Hickey v Crime and Misconduct Commission
[2007] QDC 210
•13 September 2007
DISTRICT COURT OF QUEENSLAND
CITATION:
Hickey v Crime and Misconduct Commission [2007] QDC 210
PARTIES:
ANTHONY WILLIAM HICKEY (Appellant)
v
CRIME AND MISCONDUCT COMMISSION (Respondent)
FILE NO/S:
2868/06
DIVISION:
Civil
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court, Brisbane
DELIVERED ON:
13 September 2007
DELIVERED AT:
Brisbane
HEARING DATE:
16 July 2007
JUDGE:
Shanahan DCJ
ORDER:
Appeal allowed. Conviction set aside. Verdict of not guilty entered
CATCHWORDS:
COUNSEL:
Mr B Walker SC, with him Ms K Mellifont for the Appellant
Mr R Devlin SC for the Respondent
SOLICITORS:
Gilshenan & Luton Lawyers for the Appellant
Crime and Misconduct Commission for the Respondent
On 31 August 2006 after a two day hearing in the Magistrates Court, the appellant, a practising solicitor, was convicted of an offence against s 218(1) of the Crime and Misconduct Act 2001 (Qld). He was fined the sum of $6,000 and a conviction was recorded. This is an appeal against conviction and sentence.
Section 218(1) Crime and Misconduct Act 2001 provides:
“A person must not give the Commission a document containing information the person knows is false or misleading in a material particular.”
The appeal is brought pursuant to s 222 of the Justices Act 1886. Pursuant to s 223 of that Act the appeal is by way of rehearing on the evidence given in the proceeding before the Justices (Magistrate). On an appeal by way of rehearing, the powers of the Appellate Court are exercisable when the appellant can demonstrate that, having regard to all the evidence before it, the order that is the subject of appeal is the result of a legal, factual or discretionary error: Allesch v Maunz (2000) 203 CLR 172 at 180. The appeal court must make its own decision on the evidence, independent of the judgment of the Magistrate, although giving due weight to the view of the original decision maker: Aldrich v Ross [2001] 2 Qd R 235 at 255, 257. The appeal court is able to draw its own inferences, particularly where the appeal court is in as good a position as the trial judge to decide on the proper inferences to be drawn: Fox v Percy (2003) 214 CLR 118 at 127; CSR Ltd v Della Maddelena (2006) 80 ALJR 458 at 466. On an appeal by way of rehearing, if the appeal court, making proper allowances for the advantages of the trial judge, concludes that an error has been shown, that court must give effect to its own conclusions.
The Charge
The offence alleged that on 13 April 2005 the appellant gave the Crime and Misconduct Commission a document containing information which was false or misleading in a material particular contrary to s 218(1) of the Crime and Misconduct Act 2001 (Qld).
The charge provided particulars of the information that was alleged to be false or misleading in a material particular. Those particulars were that the document entitled “Trust statement 08 June 2004 Mr L Barden” and “Re: Lionel Barden Commonsense Campaign Fund” contained information that was false or misleading in a material particular in that:
(1) The document records that, in the period from 23 December 2003 to 3 March 2004, nine (9) credits and nine (9) debits were made in a ledger account of the Hickey Lawyers trust account ledger for a matter conducted for a person named “Mr L Barden”, when in truth, these credits and debits were made in a ledger account of the Hickey Lawyers trust account ledger for a matter conducted for persons named “Sue Robbins Councillor and David Power Councillor”: and/or
(2) The document does not disclose that the credit balance of $20,500 at 4 March 2004 in the ledger account of the Hickey Lawyers trust account ledger for a matter for Councillors Sue Robbins and David Power was transferred on that date to a ledger account established that day in the Hickey Lawyers trust account ledger for a matter for the said Mr L Barden.
It was agreed on appeal that s 218(1) should be construed to require the prosecution to prove that the appellant knew of the materiality (Appeal Transcript 41).
The Grounds of Appeal
The grounds of appeal against conviction are:
“1.The prosecution case does not establish beyond a reasonable doubt that the appellant was guilty of each of the elements of the offence as charged. The learned Magistrate erred in finding to the contrary.
2.The learned Magistrate erred in finding that there was a case to answer.
3.The learned Magistrate erred in finding that the information as provided by the appellant was false or misleading.
4.The learned Magistrate erred in finding that the appellant knew that the information was false or misleading.
5.The learned Magistrate erred in finding that the false or misleading information, as particularised, was material.
6.The learned Magistrate erred in finding that the false or misleading information, as particularised, was material to the knowledge of the appellant.
