R v Macdonald; R v Maitland

The charges against the accused Maitland

1. The accused Maitland is charged with being an accessory before the fact to the two principal offences with which Mr Macdonald is charged. Count 2 charges that the accused Maitland, in respect of the principal offence (count 1): "Between 17 January 2007 and 22 August 2008 in Sydney and elsewhere in the State of New South Wales did beforehand, aid, abet, counsel and procure the commission of the said offence."
2. Count 4 charges that the accused Maitland, in respect of the principal offence (count 3): "Between 21 August 2008 and 16 December 2008 in Sydney and elsewhere in the State of New South Wales did beforehand, aid, abet, counsel and procure the commission of the said offence."

Overview of the debate regarding the elements

1. There was considerable debate about the elements of the offence of wilful misconduct in public office. I proposed that documents setting out the elements of each offence charged be given to the jury before addresses, in order to assist counsel to focus on the elements in their addresses, as well as to direct the jury as to these elements for the purposes of their deliberations. The debate largely concerned count 1, on the basis that the wording of the elements would not be materially different for count 3, except in so far as it was necessary to accommodate the different conduct (grant of the exploration licence) and date (15 December 2008). The accused Maitland also had an interest in the debate as the first element of each offence with which he stands charged is the accused Macdonald's guilt of the respective principal offence.
2. There was also debate about the formulation of various elements in the Crown case against the accused Maitland, including the mens rea required to be proved with respect to the element that Mr Macdonald's misconduct be so serious as to merit criminal punishment.
3. There were several iterations of the draft elements circulated, including those proposed by the Crown and the accused Macdonald. The purpose of these reasons is to explain why I rejected particular formulations contended for by the Crown and those proposed by Mr Johnston SC, who appeared on behalf of the accused Macdonald, which were supported by Mr Jordan SC, who appeared with Mr Kerkyasharian on behalf of the co-accused Maitland. It is not necessary to set out all these iterations (each of which was marked for identification). However portions will be extracted, where necessary.
4. As noted in the cover sheet, debate on the elements took place over several days, including before 10am. The reason for this was so as to minimise disruption to the jury, which was empanelled on 6 February 2017.
5. I have included, at the end of these reasons, two appendices which contain the elements as handed to the jury. Appendix 1 relates to counts 1 and 3 against the accused Macdonald and Appendix 2 relates to counts 2 and 4 against the accused Maitland. My final decision as to the elements of the offences was made on 8 March 2017 (although rulings as to particular elements had been made before that date), before the Crown began its address. These reasons were made available to the parties on 31 March 2017, after the conclusion of the trial.

The ambit of the dispute concerning count 1 and, by analogy, count 3

The holding of public office, the alleged act and the requirement that the alleged act be in connection with public office

1. It was common ground that the Crown was required to establish that the accused Macdonald was a public official; that he granted consent to Doyles Creek Mining Pty Ltd to apply for an exploration licence; and that the grant of consent was in the course of, or in connection with, his public office. These three matters became the first three elements.

The Crown's initial proposal

1. The Crown accepted that it needed to prove that the alleged misconduct was both intentional and wilful. The Crown also accepted that it would not be sufficient to establish that the accused Macdonald had no genuine belief that the granting of consent was in the interests of the State of New South Wales, but that it must also prove that the accused was improperly motivated: Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 at [81] and [83] per Mason NPJ.
2. The Crown initially proposed the following (taken from MFI 16 which was handed up on 23 February 2017): "(3) In so acting, Mr Macdonald wilfully misconducted himself, To prove this element the Crown must prove beyond reasonable doubt that: (a) Mr Macdonald engaged in the conduct identified in the indictment, that is he granted Doyles Creek Mining Pty Ltd consent to apply for an exploration licence under the Mining Act 1992; and (b) Such conduct as you are satisfied Mr Macdonald engaged in was misconduct because it was performed by Mr Macdonald: (i) with an improper motive to confer a selective benefit on John William Maitland and company of which he was director and chairman; and (ii) in disregard of the interests of the State of New South Wales; (c) That such misconduct you find Mr Macdonald engaged in was 'wilful', that is Mr Macdonald knew that he was obliged not to use his position in that way or he knew that it was possible that he was obliged not to use his position in that way but chose to do so anyway."

The accuseds' proposal

1. Mr Johnston proposed that the element that the accused wilfully misconducted himself ought be formulated as follows (taken from MFI 43 which was handed up on 23 February 2017): "(4) In granting consent the accused wilfully misconducted himself; To prove this element the Crown must prove beyond reasonable doubt that: (a) The accused granted such consent with the sole intention of conferring a benefit on John Maitland knowing it was not in the interests of the State; and (b) The accused did not have a genuine belief that the grant was in any way in the interests of the State of New South Wales; (c) The accused's conduct in granting the consent was misconduct that was a breach of the duties and obligations of the accused's office as a Minister exercising his power under the Mining Act; and (d) The accused's conduct was wilful in that he knew that he was obliged not to use his position in that way."

Intentional misconduct

1. It was submitted on behalf of both accused that the Crown must prove, as an element of the offence, that the accused Macdonald's "sole intention" was to benefit Doyles Creek Mining Pty Ltd and Mr Maitland. They also contended that the Crown had to prove that the accused Macdonald did not have a genuine belief that the grant was "in any way" in the interests of the State of New South Wales. They submitted that this formulation was necessary not only because of the elements of the offence itself, but also because of the way the Crown opened its case.
2. It was submitted on behalf of both accused, in support of Mr Johnston's formulation on intention (elements (4)(a) and 4(b) set out above), that this case was relevantly indistinguishable from the trial on indictment of Mr Obeid and that, accordingly, I should adopt a formulation along the lines of that directed by Beech-Jones J in that trial (which is set out in my reasons below).

Wilful misconduct

1. It was submitted on behalf of both accused that knowledge of misconduct was required for the element of "wilfulness" and that recklessness was not sufficient. However, they accepted that, consistently with the judgment of Beech-Jones J in R v Obeid (No. 11) [2016] NSWSC 974, I would include recklessness as an alternative to knowledge in the component of the elements relating to wilfulness (see element 5a. and 5b.).

