Marlborough v The State of Western Australia
[2011] WASCA 51
•1 MARCH 2011
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
| TITLE OF COURT : | THE COURT OF APPEAL (WA) | |
| CITATION | : | MARLBOROUGH -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 51 |
| CORAM | : MARTIN CJ |
BUSS JA MAZZA J
| HEARD | : | 16 SEPTEMBER 2010 |
| DELIVERED | : | 1 MARCH 2011 |
| FILE NO/S | : | CACR 176 of 2009 |
| BETWEEN | : NORMAN RICHARD MARLBOROUGH |
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
| Jurisdiction | : | DISTRICT COURT OF WESTERN AUSTRALIA |
| Coram | : EATON DCJ | ||
| Citation |
| ||
| File No |
|
[2011] WASCA 51
Catchwords:
Criminal law - Particular offences - Offences relating to the administration of justice - Perjury and false statement - Appellant convicted of giving false or misleading evidence to Corruption and Crime Commission regarding whether he had been asked to appoint a particular person to a statutory board.
Criminal law - Appeal - Particular ground of appeal - Misdirection and non- direction - Whether meaning of evidence given by appellant was ambiguous - Need to address alternative meanings of evidence in summing up to jury
Criminal law - Appeal - Verdict unreasonable or unsupportable having regard to evidence - Importance of manner in which prosecution case run at trial - Whether case defective - Whether retrial or acquittal should be ordered
Legislation:
Corruption and Crime Commission Act 2003 (WA), s 168
Criminal Appeals Act 2004 (WA), s 30(3)(a), s 30(5)
Criminal Code (WA), s 124
Regional Development Commissions Act 1993 (WA), s 11, s 15, s 16
Result:
Extension of time within which to appeal granted
Leave to appeal granted on all grounds
Appeal allowed on grounds 1 and 2
Conviction set aside, acquittal entered
Category: A
Representation:
Counsel:
| Appellant | : | Mr M J McCusker QC & Mr S M Brennan |
| Respondent | : | Mr J Mactaggart |
Solicitors:
| Appellant | : | Brennan & Co |
| Respondent | : | Director of Public Prosecutions (WA) |
[2011] WASCA 51
Case(s) referred to in judgment(s):
Anderson v The Queen (1991) 53 A Crim R 421
Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161
Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154
CLR 627
Dyers v The Queen [2002] HCA 45;(2002) 210 CLR 285
Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166
Ingham v McKenzie [2009] WASC 351
Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749
Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A
Crim R 389
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107
R v Birks (1990) 19 NSWLR 677
R v Davies (1974) 7 SASR 375
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
R v Traino (1987) 45 SASR 473
Riley v The State of Western Australia [2007] WASCA 22
Rogers v The State of Western Australia [2008] WASCA 201
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115
Stanton v Abernathy (1990) 19 NSWLR 656
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wimbridge v The State of Western Australia [2009] WASCA 196
[2011] WASCA 51
Table of Contents
Martin CJ's reasons 6
Summary.....................................................................................................................................6
The indictment............................................................................................................................6
The statutory offence ..................................................................................................................6
The elements of the offence........................................................................................................7
The context of the charge ...........................................................................................................8
The telephone intercepts.............................................................................................................9
The evidence given by Mr Marlborough to the CCC.................................................................9
The trial ....................................................................................................................................14
The prosecution's opening address .......................................................................................14
Mr Marlborough's evidence..................................................................................................17
The closing addresses ...........................................................................................................21
The trial judge's directions to the jury ..................................................................................23
The grounds of appeal ..............................................................................................................24
Grounds 1 and 2........................................................................................................................24
The intercepted conversations ..................................................................................................27
9 August 2006.......................................................................................................................27
14 August 2006.....................................................................................................................28
15 and 17 August 2006.........................................................................................................28
21 August 2006.....................................................................................................................28
26 August 2006.....................................................................................................................28
12 September 2006 ...............................................................................................................29
Grounds 3 and 4........................................................................................................................29
The applications for extension of time and leave to appeal .....................................................32
Transcripts of the telephone intercepts.....................................................................................34
Buss JA's reasons 53
The application for an extension of time to appeal ..................................................................53
Section 168 of the Corruption and Crime Commission Act 2003 (WA)..................................54
The examination before the Commission.................................................................................54
The appellant's ministerial role and powers .............................................................................54
Beryle Morgan..........................................................................................................................56
The intercepted telephone conversations between the appellant and Brian Burke ..................57
The Commission's interest in the telephone conversations between the appellant and
Mr Burke ..................................................................................................................................61
The appellant's evidence before the Commission ....................................................................61
The State's case at the trial........................................................................................................64
The appellant's case at the trial .................................................................................................68
The grounds of appeal ..............................................................................................................69
Ground 1: general principles ...................................................................................................70
Ground 1: the allegations in count 2 and the elements of the offence.....................................72
Ground 1: its merits .................................................................................................................72
Ground 1: should there be a new trial or a judgment of acquittal? .........................................78
Ground 1: the critical issue was not raised by the appellant at the trial ..................................80
Ground 1: an additional point raised on behalf of the appellant .............................................81
Ground 2 ...................................................................................................................................82
Grounds 3 and 4........................................................................................................................82
[2011] WASCA 51
Result of the appeal ..................................................................................................................82
| Mazza JA's Reasons | 82 |
[2011] WASCA 51
MARTIN CJ
MARTIN CJ:
Summary
1 The applicant, Norman Richard Marlborough, applies for leave to
appeal, and for an extension of time within which to appeal from his conviction on one count of giving evidence at an examination before the Corruption and Crime Commission (CCC) that he knew to be false or misleading in a material particular. The evidence given by Mr Marlborough at the examination before the CCC on the topic the subject of the charge was ambiguous. The ambiguity of his evidence was not addressed during the examination before the CCC, nor was it addressed during the trial, which thereby miscarried. However, in my view, there was evidence which would have enabled a properly instructed jury to be satisfied beyond reasonable doubt of Mr Marlborough's guilt. Orders should be made extending the time within which Mr Marlborough can appeal from his conviction, granting him leave to appeal against that conviction, allowing the appeal, quashing the conviction and directing a retrial.
The indictment
Mr Marlborough was charged on an indictment which alleged that:
1. On 8 November 2006 at Perth Norman Richard Marlborough, at an examination before the Corruption and Crime Commission, gave evidence which he knew was false or misleading in a material particular by denying that he had ever given Brian Burke an assurance that he would appoint Beryle Morgan to the South-West Development Commission. 2. On the same date and at the same place Norman Richard Marlborough, at an examination before the Corruption and Crime Commission, gave evidence which he knew was false and misleading in a material particular by giving evidence to the effect that Brian Burke had not asked him to appoint Beryle Morgan to the South-West Development Commission, alternatively that he could not recall Brian Burke asking him to appoint Beryle Morgan to that commission.
The jury acquitted Mr Marlborough on count 1, but convicted him on
count 2.
The statutory offence
Each count alleged a contravention of s 168 of the Corruption and Crime Commission Act 2003 (WA) (CCC Act). That section provides:
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Giving false testimony
A person who, at an examination before the Commission or an inquiry before the Parliamentary Inspector, gives evidence that the person knows is false or misleading in a material particular is guilty of a crime.
The elements of the offence
5 The charge brought against Mr Marlborough required the State to
prove each of the following three elements of the offence beyond
reasonable doubt:1. Mr Marlborough gave evidence before the Corruption and Crime Commission to the effect that Brian Burke had not asked him to appoint Beryle Morgan to the South West Development Commission, alternatively that he could not recall Brian Burke asking him to appoint Beryle Morgan to that commission;
2. The evidence which he gave was false or misleading in a material particular;
3. Mr Marlborough knew the evidence to be false or misleading in a material particular at the time he gave it.
6 Section 168 of the CCC Act creates an offence analogous to the
offence of perjury created by s 124 of the Criminal Code (WA). The essence of each offence is the giving of testimony which is in fact false or misleading in a material respect, and which is known to be false or misleading in that respect by the witness at the time the testimony is given. Testimony is, of course, given by a witness speaking words which convey a meaning. Testimony can only be false or misleading if the words used by the witness are capable of conveying a meaning, and did in fact convey a meaning, that is false or misleading.
7 When a charge of this kind is brought, it is essential to identify the
meaning or meanings which the words spoken by the witness were capable of conveying, and in fact conveyed. The offence will only be proven if it is established that the witness knew that the words used conveyed the relevant meaning, and that the meaning was false or misleading. That analysis is an essential pre-requisite to the assessment of whether or not the State has proven beyond a reasonable doubt that, in the case of a charge of contravention of s 168 of the CCC Act, the words spoken by the witness bore a meaning which was false or misleading as a matter of objective fact, and that the witness knew that the words spoken bore that meaning, and that the meaning was false or misleading. The meaning or meanings conveyed may not always correspond with the
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MARTIN CJ
literal meaning of the words (see Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749, 774) and may be conditioned by the context and background in which the testimony was given (see Ingham v McKenzie [2009] WASC 351 [94] - [96]).
8 However, an analysis of the meaning or meanings which the words
spoken by Mr Marlborough in the course of his examination before the CCC were capable of conveying, or in fact conveyed, does not appear to have been explicitly undertaken at any point by counsel assisting in the proceedings before the CCC, or by counsel or the trial judge in the course of Mr Marlborough's trial.
