery environment for the production of pearls.

107 The above is a very rough description of the structure of the pearling industry which, in both WA and the NT, is administered by the State and Territory Fisheries Departments under the control of Ministers for Fisheries. At least at times relevant to this indictment, it is evident that there was a process of consultation between the respective Ministers in respect of the structure and the regulation of the industry generally. That had to be so, because those involved in the industry, particularly as major participants, were likely to be involved in the industry both in WA and the NT.

108 Mr John Nicholls is, by profession, an economist. In the time relevant to this indictment, he was in private practice as a business consultant and had been so since 2001. In 2003, or perhaps earlier, he had been engaged by Mr Kel Brown to assist in the preparation of a case to be put to the Minister for Fisheries, to obtain an easing of the restrictions on competition in the highly controlled pearling industry, and to achieve an industry structure which was more favourable to the smaller pearl producers so as to enable them to grow and improve their production capacities when compared with the major industry participants.

109 He was well qualified to do that work because, until his retirement in 2001, he had, for 40 years, been a public servant. For the first 18 years he was employed in Canberra with the Commonwealth government, and the final 22 years of his public service was with the State government, culminating in him holding the post as Director of Strategic Planning and Policy in the WA Department of Fisheries.

110 He was well familiar with the structure of the pearling industry and was of the view that it was economically unsound and breached national competition policy guidelines laid down by the Commonwealth. Mr Nicholls was also familiar with the structures of government administering the pearling industry and with the governmental and political processes involved in the adoption of policy and its implementation by government.

111 In evidence as part of exhibit 89, there is a table drawn up by Mr Nicholls, setting out the various participants in the pearling industry as they were in 2006, showing the extent to which, as Mr Nicholls understood to be the case, they had joint venture or other commercial arrangements with each other, and the quotas of wild stock and hatchery pearl oysters available to each participant.

112 The table shows that the Paspaley group of companies had four participants in the industry, with quotas in WA and, in one case, also substantially in the NT. The Kailis group of companies also provided four participants in the industry, three with quotas in WA, in one case also in the NT, and a fourth company operating solely in the NT.

113 At least since mid 2006 and, according to the evidence, probably earlier, Paspaley and Kailis themselves had entered into a commercial alliance to share their resources and infrastructure and in relation to the marketing process. It is accepted that this commercial arrangement was accurately reported in The West Australian newspaper of 14 June 2006, exhibit 148, which described the arrangement as being in respect of the pearl farming operations of the two corporate groups. It was said that the arrangement had been made necessary, 'as once-fat margins have been squeezed by rising costs and by a chronic downturn in the international market, led by Japan, the biggest pearl buyer'. Some details of the arrangement were provided to the Minister by the two corporate groups (exhibit 155).

114 Mr Nicholls' table then identifies a group of five companies, all operating in WA and said to have commercial arrangements with the Paspaley group, the implication being that there is, at least in respect of these companies, an identification of their interests with the Paspaley group. On that basis, and adding the Paspaley/Kailis/related corporations' interests together would give those various companies control of 87% of the total WA wild stock and hatchery quota, and 67% of the total such quota both in WA and the NT.

115 Mr Nicholls then identifies a further group of three licensees with quotas in WA and, in one case, also in the NT, and three licensees operating solely in the NT. The WA operators in that group include Mr Kel Brown's company, Nor-West Pearls. They are said to be without commercial or legal attachment to the Paspaley/Kailis interests.

116 Mr McCallum is the executive officer of the Pearl Producers Association (PPA). It is a body established to represent pearl producers. Its members are the WA and NT fishing and hatchery licence holders, who pay membership fees. In 2006, of the 17 licensees in WA, only one, a small non-aligned producer known as Arrow Pearls, was not a member of the PPA. In 2006, the chairman of the PPA was Mr Kelly, the chief executive officer of the Paspaley group of companies.

117 As I understand it, membership and voting rights on the PPA were proportionate to quota holdings under licence. The members contributed to the operating costs of the PPA proportionately to their membership interests. The Paspaley/Kailis interests contributed 54% of the funds of the PPA. Government contributed 33% of its funds. There can be no doubt that the decisions and the submissions to government by the PPA were very much influenced by the views of the major producers.

118 There is evidence, particularly that of Mr Nicholls and in the documents generated by him, which I accept, that the quota from wild stock in WA would not permit any significant expansion. The natural fishery was being exploited at a level close to its sustainable capacity. Therefore, any expansion of quota had to come from the hatchery content, and as to that it seems that the predominant industry view was that the best prospect for the Australian based industry in relation to southern hemisphere pearl production, 'south sea' pearls as the production was called, was to limit its availability on world markets and thereby to keep high the demand for the product.

119 Mr Nicholls seems to have been of the view, as were a number of the small producers, that that policy overlooked the fact that equivalent northern hemisphere pearl production, utilising hatchery stock, was increasing the quality and quantity of the product at increasingly competitive prices, thus eroding available profit margins to WA producers.

120 People like Mr Kel Brown were apparently of the view that, to remain viable producers, they needed to increase their production and, by aggressive marketing, endeavour to increase their market shares. As I understand it, the large producers were not averse to increased quotas, but argued for the maintenance of a policy which would see any increases given proportionately to existing holdings to enable them to maintain their competitive power in the local industry.

121 An important part of the statutory structure for the governance of the industry is the Pearling Industry Advisory Committee (PIAC). It is established under s 38 of the Pearling Act. It is an advisory committee to provide advice to the Minister or the chief executive officer (CEO) of the Department of Fisheries (Mr Rogers in 2006) in respect of any matter referred to it by the Minister or the CEO, or which it itself thinks ought to be the subject of advice to the Minister or CEO, concerning any aspect of the pearling industry and, in particular, hatchery activities in the State or in WA waters.