The Crown's response to the accuseds' proposal

1. Subsequently the Crown proposed the following (taken from MFI 49 which was handed up on 24 February 2017) in response to a draft which I circulated: "In so acting, the accused wilfully misconducted himself; To prove this element the Crown must prove beyond reasonable doubt that: (a) The accused engaged in the conduct identified in the indictment, that is he granted Doyles Creek Mining Pty Ltd consent to apply for an exploration licence under the Mining Act 1992; and (b) Such conduct as you are satisfied the accused engaged in was misconduct as it was performed by the accused: (i) while, to a significant degree, improperly motivated to confer a benefit on John Maitland and Doyles Creek Mining Pty Ltd; and (ii) in breach of the duties and obligations of the accused's office as a Minister exercising power under the Mining Act. (c) That such misconduct you find the accused engaged in was 'wilful', that is the accused knew that he was obliged not to use his position in that way or he knew that it was possible that he was obliged not to use his position in that way but chose to do so anyway;"

The mental elements of the offence of wilful misconduct in public office

General principles

1. The gravamen of the offence of misconduct in public office was described by PD Finn in "Public Officers: Some Personal Liabilities" (1977) 51 ALJ 313 at 315 in the following terms: "The kernel of the offence is that an officer, having been entrusted with powers and duties for the public benefit, has in some way abused them, or has abused his official position."
2. The formulation of the mental element in the offence was described by Dr Finn in "Official Misconduct" [1978] 2 Crim LJ 307 (Official Misconduct), at 311, as "a source of difficulty in the cases ancient and modern and in both the United Kingdom and the United States". Of the reasons postulated by the author for this difficulty, the one of present relevance is "the subsumption under one offence of diverse types of misconduct each having very distinctive characteristics" (312).
3. The formulation of the elements of the offence of misuse of public office requires consideration of: the nature of the public office; the nature of the conduct alleged; and whether misfeasance or nonfeasance is alleged. I am indebted to the detailed analysis of the categories of the offence; their elements; and relevant cases, which was undertaken by Dr Finn in Official Misconduct, which has been widely cited with approval: see Question of Law Reserved (No. 2 of 1996) (1996) 67 SASR 63 at 64-65 per Doyle CJ (Court of Criminal Appeal in South Australia); Shum Kwok Sher v HKSAR at [68] per Mason NPJ (Hong Kong Court of Final Appeal); R v Boulanger [2006] 2 S.C.R. 49 at 55; 2006 SCC 32 (Supreme Court of Canada); R v Quach (2010) 27 VR 310; [2010] VSCA 106 at [7] per Redlich JA, Ashley JA and Hansen AJA agreeing (Victorian Court of Appeal); and R v W(M) [2010] Q.B. 787 at [8] (UK Court of Appeal (Criminal Division)).
4. The conduct alleged in counts 1 and 3 belongs to the category of misconduct in public office, identified by Dr Finn as "malicious" exercise of official power; or misfeasance by abuse of discretion. A discretion is abused where an official, in the exercise of his or her powers, makes a decision from an improper motivation. Dr Finn summarised the requisite mental element, at 319 of Official Misconduct, as follows: "Thus the issue upon which the offence turns in this context is not the correctness or otherwise of the decision as an exercise of official power, but is, rather, the state of mind which informed the decision. Or, to use the language of Abbott C.J., [R v Borron (1820) 3 B. & Ald. 432, at 434; 106 E.R. 721 at 721] ". . . whenever [officers] have been challenged upon this head . . . the question has always been, not whether the act done might, upon full and mature investigation, be found strictly right, but from what motive it had proceeded." And the "motive" will always be offensive when the official wilfully deviates from a proper exercise of power and a proper discharge of duty in order to pursue some unauthorised end."
5. Favouritism to an individual or a group, or preferential treatment to an associate or relative, constitutes an improper motivation. In the present case, the alleged improper motivation was that the accused Macdonald intended to benefit the accused Maitland and Doyles Creek Mining Pty Ltd.

The element of motivation as distinct from belief or intention

1. It is apparent from the authorities analysed by Dr Finn that the relevant mental element is motivation, as distinct from knowledge, belief, or intention. For this reason, I do not consider that the formulation for which both accused contended accords with the law. It is the motivation, not the intention or belief, which determines whether the giving of consent or the grant of the licence, as the case may be, amounts to misconduct. As the root of the wrong to be remedied by the law is the same, whether in a civil or criminal context, it is appropriate that the language used to describe the wrong be consistent. In a civil action, an administrative decision can be quashed or set aside on the basis that the decision-maker made the decision from an "improper motive". The reason for the use of the term "motivation" in the elements, rather than "motive" (which is more usual in the civil context), is so as to maintain the distinction between motivation and motive, which is relevant in a criminal trial for such an offence. This distinction will be addressed in more detail below.
2. To require the Crown to prove, as contended on behalf of both accused, that "the accused granted such consent with the sole intention of conferring a benefit on John Maitland knowing it was not in the interests of the State" and that "the accused did not have a genuine belief that the grant was in any way in the interests of the State of New South Wales" would, in my view, be erroneous.
3. First, to express the requisite mental element in terms of intention, as distinct from motivation, is problematic since it has the potential to import concepts of purpose, which are apt to confuse in a case such as the present, where an inevitable consequence of the grant of consent to apply for an exploration licence, as well as the grant of the licence itself, is to benefit the recipient of the consent or the holder of the exploration licence. In Iannella v French (1968) 119 CLR 84 at 95, Barwick CJ said: "Further, the word intention itself obscures a difficulty. Thus it is said on some occasions to be satisfied by mere volition to do the specific act in question. But in truth, in my opinion, the word contains in its connotation elements of purpose. It is not merely that the mind goes with the act but that the mind intends by the act to achieve something."
4. In Stapleton v The Queen (1952) 86 CLR 358, the High Court (Dixon CJ, Webb and Kitto JJ) said: "The introduction of the maxim or statement that a man is presumed to intend the reasonable consequences of his act is seldom helpful and always dangerous. For it either does no more than state a self-evident proposition of fact or it produces an illegitimate transfer of the burden of proof of a real issue of intent to the person denying the allegation."
5. Secondly, the use of the words "sole intention" creates an additional difficulty because the expression tends implies a dichotomy which is, in my view, a false one. This question is addressed below by reference to the decision of the England and Wales Court of Appeal (Criminal Division) in R v Speechley [2005] 2. Cr. App. R. (S.) 15.
6. Thirdly, in so far as it would require proof of knowledge, it would import into the element an inapposite mental state. It is not an element of the offence that the accused knew that the decision was not in the interests of the State. A public officer may believe, or even know, that it is in the interests of the State to grant a licence to a relative but, if the motivation for granting the licence was to benefit the relative, the public officer has misconducted himself or herself.
7. For these reasons I consider it to be clearer in the circumstances of the present case to express the requisite mental element for the accused Macdonald in terms of motivation.
8. Applying these principles to the present case, the question whether the accused Macdonald believed that it was in the public interest to grant consent to Doyles Creek Mining Pty Ltd under s 13(4) or to grant the exploration licence to it under s 22 of the Mining Act, while relevant, is not determinative. He may have believed the giving of consent (or the grant of the exploration licence) to have been in the public interest, but if his motivation in giving consent (or granting the exploration licence) was to benefit Mr Maitland and Doyles Creek Mining Pty Ltd, the element of misconduct has been made out. Of course, whenever a Minister gives consent to an applicant to apply for an exploration licence, the Minister confers a benefit on the applicant. But as long as the Minister is motivated to grant the consent because he or she believes it to be in the public interest to do so, there is no misconduct even though a consequence of the grant will be to benefit the applicant.
9. In order to prove the accused Macdonald's guilt, the Crown must exclude the reasonable possibility that the accused Macdonald was motivated to grant consent for a proper purpose; for example, because he was motivated by the fact that he genuinely believed that giving consent to apply for an exploration licence to Doyles Creek Mining Pty Ltd with the conditions attached regarding the training mine was in the public interest, although he knew that it would incidentally benefit the accused Maitland and Doyles Creek Mining Pty Ltd: see, in a different context, Porter v Magill [2002] 2 AC 357 at [144] per Lord Scott of Foscote. For this reason, I do not accept the Crown's submission that it would be sufficient for it to prove that the accused Macdonald was substantially motivated by the desire to confer a benefit on the accused Maitland and Doyles Creek Mining Pty Ltd (which became a. of element 4). In my view, the Crown must also prove, as part of the element regarding motivation, the negative: namely, that the accused Macdonald was not motivated to any significant degree by the object of furthering the interests of the State of New South Wales.

