Burke v Corruption and Crime Commission
[2010] WASC 283
•22 OCTOBER 2010
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 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.
There are some ambiguities in the grounds of appeal which were clarified during the course of counsel's oral submissions.
Details of charges and proceedings
The prosecution notice alleged that on 6 November 2006 at Perth the appellant:
At 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.
This is an offence contrary to the Corruption and Crime Commission Act 2003 (WA) (the CCC Act), s 168.
The appellant pleaded not guilty to the charge and four other charges under the same provision. His trial took place between 2 ‑ 8 March 2010. At the conclusion of the evidence, the magistrate reserved his decision. On 1 April 2010 the magistrate delivered his oral reasons for finding the appellant guilty of this offence and not guilty of the four other charges. There is no appeal against the penalty imposed for the offence.
Background
At trial, there was uncontested evidence that the SWDC is a body established by the Regional Development Commissions Act 1993 (WA). It has a board of management which performs its functions. Three of the board members are appointed at the discretion of the relevant government minister. In 2006 the relevant Minister was Norman Marlborough, a close friend of the appellant.
Ms Morgan had been appointed to the SWDC board in September 1998 and had resigned during the same year. She had applied to be reappointed to the SWDC board in 2005 and 2006.
In 2005 and 2006 the appellant and Julian Grill operated a consultancy business. The appellant was a consultant to Canal Rocks Pty Ltd which was seeking approval to develop a parcel of land at Smiths Beach, near Yallingup. The managing director of Canal Rocks Pty Ltd was David McKenzie. When Ms Morgan had unsuccessfully sought election as a National Party member of the Parliament of Western Australia in 2005, Mr McKenzie had assisted in the funding of her electoral campaign. Ms Morgan is a former Busselton Shire president. She was generally supportive of a development at Smiths Beach (exhibit 6, tab 32, ts 951).
In a 12‑month period from early 2006 through to early 2007 the respondent legally intercepted telephone conversations which were made or received by the appellant on his home phone and his mobile phone. Approximately 35,000 telephone sessions were intercepted, although some of these were duplicated. Telephone sessions included telephone calls, outward and inward, SMS messages and the retrieval of messages. The proposed development of Smiths Beach was only one of many matters about which the appellant received and made telephone calls.
In July 2005, after he met Ms Morgan at the office of Canal Rocks Pty Ltd, the appellant received an email from Ms Morgan. In it she told him that she was applying for a position on the SWDC board. She asked the appellant whether he had any 'tips' for her in respect of her application. At that time Mr Marlborough was not the Minister responsible for the appointment of members of the SWDC board but he was a member of the Parliament of Western Australia. The appellant replied by email and wrote 'I will have a word to one or two people'. The appellant then forwarded the email chain to Mr Grill and Mr McKenzie. He told them that he had spoken to Mr Marlborough about Ms Morgan's application and 'would appreciate' them doing so too. He wrote of a 'good selling point' of the application, thus indicating that he supported it. Ms Morgan's 2005 application was unsuccessful.
In 2006, Ms Morgan spoke to the appellant and told him that she was reapplying to be appointed a member of the SWDC board. She asked him for his advice as to how she could improve her chances of appointment.
On 28 July 2006 Ms Morgan telephoned the appellant and asked him some questions about the process of a ministerial appointment to the SWDC. Ms Morgan told the appellant that the last time she applied she had not even received a response to her application but because there was a new responsible minister, Mr Marlborough, she was going to try again. The following exchange then occurred between Ms Morgan and the appellant:
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.
After the parties to the conversation exchanged farewells, the appellant said:
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, tab 25, page 76 ‑ 77).
On 28 July 2006 Ms Morgan emailed a copy of her application and resume to the appellant. The email thanked the appellant for his support. Later that day the appellant emailed Ms Morgan and said: 'I'll make appropriate representations' (exhibit 14).
On 9 August 2006 the appellant telephoned Mr Marlborough. The conversation took approximately 16 minutes. Part of that conversation was as follows:
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 (exhibit 6, tab 26, page 78).
There was then conversation concerning another candidate for the SWDC board who Mr Marlborough was being asked to appoint by someone else. The appellant used irony as a means of telling Mr Marlborough that Mr Marlborough owed loyalty to him (the appellant) rather than to that other person. The conversation continued:
BURKE: Well, mate, it
MARLBOROUGH: No, no, no. That'll be fine, Brian.
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.
MARLBOROUGH: What's, what Cloughie's rang me is that the woman who's up for re-election is a woman and she's in charge of the Chamber of Communists or something down there and, uh, he's rang me on her behalf to reappoint her, you see.
BURKE: Yeah. Well, fuck him, mate.
MARLBOROUGH: Mm. Mm.
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.
BURKE: Hates him.
MARLBOROUGH: Mm. Mm.
BURKE: 'Cos Buswell beat her in the election, remember that?
MARLBOROUGH: Yeah.
BURKE: Hates him.
MARLBOROUGH: Yeah (exhibit 6, tab 26, pages 79 ‑ 80).
On 17 August 2006 Mr Marlborough telephoned the appellant. During a lengthy conversation the appellant asked Mr Marlborough whether he had 'fixed up' Ms Morgan. Mr Marlborough told the appellant that 'that's on the way to being fixed' (exhibit 6, tab 27).
On 21 August 2006, in another telephone conversation between the appellant and Mr Marlborough, the appellant asked Mr Marlborough how they were 'gunna go' with Ms Morgan. Mr Marlborough expressed concerns about Ms Morgan's suitability for appointment because of things other people had said to him about her. The appellant reassured Mr Marlborough that Ms Morgan did not have the characteristics that others were telling Mr Marlborough she had and told him to ignore her detractors. The conversation continued:
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: But it's not only that mate. She hates Buswell.
MARLBOROUGH: (laughs) Oh, but, but do we hate him. You know how we operate, mate. Do we hate him.
BURKE: Well, at the moment we do.
MARLBOROUGH: (laughs)
BURKE: You going home now?
MARLBOROUGH: No, I'm going down to Woodside, or to Rio, I should say. Got a meeting.
BURKE: Alright mate. Listen, don't let 'em talk. I want that mate. Don't let 'em talk you out of it.
MARLBOROUGH: (coughs) Yeah, you there?
BURKE: Aye?
MARLBOROUGH: You there? Yeah.
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. Her and her mate, … . They're both 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
…
BURKE: Mate, trust me, she's, she is very good for you.
MARLBOROUGH: Yeah, no, no, no, no, no, I'm happy.
BURKE: She'll watch your back at every turn of the clock.
(exhibit 6, tab 28, pages 83 ‑ 84).
On 24 August 2006 the appellant and Mr Grill had a telephone conversation in which Mr Grill expressed concern that he had asked Mr Marlborough to appoint another person to the SWDC board and despite Mr Marlborough giving him the impression that the appointment would be made, he was now saying that it would not occur. The appellant said:
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 [sic] 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, tab 29, pages 87 ‑ 89)
On the same date the appellant spoke by telephone with Mr Marlborough. He (the appellant) briefly explained to him that Mr Grill accepted that his nominee would not be appointed because Mr Marlborough had to nominate a woman.
