Criminal Law - trial - direction to jury - whether misleading - consideration of common facts toa two characs entailing different _verdicis. - bribery - s.73 Crimes Act 1914 (Commonwealth) - corrupt purpose not required. - conspiracy - possible confusion between of conspirators and object of conspiracy. CORAM: BLACKBURN, FRANK] AND ST. JOHN JJ. CANBERRA 2 MARCH 1975, Sa a sepracomen meres i z IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION No. F.C. 13 of 1978 wm SS ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPLTAL TERRITORY BETWEEN: IVAN RAYMOND WILLIAMS Appellant AND: THE QUEEN Xe spondent ORDER | THE COURT GRDERS THAT: ] i. The convictions and sentences in respect of the charges of attempted bribery are affirmed. 2. The appeal against the conviction on the charge of conspiracy is upheld. Ww 'There be a new trial on the charge of conspiracy. 4, The sentences on the charges of .attempted bribery be stayed until verdict in the re-trial of the conspiracy charge, or until the further order of the Court. CORAM: BLACKBURN, FRANK] AND ST. JOHN JJ. CANBERRA - GENERAL DIVISION IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY Ne eee Re ee Zz fe) 'Tl : () - Ww ° Kh pe ite) I wo ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY 'BETWEEN: IVAN RAYMOND WILLIAMS Appellant Respondent CORAM: BLACKBURN, FRANKI §& ST.JOHN JJ. 2 MARCH 1979 REASONS FOR JUDGMENT BLACKBURN J. The appellant was convicted on 7 July 1978 in the Supreme Court of the Australian Capital Territory on three counts contai in one indictment. The first count was of conspiring with snothe: named person (hereinafter called M) "to obstruct the course of justice, that is to say to cause Constable Garry Ian Griffiths and Constable Bruce Anthony Howard to act corruptly in relation to the preferring or prosecuting of charges." The second ceunt was of attempting to bribe a Commonwealt? officer, to wit Garry Jan Griffiths, a member of the Police Force of the Australian Capital Territory "in that he did offer the sum of $1000 to the said Garry Ilan Griffiths with the intention that part thereof was to be received by the said Garry Ian Griffiths as a fee or reward to have certain charges arising under the law of the Commonwealth and of the Australian Capital Territory then pending against (the appellant) terminated favourably for him." The third count was the same as the second, except that the name Bruce Anthony Howard appeared in place of the name Garry Jan Griffiths. On the charge of conspiracy, the appellant was sentenced to two years' imprisonment with hard labour, with a non-parole period of one year. On each of the cherges of attempted bribery, the appellant was sentenced to six months' imprisonment with hard labour, all the sentences to be concurrent. The appellant appeals against the convictions on the ground of the misdirection of the jury by the trial judge. In the alternative, the appellant appeals against the severity of the sentences. Before the trial began, there was a complicated sequence of objections to, and amendments of, the indictment. -When the accused was arraigned on the indictment on which he was eventualiy tried (the one described above) on the charge of conspiracy, he was not asked to plead in the usual way; instead, he was asked whether he wished to taintain the pica yt guiity which he had. m: that charge, on an earlier occusion, when it hud been the sole count assem sieichesaninnineaamasinnsaanii in an indictment. To this question the accused replied "yes" indicating that he wished to maintain his plea of not guilty to that charge. This procedure was, formally, irregular. The accused had pleaded not guilty to a charge contained in an indictment in which it was the only count. The indieenen. Winleh was preferred on the later occasion, (i.e. the one on which he was convicted) which contained that count and two others, was a separate indictment, and he should have been asked to plead to each count in it in the ordinary way. The fact that there was, and still is, another indictment on the file, to which he has pleaded not guilty, is irrelevant to the trial which actually took place and to this appeal. It was conceded by counsel on both sides, however, that what the accused said, when asked whether he wished to maintain his plea of not guilty to the first count in the indictment, could properly be treated as a plea of not guilty to that charge. One of the grounds in the notice of appeal is that the decision of the trial judge, in not requiring the prosecution to elect to proceed either on a charge of conspiracy or on charges substantive offences, was erroneous, and that this in itself vitiated the conviction. As I understood him, counsel for the appellant did not take this point as an independent ground of appes 'rather, he conceded that a trial judge has a discretion in such a matter; but he used the fact that the accused was charged on the three counts of the indictment as a ground supporting his contentio that there was a misdirection. Tn effeet he said that the co- existence of the count of conspiracy and the two counts of attempte. bribery required a direction from the judge which he failed to give. This is exnlained below. The first .contention of counsel for the appellant was that the trial judge misdirected the jury in the construction which he put upon s.73 of the Crimes Act 1914 (Commonwealth), the section creating the offence charged in each of the two counts of attempted bribery. That section reads as follows: "(1.) Any Commonwealth officer who obtains Or attempts to obtain any bribe shall be guilty of an offence. Penalty: Imprisonment for two years (2.