Court of Appeal (Qld)|2007-11-30|Before: Keane and Holmes JJA and Daubney J, Separate reasons for judgment of each, member of the Court, each concurring as to the orders made
Keane and Holmes JJA and Daubney J, Separate reasons for judgment of each, member of the Court, each concurring as to the orders made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – UNREASONABLE OR INSUPPORTABLE
VERDICT
– where appellant convicted of two counts of official corruption, one
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – UNREASONABLE OR INSUPPORTABLEVERDICT– where appellant convicted of two counts of official corruption, onecount of aggravated fraud and two counts of fraud– where appellantemployed by Queensland government as transport inspector – where appellantassessed suitability ofpersons to operate Approved Inspection Stations (AIS)– where appellant corruptly obtained money by assessing unsuitable personsas suitable – where AIS operated by such persons issued roadworthycertificates without inspecting the vehicles – whereappellant shared inproceeds – where evidence that appellant received moneys wasuncontradicted – whether counts of officialcorruption open onevidenceCRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – OBJECTIONS AND POINTSNOT RAISED IN COURT
BELOW – OTHER MATTERS – whether evidence of tape recorded
conversations between appellant and co-offender
unreliable – whether
counts of official corruption duplicated counts of fraud
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –
FRESH EVIDENCE
– AVAILABILITY AT TRIAL
MATERIALITY AND COGENCY – PARTICULAR CASES
– MATERIALITY AND COGENCY –
OTHER CASES – where appellant
asserts he would have called further evidence at trial if properly advised
–where evidence
relates to conduct of co-offender – relevance
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– APPEAL BY
CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED
– GENERALLY – where
appellant sentenced to seven years imprisonment
for aggravated fraud and three years imprisonment on each of the other counts to
be served concurrently with parole eligibility after three years –where
co-offenders received lesser sentences after pleading
guilty and cooperating
with authorities – where appellant did not plead guilty or cooperate with
authorities – whether
appellant punished twice for same act contrary to s
Director of Public Prosecutions (Cth) v Hogarth (1995) 93
A Crim R 452, cited
Pearce v The Queen [1998] HCA 57
(1998) 194 CLR 610, applied
Re Austin [1994] 1 Qd R 225, cited
Judgment (96 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the respondent
[2]
[1] KEANE JA: On 5 April 2007 the appellant was convicted upon the verdict of a jury of two counts of official corruption and one count of aggravated fraud. The circumstance of aggravation was that the yield to the appellant from his dishonesty was more than $5,000. The appellant was also convicted of two counts of fraud. The jury found the appellant not guilty of circumstances of aggravation associated with each of those fraud counts.
[3]
[2] On 4 May 2007 the appellant was sentenced to seven years imprisonment in respect of the aggravated fraud, and three years imprisonment in respect of the official corruption offences to be served concurrently with a parole eligibility date of
[4]
[3] The appellant seeks to appeal against his convictions on a number of grounds and he also seeks to adduce further evidence on the appeal. The appellant also seeks leave to appeal against the sentences which were imposed on him.
[5]
[4] The appellant was represented pro bono by Mr Marais of Counsel who assisted the Court with submissions in relation to sentence. Mr Marais also made one particular submission in relation to the convictions which had not been raised by the appellant's grounds of appeal. I shall return to consider Mr Marais' submissions after addressing the points made by the appellant in his appeal against conviction.
[6]
[5] The appellant was employed by the Queensland government as a transport inspector. The Crown alleged that the appellant used his position to establish or assist in establishing three Approved Inspection Stations ("AIS"). The AIS were authorised by law to issue roadworthy certificates for various classes of motor vehicles required by vendors of motor vehicles on sale. Vendors paid for such certificates.
[7]
[6] The Crown alleged that over the period from 18 January 2003 to 25 June 2003 the AIS operated in the name of John Stanley Bailey issued certificates upon request by vendors without inspecting the relevant motor vehicles, and that the appellant shared in the proceeds so obtained.
