Supreme Court of WA|2009-11-30|Before: Hasluck J, Magistrate P

INGHAM -v- McKENZIE [2009] WASC 351 (30 November 2009)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : INGHAM -v- McKENZIE [2009] WASC 351

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Criminal law - Charges of giving false testimony to Corruption and Crime Commission - Charges dismissed after submission of no case to answer upheld by magistrate - Contention by defence counsel that the statutory body named in the charges and in the key questions did not exist and therefore the respondent's evidence was not false or misleading - Whether the meaning of the subject words was conditioned by the context and the background against which the utterance was made - Whether sufficient to plead the effect or impression produced by the assertion said to have been falsely made - Principles to be applied in response to a submission of no case to answer - Whether it was open to the magistrate to find that the words in question given in evidence were false and that the respondent knew them to be false - Whether respondent was prejudiced or embarrassed in any substantive way in the preparation of his defence - Finding that magistrate erred in law by failing to take account of the whole of the evidence before him in determining what was meant by the key questions, having regard to the context and the respondent's state of knowledge

Criminal Procedure Act 2004 (WA), s 21, s 23, sch 1 cl 5, cl 6

Bronston v United States [1973] USSC 6; 409 U.S. 352 (1973)

Devries v Australian National Railways Commission (1993) 177 CLR 472

Farris v The Queen (1965) 50 D.L.R. (2d) 689

Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226

Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23

John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508

Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19; [1997] AC 749

Morrison v Kiwi Electrix Pty Ltd [1998] WASCA 203; (1998) 19 WAR 482

R v Ayres [1984] AC 447

R v Sharrock [1948] 1 All ER 145

Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Skerritt v O'Keefe [1999] WASCA 183

State of Western Australia v Tilbrook [2007] WASCA 4

United States v DeZarn [1998] USCA6 301; 157 F.3d 1042 (1998)

United States v Lane 735 F.2d 499 (1984)

2 The appellant, Raymond Mark Ingham, commenced a prosecution for an alleged infringement of s 168 of the Corruption and Crime Commission Act 2003 (WA). The prosecution notice contained two charges brought against the respondent, David Hugh McKenzie.

3 First, it was alleged that on 2 November 2006 the respondent, being a person giving evidence at an examination before the Corruption and Crime Commission ('the Commission'), gave evidence which he knew was false in a material particular by denying that he was aware that Amendment 92 was on the agenda for the meeting of the South West Regional Planning Committee on 19 May 2006 contrary to s 168 of the Act.

4 Second, it was said that on the same occasion the respondent gave evidence which he knew was false in a material particular by denying that he knew that Paul Frewer was a member of the South West Regional Planning Committee.

5 Section 168 of the Act provides that a person who, at an examination before the Commission or an inquiry before the Parliamentary Inspector, gives evidence that the person knows is false or misleading in a material particular is guilty of a crime.

6 The subject charges were brought on for hearing in the Perth Magistrates Court on 23 February 2009. For present purposes, it is important to keep steadily in mind that the body described in the prosecution notice was the South West Regional (emphasis added) Committee.

7 The subject charges arose out of an inquiry being conducted by the Commission in 2006. The nature of the inquiry was summarised by the Commissioner at a public hearing on the first day of the inquiry. He said this:

This commission intends to conduct a number of examinations by way of this hearing for the purposes of an investigation under the Corruption and Crime Commission Act of 2003 which I will simply call the Act. Pursuant to section 142(6) of the Act, I order that Mr Stephen Hall SC and Mr Phillip Urquhart, practitioners appointed by the Commission to assist the Commission, may appear before the Commission. The general scope and purpose of the Commission's investigation is as follows: to enable the Commission to make an assessment and form an opinion as to whether any public officer has or may have engaged in misconduct in the performance of their duties and person has or may have directly or indirectly improperly influenced or intended to improperly influenced any public officer to engage in misconduct in respect of but not limited to an application by Canal Rocks Pty Ltd to develop land at Sussex lot location 413 Smiths Beach, Yallingup.

As the Act requires me to do I have within the terms of section 140(2) weighed the benefits of public exposure and public awareness against the potential for prejudice or privacy infringements and I have come to the conclusion that it is in the public interest to conduct these examinations in public. This Commission is an investigative body and its functions do not form part of the mainstream administration of justice in that they do not include the making of conclusions or findings with respect to either civil or criminal liability. The essential and immediate purpose of an investigation by the Commission is to inform the Commission on matters of possible misconduct as defined with the Act and in its discretion to make assessments and recommendations, express opinions and communicate the results of the investigation to Parliament in due course.

8 It is not necessary for present purposes to refer to the events giving rise to the inquiry at length or to express any views about the matters under examination. It will be sufficient for present purposes to look briefly at what was put to the Magistrate hearing the subject charges by counsel for the prosecution in the course of his opening address and at certain passages from the certified transcript of the hearing before the Commissioner.

9 I must begin by noting that the respondent, Mr McKenzie, was at all material times a real estate agent and a director of the developer, Canal Rocks Pty Ltd ('Canal Rocks'). Counsel for the prosecution explained to the Magistrate that in order to proceed with the proposed development at Smiths Beach Canal Rocks had to comply with certain planning controls and obtain planning approval.

10 The Smiths Beach area lies within the Shire of Busselton and was therefore subject to the requirements of the Shire's town planning scheme. The minister responsible for planning in the State Government had made a recommendation to the Shire that its scheme be amended in conformity with requirements of a policy approved by the Minister, namely, the Leeuwin-Naturaliste Ridge Statement of Planning Policy. It was known to those with an interest in the matter that the policy in question and the proposed amendment would have the effect of introducing more stringent development controls.

11 It seems that the change to the Shire's town planning scheme was to be effected by Amendment 92. The approval of the Western Australian Planning Commission ('WAPC') was required before Amendment 92 could be incorporated into the Busselton town planning scheme. However, it was known to at least some of those interested in the matter that the WAPC had delegated its powers of approval to a certain committee.

12 Counsel at the hearing before the Commission, and counsel for the prosecution at the hearing of the subject charges before the Magistrate, described this body on several occasions as 'the South West Regional Planning Committee' (being the description of the body in the prosecution notice), although it was common ground at the hearing before me that at all material times the correct description of the body exercising the delegated powers was 'the South West Region Planning Committee'.

13 For ease of exposition, and where it is desirable to speak in a neutral way, having regard to the matters in issue, I will use the descriptive phrase 'south west planning body' as a generic term intended to embrace the planning body exercising delegated powers, as both correctly and incorrectly described. Where greater precision is called for, I will as the occasion requires use either the correct description (that is, South West Region Planning Committee) or the language actually employed by counsel and/or the relevant witness.

14 It was against this background that at least some of the persons with an interest in the matter were concerned to know who was on the south west planning body and whether Amendment 92 would come before the body at a meeting to be held on 19 May 2006.

15 I understand that on 19 May 2006 Amendment 92 did in fact come before the South West Region Planning Committee. Approval was deferred on that occasion, albeit granted at a later date.

16 In due course, it became a matter of interest to the Commissioner conducting the inquiry as to whether the decision-making processes of the Committee and the Council of the Shire of Busselton were in any way influenced by consultants or other outsiders.

