The Queen v McCann[1997] QCA 238

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A.  No. 511 of 1996

Brisbane

THE QUEEN

v.

STEVEN JOHN McCANN

Appellant

Macrossan CJ

Davies JA

Byrne J 

Judgment delivered 8 August 1997 

Separate reasons for judgment of each member of the Court, Davies JA and Byrne J concurring as to the orders made, the Chief Justice dissenting.

APPEAL ALLOWED.  CONVICTION QUASHED.  VERDICT OF ACQUITTAL ENTERED.

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 8 August 1997

The issues to be considered in this case and relevant enactments appear in the reasons prepared by Byrne J and I shall rely upon the descriptions there in setting out my own conclusions.

Notwithstanding an attempt by the appellant's counsel to support an objection to the verdicts as being inconsistent, this argument should be rejected.   The three allegedly corrupt offers were made to three different officers who each spoke of the separate occasion in which he was involved.  Nothing reasonably required similar verdicts and the jury were quite free on the evidence to regard one charge as proved and the others as being situations where the appellant should receive the benefit of the doubt.  The topic of inconsistency of verdicts has recently been considered by the High Court in MacKenzie v. The Queen (1996) 71 A.L.J.R. 91.  Nothing in the Court's reasons would provide any support for the appellant's submissions in the circumstances of this case.

This then leads to a consideration of the guilty verdict reached on count two involving the officer, Burnett.

At the conclusion of the Crown case the trial judge was asked to rule on a submission that there was no case to answer.  It was submitted that Burnett and the other two officers referred to in the indictment were not holders of any public office.  It was also submitted that there was no evidence that the appellant, then a prisoner, had knowledge of Commissioner's rule 28 which applied to Burnett and other officers and by its terms required them to refrain from entering into arrangements with prisoners and receiving anything from prisoners for their personal use.  The judge held that the rule was something that the jury might consider as background in the course of deciding whether the appellant had acted with a corrupt intention when he attempted to procure the officers to bring items into the prison for him.   No error was involved in this.  When directing the jury on the issue of corrupt intention, the judge carefully explained to them that it was the appellant's mental state that was the relevant issue.  He said that for the purposes of the case as it had been presented before them, the jury had to decide whether it was established that the appellant had made offers to the officers to act in a way that would be contrary to the rules of the prison, that is contrary to their duties as prison officers.  If their answers were in the affirmative he directed them that the element of corruption could be regarded as established.  In directing in this fashion, the judge made reference to prison rules in a general way that turned attention to the basis on which the prison was conducted.  The judge's direction placed the element of corruption in a proper light for the jury's consideration and it relegated rule 28 to a collateral place in the determination of the issue.  As Byrne J suggests, rule 28 could, in effect, be regarded as irrelevant although it had been referred to below and had been picked up in an inessential way in some of the wording that appears in the indictment.  The relevant charge was one of acting contrary to the Code provisions s. 87 (1)(b).  It sufficiently appeared at the trial that Burnett knew he was being asked to do something he should not do and he thus quite properly acted on the appellant's offer by reporting it.   No objection was made at the trial to the judge's summing-up on this aspect and he should be regarded as having put the essential matter fairly.

The judge also ruled against the submission concerned with holders of public offices.

The substantial questions arising on the appeal concerning the charge involving Burnett were whether that officer could, within the meaning of s. 87 be regarded as "the holder of [a] public office" and whether the judge placed that issue correctly before the jury.

The record reveals that the judge's inclination had been to regard the question whether Burnett, as one of the officers involved, was a holder of a public office as being a question of fact and in a restricted fashion he did leave the matter for the jury's consideration.   Defence counsel, in the course of the submission that there was no case to answer, had urged the judge to deal with it as a question of law.  At the conclusion of the summing-up there was no request on the part of counsel for redirection on the point.  Before further considering the construction of s. 87, the way in which the judge dealt with the question arising under it calls for some attention.  He departed from a conventional course in the approach he adopted.  However, because the judge was pressed by counsel and especially by counsel for the accused, to deal with the question whether Burnett and the other officers were holders of a public office as a question of law, and with this attitude persisting up to the conclusion of the summing-up, it is understandable how the judge came to proceed as he did.

What the judge in fact did was to inform the jury that he had ruled as a matter of law that each officer was a holder of a public office within the meaning of the Code yet he also told the jury that it was a matter for them to consider.  He told them that it would probably not be hard for them to make findings on that issue.  He then concluded dealing with the question at that point in his summing-up by indicating that they had to find that Burnett was the holder of a public office within the meaning of the Code before they could convict the appellant on the relevant count.  The judge thus formally left the issue with the jury but it is true that he told them what he himself had ruled as a matter of law and he had at that point given them no assistance whatever on how they were to determine the question.  In one respect the judge was less than fair to himself in describing what he had previously done.   A more correct description would be that on a no case submission he ruled that there was evidence on the issue to go to the jury.

However, towards the end of his summing-up the judge did return to the question by adding something for the jury's guidance which he described as being "for completeness sake".  What he said was this:

"On the public officer aspect, that a public officer is `an officer who discharges any duty in the discharge of which the public are interested, more clearly so, if he is paid out of a fund provided by the public', and prison officers, I have ruled, are so paid."

How the jury would have reacted to all of the judge's directions on this aspect is not easy to assess.  Its indications that matters of law were for the judge and the statement of what he had as matter of law, ruled, can be placed on one side of the balance but on the other must go the statement that the jury were nevertheless to make a finding on the issue themselves before they could convict.  Taken overall this was an approach with considerable potential to lead to a mistrial. 

