R v Macdonald; R v Maitland

Supreme Court of NSW|2022-10-17|Before: Dhanji J, Professor P

JUDGMENT

HIS HONOUR: Ian Michael Macdonald (Mr Macdonald) is on trial with respect to two counts of wilful misconduct in public office. The charges are in the following terms: "1. On or about 21 August 2008 in Sydney in the State of New South Wales, then holding public office as Minister for Mineral Resources did in the course of and connected to his public office wilfully misconduct himself by granting Doyles Creek Mining Pty Ltd consent to apply for an exploration licence under the Mining Act 1992, without reasonable cause or justification, where such misconduct is 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. … 3. On or about 15 December 2008 in Sydney in the State of New South Wales, then holding public office as Minister for Mineral Resources did in the course of and connected to his public office wilfully misconduct himself by granting to Doyles Creek Mining Pty Ltd Exploration Licence No. 7270 under the Mining Act 1992, without reasonable cause or justification, where such misconduct is 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."

Background

The present trial commenced before me on 7 September 2022. The trial is by judge alone, both accused having elected for such a trial which the Crown did not oppose. The trial is a retrial, both accused having been convicted by a jury in 2017. Both accused were successful in their appeals to the Court of Criminal Appeal against their convictions and a new trial was ordered: Maitland v R; Macdonald v R (2019) 99 NSWLR 376; [2019] NSWCCA 32 (CCA judgment). That history is, of course, not a matter relevant to my consideration of the case, other than as to any statement of the law provided by the Court of Criminal Appeal, which, to the extent it forms the basis of the Court's judgment, is, of course, binding on me.
At the time of the alleged offences Mr Macdonald was a member of the New South Wales Legislative Council and the Minister for Mineral Resources. His powers as Minister included the power, under the Mining Act 1992 (NSW), to grant consent to apply for an exploration licence and the power to grant such a licence. Mr Maitland was the chairman and a shareholder in a company called Doyles Creek Mining Pty Ltd (DCM).
The Crown alleges that in count 1, Mr Macdonald did misconduct himself in public office in granting consent under the Mining Act for DCM to apply for an exploration licence. With respect to count 3, the Crown case is Mr Macdonald misconducted himself in public office by granting an exploration licence to DCM. The Crown alleges that, in granting the consent and the exploration licence, Mr Macdonald acted with an improper motive, that of benefiting DCM and Mr Maitland. The Crown case against Mr Maitland is that he was complicit in Mr Macdonald's offences in that he assisted and encouraged Mr Macdonald to commit the principal offences with knowledge of the facts that made Mr Macdonald's acts criminal.

The elements

The Court of Criminal Appeal (at [67]) noted the elements of the offence were considered in Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309 ("Obeid v R") at [133] where the Court accepted the formulation of the elements by Sir Anthony Mason NPJ in Shum Kwok Sher v Hong Kong Special Administrative Region (2002) 5 HKCFAR 381 at [84] as modified by him in Sin Kam Wah v Hong Kong Special Administrative Region (2005) 8 HKCFAR 192 at [45]-[46]. (See also R v Quach (2010) 27 VR 310; [2010] VSCA 106 at [46]).
Mason NPJ in Sin Kam Wah set out the elements as follows (at [45]): "The offence is committed where: (1) a public official; (2) in the course of or in relation to his public office; (3) wilfully misconducts himself; by act or omission, for example, by wilfully neglecting or failing to perform his duty; (4) without reasonable excuse or justification; and (5) where such misconduct is serious, not trivial, 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 responsibilities."
Mason NPJ clarified the application of recklessness to element 3, stating (at [46]), "[t]he misconduct must be deliberate rather than accidental in the sense that the official either knew that his conduct was unlawful or wilfully disregarded the risk that his conduct was unlawful". This was in response to a change in the law in the United Kingdom rejecting an objective test with respect to recklessness: see Obeid v R at [164].
In applying those elements to the facts of this case, the jury in the first trial was directed in writing as follows with respect to count 1 against Mr Macdonald (CCA judgment at [13]): "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."
The written direction given with respect to the elements to be proved against Mr Maitland was as follows (CCA judgment at [15]): "[1) That Mr Macdonald committed the principal offence] 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."
In issue on the appeal was the correctness of the directions with respect to element 4 in the written direction relating to Mr Macdonald, involving her Honour's explication of the element of misconduct. Any error in that direction necessarily resulted in an error with respect to the directions relating to Mr Maitland, and in particular with respect to elements 3(a) and (b), and element 4(d), as set out above.
The Court of Criminal Appeal held that the jury was misdirected. The Court reviewed a number of authorities with respect to the offence and stated (at [84]): "Having regard to these authorities, it seems to us that the direction as to the mental element of the offence should have been that Mr Macdonald could only be found to have committed the crime (subject to the other elements being made out) if the power would not have been exercised, except for the illegitimate purpose of conferring a benefit on Mr Maitland and DCM."
Additionally, the Court stated at [87]: "The difficulty with the direction is that it had the potential to cause the jury to reach a verdict by weighing up the significance of any proper purpose they considered Mr Macdonald had and the improper purpose in the decision-making, rather than focusing on the proper question, namely, whether but for the improper purpose the consent and licence would not have been granted."