On 26 August 2006 the appellant and Mr Marlborough had another conversation, in which they referred to the appellant's conversation with Mr Grill about his nominee. The appellant told Mr Marlborough that he had told Mr Grill that Mr Marlborough wanted to appoint a woman to the SWDC board and that Mr Marlborough had asked him (the appellant) and he had recommended the appointment of Ms Morgan. The appellant told Mr Marlborough that he had told Mr Grill that he understood that the appointment had to be a woman because of the 'affirmative action rules' (exhibit 6, tab 35, pages 162 ‑ 163). Nowhere else in the evidence was it suggested that Mr Marlborough had approached the appellant about a suitable appointment to the SWDC board.
On 12 September 2006 the appellant and Mr Marlborough had a telephone conversation in which the appellant asked Mr Marlborough whether he had completed his appointments to the SWDC board. Mr Marlborough told him he had not done so because he was trying to finalise the position of chairperson. They discussed a candidate for that position. The appellant asked Mr Marlborough whether there were any problems 'with the other appointment' and Mr Marlborough told him there were no problems. Later in the conversation, the appellant asked Mr Marlborough to 'just to make sure that the thing at the [SWDC] don't come off the rails'. Mr Marlborough assured him that it would not (exhibit 6, tab 31).
That evening, Ms Morgan rang the appellant. The appellant told Ms Morgan that he thought that her appointment to the SWDC was 'okay'. He explained that there was a delay because of the search for a chairperson (exhibit 6, tab 32).
On 27 September 2006 the appellant was served with a copy of a notice requiring him to attend and give evidence at an examination before the respondent. The notice said that the respondent's investigation was to enable it 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.
Evidence given before the respondent
On 6 November and 4 December 2006 the appellant gave evidence at an examination conducted by the respondent. The evidence was very lengthy and not all of it was exhibited at the trial. On 6 November 2006, the appellant was sworn and advised by the commissioner of his rights and obligations. He was examined by counsel assisting the respondent about his consultancy with Canal Rocks Pty Ltd and his advice to it. He also was examined about his relationships with Mr Grill, Mr Marlborough, Mr McKenzie and some public servants.
At a point in the examination the appellant was asked about a luncheon he organised to raise funds for the Labor Party. Mr McKenzie had purchased tickets to attend the luncheon. The appellant was then examined about a luncheon he had organised in Fremantle in late 2005. He was asked the reason for that lunch and he said that it was because Ms Morgan had telephoned him and told him that she was being prejudiced because she was a former National Party candidate and, consequently, she was not being considered for appointments to boards and similar bodies. Mr Marlborough, Mr Grill, Mr McKenzie, Ms Morgan and the appellant attended the lunch. The appellant was asked why he felt disposed to help Ms Morgan. The appellant said that he did not know that he felt disposed to help her but that he got a lot of requests from people for assistance and advice. He did not feel that he should say to her that he was not interested in listening to her (ts 951). Later, he said that his assistance was 'really as much just to be pleasant to her as anything'. The appellant was asked whether it was part of his consideration that Ms Morgan had been helpful during the Busselton election campaign of the previous year. The appellant said 'no' in respect of the election campaign but said that he 'would have thought that she had been positive towards Smiths Beach' and had supported it generally (ts 951).
The crucial evidence
The questions then shifted to Ms Morgan's application to be appointed a member of the SWDC board. The crucial evidence emerged in the following manner:
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 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) (my emphasis).
There were then some questions about the nature of the relationship between the appellant and Mr Marlborough. The examination finished shortly thereafter.
The crucial evidence appears in italics in the above paragraph. In the crucial question counsel assisting the respondent, in error, referred to the South West Regional Development Commission, instead of the SWDC. At the trial before the magistrate the appellant did not take issue with the respondent's assertion that the meaning of the question conveyed to the appellant was that he was being asked about the SWDC. This remained the appellant's position on appeal, although the meaning otherwise conveyed by the crucial question was at trial, and remains on appeal, a live issue between the parties. In these reasons I refer to the crucial evidence as relating to the SWDC even though the actual words used in the evidence were the 'South West Regional Development Commission'.
On the evening of 6 November 2006 the appellant and Mr Marlborough had a telephone conversation. A part of the conversation was as follows:
BURKE: They asked me whether I'd asked you about, uhm, eh, the appointment of, uhm, Beryle 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 Beryle 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, tab 33).
On 4 December 2006 the appellant's examination before the commission recommenced. He was permitted to clarify some of the evidence which he had given on 6 November 2006, including evidence relating to the crucial evidence. The appellant said:
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 the same day he was asked questions by counsel assisting the respondent about his clarification. The evidence was as follows:
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 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).
The audio recordings of the appellant's conversations with Ms Morgan on 28 July 2006 and Mr Marlborough on 9 August 2006 were then played. The following questions were put and answers given:
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 that that's Norm talking to me as his best friend (ts 1181).
The evidence before the magistrate
Nearly two years later the appellant was charged with the subject offence. The evidence presented by the prosecution at the hearing of the charge proved the facts as I have stated them above. The appellant gave evidence in his own defence. The appellant testified as to his background, including that he was elected to the Parliament of Western Australia in 1973 and was Premier of Western Australia between February 1983 and February 1988. He then became Australia's ambassador to Ireland and the Holy See for three years (ts 4/3/10 page 36). He said that during 2005 and 2006 he was a full‑time consultant retained to provide advice to people 'on a range of matters'. He said that he did not have a secretary or commercial premises and that he and Mr Grill operated the business from Mr Grill's residence in Mount Street. The appellant said that from May through to August 2006 he had approximately 40 ‑ 50 clients and that Canal Rocks Pty Ltd was one of them (ts 4/3/10 page 37). He said that he was not in the best of health at the time in that he had put on a lot of weight and so was not in 'terrific shape'. However, he said that he would not like to give the impression that he was unwell (ts 4/3/10 page 38).
The appellant confirmed that he had been examined by the respondent at a private hearing in March 2006 concerning the Busselton election which had been held the previous May and the funding of certain candidates. He said that in September 2006 when he received a summons to attend before the respondent for a public hearing he only understood in a very broad sense that he was to be examined about Smiths Beach and the activities of the public officers in respect to it (ts 4/3/10 page 38). He said that he did not understand that he was likely to be examined about his dealings with Ms Morgan. Although, he had asked his solicitor to see if he could obtain further information about the matters on which he was going to be examined and no more information had been provided by the respondent. He said that his role in relation to the Smiths Beach development on behalf of Canal Rocks Pty Ltd was to give strategic advice about how best to progress the application for the development (ts 4/3/10 page 40).
The appellant gave evidence that Ms Morgan had been involved in the local government election in Busselton in May 2005 and that he had spoken to her on 3 ‑ 5 occasions. He said that they had met once at Mr McKenzie's office but that was the only time he had seen Ms Morgan. He said that as of July 2006 he did not feel that he was beholden to Ms Morgan in any way. At some point, Ms Morgan telephoned him and raised the treatment of her applications for appointment to government boards. He said that he arranged the lunch, which I have previously described, as a result of that call.
The following questions were then put by the appellant's senior counsel and answers given by the appellant:
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 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 (sic) wouldn't have done that,' what did you understand 'that' to be?‑‑‑Well, I wouldn't have improperly used the 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. If I can explain to you.
Yes?‑‑‑I didn't seek out Mrs Morgan, she rang me about this (ts 4/3/10 pages 64 ‑ 65).
In relation to the telephone conversation between the appellant and Ms Morgan on 28 July 2006, the appellant gave the following evidence:
Why did you ask Ms Morgan to send to you an email with her application?‑‑‑Because if I could help her, I would.