[8]
[7] The Crown also alleged that during the period from 30 September 2002 to
[9]
30 August 2003 the AIS operated by William Jeffrey Kielly issued similarly fraudulent certificates, and that the appellant shared in the proceeds.
[10]
[8] The Crown also alleged that during the period from 22 April 2003 to 26 September 2003 the AIS operated by Gary John Shale issued similarly fraudulent certificates, and that the appellant shared in the proceeds.
[11]
[9] It should be noted that the appellant was acquitted of the charge of official corruption in relation to the AIS operated by Kielly.
[12]
[10] The appellant was employed as an officer of the public service of Queensland from 1989 at least until he was suspended on 26 August 2003. From 1994 he worked as a motor vehicle inspector in the AIS Unit. He was authorised to approve applications from persons who applied for authority to operate an AIS.
[13]
[11] A licensed vehicle examiner was essential to the operation of an AIS. It was the licensed examiner who examined vehicles and issued roadworthy certificates. In order to be licensed, the vehicle examiner was required to pass a written examination conducted by an officer such as the appellant. The gravamen of the charges of official corruption under s 87(1)(a) of the Criminal Code was that the appellant being employed in Queensland Transport, charged with the duty of assessing the suitability of persons to operate AIS, corruptly obtained money on account of his having assessed each of Bailey, Kielly and Shale as a suitable person to operate an AIS. The gravamen of the charges of fraud was that the appellant received money from the issue of bogus roadworthy certificates.
[14]
[12] Kielly gave evidence that he worked as a mechanic although he had no formal qualifications. He was encouraged by William Henry Brady to set up an AIS. Brady furnished Kielly with the necessary forms and told him that there was an inspector who was "on-side" named "Fred", who would process Kielly's application for an AIS at Harvton Street, Stafford where a smash repair business was conducted. Kielly said that the premises and equipment were inspected.
[15]
[13] The records of the Department of Transport showed that on 1 October 2002 Kielly was examined by the appellant. On 7 October 2002 Kielly's application was approved by Mr Seeman who gave evidence that he was told by the appellant to approve Kielly's application because it was an urgent one.
[16]
[14] Kielly gave evidence that Brady and Graeme John Brindley obtained books of blank roadworthy certificates from the department with his authority, and that he inspected cars, trucks and trailers. He received $20 from Brindley for every roadworthy certificate he signed.
[17]
[15] Kielly gave evidence that Brady and Brindley introduced him to car dealers who required roadworthy certificates. He said that he never carried out any inspections at the Harvton Street premises, and did not know whether the cars for which Brady issued certificates elsewhere were properly inspected or not.
[18]
[16] The premises of an AIS had to be inspected by an officer such as the appellant to ensure that the premises were properly equipped for the examination of motor vehicles. At the least, the premises needed to be equipped with an inspection pit or hoist to facilitate the inspection of the underside of motor vehicles. Premises also needed to be equipped to enable the inspection of the braking and lighting systems of vehicles.
[19]
[17] In May 2003 Kielly was fined for not having the hoist at the Harvton Street premises secured. He applied to move the AIS to Jax Wholesale Cars as that was the establishment where he actually worked. This application was approved.
[20]
[18] Eventually Kielly told Brady and Brindley that he would not do "writeouts" any more. Brady told him that he would get Gary Shale to do them.
[21]
[19] According to departmental records, a total of 41 certificate books were purchased for Kielly's AIS.
[22]
[20] On 22 April 2003 the appellant's identification number was entered in the departmental computer to gain access to the details concerning Kielly's AIS.
[23]
[21] Brady gave evidence that he had known the appellant since 1997. Brady had been approved to issue roadworthy certificates, but surrendered his licence in April or May 2002 after he had been convicted of an offence. Departmental records showed that he was convicted in June 2002. Brady said that the appellant helped him prepare his defence in that case.
