Cornwell v Riley
[1999] FCA 727
•9 JUNE 1999
FEDERAL COURT OF AUSTRALIA
Cornwell v Riley [1999] FCA 727
CRIMINAL LAW – appeal – verdict – appeal from decision of single judge confirming decision of magistrate – whether single judge erred in confirming convictions recorded by magistrate.
EVIDENCE – tendency evidence – whether impermissible use – whether error of law to use for permissible purpose without direction as to limitations on proper use.
APPEAL – whether decision of magistrate should be set aside on grounds of inadequacy of reasons.
PRACTICE AND PROCEDURE – notice of appeal – application for leave to amend.
Crimes Act 1914 (Cth) ss 7, 29D, 72(c), s 72(d), 86A
Evidence Act 1995 (Cth) ss 91(1), 95, 97(1)(b), 101, 110-111Butera v Director of Public Prosecutions (Vict.) (1987) 164 CLR 180 referred to
R v Omer (unreported, Vic Court of Appeal, 14-15 February 1996 per Winneke P) referred to
R v Armstrong [1941] St R Qd 161 referred to
R v McKellin (unreported, Vic Court of Appeal, 19 December 1997) referred to
R v Gallagher [1998] 2 VR 671 at 688 referred to
Zaknic Pty Ltd v Svelte Corporation (1995) 61 FCR 171 at 176 referred to
BRS v The Queen (1997) 191 CLR 275 at 301, 305 referred to
Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 280 referred to
Brackenreg v Comcare Australia (1995) 56 FCR 335 at 351 referred to
Peters v The Queen (1998) 192 CLR 493 referred to
Edwards v The Queen (1993) 178 CLR 193 referred toOn appeal from the Supreme Court of the Australian Capital Territory
IAN GEOFFREY CORNWELL v TERRENCE JOHN RILEYAG 67 OF 1998
JUDGES: SPENDER, HIGGINS & WEINBERG JJ
DATE: 9 JUNE 1999
PLACE: CANBERRA
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
AG 67 OF 1998
ON APPEAL FROM THE SUPREME COURT OF THE
AUSTRALIAN CAPITAL TERRITORY
BETWEEN:
IAN GEOFFREY CORNWELL
AppellantAND:
TERRENCE JOHN RILEY
RespondentJUDGES:
SPENDER, HIGGINS & WEINBERG JJ
DATE OF ORDER:
9 JUNE 1999
WHERE MADE:
CANBERRA
THE COURT ORDERS THAT:
The appeal be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
AG 67 OF 1998
ON APPEAL FROM THE SUPREME COURT OF THE
AUSTRALIAN CAPITAL TERRITORY
BETWEEN:
IAN GEOFFREY CORNWELL
AppellantAND:
TERRENCE JOHN RILEY
Respondent
JUDGES:
SPENDER, HIGGINS & WEINBERG JJ
DATE:
9 JUNE 1999
PLACE:
CANBERRA
REASONS FOR JUDGMENT
This is an appeal from a decision of Gallop J in the Supreme Court of the Australian Capital Territory. On 7 July 1998, his Honour allowed an appeal against conviction in respect of one of a number of charges which had been dealt with by a Magistrate. In respect of the other charges, his Honour dismissed the appeal and confirmed the convictions.
The appellant was convicted, on 12 December 1997 before Magistrate Fryar in the ACT Magistrates’ Court, of two counts of falsifying a document contrary to s 72(c) of the Crimes Act 1914 (Cth) (“the Act”), one count of destroying a document contrary to s 72(d) of the Act, one count of attempting to defraud the Commonwealth contrary to ss 7 and 29D of the Act, and one other count, arising out of a different fact situation, of falsifying a document contrary to s 72(c) of the Act. On 20 February 1998, he was sentenced to a term of imprisonment, wholly suspended, in relation to each count.
The appellant was employed by the Department of Defence and worked at the Chief Engineer’s Office at Duntroon. He was responsible for organising the cleaning, refurbishment and maintenance of defence force buildings at the Russell Complex.
The first three offences were said to have been committed on or about 24 October 1995 in relation to the tender process for cleaning the airconditioning, and in relation to the tender process for re-balancing the system after cleaning, in what was described as building “J”, occupied by the Department of Defence. The fourth offence, that of attempting to defraud the Commonwealth, was said to have been committed between 24 October 1995 and 1 March 1996, once again in relation to the tender process concerning building “J”. The fifth offence arose out of tenders for cleaning the airconditioning in respect of building “L”. It was said to have been committed between 11 October 1995 and 13 October 1995. The allegations relating to the fifth count were unrelated to the first four counts. The appellant’s conviction upon that count was quashed by Gallop J. It is unnecessary, therefore, to say anything further in relation to that matter.
Background
The prosecution case in respect of the first count was that the appellant had altered the numbers on a Schedule of Tender Prices shortly before that document was lodged on behalf of a particular company, Action Duct Clean Pty Ltd. The schedule related to the cleaning of the airconditioning in building “J”.
The second count alleged that the appellant had altered the numbers on another Schedule of Tender Prices, this time relating to the re-balancing of the system, after cleaning, in building “J”.
The third count alleged that the appellant had destroyed a covering letter on the letterhead of Action Duct Clean Pty Ltd which had contained the figures originally set out in the two schedules prior to their having been altered.
The fourth count alleged that the appellant had engaged in a course of conduct which included his having intercepted the tender before it was put in the tender box, altered the price, approved (and caused others to approve) the higher price, and concealed from those others the original and true price. This count was charged as an attempt to defraud the Commonwealth because the Commonwealth had not, in fact, been defrauded. The contract was ultimately invoiced, and paid, at the lower price originally contained in each schedule.
The prosecution case
The prosecution case was that a Mr Kevin Brownlie (“Brownlie”), the manager of Action Duct Clean Pty Ltd, had, on 24 October 1995, approached the appellant at his place of work at the Chief Engineer’s Office at Duntroon on 24 October 1995. Action Duct Clean Pty Ltd had done work in the past for the Department of Defence. It had been successful in two previous tenders, each of which had involved the appellant. It had been unsuccessful in two other tenders.
