Commonwealth Director of Public Prosecutions v Rodney William Bradley
[2009] ACTCA 5
•22 April 2009
COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS v RODNEY WILLIAM BRADLEY [2009] ACTCA 5 (22 APRIL 2009)
CRIMINAL LAW – practice and procedure – verdict of acquittal by judge – circumstantial case – prosecution case to be taken at highest to exclude other reasonable inferences inconsistent with guilt – Crimes Act 1900 (Cth) s 287.
Supreme Court Act 1933 (ACT), s 37S
Criminal Code 1995 (Cth), s 142.2(1)
Magistrates Court Act 1930 (ACT), s 91, s 94
Court Procedures Rules 2006 (ACT), r 4752
Crimes Act 1900 (ACT), s 287
Justices Act 1902 (NSW), s 41
R v Rodney William Bradley [2007] ACTSC 35 (31 May 2007)
R v Fischetti & Caggiano [2003] ACTCA 5 (31 March 2003) Higgins CJ, Spender and Cooper JJ
Plomp v The Queen (1963) 110 CLR 234
Doney v R (1990) 171 CLR 207
De Gioia v Darling Island Stevedoring & Lighterage Co Ltd (1941) 42 SR (NSW) 1
Wentworth v Rogers [1984] 2 NSWLR 422
R v Prasad (1979) 23 SASR 161
Attorney-General’s Reference (No. 1 of 1983) [1983] 2 VR 410
R v R (1989) 18 NSWLR 74
Antoun v The Queen (2005) 80 ALJR 497
“The Insufficiency of Evidence to Raise a Case to Answer” (1981) 55 ALJ 842, Mr Justice Glass,
R v JMR (1991) 57 A Crim R 39
R v Bilick & Starke (1984) 36 SASR 321
“Questions of Law Reserved on Acquittal (No. 2 of 1993)” 61 SASR 1, King CJ
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 12–2007
No. SCC 32 of 2006
Judges: Gray P, Penfold and Marshall JJ
Court of Appeal of the Australian Capital Territory
Date: 22 April 2009
IN THE SUPREME COURT OF THE ) No. ACTCA 12–2007
) No. SCC 32 of 2006
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:COMMONWEALTH DIRECTOR
OF PUBLIC PROSECUTIONS
Applicant
AND:RODNEY WILLIAM BRADLEY
Interested Party
ORDER
Judges: Gray P, Penfold and Marshall JJ
Date: 22 April 2009
Place: Canberra
THE COURT ORDERS THAT:
The appeal is allowed for the purpose of answering the following question:
Question: Is a trial judge entitled to record a verdict of acquittal pursuant to s 287 of the Crimes Act 1900 (ACT) in respect of a prosecution case based on circumstantial evidence on the basis that the prosecution could not negative all other reasonable inferences which were inconsistent with the guilt of the accused?
Answer: No.
IN THE SUPREME COURT OF THE ) No. ACTCA 12–2007
) No. SCC 32 of 2006
AUSTRALIAN CAPITAL TERRITORY
)
COURT OF APPEAL )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
AND:RODNEY WILLIAM BRADLEY
Interested Party
Judges: Gray P, Penfold and Marshall JJ
Date: 22 April 2009
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
Introduction
The Commonwealth Director of Public Prosecutions (the Director) applies to this Court pursuant to s 37S of the Supreme Court Act 1933 (ACT) by way of a reference appeal as to a question of law said to arise on Mr Bradley’s acquittal by Crispin J on 23 March 2007 of all the charges the subject of the indictment before the Court (R v Rodney William Bradley [2007] ACTSC 35 (31 May 2007)).
Background
Mr Bradley had been arraigned on an indictment and his plea was taken to 10 charges involving allegations that Mr Bradley contravened s 142.2(1) of the Criminal Code 1995 (Cth) (the Code) by engaging in conduct in the exercise of his duties as a Commonwealth public official with the intention of dishonestly obtaining a benefit. Mr Bradley pleaded not guilty and a jury was empanelled on 20 March 2007 to try these charges.
