R v Bradley [2007] ACTSC 35

Supreme Court of the ACT|2007-05-31|Before: Crispin J

1. On 11 September 2006 the accused was arraigned on eleven counts, each alleging offences under s 142.2(1) of the Criminal Code (Cth) ("the Code"). Upon his arraignment he pleaded not guilty to all charges. The matter was then remitted to a call over list so that a trial date might be allocated.

2. On 13 February 2007, after the matter had been set down for trial, the accused applied for an order that the indictment be quashed. The matter first came before me on 27 February 2007 and I then directed that the accused file and serve any affidavits upon which he wished to rely in support of the application by 2 March 2007 and any written submissions by 5 March 2007. I also directed that the Crown file and serve any affidavits or written submissions in response by 9 March 2007 and granted the parties leave to approach the list clerk for an oral hearing date on 12 or 13 March should that prove necessary. No affidavits were filed pursuant to these directions but submissions on behalf of the accused were provided by email on 5 March 2007. It quickly became apparent that those submissions did not involve any challenge in the nature of a demurrer to the form of the charges. Counsel for the accused argued rather that the evidence adduced at the committal and foreshadowed in the statements subsequently supplied to the defence would not support the charges. The matter was listed for an oral hearing on 13 March 2007.

3. Mr Purnell SC, who appeared for the accused with Mr Hausfeld then submitted that I had power to make a pre-trial determination as to the sufficiency of foreshadowed evidence pursuant to rule 4752 of the Court Procedures Rules 2006. That rule provides as follows:

An application made in the course of a criminal proceeding must be made in writing if--

(a) the application--

(i) is made before the prosecution's case opens or witnesses are called; and

(ii) raises any question about the admissibility of evidence, or any other question of law affecting the conduct of the trial, or

(b) the application would postpone or delay a trial that has been listed for hearing if it were granted; or

(c) the application cannot reasonably be made without notice to other parties; or

(d) the application is directed by a judge to be in writing.

4. Mr Purnell argued that I should adopt a liberal interpretation of this rule. He made a forceful plea for urgent judicial intervention to prevent what he suggested would be the considerable injustice of the accused being forced to incur the expense of a trial when the charges were plainly unsustainable. Despite this plea, I ruled that rule 4752 did not enlarge the power of the Court to permit pre-trial rulings as to whether the foreshadowed evidence might be sufficient to establish a prima facie case. Hence, I dismissed the application to quash the indictment.

5. The jury was empanelled on 20 March 2007. The Crown then opened the case to the jury and Mr Purnell also made an opening address. In the light of the competing contentions advanced in those addresses, it seemed to me that there were real doubts as to whether the foreshadowed evidence was capable of sustaining the various counts in the indictment. I raised this issue with the learned Crown prosecutor and during the course of the ensuing discussion he advised me that sections of the written submissions he had earlier supplied relating to "dishonesty" and "benefit" could be taken as particulars of those aspects of the offences charged in the relevant counts. In the ordinary course of events, any argument as to the sufficiency of the evidence to sustain a prima facie case must await the close of the case for the Crown. However, as the Court of Appeal observed in R v Fischetti & Caggiano [2003] ACTCA 5 (31 March 2003) at [30]; "A jury, once empanelled, might be directed to acquit, even on the basis of the Crown opening, if that represents the Crown case taken at its highest, and the presiding judge considers that it could not, in law, justify a conviction". In the light of the opening address for the Crown, and the indication that the relevant portion of its written submissions could be accepted as particulars, it seemed to me that it might well be possible to identify the limits of the Crown case "taken at its highest". Accordingly, I indicated that I might be prepared to hear argument, even at that early stage of the proceedings, as to whether there should be directed verdicts of acquittal in relation to some or all of the counts.

6. After reading the judgment in Fischetti v Caggiano, the Crown prosecutor conceded that the Court had power to entertain an application for a directed verdict prior to the close of the Crown case. He submitted, however, that this was not a case in which that course was appropriate and indicated that he would, in any event, maintain that the foreshadowed evidence would provide a prima facie case in relation to each count. I indicated that I would hear argument on behalf of the accused and, if it proved practicable, make rulings as to whether the foreshadowed evidence was capable of establishing a prima facie case in relation to some or all of the counts or, if that proved impracticable, defer the resolution of the relevant issues untit the Crown case had been fully presented. The transcript of the committal proceedings was then admitted on the voir dire by consent and the Crown was invited to tender statements of a number of additional witnesses.

7. I thereupon heard counsel for both parties and, after adjourning overnight to consider the matter, directed that verdicts of acquittal be entered in relation to all counts. My reasons are as follows.

8. The general principle that must be applied in considering applications for directed verdicts is as stated by the High Court of Australia in Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 at 214-215, namely:

. . . 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.

9. In the earlier case of De Gioia v Darling Island Stevedoring & Lighterage Co Ltd (1941) 42 SR (NSW) 1, Jordan CJ said at 4:

"If the trial judge has properly formed the opinion that the plaintiff can be regarded as having made out a prima facie case only if his evidence, or some of it, remains unexplained, then if an explanation is supplied by the defendant it is necessary for him to reconsider the plaintiff's evidence for himself in the light of that explanation, not for the purpose of usurping the jury's functions, but in order to determine whether what bore the appearance of a prima facie case in fact amounted to one, and to decide a point which is for him alone, namely whether there is a case fit to go to the jury . . . ".