7.The learned Magistrate erred in making the following findings of fact:
(a) that the date 8 June 2004 on the Trust Statement document (Exhibit W2) was not changed in order to ‘perhaps…add a touch of historical authenticity rather than recent composition.’
(b) that the appellant thought that the Crime and Misconduct Commission ‘was some lumbering inefficient bureaucracy’.
(c) that the appellant was a ‘prime mover’ of the political campaign.
(d) that the appellant created the composite Trust Account statement (Exhibit D5); (Decision p 4, line 2).
(e) that Wild and Stokes went to ‘considerable trouble’ to prepare the Trust Account statement.
(f) that preparation of Exhibit D5 involved a ‘considerable amount of time and effort’.
(g) that there was ‘excising of the role of Power and Robbins in both the Barden Election Return and the composite Trust Account statement’.
8.The learned Magistrate failed to give any, or any proper weight, to the evidence of the appellant before the Inquiry, the evidence at trial of Sandra Wild and the evidence at trial of Kym Stokes.
9.The learned Magistrate failed to give any, or any proper weight, to the fact that the information, the absence of which was said to make his disclosure of 13 April 2005 false and misleading was provided [Exhibit 95] when sought by an appropriately worded demand [Exhibit 94] which significantly predated any mention of prosecutorial proceedings.
10.The learned Magistrate failed to give any, or any proper weight, to the following: -
(a) all records of the Power and Robbins (sic) were kept on the file held by the appellant’s firm.
(b) the appellant had given instructions to his staff that the records in respect of the trust were to be meticulously maintained. No document was destroyed.
(c) the file remained intact and available for inspection.
11. The learned Magistrate erred in finding that there was a motive for providing the CMC with a document that was false or misleading.”
The grounds of appeal against sentence are:
“1.The sentence was manifestly excessive.
2.The learned Magistrate erred in recording a conviction.”
The Background
It is necessary to summarise the background to the Crime and Misconduct Commission (CMC) investigation which led to the appellant being charged.
The Receivals and Assessment Unit of the CMC had been requested to provide advice for the purpose of assessing allegations of suspected official misconduct, namely that candidates had improperly disclosed or failed to disclose relevant election donations made or given to them by developers in relation to the Gold Coast City Elections of March 2004. Mr M Docwra, senior legal officer was assigned that task (Trial Transcript 13).
The CMC had information that suggested that there had been improper disclosures in relation to electoral returns by candidates or an alliance of candidates in the Gold Coast Council Elections. That information had come from newspaper reports, complaints and a third part electoral return of Lionel Barden required pursuant to s 430 of the Local Government Act 1993 (TT13,18). Mr Docwra had information relating to what was publicly called either the LIONEL BARDEN TRUST or the COMMONSENSE TRUST said to have been administered by Hickey Lawyers (TT14).
At 1.30 pm on 11 April 2005 Mr Docwra telephoned Mr Hickey and advised him that he was a legal officer with the CMC and that he was currently assessing complaints in relation to the disclosure of election donations during the course of the Gold Coast City Council election campaign in 2004 and subsequently. He advised Mr Hickey that the CMC understood that Mr Lionel Barden had provided a third party election return under the local government legislation and that Mr Hickey through his law firm had had the function of administering a trust account, the Lionel Barden Trust. Mr Docwra indicated that the CMC was seeking the cooperation of the trustee to access the details of the terms of the trust and the expenditures made out of the trust. Mr Hickey indicated that he was not the trustee himself and was only administering the trust on behalf of another and that he would have to seek written instructions to cooperate. Mr Hickey requested that the CMC write to him explaining how the CMC could access the information and Mr Docwra agreed to do so (TT15). It was made clear by Mr Docwra that the CMC had the third party return of Mr Barden (TT23). Mr Docwra agreed in cross-examination that Mr Hickey could have asked whether the third party return of Mr Barden showed all the donations and that he responded that the CMC was interested in the disbursements, although Mr Docwra did not include that in his notes of the telephone conversation (TT23).
A facsimile letter under the hand of Mr Docwra was sent at 5.15pm on 11 April 2005. The terms of that letter (Exhibit D2) were:
“RE: LIONEL BARDEN TRUST
I refer to our telephone conversation today in relation to the Lionel Barden Trust (the Trust).
I understand the (sic) Mr Lionel Barden is the Trust trustee.
I confirm your advice that you administered the Trust in accordance with written instructions.
The CMC is currently considering a complaint with respect to the disclosure of election gifts received by, or on behalf of, various candidates contesting the local government election/s for the Gold Coast City Council (the Council) in March 2004.
I note there was a by-election for division D14 of the Council on 22 January 2005.