Pre-trial application
An earlier application had been made on Mr Bradley’s behalf for a pre-trial determination that the evidence adduced at the committal, and by way of subsequent statements provided to the defence, was not sufficient to support the charges. The application was not by way of demurrer that the indictment did not disclose an offence known to the law but, rather, that there was no case to answer. That, of course, was one of the issues considered by the magistrate who had committed Mr Bradley for trial after considering the matters that he was required to consider by ss 91 and 94 of the Magistrates Court Act 1930 (ACT). It was not appropriate for this issue to be the subject of a pre-trial application.
The trial judge properly dismissed the application and, as a consequence, a jury was empanelled to try the indictment.
The trial
The prosecutor opened the case for the prosecution and defence counsel made an opening response. In light of the contentions advanced in those addresses, the trial judge raised with the parties his doubts about the evidence that had been foreshadowed as being capable of sustaining the various counts on the indictment.
The trial judge referred to the observation of the Court of Appeal in R v Fischetti and Caggiano [2003] ACTCA 5 (1 March 203) at [30]:
A jury, once empanelled, might be directed to acquit, even on the basis of the Crown opening, if that represents the Crown case taken at its highest, and the presiding judge considers that it could not, in law, justify a conviction. (Emphasis added)
Although the prosecutor submitted that it was not appropriate in the present case, material was presented to the trial judge on the voir dire that included the jury folder, defence admissions of fact and the transcript of the evidence given at committal, as well as other documents and additional statements.
No point was taken on this appeal as to the matter proceeding in this way. It is clear that so proceeding should only occur where it will not disadvantage the full presentation of the prosecution case. The submission of no case to answer is one generally more appropriately to be made after the prosecution case has been completed, and we would not wish to be taken as generally endorsing taking such a step before the evidence has been given.
In the present case, the trial judge did indicate that if it was impracticable to rule as to whether the “foreshadowed” evidence was capable of establishing a prima facie case in relation to some or all of the counts, he would “defer the resolution of the relevant issues until the Crown case had been fully presented”.
In the event, having regard to the material before him and the submissions of counsel, the trial judge discharged the jury from returning a verdict and recorded an acquittal in respect of each of the counts on the indictment. He was acting pursuant to s 287 of the Crimes Act 1900 (ACT) which provides:
(1) If, on the trial of a person for an offence against this Act or any other territory law, the judge would have power to direct the jury to return a verdict of acquittal in respect of that offence, the judge may, instead of giving such a direction, make an order—
(a)discharging the jury from returning a verdict in respect of that offence; and
(b)recording a verdict of acquittal in respect of that offence.
(2) An order under subsection (1) shall, for all purposes, have the same effect as a verdict of acquittal returned by a jury.
The expression in s 287 “power to direct the jury to return a verdict of acquittal” refers to the power of the court to direct a verdict if the evidence cannot sustain a guilty verdict. As Menzies J observed in Plomp v The Queen (1963) 110 CLR 234 at 246, “It is trite law that if the trial Judge is of opinion that the evidence could not warrant a conviction he may direct an acquittal”.
The reference appeal
The counts on the indictment
The application for the reference appeal relates only to Counts 1, 6, 8, 9, and 10 on the indictment. Those counts respectively allege:
… THAT Rodney William Bradley at Canberra in the Australian Capital Territory between 1 November 2001 and 31 December 2003, being a Commonwealth public official, namely the Co-ordinator of the Australian Federal Police (AFP) Building and Accommodation Team, engaged in conduct in the exercise of the official’s duties as a Commonwealth public official, namely he used his position to influence Alex Luddington of Manteena Pty Ltd (Manteena) to add AMPM Glass and Electrical (AMPM) to the Manteena preferred tenderers list, with the intention of dishonestly obtaining a benefit for himself and Andrew Lachlan Dunn.
…
SIXTH COUNT AND FURTHER THAT Rodney William Bradley at Canberra aforesaid between 25 February 2004 and 27 April 2004, being a Commonwealth public official, namely the Co-ordinator of the Australian Federal Police (AFP) Building and Accommodation Team, engaged in conduct in the exercise of the official’s duties as a Commonwealth public official, namely he facilitated the obtaining by Andrew Lachlan Dunn (Dunn) of two sheets of translucent glass belonging to Manteena Pty Ltd from AFP headquarters in Canberra, with the intention of dishonestly obtaining a benefit for Dunn.