17 It emerged from what was said by counsel for the prosecution in his opening before the Magistrate that those with an interest in the matter included two consultants engaged by the respondent on behalf of the developer, one of whom was Mr Brian Burke. It was put to the Magistrate that the respondent's knowledge of the Committee's membership and what was on the agenda for the meeting on 19 May 2006 was material to the issues before the Commissioner conducting the inquiry.

18 It will now be useful to look at the nature of the issues being inquired into by the Commissioner in more detail in order to understand the issues underlying the subject charges. With that thought in mind, I will draw upon the opening address of counsel assisting the Commission.

19 Counsel began by making these observations (ts 10):

The local government authority with responsibility for the area is the Shire of Busselton. The land is zoned Tourist under the shire's Town Planning Scheme number 20 with an additional use zoning also permitted. This allows for residential as well as tourist development of the land. The land is also designated as a development investigation area under the scheme which means that a development guide plan must be prepared and approved by the shire and the West Australian Planning Commission prior to any subdivision or development of the land.

20 Counsel went on to refer to the fact that the developer engaged consultants to provide strategic advice as to how the development proposal could be advanced. He added this (ts 14):

Whether any of the consultants brought to bear any improper influence on behalf of Canal Rocks is a matter that will be investigated at these hearings. The appeal by the shire to the EPA was not resolved until September of the following year, 2004. As noted, as a consequence of that appeal it was decided that the amendment to the Town Planning Scheme should be reworded and this was done. The new amendment was known as amendment number 92.

This amendment needed to go back to a meeting of the council for approval before it could be advertised and sent to the WA Planning Commission. However, a council election was due on 7 May 2005 and the amendment was not brought before council before that time.

The position in the lead up to the council election was this: amendment 92 was still pending, the existing Town Planning Scheme allowed for greater densities and was less onerous in terms of environmental requirements than would be the case after amendment 92 was passed. It would be advantageous for Canal Rocks if it could get its development plan approved on the existing Town Planning Scheme and the outcome of the election would be crucial for Canal Rocks both in terms of whether amendment 92 was passed and whether a new Development Guide Plan under the existing Town Planning Scheme would be accepted.

21 At a later stage of his address, counsel posed this question (ts 19):

To what extent did Canal Rocks and its consultants have a hand in any deception? In the months following the election Canal Rocks and its consultants continued to have meetings and discussions with the elected councillors. Amendment 92 was still awaiting council approval. Deferral of that process could be to the advantage of Canal Rocks.

22 Counsel went on to trace the sequence of events in the planning process. He made these observations (ts 26):

The WA Planning Commission has delegated some of its approval powers to committees. One of those committees is the South West Region Planning Committee. It was to this committee that the shire referred amendment 92 for approval on 16 December 2005. Unknown to the shire the WA Planning Commission had already been sent a letter, that is, the letter of 11 October, by the EPA asking that consideration of the amendment be deferred.

That letter resulted in the amendment not being considered for many months until April of this year when a shire officer became aware of what was occurring, pointed out the obvious inconsistency in any suggestion that consideration of the amendment should be deferred and urged the WA Planning Commission to proceed with the approval process. The shire made several requests to the EPA for a copy of that 11 October letter, to no avail.

A meeting of the South West Region Planning Committee was held on 19 May this year. The minutes of that meeting state that the committee was concerned that the amendment put to it did not reflect what was actually passed by the council. The exact source of the concerns is not clear from the minutes but the outcome was that the committee deferred consideration of the amendment and expressed doubts as to the legality of the documents that had been put forward by the shire.

A shire officer responded by letter dated 1 June 2006 strongly refuting the suggestions made at the committee and pointing out that the amendment as presented had in fact been adopted by the council. This is supported by the minutes of 10 August and 14 December 2005. In these circumstances question arise as to the reasons those on the South West Region Planning Committee acted as they did on 19 May 2006. In particular a question arises as to whether the decision-making process was in any way influenced by an existing relationship between an officer on the committee and the consultants.

As a matter of completeness I understand that the committee subsequently approved the amendment, it was consented to by the minister and gazetted on 25 July this year and is now incorporated into the Town Planning Scheme. The very long and difficult history of an amendment that was only intended to bring the relevant Town Planning Scheme into line with state policy has been marked with conduct that is at least deserving of public scrutiny. At worst it is possible that there has been serious misconduct by public officers.

23 The respondent, Mr McKenzie, was called to give evidence before the Commission in regard to these matters on various occasions.

24 It is not necessary for present purposes to traverse the evidence given by the respondent in its entirety. It will be sufficient to refer to his evidence in summary form.

25 The respondent acknowledged that he was a director of Canal Rocks Pty Ltd and had a stake in the company via the Canal Rocks Unit Trust. He said that in his role as chairman he was associated with the day to day running of the company and was in that position when a first development proposal was submitted to the Shire of Busselton in late 1999.

26 The respondent said that a development guide plan, being an outlined plan for the proposed development of the land, was submitted to the council but then withdrawn. There was a period of public controversy leading to circumstances in 2005 when there was a move by the Shire of Busselton to amend its town planning scheme to reflect the modified Leeuwin plan. From his company's perspective the proposed amendment to the Busselton scheme seemed bad because of the Council's interpretation of it. The company lodged a revised development guide plan with the Shire in September 2005, which was under consideration for a number of months.

27 Mr McKenzie referred also to engaging various consultants including Mr Brian Burke, Mr Julian Grill and Mr Crichton-Brown. Mr Burke was instrumental in introducing Mr McKenzie to members of the Parliamentary Labor party and providing some strategic advice about building relationships with councillors at the Shire of Busselton. He assisted with doing professional letters and the brochures for candidates for the election in May 2005 and provided advice concerning the possible involvement of the Independent Action Group.

28 In the course of his evidence Mr McKenzie went on to refer to the involvement of various groups and individuals in the planning process. At a hearing on 2 November 2006 he was asked about the progress of Amendment 92 and the role of the Environmental Planning Authority or EPA. At ts 795 to ts 799 he was asked about the role of the south west planning body in dealing with Amendment 92 and the 19 May meeting of that body. It was at this stage that a crucial exchange with counsel took place that gave rise to the subject charges that were brought before the magistrate some years later.

29 I will set out the terms of the crucial exchange on 2 November in a moment. However, it is important to understand, being a matter that was common ground at the hearing before me, that throughout the ts 795 to ts 799 exchanges both counsel and the respondent used the incorrect term South West 'Regional' Planning Committee although, as it happened, this was reproduced in the typed transcript that came to hand a few days later as the South West 'Region' Planning Committee; that is, the correct title of the body.

30 The crucial exchange was open to the interpretation that the respondent was not aware that there was to be a meeting of the south west planning body on 19 May, and nor did he know that Mr Frewer was on that body.

31 Some weeks later, on 5 December 2006, the respondent was recalled and questioned again before the Commission about these matters. The relevant exchange appears at ts 1206 to ts 1212. For ease of reference, I will call this the '5 December exchange'.

32 By this time counsel was equipped with the transcript from the earlier hearing (which referred to the South West 'Region' Planning Committee). However, it seems that when he turned to the implications of the crucial exchange, counsel again referred to the South West 'Regional' Planning Committee. In the course of the exchanges at ts 1206 to ts 1212 there were also references to 'that Committee' and 'the Committee'.