} Any person who bribes or attempts to bribe any Commonwealth officer shall be guilty of an offence: Penalty: Imprisonment for two years (3.) In this section - "bribe' includes the giving, conferring or procuring of any property or benefit of any kind in respect of any act done or to be done, or any forbearance observed or to be observed, or any favour or disfavour shown or to be shown, in relation to a matter arising under a law of the Commonwealth or of a Territory 'or otherwise arising in relation to the affairs or business of the Commonwealth or of a Territory; 'Commonwealth officer! includes a person who performs services for or on behalf of the Commonwealth, a Territory or a public authority under the Commonwealth." The trial judge directed the jury that upon the proper construction of this section, the offence is committed not only by paying a police officer to commit a breach of duty, but also by paying him te enceurage him to proceed, or proceed further, in his investigations in other words by paying him to do what it is already his duty to do. The contention of the appellant was that this is not the true con- struction of the section; that the section is limited to the w conferring of a benefit in order to deflect the person receiving the benefit from doing his duty, or to encourage him to do something which is a breach of duty. On the charges of attempted bribery, it was the appellant's | case that he paid money to cach of the two constables in order to encourage the constables to proceed further in their investigation, in the belief that he, the appellant, was being "framed" by another named police officer, and in the confidence that, if the two con- stables did so proceed with their investigations, they would discover that the truth. was as the appellant contended. The trial judge carefully and explicitly directed the jury that this explanation by the appellant, if believed, would not exculpate him; that payment in such circumstances and with such an intention would be a breach of the section no less than would be a payment intended to divert the constables from the performance of their duties. If the contention of the appellant is correct, obviously the convictions on the counts of attempted bribery cannot stand. In my opinion this is a case where the legislative history is helpful in determining the proper construction of the section. In its original form, as enacted by Act No.12 of 1914, t! section read as follows: 6. "Any person who - (a) being a Commonwealth officer, and being charged with any duty by virtue of his office or employment, corruptly asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind, for himself or any other person, on account of anything already done or omitted to be done, or to be afterwards done or omitted to be done, by him in the dis- charge of the duties of his office or employment; or (b) corruptly gives, confers, or procures, or promises or offers to give confer, procure, or attempt to procure to, upon, or for, any Commonwealth officer, any property or benefit of any kind on account of any such act or omission on the part of such officer, shall be guilty of an indictable offence. Penalty: imprisonment for seven years." In that provision the word "bribe" was not used; to say of the section that it struck at bribery would have been an imprecise, but not an incorrect, statement. The original side-note was "official corruption" and the word "corruptly" appears in each paragraph of the section; thus "corruption" (whatever that means) was an essential element in the commission of each of the two offences created. The word has, in my opinion, a strong connotation of misconduct, i.e. dereliction of duty, whether by act or aniscien. To that extent, the scope of the section resembles that of the 'common law offence of bribery, which implied the intention to procu>: a breach of duty on the part of the official bribed. On the other hand, the original s.73 went outside the confines of the common law offence of bribery in the manner in which it prescribed the inten 7. of the person committing either of the two offences which it created. The material words for this purpose are those of paragraph' (a): done or omitted to be done...by him in the discharge of the duties of his office or employment;" "...0n account of anything already It appears that there is no case at common law in which.it has been held that the making or receiving of a payment on account of some- thing already done or omitted by the receiver of the payment, (apart | from a previous promise to pay) is the offence of bribery at common law. Teo that extent, at least, the section in its original form went beyond the boundaries of the common law. The amendment of 1926 shows a different approach to the formulation of the offence. By s.22 of Act No.11 of 1926, the whole section was repealed and a new section was inserted in its stead. The néw section read as follows: "(1) Any Commonwealth officer who obtains or attempts to obtain any bribe shall be guilty of an offence. Penalty: imprisonment for two years. (2) Any person who bribes or attempts to bribe any Commonwealth officer shall be guilty of an offence. Penalty: imprisonment for two years. (3) In this section 'bribe' includes the giving, conferring or procuring of any property or benefit of any kind in v4 any tect 4 > th : A or any forbearance Gbsurved or to be observed, or any favour or disfavour shown or to be shown, in relation to the affairs or business of the Commonwealth." . Had the Parliament enacted only the first two subsections of that new section, there would have been a very strong argument that the scope of the offences created by the section, and the common law offence of bribery, were the same. The deliberate adoption of the word "bribe", in place of the more elaborately defined offence created by the earlier form of the section, would have strongly suggested that result. But, in addition, an extended meaning was given to the word "bribe" by the new subs.