Burke v Corruption and Crime Commission - [2012] WASCA 49

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BURKE -v- CORRUPTION AND CRIME COMMISSION [2012] WASCA 49

CORAM: MARTIN CJ
BUSS JA
MAZZA JA

HEARD: 23 AUGUST 2011

DELIVERED : 9 MARCH 2012

FILE NO/S: CACR 196 of 2010

BETWEEN: BRIAN THOMAS BURKE
Appellant
AND
CORRUPTION AND CRIME COMMISSION
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :JENKINS J
Citation  :BURKE -v- CORRUPTION AND CRIME COMMISSION [2010] WASC 283
File No  :SJA 1041 of 2010

Catchwords:

Criminal law - Particular offences - Offences relating to the administration of justice - Appellant convicted by a magistrate of giving false evidence to Corruption and Crime Commission regarding whether he had asked the Minister to appoint a particular person to a statutory board - Elements of the offence

Criminal law - Appeal - Whether the magistrate erred in finding that the appellant had asked the Minister to appoint a particular person to the statutory board - Whether the meaning of a question, the answer to which is alleged to have been false and knowingly false, is determined by what the words uttered would convey to the mind of a reasonably well-informed listener - Whether the meaning of such question is determined by the appellant's understanding of the question - Whether the magistrate erred in finding that the appellant's answer was knowingly false

Criminal law - The rule in Browne v Dunn (1893) 6 R 67 HL - Whether the magistrate's reliance, in part, on his finding that the appellant's answer to an alleged 'unrelated question' was knowingly false, in concluding that the prosecution had proved beyond reasonable doubt that the appellant had given knowingly false evidence before the Commission, vitiated the magistrate's conclusion or his reasoning in relation to that conclusion

Legislation:

Corruption and Crime Commission Act 2003 (WA), s 168
Regional Development Commissions Act 1993 (WA), s 11, s 15, s 16
Regional Development Commissions Regulations 1994 (WA)

Result:

Leave to appeal granted on amended grounds 1, 2 and 3
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr G R Donaldson SC
Respondent: Mr J Mactaggart

Solicitors:

Appellant: Lemonis/Tantiprasut Lawyers
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167
Adamson v Ede [2009] NSWCA 379
Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1; (1983) 70 FLR 447
Bale v Mills [2011] NSWCA 226; (2011) 282 ALR 336
Bennett v Carruthers [2010] WASCA 131
Birks v The State of Western Australia [2007] WASCA 29; (2007) 33 WAR 291
Browne v Dunn (1893) 6 R 67 HL
Bulstrode v Trimble [1970] VR 840
Burke v Corruption and Crime Commission [2010] WASC 283
Chanaa v Zarour [2011] NSWCA 199
Dunn v Maritime Services Board [1998] NSWCA 72
Lazarevic v The State of Western Australia [2007] WASCA 156
Marlborough v The State of Western Australia [2011] WASCA 51
Martin v Rowling [2005] QCA 128
Merrey v The State of Western Australia [2010] WASCA 62
MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329
MZWIQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1636
Piras v Egan [2008] NSWCA 59
Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362
R v Birks (1990) 19 NSWLR 677
R v Coswello [2009] VSCA 300
R v Davies (1974) 7 SASR 375
R v Ferguson [2009] VSCA 198; (2009) 24 VR 581
R v Foley [1998] QCA 225; [2000] 1 Qd R 290
R v Jawke 1957 (2) SA 187 (ED)
R v Morrow [2009] VSCA 291; (2009) 26 VR 526
R v Soma [2003] HCA 13; (2003) 212 CLR 299
R v Traino (1987) 45 SASR 473
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405
Rees v Bailey Aluminium Products Pty Ltd [2008] VSCA 244; (2008) 21 VR 478
Seymour v Australian Broadcasting Commission (1990) 19 NSWLR 219
Stanton v Abernathy (1990) 19 NSWLR 656
Stern v National Australia Bank Ltd [2000] FCA 294; (2000) 171 ALR 192
Thomas v Van Den Yssel (1976) 14 SASR 205
Village Cay Marina Ltd v Acland [1998] BCC 417
Williams v Dawson [2000] WASCA 205; (2000) 31 MVR 559

Table of Contents

Martin CJ's reasons................................................................................................................. 6
Buss JA's reasons...................................................................................................................... 6
Section 168 of the CCC Act
The examination before the Commission
Mr Burke's occupation and his experience in public office
Mr Marlborough's ministerial role and powers
The vacancy on the board of the South West Development Commission
Beryle Morgan
The intercepted telephone conversations between Mr Burke and each of Mrs Morgan, Mr Marlborough and Mr Grill
The Commission's interest in the telephone conversations between Mr Burke and Mr Marlborough
Mr Burke's evidence before the Commission
The trial before the magistrate
The Commission's case at the trial
Mr Burke's case at the trial
The magistrate's reasons
The grounds of appeal before Jenkins J
The decision of Jenkins J in relation to ground 1
The decision of Jenkins J in relation to ground 2
The decision of Jenkins J in relation to ground 3
The grounds of appeal before this court
The statutory framework applicable to the appeal to this court
Ground 1 (as amended) of the appeal to this court: Mr Burke's submissions
Ground 1 (as amended) of the appeal to this court: the allegations in the charge in question and the elements of the offence
Ground 1 (as amended) of the appeal to this court: the decision in Marlborough
Ground 1 (as amended) of the appeal to this court: its merits
Ground 2 (as amended) of the appeal to this court: Mr Burke's submissions
Ground 2 (as amended) of the appeal to this court: the reasoning of Jenkins J
Ground 2 (as amended) of the appeal to this court: its merits
Ground 3 (as amended) of the appeal to this court: Mr Burke's submissions
Ground 3 (as amended) of the appeal to this court: the alleged 'unrelated question'
Ground 3 (as amended) of the appeal to this court: references at the trial to the alleged 'unrelated question'
Ground 3 (as amended) of the appeal to this court: the magistrate's finding in relation to the alleged 'unrelated question' and Mr Burke's answer to it
Ground 3 (as amended) of the appeal to this court: its merits

Conclusion
Mazza JA's reasons................................................................................................................ 65

MARTIN CJ: This appeal should be dismissed for the reasons given by Buss JA, with which I agree.
BUSS JA: The appellant (Mr Burke) was convicted, after a trial in the Magistrates Court before Magistrate Bayly, on one charge in a prosecution notice which alleged that on 6 November 2006, at Perth, Mr Burke:
[a]t an examination before the Corruption and Crime Commission, gave evidence which he knew was false or misleading in a material particular by giving evidence that he had not asked Norman Marlborough to appoint Beryle Morgan to the South West Development Commission[,]
contrary to s 168 of the Corruption and Crime Commission Act 2003 (WA) (the CCC Act).
The Magistrate sentenced Mr Burke to a fine of $25,000.
The prosecution notice also alleged that Mr Burke had committed four other offences contrary to s 168 of the CCC Act. Mr Burke pleaded not guilty to these other charges and was acquitted by the magistrate.
Mr Burke appealed to the Supreme Court against his conviction. The appeal was heard and dismissed by Jenkins J. See Burke v Corruption and Crime Commission [2010] WASC 283.
Mr Burke now appeals to this court against Jenkins J's decision.

Section 168 of the CCC Act

Section 168 of the CCC Act reads:
A person who, at an examination before the [Corruption and Crime] 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.
Penalty: Imprisonment for 5 years and a fine of $100 000.

The examination before the Commission

The Corruption and Crime Commission (the Commission) was established under s 8(1) of the CCC Act.
The functions of the Commission include ensuring that an allegation about, or information or matter involving, 'misconduct' (as defined in s 4 of the CCC Act) is dealt with in an appropriate way: s 18(1). By s 4,

'misconduct' occurs if, amongst other things, a public officer corruptly acts or corruptly fails to act in the performance of the functions of the public officer's office or employment.

In 2005, the Commission received, or became aware of, an allegation regarding improper conduct relating to a proposed residential and tourism development within the Shire of Busselton at an area known as Smiths Beach in Yallingup. The Commission initiated an investigation.
On 23 October 2006, the Commission commenced public hearings for the purpose of enabling it to form an opinion as to whether any public officer had or may have engaged in misconduct in the performance of his or her duties, and whether any public officer had or may have been directly or indirectly improperly influenced in the performance of his or her duties, and whether any person had or may have intended improperly to influence any public officer to engage in misconduct.
Mr Burke gave evidence at the public hearings. This evidence was the subject of the charges in the prosecution notice.

Mr Burke's occupation and his experience in public office

Mr Burke was a member of the Legislative Assembly of the Parliament of Western Australia between 1973 and 1988. He was the Premier between 1983 and 1988.
Mr Burke said in evidence at the trial that at the material time he was a full‑time consultant or lobbyist. He worked with Julian Grill in connection with this business (4/3/10: ts 37).

Mr Marlborough's ministerial role and powers

At the material time, Norman Marlborough was a member of the Legislative Assembly of the Parliament of Western Australia. Also, at the material time he was the Minister for Small Business, Peel and the South West, and the Minister Assisting the Minister for Education and Training.
Mr Marlborough's ministerial responsibilities included the administration of the Regional Development Commissions Act 1993 (WA).
Section 11(1) of the Act established a body called the South West Development Commission.
By s 15(1), relevantly, each commission established under the Act is to have a board of management comprising:
(a)the Director of the commission, referred to in s 27, by virtue of his or her office; and
(b)a prescribed number of other members, not exceeding nine, who are to be appointed by the Minister in the prescribed manner.
Section 16 provides that regulations made for the purposes of the appointment of other members by the Minister must be consistent with the following, unless particular circumstances require otherwise:
(a)one-third of the members are to be persons who are resident in the region and nominated in accordance with the regulations;
(b)one-third are to be members of the council of a local government in the region and are to be nominated by local governments in the region in accordance with the regulations; and
(c)one-third are to be appointed 'at the Minister's discretion'.
The Regional Development Commissions Regulations 1994 (WA) merely reproduced s 16 of the Act in relation to the one-third of the other members who are to be appointed 'at the Minister's discretion'. In particular, the regulations make no provision for the manner in which appointments 'at the Minister's discretion' are to be made.

The vacancy on the board of the South West Development Commission

Donald Thomas Punch, the Chief Executive Officer of the South West Development Commission, who was called as a witness by the Commission at the trial, said in evidence that in about August 2006 the South West Development Commission advertised for 'expressions of interest' to fill 'a ministerial vacancy' (3/3/10: ts 3 ‑ 4). Although the regulations do not provide for 'ministerial positions' to be advertised, it appears from Mr Punch's evidence that the general practice was to advertise 'ministerial appointments' in the same manner as 'community member' positions were advertised (3/3/10: ts 3).
Although the regulations empower the Minister to appoint one-third of the members 'at the Minister's discretion', Mr Punch gave evidence at the trial to the effect that, by convention, all prospective appointments by the Minister of other members were submitted to Cabinet for approval. He gave this evidence in cross-examination:
Mr Punch, could I just clarify with you, if I may, the ministerial appointments that you referred to, to the commission. I think your evidence was that those appointments are made by the minister. Is it not in fact the case that those appointments are made formally by the executive council?---They are ratified by the executive council, as I understand.
In fact, they go through cabinet?---Yes.
So what happens is the minister may have an appointment in mind, the minister then takes that to cabinet?---He does, and in preparing the cabinet papers, we seek cabinet to note the appointment.
So the matter goes forward to cabinet, you obviously don't know what goes on in cabinet?---That's correct (3/3/10: ts 5).
The prosecutor did not re-examine Mr Punch on this point.

Beryle Morgan

Beryle Morgan applied for a position on the board of the South West Development Commission in about August 2006 in response to an advertisement calling for expressions of interest (3/3/10: ts 4). Mr Punch said in evidence at the trial that her application was received before the closing date in August 2006 (3/3/10: ts 4). She had previously applied in 2005 (3/3/10: ts 4), but was unsuccessful (3/3/10: ts 4). In 2005, the responsible minister was the Hon Mark McGowan. In about August 2006, and at all material times thereafter, Mr Marlborough was the responsible minister. In the event, Mrs Morgan was not appointed to the board of the South West Development Commission while Mr Marlborough was the Minister.

