Police v Reed - [2011] NTMC 7

CITATION: Police v Reed [2011] NTMC 007
PARTIES: POLICE

v
NOUVELLE DENISE REED

TITLE OF COURT:   Court of Summary Jurisdiction
JURISDICTION:   Criminal
FILE NO(s):   21028724
DELIVERED ON:   22.6.11
DELIVERED AT:   Darwin
HEARING DATE(s):   7, 8, 28 & 29 March 2011 & 18, 19 & 20 May 2011
JUDGMENT OF:   Daynor Trigg SM
CATCHWORDS:

Criminal Code Act – section 81
Words & phrases – “remuneration”
No case to answer – Zanetti v Hill (1962) 108 CLR 433@442
- Attorney General’s Reference (No 1 of 1983) [1983] 2VR 410
REPRESENTATION:
Counsel:
Prosecution:   Ms Armitage
Defendant:   Mr P Elliott
Solicitors:
Prosecution:   DPP
Defendant:   Nil
Judgment category classification:    B
Judgment ID number:   [2011] NTMC 007
Number of paragraphs:                    54

IN THE COURT OF SUMMARY JURISDICTION
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. 21028724
[2011] NTMC 007

BETWEEN:
POLICE

Complainant
AND:
NOUVELLE DENISE REED

Defendant

REASONS FOR DECISION
(Delivered 22 June 2011)
Daynor Trigg SM:

On 6 September 2010 the defendant was charged on information with the following offences:
On the 5^th March 2009
At Darwin in the Northern Territory of Australia
1.       by a deception obtained property, namely $100, of another, namely the Northern Territory of Australia.
Contrary to section 227(1)(a) of the Criminal Code.
AND FURTHER
On the 5^th March 2009
At Darwin in the Northern Territory of Australia
2.       being a person employed in the public service furnished a statement, namely, a petty cash reimbursement form dated 5/3/09, knowing it to be false in a material particular.
Section 81 of the Criminal Code.
AND FURTHER
Between the 27^th January 2010 and 5^th March 2010
At Darwin in the Northern Territory of Australia
3.       by a deception obtained property, namely the use of a Darwin City Council car-parking bay:
Contrary to section 227(1)(a) of the Criminal Code.
AND FURTHER
On the 8^th February 2010
At Darwin in the Northern Territory of Australia
4.       being a person employed in the public service furnished a statement, namely, submitted transaction summary form 112647, knowing it to be false in a material particular.
Section 81 of the Criminal Code.
AND FURTHER
Between the 28^th April 2010 and 6^th May 2010
At Darwin in the Northern Territory of Australia
5.       by a deception obtained property, namely a head cap brand name “Aerial” to the value of $16.95, of another, namely the Northern Territory of Australia:
Contrary to section 227(1)(a) of the Criminal Code.
AND FURTHER
On the 6^th May 2010
At Darwin in the Northern Territory of Australia
6.       being a person employed in the public service furnished a statement, namely, submitted transaction summary form 117092, knowing it to be false in a material particular.
Section 81 of the Criminal Code
This matter was allocated for a 2 day hearing before Mr Cavanagh SM commencing on 7 March 2011. It appears that the matter was not listed in court before Mr Cavanagh SM at any time prior to the hearing commencing. Mr Cavanagh SM disqualified himself on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v Reed

Details

AGLC: Police v Reed [2011] NTMC 7
Case: [2011] NTMC 7
Decision Date: 22 JUNE 2011

CaseChat Overview and Summary

The case Police v Reed involved the defendant, a police officer, being charged with various offences related to fraudulent use of public funds and deceit in the procurement of goods and services. The charges included obtaining property by deception, obtaining a benefit for another, and furnishing false statements in relation to remuneration. The court had to determine whether the charges laid under section 81 of the Criminal Code were properly framed and whether there was sufficient evidence to establish a case to answer.

The court found that charges 2, 4, and 6 were not properly laid under section 81 as they failed to specify that the statements furnished touched on remuneration payable or claimed to be payable. Consequently, these charges did not constitute an offence known to the law. The prosecution's reliance on other sections of the Justices Act did not remedy this defect, as the essential elements required by section 81 were not included in the charges.

For the other charges, the court examined whether the prosecution had established a prima facie case. The evidence showed that the defendant had made false statements regarding the nature of various expenditures, including the purchase of a car park for her sister and a cap for personal use, which she misrepresented as necessary for official purposes. The defendant's actions were deemed deliberate and fraudulent, leading to the conclusion that a case to answer was made out for these charges.