…
EIGHTH COUNT AND FURTHER THAT Rodney William Bradley at Canberra aforesaid between 1 June 2003 and 20 June 2003, being a Commonwealth public official, namely the Co-ordinator of the Australian Federal Police (AFP) Building and Accommodation Team, engaged in conduct in the exercise of the official’s duties as a Commonwealth public official, namely he arranged for Daniel John Goodwin, Director of Pyotorn Pty Ltd trading as G & A Painters (“Goodwin”) to be awarded a contract with the Australian Federal Police to paint AFP Drakeford Stage 4 (Project No. 02-071-00) by, but not limited to, over ruling the contractor’s recommendation without good cause, not declaring his friendship with Goodwin and that he had received discounted paints from Goodwin in the past, with the intention of dishonestly obtaining a benefit for Goodwin.
NINTH COUNT AND FURTHER THAT Rodney William Bradley at Canberra aforesaid between 1 February 2004 and 9 March 2004, being a Commonwealth public official, namely the Co-ordinator of the Australian Federal Police (AFP) Building and Accommodation Team, engaged in conduct in the exercise of the official’s duties as a Commonwealth public official, namely by arranging for Daniel John Goodwin, Director of Pyotorn Pty Ltd trading as G & A Painters (“Goodwin”) to be engaged by the AFP to paint a computer room at the Weston Police complex without conducting a tender process in accordance with the Government policy and procedure and not declaring that he was a good friend of Goodwin and had received discounted paints in the past from Goodwin as a result of his personal and professional relationship with him, with the intention of dishonestly obtaining a benefit for Goodwin.
TENTH COUNT AND FURTHER THAT Rodney William Bradley at Canberra aforesaid between 28 January 2004 and 23 March 2004, being a Commonwealth public official, namely the Co-ordinator of the Australian Federal Police (AFP) Building and Accommodation Team, engaged in conduct in the exercise of the official’s duties as a Commonwealth public official, namely by arranging for Daniel John Goodwin, Director of Pyotorn Pty Ltd trading as G & A Painters (“Goodwin”) to be engaged by the AFP to wash down Weston Police complex without conducting a tender process in accordance with the Government policy and procedure and did not declare that he was a good friend of Goodwin and had received discounted paints in the past from Goodwin as a result of his relationship with him, with the intention of dishonestly obtaining a benefit for Goodwin.
The legislation
These counts on the indictment before the court were offences under s 142.2(1) of the Code. That section provides:
Abuse of public office
(1) A Commonwealth public official is guilty of an offence if:
(a)the official:
(i)exercises any influence that the official has in the official’s capacity as a Commonwealth public official; or
(ii)engages in any conduct in the exercise of the official’s duties as a Commonwealth public official; or
(iii)uses any information that the official has obtained in the official’s capacity as a Commonwealth public official; and
(b)the official does so with the intention of:
(i)dishonestly obtaining a benefit for himself or herself or for another person; or
(ii)dishonestly causing a detriment to another person.
Penalty: Imprisonment for 5 years.
Count 1 is an offence under s 142.2(1)(a)(i) of the Code. Notwithstanding the way the count is framed, the physical element of this offence is the act of exercising the influence that the official has in the official’s capacity as a Commonwealth public official. Counts 6, 8, 9 and 10 are offences under s 142.2(1)(a)(ii) of the Code. The physical element of each of these offences is the act of engaging in conduct in the exercise of the official’s duties as a Commonwealth public official.
For all the counts, the fault element is the intention of dishonestly obtaining a benefit for the official or for another person.
The question of law
The question of law was originally expressed in relation to each of the relevant counts in the indictment as:
Did the learned Presiding Judge fall into error in holding that at law the proposed evidence taken at its highest was not capable of sustaining a verdict of guilty, and therefore not leaving the Count for the consideration of the jury.
