Ian Macdonald Wins Appeal - Conviction Quashed - Out On Bail Pending Possible Retrial

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Court of Criminal Appeal

Supreme Court
New South Wales
Case Name: Maitland v R; Macdonald v R
Medium Neutral Citation: [2019] NSWCCA 32
Hearing Date(s): 13 & 14 November 2018
Date of Orders: 25 February 2019
Decision Date: 25 February 2019
Before: Bathurst CJ, Beazley P, Ward CJ in Eq, Hamill J, N

Adams J at [1]
Decision: The following orders are made in respect of each

appellant:
1. Appeal against conviction allowed.
2. Conviction quashed.
3. A new trial is ordered.
4. The matter is listed for mention in the Supreme
Court Arraignments List on 1 March 2019 or such other
date as directed by the Criminal List Judge.
5. Pursuant to s 7 of the Court Suppression and Non-
Publication Orders Act 2010 (NSW), on the ground set
out in s 8(1)(e) of that Act, order that disclosure of [93]-
[635] of these reasons (other than the orders
themselves) be prohibited pending further order of the
Court. This order does not apply to the disclosure of
those paragraphs to the parties to these proceedings,
their legal representatives or the Court.
Catchwords: CRIMINAL LAW – appeals – appeal against conviction

– principal offender – 2 counts of wilful misconduct in
public office – common law offence
CRIMINAL LAW – appeals – appeal against conviction

– accessory – 2 counts accessory before the fact to
wilful misconduct in public office
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– directions to jury – misdirection – mental element of
offence of misconduct in public office

– unreasonable verdict

– miscarriage of justice
CRIMINAL LAW – appeals – appeal against sentence –

application for leave to appeal
Legislation Cited: Court Suppression and Non-Publication Orders Act

2010 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Code RSC 1985, c. C-46
Environmental Planning Act 1979 (NSW)
Mining Act 1992 (NSW)
Environmental Planning Act 1979 (NSW)
Cases Cited: Attorney General’s Reference (No 3 of 2003) [2005] QB

73
Boulanger v R (2006) 2 SCR 49
Chew v R (1992) 173 CLR 626; [1992] HCA 18
Dickson v The Queen (2017) 94 NSWLR 476
Fazzolari v Parramatta City Council (2009) 237 CLR
603; [2009] HCA 12
Hong Kong Special Administrative Region v Wong Lin
Kay [2012] 2 HKLRD 898
Horne v Barber (1920) 27 CLR 494; [1920] HCA 33
Libke v The Queen (2007) 230 CLR 559; [2007] HCA
30
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Macdonald v R; Maitland v R (2016) 93 NSWLR 736;
[2016] NSWCCA 306
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Mills v Mills (1938) 60 CLR 150
Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA
309
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA
221
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
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R v Bembridge (1785) 22 State Trials 1

R v Borron (1823) 3 B & Ald 433
R v Boston (1923) 33 CLR 386; [1923] HCA 59
R v Dytham [1979] QB 722
R v Llewellyn-Jones (1967) 51 Cr App R 4
R v Macdonald; R v Maitland [2017] NSWSC 337
R v Quach (2010) 27 VR 310; [2010] VSCA 106
R v Speechley [2005] 2 Cr App Rep (S) 75
Shum Kwok Sher v Hong Kong Special Administrative
Region (2002) 5 HKCFAR 381
Sin Kam Wah v Hong Kong Special Administrative
Region (2005) 8 HKCFAR 192
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Thompson v Council and Municipality of Randwick
(1950) 81 CLR 87; [1950] HCA 33
Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR
285; [1987] HCA 11
Texts Cited: Professor Finn in “Public Officers: Some Personal

Liabilities” (1977) 51 ALJ 313
Category: Principal judgment
Parties: John William Maitland (Appellant)

Ian Michael Macdonald (Appellant)
Crown (Respondent)
Representation: Counsel:
E Muston SC with E Anderson (Appellant Maitland)
P Boulten SC with D Mackay (Appellant Macdonald)
M McHugh SC with P English (Respondent)
Solicitors:
Santone Lawyers (Appellant Maitland)
HWL Ebsworth Lawyers (Appellant Macdonald)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2015/59990; 2015/59940
Publication Restriction: Pursuant to s 7 of the Court Suppression and Non-

Publication Orders Act 2010 (NSW), on the ground set
out in s 8(1)(e) of that Act, order that disclosure of [93]-
[635] of these reasons (other than the orders
themselves) be prohibited pending further order of the
Court. This order does not apply to the disclosure of
those paragraphs to the parties to these proceedings,
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their legal representatives or the Court.
Decision under appeal:
Court or Tribunal: Supreme Court of NSW
Jurisdiction: Criminal
Citation: [2017] NSWSC 638
Date of Decision: 2 June 2017
Before: Adamson J
File Number(s): 2015/59990; 2015/59940
JUDGMENT
1 The Court: Ian Michael Macdonald (Mr Macdonald) was charged on an
indictment presented on 6 February 2017 with two counts of wilful misconduct
in public office. The charges were 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.”
2 John William Maitland (Mr Maitland) was charged with being an accessory
before the fact to the offences in respect of which Mr Macdonald was charged.
The relevant charges were in the following terms:
“2. 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.”
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“4. 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.”
3 At the time the alleged offences the subject of the charges occurred, Mr
Macdonald was the New South Wales Minister for Mineral Resources. He held
that position from 2005 (except for a short break) up to the time that the alleged
offences were committed. In that capacity he had significant powers under the
Mining Act 1992 (NSW), including granting consent to apply for an exploration
licence under that Act and to grant such a licence. At the relevant time, Mr
Maitland was the Chairman and a shareholder in Doyles Creek Mining Pty Ltd
(DCM).
4 The Crown case against Mr Macdonald on Count 1 was that his conduct in
granting the consent under the Mining Act to DCM to apply for an exploration
licence was misfeasance in public office because he granted the consent with
an improper motive, that of benefiting Doyles Creek and Mr Maitland who was
its Chairman and one of its shareholders. The case in respect of Count 3 was
that the licence was granted with the same improper motivation.
5 The case against Mr Maitland essentially was that he was a party to the
application for and granted the exploration licence knowing that it was being
granted for an improper purpose.
6 Mr Macdonald and Mr Maitland were jointly tried before a jury and convicted of
the offences. Mr Macdonald was sentenced to an aggregate sentence of 10
years, commencing on 26 May 2017 and expiring on 25 May 2027, with a non-
parole period of 7 years. The trial judge imposed an indicative sentence in
respect of Count 1 of 8 years and in respect of Count 3 of 7 years.
7 In relation to Mr Maitland, the trial judge imposed an aggregate sentence of 6

years commencing on 26 May 2017 and expiring on 25 May 2023, with a non-
parole period of 4 years. The trial judge imposed an indicative sentence of 5
years in respect of Count 1 and 4 years in respect of Count 4.
8 Each of Mr Macdonald and Mr Maitland has appealed against his conviction

and sought leave to appeal against sentence.
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Grounds of appeal against conviction