(3). The word "includes" in that subsection, is Significant, suggesting that what is to be included is something which either certainly was not, or only doubtfully was, within the already accepted meaning of that word, i.e. the common law meaning. By s.4i of the Act No.84 of 1960, subs.(3), quoted above, was repealed, and the subsection in its present form was enacted. The changes are not, I think, material to this appeal. The legislative history shows, in my opinion, that the offences created by the section were never confined to applicabie to the relevant common law. This is shown first, in 1914, by the provision of offences created by specially drafted forms of words which are not consistent with the common law; secondly} in 1926, by the adoption of the word "bribe" with a definition claus which cannot be construed so as to confine that word to its common law meaning. In my opinion, the learned trial judge was correct in his direction to the jury that s.73 makes criminal a payment to a Tor the purpos enmcourdgines Aim te do his \ think that the words 9. "any act done or to be done... in relation to the affairs or business of the Commonwealth" must be taken as being intended by the legislature to cover acts which the person receiving the payment is already in duty bound to do. I do not find it possible to say that there is here any ambiguity sufficient to justify the application of the principle that a penal provision must be construed strictly; indeed, the construction I suggest is in my opinion the strict construction. I am not disturbed in this view by the fact that the person responsible for the side-notes has retained the words "official corruption" even in the latest reprinting of the Act. Nor do fT find any difficulty in understanding the legislative policy: that public servants should expect no reward for their services other than that to which they are legally entitled. In my opinion, therefore, there is no ground for up- setting the convictions on the second and third counts. To understand the appellant's attack on the trial judge's directions on the first count, it is necessary to explain some matters of fact in their relation to the respective counts o/ conspiracy and bribery. The case for the prosecution was, first. that the appellant and M conspired te bribe the two constables te suppress charges against the appellant: so much was said to establish the charge of conspiracy; and secondly, that the appella paid money to each of the two constables for the same purpose: so much was seid to establish th urges of attempted bribery 10. in one insignificant matter (the number cof charges to be suppressed) which was carcfully explained to the jury by the trial judge, and has nothing to do with this appeal, it was never suggested by the prosecution that there was a'difference between the object of the conspiracy and the object of the attempted bribery. The defence was, as to the conspiracy count, a denial of the agreement with M; and as to the two other counts, that the money was paid, as explained above, in order to induce the constables to press on with their investigations. The appellant made 'an unsworn statement at the trial, in which he admitted that he had this intention before he made the payments, at the time when the prosecution alleged that he was in conspiracy with M. In this Court, the argument for the appellant relating the first count was that the learned trial judge erred in failing to make clear to the jury that if they accepted the accused's explan- ation of his purpose in paying money to the constables, and on the footing (in accordance with his directions on the proper con- struction of s.73) found the accused guilty on the second and +h:: counts, it would be inconsistent to find him guilty on the first count. The reasoning was that the purpose alleged in the first count was to obstruct the course of justice by causing the con lia to act corruptly. "To act corruptly", it was said, could not possibly include "to do their duty". For the respondent it was s' mitted that the jury's verdict, in the light of the judge's directions, showed that Btaen 'laid rejected the accused's explanution af hic OL nNIS purpose in payin: 4 5 na We SATUS EL Il. payments were intended to induce the constables to commit breaches of duty; there was thus no inconsistency between the verdict of guilty on the first count and the verdicts of guilty on the second and third counts. Counsel for the appellant contended that, in the light of the judge's directions, this Court could not be satisfied that the jury had come to that conclusion, that there was a real possibility that the jury, accepting the accused's and not the prosecution's version of iis object in paying the money, might have convicted the appellant on the bribery charges in accordance with the construction of s.73 which the