Bribery
[5-5200] Introduction
The common law offence of bribery is the receiving or offering of an undue reward by or to any person in public office, in order to influence that person’s behaviour in that office, and to incline that person to act contrary to accepted rules of honesty and integrity. The offence can be constituted by the mere offer of a corrupt inducement, even if the offer is rejected: R v Glynn (1994) 33 NSWLR 139 at 144, 146. It can also be intended to influence future conduct; the occasion for the disregard of duty need not have arisen at the time of the offence, and it need never arise: R v Allen (1992) 27 NSWLR 398 at 402.
[5-5210] Suggested direction
Upon the assumption that the undue reward was a sum of money.
The allegation is that the accused [paid/offered] money to [name], a person in public office, to incline them to act contrary to their [duty/accepted rules of honesty and integrity].
The Crown must prove that money was in fact [paid/offered] to [name] by the accused. If you have a reasonable doubt as to whether such [payment/offer] was made, then the accused is “not guilty”.
If you are satisfied beyond reasonable doubt that there was a [payment/offer] made by the accused, then you must consider the purpose for which it was made. Before you can find the accused “guilty”, you must be satisfied beyond reasonable doubt that the accused’s purpose in making the [payment/offer] was to incline or dispose [name] to act contrary to their duty and accepted rules of honesty and integrity. It is not essential for the Crown to show that [name] did so act or even that [name] ever intended to do so. The essential feature is the intention of the accused; the intention with which they made the [offer/payment].
This involves an inquiry into the state of mind of the accused. Obviously, you cannot look inside their head to ascertain this — you must consider the facts that have been established and ask yourselves whether those facts demonstrate what the accused’s state of mind was at the time of the [payment/offer]. It is alleged that the accused made certain statements which would indicate what their state of mind must have been.
Section 72 of the Evidence Act 1995 will be relevant if the accused made a contemporaneous representation about his or her intention or state of mind. See also [3-200] Intention.
[5-5220] Notes
- 1.
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For a discussion of the elements of bribery at common law, see R v Glynn (1994) 33 NSWLR 139 at 140 et seq.
- 2.
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Where the Crown proves that clandestine payments of money have been made to a police officer, the fact that the Crown cannot prove the nature of any expected or desired departure from duty is of factual or evidentiary significance, but it does not mean that the prosecution must fail: R v Webster and Jones (unrep, 03/08/92, NSWCCA).
- 3.
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The essence of the offence of bribery is that there must be an offer which is known to the person sought to be bribed and which is capable of being rejected. What cannot be rejected is not an offer: R v Glynn (1994) 33 NSWLR 139 at 147.
- 4.
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Provisions relating to the bribery of a Commonwealth public official are contained in Div 70 of Ch 4 of the Criminal Code (Cth).
- 5.
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Reference to “intention of inducing a foreign public official in order to obtain or retain business” in s 70.2(1)(c)(i) of the Criminal Code (Cth) is not limited to directly obtaining or retaining business. The statutory purpose of introducing Div 70 of Ch 4 was to criminalise bribery of a foreign official in a business context and capture the full spectrum of bribes which may be made. That purpose is best given effect by broad construction of the provision: R v AB [2023] NSWCCA 168.
- 6.
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For an offence under s 70.2(1) of the Criminal Code (Cth), it is not necessary for the Crown to identify, by name or office, the public official whom the accused intended to influence: R v Dougas (No 4) [2022] NSWSC 51 at [63].
- 7.
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For a survey of the law establishing Parliamentarians as “public officers” for bribery offences, see R v Obeid (No 2) [2015] NSWSC 1380 at [33]–[43], [59]–[62]; see also Obeid v R [2017] NSWCCA 221; Macdonald, Ian v R [2023] NSWCCA 250; Obeid v R [2015] NSWCCA 309. For the related common law offence of wilful misconduct in public office, see R v Obeid (No 2) [2015] NSWSC 1380, Blackstock v The Queen [2013] NSWCCA 172, and R v Quach [2010] VSCA 106.
- 8.
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See Pt 4A of the Crimes Act 1900 for offences relating to the corrupt receipt of commissions and other corrupt practices.
- 9.
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See Pt 7 of the Crimes Act 1900 for public justice offences, including corruption of jurors and witnesses.