[24]
[22] Brady said that in the second half of 2002 he and the appellant discussed the possibility of setting up a company to operate an AIS. Brady said that he told the appellant that he had approached Kielly to assist in the operation. Brady told the appellant that Kielly did not have a licence, and the appellant told Brady: "Well, don't worry about it, we'll organise it." Brady filled out Kielly's application form, and the appellant gave Brady two or three examination "papers" and Brady assisted Kielly to answer them.
[25]
[23] Brady said that the motor dealers who used Kielly and Brady to provide roadworthy certificates were prepared to pay them more than the fee set by the department for the issue of the certificates "because it was easier for the dealers". The payments for the certificates were banked by Brindley and then withdrawn and split up between Kielly, Brady, Brindley and the appellant.
[26]
[24] Brindley kept a ledger which recorded the serial numbers of roadworthy certificates issued. Brady said that the keeping of the ledger commenced in the week ending
[27]
6 December 2002. An entry in the ledger for 28 February 2003 showed a payment of $5,000 to the appellant, but Brady was not able to say which AIS issued the certificates to which this payment related.
[28]
[25] As to the charges against the appellant involving John Stanley Bailey, departmental records showed that an application for an AIS by John Stanley Bailey, trading as
[29]
J B Auto, was approved on 23 January 2003. Departmental records also showed that on 22 January 2003 the appellant's identification number was used to access details for the name "John Stanley Bailey". A funeral notice for a man by that name was published in "The Courier-Mail" on 21 January 2003. On 29 January 2003 the appellant's identification number was used again to access the department's computerised licence details for "John Stanley Bailey".
[30]
[26] By April or May 2003 Mr Plumb, a departmental officer, had become concerned about complaints relating to the J B Auto AIS. When a departmental inspector,
[31]
Mr Netting, visited the J B Auto address at Springwood Road, Springwood all he found was a shed; there was no equipment of the kind necessary to operate an AIS.
[32]
[27] On 22 June 2003 another departmental inspector, Mr Kettley, visited the J B Auto address. He saw no ramps of the kind necessary for motor vehicle inspections.
[33]
Mr Kettley knew that the appellant had approved the application for the J B Auto AIS, and so he asked the appellant about it. The appellant said that he knew nothing about it, and then said that he may have forgotten to ask the applicant for identification.
[34]
[28] Mr Duggan, who ran a business adjacent to a car yard in front of the shed at the
[35]
J B Auto address, said that he was not aware of an AIS operating in the vicinity.
[36]
[29] When Mr Plumb discovered in June 2003 that John Stanley Bailey was dead, he searched for the J B Auto AIS file, but could not find it. He discovered that Brindley had signed for the certification books issued to the J B Auto AIS. When Mr Plumb said to the appellant that he could not believe that an AIS had been approved when the relevant applicant was dead, the appellant said: "I put the station on." The appellant said that he inspected the premises and that there was the necessary ramp for vehicle inspections. He admitted that he had failed to check the applicant's licence details.
[37]
[30] Departmental records showed that 44 certification books were issued to the
[38]
[31] Police discovered documents relating to the J B Auto AIS during the course of a search of the appellant's house on 9 September 2003.
[39]
[32] Brady said that he told the appellant about Kielly's unwillingness to continue issuing roadworthy certificates. The appellant replied that he had been considering starting another station, and said that he would get one organised. He later told Brady that he had found someone called "John Bailey" and that he would handle all the paperwork and licences. Brady negotiated with Mr Duggan to use a shed behind the car yard at Springwood as the mailing address for this AIS.
[40]
[33] Brady said that, after the licence was issued to "John Stanley Bailey", the appellant told him that he had used the name of a dead man which he had seen on the funeral notices. The appellant said that he checked the man's licence details on the work computer.
[41]
[34] Brady said that he and Brindley wrote out certificates for motor dealers using Bailey's name from February 2003. Brady said that it was reasonable to assume that these certificates related to cars which had either not been inspected or not properly inspected. The proceeds of these certificates were divided $20 to Brady, $15 to Brindley and $20 to the appellant. Brindley continued to bank the moneys received from motor dealers. Brady said that he gave the appellant weekly reports about the number of certificates he and Brindley had written. The ledger kept by Brindley recorded that in the week ending 28 February 2003 the appellant was paid $5,000 for certificates issued by the J B Auto AIS.
