COURT OF APPEAL
THE QUEEN S APCR 2010 0046
v
HUY VINH QUACH
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JUDGES ASHLEY and REDLICH JJA and HANSEN AJA
WHERE HELD MELBOURNE
DATE OF HEARING 24 March 2010
DATE OF JUDGMENT 7 May 2010
MEDIUM NEUTRAL CITATION [2010] VSCA 106
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CRIMINAL LAW – Referral of questions of law – Misconduct in public office – Common law offence – Elements of offence – Necessary relationship between public office and alleged conduct for purposes of offence – Whether conduct must occur ‘in relation to’ office – Whether public officer must be acting ‘as such’ – How seriousness of misconduct is to be described.
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Appearances: Counsel Solicitors
For the Crown Mr R A Elston SC with
Ms D Manova Mr C Hyland, Solicitor for Public Prosecutions
For H V Quach Mr O P Holdenson QC with
Mr G J E Steward Tony Hargreaves & Partners
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ASHLEY JA:
1 I agree with Redlich JA, for the reasons which his Honour gives, that the first question referred to this Court should be answered by stating that the elements of the offence of misconduct in public office are as set out by him at [46]; and that it is unnecessary to answer the second question.
REDLICH JA:
2 This is a referral pursuant to s 302 of the Criminal Procedure Act 2009 following pre trial argument concerning a count of misconduct in public office. The trial judge has reserved two questions of law for the consideration of the Court of Appeal. The judge’s referral is in the following terms:
1. What are the elements of the common law offence of misconduct in public office?
2. In particular is it necessary, in proceedings for an offence of misconduct in public office, for the prosecution to prove that the alleged misconduct occurred while the public officer was acting:
(i) ‘as such’, or
(ii) ‘in the exercise of his duties’, or
(iii) ‘in the course of or in relation to his public office’, or
(iv) some other, and if so what formulation?
3 The factual circumstances that are ‘alleged and not disputed’ are set out in the referral of the trial judge as follows:
Mr Quach was a serving police officer at the relevant, time and therefore a public officer
While on duty on 3rd July 2007, he and other police officers had attended an address to conduct a ‘welfare check’ on a young woman who had recently attempted suicide
Mr Quach and the officers located and spoke to the young woman (TD)
Later the same day, after he had finished his shift, and in plain clothes, Mr Quach returned to TD’s house with some groceries
TD was still at home; she was aware that Mr Quach was a police officer
Mr Quach drove her to his apartment in his car
At his suggestion, she there had a shower and changed her clothes
At his suggestion, she walked on his back to relieve some back pain that he had
Later, he returned to her address, kissing her as they left the apartment.
4 The Crown further alleges that sexual activity took place at Mr Quach’s apartment. This is in dispute.
5 The accused was at the material time a serving police officer and it is common ground that a police officer is a ‘public officer’ for the purposes of the offence. It is alleged by the Crown that he wrongfully used his public office (or knowledge obtained in that office) to procure sexual penetration of a person suffering from bipolar disorder and known to him to be at risk of committing suicide though that conduct did not occur in the performance of his duty. The foreshadowed defence is that the accused did not use his position or knowledge to take advantage of the complainant, that no sexual activity occurred, and that he did not know of the state of her mental health. Alternatively, however, the defence contends that on the facts alleged by the Crown, the conduct did not occur whilst the accused was acting in his public office so that an element of the offence could not be made out.
6 The argument thus focussed upon two elements of the offence and raised the following issues:
(i) the required nexus between the misconduct and the performance of the public office, and
(ii) the correct description of the level of the required seriousness of the misconduct.
7 Writing of misconduct in public office in 1977 P D Finn, as he then was, observed that ‘to this day the precise metes and bounds of the offence remain uncertain’. Since then the elements of the offence have been considered on a number of occasions. These authorities were the subject of considerable attention in the written and oral submissions on this referral.
8 Sir Anthony Mason NPJ in Sin Kam Wah & Lam Chuen Ip v Hong Kong Special Administrative Region set out the elements as follows:
1. a public official;
2. in the course of or in relation to his public office;
3. wilfully misconducts himself; by his act or omission, for example, by wilfully neglecting or failing to perform his duty;
4. without reasonable excuse or justification; (wilful misconduct which is without reasonable excuse or justification is culpable) and
5. where such misconduct is serious, not trivial, having regard to the responsibilities of the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities.