Brownlie’s evidence was that the company had been invited to tender for the cleaning of the airconditioning in building “J” which had a similar layout to another building which the company had previously cleaned, although building “J” was larger. On the day on which tenders were to close, Brownlie attended at the Chief Engineer’s Office in order to seek assistance in completing the tender documents. The appellant told him that he was too busy to assist him at that time, but would do so later.
Brownlie stated that he returned at about 3.00 pm bringing with him an envelope containing an original covering letter and two Schedules of Tender Prices, one in respect of cleaning, and the other in respect of re-balancing the system. He stated that those Schedules contained the figures $24,500 and $10,000 respectively, and that those figures were also set out in the covering letter.
Brownlie claimed that the appellant had invited him into an adjoining room for coffee, and then out on to an adjoining patio. The appellant had then opened the envelope containing the two Schedules of Tender Prices, and the covering letter, read them, torn up the covering letter, and asked Brownlie whether the blue biro in his pocket was the pen which he had used to fill in the numbers in those Schedules. When Brownlie replied that it was, the appellant had taken the pen and altered the figures from $24,500 to $29,500 and from $10,000 to $16,000 respectively. The appellant had then told Brownlie to write out, in full, the words “twenty nine thousand five hundred dollars”, and “sixteen thousand dollars”, beneath the amended figures, and to initial these handwritten alterations. Brownlie stated that he had done so. The Schedules of Tender Prices, with these alterations clearly visible upon them, had then been lodged as the Action Duct Clean Pty Ltd tenders.
Brownlie had informed the appellant that Action Duct Clean Pty Ltd proposed to use a subcontractor, Mr Stan Bowden, for the re-balancing of the airconditioning system. Brownlie claimed that the appellant said to him words to the following effect:
“I don’t want to use Stan Bowden, I want to use ABC, Australian Balancing Company. They underquoted on buildings G and H and I want to make up some of their losses to them and that is why that has been changed from the $10,000 to the $16,000.”
It should be noted that in his initial statement to the police on 2 November 1995, Brownlie did not make any reference to his having written in the words “twenty nine thousand five hundred dollars” or “sixteen thousand dollars”, or his initials, on the Schedules of Tender Prices. He first alluded to those matters in a supplementary statement which he made several months later, on 12 March 1996.
It should also be noted that Brownlie had not mentioned in either previous statement to the police the evidence which he later gave concerning the appellant’s wanting to use ABC to make up for their under quote on buildings G and H.
Brownlie said in evidence that a few days after his meeting with the appellant on 24 October 1995, the appellant handed him a form described as an SA 405, being a requisition for services. That form, which was dated 26 October 1995, itemised cleaning of duct work at $29,500 and balancing of the system at $16,000.
The Magistrate made the following finding in relation to the SA 405 form:
“The evidence concerning the SA 405 form is consistent with Kevin Brownlie’s version of the defendant destroying the original and also giving Kevin Brownlie a copy of the form. The fact that Kevin Brownlie could not be certain where he was when he was handed the form is of no moment.”
It is common ground in the appeal before this Court that Brownlie had not given evidence of the appellant “destroying the original” of the SA 405 form. Indeed, all three originals of that form, all bearing the same figures, were tendered by the prosecution in the trial. The significance of the Magistrate’s erroneous finding in relation to this issue will be discussed later in these reasons for judgment.
On 5 January 1996 Brownlie had a conversation with the appellant which was recorded by means of a listening device. The tape of that conversation was tendered in evidence. However, its content was often unclear. There was a dispute as to the accuracy of a transcript of the tape which had been prepared by the police. That transcript was not, of course, tendered in evidence. It was, however, used in accordance with the principles laid down in Butera v Director of Public Prosecutions (Vict) (1987) 164 CLR 180, as an aid to ascertaining what was on the tape. There were several statements made by the appellant during the course of the tape recorded conversation which could be viewed as highly incriminating . At one point the appellant said to Brownlie:
“Yeah, if your son went in and complained we changed your quote, we’d both end up in gaol.”
The appellant acknowledged that he had made that statement to Brownlie. He claimed, however, that it related to an entirely different job, at a different building, and not to building “J”.
Brownlie’s son, Mr Martin Brownlie, gave evidence that he received a telephone call from the appellant at his home on the weekend of 6-7 January 1995. According to Martin Brownlie’s account, the appellant attempted during the course of that call to persuade him to accept payment for the higher amounts which had by then been approved, rather than the lesser amounts originally set out in the Schedules of Tender Prices, prior to their having been altered. Under cross-examination, Martin Brownlie reaffirmed having received the call on 6 or 7 January 1995. He said in evidence that he was certain that he took the call in the early afternoon.
The appellant denied having had any such telephone conversation with Martin Brownlie. He claimed that he was not even aware, at the relevant time, that Martin Brownlie had any involvement in his father’s business. He said in evidence that he had been away on a canoe trip on the weekend of 6-7 January 1995, and that he had no access to a telephone whilst on that trip. He did not return until 8 pm, at the earliest, on the night of 7 January. He called evidence from an independent source to support this account. The prosecutor suggested to the appellant, in cross-examination, that if the conversation had not occurred on 6-7 January, it had occurred sometime thereafter, possibly the very next weekend. There the matter rested.
Both Brownlie and his son Martin agreed that they were never asked for money by the appellant. Nor had they ever given him any money. A suggestion in Brownlie’s initial statement to the police that the appellant had mentioned the subject of money on 24 October 1995 (“I will see you later about (either half the money or) the money”) was not led in evidence-in-chief. Brownlie himself conceded in cross-examination that he was “not certain what (if anything) was said” about the subject of money.