In summary, the court dismissed charges 2, 4, and 6 for being improperly laid. However, it found that there was a prima facie case for the remaining charges, allowing the case to proceed to trial.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In reply, Ms Armitage made submissions that commenced with a general submission about the evidence, as follows:Evidence and law relevant to each count5. Section 11 of the Procurement Act provides: (1) The Minister may, from time to time, issue directions with respect to the principles, practices and procedures to be observed in the procurement of supplies by and on behalf of the Territory or its agencies. (2) Subject to this Act, all Accountable Officers and employees shall comply with the procurement directions.6. Section 16 of the Financial Management Act provides:The Accountable Officer of an Agency must issue and maintain an accounting and property manual for use by employees of the Agency.7. Section 38 of the Financial Management Act provides: (1) The Treasurer may, from time to time, issue directions to Accountable Officers concerning the principals, practices and procedures to be observed in the administration of the financial affairs of the Territory and Agencies. (2) The Accountable officer of an Agency…and each employee of an Agency must comply with the Treasurers Direction.8. Section 3 of the Financial Management Act relevantly defines, inter alia, Accountable Officer, Agency and Employee.9. Section 14A of the Police Administration Act provides: (1) The Commissioner may, from time to time, in writing, issue such general orders and instructions as are necessary – (a) to secure the good government and efficient working of the Police Force; (b) … (2) Without limiting subsection (1), general orders may include a code of conduct to be observed by police.10. In accordance with the legislative requirements the Accountable Officer for the Northern Territory Police, Fire and Emergency Services has issued and maintained (as amended from time to time) an Accounting and Property Manual (Exhibit P 32). The Manual sets out the forms, practices and procedures to be followed by employees in the financial administration of the Agency. Definitions are contained in Section 1.7 and include, inter alia, Corporate Credit Card, Employee, Petty Cash, Procurement and Records.11. As an employee of the Agency, the defendant was required to comply with the policy and procedures set out in the Accounting and Property Manual. In particular, she was required to comply with Section 6 – Procurement (which remained in force throughout the period covered by the counts) and Section 16 – Corporate Credit Cards (which was replaced by Section 24 – Corporate Credit Cards in on 10 July 2009, see Exhibit P 8).I digress to note that the submission in relation to section 6 is contentious. ExP32 was a copy of what purported to be the “Accounting and Property Manual” with an instrument of authorisation dated 2 March 2006 (purportedly under the hand of Paul White as “accountable officer, NT Police, Fire and Emergency Services”). Clearly section 6 headed “procurement” formed part of that document. However on 10 July 2009 (therefore prior to charges 3 to 6 arising) there was an updated “Accounting and Property Manual” (ExD1) which had re-numbered sections and the section headed “Procurement” did not make it’s way into this document at all, but appeared in the index as “(under construction)”. Whilst Ms Hallett expressed the view in her evidence that this meant the previous part of the Manual therefore continued, I found her opinion not to be compelling on the evidence thus far. I return to the submissions:12. Further as an employee of the Agency the defendant was required to comply with the Treasurer’s Direction on Corporate Credit Cards, Exhibit P2.13. Further the Defendant was required to comply with the Northern Territory Police Orders on Code of Conduct and Ethics (Exhibit P 22), Responsibilities (Exhibit P 23) and Fraud and Dishonesty Control (Exhibit P1).I digress to note that ExP22 was purportedly promulgated on 14 June 2007 purportedly in accordance with the provisions of section 14A of the Police Administration Act. But there is nothing else on the face of the document as tendered to indicate that it is in fact a valid General Order issued by the Commissioner of Police. In relation to ExP23 this also was promulgated on 14 June 2007 purportedly in accordance with the provisions of section 14A of the Police Administration Act. But there is nothing else on the face of the document as tendered to indicate that it is in fact a valid General Order issued by the Commissioner of Police. In addition, in paragraph 4 of that document is stated “This General Order is implemented by Gazette Notice and replaces General Order R2 Responsibilities”, but no gazettal made it’s way into evidence. Likewise, ExP1 was purportedly promulgated on 11 December 2008 purportedly in accordance with the provisions of section 14A of the Police Administration Act. But there is nothing else on the face of the document as tendered to indicate that it is in fact a valid General Order issued by the Commissioner of Police. Paul White was called to give evidence in the prosecution case. He said that he was the Police Commissioner from 17 December 2001 until 16 October 2009. Accordingly, he was the Police Commissioner at the relevant times that each of these General Orders were allegedly made. He was not shown or asked about any of these three exhibits, when he clearly could have been. Accordingly, in my view, the validity of any of these documents is questionable. I return to the written submission:14. The Defendant was well aware of the policies, guidelines and procedures which governed and directed her actions as an employee and manager in the Police Force. The Defendant’s knowledge is the only available reasonable inference that can be drawn from the following evidence: (i) The Defendant’s application for Superintendent (note for example p 2 Prescribed Responsibilities, p 12 Industry Knowledge, p 1 her length of service, breadth of experience and training) and subsequent promotion to that position – Exhibit P 44. (ii) The evidence of Commander Jeanette Kerr as to the content and successful completion by the Defendant of the Prerequisite Knowledge Test, the Management Development program, and the Leadership Development Program (Syllabus tendered as Exhibit P 48).