9 On the appeal both parties indicated their agreement with the substance of this description of the offence but the precise content of elements (2) and (5) was disputed.
Element (2) – What is the required nexus between the public office and the acts that comprise the misconduct?
10 The accused, relying upon the authority of Attorney-General’s Reference (No 3 of 2003) contended that the misconduct must occur whilst the public officer is ‘acting as such’ while the Crown favoured the formulation by Sir Anthony Mason in Wah & Ip that the misconduct need only occur ‘in relation to’ the relevant office. Senior counsel for the accused acknowledged that Shum Kwok Sher v HKSAR, Wah & Ip and R v Boulanger were all cases which had extended the scope of the offence to a person who may not at the relevant time be exercising a power or performing a duty of his office but who nevertheless does an act which bears upon his office so as to bring it into disrepute. He submitted that these cases should not be followed because the formulation of the test in Attorney-General’s Reference (No 3 of 2003) better reflects the purpose of the offence and ensures it is properly confined. The phrase ‘in relation to’ was said to be too wide and uncertain. Moreover the narrower formulation was said to be consistent with the elements of the tort of misfeasance in public office.
11 The offence and the relevant relationship between the office and the impugned conduct, has been expressed in many different ways. In Shum Kwok Sher, Mason NJP canvassed the history of the common law offence in these terms:
The offence of misconduct in public office has a long history, going back at least to 1704. In that year in the case of Anonymous (1704) 6 Mod 96 (Case 136), the Court said:
‘If a man be made an officer by Act of Parliament, and misbehave himself in his office, he is indictable for it at common law, and any public officer is indictable for misbehaviour in his office’.
A year later, in R v Wyat (1705) 1 Salk 380 the offence was expressed again in very broad terms when the Court said:
‘Where an officer neglects a duty incumbent on him, either by common law or statute, he is for his default indictable’.
Since then there have been many cases in which public officers have been convicted of the offence. It must be acknowledged, however, that over time the elements of the offence have been described in a variety of ways. Thus Stephens Digest 9th Edn (1950),art. 142 stated:
‘Every public officer commits a misdemeanour who in the exercise or under colour of exercising the duties of his office, does any illegal act, or abuses any discretionary power with which he is invested by law from an improper motive…But an illegal exercise of authority, caused by a mistake as to the law, made in good faith, is not a misdemeanour’. (emphasis added)
12 A passage from the seminal formulation of the offence by Lord Mansfield in R v Bembridge is commonly cited in discussion of the offence. There the offence was described as follows:
…if a man accepts an office of trust and confidence, concerning the public, especially when it is attended with profit, he is answerable to the King for his execution of that office; and he can only answer to the King in a criminal prosecution, for the King cannot otherwise punish his misbehaviour, in acting contrary to the duty of his office…
13 Over time, various attempts have been made by textbook writers to provide some kind of definition. In Hawkins Pleas of the Crown it is said of ‘offences by officers’ that they can be categorised as ‘neglect or breach of duty’, ‘bribery’ and ‘extortion’. With reference to that first category, the duties that flow from public office are described thus:
I take it to be agreed, that in the grant of every office whatsoever, there is this condition implied by common reason, that the grantee ought to execute it diligently and faithfully for since every office is instituted, not for the sake of the officer, but for the good of some other, nothing can be more just than that he who neither neglects or refuses to answer the end for which his office was ordained, should give way to others, who are liable to a forfeiture of his office, not only for doing a thing direct contrary to the design of it, but also for neglecting to attend his duty at all usual, proper, and convenient times and places, whereby any damage shall accrue to those by, or for, whom he was made an offer. (Emphasis added.)
14 In Principles of the Criminal Law S F Harris said of the offence:
Every misfeasance, or culpable non-feasance of an officer of justice, with relation to his office, is a misdemeanour punishable by fine or imprisonment, or both.