9 Mr Macdonald relied upon the following grounds of appeal:
“1. The learned trial judge misdirected the jury in relation to the elements of
common law offence of misconduct in public office in relation to both charges.
2. The jury’s verdicts were unreasonable and cannot be supported having
regard to the evidence.
3. A miscarriage of justice was occasioned on account of evidence now
available to the appellant.
4. There was a miscarriage of justice at Mr Macdonald’s trial because
members of the prosecution team had had access to evidence compulsorily
obtained from him at the Independent Commission Against Corruption.”
10 Mr Maitland relied upon the following grounds of appeal (as amended by leave
granted on 28 November 2018):
“1. The jury’s verdicts were unreasonable and cannot be supported having
regard to the evidence.
2. The trial judge misdirected the jury with respect to the mental element for
misconduct.
3. There was a miscarriage of justice at Mr Maitland’s trial because members
of the prosecution team had had access to evidence compulsorily obtained
from him at the Independent Commission Against Corruption.
4. There was a miscarriage of justice at Mr Maitland’s trial because of
evidence not adduced at the time of trial.”
11 It should be noted that Ground 4 of Mr Macdonald’s grounds of appeal and
Ground 3 of Mr Maitland’s grounds of appeal were only formally pressed
having regard to the decision of this Court in Macdonald v R; Maitland v R
(2016) 93 NSWLR 736; [2016] NSWCCA 306.
12 It is convenient to deal at the outset with the grounds of appeal relating to the
misdirection to the jury (Macdonald Ground 1, Maitland Ground 3). The ground
of appeal asserts that the trial judge wrongly directed the jury on the mental
element of the offence.
The directions
13 The trial judge gave the following written direction in respect of Charge 1
against Mr Macdonald:
“1) The accused was a public official.

A Member of the Legislative Council of New South Wales is a public
official.
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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.”
14 A substantially similar direction was given in relation to Charge 3. It is
unnecessary to set it out.
15 So far as Mr Maitland was concerned, in respect of Charge 2, the written

direction given in relation to Charge 1 against Mr Macdonald was repeated and
the following additional directions were given to take account of the fact that Mr
Maitland was charged as an accessory:
“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;
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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.”
16 A similar direction was given in relation to Charge 4.
17 The trial judge dealt with the mental element of the offence on a number of
occasions in her summing-up. Early on in her summing-up, she dealt with the
question of motive. She gave the following direction:
“[40] In this context I want to say a word about motive, as distinct from
motivation. As you know from the elements document, the motivation of the
accused Macdonald is an element of the offence (element 4). Because it is an
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element it is something that needs to be proved beyond reasonable doubt.

