Reported Decision : 59 NSWLR 9 New South Wales Court of Appeal CITATION : Director of Public Prosecutions v Harney [2003] NSWCA 350 HEARING DATE(S) : 17 November 2003 JUDGMENT DATE : 17 November 2003 JUDGMENT OF : Meagher JA at 18; Giles JA at 1; Ipp JA at 19 DECISION : Leave to appeal granted. Appeal allowed. Orders one, two, three, four, five and ten in the Notice of Appeal. Remit the matter to the District Court for any further orders if that is necessary. The respondent to have a certificate under the Suitors Fund Act. CATCHWORDS : Crimes (Superannuation Benefits) Act 1989 (C'th) - loss of superannuation benefits if convicted of a "corruption offence" - relevantly meant that commission of offence involved an abuse of the offender's office as an employee - offender was employed by Australia Post at a parcel centre - stole articles in the course of post from the parcel centre - abuse did not mean a corrupt use - was abuse of office as employee. PARTIES : Director of Public Prosecutions - Claimant John Norris Harney - Opponent FILE NUMBER(S) : CA CA 40177/03 COUNSEL : T Muir - Claimant T Molomby SC & B Vasic - Opponent SOLICITORS : Commonwealth Director of Public Prosecutions - Claimant Kerrison, The Law Firm, Camden - Opponent LOWER COURT District Court JURISDICTION : LOWER COURT DC (Crim Div) 01/11/0083 FILE NUMBER(S) : LOWER COURT Backhouse DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40177/03 MEAGHER JA GILES JA IPP JA Monday 17 November 2003 DIRECTOR OF PUBLIC PROSECUTIONS v JOHN NORRIS HARNEY Judgment 1 GILES JA: This application for leave to appeal has been heard as an appeal on full submissions, so that if leave to appeal be granted the appeal can immediately be decided. The issue is whether the judge correctly held that the offence of which the opponent was convicted was not a "corruption offence" within the meaning of the Crimes (Superannuation Benefits) Act 1989 ("the Act"). 2 The opponent was employed with Australia Post at the South Parcel Centre, Kingsgrove from July 1989. In January 2000 he became senior parcel officer and supervisor on the night shift. For about a year prior to the detection of his activities in October 2000 he stole articles in the course of post, particularly coins and Franklin Mint merchandise but also CD's, cassettes, watches, books, computer software and a set of golf clubs. The opponent placed small articles in his lunch bag, and placed large articles in the day shift supervisor's office and then took them as he left work. He was aware that he was not entitled to take articles from the post. 3 After his activities were detected the opponent pleaded guilty to charges of stealing articles in the course of post contrary to s 85K(1)(c) of the Crimes Act 1914. He was convicted and sentenced to two years imprisonment with a recognisance release order of 18 months. 4 The Act provides for application for the making of a "superannuation order". Application may be made in respect of a person who is convicted of an offence, and if the order is made it has the consequences under the Act that superannuation benefits paid or payable to the person under a Commonwealth superannuation scheme must be paid and become payable to the Commonwealth. The order can only be made, however, if the court is satisfied that the offence of which the person has been convicted is a "corruption offence". Other details need not be described, since it was common ground that all requirements for making a superannuation order were satisfied in the present case if the offence of which the opponent was convicted was a corruption offence, the definition in the Act being - "corruption offence" means an offence by a person who was an employee at the time when it was committed, being an offence: (a) whose commission involved an abuse by the person of his or her office as such an employee; or (b) that, having regard to the powers and duties of such an employee, was committed for a purpose that involved corruption; or (c) that was committed for the purpose of perverting, or attempting to pervert, the course of justice." 5 The claimant applied for a superannuation order in respect of the opponent. He relied on para (a) in the definition of "corruption offence", submitting that the commission of the offence involved an abuse by the opponent of his office as an employee of Australia Post. The judge held that the proper interpretation of that paragraph required conduct "properly describable as corruptly using a public office held by" the employee. Her Honour said that para (a) must be read with para (b), referring to an offence committed for a purpose that involved corruption, saying that in her view para (a) "involves a corrupt use, abuse meaning a corrupt use rather than simply the commission of any criminal offence within Commonwealth property if you are an employee". She said that the offence of which the opponent was convicted was stealing and involved dishonesty but, implicitly because it did not involve corrupt conduct, was not satisfied that it was an abuse by the opponent of his office as an employee. 