(iii) The Defendant’s attestation as to her awareness of her responsibilities and duties as an NTG Corporate Credit Card Holder pursuant to: s16 of the Accounting and Property Manual, The NT Procurement Act, the NT Procurement Regulations – Exhibit P 13 and P 14.(iv) The Defendant’s participation in an Executive Leadership Meeting in which Corporate Credit Card Procedures were discussed – Exhibits P15, 16 and 33. (v) The Defendant’s issuing of instructions concerning Procurement of Items for Strategic Planning Command – Exhibit P 18.15. The Defendant has delegations to expend monies in accordance with departmental guidelines only – Exhibit P 5. Her authorisation to expend Police Service monies did not extend beyond this and was limited by the departmental guidelines. I digress to note that ExP5 was a document that purported to be “updated July 2010”. Accordingly, it post dates all of the alleged offending herein. If a similar document was in existence at the time of the alleged offending, it was not put into evidence. Accordingly, ExP5 may have no evidentiary weight. I return to the submissions:16. Departmental guidelines include: (i) The Instructions and Procedures on Fraud and Dishonest Control (Exhibit P 1) which defines Fraud for the purposes of the Agency (at 4.), outlines the Responsibilities of Managers (at 13.) and provides directions on policy guidance (at 20.)But I digress to note as I did earlier that the evidence to support ExP1 as a valid and effective document is lacking. I return to the submissions: (ii) The Code of Conduct (Exhibit P 22) and in particular paragraphs 13, 33-36, and 58-59.But I digress to note as I did earlier that the evidence to support ExP22 as a valid and effective document is lacking. I return to the submissions:(iii) Responsibilities (Exhibit P 23) in particular 27.2 and 27.7But I digress to note as I did earlier that the evidence to support ExP23 as a valid and effective document is lacking. I return to the submissions:(iv) The Accounting and Property Manual – Exhibit P 32.But what parts remained in force for the period relating to charges 3 to 6, as opposed to perhaps being replaced by ExD1was not adequately covered in the evidence. I return to the submissions: (v) The Treasurer’s Directions – Exhibit P 2 17. The Defendant specifically acknowledged (Exhibit P 13 and P 14):That I may not use my NTG Corporate Credit Card for:·Personal, non-work related purchases;·Purchase of fuels and oils other than exceptional circumstances;·Gaining personal benefits.19.The Defendant specifically acknowledged (Exhibit P 12):That the Card will only be used by me for business purposes, and not for private or personal purposes under any circumstances.General Evidence as to Car Parks19. The evidence establishes that Commissioned officers and Executive officers and above are entitled to work allocated vehicles and a designated, allocated, work paid for car park for a car park for their allocated vehicle.20. Employees below these ranks are generally not entitled to a dedicated, work paid for car park. Two exceptions have been identified, namely, Commissioner approved car parks for the Commissioner’s Executive / Personal Assistant who is a level 5 and for Glenda Ramage when she was employed as the Co-ordinator for the Police Commissioner’s Conference in 2009. No other exceptions have been identified in evidence. I digress to note that although no other existing exceptions were established, neither were any expressly excluded. Whilst the evidence established that none of the senior police witnesses called would have purchased a car park for an AO3 or AO4, none were able to identify anything in writing that expressly said it could not be done. But it would be virtually impossible (and probably pointless) to try to spell out everything that could not be done.21. Employees of any rank are permitted to park in Police Service provided car parks on a first come – first served basis, including at the Mitchell Centre where a swipe card is used to access the area of general parking. These are not car parks provided for dedicated individual use but shared and may or may not be available at any given time depending on the level of usage.22. The evidence establishes that Administrative Officers at levels 1-4 are not entitled to dedicated work paid for car parks as park of their employment.23. The only reasonable inference established by the evidence is that the Defendant knew that her expenditure delegations did not extend to spending Police Service money on car parks. Furthermore, her expenditure delegation did not permit her to expend government monies on non-work related expenses. I digress to note that this submission may, in my view, go too far. The prosecution appears to be taking some of the wording relating to CCC, and then transposing this over to the general delegations. Assuming that ExP5 was in force on the dates of the alleged offending (and this is not clear) then all it says is that a Superintendent of police has a “limit of $15,000 in any one instance” and has a petty cash “limit of $100 in any one instance”. On the face of the document it is not related to CCC purchases. Accordingly, there is no reason to import any CCC obligations or restrictions into ExP5 (except where the CCC was actually used).In relation to