"No doubt, the trial judge can take the case from the jury only if the explanation offered is one which in the circumstances reasonable men could not reject, which does not in any relevant aspect involve evidence that is capable of being treated as genuinely in dispute, and which shows that a prima facie case has not been made out."

10. These passages were quoted by Samuels JA in Wentworth v Rogers [1984] 2 NSWLR 422 at 438. His Honour noted two passages from two earlier judgments, in Giblin v McMullen [1868] EngR 30; (1869) LR 2 PC 317 at 335 and Hiddle v National Fire and Marine Insurance Co of New Zealand [1896] AC 372 at 375-376, had been cited in support but observed that neither passage seemed to "sustain the proposition distinctly". His Honour nonetheless suggested that the test should be applied by committing magistrates and explained (at 439) that the test required an assessment of the "effect which reasonable and fair-minded jurors could attribute to the evidence". This assessment had to be made "for the purpose of determining whether a "sufficient" case has been made out, and not for the purpose of rebutting the prosecution's case". Any evidence for the defendant that was taken into account in such an assessment had to bear the characteristics mentioned by Jordan CJ in De Gioia, that is, that it must be such as a reasonable jury could not regard as other than substantially indisputable. It may be noted that Glass JA, in his judgment in Wentworth v Rogers, also referred to the decision in De Gioia, observing (at 431) that if the defendant furnishes an explanation by evidence that cannot be treated as genuinely in dispute and that reasonable people could not reject, then "what appeared to be a prima facie case no longer exists in point of law". This observation was clearly intended to qualify the more general principles that his Honour explained in 429 in the following passage:

The powers of the magistrate at the close for the evidence of the prosecution are not open to doubt. . . . He is required to rule upon the sufficiency of the evidence. Accordingly he must disregard any evidence favouring the defendant and have regard only to that evidence which favours the prosecution. . . . It is not his function to weigh the evidence or assess its acceptability whether in relation to the character of the evidence itself or the credibility of the witnesses who gave it. He is required to assume that it is accepted without reservation by a jury. . . . Upon that assumption he asks himself whether a jury accepting all of the prosecution evidence could lawfully convict the defendant . . . i.e. could acting reasonably, be satisfied of the defendant's guilt beyond reasonable doubt. Another formulation of the question is whether the evidence adduced by the prosecution is capable of producing satisfaction beyond reasonable doubt in the minds of a reasonable jury.

11. Whilst the formulation adopted by the High Court in Doney does not explicitly echo these statements, it does require that the evidence be "taken at its highest". This clearly requires the trial judge to assume that the jury will accept the Crown case at least in so far as it is supported by evidence, even if tenuous, inherently weak or vague, and, conversely, that it will reject the defence case, even if reliant upon evidence adduced by the Crown: see R v B (1992) 35 SCR 259. I do not, however, take the test formulated by the High Court to require a trial judge to assess the evidence without regard to the limits of the case propounded by the Crown. On the contrary, Doney does not authorise a trial judge to act upon an assumption that the jury will range outside the case as delineated by the Crown in its opening address and/or its particulars. Hence, whilst the judge must normally act upon an assumption that potentially exculpatory evidence may not be accepted by the jury, he or she should not assume that the jury might ignore statements by the Crown to the effect that certain matters are conceded or that certain parts of the evidence are not disputed.

12. In the present case, both counsel referred in argument to s 142.2(1) of the Code, which provides that:

A Commonwealth public official is guilty of an offence if:

(a) the official:

(i) exercises any influence that the official has in the official's capacity as a Commonwealth public official; or

(ii) engages in any conduct in the exercise of the official's duties as a Commonwealth public official; or

(iii) uses any information that the official has obtained in the official's capacity as a Commonwealth public official; and

(b) the official does so with the intention of:

(i) dishonestly obtaining a benefit for himself or herself or for another person; or

(ii) dishonestly causing a detriment to another person.

13. The offences were allegedly committed within various ranges of dates, though it was not suggested that this aspect of the charges was of any significance to the present application. The charges were, of course, somewhat similar in character. In each case it was alleged that at the relevant time the accused had been "a Commonwealth public official, namely the Co-ordinator of the Australian Federal Police (AFP) Building and Accommodation Team". In each case it was alleged either that he had exercised influence in his capacity as a Commonwealth public official or that he engaged in conduct in the exercise of his duties as such an official. In each case it was alleged that he had carried out the specified act with the intention of dishonestly obtaining a benefit for himself and/or another. There were, of course, also important differences.

14. In considering the application for a directed verdict, it was necessary to take into account the somewhat expanded concept of intention embraced by s 5.2 of the Code. This section provides that;

(1) A person has intention with respect to conduct if he or she means to engage in that conduct.

(2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist.

(3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.