However, there have been references to motive, as well, which is a different
thing. For example, the Crown suggested that the accused Macdonald had a
motive to benefit Mr Maitland because he was leaving Parliament and could
expect Mr Maitland to help him when he left. It is not essential that the Crown
establish a motive of this kind. Evidence tending to establish a motive of that
sort is just one of many pieces of evidence making up a circumstantial case.
For example, to prove element 4a, the Crown does not have to satisfy you why
the accused Macdonald was substantially motivated to confer a benefit of 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 same is true for 4b.”
18 In dealing with [4] of her written direction (the mental element), she gave the
following directions:
“[72] There are two aspects to the fourth element, which you will see on the
list of elements and the Crown must prove each of them beyond reasonable
doubt. Before I come to the two aspects, I propose to give you some
instruction in the law associated with the exercise of a statutory power. The
power to grant consent to an application for an exploration licence is a
statutory power because it is conferred by a statute, which is another word for
an Act of Parliament, in this case s 13(4) of the Mining Act. In count 1, the
relevant power relied on by the Crown is the power that the accused
Macdonald had, as Minister for Mineral Resources, to grant consent to Doyles
Creek Mining Pty Ltd to apply for an exploration licence. In count 3 the
relevant power is the power to grant an exploration licence, which derives from
s 22 of the Mining Act.
[73] All public powers, including the powers under ss 13(4) and 22 of the
Mining Act, are legally granted on the basis that they are to be exercised in the
public interest and not for the personal advantage of the public officer who
exercises the power or for the benefit of his or her friends, family or
associates.
[74] A power of this nature is abused where an official, in the exercise of his
or her powers, makes a decision from what is called an improper motivation.
Now the proper motivation for exercising powers such as the one in s 13(4) is
the furthering of the public interest. If the motivation to give consent is to
confer a benefit on someone else that is an improper motivation.
[75] Now, of course, whenever a Minister gives consent to an applicant, A, to
apply for an exploration licence, the Minister confers a benefit on applicant A.
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 applicant A. However, if
the Minister grants consent because he or she is motivated to benefit
Applicant A, and not because he or she is motivated by the public benefit, the
Minister will be guilty of misconduct, even if the Minister may happen to
believe that there is some public benefit associated with the giving of consent.
[76] So you are not judging whether or not it was a good idea for the accused
Macdonald, as Minister, to grant consent to Doyles Creek Mining Pty Ltd to
apply for an exploration licence. What you are actually determining is what
motivated the accused Macdonald to grant the consent to Doyles Creek
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Mining Pty Ltd; in other words, why did he do it? Did he do it to benefit the
public or did he do it to benefit Mr Maitland?
[77] The way these principles are set out in the list of elements is set out in 4.
The Crown must prove two things: first, that in granting consent the accused
Macdonald was substantially motivated by the desire to confer a benefit on Mr
Maitland and Doyles Creek Mining Pty Ltd; and, secondly, the accused
Macdonald was not motivated to any significant degree by the object of
furthering the interests of the State of New South Wales.”
19 As will be seen, particular criticism was directed to [76].
20 The problem seen by counsel for Mr Maitland in relation to [76] was raised with
the trial judge and the following interchange occurred:
“JORDAN: We respectfully submit that it’s not appropriate for the jury to be left
with the question posed in those terms, that is, ‘Why did he do it, to benefit the
public, or to benefit Mr Maitland?’, for the following reasons: First, the question
must always be, has the Crown proved he did it in accordance with elements
4(a) and 4(b)? And if the Crown has not proved that specific motivation, then
the Crown has failed, even in circumstances where the jury cannot, or does
not form any view as to why he did it.
…
JORDAN: The question must always be, has the Crown proved beyond
reasonable doubt the motivation as set out in 4(a) and 4(b)?
HER HONOUR: Right
JORDAN: Next, we suggest: If the Crown has not proved beyond reasonable
doubt such motivation, then the Crown has failed, even in the circumstances
where you cannot form a view as to why Mr Macdonald exercised his powers
as he did.
And lastly, for abundant caution, I remind you that it is not the case that
granting consent intending to favour Mr Maitland necessarily establishes the
motivations as specified in elements 4(a) and 4(b), together.
That is what we propose your Honour.
HER HONOUR: All right, what I will do, subject to anything Mr Crown and Mr
Johnson said, is tell the jury that first bit: If the Crown has not proved
reasonable doubt. But I think the second bit is confusing, because if he did it
intending to benefit Mr Maitland, then that is exactly what 4 is about, and I
think it would confuse them. But certainly, I am prepared to say what you have
said before, and I will say that as soon as the jury comes in to emphasise to
them the importance of the Crown proving to the requisite standard 4(a) and
4(b). All right.”
21 Her Honour then gave the following further direction:
“[94] HER HONOUR: Good morning members of the jury. Yesterday I had
taken you through the elements of the charges against the accused
Macdonald, but there is one further thing I wish to emphasise about 4(a) and
4(b) of charges 1 and 3, and they relate of course to the motivation of the
accused Macdonald. You will see on your elements document, what is said
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there, and what the Crown must prove beyond reasonable doubt; those two
things, 4(a) and 4(b).
[95] Now I just want to emphasise that if the Crown had not proved beyond
reasonable doubt such motivation, then the Crown has failed, even in
circumstances where you cannot form a view as to why the accused
Macdonald exercised the power. So if you are uncertain about this, then the
Crown fails. The Crown has to prove beyond reasonable doubt each of those
two things, 4(a) and 4(b).”
22 Her Honour gave a separate direction in relation to the knowledge of Mr
Maitland. This was in the following terms:
“[113] Then in 4, you will see that the elements directed your attention to the
accused’s knowledge, which of course is a separate matter from intention.
Once again, the sub-paragraphs are set out and for each of them you must be
satisfied, if you come to this point, that at the time the accused encouraged
and assisted Mr Macdonald, the accused knew that. Then you move to (a),
whether you are satisfied beyond reasonable doubt that the accused Maitland
knew that Mr Macdonald was a public official. If you are, you go back to 4 and
move down to (b). So each of those must be dealt with individually.
[114] I should say, in the context of knowledge in element 4 of the counts
against Mr Maitland, that the accused Maitland does not, however, have to
have legal knowledge that the conduct to be committed by Mr Macdonald
actually amounts to a criminal offence. So knowledge of the law is not a
requirement. If it were a requirement, it would be in this list.”
23 Following the conclusion of the summing-up, the trial judge was asked the
following question by the jury:
“Could your Honour please clarify what the Crown must prove beyond a
reasonable doubt in relation to:
- Charge 1, element 4a; and
- Charge 2, element 1(d)(i)
Specifically, do the jury need to know, beyond reasonable doubt, the specific
benefit that would be received by the accused, Mr McDonald, in order to
establish ‘substantially motivated’?”
24 In discussion with counsel following the asking of the question, the following
interchange occurred:
“When one looks at the element in charge 1, element 4(a), the Crown has to
prove the accused was substantially motivated by the desire to confer a
benefit on John Maitland and Doyles Creek Mining Pty Limited. I propose to
tell the jury that in relation to 4(a), they need to be satisfied only of that matter
beyond reasonable doubt, and they do not need to be satisfied of any – that
the accused Macdonald would receive any benefit, let alone any specific
benefit. Although that is a matter they might take into account in deciding
whether the accused Macdonald had a motive and, therefore, whether the
Crown has proved 4(a).
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In relation to charge 2, element 1(d)(i), that’s obviously the corresponding

element in the charge against Mr Maitland, and so I think the answer in
respect of charge 1 would also apply in respect of charge 2.
Do you wish to say anything about what I have proposed Mr Johnston?
JOHNSTON: I think I do your Honour.
HER HONOUR: Yes.
JOHNSTON: I think there is a risk that arises, when I hear that question, that
the jury are somehow conflating the issue of whether an actual benefit is
received as opposed to what is the principal requirement of their
determinations, which is the motive. Your Honour certainly fixed that up, but I
think they certainly need to be refocussed to the fact that it’s the motive that is
important.
…
JOHNSTON: The other aspect that is troubling me, I will try and articulate it
obviously, is that first limb of 4(a), the notion of benefit is the improper benefit
as opposed to the fact that any conferral of an exploration licence, or an
invitation, brings with it a benefit. And obviously that distinction needs to be, I
think perhaps picked up by your Honour as well. Particularly if there is a risk
from that question that they are focusing simply on benefit as opposed to
motive.
HER HONOUR: Yes, thank you for that. I certainly accept that. The granting of
consent inevitably confers a benefit on the applicant, and the granting of an
exploration licence does the same, and if the Minister’s power is exercised
properly, that is the case anyway.
JORDAN: Yes.
JOHNSTON: Thank you.
HER HONOUR: I will make that point.”
25 Her Honour then gave the following additional directions:
“[618] Now the first thing I will remind you of is that whenever a Minister for
Mineral Resources grants consent to an applicant to apply for an exploration
licence, or grants an exploration licence, that inevitably benefits the applicant;
and that is whether the Minister does it in the interests of New South Wales,
which is a proper purpose, or for an improper purpose, namely to benefit the
applicant.
[619] So that is why in determining whether the Crown has made out element
4 in granting consent, the accused misconducted himself, you need to
concentrate on the accused’s motivation. Why did he do this? Did he grant
consent because he was substantially motivated by furthering the interests of
the State of New South Wales, or did he grant consent to benefit Mr Maitland
and Doyles Creek Mining?
[620] Now I am asking those questions in an open way, but you will see from
the elements document that because of the onus of proof, which of course is
on the Crown throughout, the Crown had to prove beyond reasonable doubt
that in granting such consent, the accused was substantially motivated by the
desire to confer a benefit on John Maitland and Doyles Creek Mining, and the
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accused was not motivated to any significant degree by the object of furthering
the interests of the State of New South Wales.
[621] Now, your question is asking about a specific benefit to the accused, Mr
Macdonald. Now, as you will see from the elements, the Crown doesn’t have
to prove any benefit at all to Mr Macdonald. On the other hand, you will recall
from the way the Crown put its case, it suggested various motives for why the
accused Macdonald might have granted consent, or granted the exploration
licence, and one of the motives it suggested was friendship, another motive it
suggested was that the accused Macdonald was going to get something out of
the relationship after he left politics.
[622] This is to do with motive, and that does not have to be proved beyond
reasonable doubt, and it’s something that you can take into account in
deciding whether the Crown has proved these elements on the elements of
charge sheets. But that is why the wording of these elements is very important,
and why when you come to element 4, what you are concentrating on is the
motivation of the accused Macdonald, and whether you are satisfied that the
Crown has proved both (a) and (b) in relation to 4. So motivation. Why did he
do this? That is why the word motivation has been used.”
26 That was essentially the last direction given to the jury.
Judgment of the trial judge on the mental element of the offence

