13.415. Secondly, Ms Berejiklian submitted that there was a real question whether the prosecutor could prove that element of the offence of misconduct in public office requiring that the impugned conduct be 'so serious as to merit criminal punishment'. She submitted that her conduct in relation to her s 11 duty was not capable of meeting such a high bar. She submitted that the absence of a nefarious motive on her part would be fatal to any prosecutor making out this element and further, that a 'reckless failure' to comply with s 11(2), even if capable of being proved and satisfying the mens rea element, would not be 'so serious as to merit criminal punishment'.
13.416. The Commission accepts Ms Berejiklian's overall submission that the obstacles to a prosecution would be so formidable as to make it reasonably clear that any advice from the DPP with respect to the matter would be to the effect that no prosecution would be commenced. The offence of misconduct in public office requires proof of elements not essential to the matters which constitute corrupt conduct under the ICAC Act. For example, as explained in this report, it is unnecessary to establish such matters as a nefarious motive.
13.417. The Commission is satisfied on the evidence before it to the requisite standard on the balance of probabilities that inferences can be drawn from the facts and circumstances to establish that Ms Berejiklian wilfully failed to comply with her s 11 duty. The Commission concludes, however, that there is insufficient admissible evidence, particularly in the absence of Ms Berejiklian's evidence, for inferences to be drawn that would prove the mens rea of the offence of misconduct in public office to the required standard of beyond reasonable doubt in any criminal prosecution.
296 The applicant does not contend that the Commission's finding as to "serious corrupt conduct" was illogical or irrational by reference to that ultimate finding or the reasons supporting it. Had she done so, it would have been necessary to show that the conclusion was one which no logical or rational decision-maker could have arrived at on the available evidence. As Crennan and Bell JJ said in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130]–[131]:
… an allegation of illogicality or irrationality … is nevertheless an allegation of the same order as a complaint that a decision is 'clearly unjust' or 'arbitrary' or 'capricious' or 'unreasonable' in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person…
… The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
297 Instead, the applicant contends that the finding that she engaged in "serious corrupt conduct" in failing to discharge her s 11 duty ([13.406]) is inconsistent with the Commission's subsequently formed opinion that consideration should not be given to obtaining advice with respect to prosecution of the applicant for the offence of misconduct in public office.
298 The proposition that such an inconsistency renders that finding illogical or irrational does not follow. First, it assumes that any illogicality or irrationality which might explain the asserted inconsistency is only in relation to the finding of "serious corrupt conduct", and not in relation to the Commission's declining to make a s 74A(2) statement.
299 Secondly, the proposition assumes that, where the factual circumstances justify a "serious corrupt conduct" finding in relation to conduct in breach of s 11, those same factual circumstances must also justify an opinion that consideration be given to