The context of the charge
9 On 8 November 2006, when Mr Marlborough gave evidence to the
CCC, he was a member of the Legislative Assembly of Western Australia. In February 2006, he had been appointed the Minister for Small Business, Peel and the South West, and the Minister Assisting the Minister for Education and Training. In that capacity, he was the Minister responsible for the administration of the Regional Development Commissions Act 1993 (WA). The South West Development Commission was one of the Commissions established under s 11 of that Act. Section 15 of the Act relevantly provided that each Commission created by the Act was to have a board of management comprising a prescribed number of members, not exceeding nine 'who are to be appointed by the Minister in the prescribed manner'. Section 16 of the Act provides that regulations made for the purposes of s 15 are, unless particular circumstances require otherwise, to provide that one-third of the members to be appointed are to be persons resident in the region, one-third are to be members of the council of a local government in the region, and are to be nominated by local governments in the region in accordance with the regulations, and one-third are to be appointed at the Minister's discretion. The regulations made under the Act are generally consistent with s 16, but do not specify the manner in which appointments are to be made by the Minister. Although the Act authorises appointment by the relevant Minister, the evidence at trial of Mr Punch, the CEO of the South West Development Commission (at ts 53 and ts 58) and of Mr Marlborough (at ts 195, ts 199 etcetera) was to the effect that, by convention, all prospective appointments were submitted to Cabinet for approval prior to appointment by the Minister.
10 Mr Brian Burke is a former Premier of Western Australia. At the
time of the events giving rise to the charge against Mr Marlborough, he
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was carrying on business as a political lobbyist. The evidence given to the CCC, and at trial, established that he was a close associate of Mr Marlborough.
The telephone intercepts
11 The evidence at trial established that a number of telephone
conversations between Mr Marlborough and Mr Burke were intercepted and recorded by the CCC in the course of its investigations. Those recordings established that on numerous occasions during August and September 2006, Mr Burke spoke to Mr Marlborough on the subject of the possible appointment of Ms Beryle Morgan to the board of management of the South West Development Commission. Colloquial language was used in the course of those conversations. Various terminology was used to describe the role of Mr Marlborough, including him 'not letting [Mr Burke] down'. Mr Burke said he was 'recommending' Ms Morgan to Mr Marlborough for appointment, discussed the desirability of Mr Marlborough 'nominating' a woman, and asked whether there were any 'problems with the … appointment'. Mr Marlborough said that the appointment 'won't be a problem', and that it's 'on the way to being fixed'. During a conversation which took place on 14 August 2006, Mr Marlborough said to Mr Burke that the appointment of Ms Morgan would be done that week 'straight after Cabinet'. In the course of another conversation, on 21 August 2006, Mr Marlborough reported to Mr Burke on discussions that he had undertaken in relation to the possible appointment of Ms Morgan, in the course of which Mr Burke urged Mr Marlborough 'not to be talked out of' her appointment. In the same conversation, Mr Burke asked Mr Marlborough if he anticipated trouble in achieving Ms Morgan's appointment, to which he replied, 'I don't think so'. Copies of the transcripts of the conversations that took place between 9 August and 12 September 2006 are attached to these reasons.
The evidence given by Mr Marlborough to the CCC
12 During his examination before the CCC, Mr Marlborough was asked
questions by counsel assisting the Commission on the subject of his contacts with a Mr McKenzie, who was interested in obtaining approvals for the subdivision and development of land at Smith's Beach, in the south-west of Western Australia. In that context, he was asked questions about a lunch which he attended in Fremantle, which was organised by Mr Burke, and which Mr McKenzie and Ms Morgan attended. Mr Marlborough said that prior to the lunch, Mr Burke had told him:
[2011] WASCA 51
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Simply that he'd like me to meet Mrs Morgan. She had a beef about not being able to get on government boards and he, you know, thought I should - should give her a fair hearing and that's what I did. I was happy to do that (ts 1062).
Counsel assisting asked:
Now, did Mr Burke explain to you either in the call or at any stage why it was that he wanted to assist Beryle Morgan in this regard?---Other than - other than he'd met her and she had, you know, raised with him a want to be part of the board system. I mean, that was - that was basically it. It went no further than that.
Were you able to give her any advice or assistance?---Well, only to the degree that people ought not to be discriminated against in terms of their politics, because in fact I think I said the Equal Opportunities Commission doesn't allow that to happen, and people should be judged on their merit, and on the basis of what I knew of Mrs Morgan on that day, which was ex-Busselton Shire Council, a previous member of the South West Development Commission for a period of two years of which she advised me she'd voluntarily left to go and run for the National Party. You know, she's - - -
…
She had some claims?---I thought she did (ts 1062).
Later counsel assisting the Commission asked:
The SWCD [sic] falls within your portfolio?---It does.
And I take it that appointments to that commission are ministerial appointments? You're the one who makes them?---Yes and no. I'll explain the yes and no. I don't want to confuse anybody. I want to explain the yes and no. The board is made up of two areas of receiving onto the board. One is local government area. So the local government association recommend a nominee to me and the other one - I think a minor number of the board positions I can have direct input into, but - - -
Do you know how many positions that is?---At the moment there is two positions, one in each of those arenas.
Right. So in respect of those positions people would apply directly to you?---I'm not sure - I think they apply in the first instance to the South West Development Commission and it then comes through to me.
And you would expect those sorts of applications to be supported by a curriculum vitae and some history of the person so that you're able to assess the merits of the application?---That's true.
[2011] WASCA 51
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Have you become aware since becoming a minister that Mrs Morgan has applied to become appointed to one of those ministerial appointment positions?---She's one of 17 applicants for the two positions.
Do I understand from your statement that that process is not finalised yet?---Absolutely not.
So no-one has been appointed?---Nobody has been appointed.
Have you given any consideration to that at this stage?---To any of the appointments?
Yes?---No. The appointments closed on 30 September and we still haven't gone through the process of appointing anybody to those two positions (ts 1064).
Counsel assisting the Commission then asked:
Has Mr Burke asked you to give consideration to Mrs Morgan's application?---Yes. Mr Burke spoke to me on a couple of occasions about her merits which are based on the matters I've just raised with you.
What did Mr Burke say?---Based on her qualifications in the sense that she had been a previous mayor, she had been on the board previously, she was still highly regarded in the community. There was a bit of politics in it. He thought her appointment would be - she would keep an eye on Buswell down in Busselton, but that's about the crux of the discussion.
He was urging you to appoint her. Would that be fair to say?---Well, he raised it on two occasions. I don't know - urge; I don't know whether I would use the word 'urge' but he certainly - I would expect anybody who applied for these jobs to have somebody who was willing to support them and to the degree that he was supporting her - he rang me a couple of times on her appointment.
What was your response?---Well, when Brian Burke's in full flight with these things you, you know, tend to act in two ways; one is to say it will be okay and move on and do nothing and that's basically the position that I took. I mean, I've been dealing with Mr Burke for 30 years and, you know, conversation could be at that sort of level where 'it's okay, it will be sorted'. In my mind the 'okay, it will be sorted' was always about - you know, it will be a process that we will have to go through.
So it would not be the case that you would have given him any assurance that you would appoint Beryle Morgan for that position?---No. I wouldn't and I haven't.
When you say you wouldn't; you wouldn't have said that and you have not said anything like that to him?---Well, the degree of the conversation could have been where I've said, 'It's okay, it will be sorted,' in terms of saying
[2011] WASCA 51
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that it's always been in my mind that sorted means we go through a
process.But it certainly would not have been anything that could be interpreted as an assurance to him?---I would hope not because it hasn't happened and I wouldn't intend it - anybody to be appointed without going through the proper processes.
You're aware I think of what Mr Burke has said in regard to this? You have familiarised yourself with his evidence?---I am. Yeah, I am.
He couldn't recollect having spoken to you about it but he was asked:
Is it possible that you asked Mr Marlborough to appoint her to the South West Regional Development Commission?---No, I wouldn't have done that.
Why wouldn't you have done that?---Because I wouldn't have thought that that was the right thing to do. I might have said to him that she was an applicant.
Would you agree with that? Would you accept that that's true?---I accept that.
That he didn't ask you to appoint her - - -?---I don't recall him asking me to appoint. No, I don't recall asking - - -
He says it's not the sort of thing he would do. Do you agree with that; that that's the nature of your friendship that he wouldn't seek that you compromise yourself?---Well, I would hope that he - I mean, I don't know what was going through Mr Burke's mind but I would hope the nature of our friendship would be such that he wouldn't ask me to do something that was not appropriate and to appoint somebody on the basis of Mr Burke ringing me solely was certainly not appropriate, it needed to go through the proper process and that's what we're still waiting to do.
But it didn't go so far as him saying 'would you please appoint Beryle Morgan'?---I don't remember the exact details of it, of the conversations we had, other than to repeat in whatever form of words Mr Burke may have used my intention was to always take this through the proper process, to look at each on its merits and to apply proper standards to outcomes. At the end of the day all I can do is to take names forward to cabinet and at the end of the day cabinet make the decision (ts 1065 - 1067).
16 There are a number of observations usefully made at this point about
the evidence given by Mr Marlborough to the CCC. First, Mr Marlborough expressly acknowledged and accepted that Mr Burke had encouraged and supported the appointment of Ms Morgan to the board of the South West Development Commission.
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17 Second, Mr Marlborough stated that it was always his intention to
undertake a 'process' with respect to filling the vacancies on the board of the Commission. That process was described as being 'to look at each on its merits, and to apply proper standards to outcomes', and to present recommendations to Cabinet, which would decide who was to be appointed.