27 In a judgment delivered on 8 March 2017, R v Macdonald; R v Maitland [2017]
NSWSC 337 (the elements judgment) the trial judge articulated the reasons for
her written direction as to the elements of the offence. Although these
proceedings are not, of course, an appeal from that judgment, her Honour’s
reasoning is of great assistance in considering the issues which divide the
parties.
28 Her Honour noted (at [12]) that the Crown accepted that it would not be
sufficient to establish that Mr Macdonald had no genuine belief that the
granting of consent was in the interest of the State of New South Wales but
that it must also prove that the accused was improperly motivated. She noted
that 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 DCM and Mr Maitland and 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 (elements judgment at
[15]).
29 Her Honour extensively reviewed the authorities, accepting (at [19]) that the
gravamen of the offence of misconduct in public office was as described by
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Professor Finn in “Public Officers: Some Personal Liabilities” (1977) 51 ALJ

313 at 315, 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”. She stated that it was apparent from Professor Finn’s analysis that
“the relevant mental element is motivation as distinct from knowledge, belief or
intention”. She stated that it was “the motivation, not intention or belief, which
determines whether the giving of consent or the grant of the licence” amounted
to misconduct. She stated that “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”. She stated that “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’”. She
stated that “the reason for the use of the term ‘motivation’ in the elements,
rather than ‘motive’” was to “maintain the distinction between motivation and
motive, which is relevant in a criminal trial for such an offence” (elements
judgment at [24]).
30 In that context, her Honour stated that “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, is to
benefit the recipient of the consent or the holder of the exploration licence”.
She stated that the use of the words “sole intention” creates an additional
difficulty because the expression tends to imply a dichotomy which she
considered to be a false one. She also stated that “insofar as it would require
proof of knowledge, it would import into the element an inapposite mental
state” in that “it is not an element of the offence that the accused knew that the
decision was not in the interests of the State” (elements judgment at [26]-[29]).
31 Her Honour stated (elements judgment at [31]) that “applying these principles
to the present case, the question [of] whether the accused Macdonald believed
it was in the public interest to grant consent to Doyles Creek Mining Pty Ltd
under s 13(4) or exploration licence to it under s 22 of the Mining Act, while
relevant is not determinative”. She stated that Mr Macdonald may have
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believed that the giving of the consent was in the public interest, but if his
motivation in granting consent or granting the licence was to benefit Mr
Maitland and DCM, the element of misconduct had been made out.
32 Her Honour stated, however, that she did “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”. She stated that “the Crown must
also prove, as part of the element regarding motivation, the negative: namely,
that Mr Macdonald was not motivated to any significant degree by the object of
furthering the interests of the State of New South Wales”.
33 Her Honour considered that her formulation of this element was supported by
what was said by the Court of Appeal of England and Wales in R v Speechley
[2005] 2 Cr App Rep (S) 75, in which the Court considered a direction which
included the following remarks:
“ .... 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.” (2004) EWCA Crim 3067 at [40]
34 In that case, the Court rejected the submission that the trial judge should have
adopted the approach of Widgery J in R v Llewellyn-Jones (1967) 51 Cr App R
4, where Widgery J, as his Lordship then was, indicated the boundaries of the
offence in the following terms (at 6):
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“ …. 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 ground 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.”
35 In that context their Lordships in R v Speechley made the following comments
at [44]-[45]:
“[44] As to the judge’s failure to refer to the insufficiency of the defendant

merely knowing that he was going to gain some personal benefit by a side
wind, we accept the response of Mr Martin Wilson QC for the Crown, who
submitted that to do so was unnecessary and would only have created
confusion because of the way in which the judge formulated the necessary
ingredients of the offence. 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.
[45] That is sufficient to dispose of the first ground of appeal, but we also
accept Mr Wilson’s 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.”
36 In the elements judgment her Honour, after citing the passages from the
judgment of the Court of Appeal to which we have referred above, stated that
she had “incorporated what was said in R v Speechley into the element
regarding motivation” 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”. She stated that she had 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 (No 12) [2016] NSWSC 1815.
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The parties’ submissions

a The appellants
37 In his written submissions Mr Macdonald criticised the formulation of the
element of intention in par (4) of the written direction on a number of bases.
First, he submitted that “the threshold of being substantially motivated was too
low for a criminal offence”. Mr Macdonald cited an example of a situation where
part of a Minister’s purpose in approving a project was to “assist his/ her
electoral prospects at the next election but his/her dominant purpose or
causative purpose was to generate jobs or development in the State”.
38 Second, Mr Macdonald stated that cases such as R v Borron (1823) 3 B & Ald
433 stand for the proposition that it is “the motive of the maker of the decision
which constitutes the hallmark of misfeasance”.
39 Third, he submitted that “the issue should not be a person’s motivation but
rather their purpose or intent”. Mr Macdonald stated that the “mens rea of the
offence lies in the intention to use one’s public office for purposes other than
the benefit of the public”.
40 Fourth, Mr Macdonald submitted that the test proposed by the English Court of
Appeal in R v Speechley, namely, that the accused was “motivated to a
significant degree by consideration of personal advantage”, was “not only too
low a bar but also presents the considerable difficulty of assessing what is
meant by a significant degree”.
41 Fifth, Mr Macdonald submitted that the trial judge erred in distinguishing