To assist the CMC in the:
· Performance of its misconduct function under the Crime and Misconduct Act 2001 (the Act) and
· Its examination and consideration of the appropriate action to take in relation to the matter,
It is requested the CMC be provided with advice about, and/or a copy of the terms of the Trust, and/or any records of expenditures made from the Trust for a political purpose about an election or elections relating to the Gold Coast City Council in or about March 2004 or January 2005, if any.
Your cooperation is greatly appreciated, however, you may also wish to consider whether pursuant to s 75 of the Act, the Chairperson may be entitled to require you to give the above requested information to the CMC, in any event.”
On 12 April 2005 Mr Docwra contacted Mr Hickey by telephone to find out the status of when the trustee would be authorising the release of the information to the CMC. Mr Hickey confirmed the receipt of the facsimile of the previous day and that he was sending a request to the trustee for authority to provide access. Mr Hickey stated that he was not acting in a legal professional relationship with the trustee and said that he did not expect any difficulty in obtaining the authority and said that he expected that the CMC merely wanted to compare those records of expenditures with the candidate’s returns lodged subsequent to the elections. Further conversation ensued during which Mr Docwra informed Mr Hickey again about the powers the CMC could use to compulsorily access the information. The conversation ended with Mr Hickey indicating that he expected that the CMC would receive the information in the next few days (TT16, 17).
On 12 April 2005 Mr Hickey sent a facsimile letter to the CMC referring to the telephone conversation and confirming that he had sent a letter to the trustee requesting authority to provide the information required. Mr Hickey also requested advice as to the particulars of the complaint and the party making the complaint (Exhibit D4).
At a subsequent time the CMC obtained a copy of the letter sent by Mr Hickey to Mr Barden dated 13 April 2005 (Exhibit W7). It enclosed a copy of the CMC letter of 12 April and continued,
“The Commission is urgently requesting that I provide the information.
Whilst it may not be necessary to comply with the request at this stage, I have no doubt that the Commission can seek an Order for the documentation to be produced.
I would suggest that there should be no difficulty in producing the documentation, which is simply a record of out trust account transactions showing the parties to whom campaign assistance was provided.
As far as their request for a copy of the terms of the Trust, the answer is that there is no Trust document.
Could you please give me a written instruction, as soon as possible, to provide the information required by the Crime and Misconduct Commission.”
In cross-examination, Mr Docwra agreed that he didn’t ask either in the phone calls or in the letter, who had authority to direct that monies be paid out of the fund or the Trust or Hickey’s trust account in respect of the Lionel Barden Trust (TT26). Mr Docwra qualified his concession that the terms of the trust could include that information. Mr Hickey had told Mr Docwra in the telephone conversations that as far as Mr Hickey was aware there was no instrument or terms of the trust (TT30).
On 13 April 2005 the CMC received a letter under the hand of Mr Hickey by facsimile (Exhibit D5). It stated,
“I refer to your letter of 11 April and as requested we now enclose a statement with respect to the Lionel Barden Commonsense Campaign Fund. This statement records all funds paid into our trust account and all funds paid out of the trust account.
We do not believe that there exists any trust document or terms of trust. We certainly do not hold any such documentation and we are told by Mr Barden that no such documentation exists.”
The letter was headed “RE: LIONEL BARDEN TRUST” and a two page document was attached headed
“Trust Statement
08 June 2004
Mr L BardenRE: LIONEL BARDEN COMMONSENSE CAMPAIGN FUND.”
That document listed a number of transactions, both donations and disbursements, dating from 23 December 2003 to 26 May 2004 when the closing balance was nil. It is the provision of this document which founds the charge.
Later investigations by the CMC revealed that during the period 23 December 2003 to 3 March 2004 the persons responsible for the operation of the account, held in the Hickey Lawyers trust account, were Councillors David Power and Sue Robbins of the Gold Coast City Council. Fourteen disbursements of funds from that account occurred over the period 23 December 2003 to 26 May 2004 with nine of those disbursements paid out when Councillor Power and the late Councillor Robbins had control of the account. The prosecution case was that the document provided by the appellant on 13 April 2005 was false or misleading in that it failed to disclose the involvement of Councillor Power and Councillor Robbins in administering the account.
Mr Docwra gave evidence that on 15 April 2004 he made a request of a firm called Quadrant for information. That company was an alleged provider of services to the alliance of so called Commonsense Candidates in the Gold Coast local government elections. On 20 April 2004 Mr Docwra received a bundle of documents from Quadrant (TT18, 19: Exhibit D6). In those documents various items were tax invoices directed to “client Power and Robbins trust account” (TT20). They were the first documents that indicated any involvement of Councillors Power and Robbins (TT21). The documents indicated that for a period of time Councillors Power and Robbins administered the fund rather than Mr Barden. The firm Quadrant was also disclosed as a payee in several transactions in the attachment to the letter sent by the appellant on 13 April 2005 (Exhibit D5).