The intercepted telephone conversations between Mr Burke and each of Mrs Morgan, Mr Marlborough and Mr Grill

Between, relevantly, July and September 2006, the Commission, in exercise of powers conferred by the CCC Act, intercepted and recorded telephone conversations between Mr Burke and each of Mrs Morgan, Mr Marlborough and Mr Grill.
During the telephone conversations in question Mr Burke spoke to each of Mrs Morgan, Mr Marlborough and Mr Grill about the possible appointment of Mrs Morgan as a member of the board of the South West Development Commission.
On 28 July 2006, Mr Burke telephoned Mrs Morgan. During the conversation she asked him about the process for ministerial appointments to the board of the South West Development Commission. She told him that she had previously applied for an appointment but had not received a response to her application. She now proposed to apply again because there was a new minister, namely Mr Marlborough. The following exchange then occurred:
BURKE: And, but just make sure you give me plenty of warning and advance notice.
MORGAN: Yeah, uhm, actually when, I finally thought no, I'm gonna give it a go. And it is closing on the fourth of August so I'm actually putting my application in today.
BURKE: Okay. Send me, send me an email.
MORGAN: Okay.
BURKE: Fax me a copy of your application.
MORGAN: Thank you, Brian. Thanks for your help.
…
BURKE: And make sure you send me that, uh, email with your application, Beryle. If I don't hear from you then I'll, I won't remember myself to talk to him (exhibit 6, pages 76 ‑ 77).
On 28 July 2006, Mrs Morgan sent a copy of her application to Mr Burke. Later that day, Mr Burke sent Mrs Morgan an email. He said that he would 'make appropriate representations' (exhibit 14).
The transcript of a telephone conversation between Mr Burke and Mr Marlborough on 9 August 2006 reads, relevantly:
BURKE:Mate, the other thing is you're not going to let me down on Beryle, are ya?
MARLBOROUGH:    No. No. Who's Beryle? The girl from, uhm, uh, Busselton?
BURKE:Yeah.
MARLBOROUGH:    No, course I'm not.
…
BURKE:Mate, it's just important to me.
MARLBOROUGH:    Mm.
BURKE:If I can't be seen uh, but, mate, she's a fuckin' good appointment.
MARLBOROUGH:    No, no, no, no, no
BURKE:She's a former
MARLBOROUGH:    No argument.
BURKE:……… authority. She's a woman.
MARLBOROUGH:    Mm hm.
BURKE:She's got a wide circle of friends in Busselton. You need someone in Busselton.
…
BURKE:This, you've been a minister six months.
MARLBOROUGH:    Yeah.
BURKE:This is the first person I've ever recommended to you for appointment anywhere.
MARLBOROUGH:    Yeah. Oh, mate, it's a done deal.
BURKE:Oh, I
MARLBOROUGH:    Don't even worry about it.
BURKE:I know that. I just feel fuckin' self-conscious about, I mean, you know, it's just terrible.
MARLBOROUGH:    Well, if you hadn't have asked, if you hadn't of brought it to my attention
BURKE:Yeah I know.
MARLBOROUGH:    she would have slipped by, you know?
BURKE:Mate, mate, it is just, believe me, it is just so important on about fifteen different fronts.
MARLBOROUGH:    Yeah.
BURKE:And she'd be so committed to you. And the other thing is, mate, she hates Buswell.
MARLBOROUGH:    Mm (exhibit 6, pages 78 ‑ 80).
The transcript of a telephone conversation on 17 August 2006 between Mr Burke and Mr Marlborough reads, relevantly:
BURKE:Oh. You fixed up Beryl? [sic]
MARLBOROUGH: Yes, that's on the way to being fixed (exhibit 6, page 81).
The transcript of a telephone conversation on 21 August 2006 between Mr Burke and Mr Marlborough reads, relevantly:
BURKE:How are we gunna go with uh, Beryle?
MARLBOROUGH:    What, the National Party candidate?
BURKE:Yep. The South,
MARLBOROUGH:     ……..
BURKE:South West Development Authority.
MARLBOROUGH:    Yeah. Other than people being scared witless by her who says she's fucken mad, yeah, I think we'll get okay.
BURKE:Mate, she hates Buswell, and she will do whatever you tell her.
MARLBOROUGH:    Yeah. Everybody thinks she's fucking mad.
BURKE:She's not, mate.
…
BURKE:Yeah. Just ignore it, mate. Are you gunna have trouble doing it?
MARLBOROUGH:    No, I don't think so.
BURKE:I hope not mate.
MARLBOROUGH:    I don't think so. She's a woman, mate I need her desperately.
…
BURKE:Yeah. I need, I want that Beryle appointment. Don't let 'em talk you out of it.
MARLBOROUGH:    …….. not talking me out of it. They said, oh mate, she's just fucking mad …
BURKE:Mate, she's not mad for you.
MARLBOROUGH:    (laughs) Anyway, she's appointed mate. She'll be there.
BURKE:Good on you mate. Thanks for that.
MARLBOROUGH:    She'll be there.
BURKE:Alright
…
MARLBOROUGH:    Mmm. No, she's done mate. She's done. Done.
BURKE:Good. Good.
MARLBOROUGH:    Done.
BURKE:When will you notify her?
MARLBOROUGH:    I'll fucken tell her this week.
BURKE:Good (exhibit 6 pages 82 ‑ 85).
On 24 August 2006, Mr Burke had a telephone conversation with Mr Grill. Mr Grill said that he had 'wanted to get … someone up for … on to the … South West Development [Commission]' and that Mr Marlborough had given him 'the impression he would' (exhibit 6 page 87). Mr Grill added that 'I sort of asked him the other day at that lunch and he … said … he probably wouldn't be able to do till January' (exhibit 6 page 87). The following exchange then occurred:
BURKE: Well, there's a problem there and I caused it cos I didn't know you'd put anyone up and I arranged for him to put up ah Beryle Morgan.
GRILL: Oh, Beryle Morgan?
BURKE: Yeah.
GRILL: Oh.
BURKE: So he was obviously embarrassed.
GRILL: Mm.
BURKE: See, I didn't know till I heard you at lunch the other day. You didn't, hadn't mentioned it to me and I had already asked him and he told me he would put her forward. So he's, I think she's going to get the nod.
GRILL: Oh, well, I guess she's someone we can rely on.
BURKE: Yeah. There are lots
GRILL: Okay.
BURKE: of reasons [she] should be appointed.
GRILL: Yeah. Well, you can fill me in later.
BURKE: Yeah. But I
GRILL: Yeah, yeah.
BURKE: You see, I didn't know, Julian. Until I heard you talking to him yesterday
GRILL: Yeah.
BURKE: I didn't have any idea that you had nominated anyone.
GRILL: … I mean, it'll be a loss of face for me with Griffin and Griffin is just very important to both of us.
BURKE: Yeah, I agree. If I'd have known I could have made some arrangements, you know, but I didn't know.
GRILL: Yeah. Yeah. Okay.
BURKE: You know.
GRILL: Alright. Oh, well, that's, it's all
BURKE: But I think you can explain it from Griffin to just say, look, he's promised the next vacancy but they had to have a woman.
GRILL: Yeah. We better make sure he delivers though.
BURKE: Well, I've, I've done me very best.
GRILL: Yeah. Well, you'll need
BURKE: I haven't said
GRILL: to talk to him.
BURKE: anything to him since yesterday.
GRILL: I'll need to talk to him.
BURKE: Oh, delivers next January?
GRILL: Yeah.
BURKE: Oh, yes. I'll do that. But I, I'm not even bothered if (laughs) he's going to deliver with Beryle Morgan (laughs) I thought that's what you were saying.
GRILL: Oh, yeah. Right. Okay.
BURKE: You know, when you, I haven't spoken to him since yesterday but when you said you better make sure he delivers I said, well, I'm not even positive he's going to do that because, uhm, I thought you meant with Beryle.
GRILL: Well, at least if I know I can pre-empt it but, uh
BURKE: Yeah.
GRILL: Anyway, I can tell 'em it's not going to happen.
BURKE: Well, you can tell it's not going to happen. You can tell 'em that you think they're going to have to appoint a woman.
GRILL: Well, if that's the case we better make sure that that's, you know, that would be a way out.
BURKE: Yeah.
GRILL: Uh
BURKE: Well, I, I've done me best. I haven't spoken to him since yesterday. I haven't spoken to him at all since yesterday but, but I'll go back to him and try and get him to, to, to do that so that at least she gets on and then you've got that excuse (exhibit 6, pages 87 ‑ 89).

Later on 24 August 2006, Mr Burke spoke by telephone with Mr Marlborough. The transcript reads:
BURKE:One of the things I was gonna say to you, oh firstly I spoke to Julian and, uhm, uh, he was obviously disappointed that it looks as though that eh, nominee to the South West Development Authority can't be accommodated.
MARLBOROUGH:    (Laughs)
BURKE:But he'll just ac, I've said to him that uh, I understand you have to appoint a woman. He said well so long as I know
MARLBOROUGH:    Yeah.
BURKE:then I can explain it in advance. So
MARLBOROUGH:    Yeah.
BURKE:I'm just ringing you to say that he's now accepted that that nomination won't go forward
MARLBOROUGH:    Yeah.
BURKE:because you have to nominate a woman.
MARLBOROUGH:    That's right (exhibit 6, page 90).
The transcript of a telephone conversation on 12 September 2006 between Mr Burke and Mr Marlborough reads, relevantly:
BURKE:Listen Norm, have you completed your appointments to the South West Development Authority?
MARLBOROUGH: Err no.
BURKE:Why not?
MARLBOROUGH: Uhm, 'cause I can't get the Chairman. I'm waiting, I want Ernie to be the Chairman, and I'm wanting, I met with him last week and I think he's going to do it (exhibit 6, page 91).
On 14 September 2006, Mr Burke and Mrs Morgan had a telephone conversation. Mr Burke told Mrs Morgan that he thought her appointment to the board of the South West Development Commission was 'okay' (exhibit 6, page 94).

The Commission's interest in the telephone conversations between Mr Burke and Mr Marlborough

On 27 September 2006, Mr Burke was served with a notice requiring him to attend and give evidence at the investigation before the Commission. The notice stated that the investigation was being undertaken to enable the Commission to make an assessment, and to form an opinion, as to whether any:
(i)public officer, has or may have engaged in misconduct in the performance of their duties; and
(ii)a person has or may have, directly or indirectly, improperly influenced or intended to improperly influence 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 Location Lot 413 Smiths Beach Road, Yallingup.
At the trial, the prosecutor said in opening that the Commission was investigating whether Mr Burke had improperly influenced Mr Marlborough to appoint Mrs Morgan to the South West Development Commission (2/3/10: ts 13 ‑ 14).