The defence case
The appellant’s case was that Brownlie had approached him at about 9.30 am on the morning of 24 October 1995 for assistance in filling out the Schedules of Tender Prices. Brownlie had told the appellant that his company intended to use Stan Bowden for the re-balancing of the airconditioning component of the work. The appellant had told him that as Mr Bowden was employed as a consultant by the Department of Defence to supervise the work in question, the Department would not accept a tender that involved him in the role of subcontractor.
The appellant said in evidence that he had also told Brownlie to make sure that contingency allowances were included in the quotes to cover variations because of unforeseen work. Every job that Action Duct Clean Pty Ltd had previously done for the Department had involved such variations. The tender documents issued by the Department required contractors to allow a contingency of $6,000.00 for airconditioning cleaning, and a contingency of $5,000.00 for re-balancing the system thereafter. Although those tender documents had been sent to Action Duct Clean Pty Ltd on 17 October 1995, Brownlie had obviously not read them. The appellant claimed that it was obvious that Brownlie did not know what a contingency allowance was, let alone that such allowances were required to be included in any tender. The appellant said that Brownlie became “very indignant” when reminded of these requirements during their conversation. The appellant declined to discuss the matter further with him. He claimed that he simply told Brownlie to come back later, and put his price in the tender box.
The appellant acknowledged that he saw Brownlie later that afternoon, at, or shortly after, 3.00 pm. He denied Brownlie’s version of what had occurred thereafter. He denied having been shown the Schedules of Tender Prices. He denied having altered any figures on those documents. He denied having caused Brownlie to write upon them the words “twenty nine thousand five hundred dollars” and “sixteen thousand dollars”. He denied having torn up any covering letter. He denied having had any conversation with Brownlie along the lines alleged by Brownlie.
On 1 March 1996, the respondent, Federal Agent Terrence John Riley of the Australian Federal Police, approached the appellant at his place of work. Agent Riley had informed him that he had warrants of apprehension in relation to unpaid traffic fines. The appellant accompanied Mr Riley to police headquarters and took part in a record of interview concerning the allegations made by Brownlie. The appellant denied each of those allegations. He denied specifically having altered any figures on the Schedules of Tender Prices. He also denied having destroyed the covering letter.
The Magistrate’s reasons
The Magistrate convicted the appellant on all five charges. As noted earlier, the first four charges related to matters concerning building “J” in the Russell Office Complex, and the fifth related to building “L”. Her Worship stated in her reasons for judgment that she did not propose to recite the evidence in detail. She considered that there was a narrow factual issue to be resolved. Had the defendant altered the Schedules of Tender Prices by revising the figures upwards? Had he destroyed the covering letter?
She continued:
“Essentially it is a contest between the evidence of the defendant and that of Mr Kevin Brownlie. The defendant denies any of the incriminating aspects of Kevin Brownlie’s evidence.
Accordingly I must ask whether there is any reason why I cannot accept the evidence of the defendant, and thus reject the hypothesis consistent with innocence that he puts forward.
The defendant’s evidence was that he saw Kevin Brownlie with the Schedules of Tender Prices in the morning of 11 October 1995 [sic] and the schedules were blank. The next time he saw the schedules was when they came out of the tender box. This is absolutely in contrast to the evidence of Kevin Brownlie. If the defendant is to be accepted, the only conclusion that could be made is that Kevin Brownlie was fabricating his evidence. However if that possibility is considered I cannot see what possible motive Kevin Brownlie would have for the whole charade. Certainly it is not the case that he is mistaken as the events are described in detail and with clarity.
Considering all the evidence, there are some objective factors that give support to the Kevin Brownlie version.
(1)The figures in the Schedules of Tender Prices were increased to just under the amount of the next lowest tender price. It is not possible that Kevin Brownlie knew what that figure was. It is, however, certainly consistent with whoever changed the prices knowing what the next lowest price was. That was also something that may have been within the knowledge of the defendant.
(2)There was no reason for the Brownlies to have the covering letter typed with the wrong figures. There is also no other explanation for the original of the covering letter to be missing from the file.
(3)I have no reason to disbelieve Martin Brownlie's evidence about the telephone conversation with the defendant. True it is that there may be some doubt as to the timing of the conversation, bearing in mind the evidence of Max Kingston. But I accept that Mr Brownlie may have been mistaken about the timing of the call. That does not in my view throw doubt on the substance of his evidence. The alternative theory if Martin Brownlie's evidence was to be disbelieved, that the Brownlies were in a conspiracy to fabricate evidence with the purpose of implicating the defendant is, in my view, fanciful.
(4)The listening device tape is a very interesting piece of evidence. There would appear on the face of it to be some ambiguities in what was said, but the defendant's explanation that he was confused about which building Kevin Brownlie was talking about is inherently improbable. Further, the defendant's demeanour in the witness box did not support the contention that he was telling the truth. Of course I must take into account the defendant's good character when assessing his credibility, but I found his evidence to be at times evasive and conveniently self-serving.
(5)There is unchallenged evidence from workmates of the defendant that he was known to have departed from proper procedure on occasions. There is no question that the defendant knew what the proper procedures were.
(6)The evidence concerning the SA 405 form is consistent with Kevin Brownlie's version of the defendant destroying the original and also giving Kevin Brownlie a copy of the form. The fact that Kevin Brownlie could not be certain where he was when he was handed the form is of no moment.
(7)It may not be apparent on the face of the evidence (it is clear that the defendant did not receive anything as a result) but it is possible to conceive of a motive for the defendant to have behaved as alleged. I take it no further than that.
It seems trite to repeat the standard of proof required, but I have to be satisfied of all the elements of the offences beyond reasonable doubt, and in doing that I must have rejected all reasonable hypotheses consistent with innocence. Weighing up all the evidence, I have come to the conclusion that the defendant's version is not to be believed and, accepting Mr Kevin Brownlie's evidence, I am satisfied that the defendant behaved as described, fraudulently or dishonestly in breach of his duty to the Commonwealth falsified the Schedules of Tender Prices in question, and also destroyed the covering letter.
Accordingly I am satisfied beyond reasonable doubt of all the elements of these offences in charges CC96/40256-59 and find those offences proved.”