Mr Docwra also gave evidence that in April 2005 the CMC had received a copy of a document from the CEO of the Gold Coast City Council relating to a “Return of Gifts” submitted by Mr Barden. This was a document that was similar to another document later obtained from the appellant’s office and attached to a letter under Mr Hickey’s hand dated 10 June 2004 to Mr Lionel Barden (Exhibit W3). It stated, as relevant,
“RE: THE LIONEL BARDEN TRUST FUND
As requested, we enclose appropriate Form 3 Return of Gifts under the Local Government Act.
We have incorporated details of the funds received into our trust account.
Could you please check the document to ensure that it is correct.
We note the return is to (sic) lodge by you with the CEO of the Gold Coast City Council by no later than 26 June 2004.”
That document contained a page headed “Details of gifts received”. That contained a list of fourteen donors who each gave gifts of $10,000 over dates ranging from 23 December 2003 to 8 April 2004. Those donors and dates match the details as to donations contained in the attachment to the letter of 13 April 2005 sent by the appellant to the CMC. It also did not reveal that between 23 December 2003 and 3 March 2004 the persons responsible for the control of those funds were Councillors Power and Robbins.
The prosecution argument was that this was of significant importance in the case against the appellant. That was that Mr Hickey, having been responsible for preparing the document “Details of gifts received” and sending that to Mr Barden, had an interest in seeing that the information provided to the CMC coincided with that document (TT73:96).
Mr Docwra gave evidence that on 12 August 2005 a Notice to Discover was served on Mr Hickey by the CMC. Mr Hickey responded by letter dated 26 August 2005 attaching various documents from the file held by Hickey Lawyers. The letter indicated that Hickey Lawyers had received funds on the basis that the receipt and distribution of those funds would be fully transparent with the identity of the donor and the recipient documented and with the control of those funds resting initially with Councillors Power and Robbins and then with Lionel Barden. Part of those documents were tendered as Exhibit D7. Those documents include a “great quantity of documentation” referring to Councillors Power and Robbins (TT31:33). These included official receipts citing the “Power and Robbins election campaign fund” and letters to candidates who received funds noting that the funds were directed to be paid by Power and Robbins (TT125).
Also forming part of those documents were two trust statements. Exhibit W1 is in the names Sue Robbins Councillor and David Power Councillor. It is headed “Re: GOLD COAST CITY COUNCIL – ELECTION CAMPAIGN FUND”. It contains details of donations and expenditure noted as “campaign assistance” over the period 23 December 2003 to 4 March 2004. The final entry dated 4 March 2004 is described as “trust journal Transfer to MN248311-1 L Barden – Commonsense Campaign Fund” in the sum of $20,500 leaving a balance of nil. Exhibit W2 is in the name Mr L Barden. It is headed “Re: COMMONSENSE CAMPAIGN FUND”. It contains details of deposits noted as “campaign funds” and expenditure noted as “campaign assistance” over the period 4 March 2004 to 26 May 2004 when there is a balance of nil. The first entry is dated 4 March 2004 and is described as “Trust journal Transfer from MN245821-1 Sue Robbins and David Power – GCCC Election Campaign Fund”.
The CMC Hearing
A CMC hearing took place during the investigation of this matter. Mr Hickey gave evidence on 18 and 19 October and 24 November 2005. A transcript of that evidence was tended by consent on the trial (Exhibit A).
Mr Hickey’s evidence before the commission was that in November 2003 a client, Mr Brian Ray asked him to attend a meeting with Councillor Sue Robbins and Councillor David Power for the purpose of discussing the forthcoming Gold Coast City Council election and fundraising (Exhibit A, p 602). There was general discussion of needing like minded Councillors on the Gold Coast City Council and Mr Hickey was asked was he prepared to help. He agreed to call people to see if “we can raise some money”. He was asked by Mr Ray whether the money could be put into Mr Hickey’s trust account (Exhibit A, p 604). Mr Hickey agreed but he stated that he needed a client to control the trust account and that it couldn’t be him as he would have no involvement in the decisions on the distribution of funds. He suggested that it should be Councillors Power and Robbins. They agreed. Mr Hickey was not to provide legal services or charge for any outlays (Exhibit A, p 607).