15 As can be seen, the relevant nexus between the conduct and the office has been described in many different ways. The misbehaviour has been said to occur ‘in his office’ or ‘in the exercise or under colour of exercising the duties of his office’ or ‘with relation to his office’. These variations do not necessarily reflect a material difference in the conception of the offence. As Mason NJP observed in Shum Kwok Sher, the difficulty which has been experienced in defining with precision the elements of the offence stem not so much from the various ways in which they have been expressed as from the range of misconduct by officials which may fall within the reach of the offence.
16 It appears that there has been little focus on the nexus between the office and the asserted misconduct. Most of the reported cases in the 18th and 19th centuries involved dishonest, corrupt or partial conduct on the part of officeholders who, ‘in performing their functions or exercising their powers, did so for personal gain or personal advantage’. Later authority has made it clear that the relevant misconduct may include circumstances where a power of the office is not being exercised. For example, in R v Dytham (discussed in more detail below) it was confirmed that misconduct may occur as a consequence of non-feasance, whereby an officer not formally on duty may nonetheless be obliged by the nature of the office to take action. Similarly, in Question of Law Reserved (No 2 of 1996), the Court of Criminal Appeal of the Supreme Court of South Australia accepted that the offence may apply to positive conduct of officers even whilst they are not acting in their official capacity. The nature of the relevant nexus is, therefore, plainly broader than exercise of powers in office, although its boundaries remain unidentified.
17 Some consideration of the cases that inform the scope of the offence is desirable. The Court was referred to the Kings Bench decision in R v Arrowsmith. There an attorney, as a party, moved for a rule in calling upon Dr Arrowsmith, a magistrate, to show cause why a criminal information should not be filed against him. The attorney had previously appeared before the magistrate. The attorney claimed that at a later date he had been struck by the magistrate who was brandishing a stick. Refusing the motion, Williams J said:
I think that this case resolves itself into the misconduct of Dr. Arrowsmith, in his ordinary, and not his magisterial capacity.
18 In R v Dytham a uniformed police officer stood by and did not intervene during a violent assault outside a nightclub. He was convicted of misconduct in public office. On appeal, it was submitted that the offence did not extend to allegations of neglect of duty, and could only extend to positive conduct constituting ‘misfeasance’. The Crown contended that the defendant’s duty as a police constable included an obligation to take steps to preserve the Queen’s peace, to protect the person of the victim or to arrest or bring to justice his assailants. Their Lordships considered that the officer fell under an obligation to act, characterising his misconduct as not ‘mere non-feasance’ but ‘deliberate failure and wilful neglect’.
19 In Question of Law Reserved (No 2 of 1996) the Court of Criminal Appeal (South Australia) was required to consider whether, notwithstanding a recent statutory consolidation of some common law offences, the offence of misconduct in public office remained under the law of South Australia. The facts alleged by the prosecution were that three police officers gained access to confidential information while acting in their official capacity and misconducted themselves by communicating that information to a third person.
20 In the course of holding that the offence remained part of the law of South Australia, the Court examined the elements of the offence. Doyle CJ considered the object of the offence was as stated by P D Finn as follows:
…official misconduct is not concerned primarily with the abuse of official position for pecuniary gain, with corruption in the popular sense. Its object is simply to ensure that an official does not, by any wilful act or omission, act contrary to the duties of his office, does not abuse intentionally the trust reposed in him.
21 Later Doyle CJ observed:
‘The particulars allege that the accused was a public officer, that he made improper use of information, and that he did so to receive a benefit for himself and for another.
In my opinion these elements are capable of constituting the stated offence. It is clear, I consider, that the generic offence (as I have described it), strikes at the public officer who deliberately acts contrary to the duties of the public office which is an abuse of the trust placed in the office holder and which, to put it differently, involves an element of corruption. It may be that the mere deliberate use of misuse of information is sufficient to give rise to an offence, but the further allegation of an intent to receive a benefit clearly, in my opinion, brings the matter within the ambit of the common law offence.