Why would you help her?‑‑‑There were lots of reasons, in my view, after she raised it. Beryle Morgan is quite an outspoken person and quite a strong woman, and she's the sort of person I thought Norm Marlborough could benefit from having in a representative position. She also, and perhaps this is unworthy ‑ she really had a strong dislike of Troy Buswell, and I didn't think that would go astray.
What did you understand to be the advantage to Mr Marlborough of Ms Morgan being on this body?‑‑‑Well, I think she would represent his point of view and his interests, and she was a former National Party candidate, so she would have access to all sorts of circles that he could never have access to himself. Also, Norm Marlborough is a lovely man but he's a bit of a ditherer, and she was a no‑nonsense person. When I read this, I think she had in mind all the time what she wanted, and she was ringing me with the application, I think, already written. So I just thought that there were lots of reasons why she would be a good appointment, but I didn't go foraging, looking for a candidate or anything else. It's just that she put her hand up and I thought, 'Well, she'd be a good fit' (ts 4/3/10 page 66).
In relation to the telephone conversation between the appellant and Mr Marlborough on 9 August 2006, the appellant gave the following evidence:
You say there in the first line, 'Mate, the other thing is, you're not going to let me down on Beryle, are you?' Do you see that?‑‑‑Yes.
What did you mean by that comment to Mr Marlborough?‑‑‑I didn’t mean anything by that comment. I was trying to focus his attention. You have to understand that this is a two‑minute snapshot in a 35‑year friendship, and I spoke to Norm in ways that I had developed because they were necessary over the period of that friendship.
…
Well why would you say to Mr Marlborough, 'You're not going to let me down on Beryle'?‑‑‑Well, because unless I put it on that basis, unless I said, 'Look, this is important,' it wouldn't get done. I mean, in the next sentence ‑ and remember, I had already made representations ‑ he said, 'Who's Beryle?'
I think you said a moment ago that Mr Marlborough was a ‑ did you use the term 'ditherer'?‑‑‑Well, 'ditherer' is the wrong word, I guess, but he never liked to ‑ it took long time for him to actually do things.
You had that understanding and appreciation of him at that time?‑‑‑I had that ‑ I love him dearly, I'd had that appreciation for 30 years.
…
Was it I important to you, Mr Burke, that Ms Morgan be appointed?‑‑‑It was singularly unimportant, but if look at the transcripts, I've seen that phrase six or seven times. That was my way of focusing Norm on the question I was asking him about.
…
Did you understand Ms Morgan to be a good appointment for that position?‑‑‑Yes.
You say here, 'She's a woman'. Was that of any significance?‑‑‑Yes.
What was that?‑‑‑Well, it's generally accepted that there should be a fair balance between the appointment of men and woman to different boards and bodies, and often it's difficult to find women who are anxious to be appointed or suitable to be appointed or have the time. Often they're anchored down at home with other things.
Was the appointment of a woman, Mrs Morgan or any other woman, to this body going to be of benefit to you?‑‑‑None at all.
Then you see that you say to Mr Marlborough, 'She's got a wide circle of friends in Busselton. You need someone in Busselton'?‑‑‑That's what I referred to before. She had access to circles of influence in Busselton that normally Labor people wouldn't be able to access.
When you were saying that to Mr Marlborough, was that so that you could derive a benefit from Mrs Morgan's appointment?‑‑‑No.
Why were you saying that to him?‑‑‑Because it would be a benefit to him, but it also made her a good appointment. She was formerly the president of the Busselton Shire Council.
If I could ask you to turn over the page to page 80 of the transcript, you'll see there that you say to Mr Marlborough, 'This is the first person I've ever recommended to you for appointment anywhere'. Is that your understanding of the manner of the conversation you were having with Mr Marlborough?‑‑‑I always understand I was putting her up. I understand that I was recommending her, and that's why I was justifying the recommendation.
Then you see halfway down the page, or a third of the way down the page, Mr Marlborough says, 'Well, if you hadn't have asked me, if you hadn't have brought it to my attention, she would have slipped by, you know'. Then you say 'Mate, it is just ‑ believe me, it is just so important on about 15 different fronts'. Were you conveying to Mr Marlborough that it was important to you on 15 different fronts?‑‑‑Not personally, not at all.
Well, what was that a reference to?‑‑‑It was a reference to the whole range of reasons that made her a good candidate, and I would have thought, I did think, a very good support for Norm in that area, in that role.
You see there, you say, 'And she would be so committed to you'. Was it part of your thinking that Mrs Morgan would be committed to you, Mr Burke, personally?‑‑‑Me?
Yes?‑‑‑Not at all. I don't ‑ the 'you' is not me.
Quite. It's Mr Marlborough?‑‑‑That's right.
You made reference to it earlier that she hates Buswell?‑‑‑Yes.
That's Troy Buswell, who was the local member?‑‑‑Yes.
Was appointing somebody to the board who hated Troy Buswell going to provide any benefit to you, Mr Burke?‑‑‑It would be a benefit to the whole State.
Well, I take it the answer to that is no?‑‑‑No, not to me at all (ts 4/3/10 pages 67 ‑ 69).
In relation to the telephone conversation on 17 August 2006 between the appellant and Mr Marlborough, the appellant said that he asked Mr Marlborough whether he had 'fixed up Beryle' because he knew that if he did not keep reminding Mr Marlborough then 'things sort of get swept into a bit of a black‑hole' (ts 4/3/10 page 69).
In respect of the telephone conversation between the appellant and Mr Marlborough on 21 August 2006, the appellant said that he was seeking to get Mr Marlborough to concentrate on the 'representation' he had made. The appellant said that this was the first time that he understood that it was unlikely that Mr Marlborough would appoint Ms Morgan. He said:
So if you support the representation strongly, you've got to redouble your efforts (ts 4/3/10 page 69).
The appellant testified that in that particular conversation he was trying to persuade Mr Marlborough to appoint Ms Morgan for all the reasons he had outlined to him and not to be dissuaded by the views of other people. He did this by trying to impress on Mr Marlborough that it was important to him (the appellant) for Mr Marlborough to make the appointment. But, the appellant testified, there was no benefit or advantage to him in Ms Morgan's appointment. He said that he could not recall any dealings he had with the SWDC. He did not know who was on its board and did not know why anyone would want to be on it (ts 4/3/10 page 70 ‑ 71).
In respect of the appellant's conversation with Mr Grill in which he said that Ms Morgan was someone that they could rely on, the appellant said he did not know what they would rely on Ms Morgan for but he did know that there were 'lots of reasons to appoint her' (ts 4/3/10 page 71).
Throughout this portion of his evidence‑in‑chief, the appellant reiterated that the matter of Ms Morgan's appointment was of no importance to him at all. He said that, although he spoke to Mr Marlborough about it on a number of occasions, it would have been the least important matter in each of his phone calls with Mr Marlborough (ts 4/3/10 page 73).
The appellant's counsel asked him to explain what his understanding was of the series of questions commencing with the crucial evidence and following. The appellant said:
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 through 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 (ts 4/3/10 pages 74 ‑ 75).
In cross‑examination, the appellant said that he had recommended Ms Morgan's appointment to Mr Marlborough. He said 'I think I used that word and used the words ''put her up'' because I believed that she would be an excellent appointment' (ts 5/3/10 page 27). He also said he thought that she would be of 'great assistance to Mr Marlborough'.