Another meeting occurred on 17 December 2004 (Exhibit A, pp 607, 612). Again discussion took place about establishing a fund to assist like-minded candidates. Mr Hickey again explained that to operate a trust account that there needed to be a client in charge of that account to direct the lawyers to distribute funds in accordance with written directions (Exhibit A, p 614). Mr Hickey assumed that by putting the funds into a trust account, it would be more transparent and open. A lawyer’s trust account would also be available to be audited and people would be more comfortable in contributing funds (Exhibit A, p 614).
On 23 December 2004 a file was opened by Hickey Lawyers in the names Sue Robbins, Councillor and David Power, Councillor. It was titled “RE: GOLD COAST CITY COUNCIL ELECTION CAMPAIGN FUND” (Exhibit A, p 623).
Mr Hickey’s evidence was that on or about 3 March 2004, Councillor Power advised Mr Hickey that they wanted to appoint someone other than Councillor Power or Councillor Robbins to manage the trust account and that person was Lionel Barden (Exhibit A, p 645). Mr Hickey agreed but informed Councillor Power that they would need to give him an authority to transfer the name of the account. Mr Hickey didn’t ask for an explanation of why this was being done (Exhibit A, p 646). On 4 March 2004 a trust journal transfer took place to “L Barden Commonsense Campaign Fund” (Exhibit A, pp 648,649). Mr Hickey had only met Mr Barden on one occasion, ten years before (Exhibit A, p 649).
Mr Hickey was asked questions at the commission hearing concerning the letter of 10 June 2004 to Mr Barden (Exhibit W3) attaching the Form 3 Return of Gifts form. He was asked whether he considered that as a trustee he was under any obligation to put in a return as to election gifts. He responded that,
“We considered that and I sought some advice from lawyers in my office asking them to research that, and the view was no, but there seemed to be some doubt as to who should put a return in relating to it, and I made the decision that I wanted to make sure that a return was put in relating to all the transactions in the trust account, and I prepared a document and I sent it to Lionel Barden saying, ‘look, I have prepared this information for you. I am not giving you any advice in respect of the matter, but if you believe it’s correct, I believe, you know, you should put it in a return including this information.’” (Exhibit A, p 670).
Mr Hickey’s evidence was that he didn’t see the return Mr Barden put in. Mr Hickey didn’t think he had spoken to Mr Barden (Exhibit A, p 671). He also didn’t consider whether Councillor Power or Councillor Robbins should put in a return (Exhibit A, p 672). When Mr Hickey was recalled to give evidence again on 24 November 2005, by which stage he had perused all documents on the file, his evidence was that the draft return that was given to Mr Barden came about as a result of Mr Barden telephoning him and asking for details of all donations so that he could arrange to put in a return and Mr Hickey simply responded to that (Exhibit A, p 2143). He accepted the suggestion that the similarity between the document sent to Mr Barden and the document sent to the CMC was a coincidence (Exhibit A, pp 699-700).
The appellant was extensively questioned about his response to the requests by the CMC on 11 and 12 April 2005. On 18 October 2005, his evidence was that the CMC had enquired about the Lionel Barden Trust and he thought it was important to give them a complete disclosure of all funds that were received relating to the campaign. He stated that,
“the book keepers obviously consolidated all entries that have come through our trust account…prior to the transfer, so rather than trying to confuse the Commission which was enquiring about the Lionel Barden Trust, I wanted to make sure that we gave details of every single transaction.” (Exhibit A, p 668).
He gave further evidence that in response to the enquiry regarding the Barden Trust, he believed that the best position was to consolidate everything so that they (the CMC) knew that there was a whole series of transactions (Exhibit A, p 669). The gentleman from the CMC was interested in where funds had gone to and Mr Hickey wanted to make sure he got all that information (Exhibit A, p 669).
He repeated on numerous occasions that there was no intention to mislead (Exhibit A, pp 668,669,694 & 695). It did not occur to him that the CMC might come to the view that Lionel Barden operated the fund through the period with no mention of Power or Robbins (Exhibit A, p 669). He thought he was providing more than was being asked for and he was directing his attention specifically to what Mr Docwra had spoken to him about (Exhibit A, pp 694,695). He understood the CMC’s concern was as to who received the funds (Exhibit A, p696).
He was asked why he did not send two schedules, one for the Power/Robbins period and one for Barden period and he answered that he did not consider it. He did not turn his mind to the change of trustee or client in charge of the account (Exhibit A, p 699). He thought the relevance of the return was where the money came from and where it went to (Exhibit A, p 699).
He rejected the assertion that he deliberately left out Power and Robbins in the information provided (Exhibit A, p 2143). All the records were held on the file and the Power/Robbins involvement could not be hidden (Exhibit A, p 2154). He did not tell anyone, including candidates or Quadrant not to mention Power and Robbins.