The present case

Based primarily on the conclusion of the Court of Criminal Appeal as set out above, the Crown submitted (and provided an elements document which became MFI-11) the elements with respect to count 1 against Mr Macdonald should be expressed in the same terms as was done at the first trial with the exception that element 4 should be expressed as: "4. In granting consent the accused misconducted himself. To prove this element the Crown must prove beyond reasonable doubt, that such consent would not have been granted except (or but) for the illegitimate (or improper) purpose of conferring a benefit on Mr Maitland and DCM." (emphasis in original)
The Crown contemplated the equivalent formulation would be used in count 3, adapted to the granting of the licence rather than the giving of consent. The same formulation was reproduced by the Crown, as relevant, in the elements submitted to be appropriate to Mr Maitland. While arguably, the Crown could proceed on the basis of an intention to benefit Mr Maitland or DCM, having regard to the facts of the case, nothing turns on this. The Crown case is that Mr Macdonald's purpose was to benefit Mr Maitland, and, in the circumstances, this was done through DCM such that any intention to benefit Mr Maitland necessarily included an intention to benefit DCM.
The issue that does arise is whether the "except for" or "but for" test encapsulates the whole of what must be established in order to prove misconduct. The Crown contends that it does. Mr Macdonald submits that while the test of causation must be satisfied it must also be shown that the improper purpose was of such significance that it was the "driving force", "moving cause" or "real reason" for the decision. No submission was made that there is any appreciable difference between these formulations and they appear to me to be functionally equivalent. Mr Maitland, as I understand it, was content to adopt Mr Macdonald's submission in this regard. Mr Macdonald also submits that I should direct myself as to the need to exclude the reasonable hypothesis that Mr Macdonald's decision related to furthering the interests of the State of New South Wales in a "significant" or "appreciable" sense.
It is convenient to first observe that there is a difference, and potentially a significant difference, between the practical effect of the respective positions of the Crown and the accused with respect to the question of whether the "but for" test is capable of acting as a complete statement of what must be proved to establish misconduct. One can easily imagine a situation where an accused would not have made a decision if not for the benefit that decision conferred on a family member, but where the motivation to benefit that family member was not the driving force behind the decision. For example, a government minister might be considering a proposal to build a recreation centre. The Minister regards the public benefit as significant. On the other hand, the Minister might regard the cost to be such that the balance between the expenditure (and public detriment) and the public good of the recreation centre to be neutral. If, in this situation, the balance is tipped on the basis that the Minister's nephews and nieces live close to the proposed centre and are likely to derive a benefit from it, it might be said that the proposal would not have been granted but for the fact it would benefit his or her relatives. In this example, however, it could hardly be said that the desire to benefit those relatives was the "driving force" behind the decision.