A judge is not entitled to dictate to a jury the answer they should adopt on any matter of fact: cf. R v. Yager (1977) 139 C.L.R. 28 per Gibbs J at 38, R v. Hill [1988] 1 Qd.R. 654 and R v. Newcombe & Barns C.A. 545, 546 of 1994, 5/5/95, unreported. Even if it is concluded that the judge in the present case has not transgressed from this point of view, a further question for the Court might be whether the case should be regarded as one where the judge has nevertheless so overborne the jury's independent consideration of the matter that the summing-up as a whole must be regarded as defective:  see B v. The Queen (1992) 175 C.L.R. 599 at 605-6, R v. Bolic and Judd [1969] Qd.R. 295 esp at 304-5 and Michael Edward Lacaze (1980) 3 A. Crim. R. 233 esp at 236-7. It is necessary to remember that counsel were principally responsible for the fact that the summing-up took the form it did and at the end of the summing-up, no request for redirection was made.

It is desirable now to say something on the broader aspects of the question indicating the approach that a trial judge in a situation like the present should adopt.

It is apparent that a question of construction arose.  The meaning of the phrase "holder of any public office" and a description of situations which it was capable of embracing were questions of law: c.f. Yager v. R (supra) at 34 per Barwick CJ with whom Stephen J agreed.   The true meaning of the phrase had to be assigned and explained  because it was something not self-evident on the face of the statute itself but once that was done, the further question which would arise, namely whether some entity or situation fell within the scope of the statutory description was a question of fact:  Yager v. R  (supra) and R v. Hill (supra) at 656, l.40.    In Yager Gibbs J at 38, although taking a different view on some aspects, added:

"if there is any issue of fact, however clearly the evidence may point in one or other direction, it is for the jury to decide."

Therefore, in the present case it was for the judge to direct the jury, with necessary detail, informing them what were the relevant characteristics of a holder of a public office as that phrase was used in the section so that thus enlightened they could decide whether Burnett was, at the relevant time, comprehended by that description.  The jury would be invited to come to their conclusion on this issue by applying to the explanation of the phrase provided by the judge the relevant features of Burnett's engagement as an administration officer including his terms of service, the duties performed by him, the source of the directions he was obliged to follow and the source of the remuneration paid to him so far as those matters had been described in the evidence of Burnett and the witness, Roth.  The judge could have added any matters strictly of law relating to the funding of the Corrective Services Commission, described as being Burnett's employer, so far as that was covered by statute.

It was not an altogether easy task for the judge to explain to the jury the characteristics of a holder of public office, as the phrase is used in the statute, defining the category to enable the jury to decide whether Burnett fell within it. This task the judge attempted to undertake by making his reference to matters "for completeness" towards the end of his summing-up.  In doing this the judge borrowed from the description of a public office given in R v. Whitaker [1914] 3 K.B. 1283, a case dealing with the common law.

Byrne J has helpfully examined authorities dealing with the concept of holder of public office and cognate categories, doing this by looking at a wide range of cases including ones taken from various American jurisdictions.  These, in their own ways, provide illumination but in the end they do not definitively answer the question of construction arising under the Code provisions.

Section 87 deals with the topic of official corruption and it displays an intention to restrain by criminal sanction corrupt influences upon the conduct of a wide range of public office holders.  There is no reason on the face of the section or arising from consideration of the conduct which is subjected to restraint, to think that it is directed only to a limited sector of the full complement of public officials.  To begin with, it embraces all members of the public service and that means it covers those engaged at the lowest end of the scale of responsibility and prestige as well as those in exalted positions.  Thus it could cover departmental workmen engaged in repetitive physical tasks as well as those whose function it is to make decisions which might have a great effect upon the lives and property of a wide range of citizens.  The point is that the section is not, thus far considered, designed to restrain corruption only of higher placed officials.  And when the section adds to its embrace the holders of all public offices, there is no reason once again to think that it is making a narrow selection or indicating any intention that the class should be restrictively interpreted.  Some echoes that might arise from the phrase "holder of any public office" if it were considered separately, could suggest that it is only high offices which are intended to be referred to but when the wide embrace of the former phrase, "person ... employed in the public service" is regarded, support is provided for the conclusion that the latter phrase is also intended to have a full and unrestricted operation.  Indeed, the fact that the two phrases are conjoined strengthens that impression.  

The orthodox approach to construction suggests that the meaning of the phrase, "holder of any public office" should be taken from the full context in which it appears:  cf. Sykes v. Cleary (1992) 176 C.L.R. 77 at 96-97.  In this context can be perceived the indications already described.  There is no compelling reason to think that the latter phrase in the two subsections should be restricted so that it will not wholly embrace the former.   It is a composite phrase to which attention has to be given.   It is possible that part of it may have been included out of caution.  An intention can be seen to catch all additional persons appointed to carry out public duties although they may not be members of the public service.  In short, corrupt influences upon the activities of any persons appointed to perform public duties appear to be the target of the legislation.  

The current wide application which will result from an expansive second category may not have been fully foreseen when the section was enacted but still it can be regarded as fully within the original intention behind the enactment.   Latter day extensions of the use of statutory corporations have had the consequence that many persons perform duties of a public character without being members of the public service. The fact that such statutory corporations have been brought into existence is a matter that itself points to the existence of a public objective intended to be served and suggests that it is current economic theories which have resulted in the utilisation of such bodies with their employees rather than equivalent additions to the ranks of the permanent public service.

Queensland statutory provisions concerned with the appointment of persons to the public service have changed with time, e.g. under the Public Service Management and Employment Act 1988 the general mode of appointment was by the Governor in Council unless there was a specific delegation to a Minister, but now under the Public Service Act 1996 while Chief Executives are appointed by the Governor in Council, a Chief Executive may appoint officers in his own department.