Mr Burke's evidence before the Commission

On 6 November 2006 and 4 December 2006, Mr Burke gave evidence before the Commission. The relevant aspects of his evidence, for the purposes of this appeal, are as follows.
On 6 November 2006, counsel assisting the Commission questioned Mr Burke about Mrs Morgan's application to be appointed to the board of the South West Development Commission:
She's told us that some time this year she's made application to be appointed a member of the South West Development Commission. Were you aware of that?---Yes.
How did you become aware of that?---I think she told me.
Was this - did she tell you this at the lunch or subsequently?---No, subsequently.
Right. When she told you that did she seek any assistance from you?‑‑‑No.
Was that in the last - since February of this year?---Yes, this was quite recently.
Quite recently. All right. Mr Marlborough was then a minister obviously?---Yes, I think he was.
And the South West Development Commission would fall within his portfolio of the south west?---Yes, I think it would.
Did you indicate to her whether you might speak to Mr Marlborough in that regard?---No, I don't think I said that to her.
Did you say anything to her in that regard?---I think I said that I'm sure she would get a fair hearing and that was that.
Did you speak to Mr Marlborough about it?---Not to my recollection. I may have but I don't recollect it.
We're only talking in the last, what, month or two are we?---Perhaps last two months, yes.
Is it possible that you asked Mr Marlborough to appoint her to the South West Regional [sic] Development Commission?---No, I wouldn't have done that.
Why wouldn't you have done that?---Because I wouldn't have thought that was the right thing to do. I might have said to him that she was an applicant.
I take it from what you're saying that whilst you and Mr Marlborough are friends there are some boundaries to the sorts of things that you will ask him to do?---Yes.
And that's the sort of thing that you would never ask him to do, that is, appoint somebody as a favour to you?---Not as a favour to me. That's absolutely right (ts 952 ‑ 954) (emphasis added).
Counsel assisting the Commission, in the question emphasised by italics in this passage, wrongly referred to the Commission as the 'South West Regional Development Commission'. At the trial before the magistrate, and at the appeal before Jenkins J, counsel for Mr Burke did not take issue with counsel for the Commission's assertion that counsel assisting the Commission's error did not create any confusion. The only reasonable inference is that counsel assisting the Commission intended to refer to the South West Development Commission and that this was understood by Mr Burke.
On the evening of 6 November 2006, Mr Burke and Mr Marlborough had a telephone conversation, after Mr Burke gave evidence to the Commission. The conversation included the following discussion:
BURKE: They asked me whether I'd asked you about, uhm, eh, the appointment of, uhm, Beryl [sic] Morgan.
MARLBOROUGH: Yeah I saw, I saw all that.
BURKE: And I sort of said I might have I, I think that I, I mean I think I did a few times remind you of it so
MARLBOROUGH: Yeah
BURKE: you know.
MARLBOROUGH: Oh no that's, that's not a problem mate. End of the day Beryl [sic] Morgan's one of the seventeen people who applied.
BURKE: That's right.
MARLBOROUGH: And I've made no appointments, you know.
BURKE: And all you need, all you need to say, I mean what is the truth, you listen to me but you listen to other people
MARLBOROUGH: Yeah.
BURKE: and you make up your own
MARLBOROUGH: That's right (exhibit 6, pages 99 ‑ 100).
On 4 December 2006, Mr Burke's evidence before the Commission continued. He sought and was permitted to clarify some of the evidence he had given on 6 November 2006. The clarification was this:
Now, my clarification is that when I addressed myself to the question, I was addressing myself to the notion that I would in some way compel, threaten or force or be able to do those things in pursing the appointment of Mrs Morgan to that position. It's clearly not the case that I refrained from making representations to a wide range of people about a wide range of things, and I can recall speaking to Mr Marlborough about ‑ about Beryle Morgan but I don't recall ever saying that I was instructing, threatening, forcing, compelling or in some other way doing more than saying, 'Here is Beryle Morgan's details. I'm strongly supportive of her, I believe there are lots of reasons why she should be appointed,' and that's something that was consistent with what I've done in - in many other cases as well. That concludes my clarification. Thank you very much (ts 1103).
Later on 4 December 2006, counsel assisting the Commission questioned Mr Burke about his clarification:
Now, this morning you have sought to clarify that by saying that you may have made representations to him. Am I misunderstanding what your clarification is?---Yes.
What is your clarification?---I was addressing in my mind the notion that I was threatening, forcing or compelling or in some other way instructing Norm to appoint Ms Morgan to the South West development authority.
Where did you get those words from?---That was what I was addressing.
Why?---I'm not saying that you used those words.
No, why were you addressing that?---Because I'd thought that's what I was being challenged about.
Is it possible that you asked Mr Marlborough to appoint her to the South West Region [sic] Development Commission?---No, I wouldn't have done that?
---Yes.
There's no suggestion of any threat, inducement?---No, I agree there wasn't, but at the same time I would, with respect, point out that I spend a lot of my working time making representations to people about the appointment of people or other things and there's no reason why I wouldn't have said to Norm that she was a suitable person (ts 1180).
Counsel assisting the Commission played the audio recordings of Mr Burke's conversation with Mrs Morgan on 28 July 2006 and his conversation with Mr Marlborough on 9 August 2006. The examination then continued, as follows:
HALL, MR: Why was it so important to you, Mr Burke?---I thought she'd be a very good appointment.
But why was it so important to you?---Because I thought she'd be a very good appointment.
But how does that affect you?---Well, I'd recommend her.
Why had you recommended her?---Because I thought she'd be a very good appointment.
Had nothing to do with her assistance in the Busselton shire election in May of last year?---Not really. I didn't recall that that was a factor at all.
You considered it a done deal?---Look, Mr Hall, this is a confidential communication between me and my best friend. I speak to him in all sorts of terms that I'm sure other people speak to their best friends in and of course it's very difficult to see that sort of conversation repeated, but I didn't regard it as a done deal and that's Norm talking to me as his best friend (ts 1181).

The trial before the magistrate

In November 2008, Mr Burke was charged with the offence in question and, also, with the offences in respect of which he was acquitted.
The trial occurred on 2 ‑ 5 and 8 March 2010. The magistrate reserved his decision. On 1 April 2010, his Honour delivered oral reasons for decision.
At the trial, Mr Burke gave sworn evidence in his own defence.

The Commission's case at the trial

The prosecutor said, in his opening address at the trial, in relation to the charge in question (charge 5):
On the prosecution's case a material issue before the CCC inquiry was whether Mr Burke [improperly] influenced a cabinet minister, Mr Norman Marlborough, to appoint one Beryle Morgan to a statutory body that will be referred to as the South-West Development Commission. Your Honour will hear evidence that it was within the remit of Mr Marlborough as minister for the South-West to appoint two people to that commission. On the prosecution's case Ms Morgan had previously been a member of the Busselton Shire Council and the issue was whether, in that capacity, she had had discussions with other members of the council sympathetic to the Smiths Beach development.
Subsequently to that, that is, examination before the commission, Mr Burke was asked a series of questions about his contact with Mr Marlborough and Ms Morgan, and about her application to be appointed a member of the South-West Development Commission (2/3/10: ts 13 ‑ 14).
A little later in his opening address, the prosecutor told the magistrate that, on the prosecution's case, Mr Burke had, on several occasions, 'asked, requested and implored Mr Marlborough to appoint Ms Morgan to the South West Development Commission basically in essence as a favour to him' (2/3/10: ts 15).
According to the prosecution, this evidence of Mr Burke to the Commission on 6 November 2006:
Is it possible that you asked Mr Marlborough to appoint her to the South West Regional [sic] Development Commission?‑‑‑No, I wouldn't have done that.
Why wouldn't you have done that?‑‑‑Because I wouldn't have thought that was the right thing to do. I might have said to him that she was an applicant (ts 952 ‑ 953),
in particular, his answer to the question whether it was possible that he had asked Mr Marlborough to appoint Mrs Morgan to the South West Development Commission, was 'demonstrably false and misleading' (2/3/10: ts 15).
The prosecutor, in his closing address, summarised the prosecution's case in relation to the relevant charge, as follows:
So in answer to the proposition your Honour has put to me and what the word 'asks' means, whilst the charge as it's expressed may well understate what Mr Burke was actually doing which in effect with all respect amounts to asking or on some occasions virtually telling Mr Marlborough to appoint Ms Morgan to the board for the reasons that he articulated and which I don't need to repeat here, the charge reflects the import of the false evidence, with great respect.
…
The prosecution's submission is that the various telephone intercepts that your Honour has heard have conveyed that he most assuredly did and that his evidence that he did not or that, 'No, I wouldn't have done such a thing' ‑ 'I wouldn't have done that,' I should say, were both false and misleading (8/3/10: ts 34).

Mr Burke's case at the trial

Counsel for Mr Burke said in his opening address at the trial that the charge in question (charge 5) was 'premised upon a most unfair reading and an entirely inappropriate reading of this transcript' (2/3/10: ts 27).
Counsel for Mr Burke, in his closing address, submitted that on Mr Burke's understanding of the critical question, the answer given 'is not false and it was not knowingly false' (8/3/10: ts 91). Later in his closing address, counsel made this submission as to the proper characterisation of Mr Burke's conduct in relation to Mrs Morgan's application and his interaction with Mr Marlborough about it:
He put up Mrs Morgan's application and sought for Mr Marlborough to focus upon it. That's all. That, in our submission, is not asking somebody to ‑ Mr Marlborough to appoint Mrs Morgan, and it is most certainly not asking Mr Marlborough to do it as a favour to Mr Burke, and it is most obviously and most clearly, in our submission, not asking Mr Marlborough to engage in anything that was improper or irregular at all (8/3/10: ts 101 ‑ 102).
Mr Burke gave evidence‑in‑chief at the trial about the critical passage in his evidence to the Commission on 6 November 2006, as follows:
You will see at line 54 you were asked the question:
Is it possible that you asked Mr Marlborough to appoint her to the South‑West Regional [sic] Development Commission?
And your answer, 'No, I wouldn't have done that.' Now, can you explain to his Honour what your understanding of that question and this line of questioning was on 6 November 2006?---It was clear to me that the questioning went to my relationship with Mr Marlborough and the improper use of that relationship to achieve the appointment of Beryle Morgan to the South-West Development Commission. I saw the questioning that way very clearly. Perhaps that was a result of the situation in which I found myself where I appeared to be constantly under attack and the target of this inquiry. I answered the question as emphatically as I could. I said, 'No, I wouldn't have done that.'
When you say, 'No, [I] wouldn't have done that,' what did you understand 'that' to be?---Well, I wouldn't have improperly used my relationship with Norm Marlborough to secure her appointment to the development commission.
When you say 'improperly', what do you mean by that?---Well, Mr Hall summed it up later when he said, 'You wouldn't have asked him as a favour to you.' But I was thinking, well, for some reason or other I'm being accused of doing the wrong thing in my relationship with Mr Marlborough insofar as this appointment or proposed appointment is concerned. Now, it never entered my mind that anyone would think that I was doing it for some benefit to myself.
…
Could you explain to his Honour what your appreciation and understanding was of that series of questions commencing at the bottom of page 952 and going over to the top of page 954 was?
---Your Honour, it was within the context of me not remembering all the detail about the matter. That's the first thing. But my clear understanding of the question was that I was being asked whether I'd taken advantage in some improper way, not for personal benefit but in some improper way, of my relationship with Marlborough in respect of this appointment. Although the question was 'is it possible,' it wasn't 'did you,' 'is it possible,' I said, 'No, I wouldn't have done that,' because I was thinking in my mind that I was being confronted by something that I'd done wrong. Then it was further confirmed because Mr Hall said, 'Why wouldn't you have done that?' 'I wouldn't have thought it was the right thing to do.' Look, nominating someone for a position isn't the wrong thing to do. There are newspaper advertisements every day asking citizens to nominate other people for positions. There's no problem with that. But I wouldn't have thought it was the right thing to do to use my influence with Marlborough for some improper purpose. I might have said she was an applicant, and then he ‑ Mr Hall further compounded and made me think I was correct, because he said, 'Well, I can understand that between even good friends there are boundaries you don't cross.' Then he finally ‑ he summarised it himself, because he said to me, 'That's not the sort of thing you'd ever ask.' I remember thinking, 'Hang on,' and then he said, 'To appoint her as a favour to you.' That's why I was emphatic. Even though I didn't remember all of this detail about the ‑ I didn't remember these calls with Beryle and her ‑ I didn't even remember Norm saying she's mad. I didn't remember that. But when he said to me, 'You wouldn't ask him to do this as a favour to you,' I was emphatic, because I wouldn't have done that. Even though I couldn't remember it, I knew I wouldn't have done that. I wouldn't have said, 'Hey, Norm, would you appoint this person as a favour to me because, look, I'm going to get something out of this, or this person is going to do something for me.' I wouldn't have done that, and that's how I was able to be emphatic about it, even though I didn't really remember a lot of the stuff that went before (4/3/10: ts 64 ‑ 65, 74 ‑ 75).
The prosecutor's cross‑examination of Mr Burke on this issue produced the following evidence:
Then we come to the question at the bottom of page 952, Mr Burke:
Is it possible that you asked Mr Marlborough to appoint her to the South‑West Regional [sic] Development Commission?---No, I wouldn't have done that.
That answer was just plain false, wasn't it?---No.
But you have asked Mr Marlborough to do precisely that. We have just heard it?---The answer is a correct answer, Mr Taggart ‑ Mr Mactaggart. It's correct for two reasons; (1) ‑ which is not compelling, in my view, but is still the truth ‑ I never asked him to appoint her. I recommended that he appoint her. I put her up for appointment. I never said, 'I'm asking you to appoint her.' That's the first one, but I acknowledge that that's (indistinct). The second thing is this: I answered the question absolutely truthfully as I understood it. I understood the question to be that I asked her ‑ I'd asked Norm Marlborough to appoint her on the basis of our relationship in some improper way or involving some impropriety. Now, that's the question I answered and that's why I answered it the way I did, because I said, 'No, I wouldn't have done that.'
Mr Burke, just a couple of things arising out of that, firstly, the question on page 952, you answered, 'No, I wouldn't have done that,' before the other questions were even asked and what I'm putting to you is that is what exactly you did do. You in substance asked him, Mr Burke, to appoint her to that development commission?---I'm happy to concede that to say that I recommended her or that I put her up. It might be interpreted as I asked. I don't think it's true but that might be a reasonable assumption to make.
Yes?---But if you look at the question
Yes the question said, 'Is it possible?' Now, if you want to tie me down to the exact question, then of course it's possible. Anything is possible but I didn't answer the question that I was asked, 'Is it possible?' because I understood the question to be, 'As a result of your relationship with Norm Marlborough did you seek Beryl [sic] Morgan's appointment on some improper basis or as the result of some impropriety?' Now, in the same way as I didn't say, 'Yes, it's possible' ‑ because I didn't think Mr Hall was really saying, 'Was it possible for you to do it?' ‑ I answered the question honestly as I understood it to be asked of me.
Mr Burke, there's no reference to ‑ the question speaks for itself, 'Is it possible you asked Mr Marlborough?' There's no question about any relationship and the like. 'Is it possible you asked Mr Marlborough to appoint her to the South West Regional Development Commission?' The question was as simple as it could get?---Mr Mactaggart, you weren't there.
No?---You didn't understand the context, you didn't understand the atmosphere and you didn't understand the way in which I was a target of this inquiry in a most, in my opinion, unfair way. Now, it's easy to read something on paper and to say the words mean this or the words mean that but when you're pushing your way through a roughly scrum of press and other media people, when you're going into the lions den with no preparation, with no advance warning, when you don't really know anything except in the most general terms what you're going to be asked about, it's just not possible to say what's down on paper is what's happening on the day. I felt that I was under attack and I answered that question honestly by saying, 'No, I wouldn't have done that.' I've got nothing to hide about recommending people for appointment. I do that ‑ I did that all the time ‑ everyday. There are newspaper advertisements, Mr Mactaggart, that say, 'Do you know anyone who would be a suitable appointment to a particular body?'
…
Yes, and when you were asked about it:
Is it possible that you asked Mr Marlborough to appoint her to the South West Regional [sic] Development Commission?'
Your answer was, 'No, I wouldn't have done that'?---Yes.
I put to you, Mr Burke, that that answer was clearly false and you knew it was false?---That answer was absolutely truthful. I know it to be truthful now and I knew it to be truthful then. Mr Hall accepted my understanding of the question because he then went on to confirm my understanding by saying these things, 'You accept there are boundaries between friends,' and then he summarised it by saying, 'In other words' ‑ they're my words ‑ 'that something you'd never do is seek an appointment of a person as a favour to you.' That's what he said.
Mr Hall's sequence of questioning followed your answer. He followed on and built as a basis for his questioning your very answer, Mr Burke. Why wouldn't you have done that?
---Because I wouldn't have thought it would be proper. Mr Mactaggart, why wouldn't I think it to be proper to represent someone to the appointment of a position? It's done every day by everybody. I've nominated people to become justices of the peace, I've nominated people to all sorts of bodies, never thinking that it wouldn't be proper to do it. What I was saying here was: to do what I was being asked would not have been proper (5/3/10: ts 35 ‑ 39).

