How is conspiracy to commit misconduct in public office established?

Determining when an agreement crosses the line into conspiracy to commit misconduct in public office is not always clear cut. The High Court’s decision in Obeid v The King earlier this year provides useful guidance on when the offence may be established.

The decision resolved a long-running corruption prosecution against former NSW Minister Ian Michael Macdonald and two members of the Obeid family, Edward Moses Obeid and Moses Edward Obeid. The charges arose from events between 2007 and 2009 concerning the proposed grant of a coal exploration licence in New South Wales.

The High Court upheld the convictions against each of the Obeids and Mr Macdonald, which the defendants had appealed in both the NSW Supreme Court and the NSW Court of Criminal Appeal. The Court considered that, in an indictment, it was sufficient for the Commonwealth to allege an agreement to undertake acts that would collectively fall within the cumulative elements of the charge. It was not necessary for the prosecution to allege that the Minister agreed at the time of offence to do acts that would amount to misconduct in public office.

Background to Obeid v The King

The case concerned an exploration licence related to a coal reserve believed to exist beneath Cherrydale Park, a property the Obeid family purchased at Mount Penny in the Bylong Valley in 2007. At the time, the property was subject to an exploration licence held by the Department of Primary Industries, which had no intention to release the area for private exploration.

Mr Macdonald, Edward Obeid and Moses Obeid were charged with conspiring for Mr Macdonald to wilfully misuse his position as Minister, without reasonable cause or justification, to have the area released for private exploration. The prosecution alleged that Mr Macdonald intended to benefit the Obeids, their family and associates by wilfully breaching his ministerial duties and obligations of confidentiality and impartiality. Because the Obeid family owned Cherrydale Park, releasing the area created an opportunity for the family to benefit financially. The conspiracy ultimately generated an estimated $30 million windfall for the family.

At trial in the Supreme Court of NSW, the Crown did not allege that the parties agreed on the specific steps Mr Macdonald would take. Instead, it argued that:

• the unlawful agreement could be inferred from Mr Mcdonald’s subsequent conduct, including seeking internal confidential government information and providing the Obeids with documents and information that favoured their interests
• the parties had agreed that, when the opportunity arose and without any further agreement, Mr Macdonald would act in connection with the granting of the Mount Penny exploration licence to favour the Obeid family’s financial interests, knowing that this would breach his ministerial duties.

The trial judge found all three defendants guilty and sentenced them to imprisonment. The NSW Court of Criminal Appeal and the High Court of Australia subsequently dismissed the defendants’ appeals, confirming their convictions for conspiracy to commit misconduct in public office.

The High Court’s clarification of the elements of the offence

The High Court confirmed that the Crown’s approach at trial was capable of satisfying the elements of the offence.

The alleged agreement was that Mr Macdonald would abuse his ministerial powers to favour the Obeids’ financial interests when the opportunity arose. That agreement alone was sufficient to establish the offence of conspiracy, even if the precise means of achieving the unlawful objective were not settled when the agreement was made.

The High Court noted that the elements of the offence, first set out in Sin Kam Wah v HKSAR and later adopted by intermediate appellate courts in Australia, were:

• the person is a public official
• the conduct occurs in the course of, or is connected with, their public office
• the official wilfully misconducts themselves, whether by act or omission, including by wilfully neglecting or failing to perform their duty
• they act without reasonable cause or justification
• the misconduct is serious enough to warrant criminal punishment, considering the responsibilities of the office and the officeholder, the importance of the public objectives which they serve and the nature and extent of the departure from those objectives.

The Court also explained what type of conduct may warrant criminal punishment, stating that “any exercise of ministerial power in relation to the exploration licence for the improper purpose of benefiting private interests, and in knowing breach of duties of impartiality and confidentiality”, would amount to the offence. Realistically, there was no circumstance in which conduct of that kind by a government minister would fall short of being serious misconduct warranting criminal punishment.

For further details, read the High Court of Australia’s full judgment in Obeid v The King.

What the decision means for organisations and government entities

The decision has practical implications for both prosecutorial and defence practitioners:

• the common law offence of conspiracy is broad, particularly where an alleged agreement concerns the future misuse of public office
• conspiracies involving high‑level public decision‑making may be established even where the precise acts of misconduct are not planned, provided the agreement contemplates conduct serious enough to warrant criminal punishment
• prosecutors may have greater scope to pursue corruption offences, particularly where the evidence does not clearly identify the specific acts agreed by the conspirators.

If you have any questions about the implications of this case or need assistance with an investigation or related proceedings, please get in touch with us.

Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Alana Giles

Katerina Stevenson

Melisa Yildiz

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