18 Third, when counsel assisting put Mr Burke's earlier evidence to the
CCC to Mr Marlborough, there appears to have been in a change in the focus of the answers given by Mr Marlborough. Mr Burke had denied asking Mr Marlborough to 'appoint' Ms Morgan to the Commission because he did not think 'that that was the right thing to do'. Mr Marlborough accepted the truth of Mr Burke's evidence, expressed in those terms, within minutes of having expressly and unequivocally acknowledged that Mr Burke had encouraged and supported the appointment of Ms Morgan. Mr Marlborough's acceptance of the truth of Mr Burke's evidence directly contradicted his own earlier testimony, unless he was construing the expression 'asked to appoint' as meaning something different to the earlier questions he was asked with respect to Mr Burke's encouragement and support for Ms Morgan's appointment. The prospect that Mr Marlborough had placed a different construction upon the expression 'asked to appoint', to that of merely encouraging and supporting her appointment, is reinforced by the answers he gave immediately following the critical interchange, in which he expounded upon the proposition that he did not take Mr Burke to be suggesting anything that was inappropriate, in the sense of suggesting that an appointment should be made other than on the basis of an evaluation of the respective merits of all applicants, and a submission to Cabinet for its determination.
19 In the context in which Mr Marlborough had unequivocally accepted
that Mr Burke had encouraged and supported the appointment of Ms Morgan, and had given evidence that there was a process to be followed which involved an evaluation of each applicant on their respective merits, and a submission to Cabinet, it is a reasonable hypothesis that when Mr Marlborough accepted the truth of Mr Burke's evidence that he had not asked him to appoint Ms Morgan, and that he did not recall him asking him to appoint Ms Morgan, he intended to convey, and the words did in fact convey the meaning that Mr Burke had not asked, nor could he recall Mr Burke asking him to inappropriately depart from the process of evaluating each applicant on their respective merits, and putting a submission to Cabinet for its consideration and determination.
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20 The issue of whether or not that was the meaning which
Mr Marlborough understood and intended to convey by the words he had used was not pursued by counsel assisting the CCC. The result was that when Mr Marlborough's evidence to the CCC is viewed in its entirety, two possibilities are reasonably open as to the meaning which he intended to convey, and did in fact convey, in the critical passage to which I have referred, when the expression 'asked to appoint' was used. The first possibility is that the expression was meant to convey, and did convey the fact that Mr Burke had encouraged and supported Ms Morgan's appointment - a matter which Mr Marlborough had unequivocally acknowledged earlier in his testimony. The second possibility is that the expression was intended to convey, and did convey, a request by Mr Burke to subvert the normal process of appointment by appointing Ms Morgan without evaluating the respective merits of each applicant or without putting a submission to Cabinet for its determination.
It is now necessary to analyse the course of Mr Marlborough's trial to ascertain whether this ambiguity was resolved.
The trial
The prosecution's opening address
The prosecutor began his opening address:
The prosecution's case is that and - on the prosecution's case you'll hear this directly - Mr Burke asked Mr Marlborough, and asked him on several occasions, about Ms Morgan's appointment to the South West Development Commission, whether he had arranged it, told him - and I'll come back to this - that it was important to him - that is, Burke - on - you'll hear its expression - about 15 different fronts. And actually requested him, in essence, to appoint Ms Burke - Ms Morgan, I should say - to the Commission. As you'll hear in the course of these conversations - and I'll get to them in greater detail shortly - and you'll hear them, perhaps more than once in the course of this trial, Mr Burke at one stage says to Mr Marlborough, "I've never asked you - I've never made a recommendation to you before, mate" or words like that. And the Commission was investigating - and this is the crux of why we are all here - whether Burke, as a favour to Ms Beryle Morgan, had requested Mr Marlborough to appoint Ms Beryle Morgan to the South West Development Commission (ts 27 – 28).
He continued:
Now, as at 8 November 2006, Mr Marlborough was then a minister in the State Labour government…[H]e had been admitted to the ministry of the then State Labour Government, and had been made Minister for Small
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Business in the Peel area of this state, and importantly for our purposes, Mr Foreman and members of the jury panel, the South West, as well as minister assisting the Minister for Education and Training. In his capacity as minister for the South West, it was the job, if you like, or one of the tasks of that minister to make or assess recommendations [for appointment] to a statutory body, the South West Development Commission, and the role of that Commission was to coordinate or promote economic development, as one of a number of regional development commissions in this state, for the South West area….[A]s at 8 November 2006, and in the few months prior to that, it was a matter within Mr Marlborough's remit whether he appointed someone to that Commission, and if so, who. And on the prosecution's case, Mr Burke made a series of telephone calls to Mr Marlborough, and Mr Marlborough received a series of telephone calls from, and made some to Mr Burke, in which, on the prosecution's case, there is not the slightest doubt that Ms Morgan's appointment to the Commission was discussed, and not the slightest doubt that Mr Marlborough, which he later denied before the Corruption and Crime Commission, gave Mr Burke an assurance that he would appoint Ms Morgan to that Commission (ts 29). [emphasis added]
Dealing specifically with the second count he stated:
The prosecution's case is that Mr Burke had on several occasions asked, importuned and indeed, urged, Mr Marlborough to appoint her to the Commission, and in quite emphatic terms told him why she would be a good appointment (ts 34).
…
On 8 November Mr Marlborough appeared at the Corruption and Crime Commission. He was questioned about a number of matters, and you'll hear about questioning relating to the Commission in particular. And he was asked by counsel assisting the CCC, as you might hear it referred to: He was urging you - that is Mr Marlborough - to appoint her. Would that be fair to say? Mr Marlborough's response was: Well, he raised it on two occasions. I don't know "urge" - I don't know whether I used the word "urge", but I - certainly I'd expect anybody who applied for these jobs to have somebody willing to support them to the degree that he was supporting her. He rang me a couple of times on her appointment.
…
The questioning of Mr Marlborough continued, and when counsel assisting the Commission put the proposition as to whether Mr Burke had asked him to appoint Mr Morgan [sic] to the Commission, his reply was - that is, Mr Marlborough's: No, I don't recalling him to ask me to appoint - no, I don't recall him asking. And that again, ladies and gentlemen of the jury panel, was - in the prosecution's case - a lie. It was both false and misleading. Burke, as you'll hear and we'll all hear, was clearly asking him to appoint her to the Commission - Ms Morgan to the Commission.
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Indeed, as I've said, and as you'll hear shortly from Mr Jones, he told a policy adviser - that is, Mr Marlborough - that Mr Burke had found them a person, being Ms Morgan, although she had not filed a formal application to be appointed to the Commission. So the prosecution's case, ladies and gentlemen, is that when asked questions about that aspect of the enquiry before the Commission, that is, whether Mr Burke had asked Mr Marlborough or whether Mr Marlborough had given an assurance to Mr Burke that he would appoint Beryle Morgan to the South West Development Commission, he said that he hadn't. On the prosecution's evidence, that was a clear lie. It was evidence that was false and misleading, and likewise, so was his evidence that he couldn't recall Mr Burke asking him to appoint Ms Morgan to the Commission (ts 35 - 37).
25 The prosecution did not explicitly refer in opening to the convention
that, prior to exercising the power to appoint conferred on the Minister by s 16 of the Act, the Minister would submit all prospective appointments for Cabinet approval, although evidence was led to that effect by the State. Some portions of the opening are, on their face, consistent with the proposition that this convention formed part of the prosecution case, although in other portions of the opening the position is less clear. For example, it is stated that one of Mr Marlborough's tasks as the relevant Minister was to 'make or assess recommendations' for appointment. Presumably this is a reference to the Minister's obligation to make recommendations on potential appointees to Cabinet. On the other hand, it is stated that 'it was a matter within Mr Marlborough's remit whether he appointed someone to that Commission, and if so, who'. This statement could perhaps be construed as indicating that the prosecutor was asserting that Mr Marlborough has a power of appointment irrespective of Cabinet approval. Of course, in the context of an address where the recommendatory function of the Minister has been acknowledged moments earlier, the statement could also be construed as a somewhat inaptly expressed summary of the Minister's powers after Cabinet approval, that is, a formal power of appointment.
26 When the prosecution opening is considered in its entirety, it should
be concluded that no specific position was adopted as to the precise means which Mr Marlborough understood Mr Burke to be suggesting he use to ensure Ms Morgan's appointment. Rather, at this stage, the prosecution case was put to the jury on the basis that whatever means was to be used, Mr Burke had requested Mr Marlborough to ensure that Ms Morgan was appointed, and Mr Marlborough had given false evidence to the Commission on the subject of Mr Burke's requests.
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27 Regarding the issue of the meaning to be ascribed to
Mr Marlborough's testimony, it can be seen that the prosecutor took a fairly broad approach to the issues raised by the second count and made no reference to the meaning which the State would ask the jury to attribute to the words used by Mr Marlborough in the course of his evidence before the CCC, or to the possible differences in meaning to which I have referred.
Mr Marlborough's evidence
Mr Marlborough gave evidence. He gave the following evidence-in-chief:
What do you say was happening were [sic where] you were talking to Mr Burke and telling him that it's a deal and Mrs Morgan would be appointed within the week, and things like that---All I wanted to do was to deflect Mr Burke. Take him off the issue, put him at ease, it's a done deal, leave it with me, and then move away and do absolutely nothing about it.
…
But it didn't go so far as him saying, 'Would you please appoint Beryle Morgan' - was the question you were being asked. And your answer is: I don't remember the exact details of it, or the conversations we had, other to repeat in whatever form of words Mr Burke may have used, my intention was to always take this through the proper process. To look at each on its merits and to apply the proper standards to its outcomes. At the end of the day all I can do is take names forward to Cabinet, and at the end of the day Cabinet makes the decision. Was that a truthful answer---It was.
In relation to Mrs Morgan, was she ever appointed---No.
- - - to the position South West Development Corporation [sic
Commission]---Not in my time, no.
The - did Mr Burke lobby you on her behalf---He did.
…
All right. But was she going to be appointed by you---No. Her great weakness was that she had ran for the National Party and I was aware by, I think, mid August, that she'd already been rejected on two previous applications by the government, Labor Government, my government (ts 181 - 182).