A case such as R v. Whitaker (supra) relied on by the judge below makes helpful statements upon the content of the common law at the time it was decided.  It makes reference to earlier cases which give an appreciation of the mischief intended to be suppressed when the Code provisions were enacted.  These observations are to be found in Whitaker at 1296:

"A public officer is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public."

And, at 1297:

"When an officer has to discharge a public duty in which the public is interested, to bribe that officer to act contrary to his duty is a criminal act."

In terms of the policy which can be regarded as enshrined in s. 87 these observations strike no discordant note.  

A broad interpretation of the corresponding common law rule continues to be applied in England.  It has been held recently in the English Court of Appeal that the offence of misconduct in a public office is not limited to acts done by officers or agents of the Crown but applies generally to every person who is appointed to discharge a public duty, so that a maintenance manager of a local authority works department would be included whether or not his compensation came from the Crown or any other particular source: R v. Bowden [1996] 1 W.L.R. 98.  That case was decided after an examination of earlier authorities which justified adoption of the principle that the holder of a public office was simply one appointed to discharge a public duty and that the category was not limited to officers or agents of the Crown.

The decision of the High Court in Herscu v. The Queen (1991) 173 C.L.R. 276 at 282 shows that s. 87 in referring to the "duties of his office" does not require that there should be a specific statutory duty that can be identified but that the phrase was to be read as a reference to functions which it fell to the officer to perform because of the position that he held.  Dixon J in Attorney-General for New South Wales v. Perpetual Trustees Co. ( Ltd),  (1952) 85 C.L.R. 237 at 249, a case dealing with the different question of the ambit of the action per quod servitium amisit, observed that there have always been employments under the Crown where the "command and direction of the Crown given mediately or immediately is the sole measure of the duty of the servant".  Further, the mode of appointment should not be regarded as a matter that by itself determines whether a person is the holder of a public office:  Enever v. The King (1906) 3 C.L.R. 969 at 975 per Griffith C.J.

A conclusion should now be stated.  In interpreting the provisions of s. 87 of the Code this meaning should be adopted:  the holder of a public office is a person appointed to or engaged in a position to serve for a defined period or an indefinite duration and perform functions and duties of a public character, that is matters in which the State has an interest.   A strong indication that the interest of the State is involved can be the fact that the person is paid from public funds.

Burnett was a temporary administration officer whose duties took him into the prison and his function supported arrangements for the care of inmates within the prison system.  Once a construction is adopted as is suggested above for the phrase "holder of .... public office" there were powerful reasons to support a conclusion that Burnett was included within it.  Although the trial judge took a perilous path when he informed the jury of the effect of a ruling that as a matter of law he said he had given, he did, in the end, sufficiently leave the matter to the jury for their decision adding his opinion that they would have little difficulty with it.   He did not by insisting on compliance by the jury with his ruling, cross the line referred to by Gibbs J (supra) and take away from the jury what was a matter of fact for their consideration.

The judge did, it is true, provide little assistance on the way in which the jury should apply to the facts of the case the meaning of the relevant phrase properly construed but he did briefly refer to the principle taken from Whitaker  (supra) which, so far as it went, contained no error for present purposes.  The judge was justified in dealing with the matter briefly because at that point it had ceased to be one where defence counsel was persisting in arguing it as a factual issue.  No redirection was asked for. 

It can be said that on the evidence in this case and the way in which it was presented, no reasonable jury could have come to any other conclusion on the elements of the offence apart from the contested issue of corruption which the jury also decided against the appellant.  It would have to be concluded that the appellant lost no chance of an acquittal from the way in which the judge dealt with the topic of "holder of any public office" even if there were otherwise a sustainable objection to the summing-up, that is in that case the proviso under s. 668E(1A) of the Code would have to be applied:  cf. Wilde v. The Queen (1988) 164 C.L.R. 365, Glennon v. The Queen (1994) 179 C.L.R. 1 at 8-9, and MacKenzie v. The Queen (1996) 71 A.L.J.R. 91.  However, in the circumstance, material error should not be attributed to the summing-up.

The appeal should be dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A.  No. 511 of 1996

Brisbane

THE QUEEN

v.

STEVEN JOHN McCANN

Appellant

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 8 August 1997

I have had the advantage of reading the reasons for judgment of the Chief Justice and Byrne J.  The central question in this appeal is whether Douglas Burnett was on 19 October 1995 "the holder of any public office" within the meaning of s. 87(1) of the Criminal Code.  The circumstances in which that question arose are explained in the reasons for judgment of Byrne J. and it is unnecessary to repeat them.  If it was not open to the jury to conclude that Mr. Burnett was the holder of a public office the appeal must succeed and a verdict of acquittal must be entered.

Section 87(1) is in the following terms:

"Any person who -

1. being employed in the public service, or being the holder of any public office, and being charged with the performance of any duty by virtue of such employment or office, not being a duty touching the administration of justice, corruptly asks, receives, or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself, herself or any other person on account of any thing already done or omitted to be done, or to be afterwards done or omitted to be done, by the person in the discharge of the duties of the person's office;  or

2. corruptly gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, upon, or for, any person employed in the public service, or being the holder of any public office, or to, upon, or for, any other person, any property or benefit of any kind on account of any such act or omission on the part of the person so employed or holding such office;

is guilty of a crime, and is liable to imprisonment for 7 years, and to be fined at the discretion of the court."

The purpose of the underlining, which is mine, I shall explain a little later.