judge told them was correct, and failedto realize that, on that basis, the conspiracy alleged in the first count was not made out. Quite early in his direction to the jury on the first count - which came after his directions on the second and third counts - the learned judge said ",..you would have to be satisfied that there was an agreement and that the agreement was to obstruct the course of justice, not just to ask the constables to do their duty or anything of that sort, but to act not in accordance with their duty by doing something wrong, acting corruptly in relation to the preferring or prosecuting of charges." This is obviously correct. He then explained the nature of the agreement' which is the essence of conspiracy, and the ways in which Li an agreement can, in principle, be proved. He then made clear that the charge of conspiracy was distinct from the charges of bribery, and in doing so he said "The gist of the conspiracy charge is the fact of the agreement to do the unlawful act; and it is only if you are satisfied that there is such an agreement as that that you could bring in a verdict of guilty on the conspiracy charge." At this particular point the judge did not advert to the exact natui of the illegality of the object alleged in the indictment to be the object of the conspiracy; but this was not unreasonable; he was not; at that stage, concerned with that point. After dealing with certain facts alleged to be evidence of a common design, the judge emphasized that proof of the uniawfu! agreement was sufficient to establish the conspiracy, without pro of any acts done in furtherance of it. He explained that certain evidence, admissible only on the issue of the agreement, had to be disregarded on the second and third charges. He then said "...if, after considering the whole of the evidence on the conspiracy, you take the view that the only reasonable inference to be drawn is that there was an agreement between the two of them that this money was to be paid over for purposes of getting the police to act 'corruptly in respect of a charge, then it would be your duty to bring in a verdict of guilty on the conspiracy charge." The learned judge then da. in eteil with the evidence prosecution cn the conspiracy charge. In the course of doing se he said "On that evidence, which is not all the evidence but it is the main part of the evidence, as .I under- stand it, the Crown asks you to say, from the evidence of those two menbers of the police force, that when you put ail that together it is an inescapable inference that the accused and (M) had put their heads together at an earlier time and decided that the $1000 was to be offered to the two members of the police force for the purpose of obstructing the course vf justice by getting them to act corruptly in having the charges withdrawn or otherwise dealt with to the advantage of the accused." He then proceeded to deal with some further prosecution evidence, and then turned to the case for the accused. He gave an account of what the accused had said in his unsworn statement: this included the assertion already referred to, that the object of the payment of the money was to encourage the constables to pursue their investigations in order to discover who was "framing" the accused. The judge went on to explain that the essence of the case for the accused was that there was no agreement, and reminded them that the accused had said that he did not know the identity of a person who had telephoned him (who, on the Crown case, was M). Then the learned judge said ",..on that account of it, you could not possibly find that there was a common design between him and (M), to obstruct the course of justice and to offer $1000 to the policemen to get them to act corruptly in relation to a charge or charges, and that on that basis there was no case " Him Of CONSPis 14. Taken literally, the iast clause in this sentence means the opposite of what the learned judge obviously intended, but I have no doubt that the jury correctly understood his intention. The learned judge then dealt with an argument put to the jury by counsel for the defence. This passage in the sumning-up was criticized by counsel for the appellant (who was not briefed at the trial) as obscure, and likely to confuse the jury, but in my opinion it is sufficiently clear. The passage is as follows: "There is one matter that I mention before leaving this subject of con- Spiracy, and it is this. Mr kenny put it to you that the purpose - contrary to his submissions about other things - if you accepted the presecution case, at least toa certain extent, and you accepted some of the evidence for the Crown which he has submitted you should not accept, you could come to the conclusion that if any arrangement was made it was made on the part of the accused for the purpose of offering a bribe or offering a pay- ment to have the charges withdrawn, or in some other way to have them improperly stcpped or rendered in- effective, and that that was the purpose that the accused had, or else the other purpose that we discussed this morning, perhaps getting further investigations done in order to clear him. Whereas, if you accepted the Crown case, the man (M) had a different purpose altogether. He was, on the Crown case, trying to have the money paid over so that he could get part of it. Now I am bound to tell you that as a matter of law that would not constitute a defence. As far as the law is concerned the important thing is not the metive or