15. I was not referred to any authority in which the precise meaning of each of these provisions has been examined. They are expressed in somewhat Delphic terms and, like much contemporary legislation, must be approached with the enquiring mindset that one brings to a cryptic crossword. In the absence of such an approach an unwary reader might assume that the phrase, "intention with respect to a circumstance" must mean that the person has an intention to bring about that circumstance. Yet subs 5.2(2) deems a person to have such intention if he or she believes that the circumstance exists or will exist. What does this mean? It obviously cannot mean that a terminally ill person should be taken to have intended to contract the illness that does exist or to have intended the death that will follow. Yet the provision is not confined to circumstances that have come into existence or will come into existence as a result of the impugned conduct of the offender. Furthermore, if it were so confined, the provision would be superfluous because any such circumstance would be a "result" of such conduct and hence covered by subs 5.2(3). I think it is probably intended to refer to the state of mind that an offender must have in relation to circumstances within which his or her allegedly criminal intention must be considered. For example, if a person were to be charged with attempting to steal money by means of a forged cheque, this provision would enable the Crown to rely upon the fact that he or she had believed that there were or would be sufficient funds in the account to permit the intended theft. One might, of course ask why the provision was not more clearly expressed? Since ignorance of the law is no excuse, it seems reasonable to expect that statutory provisions potentially expanding the scope of criminal liability should be expressed in terms that are likely to be comprehensible to ordinary readers. Fortunately, whilst counsel for both parties adverted to s 5.2, their competing submissions do not require me plumb the depths of meaning that may be contained, however covertly, within the section.

16. For present purposes, the important point to note is that the charges do not merely involve allegations that the accused intended to obtain a benefit for himself and/or others, but also allege that he intended to do so dishonestly.

17. There was no direct evidence of any such intention and the Crown was dependent upon circumstantial evidence. That, of course, required the Crown to establish that guilt was the only rational inference that could be drawn from the facts and circumstances proven by the evidence or, to put the requirement another way, to adduce evidence capable of excluding any reasonable hypothesis consistent with innocence.

18. I will now deal with the challenges to the various counts sequentially.

. . . between 1 November 2001 and 31 December 2003, being a Commonwealth public official, namely the Co-ordinator of the Australian Federal Police (AFP) Building and Accommodation Team, engaged in conduct in the exercise of the official's duties as a Commonwealth public official, namely he used his position to influence Alex Luddington of Manteena Pty Ltd (Manteena) to add AMPM Glass and Electrical (AMPM) to the Manteena preferred tenderers list, with the intention of dishonestly obtaining a benefit for himself and Andrew Lachlan Dunn.

20. The following particulars were provided of the benefit that the accused allegedly intended to so obtain:

* Mr Dunn was from time to time engaged to do glazing work for the AFP;

* the Bradley family trust obtained a tax deduction for a loss sustained by the AMPM partnership in the year ended 30 June 2002 and a distribution of profits in the following year; and

* since the accused had guaranteed a loan for the purchase of Mr Dunn's motor vehicle, he "had an interest in the continuing viability of the business to protect himself".

21. The allegation that he intended to obtain one or more such benefits dishonestly was supported by reference to the following particulars:

* the accused had previously helped Mr Dunn set up his business as a glazier and had been a director of Bradley Developments Pty Ltd, the trustee of the Bradley family trust, that between December 2001 and December 2002 had been in partnership with Mr Dunn;

* Mr Dunn had previously been engaged to carry out glazing work for a company, referred to in evidence as "NJR", in which the Bradley family trust had had an interest and the accused had been a director;

* Mr Dunn had been a friend and the accused had met with him socially; and

* the accused had failed to declare these facts to the AFP.

These and/or similarly worded particulars were also relied upon in relation to counts 2 to 6 inclusive.

22. A number of points may be made about the case so particularised.

23. First, the evidence taken at its highest would have revealed only that the accused had asked Mr Luddington to consider adding AMPM to the list, leaving the decision to him. It also appears that there was no actual list of preferred tenderers, though selected contractors were invited to submit tenders and, following this request, AMPM was accepted as a selected tenderer.

24. Second, the charge did not involve any allegation that the accused intended to dishonestly obtain a benefit for the Bradley family trust. Hence, the allegations that the Bradley family trust obtained a tax deduction for a loss sustained by the AMPM partnership in the year ended 30 June 2002 and a distribution of profits in the following year could not have been directly relied upon as benefits he intended to dishonestly obtain. The submissions made on behalf of the Crown seemed predicated upon an unstated assumption that any benefit to the trust was also a benefit to the accused but no evidence to support this assumption was foreshadowed and no basis for it was suggested in argument.

25. Third, the allegation that the accused had had an interest in the continuing viability of the AMPM business, by reason of his guarantee of a loan for the purchase of Mr Dunn's motor vehicle, may have been relevant to other aspects of the Crown case but such an interest could not have constituted a benefit that the accused intended to obtain by the conduct alleged.

26. Fourth, the count was dependent upon an allegation that the accused had influenced Mr Luddington with the intention of dishonestly obtaining glazing work for AMPM and hence producing a benefit for Mr Dunn and, indirectly, the accused. However, AMPM stood to profit from such work only if engaged after tender processes or pursuant to ad hoc arrangements with Manteena, presumably for what Manteena would assess as fair and competitive fees. The Crown expressly disavowed any allegation that the accused or Mr Dunn had intended to submit tenders with a view to overcharging, or that any of the work subsequently done by Mr Dunn was not carried out competently and for appropriate fees.