R v Speechley and the requirement of substantial motivation

1. The Crown referred me to the case of R v Speechley. Although the facts are substantially different, the Court of Appeal's consideration of the mental element required for the offence of wilful misconduct in public office and the question of so-called "mixed motives" is of assistance. R v Speechley concerned a councillor who owned land in Crowland. He was elected to the Crowland Council and became its Leader. He registered his interest in the land but not in such a way as to enable anyone inspecting the register to identify the land in which he was interested. He believed that a particular road, the A1073, ought be realigned because of the number of accidents. It became his "pet project". The particulars of the offence alleged that the appellant misconducted himself in his public office of Leader of the City Council in that: "He sought to influence the route to be taken by the A1073 road improvement scheme in the area of Crowland with a view to gaining a personal advantage thereby, namely the potential increase in value of a field owned by him at Barbers Drove South, Crowland."
2. The appellant challenged the trial judge's formulation of intention. The Court of Appeal recorded, at [40], that the trial judge relevantly told the jury that it had to be satisfied: "That in influencing the route, the driving force in his mind and his motivation was dishonest." [Emphasis added.]
3. The Court of Appeal, at [40], set out the following extract from the summing up: ".... if you found -- and it is entirely a matter for you -- that in early 2000 he not only thought that there was potentially something in it for him in shifting the line -- in other words personal financial gain -- but that by moving the line it would, for example, help the inhabitants of Barbers Drove and address the problem of the trees -- two of the things he says he was concerned about -- then what would be the position? He would have two motives for influencing the line, one honest and the other dishonest. As I have said, and I repeat, if you find he was, or might have been acting solely -- I stress 'solely' -- for perfectly proper motives, namely acting as the local County Councillor for the benefit of the community, as he says, then there can be no dishonesty, no misconduct, and you will acquit him. However, if he had, so to speak, these dual motives, what is your approach? I said a moment ago that you cannot, and must not, convict unless each of the six things were proved so that you are sure. That remains the case. Even if you were to conclude that Mr Speechley had a genuine and honest motive or motives as well as the dishonest one, I repeat, you can only convict providing you are sure that in influencing the route, the driving force -- that is the key phrase here, 'the driving force' -- in his mind and his motivation was the dishonest one. If, as I say, you are sure of that, you will be entitled to convict. Anything less than sure, you acquit."
4. The appellant submitted that the trial judge ought to have given the jury more assistance on the question of "mixed motives" and, in particular, that his Honour ought to have told the jury that it was not enough to show that the appellant knew "by a side wind" that he was going to gain some personal benefit: R v Speechley at [41]. This formulation was taken from R v Llewellyn-Jones (1967) 51 Cr. App. R. 4, which was a decision about the particulars on the indictment.
5. Lord Justice Kennedy, who gave the judgment of the Court, accepted the respondent Crown's argument that to add a passage about the "side wind" would have created confusion. The Court confirmed that motivation was the relevant factor and said at [44]: "If dishonesty was the driving force in the appellant's mind, and his motivation was dishonest, he cannot have been someone honestly seeking a legitimate goal but knowing that if he succeeded he was going to get some personal benefit by a side wind."
6. The Court in R v Speechley added, obiter, that the trial judge had gone further than required in favour of the defence, since it was not necessary that the improper motivation be "the driving force", and said at [45]: ". . . it would have been sufficient to say that at some relevant time when attempting to influence the route his motivation was dishonest in that he was motivated to a significant degree by considerations of personal advantage. What amounts to a significant degree is something that could properly be left to the good sense of the jury."
7. I have incorporated what was said in R v Speechley into the element regarding motivation (which became a. in element 4) to take account of the need for the Crown to prove, not that the improper motivation was the sole one, but that it was a substantial one. In so doing, I have rejected the formulation proposed by the accused, which was largely based on the wording of the direction given by Beech-Jones J in R v Obeid. My reasons for including b. in element 4 have already been addressed above.