At the conclusion of the submissions in this matter it became clear that this question is cast in wider terms than the question of law upon which the Director in fact sought an answer. Mr Game SC, who appeared as counsel for the Director, in reply, asked this Court to decide whether the right question had been asked and addressed by the trial judge rather than to determine the effect of the factual issues raised by the evidence, which the questions as framed would have required.
Mr Game’s request seems a sensible way of approaching this matter. The question of whether the material before the trial judge gave rise to the inferences which would sustain a verdict of guilty is, in respect of some of the counts, not without controversy and one upon which reasonable minds might differ. In the result, we have made some comments on his Honour’s approach to the counts in question, but we have not found it necessary to determine specifically whether his Honour fell into error in relation to any of the counts in order to answer the question that the Director wishes us to address.
The principles referred to by the trial judge
The trial judge took as his starting point the decision of the High Court in Doney v The Queen (1990) 171 CLR 207 (Doney). He cited this passage at 214-215 of the joint judgment of Deane, Dawson, Toohey, Gaudron and McHugh JJ:
It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.
However, the trial judge appears to qualify that principle by referring to what was said by Jordan CJ in an earlier civil case, De Gioia v Darling Island Stevedoring & Lighterage Co Ltd (1941) 42 SR (NSW) 1 at 4:
If the trial judge has properly formed the opinion that the plaintiff can be regarded as having made out a prima facie case only if his evidence, or some of it, remains unexplained, then if an explanation is supplied by the defendant it is necessary for him to reconsider the plaintiff’s evidence for himself in the light of that explanation, not for the purpose of usurping the jury’s functions, but in order to determine whether what bore the appearance of a prima facie case in fact amounted to one, and to decide a point which is for him alone, namely whether there is a case fit to go to the jury …
The trial judge then said that Jordan CJ went on to explain:
No doubt, the trial judge can take the case from the jury only if the explanation offered is one which in the circumstances reasonable men could not reject, which does not in any relevant aspect involve evidence that is capable of being treated as genuinely in dispute, and which shows that a prima facie case has not been made out.
The trial judge then referred in some detail to the comments upon those observations by Samuels JA and Glass JA in Wentworth v Rogers [1984] 2 NSWLR 422 (Wentworth) at 431 and 438 respectively.
It may be noted that the discussion in Wentworth is dealing with the effect of evidence actually given by a defendant in a committal hearing and its effect on a magistrate’s determination to commit under the two stage test then applicable under s 41 of the Justices Act 1902 (NSW). This was not the situation before the trial judge and it is difficult to see how these comments could assist him in applying the principle that the High Court had so clearly set down in Doney.
We note that the comments referred to by the trial judge are apt to mislead if they are taken to involve some assessment of explanations given by or available to an accused so as to detract from the precept that the evidence relied upon by the prosecution is to be taken at its highest. It is not clear whether or not the trial judge intended that this be so.
The relevant principles
The issue that was the subject of the High Court’s decision in Doney was whether a trial judge could direct a jury to return a verdict of not guilty if, in the trial judge’s opinion, a guilty verdict would be unsafe or unsatisfactory. As the High Court pointed out, this approach had been rejected in South Australia in R v Prasad (1979) 23 SASR 161 (Prasad), in Victoria in Attorney-General’s Reference (No. 1 of 1983) [1983] 2 VR 410 and in New South Wales in R v R (1989) 18 NSWLR 74. It was also firmly rejected by the High Court in Doney (see too, Antoun v The Queen (2005) 80 ALJR 497 at [16] – [17]).