27. Fifth, it was common ground that in his capacity as Co-ordinator of the AFP Building and Accommodation Team the accused had a duty to ensure that those contractors that were engaged would provide the best value for money. It was also common ground that the prospect of obtaining a lower price is only one of the considerations that should be taken into account in discharging this responsibility. The reliability of potential contractors, the quality of their work and their capacity to complete it within the time required are also obvious considerations. Hence, within the building industry, or indeed any industry, those responsible for engaging contractors may wish to know who is likely to provide reliable and good quality service. A person who recommends contractors to others cannot be assumed to act dishonestly merely because he or she knows them, is on friendly terms with them or even has a business relationship with them. Indeed, familiarity with them and their work may provide the only obvious basis for the recommendations.

28. Sixth, the Crown case could not have been strengthened, as suggested in the opening address, by suggestions that the accused had contravened AFP policy against secondary employment by reason of his relationship to AMPM and that this contention constituted or formed part of "criminal offences" he had committed. The foreshadowed evidence revealed no basis for inferring that either the accused's role as a director of a company that was the trustee of the Bradley family trust or his involvement in other business interests had constituted "employment". Furthermore, no attempt was made to identify any regulatory offence that might have been committed by the reason of the suggested contravention or to explain how proof of any such offence could have been admissible at the trial. Nor was any attempt made to show how any contravention of a policy against secondary employment could have cast any light on the crucial issues arising in relation to the offences actually charged. In short, the inclusion of these suggestions merely introduced a risk of impermissible prejudice. They could have been seen as having real probative value only if one had embraced an assumption that the subsequent actions of any officer who had failed to comply with government policy were bound to have been dishonestly motivated.

29. Seventh, the accused was not charged with dishonestly failing to disclose his interest in AMPM. The allegation was rather that, in speaking to Mr Luddington as he did without prior disclosure of his interest in AMPM, he must have acted with an intention to dishonestly obtain a benefit for Mr Dunn and/or himself through payment for glazing work that Mr Dunn would do in the future. There was some attempt to buttress the Crown case on this count by reference to other matters, but this contention was essentially misconceived.

30. In fact, the contention was founded substantially upon a non sequitur. As the Crown prosecutor explained in his opening address, it was Manteena who, acting as a "middleman" engaged subcontractors and it was Mr Luddington of Manteena who was allegedly influenced. Yet the breach of policy alleged was a failure to inform the AFP of his relationship with AMPM. The Crown did not allege that there had been any departmental policy requiring the accused to inform Mr Luddington or anyone else from Manteena of his current or former business or personal relationships. Disclosure to the AFP may well have alerted his superiors to the need to consider whether the accused should nonetheless have retained any role in relation to the engagement or payment of AMPM, but the foreshadowed evidence did not reveal any reason to suppose that it would have come to Mr Luddington's attention or affected his decision if it had.

31. More fundamentally, it should have been obvious to anyone not completely intoxicated by the perceived virtues of bureaucratic procedures that people may fail to comply with them for reasons other than an intention to dishonestly obtain benefits. It should also have been obvious that the accused's interaction with Mr Luddington could not be deemed, ipso facto, to have been dishonestly motivated. It was incumbent upon the Crown to prove that the accused had acted with the intention alleged and, since it was dependent upon circumstantial evidence, this required the Crown to adduce evidence that was capable of excluding any hypothesis consistent with his innocence. One obvious hypothesis was that he had suggested that AMPM be added to what he had understood to be a list of preferred tenderers because he had believed that Mr Dunn could be trusted to carry out glazing work for the AFP competently and economically. The accused's failure to mention his relationship with AMPM to the AFP at some antecedent time, even if required by AFP policy, could not, of itself, have excluded that hypothesis. Indeed, there was no reason to suppose that his business arrangements with Mr Dunn had not been attributable, in whole or in part, to confidence in his ability. It might well have been open to a jury to infer that the accused had acted with the intention alleged if there had been evidence that AMPM would have been able to gain some dishonest advantage by overcharging or failing to adequately complete work for which it had successfully tendered, but the Crown did not suggest that there was any evidence of any such factors.

32. The Crown was ultimately driven to submit that the mere opportunity to tender or otherwise be considered for work from Manteena was the benefit that the accused intended to dishonestly obtain for AMPM. Yet it was not suggested that the accused had lied to Mr Luddington, or that he had sought to have AMPM selected save on merit. The dishonesty was said to lie only in the non-disclosure of his interest in the business and/or relationship with Mr Dunn. Even if that non-disclosure could itself have been regarded as dishonest, rather than merely inappropriate or even improper, it could not, of itself, have provided even prima facie evidence that the accused approached Mt Luddington with the intention of dishonestly obtaining the benefit or benefits alleged.

33. Accordingly, whilst the learned Crown prosecutor ably advanced every argument that could reasonably be deployed in support of this count, I was obliged to conclude that there was no evidence capable of supporting it.

34. These counts raised similar issues and may conveniently be dealt with together.

. . . (the accused) between 2 July 2003 to 14 July 2003, being a Commonwealth public official, namely the Co-ordinator of the Australian Federal Police (AFP) Building and Accommodation Team, engaged in conduct in the exercise of the official's duties as a Commonwealth public official, namely he authorised payment of an invoice rendered by AMPM Glass and Electrical (AMPM) numbered 308 and dated 2 July 2003 when he was still a partner of the business or had some interest in AMPM and did not declare this to AFP management, with the intention of dishonestly obtaining a benefit for himself and Andrew Lachlan Dunn.