The decision of the Court of Criminal Appeal

In order to resolve the question of what the Court of Criminal Appeal decided and, consequently, the proper explanation of the element, it is necessary to consider the issue raised on the appeal and the Court's resolution of that matter.
Central to the appellants' complaints on the appeal was that the test for misconduct as set out in element 4 set the bar too low, and, relatedly, that the concepts of being "substantially motivated" and "not motivated to any significant degree" were uncertain and difficult to apply (CCA judgment at [37]-[48]). It was submitted that it is necessary that the Crown establish the improper purpose was the sole purpose motivating the act or omission, relying on the approach in R v Obeid (No 12) [2016] NSWSC 1815 (see CCA judgment at [41]). Additionally, it was submitted (presumably in the alternative) that the improper purpose had to be "dominant in the sense that the impermissible purpose was causative" (at [48]) and that "there was no impression given to the jury that they needed to be satisfied that the decision was made by the driving force of the improper motive or motivation or intention" (at [50]).
The Crown on the appeal defended the directions given but submitted, as put by the Court (at [60]), that "her Honour used the word substantial which had a correlation with dominant". The Crown further submitted that while there was a question as to whether a "but for" test is appropriate the jury was, in any event, given a test requiring proof of causation. This caused the Court to remark (at [61]) that it was "unclear" from the Crown submission "whether or not the Crown was accepting" the application of a "but for" test, leading the Court to comment (at [66]) that there "ultimately appeared to be little disagreement as to the appropriate test for the mental element of the offence", considering that each of the appellants adopted a causation test and this was "an approach with which the Crown did not seem to take issue". It might be immediately noted that, while the appellants adopted a causation test, they did not abandon the need for the improper motive to be, if not the sole purpose, at least the "dominant purpose" or "driving force".

The basis for the direction given at the first trial (and its rejection)

The Court of Criminal Appeal noted that, in formulating the directions given at the first trial, the trial judge relied on the decision of the Court of Appeal of England and Wales in R v Speechley [2004] EWCA Crim 3067. (The case is also reported as R v Speechley [2005] 2 Cr App R (S) 15, however the report omits the presently relevant parts of the judgment.) In that case the jury was directed that in the event they were of the view that the accused's motives were mixed, that is, he had both proper and improper motives, they could only convict "providing you are sure that … the driving force - that is the key phrase here, 'the driving force' - in his mind and his motivation was the dishonest one" (R v Speechley at [40]). Their Lordships rejected a presently irrelevant complaint about the directions but said, in obiter (at [45], as quoted in the CCA judgment at [35]): "That is sufficient to dispose of the first ground of appeal, but we also accept [the Crown] submission that the judge went further than he need have done in favour of the defence. At point 6 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."
It can be seen that the notion of being motivated to a "significant degree" was picked up in the negative in the trial directions at element 4(b). The trial judge stated that she had "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": R v Macdonald; R v Maitland [2017] NSWSC 337 at [39].
The Court of Criminal Appeal rejected this approach, stating (at [86]) that there is "difficulty in the use by the trial judge of the expressions 'substantially motivated' in par 4(a) and 'not motivated to any significant degree' in par 4(b) of her written directions." Their Honours said (at [87]-[88]): "87 The difficulty with the direction is that it had the potential to cause the jury to reach a verdict by weighing up the significance of any proper purpose they considered Mr Macdonald had and the improper purpose in the decision-making, rather than focusing on the proper question, namely, whether but for the improper purpose the consent and licence would not have been granted. 88 It is apparent from the elements judgment that in formulating the direction her Honour placed reliance on what was said by the Court of Appeal in R v Speechley at [44]-[45] (see [35] above), that the question of what amounts to a significant degree could be left to the jury. With respect to the Court of Appeal, in our opinion, in dealing with a charge of this nature it is incumbent to set out precisely what needs to be proved, rather than relying on the good sense of the jury to apply the appropriate test. In Boulanger v The Queen, the [C]ourt stated at [47] that "[p]ublic officers, like other members of the public, are entitled to know where the line lies that distinguishes administrative fault from criminal culpability". Equally, it is important that it be made clear to juries where the line is to be drawn."
It is clear from the above that the Court of Criminal Appeal rejected directions that involve a balancing or judgment as to where the line is to be drawn. As to whether this involves a rejection of a requirement that something more than causation be proved, such as that the improper purpose be the dominant purpose or the driving force, is a different question.