The Victorian Full Court in Attorney-General’s Reference (No. 1 of 1983) (supra) commented on the approach to be taken where the prosecution sought to prove its case by circumstantial evidence. At 415, the Court said:
The question whether the Crown has ultimately excluded every reasonable hypothesis consistent with innocence is a question of fact for the jury and therefore, if the Crown has led evidence upon which the accused could be convicted, a trial judge should not rule that there is no case to answer or direct the jury to acquit simply because he thinks that there could be formulated a reasonable hypothesis consistent with the innocence of the accused which the Crown has failed to exclude. Similarly a trial judge should not rule that there is no case for the accused to answer because he has formed the view that, if the decision on the facts were his and not the jury's, he would entertain a reasonable doubt as to the guilt of the accused. It is always a question for the jury whether a reasonable doubt exists as to the guilt of the accused and as Menzies J explained in Plomp's Case, in a case based on circumstantial evidence, the necessity to exclude reasonable hypotheses consistent with innocence is no more than an application to that class of case of the requirement that the case be proved beyond reasonable doubt.
That passage was cited by Gleeson CJ in R v R (supra) at 81. In that context, Gleeson CJ also referred to an article written in 1981 by the late Mr Justice Glass, “The Insufficiency of Evidence to Raise a Case to Answer” (1981) 55 ALJ 842. He said (at 81):
An important point made in that article is that a question of the sufficiency of evidence to warrant a conviction, which is usually described as a question of law, is to be resolved by reference to evidence which supports a conviction without regard to evidence which favours the accused as, for example, by contradicting, qualifying or explaining the first-mentioned evidence.
The reasoning in these cases was adopted by Lee CJ at CL (with whom Carruthers and Finlay JJ agreed) in JMR (1991) 57 A Crim R 39 (JMR). The question asked in that case was:
Is a trial judge entitled to direct a jury to enter a verdict of acquittal at the end of a Crown case based on circumstantial evidence on the basis that the Crown could not negative all other reasonable inferences which were inconsistent with the guilt of the accused?
The Court concluded (at 44):
On the view then that a judge in a case of circumstantial evidence cannot direct a verdict of acquittal if there is evidence in support of the Crown case upon which the accused can be convicted, even though a reasonable hypothesis consistent with innocence can be formulated, the present case requires that the question asked must be answered in the negative.
The question of the approach to a circumstantial case was referred to by King CJ in the South Australian Full Court in R v Bilick & Starke (1984) 36 SASR 321 (Bilick) at 337:
Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: On the assumption that all the evidence or primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused? That, as it seems to me, was the question which the learned trial Judge was required to answer in deciding on the submission of no case to answer.
In “Questions of Law Reserved on Acquittal (No. 2 of 1993)” 61 SASR 1, King CJ applied what he had said in Bilick (at 5):
It follows from the principles as formulated in Bilick (supra) in connection with circumstantial cases, that it is not the function of the judge in considering a submission of no case to choose between inferences which are reasonably open to the jury. He must decide upon the basis that the jury will draw such of the inferences which are reasonably open, as are most favourable to the prosecution. It is not his concern that any verdict of guilty might be set aside by the Court of Criminal Appeal as unsafe. Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence are reasonably open on the evidence: Attorney-General’s Reference (No. 1 of 1983) [1983] 2 VR 410; Thorp v Abbotto (1992) 34 FCR 366. He is concerned only with whether a reasonable mind could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence.
He also said (at 5):
I would re-state the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.
Proper approach to hypotheses of innocence
In written submissions, counsel for Mr Bradley sought to suggest that these passages supported an evaluation of the hypotheses that might be consistent with innocence to see if they are excluded. That appears to be a fundamental misreading of what King CJ is saying. It is the capacity of the evidence to lead to a conclusion of guilt that is to be the focus of attention. That cannot be affected by hypotheses consistent with innocence because if the evidence has that capacity it will be capable of excluding those hypotheses. The evaluation of whether the evidence has the capacity to establish guilt is the exclusive province of the jury.
The trial judge’s approach
As indicated, the assessment of hypotheses consistent with innocence is not an appropriate exercise for the trial judge to undertake in deciding whether to remove a case from the jury. However, it seems that the assessment of hypotheses consistent with innocence played a significant role in the ultimate conclusion of the trial judge that for each count there was no evidence to establish an essential element of the offence concerned.
Because of the way the question for the court was framed at the appeal hearing, and because the detail of the evidence that might have been given was not argued before us, we refrain from making any findings about the individual counts, but make some comments on his Honour’s approach to them by way of illustration of the conclusions we have reached about the legal requirements in such a case.