. . .(the accused) between 1 September 2002 and 19 November 2002, being a Commonwealth public official, namely the Co-ordinator of the Australian Federal Police (AFP) Building and Accommodation Team, engaged in conduct in the exercise of the official's duties as a Commonwealth public official, namely he authorised payment of an invoice rendered by Andrew Lachlan Dunn (Dunn), trading as AMPM Glass and Electrical (AMPM) numbered 108 and dated 16 July 2002 by signing ANZ Purchasing Card Report which was issued on 24 October 2002, when he was still a partner of the business or had some interest in AMPM and did not declare this to AFP management, with the intention of dishonestly obtaining a benefit for himself and Dunn.

. . . (the accused) between 1 January 2004 and 3 March 2004 being a Commonwealth public official, namely the Co-ordinator of the Australian Federal Police (AFP) Building and Accommodation Team, engaged in conduct in the exercise of the official's duties as a Commonwealth public official, namely he authorised payment of an invoice rendered by Andrew Lachlan Dunn (Dunn) trading as AMPM Glass and Electrical (AMPM) numbered 504 and dated 8 February 2004 when he was still a partner of the business or had some interest in AMPM and did not declare this to AFP management, was a good friend of Dunn and in the alternative he was an ex-partner of Dunn and did not declare this, with the intention of dishonestly obtaining a benefit for himself and Dunn.

. . . (the accused) between 1 April 2003 and 4 August 2003, being a Commonwealth public official, namely the Co-ordinator of the Australian Federal Police (AFP) Building and Accommodation Team, engaged in conduct in the exercise of the official's duties as a Commonwealth public official, namely he authorised payment of invoices rendered by AMPM Glass and Electrical (AMPM) numbered 264 and 270 and dated 30 April 2003 and 16 May 2003 respectively when he was still a partner of the business or had some interest in AMPM and did not declare this to AFP management and was a good friend of Dunn, with the intention of dishonestly obtaining a benefit for himself and Andrew Lachlan Dunn.

39. In each instance, the Crown case was that the accused had "authorised payment" of the relevant invoice after Mr Dunn had been engaged by another officer and had completed the work. The Crown did not contend that the work had not been done properly or that the amount charged had been excessive. Hence, it was unable to suggest that any of the amounts claimed had not been due and payable. The Crown nonetheless sought to maintain that, even if there had been enforceable debts owed to AMPM, the jury would have been entitled to infer that he signed the relevant invoices because he intended to dishonestly obtain a benefit for himself and Mr Dunn. Such an inference was said to be available because of the Bradley family trust had earlier had an interest in AMPM and because the accused had had business and personal dealings with Mr Dunn.

40. This was clearly untenable. The Crown case did not involve any suggestion that the accused did anything more than carry out his duty to authorise payment of amounts genuinely owed to AMPM. In that event, if he had refused to authorise the payment of the invoice that was the subject of count 2 then another officer would have been obliged to do so in his stead, if only to forestall recovery action to which the AFP would have had no defence.

41. The charges in counts 3, 4 and 5 were even more transparently misconceived. Again, the Crown did not contend that the amounts had not been owed to AMPM for work that had been properly carried out, but in these instances it was also common ground that the amounts had already been paid by another officer using an official credit card before the invoice had been referred to the accused for covering authorisation. The Crown was unable to identify any discernable benefit that AMPM could have received from the ratification of payments that had already been made to discharge debts that had already been incurred.

42. In my opinion, there was no evidence that the accused had acted with the dishonest intention alleged.

. . . (the accused) between 25 February 2004 and 27 April 2004, being a Commonwealth public official, namely the Co-ordinator of the Australian Federal Police (AFP) Building and Accommodation Team, engaged in conduct in the exercise of the official's duties as a Commonwealth public official, namely he facilitated the obtaining by Andrew Lachlan Dunn (Dunn) of two sheets of translucent glass belonging to Manteena Pty Ltd from AFP headquarters in Canberra, with the intention of dishonestly obtaining a benefit for Dunn.

44. I initially thought that this charge might have been sustainable. The Crown foreshadowed adducing evidence that the accused had told Mr Dunn that he could have two the sheets of glass that formed the subject of the charge and, whilst I was aware that the accused wished to maintain a claim of right, that would not have provided any reason to doubt that the Crown could at least have established a prima facie case.

45. My initial impression was dispelled when it became apparent that the Crown had no evidence to establish that the glass sheets had been the property of Manteena as alleged. As the Crown prosecutor pointed out, this allegation did not form an element of the offence charged. However, the case against the accused was predicated, in part, upon an allegation that in giving Mr Dunn permission to take the glass he had exceeded his authority and that allegation seems, in turn, to have been predicated upon the assumption that Manteena had been the owner. It was common ground that the glass had been removed from the AFP headquarters building during the course of renovation and left in an AFP car park for many months. The case statement alleged that Manteena had managed the renovation and suggested that the glass "accordingly" belonged to that company. The Crown prosecutor wisely refrained from attempting to support this proposition. Since it had been part of an AFP building, there was a strong inference that it had belonged to the AFP and, in the absence of any evidence of some contractual term transferring ownership, the suggestion that it had belonged to Manteena was clearly untenable. The Crown also alleged that an employee of Manteena had promised the glass to another contractor, apparently because it would otherwise have been destined for the rubbish tip. This provided no basis for an assumption that ownership had been transferred to Manteena. Indeed, the only inference as to ownership that could have been drawn from the evidence foreshadowed by the Crown was that the glass had belonged to the AFP.