[42]
[35] Brady said that when an officer of the department telephoned him to foreshadow an audit of this operation, the appellant told Brady to render the records unreadable by putting diesel or solvents on them. Brady said that he tried both these suggestions.
[43]
[36] Brady gave evidence that Gary Shale was a friend of his. He said that, with the appellant's agreement, he suggested to Shale that Shale should set up an AIS. Brady obtained the permission of the owner of a workshop at Seventeen Mile Rocks as the location of the AIS. Brady obtained and completed the necessary application forms including the application for the mobile licence. The appellant suggested using the name "Hilton".
[44]
[37] Shale applied for an AIS permit on 24 April 2003. Shale's application was approved by the appellant, who also approved a mobile licence application. On
[45]
22 April 2003 the appellant's access number was used to search departmental records relating to Shale.
[46]
[38] Shale gave evidence that he had worked as a mechanic for about 30 years but had no certificates or formal qualifications as a mechanic. He worked as a mechanic at the car yard near which the J B Auto AIS was located. He knew Brady and Brindley.
[47]
[39] Shale said that Brady told him that he could obtain approval for Shale to issue roadworthy certificates. When Shale sat for the examination, he had been provided with the answers by the appellant. It appears from departmental records that the appellant supervised Shale's examination on 24 April 2003. The appellant signed a form certifying that he had inspected the premises proposed for Shale's AIS.
[48]
[40] Shale said that Brady gave him papers to sign naming "Ed Hilton" as the nominee for the AIS. Shale did not know of anyone by that name. Brady obtained four books of certificates, and Shale started issuing roadworthy certificates.
[49]
[41] Mr Hilton gave evidence that he knew the appellant. He said that he was not involved with the AIS, and did not know either Brady or Shale.
[50]
[42] When Mr Taylor, a departmental officer, visited the supposed premises of the AIS in June or July 2003, there was no-one called Shale in attendance. The AIS approval was cancelled on 25 September 2003. Thirteen books of roadworthy certificates had been provided to the Shale AIS.
[51]
[43] The grounds of appeal against conviction set out in the appellant's notice of appeal can be dealt with briefly. I shall address them in turn.
[52]
[44] The first ground of appeal was that the jury could not have been satisfied beyond reasonable doubt on the evidence that "the [appellant] received corruptly any money or property."
[53]
[45] The convictions on the two counts of official corruption challenged by this ground were reasonably open to the jury on the evidence. Indeed, the evidence was uncontradicted that the appellant had received moneys from the operation of the
[54]
J B Auto and Shale AIS which he had caused to be established by his bogus assessment of the suitability of the operators. The use of false names to conceal the fact that the proposed motor vehicle examiner was not qualified to carry out motor vehicle inspections and issue roadworthy certificates is eloquent of the corrupt nature of the appellant's involvement in each scheme.
[55]
[46] There is no substance in the second ground of appeal which is that the taped evidence was unreliable because of a "lack of continuity in relation to the taped evidence". The jury were clearly entitled to regard the tapes as genuine recordings of conversations between the appellant and Brady.
[56]
[47] Four conversations were electronically recorded between him and Brady between January and April 2004. A copy of the recording of the conversation of 20 January 2004 was tendered at trial without objection. The later conversations were copied onto a DVD disc which was also tendered without objection.
[57]
[48] These recordings were played during Brady's evidence-in-chief. There was no suggestion by the defence during cross-examination that Brady had tampered with the recordings in any way.
[58]
[49] In the appellant's evidence-in-chief, he accepted that the recordings were accurate and that the only voices on the tapes were his and Brady's.
[59]
[50] The third ground of appeal was that the learned trial judge wrongly directed the jury as to the elements of the offences.