33 At the hearing on 5 December the respondent was confronted with certain telephone intercepts. It was put to the respondent that the transcripts of these intercepts suggested that what he had said previously during the course of the crucial exchange with counsel on 2 November was false. As appears on the transcript of the hearing before the commissioner the respondent dealt with this line of questioning in various ways including reference to having made a mistake and to some inadequacy in his powers of recollection.

34 Having provided an overview of the evidence given to the commissioner, let me now turn to the details of the crucial exchange on 2 November 2006, and then, for the sake of completeness, to the details of certain exchanges between counsel and the respondent one month later on 5 December 2006 when it was put to the respondent that the evidence he gave on the first occasion was false.

35 As I have indicated, in the course of giving evidence at ts 795 to ts 799 on 2 November 2006 the respondent was involved in a certain exchange with counsel assisting the Commission. It was this exchange that led eventually to the subject charges being laid against him. The crucial exchange was as follows (ts 795):

Were you aware prior to the 19 May meeting South-West Regional Planning Committee that amendment 92 was on the agenda?---No. I virtually had nothing to do with the South-West Regional Planning Committee. I have never - I don't ever recall seeing an agenda.

Did you know that Mr Frewer was on that committee---No. I don't know who was on the committee.

Did you ever discuss Mr Frewer being on that committee with anyone?---Not that I recall, no.

Well, specifically did you ever discuss that with Mr Burke?---Not that I recall.

36 As mentioned earlier, the word 'Region' appears on the face of the transcript at ts 795 but both counsel at the hearing before me agreed, having regard to the audio evidence as the best evidence, that in fact the word spoken by counsel was 'Regional'. I have therefore used that word in setting out the contents of the crucial exchange.

37 I come now to the 5 December exchange. In doing so, I note that, again, the transcript of the hearing was in error. As part of the appeal proceedings I convened a special hearing at which the audio version of an important passage (which must be regarded as the best evidence) was compared to the typed version. I concurred with the view shared by both counsel that the passage in question at ts 1206 to 1207 should read as follows:

I see. All right. When you were last here giving evidence I asked you about the South West Regional Planning Committee and there was a meeting of that committee on 19 May this year. I told you that at that meeting there was consideration given to amendment 92. I asked you at page 795 of the transcript at line 40:

Were you aware prior to the 19 May meeting South West Regional Planning Committee, that amendment 92 was on the agenda?---No. I virtually had nothing to do with the South West Regional Planning Committee. I have never - I don't recall seeing an agenda.

That wasn't true, was it?---I don't recall seeing - no, I don't recall seeing an agenda.

When you said - when I said to you -'Were you aware prior to the 19 May meeting that amendment 92 was on the agenda?' you said, 'No.' Were you aware prior to that meeting that 92 was on the agenda?---Well, I probably would have been.

Why did you say no?---I made a mistake.

Well, how is a mistake possible there? I asked you quite plainly, 'Were you aware?' You said, 'No.' The truth is you were aware, weren't you?---Look, I can't recall sitting here today if I was or I wasn't.

38 A little later, after the playing of a telephone intercept of a conversation between the respondent and Mr Burke at 6.37 pm on 18 May 2006 (which later became exhibit 14 at the hearing before the magistrate) the respondent had a further exchange with counsel assisting the Commission, Mr Hall, in these terms at ts 1208:

Mr McKenzie, this was on the evening of 18 May, the evening before the meeting of the South-West Regional Planning Committee. Clearly you knew that Mr Fewer was on that committee?---Now that I read this there's parts of that - not all of that conversation I can recall but there are parts of it I do recall and it would certainly appear from that that, yes, I did.

And that you were worried about this matter going before the committee the following day and you were contacting Mr Burke in the hope that something could be done about that?---That would have been the purpose, yes.

Yes, and indeed it was you that suggested to Mr Burke that Mr Frewer might be a person that could be contacted?---That had been suggested to me by others that - yes.

Who?---I can't recall who it was.

You can see that during the course of that call Mr Burke in fact left you on the phone, contacted Mr Frewer and spoke to him?---That's correct, yes.

And then gave you some assurance after that call that Mr Frewer would, as he said 'sort it out' he thought?---Yes, whatever that meant.

Yes, but you were comforted by that?---I don't recall if I was comfortable or - - -

You also said at page 795, line 49, 'Did you ever discuss Mr Frewer being on that committee with anyone?' and you said, 'Not that I recall, no.' Why did you say that?---Quite simply, I don't - I didn't recall.

39 Counsel for the prosecution at the hearing before the Magistrate made it clear in his opening address that it was the answers given by the respondent in the course of the crucial exchange on 2 November 2006 that had given rise to the subject charges.

40 Counsel for the prosecution introduced his case in this way at ts 2:

These proceedings arise as a consequence of testimony given by the defendant on 2 November 2006 and ultimately the entirety of his evidence will be tendered but I shall refer only at this time to the exchange between himself and Mr Hall SC, counsel assisting the commission on that date. ... It's around about page 400, sir.

Were you aware prior to 19 May meeting, South-West Regional Planning Committee, that amendment 92 was on the agenda?---No, I virtually had nothing to do with the South-West Regional Planning Committee. I have never - I don't ever recall seeing an agenda.

Now, the important part of the answer, sir, and I make this plain at the outset is the first word, the denial, 'No.' The rest of the answer serves neither to qualify whether he was aware or not. It is the bare denial at the beginning of the answer that is challenged in these proceedings. Next question:

Did you know that Mr Frewer was on that committee?---No. I don't know who was on the committee.

Again, it is the denial about Mr Frewer that is relevant. The questioning went on.

Did you ever discuss Mr Frewer being on a committee with anyone?---Not that I recall, no.

Well, specifically did you ever discuss that with Mr Burke?---Not that I recall.

Now, it is said that the answers to those questions are false as well but they are not the subject of charges. They serve to further reinforce, if you like, the denials in relation to the two earlier answers.

41 I pause to note in passing that defence counsel, at the hearing of the appeal before me, submitted that the effect of this introduction was to provide further and better particulars of the prosecution case, with the result that as to each count the false evidence allegedly given by the respondent was limited to the single word: 'No'. I will say more about this issue later.

42 At the hearing before the magistrate, counsel for the prosecution went on to foreshadow the leading of evidence to show the state of the respondent's knowledge about Amendment 92 prior to the meeting of the south west planning body on 19 May 2006. What the respondent knew about the meeting could then be compared with what the respondent said during the crucial exchange. In that way, counsel submitted, a conclusion could be arrived at by the Magistrate that the answers given by the respondent six months later on 2 November were false, and the respondent knew them to be false at the time he was giving his evidence.

43 Counsel for the prosecution made these observations:

So let me now come to that part of the evidence that is going to really begin the case once the evidence starts and that is proof that the evidence given before the CCC was false. I intend to start, if you like, with proving this part of the case and the proposal is that we will lead evidence of search warrants, seizure of computers, the conduct of telephone interceptions which lead to emails and conversations which discuss the forthcoming meeting of 19 May of the South-West Regional Planning Committee and which discuss Mr Frewer's involvement in that committee.

As I say, that will be where the evidence will begin. I will begin by looking at what the state of knowledge was before the commission inquiry and in particular at around about the period in mid to late May. It will then be contrasted with the answers given about six months later - less than six months later - in November.

44 Having opened before the magistrate in this way, counsel for the prosecution then proceeded to adduce evidence from various witnesses, with related exhibits, as he had foreshadowed, including certified copies of transcripts of the hearings before the commissioner with a view to establishing exactly what was said.