The magistrate's reasons

The magistrate summarised Mr Burke's evidence at trial in relation to the charge in question (charge 5):
In respect to the allegations contained in charge 5, the accused said that when asked the question in transcript page 952, line 54, 'Is it possible you asked Mr Marlborough to appoint her' ‑ referring to Beryle Morgan ‑ 'to the South West Regional Development Commission?' and he gave the answer, 'No, I wouldn't have done that,' he said that he thought that question went to his relationship with Mr Marlborough and the improper use of that relationship to achieve the appointment of Beryle Morgan to the South West Development Commission; in other words, he thought the question meant, 'Did you improperly ask Mr Marlborough to appoint Beryle Morgan to the South West Regional Development Commission?' He said that the way in which he answered the question that he thought was being asked was in fact the truth. He went on further to say that at no stage did he ask Norm Marlborough to appoint Beryle Morgan to the South West Development Commission as a favour to him.
He said the question that followed, the question on line 56, confirmed his view that he was being questioned about whether he asked Norm Marlborough to appoint Beryle Morgan as a favour to him. He went on to say that in the telephone intercepts relied upon by the prosecution in support of the charge, namely exhibit 6, tab 26, 27, 28, 30 and 31 he was simply trying to focus Norm Marlborough's attention upon the importance of appointing Beryle Morgan and therefore that Norm Marlborough would benefit from having her on the board.
In cross examination, the accused maintained his evidence in chief (1/4/10: ts 18 ‑ 19)
His Honour made these findings as to the background facts and circumstances preceding Mr Burke's appearance before the Commission:
There was no issue, and I find beyond reasonable doubt, that clearly the accused gave evidence before the CCC on 6 November 2006 in examination. I also found that when called to give evidence at the CCC on 6 November, the accused did not know what he would be questioned about, except in a very general sense. The accused did, through his legal representation, seek to find out from the CCC particulars of the examination, his examination. However, those particulars were not forthcoming.
It would be therefore almost impossible, I find, for him to have prepared for the examination by reviewing emails, notes and files. The giving of evidence before the CCC on an examination in circumstances where particulars of the questions to be asked have not been supplied cannot be compared, for example, with the giving of evidence by an accused person at a criminal trial, prior to which the accused has received all of the statements and documents upon which the prosecution rely and he therefore knows the issues upon which he will be questioned and can prepare to give evidence.
I accept the evidence of the accused that during 2006, he had some 40 to 60 clients for whom he was consulting. His evidence in this regard is corroborated by the evidence of Raymond Ingham, a senior inspector with the CCC, and Mr Ingham agreed with the proposition that the telephone intercept material included some 35,389 telephone sessions and that these sessions included many thousands of telephone calls (1/4/10: ts 21).
The magistrate referred to various of the telephone conversations between Mr Burke and Mr Marlborough. He then said:
In my view, there is no doubt that in these telephone conversations with Mr Marlborough the accused is clearly asking Mr Marlborough to appoint Beryle Morgan to the South West Development Commission, indeed imploring him to do so. The phone intercepts disclose the accused doing much more than just recommending or supporting Ms Morgan's application (1/4/10: ts 28).
His Honour mentioned relevant aspects of Mr Burke's evidence at the trial:
The accused in his evidence stated that he thought the question he was asked at transcript page 952, line 54, meant did he improperly ask Mr Marlborough to appoint Beryle Morgan to the South West Regional Development Commission [sic] and that therefore the answer he gave was in his mind true. Further, the accused stated that the question that followed, and can be found at transcript page 943 and transcript page 954, lines 1, 2 and 3, confirmed his view that the question related to whether he had improperly asked Mr Marlborough to appointment Beryle Morgan.
The accused also referred to the fact that in his evidence on 4 December 2006 and before any intercept material had been played to him, he clarified the evidence he gave regarding the possible appointment of Beryle Morgan to the commission, by advising the CCC of his misunderstanding of the question at line 54. He said at transcript page 1103:
I don't recall ever saying that I was instructing, threatening, forcing, compelling or in some other way doing more than saying, 'Here is Beryle Morgan's detail. I am strongly supporting her. I believe there are lots of reasons why she should be appointed.' (ts 1/4/10: ts 29)
The magistrate then made these findings:
The answers at lines 55 and 56 were, having regard to the intercept material, clearly false. The only issue is whether the accused knew it to be false when he gave the answer. I don't accept the accused's evidence that he thought he was asked whether he improperly asked Mr Marlborough to appoint Beryle Morgan to the South West Regional Planning Commission [sic]. The question was quite clear, as indeed was the accused's answer. The falsity of his evidence is demonstrated by the answer he gave to an earlier question at transcript page 953, line 48. He was asked, 'Did you speak to Mr Marlborough about it?' meaning the appointment of Beryle Morgan, to which the accused said, 'I may have. I don't recollect it.'
Given the number of times the accused has raised with Mr Marlborough the appointment of Beryle Morgan and the manner and persistence with which the accused pursued the issue on the phone with Mr Marlborough in the months of August and September 2006, it is not, in my view, possible to accept the accused did not recollect speaking with Mr Marlborough about it. This answer was untrue. It clearly demonstrates the accused's unwillingness to give truthful evidence of his involvement in attempting to persuade Mr Marlborough to appoint Beryle Morgan (1/4/10: ts 29).
His Honour dealt with the telephone conversation between Mr Burke and Mr Marlborough on the evening of 6 November 2006 in this manner:
After the accused gave evidence on 6 November he told Mr Marlborough in a recorded telephone conversation, exhibit 6, tab 33, 'They asked me whether I asked you about the appointment of Beryle Morgan and I sort of said I might have. I mean, I think I did a few times remind you of it.' There is no mention by the accused in that conversation with Mr Marlborough of being questioned about whether he improperly asked Mr Marlborough to appoint Beryle Morgan (1/4/10: ts 29 ‑ 30).
Finally, the magistrate concluded:
Having regard to the number of telephone calls the accused had with Mr Marlborough and Mr Grill about Beryle Morgan and their proximity to when the accused gave evidence to the CCC, I am satisfied beyond a reasonable doubt that the only reasonable inference is that the accused knew when he was questioned by the CCC on 6 November that he had asked Mr Marlborough to appoint Beryle Morgan and that he knew the answer he gave, namely, that he had not asked Mr Marlborough to appoint Beryle Morgan, was false and misleading. It follows the accused will be convicted on charge 5 (1/4/10: ts 30).

The grounds of appeal before Jenkins J

Mr Burke relied on three grounds of appeal before Jenkins J, namely:
1.The Learned Magistrate:
(a)erred in finding that the Appellant had given evidence that he had not asked Norm Marlborough to appoint Ms Morgan to the South West Development Commission; and
(b)ought to have held that the Respondent did not prove beyond a reasonable doubt that:
(i)the Appellant was asked the question whether he had asked Norm Marlborough to appoint Ms Morgan to the South West Development Commission;
(ii)the Appellant gave evidence that he had not asked Norm Marlborough to appoint Ms Morgan to the South West Development Commission.
2.The Learned Magistrate:
(a)erred in finding that in the Appellant's telephone conversations with Mr Marlborough the Appellant is clearly asking Mr Marlborough to appoint Ms Morgan to the South West Development Commission;
(b)ought to have held that he was not satisfied beyond a reasonable doubt that in the Appellant's telephone conversations with Mr Marlborough the Appellant had asked Mr Marlborough to appoint Ms Morgan to the South West Development Commission.
3.The Learned Magistrate:
(a)erred in finding that he did not accept the Appellant's evidence that the Appellant thought he was asked whether he improperly asked Mr Marlborough to appoint Ms Morgan to the South West Development Commission (which the Magistrate wrongly described as the South West Regional Planning Commission);
(b)ought to have held that he was not satisfied beyond a reasonable doubt that:
(i)the Appellant had understood the question asked of him to be whether the Appellant had asked Mr Marlborough to appoint Ms Morgan to the South West Development Commission;
(ii)the Appellant had given knowingly false evidence.
As Jenkins J noted in her reasons, there are some ambiguities in the grounds of appeal [3]. These were clarified during oral submissions before her Honour [3]. Jenkins J addressed in her reasons the grounds of appeal as clarified.

