[13.417]),
reached an illogical or irrational result in finding that it was satisfied to the requisite standard that any breach of s 11(2) of the ICAC Act by Ms Berejiklian was 'dishonest' and 'partial' within the meaning of s 8(1)(b) of the ICAC Act (R [13.387]-[13.388])…
293 By this ground it is contended that the Commission's finding that the applicant's failure to discharge her obligations under s 11(2) of the Act constituted "serious corrupt conduct" is "internally inconsistent" with its subsequent decision in all the circumstances not to make a statement that consideration be given to obtaining the advice of the Director of Public Prosecutions (DPP) with respect to the prosecution of the applicant for misconduct in public office ([13.416]-[13.418]).
294 As noted at [50] above, s 74A of the Act concerns the content of reports made by the Commission to Parliament. Subsection 74A(2) is:
74A Content of reports to Parliament
…
(2) The report must include, in respect of each "affected" person, a statement as to whether or not in all the circumstances the Commission is of the opinion that consideration should be given to the following—
- (a) obtaining the advice of the Director of Public Prosecutions with respect to the prosecution of the person for a specified criminal offence,
- (b) the taking of action against the person for a specified disciplinary offence,
- (c) the taking of action against the person as a public official on specified grounds, with a view to dismissing, dispensing with the services of or otherwise terminating the services of the public official.
295 The Commission decided not to recommend to the obtaining of advice from the DPP at [13.407]–[13.418]. Its reasons included the following:
13.409. The elements of the offence of misconduct in public office have been set out in chapter 3. Counsel Assisting submitted in relation to that element requiring the prosecutor to prove that the accused has 'wilfully misconduct[ed]' her or himself, that it is only regarded as proven where it is established that the accused knew that (or was reckless as to whether) her or his conduct constituted misconduct and that the accused would not have engaged in the impugned conduct but for her or his improper purpose.
13.410. Counsel Assisting submitted that as Ms Berejiklian gave her evidence to the Commission under objection, it would not be admissible against her in any criminal proceedings for an offence of misconduct in public office. As a result, proof of her mental state, including as to the question of whether any misconduct by her was 'wilful', would be left to inference from the circumstances. However, they submitted that there is a considerable body of evidence independent of Ms Berejiklian's from which inferences could be drawn as to her state of mind and from which potentially innocent hypotheses could be excluded in relation to her failure to exercise her s 11 duty.
…
13.413. Ms Berejiklian submitted that even if the Commission were satisfied that she breached her s 11 duty, it is at least reasonably clear that any advice from the DPP as to a prosecution for misconduct in public office in relation to that conduct would be that there should be no such prosecution. She submitted, first, that in this circumstantial case, the prosecutor would inevitably fail in proving the mens rea element of the offence. The prosecutor would need to prove, relying solely on inference–as Counsel Assisting acknowledged–not only that Ms Berejiklian had reached the required state of suspicion under s 11(2) of the ICAC Act, but that she appreciated that fact at the relevant time and decided not to report it to the Commission.
13.414. Ms Berejiklian submitted that the prosecutor would need to disprove any other reasonable hypothesis raised at trial for her failure to report, or, as Counsel Assisting acknowledged, would be required to show her guilt was 'the only rational inference that the circumstances would allow them to draw'. Ms Berejiklian submitted that the absence of a plausible nefarious motive on her part not to comply with her s 11 duty would be an additional obstacle for a prosecutor to prove a wilful intent on her part.