29 Later, in answer to a question directed at the number of telephone
calls in which Ms Morgan's appointment had been discussed between Mr Burke and Mr Marlborough, Mr Marlborough gave the following evidence:
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I honestly don't have any recollection of them. I mean, as has been said earlier, Mr Burke and I had hundreds of phone calls. Although these items - this item of Mrs Morgan's been picked out of a select few it's only been a minute part of any conversation we've had in terms of time, in terms of issues. You know, it wasn't any - there was no urgency on my part and - and no willingness to do anything but go through the proper process (ts 192).
Later, when asked whether he had given Mr Burke the assurance the subject of count 1 on the indictment, Mr Marlborough stated in evidence:
Well, not the assurance I described earlier, a rock solid assurance. The assurance - any - any words I may have used were simply that Mrs Morgan would go through a process and that process involved me taking the issue to Cabinet and it's there where it's stamped off, not just at my say-so. It's stamped off by Cabinet.
All right---I can't pre-empt cabinet's mind (ts 192 - 193).
31 When asked about the meaning of the evidence he had given to the
CCC on the subject of whether or not he had given an assurance to Mr Burke in respect of Ms Morgan's appointment, Mr Marlborough gave the following evidence:
In - in terms of - of that answer, I thought I'd - I thought I was giving the same answer as I said earlier to the CCC, that in giving any statement at all on Mrs Morgan, it simply meant she would be going through - through the - the process. Being sorted didn't, to me, mean anything to do with being appointed. She was going to go through a process (ts 193).
32 Later, when asked specifically about the evidence he had given to the
CCC about his inability to recall Mr Burke asking him to appoint
Ms Morgan, Mr Marlborough said:I don't know why I - why I would have said that, in terms of him asking me to appoint, other than I always - in whatever way Mr Burke may have put the issue of Mrs Morgan, in whatever way - I had two clear things in my mind. Deflect him in any way I could - deflect him off the issue - and Mrs Morgan would be processed like any other person who would apply. And that process means, although at the end of the day the Minister appoints, he doesn't do so without Cabinet approval. It has to go to Cabinet (ts 195).
33 The prosecutor cross-examined Mr Marlborough on the evidence he
had given to the CCC in relation to Mr Burke's approaches with respect to Ms Morgan's appointment. In that context, the following interchange took place:
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… you knew quite well that you and Burke had discussed the appointment of Beryle Morgan to the South West Development Commission---I've admitted that to the CCC.
Yes, and when you were asked---My first comment on Mrs Morgan to the CCC was to admit that Mr Burke had approached me, we had discussed it on a couple of occasions. The first time Mr Hall asked me the question on whether Mr Burke approached me, I said, 'Yes, he did' (ts 197).
…
Well, you told him it was a done deal---That's right.
Well, then what did you mean, may I ask, by 'a done deal'---I meant that Mrs Morgan would have to go through a process that the next [sic ex] Premier would know all about, and that is a process where nominations are called, they come into the South West Development Commission, they come forward to me for consideration, I take those considerations to the Cabinet, the Cabinet decide. That's what I meant. That's what I told the CCC (ts 199).
34 Later the prosecutor asked Mr Marlborough about evidence that had
been given by a government officer, a Mr Jones, of a conversation with Mr Marlborough concerning Ms Morgan's appointment. In that context, the following interchange took place:
Well, I'm just addressing your claim about the proper processes---Mm.
'Brian's found us a woman'. And you mention Ms Morgan---Mm.
When you told Mr Jones, 'Brian's found us a woman', what did you mean by that---Just those words - he's found us a woman.
And a woman for what---Consideration to be appointed.
Consideration to be appointed---Mm.
Not Brian's found us somebody whom I want appointed---No.
Well, you've indicated that you'd go through the proper processes and the like------I have to (ts 199 - 200).
35 The prosecutor returned to the portion of the intercepted telephone
conversations in which Mr Marlborough had told Mr Burke that Ms Morgan's appointment was 'a done deal'. He asked Mr Marlborough again what he meant by that expression. Mr Marlborough replied:
It would go through the proper process.
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Right. Okay. It'd go through the proper processes, being Cabinet processes. Is that right---It has to.
Good. Indeed. Let's just------It's not me just telling him - it has to (ts 201).
36 The prosecutor then turned to the telephone intercept to which I have
referred above, in which Mr Marlborough told Mr Burke that the appointment would be made 'straight after Cabinet'. In that context, the following interchange took place:
You're telling Burke you're going to actually make the appointment straight after cabinet---Mm hm.
Well, what did you mean by all that---It goes through the process.
As at 14 August------I was telling - I was telling Mr Burke that it's got to go through cabinet.
You said, and these were your words, 'The appointment's already been made'---She was on the list to go through cabinet. That's all that meant.
I'm not going to let this point go, Mr Marlborough---Mm hm.
And I'll have an answer to my question, thank you. You didn't tell Burke, 'Brian, look, mate, like everybody else I recommend to anything she has to go through the proper processes of cabinet.' You said, 'I said, "It's too late, mate, your person,"' and Burke goes, 'Yeah,' and you told Burke, 'The appointment's already been made.' Those were your words---Mm hm.
Now, Mr Marlborough, I'll approach it this way. You're not telling Burke anything about proper parliamentary or public sector processes, are you---I am.
You're telling him you'd already made it---No, not at all.
But those are your words, Mr Marlborough. We can all hear them--- They're - they're my words to a man who's been the premier of the state and has been in parliament for 20 years himself. Why would I have to go through a process that he already knows inside out? He knows without me saying that these matters have got to go through cabinet. I can't bypass them. I can't just stand up in parliament and nominate somebody because I feel like it.
Are you seriously giving that answer to the------I am.
- - - jury that Burke would have known what you were talking about---I am
(ts 202). [emphasis added]
37 In re-examination, Mr Marlborough repeated, in answer to a leading
question, that his intention was always to take the appointment through
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the proper process, to look at each on its merits and to apply the proper
standards to outcomes (ts 219 - 220).
It is clear that, by this stage, the convention of Cabinet approval had been raised squarely by Mr Marlborough in his evidence.
39 It is also apparent from the evidence which I have set out above that
both in evidence-in-chief and during cross-examination, Mr Marlborough steadfastly maintained that during his evidence to the CCC he had drawn a distinction between Mr Burke's support and encouragement for Ms Morgan's appointment, which he admitted without reservation, and a request from Mr Burke to appoint Ms Morgan without going through the proper processes of evaluating each applicant on their respective merits and putting forward names to Cabinet, which he denied.
The closing addresses
In closing in relation to count 1 of the indictment the prosecutor said:
There is no doubt that Mrs Morgan was not ever nominated or recommended to Cabinet as one of the appointees to the Commission (ts 298).
…
We have on 9 August, and you've heard the interchange played to you a couple of times yesterday, Mr Burke imploring Mr Marlborough to appoint Beryle Morgan to the South West Development Commission. In that interchange he said, 'Mate, it's just important to me'. He says, "An effing good appointment", immediately afterwards. And what was Mr Marlborough's reply to that? No argument and Mr Marlborough replied that Mr Clough had actually requested that he appoint somebody from what I think he was referring to as the Chamber of Commerce, not the Chamber of Communists, and the like. And Burke replied, 'This is the first person I've ever recommended to you for appointment anywhere'. And what was Mr Marlborough's reply? 'Yeah. Oh, mate, it's a done deal'. Now, when I was questioning him yesterday Mr Marlborough said to me what he actually meant by that was an indication to Mr Burke, who was a premier and thoroughly familiar with the political, parliamentary and public processes of this State, would have realised that, well, 'it's a done deal' means I'll make a recommendation but it has to be processed by Cabinet. That, you might think, and this is the reason why you have been empanelled, to bring your collective common sense and common knowledge of affairs and common sense that you've gleaned as members of the community, is simply what's not (sic not what's) been said. Mr Marlborough clearly said and his words, in our submission to you, speak for themselves, 'Mate, it's a done deal' (ts 301). [emphasis added]
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…
It is inconceivable that - Mr Marlborough did not forget those conversations that he had with Mr Burke - that he'd forgotten those conversation that he had with Mr Burke. And it is inconceivable that the construction that he puts on them is consistent with what Mr Marlborough tells you. When Burke rings him up he doesn't tell Mr Burke, 'Look, Brian, these are Cabinet appointments. I'm just one member of Cabinet. It has to be ratified by Cabinet' As you've heard over and over again, he told him it was a done deal; it would be done straight after Cabinet and he would do it for him (ts 304). [emphasis added]
41 It can be seen from the passages set out above, that the convention
that Cabinet approval be obtained prior to appointment by the Minister was explicitly incorporated into the prosecution case on count 1 of the indictment. The prosecutor's argument to the jury was that Mr Marlborough's assertion that the assurances in the recorded conversations were merely assurances to recommend to Cabinet, and so not assurances to 'appoint' Ms Morgan, was unreasonable and should be rejected. The prosecution case on count 1 was that Mr Marlborough gave an assurance to appoint Ms Morgan 'straight after Cabinet'. The case was put on the basis that Cabinet approval would not be dispensed with. In this context, the word 'appoint' was used in the sense of formally appoint, subsequent to Cabinet approval.
In respect of count 2 the prosecutor said:
Likewise with his evidence, continuing on page 1066, that he didn't ask, when he was asked by Mr Hall that:
He didn't ask you -
that is Mr Marlborough -
to appoint her?
And his answer was:
No, I don't recall him asking.
On the prosecution's case, it is inconceivable that he'd give that as a correct answer given that he had participated in a number of conversations with Mr Burke about that very issue. And you've all heard the conversations. You've heard the tone Burke is using with Mr Marlborough. It's hardly what one could describe as a shrinking violet.
