R v Dougas; R v Read; R v Linke (No 12)

The three accused stand charged on an indictment which charges:

Section 70.2 of the Criminal Code (Cth) relevantly provided, at the time of the events the subject of the indictment:

All references to legislation in these reasons will be to the Criminal Code.

It is evident from the wording of the indictment that the Commonwealth Director of Public Prosecutions has elected to charge the offence under s 70.2(1)(a)(i) and s 70.2(1)(c)(i), being one of the eight permutations available under s 70.2.

A question has arisen as to what directions should be given to the jury concerning:

This question, which turns on statutory construction of s 70.2, is an important one which, if there were more time, would warrant an examination of the ways in which other nation states have implemented their obligations under the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. However, as the parties wish me to determine the question before the final address on behalf of Mr Dougas, which is due to commence tomorrow, I have decided to give reasons ex tempore. Accordingly, the reasons are necessarily briefer than they might otherwise be. Although reference will be made to principles of statutory construction, I do not propose to refer to the well established authority for such principles.

Mr Pararajasingham, who appears with Mr Clelland QC on behalf of Mr Dougas, has provided a draft direction (MFI 24) which seeks directions in the following terms:

The Crown opposes the giving of either direction. It submits in relation to the proposed direction in paragraph 1 that it has a tendency to over-complicate the jury’s task and that all is required is that the jury be directed, in accordance with the express words of s 70.2(1)(a)(i) that they must be satisfied that the agreement was to provide a benefit. In respect of paragraph 2, the Crown submits it is not necessary to explain to the jury what “in order to obtain or retain business” means by reference to what it is not.

In relation to the first paragraph I am persuaded that it is desirable that the jury be directed broadly along the lines in paragraph 1 of MFI 24, since the charge has been brought under s 70.2(1)(a)(i) and not under any other subparagraph of s 70.2(1)(a). However, I have been persuaded by the Crown that it is preferable to use the wording in s 70.2(1)(a) when giving a direction to the jury about the distinction to be drawn between s 70.2(1)(a)(i) and (ii), (iii) and (iv).

Accordingly, I will direct the jury, in relation to s 70.2(1)(a)(i) as follows:

Turning now to paragraph 2 of MFI 24, I am satisfied that having regard to the context in which the words “obtain or retain business” appear in s 70.2, it is necessary to distinguish the concept of obtaining or retaining “business” in s 70.2(1)(c)(i) from the concept of “obtain or retain a business advantage”, which is referred to in s 70.2(1)(c)(ii). The Commonwealth Parliament has made a choice to legislate separately in relation to “business advantage” and has thereby, in my view, narrowed the plain meaning of the words “obtain or retain business”, which might otherwise, but for the context provided by s 70.2(1)(c)(ii), have been thought to encompass concepts of indirectly obtaining or retaining business as well as directly obtaining or retaining business. I note that the Crown accepts that s 70.2(1)(c)(i) is mutually exclusive from s 70.2(1)(c)(ii).

Having regard to the legislative context in which these provisions operate, I consider that s 70.2(1)(c)(i) ought be construed as covering, and limited to, directly obtaining or retaining business; whereas s 70.2(1)(c)(ii), dealing as it does with “business advantage”, would cover business advantages which might indirectly lead to obtaining or retaining business. Paying a bribe to be awarded a contract would amount, in this context, to obtaining or retaining business, whereas paying a bribe to have one’s tender considered with others would not, although it would amount to a business advantage (albeit one to which the payer of the bribe would be entitled on submission of a compliant tender).

I am persuaded by Mr Pararajasingham that it is appropriate to draw that distinction in a direction to the jury which makes a reference to directly obtaining or retaining business and the indirect concept of obtaining or retaining a business advantage.

I consider that the introduction which precedes the examples in paragraph 2 in MFI 24 is appropriate. However, I accept the Crown’s submission that there is a degree of overlap between the concepts in (ii), (iii) and (iv) which makes it necessary to refer only to (i) and (iii).

In addition, I consider it to be preferable for the direction to be in general terms, rather than to include specific reference to “SKM” [Sinclair Knight Merz]. Accordingly, I will not include a reference to “SKM” in (i), but rather substitute the word “the tenderer” for “SKM” in (i).

The direction I propose to give to the jury on these matters is as follows: