R v Dougas; R v Read; R v Linke (No 4) [2022] NSWSC 51

R v Dougas; R v Read; R v Linke (No 4) [2022] NSWSC 51

On the text, context and purpose of s 70.2 of the Criminal Code Act 1995 (Cth), the use of the expression "a foreign public official" criminalises providing a benefit to a person with the intention of influencing any foreign public official; it does not make identification of a particular official by name or office an element of the offence. Division 70 was enacted to implement the OECD Convention and to deter and punish Australian persons and companies who provide benefits intending to influence foreign public officials, including through intermediaries. Requiring identification of the official would often make proof impossible and would not advance that purpose. The Crown must prove...

Jurisdiction
Australia
Judgment Date
03 February 2022
Procedural Posture
Criminal Prosecution for Conspiracy to Bribe a Foreign Public Official / Pre Trial Procedural Ruling on Disputed Elements of the Offence Charged in the Indictment
Outcome
Finding made that the Crown is not required to identify, by name or office, the foreign public official whom the accused intended to influence.
Legal Topics
['federal Offences' 'conspiracy' 'bribery of Foreign Public Officials' 'elements of Offence' 'extrinsic Materials' 'legislative History' 'treaties' 'oecd Convention on Combating Bribery of Foreign Public Officials in International Business Transactions']
['criminal Law' 'statutory Interpretation'] ['federal Offences' 'conspiracy' 'bribery of Foreign Public Officials' 'elements of Offence' 'extrinsic Materials' 'legislative History' 'treaties' 'oecd Convention on Combating Bribery of Foreign Public Officials in International Business Transactions']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Prosecution for Conspiracy to Bribe a Foreign Public Official / Pre Trial Procedural Ruling on Disputed Elements of the Offence Charged in the Indictment

Legal Issues

  1. 1 ['Whether, in a prosecution for conspiracy to commit an offence under s 70.2(1) of the Criminal Code Act 1995 (Cth), the Crown is required to prove the identity, by name or office, of the foreign public official whom the accused intended to influence.' 'Whether the 2015 amendment to s 70.2(1A) confirmed the existing meaning of s 70.2 or rectified a deficiency in the original enactment.' 'How ss 15AA and 15AB of the Acts Interpretation Act 1901 (Cth), the OECD Convention and extrinsic materials bear on the construction of s 70.2.']

Ratio Decidendi

On the text, context and purpose of s 70.2 of the Criminal Code Act 1995 (Cth), the use of the expression "a foreign public official" criminalises providing a benefit to a person with the intention of influencing any foreign public official; it does not make identification of a particular official by name or office an element of the offence. Division 70 was enacted to implement the OECD Convention and to deter and punish Australian persons and companies who provide benefits intending to influence foreign public officials, including through intermediaries. Requiring identification of the official would often make proof impossible and would not advance that purpose. The Crown must prove...

Court Disposition

Finding made that the Crown is not required to identify, by name or office, the foreign public official whom the accused intended to influence.

Orders

  • ['The Court found that all that is required in this context is that the Crown establish that the accused intended to influence someone who was a foreign public official.' 'The Court found that the onus may be discharged by direct evidence identifying a particular public official or by circumstantial evidence...