Count 1
Count 1 alleged that Mr Bradley used his position as a Commonwealth public official to influence Mr Luddington to add AMPM Glass and Electrical (AMPM) to the preferred tenderers list with the intention of dishonestly obtaining a benefit for himself and Mr Dunn, the principal of AMPM. Mr Bradley was a public official, Co-ordinator of the Australian Federal Police (AFP) Building and Accommodation Team, and had asked Mr Luddington, the principal of Manteena Pty Ltd (Manteena), to consider adding AMPM to the preferred tenderers list. The prosecution evidence would then show that Mr Dunn’s business was engaged to do glazing work for the AFP. It was alleged that Mr Bradley (by his family trust) had had a close business relationship with the business as well as personally guaranteeing a loan for Mr Dunn to purchase a motor vehicle.
In relation to this count, the trial judge concluded that “there was no evidence capable of supporting it”. As analysed by the trial judge, it was said that there was no evidence that the accused had dishonestly obtained the benefits alleged.
The trial judge made a number of points about the prosecution case which demonstrated the weakness and tenuous nature of the evidence intended to establish that Mr Bradley had used his position to influence Mr Luddington and that he, or AMPM, had obtained a benefit as a consequence. Those criticisms have considerable force, but the gravamen of the trial judge’s finding that there was no evidence to support this charge related to his analysis of the evidence that the prosecution relied upon to support the element that Mr Bradley’s intention to obtain the benefit was dishonest.
That analysis was predicated on the prosecution reliance upon the fact that Mr Bradley had not declared his interest in AMPM to the AFP as he was required to do (and presumably, it would be shown, as he knew that he was required to do). In that regard, the trial judge said (at [31]):
More fundamentally, it should have been obvious to anyone not completely intoxicated by the perceived virtues of bureaucratic procedures that people may fail to comply with them for reasons other than an intention to dishonestly obtain benefits. It should also have been obvious that the accused’s interaction with Mr Luddington could not be deemed, ipso facto, to have been dishonestly motivated. It was incumbent upon the Crown to prove that the accused had acted with the intention alleged and, since it was dependent upon circumstantial evidence, this required the Crown to adduce evidence that was capable of excluding any hypothesis consistent with his innocence. One obvious hypothesis was that he had suggested that AMPM be added to what he had understood to be a list of preferred tenderers because he had believed that Mr Dunn could be trusted to carry out glazing work for the AFP competently and economically. The accused’s failure to mention his relationship with AMPM to the AFP at some antecedent time, even if required by AFP policy, could not, of itself, have excluded that hypothesis. Indeed, there was no reason to suppose that his business arrangements with Mr Dunn had not been attributable, in whole or in part, to confidence in his ability. It might well have been open to a jury to infer that the accused had acted with the intention alleged if there had been evidence that AMPM would have been able to gain some dishonest advantage by overcharging or failing to adequately complete work for which it had successfully tendered, but the Crown did not suggest that there was any evidence of any such factors.
In assessing the inference to be drawn from Mr Bradley’s failure to disclose his interest, it is not to the point to consider other available hypotheses. In so doing, the trial judge seems to be weighing up not only the availability but also the merits of the inferences that might be drawn. Those merits are not the issue; the issue is whether the inference to be drawn has the capacity to justify the ultimate conclusion.
There is no doubt that the inference which the prosecution sought to be drawn from Mr Bradley’s non-disclosure to the AFP would be strengthened by the matters such as overcharging or inadequate completion of the work to which the trial judge refers. However, the absence of such matters is not material to whether or not the inference that the prosecution sought to have drawn may be drawn.
Count 6
It is put by the prosecution that the trial judge’s consideration of Count 6 suffers from a similar defect in reasoning. That count charged that Mr Bradley, as a Commonwealth public official, engaged in conduct to facilitate Mr Dunn obtaining two sheets of glass with the intention of dishonestly obtaining a benefit for Mr Dunn.