The judgment of Gallop J
By notice of appeal dated 12 March 1998 the appellant appealed against the decision of Magistrate Fryar. He relied upon nineteen separate grounds of appeal in the proceedings before Gallop J. These grounds were, in the main, challenges to the findings of fact made by the Magistrate.
Gallop J’s reasons for judgment were delivered ex tempore. Gallop J was critical of her Worship for having failed to state with clarity upon what facts she had found the accused guilty of all five offences, as charged in the informations. His Honour commented specifically upon her failure to make findings of fact which would assist the Court. His Honour recognised that the grounds of appeal before him all involved challenges to findings of fact made by the Magistrate and, in particular, her finding that the version of events given by Brownlie should be accepted in preference to that given by the appellant.
His Honour then stated (with some editing of typographical errors contained in the transcript of his Honour’s ex tempore judgment):
“I turn to the Magistrate's reasons for making a judgment about the respective credibilities of Mr Kevin Brownlie and the appellant. Before I do so, I just wish to add that, as a matter of law, when judging credibility a court does not have to be satisfied to any particular standard about why one witness is more credible than another. It is not a credibility which has to be established beyond reasonable doubt and as we all know, there are many indicia which are taken into account by a fact-finding tribunal in judging the credibility of a witness.
The Magistrate's reasons, as I say, unsupported by any facts which she found, were that the figures in the Schedules of Tender Prices were increased to just under the amount of the next lowest tender price. She said,
"It is not possible that Kevin Brownlie knew what that figure was. It is, however, certainly consistent with whoever changed the prices knowing what the next lowest price was. That was also something that may have been within the knowledge of the defendant.”
I cannot see any criticism of that reasoning. Secondly:
“There was no reason for the Brownlies to have the covering letter typed with the wrong figures. There is also no other explanation for the original of the covering letter to be missing from the file.”
Accordingly, the Magistrate accepted Mr Brownlie’s explanation as to what happened to the original. Thirdly, she said,
"I have no reason to disbelieve Martin Brownlie's evidence about the telephone conversation with the defendant.”
She further said,
“True it is that there may be some doubt as to the timing of the conversation, bearing in mind the evidence of Max Kingston.”
Max Kingston had given evidence that no such telephone call was made by the appellant over the weekend of 6‑7 January 1996 because they were in a remote place and Mr Kingston was in the company of the appellant all the time and it was not possible for him to have made a phone call. The Magistrate dealt with that by saying,
"But I accept that Mr Brownlie may have been mistaken about the timing of the call".
She said,
"That does not in my view throw doubt on the substance of his evidence. The alternative theory if Martin Brownlie's evidence was to be disbelieved, that the Brownlies were in a conspiracy to fabricate evidence with the purpose of implicating the defendant is, in my view, fanciful.”
I cannot find any error in her Worship's reasoning in that paragraph. It is unnecessary for me to say any more about the other reasons which the Magistrate gave for preferring the evidence of the Brownlies to that of the appellant in relation to those charges.
It is well established that where a case turns on credibility, the appellate court should give due respect to the opportunity which the court at first instance has had to make a judgment about credibility. This court is simply not entitled to interfere with a decision based on the lower court's view of the credibility of witnesses, unless it is seen clearly to be wrong on grounds which do not depend upon credibility, for example, on the ground that the evidence which was accepted was inconsistent with established facts or was so improbable that no reasonable person could accept it, or that the judgment of the Tribunal disclosed that its conclusion was affected by some error of law or fact.
So much was said in Uranerz v Hale (1980) 30 ALR 193 at p199 per Gibbs J, as he then was. Similar observations were made by the High Court in Devries v Australian National Railways Commission (1993) 177 CLR 472 at p 479,
"... a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against ‑ even strongly against – that finding of fact (See Brunskill (1985) ALJR 842; 62 ALR 53; Jones v Hyde (1989) 63 ALJR 349; 85 ALR 23; Abalos v Australian Postal Commission (1990) 171 CLR 167). If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" (S.S.Hontestroom v S.S. Sagaporack [1927] AC 37, at p47) or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence " or which was "glaringly improbable” (Brunskill (supra) at p844; p57).
And, lastly, Deane and Dawson JJ agreeing with the majority decision in the same case said; at p480, that even where the appellate court has not seen and heard witnesses,
“…the court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions".
The Magistrate's decision about those four charges was resolved on a credibility issue and I cannot see any basis for interfering with it. The appeal against those convictions is dismissed and I confirm the orders made by the Magistrate. There being no question of penalty involved, I say nothing about the question of penalty.”
The appeal to this Court
The notice of appeal filed in this Court on 27 July 1998, some three weeks after Gallop J delivered his reasons for judgment on 7 July 1998, originally contained thirteen separate grounds. These grounds were, in general, similar to the nineteen grounds which had been argued before Gallop J. They all involved challenges to various findings of fact made by the Magistrate.
The appellant now belatedly seeks leave to amend that notice of appeal, by substituting for it a new notice of appeal which contains six grounds. These are as follows:
“2. That the judgment is affected by error of law in that:
(a)the Magistrate erroneously used as tendency evidence material which was inadmissible as tendency evidence;
(b)the Magistrate erroneously used material as tendency evidence without directing herself properly or at all as to the limited use to which that material could be put;
(c)the Magistrate erred in law in finding that the appellant destroyed the original SA 405 form, when there was no evidence to support that finding;
(d)the Magistrate erred in law in failing adequately to state reasons for her decision;
(e)the Magistrate erred in law in holding that the facts found in relation to charges 9640256, 9640257 and 9640258 amount to offences contrary to s 72(c) and (d) of the Crimes Act 1914;
(f)the Magistrate erred in law in making no findings of fact in relation to charge 9640259, that the appellant attempted to defraud the Commonwealth.”
It should be noted that these grounds bear little resemblance to those argued before Gallop J, or to those grounds contained in the notice of appeal originally filed in this Court.
