Queensland Judgments
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R v Maudsley

Unreported Citation:

[2021] QCA 268

EDITOR'S NOTE

Section 92A of the Criminal Code 1899 (“Code”) provides for the offence of misconduct in relation to public office. McMurdo JA’s judgment (with whom Daubney and Boddice JJ agree on this issue) considers the elements of the offence, to determine whether s 92A imports a requirement of causation. His Honour makes reference to the common law to assist in construing the Code and finds, consistently with it, that for an offence to have been committed, causation is required. That is, the intention or purpose must have been causative in the sense that, but for that intention, the “authority of office” would not have been exercised as it was.

McMurdo JA and Daubney and Boddice JJ

7 December 2021

Section 92A

Section 92A Code is entitled “Misconduct in relation to public office”. It relevantly provides ([1]):

“(1) A public officer who, with intent to dishonestly gain a benefit for the officer or another person or to dishonestly cause a detriment to another person—

(a) deals with information gained because of office; or

(b) performs or fails to perform a function of office; or

(c) without limiting paragraphs (a) and (b), does an act or makes an omission in abuse of the authority of office;

is guilty of a crime.”

In construing the language of s 92A, Justice McMurdo observed that Code offences are to be given their “natural meaning … without any presumption that [they were] intended to do no more than restate the existing law”. [13].

However, his Honour, the circumstances of s 92A justified recourse to the common law as an interpretive tool for two reasons:

  • First, because the Explanatory Notes explained its intended departure from the common law offence. (It was intended to deviate from the common law approach by confining the offence to cases where there was an intention to dishonestly gain a benefit or cause a detriment to, any person, and in so doing, provide clarity to officials as to the conduct to be expected of them). [15], [23]; and
  • Second, because some of the language of s 92A has a particular meaning under the common law. [13].

Justice McMurdo referred to statements of the common law offence and its elements ([17]–[26]), and observed, relevantly, that both the New South Wales Court of Appeal (in Maitland v R (2019) 99 NSWLR 376) and the English Court of Appeal in R v Dytham [1979] QB 722) have adopted a “but for” test in cases where the improper purpose was not the sole purpose. The question is would the transaction in question have been undertaken but for the improper purpose? [24].

McMurdo JA held that the words of s 92A supported this reading. His Honour reasoned as follows:

  • In the context of s 92A, the intention which is required is a “purpose for which the officer acted”. It may be accepted that where the officer acted with an improper purpose as described in s 92A, that need not have been the officer’s sole purpose. The critical question is whether an offence is committed in a case where, absent the improper purpose, the officer would still have acted as he did. [27].
  • The elements of an offence under s 92A are interrelated. An act of the public officer is made culpable because of a causal connection between the act and the officer’s improper purpose (an intention to dishonestly confer a benefit or cause a detriment). [28].
  • The object of the offence under s 92A is “the prevention of public officers exercising, or failing to exercise, their powers in a corrupt, partial or malicious manner.” The imposition of criminal responsibility for an act which the officer, if acting only for a proper purpose, would still have done, would go beyond what is necessary to achieve that object. And that object would not be defeated by the construction for which the appellant contends. [29].

The relationship between the required intent and the officer’s conduct being one of causation, the preferable construction is that for an offence to have been committed, the intention or purpose must have been causative in the sense that, but for that intention, the “authority of office” would not have been exercised as it was. [30].

Z Brereton of Counsel

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