The appellant gave evidence of how the response to the CMC was compiled. He responded to Mr Docwra’s telephone request and a follow up letter by requesting a staff member Sandy (Wild) to prepare for him “a list or a report of what funds we’ve received right throughout the file and what funds had been paid out. I didn't instruct her to do composite reports or trust statements or scanning and things like that. I just left that with her to provide that…” (Exhibit A, pp 2143 – 2144).
The Trial
In addition to the evidence of Mr Docwra, the prosecution called three other witnesses in its case. Each of those was an employee of Hickeys Lawyers.
Sandra Wild was the appellant’s personal assistant. She was instructed by Mr Hickey to open the Lionel Barden file. The Power and Robbins file was closed on 4 March 2004 and everything was put on the new file. The old file became a dead file (TT 42). Whatever name the file was in, throughout the relevant period, it was the election file into which all correspondence went (TT 47). Much of the documentation on the Barden file identified Power and Robbins as being previously involved in authorising and directing payments (TT 51: Exhibit W10).
Ms Wild gave evidence of the instructions given to her by the appellant in relation to complying with the CMC’s request. Mr Hickey told her that “we had to do a report of all the ins and outs of all the donations that had come into our trust account and went out” (TT 40). He said that “we had to do a report for the CMC of all the donations that went in and out of our trust account” (TT 41). She was asked whether he said anything else. Her response was “no, he just said to make sure that I got everything that went in and out. It was very important to get those donations.” He gave no instructions as to how she was to go about doing that or that anything should be left out of the document (TT 41, 48).
Ms Wild described how she prepared the document that was sent to the CMC under the covering letter of 13 April 2005 (Exhibit W8). She was referred to Exhibit W1 (the trust statement in the names Sue Robbins and David Power dated 8 June 2004). That document was placed on the Barden file and the 8 June 2004 was the date that the document was printed (TT 42). She was shown Exhibit W2 (the trust statement in the name Mr L Barden and dated 8 June 2004). Again the date 8 June 2004 was the date the document was printed (TT 43).
Ms Wild’s evidence was that she took the two documents W1 and W2 to another employee Kym (Stokes) and asked her to scan them for her (TT 43). That was to save having to type them up again. Kym scanned the documents, made it into a word document and gave it back to Ms Wild. Ms Wild then “fixed it up and made it looked (sic) nice and simple looking so you could see the donations and the amount” (TT 44). She identified exhibit W8 as that document that she prepared. She explained that the scanning process sometimes caused inaccuracies which needed to be corrected. The document exhibit W8 is a copy of the attachment which is part of Exhibit D5. Her evidence was that not very much time of hers at all was occupied in the preparing of the document (TT 45).
In relation to the final entry on Exhibit W1 (a transfer dated 4 March 2004 to the L Barden Commonsense Campaign Fund of $20,500) and the first entry on Exhibit W2 (a trust journal transfer dated 4 March 2004 from the Robbins/Power Gold Coast City Council Election Campaign Fund in the sum of $20,500) they were not included in the document Exhibit W8 because they were not donations or expenditures to candidates (TT 43).
Apart from the scanning there was “nothing really” involved in producing the composite statement (TT 45). She was asked whether it would have been simpler to photocopy documents W1 and W2. She answered,
“Because the file had changed its name. When that happened, if we open a file and then it becomes a dead file and we open a new one, you never have a referral to the old file, because everything is on the new one. And so it’s just too confusing for the client to get something like that. And I was able – instead of a four page document I was able to give a two page document just strictly of the donations that we got in on our (indistinct) trust account.” (TT 45)
Ms Wild’s evidence was that she did not even think about the fact that some of the donations occurred at a time when Mr Barden was not the holder of the account (TT 45).
She was questioned about why the document W8 (D5) contained the date 8 June 2004. She responded that that was what was scanned off documents W1 and W2 and she did not change it. She explained that a scanned document did not change the date, unlike a word processing document (TT 49). She did not pick up on or change the date.
Ms Wild was questioned about the letter to Mr Barden dated 10 June 2004 containing the Return of Gifts Form 3 under the Local Government Act. Her evidence was that she prepared the Form 3 document. That was under instructions from Mr Hickey (TT 38). She typed in the details of the gifts received (TT 46). She had no instructions from Mr Hickey as to how to go about preparing that document. Her evidence was that she just basically put in the donations taken off the trust accounts. The instructions from Mr Hickey were to put the name, the address of the donor, the date and how much had been given from that particular company or person. Mr Hickey had not indicated that she should incorporate both the Power/Robbins account and the Barden account in the electoral return. She stated, “well, I would know to do that, because I basically look after the file” (TT 46).