CCC the acknowledgement that is signed is that the card holder “may not use my NTG CCC for personal, non-work related purchases”. Therefore in my view, the words “personal, non-work related” need to be read together. There is not the word “or” between them. However, the prosecution in this submission has taken the words “non-work related” and separated them from “personal” and sought to change “purchases” to “expenses”. This may, in my view, change the intent and meaning of the matter.In relation to charge 1, the prosecution case was that the defendant purchased a car park for a police employee who was transferred to work in the NAB building, against her wishes; and who was working with the SPC; and that working on the PCC was part of her work. There was no evidence to suggest that SK ever used the car park outside of her normal working hours, or on days when she was not at work. Yet the prosecution still allege that the car park was “non-work related”. I do not understand this submission. It may not have been an appropriate purchase, but on it’s face it was “work-related”.The other problem, in my view, with what the prosecution are attempting to do in relation to charge 1 is using the CCC wording for a petty cash re-imbursement. There is no basis that has been laid in the evidence before me for this to occur. The $100 relating to charge 1 was not paid for on CCC. Accordingly, the CCC requirements and obligations are irrelevant when considering that charge. I return to the submissions:Employees who were not entitled to work paid for dedicated car parks were required necessarily, to arrange their own parking and bare any expense (if any) associated with that parking. Their day to day travel and parking arrangements were not work related but a personal for those employees. That inference as to her knowledge is established by the following evidence:· When the Defendant starting working at Strategic Command Services in the NAB Building her allocated parking space was in the Mitchell Centre. She did not purchase a more convenient car park for herself on police monies.· The Defendant knew her own NAB car park was only allocated after approval at an ELG – Exhibit P 17.· Although the Defendant discussed parking difficulties with the then Superintendent Bert Hofer, who was entitled to a car park, she did not purchase him a car park in the China Town complex. Superintendent Hofer’s car park was approved “up the line”.· The Defendant did not approve Glenda Ramage’s car park but was present during discussions when it was approved by Commissioner. · The first car park purchased by the Defendant for her sister was on her personal credit card, and purchased whilst she was on leave.But I digress to note that it was the evidence of Ramage that despite being on leave the defendant was coming in “effectively every day”. I return to the submissions:· The Defendant admitted in her record of interview (Exhibit P 42) that she purchased the first car park for her sister out of goodwill (at p 3.6).· The second car park purchased by the Defendant for her sister was on her personal credit card and provided to her sister at home in a gift bag (T 123.4).· The Defendant’s sister’s circumstances did not change between the second purchase in October 2009 and the renewal of that purchase in January 2010.24. The Prosecution relies on lies in the Defendant’s record of interview (Exhibit P 42) as evidence of her consciousness of guilt. Put directly, the Defendant knew she did not have authority to expend monies outside her delegated authority as circumscribed by departmental guidelines, she knew she did not have authority to expend monies on car parks in the way she did and so she lied about what she had done.26. The following lies as to how and why car parks were purchased, who they were for, and who authorised the purchase are identified:· At p 3.2 – It was for myself and my sister At p. 8.6 – That was for me and my sisterAt p 3.10 – I was using it as well for PCCContrary to the evidence of Ms Kliendienst that she was the only person using the car park (T 121.4) and the evidence of Commander Kerr and Exhibits P 17 and P 28.· At p. 3.4 – Because I didn’t have a car park at the timeAt p 4.3 – No I didn’t have a car park in the basement At p 8.7 – I didn’t have a car parkContrary to the evidence of Commander Kerr and Exhibits P 17 and P 28· At p 4.5 – the defendant falsely asserted that the car park was used by a range of people – Glenda Ramage, myself, Delcene Jones, Alex KnowlerContrary to the evidence of Ms Glenda Ramage that she had her own allocated car park approved by the Commissioner.· At p 4.7 – the Defendant falsely asserted that the car park paid for by her personal credit card was for Glenda and myself for the PCC and we’ve actually spoken to the Commissioner and asked for approval.Contrary to the Former Commissioner White’s evidence that he only approved one car park for Ms Glenda Ramage (T 79.10).· At p 5.7 – We’ve had approval from the CommissionerContrary to the evidence of the former Commissioner who said he never approved a car park for Ms Selina Kliendienst or any general car park for the PCC (T 77.8, 79.9). He only approved a car park for Ms Glenda Ramage.· At p 6.3 – the Defendant lied when she said that she didn’t register a private vehicle to the car parkContrary to the evidence in Exhibit P 34.· At p 6.6 – the Defendant lied when she said that she hadn’t paid for a car park on her Corporate Credit Card on 27 January 2010.Contrary to the evidence and inferences available from the evidence in Exhibits P 36, P37, P10 and the evidence of Superintendent Delcene Jones (T 86.4)· At p 8.5 – the Defendant lied when she asserted I didn’t realise I had purchased it on my own credit cardWhich is contrary to the evidence and inferences available from the evidence of Ms Kliendienst as to the gift bag at home; Exhibit P 35; and the Defendant’s asserted recollection of conversation with Ms Helen Whittington at p 9.1 of the record of interview.