The decision of Jenkins J in relation to ground 1

Counsel for Mr Burke submitted before Jenkins J that the magistrate should have found that the Commission had not proved beyond reasonable doubt that Mr Burke was asked whether it was possible that he had requested Mr Marlborough to appoint Mrs Morgan to the South West Development Commission. According to counsel, the critical question, in its proper context, was whether it was possible that he had improperly requested Mr Marlborough to appoint Mrs Morgan. Counsel argued that if there was a reasonable possibility that the critical question meant what Mr Burke asserted it meant, then the Commission had failed to prove that the critical answer was false [68].
Her Honour decided that the evidence at trial supported the magistrate's finding that Mr Burke was asked, in effect, whether it was possible that he had sought, by words spoken to Mr Marlborough, to obtain the appointment of Mrs Morgan to the board of the South West Development Commission [87].
Jenkins J dismissed ground 1.

The decision of Jenkins J in relation to ground 2

Counsel for Mr Burke submitted before Jenkins J that the magistrate should have held that he was not satisfied beyond reasonable doubt that in the relevant telephone conversations Mr Burke had asked Mr Marlborough to appoint Mrs Morgan to the board of the South West Development Commission or that Mr Burke believed he had asked Mr Marlborough to do that. According to counsel, Mr Burke's answer to the critical question was not knowingly false.
Ground 2 raised two issues. First, whether the magistrate erred in finding that, objectively, Mr Burke asked Mr Marlborough to appoint Mrs Morgan. Secondly, even if, objectively, Mr Burke did ask Mr Marlborough to appoint Mrs Morgan, whether the magistrate erred in finding that Mr Burke knew, when he answered the critical question, that he had so asked [89].
Her Honour held that the magistrate did not err in finding that, objectively, Mr Burke had asked Mr Marlborough to appoint Mrs Morgan to the board of the South West Development Commission. Her Honour said that there was no reasonable doubt that during the relevant telephone conversations Mr Burke asked, or pressed for the satisfaction of, his previous request or requests to Mr Marlborough to appoint Mrs Morgan [90].
Jenkins J held that there was no merit in Mr Burke's submissions in respect of the second issue [110].
Her Honour dismissed ground 2.

The decision of Jenkins J in relation to ground 3

Counsel for Mr Burke submitted before Jenkins J that the magistrate should have held that he was not satisfied beyond reasonable doubt that Mr Burke had understood the critical question in the manner that the magistrate construed it. According to counsel, in these circumstances it was reasonably open that Mr Burke had construed the question as being whether it was possible that he had improperly asked Mr Marlborough to appoint Mrs Morgan to the board of the South West Development Commission, and that his answer denying that possibility was not knowingly false [114].
Jenkins J held that it was open to the magistrate to be satisfied beyond reasonable doubt of Mr Burke's guilt on the basis that the only rational inference which could be drawn from all the evidence was that Mr Burke gave knowingly false evidence to the Commission. Her Honour added that the magistrate gave adequate reasons for being satisfied on this issue [125].

The grounds of appeal before this court

Before this court, Mr Burke relied on three amended grounds of appeal. They read (without the supporting particulars):
Ground 1
The Learned Judge erred in law in concluding that the Learned Magistrate did not err in finding that the Appellant had asked Mr Marlborough to appoint Ms Morgan to the South West Development Commission (SWDC).
The Learned Judge ought to have held that during the relevant telephone conversations, the Appellant asked Mr Marlborough, in substance, to make a recommendation to Cabinet that it approve the appointment by Mr Marlborough, as the responsible Minister, of Ms Morgan as a member of the SWDC.
Ground 2
The Learned Judge erred in law in determining that the meaning of a question, the answer to which is alleged to have been false and knowingly false, is determined by what the words uttered conveyed to the mind of a reasonably well informed listener.
The Learned Judge ought to have concluded that the meaning of such question is determined by the understanding of the Appellant of the question.
Ground 3
The Learned Judge erred in law in upholding the finding of the Learned Magistrate that the prosecution proved beyond reasonable doubt that the question asked of the Appellant was whether he had asked Norm Marlborough to appoint Beryl [sic] Morgan to the SWDC; or alternatively, erred in finding that the answer given by the Appellant was knowingly false, on the basis that the Appellant understood the question asked of him to be whether he had asked Mr Marlborough to appoint Ms Morgan to the SWDC.
The Learned Judge ought to have found that the question asked of the Appellant was whether he had asked Mr Marlborough to appoint Ms Morgan to the SWDC as an improper favour to the Appellant; or alternatively that the answer given by the Appellant was not knowingly false on the basis that he understood the question asked of him to be whether he had asked Mr Marlborough to appoint Ms Morgan to the SWDC as an improper favour to him.
The amended grounds were filed on 15 August 2011 and the appeal was heard on 23 August 2011.
On 27 March 2011, Mazza J granted leave to appeal on the original ground 2 and referred the application for leave to appeal on the original grounds 1 and 3 to the hearing of the appeal. Leave has not been granted on any of the amended grounds.

The statutory framework applicable to the appeal to this court

The appeal from the magistrate to Jenkins J was governed by div 2 of pt 2 of the Criminal Appeals Act 2004 (WA). Division 2 comprises s 7 ‑ s 15.
The appeal from Jenkins J to this court is governed by div 3 of pt 2 of the Criminal Appeals Act. Division 3 comprises s 16 ‑ s 19.
Section 18 provides:
Subject to this Division, Division 2 (other than sections 7, 8, 10 and 13), with any necessary changes, applies to and in respect of an appeal under this Division as if ‑
(a)the appeal were an appeal under Division 2; and
(b)unless the context requires otherwise, references in Division 2 ‑
(i)to a court of summary jurisdiction were to the Supreme Court sitting in its General Division; and
(ii)to the Supreme Court were to the Court of Appeal.
By s 14(1) read with s 18, in deciding the appeal from Jenkins J, this court may, relevantly:
(a)dismiss the appeal;
(b)allow the appeal;
(c)set aside or vary the decision of the [Supreme Court sitting in its General Division] and sentence imposed, order made or thing done as a result of the decision;
(d)substitute a decision that should have been made by the [Supreme Court sitting in its General Division];
(e)order the case to be dealt with again by the [Supreme Court sitting in its General Division], with or without orders to that court ‑
(i)as to how or by whom it is to be constituted;
(ii)as to how it must deal with the case.
Section 14(2) read with s 18 provides that, despite s 14(1)(b), even if a ground of appeal might be decided in favour of the appellant, this court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

Ground 1 (as amended) of the appeal to this court: Mr Burke's submissions

Counsel for Mr Burke submitted that Jenkins J made an error of law in deciding that the magistrate did not err in finding that Mr Burke had asked Mr Marlborough to appoint Mrs Morgan to the South West Development Commission.
It was submitted that her Honour should have held that, during the relevant telephone conversations, Mr Burke asked Mr Marlborough, in substance, to recommend to Cabinet that it approve the appointment by Mr Marlborough, as the responsible minister, of Mrs Morgan as a member of the board of the South West Development Commission.
Counsel for Mr Burke relied on the decision of this court in Marlborough v The State of Western Australia [2011] WASCA 51.
Counsel for the appellant (who also appeared for Mr Burke before the magistrate and Jenkins J) did not put to the magistrate or Jenkins J the contentions that are embodied in ground 1 (as amended) of the appeal.
A judge does not make a wrong decision on a question of law by failing to make a decision on a contention that was not put to him or her. See, in the context of a failure by a trial judge to exclude inadmissible evidence to which no objection is made, R v Soma [2003] HCA 13; (2003) 212 CLR 299 [79] (McHugh J); Birks v The State of Western Australia [2007] WASCA 29; (2007) 33 WAR 291 [45] (Buss JA, Steytler P & Pullin JA agreeing).
However, before this court, counsel for the Commission did not object to the manner in which ground 1 (as amended) is formulated or expressed. The second part of the ground was argued, in essence, on the basis of whether the failure of the magistrate at trial (and the failure of Jenkins J on appeal) to make a finding in accordance with the appellant's contention involved or occasioned a miscarriage of justice.

Ground 1 (as amended) of the appeal to this court: the allegations in the charge in question and the elements of the offence

The offence created by s 168 of the CCC Act and alleged in the relevant charge required the Commission to prove, beyond reasonable doubt, five elements.
First, that Mr Burke gave evidence at an examination before the Commission.
Secondly, that Mr Burke gave evidence that he had not asked Mr Marlborough to appoint Mrs Morgan to the South West Development Commission.
Thirdly, that the evidence in question was, objectively, false or misleading.
Fourthly, that when the evidence in question was given Mr Burke knew, subjectively, that it was false or misleading.
Fifthly, that the evidence in question was false or misleading 'in a material particular'.
The word 'ask', in the context of the second element of the relevant charge, connotes, in substance, the making of a request.

The second and third elements of the relevant charge involve an analysis, on an objective basis, of the intercepted telephone conversations between Mr Burke and each of Mrs Morgan, Mr Marlborough and Mr Grill, and Mr Burke's evidence before the Commission. The conversations between Mr Burke and each of Mrs Morgan and Mr Grill are of contextual relevance. They form part of the background facts and circumstances to the conversations between Mr Burke and Mr Marlborough. See, generally, the approach and observations of Gleeson CJ (Priestley & Meagher JJA agreeing) in Stanton v Abernathy (1990) 19 NSWLR 656, 661 ‑ 663.
Three aspects of the allegations in the charge in question (charge 5) may be noted. First, it is alleged that Mr Burke gave evidence that was false or misleading. Secondly, it is alleged that Mr Burke gave evidence that was false or misleading by giving evidence that he had not asked Mr Marlborough to appoint Mrs Morgan to the South West Development Commission. Thirdly, it is alleged that the subject matter in respect of which Mr Burke gave false or misleading evidence was his asking Mr Marlborough to appoint Mrs Morgan.
The offence created by s 168 of the CCC Act relates to evidence that a person knows is 'false or misleading' in a material particular. Consistently with this provision, the charge against Mr Burke alleged that he gave evidence which he knew was 'false or misleading' in a material particular.
Evidence will be 'false' if the evidence is wrong in fact or contrary to fact. Evidence will be 'misleading' if the evidence objectively creates an impression as to a fact or facts that is wrong in fact or contrary to fact. This exposition in relation to 'false' and 'misleading' is not intended to be exhaustive.
At Mr Burke's trial, the prosecutor submitted, in his opening address, that Mr Burke's evidence was 'demonstrably false and misleading' (2/3/10: ts 15) and, in his closing address, that Mr Burke's evidence was 'both false and misleading' (8/3/10: ts 34). (emphasis added)
Counsel for Mr Burke asserted, in oral argument before this court, that counsel for the Commission (who was also the prosecutor at the trial) had run the Commission's case at trial on the basis that the evidence in question was 'false' and not on the basis that it was 'misleading' (appeal ts 58). Counsel for the Commission's submissions on this point were unclear (appeal ts 50 ‑ 52).
In my opinion, there is force in counsel for Mr Burke's assertion, notwithstanding the prosecutor's references to 'false and misleading' in his opening and closing addresses at the trial. The prosecutor, in his cross‑examination of Mr Burke, put to him that his answer to the critical question in his evidence to the Commission was 'just plain false', 'clearly false' and known by him to be 'false' (5/3/10: ts 35 ‑ 38). There was no cross‑examination on the basis that the evidence in question was 'misleading', and the prosecutor did not make any submissions to the magistrate as to how the relevant evidence was 'misleading' as distinct from 'false'. All of this explains, no doubt, why the magistrate referred, in his reasons, to the evidence being 'false', but not to it being 'misleading'.
The Commission's case at trial, as run by the prosecutor, was confined to an allegation of 'falsity'.