“Beech-Jones J’s determination in R v Obeid, that the proper test for the
mental element of the offence of misconduct in public office is the sole purpose
on the grounds that the indictment against the appellant did not allege any
mental state”.
42 Sixth, he submitted that the inclusion of the words “by the desire” in the
direction as part of element 4(a) was “otiose and liable to mislead the jury”.
43 Seventh, Mr Macdonald submitted that there were several problems with

element 4(b). He submitted first, that it was “arguably also otiose because it
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was captured by element 6”. Secondly, and more significantly, he submitted it

was “very difficult to measure what ‘significant degree’ actually means”.
44 In his written submissions, Mr Macdonald criticised the direction given in

answer to the question asked by the jury to which we have referred at [23]
above. He submitted that the direction, which we have set out at [25], posing
the question “Why did he [Mr Macdonald] do this?” was a direction likely to
mislead the jury.
45 Mr Macdonald also referred in his written submissions to the directions in [621]

and [622] of the elements judgment (see [25] above) where her Honour stated
that the Crown did not have to prove motive and that the real issue was the
accused’s motivation “Why did he do this?”. He submitted that “the distinction
drawn between motive and motivation is misguided as they are one and the
same and the distinction clearly did confuse and misled the jury”.
46 In submissions at the hearing, senior counsel for Mr Macdonald submitted that

what was said by the Court of Appeal in R v Speechley was not the law, or
alternatively, that the trial judge did not apply it properly. He stated that there
were numerous problems with the fourth element in her Honour’s direction,
submitting that the term “substantially motivated” was “vague, imprecise and
insufficient to demonstrate the mens rea that is required for proof” and that par
4(b) was similarly imprecise. He submitted that there was no suggestion in the
written directions that “the jury needed to consider that the appellant intended a
particular outcome”. He said that the Crown needed to prove that Mr
Macdonald was “working deliberately towards the improper granting of the
benefit”.
47 In those circumstances senior counsel for Mr Macdonald submitted that it had

to be proved that the improper motive was either “the sole operative motive or
was the real reason or sine qua non of the decision”.
48 Senior counsel for Mr Macdonald submitted that in those circumstances the

proper test was that the improper purpose had to be “dominant in the sense
that the impermissible purpose was causative” in that “but for its presence, the
power would not have been exercised”. In that context senior counsel for the
appellant relied on what was said by the majority of the High Court in
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Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285; [1987] HCA 11 at 294
to what was there described as “the preponderant view” of what was required
to invalidate an allotment of shares made for an impermissible purpose (T 8).
49 Senior counsel for Mr Macdonald also criticised [74]-[76] of the summing-up to

which we have referred at [18]. He submitted in relation to [74], that a mere
granting of a benefit itself did not demonstrate improper motivation, but rather,
it was “the intention to provide it partially, and therefore improperly that is the
mental element”. He submitted that [76] of the summing-up did not take into
account that the trial was a criminal trial where the onus and standard of proof
required “the elimination of [a] hypothesis consistent with innocence”. He
submitted that by asking the open-ended question, “Why did he do it?” the jury
was misled on an important issue concerning the outcome of the trial. Although
he accepted that her Honour corrected this later on, he submitted that her
concluding directions (see [25] above) fell into the same error.
50 He also submitted 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”.
51 Mr Maitland made broadly similar complaints about the written directions and
the summing-up as were made by Mr Macdonald. In relation to the written
direction he contended that the jury ought to have been instructed that to find
that Mr Macdonald committed the principal offences, the Crown needed to
prove that he was motivated solely by a desire to benefit Mr Maitland and DCM
and not motivated by the object of furthering the interests of the State of New
South Wales. His written submissions set out a number of contentions in
support of that proposed but ultimately at the hearing senior counsel for Mr
Maitland adopted the formulation of the appropriate direction by senior counsel
for Mr Macdonald, see [24] above (T 69).
52 Mr Maitland also submitted that the trial judge was in error in posing the
question (at [76] of her summing-up (see [18] above)) “Why did he [Mr
Macdonald] do it? Did he do it to benefit the public or did he do it to benefit Mr
Maitland”. He submitted that “the binary nature of the inquiry required the jury
to answer a question different to that which they ought as a matter of law have
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been called upon to answer, namely, whether or not the Crown had proved to
the criminal standard both the improper motivation on the part of Mr Macdonald
for which it contended and the absence of a proper motivation on his part”. He
submitted that “it distorted the role of the jury by inviting it to engage in a free-
ranging inquiry as to Mr Macdonald’s motivation”. He submitted that the
redirection subsequently given by her Honour (at [95] of the summing-up (see
[21] above)) was inadequate to overcome the problems associated with the
earlier direction. He submitted that it did “not expressly correct the error made
the day before and it did not include a reiteration of the jury’s proper role in
evaluating the Crown’s allegations”.
53 Senior counsel for Mr Maitland submitted that “the principal difficulty” in her
Honour’s formulation of element 4 in the directions was that “the words
‘substantial’ and ‘significant’ carry with them a great degree of uncertainty in
the sense of what is substantial and what is significant for the purposes of
determining whether or not there has been a wrongdoing of the type which
would engage element 4”. He submitted that the difficulty was even greater
when one comes to accessorial liability as it was necessary to assess whether
the person who was making the decision has formed the particular view about
what is substantial and significant, particularly in a case which may involve
mixed motives. He submitted that it was not enough to say as in Speechley
that it could properly be left to the good sense of the jury and that concepts of
significant and substantial in “these sorts of areas is a foreign concept in
criminal law”.
54 Senior counsel for Mr Maitland submitted that element 4(b) created even more
uncertainty around the central element of the offence because of the difficulty
of assessing the requisite balance of what “crosses the line” and what does
not.
55 Ultimately, senior counsel for Mr Maitland adopted what was said by senior
counsel for Mr Macdonald to be the appropriate direction, submitting that it was
“fundamentally different” to what the trial judge adopted.
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b The Crown
56 In its submissions the Crown accepted that, as the charges involved an
exercise of a discretion that was within power, “it was necessary to prove that
Macdonald acted with a corrupt or improper motive”. The Crown submitted that
it was not argued below that element 4 should have involved a dominant
purpose test and that, in any event, “a person’s dominant purpose or significant
motivation can be seen as alternative expressions of the same state of mind”.
57 The Crown submitted that the inclusion of the words “to a significant degree” in
element 4(b) posed “no more than a classic jury question”. It was described as
a question “the answer to which requires a normative assessment undertaken
by reference to community standards”. In that context the Crown relied on R v
Speechley at [45].
58 In its written submission the Crown submitted that any “oral inarticulation” of
the element test at [619] of the summing-up was immediately clarified by what
was said in [622].
59 The balance of the Crown’s written submissions were directed to what was
contended by Mr Macdonald and Mr Maitland at the trial, namely, that for the
offence to be established it had to be shown the improper purpose was the
sole purpose of the transaction in question.
60 At the hearing the Crown referred to the description in Whitehouse v Carlton