The relevance of R v Obeid

1. In order to explain why I consider the formulation in R v Obeid to be inapposite in the present case, it is necessary to consider the indictment presented against Mr Obeid. Mr Obeid was a Member of Parliament who was not, at the relevant time, a Minister. He was charged (and convicted) of wilful misconduct in public office for making representations to Mr Dunn, the Deputy Chief Executive Officer of the Maritime Authority. The indictment presented on 6 June 2016 charged the accused Obeid as follows: "Between 1 August 2007 and 30 November 2007 in Sydney in the State of New South Wales, then holding public office as a Member of the Legislative Council of New South Wales did in the course of or connected to his public office wilfully misconduct himself by making representations to Stephen Paul Dunn, the Deputy Chief Executive Officer and General Manager, Maritime Property Division of the Maritime Authority of New South Wales, with the intention of securing an outcome from the said Maritime Authority favourable to Circular Quay Restaurants Pty Ltd in respect of its tenancies of properties at Circular Quay knowing at the time he made the representations that he had a commercial and/or beneficial and/or family and/or personal interest in the said tenancies which he did not disclose to Stephen Paul Dunn."
2. In R v Obeid, Beech-Jones J directed the jury that the Crown had to prove that, between 1 August 2007 and 30 November 2007: "(1) The accused was a public official; (2) The accused acted in the course of or connected to his public office; (3) In so acting the accused wilfully misconducted himself; To prove this element the Crown must prove beyond reasonable doubt that: (a) The accused engaged in the conduct identified in the indictment that is he made representations to Stephen Paul Dunn with the intention of securing an outcome from the Maritime Authority favourable to Circular Quay Restaurants Pty Ltd in respect of its tenancies of properties at Circular Quay knowing at the time he made the representations that he had a commercial and/or beneficial and/or family and/or personal interest in the tenancies which he did not disclose to Stephen Paul Dunn (b) Such conduct as you are satisfied the accused engaged was misconduct, that is a breach of the duties and obligations of his office as a member of the Legislative Council; and (c) That such misconduct you find the accused engaged in was 'wilful' that is the accused knew that he was obliged not to use his position in that way or he knew that it was possible that he was obliged not to use his position in that way but chose to do so anyway; and (4) The accused's conduct was misconduct that was serious and merits criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects."
3. As is evident from the prefatory words in element 3(a) and from the indictment, element 3(a) was extracted verbatim from the indictment, which expressly alleged a particular intention. In the summing up, Beech-Jones J said: "Critically are you satisfied beyond reasonable doubt that the conduct of the accused in making the representations to Mr Dunn was undertaken with the intention of benefitting Circular Quay Restaurants, that is for the purpose of promoting Mr Obeid's pecuniary interests or those of his family or those close to him and that it was not undertaken because he in any way genuinely believed it was in the public interests or the interests of the electorate or even part of the electorate?"
4. It is apparent from the following passage in the sentencing judgment (R v Obeid (No. 12) [2016] NSWSC 1815) that the direction Beech-Jones J gave in the summing up, extracted above, was given because of the way the indictment was worded: "[47] At this point, it is important to note a specific direction given to the jury about this part of the indictment; ie that part that refers to Mr Obeid having an "intention of securing an outcome" favourable to CQR. At the trial, Mr Tripodi, gave evidence that he had served on a parliamentary committee with Mr Obeid from 1996 to 1998. Mr Tripodi said that he recalled that Mr Obeid had instanced the Circular Quay lessees as examples of government tenants who had been mistreated and referred to other government departments "where they did have a right of renewal and he felt that was good policy". There was also an agreed fact that Mr Obeid and Mr Tripodi had discussions on that topic after Mr Tripodi became Minister for Ports and Waterways. [48] Thus, on behalf of Mr Obeid it was submitted to the jury that he had a long held view about unfair government treatment of tenants, including those at Circular Quay. It was also submitted that that matter, and the supposedly innocuous nature of his intervention, negated any suggestion that Mr Obeid intervened to promote his or his family's financial interests and instead suggested he intervened because he believed the Maritime Authority was mistreating the Circular Quay tenants. A submission to similar effect was made on behalf of Mr Obeid at the sentencing hearing. [49] This aspect of Mr Obeid's case raised a possibility that the jury might conclude that, or be left with a doubt about whether, Mr Obeid made representations to Mr Dunn having both an intention to secure a favourable outcome for CQR and a belief that it was part of his duty to his constituents to point out unfair treatment by the Maritime Authority. Over the objection of the Crown, I directed the jury that it had to be satisfied beyond reasonable doubt that the conduct of Mr Obeid "in making the representations to Mr Dunn was undertaken with the intention of benefitting [CQR], that is for the purpose of promoting Mr Obeid's pecuniary interests or those of his family or those close to him and that it was not undertaken because he in any way genuinely believed it was in the public interest or the interests of the electorate or even part of the electorate". I directed the jury that if it were not so satisfied then Mr Obeid had to be acquitted. [50] It follows from its verdict that the jury rejected the reasonable possibility that Mr Obeid was even partly motivated to speak to Mr Dunn by a genuine belief that doing so was in the public interest, the interests of the electorate or even the interests of part of the electorate. Instead, the jury was satisfied beyond reasonable doubt that Mr Obeid was solely motivated to benefit CQR and through it himself or his family. That aspect of the jury's finding is especially significant to an assessment of Mr Obeid's criminality." [Footnotes omitted.]
5. In a subsequent bail judgment (R v Obeid (No. 13) [2016] NSWSC 1840) Beech-Jones J explained that the passage from the summing up set out above arose from the wording of the indictment, which required the Crown to prove the matters alleged: [29]. His Honour said at [30]: "As explained in R v Obeid No 12, the jury's verdict necessarily means that it was satisfied of that and, in particular, that Mr Obeid's sole motivation in speaking with Mr Dunn was to benefit CQR and through it himself or his family. That direction in the context of the trial was potentially overly favourably to Mr Obeid. Be that as it may, there is no inconsistency between that direction and the direction given in respect of his duty because the former concerned a matter of fact alleged in the indictment."
6. The present case against the accused Macdonald is relevantly distinguishable. Unlike the indictment in R v Obeid, the indictment presented against the accused Macdonald did not allege any particular mental state. Because of this significant difference between the present charges against the accused Macdonald and the charge in R v Obeid, I am satisfied that it would not correctly reflect the law to articulate the element of motivation in the same way as was done in R v Obeid, as contended for on behalf of both accused in the present case.

Conclusion regarding the mental element for misconduct (element 4 of counts 1 and 3)

1. For the reasons given above, I consider that the mental element for misconduct (which became the fourth element of the offence) ought be expressed as follows: "In granting consent the accused misconducted himself. To prove this element the Crown must prove beyond reasonable doubt, that in granting such consent: a. the accused was substantially motivated by the desire to confer a benefit on John Maitland and Doyles Creek Mining Pty Ltd; and b. the accused was not motivated to any significant degree by the object of furthering the interests of the State of New South Wales."

The effect of the Crown's opening on the formulation of the elements

1. It was further argued on behalf of both accused that the Crown had limited its case against the accused Macdonald in its opening, such that it would be unfair for the Crown to be required to prove only the element as set out above. Both accused contended that, in light of the Crown's opening, the Crown was obliged to prove that the accused's "sole intention" was to confer a benefit on Mr Maitland "knowing it was not in the interests of the State"; and that the accused Macdonald "did not have a genuine belief that the grant was in any way in the interests of the State of New South Wales".

The distinction between motive and motivation

1. Before turning to the way in which the Crown opened its case, I note the important distinction in the present case between motive on the one hand and motivation on the other. For the reasons given above, the motivation of the accused Macdonald is an element of the offence, which therefore needs to be proved beyond reasonable doubt. Motive is a different thing. For example, in the present case, the Crown suggested various possible motives the accused Macdonald's wanting to benefit Mr Maitland, including: friendship; repayment of a political debt for helping him obtain pre-selection for the March 2007 election; expectation of benefit to his daughter, Sasha; and maintenance of a strategic relationship that had proved to be of mutual benefit in the past and could be expected to help the accused Macdonald after he left Parliament.
2. It is not essential that the Crown establish any particular motive. Evidence tending to establish a motive of that sort is no more than one of many strands of evidence which might contribute to proof of a circumstantial case: Plomp v The Queen (1963) 110 CLR 234 at 242-243 per Dixon CJ (Kitto and Taylor JJ agreeing) and 247-250 per Menzies J; Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317 at [275] (Bathurst CJ, Simpson and Adamson JJ). Thus, to prove that, in granting consent, the accused Macdonald was substantially motivated to benefit Mr Maitland and Doyles Creek Mining Pty Ltd, the Crown does not have to prove why the accused Macdonald was substantially motivated to confer a benefit on Mr Maitland and Doyles Creek Mining Pty Ltd. It just has to prove that, at the relevant time, Mr Macdonald was substantially motivated to confer a benefit on Mr Maitland and Doyles Creek Mining Pty Ltd.