It is hardly the sort of language of somebody who's backward or reticent; just obliquely, if you like, raising the issue. He says to Mr Marlborough in
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the interchange of 9 August, "This is important to me on 15 different fronts", and continually revisits the issue. How it is that Mr Marlborough could contend that he'd forgotten about it before the Commission is simply, on the prosecution's case, inconceivable and not credible (ts 304).
43 No reference is made to the meaning of the word 'appoint' in these
remarks. However, because of the clear meaning which can be ascribed to this term from the manner in which the prosecution put its case on count 1, it is clear that the case on count 2 was put on the basis that Mr Burke asked Mr Marlborough to formally appoint Ms Morgan, subsequent to Cabinet approval, and that Mr Marlborough falsely denied that he had been asked to do this. On the issue of the meaning to be ascribed to Mr Marlborough's testimony to the CCC, a number of the questions put to Mr Marlborough by his counsel would appear to have had the objective of resolving the ambiguity in the evidence. However, that was not the line taken by counsel for Mr Marlborough in his closing address relating to count 2 on the indictment. In his closing address with respect to that count, counsel for Mr Marlborough emphasised the evidence he had given with respect to his inability to recall his conversations with Mr Burke, in support of the submission that the jury could not be satisfied beyond reasonable doubt that Mr Marlborough knew the evidence he gave to the CCC to be false or misleading at the time it was given. He did not undertake any analysis of the meaning or meanings which the jury should attribute to Mr Marlborough's testimony, or suggest that his testimony should be understood as denying that Mr Burke had asked him to appoint Ms Morgan without evaluating each applicant on their respective merits, or without applying proper standards to that evaluation, or without putting the matter before Cabinet for its determination.
The trial judge's directions to the jury
44 The trial judge repeatedly directed the jury that in order to find either
of the charges against Mr Marlborough proven, they needed to be satisfied beyond reasonable doubt that the evidence given by Mr Marlborough to the CCC was false or misleading in fact - that is, objectively false or misleading, and that it was known by Mr Marlborough to be false or misleading at the time it was given - that is, false or misleading from the subjective perspective of Mr Marlborough. However, he did not analyse the meanings properly attributed to the words used by Mr Marlborough in this context, nor did he address in any way the issue of the ambiguity of meaning created by those words to which I have referred.
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The grounds of appeal
45 There are four grounds of appeal. All focus upon the issue of the
ambiguity of the evidence given by Mr Marlborough to the CCC to which I have referred. The first ground asserts that the ambiguity in Mr Marlborough's evidence to the CCC should be resolved so as to find Mr Marlborough denied only that Mr Burke asked him to appoint Ms Morgan without going through the proper process, defined by Mr Marlborough as being 'to look at [each candidate] on its merits and to apply proper standards to outcomes [and] … take names forward to Cabinet'. It further asserts that there was no evidence of any such request by Mr Burke. As a result, the verdict of guilty is said to have been unreasonable or incapable of support having regard to the evidence. This is the ground of appeal embodied in s 30(3)(a) of the Criminal Appeals Act 2004 (WA). The principles properly applied in considering this ground are well known and need not be restated - see M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492; Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389 [6]. The second ground is contingent on the success of ground 1 and asserts that the trial judge erred in failing to direct that there was no evidence that the appellant had given any evidence to the CCC which was false or misleading. The remaining two grounds assert that the directions given by the trial judge were inadequate, for various reasons associated with the ambiguity.
Grounds 1 and 2
46 It will be apparent from the reasons I have already given that I am
satisfied that the evidence given by Mr Marlborough during his examination before the CCC was ambiguous in the respect which I have identified, and that this ambiguity was not addressed by either party at trial, or by the trial judge. Indeed, counsel appearing for the State on the appeal, who was the prosecutor at trial, conceded, quite properly in my view, that the ambiguity in the evidence given to the CCC was not addressed at trial.
47 Ambiguity in the testimony given by an accused charged with giving
false or misleading testimony will not always be fatal to the prosecution case. For example, notwithstanding a possible ambiguity, it may be open, on the evidence, for a jury to reasonably conclude beyond reasonable doubt that the testimony conveyed, and was known by the accused to convey a particular meaning, and in that meaning was false or misleading in fact, and was known by the accused to be false or misleading. It might also be possible for a prosecution case to be mounted on the basis that
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notwithstanding an ambiguity in the evidence given, the evidence was false or misleading in all the meanings which it was known by the accused to convey, or could in fact have conveyed, and was known by the accused to be false or misleading in all those meanings at the time the evidence was given. It is also conceivable that a case could be presented on the basis that the accused had given evidence which he or she knew to be ambiguous, and with the intention of misleading by that ambiguity. However, in this case, none of these possibilities were developed, or enunciated by any participant in the trial process.
48 These grounds of appeal are concerned with the adequacy of the
evidence to sustain a reasonable conclusion of guilt. If the appellate court concludes that the evidence adduced at trial was not capable of sustaining a reasonable conclusion of guilt, that court will generally quash the conviction and substitute a verdict of acquittal. On the other hand, if the appellate court concludes that the evidence was capable of sustaining a conviction, but for some reason or other the trial process miscarried, the court will generally quash the conviction and order a retrial. In this case, the remaining two grounds of appeal are of the latter kind, in that they assert that the trial miscarried by reason of deficiencies in the directions given by the trial judge to the jury.
49 For the reasons I have given, the testimony given by
Mr Marlborough to the CCC was ambiguous. However, as I have indicated, notwithstanding that ambiguity, there are a number of ways in which a properly instructed jury could conclude that Mr Marlborough was guilty of the charge brought. If the evidence is capable of sustaining a conclusion beyond reasonable doubt that Mr Marlborough knew that his testimony conveyed, and would be taken as conveying one meaning, and that he also knew facts which rendered that meaning false or misleading, the evidence would be capable of sustaining a verdict of guilt. Alternatively, if the evidence is capable of establishing beyond reasonable doubt that Mr Marlborough knew of facts which would render his testimony false or misleading in all of the meanings the testimony could have conveyed, it would also be capable of sustaining a verdict of guilt.
50 The first meaning which a jury might find to have been conveyed by
Mr Marlborough's testimony, and which a jury might find he knew to be conveyed, was to the effect that Mr Burke had not asked him to appoint Ms Morgan in the sense of legitimately encouraging and urging him to support her appointment by complying with the usual process of evaluation of all applicants on their respective merits, the application of proper standards to that evaluation, and the presentation of a
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recommendation to Cabinet for its determination. In that meaning, Mr Marlborough's testimony would have been inconsistent with his earlier testimony to the CCC in which he accepted that Mr Burke had supported Ms Morgan's appointment, but inconsistent testimony by witnesses is, of course, commonplace and would not, of itself, prevent the jury from being satisfied beyond reasonable doubt that this was the meaning which Mr Marlborough knew and intended to convey, and which his testimony did in fact convey.
51 There was ample evidence upon which a jury properly instructed
could have been satisfied beyond reasonable doubt that Mr Marlborough knew of facts which rendered testimony conveying that meaning false or misleading. The transcripts of the intercepted conversations clearly established that Mr Burke had urged and encouraged him to cause Ms Morgan to be appointed, as Mr Marlborough conceded both in his initial testimony to the CCC, and in his evidence at trial. It should be noted that this analysis is consistent with the manner in which I have found that the prosecution presented its case at trial.
52 It would also have been open to the jury to be satisfied beyond
reasonable doubt that Mr Marlborough knew and intended that the meaning to be conveyed by his testimony to the CCC was that Mr Burke had not asked him, or he could not remember him asking him to depart from 'the normal process' in causing Ms Morgan to be appointed. The normal process was said by Mr Marlborough, both in his testimony to the CCC and in his evidence at trial, to require an evaluation of all candidates on their respective merits, the application of proper standards to that evaluation, and the presentation of a recommendation to the Cabinet for its determination. Accordingly, it would be open to a jury to find, beyond reasonable doubt, that Mr Marlborough knew and intended that his testimony convey the meaning that Mr Burke had not asked him, or he could not remember him asking him to cause Ms Morgan to be appointed by departing from 'the normal process' in any one or more of these respects. It follows that if there was evidence upon which a jury could be satisfied beyond reasonable doubt that Mr Marlborough knew that Mr Burke had asked him to depart from the normal process in any one or more of those respects, it was open to the jury to be satisfied beyond reasonable doubt of his guilt.
53 The evidence going to the question of whether Mr Marlborough
knew that Mr Burke had asked him to depart from the normal process in relation to the appointment of Ms Morgan was the evidence of the telephone intercepts. It is important to bear in mind that those transcripts
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do not convey the full sense and flavour of the conversations, in the same way as the recordings that were played to the jury. It is also important to remember that the jury had the benefit of evaluating that evidence in the context of the evidence as a whole, including the evidence relating to the relationship between Mr Burke and Mr Marlborough. It is also important to remember, when assessing whether this evidence was capable of satisfying a jury of Mr Marlborough's guilt beyond reasonable doubt, that an appellate court:
... must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witness. On the contrary the court must pay full regard to those considerations. (M v The Queen (Mason CJ, Deane, Dawson and Toohey JJ) at 493)
54 In the circumstances of this case, provided that the intercepted
conversations are capable of sustaining a finding beyond reasonable doubt that Mr Marlborough knew that Mr Burke had asked him to depart from the normal process in one or other of the respects identified, the nuances properly drawn from those conversations, and the weight to be given to particular words used in the course of those conversations are essentially matters for the jury, not for this court. It follows that the observations I am about to make with respect to the recorded conversations are addressed to the question of whether they are capable of sustaining the requisite finding of knowledge, beyond reasonable doubt. If the evidence is capable of sustaining such a finding, then whether or not it should be made is, of course, a matter for a jury, properly instructed.