The appellant said that when he told Mr Marlborough that Ms Morgan's appointment was important on 15 'different fronts' he meant that it was for 15 different reasons. The appellant listed these as being that she was a woman, she was accomplished, she had access to people in Busselton area which a layperson could not hope to gain, she was aggressive in a way which complemented Mr Marlborough, she was intelligent, she disliked Mr Buswell (who it seems the appellant regarded as a political opponent of Mr Marlborough), she was eloquent, she was well presented and articulate, she had good relationships with many local government councillors, she was well known in local government circles outside the southwest, she had an excellent knowledge of the Local Government Association and the Local Government Act 1995 (WA), she was well known and respected in the Liberal party and she was a family person (ts 5/3/10 page 31).
It was put to the appellant that his representations on Ms Morgan's behalf in 2005 when Mr Marlborough was not the Minister responsible for the SWDC indicated that it was he (the appellant) who personally wanted Ms Morgan on the SWDC board. The appellant replied:
I can only say again that it meant nothing to me to have Ms Morgan appointed to that commission or to any other body (ts 5/3/10 page 32).
The appellant also acknowledged that he (the appellant) was more supportive of Ms Morgan than Mr Marlborough was.
The appellant was played the recording of his telephone conversation with Mr Marlborough on 21 August 2006 and asked what it was that he told Mr Marlborough that he 'wanted'. The appellant testified that he 'wanted [Mr Marlborough] to appoint [the appellant's] recommendation to the [SWDC]' (ts 5/3/10 page 33).
The appellant was also taken by prosecuting counsel to the relevant evidence he gave on 6 November 2006, commencing at about the same point from which I have quoted it earlier in these reasons. It was then put to the appellant that his answer 'no, I wouldn't have done that' to the crucial question, was false. The appellant denied that and then the following evidence was given:
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 recommend 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 things 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 recommend 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 Beryle 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 a 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 rugby 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 going 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?' (ts 5/3/10 pages 36 ‑ 37).
The appellant was then cross‑examined about the telephone conversation which he had with Mr Marlborough on the evening of 6 November 2006, the day on which he gave the crucial evidence. It was put to the appellant that what he told Mr Marlborough he said in evidence was not, in fact, what he did say in evidence. The appellant said that he testified that he 'might've sent along her CV' and that he also said he 'may have raised it with Mr Marlborough' (ts 5/3/10 page 38.
I note that the transcript of the evidence on 6 November 2006 does not disclose that the appellant said that he may have given Mr Marlborough Ms Morgan's curriculum vitae. When the appellant was asked whether he had spoken to Mr Marlborough about Ms Morgan's application he said that he may have but that he did not recollect it. The conversation with Mr Marlborough on the evening of 6 November, indicates that at least by the time the appellant spoke to Mr Marlborough on the evening of 6 November he recollected that he had spoken to him [Mr Marlborough] about the appointment of Ms Morgan to the SWDC board. This was contrary to his testimony on the same date.
The magistrate's reasons
The magistrate identified the elements of an offence by the appellant against the CCC Act s 168 as being:
1.the appellant gave evidence at an examination conducted by the respondent;
2.the evidence was false or misleading;
3.the evidence was false or misleading in a material particular; and
4.the appellant knew the evidence was false or misleading.
The magistrate's identification of the elements of the charge is not challenged on appeal.
The magistrate summarised the evidence from the prosecution and the defence, in respect of all the charges. Then his Honour dealt with some of the legal principles. In respect of whether evidence is knowingly false or misleading his Honour said it was necessary to distinguish between an honest mistake and a deliberate falsehood: MacKenzie v The Queen [1966] HCA 35; (1996) 190 CLR 348, 373. His Honour then dealt with the issue of materiality which is not an issue in this appeal.
His Honour made general findings which included:
1.that when examined on 6 November 2006 the appellant did not know what he would be questioned about except in a very general sense;
2.through his legal representatives, the appellant asked for particulars of the intended examination but they were not given;
3.it would have been impossible for the appellant to prepare for the examination by reviewing relevant emails, notes and files;
4.giving evidence in those circumstances was not equivalent to an accused giving evidence at a criminal trial where he or she knows of the relevant issues;
5.the appellant had some 40 ‑ 60 clients for whom he was consulting during 2006; and
6.the telephone intercept material included some 35,389 telephone sessions and these sessions included many thousands of telephone calls (ts 1/4/10 page 21).
The magistrate then made findings in respect to each of the charges. This charge was the final charge dealt with by the magistrate. After identifying the relevant evidence, the magistrate noted Mr Marlborough's position at the time as the Minister responsible for putting forward names of potential commission members for approval. His Honour noted that Mr Marlborough was at all relevant times a public officer. He then found that the crucial evidence was material to the respondent's inquiry. I need not concern myself further with this finding as it is not the subject of this appeal.
His Honour then turned to the definition of 'ask'. He referred to the definition in the Concise Oxford Dictionary which, amongst other things, ask means 'to call for an answer, seek to obtain from another person, to invite' (ts 1/4/10 page 28).
His Honour then referred to the evidence contained in the intercepted telephone calls between the appellant and Mr Marlborough on 9, 10 (sic), 21 and 24 August and 12 September 2006. The magistrate concluded:
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 (ts 1/4/10 page 28).
The magistrate then referred to the appellant's evidence to the effect that he believed he was asked in evidence whether he had improperly asked Mr Marlborough to appoint Ms Morgan to the SWDC board and that, therefore, the answer he gave was, in his mind, true.
The magistrate found that the relevant answer was, 'having regard to the intercept material, clearly false' (ts 1/4/10 page 29). His Honour said that the only issue was whether the appellant knew it to be false when he gave the answer.
His Honour's finding in this respect was that he did not accept the appellant's evidence that he thought he was asked whether he improperly asked Mr Marlborough to appoint Ms Morgan to the SWDC board (ts 1/4/10 page 29).
During the hearing of the appeal an issue was raised as to the interpretation of the magistrate's reasons at this point. Having had the opportunity to consider them in detail, I am of the view that the magistrate then went on to give reasons for the above finding. The first reason he gave was that the crucial question 'was quite clear, as indeed was the [appellant's] answer'. The next reason given was that the falsity of the appellant's evidence was demonstrated by the answer he gave to an earlier question. Where the magistrate referred to the 'falsity' of the appellant's evidence, in my opinion there he was referring to the knowing falsity of the evidence (ts 1/4/10 page 29).
The earlier evidence which the magistrate relied on was given in response to the question 'did you speak to Mr Marlborough about it?', to which the appellant said 'I may have. I don't recollect it' (ts 952).
His Honour said:
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 (ts 1/4/10 page 29).
The third reason his Honour gave related to the telephone conversation between the appellant and Mr Marlborough on the evening of 6 November 2006. The magistrate noted that in that conversation the appellant did not say that he had been questioned about whether he had improperly asked Mr Marlborough to appoint Ms Morgan. Although the magistrate did not expressly say so, it is implicit that his reasoning was that if the appellant had thought that he had been asked whether he had improperly asked Mr Marlborough to appoint Ms Morgan then he would have related that to Mr Marlborough on the evening of his evidence. The fact that he did not do so, but instead told Mr Marlborough that the question had been whether he (the appellant) had asked Mr Marlborough about the appointment of Ms Morgan, was a piece of circumstantial evidence from which the magistrate concluded that the appellant did not believe that the question that he was asked involved an allegation of impropriety.