22 In Shum Kwok Sher, which preceded Wah & Ip, the Court of Final Appeal in Hong Kong was required to consider whether the common law offence of misconduct in a public office was so imprecise as to be unconstitutional under the Basic Law of the territory. This submission required the Court to undertake an exercise of identifying the relevant elements of the offence. The accused was Chief Property Manager of the Government Property Agency. It was alleged that he had used his office to enable preferential treatment, by the award of lucrative contracts, to a company in which his company maintained an interest. Mason NJP (with whom the other members of the Court agreed) found the offence to be sufficiently certain, and that the facts, as found by the trial judge, established the offence. He set out the elements as follows:
In my view, the elements of the offence of misconduct in public office are:
(1) a public official;
(2) who in the course of or in relation to his public office;
(3) wilfully and intentionally;
(4) culpably misconducts himself.
A public official culpably misconducts himself if he wilfully and intentionally neglects or fails to perform a duty to which he subject by virtue of his office or employment without reasonable excuse or justification. A public official also culpably misconducts himself if, with an improper motive, he wilfully and intentionally exercises a power or discretion which he has by virtue of his office or employment without reasonable excuse or justification. Subject to two qualifications, this statement of the elements of the offence accords with the respondent’s submission.
The first qualification was that the misconduct must be ‘wilful’ as well as ‘intentional’. The second, which his Honour attached to the elements of the offence, was that the misconduct must be ‘serious’.
23 His Honour later observed:
The common law offence of misconduct in public office is necessarily cast in general terms because it is designed to cover many forms of misconduct on the part of public officers. An alternative way of dealing with misconduct by public officers would be to enact a statute formulating specific offences for particular categories of misconduct in public office. The adoption of that course would involve a loss of flexibility and run the risk that the net would fail to catch some forms of serious misconduct. To suggest that the offence requires further definition would be to pursue a degree of definition which is unattainable, having regard to the wide range of acts and omissions which are capable of amounting to misconduct by a public officer in or relating to his office. The offence serves an important purpose in providing a criminal sanction against misconduct by a public officer in or relating to his office.
24 In Attorney-General’s Reference No 3 of 2003 a question of law was referred to the Court of Appeal (Criminal Division) requiring consideration of two questions relating to the offence of misconduct in public office. First, ‘what are the ingredients of the common law offence of misconduct in public office?’ Secondly, ‘is it necessary, in proceedings for an offence of misconduct in a public office, for the prosecution to prove “bad faith” and, if so, what does bad faith mean in this context?’
25 The facts were that a person died in police custody after having been assaulted outside a nightclub. The prosecution case was that the officers had recklessly breached their duty of care toward the deceased by the manner in which he was treated. The officers were charged with misconduct in public office. An issue arose as to the mental element of that offence. The Court referred to the decision in Shum Kwok Sher and in particular the passage from the judgment of Mason NJP in which he set out the elements of the offence. Counsel for the accused before us placed great reliance on the following passage:
It is common ground that there is such an offence at common law and we consider later in this judgment, as requested, the other elements of the offence, and in particular the standard to be applied to the conduct involved. The conduct must be that of a public officer acting as such, although this ingredient has not been the subject of specific submission. Clearly, in the present case, the police officers owed a duty of care to a person in their custody. The moral basis of the offence, it is submitted, is the protection of the public against the disregard by public officers of duties imposed upon them. (emphasis added)
26 Later, and in conclusion, the Court said:
Roderick Evans J rightly acknowledged the ‘great variety of circumstances’ in which the offence of misconduct in public office may be charged. It is clear from the authorities that the defendant must be a public officer acting as such. In the absence of submissions on those ingredients, which may in some circumstances present problems of definition, we do not propose to elaborate on them.
27 The Court then set out the elements of the offence as follows:
The circumstances in which the offence may be committed are broad and the conduct which may give rise to it is diverse. A summary of its elements must be considered on the basis of the preceding paragraphs. The elements of the offence of misconduct in a public office are:
1. A public officer acting as such…
2. Wilfully neglects to perform his duty and/or wilfully misconducts himself…
3. To such a degree as to amount to an abuse of the public’s trust in the office holder…
4. Without reasonable excuse or justification.
28 In so far as comparisons between the criminal offence and the tort of misfeasance in public office are relevant to the required mental element and the extent of departure from proper standards, the Court in AG Ref No 3 considered that the approach to the tort in Three Rivers District Council v Governor and Company of the Bank of England (No 3) was consistent with that in the criminal cases. There, Lord Steyn stated that the crime is ‘committed upon an affront to the Crown, that is in this context the public interest.’ Lord Millett considered abuse of power a core concept of the tort and stated:
In conformity with the character of the tort, the failure to act must be deliberate, not negligent or inadvertent or arising from a misunderstanding of the legal position. In my opinion the failure to act can amount to misfeasance in public office only where (i) the circumstances are such that the discretion whether to act can only be exercised in one way so that there is affectively a duty to act; (ii) the official appreciates this but nevertheless makes a conscious decision not to act; and (iii) he does so with intent to injure the plaintiff or in the knowledge that such injury will be the natural and probable consequence of his failure to act.