[60]
[51] This ground of appeal does not attempt to identify any error in the learned trial judge's directions to the jury in relation to the elements of the offences. There is no substance in this ground of appeal.
[61]
The appellant was not shown the prosecution evidence
[62]
[52] The fourth ground of appeal was to the effect that the appellant was not shown "witness statements nor transcripts of tapes, videos or meetings, therefore unable to make own statement for proof of evidence."
[63]
[53] This ground of appeal was unsupported by evidence or argument. It can safely be regarded as without substance.
[64]
[54] The appellant filed an application for leave to call further evidence on the appeal from Kerry Kelly, said to be an officer of the Crime and Misconduct Commission ("CMC"), and Desmond Manners, who he says cannot be located. The appellant says that he would have called these witnesses if he had been properly advised by his legal representatives at trial.
[65]
[55] It appears that the evidence which he would seek to adduce from Kelly relates to his assertion that he gave information to Kelly relating to "corruption within Queensland Transport" about a "motor mechanic named William Henry Brady AKA Steve Brady. He was dealing in illegal handguns coming in from New Guinea." Even if one were to accept that this evidence was not adduced by reason of legal advice, it cannot be said that this advice led to a miscarriage of justice. One could well understand a forensic judgment on the part of the appellant's legal advisers at trial that the appellant would not be advantaged by attempting to call this evidence having regard to its tenuous connection to the matters in issue in the charges against the appellant.
[66]
[56] The appellant also asserts that he has "received a written message whilst in gaol stating that Brady knew my CMC agent." This nebulous assertion is unsupported by any evidence (including the "written message") and its relevance to a defence of the charges against the appellant is not apparent. It would not be surprising, much less sinister, that officers of the CMC should have known of Brady and the appellant and their nefarious activities. Much more would be needed to show that there was a real basis for thinking that the appellant may have been wrongly convicted.
[67]
[57] As to Desmond Manners, the appellant asserts that he was a semi-trailer driver involved in a fatal traffic accident which the appellant investigated. The appellant asserts that Brady asked him to "lay off Manners because he was a mate". The appellant says that he helped police to prosecute Manners. This evidence is plainly irrelevant to the matters in issue in the charges against the appellant.
[68]
[58] The appellant's attempt to adduce further evidence is without foundation. The application for leave to call further evidence should be refused.
[69]
[59] In the argument advanced by Mr Marais of counsel on the appellant's behalf, it is said that the counts of official corruption charged against the appellant duplicate the counts of fraud in that the benefits obtained by the appellant were the same in each case. It is said that the convictions for official corruption should be set aside on this ground.
[70]
[60] It should be said immediately that this argument raises for the first time any suggestion that the counts of official corruption duplicated the counts of fraud. No such point was raised before or during the trial, or, for that matter, in the appellant's notice of appeal. Insofar as this argument seeks to raise a plea under s 17 of the Criminal Code, it should have been raised at the appellant's arraignment,[1] but, in truth, there is no duplication.
[71]
[61] In Pearce v The Queen,[2] McHugh, Hayne and Callinan JJ stated that the "proper focus" of an inquiry as to whether two offences are identical is upon "the elements of the offences". The charge of official corruption in contravention of s 87(1)(a) of the Criminal Code is concerned with the obtaining of property corruptly by a person employed in the public service. "Corruptly" in this context is not the equivalent of "dishonestly".[3] As was explained in Re Austin[4] by McPherson SPJ (as his Honour then was), the corrupt obtaining of property in this context connotes the deliberate use of public office to obtain private advantage. Further, as is apparent from the terms of the counts in the indictment, the official corruption charges were concerned with the appellant's abuse of his powers of assessment of the proposed operator of each of the AIS, whereas the fraud charges were concerned with the appellant's participation in the fraudulent deployment of the roadworthy certificates by the AIS.
[72]
[62] To the extent that this submission is concerned with the possibility that the appellant has been doubly punished for the same conduct contrary to s 16 of the Criminal Code, that is a concern relating to the application for leave to appeal against sentence. I now turn to a consideration of that application.