46. The Crown's inability to support its contention that the glass had been the property of Manteena rather than the AFP substantially undermined the case against the accused on this count. As previously mentioned, the accused had been the co-ordinator of the AFP Building and Accommodation Team and it was not suggested that he would have lacked the authority to determine whether and in what manner the glass or other second hand building materials owned by the AFP should be disposed of. The case statement alleged that certain processes should have been followed but, even if the AFP had intended that these processes would be applicable to each second hand brick, plank or pane of glass removed from renovated buildings, which seemed extremely unlikely, a failure to comply with them could not, of itself, have established that the accused had lacked authority.

47. Nothing emerged from the evidence to suggest that it had been inherently unreasonable for a person in the accused's position to have decided to discard two sheets of glass that had been taken from a building during renovation work and left in car park for months on end, apparently pending disposal. Nor did anything emerge to suggest that he must have acted unreasonably by permitting a glazier, albeit one who was a friend and former partner of the Bradley family trust, to take the glass. The Crown prosecutor contended that the glass had not been valueless but did not suggest he would call any expert evidence to that effect. The contention appeared to have been based upon statements made during the course of a covertly recorded telephone call in which Mr Dunn indicated that he could make some money from the use of the glass and the accused had indicated that he had been pleased that Mr Dunn could do so. That conversation occurred after the glass had been removed. In any event, the mere fact that second hand materials may prove to be of some value to a person with a particular use for them does not demonstrate that they would have had a net commercial value that could have been realised after due allowance for any expense associated with relevant bureaucratic processes and the cost of transportation and sale. The Crown seemed to accept that it would have been appropriate for Manteena to have given the glass to the other glazier, but it was not explained how Manteena could have had authority to do so or, if it had, why that course would have been acceptable if the glass had had real value as the Crown suggested. Nor was it explained why it would have been acceptable for a company that did not own the glass to have given it to one glazier when the gift to another glazier was alleged to have constituted a criminal offence.

48. It would clearly have been open to the jury to find that the accused had acted with the intention of obtaining a benefit for Mr Dunn. However, it was also incumbent upon the Crown to prove beyond reasonable doubt that he had intended that the benefit be obtained dishonestly and there was, in my opinion, no evidence capable of establishing that element of the offence. It is not necessarily dishonest for an officer of the AFP or some other government body to give second hand building material to someone who may have a use for it, even if that person is a friend or business partner. Dishonesty might readily have been established by other factors such as proof that the accused had known that the AFP could have utilised the material on another job, or that it had had some a realisable value that would have been lost by his conduct. However, the Crown did not foreshadow calling evidence capable of establishing such factors. On the contrary, the foreshadowed evidence did not exclude the likelihood that the glass had been left in the car park pending disposal and that, by permitting Mr Dunn to remove it, the accused had simply intended to give him a benefit involving no corresponding loss to the AFP and actually save it the time and expense of making alternative arrangements for the glass to be taken to the tip.

49. In short, I was unable to see how the evidence foreshadowed by the Crown, even if wholly accepted, could have established the dishonest intention alleged.

50. These counts raised some substantially similar issues and may conveniently be dealt with together subject, of course, to some observations concerning particular features of individual charges.

. . . (the accused) between 1 May 2003 and 1 August 2003, being a Commonwealth public official, namely the Co-ordinator of the Australian Federal Police (AFP) Building and Accommodation Team, engaged in conduct in the exercise of the official's duties as a Commonwealth public official, namely, he arranged for Daniel John Goodwin, Director of Pyotorn Pty Ltd trading as G & A Painters ("Goodwin") to be awarded a contract with the Australian Federal Police to paint the Water Police Building at Yarralumla without, but not limited to, conducting a correct tender process according to Commonwealth policy and procedures, declaring his friendship with Goodwin and that he had received discounted paints from Goodwin in the past, with the intention of dishonestly obtaining a benefit for Goodwin.

. . . (the accused) between 1 June 2003 and 20 June 2003, being a Commonwealth public official, namely the Co-ordinator of the Australian Federal Police (AFP) Building and Accommodation Team, engaged in conduct in the exercise of the official's duties as a Commonwealth public official, namely, he arranged for Daniel John Goodwin, Director of Pyotorn Pty Ltd trading as G & A Painters ("Goodwin") to be awarded a contract with the Australian Federal Police to paint `AFP Drakeford Stage 4 (Project No. 02-071-00) by, but not limited to, over ruling the contractor's recommendation without good cause, not declaring his friendship with Goodwin and that he had received discounted paints from Goodwin in the past, with the intention of dishonestly obtaining a benefit for Goodwin.

