Burke v Corruption and Crime Commission - [2010] WASC 283

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: BURKE -v- CORRUPTION AND CRIME COMMISSION [2010] WASC 283

CORAM: JENKINS J

HEARD: 26 JULY 2010

DELIVERED : 22 OCTOBER 2010

FILE NO/S: SJA 1041 of 2010

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

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE M G J BAYLY
File No  :PE 66104 of 2008

Catchwords:

Criminal law - Appeal against conviction - Giving false testimony to Corruption and Crime Commission - Meaning conveyed by the crucial question - Whether the magistrate erred in law by failing to determine the meaning of the crucial question, having regard to its context - Whether it was open to the magistrate to find that the evidence in question was false and the appellant knew it to be false

Legislation:

Corruption and Crime Commission Act 2003 (WA), s 7B(3), s 168
Criminal Appeals Act 2004 (WA) s 14(2), s 14(3)
Local Government Act 1995 (WA)
Regional Development Commissions Act 1993 (WA)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr G R Donaldson SC & Mr S J Lemonis
Respondent: Mr J Mactaggart

Solicitors:

Appellant: Fairweather & Lemonis
Respondent: Director of Public Prosecutions (WA)

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

Ingham v McKenzie [2009] WASC 351
MacKenzie v The Queen [1966] HCA 35; (1996) 190 CLR 348
Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234

JENKINS J: This is an appeal from the appellant's conviction in the Magistrates Court at Perth on 1 April 2010 of giving false evidence at an examination before the respondent. In summary, the appellant's evidence which was said to be false was that he (the appellant) had not asked Mr Marlborough, then a Minister in the Western Australian Government, to appoint Beryle Morgan to the board of the South West Development Commission (SWDC) (the crucial evidence).

Grounds of appeal

On 10 May 2010 I ordered that the application for leave to appeal be heard at the same time as the appeal. The three grounds of appeal relied on by the appellant are:
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] WASC 283
Decision Date: 22 OCTOBER 2010

CaseChat Overview and Summary

In the case of Burke v Corruption and Crime Commission, the appellant sought to appeal a conviction for providing false testimony to the Corruption and Crime Commission. The dispute revolved around the interpretation of a crucial question posed to the appellant and the subsequent response provided, which was deemed to be false. The matter was heard in the Court of Appeal, which was tasked with determining whether the magistrate had erred in law by not properly addressing the meaning of the crucial question in its context. Additionally, the court had to assess whether it was open to the magistrate to conclude that the evidence in question was false and that the appellant was aware of this falsity.

The primary legal issues that the court needed to decide involved the interpretation of the crucial question and the appellant's understanding of its meaning. The court had to consider whether the magistrate's failure to adequately explore the meaning of the crucial question constituted an error of law. Furthermore, the court needed to determine if the magistrate was justified in finding that the appellant knowingly provided false testimony.

The court held that the magistrate did not err in law by not determining the precise meaning of the crucial question, as it was clear that the appellant's response was false and that this was known to the appellant. The court emphasised that the focus should be on whether the appellant intentionally provided false testimony, rather than on the exact meaning of the question. The court concluded that the magistrate's decision was open to them, given the evidence presented, and that there was no error in law that warranted an appeal. Consequently, the conviction was upheld.

As a result of the court's determination, the appeal was dismissed, and the original conviction remained in place. The court's decision underscored the importance of establishing the intent behind providing false testimony, rather than focusing on the precise interpretation of the question asked.

Orders