Maitland v R; Macdonald v R

1. [1]

   The Court: Ian Michael Macdonald (Mr Macdonald) was charged on an indictment presented on 6 February 2017 with two counts of wilful misconduct in public office. The charges were in the following terms:

2. [2]

   John William Maitland (Mr Maitland) was charged with being an accessory before the fact to the offences in respect of which Mr Macdonald was charged. The relevant charges were in the following terms:

3. [3]

   At the time the alleged offences the subject of the charges occurred, Mr Macdonald was the New South Wales Minister for Mineral Resources. He held that position from 2005 (except for a short break) up to the time that the alleged offences were committed. In that capacity he had significant powers under the Mining Act 1992 (NSW), including granting consent to apply for an exploration licence under that Act and to grant such a licence. At the relevant time, Mr Maitland was the Chairman and a shareholder in Doyles Creek Mining Pty Ltd (DCM).

4. [4]

   The Crown case against Mr Macdonald on Count 1 was that his conduct in granting the consent under the Mining Act to DCM to apply for an exploration licence was misfeasance in public office because he granted the consent with an improper motive, that of benefiting Doyles Creek and Mr Maitland who was its Chairman and one of its shareholders. The case in respect of Count 3 was that the licence was granted with the same improper motivation.

5. [5]

   The case against Mr Maitland essentially was that he was a party to the application for and granted the exploration licence knowing that it was being granted for an improper purpose.

6. [6]

   Mr Macdonald and Mr Maitland were jointly tried before a jury and convicted of the offences. Mr Macdonald was sentenced to an aggregate sentence of 10 years, commencing on 26 May 2017 and expiring on 25 May 2027, with a non-parole period of 7 years. The trial judge imposed an indicative sentence in respect of Count 1 of 8 years and in respect of Count 3 of 7 years.

7. [7]

   In relation to Mr Maitland, the trial judge imposed an aggregate sentence of 6 years commencing on 26 May 2017 and expiring on 25 May 2023, with a non-parole period of 4 years. The trial judge imposed an indicative sentence of 5 years in respect of Count 1 and 4 years in respect of Count 4.

8. [8]

   Each of Mr Macdonald and Mr Maitland has appealed against his conviction and sought leave to appeal against sentence.

Grounds of appeal against conviction

1. [9]

   Mr Macdonald relied upon the following grounds of appeal:

2. [10]

   Mr Maitland relied upon the following grounds of appeal (as amended by leave granted on 28 November 2018):

3. [11]

   It should be noted that Ground 4 of Mr Macdonald’s grounds of appeal and Ground 3 of Mr Maitland’s grounds of appeal were only formally pressed having regard to the decision of this Court in Macdonald v R; Maitland v R (2016) 93 NSWLR 736; [2016] NSWCCA 306.

4. [12]

   It is convenient to deal at the outset with the grounds of appeal relating to the misdirection to the jury (Macdonald Ground 1, Maitland Ground 3). The ground of appeal asserts that the trial judge wrongly directed the jury on the mental element of the offence.

5. [13]

   The trial judge gave the following written direction in respect of Charge 1 against Mr Macdonald:

6. [14]

   A substantially similar direction was given in relation to Charge 3. It is unnecessary to set it out.

7. [15]

   So far as Mr Maitland was concerned, in respect of Charge 2, the written direction given in relation to Charge 1 against Mr Macdonald was repeated and the following additional directions were given to take account of the fact that Mr Maitland was charged as an accessory:

8. [16]

   A similar direction was given in relation to Charge 4.

9. [17]

   The trial judge dealt with the mental element of the offence on a number of occasions in her summing-up. Early on in her summing-up, she dealt with the question of motive. She gave the following direction:

10. [18]

    In dealing with [4] of her written direction (the mental element), she gave the following directions:

11. [19]

    As will be seen, particular criticism was directed to [76].