· At p 9.1 – the Defendant lied when she asserted the car park was for my sister’s car and my car.Contrary to Ms Kliendienst’s evidence it was a gift to her and to Exhibits P 17 and P 28.· At p 9.6 – Because Glenda Ramage moved into itContrary to the evidence of Ms Glenda Ramage who said she never moved from the car park allocated to her by the Commissioner.· At p 9.7 and p 10.3 – the Defendant lied when she denied renewing the car parkContrary to the evidence and inferences available on the evidence of Exhibits P 36, P 37, P 10 and Superintendent Delcene Jones (T 86.4).· At p 11 – the Defendant lied when she said the car park was for Superintendent Jones.Contrary to the evidence of Ms Kliendienst (T 128.6), Superintendent Jones and Exhibits P 25 and P 27.· At p 12.5 – the Defendant lied when she asserted that Commander Kerr had endorsed the use of transactions on a credit card that the card holder knew nothing about.Contrary to the evidence of Commander Kerr.Count 126. The Prosecution is required to establish that the Defendant (3) By a deception, (4) Obtained property of the Northern Territory of Australia.27. The evidence establishes directly and by reasonable inference both elements.· In January 2009 Ms Nikki Taylor-Faint was employed as the Executive Support Officer in Strategic Planning Command. She was not entitled to a dedicated work paid for car park. Ms Selina Kliendienst filled in for Ms Taylor-Faint whilst Ms Taylor-Faint was on leave between 10 – 27 February 2009. Ms Selina Kliendienst was not entitled to a dedicated work paid for car park.· Ms Kliendienst was not part of the Police Commissioner’s Conference Committee, she was filling in for Ms Taylor-Faint’s whilst Ms Taylor Faint’ was on leave (Taylor-Faint, Kliendienst, White, initial evidence of Ramage)· The car park was purchased for Ms Kliendienst and not for the Police Commissioners Conference – Exhibit P 34· It was paid for on the Defendant’s private credit card and not her Corporate Credit Card· It was paid for whilst the Defendant was on leave· The Defendant lied about the circumstances surrounding the purchase of this car park in her record of interview because she knew she was not authorised to expend police monies on her sister who was not entitled to a car park as part of her employment.· Commander Dowd did not and would not have approved a car park for Ms Kliendienst (T 70.5)· The then Police Commissioner did not approve a car park for Ms Kliendienst (T 79.10)· By stating on a petty cash form that the car park was for the Police Commissioner Conference the Defendant deliberately deceived employees of the Police Service as to the true nature of the expenditure and as a result of that deception obtained $100 from Ms Taylor-Faint.On it’s face, Mr Elliott submits that ExP9 is not “false”. It may not tell the full story. It may be the case that if the defendant had sought approval for the car park it would not have been granted, but that is a different story. The prosecution allege that the deception was because it was in fact “personal” and not “work-related”. In my view, the main aspect that might render it personal was the relationship between the defendant and SK. If in ExP9 the defendant had said “PCC: car parking for my sister in Chinatown” then it may be the case that the petty cash re-imbursement would not have been approved. But does the absence of further information make it “by a deception”? In ExP9 the defendant doesn’t specify who the car park was for, or whether it was for one person or a number of persons.Could the words that appear on ExP9 be an “intentional deception by word”? If SK had no involvement with the SPC or the PCC then clearly (as the car park was used by SK) the words would then be clearly false and intentionally so. But that is not the prosecution case. However, whilst it does not appear to be the prosecution case, the defendant’s responses in her EROI, do not appear to assist her. The defendant in her EROI makes no reference to SK having any involvement with the PCC at the relevant time, and conceded that she provided the car park to SK “basically out of good will” (stating that SK probably used it for 80% of the time).Accordingly, I find that there is a prima facie case in relation to charge 1.Count 330. The Prosecution is required to establish that the Defendant (1) By a deception, (2) Obtained a benefit for another.I digress to note that charge 3 identifies the “benefit” as “the use of a DCC car-parking bay”, and it is in the particulars handed up at the start of the case that the “use” of the bay was alleged to be “for her sister”.31. The evidence establishes directly and reasonable inference each element.· The car park was originally purchased on the Defendant’s personal credit as a gift for her sister who was not entitled to a dedicated work paid for car park – Exhibit P 35, P 19, evidence of Ms Kliendienst (T 123.4).· The renewal was sent to the Defendant – Exhibit P 36· The renewal was paid for on the Defendant’s Corporate Credit Card and returns or statements as to that expenditure were submitted by the Defendant – Exhibits P 10 and P 47.· The renewal was paid for when the car park was still being used by the Defendant’s sister and the Defendant told her sister that she could continue to use the car park. Ms Kleindienst continued to use the car park until she stopped working in the NAB Building – Ms Kliendienst (T 127.2, 128.6-.10).In my view, the evidence of SK is not quite as clear cut as the prosecution assert. Between T126 and 132 SK said the following:SK started paying for her own parking “and then I went back to parking where I was before”“I thought it was okay to go back to that car park in a conversation that I had, I was speaking to my sister and I thought it was okay to go back there and park…….I can’t remember the precise words, but I thought she said that it was okay to go back and park there.Q---And when you had that conversation, I think you told us that you’ve acted on it and you did move back to that park?