Austin, Re [1991] QSC 307 [1994] 1 Qd R 225

:.sc.·c:;1/30 7 IN THE SUPREME COURT OF QUEENSLAND CHAMBER JURISDICTION Nos. 931, 933 & 935 of 1991 Before Mr Justice McPherson S.P.J. IN THE MATTER of the Public 'officers' Superannuation Benefits Recovery Act 1988 - and - IN THE MATTER of an application pursuant to the provision of Order 64 Rule 1 B of the Rules of the Supreme Court - and - IN THE MATTER of an assessment authorised to be made pursuant to Section 7 of the Public Officers' Superannuation Benefits Recovery Act 1988 relating to BRIAN DOUGLAS AUSTIN and LEISHA TERESA HARVEY and DONALD FREDERICK LANE JUDGMENT - McPHERSON S.P.J. Delivered the Twenty-Fourth day of October 1991 CATCHWORDS Public Service - Duties and of fences in relation to off ice - Ministers of Crown - Dishonest application of Crown property to own use - Whether corrupt use of public office - Public Officers' Superannuation Benefits Recovery Act 1988, ss.4(1), 6(1). Counsel: Solicitors: Dunphy for the applicant D.F. Jackson Q.C., with him S. Herbert, for the respondents K.M. O'Shea, Crown Solicitor for the Crown Robertson & O'Gorman, solicitors; Gilshenan & Luton, solicitors, for the respondents. Hearing Date: 17 October 1991 -- 1 of 10 -- IN THE SUPREME COURT OF QUEENSLAND CHAMBER JURISDICTION Nos. 931, 933 & 935 of 1991 IN THE MATTER of the PublicOfficers' SuperannuationBenefits Recovery Act 1988 - and - IN THE MATTER of an application pursuant to the provision of Order 64 Rule 1 B of the Rules of the Supreme Court - and - IN THE MATTER of an assessment authorised to be made pursuant to Section 7 of the Public Officers' SuperannuationBenefits Recovery Act 1988 relating to BRIAN DOUGLAS AUSTIN and LEISHA TERESA HARVEY and DONALD FREDERICK LANE JUDGMENT - McPHERSON S.P.J. Delivered the Twenty-Fourth day of October 1991 In each of the three originating summonses (O.S.S. 931, 933, 935 of 1991) now before me, the State Treasurer Hon. K.E. Delacy seeks determination of the question whether offences of which each respondent was convicted are "prescribed offences" within the meaning of ss. 4 and 6 of the Public Officers' Superannuation Benefits Recovery Act 1988 ( "the Recovery Act"). The respondents to those summonses ( which it was agreed should be heard together) are respectively Brian Douglas Austin, Leisha Teresa Harvey and Donald Frederick Lane. On various dates in 1990 they were -- 2 of 10 -- 2 convicted in the District Court at Brisbane of offences of misappropriation of property under s.408C of the Criminal Code. Section 408C(1) defines that offence as follows: "408C. Misappropriation of property. (1) Any person who dishonestly applies to his own use or to the useof any person - (a) property belonging to another; or (b) property belonging to him, which is in his possession or control (either solely or conjointly with any other person) subject to a trust, direction or condition or on account of any other person, is guilty of the crime of misappropriation of property." The conviction of each respondent followed verdicts at trial or pleas of guilty to a considerable number of offences under the section. The full shorthand transcript of the proceedings resulting in the convictions was admitted in evidence on these applications without objection. It is a fair summary of the material they contain to say that the respondents used credit cards or cheques to pay for accommodation, dining out, motor vehicle hire, and cash advances provided to them, their friends, or families. The expenditure was undertaken for purely private purposes. The necessary element of dishonest application under s.408C must therefore have been found to subsist in the circumstance that the respondents were at relevant times Ministers of the Crown; and that the facility afforded by the credit cards and cheques, which were the property of the Crown, was expressly or by implication intended for use in discharging liabilities incurred only in the course and for the purpose of the official duties of the respondents as officers of the Crown. The same result would as a matter of law or equity also follow -- 3 of 10 -- 3 if the respondents were regarded as fiduciaries or trustees for the Crown of the powers exercisable by them as holders of the credit cards or cheque facility. At the time the offences were committed the respondents were not only Ministers of the Crown in right of the Executive Government of this State but members of the Legislative Assembly. As such they were contributors to the superannuation fund established under the Parliamentary Contributory Superannuation Act 1970. On resigning from Parliament as each of them has done, the respondents became entitled to receive sums of money from that fund. By s.6(1) of the Recovery Act it is provided that "a publicly funded superannuant who is convicted ... of an offence that is a prescribed offence committed by him while he held a public off ice" incurs a liability to pay to the Crown a sum assessed in accordance with s.8 of the Recovery Act. It is not at present necessary to consider s.8 in any detailed way because, assuming liability on the part of the respondents, the parties propose to return to court for the quantum of that liability to be assessed. As to the matter of liability, s.6(1) requires that the prescribed offence be one committed