(2011) 208 A Crim R 392
Forder v Great Western Railway Company [1905] 2 KB 532
Iannella v French [1968] HCA 14
S Beckett (Crown)
B Hughes SC
N Mikhaiel (Accused)
Source
Original judgment source is linked above.
Catchwords
(2011) 208 A Crim R 392
Forder v Great Western Railway Company [1905] 2 KB 532
Iannella v French [1968] HCA 14S Beckett (Crown)
B Hughes SCN Mikhaiel (Accused)
Judgment (2 paragraphs)
[1]
Judgment
BEECH-JONES J: On 21 June 2016, being the eleventh day of the trial, I heard argument concerning a submission made on behalf of the accused, Edward Moses Obeid, that the common law offence of wilful misconduct in public office is not made out in circumstances where an accused is only reckless as to whether their conduct was a breach of their duties as a public officer as opposed to knowing that their conduct was such a breach. The argument was conducted in the absence of the jury who were sent home for the day. At the conclusion of argument, I indicated that I rejected that submission and would provide reasons later. This judgment constitutes those reasons.
Background
On 6 June 2016, the accused was arraigned before a jury panel. The indictment charged him with one count of the common law offence of wilful misconduct in public office. The nature of the Crown case was outlined in Obeid v R (No 2) [2015] NSWSC 1380 ("Obeid No 2") at [14] to [21]. In summary, the Crown contends that, while holding "office" as a member of the Legislative Council of New South Wales, Mr Obeid communicated to a senior employee of the Maritime Authority, Mr Stephen Dunn, in a manner the Crown contends was intended to yield favourable treatment of its commercial tenants at Circular Quay. The Crown contends that Mr Obeid did so with the intention of conferring a benefit on one of the tenants, Circular Quay Restaurants Pty Ltd, but without disclosing to Mr Dunn his or his family's financial interest in that company.
R v Obeid [2016] NSWSC 974 | Case summary | Zoe
The accused pleaded not guilty and the trial proceeded. The evidence led by the Crown in support of its case was generally consistent with the outline of the Crown case set out in the passage from Obeid No 2 noted above. The accused did not give evidence or call any witnesses although various documents were tendered on his behalf through the prosecution witnesses.
During the trial, the Court provided the parties with a written document setting out the elements of the offence of wilful misconduct in public office which was proposed to be handed to the jury during the summing up. In relation to the element of the offence that required the Crown to prove that the accused wilfully misconducted himself, the document stated that the Crown had to prove beyond reasonable doubt that the accused engaged in the conduct alleged in the indictment, that such conduct was a breach of the duties and obligations attaching to the accused's office as a member of the Legislative Council and that:
"… such misconduct [the jury] 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." (emphasis added)
The emphasised portion of this passage assumes that the offence is made out where the accused is reckless as to whether their conduct was a breach of the duties of their office (see Blackwell v The Queen [2011] NSWCCA 93; (2011) 208 A Crim R 392 at [76] per Beazley JA). On this application, it was submitted on behalf of Mr Obeid that the assumption was wrong and that only actual knowledge of wrongdoing would suffice. The Crown contended that the direction was appropriate and referred the Court to Attorney-General's Reference (No 3 of 2003) [2005] QB 73 ("Attorney-General's Reference (No 3 of 2003"), the effect of which is discussed below.
Reckless Misconduct?
In R v Quach [2010] VSCA 106; 201 A Crim R 522 ("Quach") at [46] Redlich JA (with whom Ashley JA and Hansen AJA agreed) enunciated the elements of the offence of wilful misconduct in public office as follows:
"… the elements of the offence are:
(1) a public official;
(2) in the course of or connected to his public office;
(3) wilfully misconduct 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 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." (emphasis added)
This statement of the elements of the offence was endorsed in Obeid v R [2015] NSWCCA 309 at [133] to [142] (per Bathurst CJ, Beazley P and Leeming JA).
Junior Counsel for Mr Obeid, Ms Mikhaiel, submitted that to incorporate recklessness into the third element set out in [7] was inconsistent with Quach and the usual meaning attributed to the word "wilful". Ms Mikhaiel noted the repeated reference in Redlich JA's judgment in Quach to the need for the misconduct to be "wilful" and referred to a dictionary definition of "wilful" as a reference to conduct that was "deliberate or voluntary". Ms Mikhaiel also referred to the passage from the judgment of Doyle CJ in Question of Law Reserved (No 2 of 1996) (1996) 67 SASR 63 ("Question of Law Reserved (No 2 of 1996)") at p 66 in which his Honour referred to the offence of wilful misconduct in public office as "strik[ing] at the public officer who deliberately acts contrary to the duties of the public office …" and noted that this passage was extracted in Quach at [21]). Ms Mikhaiel contended that this suggested that the offence was confined to the circumstance where the public officer knew they were acting contrary to their duty and did not include the circumstance where the public officer was reckless as to that matter.
