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Corruption and Public Justice

Corruption and Public Justice

The ODPP prosecutes a range of offences dealing with corrupt conduct and the interference in the proper administration of justice.

Main types of offences
Corruptly receiving or soliciting a benefit

The main form of corrupt conduct captured under the Crimes Act 1900 is the solicitation and receipt of a corrupt commission or reward. 

An offence of corruptly receiving or soliciting a benefit or reward is proved by showing that an agent, broadly defined as a person employed by another person, has: 

  • received or solicited any benefit, usually money or some other financial advantage,
  • as an inducement or reward; 
  • for doing, or having done, something, or not doing, or not having done, something; or
  • for showing, or having shown favour, or disfavour, to someone.

Examples of corrupt conduct prosecuted by the Office include illicit payments made by business operators and individuals to public sector employees and local Councils for favourable treatment in decision-making, the awarding of contracts and other work.

Interfering with the course of Justice

Public Justice offences under Part 7 of the Crimes Act 1900 capture a broad spectrum of criminal conduct that seeks to interfere with or jeopardise the proper investigation and prosecution of crime. Offences under the Part range from making false accusations to Police, hindering investigations, threatening and intimidating witnesses, concealing serious offences including child abuse offences, tampering with evidence, threatening and intimidating judicial officers and jury members, to perjury and doing any act with intent to pervert the course of justice. 

Under section 319 of Part 7, the general offence of Doing an act with intent to pervert the course of justice captures any act or omission committed with the intent to pervert the course of justice. The offence includes many of the criminal acts, separately or in combination, found in the specific offences within the Part. The offence can relate to events from the very start of a criminal investigation through to completion of criminal proceedings. 

Under section 327, the offence of Perjury involves the giving of false evidence under oath or affirmation in a judicial proceeding. For the offence to be proved, the evidence must be material, or relevant to a fact in issue in the proceedings.

Other offences: Wilful Misconduct in Public Office

An offence less frequently prosecuted by the ODPP is the common law offence of Wilful Misconduct in Public Office. This is an offence not found in the Crimes Act 1900 or any under any statute and developed as an offence under the common law of England and other common law jurisdictions, including New South Wales. 

The offence applies to corrupt and other criminal conduct committed by public sector officials and employees in the discharge of their duties and is often associated with offences of corruption and fraud. The offence is complex and has a number of elements that need to be proved: 

  1. the person must be a public official or officer;  and
  2. be acting in the course of, or connected with, his or her public office or duties; and
  3. have wilfully misconducted him/herself, by an act or omission, for example, by wilfully neglecting or failing to perform a duty; and
  4. have done so without any reasonable justification; and
  5. the misconduct must be serious and merit criminal punishment.

Within the ODPP are two specialist prosecution groups that prosecute public sector officials and police officers for these and other offences. 

ICAC Referrals

In 2019 the Public Sector Prosecutions Unit (PSPU) took over the responsibility for prosecuting matters referred to the ODPP by the Independent Commission Against Corruption (NSW) (ICAC).

Following an investigation and inquiry by ICAC, persons of interest may be referred to the ODPP for advice as to the availability of criminal charges, usually for fraud and corruption offences. These and other persons may also be referred to the ODPP for advice in relation to providing false or misleading evidence in ICAC hearings. 

Because much of the evidence given before ICAC cannot be used in criminal proceedings, it is important that the available and admissible evidence is scrutinised to ensure criminal proceedings will have a reasonable prospect of success. Often the ODPP will request that ICAC obtain further evidence in admissible form prior to recommending criminal charges. This advising work can be complex and requires close attention to detail.

The nature and volume of evidence in these matters has changed over the years. Briefs of evidence can contain thousands of pages of transcripts, financial transactions and intercepted material. The ODPP is presently working with ICAC to facilitate the use of digital evidence, increasing efficiency and reducing costs. As an example, briefs of evidence are now received by the ODPP from ICAC via an electronic portal.

Confiscation of the Proceeds of Crime

Along with other agencies, the ODPP plays an important role in retrieving the proceeds of criminal activity from an offender. 
The ODPP can make an application for the forfeiture of an offender’s tainted property, and other pecuniary penalty orders, under the Confiscation of Proceeds of Crime Act 1989, following a conviction and sentence of the offender for a serious crime. Tainted property is defined under the Act as property obtained as a result of, or used in connection with, a serious crime. 

A specialist Confiscations Team within the PSPU handles applications for the illicit proceeds and ill-gotten gains of convicted public sector officials arising out their corrupt and criminal activities. The Team also provides advice on confiscation applications to solicitors across the Office.