12. [20]

    The problem seen by counsel for Mr Maitland in relation to [76] was raised with the trial judge and the following interchange occurred:

13. [21]

    Her Honour then gave the following further direction:

14. [22]

    Her Honour gave a separate direction in relation to the knowledge of Mr Maitland. This was in the following terms:

15. [23]

    Following the conclusion of the summing-up, the trial judge was asked the following question by the jury:

16. [24]

    In discussion with counsel following the asking of the question, the following interchange occurred:

17. [25]

    Her Honour then gave the following additional directions:

18. [26]

    That was essentially the last direction given to the jury.

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

1. [27]

   In a judgment delivered on 8 March 2017, R v Macdonald; R v Maitland [2017] NSWSC 337 (the elements judgment) the trial judge articulated the reasons for her written direction as to the elements of the offence. Although these proceedings are not, of course, an appeal from that judgment, her Honour’s reasoning is of great assistance in considering the issues which divide the parties.

2. [28]

   Her Honour noted (at [12]) that the Crown accepted that it would not be sufficient to establish that Mr Macdonald had no genuine belief that the granting of consent was in the interest of the State of New South Wales but that it must also prove that the accused was improperly motivated. She noted that it was submitted, on behalf of both accused, that the Crown must prove, as an element of the offence, that the accused Macdonald’s “sole intention” was to benefit DCM and Mr Maitland and that the Crown had to prove that the accused Macdonald did not have a genuine belief that the grant was “in any way” in the interests of the State of New South Wales (elements judgment at [15]).

3. [29]

   Her Honour extensively reviewed the authorities, accepting (at [19]) that the gravamen of the offence of misconduct in public office was as described by Professor Finn in “Public Officers: Some Personal Liabilities” (1977) 51 ALJ 313 at 315, that “an officer, having been entrusted with powers and duties for the public benefit, has in some way abused them, or has abused his official position”. She stated that it was apparent from Professor Finn’s analysis that “the relevant mental element is motivation as distinct from knowledge, belief or intention”. She stated that it was “the motivation, not intention or belief, which determines whether the giving of consent or the grant of the licence” amounted to misconduct. She stated that “as the root of the wrong to be remedied by the law is the same, whether in a civil or criminal context, it is appropriate that the language used to describe the wrong be consistent”. She stated that “in a civil action, an administrative decision can be quashed or set aside on the basis that the decision-maker made the decision from an ‘improper motive’”. She stated that “the reason for the use of the term ‘motivation’ in the elements, rather than ‘motive’” was to “maintain the distinction between motivation and motive, which is relevant in a criminal trial for such an offence” (elements judgment at [24]).

4. [30]

   In that context, her Honour stated that “to express the requisite mental element in terms of intention, as distinct from motivation, is problematic since it has the potential to import concepts of purpose, which are apt to confuse in a case such as the present where an inevitable consequence of the grant of consent to apply for an exploration licence, as well as the grant of the licence, is to benefit the recipient of the consent or the holder of the exploration licence”. She stated that the use of the words “sole intention” creates an additional difficulty because the expression tends to imply a dichotomy which she considered to be a false one. She also stated that “insofar as it would require proof of knowledge, it would import into the element an inapposite mental state” in that “it is not an element of the offence that the accused knew that the decision was not in the interests of the State” (elements judgment at [26]-[29]).

5. [31]

   Her Honour stated (elements judgment at [31]) that “applying these principles to the present case, the question [of] whether the accused Macdonald believed it was in the public interest to grant consent to Doyles Creek Mining Pty Ltd under s 13(4) or exploration licence to it under s 22 of the Mining Act, while relevant is not determinative”. She stated that Mr Macdonald may have believed that the giving of the consent was in the public interest, but if his motivation in granting consent or granting the licence was to benefit Mr Maitland and DCM, the element of misconduct had been made out.