Ms Mikhaiel referred to the following passage from Zaburoni v The Queen [2016] HCA 12 ("Zaburoni") at [42] per Kiefel, Bell and Keane JJ as illustrating the essence of the distinction between intention and knowledge on the one hand and recklessness on the other:
"Recklessness describes a state of mind in which a person adverts to the risk that particular conduct may result in particular harm and, with that awareness, engages in that conduct. A person may be more or less reckless depending upon the person's awareness of the likelihood of the risk materialising. However, as earlier explained, putting to one side awareness of the virtual certainty that conduct will result in the particular harm, a person's awareness of the risk that his or her conduct may result in harm does not, without more, support the inference that the person intended to produce that harm."
In Zaburoni, the appellant had been charged with unlawfully transmitting a serious disease to another with intent to do so. It was held that such an intention could only be proved if it was demonstrated that there was an "actual subjective intention to achieve" the injury as opposed to an awareness that such injury was the probable consequence of the accused's actions (at [7] per Kiefel, Bell and Keane JJ; at [55] per Gageler J). The appellant's conviction was set aside in circumstances where the evidence left open the reasonable possibility of the latter (at [44] per Kiefel, Bell and Keane JJ; at [63] per Gageler J and at [72] per Nettle J).
Zaburoni does not advance Ms Mikhaiel's submission. Zaburoni concerned the meaning of the word "intention" in a statute creating an offence. This application concerned the concept of "wilful misconduct" as used in judgments articulating the elements of a common law offence.
As Ms Mikhaiel submitted, the phrase "wilful misconduct" is used repeatedly by Redlich JA in Quach (at [8], [27], [31], [32] and [46]). However, in none of the passages to which Ms Mikhaiel referred did Redlich JA expand upon its meaning. Instead, although the focus of his Honour's judgment in Quach was on the formulation of the second element of the offence of wilful misconduct in public office, the analysis in Quach strongly suggests that "wilful misconduct" includes recklessness.
Redlich JA's synthesis of the elements of the offence in Quach set out at [7] above was derived from a detailed analysis of a number of United Kingdom, Australian and Hong Kong decisions including Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 ('Shum Kwok Sher"), Attorney-General's Reference (No 3 of 2003), Sin Kam Wah v HKSAR (2005) 8 HKCFAR 192 ("Sin Kam Wah") and Question of Law Reserved (No 2 of 1996). In Quach at [22] Redlich JA noted that in Shum Kwok Sher, Mason NPJ referred to the culpable misconduct of the accused public officer as involving the officer "wilfully and intentionally neglect[ing] or fail[ing]" to perform his or her duty. In Quach at [24] to [29] Redlich JA discussed Re Attorney-General's Reference (No 3 of 2003) and noted that one of the issues in that case concerned the "mental element of [the] offence" (Quach at [25]). In Re Attorney General's Reference (No 3 of 2003) at [30] it was held that the offence requires "an awareness of the duty to act or a subjective recklessness as to the existence of the duty" (emphasis added). In light of the judgment in Attorney General's Reference No 3, Mason NPJ in Sin Kam Wah reformulated the elements of the offence of wilful misconduct in public office. Specifically, his Honour stated that the "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" (Sin Kam Wah at [46]; emphasis added). In Quach, at [31], Redlich JA noted that Mason NPJ in Sin Kam Wah addressed the consideration given to recklessness in Attorney General's Reference (No 3 of 2003).
In the end result, three matters should be noted. First, the clear position in the United Kingdom and Hong Kong is that recklessness is sufficient. Second, even though Redlich JA in Quach did not specifically address whether recklessness sufficed, his Honour adverted to the United Kingdom and Hong Kong decisions which held that it did and did not express any misgivings about their conclusion. Third, neither the judgment of Redlich JA in Quach nor the decisions discussed in that judgment treated a mental statement of recklessness as somehow inconsistent with an element of the offence that required the Crown to prove "wilful misconduct" on the part of the accused.