Is more than causation required?

A number of passages in the Court of Criminal Appeal's reasons suggest that it is sufficient, in order to prove the element of misconduct, that the Crown prove that "but for" the improper motive the relevant (act or omission) would not have occurred. I have set out [84] and [87] above. Additionally, the Crown relied on a passage at [72] which is discussed below.
In understanding these various passages, it is important to recall the context in which the statements were made. That is, as already observed, one in which the complaint on appeal was that the bar was set too low, and where neither the appellant nor the Crown submitted that a "but for" test of causation was necessarily an exhaustive statement of what is required to prove misconduct. Neither party questioned the need for a direction as to the significance of improper motive to the decision, the appellants, as noted above, expressing the need to formulate the "but for" test in terms that the improper motive was "dominant in the sense that the impermissible purpose was causative" (CCA judgment at [48]). Clearly, binding on me is the conclusion that the direction given in the first trial was inadequate and that a "but for" test is required. Further, even if not otherwise bound, it is difficult to imagine circumstances in which I would lightly depart from any considered view expressed by the Court of Criminal Appeal, particularly one constituted as a bench of five. However, equally, it would be surprising if, in the context of the issues joined, the Court intended a, potentially, lower test than that which was complained of on the appeal. It should also be noted that, while the Court explicitly rejected the appellants' submission that a sole purpose test applied, there was no such rejection of the submission, necessarily in the alternative, that the improper purpose must be dominant or the driving force of the decision. In any event, proper analysis of the reasoning of the Court of Criminal Appeal provides reason to doubt the Court intended the requirement of causation to be exhaustive of the test of misconduct. To understand this it is necessary to consider the Court's reasons in more detail.
The Court surveyed the authorities relating to the object of the offence which, in the case of misfeasance, is to prevent public officers from exercising their power in a corrupt and partial manner (see at [68]-[70]).
The Court then turned to the question of whether the Crown must prove that the improper purpose was the sole purpose, noting that Bathurst CJ had expressly left this question open in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 (at [96]). The Court rejected any requirement for the proof of a sole purpose at [72], stating: "Having regard to the rationale for the offence, it would be surprising if it was necessary for the improper purpose to be the sole purpose. If, for example, a Minister of the Crown embarked upon a transaction for the purpose of conferring a benefit on himself or his friends, it would not seem to matter that he also has a belief that the transaction would or might benefit some members of the public. In these circumstances, if the transaction in question would not have been undertaken but for the improper purpose, then subject to the other elements being made out, the offence, in our opinion, would have been committed."
Thus, while the Crown relied upon this statement as support for its contention that the test is one of causation alone, the immediate context of the above is the rejection of the sole purpose test. Importantly, the Court gave the example of a Minister of the Crown embarking on a transaction "for the purpose of conferring a benefit on himself or his friends" and said "[i]n these circumstances" (emphasis added) that "if the transaction in question would not have been undertaken but for the improper purpose", then the element of misconduct would be established. I do not understand the Court to have been here making a definitive statement as to the extent to which the purpose operated on the mind of the accused other than that it need not be the sole purpose. Indeed, to return to the example given above involving competing proper purposes and a minor impermissible purpose, it somewhat strains language to regard the decision in that case as being for "the purpose" of conferring a benefit on the Minister's nieces and nephews.