6. [32]

   Her Honour stated, however, that she did “not accept the Crown’s submission that it would be sufficient for it to prove that the accused Macdonald was substantially motivated by the desire to confer a benefit on the accused Maitland and Doyles Creek Mining Pty Ltd”. She stated that “the Crown must also prove, as part of the element regarding motivation, the negative: namely, that Mr Macdonald was not motivated to any significant degree by the object of furthering the interests of the State of New South Wales”.

7. [33]

   Her Honour considered that her formulation of this element was supported by what was said by the Court of Appeal of England and Wales in R v Speechley [2005] 2 Cr App Rep (S) 75, in which the Court considered a direction which included the following remarks:

8. [34]

   In that case, the Court rejected the submission that the trial judge should have adopted the approach of Widgery J in R v Llewellyn-Jones (1967) 51 Cr App R 4, where Widgery J, as his Lordship then was, indicated the boundaries of the offence in the following terms (at 6):

9. [35]

   In that context their Lordships in R v Speechley made the following comments at [44]-[45]:

10. [36]

    In the elements judgment her Honour, after citing the passages from the judgment of the Court of Appeal to which we have referred above, stated that she had “incorporated what was said in R v Speechley into the element regarding motivation” to “take account of the need for the Crown to prove, not that the improper motivation was the sole one, but that it was a substantial one”. She stated that she had rejected the formulation proposed by the accused, which was largely based on the wording of the direction given by Beech-Jones J in R v Obeid (No 12) [2016] NSWSC 1815.

The parties’ submissions

1. [37]

   In his written submissions Mr Macdonald criticised the formulation of the element of intention in par (4) of the written direction on a number of bases. First, he submitted that “the threshold of being substantially motivated was too low for a criminal offence”. Mr Macdonald cited an example of a situation where part of a Minister’s purpose in approving a project was to “assist his/ her electoral prospects at the next election but his/her dominant purpose or causative purpose was to generate jobs or development in the State”.

2. [38]

   Second, Mr Macdonald stated that cases such as R v Borron (1823) 3 B & Ald 433 stand for the proposition that it is “the motive of the maker of the decision which constitutes the hallmark of misfeasance”.

3. [39]

   Third, he submitted that “the issue should not be a person’s motivation but rather their purpose or intent”. Mr Macdonald stated that the “mens rea of the offence lies in the intention to use one’s public office for purposes other than the benefit of the public”.

4. [40]

   Fourth, Mr Macdonald submitted that the test proposed by the English Court of Appeal in R v Speechley, namely, that the accused was “motivated to a significant degree by consideration of personal advantage”, was “not only too low a bar but also presents the considerable difficulty of assessing what is meant by a significant degree”.

5. [41]

   Fifth, Mr Macdonald submitted that the trial judge erred in distinguishing “Beech-Jones J’s determination in R v Obeid, that the proper test for the mental element of the offence of misconduct in public office is the sole purpose on the grounds that the indictment against the appellant did not allege any mental state”.

6. [42]

   Sixth, he submitted that the inclusion of the words “by the desire” in the direction as part of element 4(a) was “otiose and liable to mislead the jury”.

7. [43]

   Seventh, Mr Macdonald submitted that there were several problems with element 4(b). He submitted first, that it was “arguably also otiose because it was captured by element 6”. Secondly, and more significantly, he submitted it was “very difficult to measure what ‘significant degree’ actually means”.

8. [44]

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

9. [45]

   Mr Macdonald also referred in his written submissions to the directions in [621] and [622] of the elements judgment (see [25] above) where her Honour stated that the Crown did not have to prove motive and that the real issue was the accused’s motivation “Why did he do this?”. He submitted that “the distinction drawn between motive and motivation is misguided as they are one and the same and the distinction clearly did confuse and misled the jury”.

