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
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- Case
- [2012] WASCA 49
- Decision Date
CaseChat Overview and Summary
The Court examined the elements of the offence and the interpretation of the question and answer. The Court found that the meaning of the question and answer was determined by what the words would convey to a reasonably well-informed listener, rather than the appellant's understanding of the question. The Court also found that the magistrate did not err in finding that the appellant's answer was knowingly false. In relation to the rule in Browne v Dunn, the Court found that the magistrate's reliance on the unrelated question did not vitiate the overall conclusion.
The Court found that the magistrate's reasons for finding that Burke's answer to the critical question was knowingly false were valid. The Court held that the magistrate's reasons necessarily involved the rejection of Burke's evidence that he understood the critical question to be whether he had asked Marlborough to appoint Mrs Morgan as an improper favour to him. The Court also found that the magistrate's reliance on the unrelated question did not vitiate the overall conclusion.
The Court dismissed the appeal and affirmed Burke's conviction.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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).