As Mr. Burnett was a temporary administration officer, employed by the Corrective Services Commission, whose duties were to take rations around the prison in a food delivery van which he drove, he must have been employed pursuant to s. 34(1) of the Corrective Services (Administration) Act 1988.  It is implicit from s. 34(3) of that Act that no employees of the Commission are "employed in the public service" within the meaning of s. 87(1).^[1] Mr. Burnett was therefore not employed in the public service.

To conclude that Mr. Burnett was, in these circumstances, the holder of a public office, requires a wide meaning to be given to that phrase.  The Chief Justice has done that by, in effect, defining that phrase, in the context of s. 87, as including all persons employed to perform functions and duties of a public character, which he defines as matters in which the State has an interest, a strong indication of which is that the person is paid from public funds.  There is no doubt here that Mr. Burnett was paid from public funds.  The question is whether, in that context, that phrase can have such a wide meaning.

It can be seen from the reasons of the other members of this Court that the phrase "holder of any public office" in s. 87 is of doubtful import.  Only one thing seems reasonably clear.  It is exclusive of "any person employed in the public service".  Otherwise, as Byrne J. has pointed out, that last phrase would be surplusage.

In those circumstances it is permissible to consider whether the phrase "holder of any public office" had an established meaning in 1899 when the Code was enacted.^[2]  The history of offices which may be held of the Crown or of a corporation shows that, at that time, and perhaps since, the phrase "holder of any public office" had a different and narrower meaning than "public officer", its essential characteristic being that the office existed independently of its holder.^[3]  If that is correct, and I think it is, Mr. Burnett was plainly not the holder of any public office.

That "holder of any public office" means something different from "any public officer" is, as Byrne J. has pointed out, supported by the 1997 amendments to the Criminal Code which amended s. 85 of the Code and added a definition of "public officer" in s. 1.  It is most unlikely that the legislature intended two different phrases, "public officer" and "holder of any public office" used in succeeding sections, to have the same or substantially the same meaning especially where the former, but not the latter, includes a public service employee.

Byrne J. has also pointed out that some other sections of the Code refer to a person employed doing something in respect of the person's "office" thereby, to that extent, equating "office" with "employment".  Section 87(1), as originally drafted by Sir Samuel Griffith, also did this.  The underlined parts of the section, as I have set it out above, were added to Sir Samuel's draft, apparently during its passage through the Legislative Assembly.  So it can be seen that, as originally drafted, the section referred, in para.(a), to a person employed in the public service acting corruptly in respect of something done or omitted to be done by the person in the discharge of the duties of that person's office.  However it can also be seen that the legislature thought it necessary when adding to the section "or being the holder of any public office" the words "or office" in para.(a) and the words "or holding such office" in para.(b).  Consequently the mere fact that that section, as originally drafted, and some other sections, referred to the duties of a person's office in reference to an employed person does nothing to assist an argument that the holder of a public office may be merely a person in employment.

I agree with Byrne J. that it was not open to the jury to conclude that Mr. Burnett was the holder of a public office and that, in consequence, the appeal should be allowed, the conviction quashed and a verdict of acquittal entered.

I also agree that, notwithstanding that the Code has been so recently substantially amended, there is an obvious gap which calls for the immediate attention of the legislature.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A.  No. 511 of 1996

Brisbane

THE QUEEN

v.

STEVEN JOHN McCANN

Appellant

REASONS FOR JUDGMENT - BYRNE J

Judgment delivered 8 August 1997

The appellant was tried in the Townsville District Court charged with three contraventions of s. 87(1)(b) of the Criminal Code relating to approaches made to different employees of the Corrective Services Commission. The appellant, who was a prisoner at the Townsville Correctional Centre, asked these men to bring property into the Centre in exchange for money.  The jury acquitted in respect of two of the incidents but convicted in relation to a request to Douglas Burnett to import a tin of  "coffee" for $350.

In relation to the offence of which he was convicted, the appellant was charged that, on 19 October 1995, at Townsville he had:

"corruptly offered to give [Mr] Burnett, then being the holder of a public office, namely that of a Correctional Services Officer, a sum of money in consideration that [Mr] Burnett in the discharge of his duties of his office would bring property into the Townsville Correctional Centre contrary to the rules of the Townsville Correctional Centre."

The appeal raises two issues. The first concerns the concluding words "contrary to the rules" of the Centre. The second relates to the assertion in the indictment that Mr Burnett was "the holder of a public office".

It was accepted for the appellant that Mr Burnett would have contravened the Corrective Services Commission's Rule 28 had he acted upon the appellant's proposal.  By that Rule, which applies to Townsville, "All officers and employees of the Commission are prohibited from ... accepting anything from a prisoner ... ." It was submitted, however, that there was no evidence that the Rule had been drawn to the appellant's notice.^[4]  That happens to be true. It is also immaterial.  The appellant was not charged with contravening Rule 28.  He was charged with committing the offence created by s. 87(1)(b). The concluding words merely supplied particulars of the corruption. The first ground of appeal therefore fails. But there is substance in the complaints about the description of Mr Burnett as holding a public office.

By s. 87(1) of the Code, a person is guilty of a crime who:

“(a)being employed in the public service, or being the holder of any public office, and being charged with the performance of any duty by virtue of such employment or office, not being a duty touching the administration of justice, corruptly asks, receives, or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself, herself or any other person on account of anything already done or omitted to be done, or to be afterwards done or omitted to be done, by the person in the discharge of the duties of the person's office; or

2. corruptly gives, confers, or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, upon, or for, any person employed in the public service, or being the holder of any public office, or to, upon, or for, any other person, any property or benefit of any kind on account of any such act or omission on the part of the person so employed or holding such office.”