10. [46]

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

11. [47]

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

12. [48]

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

13. [49]

    Senior counsel for Mr Macdonald also criticised [74]-[76] of the summing-up to which we have referred at [18]. He submitted in relation to [74], that a mere granting of a benefit itself did not demonstrate improper motivation, but rather, it was “the intention to provide it partially, and therefore improperly that is the mental element”. He submitted that [76] of the summing-up did not take into account that the trial was a criminal trial where the onus and standard of proof required “the elimination of [a] hypothesis consistent with innocence”. He submitted that by asking the open-ended question, “Why did he do it?” the jury was misled on an important issue concerning the outcome of the trial. Although he accepted that her Honour corrected this later on, he submitted that her concluding directions (see [25] above) fell into the same error.

14. [50]

    He also submitted that “there was no impression given to the jury that they needed to be satisfied that the decision was made by the driving force of the improper motive or motivation or intention”.

15. [51]

    Mr Maitland made broadly similar complaints about the written directions and the summing-up as were made by Mr Macdonald. In relation to the written direction he contended that the jury ought to have been instructed that to find that Mr Macdonald committed the principal offences, the Crown needed to prove that he was motivated solely by a desire to benefit Mr Maitland and DCM and not motivated by the object of furthering the interests of the State of New South Wales. His written submissions set out a number of contentions in support of that proposed but ultimately at the hearing senior counsel for Mr Maitland adopted the formulation of the appropriate direction by senior counsel for Mr Macdonald, see [24] above (T 69).

16. [52]

    Mr Maitland also submitted that the trial judge was in error in posing the question (at [76] of her summing-up (see [18] above)) “Why did he [Mr Macdonald] do it? Did he do it to benefit the public or did he do it to benefit Mr Maitland”. He submitted that “the binary nature of the inquiry required the jury to answer a question different to that which they ought as a matter of law have been called upon to answer, namely, whether or not the Crown had proved to the criminal standard both the improper motivation on the part of Mr Macdonald for which it contended and the absence of a proper motivation on his part”. He submitted that “it distorted the role of the jury by inviting it to engage in a free-ranging inquiry as to Mr Macdonald’s motivation”. He submitted that the redirection subsequently given by her Honour (at [95] of the summing-up (see [21] above)) was inadequate to overcome the problems associated with the earlier direction. He submitted that it did “not expressly correct the error made the day before and it did not include a reiteration of the jury’s proper role in evaluating the Crown’s allegations”.

17. [53]

    Senior counsel for Mr Maitland submitted that “the principal difficulty” in her Honour’s formulation of element 4 in the directions was that “the words ‘substantial’ and ‘significant’ carry with them a great degree of uncertainty in the sense of what is substantial and what is significant for the purposes of determining whether or not there has been a wrongdoing of the type which would engage element 4”. He submitted that the difficulty was even greater when one comes to accessorial liability as it was necessary to assess whether the person who was making the decision has formed the particular view about what is substantial and significant, particularly in a case which may involve mixed motives. He submitted that it was not enough to say as in Speechley that it could properly be left to the good sense of the jury and that concepts of significant and substantial in “these sorts of areas is a foreign concept in criminal law”.

18. [54]

    Senior counsel for Mr Maitland submitted that element 4(b) created even more uncertainty around the central element of the offence because of the difficulty of assessing the requisite balance of what “crosses the line” and what does not.

19. [55]

    Ultimately, senior counsel for Mr Maitland adopted what was said by senior counsel for Mr Macdonald to be the appropriate direction, submitting that it was “fundamentally different” to what the trial judge adopted.

20. [56]

    In its submissions the Crown accepted that, as the charges involved an exercise of a discretion that was within power, “it was necessary to prove that Macdonald acted with a corrupt or improper motive”. The Crown submitted that it was not argued below that element 4 should have involved a dominant purpose test and that, in any event, “a person’s dominant purpose or significant motivation can be seen as alternative expressions of the same state of mind”.