The intercepted conversations
9 August 2006
55 During the conversation on 9 August 2006, Mr Burke and
Mr Marlborough discussed the fact that Mr Peter Clough was promoting the appointment of another candidate. In that context, it would be open to a jury to find that Mr Burke derided Mr Clough, and proposed that Mr Marlborough owed greater loyalty to Mr Burke. It would also be open to a jury to find that Mr Marlborough advised Mr Burke that he would not return Mr Clough's call and entertain his representations as to the candidate he was nominating. It would also be open to a jury to conclude that the tenor of the conversation was to the effect that Mr Burke was encouraging Mr Marlborough to promote Ms Morgan's appointment out of loyalty to him, rather than her merits as a candidate, but on the basis
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that Mr Marlborough could justify Ms Morgan's appointment to others. It would also be open to a jury to find that Mr Marlborough advised Mr Burke that if he had not drawn his attention to Ms Morgan, she would not have been recommended through the normal process.
14 August 2006
56 It would be open to a jury to conclude from the conversation that
took place on 14 August 2006 that Mr Marlborough had told Mr Burke that procuring the appointment of Ms Morgan would not be a problem, irrespective of the evaluation of other candidates, and that Mr Marlborough told Mr Burke that he had told Mr Clough that it was too late for any other candidate to be appointed. It would also be open to a jury to find that Mr Marlborough had stated to Mr Burke that he would cause Ms Morgan's appointment to be made, irrespective of the process of evaluating candidates and applying proper standards to that evaluation.
15 and 17 August 2006
57 It would be open to a jury to conclude that in each of these
conversations, viewed in the context of the conversation which took place on 14 August 2006, Mr Marlborough had told Mr Burke that Ms Morgan's appointment would not be a problem, irrespective of the merits of other prospective candidates.
21 August 2006
58 It would be open to a jury to conclude that in the course of this
conversation Mr Marlborough had assured Mr Burke that he would not have any trouble causing Ms Morgan to be appointed, notwithstanding that many people had adverse views of Ms Morgan, and that Mr Marlborough would not be talked out of her appointment by anyone. This would in turn be capable of sustaining a conclusion that Mr Marlborough was aware that Mr Burke was asking him to subvert the normal process by not considering each and every applicant on their respective merit, and by not applying proper standards of evaluation to that process.
26 August 2006
59 It would be open to a jury to conclude from this conversation that it
was understood between Mr Marlborough and Mr Burke that Mr Marlborough was causing Ms Morgan to be appointed because of his loyalty to Mr Burke, and because of Mr Burke's request, rather than
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because of an objective evaluation of the respective merits of different
applicants.
12 September 2006
60 It would be open to a jury to conclude, from this conversation,
viewed in the context of the earlier conversations, that Mr Marlborough was again telling Mr Burke that there would be no problems with the appointment of Ms Morgan, irrespective of the merits of other prospective candidates.
61 I repeat that the observations I have just made are directed to the
question of whether a jury properly instructed could draw the conclusions which I have identified from the intercepted conversations. Whether or not a jury would draw those conclusions is, of course, a jury question. However, if the jury did draw those conclusions, it would enable the jury to conclude, beyond reasonable doubt, that Mr Marlborough knew that Mr Burke had requested him to depart from 'normal process' in relation to the appointment of Ms Morgan.
62 I have concluded that there was evidence capable of satisfying a jury
beyond reasonable doubt that Mr Marlborough knew facts which rendered his testimony false or misleading in each of the meanings which the testimony was capable of conveying. It follows that the evidence was capable of sustaining a verdict of guilt on the charge brought against him, and that ground 1 should be dismissed. Ground 2 must therefore also fail and be dismissed.
63 I do not overlook the fact that the two ways in which I have analysed
the case against Mr Marlborough, and the evidence available to sustain a verdict of guilt were not the way in which the case was put explicitly by the prosecution at trial, although they are not inconsistent with the way the prosecution case was put. No issue was taken at trial by defence counsel as to the way in which the prosecution case was put, and the ambiguity of the testimony given by Mr Marlborough to the CCC was raised for the first time on appeal. Given my conclusion that the evidence adduced at trial was capable of sustaining a verdict of guilt after a properly conducted trial, there is no injustice to Mr Marlborough occasioned by rejecting ground 1 and allowing such a trial to occur.
Grounds 3 and 4
These grounds challenge the adequacy of the directions given by the
trial judge.
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65 Ground 3 asserts that the trial judge should have directed that the
jury could not convict unless satisfied that Mr Burke had asked Mr Marlborough to appoint Ms Morgan without going through the proper process of a consideration on the merits and of recommending her name to Cabinet. Ground 4 asserts that the trial judge erred in failing to direct that the meaning of Mr Marlborough’s answers to the CCC should be determined in the context of his evidence as a whole, rather than in isolation. However, the argument on appeal was conducted on the common basis that the grounds were broad enough to encompass misdirection arising from the ambiguity of meaning which was the subject of grounds 1 and 2.
66 It is clear that the trial judge did not address the issue of the meaning
to be derived from the testimony given by Mr Marlborough, or direct the
jury on the different possible meanings open on the evidence.67 As I have mentioned, counsel for the State accepted that the evidence
given by Mr Marlborough to the CCC was ambiguous. However, he submitted that the grounds relating to misdirection should not be upheld because the issue was not raised by counsel for Mr Marlborough in his closing address at trial and that, further or in the alternative, in the context of a relatively short trial, the summing up by the trial judge of the prosecution and defence case was adequate.
68 On the first submission it was asserted that this court should
conclude that counsel at trial had taken a deliberate tactical decision to refrain from raising the point, with the result that it should be concluded that no miscarriage of justice was occasioned by it not being put to the jury by the trial judge. This submission should be rejected.
69 I do not consider it open to infer that counsel for Mr Marlborough at
trial took a deliberate tactical decision not to raise the issue of ambiguity. Such a course would be inconsistent with the questions asked of Mr Marlborough in evidence-in-chief, which, as I have mentioned, appear to have been directed to enunciating and resolving the ambiguity. If counsel had made a deliberate decision to refrain from taking that point, it seems most unlikely that those questions would have been put in those terms.
70 Counsel for the appellant submitted in opposition to both State
submissions that, even if tactical decisions are made by counsel at trial, the overriding duty of the trial judge to ensure that the accused receives a fair trial obliges the judge to put to the jury every defence lawfully
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available, irrespective of the position adopted by counsel for the accused - see Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107, 117 - 118 (Barwick CJ); Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 [83] - [84] (McHugh J); Rogers v The State of Western Australia [2008] WASCA 201 [27] (Steytler P).
71 Whether there has been a misdirection in this case depends upon
whether the trial judge's direction to the jury adequately discharged the requirement to ensure a fair trial and, as a result, the requirement that the jury be adequately directed on the issues in the case and the manner in which the law applies to those issues.
In RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620, Gaudron ACJ, Gummow, Kirby and Hayne JJ said:
The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence [41].
Similarly, in Fingleton v The Queen McHugh J said:
Section 620 of the Criminal Code declares that, after the evidence has concluded and counsel have addressed the jury, 'it is the duty of the court to instruct the jury as to the law applicable to the case, with such observations upon the evidence as the court thinks fit to make.' The court does not discharge that duty by merely referring the jury to the law that governs the case and leaving it to them to apply it to the facts of the case. The key term is 'instruct'. That requires the court to identify the real issues in the case, the facts that are relevant to those issues and an explanation as to how the law applies to those facts. As McMurdo P said in Mogg, ordinarily the duty imposed on a trial judge in respect of a summing-up requires the judge to identify the relevant issues and relate those issues to the relevant law and facts of the case. In the same case, after referring to s 620 Thomas JA said:
The consensus of longstanding authority is that the duty to sum up is best discharged by referring to the facts that the jury may find with an indication of the consequences that the law requires on the footing that this or that view of the evidence is taken. (footnote omitted) [71]
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This approach is also mandated by s 112 of the Criminal Procedure Act 2004 (WA) which provides:
After addresses have been made in accordance with section 145 and before the jury retires to consider its verdict, the judge must instruct the jury on the law applicable to the case and may make any observations about the evidence that the judge thinks necessary in the interests of justice.
75 The application of these principles leads to the conclusion that a fair
trial in this case obliged the trial judge to direct the jury that its consideration of whether the elements of the offence had been made out necessarily entailed, as a pre-requisite, a consideration of what meaning the words spoken by Mr Marlborough in the CCC hearings were capable of conveying, and did in fact convey. A fair trial also required that the trial judge outline the various alternative meanings the crucial testimony was capable of bearing. Only once the jury was directed to consider these meanings could it properly determine whether the evidence given was false or misleading, and was known by Mr Marlborough to be so.
76 Notwithstanding that neither counsel at trial had raised this issue in
their closing addresses or requested such a direction, it was incumbent on the trial judge to give directions to the jury on the subject, as it arose on the evidence. It follows that the grounds of appeal which assert misdirection by the trial judge should be upheld to this extent.
The applications for extension of time and leave to appeal
77 As I have mentioned, Mr Marlborough applies for an extension of
time within which to apply for leave to appeal against his conviction. He was convicted on 22 October 2009, with the result that his appeal had to be commenced by 12 November 2009. An affidavit filed in support of the application for an extension of time established that on 11 November 2009, Mr Marlborough received advice from Senior Counsel experienced in criminal law to the effect that he did not consider that there were any grounds of appeal which would have reasonable prospects of success. However, on 25 November 2009, Mr Marlborough approached Mr McCusker QC, who agreed to consider all the relevant papers and to provide advice with respect to the prospects of an appeal. On the afternoon of 26 November 2009, Mr McCusker QC advised that in his opinion, there were arguable grounds for an appeal against conviction, and on 27 November 2009, Mr McCusker QC provided to Mr Marlborough's instructing solicitor the draft grounds of appeal which gave expression to those views. Those grounds of appeal were
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incorporated in the appeal notice which was lodged on 27 November
2009.78 Accordingly, the evidence before the court establishes a reasonable
excuse for the relatively short delay, of 15 days, in commencing this appeal. Given that the appellant has established a miscarriage of justice, there is no reason why time should not be extended, so that the court can remedy that miscarriage.