Mr Burnett was employed by the Corrective Services Commission, which is not part of the State Public Service. He was engaged pursuant to s. 34(1) of the Corrective Services (Administration) Act 1988, which enables the Commission to "appoint and employ on salary or wages or engage and employ on a contract basis ... such ... persons as are necessary for the effectual administration of the Corrective Services Act 1988 and ... for the effectual administration" of the Corrective Services (Administration) Act 1988 "and to facilitate the exercise" of the Commission's "powers and the discharge of its functions".  Mr Roth, the Commission's Acting Administration and Finance Manager, spoke of Mr Burnett as a "temporary administration officer".  Mr Burnett described his classification as Administration Officer AO2 (stores officer).  His job was to take the rations around the prison in a food delivery van which he drove.

During a submission that the appellant had no case to answer, it was contended that there was no evidence upon which the jury could conclude that Mr Burnett (or the other two members of the Commission's staff) held a "public office".  The judge, who was not referred to any discussion of the concept of public office except that to be found in the English bribery case R. v. Whitaker,^[5] refused the application. In his view, there was sufficient evidence of all the elements of the offences for the jury to consider the appellant's guilt. Unfortunately, things did not rest there.  Counsel then appearing for the appellant^[6] next argued that whether Mr Burnett was the holder of a public office was a question of law, not fact; and he prevailed upon the judge to decide whether the three Commission staff approached by the appellant held any public office.  His Honour announced his conclusion that Mr Burnett and his two colleagues were the holders of public offices.  As a result, the summing-up miscarried.

The judge gave directions to the jury on "public office", informing them that he had ruled that all three "officers" held public office within the meaning of s. 87(1). This instruction must have left the jurors with the impression that they need not consider that element of the offence.  However, his Honour next told them that they "nevertheless have to find that too" before they could convict.  Later on he returned to the topic, equating the holding of a public office with being a "public officer".  The judge then informed the jury, in language inspired by Whitaker, that "an officer who discharges any duty in the discharge of which the public are interested is a public officer, more clearly so if he is paid out of a fund provided by the public".  His Honour next told the jury that he had ruled that prison staff were paid out of a fund provided by the public.

Whether the members of the Commission's staff with whom the appellant treated held public office was not wholly a matter of law. It was a question for evaluation by the jury. The directions effectively withdrew that issue from them.  So the conviction cannot stand, at least unless the jury must inevitably have been satisfied to the requisite standard that Mr Burnett held public office. Otherwise, the misdirections have denied the appellant a fair chance of acquittal. And if, on the evidence adduced and the statutory materials and subordinate legislation the jury was entitled to take into account, it was not open to the jury to decide that Mr Burnett was the "holder" of a "public office", the appellant is now entitled to an acquittal.

Words like office and officer are of variable import.  So much of their content depends on context.  In Sykes v. Cleary,^[7] a school teacher employed permanently by the Victorian Education Department was held to occupy an "office of profit under the Crown" disqualifying him from election to the House of Representatives.  "The considerations or policies said to underlie the disqualification" were regarded by Mason CJ, Toohey and McHugh JJ^[8] as requiring an interpretation of the term which extended its reach to employees of government in junior, permanent positions.  More generally, their Honours remarked that "the meaning of ‘office' turns largely on the context in which it is found".^[9]  So also, in McMillan v. Guest,^[10] Lord Wright observed that "The word ‘office' is of indefinite content.  Its various meanings cover four columns of the New English Dictionary ...". And in Edwards (Inspector of Taxes) v. Clinch,^[11] Lord Edmund-Davies spoke of the word as "not a term of art, but a wide-ranging noun".

In The King v. Boston^[12], a case concerning bribery of a New South Wales parliamentarian, Isaacs and Rich JJ said:

"‘Office' is defined in the Oxford Dictionary, as including:- ‘4. A position or place to which certain duties are attached, esp. one of a more or less public character; a position of trust, authority, or service under constituted authority.' And ‘Officer' is defined (inter alia) as ‘2. One who holds an office, post, or place. (a) One who holds a public, civil, or ecclesiastical office; ... a person authoritatively appointed or elected to exercise some function pertaining to public life.' Clearly a member of Parliament is a ‘public officer' in a very real sense, for he has, in the words of Williams J. in Faulkner v. Upper Boddington Overseers (1857) 3 C.B.(N.S.), 412, at p. 420, ‘duties to perform which would constitute in law an office'."

But it is easy enough to identify classes of people in service under constituted authority, or who are appointed to exercise functions pertaining to public life, who do not hold office as that word is usually understood: for example, subordinate functionaries like an engine driver,^[13] a porter,^[14] a fettler,^[15] a cleaner,^[16] a lecturer at a tertiary institution engaged on a short-term contract^[17], and a railways clerk.^[18]

Expressions like "public office" and "public officer" are no less dependent on context.  As Lord Goddard CJ said,^[19] "to the words ‘public officer' different meanings can be given according to the statute in which they occur".  In income tax law^[20] a "public officer" basically deals with matters of private concern. In s. 22 of the Supreme Court of Queensland Act 1991, which relates to the holding of another public office by a judge, "public office" is defined to include "an appointment ... in relation to [an] educational ... or a charitable institution".  Just as importantly, "a public employment may be a public office for some purposes only and not for others".^[21]

