R v Macdonald; R v Maitland [2017] NSWSC 337

Supreme Court New South Wales

Medium Neutral Citation: R v Macdonald; R v Maitland [2017] NSWSC 337 Hearing dates: 23, 27, 28 February, 6, 7, 8 March 2017 Date of orders: 08 March 2017 Decision date: 08 March 2017 Jurisdiction: Common Law - Criminal Before: Adamson J Decision: Elements of the offences charged are as set out in the Appendices: Appendix 1 (wilful misconduct in public office) and Appendix 2 (accessory before the fact to wilful misconduct in public office) Catchwords: CRIMINAL LAW – elements of offence of wilful misconduct in public office – mental element of misconduct ought be expressed in terms of substantial motivation rather than belief or intention – importance of consistency between criminal law and public law concepts of improper purpose or motivation – question of mixed motives

CRIMINAL LAW – importance of distinction between motivation as an element of wilful misconduct in public office and motive as matter to be taken into account as part of a circumstantial case

CRIMINAL LAW – elements of offence of wilful misconduct in public office – unnecessary and potentially duplicitous to express duty and breach where nature of office and misconduct alleged so well established as not to require it

CRIMINAL LAW – elements of offence of wilful misconduct in public office – whether recklessness sufficient for wilfulness or whether knowledge of wrongdoing required

CRIMINAL LAW AND PROCEDURE – accessorial liability – elements of offence – desirable that elements of offence with which accessory charged be self-contained – separate trials heard together

CRIMINAL LAW AND PROCEDURE – accessorial liability – elements of offence – knowledge of future chance of commission of principal offence – "prospect" clearer than "possibility"