45 I note in passing that the prosecution case included evidence from Robert William Vogel. He described himself (according to the transcript) as secretary of the South West Regional Planning Committee, being a body exercising delegated powers granted to it by the Western Australian Planning Commission. He said that between 2001 and 2006 Mr Frewer attended meetings of the committee, and was at a meeting of the committee on 19 May 2006. He said that Amendment 92 was discussed at that meeting, but deferred. Under cross-examination Mr Vogel agreed that as at 7 April 2006 the committee's delegated powers were set out in a government gazette of that date (exhibit 38). It is apparent from the gazette that the functions and powers in question were delegated to the 'South West Region Planning Committee'.

46 It emerges, then, that by the close of the prosecution case there was a body of evidence before the court concerning the respondent's state of knowledge in May 2006 as to the workings of the south west planning body. The evidence included evidence from the secretary of the body in question and a government gazette evidencing the correct name or description of the planning body. There was also evidence of intercepted telephone conversations to which the respondent was a party.

47 For present purposes, the principal significance of the transcripts and of the telephone intercepts lies in the language and terminology used by the parties to the various exchanges, for this bears upon the meaning of the words used by the respondent in the course of the crucial exchange with counsel on 2 November concerning a certain meeting and the role of Mr Frewer.

48 In earlier discussion I described the evidence given by the respondent before the commissioner in general terms. When one looks at Mr McKenzie's evidence again, but now with an eye to working out whether he and counsel were essentially talking about the same thing in the course of the crucial exchange, and as to what exactly was being referred to, certain of the answers given by the respondent to questions preceding the crucial exchange arguably point to an awareness that Amendment 92 had been deferred and was not in fact considered by the south west planning body until 19 May. When asked about these matters (immediately before the crucial exchange), the respondent replied at ts 795 as follows:

Look, I can't recall but we have been having some semi-regular meetings with the people from the Planning Commission. Whether it came up as a result, you know, in one of those meetings or something I'm not too sure.

49 This reply and various passages in the transcript after the crucial exchange might arguably permit inferences to be drawn that the respondent, without necessarily knowing the exact title of the relevant body, was aware that a south west planning body or committee had a significant role to play in the planning process and in the approval of Amendment 92.

50 The telephone intercepts arguably have a bearing also upon the state of the respondent's knowledge as at 19 May, and as to whether, six months later on 2 November 2006, he did or did not understand what was being put to him in the course of the crucial exchange, and as to what he meant in responding to the questions.

51 For example, the exhibit 14 transcript (mentioned earlier) reflects a conversation between the respondent and Mr Burke at 6.37 pm on the evening of 18 May 2006. The respondent says that he is 'really concerned about this bloody amendment.' This is followed by an exchange as follows:

MCKENZIE: Right. Is er, Paul Frewer still on that committee? I think he is.

BURKE: On the Frewer committee?

MCKENZIE: No, on the South-West Planning Committee.

BURKE: Ah, if he is he wouldn't be taking any part in it.

52 The respondent comments that: 'I'm pretty sure he's still on it.' Mr Burke then takes an incoming call on another line from a person he calls 'Paul' in the course of which he asks: 'Uhm, are you still on that south west planning commission?' Mr Burke eventually returns to the respondent with the comment: 'Yeah, you're right.'

53 The exhibit 16 transcript reflects a telephone conversation between the respondent and Mr Burke at 10.18 am on the morning of 19 May 2006 in which reference is made to the Minister having said to a couple of people lately that 'she'd like this amendment through'. After some discussion, Mr Burke observes that: 'Frewer will fight this to the death for us ... but, uhm, I don't know the context. Peter read the names of the people on the Committee and they all just seemed like non-entities.'

54 It appears from the exhibit 17 intercept transcript that at 11.15 am on 19 May the respondent left a message for Mr Burke that 'the item' has been pulled from the meeting. The exhibit 18 intercept transcript at 12.13 pm on 19 May reflects a conversation between the respondent and Mr Burke in which the latter says 'that, was a good result then?' The respondent replied: 'Very good, Brian, yeah. Thank you.'

55 I emphasise that the magistrate did not reach the point of making any findings as to effect of or weight to be given to these evidentiary materials. For the time being it is sufficient to note that the prosecution case was supported by evidence of this kind, and it was therefore open to the magistrate to draw upon these materials in seeking to understand the context within which certain utterances were made, and in dealing with a submission of no case to answer made by defence counsel on behalf of the respondent after closure of the prosecution case.

56 This summary of the prosecution case and supporting evidence brings me to the next stage of the hearing before the magistrate. After the prosecution case had been closed, defence counsel, Mr Richardson, submitted that there was no case to answer.

57 In essence, defence counsel submitted that the body described in the prosecution notice as 'the South West Regional Planning Committee', being the description used by counsel before the Commissioner in the crucial exchange, did not exist. The evidence showed that the only committee holding delegated powers of approval was the body correctly described as 'the South West Region Planning Committee'. When asked whether he was aware that Amendment 92 was on the agenda of the South West Regional Planning Committee, the respondent had answered: 'No'. He responded in the same way as to whether he knew Mr Frewer was on the Committee. That being so, defence counsel contended, it could not be said that the respondent had given false and misleading answers. In effect, Mr McKenzie could be regarded as answering truly in saying that he was not aware of Amendment 92 being on the agenda of the South West Regional Planning Committee or of knowing that Mr Frewer was on a committee of that name. He was not aware because there was no such entity.

58 The no case submission was debated at length on both sides, with a tacit admission being made by counsel for the prosecution in the course of the discussion that the correct description of the body exercising delegated powers was not 'the South West Regional (emphasis added) Planning Committee' but, rather, 'the South West Region Planning Committee'.

59 In the end his Honour brought the debate to a close by giving a short ruling that upheld the submission of no case to answer in these terms:

HIS HONOUR: All right. I follow Mr Richardson's argument there. He referred me to the sections in the act and the cases and I accept his submissions and these complaints are dismissed. I will be happy to provide full reasons, should they be required.

60 I note in passing that neither party asked the Magistrate to provide full reasons, with the result that the passage just mentioned remains the operative point of reference. The magistrate proceeded to dismiss the charges with an order allowing to the respondent a certificate for costs pursuant to the Official Prosecution (Accused's Costs) Act 1973 (WA), such costs to be agreed or otherwise be determined by the court.

61 In response to the dismissal of the charges the appellant filed an appeal notice dated 23 March 2009. The grounds for appeal read as follows:

The learned magistrate erred in law in dismissing the charges on the basis of the respondent's submission that, there being no such entity as the South West Regional Planning Committee, the answers to the two questions concerning that committee were literally true, and could not justify the counts of knowingly giving evidence which was false in a material particular.

PARTICULARS

(a) The respondent was charged with two counts of giving evidence which he knew was false in a material particular contrary to Section 168 of the Corruption and Crime Commission Act 2003.

(b) It was alleged that he had falsely denied:

(i) that he was aware that Amendment 92 was on the agenda for the meeting of the South West Regional Planning Committee on 19 May 2006; and

(ii) that he knew that Paul Frewer was a member of that committee.

(c) The respondent succeeded on a no case submission (T40.4), asserting that the correct name of the committee was the South West Region Planning Committee (T27.3), that there was no evidence of a body called the South West Regional Planning Committee (T26.3), and so falsity could not be established to the requisite standard (or to any standard) (T27).