Finally, the magistrate said that having regard to the number of telephone calls the appellant had with Mr Marlborough and Mr Grill about Ms Morgan and their proximity to when the appellant gave evidence before the respondent, he was satisfied beyond reasonable doubt that the only reasonable inference was that the appellant knew that when he was questioned on 6 November 2006 that he had asked Mr Marlborough to appoint Ms Morgan and that he knew that the answer he gave, namely, that it was not possible that he had asked Mr Marlborough to appoint Ms Morgan was false and misleading. The magistrate convicted the appellant of the charge (ts 1/4/10 page 30).
Ground 1
On an initial reading of ground 1, it appears to complain about his Honour's finding concerning the meaning of the crucial evidence. However, in submissions, the appellant's senior counsel referred to this ground as raising the construction of the crucial question asked of the appellant. The appellant says that the magistrate ought to have found that the respondent had not proved beyond a reasonable doubt that the appellant was asked whether it was possible that he had asked Mr Marlborough to appoint Ms Morgan to the SWDC. Rather he says that the question, in its proper context, was whether it was possible that he had improperly asked Mr Marlborough to appoint Ms Morgan to the SWDC board. The appellant says that if there was a reasonable possibility that the crucial question meant what he (the appellant) asserts it meant, the respondent failed to prove that the crucial answer was false.
In oral submissions, the respondent's counsel conceded the correctness of that proposition. I raised with counsel the possibility that, even on the appellant's construction of the question, the answer he gave may have been knowingly false. Counsel for the respondent expressly disavowed any reliance on that alternative path to proof of the guilt of the appellant.
The respondent submits that the magistrate was correct to find that the appellant was asked whether it was possible that he had asked Mr Marlborough to appoint Ms Morgan to the SWDC. That is, whether he had asked Mr Marlborough in the sense that he had called for an answer, sought to obtain from Mr Marlborough the appointment of Ms Morgan or invited Mr Marlborough to appoint Ms Morgan.
An issue concerning the meaning conveyed by spoken or written words was considered by Hasluck J in Ingham v McKenzie [2009] WASC 351. When his Honour considered the meaning of the words in a charge in a prosecution notice he said:
In addressing such a question, as with any formal document, it is obviously not enough to look simply at the meaning of each word, viewed in isolation or as an abstraction. The meaning of words is a matter not only of dictionaries and rules of grammar but also of context and background knowledge. The meaning of the words in a document can be regarded for most purposes as the meaning conveyed to the mind of a reasonably well‑informed reader with some background knowledge as to the ways of the community in which he or she lives. For most people, the notion that the natural and ordinary meaning of the words should be determined by having regard only to the literal meaning is an extreme position that smacks of pedantry.
Lord Hoffman made these observations in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 at 774:
'It is a matter of constant experience that people can convey their meaning unambiguously although they have used the wrong words. We start with an assumption that people will use words and grammar in a conventional way but quite often it becomes obvious that, for one reason or another, they are not doing so and we adjust our interpretation of what they are saying accordingly. We do so in order to make sense of their utterance: so that the different parts of the sentence fit together in a coherent way and also to enable the sentence to fit the background of facts which plays an indispensable part in the way we interpret what anyone is saying. No one, for example, has any difficulty in understanding Mrs Malaprop. When she says "She is as obstinate as an allegory on the banks of the Nile", we reject the conventional or literal meaning of allegory as making nonsense of the sentence and substitute "alligator" by using our background knowledge of the things likely to be found on the banks of the Nile and choosing one which sounds rather like "allegory".
Mrs Malaprop's problem was an imperfect understanding of the conventional meanings of English words. But the reason for the mistake does not really matter. We use the same process of adjustment when people have made mistakes about names or descriptions or days or times because they have forgotten or become mixed up. If one meets an acquaintance and he says "And how is Mary?" it may be obvious that he is referring to one's wife, even if she is in fact called Jane. One may even, to avoid embarrassment, answer "Very well, thank you" without drawing attention to his mistake. The message has been unambiguously received and understood.'
His Lordship went on to make these further observations at 775:
'The meaning of words, as they would appear in a dictionary, and the effect of their syntactical arrangement, as it would appear in a grammar, is part of the material which we use to understand a speaker's utterance. But it is only a part; another part is our knowledge of the background against which the utterance was made. It is that background which enables us, not only to choose the intended meaning when a word has more than one dictionary meaning but also, in the ways I have explained, to understand a speaker's meaning, often without ambiguity, when he has used the wrong words' [94] ‑ [96].
After considering further authorities, Hasluck J turned to apply the law to the facts of that particular case. His Honour said:
This brings me back to the question posed by the ground of appeal and related particulars; that is, whether the learned magistrate erred in law in dismissing the charges on the basis of the respondent's submission that, there being no such body as the South West Regional Planning Committee, the answers to the two questions concerning the committee were literally true, and could not justify the counts of knowingly giving evidence which was false in a material particular.
It was contended by the appellant in support of this ground of appeal that the evidence adduced on the prosecution case established an unambiguous understanding of the meaning of the question put to the respondent in the course of the crucial exchange, with no possibility that the questioner and the respondent were taking about different events.
In my view, taking the prosecution case at its highest, there is merit in this contention. It follows from my earlier observations that the magistrate failed to take account of the whole of the evidence before him in determining what was meant by the question, having regard to the context and the respondent's state of knowledge, and in deciding whether the prosecution evidence was sufficient to support a finding that the respondent gave which he knew to be false in a material particular. I am therefore of the view that there is a basis for concluding that the magistrate erred in law [120] ‑ [122].
The legitimate starting point for a consideration of the meaning of the crucial question in this case is the conventional or dictionary definition of 'ask'. The magistrate referred to three definitions and the appellant criticises him for not explaining why he chose one or more of those definitions. The Shorter Oxford English Dictionary contains very similar definitions. In my opinion, that which is most applicable is the second definition referred to by the magistrate. That is, 'to ask' means to seek to obtain from another person. In other words, it may be expressed as 'to make a request' of another. A similar definition is contained in the Macquarie Dictionary. The definitions of 'ask' in that dictionary include 'to seek by words to obtain; request' and 'to solicit - request of'. The ordinary meaning of the question asked of the appellant was whether it was possible that he had sought by words to obtain from Mr Marlborough the appointment of Ms Morgan to the SWDC or, in other words, whether it was possible he had requested Mr Marlborough to appoint Ms Morgan to the SWDC.
The final issue is whether that would have been the meaning conveyed to a reasonably well‑informed listener with some background knowledge of the context of the question? I will refer to this latter matter as the context of the question.
The appellant says that a reasonably well‑informed listener would be aware of matters such as the unimportance to him of the appointment of Ms Morgan, his lack of knowledge of the matters upon which he was to be examined by the respondent, the general nature of the information contained in the summons to attend before the respondent, the great pressure and media focus on him at the time he gave evidence and that the focus of the questions on him was the suggestion of impropriety in some manner by him or a public officer. The first matter is personal to the appellant, as is the pressure he felt he was under. These matters could not be expected to be known to a reasonably well‑informed listener.
In construing the meaning of the crucial question, the appellant says it is relevant to note two other matters. First, that following the crucial evidence, the questions and answers focused on whether it would have been 'the right thing to do' for the appellant to make such a request as a favour to him. The appellant submits that this confirms that the question asked of him was whether he would have improperly asked such a favour of Mr Marlborough. Secondly, he refers to the prosecutor's opening remark to the magistrate where the prosecutor told his Honour that:
On the prosecution's case a material issue before the CCC inquiry was whether [the appellant], having [im]properly influenced a cabinet minister, Mr Norman Marlborough, to appoint one Beryle Morgan to a statutory body that will be referred to as the [SWDC]. (ts 2/3/10 page 13)
Starting with the second matter, in my opinion, the opening remarks of the prosecutor at the hearing of the charge under appeal cannot be the context which establishes the meaning of the crucial question asked of the appellant over three years earlier. Further, as the respondent submits, the opening remarks of the prosecutor were for the purpose of stating why the respondent said that the evidence given by the appellant was material to the inquiry then being conducted by the respondent. It was not a comment on the meaning of the crucial question.