Hotel Pty Ltd at 294, of the invalidating impermissible purpose needing to be
the “substantial object” of the transaction. He submitted that her Honour used
the word substantial which had a correlation with dominant. Having made that
point the Crown submissions continued as follows:
“If we come down about a dozen lines there’s a reference to causative, that is
we come down a few lines there’s a sentence beginning ‘As a matter of logic
and principle’ do your Honours have that? ‘The preferable view … have been
exercised’. Then we come to questions about the but for test and whether
that’s an appropriate test to use in this area or not? The bench of five, your
Honours will come to your own views about that, but if I could seek to assist on
the circumstances of this case we say there was a causative test in any
event.”
61 It is unclear from that submission whether or not the Crown was accepting that
the approach in Whitehouse v Carlton Hotel Pty Ltd was the correct approach.
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62 The Crown then submitted that pars 4(a) and 4(b) dealt with what was
described as the “positive and negative” in a “mixed motive case”. He
submitted that “whatever the jury thought substantially motivated meant, they
knew that was the improper way”. He submitted that there was only one motive
or purpose which could be “the driving force or could be the dominant purpose
or could be causative or but for”. The Crown submitted that however mens rea
is looked at, the jury was given a “proper direction in the circumstances of the
case”. However, the trial judge expressly excluded the expression “driving
force” from her summing-up, relying on R v Speechley.
63 In relation to the complaint concerning [76] of the summing-up, the Crown

submitted that was immediately corrected by what was said in [77] which he
submitted set out properly what must be proved beyond reasonable doubt in
element 4. He also referred in that context to what was said in [94] of the
summing-up.
64 In relation to her Honour’s remarks at [618]-[622] of the summing-up, it

submitted they provided no great difficulty when considering the summing-up
as a whole and the fact that the jury had the written direction of the elements of
the offence.
Consideration
65 It must be said at the outset that the position adopted by the appellants in
relation to a sole purpose test was significantly different to their approach at the
trial. Further, although objection was taken to some elements of the summing-
up, no real criticism was directed to the use by her Honour of the words
motives and motivation, to which exception has been taken during the course
of argument in the present case.
66 Further, at the hearing of the appeal there ultimately appeared to be little

disagreement as to the appropriate test for the mental element of the offence.
Senior counsel for each appellant adopted a causation test (see [48]-[55]
above), an approach with which the Crown did not seem to take issue.
67 Whether or not that is the correct approach falls to be considered by reference

to the purpose of the common law offence. In Obeid v R (2015) 91 NSWLR
226; [2015] NSWCCA 309 at [133] this Court accepted as correct the
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formulation of the elements of the offence set out by the Victorian Court of
Appeal in R v Quach (2010) 27 VR 310; [2010] VSCA 106 at [46]. This
formulation was based on 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]. The
circumstances of the reformulation were set out in Obeid v R (2017) 96
NSWLR 155; [2017] NSWCCA 221 at [164] and it is not necessary to repeat it.
68 The object of the offence is to prevent public officers (in the case of
misfeasance) from exercising their power in a corrupt and partial manner.
Thus, in R v Bembridge (1785) 22 State Trials 1, Lord Mansfield at 155
formulated the liability of officers in the following terms:
“[I]f a man accepts an office of trust and confidence, concerning the public, …
he is answerable to the king for his execution of that office; and he can only
answer to the king in a criminal prosecution… [Secondly] where there is a
breach of trust, a fraud, or an imposition in a subject concerning the public,
which, as between subject and subject, would only be actionable by a civil
action, yet as that concerns the king and the public (I use them as
synonymous terms), it is indictable.”
69 In R v Borron, a case involving criminal information against a magistrate,
Abbott CJ made the following comments at 434:
“They [the magistrates] are, indeed like every other subject of this kingdom,
answerable to the law for the faithful and upright discharge of their trust and
duties. But, whenever they have been challenged upon this head, either by
way of indictment, or application to this Court for a criminal information, 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; whether from a dishonest, oppressive, or corrupt motive, under
which description, fear and favour may generally be included, or from mistake
or error. In the former case, alone, they have become the objects of
punishment.”
The same point was made in Boulanger v The Queen [2006] 2 SCR 49 at 73
where the Supreme Court of Court made the following remarks referring to the
ruling of Widgery J to which we have referred at [35];
“As with any offence, the mens rea is inferred from the circumstances. An
attempt by the accused to conceal his or her actions may often provide
evidence of an improper intent: Arnoldi. Similarly, the receipt of a significant
personal benefit may provide evidence that the accused acted in his or her own
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interest rather than that of the public. However, the fact that a public officer
obtains a benefit is not conclusive of a culpable mens rea. Many legitimate
exercises of public authority or power by a public servant confer incidental
advantages on the actor.”
See also Horne v Barber (1920) 27 CLR 494; [1920] HCA 33 at 500; R v
Boston (1923) 33 CLR 386; [1923] HCA 59 at 403.
70 More recently Lord Millett NPJ in Hong Kong Special Administrative Region v
Wong Lin Kay [2012] 2 HKLRD 898 summarised the rationale for the offence in
the following terms:
“[45] Every such power, duty, discretion or responsibility is granted for the
benefit of the public and for a public purpose. For the person having such a
power, duty or responsibility to exercise it or refrain from exercising it for his or
her own private purposes, whether out of malice, revenge, friendship or
hostility, or for pecuniary advantage is an abuse of power and amounts to the
offence of misconduct in public office.”
71 In Obeid v R (2017) 96 NSWLR 155; Bathurst CJ at [96] expressly left open the
question of whether it was a necessary ingredient of the offence when based
on an improper misuse of power, that the improper purpose was the sole
purpose. Leeming JA, without determining the question, stated at [335] that it
was “easy to contemplate cases where the improper purpose falls short of
being the sole purpose”.
72 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.
73 Although the authority on the question is relatively limited it is not inconsistent

with what we believe to be the correct approach. In R v Llewellyn-Jones in
which the Registrar of a County Court was charged with a count which alleged
he had made an order in respect of funds under his control in the expectation
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he would gain a personal advantage from doing so, Widgery J made the ruling
to which we have referred at [34] above.
74 That ruling which was not criticised on appeal, R v Llewellyn-Jones [1968] 1