6 In short, the judge required that abuse of office be a corrupt use of the office. Neither "abuse" nor "corrupt" or any variant of these words is defined in the Act. They are not the same, and in my opinion there can be abuse of office although there is not a corrupt use of the office. How, then, did the judge come to her view? 7 The judge was influenced by two considerations. 8 One was that the second reading speech "makes it clear that the object of the legislation is intended to catch corrupt conduct". The judge set out part of the second reading speech, to which we also were referred, the most material part being - "This Government is firmly of the view that there is no scope for watering down the forfeiture in such cases as superannuation benefits and they should only be paid from public moneys to persons who discharge their duties in a non-corrupt manner. The Government views corruption of office as a failure to fulfil a condition of employment to publicly funded superannuation benefits. While the consequence of conviction for a corruption offence under the Bill will be the loss of publicly funded superannuation benefits there may also be other remedies available under other legislation. For example, where a corruption offence involved the payment of a bribe to a public official, an amount equal to the bribe may be recoverable under the Proceeds of Crime Act 1987. This Government is determined to ensure that corruption does not infiltrate the Commonwealth or its instrumentalities and this Bill will provide a strong financial disincentive to any who may be tempted to engage in corruption now or in the future. I present the explanatory memorandum to the Bill. I commend the Bill to the House." 9 There is nothing here by way of exegesis of the language of the legislation, and it is the words of the Act which must govern. The Act defines "corruption offence", and it is necessary to determine what the definition means whatever the Attorney-General in presenting the second reading speech may have had in mind. So far as the Attorney-General referred to corrupt or non-corrupt conduct, presumably he had in mind that the legislation provided the material definition, and even if he did not it is to that definition that we must pay regard. 10 The other consideration was assistance her Honour saw in re Austin (1994) 1 Qd R 225 and Director of Public Prosecutions v Hogarth (1995) 93 A Crim R 452. 11 In re Austin the relevant words were "has corruptly used a public office". The judgment included reference to corrupt use of a power when it was used to obtain a private advantage or for a purpose foreign to the power. This understanding appears to have been adopted by her Honour. Whatever one might say about the correctness of that notion of corrupt use of a public office, para (a) of the definition in the Act does not have the words "corruptly used". In those circumstances, I respectfully cannot see the assistance which the judge apparently saw. 12 Director of Public Prosecutions v Hogarth was a decision on the Act. The offences were held both to have involved abuse of office and to have been committed for a purpose which involved corruption; that is, each of para (a) and para (b) was held to have been satisfied. In the course of the judgment it was said, with reference to an observation in re Lane (Ryan J, 9 October 1992, unreported), that a person holding a public office who dishonestly applies money to his own use corruptly uses that office and that the words equally described abuse of office. That did not require corruption for abuse of office. It said only that corrupt use of office was also abuse of office. Again with respect, I do not see that the assistance seen by the judge is to be found. 13 In my view the words are clear and the judge erred in requiring corruption for abuse of office. It was accepted that, at least in this respect there was an important point of principle involved, and I consider that leave to appeal should be granted so that her Honour's erroneous interpretation of the Act can be corrected. The words of para (a) are to be given their own effect, and there is no necessary importation into them of the notion of corruption. 14 The question, then, is whether on the facts in the present case there was abuse by the opponent of his office as an employee of Australia Post. 15 It was submitted that there was not, in that there had to be some making use of his office as an employee to achieve a dishonest objective. A distinction between abuse in office and abuse of office was posed, and it was submitted that it was not enough that the opponent may have taken advantage of the opportunity which his office offered. It was said that it was necessary that he did more, and misused the power which his office offered. 16 With due respect to the submissions put to us, I do not think that in the present case there can be any real doubt. If one looks at para (a) and the facts before us, the opponent was able to steal the articles in the course of post because of his employment by Australia Post in the parcel centre, and did so contrary to the duty which as a person in that employment he owed to his employer and in disregard of his responsibility as such an employee to the members of the public who committed articles to the postal system. In my opinion, that is clearly and aptly described as an abuse of his office as an employee. 