As to the first matter, the fact that immediately following the crucial evidence, the appellant testified that his reason why he would not ask Mr Marlborough to appoint Ms Morgan was because it would not be the right thing to do, that is, it would be improper to do that, does not affect the meaning of the crucial question. The appellant's explanation for why he said it was not possible that he would have asked Mr Marlborough to appoint Ms Morgan is a different issue to the meaning of the crucial question and answer.
Neither do the questions and answers immediately preceding the crucial question, lend support to the appellant's arguments in this respect. The appellant was asked a number of questions and gave a number of answers about this issue. The appellant does not assert that those earlier questions and answers were tainted by what he says was the allegation of impropriety contained in the crucial question. There are no reasons to distinguish between the context of the preceding questions and the crucial question, such that only the crucial question conveyed an allegation of impropriety.
A reasonably well‑informed listener would be aware that the respondent's legitimate area of interest during the inquiry held on 6 November 2006 was to ascertain whether there had been misconduct by a public officer (CCC Act s 7B(3)) or whether any person may have attempted to influence a public officer to engage in misconduct. This would not mean that whenever a witness was asked whether they had said or done something there was an implication in the question that they were being asked whether they had improperly said or done something or said or done something to improperly influence a public officer to engage in misconduct. To the contrary, where those are the ultimate issues for the respondent, questions asked of witnesses would presumably be framed carefully to ensure that where an allegation of impropriety was alleged it was expressly stated. An allegation of impropriety was not part of this question.
The appellant's position and his response to it may have meant that he was hypersensitive to the issue of impropriety. That may have been a matter which affected his understanding of the crucial question (a matter addressed under ground 3). It did not taint the meaning of the question to a reasonably well‑informed listener, whose understanding is the standard by which the meaning of the crucial question is to be determined.
For the above reasons, I am of the opinion that the magistrate did not err in finding that in this context 'ask' meant to call for an answer, seek to obtain from another person or to invite. Although, I would say that the second meaning is the most applicable definition of 'ask' in this context.
I agree, that in his reasons, the magistrate did not explain why the context of the crucial question did not affect the meaning it conveyed, as now alleged by the appellant. It may be that the magistrate thought that the issues raised in this respect were adequately dealt with when he considered whether the appellant knew that the answer he gave to the crucial question was false.
It is understandable that when the magistrate considered the fourth element of the offence he addressed the issue as to whether the appellant believed there was an implication of impropriety in the crucial question given that the appellant's evidence was to that effect. At trial, the appellant's senior counsel raised the issue of implied impropriety in the crucial question when he made submissions about the appellant's understanding of the question. For example at one point in his submissions to the magistrate he said:
The question was whether he had improperly used his influence. When I say 'the question was', the question was understood to be, had Mr Burke improperly used his influence and exploited his friendship with Mr Marlborough to have Ms Morgan appointed by Mr Marlborough to the [SWDC]. Of course more than that, improperly used his influence so that he could benefit from Ms Morgan's appointment. That's what Mr Burke understood the question to connote. (ts 8/3/10 page 88)
I do not believe that counsel made it clear to the magistrate that the appellant's understanding of the crucial question was relevant to construing the meaning of the question for the purpose of the second element of the offence; as well as being relevant to the appellant's state of mind for the purpose of the fourth element.
However, I agree with the appellant's submission on appeal that the issues are slightly different. The magistrate found that the second element of the offence required the respondent to prove that the crucial evidence was false or misleading. That required a determination of the meaning of the crucial question, having regard to its context, which would have been conveyed to the mind of a reasonably well‑informed listener. The fourth element of the offence; that is, that the appellant knew the evidence was false or misleading, also required a determination of the meaning of the crucial question, but in considering the fourth element it was the meaning of the crucial question to the appellant that was relevant.
However, I am not required to set aside the conviction because the magistrate omitted to make any necessary finding of fact if the facts or evidence in substance support the decision or justify the finding: Criminal Appeals Act 2004 (WA) s 14(3). For the reasons given above, I am of the view that the evidence supported the magistrate's finding that the appellant was asked, in effect, was it possible that he had sought, by words spoken to Mr Marlborough, to obtain the appointment of Ms Morgan to the SWDC.
This ground of appeal should be dismissed.
Ground 2
Ground 2 addresses the appellant's grievance that even if the crucial question was as the magistrate construed it to be, the evidence did not support the magistrate's finding that the crucial evidence was knowingly false. The appellant says that the magistrate ought to have held that he was not satisfied beyond reasonable doubt that in the relevant telephone conversations the appellant had asked Mr Marlborough to appoint Ms Morgan to the SWDC board or that the appellant believed he had asked Mr Marlborough to do that. Thus, he submits that his answer to the crucial question was not knowingly false. Two separate issues are raised by this ground. The first is whether the magistrate erred in finding that objectively the appellant asked Mr Marlborough to appoint Ms Morgan. The second is whether, even if he did, whether the magistrate erred in finding that the appellant knew that he had so asked, when he answered the crucial question. I will deal with the issues in that order.
In my opinion the magistrate did not err in finding that the appellant had asked Mr Marlborough to appoint Ms Morgan. In making this finding his Honour relied on the contents of a number of telephone conversations between the appellant and Mr Marlborough. I have listened to, and read the transcripts of, the audio recordings of these calls. There is no reasonable doubt that during those conversations the appellant asks, or presses for the satisfaction of his previous request or requests to Mr Marlborough to appoint Ms Morgan to the SWDC.
In addition, there was a significant amount of other evidence before the magistrate which supported the magistrate's finding, including:
1.In a telephone call on 28 July 2006 with Ms Morgan the appellant told her to send him a copy of her application and that if he did not hear from Ms Morgan he would not remember to speak to 'him' [Mr Marlborough] about the application (exhibit 6 tab 25).
2.On 28 July 2006 the appellant received a copy of Ms Morgan's application and told her that he would make 'appropriate representations'.
3.Within 12 days of receiving Ms Morgan's application, the appellant had spoken with Mr Marlborough about it and in the telephone call on 9 August 2006, relied on by the magistrate, the appellant impressed on Mr Marlborough the importance of Ms Morgan's application. Mr Marlborough said that the appellant had asked him to appoint Ms Morgan and the appellant did not disabuse him of that view.
4.On 21 August 2006 in a telephone call with Mr Marlborough the appellant told Mr Marlborough not to let others talk him out of Ms Morgan's appointment and put up reasons why she would be a good appointment. He also suggested reasons why another proposed candidate would not be suitable. He told Mr Marlborough that he (the appellant) needed and wanted Ms Morgan's appointment. The appellant thanked Mr Marlborough when he reassured him (the appellant) that he would appointment Ms Morgan (exhibit 6 tab 28).
5.On 24 August 2006, in a telephone conversation, the appellant told Mr Grill that he had 'arranged for [Mr Marlborough] to put up [Ms Morgan]'. Later in the same call he said that by the time that he heard that Mr Grill wanted someone else appointed he [the appellant] had 'already asked' Mr Marlborough and Mr Marlborough had said he would put Ms Morgan forward (exhibit 6 tab 29).