21. [57]

    The Crown submitted that the inclusion of the words “to a significant degree” in element 4(b) posed “no more than a classic jury question”. It was described as a question “the answer to which requires a normative assessment undertaken by reference to community standards”. In that context the Crown relied on R v Speechley at [45].

22. [58]

    In its written submission the Crown submitted that any “oral inarticulation” of the element test at [619] of the summing-up was immediately clarified by what was said in [622].

23. [59]

    The balance of the Crown’s written submissions were directed to what was contended by Mr Macdonald and Mr Maitland at the trial, namely, that for the offence to be established it had to be shown the improper purpose was the sole purpose of the transaction in question.

24. [60]

    At the hearing the Crown referred to the description in Whitehouse v Carlton Hotel Pty Ltd at 294, of the invalidating impermissible purpose needing to be the “substantial object” of the transaction. He submitted that her Honour used the word substantial which had a correlation with dominant. Having made that point the Crown submissions continued as follows:

25. [61]

    It is unclear from that submission whether or not the Crown was accepting that the approach in Whitehouse v Carlton Hotel Pty Ltd was the correct approach.

26. [62]

    The Crown then submitted that pars 4(a) and 4(b) dealt with what was described as the “positive and negative” in a “mixed motive case”. He submitted that “whatever the jury thought substantially motivated meant, they knew that was the improper way”. He submitted that there was only one motive or purpose which could be “the driving force or could be the dominant purpose or could be causative or but for”. The Crown submitted that however mens rea is looked at, the jury was given a “proper direction in the circumstances of the case”. However, the trial judge expressly excluded the expression “driving force” from her summing-up, relying on R v Speechley.

27. [63]

    In relation to the complaint concerning [76] of the summing-up, the Crown submitted that was immediately corrected by what was said in [77] which he submitted set out properly what must be proved beyond reasonable doubt in element 4. He also referred in that context to what was said in [94] of the summing-up.

28. [64]

    In relation to her Honour’s remarks at [618]-[622] of the summing-up, it submitted they provided no great difficulty when considering the summing-up as a whole and the fact that the jury had the written direction of the elements of the offence.

Consideration

1. [65]

   It must be said at the outset that the position adopted by the appellants in relation to a sole purpose test was significantly different to their approach at the trial. Further, although objection was taken to some elements of the summing-up, no real criticism was directed to the use by her Honour of the words motives and motivation, to which exception has been taken during the course of argument in the present case.

2. [66]

   Further, at the hearing of the appeal there ultimately appeared to be little disagreement as to the appropriate test for the mental element of the offence. Senior counsel for each appellant adopted a causation test (see [48]-[55] above), an approach with which the Crown did not seem to take issue.

3. [67]

   Whether or not that is the correct approach falls to be considered by reference to the purpose of the common law offence. In Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309 at [133] this Court accepted as correct the formulation of the elements of the offence set out by the Victorian Court of Appeal in R v Quach (2010) 27 VR 310; [2010] VSCA 106 at [46]. This formulation was based on the formulation of the elements by Sir Anthony Mason NPJ in Shum Kwok Sher v Hong Kong Special Administrative Region (2002) 5 HKCFAR 381 at [84] as modified by him in Sin Kam Wah v Hong Kong Special Administrative Region (2005) 8 HKCFAR 192 at [45]-[46]. The circumstances of the reformulation were set out in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [164] and it is not necessary to repeat it.

4. [68]

   The object of the offence is to prevent public officers (in the case of misfeasance) from exercising their power in a corrupt and partial manner. Thus, in R v Bembridge (1785) 22 State Trials 1, Lord Mansfield at 155 formulated the liability of officers in the following terms:

5. [69]

   In R v Borron, a case involving criminal information against a magistrate, Abbott CJ made the following comments at 434:

6. [70]

   More recently Lord Millett NPJ in Hong Kong Special Administrative Region v Wong Lin Kay [2012] 2 HKLRD 898 summarised the rationale for the offence in the following terms:

7. [71]

   In Obeid v R (2017) 96 NSWLR 155; Bathurst CJ at [96] expressly left open the question of whether it was a necessary ingredient of the offence when based on an improper misuse of power, that the improper purpose was the sole purpose. Leeming JA, without determining the question, stated at [335] that it was “easy to contemplate cases where the improper purpose falls short of being the sole purpose”.