The Crown's opening

1. In its opening, the Crown suggested various motives for the accused Macdonald wanting to benefit the accused Maitland and Doyles Creek Mining Pty Ltd by giving consent and granting the exploration licence. At tr. 30 the Crown referred to a possible motive for the accused Macdonald conferring a benefit on the accused Maitland in the following terms: ". . . pursuant to a motive of friendship with Mr Maitland and out of a desire to maintain and secure that friendship, in circumstances where Mr Macdonald knew that he was leaving parliament in the foreseeable future."
2. The Crown continued, at tr. 31, to open on the questions of motivation and motive as follows: "Mr Macdonald was aware, the Crown says, Mr Maitland stood to gain a personal benefit by his actions in DCM to apply for the exploration licence, and initial exploration licence for the company. As chairman of a company with an exploration licence and the prospect of a mine development, Mr Macdonald knew that Mr Maitland would be in a significantly better position. Now again the Crown says that Mr Macdonald was motivated to grant the consent of 21 August 2008 and to issue the exploration licence, and thus confer the selected benefit on DCM. Because he and Mr Maitland were friends, and political associates. In this regard Mr Macdonald and Mr Maitland had been from the same faction of the Labor Party. And Mr Macdonald's preselections for the 2007 New South Wales elections had been supported by Mr Maitland. The Crown says further that Mr Macdonald was also motivated to confer this benefit on Mr Maitland because his political career was due to come to an end in the near future, and Mr Maitland had influence and significant connections in the mining industry, and in particular he was the chairman of DCM. Mr Macdonald's cultivation of the friendship and loyalty to Mr Maitland by granting a direct allocation of the exploration licence to DCM was calculated to enhance the prospect that upon Mr Macdonald's departure from parliament, Mr Maitland and DCM might be useful to him. And there was nothing, the Crown says, apart from this relationship between them to distinguish the DCM application from many other companies which might have been interested in acquiring the exploration licence over the Doyles Creek area on the same sorts of conditions given to DCM. That is the training mine, or training fund, and to which Mr Macdonald did not extend that opportunity."
3. The Crown's opening of its case against the accused Maitland referred to the requirement of proof of knowledge of the essential facts that made the accused Macdonald's conduct criminal in the following terms at tr. 33-34: "The Crown says Mr Maitland had knowledge of the essential facts performed Mr Macdonald which made Mr Macdonald's conduct criminal, and Mr Maitland intentionally encouraged or assisted Mr Macdonald to perform the acts which led to the commission of the crime alleged against Mr Macdonald. The crime of misconduct in public office. The Crown says Mr Maitland must have known the only reason justifying the exercise of the former minister's discretion in favour of DCM was his long-standing relationship with Mr Macdonald. The Crown alleges that Mr Maitland knew enough about mining, and the Doyles Creek proposal, to understand that the very small proportion of coal which was to be extracted under training conditions was something any commercial mine operator would readily agree to in order to obtain an exploration licence. He, therefore, knew, that is Mr Maitland knew, the only considerations against a competitive tender process, and in favour of the direct allocation of DCM, was his friendship with Mr Macdonald, and his position of chairman of that company. The Crown alleges Mr Maitland also knew that if a competitive tender process was adopted, a large additional financial contribution would likely be bid by other interested parties. . . . For the purpose of the Crown opening, the Crown says, keeping in mind the knowledge which the Crown says Mr Maitland must have had, was that Mr Macdonald's decision to grant DCM consent to apply for exploration licence was exercised improperly for reasons of impartiality towards Mr Maitland and the company which he was a director and chairman of. Once possessed with that knowledge, it is the Crown case Mr Maitland committed a series of acts which he intended would serve the purpose of encouraging Mr Macdonald to commit the acts specified in Count 1 and in Count 2 of the indictment."

Submissions on behalf of both accused on the effect of the opening on the elements of the offences

1. It was argued on behalf of both accused that, by reason of the way the Crown had opened its case, the Crown should have to prove, as an element of the offence, that the accused Macdonald's sole motivation in granting the consent and the exploration licence was to benefit the accused Maitland and Doyles Creek Mining Pty Ltd, and that, accordingly, the elements should be drafted to reflect that requirement.
2. It was further argued by Mr Jordan, on behalf of the accused Maitland, that the Crown had opened the Crown case on the footing that the accused Maitland must have known that the only reason the accused Macdonald had for giving consent to Doyles Creek Mining Pty Ltd to apply for an exploration licence was his long-standing friendship or political or professional relationship with the accused Maitland. I note for completeness that this argument also formed the basis of a no case to answer submission made by the accused Maitland which is the subject of a separate judgment: R v Maitland [2017] NSWSC 167. Mr Jordan submitted that the Crown's opening with respect to the accused Maitland's knowledge should have the following consequence: that the Crown was required to prove (as element 1 in count 2, and, necessarily, element 4 in count 1) that the accused Macdonald's sole motivation in granting consent was the desire to benefit the accused Maitland and Doyles Creek Mining Pty Ltd.

Consideration

1. I do not accept the interpretation of the Crown opening contended for on behalf of the two accused. The passages referred to, and set out above, from the opening ought, in my view, to be understood as the Crown's suggesting possible motives for the accused Macdonald's alleged motivation to benefit the accused Maitland.
2. Further, in so far as the Crown alleged that the accused Maitland knew that the only reason the accused Macdonald would not adopt a competitive tender process was his relationship, whether of friendship, strategic alliance or otherwise, with the accused Macdonald, I understood the Crown to be referring to a process of reasoning by which the jury might infer that the accused Maitland knew that Mr Macdonald had wilfully misconducted himself.
3. Accordingly, I am not persuaded that the articulation of the elements of either the offence of wilful misconduct in public office; or for accessory before the fact to that offence, ought be constrained, or modified, in the way for which Mr Johnston and Mr Jordan contended.