(d) Notwithstanding the partially mistaken premise in each of the questions asked, the learned magistrate ought not have acceded to that submission as the evidence adduced on the prosecution case established an unambiguous understanding of the meaning of the question, with no possibility that the questioner and answerer were talking about different events.

(e) It was incumbent upon the learned magistrate to examine the questions and answers in the context of the defendant's evidence before the Corruption and Crime Commission as a whole in order to determine whether ambiguity existed in the question. His Honour did not do so.

(f) There was evidence upon which a finding of falsity could be reached, such that the learned magistrate was obliged to allow the case to proceed.

62 It emerges from a consideration of the grounds of the appeal that it is necessary to determine what was meant by the words uttered by the respondent in the course of the crucial exchange and whether, taking the prosecution evidence at its highest, it was open to the magistrate to find that the words in question were false (viewed objectively) and that, in giving evidence before the Commissioner, the respondent knew them to be false.

63 There is also a further question as to whether the manner in which the charges were formulated precluded a conviction upon the basis of the crucial exchange. In other words, was it open to the Magistrate to convict on the basis of evidence that arguably went beyond the defined particulars of the charge; that is, particulars which included reference to 'the South West Regional Planning Committee'?

64 It will now be useful to look at certain statutory provisions and legal principles bearing upon the matters in issue.

65 Section 9 of the Criminal Appeals Act 2004 (WA) provides that leave of the Supreme Court is required for each ground of appeal. By s 9(2) after an appeal is commenced, the Supreme Court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of success: Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473. In the present case leave to appeal was granted by McKechnie J on 14 April 2009 in respect of the grounds mentioned in the appeal notice.

66 By s 14 of the Act the Supreme Court may dismiss or allow an appeal, or set aside or vary the decision, or remit the case for rehearing. Further, if the court considers that no substantial miscarriage of justice has occurred, it may dismiss the appeal notwithstanding that a ground of appeal has been decided in favour of the appellant.

67 A magistrate is generally required to set out the relevant findings of fact and the reasons for his or her decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination. However, in the case of a busy court it is not always practicable or necessary for a full or detailed statement of reasons to be given in every case: Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226; Skerritt v O'Keefe [1999] WASCA 183 at [146].

68 Generally, an appellate court will refrain from interfering with findings of fact based upon the credibility of witnesses unless it appears that the judicial officer has failed to use or palpably misused the advantage of seeing and hearing the witnesses or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable: Devries v Australian National Railways Commission (1993) 177 CLR 472, 479.

69 Butterworths Australian Legal Dictionary defines 'evidence' to mean any statement, record, testimony or other things, apart from legal submissions, which tends to prove the existence of a fact in issue. Testimony refers to oral or written statements made under oath or affirmation. Garner: A Dictionary of Modern Legal Usage defines the term 'give evidence' as 'to testify'.

70 In R v Sharrock [1948] 1 All ER 145 a witness was called but declined to give evidence on the grounds that any answers he gave might tend to incriminate him. Nonetheless, it was held that the mere fact that a man was called into the witness box and took the oath as a witness could be said to be 'giving evidence'. This suggests that courts must look not only at the words used but also at the meaning and effect of the assertion.

71 I must now turn to the rules concerning a submission of no case to answer.

72 In deciding whether to dismiss an information at the close of the prosecution case upon a submission of no case to answer, the test to be applied is whether there is evidence which, if accepted, would provide evidence of each element of the charge. Even if there is such evidence, it may be so lacking in weight or reliability that it is open to the court, as a matter of discretion, to dismiss the information. See Ross on Crime (4th ed, 2009) at [14.1100].

73 In Morrison v Kiwi Electrix Pty Ltd [1998] WASCA 203; (1998) 19 WAR 482, Malcolm CJ said at (489) that where a no case to answer submission is made by an accused in reply to a prosecution case, the trial judge is required to ask whether the evidence of the Crown taken at its highest is capable of establishing beyond a reasonable doubt the guilt of the accused.

74 Malcolm CJ and other members of the court held further that the same test is to be applied in a case depending upon circumstantial evidence as it is in a case depending upon direct evidence. In a circumstantial case, the question becomes whether, on the assumption that all the evidence of primary facts considered at its strongest from the point of view of the prosecution, is accurate, and on the further assumption that all inferences which are reasonably open, are drawn, the evidence is capable of producing in the mind of a reasonable person satisfaction beyond reasonable doubt as to the guilt of the accused.

75 In Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, the High Court said at [214] that if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.

76 These observations bring me to the principles bearing upon the manner in which the charges in the present case were pleaded.

77 The general rule of common law has always been that the prosecution must give sufficient details of the charge so an accused will know the case to be met. In other words, an accused must be informed not only of the legal nature of the offence with which he is charged but also of the manner in which the offence was allegedly committed. The rationale of that requirement is to be found in the need to inform the court of the identity of the offence with which it is required to deal and in providing the accused with particulars of the charge so he can prepare his defence: John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508 at 519.

78 It has been said that there are two aspects of the need for particularity. One is the need to eliminate the risk of duplicity; that is, the occasion on which the offence is alleged to have occurred must be sufficiently identified so that it may be differentiated by the jury as a specific event upon which they must focus. The second purpose of particulars is to give the accused person a sufficient indication of what is alleged against him on the occasion when he is said to have committed the offence. R v S [2000] 1 Qd R 445, 452.

79 In Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 Dixon J observed at 489 that a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in the evidence.

80 The decided cases indicate that if the charge and particulars of an offence in an indictment disclose no criminal offence whatever, in which case the indictment can fairly be described as a nullity, it follows that a conviction under that indictment cannot stand. On the other hand, if the charge and particulars can be seen fairly to relate and to be intended to charge a known and subsisting criminal offence but plead it in terms which are inaccurate, incomplete or otherwise imperfect, then the crucial question is whether the particular error can be said to have prejudiced or embarrassed the accused.

81 In R v Ayres [1984] AC 447 these observations were made by Lord Bridge at 460:

If the statement and particulars of the offence in an indictment disclose no criminal offence whatever or charge some offence which has been abolished, in which case the indictment could fairly be described as a nullity, it is obvious that a conviction under that indictment cannot stand. But if the statement and particulars of offence can be seen fairly to relate to and to be intended to charge a known and subsisting criminal offence but plead it in terms which are inaccurate, incomplete or otherwise imperfect, then the question whether a conviction on that indictment can properly be affirmed under the proviso must depend on whether, in all the circumstances, it can be said with confidence that the particular error in the pleading cannot in any way have prejudiced or embarrassed the defendant.

82 In Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, Deane J said:

Thus, it can be said, as a general proposition, that default or impropriety on the part of the prosecution in pre-trial procedures can, depending on the circumstances, be so prejudicial to an accused that the trial itself is made an unfair one. One example is where particulars supplied to an accused have been so inadequate and misleading that an accused has been denied a proper opportunity of preparing his defence. (57)

83 In many cases potential or actual prejudice can be overcome by a request or by an order for further and better particulars of the charge, or by amendment of the charge with provision for an adjournment, if necessary. It has to be kept in mind also that the common law principles may have been modified or ameliorated by statutory provisions.