even the purpose for which the common design exists, it is the - "without being too technical about it, it is the object of the common design. If you are satisfied beyond reasonable doubt that there was a common design and the object was to pay a $1000 to obstruct the course of justice, to get the policeman to act corruptly in relation to the charges, if you are satisfied that that was a design common to both (M) and the accused, that would amount to conspiracy. It would not stop it from being conspiracy because each of them had a different reason for wanting to do it. But as I say, having said that, it is still necessary before you can bring in a verdict of guilty on the charge of conspiracy that you be satisfied beyond reasonable doubt that there was a common design such as I have indicated to you." The learned judge was explaining the distinction between the motive for which a conspirator takes part in the conspiracy (postulated here, on the part of M, as a desire to get a share of the money) and the object of the conspiracy (postulated here as the procure- ment of breaches of duty by the. constable). The jury was being told, (correctly, in my opinion) that the fact (if it were a fact? and that the accused/M had different personal reasons for conspiracy was not a defence available to the accused, if he and M had a common design to effect an unlawful purpose, namely the corruption of the constables. I have had the advantage of reading, and indeed I have studied with great care, the reasons for judgment which are to be 16is cannot agree that the learned judge's summing up was likely to mislead the jury in the manner which my brother Franki thinks possible. I would agree with him had the learned judge confined himself to saying the words which Franki J. quotes: but in my opinion the very next words in the summing up, (which I have quoted) are sufficient to prevent the misconception which Franki J. suggests. In other words, in my respectful opinion, the passage beginning "As, far as the law is concerned the important thing is not the motive or even the purpose -for which the common design exists..." and ending "Tt would not stop it from being conspiracy because each of them had a different reason for wanting to do it." taken in conjunction with the passage immediately preceding it, is a sufficiently clear explanation of the difference between the motive of the conspirator and the object of the conspiracy. Not- withstanding the respect I have for any opinion of Franki J., I do not feel any serious doubt that the jury understood this passage correctly. I need not refer to any later passages from the summing- up, except to quote one passage: ".,.in this case the Crown relies on 'what it alleges the accused said and did afterwards as indicating beyond 17. reasonable doubt that when the accused and (M) made the agreement, he intended to carry out the unlawful act of offer- ing money to corrupt the police." It will be seen from the passages quoted that the learned trial judge made abundantly clear to the jury the matters about which they had to be satisfied, and the required degree of satisfaction, in order to convict the appellant on the charge of conspiracy. I am clearly of opinion that those parts of the summing-up which explicit- ly applied to the conspiracy charge, together with those parts which were general and applied to all the charges, were an amply sufficient set of directions to the jury on that charge, and that if they stood alone there would be no ground for setting aside the verdict. I hols a corresponding opinion about the di naweions to the jury in their relation to the attempted bribery charges. The question, however, is whether the summing-up was faulty in what it did not say, namely that the evidence did not permit both the inference that the accused conspired to corrupt the police (in the sense in which I have used the word "corrupt") and the inference that he paid them money to encourage them to do their duty, and thus that convictions on the attempted bribery charges, if they were on the latter footing, necessarily entailed acquittal 'on the charge of conspiracy. After considerable hesitation I have come to the con- clusion thut the conviction for conspiracy ought not to stand. T8¢ have not had the advantage of reading a transcript of the addresses of counsel; but I have read the transcript of the exceptions taken 'at the trial to the summing-up, and 1 note that learned counsel for the accused did not ask the judge to give the jury the direction which, it is now said, he should have given. This makes me hesitate and wonder whether I am not falling into the error of failing to sce the case as a whole, as it must have appeared to the court and jury at the end of a long trial. But my doubts remain. The appellant in his unsworn statement said clearly that his purpose in making the payments to the constables was to induce them to investigate further. | The judge ruled - after determined and detailed argument by counsel to the contrary, in the absence of the jury - that this purpose did not make the payments innocent under s.73; and he clearly and repeatedly so directed the jury. This Court is asked to say that the jury could not possibly have accepted the appellant's explan- ation, on the ground that the verdict on the conspiracy charge could have been based only on the rejection of that explanation. The fallacy in that argument is that it ignores the possibility that the jury, by inadvertence, considered the conspiracy charge and the attempted bribery charges in two watertight compartments. They may have overlooked that there was an issue of fact, common to all charges, which, if it were determined one way, would entail different verdicts. I cannot feel that this possibility is negligible. ar must be seldom th: , stimaing-up, impeccable in what it says on each of two separate charges, js held to be faulty becaus. of what it does not say about the consequences of an issue of fact common to both. In my opinion that is the situation in this appeal. 