. . . (the accused) between 1 February 2004 and 9 March 2004, being a Commonwealth public official, namely the Co-ordinator of the Australian Federal Police (AFP) Building and Accommodation Team, engaged in conduct in the exercise of the official's duties as a Commonwealth public official, namely by arranging for Daniel John Goodwin, Director of Pyotorn Pty Ltd trading as G & A Painters ("Goodwin") to be engaged by the AFP to paint a computer room at the Weston Police complex without conducting a tender process in accordance with the Government policy and procedure and not declaring that he was a good friend of Goodwin and had received discounted paints in the past from Goodwin as a result of his personal and professional relationship with him, with the intention of dishonestly obtaining a benefit for Goodwin.

. . . (the accused) between 28 January 2004 and 23 March 2004, being a Commonwealth public official, namely the Co-ordinator of the Australian Federal Police (AFP) Building and Accommodation Team, engaged in conduct in the exercise of the official's duties as a Commonwealth public official, namely by arranging for Daniel John Goodwin, Director of Pyotorn Pty Ltd trading as G & A Painters ("Goodwin") to be engaged by the AFP to wash down Weston Police complex without conducting a tender process in accordance with the Government policy and procedure and did not declare that he was a good friend of Goodwin and had received discounted paints in the past from Goodwin as a result of his relationship with him, with the intention of dishonestly obtaining a benefit for Goodwin.

55. It should be noted that the Crown made no allegation that the accused intended to obtain any benefit for himself from any of the transactions in question. In each case the Crown contended that the benefit he intended to dishonestly obtain was for G & A Painters.

56. It should also be noted that in each case the alleged benefit consisted only of the relevant contract or payment due under the contract. The Crown again eschewed any allegation that the accused had acted with the intention of permitting overcharging or charging for work that was not carried out in a proper manner.

57. The particulars of dishonesty relied upon in relation to the various counts were not co-extensive but in each case it was alleged that:

* the accused had failed to disclose his friendship with Mr Goodwin;

* he failed to declare a conflict of interest said to have arisen by reason of the fact that the Bradley family trust was a "partner" in an unspecified firm described as "NJR" which employed Goodwin in a major development;

* he did not disclose that he had received paints from Goodwin at discounted prices.

58. In relation to count 7, the Crown sought to augment these particulars by reference to the fact that the accused had requested a quote from Goodwin on 7 May 2003 whilst another contractor, referred to as "Spotless", was permitted to quote only after it contacted the accused on 13 May 2003. This may have suggested that the normal tendering process of obtaining multiple quotes may not have been followed had it not been for the initiative taken by Spotless in submitting a third quote, but the potential departure was not shown to have been attributable to mala fides. The Crown acknowledged that the Spotless quote was higher than that submitted by G & A Painters, though it was suggested that it included a management fee. I was unable to see how these facts materially advanced the Crown case.

59. The Crown felt obliged to add a further submission that the quality of G & A's work was irrelevant. This somewhat startling submission was supported by the contention that there may have been other painters who could have performed the job adequately had they been able to tender for it. That may have been true, but it was not explained how this contention could have enabled a jury to conclude that the quality of work performed by G & A Painters was irrelevant, or to assume that the accused should have approached the competing quotations on that basis. Paradoxically, the Crown did not dispute the proposition that his duties required him to assess competing quotations not only by reference to the price but also to the quality of the work that could be expected.

60. The Crown submitted that it was not merely the failure of the accused to follow normal procedures that "constituted his criminality", but a combination of factors, "including his particular position, commercial interests, friendship, favouritism and failures to disclose" that, it was suggested, should have been considered by the jury. That submission really epitomised the Crown approach to the case. It reflected an assumption that it was sufficient to show that the accused had reasons to favour a particular contractor and that he had failed to disclose them. It argued, in essence, that the jury would be entitled to deduce that any subsequent decisions, however reasonable, that favoured the contractor must have been made with the intention of dishonestly obtaining a benefit. That approach was fundamentally misconceived. It was incumbent upon the Crown to adduce evidence, even if weak or tenuous, of each of the elements of the offences charged, including the element that the accused acted with the dishonest intention alleged. In my opinion it clearly failed to do so.

61. In relation to count 8 the Crown again relied upon these factors. None of the evidence foreshadowed was capable of supporting the allegation that the contractor's recommendation had been overruled "without good cause".

62. It was not suggested that the accused had no grounds for expecting that G & A Painting would have done a good job for a reasonable price. The Crown rather submitted that the benefit to G & A Painting was apparent from the awarding of the contract and that any concurrent benefit to the Commonwealth was "beside the point". It is true that an offence of this kind may be committed notwithstanding the fact that, in attempting to dishonestly obtain a benefit, the accused also causes a concurrent benefit to the Commonwealth. However, as previously mentioned, the accused had had a duty to ensure that any contractors who were engaged would provide the best value for money. He was required to take into account not only quoted prices, but also the quality of work undertaken by the competing contractors and their capacity to complete it within the time required. In short, it was his duty to obtain the best possible deal for the AFP. In considering whether there was a prima facie inference that the accused acted with the intention of dishonestly obtaining a benefit for G & A Painters, it was obviously relevant to consider whether there was any evidence capable of excluding alternative hypotheses. One obvious hypothesis was that he had acted, not for the benefit of that firm, but rather for the benefit of the AFP. In this context, the potential benefit of the contract with G & A Painters could not simply be dismissed as irrelevant.