Mr Williams, who appeared for the appellant on the appeal to this Court, but who did not appear before the Magistrate, or before Gallop J, submitted that leave should be granted to amend the notice of appeal. He submitted that each of the six grounds sought to be argued raised a question of law which, if decided in favour of the appellant, would lead to some, or all, of the convictions recorded against him being quashed.
Mr Williams submitted that the issues concerning tendency evidence which he sought to raise in grounds 2(a) and (b) had been raised in argument, albeit briefly, before Gallop J. He conceded, of course, that none of the grounds of appeal before his Honour had involved any question regarding the use as tendency evidence of material which had been before the Magistrate.
Mr Williams submitted, somewhat boldly, that ground 2(c) had, in substance, been argued before Gallop J though under the rubric of a ground expressed as “failing to give sufficient weight to objective evidence”.
Mr Williams conceded that none of grounds 2(d), (e) and (f) had been argued before Gallop J. He conceded also that each of these grounds arose out of “incidental observations” made by his Honour in his reasons for judgment. He submitted that they raised questions of law concerning the adequacy of the Magistrate’s findings and reasons. They did not turn upon any issues of fact. The Court should, therefore, grant leave to the appellant to rely upon them.
Mr White, who appeared on behalf of the respondent to this appeal, did not oppose the appellant being granted leave to amend his grounds of appeal. That being the stance taken by the respondent, the Court has determined that leave to amend the notice of appeal should be granted. It should not be thought, however, that the Court does not have serious misgivings about the course which this appeal has taken.
Where an applicant wishes to amend his or her grounds of appeal at a late stage in the application, “sound reasons will be required to induce the court to entertain those grounds” – R v Omer (unreported, Vic Court of Appeal, 14-15 February 1996 per Winneke P). Leave to add grounds out of time will be granted where the Court is satisfied that a substantial miscarriage of justice has occurred – R v Armstrong [1941] St R Qd 161. A point may not be taken in a criminal appeal that was not the subject of an exception unless the applicant shows that a substantial miscarriage of justice has occurred – R v McKellin (unreported, Vic Court of Appeal, 19 December 1997); R v Gallagher [1998] 2 VR 671, per Callaway JA at 688.
The fact that the respondent either consents to the proposed amendments, or does not object to those amendments, will, of course, be relevant to the determination whether leave to amend should be granted. It will not necessarily, however, be decisive.
None of the grounds now relied upon by the appellant was argued as a ground of appeal before Gallop J. One such ground raises issues which were merely raised in passing before his Honour, but were not alluded to in his Honour’s reasons for judgment. This Court does not, therefore, have the benefit of his Honour’s views in relation to any of the grounds of appeal, as now amended.
The appeal before Gallop J was brought pursuant to s 208 of the Magistrates’ Court Act 1930 (ACT). Section 214 of that Act provides that in an appeal to the Supreme Court to which s 208 applies, the Supreme Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has the power to draw inferences of fact. The appeal is by way of re-hearing, albeit a re-hearing on the material before the Magistrate. It is not a re-hearing de novo in which either the appellant or the respondent may, as of right, adduce new evidence not before the Magistrate. The notice of appeal relied upon before Gallop J therefore set the parameters of his Honour’s judgment.
It must be remembered that the appeal to this Court is not an appeal against the conduct of the trial by the Magistrate. It is, rather, an appeal against the decision of Gallop J, who is said to have erred in holding that the convictions which had been recorded by the Magistrate should be confirmed. The appellant’s task of persuading this Court that his Honour erred in circumstances where no such point was taken before His Honour is therefore that much more difficult.
Grounds 2(a) and (b) – tendency evidence
These grounds involve what is known as “the tendency rule” which is defined in s97(1) of the Evidence Act 1995 (Cth) (“the Evidence Act”). That section provides as follows:
“97. (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind, if:
(a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence; or
(b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.”
Section 97(1) of the Evidence Act is subject to specific exceptions concerning the character of, and opinion about, accused persons. These exceptions are contained in ss 110-111 of the Evidence Act. There are further restrictions upon adducing tendency evidence about a defendant to a criminal proceeding. Section 101(2) of the Evidence Act provides that such evidence may not be adduced by the prosecution “unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant”.
Section 95 of the Evidence Act provides as follows:
“95. (1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.
(2) Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose.”Grounds 2(a) and (b) of this appeal arise out of the fifth of the objective factors found by the Magistrate to give support to the Brownlie version of what had occurred on October 1995. That fifth factor was as follows:
“There is unchallenged evidence from workmates of the defendant that he was known to have departed from proper procedure on occasions. There is no question that the defendant knew what the proper procedures were.”
That finding by the Magistrate formed one of seven “objective factors” that were said to give support to the Brownlie version. The reference to “unchallenged evidence from workmates of the defendant” was a reference to evidence from two colleagues of the appellant to the effect that he had, on occasion, opened the Department tender box other than in the presence of another officer.
That evidence was led in the form of a statement to that effect of Ms Melynda Jane McDonald. Her statement was tendered by consent. Ms McDonald was employed as an Administrative Service Officer with the Department of Defence at the Office of the Chief Engineer, Duntroon. As part of her duties, she had control of the second key of the second lock to the tender box. She stated:
“During the time I have held this position there have been a few occasions when Ian Cornwell has taken my key to the tender box, from me. I have observed Ian open the tender box on his own. I have seen him remove envelopes from the box, close the box and return the key to me.”
The evidence to which the Magistrate referred included also the evidence of another Departmental employee, Daniel Francis Webber. He said that, among his duties, he was required, on occasion, to assist another officer in the opening of the tender box. He said that the standard procedure laid down for the opening of the tender box was that all envelopes would be removed, date and time stamped, and initialled by the two officers responsible for receiving tenders. A tender evaluation form would then be completed.
Mr Webber was asked by the prosecutor:
“Okay. Now, was it ever the case that you were asked by Mr Cornwell to initial documents that had not been opened in your presence? - I believe so. I remember doing that, but I couldn’t tell you on an occasion what it was.