19. The possibility that the jury fell into error seems to me to be more than merely fanciful. Because of that possibility, I would set aside the conviction and sentence for conspiracy and order a new trial on that charge. I would uphold the convictions for attempted bribery. T turn to the question of sentences. In the course of hearing the submissions of counsel for the defence on the question of sentence, His Honour made the following observation: "I must say that...in view of the jury's verdict on the first count it seems to me that I should direct my attention to that as far as penalty is concerned and that nothing that could happen on the second and third charges would add to 'it in any way. There would probably have to be penalties on the second and third charges but I would be thinking, in view of the jury's verdict, that one would be considering the first charge almost in isolation because it must encompass the other two." . In passing sentence he said "The conspiracy charge having been proved, I think that the sentence should be imposed in respect of it and that no . extra punishment should be added for the bribery offences." It is settled law that in passing sentence on a person convicted after a plea of not avitty, a trial judge has to form his , own view of the facts: he is not bound to assume that the jur) — ee 20. the most lenient view of the facts -which would support the verdict: sec R. v. Harris (1961) V.R. 236. In this case the learned judge must have taken the view, in passing sentence for the offences of attempted bribery, that the appellant had tried to deflect the policemen from their duty. His remarks which I have quoted appear to express his reason for making the sentences for those offences concurrent with, and not cumulative upon, the sentence for the offence of conspiracy. In my opinion the sentences for attempted bribery have not been shown to be based on any error of principle, or manifestly disproportienate, and I would uphold them. I would order that the execution of these sentences be stayed until verdict in the re-trial of the conspiracy trial, or the further order of this Court. lo I certify that this and the preceding pages are a true copy of the Reasons for Judgment herein of bis Honour Mr. Justice * Erte: Associate IN THE FEDERAL COURT OF AUSTRALIA ) AUSTRALIAN CAPITAL TERRITORY . No. F.C. 13 of 1978 DISTRICT REGISTRY . GENERA, DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN : IVAN RAYMOND WILLIAMS Appellant AND : THE QUEEN Respondent CORAM: BLACKBURN, FRANKI & ST.JOHN JJ. 2 MARCH 1979 REASONS FOR JUDGMENT FRANKI J: The appellant Ivan Raymond Williams appeals against his convictions and also against the severity of 'the sentences imposed. Williams.was found guilty by a jury in the Supreme Court of the Australian Capital Territory on three charges, two of attempting to bribe and one of conspiracy. On the conspiracy charge Williams was sentenced to two years imprisonment. with hard labour and a non-parole period of.one year and on each bribery charge to six months imprisonment with hard labour, all sentences to be concurrent. The first charre of attempting to bribe was that the appellant had attempted to bribe Constable Griffiths, a member of the police force of the Australian Capitel Territory, by offering him a sum of money with wnt (2? the intention that it was to be received by Constable Griffiths as a fee or reward hos have certain charges arising under the law of the Commonwealth and of the Australian Capital Territory then pending against him terminated favourably for him. . The second charge of attempting to bribe was in precisely the same terms and alleged an attempt to bribe Constable Bruce Anthony Howard also a member of the police force of the Australian Capital Territory. The other charge, one of conspiracy with a person, whom I will call"Xwas that the accused "Did conspire together with [X]to obstruct the course of justice, that is to say to cause Constable Gary Ian Griffiths and Constable Bruce Anthony Howard to act corruptly in relation to the preferring or prosecuting of charges". The indictment containing the three charges was not the first indictment against the appellant in relation to the matters of which he was convicted but I do not consider it necessary to trace the history prior to the accused being put in charge of the Jury on the relevant indictment. The main point in this appeal so far as the charges of bribery are concerned involves the construction of s.73 of the Crimes Act 1914. At the relevant date that section read as follows : "(1.) Any Commonwealth erriser who obtains or attempts to obtain any bribe shall be guilty of an offence. Penalty: Imprisonment for two years. (2.) Any person who bribes or attempts to bribe anv | onvealth officer = rr : ; ap 3G J : 3 am aL Nee. Penalty: imprisonment for two years. (3.) In this section - 'pribe' includes the giving, conferring or procuring of. any property or benefit