Ms Wild’s evidence was not challenged or contradicted. Indeed, the prosecution position was that the outcome of the case did not turn on her evidence in that the appellant was clearly aware of the contents of the document W8 (D5) that he sent out and that established the offence (TT 121).
The other two employees, Michelle Lowe and Kym Stokes, called by the prosecution either confirmed or supported the evidence of Ms Wild. Ms Stokes gave evidence of the scanning process and that she was not working on it for any great length of time (TT 66).
The appellant elected not to give or call evidence.
The Magistrates Decision
On 31 August 2006 the learned trial Magistrate delivered written reasons for his decision to convict the appellant.
His reasoning indicated that he did not accept the appellant’s evidence that he was not trying to mislead the CMC “by creating the composite trust account statement”. He found the appellant was being disingenuous and commented “if he had thought the CMC was some lumbering inefficient bureaucracy, and perhaps sometimes it is, he was wrong this time.” The learned trial Magistrate did not believe that the “excising” of the role of Power and Robbins in both the Barden election return and the document supplied to the CMC was a “coincidence”.
The learned trial Magistrate was of the view that the similarity between the two documents was a telling one. He noted that the D5 document had deleted from it any reference to the transfer between the Power/Robbins controlled account and the Barden controlled account. He noted that the date of 8 June 2004 “however was not changed, perhaps to add a touch of historical authenticity rather than recent composition”. He was also of the view that the appellant’s staff (Wild and Stokes) seemed to have gone to considerable trouble to create the D5 document.
The learned trial Magistrate was satisfied that the D5 document involved a significant and therefore material “cover up” and that it was clearly both false and misleading. He stated,
“Taking into account the defendant was intimately involved with the fundraising and the trust account; that it was he who prepared the earlier false draft election return to Mr Barden; the nature of the D5 false document itself and the trouble his staff went to compose it, I feel I can safely draw the irresistible inference that he sent the document knowing that it was false and misleading.”
The learned trial Magistrate’s reasons do not refer to the evidence of Ms Wild as to the directions given to her by the appellant and contain no findings against her credibility or rejection of her evidence.
Analysis
The evidence of Ms Wild was, in my view of considerable importance. In relation to the directions given to her by the appellant with respect to the W8 (D5) document, she stated positively that he gave her no directions to delete the references to the Power/Robbins involvement but merely told her to include all of the donations that went in and out of the trust account. He gave her no instructions to scan or amalgamate documents. Her evidence was that she had also prepared the draft Return of Gifts form to Mr Barden. Again, she simply included all donations from the file that was still open.
This evidence was important and fundamental to the appellant’s role in the creation of the D5 document. Her evidence was unchallenged (of course she was a prosecution witness and not subject to challenge by the prosecution) but, more importantly, uncontradicted. It was consistent with both the evidence of the appellant on the Commission hearing and the evidence of Ms Stokes on the trial. The evidence was also consistent and logical. There was nothing evasive in her responses. There was no rational basis to reject it.
The learned trial Magistrate did not deal with it in his reasons. In the course of argument, the learned Magistrate suggested that he could draw an inference that Ms Wild could be disbelieved as she was “out to protect her boss” (TT 120). This was hotly contested as no such suggestion was ever put to Ms Wild and the prosecutor made clear that he had made no submissions about her credibility as, in his view, the outcome of the case did not turn upon her evidence. The prosecutor submitted that the evidence made it clear that the appellant knew the contents of the document before he sent it and the explanation of how the document was created did not impact on that (TT 121).
However, I am of the view, that the evidence of Ms Wild needed to be taken into account. It was an error to simply ignore her evidence.
Her evidence was that the appellant gave no directions as to how the document was to be prepared other than to include all donations and disbursements. To establish the prosecution case, the appellant must then have knowingly taken advantage of the document innocently prepared by Ms Wild to mislead the Commission. This weighs against the hypothesis that the document was created to hide the Power/Robbins involvement.
It is also important to consider Ms Wild’s evidence as to the compilation of the Return of Gifts form which was sent to Mr Barden. There was of course no evidence as to the actual return that was submitted by Mr Barden other than Mr Docwra’s evidence that he told the appellant that the CMC had possession of it. Again, Ms Wild’s evidence was that she compiled that document from the current Barden file and again included all donations. It was she who included all transactions including those when Power/Robbins controlled the account. There was no evidence that the appellant directed that that was to be done. The compilation was a similar process to that adopted by Ms Wild to produce the document D5. She simply included all the transactions that were, to her mind, relevant.