17 In my opinion, therefore, leave to appeal should be granted and the appeal should be allowed. Precisely what orders should be made to give effect to the allowance of the appeal I am not sure, and would wish to hear further in that respect. 18 MEAGHER JA: I entirely agree. In my view this is the plainest possible case of abuse of office. 19 IPP JA: I agree. MEAGHER JA: Mr Muir the documents are in a terrible state about what we're supposed to do. If you look at your document at tab 3, those applicant submissions, par 23 Short Minutes of Order, talks about draft short minutes but they're not there. MUIR: Sorry your Honour. What they were were the applicant's submissions before her Honour Backhouse J in the District Court. If your Honour goes to tab 9 your Honour will see that a series of orders are sought. MEAGHER JA: Indeed so and no reference to any pecuniary amount. MUIR: Your Honour what that is the result of is that under s 19 of the Act, the Crimes (Superannuation Benefits) Act the amounts have to be calculated as at the date of making the order. That's my problem your Honours, I perhaps did not anticipate your Honours may make an order or give reasons today having regard to the case and in those circumstances the calculation must be made. In tab 5 there is reference to a transcript and certain evidence given by a certain person of Towers parent where he calculates the amounts your Honours will see from orders sought six and seven that they appear on the face of it to be identical but they're not your Honour because one is what is presently held in the scheme and that could attract interest, and the amount that has been paid to the respondent. I won't say that paragraph seven could change but paragraph six could change. IPP JA: But it doesn't help to make those declarations. MUIR: No your Honours because of the fact that I do not have that evidence or appropriate person to be called. MEAGHER JA: What orders do you want us to make here and now? MUIR: Would your Honours make orders one, two, three, four, five, ten. In relation to orders six, seven, eight and nine without agreement from the parties as to the appropriate figures the matter to be unsatisfactory as it may sound to be remitted to be dealt with in accordance with those reasons. In other words evidence to be called to clarify the amounts on the day an order is made. MEAGHER JA: This is an extraordinarily unsatisfactory way to go about things. MUIR: Your Honour the other alternative is that I attempt to get such evidence available in the next few days-- IPP JA: Why can't you just get orders in terms of one to five and ten and then the amount involved should be agreed really, I mean there shouldn't be any dispute about it. If there is a dispute you will have to take it up because there's just nothing on these papers that reflects a dispute. MUIR: No your Honour I don't think there is anything that will dispute it, it's a question of having that available so that the appropriate declaration in the sense of eight and nine can be made. IPP JA: But the opponent won't have had a chance to see that. MUIR: That's right your Honour the opponent hasn't at the present time, the opponent's-- IPP JA: You're not entitled to any further order on that because these matters have not been raised, there's no evidence about it. So you should just get an order in terms of one to five and ten. MUIR: And I take up the balance with the District Court where the application's being made your Honour. IPP JA: If that's necessary. MUIR: If that's necessary. MEAGHER JA: The orders the court will make will be one, two, three, four and five and ten in the Notice of Appeal. In addition we will remit the matter to the District Court for any further orders if that is necessary. MUIR: As your Honour pleases. GILES JA: Just before we commit ourselves why do we make the declarations in four and five, does the Act require that there be declarations of that kind or are they just steps on the way to a final order? MUIR: They're steps on the way to final but they are declarations that are required to be made your Honour, the court must find that in the circumstances that those things have occurred before it can make the pecuniary orders in the sense your Honour says. GILES JA: The court must find, does it have to declare does the Act say that it must express its finding by way of declaration? I am always a little troubled by having declarations of what are really just findings made. MUIR: Your Honour in 19 subsection one your Honour subject to subsection two your Honour the end of that opening paragraph "by order declare...and secondly that" your Honour that's where it comes from. 19(3) covers the situation in par 6 19(4) covers the situation in par 7. So it's the s 19-- GILES JA: Thank you yes. MEAGHER JA: Anything else? MOLOMBY: I have if I may your Honour. If it please the court I seek a certificate under the Suitor's Fund. MEAGHER JA: Yes certainly. You're guaranteed half of it aren't you? MOLOMBY: Yes your Honour. MEAGHER JA: The respondent to have a certificate under the Suitor's Fund Act. Last Modified: 11/26/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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