6.In the same conversation, when the appellant thought that Mr Grill had said that they better make sure that Mr Marlborough appointed Ms Morgan, the appellant said 'I've done me very best'. He repeated that comment later in the conversation and said that he would go back to Mr Marlborough and 'try and get him' to appoint Ms Morgan.
7.On the same day the appellant spoke to Mr Marlborough and told him that Mr Grill accepted that Mr Marlborough had to appoint a woman. This was clearly a reference to Ms Morgan (exhibit 6 tab 30).
8.On 4 December 2006, in his clarification to the respondent, the appellant testified that when he spoke to Mr Marlborough about Ms Morgan he was 'strongly supportive of her' application. Later in evidence he said that he had recommended her and that he (the appellant) thought she would be a very good appointment. He did not say anything about believing that the appointment would be good for Mr Marlborough.
9.In his evidence at trial, the appellant said that he thought Ms Morgan would be an 'excellent appointment'. At various points in his testimony he said that, in respect of Ms Morgan's application for appointment to the SWDC board and his communications with Mr Marlborough about it, he [the appellant] had 'made representations', used the phrase 'it's important' as his means of 'focusing [Mr Marlborough] on the question [the appellant] was asking him about', put up Ms Morgan for appointment, recommended her, justified his recommendation, been 'more supportive of Ms Morgan's application' than Mr Marlborough was and, when speaking to Mr Marlborough on 21 August 2006 'wanted' Mr Marlborough to appoint Ms Morgan. The appellant also said that in respect of Ms Morgan's application if he could help her, he would.
The magistrate was correct not to accept the appellant's attempt to distinguish, in this case, between whether he suggested, recommended or put Ms Morgan up for appointment as opposed to asked for her appointment.
Relevantly, to recommend someone means to suggest them as being fit for appointment. The appellant went much further than to suggest to Mr Marlborough that Ms Morgan was suitable for appointment to the SWDC. The magistrate fairly described him as 'imploring' Mr Marlborough to appoint Ms Morgan.
Another issue relied on by the appellant in respect to this ground is that there was no personal benefit to him if Ms Morgan had been appointed to the SWDC. He relied on his repeated assertions in evidence that the appointment of Ms Morgan to the SWDC board was unimportant to him.
It is trite to say it was not necessary for the prosecution to prove that there would have been a benefit to the appellant if Ms Morgan had been appointed to the board of the SWDC. Nevertheless, the presence or absence of a personal benefit may be a relevant issue, particularly in a case based on circumstantial evidence. In this case, the prosecution relied on the telephone intercept material to prove that the appellant had asked Mr Marlborough to appoint Ms Morgan to the SWDC. In light of the direct evidence of the appellant's words, absence of a proven personal benefit to the appellant was not a significant factor.
In any event, I note that Ms Morgan was supportive of the appellant's client's (Canal Rocks Pty Ltd) proposed development at Smith's Beach and he regarded her as an influential person in south‑west local politics. The appellant had assisted her in 2005 when she applied to be appointed to the SWDC board, even though Mr Marlborough was not then the Minister for the South West. The appellant also gave evidence to the effect that he strongly supported Ms Morgan's 2006 application because he thought she was a good applicant. These matters gave him a reason to ask Mr Marlborough to appoint Ms Morgan or at the very least they meant that there was not a proven absence of a reason personal to the appellant to ask Mr Marlborough to appoint Ms Morgan.
The appellant also submits that his evidence that he recommended Ms Morgan for appointment because he believed that she would be a good appointment for Mr Marlborough to make, is relevant to whether he believed that he had asked Mr Marlborough to appoint Ms Morgan and therefore whether his answer was knowingly false.
The argument, as it was put to me, is that the magistrate did not properly deal with the appellant's submission, and evidence in support of it, that if it was reasonably open to characterise the intercepted telephone material as the appellant recommending or supporting Ms Morgan's appointment to the SWDC as an appointment in Mr Marlborough's best interests, then the appellant should have been found not guilty. The respondent would have failed to have proved that his answer was knowingly false.
For the reasons given above I am persuaded that it was not reasonably open on the evidence to construe the appellant's conversations with Mr Marlborough as being to recommend or support Ms Morgan's appointment to the SWDC as an appointment which was in Mr Marlborough's best interests, as opposed to asking for her appointment.
As to the second issue raised by this ground, the appellant says that the magistrate was required to state that the appellant's evidence was to the effect that he believed he was recommending and supporting Ms Morgan's appointment because it was in Mr Marlborough's interest for the appointment to be made, find that he rejected that evidence and say why he did so.
When the magistrate made his finding to the effect that the appellant had asked Mr Marlborough to appoint Ms Morgan to the SWDC, he said that the telephone intercept material disclosed the appellant 'doing much more than just recommending or supporting Ms Morgan's application' (ts 1/4/10 page 28). I am of the view that it is clear from this statement that the magistrate was alive to the appellant's evidence that it was his view that all he had done was support or recommend Ms Morgan's appointment because it was in the best interests of Mr Marlborough. It is implicit in the magistrate's findings that he rejected this proposition, both as, objectively, not what the appellant did but also, subjectively, as not what the appellant thought that he did.
In my opinion there is no deficiency in the magistrate's reasoning. Given the magistrate's unchallenged identification of the elements of the offence, it was incumbent on him to determine whether the crucial evidence given by the appellant was objectively false or misleading (element 2). It was only after he had come to a finding on that issue in favour of the prosecution that he was then obliged to go on and make a finding as to whether the appellant's evidence was knowingly false or misleading (element 4). The submission made to the magistrate to the effect that the appellant had not asked Mr Marlborough to appoint Ms Morgan but, rather, he had recommended her appointment as being something that was in Mr Marlborough's interest, was a submission that principally went to the second identified element of the offence. That was, whether the evidence was false or misleading. The appellant's subjective interpretation of the crucial question was relevant to the fourth element of the offence being whether he knew that the evidence was false or misleading.
In respect to the appellant's subjective interpretation of the crucial question, it is true that in his evidence at trial the appellant gave two reasons for denying that his answer was false. The first related to the issues raised in appeal ground 2. That is, he said that in his view he had not asked Mr Marlborough to appoint Ms Morgan because he recommended her appointment. However, in the same passage of evidence he not only conceded that that explanation was not compelling and that it could be interpreted that he had asked Mr Marlborough to appoint Ms Morgan, he went on to give clear evidence, which he repeated in evidence‑in‑chief and cross‑examination, that the reason why he answered the question in the manner he did was because he thought he was being asked whether he had improperly asked Mr Marlborough to appoint Ms Morgan. For example, in evidence‑in‑chief, the appellant said:
[M]y 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 [Mr Marlborough] in respect of this appointment. … 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. (ts 4/3/10 page 74)
In cross‑examination, he said that he understood the question to be:
As a result of your relationship with [Mr Marlborough] did you seek [Ms Morgan's] appointment on some improper basis or as the result of some impropriety? (ts 5/3/10 page 36)
This view of the appellant's evidence at trial is reinforced by a consideration of his evidence given to the respondent on 4 December 2006 in order to clarify the crucial evidence. He said that he understood that the crucial question was whether he had threatened, forced, compelled or instructed Mr Marlborough (ts 4/12/06 page 1103). He did not say that he had answered the crucial question in the manner he did because he distinguished between recommending to Mr Marlborough to do something that was in his best interest and asking Mr Marlborough to do something.