63. The Crown might have been able to support a charge of this nature by establishing that the contract with G & A Painters had not provided the best value for money available. In that event, it might well have been entitled to suggest that the accused entered into it because of favouritism generated by his friendship with Mr Goodwin and/or gratitude for him arranging for the accused to acquire paint at discounted prices. As it was, the Crown made no attempt to establish that the accused could not have accepted the quotation simply because he believed that it offered the best value for money.

64. Hence, whilst there may have been grounds for what is often described as "an apprehension of bias" in favour of G & A Painters, there was no evidence that the accused had actually been influenced by an intention to obtain a benefit for that firm, whether honestly or dishonestly, rather than an intention to obtain a benefit for his employer.

65. In relation to count 9, the Crown relied upon somewhat similar considerations. It maintained that, whilst there was a "single select" process by which the normal tendering processes could be bypassed due to urgency, security requirements or other special considerations, there was "no suggestion" that this had been the appropriate procedure in this instance. As it happened, that very suggestion was promptly made by Mr Purnell and he not only made it emphatically but sought to support it by reference to evidence that had been adduced by the Crown at the committal proceedings. In any event, the accused had no obligation to adduce evidence on this issue, as may occur in the case of a statutory exception. The burden of proof obviously lay upon the Crown to prove the dishonest intention alleged, and it could not discharge that burden, even on a prima facie basis, by merely alluding to the fact the accused had not yet proven that he had good reason to act as he did. The Crown effectively conceded this, submitting that the "criminality" of the accused was not constituted be his mere failure to follow the ordinary procedure but upon the same combination of factors mentioned earlier. For the reasons already given, I was satisfied that those factors again failed to provide a basis upon which the alleged intention to dishonestly obtain a benefit could have been established.

66. Count 10 was dependent upon an allegation that between 28 January 2004 and 23 March 2004 the accused arranged for G & A Painters to wash down the Weston Police Complex. However, the transcript of the committal proceedings revealed that a prosecution witness, Mr Biggerstaff, had given evidence to the effect that he had made the decision to engage them for that job and that his decision had been approved by another officer, Mr Platten, and not by the accused. The Crown prosecutor did not suggest that this evidence would be disputed. The Crown case was rather that the jury would have been entitled to consider the accused's control of the relevant file and material from a telephone interception said to show that he had been "intimately concerned in the employment" of G & A Painters. Even if this had been established, it would not have provided an answer to Mr Purnell's argument that the Crown case was not only incapable of establishing that the accused arranged the engagement, which was a physical element of the charge, but included undisputed evidence to the contrary.

67. The Crown was ultimately driven to argue that, whilst it was true that Mr Biggerstaff had made the relevant arrangement, he had done so because of a false impression derived from a comment made by the accused in 2001. Again, even if established, this could not have supported the count. The accused was not charged with any offence relating to any representation he may have made at that time.

. . . (the accused) between 1 February 2004 and 27 April 2004, being a Commonwealth public official, namely the Co-ordinator of the Australian Federal Police (AFP) Building and Accommodation Team, engaged in conduct in the exercise of the official's duties as a Commonwealth public official, namely he arranged for his wife, Donna Marie Bradley (Donna) to collect paint and place it on Daniel John Goodwin, Director of Pyotorn Pty Ltd trading as G & A Painters ("Goodwin") account whilst around this time Goodwin had be (sic) awarded contracts with the AFP which were arranged by Bradley, with the intention of dishonestly obtaining a benefit for himself and Donna.

69. The charge was, however, wisely abandoned prior to the arraignment.

70. In short, the case against the accused seemed to have been substantially predicated upon a wholly misconceived assumption. The Commonwealth has prudently adopted certain requirements for the disclosure of relevant interests and this has presumably been done with a view to preventing or at least reducing the risk of dishonest conduct. A failure to comply with these requirements may expose an officer to disciplinary action or perhaps even prosecution for regulatory offences under relevant legislation. However, it does not give rise to any presumption that actions taken by an officer without due compliance with these requirements must have been accompanied by an intention to dishonestly obtain a benefit. Non-compliance might sometimes be one of a number of facts and circumstances that warrant suspicion and perhaps further investigation. Further investigation may sometimes reveal other facts from which an inference of dishonesty might be drawn. This was not such a case. On the contrary, the evidence suggests that an extensive investigation was conducted, including enquiries concerning personal and business relationships that the accused had enjoyed. These enquiries were clearly extensive and extended to tapping the accused's telephone. Yet, however thorough, these investigations apparently revealed no evidence of bribes or improper payments. If there had been grounds for the contention that the non-disclosure of an earlier interest in AMPM had contravened AFP policy then that might have provided grounds for disciplinary action under the relevant statutory provisions. It did not provide grounds for the offences charged, whether of itself or in conjunction with the other facts and circumstances alleged.

71. There was in my opinion no prima facie case in respect of any of the offences with which the accused had been charged and I was obliged to direct that verdicts of acquittal be entered in his favour.

I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Solicitor for the Crown: Commonwealth Director of Public Prosecutions

Counsel for the defendant: Mr J Purnell SC with Mr S Hausfeld

Procedures Rules 2006

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