QB 429, was subsequently approved by the Court of Appeal in R v Dytham
[1979] QB 722 at 726. In approving it, it was described by the Court of Appeal
as a “but for” test.
75 As their Honours pointed out in R v Speechley, the Court said it was sufficient
that the accused be influenced to a significant degree by the improper purpose.
Although, as will be seen 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.
76 In Boulanger v The Queen the Supreme Court of Canada considered the

elements of an offence under s 122 of the Canadian Criminal Code RSC 1985,
c. C-46. The section was in the following terms:
“122 Every official who, in connection with the duties of his office, commits
fraud or a breach of trust is guilty of an indictable offence and liable to
imprisonment for a term not exceeding five years, whether or not the fraud or
breach of trust would be an offence if it were committed in relation to a private
person.”
77 The Court determined (at [48]) that the mens rea and actus reus of the offence
must be determined by reference to the common law authorities which
considered the offence of misfeasance in public offence. In dealing with the
mens rea, the Court made the following remarks:
“[55] In the early common law cases, the mental element of misfeasance in
public office was imprecise and varied from case to case. However, common
law judges consistently insisted on the presence of some variant of nefarious
or dishonest intent. This was described using different terms: dishonesty,
corruption, partiality and oppression. All reflected a central concern: that public
officials, entrusted with duties for the benefit of the public, carry out those
duties honestly and for the benefit of the public, and that they not abuse their
offices for corrupt or improper purposes.
[56] … In principle, the mens rea of the offence lies in the intention to use
one’s public office for purposes other than the benefit of the public. In practice,
this has been associated historically with using one’s public office for a
dishonest, partial, corrupt or oppressive purpose, each of which embodies the
non-public purpose with which the offence is concerned.”
78 It should be noted that immediately following the passage cited, the Court cited
the ruling of Widgery J in R v Llewellyn-Jones with approval.
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79 It should also be noted that Widgery J’s formulation of the duty in R v

Llewellyn-Jones was referred to in the Court of Appeal in Attorney General’s
Reference (No 3 of 2003) [2005] QB 73 without disapproval at [39]-[40].
80 Professor Finn (as his Honour then was) in his article, “Public Officers: Some
Personal Liabilities” (1977) 51 ALJ 313, pointed to the fact that although “the
language of ‘trust and confidence’ seems at first a little incongruous in public
law it has not deterred the courts from equating the public officer with the
private law trustee and fiduciary”: (1977) 51 ALJ 313 at 315. Although the
analogy cannot be taken too far in formulating the elements of the offence,
assistance on the mental element can be gained from cases involving
breaches of fiduciary duties.
81 In the oft-cited passage in Mills v Mills (1938) 60 CLR 150, Dixon J as his
Honour then was made the following remarks (at 185):
“Directors of a company are fiduciary agents, and a power conferred upon

them cannot be exercised in order to obtain some private advantage or for any
purpose foreign to the power. It is only one application of the general doctrine
expressed by Lord Northington in Aleyn v Belchier: ‘No point is better
established than that, a person having a power, must execute it bona fide for
the end designed, otherwise it is corrupt and void’.
Upon the facts of the present case, or at all events upon the expressions used
by Lowe J in stating his findings, it may be thought that a question arises
whether there must be an entire exclusion of all reasons, motives or aims on
the part of the directors, and all of them, which are not relevant to the purpose
of a particular power. When the law makes the object, view or purpose of a
man, or of a body of men, the test of the validity of their acts, it necessarily
opens up the possibility of an almost infinite analysis of the fears and desires,
proximate and remote, which, in truth, form the compound motives usually
animating human conduct. But logically possible as such an analysis may
seem, it would be impracticable to adopt it as a means of determining the
validity of the resolutions arrived at by a body of directors, resolutions which
otherwise are ostensibly within their powers. The application of the general
equitable principle to the acts or 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.”
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82 Whitehouse v Carlton Hotel Pty Ltd, a case principally relied upon by the
appellants, concerned a breach of fiduciary duty. The majority made the
following remarks (at 293-294); (reference to citations omitted):
“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, e.g., 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 A.C.J., 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 C.J., 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.”
83 That approach is also consistent with the approach commonly adopted in
determining whether an exercise of power by administrative officers was for a
purpose foreign to the purpose for which the power was conferred: Thompson
v Council and Municipality of Randwick (1950) 81 CLR 87; [1950] HCA 33 at
106; cf Fazzolari v Parramatta City Council (2009) 237 CLR 603; [2009] HCA
12 at [55], [94].
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.
5KIPGFD[#WUV.++
85 Each of the appellants criticised the use of the word motivation in the written
direction. As we have pointed out the expression “improper purpose” is
commonly used in cases of abuse of fiduciary powers, see Mills v Mills;
Whitehouse v Carlton Hotel Pty Ltd, as well as in cases involving criminal
offences of improper use of position by an officer of a corporation, see, for
example, Chew v R (1992) 173 CLR 626; [1992] HCA 18 at 630, 633 and 635,
where the direction was criticised for failing to isolate the element of purpose
before the jury could bring in a verdict of guilty. Further, the difficulty with the
expression “improper purpose” identified by the trial judge is in our opinion
answered by the formulation of the direction which we have set at [84] above.
86 Notwithstanding, we do not think that the use of the word motivation had the
potential to divert the jury. Motivation has the same meaning as purpose when
used in this particular context. However, there is more 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 4(b) of her written directions.
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 (see [44]-[45] 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 Court stated
at 68-69 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.
5KIPGFD[#WUV.++
89 The difficulty, in our opinion, was compounded by the oral direction complained
of. We agree with the Crown that the problem with the direction contained in
[76] of the summing-up may have been overcome by what was said in [95] of
the summing-up, although that direction again referred the jury back to the
elements document containing the concepts of substantial motivation and not
motivated to a significant degree. However, in answer to the jury question
asked after they had retired, the trial judge again on two occasions ([619], [622]
of the summing-up) asked the question “Why did he do it?”, adding “did he
grant consent because he was substantially motivated by furthering the interest
of the State…or did he grant consent to benefit Mr Maitland or DCM” (almost
identical to the misdirection at [76]), inviting the jury to speculate as to the
significance of the competing motives.
90 It follows, in our opinion, with the greatest respect to the trial judge, that the jury
was not properly directed on the mental element of the offence.
91 No reliance was placed on the proviso to s 6 of the Criminal Appeal Act 1912
(NSW) by the Crown in its written submissions. However, at the hearing the
Crown in answer to a question from Adams J submitted that the proviso would
apply if the direction was wrong but effectively directed a dominant purpose
test even if not in those words. However, although it may have been possible
for the jurors to reason from the direction in that fashion, it does not seem to us
inevitable that they would do so. It follows that the Court cannot be satisfied
that there was not a substantial miscarriage of justice and in these
circumstances, it would not be appropriate to apply the proviso: Lane v The
Queen (2018) 92 ALJR 689 at [38].
92 It follows this ground of appeal has been made out.
Paragraphs [93]-[635] redacted.
Conclusion
635 [Redacted] We make the following orders in respect of each appellant:
(1) Appeal against conviction allowed.