8. [72]

   Having regard to the rationale for the offence, it would be surprising if it was necessary for the improper purpose to be the sole purpose. If, for example, a Minister of the Crown embarked upon a transaction for the purpose of conferring a benefit on himself or his friends, it would not seem to matter that he also has a belief that the transaction would or might benefit some members of the public. In these circumstances, if the transaction in question would not have been undertaken but for the improper purpose, then subject to the other elements being made out, the offence, in our opinion, would have been committed.

9. [73]

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

10. [74]

    That ruling which was not criticised on appeal, R v Llewellyn-Jones [1968] 1 QB 429, was subsequently approved by the Court of Appeal in R v Dytham [1979] QB 722 at 726. In approving it, it was described by the Court of Appeal as a “but for” test.

11. [75]

    As their Honours pointed out in R v Speechley, the Court said it was sufficient that the accused be influenced to a significant degree by the improper purpose. Although, as will be seen in our opinion, that does not adequately explain the test to the jury, it provides further support for the proposition that the improper purpose need not be the sole purpose.

12. [76]

    In Boulanger v The Queen the Supreme Court of Canada considered the elements of an offence under s 122 of the Canadian Criminal Code RSC 1985, c. C-46. The section was in the following terms:

13. [77]

    The Court determined (at [48]) that the mens rea and actus reus of the offence must be determined by reference to the common law authorities which considered the offence of misfeasance in public offence. In dealing with the mens rea, the Court made the following remarks:

14. [78]

    It should be noted that immediately following the passage cited, the Court cited the ruling of Widgery J in R v Llewellyn-Jones with approval.

15. [79]

    It should also be noted that Widgery J’s formulation of the duty in R v Llewellyn-Jones was referred to in the Court of Appeal in Attorney General’s Reference (No 3 of 2003) [2005] QB 73 without disapproval at [39]-[40].

16. [80]

    Professor Finn (as his Honour then was) in his article, “Public Officers: Some Personal Liabilities” (1977) 51 ALJ 313, pointed to the fact that although “the language of ‘trust and confidence’ seems at first a little incongruous in public law it has not deterred the courts from equating the public officer with the private law trustee and fiduciary”: (1977) 51 ALJ 313 at 315. Although the analogy cannot be taken too far in formulating the elements of the offence, assistance on the mental element can be gained from cases involving breaches of fiduciary duties.

17. [81]

    In the oft-cited passage in Mills v Mills (1938) 60 CLR 150, Dixon J as his Honour then was made the following remarks (at 185-186):

18. [82]

    Whitehouse v Carlton Hotel Pty Ltd, a case principally relied upon by the appellants, concerned a breach of fiduciary duty. The majority made the following remarks (at 293-294); (reference to citations omitted):

19. [83]

    That approach is also consistent with the approach commonly adopted in determining whether an exercise of power by administrative officers was for a purpose foreign to the purpose for which the power was conferred: Thompson v Council and Municipality of Randwick (1950) 81 CLR 87; [1950] HCA 33 at 106; cf Fazzolari v Parramatta City Council (2009) 237 CLR 603; [2009] HCA 12 at [55], [94].

20. [84]

    Having regard to these authorities, it seems to us that the direction as to the mental element of the offence should have been that Mr Macdonald could only be found to have committed the crime (subject to the other elements being made out) if the power would not have been exercised, except for the illegitimate purpose of conferring a benefit on Mr Maitland and DCM.