by the superannuant while he "held a public office". By s. 4 ( 1 ) the expression "public office" means an office such that, upon ceasing to hold it, he would become a publicly funded superannuant. This requirement is satisfied in the case of each respondent : see ss.6, 11 and 16 of the Parliamentary Contributory Superannuation Act 1970. The word "office" is also defined in s.4(1) to include any position "held by a person at any material time in his employment"; and -- 4 of 10 -- 4 "employment" includes, among other matters, "holding any office of a public nature". It can scarcely be doubted that a Minister of the Crown holds public office : see Constitution Act 1867, s.14; and Officials in Parliament Act 1896. In any event, the definition of "employment" expressly includes holding office as a member of the Legislative Assembly : see s.4(1)(c) and R. v. Boston (1923) 33 C.L.R. 386, 402. The respondents answered that description at relevant times. The remaining question therefore is whether the offences of which the respondents were convicted were prescribed offences for the purpose of s.6(1). The expression "prescribed offence" is defined in s.4(1) as follows: " 'prescribed offence' means an indictable offence consisting wholly or partly in conduct whereby the offender - (a) has been corrupt in discharging any of the duties of a public office held by him; (b) has corruptly neglected to discharge any of the duties of a public office held by him; (c) has corruptly used a public office held by him; (d) has corruptly asked for, received or agreed to receive or corruptly attempted to obtain any property, benefit, service or advantage for himself or another in circumstances that include, as a relevant circumstance, the offender's holding a public office." The scope of the Recovery Act depends very largely on the meaning to be ascribed to the word "corrupt" or "corruptly" that appears in each of the paragraphs (a) to (d) of the definition. It is a word that has been used in a number of different statutory contexts over a long period of time often in association with conduct involving bribery. A prominent example is legislation regulating Parliamentary and other elections. In Britain s.2 of -- 5 of 10 -- 5 .the Corrupt Practices Prevention Act 1854; 17 & 18 Viet. c.102 declared a person guilty of bribery who gave money or valuable consideration to a voter to vote or to refrain from voting "or [who] shall corruptly do any such act as aforesaid ... ". In advising the Lords in Cooper v. Slade (1858) 6 H.L.C. 746, 773; E.R. 1488, 1499, Willes J. said that the word "corruptly" in this provision meant not "dishonestly" but purposely doing an act which the law forbade as tending to corrupt voters. This meaning of "corruptly" has been applied in subsequent cases involving statutory offences like that in s.1(2) of the Public Bodies Corrupt Practices Act 1889 (U.K.), making it a misdemeanour for a person to give something "corruptly" to influence a member of a public body to do anything in relation to a transaction in which a public body is concerned. In R. v. Smith [1960] 2 Q.B. 423 a conviction under the statute was upheld of a person who had offered the local mayor a bribe in relation to the acquisition of certain land, even though he claimed to have done it as part of a campaign to expose corruption in the affairs of the local authority. See also R. v. Wellburn, Nurdin & Randel (1979) 69 Cr. App. R. 254; R. v. Parker [1985] Crim. L.R. 589; R. v. Governor of Pentonville Prison, ex parte Osman (No. 3) [1990] 1 All E.R. 999, 1015, to all of which Mr Dunphy of counsel for the applicant helpfully referred me in this case. The English decisions have been considered and applied in Australia in a number of cases involving offences under statutes d~signed to suppress bribery and similar conduct see C. v Johnson [1967] S.A.S.R. 279; R. v. Dillon & Riach [1982] V.R. 434; R. v. Gallagher [1986] V.R. 219; R. v. Jamieson [1988] -- 6 of 10 -- 6 V.R. 879. See also R. v. Worthingon [1921] V.L.R. 660, 683, where Cussen J. adopted from an earlier decision a distinction between "corruptly" doing an act which is corrupt in itself, and one "which is prima facie or which may be innocent". In the end I have not found any of those decisions particularly helpful in arriving at the meaning of "corrupt" or "corruptly" in the definition of "prescribed offence" in the Recovery Act. Bribery is obviously one of the principal targets of the Act. A Minister of the Crown who acted under the influence of a bribe in deciding to grant or to refuse his statutory approval for a Crown lease or a licence would plainly be acting corruptly in discharging duties of his public office. Conduct of that kind falls directly within paras. (a) or (b) of the definition of prescribed offence in s. 4 ( 1 ) . It would presumably also fall within the terms of para. ( d) of the definition, which evidently owes some of its inspiration to s.87 of the Criminal Code. The conduct of the respondents constituting the offences in the present case can scarcely be fitted within any of those three paragraphs of the definition. If it amounted to a "prescribed offence" it can I think only be because it falls within the terms of para. (c) of the definition, which is directed to conduct whereby the offender has "corruptly used a public office held by him". On behalf of the respondents Mr Jackson Q.C. submitted that this element in the definition was designed specifically to cater for a case like R. v. Boston (1923) 33 C.L.R. 386, where, in return for a promise of payment, a member of State Parliament undertook to use his influence with the responsible Minister to -- 7 of 10 -- 7 have the Crown acquire certain land under the Closer Settlement Act 1910 (N.S.W.). That the scope of the provision is not so confined seems to me to be shown by cases involving the common law misdemeanour of misconduct in public office. It is an element of that offence that the conduct charged must have been done "corruptly". In !L_ v. Jones [1946) V.L.R. 300 a public servant invested with power to acquire supplies for the Commonwealth obtained a refrigerator for himself, which he then sold for personal profit. O'Bryan J. directed the jury that the offence in that instance would be committed by his receiving a secret profit from his public office, which was one that involved trust and confidence in dealing with supply stores. In R. v. Clarke [1954) A.L.R. 312, 317, the direction given by the same learned Judge was that an inspector was guilty of the offence if, in performing his duty of fixing prices, he accepted a payment "well knowing that he was placing himself in such a position that he could no longer carry out his duties to the Crown in an unfettered way". On that footing the case presented as one of abuse of discretion. A similar conclusion has been reached in the United States, where the common law offence is known as misbehaviour in office : see State v. Barnett 69 P.(2d) 77 (1936) and Commonwealth v. Steinberg 362 A.2d 379 (1976), both of which were instances of improper exercise of statutory powers. In State v. Barnett 69 P. (2d) 77 the Criminal Court of Oklahoma cited with approval a passage from 14A Corpus Juris 1430, in which, speaking of corruption, it was said that it "includes bribery, but is more comprehensive, because an act may -- 8 of 10 -- 8 be corruptly done, although the advantage to be derived from it is not offered by another". See now 67 C.J.S. 256, at 790. Examples from the same source include "the unlawful disbursement of public moneys". Corruption in office was defined in the contemporary edition of Black's Law Dictionary as "the act of an official or fiduciary person who unlawfully and wrongfully uses his station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others". See also Hamburg-American Steam Packet Co. v. Untied States 250 F.747, 758 (1918); and Johnson v. United States 260 F.783, 786 ( 1919). As I mentioned in Bielke-Petersen v. Burns [ 1988] 2 Qd.R. 129, 135, the expression "corrupt" or "corruption" has for some two centuries or more been in currency as connoting the use of a power to obtain "some private advantage or for any purpose foreign to the power": see Mills v. Mills (1938) 60 C.L.R. 150, 185, per Dixon J. A recent example of its use in this sense, to which Mr Dunphy referred me, is Re A Company, ex parte Glossop [1988] 1 W.L.R. 1068, 1076. Returning to the facts of this case, they are that each of the three respondents used credit cards or cheques the property of the Crown for the purpose of discharging liabilities incurred not for the performance of their official duties but for purely private purposes. It was that conduct which was found by the jury to have involved a dishonest application by each respondent to his or her own use of property belonging to another. On behalf of the respondents Mr Jackson Q.C. pointed out that there are many offences (which he proceeded to identify) under the Criminal Code that are capable of being committed "corruptly", -- 9 of 10 -- 9 and that the essence of the "prescribed offence" referred to in para. (c) of the definition is its association with public office. However, in speaking of the corrupt use of a public office, the definition in para. (c) must, as Mr Jackson Q.C. acknowledged, be intended to comprehend the corrupt use of a power incidental to that office. Accepting that any real ambiguity is to be resolved in favour of the most lenient construction (Deming No. 456 Pty. Ltd. v. Brisbane Unit Development Corporation Pty. Ltd. (1983) 155 C.L.R. 129, 145), I nevertheless arrive at the conclusion that the offences committed by the respondents in this case constituted a "prescribed offence" within the meaning of s.6 of the Recovery Act. Authority to use the credit facilities afforded by the credit cards and cheques was invested in the respondents in their capacity of Ministers of the Crown and as an incident of their holding office as such. When they exercised that authority for private purposes they corruptly used the public office that each of them so held. The point can perhaps be illustrated by saying that a different result might have followed if the conduct constituting the offence had consisted of breaking into and taking the money from the office safe. It would not have involved a corrupt use of a public office. I accordingly determine that the offences referred to in each summonses of which each of the respondent was convicted are "prescribed offences" within the meaning of ss.4 and 6 of the Public Officers' Superannuation Benefits Recovery Act 1988. -- 10 of 10 --