Again, the trial judge justifiably criticised aspects of the prosecution case as to the ownership and value of the two sheets of glass the subject of the charge. He then went on to say (at [48]):
It would clearly have been open to the jury to find that the accused had acted with the intention of obtaining a benefit for Mr Dunn. However, it was also incumbent upon the Crown to prove beyond reasonable doubt that he had intended that the benefit be obtained dishonestly and there was, in my opinion, no evidence capable of establishing that element of the offence. It is not necessarily dishonest for an officer of the AFP or some other government body to give second hand building material to someone who may have a use for it, even if that person is a friend or business partner. Dishonesty might readily have been established by other factors such as proof that the accused had known that the AFP could have utilised the material on another job, or that it had had some a [sic] realisable value that would have been lost by his conduct. However, the Crown did not foreshadow calling evidence capable of establishing such factors. On the contrary, the foreshadowed evidence did not exclude the likelihood that the glass had been left in the car park pending disposal and that, by permitting Mr Dunn to remove it, the accused had simply intended to give him a benefit involving no corresponding loss to the AFP and actually save it the time and expense of making alternative arrangements for the glass to be taken to the tip.
The issue is not, as the trial judge puts it in this passage, whether an available inference as to Mr Bradley’s intention had been excluded but rather whether there is an inference to be drawn from the whole of the evidence that Mr Bradley acted dishonestly. In approaching this question, the trial judge propounded matters that could be regarded as competing inferences to be drawn from the foreshadowed evidence.
In the light of the principles that the trial judge was bound to apply, his approach gives rise to a suspicion that he was balancing competing inferences and ruling that they had not been excluded. The particularised allegation of dishonesty was that Mr Bradley “exceeded his authority and facilitated the removal of glass that did not belong to him”. If there was evidence of Mr Bradley not having such authority and knowing that he was acting without it, that evidence was capable of leading to an inference of an intention to act dishonestly.
It was neither necessary nor appropriate for the trial judge to engage in speculation as to alternative hypotheses instead of simply addressing any inference that arose from the evidence concerning Mr Bradley’s lack of authority to act as he did.
Counts 8, 9 and 10
These counts involve allegations of a conflict of interest between Mr Bradley’s official responsibilities and his personal and commercial relationship with Mr Goodwin, who operated G & A Painters. Count 8 alleged that Mr Bradley arranged for the award of a particular contract to G & A Painters with the AFP for a painting project, and that Mr Bradley had, with the intention of dishonestly obtaining a benefit for Mr Goodwin, overruled a contrary recommendation without just cause, and without declaring his friendship with Mr Goodwin and that he had received discounted paint from Mr Goodwin,. Count 9 alleged that Mr Bradley, with the intention of dishonestly obtaining a benefit for Mr Goodwin, had arranged the engagement of Mr Goodwin to paint a computer room at the Weston Police Complex without conducting a tender process in accordance with government policy and procedure, and without declaring his friendship with Mr Goodwin and that he had received discounted paints from Mr Goodwin. Count 10 alleged that Mr Bradley had, with the intention of dishonestly obtaining a benefit for Mr Goodwin, arranged the engagement of G & A Painters for the wash down of the Weston Police complex without conducting a tender process in accordance with government policy and procedure, and without declaring his friendship with Mr Goodwin and that he had received discounted paints from Mr Goodwin.
In relation to Count 8, the trial judge said (at [62]) that:
In considering whether there was a prima facie inference that the accused acted with the intention of dishonestly obtaining a benefit for G & A Painters, it was obviously relevant to consider whether there was any evidence capable of excluding alternative hypotheses. One obvious hypothesis was that he had acted, not for the benefit of that firm, but rather for the benefit of the AFP.
In expressing himself in this way, the trial judge seems to be clearly taking on the role of the fact finder by contemplating a scenario that Mr Bradley was acting for the AFP’s benefit. By taking into account hypotheses consistent with Mr Bradley’s innocence, he is apparently not taking the prosecution’s case at its highest. His approach can therefore be justifiably criticised.
