Abuse of Public Office

Experience in misconduct in public office–type matters highlights how these investigations typically develop. This includes an understanding of alternative charges that may be considered and the key issues investigators commonly focus on.

Police or Investigators Interview

Have Police or another Agency such as IBAC or ASIC contacted you? Do you suspect they will contact you soon?

Talk to us before attending any Interview or providing any material.

An interview is a key part of the investigation used by the prosecuting agency to obtain evidence they can use against you. It is not generally a search for the truth. Providing information is not always in your interests and can often open further avenues for investigation.

We can explain your rights and can accompany you to the interview.

Some questions you may consider relevant to the interview process:

• Should I answer their questions?
• Do I need to answer all of their questions, or can I be selective in my responses?
• What are the considerations when deciding if I should answer their questions?
• Am I able to claim a privilege and not respond?
• Am I legally required to provide access to my mobile phone or other device?

The Law

The section that covers this offence is section 142.2 of the  Criminal Code Act 1995.

1.  A Commonwealth public official commits an offence if:
   
   1.  the official:
      
      1. exercises any influence that the official has in the official’s capacity as a Commonwealth public official; or
      2.  engages in any conduct in the exercise of the official’s duties as a Commonwealth public official; or
      3. uses any information that the official has obtained in the official’s capacity as a Commonwealth public official; and
   2.  the official does so with the intention of:
      
      1. dishonestly obtaining a benefit for himself or herself or for another person; or
      2. dishonestly causing a detriment to another person.

   It remains an offence if the conduct is carried out by a person who has ceased to be a Commonwealth Official.

2.  A person commits an offence if:
   
   1. the person has ceased to be a Commonwealth public official in a particular capacity; and
   2.  the person uses any information that the person obtained in that capacity as a Commonwealth public official; and
   3.  the person does so with the intention of:
      
      1.  dishonestly obtaining a benefit for himself or herself or for another person; or
      2. dishonestly causing a detriment to another person.

What Must Be Proven By the Prosecution?

The prosecution must prove that a Commonwealth public official intentionally aimed to dishonestly benefit themselves or another, or cause loss to another, by exercising influence, engaging in conduct or using information all obtained through the course of their duties as an official.

Where the charge is that of a person who has ceased to be a Commonwealth public official, or in a particular capacity as an official, the Prosecution must show that this person used information obtained in their previous capacity in order to dishonestly obtain such a benefit or cause such a loss. 

Was there an abuse of public office? 

Examples of Abuse of Public Office

• A Federal Official purchases shares in a company which they know through their official capacity is about to sign an agreement with the Government.
• A sacked Commonwealth public official sells confidential information and documents to a journalist.
• A Commonwealth public official grants funding to an organisation owned by a friend or family member, without declaring the conflict of interest.
• An official misuses an internal database to obtain private information about a neighbour they are having a dispute with.
• A public official provides a tender to a friend or relative.

Pleading Not Guilty

Our lawyers are experienced at comprehensively reviewing briefs of evidence, examining the brief for issues or weaknesses in the case and preparing your defence. Understanding how matters play out at Court is vital in the preparation of these matters.

There are multiple ways to fight this charge.

It is critical to remember that before a finding of guilt by a Court or jury, or a formal plea of guilty, you are presumed to be innocent. This is a fundamental tenet of Australia’s criminal justice system. Simply because you have been charged with criminal offences, it does not mean you are a criminal or that you should be found guilty.

We can investigate the allegations on your behalf, including taking statements from witnesses, look for evidence or facts that may support your defence and identify problems in the Police case. Our lawyers’ proactive approach to defending clients charged with Abuse of Public Office can result in charges being withdrawn or an acquittal.

Defences

Example:

• You had no intention to receive a benefit or cause a loss to another
• The conduct was not in the exercise of your official duties.
• The influence you used, or information gained was not obtained from your position as a Commonwealth public official.

There are other possible defences, depending on the circumstances surrounding the alleged offending. Each matter is unique and requires an individual approach and strategy.

Questions that are asked in cases like this:

• Where was the information obtained from?
• Where did the influence exercised arise from?
• Were you intending on dishonestly obtaining a benefit?
• Was the conduct dishonest?

Pleading Guilty

If you decide to plead guilty, we work hard to resolve the case on the most favourable basis possible. Negotiations with the prosecution about the summary of offending or details of the charge or charges can be conducted.

Our lawyers are experienced in recommending beneficial courses and counselling, if appropriate, that will often result in a better outcome. We can also gather character references from people who know you well and information regarding your personal history to put forward in Court.

We are able to identify the issues and matters the Court will be most concerned with and tailor our advice to you accordingly.

Ultimately, your personal circumstances and concerns that are unique to you will be kept at the forefront of our lawyers’ minds. Clear and open communication between you and your lawyer is important to ensure that all of the relevant information is known and communicated to the Court. We work closely with you to prepare the case in a way that gives you the best possible prospect of receiving a favourable outcome.

Maximum Penalty and Court That Deals With This Charge

The maximum penalty for the offence of Abuse of Public Office (s142.2 of the Criminal Code Act 1995) is imprisonment for 5 years.

This is a very serious offence which is heard in the County Court.

What Can You Be Sentenced to for This Charge?

These charges can be very serious and, if found guilty, you may face a term of imprisonment. However, if the influence exercised, conduct engaged in or information used was only to a minor degree or of a more trivial nature, that would be reflected in the sentencing and a fine is more likely. Another relevant consideration is the value of the benefit to be obtained or detriment to be caused, the extent of which would be reflected in the sentence handed down by the Court.

Each case has its own set of facts which may impact on penalty. Ask your lawyer at Doogue + George what penalty you are likely to receive.