---That’s correct.”SK did not receive another sticker for her windscreen.Q---That sticker expired on 31 December 2009?---That’s correct.Q---Is it a public car park?---Half and half.Q---When you parked in there after the ticket had expired, you were saying you were there for some months and never got a ticket?---That’s correct.Q---Even though you had an expired permit?---Yeah, yes.Q---Now, can I suggest to you that in fact your sister was parking in that car park during that period?---I don’t know.Q---Some of the time anyway?---Well, one – one assumes so, I don’t know, I don’t know.Q---I mean the car park 197?---She may have been.Q---You can’t – is it fair to say, you gained the impression somehow or other from your sister that you could use that car park some times?---Yeah, that’s correct, yes.Q---You don’t know what she said that gave you that impression?---No, I mean with me, like I said, I could have misheard for all I know. But yeah, I – I thought that. She knew that I was unhappy there and that I was leaving. And we were having a fight. I mean, I – I just – I truly can’t remember what was said. And yeah, I could have taken it the wrong way and parked there, I don’t – I don’t know.”Accordingly, the evidence may not support the submission that “the Defendant told her sister that she could continue to use the car park”. At best this is only a possibility. I return to the submissions:· Ms Kliendienst retained the expired permit and no new permit was issued.· The renewal was paid for when Superintendent Jones was on leave (Exhibits P 10, P 26).· An access card was not purchased for Ms Jones until 8 March 2010. It was purchased on the Defendant’s Corporate Credit Card – Exhibit P 37. The access card was then provided to Superintendent Jones (T 86.5).· When Exhibit P 10 was completed, the Defendant falsely asserted:-that the $550 expense was incurred for an official purpose when in fact it was the extension of a gift car park to her sister who was not entitled to a work paid for allocated car park-falsely asserted that the parking was for a Superintendent’s vehicle when it was if fact being used by her sisters private vehicle.· The Defendant lied about the circumstances of this purchase in her record of interview.· The false assertions in Exhibit P 10 deceived the employees of the Police Service and resulted in the Defendant obtaining a benefit for another at the expense of the Northern Territory Government.· The Northern Territory Government acceded to the payment to another because of the deception.In relation to this charge the “deception” is said to be by using the words “supt vehicle”, when in fact it was for SK’s private vehicle.On the prosecution case, Superintendent Jones commenced work with the SPC on 8.12.09 (T84) after a period of sick leave (she was on sick leave from 14.7.09 until 7.12.09 according to ExP26). As a Superintendent, Jones was entitled to a work paid for designated car park. The defendant went on leave from 14.12.09 until 15.1.10 (ExP24). Whilst the defendant was on leave Jones used the defendant’s car park (T85).Jones had further sick leave between 31.12.09 and 17.1.10 (ExP26) and commenced parking around the streets (T86) as she had no car park despite her clear entitlement to one. On 25.1.10 Jones went on sick leave again until 1.2.10 (ExP26). On 27.1.10 $550 was paid to DCC on defendant’s CCC for a car park until 30.6.10.5.3.10 was SK’s last day of working at NAB Building before going on “stress” leave. Presumably this is why charge 3 only relates to conduct between 27.1.10 and 5.3.10.At T86 Jones suggested that it was about 19 March 2010 (but it could have been earlier in March) that she was allocated parking bay #197, and given a plastic card with the parking bay number on it.On 23.4.10 Murphy commenced working as an Acting Commander in the SPC (T91). He also would have been entitled to a work paid for allocated car park. He said (T91) that he came into work one day and found a card from DCC for bay #197 on his desk. He said he was told that it had been left for him by Jones who had now left the SPC.Accordingly, on the prosecution evidence parking bay #197 was used by Jones and/or Murphy (who were both clearly entitled to a work paid for allocated car park) from sometime in March 2010 through until the end of June 2010. Who was using it before then and how did this come about? On this the prosecution evidence is very non-specific, as clearly SK was not an impressive witness.Further, whilst the $550 for bay #197 was clearly paid for on the defendant’s CCC on 27.1.10, it is also the case that this was done over the phone. Accordingly, whether it was done by the defendant herself or someone else within the SPC is a live issue.If there was no Superintendent working at the SPC around the time the car park was purchased (27.1.10), or due to start shortly, who did not have an allocated car park, then the prosecution would be on very solid ground that no such car park could have been purchased for a Superintendent’s vehicle. But that is not the prosecution case. Jones was a Superintendent and was working with the SPC (when she was not off on sick leave) from 8.12.09 (T84) until well after this offence is said to have been committed. It is also clear from the prosecution case that Jones did not have an allocated car park at all times (despite being entitled to one).One problem with this analysis is that it is not an explanation provided by the defendant herself in her EROI. I consider that there is some evidence that if accepted, may go to each element of this charge.I would find a case to answer in relation to charge 3.Count 534. The Prosecution is required to establish that the Defendant (1) By a deception, (2) Obtained a benefit for herself.35. The evidence established directly and by reasonable inference each element.