The prosecution pointed to the foreshadowed evidence as establishing a close personal friendship between Mr Bradley and Mr Goodwin. Mr Goodwin’s business did painting work on a property development for a company in which Mr Bradley had an interest through Bradley Developments Pty Limited. G & A Painters had rendered invoices to this company for approximately $71,000. Mr Bradley used G & A Painters’ trade account to obtain paint for personal use at a discounted price. None of these matters was disclosed to the AFP and this is capable of supporting an inference of dishonesty on Mr Bradley’s part. The availability of other inferences arising on the evidence might detract from the force of this inference but not its availability or capacity to prove this element of the offence. Thus, if the evidence on which the prosecution would seek to rely is taken at its highest, it may be said to be capable of establishing the dishonest intent required in relation to Count 8.
The trial judge made similar comments about Count 9 (at [65]), and our view of his handling of Count 9 reflects our view on Count 8.
The trial judge dealt with Count 10 on a different basis. He pointed to the fact that it was alleged that Mr Bradley had “arranged” for G & A Painters “to be engaged”. There was evidence at the committal that the decision to employ G & A Painters had been made by an AFP employee other than Mr Bradley. The trial judge took the view that there was no evidence that Mr Bradley arranged the engagement. In other words, there was no evidence to support a physical element of the offence. It was the inability of the prosecution to point to evidence from which that inference could be drawn that lead the trial judge to his conclusion.
Although at the hearing before this court it was suggested that there may have been material from which it could have been inferred that Mr Bradley had acted as alleged, the trial judge’s approach to this count does not raise the same issues as are raised by his assessment of alternative hypotheses in relation to the other counts. Accordingly, this count requires no further consideration for the purpose of dealing with the question we have been asked to answer.
A Prasad direction
It is clear from what has been discussed in respect of all of the counts before the court that the prosecution case was far from satisfactory. If the evidence remained as had been foreshadowed by the prosecution, it would almost certainly have given rise to a successful application for a Prasad direction at the close of the case for the prosecution.
In Prasad, King CJ said (at 163):
It is, of course, open to the jury at any time after the close of the case for the prosecution to inform the judge that the evidence which they have heard is insufficient to justify a conviction and to bring in a verdict of not guilty without hearing more. It is within the discretion of the judge to inform the jury of this right, and if he decides to do so he usually tells them at the close of the case for the prosecution that they may do so then or at any later stage of the proceedings: Archbold, Criminal Pleading and Practice 39th ed, (1976) p 332. He may undoubtedly, if he sees fit, advise them to stop the case and bring in a verdict of not guilty.
However, the availability of such a direction does no more than stress the importance of the decision being that of the jury, not the judge. That is so even when it appears, as seems to be this case, that a successful application for such a direction will be an inevitable outcome at the close of the evidence for the prosecution.
The question of law to be answered
Having regard to the request made by counsel for the Director that this court decide whether the right question was asked and addressed by the trial judge, rather than determine the factual issues raised by the evidence, it seems appropriate to reformulate the question of law that this court should answer. It seems to us that the issue is better addressed (noting the question posed in JMR and quoted at [28] above) by asking the question: Is a trial judge entitled to record a verdict of acquittal pursuant to s 287 of the Crimes Act 1900 (ACT) in respect of a prosecution case based on circumstantial evidence on the basis that the prosecution could not negative all other reasonable inferences which were inconsistent with the guilt of the accused? We would answer that question “No”.
On that basis, it is unnecessary to answer the question posed by the applicant in respect of each of the specified counts on the indictment.
Order
The appeal is allowed for the purpose of answering the following question:
Question: Is a trial judge entitled to record a verdict of acquittal pursuant to s 287 of the Crimes Act 1900 (ACT) in respect of a prosecution case based on circumstantial evidence on the basis that the prosecution could not negative all other reasonable inferences which were inconsistent with the guilt of the accused?
Answer: No.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 22 April 2009
Counsel for the Applicant: Mr T A Game SC with Mr D Jordan
Solicitor for the Applicant: Commonwealth Director of Public Prosecutions
Counsel for the Interested Party: Mr F J Purnell SC with Mr S Hausfield
Solicitor for the Interested Party: Porters Lawyers
Date of hearing: 16 May 2008
Date of judgment: 22 April 2009
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