of any kind in respect of any act done or to be done, or any forbearance observed or to be observed, or any favour or disfavour shown or to' be shown, in relation to a matter arising under a law of the Commonwealth or of a Territory or otherwise in relation to the affairs or business of the Commonwealth or of a Territory; 'Commonwealth officer' includes a person who performs services for or on behalf of the Commonwealth, a Territory or a public authority under the Commonwealth." : The section was in a different form when the 1914 Act was enacted. It was amended in 1926 and sub-~section(3) was further amended in 1960. I do not consider the history of the section to be relevant but I note that in the original form the word "corruptly" was used where that does not appear in the present section. As to whether the word "corruptly" means not "dishonestly" but only "purposely doing an act which the law forbids" see Archbold "Criminal Pleading Evidence and Practice" 39th Edn. at para. 3996, R. v. Smith [7960] 2 Q.B. 423 and C. v. Johnson [1967] S.A.S.R. 279. If one approaches s.73(3) as a matter of. construction ,in my opinion,the intention or purpose or object with which money is handed over is irrelevant. The section uses the word "includes" and doesrot contain any qualification such as "unless the contrary intention appears" and provides that a bribe includes "the giving -. of any property ... in respect of any act done or to be done ... in relation to a matter arising under a u In the wealth 03 subject case the appellant's version, even if believed, was that he gave money to a police officer for the purpose of having investigations made, not in any improper manner, as a.result of which he hoped that a charge which had been laid against him in relation to taking and using a motor vehicle and a charge of rape, which the police were giving consideration to laying, would bé dismisseda and not laid respectively, but in a way which would involve the police, apart: from any question of accepting the money, in no improper or immoral act. There is no doubt that the charge of taking and using a motor vehicle was a matter . arising under a law of the Commonwealth or of the Australian Capital Gerrt tony and that money is embraced in the word "property" and that the money was handed over in respect of an act to be done in relation to the charge and that the two constables were Commonwealth officers. Therefore, prima facie, the appellant's conduct, even on his own case, fell within s.73. I consider that the appropriate construction of a penal section is as I set out in Thompson v. Mastertouch T.V. Service Pty. Ltd. (1977) 29 F.L.R. 270 at p.280. I will not repeat all I there said but I quote only from Beckwith v. R. (1976) 135 C.L.R. 569 at p.576 where Gibbs J. said : "the rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning 'of a penal statute the ordinary rules of construction must be Ha la StCAvULE Cs aS a uous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: -5- see R. v. Adams (1935) 53 C.L.R. 563, at pp.507-568; Craies on Statute Law, 7th ed. (1971),pp. 529-554, The rule is perhaps one of last resort." . I consider that the relevant words in s.73(3) are clear and I see no reason to restrict what I consider is: their meaning. They appear to me to be designed to prevent situations arising where duty may possibly conflict with interest. It was also stressed on behalf of the appellant that mens rea in the appellant had to be established. 'In my opinion the appellant had the intention of paying the money involved and nothing appears to support any argument based on the alleged absence of mens rea. I would dismiss the appeal in so far as it relates to the charges of attempt to bribe and I also consider there is no reason to alter the sentences imposed in respect of those charges. I pass now to consider the question of the conspiracy charge. It may be sae, Since a conspiracy charge can be founded on an agreement to perform an unlawful act, a charge of conspiracy can be based on any attempt to give money to a Commonwealth officer in respect of an act to be done in relation to a matter arising under a law of the Commonwealth. However, the charge laid was of conspiracy to obstruct the course of justice, particularised in that it was a conspiracy to cause Constable Griffiths and Constable Howard to act yd") tr in relation to the rreferrinre or vrosecuting or char The trial was conducted on the basis that BEG. corruption in rekbion to the preferring or prosecuting = 6 = of charges had to be proved by the Crown. I consider that the basis of conspiracy is that there must be a common design on the part of the conspirators. The appeal was argued pefore us on the basis that if there was no common design there could be no conspiracy. 