Okay. Now, can you recall what it was that you were asked to do by Mr Cornwell on that occasion? - No.
Okay. Did it involve you placing your initials on documents? – I have done that, yes.
Okay. And can you recall whether the documents were date stamped? – They would have been.
So before …? - The initial would have gone into the date stamp.
Okay. And where did you place your initial in relation to that stamp? - Well, it’s a round date stamp and just within that.
Okay. Now, can you recall how often that was done that - sorry withdraw that. I take it what you have just given evidence of was a clear departure from the procedure you have just given evidence of? – Yes.
And how often are you able to say that happened? – I couldn’t give you a number. It happened occasionally, not often though.
Okay. Now, on the occasions that you did this, I take it that you did not see any documents taken out of the tender box on those occasions? – No, not on those occasions.”
Mr Williams submitted that the “unchallenged” evidence of Ms McDonald and Mr Webber, being evidence which could not satisfy the requirements for the admissibility of tendency evidence under ss 97(1)(b) and 101(2) of the Evidence Act, had not been led as such by the prosecution, but rather as evidence of the appellant’s knowledge and understanding of the tender process. That evidence provided support for the prosecution contention that the appellant’s advance knowledge of the amount of the only other tender lodged had enabled him to know that the revised tender lodged by Brownlie would come in below, or just below, that other tender. It was plainly relevant for that purpose. It had, moreover, been used for that specific purpose by the Magistrate in finding that the first objective factor that she identified gave support to the Brownlie version of events.
It should be noted that the appellant did give an explanation for what Mr Webber had described which did not involve any concession on his part that he had failed to comply with standard procedures. He said in evidence that when a quote was sought from one company only, it did not go through the tender box. Such a quote would, nevertheless, be date stamped, and countersigned, when opened. The appellant contended that Mr Webber had simply confused the manner in which such quotes had, on occasion, been dealt with, and the appellant’s very different practice when dealing with quotes which had gone into the tender box.
Whether or not that explanation could, or should, be regarded as credible is not an issue in this appeal.
Mr Williams submitted that it was plain that although the evidence of Ms McDonald and Mr Webber had not been led by the prosecution as tendency evidence, it had been used by the Magistrate in that way. Her Worship had concluded in relation to the fifth objective factor, as set out in her reasons for judgment, that the evidence of Ms McDonald and Mr Webber gave support to Brownlie’s version of events.
The only way in which she could have arrived at that conclusion, Mr Williams submitted, was by following a line of reasoning that because the appellant had, on other occasions, acted in breach of standard procedures in relation to the tender process, it was more likely that he had also, as Brownlie claimed, acted in breach of those procedures on the afternoon of 24 October 1995. It was also more likely that he had done so fraudulently, or dishonestly.
Mr Williams submitted that that line of reasoning was not only impermissible – it was also fallacious. Pressure of work, or carelessness, could explain any departure from standard procedures. Those possible explanations provided at least a reasonable hypothesis consistent with innocence.
Mr Williams submitted that assuming that the Magistrate had used the evidence of Ms McDonald and Mr Webber in this way, it was clear that she had failed to determine whether its probative value substantially outweighed any prejudicial effect it might have. Such a determination was a necessary prerequisite to its use as tendency evidence. It could only be used in this way if “clearly and strongly probative of the relevant fact in issue”: Zaknic Pty Ltd v Svelte Corporation (1995) 61 FCR 171 at 176 per Lehane J. Manifestly that was not the case.
Alternatively, Mr Williams submitted, if it were to be suggested by the respondent that the Magistrate had used the evidence of Ms McDonald and Mr Webber for some other, permissible, non-tendency purpose, as was conceded, it would be an error of law for her to have done so without directing herself as to the limitations upon the proper use of that evidence. She had not so directed herself.
Mr Williams referred in this regard to BRS v The Queen (1997) 191 CLR 275 and in particular at 301 per Gaudron J:
“It is well settled that where evidence is admissible for one purpose but is inadmissible for another, the trial judge “should direct the jury that they must not use the evidence for the purpose for which it is inadmissible … [if] the use of the evidence for that purpose would be adverse to the accused.”’
Similarly, McHugh J at 305 stated:
“If evidence revealing a criminal or reprehensible propensity is admitted, the trial judge must give the jury careful directions concerning the use which they can make of the evidence. If the evidence is admitted for a reason other than reliance on propensity, the judge must direct the jury that they can use the evidence for the relevant purpose and for no other purpose.”
Mr Williams reiterated that the basis upon which the evidence of Ms McDonald and Mr Webber had been led by the prosecution was to provide a proper factual foundation for the first of the objective factors which her Worship found gave support to the Brownlie version. She had noted that the figures in the Schedules of Tender Prices had been increased to just below the amount of the next lowest tender price. Brownlie could not have known what that figure was. That increase was, however, consistent with whoever changed the prices knowing the next lowest price. That was a matter that may have been within the knowledge of the appellant. The reason was that he may have had access to the other tender prices through his irregular practice of accessing the tender box, and opening quotes, without another person being present, as required.
Having been adduced legitimately to provide support for that first objective factor, the evidence of Ms McDonald and Mr Webber could not be used by the Magistrate, to provide support, separately, for the fifth objective factor.
There are several difficulties with this somewhat elaborate, and belatedly conceived, argument. The first such difficulty relates to the Magistrate’s own explanation as to how she had used the evidence of Ms McDonald and Mr Webber. She concluded from their evidence that there was “no question that the defendant knew” the proper procedures associated with the tender process. That is the only conclusion which she said that she drew from that evidence.
The evidence of Ms McDonald and Mr Webber was, indeed, relevant to the appellant’s knowledge, and to his opportunity to have committed the offences alleged against him. The reason why that evidence was relevant is set out in the first of the objective factors relied upon.
It might have been preferable for the Magistrate to have set out more clearly the links between the first and fifth objective factors. Her failure to have done so does not, however, lead to the conclusion that the evidence was used by her in an impermissible manner.