Ground 1 (as amended) of the appeal to this court: the decision in Marlborough

Before Mr Burke was tried in the Magistrates Court, Mr Marlborough was convicted, after a trial in the District Court before a judge and jury, on one count (being count 2) in an indictment which alleged that on 8 November 2006, at Perth, Mr Marlborough:
gave evidence which he knew was false or misleading in a material particular by giving evidence to the effect that Brian Burke had not asked him to appoint Beryle Morgan to the South West Development Commission, alternatively that he could not recall Brian Burke asking him to appoint Beryle Morgan to that Commission.
The count on which Mr Marlborough was convicted was identical to the charge on which Mr Burke was convicted to the extent it alleged that the knowingly false or misleading evidence was that Mr Burke had not asked Mr Marlborough to appoint Mrs Morgan to the South West Development Commission. The elements of the count on which Mr Marlborough was convicted were identical to the elements of the charge on which Mr Burke was convicted. However, the count against Mr Marlborough differed from the charge against Mr Burke in that it alleged that Mr Marlborough gave evidence 'to the effect' that Mr Burke had not asked him to appoint Mrs Morgan, whereas the allegation against Mr Burke was not qualified or expanded upon by the words 'to the effect'.
Mr Marlborough applied to this court for an extension of time to appeal, and leave to appeal, against his conviction. This court (Martin CJ, Buss JA & Mazza J) granted Mr Marlborough an extension of time and leave to appeal. It unanimously allowed the appeal and set aside the conviction. A majority of the court (Buss JA & Mazza J, Martin CJ dissenting) entered a verdict of acquittal. Martin CJ would have ordered a retrial.
All of the telephone conversations (including the transcripts) between Mr Burke and Mr Marlborough that were tendered in evidence at Mr Marlborough's trial were also tendered in evidence at Mr Burke's trial, except for a telephone conversation on each of 14 and 15 August 2006 and one of two conversations on 24 August 2006.
The transcript of the conversation on 14 August 2006 (that was tendered in evidence at Mr Marlborough's trial but not at Mr Burke's trial) reads, relevantly:
BURKE:But mate can you do it?
MARLBOROUGH:    Yes. Course I can.
BURKE:Okay.
MARLBOROUGH:    Yeah.
BURKE:I just don't want it to grow under me feet.
MARLBOROUGH:    No. No. It will be done this week. It will be in place.
BURKE:Good. Yeah.
MARLBOROUGH:    Straight after Cabinet.
BURKE:Mate she hates Buswell.
MARLBOROUGH:    I'll do it. Mm.
BURKE:If you'd do it straight after I'd really appreciate it.
The transcript of the conversation on 15 August 2006 (that was tendered in evidence at Mr Marlborough's trial but not at Mr Burke's trial) reads relevantly:
BURKE:mate uh what about uh that other appointment?
MARLBOROUGH:    Look mate that won't, that won't be a problem mate.
BURKE:Good.
MARLBOROUGH:    Won't be a problem.
BURKE:Good.
MARLBOROUGH:    Now
BURKE:I'm counting on that, go ahead.
The transcript of the conversation on 24 August 2006 (that was tendered in evidence at Mr Marlborough's trial but not at Mr Burke's trial) reads:
BURKE:Alright mate will you ring me tonight?
MARLBOROUGH:    Yep.
BURKE:And listen [is] that uh other thing alright, that women [sic]?
MARLBOROUGH:    Yep I think so.
BURKE:Okay mate. What do you mean you think so?
MARLBOROUGH:    Yes it is.
BURKE:Tut‑tar.
All of the telephone conversations (including the transcripts) between Mr Burke and Mr Marlborough that were tendered in evidence at Mr Burke's trial were also tendered in evidence at Mr Marlborough's trial, except for the telephone conversation on the evening of 6 November 2006, after Mr Burke gave evidence to the Commission. See [40] above.
The telephone conversations (including the transcripts) between Mr Burke and each of Mrs Morgan and Mr Grill were tendered in evidence at Mr Burke's trial but not at Mr Marlborough's trial.
Mr Punch, who gave evidence at Mr Burke's trial (see [21] ‑ [23] above), also gave evidence at Mr Marlborough's trial.
Although, as I have mentioned, the Regional Development Commissions Regulations empower the Minister to appoint one-third of the other members 'at the Minister's discretion', Mr Punch gave evidence at Mr Marlborough's trial to the effect that, by convention, all prospective appointments by the Minister of other members were submitted to Cabinet for approval. He said in cross-examination:
What was the purpose of the document that you were asked to prepare---Was to prepare the advice to cabinet for the board appointments.
Is it your understanding that [Mr Marlborough] can't make the appointment, it has to go to cabinet---No, the Act actually says that the minister can make the appointment, but my understanding is that normal practice within government is to get cabinet endorsement (ts 57).
The prosecutor did not re-examine Mr Punch on this point.
Similarly, Mr Marlborough gave evidence at his trial that:
[A]lthough at the end of the day the Minister appoints, he doesn't do so without Cabinet approval. It has to go to Cabinet (ts 195).
Mr Marlborough added, a little later in his evidence, that the applications for appointment come to him for consideration and he takes 'those considerations to the Cabinet, the Cabinet decide' (ts 199). See also his evidence at ts 182, 193. Mr Marlborough's evidence on this issue was not contested by the prosecutor in cross-examination.
In Marlborough, I decided (Mazza J agreeing) that, on a fair reading of the transcripts of the intercepted telephone conversations between Mr Marlborough and Mr Burke as a whole:
(a)Mr Burke asked Mr Marlborough, relevantly and in substance, to make a recommendation to Cabinet that it approve the appointment by Mr Marlborough, as the responsible minister, of Mrs Morgan as a member of the South West Development Commission; and
(b)Mr Burke did not ask Mr Marlborough to appoint Mrs Morgan without the approval of Cabinet or to appoint her irrespective of whether Cabinet approved her appointment or not [159] ‑ [163].
This analysis of the transcripts of the conversations between Mr Marlborough and Mr Burke was not exhaustive. It was sufficient for the purposes of the issues raised for decision in Marlborough, and those issues were, in part, identified on the basis of Mr Marlborough's evidence before the Commission. See [118] ‑ [120] below.
As I have mentioned, the count against Mr Marlborough did not allege that particular or discrete answers given by Mr Marlborough, in the course of his examination before the Commission, to particular or discrete questions, were false or misleading. Rather, it was alleged that Mr Marlborough gave evidence 'to the effect' that Mr Burke had not asked him to appoint Mrs Morgan, alternatively that he could not recall Mr Burke asking him to appoint Mrs Morgan, to the South West Development Commission. The words 'to the effect' connoted that, on a fair reading of Mr Marlborough's evidence as a whole before the Commission, it should be concluded that the purport or tenor of his evidence was as stated in the count.
In Marlborough, I decided (Mazza J agreeing) that the relevant features of Mr Marlborough's evidence before the Commission were these:
(a)Counsel assisting the Commission put to Mr Marlborough that he was the person who made appointments to the South West Development Commission. Mr Marlborough responded:
---Yes and no. I'll explain the yes and no. I don't want to confuse anybody. I want to explain the yes and no. The board is made up of two areas of receiving onto the board. One is local government area. So the local government association recommend a nominee to me and the other one ‑ I think a minor number of the board positions I can have direct input into, but ‑ ‑ ‑.
Mr Marlborough did not complete his answer. He was cut off by counsel assisting who asked another question.
(b)Mr Marlborough said that Mr Burke had spoken to him 'on a couple of occasions' about Mrs Morgan's merits and the advantages of appointing her to the South West Development Commission.
(c)Mr Marlborough cavilled with the proposition that Mr Burke was 'urging' him to appoint Mrs Morgan. He acknowledged, however, in substance, that Mr Burke was supporting Mrs Morgan's appointment and that Mr Burke had telephoned him 'a couple of times' about her appointment.
(d)Mr Marlborough said that his response to Mr Burke was, in substance, 'it's okay, it will be sorted', but Mr Marlborough emphasised that:
In my mind the 'okay, it will be sorted' was always about ‑ you know, it will be a process that we will have to go through. (emphasis added)
(e)A little later, Mr Marlborough reiterated that, in his mind, 'it's okay, it will be sorted' meant 'we go through a process'.
(f)Mr Marlborough denied having given Mr Burke any assurance that he would appoint Mrs Morgan (being the essence of count 1 on which Mr Marlborough was acquitted). He explained that no one would be appointed 'without going through the proper processes'.
(g)The passage relied on by the prosecutor at the trial was as follows:
You're aware I think of what Mr Burke has said in regard to this? You have familiarised yourself with his evidence?---I am. Yeah, I am.
He couldn't recollect having spoke to you about it but he was asked:
Is it possible that you asked [Mr Marlborough] to appoint her to the South-West Regional [sic] Development Commission?---No, I wouldn't have done that.
Why wouldn't you have done that?---Because I wouldn't have thought that that was the right thing to do. I might have said to him that she was an applicant.
Would you agree with that? Would you accept that that's true?---I accept that.
That he didn't ask you to appoint her ‑ ‑ ‑ ?---I don't recall him asking me to appoint. No, I don't recall asking - - .
(h)But immediately after this passage, in the course of answering the next question, Mr Marlborough elaborated upon and explained his evidence in this manner:
I don't know what was going through Mr Burke's mind but I would hope the nature of our friendship would be such that he wouldn't ask me to do something that was not appropriate and to appoint somebody on the basis of Mr Burke ringing me solely was certainly not appropriate, it needed to go through the proper process and that's what we're still waiting to do. (emphasis added)
(i)Mr Marlborough then gave this evidence:
But it didn't go so far as him saying 'would you please appoint Beryle Morgan'?---I don't remember the exact details of it, of the conversations we had, other than to repeat in whatever form of words Mr Burke may have used my intention was to always take this through the proper process, to look at each on its merits and to apply proper standards to outcomes. At the end of the day all I can do is to take names forward to Cabinet and at the end of the day Cabinet make the decision [165]. (emphasis added)
In Marlborough, I said (Mazza J agreeing):
It is apparent that [Mr Marlborough's] references to going through a 'process' and going through the 'proper process' or 'proper processes' included, relevantly, [Mr Marlborough], in his capacity as the responsible Minister, making a recommendation to Cabinet for approval of the appointment of Mrs Morgan as a member of the board.
The distinction between [Mr Marlborough] making a recommendation to Cabinet that it approve the appointment by [Mr Marlborough], as the responsible Minister, of Mrs Morgan on the one hand, and [Mr Marlborough] appointing Mrs Morgan without Cabinet approval or appointing her whether or not Cabinet gave its approval on the other, appears not to have been appreciated by the Commission. The distinction was, in substance, referred to by [Mr Marlborough] in his evidence before the Commission, but was not taken up or pursued by counsel assisting [166] ‑ [167].
My conclusion (Mazza J agreeing) in Marlborough was that a fair reading of Mr Marlborough's evidence as a whole before the Commission (in particular, the relevant features set out at [118] above) revealed that his evidence was not, objectively, false or misleading as alleged in the count. The critical points were that:
(a)on a fair reading of the transcripts of the intercepted telephone conversations as a whole, Mr Burke asked Mr Marlborough, relevantly and in substance, to make a recommendation to Cabinet that it approve the appointment by Mr Marlborough, as the responsible Minister, of Mrs Morgan; and
(b)on a fair reading of Mr Marlborough's evidence as a whole before the Commission, his evidence reflected, relevantly and in substance, Mr Burke's request [168].
Accordingly, the only decision reasonably open on the count as formulated in the indictment, and on the State's case as run at the trial, was that Mr Marlborough's evidence before the Commission was not relevantly false or misleading as alleged in the count. The jury should necessarily have entertained a reasonable doubt as to his guilt [169].
In Marlborough, Martin CJ was of the view that Mr Marlborough's evidence during his examination before the Commission was ambiguous, and that the ambiguity was not addressed at the trial by the State or Mr Marlborough, or by the trial judge [46]. His Honour concluded that, notwithstanding this ambiguity, there was evidence capable of satisfying a properly instructed jury beyond reasonable doubt that Mr Marlborough knew facts which rendered his testimony false or misleading in each of the meanings which, in his Honour's view, the testimony was capable of conveying [49].
I decided (Mazza J agreeing) in Marlborough that, on the assumption that Martin CJ's analysis was correct, it would not be just to order a new trial [175] ‑ [180].