For these reasons, the orders I would make are:
(1)
application for extension of time within which to commence an appeal against conviction granted, and time extended up to and including 27 November 2009;
(2) application for leave to appeal against conviction granted on all
grounds;(3)
appeal allowed on the ground that the trial judge failed to adequately direct the jury with respect to the issues which they had to determine;
(4) the conviction of the appellant on count 2 of the indictment be
quashed, and a retrial ordered.
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BUSS JA: The appellant was tried in the District Court before Eaton DCJ and a jury on two counts in an indictment which alleged:
1. On 8 November 2006 at Perth [the appellant], at an examination before the Corruption and Crime Commission, gave evidence which he knew was false or misleading in a material particular by denying that he had ever given Brian Burke an assurance that he would appoint Beryle Morgan to the South West Development Commission.
2. On the same date and at the same place [the appellant], at an examination before the Corruption and Crime Commission, gave evidence which he knew was false or misleading in a material particular by giving evidence to the effect that Brian Burke had not asked him to appoint Beryle Morgan to the South West Development Commission, alternatively that he could not recall Brian Burke asking him to appoint Beryle Morgan to that Commission.
The jury acquitted the appellant on count 1 and convicted him on
count 2.
The appellant has applied to this court for an extension of time to appeal, and leave to appeal, against his conviction.
83 On 15 March 2010, Jenkins J ordered that the application for an
extension of time and the application for leave to appeal be referred to the
hearing of the appeal.
Fourthly, that when the evidence in question was given the appellant knew that it was false or misleading.
Fifthly, that the evidence in question was false or misleading 'in a material particular'.
Ground 1: its merits
There is no doubt that the appellant gave evidence at an examination before the Commission. The State proved the first element of count 2.
156 If the appellant gave evidence 'to the effect' alleged in count 2 and if
the evidence to that effect was false or misleading, then, in my opinion, his evidence was false or misleading 'in a material particular'. The evidence in question was material to the Commission's investigation in that it was relevant to whether Mr Burke had or may have intended improperly to influence any public officer (including the appellant) to engage in misconduct in the performance of his or her duties by conferring a benefit on Mrs Morgan in exchange for her assistance with
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the obtaining of requisite approvals to the proposed residential and tourism development at Smiths Beach in Yallingup. As to the issue of 'materiality', see R v Davies (1974) 7 SASR 375, 387 - 388, 394 - 399 (Wells J); R v Traino (1987) 45 SASR 473, 478 (King CJ), 479 - 481 (Jacobs J); Stanton v Abernathy (1990) 19 NSWLR 656, 662 (Gleeson CJ, Priestley & Meagher JJA agreeing). On the assumptions I have mentioned, the State proved the fifth element of count 2.
157 The fourth element of count 2, namely, that when the evidence in
question was given the appellant knew that it was false or misleading, was a quintessential issue for the jury. It involved not only an assessment of the intercepted telephone conversations between the appellant and Mr Burke and the appellant's evidence before the Commission, but also an assessment of the credibility of the appellant's evidence at the trial and the plausibility of his assertions that he did not knowingly give evidence before the Commission that was false or misleading. All of these matters had to be evaluated by the jury in the course of deciding whether the State had proved the fourth element.
158 The second and third elements of count 2 raise for consideration
issues of a different character. They involve an analysis, on an objective basis, of the intercepted telephone conversations between the appellant and Mr Burke and the appellant's evidence before the Commission. See, generally, the approach and observations of Gleeson CJ in Stanton (661 - 663).
In my opinion, on a fair reading of the transcripts of the intercepted telephone conversations between the appellant and Mr Burke as a whole:
(a) Mr Burke asked the appellant, relevantly and in substance, to make a recommendation to Cabinet that it approve the appointment by the appellant, as the responsible Minister, of Mrs Morgan as a member of the South West Development Commission; and (b) Mr Burke did not ask the appellant to appoint Mrs Morgan without the approval of Cabinet or to appoint her irrespective of whether Cabinet approved her appointment or not.
My reasons for these opinions are as follows.
First, the transcripts must be read and considered against the background that:
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(a) Mr Burke was a former member of the Parliament of Western Australia for many years, and a former Premier of the State. (b) At all material times, the appellant was a member of the Parliament of Western Australia and a Cabinet Minister. (c) There was uncontested evidence at the trial that at all material times, by convention, any appointment by the responsible Minister of a person as a member of a commission established under the Regional Development Commissions Act would be submitted by the Minister to Cabinet for approval and, by convention, the Minister would not make such an appointment without Cabinet approval. (d) The appellant knew, and Mr Burke must have known, of the existence of these conventions.
Secondly, the transcripts reveal that:
(a)
Mr Burke lobbied the appellant and sought his support and agreement to the appointment of Mrs Morgan.
(b)
On 14 August 2006, the appellant told Mr Burke that it (the appointment) would 'be done' or 'be in place' this week 'straight after Cabinet'.
(c)
On 21 August 2006, the appellant told Mr Burke that 'people' were 'scared witless' by Mrs Morgan and thought she was 'fucken mad', but the appellant thought, nevertheless, that he would 'get okay'.
(d)
On 21 August 2006, Mr Burke inquired of the appellant whether he was 'gunna have trouble doing it' and the appellant replied 'No, I don't think so'.
(e) On 21 August 2006, Mr Burke counselled the appellant: Don't let'm talk you out of it.
163 Thirdly, the references in the transcripts to 'straight after Cabinet', the
appellant thinking that he would 'get okay', Mr Burke's inquiry whether the appellant was 'gunna have trouble doing it' and the appellant's reply 'No, I don't think so', and Mr Burke's statement that the appellant should not 'let'm talk you out of it', in the context of the applicable conventions and Mr Burke's and the appellant's knowledge of them, are consistent only with Mr Burke asking the appellant, relevantly and in substance, to make
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a recommendation to Cabinet that it approve the appointment by the appellant, as the responsible Minister, of Mrs Morgan. The matters to which I have just referred and the ongoing, lengthy, duration of the discussions between Mr Burke and the appellant (between about 9 August 2006 and about 12 September 2006) are inconsistent with Mr Burke asking the appellant, in substance, to appoint Mrs Morgan without Cabinet approval or to appoint her whether or not Cabinet gave its approval.
164 Count 2 did not allege that particular or discrete answers given by the
appellant, in the course of his examination before the Commission, to particular or discrete questions, were false or misleading. Rather, it was alleged that the appellant gave evidence 'to the effect' that Mr Burke had not asked him to appoint Mrs Morgan, alternatively that he could not recall Mr Burke asking him to appoint Mrs Morgan, to the South West Development Commission. The words 'to the effect' connote that, on a fair reading of the appellant's evidence as a whole before the Commission, it should be concluded that the purport or tenor of his evidence was as stated in the count.
The relevant features of the appellant's evidence before the Commission are these:
(a) Counsel assisting the Commission put to the appellant that he was the person who made appointments to the South West Development Commission. The appellant responded: ---Yes and no. I'll explain the yes and no. I don't want to confuse anybody. I want to explain the yes and no. The board is made up of two areas of receiving onto the board. One is local government area. So the local government association recommend a nominee to me and the other one - I think a minor number of the board positions I can have direct input into, but - - - (GAB 45).
The appellant did not complete his answer. He was cut off by
counsel assisting who asked another question.
(b)
The appellant said that Mr Burke had spoken to him 'on a couple of occasions' about Mrs Morgan's merits and the advantages of appointing her to the South West Development Commission (GAB 46).
(c)
The appellant cavilled with the proposition that Mr Burke was 'urging' him to appoint Mrs Morgan. He acknowledged, however, in substance, that Mr Burke was supporting Mrs Morgan's
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appointment and that Mr Burke had telephoned him 'a couple of
times' about her appointment. (GAB 47).
(d) The appellant said that his response to Mr Burke was, in substance, 'it's okay, it will be sorted', but the appellant emphasised that: In my mind the 'okay, it will be sorted' was always about - you know, it will be a process that we will have to go through (GAB 47). (emphasis added)
(e) A little later, the appellant reiterated that, in his mind, 'it's okay, it will be sorted' meant 'we go through a process' (GAB 47). (f) The appellant denied having given Mr Burke any assurance that he would appoint Mrs Morgan (being the essence of count 1 on which he was acquitted). He explained that no one would be appointed 'without going through the proper processes' (GAB 47). (g) As I have mentioned, the passage relied on by the prosecutor at the trial was as follows: You're aware I think of what Mr Burke has said in regard to this? You have familiarised yourself with his evidence?---I am. Yeah, I am.
He couldn't recollect having spoke to you about it but he was asked:
Is it possible that you asked [the appellant] to appoint her to the South-West Regional Development Commission?---No, I wouldn't have done that.
Why wouldn't you have done that?---Because I wouldn't have thought that that was the right thing to do. I might have said to him that she was an applicant.
Would you agree with that? Would you accept that that's true?---I accept that.
That he didn't ask you to appoint her - - - ?---I don't recall him asking me to appoint. No, I don't recall asking - - (GAB 47 - 48).