84 As to prosecutions in courts of summary jurisdiction, s 21 of the Criminal Procedure Act 2004 (WA) provides that a prosecution is commenced by a prosecution notice. Section 23 deals with the formal requirements of a prosecution notice and provides that sch 1 of the Act has effect in relation to prosecution notices and charges in them. The schedule sets out rules concerning the contents of prosecution notices and indictments.

85 In essence, the various rules are directed to ensuring that the charges are presented with particularity but without specifying the exact consequences of non-compliance. Clause 5 requires that the accused be informed in enough detail to enable the accused to understanding and defend the charge and, in particular, the charge must describe the offence with reasonable clarity and identify with reasonable clarity the date and place where the offence was committed. By cl 5(2)(a) it is sufficient to describe an offence in the words of the written law that creates it. Clause 5(2)(c) provides that a charge is not defective only because an element of the offence is not stated.

86 Clause 6 deals with the alleging of particular matters and offences. The rules in question were clearly designed to ensure that the accused would be fully acquainted with the case to be met, but, at the same time, it is apparent that the rules eschew pedantry and aim for a practical approach to the ascertainment of meaning. Thus, by cl 6(1), figures and abbreviations may be used to express anything if they are usually used to do so. By cl 6(2) it is sufficient to refer to a person by any means that adequately identifies the person. By cl 6(3) it is sufficient to describe a document by any name by which it is usually known or by reference to its subject matter or effect.

87 Clause 6(11) provides that a charge alleging an offence of giving false evidence to a person or body need not allege the jurisdiction of the person or body.

(12) In a charge that alleges an offence involving the giving of false evidence, false information or a false statement (whether those words or others are used) -

(a) it is sufficient to allege the effect of the evidence, information or statement, or as much of the effect as is material, without alleging the actual evidence, information or statement given; and

(b) the charge may allege that in the evidence, information or statement the accused said 2 or more things that conflict irreconcilably, without specifying which of them is false.

89 This provision was considered by the Court of Appeal in State of Western Australia v Tilbrook [2007] WASCA 4. In that case the respondent was one of several persons who made statements to the police that resuscitation attempts were immediately commenced to revive an unconscious prisoner without disclosing (as emerged in statements made later) that in truth no immediate resuscitation attempts were made because the prisoner's cell was closed off for a period as a secured area. The trial judge was held to have erred in holding that none of the respondents had a case to answer in respect of a charge of making a statement known to be false in a material particular.

90 The trial judge's ruling proceeded from the premise that on the prosecution case the contentious statements amounted to positive assertions that resuscitation attempts were immediately commenced until the arrival of the paramedics. The statements 'as far as they went were true', albeit omitting reference to the intervention of the senior officer who insisted that the area should be secured.

91 In the course of holding that the trial judge had erred, Steytler J made these observations at [31]:

First, as I read each charge in the indictment, it was not restricted to the allegation that the particular respondent expressly said, in the statement made on 18 December 2000, that resuscitation attempts were immediately commenced and that they continued until the arrival of paramedics. As will be apparent, each charge alleged that "it was stated" that this had been the course of events. In my opinion this is not confined to an allegation that there was an express statement that resuscitation attempts were immediately commenced and that they continued until the arrival of the paramedics, but extends to and includes an allegation that there was a statement to that effect or a statement which conveyed that impression. Clause 6(12) of Sch 1 of the Criminal Procedure Act (which is given effect by s 85 of that Act) provides that, in a charge that alleges an offence involving the giving of a false statement, "it is sufficient to allege the effect of the ... statement, or as much of the effect as is material, without alleging the actual ... statement given". The word "effect" in cl 6(12) includes the impression produced by the express words of the statement.

92 It emerges from a consideration of these principles and provisions that the charge and related particulars must be sufficiently exact to disclose an offence known to the law and to describe the manner in which the offence is alleged to have been committed so that the accused can understand and defend the charge. It will be necessary to describe the offence with reasonable clarity and identify with reasonable clarity the date on which and the place where the offence was allegedly committed. However, as appears from Tilbrook, it will be sufficient in respect of a charge of giving false evidence to allege the effect of the evidence, which extends to the impression produced by the words in question, without alleging the actual evidence.

93 It follows from all of this that the crucial question is whether the words used in a prosecution notice convey a meaning to the court and to the accused that fulfils the requirements I have just described. It does not necessarily follow that the words are devoid of meaning because they include spelling mistakes, typographical errors or misdescriptions. The question is whether the presence of an error results in a failure to disclose an offence known to the law with reasonable clarity or leads to the accused being actually or potentially misled as to the nature of the case he has to meet or being otherwise prejudiced in the preparation of his defence.

94 In addressing such a question, as with any formal document, it is obviously not enough to look simply at the meaning of each word, viewed in isolation or as an abstraction. The meaning of words is a matter not only of dictionaries and rules of grammar but also of context and background knowledge. The meaning of the words in a document can be regarded for most purposes as the meaning conveyed to the mind of a reasonably well-informed reader with some background knowledge as to the ways of the community in which he or she lives. For most people, the notion that the natural and ordinary meaning of the words should be determined by having regard only to the literal meaning is an extreme position that smacks of pedantry.

95 Lord Hoffman made these observations in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19; [1997] AC 749 at 774:

It is a matter of constant experience that people can convey their meaning unambiguously although they have used the wrong words. We start with an assumption that people will use words and grammar in a conventional way but quite often it becomes obvious that, for one reason or another, they are not doing so and we adjust our interpretation of what they are saying accordingly. We do so in order to make sense of their utterance: so that the different parts of the sentence fit together in a coherent way and also to enable the sentence to fit the background of facts which plays an indispensable part in the way we interpret what anyone is saying. No one, for example, has any difficulty in understanding Mrs Malaprop. When she says 'She is as obstinate as an allegory on the banks of the Nile', we reject the conventional or literal meaning of allegory as making nonsense of the sentence and substitute 'alligator' by using our background knowledge of the things likely to be found on the banks of the Nile and choosing one which sounds rather like 'allegory'.

Mrs Malaprop's problem was an imperfect understanding of the conventional meanings of English words. But the reason for the mistake does not really matter. We use the same process of adjustment when people have made mistakes about names or descriptions or days or times because they have forgotten or become mixed up. If one meets an acquaintance and he says 'And how is Mary?' it may be obvious that he is referring to one's wife, even if she is in fact called Jane. One may even, to avoid embarrassment, answer 'Very well, thank you' without drawing attention to his mistake. The message has been unambiguously received and understood.

96 His Lordship went on to make these further observations at 775:

The meaning of words, as they would appear in a dictionary, and the effect of their syntactical arrangement, as it would appear in a grammar, is part of the material which we use to understand a speaker's utterance. But it is only a part; another part is our knowledge of the background against which the utterance was made. It is that background which enables us, not only to choose the intended meaning when a word has more than one dictionary meaning but also, in the ways I have explained, to understand a speaker's meaning, often without ambiguity, when he has used the wrong words.

97 At the hearing before me, in the course of argument, I was referred to a number of decided cases concerning the giving of false evidence which appear to echo Lord Hoffman's reasoning and recognise that the meaning of the subject words is conditioned by the context and the background against which the utterance was made. There appear to be a few, if any, Australian cases that can be usefully employed to illustrate the issue. Accordingly, I will begin by looking at a decision of the Ontario Court of Appeal, Farris v The Queen (1965) 50 D.L.R. (2d) 689.