29 After referring to these authorities, the Court in AG No 3 concluded that ‘it is clear …, that the defendant must be a public officer acting as such’ but said that in the absence of submissions it did not propose to elaborate on the ingredients of the offence that may in some circumstances present problems of definition.
30 In Wah & Ip the first defendant was convicted on three charges of misconduct in public office and the second defendant on three charges of exercising control, direction or influence over other persons for the purposes of or with a view to their prostitution and three charges of offering an advantage to a police officer.
31 The first defendant was a Senior Superintendent in the Hong Kong Police Force. It was found that at the point in time when he accepted the sexual favours offered to him by the second defendant, he ‘was not in the course of duty’. Mason NJP said:
Since this Court delivered judgment in Shum Kwok Sher v HKSAR the English Court of Appeal, in Attorney-General’s reference (No 3 of 2003), has considered the elements of the offence of misconduct in public office. In that case, the Court of Appeal took into account the decision in R v G in considering the relationship between recklessness and wilful misconduct, as well as the judgments in Shum Kwok Sher.
32 Mason NPJ stated that in light of the detailed consideration of the problem in Attorney-General’s Reference (No 3 of 2003), he would reformulate the elements of the offence as stated in Shum Kwok Sher and then set out the elements to which I have earlier referred. Significantly his Honour did not adopt the wording, ‘a public officer acting as such’ used in Attorney-General’s Reference (No 3 of 2003) but retained the element as he had expressed it in Shum Kwok Sher as ‘in the course of or in relation to his public office.’ His Honour then went on to consider whether the misconduct alleged fell within the scope of the offence. He observed:
As it was argued in the courts below that the conduct complained of was not in the course of or in relation to the 1st appellant’s public office and was neither culpable nor serious, it is appropriate to say something about these matters. To constitute the offence of misconduct in public office, wilful misconduct which has a relevant relationship with the defendant’s public office is enough. Thus, misconduct otherwise than in the performance of the defendant’s public duties may nevertheless have such a relationship with his public office as to bring that office into disrepute, in circumstances where the misconduct is both culpable and serious and not trivial. In the present case, if the charges as particularized are made out, there can be no doubt that the misconduct had the necessary relationship with the 1st appellant’s public office and that it was culpable and serious because it involved his participation in the acceptance of free sexual services with the knowledge that they were provided by prostitutes over whom the 2nd appellant exercised control, direction or influence, that being a serious criminal offence. (emphasis added)
33 Mason NJP eschewed any need to find that the police officer was on duty. While observing that the particular police force ordinance had the effect that the first appellant would be deemed to be on duty, his Honour did not consider it an essential step in the prosecution case. The appellant’s misconduct was particularised as his acceptance of free sex in the knowledge that it was provided by the second appellant in circumstances which constituted a serious criminal offence. His Honour did not doubt that these particulars established a connection between the first appellant’s misconduct and his public office so as to bring it into disrepute. Mason NJP confirmed the view expressed by the Court of Appeal that the first appellant’s conviction did not rest upon his failure to arrest the second appellant or prevent the commission of the crime. His Honour went on to consider the alternative prosecution argument that the services were provided as a ‘general sweetener’. His Honour concluded that it was not necessary to uphold the conviction on that basis, though he considered that the acceptance of a ‘general sweetener’ by a public officer could, in appropriate circumstances, amount to misconduct in public office.
34 In Boulanger v The Queen the Supreme Court of Canada formulated the elements of the offence of ‘breach of trust by a public officer’ under s 122 of the Criminal Code. The origins of this offence were traced back to the common law offence of misconduct in public office. Chief Justice McLachlin delivering the judgment of the court examined the development of the common law offence and referred to aspects of the decision in Shum Kwok Sher with approval. As the code offence is confined by its terms to an official ‘who was acting in connection with the duties of his office’ the issue with which we are presently concerned was not addressed.