(h)
But immediately after this passage, in the course of answering the next question, the appellant elaborated upon and explained his evidence in this manner:
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I don't know what was going through Mr Burke's mind but I would hope the nature of our friendship would be such that he wouldn't ask me to do something that was not appropriate and to appoint somebody on the basis of Mr Burke ringing me solely was certainly not appropriate, it needed to go through the proper process and that's what we're still waiting to do (GAB 48). (emphasis added)
(i) The appellant then gave this evidence:
But it didn't go so far as him saying 'would you please appoint Beryle Morgan'?---I don't remember the exact details of it, of the conversations we had, other than to repeat in whatever form of words Mr Burke may have used my intention was to always take this through the proper process, to look at each on its merits and to apply proper standards to outcomes. At the end of the day all I can do is to take names forward to Cabinet and at the end of the day Cabinet make the decision (GAB 48). (emphasis added)
166 It is apparent that the appellant's references to going through a
'process' and going through the 'proper process' or 'proper processes' included, relevantly, the appellant, in his capacity as the responsible Minister, making a recommendation to Cabinet for approval of the appointment of Mrs Morgan as a member of the board.
167 The distinction between the appellant making a recommendation to
Cabinet that it approve the appointment by the appellant, as the responsible Minister, of Mrs Morgan on the one hand, and the appellant appointing Mrs Morgan without Cabinet approval or appointing her whether or not Cabinet gave its approval on the other, appears not to have been appreciated by the Commission. The distinction was, in substance, referred to by the appellant in his evidence before the Commission, but was not taken up or pursued by counsel assisting.
168 In my opinion, a fair reading of the appellant's evidence as a whole
before the Commission (in particular, the relevant features which I have set out at [165] above) reveals that his evidence was not, objectively, false or misleading as alleged in count 2. The critical points are that:
(a)
on a fair reading of the transcripts of the intercepted telephone conversations as a whole, Mr Burke asked the appellant, relevantly and in substance, to make a recommendation to Cabinet that it approve the appointment by the appellant, as the responsible Minister, of Mrs Morgan; and
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(b) on a fair reading of the appellant's evidence as a whole before the Commission, his evidence reflected, relevantly and in substance, Mr Burke's request. 169 The only decision reasonably open on count 2 as formulated in the
indictment, and on the State's case as run at the trial, is that the appellant's evidence before the Commission was not relevantly false or misleading as alleged in count 2. The State failed to make out the second and third elements of count 2. The jury should necessarily have entertained a reasonable doubt as to the appellant's guilt.
It follows that ground 1 of the appeal has been made out. The appeal should be allowed and the conviction on count 2 should be set aside.
Ground 1: should there be a new trial or a judgment of acquittal?
171 Section 30(5) of the Criminal Appeals Act provides, relevantly, that if this court allows an appeal against conviction by an offender, it must set aside the conviction for the offence in question and must order a new trial or enter a judgment of acquittal.
172 In Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627, Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ said:
The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had. In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case. In the present case, the admissible evidence given at the trial satisfies this test. Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused (630). (emphasis added)
See also the decisions and observations in Anderson v The Queen (1991) 53 A Crim R 421, 453 (Gleeson CJ, Finlay J & Slattery AJ agreeing); Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 [22] - [23] (Gaudron & Hayne JJ), [82] - [83] (Kirby J), [134] - [135] (Callinan J); R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [49], [51] (Gummow, Hayne, Heydon & Crennan JJ).
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173 In my opinion, this court should enter a judgment of acquittal on
count 2. This necessarily follows from my conclusion that, on count 2 as formulated in the indictment and on the State's case as run at the trial, the only decision reasonably open is that the appellant's evidence before the Commission was not relevantly false or misleading as alleged.
174 I have read the proposed reasons for decision of Martin CJ. His
Honour is of the view that the appellant's evidence during his examination before the Commission was ambiguous, and that the ambiguity was not addressed at the trial by the State or the appellant, or by the trial judge. See [46] above. Martin CJ has concluded that, notwithstanding this ambiguity, there was evidence capable of satisfying a properly instructed jury beyond reasonable doubt that the appellant knew facts which rendered his testimony false or misleading in each of the meanings which, in his Honour's view, the testimony was capable of conveying. See [49] above.
175 In my opinion, and on the assumption that Martin CJ's analysis is
correct, it would not be just to order a new trial. I am of that opinion for
the following reasons.176 First, the State could not succeed at a new trial unless it fought the
new trial on a materially different basis from that left by the State to the jury at the original trial. Martin CJ's analysis of the appellant's evidence before the Commission and his evidence at the trial, and his Honour's view as to the manner in which the alleged ambiguity in the appellant's evidence before the Commission might have been addressed at the trial, was not part of the State's case in relation to count 2 as left to the jury. See [124] - [128] above. At the hearing before this court, counsel for the State (who was also the prosecutor at the trial) acknowledged, with commendable frankness, that the alleged ambiguity was not canvassed at the trial (appeal ts 41).
177 Secondly, the State determined before the original trial how it would
formulate the counts in the indictment (including what particulars, if any, it would provide) and it determined how its case against the appellant would be left to the jury. There was no onus on the appellant to raise or resolve (or assist in raising or resolving) at the trial any ambiguity which may have existed in his evidence before the Commission.
178 Thirdly, the trial judge gave detailed directions to the jury in relation
to the elements of the counts in the indictment. His Honour's summing up faithfully reflected the manner in which the State's case had been left to
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the jury by the prosecutor and the appellant's defence had been put by his
trial counsel.179 Fourthly, if this court were to order a new trial it would, in substance,
give the State an opportunity to rectify and supplement its original
defective case.
In the present case, the factors I have enumerated outweigh any public interest in ordering a new trial.
Ground 1: the critical issue was not raised by the appellant at the trial
181 The issue which the appellant has made out in the context of
ground 1 was not raised on his behalf at the trial. The appellant's primary defence on count 1 was, as I have mentioned, that the transcripts of the intercepted telephone conversations did not establish beyond reasonable doubt that the appellant had given Mr Burke an assurance that he would appoint Mrs Morgan. His defence on count 2 was, as I have mentioned, that when he gave evidence before the Commission he had forgotten the details of the relevant conversations with Mr Burke.
182 The Australian criminal justice system involves a contest between
the State or the Crown and the accused. In general, the accused is bound by the conduct of his or her counsel. The accused's counsel has a broad discretion in the conduct of the defence. As Gleeson CJ (McInerney J agreeing) noted in R v Birks (1990) 19 NSWLR 677:
Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case (683).
See also TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [8]
(Gleeson CJ); Taufahema [168] (Kirby J).183 An apparently rational decision made by the accused's counsel in the
course of the trial will not result in an unfair trial or a miscarriage of justice merely because it may appear then or later on appeal that the decision was not carefully considered, was unwise, or produced consequences which operated to the disadvantage of the accused. See Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115 [21]
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(Gaudron, Kirby & Callinan JJ); TKWJ [16] - [17] (Gleeson CJ), [95]
(McHugh J), [107] (Hayne J, Gummow J agreeing).184 An appellate court does not examine whether a decision taken by the
accused's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage. Rather, the appellate court is concerned only with whether counsel's decision is capable of explanation on that basis. That is, could there be any reasonable explanation for the decision? The test is objective in character. See TKWJ [17] (Gleeson CJ), [27] (Gaudron J, Gummow J agreeing), [95] (McHugh J), [107] (Hayne J, Gummow J agreeing).
185 In my opinion, the proper objective inference to be made from the
proceedings at the trial is that the appellant's trial counsel overlooked the issue now raised on his behalf before this court. I am not persuaded that counsel decided intentionally, for forensic or tactical reasons, not to raise the point. The evidence adduced from the appellant in evidence-in-chief that any appointment to the board of the South West Development Commission by him, in his capacity as the responsible Minister, required the prior approval of Cabinet, is inconsistent with a decision not to rely on the point. Also, the defence actually run on count 2 would not, on any reasonable view, have been enhanced by abandoning the point. Further, it is inconceivable that a point which, on analysis, has obvious merit would not have been raised by the appellant's very experienced criminal defence lawyer at the trial if he had thought of it.
186 In my opinion, there is no reason in principle or in fairness to the
State why the appellant should not be permitted to raise in this court the issue he has made out in the context of ground 1. Compare the observations in Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161 [12] - [14] (Gleeson CJ), [52], [57] (Gaudron, Gummow & Callinan JJ), [122] (Kirby J), [155] - [156] (Hayne J) and Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 [6] (Gleeson CJ), [126] (Gummow & Heydon JJ), [194] - [199] (Hayne J) in relation to appeals to the High Court under s 73 of the Constitution and special leave to appeal on grounds raised for the first time in the High Court.
Ground 1: an additional point raised on behalf of the appellant
187 I note, for completeness, that the written and oral submissions of
counsel for the appellant asserted, in the context of ground 1, that the verdict of guilty on count 2 was unreasonable and cannot be supported, or is unsafe and unsatisfactory, by reason of alleged inconsistency between that verdict and the verdict of acquittal on count 1. The applicable
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principles governing an allegation of inconsistency between verdicts are set out in Riley v The State of Western Australia [2007] WASCA 22 [20] (Buss JA, Wheeler & McLure JJA agreeing). It is unnecessary, in view of the decision I have already made in relation to ground 1, to consider this aspect of the submissions made on behalf of the appellant.
Ground 2
Ground 2 has been established, in essence, for the reasons I have given in the course of deciding that ground 1 has been made out.
Grounds 3 and 4
It is unnecessary, in view of my conclusions in relation to grounds 1 and 2, to deal with grounds 3 and 4.
Result of the appeal
190 I would grant an extension of time to appeal, leave to appeal on each
of the grounds, allow the appeal, and set aside the conviction. Pursuant to s 30(5) of the Criminal Appeals Act, a judgment of acquittal should be entered in respect of count 2.
MAZZA J: I agree with Buss JA.