· The charge is laid as between 28 April and 6 May. Nothing turns on the automatically generated dated on 29/4/10 in page 2 of Exhibit P 11. In her record of interview the Defendant admits paying for the cap on her Corporate Credit Card and by Exhibit P 47 admits furnishing the returns.· The Defendant has delegations to expend monies in accordance with departmental guidelines only – Exhibit P 5. Her authorisation to expend Police Service monies did not extend beyond this and was limited by those guidelines.· The Sections 6.2 and 6.3 of Procurement Guidelines (Exhibit P 32) limit the circumstances in which a Corporate Credit Card can be used. They card is not to be used for items that are available from Stock Stores except in cases of urgency.· Hats are not essential to undertake training – Sgt Craig Garland, Commander Colleen Gwynne.But Garland in his evidence said that hats were an OH&S issue. He also said that the police issue “Akubra” style hat was inappropriate as the ear protection could not be worn.· There was no requirement that the Defendant arrive precisely at 9 am, she was not going to qualify in any event – Sgt Craig Garland.But the evidence did not establish that the defendant would, or ought to, have known this.· Other items necessary for the Defendant’s training were collected from Stores. Caps were available at Stores. Stores was en route to the shooting range. – Exhibits s P 29, P 30 and Superintendent Jamie O’Brien (42 available).· In completing P 11 the Defendant falsely asserted that:-the expense was incurred for an official purpose whereas in fact it was for an item of personal clothing.This appears to be the most important aspect of the prosecution allegation. Clearly the cap purchased was not police issue. No evidence was led as to what the actual uniform requirements for the defendant were. There was evidence that the rank of Superintendent was a “uniformed” position. Whilst I would be surprised if the defendant were able to wear any sort of cap at work, there was no direct evidence of this. It is not a matter that Judicial notice could be taken of, in my view.But the biggest difficulty for the prosecution is that on the evidence the cap was purchased for a work-related purpose, namely to provide some protection while she undertook firearm’s training as part of her work. She did not buy it to go fishing. Yes, it was a cap that she might be able to wear also to go fishing (but it was not an attractive cap), but this could also be said about the caps apparently available from stores. There was no evidence to suggest that if she had obtained a cap from stores that there was anything to prevent her from wearing it other than as part of a full uniform, and whilst performing work. I return to the submissions:-That the item purchased was fuel when in fact it was a capAnd it is this, in my view, that has led to the charge. The prosecution are asserting in effect that the defendant knew she shouldn’t have bought the hat so she has tried to conceal it as “fuel”. In this regard, the highest the prosecution case goes, in my view, is to raise a suspicion that this was the case.· At the time of the purchase, the Defendant was issued with a work allocated car and fuel card for BP Petrol stations. The Defendant’s Fuel Card records (Exhibit P 46) establish that the Defendant’s allocated vehicle was regularly filled at BO service stations using the Fuel Card. For the period 12 January – 2 June 2010 all fuel purchases on the fuel card were in excess of $70.· The appropriate documentation in support of the expenditure was not attached to Exhibit P 11. No tax invoice or receipt was attached so the true nature of the expenditure was not disclosed as required by departmental guidelines – Exhibit P 8 at 25.45.4(b)· From previous returns it is evident that the Defendant was aware of the requirement to attach receipts which would disclose the nature of the expenditure – see for example Exhibit P 10.· The Defendant has signed acknowledgements that the Corporate Credit Cards may not be used for the purchase of fuels other than in exceptional circumstances – Exhibit P 13 and P 14.· When asked about the purchase in her Record of Interview the Defendant admitted the true nature of the purchase · The only reasonable inference to be drawn from the established circumstances is that the deception to represent the purchase as fuel and not a cap was deliberate.· The false assertions in Exhibit P 11 deceived the employees of the Police Service and resulted in the Defendant obtaining a benefit for herself at the expense of the Northern Territory Government.· The Northern Territory Government acceded to the payment to another because of the deception.The defendant was supposedly running late for firearm training. Whilst it appears Garland would not have been too troubled by this, there is no evidence to suggest that the defendant would have been aware of this. Clearly, some form of head protection was a very good idea. If she went to stores to get a cap she may have been even later than she was.In reality, it is not the purchasing of the cap that is in issue, or the wearing of it at firearm’s training. It is the fact that she paid for it on her CCC and then later purportedly described it as “fuel” on the subsequent documentation.There is the added difficulty for the prosecution (as pointed out by Mr Elliott) that the claim relates to a different date to the receipt that was attached to it, albeit for the identical amount.But I consider, despite these problems, that there is a prima facie case in relation to this charge.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

