R v Dougas; R v Read; R v Linke (No 12) [2022] NSWSC 332

R v Dougas; R v Read; R v Linke (No 12) [2022] NSWSC 332

Because the indictment charged only the permutation in s 70.2(1)(a)(i) and s 70.2(1)(c)(i), the jury should be directed that the Crown must prove beyond reasonable doubt a conspiratorial agreement actually to provide a benefit and that the purpose was to obtain or retain business with a direct connection between the benefit and that purpose. The words "obtain or retain business" are not to be construed so broadly as to make the separate "business advantage" provision redundant.

Jurisdiction
Australia
Judgment Date
24 March 2022
Procedural Posture
Criminal Prosecution for Conspiracy to Bribe a Foreign Public Official / Trial Ruling on Directions to Be Given to the Jury
Outcome
Ruling made regarding directions to be given to jury
Legal Topics
['federal Offences' 'conspiracy' 'bribing a Foreign Public Official' 'jury Directions' 'meaning of "obtain or Retain Business"' 'business Advantage']
['criminal Law' 'criminal Procedure' 'statutory Interpretation'] ['federal Offences' 'conspiracy' 'bribing a Foreign Public Official' 'jury Directions' 'meaning of "obtain or Retain Business"' 'business Advantage']

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Procedural Posture

Criminal Prosecution for Conspiracy to Bribe a Foreign Public Official / Trial Ruling on Directions to Be Given to the Jury

Legal Issues

  1. 1 ['Whether, where the indictment charged an offence under Criminal Code (Cth), s 70.2(1)(a)(i), the jury should be directed that the Crown must prove a conspiratorial agreement to provide a benefit, as distinct from causing, offering or promising the provision of a benefit.' 'Whether the phrase "in order to obtain or retain business" in Criminal Code (Cth), s 70.2(1)(c)(i) requires a direct connection between the provision of the benefit and obtaining or retaining business, and should be distinguished from obtaining or retaining a business advantage under s 70.2(1)(c)(ii).']

Ratio Decidendi

Because the indictment charged only the permutation in s 70.2(1)(a)(i) and s 70.2(1)(c)(i), the jury should be directed that the Crown must prove beyond reasonable doubt a conspiratorial agreement actually to provide a benefit and that the purpose was to obtain or retain business with a direct connection between the benefit and that purpose. The words "obtain or retain business" are not to be construed so broadly as to make the separate "business advantage" provision redundant.

Court Disposition

Ruling made regarding directions to be given to jury

Orders

  • ['The jury will be directed that the Crown case is that the conspiratorial agreement was to provide a benefit and that the jury must be satisfied beyond reasonable doubt that there was such an agreement; causing a benefit to be provided, offering or promising to provide a benefit, or causing such an offer or promise...