35 For completeness it is necessary to briefly refer to Bunning v The Queen. There, the defendant sought special leave in respect of an appeal against sentence in relation to a conviction upon counts including ten counts of misconduct in public office. In rejecting special leave to appeal Kirby and Heydon JJ said:
The offences having been committed by a public officer and in the purported course of his duties (or sufficiently connected with those duties), we are unpersuaded that the sentence discloses error such as would warrant the intervention of this Court. (emphasis added)
36 As was properly conceded by the Crown, the offence of misconduct in public office requires not only that the misconduct be by a person holding public office but that as a consequence of the office he was under a duty or responsibility which existed and which was breached at the time of the offending conduct. It was submitted that this did not necessitate that the conduct occur in the performance of his office. This was challenged by the accused who submitted that the officer must be acting ‘as such’ at the time of the misconduct. This contention rests upon the assumption that the Court of Appeal in Attorney General’s Reference (No 3) deliberately intended to restrict the broader description of the element by Mason NPJ in the earlier decision of Shum Kwok Sher. I do not consider that the reasons of the Court of Appeal should be so understood. The Court of Appeal referred with apparent approval to Shum Kwok Sher, at least in respect of that particular element, and expressly adverted to the fact that the element was not in issue before them. It did not appear to recognise any difference between its conception of the element and that articulated in Shum Kwok Sher. Significantly, the later decision of Wah & IP which restated the elements in Shum Kwok Sher, referred with apparent approval to the decision of the Court of Appeal in AG No 3, which suggests that neither Court perceived any inconsistency between their differing descriptions of the element.
37 In any event, as was pointed out by Hansen AJA on the hearing of this referral, the words used in the various cases are not to be read as if they are a statute. The content of the disputed element is to be discerned by reference to the history of the offence and the various circumstances in which it has been applied. One indicia of the breadth of the offence is the nature of the harm which the offence is designed to address. The view of Finn is I think correct that:
the kernel of the offence is 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.
38 This suggests that the accused’s construction of the element is too narrow. The accused’s formulation does not sit comfortably with the authorities to which I have referred and in which a charge of misconduct was made out against an officer who was not, at the material time, exercising a power of his or her public office. Thus in Question of Law Reserved (No 2 of 1996), the offence was applied to an officer who was off duty. Wah & Ip was another such case. The official’s conduct will be linked to their office when in doing the impugned act, the official did something he or she was duty bound to refrain from doing, according to the responsibilities of the office. Thus Finn suggests that the offence will be made out where a police officer uses police facilities to which his position gives him access, for his own private purposes.
39 Re Mullen also supports this broader approach. In that case, an off duty police officer had been found guilty of official misconduct under s 32 of the Criminal Justice Act 1989 when she punched another driver in a road rage incident. Lee J overturned the decision of the Misconduct Tribunal holding that there must be some connection between the conduct and the office held. His Honour found that the offence was not intended to describe an essentially private act done without any reference to a person’s official position. After examining authority Lee J also said:
Perhaps it would be more accurate simply to say that certain police functions do not cease at the end of their allocated shift…… There must be misconduct in the course of or pertaining to the exercise of the powers, functions or responsibilities attaching to his or her office. It is quite easy to envisage a situation in which an individual may, on an essentially private occasion, do an act which may cause their office to be brought into disrepute. A clear example would be that of a person who seeks to invoke his or her office in order to advance some private or closet interest.
40 In my opinion the relevant misconduct need not occur while the officer is in the course of performing a duty or function of the office. Certain responsibilities of the office will attach to the officer whether or not the officer is acting in the course of that office. Where the misconduct does not occur during the performance of a function or duty of the office, the offence may be made out where the misconduct is inconsistent with those responsibilities. It may be connected to a duty already performed or to one yet to be performed or it may relate to the responsibilities of the office in some other way. The misconduct must be incompatible with the proper discharge of the responsibilities of the office so as to amount to a breach of the confidence which the public has placed in the office, thus giving it its public and criminal character. Accordingly, use of knowledge or information acquired by the office holder in the course of his or her duties for a private or other impermissible purpose may be inconsistent with the responsibilities of the office and calculated to injure the public interest. If the misuse of the information is of a serious nature and is likely to be viewed as a breach of the trust reposed in the office so as to bring the office into disrepute, the conduct will fall within the ambit of the offence whether or not it occurs in the course of public office. It will in such circumstance have the necessary connection to that office.