A source of difficulty in identifying generally applicable criteria distinguishing public office from mere employment of a public character is the variety of circumstances in which the difference matters.  At common law it was a misdemeanour for a person appointed to public office to refuse to serve,^[22] to initiate illegal acts from vindictive or other improper motives,^[23] or wilfully to neglect to carry out a duty which the officer was bound by common law or statute to perform.^[24]  The tort of misfeasance in public office affords another illustration.  In R. v. Deputy Governor of Parkhurst Prison; ex parte Hague^[25] the view was expressed that a prison officer may commit the tort.  But in Tampion v. Anderson^[26] the Full Court of Victoria held that the tort may only be committed by the holder of an office who "owes duties to members of the public as to how the office shall be exercised", and that "employment with the Crown is not necessarily a public office for this purpose".  In other situations, a similar distinction has been made between an office-holder and an employee with public functions.  A public office was protected by the prerogative remedy quo warranto, and more recently by an information in the nature of quo warranto, only if it were "a substantive office, not merely the function or employment of a deputy or servant held at the will and pleasure of others".^[27]

At common law bribery could be committed in respect of the conduct of a public officer.^[28]  Not surprisingly in view of the mischief addressed, the offence was accorded an expansive operation.   In Boston, Higgins J^[29] cited approvingly the opinion of Faucett J^[30] that "any person who holds a public office or public employment of trust, if he accepts a bribe to abuse his trust ... is guilty of an offence at common law."  In a 1797 case a gaoler's clerk who took bribes from french prisoners of war was convicted.^[31]   And in Whitaker the Court^[32] held that the rules against official corruption relate to "an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public".  This idea was considered in R. v. Bowden^[33] where the offence of misconduct in a public office was held to have been committed by a local authority employee working as a miscellaneous maintenance manager.  The offender was considered to be a public officer because he was "appointed to discharge a public duty, and receives compensation in whatever shape whether from the Crown or otherwise".^[34]

Even though most Australian public offices have been created by or under statute, occasionally historical considerations can assume a little significance in indicating the attributes of public office. In feudal times such offices were proprietary in nature; there were "some of freehold".^[35]  According to Holdsworth, the office of an official appointed at the monarch's behest to perform a function, "governmental or otherwise", "was regarded as a piece of property which gave the official certain rights and placed him under certain duties, just as the tenure of a piece of land gave the tenant certain rights and placed him under certain duties".^[36]  Nowadays public office is associated more with public responsibility than private right.  But, as Windeyer J explained in Marks,^[37] old notions linger:

"Beginning in the middle ages, this proprietary idea persisted into the nineteenth century; and it has left a legacy to the law and language of the present day. In mediaeval times and for long afterwards the grant of an office was made in much the same form as a grant of land. Blackstone put this plainly: ‘Offices, which are a right to exercise a public or private employment, and to take the fees and emoluments thereunto belonging, are also incorporeal hereditaments ...'. But the duties could be performed by a deputy, unless the office were one, such as a judicial office, which the law required that the grantee serve personally ... .  The notion of an office as a form of property in which a man can have an estate is foreign to present-day ideas.  But it is, I think, the key to an understanding of the legal meanings of resigning an office and of holding an office at pleasure."

In the United States, where for most purposes no right of a personal, proprietary nature in public offices was accepted, ideas born of the incidents of such appointments in their inception in ancient administration were nonetheless influential in suggesting the fundamentals of public office. The American authorities are voluminous,^[38] which is no surprise given the numerous occasions when the distinction between office and employment matters there.^[39]  They are also inconclusive.  A Californian court has despaired that "it would be futile to attempt to reconcile the many definitions and illustrations of ‘public officer'".^[40] Even so, the American cases and commentaries are not altogether devoid of interest.

In the quo warranto case People ex Rel Throop v. Langdon,^[41] Cooley J discussed the distinguishing features of a public office. That eminent jurist wrote for the Supreme Court of Michigan:

"An office is a special trust or charge created by competent authority. If not merely honorary, certain duties will be connected with it, the performance of which will be the consideration for its being conferred on a particular individual, who for the time will be the officer. The officer is distinguished from the employee in the greater importance, dignity and independence of his position; in being required to take an official oath, and perhaps to give an official bond; in the liability to be called to account as a public offender for misfeasance or nonfeasance in office, and usually, though not necessarily, in the tenure of his position. In particular cases other distinctions will appear which are not general."

In 1909 the Supreme Judicial Court of Massachusetts considered that some “tests” were “established both upon reason and by authority”.^[42]

“The holder of an office must have intrusted to him some portion of the sovereign authority of the state.  His duties must not be merely clerical, or those only of an agent or servant, but must be performed in the execution or administration of the law, in the exercise of power and authority bestowed by the law... A mere employé has no such duties or responsibilities.  A public officer is one ‘whose duties are in their nature public, that is, involving in their performance the exercise of some portion of the sovereign power whether great or small’... The fact that the authority of one officer is subordinate to that of another does not prevent him from being an officer. A subordinate or inferior officer is none the less an officer...  Other important tests are the tenure by which a position is held, whether its duration is defined by the statute or ordinance creating it, or whether it is temporary or transient or for a time fixed only agreement; whether it is created by an appointment or election, or merely by a contract of employment by which the rights of the parties are regulated; whether the compensation is by a salary or fees fixed by law, or by a sum agreed upon by the contract of hiring.”

Delivering the opinion of the United States Supreme Court, Stone J spoke of public office as embracing ideas of "tenure, duration, emolument and duties fixed by law.  Where an office is created, the law usually fixes its incidents, including its term, its duties and its compensation": Metcalf & Eddy v. Mitchell.^[43]  In his 1890 treatise on The Law of Public Offices and Officers, Floyd Mechem, concentrating attention on the public aspect, supplies a different emphasis. In a passage frequently cited,^[44] he describes "public office" as:^[45]

"the right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer. As here used, the word office is to be distinguished from its application to such positions as are at most quasi public only, as the charge or office of an executor, administrator or guardian, and from the offices of private corporations."