Having rejected a sole purpose test, their Honours immediately went on to observe that their approach was "not inconsistent" with the relatively limited authorities on the issue. Their Honours (at [73]) referred to R v Llewellyn-Jones (1967) 51 Cr App R 4, in which Widgery J (as his Lordship then was) said (at 6-7) that: " … if the registrar of a county court when exercising his power to order payment out of court of money held on behalf of a beneficiary were to make an order in expectation of some personal benefit which he hoped to obtain and in circumstances where, had it not been for the personal benefit, he would not have made the order, that would be an example of misconduct in a public duty sufficient to come within this rule. The reason why I feel that that would come within the rule is because in that hypothetical case a public officer would be distorting the course of justice to meet his own personal ends and, in my opinion, it would be sufficient to justify a conviction if it could be shown that he had made such an order with intent to obtain personal benefit for himself and in circumstances in which there were no grounds for supposing that he would not have made the order but for his personal interest and expectation. On the other hand, I have reached an equally clear view that it is not enough to bring a country court registrar within the principle merely to show that, when making an order which was within his powers and which he could make for perfectly proper motives, he knew that by a side wind, as it were, he was going to gain some personal benefit." (emphasis added)
It can be seen in the emphasised passage that the "but for" test was stated in conjunction with a requirement to establish an intent (or purpose) to obtain a personal benefit, albeit that no descriptor was attached so as to circumscribe the nature of that purpose. Their Honours noted that this test had been described by the Court of Appeal in R v Dytham [1979] QB 722 at 726 as a "but for" test.
Their Honours then referred (at [75]) to R v Speechley, noting the statement in that case that it is sufficient if the accused is influenced "to a significant degree" by the improper purpose. Their Honours added, importantly, that "although … in our opinion, that does not adequately explain the test to the jury, it provides further support for the proposition that the improper purpose need not be the sole purpose". Their Honours did not suggest that the formulation in R v Speechley was, of itself, wrong, but rather, that it was "inadequate". In other words, more is required than that the improper purpose influenced the accused to a significant degree.
Their Honours then referred to the article written by Professor Finn (as his Honour then was), "Public Officers: Some Personal Liabilities" (1977) 51 Australian Law Journal 313 and the analogy between a breach of duty by a public officer and breaches of fiduciary duties. Their Honours (at [81]) set out a passage from the judgment of Dixon J (as his Honour then was) in Mills v Mills (1938) 60 CLR 150; [1938] HCA 4, including the following: "… The application of the general equitable principle to the acts of directors managing the affairs of a company cannot be as nice as it is in the case of a trustee exercising a special power of appointment. It must, as it seems to me, take the substantial object the accomplishment of which formed the real ground of the board's action. If this is within the scope of the power, then the power has been validly exercised. But if, except for some ulterior and illegitimate object, the power would not have been exercised, that which has been attempted as an ostensible exercise of the power will be void, notwithstanding that the directors may incidentally bring about a result which is within the purpose of the power and which they consider desirable." (emphasis added)
As can be seen, while Dixon J engaged a "but for" test, his Honour at the same time accepted that, if "the substantial object" of, or "the real ground" for, a determination was permissible, that power would have been validly exercised. This frames the test in terms of an assessment of the validity of the exercise of power, which is obviously inapposite to the present criminal law context. Nevertheless, what is clear is that his Honour contemplated a "but for" test operating in conjunction with a requirement that the permissible purpose be a "substantial object" or the "real ground" of the director's act or omission.
Their Honours next made reference to Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285; [1987] HCA 11, which concerned a breach of fiduciary duty. It is not without significance that this case was relied upon by the appellants (no doubt on the basis that it supported the contention that the directions given at trial set the bar too low). Their Honours (at [82]) set out the following passage from Whitehouse v Carlton Hotel Pty Ltd: "It should be mentioned that one finds in some statements of the vitiating effect of a purpose of diluting the voting power of one or more existing shareholders a qualification to the effect that the allotment will be invalid if it is 'merely' or 'purely' or 'solely' for that purpose: see, eg, Piercy v S M Mills and Co; Grant v John Grant & Sons Pty Ltd; Howard Smith v Ampol. The introduction of such a qualification is intended to put to one side cases in which