(2) Conviction quashed.
(3) A new trial is ordered.
5KIPGFD[#WUV.++
(4) The matter is listed for mention in the Supreme Court Arraignments List
on 1 March 2019 or such other date as directed by the Criminal List
Judge.
(5) Pursuant to s 7 of the Court Suppression and Non-Publication Orders
Act 2010 (NSW), on the ground set out in s 8(1)(e) of that Act, order that
disclosure of [93]-[635] of these reasons (other than the orders
themselves) be prohibited pending further order of the Court. This order
does not apply to the disclosure of those paragraphs to the parties to
these proceedings, their legal representatives or the Court.
636 Reasons redacted as provided above will be published on Caselaw
pending re-trial.
********

Ian Macdonald Wins Appeal - Conviction Quashed - Out On Bail Pending Possible Retrial

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Ian Macdonald Wins Appeal - Conviction Quashed - Out On Bail Pending Possible Retrial

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Court of Criminal Appeal

New South Wales

Case Name: Maitland v R; Macdonald v R

Medium Neutral Citation: [2019] NSWCCA 32

Hearing Date(s): 13 & 14 November 2018

Date of Orders: 25 February 2019

Decision Date: 25 February 2019

Before: Bathurst CJ, Beazley P, Ward CJ in Eq, Hamill J, N

Decision: The following orders are made in respect of each

Catchwords: CRIMINAL LAW – appeals – appeal against conviction

CRIMINAL LAW – appeals – appeal against conviction

CRIMINAL LAW – appeals – appeal against conviction

CRIMINAL LAW – appeals – appeal against conviction

CRIMINAL LAW – appeals – appeal against conviction

CRIMINAL LAW – appeals – appeal against sentence –

Legislation Cited: Court Suppression and Non-Publication Orders Act

Cases Cited: Attorney General’s Reference (No 3 of 2003) [2005] QB

R v Bembridge (1785) 22 State Trials 1

Texts Cited: Professor Finn in “Public Officers: Some Personal

Category: Principal judgment

Parties: John William Maitland (Appellant)

File Number(s): 2015/59990; 2015/59940

Publication Restriction: Pursuant to s 7 of the Court Suppression and Non-

their legal representatives or the Court.

Decision under appeal:

Court or Tribunal: Supreme Court of NSW

Citation: [2017] NSWSC 638

Date of Decision: 2 June 2017

File Number(s): 2015/59990; 2015/59940

“4. Between 21 August 2008 and 16 December 2008 in Sydney and

7 In relation to Mr Maitland, the trial judge imposed an aggregate sentence of 6

8 Each of Mr Macdonald and Mr Maitland has appealed against his conviction

Grounds of appeal against conviction

“1) The accused was a public official.

A Minister of the Government of New South Wales is a public official.

15 So far as Mr Maitland was concerned, in respect of Charge 2, the written

c. did not have reasonable cause or justification; and

element it is something that needs to be proved beyond reasonable doubt.

In relation to charge 2, element 1(d)(i), that’s obviously the corresponding

Judgment of the trial judge on the mental element of the offence

Professor Finn in “Public Officers: Some Personal Liabilities” (1977) 51 ALJ

“ …. if the registrar of a county court when exercising his power to order

“[44] As to the judge’s failure to refer to the insufficiency of the defendant

The parties’ submissions

41 Fifth, Mr Macdonald submitted that the trial judge erred in distinguishing

43 Seventh, Mr Macdonald submitted that there were several problems with

was captured by element 6”. Secondly, and more significantly, he submitted it

44 In his written submissions, Mr Macdonald criticised the direction given in

45 Mr Macdonald also referred in his written submissions to the directions in [621]

46 In submissions at the hearing, senior counsel for Mr Macdonald submitted that

47 In those circumstances senior counsel for Mr Macdonald submitted that it had

48 Senior counsel for Mr Macdonald submitted that in those circumstances the

49 Senior counsel for Mr Macdonald also criticised [74]-[76] of the summing-up to

60 At the hearing the Crown referred to the description in Whitehouse v Carlton

63 In relation to the complaint concerning [76] of the summing-up, the Crown

64 In relation to her Honour’s remarks at [618]-[622] of the summing-up, it

66 Further, at the hearing of the appeal there ultimately appeared to be little

67 Whether or not that is the correct approach falls to be considered by reference

73 Although the authority on the question is relatively limited it is not inconsistent

74 That ruling which was not criticised on appeal, R v Llewellyn-Jones [1968] 1

76 In Boulanger v The Queen the Supreme Court of Canada considered the

79 It should also be noted that Widgery J’s formulation of the duty in R v

“Directors of a company are fiduciary agents, and a power conferred upon

84 Having regard to these authorities, it seems to us that the direction as to the

92 It follows this ground of appeal has been made out.