98 In Farris the president of a company sold 14,000 shares in a company to a broker with instructions to distribute them to certain individuals in certain proportions. When asked whether he was aware of the disposition of the subject shares, he said: 'No, I am not.' On appeal, the accused argued that his answer was literally true because he did not know what had happened to the actual street certificates issued to the broker, but his conviction for perjury was affirmed.

It is clear the answer of the accused upon which the charge is based is, if taken in one sense, literally true as referring to share certificates and, had that been the only sense in which it could be taken, the charge would fail: R v Cohort (1903) 6 CCC 386; R v Hayford (1921) 35 CCC 293, 62 DLR 90, 14 SLR 375. The word 'share', however, being capable of more than one meaning, the accused may still be found guilty upon this charge if the Crown can establish that he was aware of the sense in which it was used in the question put to him, namely, that it was the disposition of the equities represented by 14,000 shares that was in question and not the disposition of the original share certificates.

100 The court in Farris then went on to make these further observations at 703:

I must conclude from the whole of the evidence in this case, that there was no confusion in the mind of the accused when he answered the question and that he knew it was the equities represented by the shares about which he was questioned and not the share certificates; and, as a consequence, that he knew his answer to be false. He was not asked about the disposition of certain share-certificates, but about shares and, as a man with a wide business experience, he must have known the manner in which street certificates were handled by a firm like 'Convesto'. Had there been evidence of any other similar accounts controlled by the accused it might be understood that he would fail to remember all the details, but this account of 14,000 shares was unique and one about which he could readily have given the details. Were it necessary to do so, the Convesto files could have been subpoenaed and made available to him at that time had he cared to reserve his answer until he could refresh his memory.

I am accordingly compelled to hold that the evidence in this case supports the conviction and establishes that the accused was aware of what he was being asked and that his answer in that sense was false and intended to mislead.

101 I come now to three cases from the United States of America.

102 In Bronston v United States [1973] USSC 6; 409 U.S. 352 (1973) the question before the US Supreme Court was whether a witness could properly be convicted of perjury for a statement made under oath that was literally true but not responsive to the question asked and arguably misleading by negative implication. The charge arose out of this exchange with a lawyer for a creditor of Bronston Productions Inc in the course of a bankruptcy hearing:

Do you have any bank accounts in Swiss banks, Mr Bronston?
No, sir.
Have you ever?
The company had an account there for about six months, in Zurich.

103 The evidence established that Mr Bronston did not have a Swiss bank account at the time of the hearing but had maintained such an account for a five year period between 1959 and 1964. The court held that in the case of an unresponsive answer the burden lay on the questioner to pin the witness down with the result that a conviction for perjury could not be supported, notwithstanding that the unresponsive answer, stated in the affirmative, thereby implied the negative of the question actually posed.

104 In considering the relevance of whether a witness intended to mislead the questioner, the Supreme Court said that the state of mind of the witness is relevant only to the extent that it bears on whether he does not believe it to be true.

105 In United States v Lane 735 F.2d 499 (1984) the defendant Lane was indicted for perjury. The prosecution alleged that in the course of questioning about certain insurance frauds Lane committed perjury by denying that one Sidney Heard had 'anything to do with this flower shop' or 'anything to do with your dealings with Lankford'. Lane contended that the questions were ambiguous because they could be interpreted to ask whether Heard owned the flower shop in question. However, it was held the evidence was sufficient to support a conviction.

106 The court observed at [79] that the questions 'were not ambiguous in the context of the case.' The court made these further observations at [81]:

Clearly, the question whether Heard had 'anything to do with the flower shop' would cover his involvement in the scheme. The question does not mention ownership of the shop, but asks whether Heard had any involvement. The jury could properly find the question unambiguously covered his conduct. In the same way, the question whether Heard had 'anything to do with [Dennis's] dealings with Mr Lankford' clearly covered Heard's close involvement in recruiting Lankford, introducing him to Dennis, and delivering documents from one to the other. We cannot agree that the questions were so ambiguous and imprecise as to preclude a guilty verdict. A reasonable jury could find that Dennis understood the questions and knew that his answers were false.

107 In United States v DeZarn [1998] USCA6 301; 157 F.3d 1042 (1998) the sixth circuit Court of Appeals the issue before the court and the outcome was described succinctly in this way at [5] and [6]:

This appeal calls upon us to clarify the law of this Circuit as to whether a person may be found guilty of perjury when he gives sworn testimony which, from the context of the questioning and circumstances surrounding the investigation, can reasonably be inferred to be knowingly untruthful and intentionally misleading, even though the specific question to which the response is given may itself be imprecise.

Because we believe that the crime of perjury depends not only upon the clarity of the questioning itself, but also upon the knowledge and reasonable understanding of the testifier as to what is meant by the questioning, we hold that a defendant may be found guilty of perjury if a jury could find beyond a reasonable doubt from the evidence presented that the defendant knew what the question meant and gave knowingly untruthful and materially misleading answers in response. Accordingly, for the reasons more fully developed below, we affirm the Defendant's conviction and sentence in this case.

108 DeZarn was a retired officer of the Kentucky National Guard. In May 1990 he was an organiser of a so-called 'Preakness Party' for about 60 guests to be held at Billy Wellman's home as a fundraiser for gubernatorial candidate, Brereton Jones. A year later, in June 1991 DeZarn attended a dinner party at Wellman's home attended by only six people.

109 In the course of a later inquiry as to the effect of political contributions, DeZarn allegedly gave false answers to questions about the Preakness Party, supposedly held in 1991. At trial DeZarn testified that the questioner, by mistakenly setting the questions in his interview about the Preakness Party in 1991, rather than 1990, led him to answer the questions with reference to the 1991 dinner party, which was not a fundraiser and at which he did not collect any contributions. He argued that his answers were literally true and could not form the basis for a perjury conviction even if there was an intent to mislead or evade.

The question presented here, then, is whether in a perjury case in which a mistaken premise exists in one of the questions asked of the testifier, the Government is entitled to present, and the jury to consider, evidence of the context of the questioning which would establish that the Defendant - despite the false premise of the question - knew exactly what the questions meant and exactly what they were referring to. We hold that the law of perjury not only permits this, but in cases such as this, requires it.

111 The court went on to make these further observations at [84] and [85]:

A question that is truly ambiguous or which affirmatively misleads the testifier can never provide a basis for a finding of perjury, as it could never be said that one intended to answer such a question untruthfully. But, where it can be shown from the context of the question and the state of the testifier's knowledge at the time that the testifier clearly knew what the question meant, the Government must be permitted to present, and the fact-finder to consider, those contextual facts.

The circumstances presented here are just such a case. The context of the investigation in this case establishes that it would be 'entirely []reasonable to expect that DeZarn understood that the questions posed to him' concerned the 1990 party. Slawik, supra, 548 F 2d at 86. Even if the questioning was not perfectly precise, the context in which the questions were asked made the object of the questioning clear and, more importantly, it is clear that DeZarn knew exactly the party to which Colonel Tripp was referring. The evidence at trial clearly established that Billy Wellman held only one Preakness Party and that was in 1990. No Preakness Party was held in 1991. Furthermore, the characteristics of the 1990 and 1991 parties differed markedly. More than 60 persons were invited to the 1990 Preakness Party, including then Lieutenant Governor Jones who was running for governor. In contrast, only three couples - Billy Wellman and his wife, DeZarn and his wife, and one other couple - attended Wellman's 1991 dinner party. Lieutenant Governor Jones did not attend that gathering, nor was he invited.