We are certainly not persuaded that her Worship reasoned, either in terms, or by implication, that because the appellant had on other occasions acted in disregard of standard procedures (assuming that she found as a fact that this was so) he was therefore the type of person who was more likely to act fraudulently or dishonestly in the performance of his tender duties.
It is difficult to see why there should be attributed to the Magistrate the crude, and obviously unwarranted, conclusion that merely because the appellant had, on other occasions, departed from proper tender procedures, he was likely to have acted fraudulently or dishonestly by causing the tender price to be altered, and likely to have attempted to defraud the Commonwealth. It is more likely, we believe, that she intended to convey no more than that the appellant was in a position to have discovered the other tender figures, and thereby to have altered the Brownlie figures to “just below” those figures. That was because he knew of, and had the opportunity to depart from, proper procedures.
A second, and perhaps more fundamental, objection to Mr Williams’ submission arises from the fact that this is an appeal from the decision of Gallop J. It is not an appeal from the decision of the Magistrate. Gallop J considered carefully the Magistrate’s reasons for finding that the evidence of Brownlie should be accepted, and that the evidence of the appellant should be rejected. He considered specifically the first three objective factors relied upon by the Magistrate in support of her conclusion. His Honour found that no criticism could be levelled at her Worship’s reasoning in relation to those first three objective factors.
Gallop J then proceeded:
“It is unnecessary for me to say any more about the other reasons which the Magistrate gave for preferring the evidence of the Brownlies to that of the appellant in relation to those charges.”
In other words, his Honour did not rely upon the fifth objective factor in concluding, in his own re-hearing of the matter, that there was no basis for interfering with the Magistrate’s decision in relation to the four charges the subject of this appeal. The Magistrate’s decision had been based, his Honour concluded, upon her findings as to credibility. His Honour viewed these findings as unexceptionable. It is difficult to see how his Honour’s conclusions, based as they are only upon the first three objective factors, can be challenged.
Though ground 2(a) was briefly canvassed in argument before Gallop J, ground 2(b) was not addressed before his Honour at all. It is difficult to see how it can be said that either of these grounds has given rise to a miscarriage of justice. The evidence of Ms McDonald and that of Mr Webber was plainly relevant, and admissible. We are not persuaded that the Magistrate misused that evidence in the way for which Mr Williams now contends. And if she did, that does not, in any event, vitiate Gallop J’s decision to confirm the convictions.
In our opinion, grounds 2(a) and (b) are not made out.
Ground 2(c)
The “sixth objective factor” which the Magistrate found supported the Brownlie version was as follows:
“The evidence concerning the SA 405 form is consistent with Kevin Brownlie’s version of the defendant destroying the original and also giving Kevin Brownlie a copy of the form. The fact that Kevin Brownlie could not be certain where he was when he was handed the form is of no moment.”
Mr Williams submitted that, contrary to her Worship’s finding, it had not been suggested, and there was no evidence to suggest, that the appellant had destroyed the original SA 405 form. All three duplicate originals were in evidence before the Magistrate. Her Worship had plainly erred in this regard. That error should lead to the convictions being quashed.
We are not persuaded that such an error should lead to these convictions being quashed. Gallop J must surely have been aware of the fact that the Magistrate had erred in referring to the destruction of the SA 405 form. His Honour may have considered that what the Magistrate had intended to refer to was the destruction of the covering letter, which she had confused with the SA 405 form.
However, Gallop J did not rely upon, or endorse, the sixth objective factor relied upon by the Magistrate as support for the Brownlie version. He referred specifically to the first three factors, and concluded that he saw no error in her Worship’s reasoning in relation to those first three factors. He found it unnecessary to say any more about the other reasons which the Magistrate gave for preferring the evidence of the Brownlies to that of the appellant in relation to the charges in question.
It was open to his Honour, on an appeal by re-hearing, albeit an appeal confined to the material which had been before the Magistrate, to come to that conclusion. The mistake made by the Magistrate was, in the context of this case, inconsequential. It could not, of itself, justify interfering with the convictions which were confirmed, and which are the subject of this appeal.
Mr Williams acknowledged the difficulty of relying upon ground 2(c), standing alone, as a basis for allowing this appeal. That concession, though properly made, merely underscores the problem with which he was confronted.
Ground 2(c) is not made out.
Grounds 2(d), (e) and (f)
Mr Williams submitted in support of these grounds that where the resolution of a case depends entirely on matters of credibility, it is sufficient for a judicial officer simply to say that he or she believes one witness in preference to another. It is not necessary to go further and say, for example, that the reason for this conclusion was based on demeanour. The position will usually be different if other evidence, and probabilities, are involved. He referred to Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 in this regard, and in particular to the following observations by McHugh JA:
“A superior court, considering the decision of an inferior tribunal, should not be left to speculate from collateral observations as to the basis of a particular finding ….”
Mr Williams submitted that, in the present case, a fair reading of the Magistrate’s reasons for decision demonstrated that her findings had not turned exclusively on matters of credibility. He noted that the term “credibility” had been referred to in her Worship’s reasons only in relation to the listening device tape (the fourth objective factor). She had concluded on that issue that the appellant’s explanation as what appeared on that tape was inherently improbable. She stated, in the context of that explanation, that her perception of the appellant’s demeanour in the witness box did not support the contention that he was telling the truth. She found the appellant’s evidence to be, at times, “evasive and conveniently self-serving”. That had not, however, been a general finding, Mr Williams submitted, but one confined to the particular issue of the appellant’s explanation for what was on the tape recording.
Mr Williams submitted that the Magistrate had acted correctly in not determining the issues in this case solely on the basis of credibility. As Sheppard J observed, “[m]any experienced judges distrust demeanour as a conclusive guide to the veracity and reliability of a witness’ evidence”: Brackenreg v Comcare Australia (1995) 56 FCR 335 at 351. That refusal to act solely on the basis of credibility meant, however, that the Magistrate had been required to state adequately her reasons for decision, and to make the findings of fact necessary to explain, and justify, her conclusions.