Ground 1 (as amended) of the appeal to this court: its merits

I have set out at [88] ‑ [95] above the elements of the offence alleged in the charge on which Mr Burke was convicted.
There is no doubt that Mr Burke gave evidence at an examination before the Commission. The Commission proved the first element of the charge.
If Mr Burke gave evidence as alleged in the charge and if the evidence was false, then, in my opinion, his evidence was false 'in a material particular'. The evidence in question was material to the Commission's investigation in that it was relevant to whether Mr Burke had or may have intended improperly to influence any public officer (including Mr Marlborough) to engage in misconduct in the performance of his or her duties by conferring a benefit on Mrs Morgan in exchange for her assistance with the obtaining of requisite approvals to the proposed residential and tourism development at Smiths Beach in Yallingup. As to the issue of 'materiality', see R v Davies (1974) 7 SASR 375, 387 ‑ 399 (Wells J); R v Traino (1987) 45 SASR 473, 478 (King CJ), 479 ‑ 481 (Jacobs J); Stanton v Abernathy (1990) 19 NSWLR 656, 662, 665 ‑ 667 (Gleeson CJ, Priestley & Meagher JJA agreeing). On the assumptions I have mentioned, the Commission proved the fifth element of the charge.
The fourth element of the charge, namely, that when the evidence in question was given Mr Burke knew that it was false, involved not only an assessment of the intercepted telephone conversations between Mr Burke and each of Mrs Morgan, Mr Marlborough and Mr Grill (the conversations with Mrs Morgan and Mr Grill being of contextual relevance only), and Mr Burke's evidence before the Commission, but also an assessment of the credibility of Mr Burke's evidence at the trial and the plausibility of his assertions that he did not knowingly give evidence before the Commission that was false. All of these matters had to be evaluated by the magistrate, as the tribunal of fact, in the course of deciding whether the Commission had proved the fourth element.
The second and third elements of the charge raise for consideration issues of a different character. They involve an analysis, on an objective basis, of the intercepted telephone conversations between Mr Burke and each of Mrs Morgan, Mr Marlborough and Mr Grill (the conversations with Mrs Morgan and Mr Grill being of contextual relevance only), and Mr Burke's evidence before the Commission. See, generally, the approach and observations of Gleeson CJ in Stanton (661 ‑ 663).
In my opinion, on a fair reading of the transcripts of the intercepted telephone conversations between Mr Burke and Mr Marlborough as a whole, in the relevant context:
(a)Mr Burke asked (that is, requested) Mr Marlborough, relevantly:
(i)to make a recommendation to Cabinet that it approve the appointment by Mr Marlborough, as the responsible Minister, of Mrs Morgan as a member of the South West Development Commission; and
(ii)(if Cabinet approved the appointment), to appoint Mrs Morgan as a member of that Commission; and
(b)Mr Burke did not ask (that is, request) Mr Marlborough to appoint Mrs Morgan without the approval of Cabinet or to appoint her irrespective of whether Cabinet approved her appointment or not.

Ground 3 (as amended) of the appeal to this court: the magistrate's finding in relation to the alleged 'unrelated question' and Mr Burke's answer to it

The magistrate's finding in relation to the alleged 'unrelated question' and Mr Burke's answer to it was as follows:
The answers at lines 55 and 56 were, having regard to the intercept material, clearly false. The only issue is whether the accused knew it to be false when he gave the answer. I don't accept the accused's evidence that he thought he was asked whether he improperly asked Mr Marlborough to appoint Beryle Morgan to the South West Regional Planning Commission [sic]. The question was quite clear, as indeed was the accused's answer. The falsity of his evidence is demonstrated by the answer he gave to an earlier question at transcript page 953, line 48. He was asked, 'Did you speak to Mr Marlborough about it?' meaning the appointment of Beryle Morgan, to which the accused said, 'I may have. I don't recollect it.'
Given the number of times the accused has raised with Mr Marlborough the appointment of Beryle Morgan and the manner and persistence with which the accused pursued the issue on the phone with Mr Marlborough in the months of August and September 2006, it is not, in my view, possible to accept the accused did not recollect speaking with Mr Marlborough about it. This answer was untrue. It clearly demonstrates the accused's unwillingness to give truthful evidence of his involvement in attempting to persuade Mr Marlborough to appoint Beryle Morgan.
After the accused gave evidence on 6 November he told Mr Marlborough in a recorded telephone conversation, exhibit 6, tab 33, 'They asked me whether I asked you about the appointment of Beryle Morgan and I sort of said I might have. I mean, I think I did a few times remind you of it.' There is no mention by the accused in that conversation with Mr Marlborough of being questioned about whether he improperly asked Mr Marlborough to appoint Beryle Morgan.
Having regard to the number of telephone calls the accused had with Mr Marlborough and Mr Grill about Beryle Morgan and their proximity to when the accused gave evidence to the CCC, I am satisfied beyond a reasonable doubt that the only reasonable inference is that the accused knew when he was questioned by the CCC on 6 November that he had asked Mr Marlborough to appoint Beryle Morgan and that he knew the answer he gave, namely, that he had not asked Mr Marlborough to appoint Beryle Morgan, was false and misleading. It follows the accused will be convicted on charge 5 (1/4/10: ts 29 ‑ 30).

Ground 3 (as amended) of the appeal to this court: its merits

I will deal, in turn, with each of the particulars of ground 3 (as amended).
As to particular (a), it is correct that Mr Burke gave evidence at trial to the effect that he understood the critical question to be whether he had asked Mr Marlborough to appoint Mrs Morgan to the South West Development Commission as an improper favour to him. See [53] ‑ [54] above.
As to particular (b), in my opinion the magistrate did give reasons as to why Mr Burke's evidence on this point was not accepted.
In Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167, McHugh J (Mason CJ, Deane, Dawson & Gaudron JJ agreeing) referred to the subtle influence of a witness's demeanour on a tribunal of fact's determination of matters of credibility:
[W]hen a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his or her determination cannot be overlooked. It does not follow that, because her Honour made no express reference to the demeanour or credibility of either Professor Ferguson or Mrs Archer, demeanour or credibility played no part in her findings on the supervision issue (179).
In Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405, McHugh J said that a finding by a tribunal of fact as to whether a party should be believed in his or her claim is 'a finding on credibility which is the function of the primary decision maker par excellence' [67]. His Honour added:
If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word 'implausible'. The disbelief arose from the Tribunal's view that it was inherently unlikely that the events had occurred as alleged [67].
Jenkins J set out her understanding of the magistrate's reasons for finding that Mr Burke's answer to the critical question was knowingly false. Her Honour said:
On my understanding of the magistrate's reasons, he gave a number of reasons for finding that the crucial evidence given by [Mr Burke] was knowingly false. These were:
1.The crucial question was 'quite clear';
2.[Mr Burke's] answer was also 'quite clear';
3.[Mr Burke] gave another false answer in respect to his dealings with Mr Marlborough about Ms Morgan's appointment to the SWDC board. This indicated an unwillingness on the part of [Mr Burke] to give truthful evidence concerning his involvement in attempting to persuade Mr Marlborough to appoint Ms Morgan;
4.In [Mr Burke's] telephone conversation on the evening on 6 November 2006 with Mr Marlborough, and when discussing the relevant questioning in the Commission that day, [Mr Burke] did not suggest to Mr Marlborough that he had been questioned about whether he had improperly asked Mr Marlborough to appoint Ms Morgan;
5.The number of telephone calls [Mr Burke] had with Mr Marlborough and Mr Grill about Ms Morgan; and
6.The proximity of those telephone calls to [Mr Burke's] evidence the subject of the charge [116].
I agree with Jenkins J's analysis of the magistrate's reasons on this point. The magistrate's reasons, as explained by Jenkins J, necessarily involved rejection of Mr Burke's evidence at trial that he understood the critical question to be whether he had asked Mr Marlborough to appoint Mrs Morgan as an improper favour to him. The reasons given formed the rationale for the rejection of that evidence.
As to particular (c), I will commence by examining the so‑called rule in Browne v Dunn (1893) 6 R 67 HL.
In Browne v Dunn Lord Herschell LC said:
Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross‑examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice or in the conduct of a case, but is essential to fair play and fair dealing with witnesses (70 ‑ 71).
His Lordship then elaborated:
Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted (71). (emphasis added).
See also the observations of Lord Halsbury (76 ‑ 77).
The rule in Browne v Dunncomprises two limbs. The first limb is that, unless notice has already clearly been given of the party's or cross‑examiner's intention to rely upon such matters, a party or cross‑examiner who intends to invite the court to disbelieve an opposing witness must put to the witness in cross‑examination the grounds upon which the evidence is to be disbelieved. The second limb is that, unless notice has already clearly been given of the party's or cross‑examiner's intention to rely upon such matters, a party or cross‑examiner must put to an opposing witness in cross‑examination the nature of the case upon which it is intended to rely in contradiction of the witness's evidence, especially where that case relies upon inferences to be drawn from other evidence. See Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1; (1983) 70 FLR 447, 16, 18, 26 (Hunt J); Village Cay Marina Ltd v Acland [1998] BCC 417, 426 (Lord Hoffman, Lord Lloyd of Berwick, Lord Nolan, Lord Hope of Craighead & Sir Andrew Legatt agreeing); Williams v Dawson [2000] WASCA 205; (2000) 31 MVR 559 [32] (Parker J, Kennedy & Wheeler JJ agreeing); Merrey v The State of Western Australia [2010] WASCA 62 [9] ‑ [11] (McLure P, Owen JA & Jenkins J agreeing); Bale v Mills [2011] NSWCA 226; (2011) 282 ALR 336 [42] ‑ [48] (Allsop P, Giles JA & Tobias AJA).
The policy rationale that underpins the rule in Browne v Dunn is the securing of fairness in the conduct of adversarial proceedings. See R v Birks (1990) 19 NSWLR 677, 688 (Gleeson CJ, McInerney JJ agreeing); Adamson v Ede [2009] NSWCA 379 [56] ‑ [62] (Campbell JA, Giles & Hodgson JJA agreeing); Chanaa v Zarour [2011] NSWCA 199 [13] (Campbell JA, Bathurst CJ & Tobias AJA agreeing). The first limb is concerned with achieving fairness to witnesses and a fair trial between the parties. The second limb is concerned with the weight or cogency of evidence. See Bulstrode v Trimble [1970] VR 840, 846 ‑ 848 (Newton J); Allied Pastoral Holdings (18). The rule facilitates a court's assessment of the reliability and accuracy of the witnesses. See Rees v Bailey Aluminium Products Pty Ltd [2008] VSCA 244; (2008) 21 VR 478 [21] (Ashley & Redlich JJA and Coghlan AJA).
The rule in Browne v Dunn is not absolute. It must be applied with flexibility. In R v Birks, Gleeson CJ emphasised:
It is plain that their Lordships [in Browne v Dunn], whilst recognising and affirming a rule of practice in the terms in which they expressed themselves, also recognised the need for flexibility in its application. That need arises from the very nature of the subject matter which it concerns. The central purpose of the rule is to secure fairness in the conduct of adversary proceedings. That consideration provides the best guide, both to the practical requirements of the rule in a given case, and to the consequences which may properly flow from its non‑observance, including the remedies that are available to deal with a problem so created (688).
The first limb does not apply where the witness is clearly on notice of the other party's or cross‑examiner's intention to invite the court to disbelieve the witness and the witness is also clearly on notice as to the grounds upon which it will be contended that his or her evidence should be disbelieved. The second limb does not apply where the witness is clearly on notice as to the nature of the case upon which it is intended to rely in contradiction of the witness's evidence.
Ordinarily, it may be assumed that where a witness is not cross‑examined on a particular issue, his or her evidence on that issue is not in contest. However, as Mahoney JA observed in Seymour v Australian Broadcasting Commission (1990) 19 NSWLR 219:
But the circumstances of the particular case may negative such an assumption. Whether it is right to make such an assumption will depend upon, for example, whether counsel has at the time, given an adequate reason for not cross‑examining the witness or otherwise made it clear that it is not a proper case in which to make that assumption: ibid at 71 per Lord Herschell LC [in Browne v Dunn] …
Similarly, failure to cross‑examine a witness may not found such an assumption or render the course of the trial unfair if it is clear from the manner in which generally the case has been conducted that his evidence will be contested. This was pointed out by Lord Herschell (at 71). The nature of the defendant's case and the particulars given, and otherwise the conduct of it may make it sufficiently clear that such an assumption is unwarranted and that there has been no surprise or prejudice concerning the matter (236).
See also Lazarevic v The State of Western Australia [2007] WASCA 156 [17] (McLure JA, Wheeler JA & EM Heenan AJA agreeing); Adamson [62].
It will often be apparent from the nature of or the issues in a case, as defined by the originating process, other documents filed with the court or the submissions of counsel, that the general credibility of a witness, or the credibility of a witness on a particular matter, is in dispute.
In Thomas v Van Den Yssel (1976) 14 SASR 205, Bray CJ (Jacobs & King JJ agreeing) said in relation to the general credibility of a witness:
[The] principles [in Browne v Dunn] cannot … be applied without qualification to a challenge to the witness's credit generally … [I]n many … cases the witness must know that the other side will contend that he is not telling the truth, and even in some cases that he is deliberately not telling the truth. I cannot assent to the proposition that counsel cannot argue or the court find that a witness is deliberately giving false evidence unless the witness is asked some such question as, 'I put it to you that your evidence is false', or 'I suggest that that is a deliberate lie' or the like (207).
See also Martin v Rowling [2005] QCA 128 [11] (McMurdo P); Lazarevic [18] ‑ [20] (McLure JA, Wheeler JA & EM Heenan AJA agreeing).
Ordinarily, it will not be necessary to put to a party to proceedings a matter which is clearly in issue in the case. See Stern v National Australia Bank Ltd [2000] FCA 294; (2000) 171 ALR 192 [42] (Hill, O'Connor & Moore JJ).
Browne v Dunn involved civil litigation. The plaintiff brought an action for defamation. There was a trial before a judge and jury. None of the witnesses was cross‑examined on the point in question.
Although it has been held that the rule in Browne v Dunn also applies in criminal proceedings, the rule must be applied with considerable care and circumspection in a criminal context, especially where the defence case has not been adequately put to the complainant or another prosecution witness. The rule does not apply in the same manner or with the same consequences as in civil litigation. See MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 [18] (Gleeson CJ & Heydon J), [40] ‑ [41] (Gummow, Kirby & Callinan JJ); R vCoswello [2009] VSCA 300 [7] (Nettle JA).
The rule applies not only in criminal trials on indictment, but also in summary proceedings in the Magistrates Court. See s 30 of the Magistrates Court Act 2004 (WA); Bennett v Carruthers [2010] WASCA 131 [49] (Mazza J, McLure P & Newnes JA agreeing) and the cases there cited.
Where the rule in Browne v Dunn has been breached in a criminal trial, the manner in which the breach should be remedied will depend on the nature and extent of the breach and the particular facts and circumstances generally. See R v Foley [1998] QCA 225; [2000] 1 Qd R 290, 291 ‑ 292 (de Jersey CJ, Thomas JA & Derrington J); R v Ferguson [2009] VSCA 198; (2009) 24 VR 581 [276] ‑ [278] (Maxwell P, Buchanan & Weinberg JJA); R v Morrow [2009] VSCA 291; (2009) 26 VR 526 [3] ‑ [6] (Nettle JA), [56] ‑ [66] (Redlich JA, Lasry AJA agreeing).
Where the rule has been breached, and the tribunal of fact is a judge or a magistrate, there is no requirement that the court must accept or cannot reject evidence that has not been the subject of cross‑examination. A failure to cross‑examine a witness on a point does not mean that any evidence adduced in contradiction cannot be taken into account. The failure to cross‑examine is merely a relevant factor to be evaluated and weighed, together with all other relevant factors in the case, in deciding whether to accept or reject the witness's evidence on the point. This is especially the case where the evidence in question is contradicted by other evidence. See R v Jawke 1957 (2) SA 187 (ED), 189 ‑ 190 (van der Riet J, Jennett J agreeing); Dunn v Maritime Services Board [1998] NSWCA 72, 5 (Stein JA, Priestley & Powell JJA agreeing); Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 [14] (Redlich JA & Beach AJA); Morrow [59] (Redlich JA, Lasry AJA agreeing, Nettle JA relevantly agreeing). There may, however, be cases where, in the circumstances in which the trial was conducted and in the context of the other evidence, the appropriate finding of fact, where the rule has been infringed, will be to accept the evidence which was not the subject of cross‑examination. See Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362, 370 ‑ 371 (Gibbs J, Stephen J agreeing, Murphy J generally agreeing); Williams [38] (Parker J, Kennedy & Wheeler JJ agreeing).
Ordinarily, a trial judge or a magistrate is not required to put to a witness that the judge or the magistrate might make unfavourable findings in relation to the witness's credibility either on the basis of his or her demeanour or on any other basis. See MZWIQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1636 [13] (Heerey J); Piras v Egan [2008] NSWCA 59 [3] (Giles JA, Tobias JA relevantly agreeing); Adamson [115] ‑ [119] (Campbell JA, Giles & Hodgson JJA agreeing).
In the present case, as I have mentioned, the prosecutor did not put to Mr Burke in cross‑examination that his answer to the alleged 'unrelated question' was false or knowingly false. Also, as I have mentioned, the prosecutor did not submit to the magistrate in his closing address (or at any other time) that his Honour should find that the answer was false or knowingly false.
Jenkins J decided that the magistrate's reliance, in part, on his finding that Mr Burke's answer to the alleged 'unrelated question' was knowingly false, in concluding that the prosecution had proved beyond reasonable doubt that Mr Burke had given knowingly false evidence before the Commission, did not vitiate the magistrate's conclusion or his reasoning in relation to that conclusion. Her Honour said:
As to the magistrate's reliance, in part, on the falsity of a previous answer, it is correct to say that it was not directly put to [Mr Burke] that he had lied in his answer when he was asked whether he had spoken to Mr Marlborough about Ms Morgan's application. However, the segment of evidence immediately before and after the crucial evidence, its meaning and its significance was clearly a live issue at the trial before the magistrate. [Mr Burke] was aware of that and he had ample opportunity to give any explanation he wished about his answers during that part of the evidence before the respondent.
In any event, as I have stated previously, the appellant does not assert that the crucial evidence was not knowingly false because at the time he gave the crucial evidence he did not recollect speaking to Mr Marlborough about Ms Morgan's application. At the hearing of the appeal, no attempt was made by [Mr Burke] to explain why the magistrate's finding in regard to the earlier question and answer was wrong, other than to say that the appellant did not recall the details of his conversations with Mr Marlborough about Ms Morgan. Given that [Mr Burke] at trial did not testify that when he was examined on 6 November 2006 he did not recall having conversations with Mr Marlborough about Ms Morgan's application, I cannot think of any other explanation for the earlier answer given by [Mr Burke] other than the one arrived at by the magistrate. That is, that the answer was false. In my view, even if it could be said that there was a miscarriage of justice because [Mr Burke] did not have an opportunity to answer such an allegation, there was no substantial miscarriage of justice which would warrant the appeal being allowed: Criminal Appeals Act s 14(2) [121] ‑ [122].