112 Let me now return to the circumstances of the present case.

113 It follows from the principles and provisions mentioned in earlier discussion that charges must be specified with clarity and precision. However, the presence of an error does not necessarily mean that the formal document (in this case the prosecution notice) is a nullity or that a conviction cannot be recorded in respect of a flawed charge. It is a matter of degree. If the words used, albeit subject to some flaw or imperfection, are sufficient in conveying a meaning to the reader to describe an offence known to the law with reasonable clarity and likewise to acquaint the accused with the case to be met a conviction can follow if the evidence is sufficient to prove the commission of the offence beyond reasonable doubt. In such a case it cannot be said that the procedural rules designed to ensure fairness have been infringed.

114 In the present case the way in which the charges were expressed were flawed to some degree in that the south west planning body in question should not have been described as the 'Regional' Committee but as the South West Planning 'Region' Committee. However, to my mind, this flaw was not fatal. The words used were sufficient to identify the nature of the offence with reasonable clarity and to convey with reasonable clarity the tenor of the factual allegation in each case, namely that false evidence was given concerning what the respondent knew about the workings of the south west planning body exercising delegated powers. The reasoning in Tilbrook indicates that it is sufficient to plead the effect or impression produced by the assertion said to have been made falsely.

115 Thus, notwithstanding the flaw, it could not be said that the respondent was prejudiced or embarrassed in any substantive way in the preparation of his defence. Moreover, it was open to him to seek further and better particulars, if there was thought to be a lack of specifity. In the event of an application to amend the charges being made in order to cure the supposed ambiguity, it was open to the respondent to apply for an adjournment.

116 As it happened, prior to close of the prosecution case, the respondent by his counsel did not raise any issue or concern as to the form or particularity of the charges with the result that no application to amend was made or allowed.

117 However, to my mind, it follows from what I have just said, and from the principles and statutory provisions mentioned in earlier discussion, that the words in the prosecution notice were sufficiently clear to identify the elements of each charge and to acquaint the respondent with the essential nature of the allegations. Thus, even without any amendment, convictions could have been validly recorded in respect of the subject charges, notwithstanding the comparatively minor misdescription of the south west planning body, if the evidence adduced by the prosecution was sufficient to support a finding of infringement.

118 As to defence counsel's contention that the observations made by counsel for the prosecution could be regarded as further and better particulars, and had the effect of confining the prosecution case in respect of each count to the single word 'No' uttered by the respondent, I am not persuaded to such a view. To my mind, the prosecution case embraced the entirety of the crucial exchange with the result that some weight could be given to the fact that in answering the questions the respondent referred to the South West Regional Planning Committee himself (and to 'the committee') and did not raise any query as to the nature or identity of the body being referred to. Unlike the non-responsive answer provided by the witness in Bronston (being a matter sufficient to distinguish that case from the present case) the respondent's answers suggested that he was aware such a body existed and understood what was being asked of him, albeit denying knowledge of who was on the committee or what was on its agenda.

119 Moreover, the prosecution had brought evidence before the magistrate of what was said by the respondent in the telephone intercepts and in other passages of the respondent's evidence before the Commission about the workings of the south west planning body and its role in relation to Amendment 92. This evidence was available to establish the context of the questions asked in the course of the crucial exchange and the state of the respondent's knowledge about the matters put to him. However, it is clear that, in dealing with the submission of no case to answer, the magistrate did not refer to evidence of this kind, or review the whole of the evidence before him.

120 This brings me back to the question posed by the ground of appeal and related particulars; that is, whether the learned magistrate erred in law in dismissing the charges on the basis of the respondent's submission that, there being no such body as the South West Regional Planning Committee, the answers to the two questions concerning the committee were literally true, and could not justify the counts of knowingly giving evidence which was false in a material particular.

121 It was contended by the appellant in support of this ground of appeal that the evidence adduced on the prosecution case established an unambiguous understanding of the meaning of the question put to the respondent in the course of the crucial exchange, with no possibility that the questioner and the respondent were taking about different events.

122 In my view, taking the prosecution case at its highest, there is merit in this contention. It follows from my earlier observations that the magistrate failed to take account of the whole of the evidence before him in determining what was meant by the question, having regard to the context and the respondent's state of knowledge, and in deciding whether the prosecution evidence was sufficient to support a finding that the respondent gave which he knew to be false in a material particular. I am therefore of the view that there is a basis for concluding that the magistrate erred in law.

123 It follows from earlier discussion that when the time came for the magistrate to deal with the submission of no case to answer, he had to determine whether a conviction could be arrived at in respect of each of the subject charges if the prosecution evidence taken at its highest was capable of establishing the guilt of the respondent; that is, that the answers the respondent gave to counsel in the course of the crucial exchange on 2 November 2006 were objectively false.

124 In weighing up whether the evidence before him was sufficient, the magistrate was obliged to take account of all the evidence. In my view, he failed to do this, possibly because of the way the debate concerning the no case submission had been conducted. He accepted what was put to him by counsel for the respondent uncritically and treated the spelling, or literal meaning of a single word in the south west planning body's title as decisive without determining, after a full review of all the evidence, what meaning was actually conveyed by the questions put to the respondent and what meaning was conveyed to the questioner by the answer given.

125 If the magistrate had examined the transcript of the respondent's evidence as a whole, and especially the evidence given at ts 795 to ts 799 and at ts 1206 to ts 1212 concerning the exercise of delegated powers by the south west planning body he would have found that throughout the examination of the respondent in the Corruption and Crime Commission, the South West Region Planning Committee was referred to as the South West Regional Planning Committee by all parties as meaning the body correctly described as the South West Region Planning Committee.

126 Likewise, in my view, when one turns to the crucial exchange, the magistrate was obliged to look at everything that was said, and not just at the single word 'no' provided by the respondent initially.

127 When the matter is viewed in that light, having regard to what was said by Lord Hoffman in Mannai the magistrate ought to have inferred, taking the prosecution case at its highest, that the respondent by his answers was referring essentially to the south west planning body exercising delegated powers, and thus, effectively, he was referring to the South West Region Planning Committee. There was then other evidence, in the form of admissions made by the respondent and what was said in the intercepts, which was arguably sufficient (again, taking the prosecution case at its highest) to establish the objective falsity of what the respondent had said about his state of knowledge concerning the planning body.

128 I therefore consider that the appeal must be allowed. I consider, pursuant to s 14(1)(e) of the Criminal Appeals Act that the charges must be referred back to the Magistrates Court, having regard to these reasons for decision.

129 It will be a matter for further submissions as to whether directions should be given that the matter be dealt with by a different magistrate. This will often be done where findings or even provisional findings have been made as to credibility or as to the effect of certain evidence. However, in this case the magistrate's decision and the decision on appeal turn essentially upon a narrow point of law. It may therefore be in order for the matter to proceed before the same magistrate.

130 I will hear from the parties as to whether any further orders or directions are required.

Crime Commission Act 2003

Prosecution (Accused's Costs) Act 1973

INGHAM -v- McKENZIE [2009] WASC 351 (30 November 2009)

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INGHAM -v- McKENZIE [2009] WASC 351 (30 November 2009)

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