41 I consider that the proper formulation of the offence requires the element to be expressed so that it encompasses the circumstance in which the offender’s misconduct, though not occurring while the offender was discharging a function or duty, had a sufficient connection to their public office. Whether the misconduct was so connected will turn upon the facts of the case.
Element (5) – How is the seriousness of the misconduct to be described?
42 At the core of the accused’s argument are the remarks of Lord Widgery in R v Dytham. He stated that the element of culpability, which is not restricted to corruption or dishonesty:
must be of such a degree that the impugned misconduct is calculated to injure the public interest so as to call for condemnation and punishment.
It was contended that the element must include this formulation and that this has been consistently so held. While it has been often referred to in discussion of the offence, no subsequent case was cited in which what Lord Widgery said has been treated as an element of the offence. It has never been suggested that the prosecution must prove to the jury’s satisfaction that the defendant’s conduct was so calculated. Such language, if employed as any part of a jury direction would require further exposition if it was to be understood. I respectfully share the view expressed by Mason NPJ in Shum Kwok Sher that the term ‘calculated to injure the public interest’ is not the ‘language of definition’ and is not to be so understood. The approach taken by the Court of Appeal in Attorney General’s Reference (No 3) confirms that to be so. The Court although quoting the observation of Lord Widgery did not include it within the elements of the offence.
43 Counsel for the accused also submitted that element (5) must be formulated as stated first in Shum Kwok Sher and then in Wah & Ip. The misconduct must be ‘serious 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’. This formulation was accepted as correct in Attorney General’s Reference No 3 and Boulanger. The Crown accepts that this should form part of the element.
44 The Court of Appeal in Attorney General’s Reference (No 3 of 2003) endorsed the condition that the ‘serious departure from proper standards…must be so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder’. I do not regard this to be part of the definition of the offence although it serves to emphasise the degree of departure from the proper standard that must be established.
45 It is my view that the elements of the offence are substantially those set out by Mason NPJ in Wah & IP subject to some amendment which will draw further attention to the nature of the necessary nexus between the conduct and the office and further emphasise the necessary seriousness of the offence. I would substitute the word ‘connected’ for ‘ in relation‘ in element (2) it being accepted by both parties that ‘connection’ may better emphasise that the prosecution must establish a necessary nexus between the office and the misconduct. In element (5) I would add to ‘serious’ that it must be conduct ‘meriting criminal punishment’.
46 So amended, the elements of the offence are:
(1) a public official;
(2) in the course of or connected to his public office;
(3) wilfully misconduct himself; by act or omission, for example, by wilfully neglecting or failing to perform his duty;
(4) without reasonable excuse or justification; and
(5) 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.
47 Any charge must be tailored to the particular circumstances of the case. It will generally be desirable that the trial judge emphasise the notion that the conduct must be so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder. As in the case of criminal negligence, and offences such as culpable driving and dangerous driving, it is recognised that it is necessary to distinguish the conduct sufficient to attract criminal sanction from less serious forms of conduct which may give rise to civil proceedings. Accordingly it would also be desirable if the trial judge explained that in stating that the conduct must be sufficient to attract criminal punishment, a distinction is being drawn from less serious forms of conduct which may give rise to civil proceedings.
48 It follows that the judge’s referral should be answered in the following terms. In respect of question 1, the elements of the common law offence of misconduct in public office are as set out in paragraph [46]. In light of the conclusion reached on this question, it is unnecessary to answer question 2.
HANSEN AJA:
49 I agree with Redlich JA.
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(1) a public official;
(2) in the course of or connected to his public office;
(3) wilfully misconduct himself; by act or omission, for example, by wilfully neglecting or failing to perform his duty;
(4) without reasonable excuse or justification; and
(5) 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.