Another view from America is that:^[46]

"The key considerations in determining whether one is a public officer are the nature of the office, the powers wielded, and the responsibilities which are carried out. In making such a determination, the court must look to the nature of the service performed by the incumbent and the duties imposed upon him. The characteristics of a public office are generally agreed upon, although the distinction between an office and employment may be vague in particular fact situations. The characteristics of a public office include: (1) creation by statute or constitution; (2) exercise of some portion of the sovereign power; (3) a continuing position not occasional or contractual; (4) a fixed term of office; (5) an oath requirement; (6) liability for misfeasance or nonfeasance; and (7) the official has an independence beyond that of employees. A public officer may be either appointed or elected; customarily will perform a public or governmental duty; the enforcement of governmental regulations or the control of the general interest of society will be confided in him; usually he will have general duties as part of the regular administration of government; and the right to emoluments."

For all this, it remains difficult to list elements indispensable to public office.

Some office-holders succeed to a station having a separate existence and continuity: like mayors, chief justices, and police commissioners.  A new puisne judge, however, is not ordinarily the successor to the office of another judge.  And a person may occupy an office created for a short-term project, as with a commissioner appointed to conduct an inquiry. In general, therefore, whether an engagement amounts to an office cannot be determined simply by inquiring if there is an identified position which must be either occupied or vacant. Some offices attract no emoluments: consider chancellors of universities, justices of the peace, and those appointed to discharge official, ceremonial functions.  In our tradition, independence is a hallmark of judicial office.  But quite a few occupants of public offices are subject to superior orders. Police officers, like constables in earlier times, exercise important functions independently, as with arrest.^[47]  In many respects, however, they are liable to substantial direction.  Office holders usually have a title: such as sheriff, coroner or ombudsman.  Some commissioned officers in the armed forces do not;^[48] yet all such officers are "appointed to an office".^[49]   Conversely, a person "is not made an office holder merely because his position has a name".^[50]   Mode of appointment is not a critical point of distinction either.  Sometimes the office holder receives letters patent or is appointed by charter, particularly where the office originated in the Prerogative.  That is not true of all public offices: members of parliament hold public office.^[51]  Office-holders used commonly to provide bonds.^[52]  Such a security is rarely required today.  Many holders of public office take an oath before exercising the powers or privileges of their offices: for example, judges and cabinet ministers.^[53]  Some do not. And lawyers on admission to the profession take an oath of office, though only "in a certain sense" can they be regarded as public officers.^[54]

A contract of employment may, and these days often does, co-exist with tenure of office.^[55]  Chief executives of State Government departments, for example, are sometimes appointed to their statutory offices on conditions substantially regulated by agreement. Of course, even though public servants of all ranks are commonly referred to as officers or officials,^[56] not everyone in public service holds a public office as that concept is usually understood. Marshall CJ made this point years ago, saying:^[57] "Although an office is ‘an employment’, it does not follow that every employment is an office."^[58]  And Sir Owen Dixon has said:^[59]

"In modern times there are many public offices existing under statute and sometimes charter the occupants of which discharge functions belonging to them by law. But there always have been employments under the Crown where the command and direction of the Crown given mediately or immediately is the sole measure of the duty of the servant."

Yet, the public element aside, one attribute appears to be basic to "public office" in its ordinary conception. Particular duties, which by law generally are to be exercised with a measure of independence, inhere in, or (as the dictionary definition extracted in Boston suggests) attach to, an office.^[60]

No responsibilities pertained to Mr Burnett's place as such.  He did not exercise an independent authority; he was completely subject to direction by his superiors.  And it does not involve any reflection upon Mr Burnett to notice that his work was routine.  He was not required to take an oath or to provide a bond.  Nor were any of the other badges of office associated with his employment.  In view of the manner in which he was engaged, and the absence of any specific duty attaching to his job or of any independence in the performance of his functions, Mr Burnett cannot have held public office unless "holder of any public office" in s. 87 extends to any employee of a public organization who performs functions with an official aspect.

What content, then, should be accorded to "holder of any public office" in s. 87?

The section is after all "aimed against the corrupt performance by public officials of the responsibilities of their office".^[61]  A narrow interpretation will leave many who exercise public functions beyond its reach, including most local government employees^[62] and a majority of the staff of those government enterprises which are not within the "public service" as defined in s. 1 of the Code and s. 36 of the Acts Interpretation Act 1954.  Moreover, Chapter 13 of the Code, which contains s. 87, for some purposes equates employment with holding an office.  This might be thought a slight indication that a broad interpretation of "public office" would accord with the legislative intent. Section 92 makes it a misdemeanour for "any person who, being employed in the public service, does or directs to be done, in abuse of the authority of the person's office, any arbitrary act prejudicial to the rights of another".  Section 86 concerns a person employed in the public service who discloses information which comes to the employee's knowledge "by virtue of the person's office". Section 88, which deals with (as the heading puts it) "extortion by public officers", provides that "any person who, being employed in the public service, takes or accepts from any person, for the performance of the person's duty as such officer, any reward" beyond proper pay and emoluments commits an offence.  However, this consideration cannot assist much. Other provisions directed against public abuses are expressed differently.  Section 90 speaks of "any person who, being employed in the public service, and being charged by virtue of the person's employment with any judicial or administrative duties respecting property" is to be guilty of an offence in prescribed circumstances. (emphasis added). In Herscu v. The Queen, a case about s. 87(1), "holder" of a "public office" is at times spoken of as if the phrase were synonymous with "public official".^[63]  But in Herscu it was common ground that the approach found to have been corrupt was made to the "holder" of a "public office" - the Minister for Local Government.^[64]  The High Court was not there concerned to give meaning to the expression which matters in this case.