When the wording in section 81 is compared to the way charges 2. 4 and 6 have been laid I agree with Mr Elliott that an obvious problem is apparent. Firstly, the prosecution have at all times made it clear that they do not seek to rely upon the words “or touching any other matter required by law to be certified for the purpose of any payment of money or delivery of goods to be made to any person”, in order to make out the charges herein. Secondly, on the remaining words it is an essential element of a charge under section 81 that the prosecution prove that any “return or statement” must be “touching any remuneration payable or claimed to be payable to himself or to any other person”. However, those words (or nothing similar) appear anywhere in charges 2, 4 or 6. Hence, the prosecution have laid these three charges in a form which would not support a finding of guilt under section 81 in any event. I therefore agree with the submission of Mr Elliott that charges 2, 4 and 6 (as read at the commencement of the hearing) are not known to the law. Ms Armitage made her submissions in reply on 20 May 2011, and handed up written submissions (as requested by me). In those submissions she addressed this point as follows:Information Counts 2, 4 and 6 – no offence known to law1. Information counts 2, 4 and 6 clearly identify the offence which is charged by reference to the relevant section of the Criminal Code and by alleging the following elements, namely:That Nouvelle Reed was a person employed in the public service, She furnished a statement, andKnew it to be false in a material particular.2. Although each charge did not include the words:In such capacity as to require him or her to furnish statements touching any remuneration payable to be claimed by herself This description as to the nature or quality of the person employed was included in the particulars provided to the Defence during the opening address.3. Section 81 of the Criminal Code included a number of alternatives as to how an offence can be committed. There is a requirement for the prosecution to prove either that the statements touch on remuneration payable or claimed to be payable to herself or to any other person. It is clear from the particulars and opening provided that counts 4 and 6 related to remuneration payable to another person, namely:(i) In respect of count 4: that the payment was to Darwin City Council, and(ii) In respect of Count 6: that the payment was to BP Petrol Station, Smith Street, Darwin4. The prosecution relies on sections 181, 182 and 183 of the Justices Act. Each count on the Information provided a reasonably clear and intelligible statement of the offence. Further clarification of each count was provided by particulars and in the opening address. Counsel for the Defendant did not seek any further particulars or clarification as to any of the offences charged. If there is any identified defect in either the substance or the form of any of the counts this did not result in any prejudice being suffered by the Defendant.