I agree with Jenkins J's decision on this point. My reasons are as follows.
First, the charge on which Mr Burke was convicted alleged, in substance, that Mr Burke knowingly gave false or misleading evidence to the Commission that he had not asked Mr Marlborough to appoint Mrs Morgan to the South West Development Commission. The other charges on which Mr Burke was acquitted also alleged that he had given knowingly false or misleading evidence to the Commission in relation to specified matters. The specified matter, the subject of charge 2, alleged that Mr Burke had given false or misleading evidence that 'he had not had, or did not recall having, specific views about whether the South‑West Regional Planning Committee should defer consideration of an amendment to the Busselton Town Planning Scheme, namely Amendment 92, in May 2006'. In my opinion, at all material times it was manifest that Mr Burke's credibility in relation to the matter specified in each charge and, also, his credibility in general, both before the Commission and at the trial, were of critical importance in relation to the magistrate's fact‑finding (in particular, whether Mr Burke had given knowingly false evidence, as alleged). This must have been appreciated by Mr Burke and his experienced senior counsel.
Secondly, in relation to charge 2, Mr Burke gave sworn evidence at the trial that his professed inability to recall in relation to this matter was genuine. His explanation for his absence of recollection included:
(a)between May and August 2006 he was 'very, very busy' (4/3/10: ts 37);
(b)between May and August 2006 he was involved in the businesses of approximately 40 to 50 clients (4/3/10: ts 37);
(c)in May 2006 he was not in 'terrific shape' physically, although he was not unwell (4/3/10: ts 37 ‑ 38);
(d)during the year preceding his examination, Mr Burke estimated that he made 35,000 telephone calls (4/3/10: ts 63, 5/3/10: ts 12; 1/4/10: ts 18);
(e)when he was summoned to give evidence before the Commission, he did not have an understanding as to the matters that were to be the subject of his examination, 'except in the very broadest sense' (4/3/10: ts 38); and
(f)when he was giving evidence to the Commission, he was not given 'any prompt as to what they might remember or any other detail' and 'they weren't interested' in giving him 'even a minimal prod' to assist him 'to recall some good detail' (4/3/10: ts 61).
Thirdly, as I have mentioned, the alleged 'unrelated question' and Mr Burke's answer occurred only a few seconds before Mr Burke was asked and answered the critical question. Also, as I have mentioned, the prosecutor read, on three occasions at the trial, an extract from Mr Burke's examination before the Commission which included the alleged 'unrelated question' and answer and the critical question and answer. The whole of the extract (in particular, the alleged 'unrelated question' and answer) were plainly relevant in determining whether Mr Burke's answer to the critical question was knowingly false. Mr Burke claimed, in his answer to the alleged 'unrelated question', that he may have spoken to Mr Marlborough about Mrs Morgan's application, but he did not have any recollection of speaking to Mr Marlborough about it. This professed lack of recollection also permeated, to some extent, Mr Burke's answer to the critical question. He said, in substance, that it was not possible that he had asked Mr Marlborough to appoint Mrs Morgan: he 'wouldn't have done that' because he 'wouldn't have thought that was the right thing to do' (emphasis added). Mr Burke's answer to the critical question was, in part, premised on his professed lack of recollection of having spoken to Mr Marlborough about Mrs Morgan's application.
Fourthly, Mr Burke did not expressly assert in evidence at the trial, and his counsel did not submit to the magistrate, that Mr Burke's answer to the critical question was not knowingly false in that when he gave the answer he did not recollect having spoken to Mr Marlborough about Mrs Morgan's application.
Fifthly, the magistrate did not, in the present case, have to decide between competing versions of evidence. The focus was on Mr Burke's credibility.
Sixthly, the magistrate's reasoning in support of his conclusion that Mr Burke had given a knowingly false answer to the alleged 'unrelated question' was compelling. See [169] above. His Honour found, in substance, that Mr Burke's professed absence of any recollection of speaking to Mr Marlborough about Mrs Morgan's application was not genuine. His Honour necessarily rejected, by implication, that there might be a reasonable explanation for Mr Burke's professed absence of recollection; for example, that there was a reasonable possibility (that could not be excluded) that his alleged absence of recollection might be explained by one or more of the matters raised by him in the context of charge 2. See [198] above. No other explanation was suggested, either before Jenkins J or this court, for Mr Burke's inability to recall. In the circumstances, if the prosecutor had put to Mr Burke that his professed

absence of recollection was not genuine, there is no reasonable basis for supposing that Mr Burke's response would have been other than a bare denial or an explanation by reference to the matters relied on in the context of charge 2. The magistrate was entitled to conclude that Mr Burke gave a knowingly false answer to the alleged 'unrelated question'. Indeed, in the circumstances, this was the only conclusion reasonably open on the evidence, after taking into account the prosecutor's failure to cross‑examine Mr Burke on his alleged lack of recollection.

Finally, as to particular (c), the magistrate did not err in deciding that he was satisfied beyond reasonable doubt of Mr Burke's guilt. His Honour was entitled to conclude that the only reasonable or rational inference that could be drawn from his other findings, and the evidence as a whole, was that Mr Burke gave knowingly false evidence in response to the critical question. His Honour gave adequate reasons for the verdict of guilty. See [57], [59] ‑ [61], [169], [175] ‑ [176] above. For the reasons I have given, he was entitled to rely, in part, on his finding that Mr Burke's answer to the alleged 'unrelated question' was knowingly false. There was no material error in his Honour's fact‑finding process, and he did not fail to use or palpably misuse his advantage as the trial court.
I am satisfied that no substantial miscarriage of justice occurred as a result of the matters complained of in ground 3 (as amended).
Ground 3 (as amended) of the appeal to this court fails.

Conclusion

I would grant leave to appeal on amended grounds 1, 2 and 3 but, for the reasons I have given, the appeal should be dismissed.
MAZZA JA: I agree with Buss JA.