there are present both permissible and impermissible purposes. In such cases of competing purposes, practical considerations have prevented the law from treating the mere existence of the impermissible purpose as sufficient to render voidable the exercise of the fiduciary power to allot shares: see Mills v Mills and note, as to Dixon J's apparently inadvertent use of the word 'void', Richard Brady Franks Ltd v Price. In this Court, the preponderant view has tended to be that the allotment will be invalidated only if the impermissible purpose or a combination of impermissible purposes can be seen to have been dominant - 'the substantial object' (per Williams ACJ, Fullagar and Kitto JJ, Ngurli Ltd v McCann quoting Dixon J in Mills v Mills and see Harlowe's Nominees); 'the moving cause': per Latham CJ, Mills v Mills. The cases in which that view has been indicated have not, however, required a determination of the question whether the impermissible purpose must be 'the' substantial object or moving cause or whether it may suffice to invalidate the allotment that it be one of a number of such objects or causes. As a matter of logic and principle, the preferable view would seem to be that, regardless of whether the impermissible purpose was the dominant one or but one of a number of significantly contributing causes, the allotment will be invalidated if the impermissible purpose was causative in the sense that, but for its presence, 'the power would not have been exercised': per Dixon J, Mills v Mills. It is, however, unnecessary to express a concluded view on the question of precise formulation of the relevant test in such cases since the present case does not raise any problem of competing permissible and impermissible purposes." (footnotes omitted, emphasis added)
The passages emphasised above make clear that the impermissible purpose must be at least a "significantly contributing cause" and if it was one of a number of "significantly contributing causes", it must be shown that it "was causative in the sense that, but for its presence" the power would not have been exercised.
The Court of Criminal Appeal, additionally, referred (at [83]) to Thompson v The Council of the Municipality of Randwick (1950) 81 CLR 87; [1950] HCA 33, a case dealing with the exercise of a power by an administrative official for a purpose foreign to the purpose for which it was conferred. There, Williams, Webb, and Kitto JJ noted that in some cases the unauthorised purpose will be the sole purpose but that this was not necessary to invalidate the decision. Their Honours stated that it is still an abuse of the power if the improper purpose is a substantial purpose in the sense that the decision would not have been made but for the improper purpose. Again, it can be seen that the "but for" aspect formed part of a broader (and more stringent) test requiring the purpose be, at least, a "substantial" one.
It was immediately after referring to the above authorities that their Honours made the observation at [84] that: "Having regard to these authorities, it seems to us that the direction as to the mental element of the offence should have been that Mr Macdonald could only be found to have committed the crime (subject to the other elements being made out) if the power would not have been exercised, except for the illegitimate purpose of conferring a benefit on Mr Maitland and DCM."
In context, their Honours' observation can only be understood as a requirement for a "but for" test in conjunction with at least some requirement that the improper purpose be of substance. Similarly, their Honours' observations at [87].
For the reasons given above, I do not regard the decision of the Court of Criminal Appeal to have found that the "but for" test is the sole test to be applied in determining whether an act or omission constitutes misconduct. This then raises the question of what more is required. While the High Court in Mills v Mills and Whitehouse v Carlton Hotel Pty Ltd employed the language of "substantial object" and "significantly contributing", and the reasoning in these cases was significant in the Court of Criminal Appeal's conclusion, as noted above, the Court of Criminal Appeal rejected the formulation in R v Speechley of "motivated to a significant degree" on the basis that it is insufficiently precise (at [88]). It appears to me that, having regard to the need to show something more than bare causation, and the insufficiency of the formulation such as "motivated to a significant degree", it is necessary that the Crown establish something more. Having regard to the above discussion a test requiring something less than the sole purpose but more than "motivated to a significant degree" would appear to require that the "driving force" of the decision was improper in accordance with the direction given at first instance in R v Speechley, or something akin to it.