'See generally as to common design: R. v. Meyrick (1929) 21 Cr. App. R. 94 at pp.101-102, Ex parte Coffey; Re Evans [1971] 1 N.S.W.L.R. 434 at p.445, Archbold, supra, para. 4077 and R. v. Orton [i922] V.L.R. 469 at p.473. The real difficulty in this case is to decide what was the common design, if any, and whether the purpose or motive which caused the alleged conspirators to have that common design is separate from the common design or is in some way so associated with the common design that no common design exists if the alleged conspirators had different purposes. I consider that the relevant common dest enn is the common design charged, namely to obstruct the course of justice by causing Constables Griffiths and Howard to act comply in relation to the preferring or prosecuting of charges. The trial judge on innumerable occasions in the summing up reiterated that the charge was one of acting corruptly and that, before convicting, the jury had to be satisfied beyond reasonable doubt that there was a common design and that the object was to pay money to obstruct the course of justice, to get the policemen to act corruptly in relation to the charges. During the summing up his Honour said : nner EET REA EIEN NO PER BALES ISMN CES "So that, in essence, the accused's case is that there wes no common design about this", The difficulty with the summing up is in relation to one passage where the trial judge said that it was no defence that the conspirators had a different purpose. His Honour said : "There is one matter that I mention before leaving this subject of conspiracy, and it is this. Mr. Kenny put it to you that the purpose - contrary to his submissions about other things - if you accepted the -prosecution case, at least to a certain extent, and you accepted some of the evidence for the Crown which he has submitted you should not accept, you could come to the conclusion that if any arrangement was made it was made on the part of the accused for the purpose of offering a bribe or offering a payment to have the charges withdrawn, or in some other way to have them improperly stopped or rendered ineffective, and that that was the purpose that the accused had, or else the other purpose that we discussed this morning, perhaps getting further investigations done in order to clear him. Whereas, if you_accepted the Crown case, the man [X] had a' different purpose altogether. He was, on the Crown case, trying to have the money paid over so that he could get part of it. Now I am bound to tell you that as a matter of law that would not constitute a defence." His Honour then went on to say that it was not the motive or purpose for which the common design existed that mattered but whether there was a common Gesign. It seems to me that the critical question is whether or not onspirator offers money to facilitate an enquiry where such enquiry does not involve any illegal or indeed immoral act, whereas -~B8- the other alleged ementennas intends to have the money paid with the different purpose of causing the persons who are to make the proposed "enquiry to do some immoral or illegal act. a The real issue in this case is to decide what is the relevant common design as charged. In my opinion the relevant common design charged was that Constables Griffiths and Howard should act corruptly in relation to the preferring or prosecuting of charges. If the jury accepted the story of the accused and also accepted that X had the design to nave the money paid to cause the police constables to act illegally then I do not see how the jury could be satisfied that there was a common design. In this particular case I consider that the relevant common design extends to what was to be achieved and that this embraces a question of whether or not the enquiries by the police constables were to be only within those appropriate for them to conduct in the exercise of their duties or whether they were to extend to a point where the course of justice would be obstructed. Notwithstanding the extreme care of the trial judge to instruct the jury that they must be satisfied that there was a common design to act corruptly in the way charged and whilst one must read the summing up as - a whole, it seems to me that the difficulties that arise in the summing up from the passage I have set out in relation to purpose and common design are so great that I am reluctantly driven to the conclusion that the summing up, which was meticulous in the extreme, is inadequate because of the possible effect on the jury of the passage I have set out. I propose that the Appéal, including as to sentence, on the bribery charges be dismissed but that the appeal on the conspiracy charge be upheld and a 'new trial ordered. eet ne SDA Ft eee et eee he Ree war em AeRNNRR AEN serene emcee = at thisandthe cab preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice *&Avu: ey Associate IN THE FEDERAL COURT OF AUSTRALIA . AUSTRALIAN CAPITAL TERRITORY °' DISTRICT REGISTRY ) ) ) )} No. F.c. 13 of 1978 > : ) GENERAL DIVISION ) "On Appeal from the Supreme Court of the Australian Capital Territory BETWEEN =s: IVAN RAYMOND WILLIAMS Appellant - and - THE QUEEN 2 MARCH 1979 Respondent REASONS FOR JUDGMENT - ST.JOHN J. I have had the advantage of reading the reasons for judgment of Blackburn J.. I agree that the-two convictions on the charges of bribery under s.73 of the Crimes Act 1914 should stand and that the sentence imposed in relation to them should not be interfered with for the reasons expressed. I would therefore dismiss the appeal both as: to conviction and sentence in relation to those charges. As to the conviction for conspiracy I would uphold the appeal and. would respectfully agree with Blackburn J. that the lack of sufficient direction regarding the issue of fact «3/2 common to both the conspiracy and the bribery charges amounts to a deficiency in the summing ip which one could not safely disregard.- The orders I would therefore propose would be that the appeal in respect to the two charges of bribery be dismissed both as to conviction and the sentence and that the appeal against - conviction on the charge of conspiracy be upheld and a new trial ordered. (a enn eae nena = arte te te nee ee