In my view it was reasonable for the magistrate to deal with the final element of the offence on the basis that the appellant said that he answered the question the way that he did because he thought that he was being asked whether he had taken advantage, in some improper way, of his relationship with Mr Marlborough in respect of the appointment of Ms Morgan. Although the appellant raised the possibility that his answer to the crucial question could have been correct because he had only recommended and not asked for Ms Morgan's appointment, looking at his evidence as a whole two determinative matters emerge. The first is that ultimately the appellant did not say that was why he answered the question in the manner he did and secondly he acknowledged that what he had said to Mr Marlborough could be interpreted as him asking him to appoint Ms Morgan. He also said that 'it might be a reasonable assumption to make' (ts 5/3/10 page 36).
I also note that the appellant's counsel's submissions to the magistrate were to the effect that the issue of whether or not the appellant had asked Mr Marlborough to appoint Ms Morgan related, not to whether the appellant gave knowingly false evidence (element 4), but to whether he had given false evidence at all (element 2). Counsel said:
Now, in the alternative to that submission, your Honour, we say this: that even if the question was to be understood as baldly as the crown would contend, that is, 'Did you ask Mr Marlborough to appoint Ms Morgan,' when one looks to the evidence, your Honour it's properly to be characterised not as Mr Burke asking Mr Marlborough to do that, but Mr Burke suggesting Ms Morgan to Mr Marlborough as an appropriate person for appointment. (ts 8/3/10 page 91) (my emphasis)
Further, in the appellant's senior counsel's submissions to me he repeated on a number of occasions that the appellant answered the way that he did because he [the appellant] believed that the crucial question was 'laden with a connotation of impropriety' (ts 26/7/10 page 18, 20). The magistrate's decision in that regard is the substance of ground 3.
It is theoretically possible that the appellant answered the crucial question in the way that he did both because he thought that all he had done was recommend Ms Morgan for appointment and because he believed that he was being asked whether he had improperly asked Mr Marlborough to appoint her. However, his evidence was to the effect that it was the second of these states of mind which caused him to answer the way that he did. The magistrate was obliged to consider the fourth element on the basis of the evidence and not on the basis of theoretical possibilities.
In any event, I am unpersuaded that there is any merit in the appellant's submission in respect of the second issue raised by this ground. The reasons given by the magistrate for rejecting the appellant's evidence that he answered the question the way he did because he believed that the question implied impropriety on his behalf, apply equally to the present suggestion that the appellant answered the question the way he did because he thought that he had recommended Ms Morgan, as opposed to asked Mr Marlborough to appoint her. Additionally, on the basis of what the appellant said in the intercepted telephone calls, the magistrate correctly found that the appellant had 'implored' Mr Marlborough to appoint Ms Morgan. This finding made it near to fanciful that the appellant would not know that the crucial answer was false on the basis of a distinction between recommending and asking.
As to counsel's submission that the appellant had only recommended Ms Morgan because it would be a good appointment for Mr Marlborough to make, I note that the appellant's evidence was to the effect that he had recommended Ms Morgan because she would have been 'a good appointment' and she would have been supportive of Mr Marlborough. He did not say that he answered no to the crucial question because he believed that he had not asked Mr Marlborough to appoint Ms Morgan because the representations he made were in Mr Marlborough's interest, not his. To the extent that the appellant testified that he thought the crucial question alleged that he had asked Mr Marlborough to appoint Ms Morgan as a favour to him (the appellant), the magistrate dealt with the appellant's evidence when he considered whether the appellant knew that his evidence was false or whether it was reasonably possible that the appellant believed that there was an allegation of impropriety in the question.
This ground of appeal should be dismissed.
Ground 3
The third ground of appeal alleges that the magistrate was wrong to find that the appellant gave a knowingly false and misleading answer to the crucial question asked of him.
The appellant submits that the magistrate ought to have held that he was not satisfied beyond reasonable doubt that the appellant had understood the crucial question, as the magistrate construed the question. Consequently, it was reasonably open that the appellant had construed the question as being whether it was possible that he had improperly asked Mr Marlborough to appoint Ms Morgan to the SWDC board and that his answer denying that possibility was not knowingly false.
I digress to note that the grounds of appeal do not rest on an assertion that the magistrate should not have been satisfied beyond reasonable doubt that the appellant recalled asking Mr Marlborough to appoint Ms Morgan to the SWDC when he answered the crucial question.
On my understanding of the magistrate's reasons, he gave a number of reasons for finding that the crucial evidence given by the appellant was knowingly false. These were:
1.The crucial question was 'quite clear';
2.The appellants answer was also 'quite clear';
3.The appellant 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 the appellant to give truthful evidence concerning his involvement in attempting to persuade Mr Marlborough to appoint Ms Morgan;
4.In the appellant's telephone conversation on the evening on 6 November 2006 with Mr Marlborough, and when discussing the relevant questioning in the Commission that day, the appellant 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 the appellant had with MrMarlborough and Mr Grill about Ms Morgan; and
6.The proximity of those telephone calls to the appellant's evidence the subject of the charge.
His Honour concluded that the only reasonable inference was that the appellant knew when he was questioned by the respondent on 6 November that he had asked Mr Marlborough to appoint Ms Morgan and that he knew the answer he gave to the crucial question was false and misleading.
The appellant complains that it was not open to the magistrate to rely on the alleged falsity of his answer to a previous question. This is for two reasons. First, it is said that it was not put to the appellant that his preceding answer was false. Secondly, it is said that simply because he gave a false answer does not necessarily mean that his subsequent answers about the same topic were also false.
In respect of the second reason, the magistrate did not use, and could not have used, the previous false answer as a lie showing a consciousness of guilt as that concept is explained in Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234. The magistrate simply took into account all the surrounding circumstances in determining whether he was satisfied beyond reasonable doubt that not only was the crucial evidence false but that it was knowingly false. The appellant's knowledge that the crucial evidence was false was not something that could be proved by direct evidence (the appellant was the only person who could give direct evidence about the matter and he denied knowing that the crucial evidence was false). The respondent had to prove, if it could, knowing falsity by inference from surrounding circumstances. A finding that the appellant had lied about a related matter was not an essential link in the magistrate's chain of reasoning so the magistrate did not have to be satisfied beyond reasonable doubt of that fact before he could use it as a piece of circumstantial evidence to reason towards guilt.
The magistrate directed himself in relation to the principles applicable to the drawing of inferences (ts 1/4/10 page 19). It is not alleged that the magistrate erred in law in his approach to the drawing of inferences against the appellant.
There was no error of principal in the magistrate's reasoning. 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 the appellant 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. The appellant 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 the appellant 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 the appellant 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 the appellant 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 the appellant 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).
The appellant also complains that the magistrate failed to take into account his personal circumstances when determining whether he knew that the crucial evidence was false. I have referred to these circumstances in [75].
I am not persuaded that the magistrate failed to take these circumstances into account. It is natural that his reasons in this regard focussed on specifying those matters which he was satisfied proved that the appellant gave knowingly false evidence.
It was open to the magistrate to be satisfied beyond reasonable doubt of the guilt of the appellant on the basis that the only rational inference that could be drawn from all the evidence was that the appellant gave knowingly false evidence to the respondent. The magistrate gave adequate reasons for being so satisfied.
I would dismiss this ground of appeal and dismiss the appeal.
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