Two contextual considerations are not readily to be reconciled with the broad interpretation of s. 87 which is required before the section comprehends Mr Burnett.  First, if "holder of any public office" embraces employees with functions like his, the preceding words in s. 87(1), "being employed in the public service", are otiose.  Secondly, in terms the section relates to such a person only where he or she is "charged with the performance of any duty by virtue of such ... office".  The only duties incumbent on Mr Burnett were, it seems, those implied in every contract of service, such as to comply with the lawful directions of superiors.

The legislative history detracts from the significance of the first of those factors. "Holder of any public office" did not appear in Sir Samuel Griffith's suggested Code or in the draft bill that emerged from its examination by a committee of judges.  The expression was added before the Bill was introduced into the Legislative Assembly.  Although the extrinsic material does not disclose the reason, the fact of its inclusion shows that the expression was intended to extend to occupants of public stations other than public servants. Still, at the turn of the century there existed a recognized distinction between public office and the function of a deputy or servant retained to assist the office-holder.  In view of the language chosen, it must therefore be very likely that the addition was directed to shire councillors and the like, rather than to those engaged in less conspicuous tasks.  Nor does the second consideration conclusively establish that persons retained on conditions like Mr Burnett's are not within the purview of s. 87.  The words "being charged with the performance of any duty" by virtue of office may serve only to distinguish "the holder of a merely honorific public office from the holder of a public office responsible for the performance of official functions".^[65]

Modern legislative changes have not clarified the reach of s. 87.

Section 32 of the Acts Interpretation Amendment Act 1991 inserted a new s. 36 into the Acts Interpretation Act by which "in an Act ... ‘office’" is defined to include "position".  By s. 32A of the Acts Interpretation Act, that definition applies to the Code "except so far as the context or subject matter otherwise indicates or requires".  "Holder of any public position" is capable of wider application than "holder of any public office".  But "position" too perhaps connotes that "particular, identifiable functions are attached to it"^[66] and may imply some continuance.^[67]  However that may be, another, more recent and more specific, legislative initiative also suggests that Mr Burnett does not hold a public office within s. 87.

By s. 6(2) of the Criminal Law Amendment Act 1997,^[68] a definition of "public officer" is inserted^[69] into the Code in these terms:

"‘public officer’ means a person other than a judicial officer, whether or not the person is remunerated -

1. discharging a duty imposed under an Act or of a public nature; or

2. holding office under or employed by the Crown;

and includes, whether or not the person is remunerated -

3. a person employed to execute any process of a court; and

4. a public service employee; and

5. a person appointed or employed under any of the following Acts ...; and

6. a member, officer, or employee of an authority, board, corporation, commission, local government, council, committee or other similar body established for a public purpose under an Act."

The main object^[70] of this definition was to enlarge the body of persons affected by s. 86, which previously had made it an offence for anyone "employed in the public service" to disclose official secrets.  Section 87 was amended at the same time, but not by substituting "public officer" for existing expressions.  The change^[71] to s. 87 stipulated only for a higher, 14 year penalty "where the offence is committed by or in relation to a Minister ... as the holder of public office".

The same definition of "public officer" was contained in the Criminal Code 1995.  In place of s. 87 and other sections of the 1899 Code, that statute made it an offence to bribe a wide range of people, including a "public officer".^[72]  The provisions of that 1995 Act which repealed the 1899 Code were to commence on a day to be fixed by proclamation. In the meantime, the Criminal Law Amendment Act 1997 has repealed the 1995 Code and with it the considerably extended bribery offences for which it provided.

The section which immediately precedes s. 87 in the amended Code now speaks of "public officer", not of public servants and holders of public office. Plainly "public officer" is of wider import than the relevant expressions in s. 87.  The use of different words in the same Act often suggests an intention to convey different meanings.^[73]  For present purposes, the variation in terminology in these adjacent sections, if of significance, can point only in one direction, indicating that the material expressions in s. 87 are narrower in operation than "public officer".^[74]

Quite apart from the 1997 amendments, it is at least doubtful that s. 87 could embrace employees, not part of the Public Service, whose jobs lack all the traditional indicia of an office.  And if there is uncertainty concerning its scope, because s. 87 is a penal provision, "any real ambiguity persisting after the application of the ordinary rules of construction is to be resolved in favour of the most lenient construction".^[75]  On a lenient interpretation, s. 87 cannot extend to Mr Burnett.

It was not open to the jury to conclude that Mr Burnett held public office.

This means that the Chapter containing s. 87 deserves the attention of the legislature.

Much has changed in public administration in the almost 100 years since s. 87 was enacted.  A substantial growth in the number of people involved in delivering services to the public has accompanied an appreciable increase in the responsibilities assumed by government.  Many public functions which once were discharged by the State Public Service are now attended to by others.  Sometimes those who now do the work may fairly be regarded as public sector employees: for instance, Commission staff like Mr Burnett who, until a reorganisation in 1988, were members of the Public Service. Private organisations occasionally contract with emanations of government for the provision of public services, including the management of prisons.  Section 87 has not been amended to keep pace with these changes. In other places kindred developments have prompted alterations to sanctions against official corruption.  The Western Australian analogue to s. 87 used to be materially the same.^[76]  A new provision was substituted in 1988.  It concerns the bribery of "any public officer", an expression which, much like "public officer" in Queensland's amended Code, is defined^[77] to include all employees of State and local government as well as the staff of any authority, corporation, board or commission established under a written law.^[78] 

The appeal should be allowed, the conviction quashed, and a verdict of acquittal entered.