On this latter point, it is to be recalled that Ms Mikhaiel contended that the word "wilful" meant intentional and deliberate and therefore the phrase "wilful misconduct" excluded recklessness. The principal difficulty with this contention is that it treats the formulation of the elements of the offence in Quach as though they are a statute rather than the result of a synthesis of judicial decisions. It is those decisions which inform any debate about the precise meaning of the elements stated by Redlich JA in the extract set out above at [7] and those decisions clearly suggest that recklessness suffices.
In any event, when used in a statute the word "wilful" does, or at least can, embrace the circumstance in which the accused is reckless as to some fact or consequence or the illegality of their own conduct.
In the fourth edition of Gillies, Criminal Law (4th ed, Law Book Company, 1997) ('Gillies"), the author identified three common "approaches" to the interpretation of the word "wilfully" when used in a criminal statute. The first was to construe the word as "specifying no more than that the forbidden act in question must be done intentionally" (Gillies at p 760), that is, as involving no more than "an intention on the part of the person accused to do the act forbidden" (Wells v Hardy [1964] 2 QB 447 at 454; see Iannella v French [1968] HCA 14; 119 CLR 84 ("Iannella") at p 95 per Barwick CJ ). This is of no assistance to Mr Obeid because this debate does not concern whether he intended to do the forbidden act but his knowledge as to whether his intentional acts were forbidden.
The second common interpretation of "wilfully" referred to in Gillies is to construe it as "requiring proof of mens rea … of an intention to bring about the forbidden act coupled with knowledge of any associated facts" which the Crown must prove (p 760). The third possible interpretation of "wilfully" identified by Gillies is that it requires the Crown to prove the accused had a "blameworthy mind", that is, that he or she not only "[knew] or acts recklessly in relation to all of the facts constituting the offence" but also knew or suspected "that her or his conduct breaches the law" (Gillies at p 763). This is clearly the sense in which "wilful" is meant by the phrase "wilful misconduct" in Redlich JA's formulation of the elements of the offence of wilful misconduct in public office.
An example of an offence which falls into one (or both) of these categories is that which was considered in Iannella where the appellant was convicted of having "wilfully demanded or wilfully recovered" rent exceeding the fixed maximum rent for a "described house". Barwick CJ stated that "'wilful' connotes intention and knowledge" but "the problem is to determine in the particular circumstances what is to be intended and what [is] known" (at p 95). His Honour concluded that "[t]he answer, as I have said, must vary with the nature of the act proscribed and the context of the statutory provision creating the offence" (id). In relation to the offence of wilfully demanding rent that exceeded the fixed amount his Honour concluded (at p 94):
"It seems to me that the intention with which the demand must be made must be not merely an intention to obtain by the demand a sum of money: the intention, in my opinion, must be to achieve the full consequence of the demand, to obtain as it were, its forbidden fruit. This would indicate, in my opinion, the need for the existence of either an actual or an imputed consciousness of the wrongdoing involved in the demand. By including an imputed consciousness in that connexion, I mean to leave room for the concept of recklessness, or culpable indifference as an equivalent of knowledge or consciousness of the quality of the act performed. In short, apart from the influence of the word 'wilful', there is much to be said for the view that the terms of this section require that the defendant should know that his demand is wrongful. A finding that he had an honest belief that his act was proper and lawful denies that knowledge." (emphasis added)
In Gillies, the learned author reviewed various decisions concerning these uses of the word "wilfully" and, consistent with the above passage from Iannella, concluded (at p 766):
"The preponderant view in the modern decisions is that "wilfully" imports mens rea in at least the technical sense of requiring that [the accused] intentionally or recklessly perform the forbidden act, while knowing or suspecting the existence of any such associated facts as are required to be proved by [the prosecution]. There is, as well, some authority to the effect that depending upon context, the word "wilfully" imports knowledge or suspicion on the part of the [accused] that his act is forbidden by the law." (emphasis added)
The result is that, contrary to Ms Mickhaiel's submission, where the presence of the word "wilful" in a statutory provision creating an offence requires a mens rea as to the wrongfulness of the accused's conduct then recklessness as to that circumstance will generally suffice.
Finally, for the sake of completeness I note that the phrase "wilful misconduct" when used in an insurance policy includes conduct of which the insured is reckless as to whether or not it is wrongful, (Transport Commission (Tas) v Neale Edwards Pty Ltd (1954) 92 CLR 214 at 223; Forder v Great Western Railway Company [1905] 2 KB 532; Wood v Associated National Insurance Company Ltd [1984] 1 Qd R 507).
Conclusion
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.
[2]
Amendments
18 July 2016 - [13] - Changed Mason NJP to Mason NPJ.
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Decision last updated: 11 February 2020