Whether an element ought be included that the charged conduct was in breach of the duties and obligations of the accused's public office

1. The following element was included in my original draft: "The accused's conduct in granting the consent was misconduct that was a breach of the duties and obligations of the accused's office as a Minister exercising power under the Mining Act."
2. A similarly worded element was included in the draft originally proposed by Mr Johnston, which was supported by Mr Jordan. The inclusion of this element accorded with the list of elements articulated by the Victorian Court of Appeal in R v Quach, which were approved by the Court of Criminal Appeal (Bathurst CJ, Beazley P and Leeming JA) in Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309 at [133].
3. However, in the course of argument on 27 February 2017, Mr Johnston submitted that this element was otiose and, potentially, duplicitous because it was difficult to see what, if anything, it added to the element regarding motivation. Mr Jordan supported this submission. The Crown did not speak against its removal from the list of elements, although it contended that directions would need to be given about the duties and obligations of a Minister of the Crown in the context of the powers under the Mining Act.
4. Although the concessions made by the parties that this element, as originally drafted (extracted above), need not be included relieves me of the obligation to give reasons for deleting that element, I propose to explain why I consider it to be unnecessary in the present case to express the matter in terms of duty and breach.
5. The present case is to be distinguished from that of Mr Obeid, who was charged with making representations to a public official with a particular intention and R v Quach, in which a police officer was alleged to have wrongfully used his office to procure sexual penetration of a woman. A parliamentarian is entitled to make representations to public authorities on behalf of the public, or a sector of the public. The nature and extent of the duties and obligations of a Member of Parliament when making representations therefore needed to be articulated and proved, together with the alleged breach, as an element of the offence.
6. The wilful misconduct alleged against the accused Macdonald belongs to a different category: the nature of the office of Minister and the limits on the motivations for which statutory powers such as those under the Mining Act may be exercised are so well established as not to require articulation in terms of duties and obligations and their breach. The powers under ss 13(4) and 22 of the Mining Act are conferred on the Minister on the basis that they are to be exercised in the public interest and not for the personal advantage of the Minister or for the benefit of his or her friends, family or associates. It would inevitably be a breach of the duties and obligations of a Minister exercising power under ss 13(4) and 22 of the Mining Act for the Minister to be motivated to a significant degree by the desire to confer a benefit on a particular individual or company and not to be motivated to a significant degree by the furtherance of the interests of the State of New South Wales.
7. Accordingly, if the jury found the element regarding motivation (which became 4a. and 4b.) proved to the requisite standard, it must necessarily be satisfied of the draft element expressed in terms of duties and breach. I am persuaded that to include the additional element would have the potential to confuse the jury since it would imply that there might be other unarticulated matters of breach of duties or obligations which constitute an element of the offence.
8. The proposition that it is unnecessary to refer to duties and obligations separately when the duties are so well-established as not to require additional articulation (as in the present case) as opposed to other cases (such as R v Obeid) finds support in the authorities reviewed in Official Misconduct. In State v Furey 318 A.2d 783 (NJ 1974) the Superior Court of New Jersey (Appellate Division) set out and applied the following principles: 1. "Misconduct in office" means any act or omission in breach of a duty of public concern by one who has accepted public office; or the violation of a prescribed duty to the public for which the offender may be indicted at common law. 2. Subject to (3) below, an indictment for misconduct in office must allege a prescribed duty and the facts constituting the breach. 3. Where the prescribed duties of an officer arise out of the very nature of the office, the source of the duty need not be alleged since judicial notice may be taken of the duties of an office which arise out of the very nature of the office.
9. For these reasons, I was satisfied that it would not be appropriate to include an element requiring the Crown to prove separately, in respect of count 1, that the accused Macdonald's conduct in granting the consent was misconduct that was a breach of the duties and obligations of the accused Macdonald's office as a Minister exercising power under the Mining Act.

The element of wilfulness (element 5 in counts 1 and 3)

1. It was argued on behalf of both accused that the element of wilfulness could be satisfied only if the Crown proved that the accused Macdonald knew that he was obliged not to use his position in that way. The Crown contended that it could satisfy the element of wilfulness by proving either: that the accused Macdonald knew that he was obliged not to use his position in that way; or that he knew that it was possible that he was obliged not to use his position in that way but chose to do so anyway.
2. The sufficiency of recklessness in this context was considered by Beech-Jones J in R v Obeid (No. 11). After reviewing the authorities, his Honour concluded at [23]: "[23] It is firmly established in the United Kingdom and Hong Kong that the common law offence of wilful misconduct in public office is made out in circumstances where the accused is reckless as to whether their act or omission was in breach of the duties and obligations attaching to their office. The judgments which establish that proposition were the basis for the formulation of the elements of the office in Quach and the reference to "wilful misconduct" in Quach at [46] should be read consistently with those judgments. Such a conclusion is supported by those decisions that construe the phrase "wilfully" in a statutory context as requiring some advertence by the accused to the illegality of their conduct. Otherwise there is no reason in policy or principle why the offence should not be made out where the public officer is reckless as to their breach of duty."
3. I respectfully follow his Honour's conclusion that recklessness is sufficient to establish the element of wilfulness. Accordingly, the element of wilfulness was expressed as follows (element 5 in counts 1 and 3 in the version provided to the jury which is set out in full in Appendix 1 to these reasons): "The accused's misconduct was wilful. To prove this element the Crown must prove beyond reasonable doubt that the accused knew either that: a. he was obliged not to use his position in that way; or b. it was possible that he was obliged not to use his position in that way but chose to do so anyway."

The element that the conduct be without reasonable cause or justification (element 6 in counts 1 and 3)

1. It was proposed on behalf of both accused, and accepted by the Crown, that the absence of reasonable cause or justification ought be included as a separate element of the charges against the accused Macdonald. This element was included in the list of elements in R v Quach at [8] (taken from Sin Kam Wah & Lam Cheun Ip v HKSAR [2005] 2 HKLRD 375 at 391 per Mason NPJ), which was approved by the Court of Criminal Appeal in Obeid v R. I note that it was not included in the list of elements for the offence with which Obeid was charged in R v Obeid, the trial before Beech-Jones J referred to above. I assume that the issue of reasonable cause or justification was not a live one, having regard to the circumstances of that case.
2. I raised with the parties the concern that the addition of this element in the present case was unnecessary, in that it did not add anything to the element about motivation (which was, ultimately, element 4). However both accused contended that it was a live issue in that it was part of the accused Macdonald's case that he granted consent and the exploration licence because the Department had advised him that granting consent for a direct allocation was an available option and that the Department had recommended that he sign the documentation for the exploration licence. The Crown did not speak against the inclusion of the element that the conduct be without reasonable cause or justification. In these circumstances, I included as a separate element (which became element 6 of counts 1 and 3) that the conduct (the giving of consent or granting of the exploration licence) be without reasonable cause or justification.

The elements of the offence of being an accessory before the fact to the principal offence of wilful misconduct in public office

Whether Mr Macdonald committed the principal offence (element 1 in counts 2 and 4)

1. There were two issues in relation to element 1 of counts 2 and 4. These issues were discussed by reference to count 2, although they were also applicable to count 4. First, Mr Jordan contended that no reference to count 1 ought be made in the elements of count 2, since the trials were separate, although they were being heard together. He submitted that count 2 was self-contained and the first element ought be worded to refer to the "principal offence" rather than to count 1. I accepted Mr Jordan's submission (which was not opposed by the Crown). Second, Mr Jordan also submitted that the individual components of each element ought be set out in full to avoid the jury's having to refer back to the elements for count 1 when considering count 2. I also accepted this submission (which was also not opposed by the Crown). Element 1 (of counts 2 and 4) in Appendix 2 reflects my acceptance of Mr Jordan's submissions.