Exclusion of a permissible purpose as a reasonable hypothesis

As noted above, Mr Macdonald submitted that I should direct myself that the Crown must exclude, beyond reasonable doubt, the reasonable hypothesis that Mr Macdonald's decision "related to furthering the interests of" the State of New South Wales, noting that this could only be a reasonable hypothesis if Mr Macdonald's decision "was to further the interests" of the State in a "significant" or "appreciable" sense.
It is not immediately clear the basis upon which the words in direct quotes set out above are relied upon. On one reading, they could be understood to be importing an objective test such that if I was not satisfied, objectively, that the decision did not further the interests of the State in a significant or appreciable sense, I would be obliged to acquit. If so, I reject such an approach. I do not, however, apprehend that this is the intention of the suggested direction. Rather, I would read the suggested direction as the need to exclude beyond reasonable doubt that the decision was for the purpose of furthering the interests of the State.
In a case such as this, in which the Crown relies on circumstantial evidence (here to prove a state of mind), clearly it is necessary for the Crown to exclude any reasonable hypothesis inconsistent with guilt. However, as discussed above, it is not incumbent on the Crown to prove that Mr Macdonald's sole purpose was to benefit Mr Maitland and DCM. If that was the case, then it would follow that failure to exclude the possibility that Mr Macdonald's purpose was, to any extent, to benefit the public would lead to acquittal. It would appear, in order to address this problem, counsel has included the qualification that the alternative must be motivated by the proper purpose in a "significant" or "appreciable" sense. The difficulty with this form of direction, however, is that the terms lack precision. This difficulty is a significant component of the Court of Criminal Appeal's reasoning in concluding that the jury in the first trial was not properly directed. Further, the ordinary circumstantial evidence direction proceeds on the assumption that the competing hypotheses are exclusive of each other. Given the potential multiple co-existing purposes, that is not the case here. The result is such a direction as sought has the potential to result in the type of weighing exercise criticised by the Court of Criminal Appeal (at [87]).
Of course, ultimately, it will be necessary for me to consider the evidence supporting inferences as to permissible and impermissible purposes. If I am satisfied beyond reasonable doubt that the impermissible purpose was the driving force for the decision, such that, but for that purpose, the decision would not have been made, this necessarily excludes the possibility of any innocent hypothesis that some other purpose played a role sufficient to negative any conclusion that the impermissible purpose was the driving force absent which the decision would not have been made.

The element requiring the misconduct be sufficiently serious

A question may arise as to whether, contrary to the above, a "but for" test alone is adequate having regard to the additional requirement that the misconduct be serious. Arguably, in the situation where legitimate competing considerations are finely balanced and that balance is tipped by an illegitimate consideration, the "but for" test will be adequate having regard to the additional requirement that the conduct 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. It could be suggested that, where the improper purpose is a minor consideration in the decision made, but, as a result of the balancing of the more significant considerations, has a determinative impact, the conduct is unlikely to be regarded as serious. This issue does not need to be decided. The Court of Criminal Appeal was, as explained above, only concerned with the element of misconduct. For the reasons given above, I am of the view that, consistent with the Court's reasons, that element is to be expressed as I have indicated. It might be noted in passing, however, that the extent to which the decision was motivated by an improper purpose fits squarely within the notion of misconduct. Whether the conduct related to something of importance, or something relatively trivial, such as the private use of a relatively minor item of stationery, would seem to fit more neatly within this element concerned with the seriousness of the conduct.

Conclusion

For the reasons given above, I am of the view that I should direct myself that, in order to prove the element of misconduct in the offences alleged against Mr Macdonald (counts 1 and 3), the Crown must prove that the improper purpose was the driving force behind the decision such that the decision would not have been made but for that improper purpose.
That formulation is, in turn, appropriate with respect to the elements of the offences alleged against Mr Maitland that are dependent on the element of misconduct in the offence alleged against Mr Macdonald.

Amendments 20 October 2022 - minor addition to [27] 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: 20 October 2022

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