21. [85]

    Each of the appellants criticised the use of the word motivation in the written direction. As we have pointed out the expression “improper purpose” is commonly used in cases of abuse of fiduciary powers, see Mills v Mills; Whitehouse v Carlton Hotel Pty Ltd, as well as in cases involving criminal offences of improper use of position by an officer of a corporation, see, for example, Chew v R (1992) 173 CLR 626; [1992] HCA 18 at 630, 633 and 635, where the direction was criticised for failing to isolate the element of purpose before the jury could bring in a verdict of guilty. Further, the difficulty with the expression “improper purpose” identified by the trial judge is in our opinion answered by the formulation of the direction which we have set at [84] above.

22. [86]

    Notwithstanding, we do not think that the use of the word motivation had the potential to divert the jury. Motivation has the same meaning as purpose when used in this particular context. However, there is more difficulty in the use by the trial judge of the expressions “substantially motivated” in par 4(a) and “not motivated to any significant degree” in 4(b) of her written directions.

23. [87]

    The difficulty with the direction is that it had the potential to cause the jury to reach a verdict by weighing up the significance of any proper purpose they considered Mr Macdonald had and the improper purpose in the decision-making, rather than focusing on the proper question, namely, whether but for the improper purpose the consent and licence would not have been granted.

24. [88]

    It is apparent from the elements judgment that in formulating the direction her Honour placed reliance on what was said by the Court of Appeal in R v Speechley (see [44]-[45] above), that the question of what amounts to a significant degree could be left to the jury. With respect to the Court of Appeal, in our opinion, in dealing with a charge of this nature it is incumbent to set out precisely what needs to be proved, rather than relying on the good sense of the jury to apply the appropriate test. In Boulanger v The Queen, the Court stated at 68-69 that “[p]ublic officers, like other members of the public, are entitled to know where the line lies that distinguishes administrative fault from criminal culpability”. Equally, it is important that it be made clear to juries where the line is to be drawn.

25. [89]

    The difficulty, in our opinion, was compounded by the oral direction complained of. We agree with the Crown that the problem with the direction contained in [76] of the summing-up may have been overcome by what was said in [95] of the summing-up, although that direction again referred the jury back to the elements document containing the concepts of substantial motivation and not motivated to a significant degree. However, in answer to the jury question asked after they had retired, the trial judge again on two occasions ([619], [622] of the summing-up) asked the question “Why did he do it?”, adding “did he grant consent because he was substantially motivated by furthering the interest of the State…or did he grant consent to benefit Mr Maitland or DCM” (almost identical to the misdirection at [76]), inviting the jury to speculate as to the significance of the competing motives.

26. [90]

    It follows, in our opinion, with the greatest respect to the trial judge, that the jury was not properly directed on the mental element of the offence.

27. [91]

    No reliance was placed on the proviso to s 6 of the Criminal Appeal Act 1912 (NSW) by the Crown in its written submissions. However, at the hearing the Crown in answer to a question from Adams J submitted that the proviso would apply if the direction was wrong but effectively directed a dominant purpose test even if not in those words. However, although it may have been possible for the jurors to reason from the direction in that fashion, it does not seem to us inevitable that they would do so. It follows that the Court cannot be satisfied that there was not a substantial miscarriage of justice and in these circumstances, it would not be appropriate to apply the proviso: Lane v The Queen (2018) 92 ALJR 689 at [38].

28. [92]

    It follows this ground of appeal has been made out.

    1. (1)

       Appeal against conviction allowed.

    2. (2)

       Conviction quashed.

    3. (3)

       A new trial is ordered.

    4. (4)

       The matter is listed for mention in the Supreme Court Arraignments List on 1 March 2019 or such other date as directed by the Criminal List Judge.

    5. (5)

       Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), on the ground set out in s 8(1)(e) of that Act, order that disclosure of [93]-[635] of these reasons (other than the orders themselves) be prohibited pending further order of the Court. This order does not apply to the disclosure of those paragraphs to the parties to these proceedings, their legal representatives or the Court.