[73]
[63] In the appellant's notice of appeal it was said that:
[74]
"[t]he sentence was manifestly excessive having regard to the [appellant's] previous unblemished history and level of community involvement. There was a significant disparity between the sentences afforded to the co-accused and that of the [appellant]. The judge failed to have any or any proper regard to the [appellant's] deteriorating health and other personal issues."
[75]
[64] In relation to the appellant's ill-health, it may be noted that the learned sentencing judge adverted to this issue in the course of his sentencing remarks. It was on the basis of the appellant's ill-health that the learned sentencing judge made his recommendation that the appellant be considered for parole earlier than would otherwise have been the case.
[76]
[65] The appellant was born on 28 February 1959. He was 48 years of age when he was sentenced. He had no criminal history.
[77]
[66] In relation to the issue of parity with the appellant's co-offenders, Mr Marais emphasised that:
[78]
Brady was sentenced to four and a half years imprisonment, suspended after nine months for a period of five years;
Brindley was sentenced to three years imprisonment, suspended after six months for five years; and
Shale was sentenced to 18 months imprisonment, suspended after three months for five years.
[79]
[67] It should be noted that each of the appellant's co-offenders pleaded guilty and cooperated with the authorities, giving evidence against the appellant. The appellant did not cooperate at all with the authorities. He was convicted after a trial. He has shown no remorse for his offending. Importantly, the appellant's fraudulent activities involved, not only personal dishonesty, but also the abuse of a position of trust in which the community depended upon him to prevent the very sort of activities which he actually encouraged in his co-offenders. None of the appellant's co-offenders were guilty of this breach of trust. Accordingly, this is not a case for the application of the proposition that "if other things are equal [persons who have been parties to the commission of the same offence should] receive the same sentence."[5] Clearly, the "other things" are not equal.[6]
[80]
[68] In relation to the argument derived from s 16 of the Criminal Code that the appellant has been twice punished for the "same act or omission", it is necessary to appreciate that s 16 is concerned with "punishable acts or omissions".[7] The receipt of money from official corruption in making bogus assessments of examiners is not the same punishable act as the receipt of money from the issue of false roadworthy certificates.
[81]
[69] The learned sentencing judge was moved to impose what can be regarded as a severe sentence on the appellant by considerations of deterrence. There may be legitimate doubts as to the efficacy of heavy sentences as deterring some offences, such as crimes of passion, but those dishonest persons who are disposed to commit crimes of calculation, of which the present is an example, must understand that dishonesty does not pay. The prospect of condign punishment can serve as a real incentive to them to tailor their behaviour with a clear appreciation of the possible costs of their dishonest conduct.
[82]
[70] The fraud effected in respect of the period between 18 January 2003 and 25 June 2003 relating to the J B Auto AIS was inspired by the appellant's use of a dead man's identity. This fraud carried a maximum penalty of 10 years imprisonment. Having regard to the deliberate and determined dishonesty pursued by the appellant, the crucial importance of his abuse of his position of trust to the efficacy of the scheme, and the risk to the public safety arising from the issuing of bogus roadworthy certificates, a heavy deterrent sentence was clearly necessary.
[83]
[71] In cases of the present kind, the need for denunciation of the appellant's conduct also has a strong claim upon the consideration of a sentencing judge. It was necessary that the sentence imposed on the appellant reflect the community's strong disapproval of the appellant's betrayal of the trust reposed in him.
[84]
[72] The appellant's attempts to challenge the convictions are without substance.
[85]
[73] The sentence which was imposed was in no way excessive, much less manifestly so.
[86]
[74] The appeal against the convictions should be dismissed.
[87]
[75] The application for leave to appeal against sentence should be refused.
[88]
[76] HOLMES JA: I have read and agree with the reasons of Keane JA, and with the orders he proposes.
[89]
[77] DAUBNEY J: I respectfully agree with the reasons for judgment of Keane JA and with the orders he proposes.