122 The members of PIAC in 2006 are listed in exhibit 176. They were ministerial appointees, but it is evident that the industry nominees and appointees were substantially drawn from major industry participants. They included Mr Kelly, the CEO of the Paspaley group, Mr Nicholas Paspaley and Mr George Kailis of the Kailis group. Mr Smith, an 'independent' ministerial appointee, was PIAC's chairman. Mr Rogers was an ex officio member of PIAC.

123 In addition, a number of people were appointed as observers to PIAC, and the practice seems to have permitted them not only to attend meetings, but, when called upon, to make a contribution to debate. Those observers included Mr McCallum, the CEO of the PPA, Mr Barton of the NT Fisheries Department, and Ms Kennedy, a senior officer in the WA Department of Fisheries, acting as Principal Management Officer (Pearling). There were other departmental observers including, for example, Dr Hart and Dr Jones, officers of the Department of Fisheries who would provide technical advice, and Ms McCrea, the manager of the Pearling and Aquaculture Program at the Department of Fisheries. From time to time, witnesses before me described PIAC as not only an advisory committee, but as a body which tended to act as an industry lobby group. Perhaps, given the membership, that was not surprising.

124 I need, at this point, to mention at least the principal features of the evidence, about which there appears in any event to be no material dispute, concerning the development of the hatchery policy.

125 Section 24 of the Pearling Act provides that the Minister may, from time to time, issue 'for the assistance of the CEO and the information of the pearling industry a policy statement consisting of guidelines in respect of matters considered by the Minister to be of significance' in relation to licences and the general administration of the Act in connection with pearling and hatchery activities.

126 When Mr Ford took over as Minister for Fisheries in March 2005 and Mr Hondros became his chief of staff, the current pearl hatchery policy was one which had been put in place in 1992; Ministerial Policy Guideline No 17. It was a policy designed to develop the hatchery process within the industry, but it was outdated and was due to expire at the end of 2005. As at the beginning of 2005, a new hatchery policy was in the course of development.

127 There were three phases to this policy development. Phase I, which had already taken place, reviewed the successes, failures and inadequacies of the previous policy. The next step, Phase II, was released in September 2005, in the form of Fisheries Department Occasional Publication No 27. This document discussed the directions which might be taken in establishing a new hatchery policy. It was a document which was available for public comment, and comments were received, particularly from participants in the industry.

128 My understanding of the evidence may be broadly summarised, no doubt inadequately, but sufficiently for present purposes. Essentially three options were discussed. The first would see existing quota levels maintained. I was told that that was unpopular with everyone. The second proposal was to increase quotas for hatchery farming, recognising that because existing quotas for the fishing of wild stock were at about the limit of the fishery's capacity to sustain the current level of fishing, it was in the area of hatchery development that increases in quota would need to be made.

129 The overwhelming consensus in the industry, unsurprisingly having regard to what I have already written about the dominance in the industry of major participants, favoured pro rata increases in licence quotas. That would preserve the position of the larger participants as against smaller producers. The third proposal, favoured by the small producers, would see the increases in quota administered on a case by case basis, but recognising that small producers needed relatively greater increases in quota if they were to remain viable in the changing economic circumstances to which I have referred.

130 Phase III in the development of the hatchery policy was first considered by PIAC. It prepared a policy document which it was intended to present to the Minister for Fisheries for his adoption or endorsement after he received the advice of the Department. During the course of this process, the views of the members of the PPA were sought and obtained, as I understand it, through the agency of the CEO of that Association, Mr McCallum, who, it will be recalled, was an observer to PIAC.

131 I may need to return, in more detail, to aspects of that process, but it is sufficient at the moment to note that it was, as I understand it, proposed that, upon the endorsement by the Department and the Minister of the Phase III policy, it would be published as a Fisheries Department Occasional Publication so that it would be available generally, both within the industry and to the public at large.

132 The policy would then be the basis for a new policy guideline formulated within the framework of amendments to the Pearling Act or the enactment of new legislation. In all of that process, because of the nature and location of the industry, it was anticipated that the process of consultation with the NT Minister for Fisheries would be maintained, with a view, ultimately, to have both WA and the NT adopt a common policy under a uniform legislative scheme.

133 Mr Ford's evidence was that in the early stages of his portfolio, which involved the administration of a number of complex fisheries matters, he gave particular responsibility for the development of the new hatchery policy to his chief of staff, Mr Hondros, expecting, of course, that the two men would consult regularly and that Mr Hondros would bring to him matters which required his attention as Minister, such as the adoption of the hatchery policy and that part of the process which involved taking it to Cabinet for government approval of the development of legislative amendments, and the adoption of an appropriately formulated ministerial guideline.

134 It appears that the Phase III policy document emerged from PIAC in November 2005, although the document also bears the date February 2006. At about that time, it was therefore submitted to Mr Ford for his endorsement. As I understand Mr Ford's evidence, that was the recommendation of the CEO of the Department, Mr Rogers. The Phase III policy is set out in a comprehensive document. Unsurprisingly, in view of its origin, it presents what is described in the document as the consensus of the industry. I need not discuss its terms, and it is sufficient to note the essential thrust of the policy, as set out in the report, as follows:

Cortis v The Queen

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (372 paragraphs)

THE STATE OF WESTERN AUSTRALIA -v- BURKE [No 3] [2010] WASC 110 (25 May 2010)

Parties

Legislation Cited (4)

Cases Cited (9)