Mr Williams then submitted that the Magistrate had failed to identify the elements of each of the offences charged in her reasons for decision. Those elements were not free from controversy. See for example Peters v The Queen (1998) 192 CLR 493 regarding the element of “dishonesty” in relation to the offence of conspiracy to defraud the Commonwealth, pursuant to s 86A of the Act. Yet the Magistrate had referred only to the appellant having “behaved as described, fraudulently or dishonestly in breach of his duty to the Commonwealth”.
Mr Williams submitted that the absence of any proper findings of fact, other than the general acceptance of Brownlie’s version of the events of 24 October 1995, deprived the Court of any means of knowing how she had addressed the relevant issues.
He submitted that the Magistrate’s failure adequately to state reasons was particularly egregious in respect of the fourth count, that of attempting to defraud the Commonwealth. The Magistrate had purported to make a “global” finding in relation to counts 1 to 3 by stating:
“Accordingly I am satisfied beyond reasonable doubt of all the elements of these offences in charges CC96/40256-59 and find those offences proved.”
The “global” finding was itself, he contended, inadequate in relation to those charges. There were, however, no findings at all in relation to the fourth count. The conduct alleged in that fourth count could not be viewed merely as a subset of counts 1 to 3. The first three offences were alleged to have been committed on or about 24 October 1995. Count 4 alleged a continuing course of conduct commencing on that date and terminating on 1 March 1996. It was impossible to tell from her Worship’s reasons what facts she had found that formed the basis of her decision to convict the appellant on that fourth ground, and in particular, how she had found that he had acted “dishonestly”.
We accept that there is some force in Mr Williams’ submissions in relation to these grounds of appeal. Gallop J was himself critical in his reasons for judgment of the inadequacy of the reasons given by the Magistrate.
There are, however, several reasons why we are not persuaded by Mr Williams’ submissions that the appeal should succeed.
On the prosecution case, the only purpose which the appellant might have had to have altered the Schedules of Tender Prices, and to have destroyed the covering note, was to ensure that the Commonwealth accepted a tender for a sum higher that that which had been originally proposed.
Had the appellant sought to put in issue his mens rea in causing the alterations to the schedules to be made, the Magistrate’s failure to address that question might well have vitiated her findings. Had the appellant, for example, given the explanation that he had altered the tender prices because he believed that it would be in the interests of the Commonwealth to have realistic, rather than hopelessly inadequate, tenders made, that might have raised an issue as to whether he had acted, in any relevant sense, fraudulently or dishonestly.
The appellant did not, however, conduct his trial on that basis. He denied having had anything to do with any alteration to the Schedules of Tender Prices. He denied having destroyed the covering letter. His denials were emphatic, and certain. They were made both in his record of interview, and when he gave evidence on oath.
Mr Williams submitted that the Magistrate had not found that the appellant had lied, but merely that she preferred Brownlie’s evidence. That is a submission which we are unable to accept. The appellant was adamant in both his record of interview, and in his evidence in Court, that nothing of the kind described by Brownlie had taken place between them on the afternoon of 24 October 1995.
It seems to us that there is simply no room for error on anyone’s part in relation to the events of that date. Either Brownlie was lying, or the appellant has been lying. The same may be said of the account given by Martin Brownlie of the telephone conversation between himself and the appellant. One or other of these two must be lying.
The Magistrate plainly disbelieved the appellant on his oath. Her finding that the appellant had lied was based in part upon his demeanour, and in part upon the “objective factors” found by her to provide support for Brownlie’s version. The first three of those objective factors were found by Gallop J to have provided such support for that version.
It is difficult to see how any real issue as to whether the appellant had acted “fraudulently” or “dishonestly” could be said to arise once the Magistrate had found that the appellant had consciously, deliberately, and repeatedly lied about having altered the Schedules of Tender Prices, and about having destroyed the covering letter.
The Magistrate must have concluded that the only reasonable inference which could be drawn from such lies was one of fraud, or dishonesty. They were lies about the central issues in the case, not about some peripheral matter. They were lies which, in our opinion, were not merely capable of evincing a consciousness of guilt, but lies which must have been found by the Magistrate to have evinced such a consciousness of guilt. No other conclusion was realistically open, notwithstanding the Magistrate’s failure to direct herself formally, in accordance with the principles laid down in Edwards v The Queen (1993) 178 CLR 193, as to the use which might be made of lies told by the accused.
We reiterate that the only purpose which could explain the appellant’s alterations to the Schedules of Tender Prices was that of ensuring the acceptance by the Commonwealth of a higher price. Those alterations to the Schedules, having been perpetuated by subsequent actions on his part, including his having lied about having been in any way responsible for the alterations, with no innocent explanation having been proffered, would not only have justified, but almost necessitated a finding that he had acted dishonestly, and had attempted to defraud the Commonwealth.
To contend, as Mr Williams has, that the Magistrate’s decision in relation to count 4 should be set aside because her Worship had not isolated the element of dishonesty in relation to that offence, and had not made findings in relation to each of the elements thereof, is to ignore entirely the manner in which the trial was conducted. Other than in a formal sense, the element of dishonesty was never really in issue in this case.
Mr Williams conceded that it had been open to the Magistrate to find that the appellant had acted with a fraudulent or dishonest intent. His real complaint was that it could not be ascertained what finding she had made as to any such intent, especially in relation to the fourth count, because her reasons had been so entirely devoid of particularity.
For the reasons set out above, we are unable to accept this submission. Grounds 2(d), (e) and (f) must be rejected.
It follows that the appeal should be dismissed.
I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate:
Dated: 9 June 1999
Counsel for the Appellant: Mr N J Williams Solicitor for the Appellant: Deacons Graham & James Counsel for the Respondent: Mr J White Solicitor for the Respondent: Director of Public Prosecutions (Cth) Date of Hearing: 24 February 1999 Date of Judgment: 9 June 1999
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