The common law offence of bribery is constituted by 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.
The offence of bribery can be constituted by the making or offering of a payment with an intent to incline a person in public office to disregard his or her duty at some future time — 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.
[5-160] 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 [him/her] to act contrary to [his/her] [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 [his/her] 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 [he/she] made the [offer/payment].
This involves an inquiry into the state of mind of [the accused]. Obviously, you cannot look inside [his/her] 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 [his/her] 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 Intention [3-200].
For a discussion of the elements of bribery at common law, see R v Glynn (1994) 33 NSWLR 139 at 140 et seq.
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).
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.
Provisions relating to the bribery of a Commonwealth public official are contained in the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Cth).
See Pt 4A of the Crimes Act 1900 for offences relating to the corrupt receipt of commissions and other corrupt practices.