The separation of the intention and knowledge required to be proved against the accused Maitland into two elements

1. The Crown initially proposed that the only additional element required to be proved in respect of count 2, apart from proof of the principal offence should be worded as follows (MFI 16): "(2) In respect of Count 1 on the indictment, between 17 January 2007 and 22 August 2008: (a) Mr Maitland had knowledge of all the essential facts performed by Mr Macdonald which made Mr Macdonald's conduct criminal; and (b) Mr Maitland intentionally encouraged or assisted Mr Macdonald to perform the acts which led to the commission of the crime of misconduct in public office."
2. The reference to count 1 in the elements of count 2 has been addressed above. Mr Jordan submitted further that it would be more helpful for the jury if the matters of intention and knowledge were set out in full rather than incorporated in a summary way as contended for by the Crown. I accepted this submission. In my view, the formulation proposed by the Crown tends to beg the question of what the "essential facts" were.
3. For these reasons, intention and knowledge are dealt with separately as elements 3 (for intention) and 4 (for knowledge) as set out in Appendix 2 to these reasons.

The knowledge of the accused Maitland (element 4 in counts 2 and 4)

1. An issue arose as to what the Crown had to prove the accused Maitland knew of the chance that the accused Macdonald would grant the consent (in relation to count 2) or grant the exploration licence (in relation to count 4) at the time the accused Maitland encouraged and assisted the accused Macdonald. The first version I proposed (in a draft marked MFI 64) was as follows: "4) That, at the time the accused encouraged and assisted Mr Macdonald, he knew that: . . . b. Mr Macdonald had the power to give consent to Doyles Creek Mining Pty Ltd to apply for an exploration licence under the Mining Act 1992 (NSW) and that there was a real possibility that he would grant such consent."
2. On further reflection, I considered that the word "prospect" was preferable to "possibility" since it did not have the connotations of a chance less than 50% and did not invite comparison with "probability". I note that Mr Jordan's preference was for "prospect" and neither the Crown nor Mr Johnston wished to be heard against the word "prospect".

The relationship between element 7 in counts 1 and 3 (whether the accused Macdonald's misconduct merited criminal punishment) and element 5 in counts 2 and 4 (the mental state required of an accessory before the fact)

No mental state required to be proved in respect of the principal offender for the element of misconduct meriting criminal punishment

1. It was common ground that element 7 in counts 1 and 3 required no mental element to be established by the Crown. It was also accepted that it ought be expressed in the following terms: "The accused's conduct was misconduct that was serious and merits criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects."

The mental state required for the alleged accessory before the fact

1. The issue arose as to whether a mental element was required for element 5 of counts 2 and 4, in light of the acceptance that there was no mental element for the corresponding element, 7, for the alleged principal offender. It was accepted that the approach laid down in R v Chapman [2015] 2 Cr. App. R. 10 ought be followed. Lord Thomas of Cwmgiedd CJ, who delivered the judgment of the England and Wales Court of Appeal (Criminal Division) in R v Chapman, addressed, in the context of the offence of wilful misconduct in public office, the effect of the requirement that an alleged aider and abettor know the essential matters that constituted the principal offence. Lord Thomas said at [55] that the jury's assessment of whether the principal offender's misconduct was so serious as to merit criminal punishment had to be made solely by reference to what the aider and abettor actually knew. The element was therefore formulated to include that restriction to make it clear that the jury was prohibited from taking into account, in their assessment of whether the misconduct was so serious as to merit criminal punishment, any matter unless they were satisfied that the aider and abetter was aware of it.
2. This approach was followed with approval by the Court of Appeal in France v R [2016] EWCA Crim 1588 at [8]-[10] by Lady Justice Hallett who delivered the reasons of the Court (which also comprised King and Dove JJ).
3. For these reasons, I directed the jury that element 5 in counts 2 and 4 required proof of the following: "That the facts of which the accused was aware were sufficient to result in Mr Macdonald's misconduct being serious and meriting criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects."

CHARGE 1 In order to prove charge 1 against the accused, the Crown must prove beyond reasonable doubt that on or about 21 August 2008:

1. The accused was a public official. A Member of the Legislative Council of New South Wales is a public official. A Minister of the Government of New South Wales is a public official.
2. The accused granted consent to Doyles Creek Mining Pty Ltd to apply for an exploration licence under the Mining Act 1992 (NSW).
3. In granting consent the accused acted in the course of, or in connection with, his public office.
4. In granting consent the accused misconducted himself. To prove this element the Crown must prove beyond reasonable doubt, that in granting such consent: a. the accused was substantially motivated by the desire to confer a benefit on John Maitland and Doyles Creek Mining Pty Ltd; and b. the accused was not motivated to any significant degree by the object of furthering the interests of the State of New South Wales.
5. The accused's misconduct was wilful. To prove this element the Crown must prove beyond reasonable doubt that the accused knew either that: a. he was obliged not to use his position in that way; or b. it was possible that he was obliged not to use his position in that way but chose to do so anyway.
6. The accused granted such consent without reasonable cause or justification.
7. The accused's conduct was misconduct that was serious and merits criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects.

CHARGE 3 In order to prove charge 3 against the accused, the Crown must prove beyond reasonable doubt that on or about 15 December 2008:

1. The accused was a public official. A Member of the Legislative Council of New South Wales is a public official. A Minister of the Government of New South Wales is a public official.
2. The accused granted Exploration Licence No. 7270 under the Mining Act 1992 (NSW) (the Exploration Licence) to Doyles Creek Mining Pty Ltd.
3. In granting the Exploration Licence the accused acted in the course of, or in connection with, his public office.
4. In granting the Exploration Licence the accused misconducted himself. To prove this element the Crown must prove beyond reasonable doubt, that in granting the Exploration Licence: a. the accused was substantially motivated by the desire to confer a benefit on John Maitland and Doyles Creek Mining Pty Ltd; and b. the accused was not motivated to any significant degree by the object of furthering the interests of the State of New South Wales.
5. The accused's misconduct was wilful. To prove this element the Crown must prove beyond reasonable doubt that the accused knew either that: a. he was obliged not to use his position in that way; or b. it was possible that he was obliged not to use his position in that way but chose to do so anyway.
6. The accused granted the Exploration Licence without reasonable cause or justification.
7. The accused's conduct was misconduct that was serious and merits criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects

CHARGE 2 In order to prove charge 2 against the accused, the Crown must prove beyond reasonable doubt:

1. That Mr Macdonald has committed the principal offence as alleged in count 2 (the principal offence). To prove this element, the Crown must prove: a. Mr Macdonald was a public official. A Member of the Legislative Council of New South Wales is a public official. A Minister of the Government of New South Wales is a public official. b. Mr Macdonald granted consent to Doyles Creek Mining Pty Ltd to apply for an exploration licence under the Mining Act 1992 (NSW). c. In granting consent Mr Macdonald acted in the course of, or in connection with, his public office. d. In granting consent Mr Macdonald misconducted himself. To prove this element the Crown must prove beyond reasonable doubt, that in granting such consent: i. Mr Macdonald was substantially motivated by the desire to confer a benefit on the accused and Doyles Creek Mining Pty Ltd; and ii. Mr Macdonald was not motivated to any significant degree by the object of furthering the interests of the State of New South Wales. e. Mr Macdonald's misconduct was wilful. To prove this element the Crown must prove beyond reasonable doubt that Mr Macdonald knew either that: i. he was obliged not to use his position in that way; or ii. it was possible that he was obliged not to use his position in that way but chose to do so anyway. f. Mr Macdonald granted such consent without reasonable cause or justification. g. Mr Macdonald's conduct was misconduct that was serious and merits criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects.
2. That between 17 January 2007 and 22 August 2008 the accused intentionally assisted and encouraged Mr Macdonald to commit the principal offence.
3. That the accused intended that Mr Macdonald, in connection with his public office, would grant consent to Doyles Creek Mining Pty Ltd to apply for an exploration licence while Mr Macdonald: a. was substantially motivated by the desire to confer a benefit on the accused and Doyles Creek Mining Pty Ltd; b. was not motivated to any significant degree by the object of furthering the interests of the State of New South Wales; c. did not have reasonable cause or justification; and d. knew either that he was obliged not to use his position in that way; or that it was possible that he was obliged not to use his position in that way but chose to do so anyway.
4. That, at the time the accused encouraged and assisted Mr Macdonald, the accused knew that: a. Mr Macdonald was a public official. b. Mr Macdonald had the power to give consent to Doyles Creek Mining Pty Ltd to apply for an exploration licence under the Mining Act 1992 (NSW) and that there was a real prospect that he would grant such consent. c. If Mr Macdonald granted consent to Doyles Creek Mining Pty Ltd to apply for an exploration licence under the Mining Act 1992 (NSW) he would be acting in the course of, or in connection with, his public office. d. If Mr Macdonald granted consent to Doyles Creek Mining Pty Ltd to apply for an exploration licence under the Mining Act 1992 (NSW), he would be misconducting himself because: i. Mr Macdonald was substantially motivated by the desire to confer a benefit on the accused and Doyles Creek Mining Pty Ltd; and ii. Mr Macdonald was not motivated to any significant degree by the object of furthering the interests of the State of New South Wales. e. If Mr Macdonald granted consent to Doyles Creek Mining Pty Ltd to apply for an exploration licence under the Mining Act 1992 (NSW) his misconduct would be wilful because Mr Macdonald knew either that: i. he was obliged not to use his position in that way; or ii. it was possible that he was obliged not to use his position in that way but chose to do so anyway. f. If Mr Macdonald granted such consent it would be without reasonable cause or justification.
5. That the facts of which the accused was aware were sufficient to result in Mr Macdonald's misconduct being serious and meriting criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects.

CHARGE 4 In order to prove charge 4 against the accused, the Crown must prove beyond reasonable doubt:

1. That Mr Macdonald has committed the principal offence as alleged in count 4 (the principal offence). To prove this element, the Crown must prove: a. Mr Macdonald was a public official. A Member of the Legislative Council of New South Wales is a public official. A Minister of the Government of New South Wales is a public official. b. Mr Macdonald granted Exploration Licence No. 7270 (the Exploration Licence) under the Mining Act 1992 (NSW) to Doyles Creek Mining Pty Ltd. c. In granting the Exploration Licence Mr Macdonald acted in the course of, or in connection with, his public office. d. In granting the Exploration Licence Mr Macdonald misconducted himself. To prove this element the Crown must prove beyond reasonable doubt, that in granting the Exploration Licence: i. Mr Macdonald was substantially motivated by the desire to confer a benefit on the accused and Doyles Creek Mining Pty Ltd; and ii. Mr Macdonald was not motivated to any significant degree by the object of furthering the interests of the State of New South Wales. e. Mr Macdonald's misconduct was wilful. To prove this element the Crown must prove beyond reasonable doubt that Mr Macdonald knew either that: i. he was obliged not to use his position in that way; or ii. it was possible that he was obliged not to use his position in that way but chose to do so anyway. f. Mr Macdonald granted the Exploration Licence without reasonable cause or justification. g. Mr Macdonald's conduct was misconduct that was serious and merits criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects.
2. That between 21 August 2008 and 16 December 2008 the accused intentionally assisted and encouraged Mr Macdonald to commit the principal offence.
3. That the accused intended that Mr Macdonald, in connection with his public office, would grant the Exploration Licence to Doyles Creek Mining Pty Ltd while Mr Macdonald: a. was substantially motivated by the desire to confer a benefit on the accused and Doyles Creek Mining Pty Ltd; b. was not motivated to any significant degree by the object of furthering the interests of the State of New South Wales; c. did not have reasonable cause or justification; and d. knew either that he was obliged not to use his position in that way; or that it was possible that he was obliged not to use his position in that way but chose to do so anyway.
4. That, at the time the accused encouraged and assisted Mr Macdonald, the accused knew that: a. Mr Macdonald was a public official. b. Mr Macdonald had the power to grant an exploration licence to Doyles Creek Mining Pty Ltd under the Mining Act 1992 (NSW) and that there was a real prospect that he would grant such a licence. c. If Mr Macdonald granted an exploration licence to Doyles Creek Mining Pty Ltd under the Mining Act 1992 (NSW) he would be acting in the course of, or in connection with, his public office. d. If Mr Macdonald granted an exploration licence to Doyles Creek Mining Pty Ltd under the Mining Act 1992 (NSW), he would be misconducting himself because: i. Mr Macdonald was substantially motivated by the desire to confer a benefit on the accused and Doyles Creek Mining Pty Ltd; and ii. Mr Macdonald was not motivated to any significant degree by the object of furthering the interests of the State of New South Wales. e. If Mr Macdonald granted an exploration licence to Doyles Creek Mining Pty Ltd under the Mining Act 1992 (NSW) his misconduct would be wilful because Mr Macdonald knew either that: i. he was obliged not to use his position in that way; or ii. it was possible that he was obliged not to use his position in that way but chose to do so anyway. f. If Mr Macdonald granted the Exploration Licence it would be without reasonable cause or justification.
5. That the facts of which the accused was aware were sufficient to result in Mr Macdonald's misconduct being serious and meriting criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 April 2017