Whilst the similarities between the two documents raises suspicions, their creation must be evaluated in the light of Ms Wild’s unchallenged evidence. To find, as the learned trial Magistrate did, that it was the appellant who prepared the earlier false election return of Mr Barden overstates the evidence and ignores the evidence of Ms Wild. In my view, drawing that conclusion was impermissible.
It was also incorrect that Ms Wild and Ms Stokes went “to considerable trouble” to create the D5 document. That was contrary to their evidence. The learned Magistrate’s comments about the “historical authenticity” of the date of 8 June 2004 also ignores Ms Wild’s logical explanation of the scanning process replicating that date from documents W1 and W2. That conclusion drawn by the learned Magistrate was not open on the evidence.
Ms Wild’s evidence established that the appellant did not give directions as to how either document was to be produced or formatted. He simply directed that all donations and expenditures be included in the return to the CMC. To find that he was false in the use of the document entails a finding that he knowingly took advantage of the documents Ms Wild innocently prepared. When coupled with two other factors, I am of the view that that finding was not open.
The first of those involves an analysis of the actual request for information made by the CMC to the appellant on 11 and 12 April 2004. The telephone conversation of 11 April 2004 requested information about details of the terms of the Lionel Barden Trust and the expenditures made out of that trust. The CMC letter of 11 April 2004 requested, in relation to the Lionel Barden Trust, “advice about, and/or a copy of the terms of Trust and/or any records of expenditures made from the Trust.” The request did not ask for specifics as to who administered the trust (although that may be implicit in the request for the terms of the trust) or for any history of the trust. It was the prosecution’s position that the request was made in the “investigative stage” of the CMC processes (TT 94) and that the appellant should have been well aware that the CMC would be interested in who controlled the trust and if that had changed at any time. In my view that is misconceived. It attempts to impute into the mind of a person who receives a direct and specific request, the knowledge and purposes of the investigator, so that the recipient should know what is relevant and material. That is unfair. Here the appellant was faced with a specific request. Whilst it is arguable that the request involving the terms of the trust may also involve the identity of the persons controlling the trust, it is not obvious on its face. The appellant’s evidence was that he thought the CMC was most concerned with the disbursements made. That they would be compared with the local government returns. He took care to ensure that all disbursements were reported and also included all donations. To infer that he should have been aware that the CMC was interested in the persons who controlled the account over time, and to attach criminal sanctions on the basis that he provided a misleading document which did not provide those details is concerning. The appellant’s response in sending the D5 document must be seen in the light of the CMC’s actual request. It raises the hypothesis of an innocent response to that request, rather than the deliberate provision of a false or misleading document.
The second aspect is the appellant’s state of knowledge at the time that he provided the D5 document. Whilst it may be irrelevant to the guilt of a person who knowingly provides a false or misleading document that the details of the falsity may be found by other means (as the prosecution submitted), in my view that factor is relevant to a consideration as to whether the person would knowingly provide such a document.
Here, the appellant was a practising and experienced solicitor. He was aware that all documentation sent to others (receipts for donations and covering letters to those to whom funds were disbursed) contained references to Powers/Robbins in relation to the period over which they controlled the account. Many others knew of the Powers/Robbins involvement. The appellant knew this. It was specifically brought to the appellant’s attention that the CMC could resort to compulsory powers to access his file. That file contained much documentation that showed the Powers/Robbins involvement. That file was maintained properly and was subject to the Law Society’s trust account regime. In August 2004 it was produced to the CMC. No suggestion has been made that there was any attempt to destroy or hide documents showing the Powers/Robbins involvement. No suggestion has been made that the appellant attempted to influence others to hide the Power/Robbins involvement.
All of those factors are relevant to the question whether the appellant would knowingly provide a false or misleading document in the way alleged. The falsity could easily have been discovered from a variety of sources. That a practising solicitor would knowingly provide a false or misleading document in these circumstances, where that act would have disastrous consequences to his reputation and livelihood, would be risk taking to an extraordinary degree.
The combination of those factors together with the evidence of Ms Wild leaves me to conclude that the case against the appellant was not proved beyond reasonable doubt. There is a reasonable doubt as to whether the appellant knew that the information was false or misleading in a material way. I am of the view that I am in as good a position as the learned trial Magistrate to decide the proper inferences to be drawn from the evidence: Warren v Coombes (1979) 142 CLR 531 at 551. This is particularly the case here where the learned trial Magistrate has not dealt with an important aspect of the evidence at the trial: the evidence of Ms Wild.
It is unnecessary to consider the other grounds of appeal.
I set aside the conviction and enter a finding of not guilty.
There is no need to determine the appeal against sentence.
I will hear the parties as to costs.
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