R v Balan

[2006] QCA 463

SUPREME COURT OF QUEENSLAND

CITATION:

R v Balan [2006] QCA 463

PARTIES:

R
v
BALAN, Dumitru
(appellant)

FILE NO/S:

CA No 109 of 2006
DC No 915 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

10 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

25 September 2006

JUDGES:

Holmes JA, Jones and Atkinson JJ
Separate reasons for judgment of each member of the Court,
each concurring as to the order made

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – appeal against one count of perjury – where appellant convicted of knowingly giving false testimony at a Crime and Misconduct Commission hearing – where appellant argues that he misunderstood the questions being asked of him at the hearing – where no evidence of this given by appellant at trial – whether verdict unreasonable

Crime and Misconduct Act2001 (Qld)

COUNSEL:

The appellant appeared on his own behalf
B W Farr for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

1. HOLMES JA:  The appellant appeals against his conviction of one count of perjury, the particulars of which were that he “knowingly gave false testimony to the effect that he had never employed a Gold Coast City Council employee” at a hearing under the Crime and Misconduct Act2001 (Qld). He appeared for himself. Essentially his submission was that he should not have been convicted because he had misunderstood the questions asked of him at the hearing; but he did not give evidence at his trial, so no such explanation was before the jury.

1. The purpose of the Crime and Misconduct Commission hearing was identified at its outset: it was to investigate allegations of official misconduct, those allegations being that certain named employees of the Gold Coast City Council had corruptly received benefits from the appellant, who was contracted to undertake work for the Gold Coast City Council.  The appellant, who was represented at the hearing by a solicitor, was asked a number of questions about his landscaping business and his associations with Gold Coast City Council employees.  Ninety-nine per cent of his work, he acknowledged came from the Council.  He was asked whether he had ever given any Council employee a benefit.  He said that sometimes he had had lunch with employees - fish and chips or something costing around the $5.00 mark - and occasionally he had paid for them, or had his lunch paid for.  There was a series of questions about whether he had done any work for Council employees.  He said that he had on one occasion, but had been paid for it.  On other occasions he had refused requests.  He was asked if he had ever paid any money to a Gold Coast City Council employee and denied doing so.

1. Well into the questioning, the appellant was urged if he had any difficulty understanding a question to say so, and he said that he would.  He was then asked and answered questions in these terms:

“Did you ever employ a Council employee? -- Can you be more specific?  Did I employ any – any Council employee?  What – when and what – what time like?

I’m asking you have you ever? -- No, sir.

Well, why did you ask me what time? -- No, because I’ve – I’ve been questioned before and they been – ask if the Council employees did any work in the Council time, which it – it’s totally untrue.

No, no. Well, let’s say weekend work. A Council employee. You might employ – well, have you employed anyone casually?  For example, they do some work for you and you pay them cash?  -- No, sir.  I – I didn’t employ.  I had – I have been asked if I have any work by a lot of you know Council workers ‘cause they want to - like  they wanted to do some – some weekend work and I said no. ‘Cause I – to be honest I didn’t think they good workers.  I needed someone who –when you work private you work – you work private and you work harder so, you know, by employing them I think I will make a mistake because they – they would – they would think that I’m a little bit hard.

So the reason was that you didn’t think they were up to scratch? -- No, I – I just didn’t think, you know, they would handle me telling them what to do, you know, and the way like, you know the way we work, so not up to scratch.  ‘Cause I think there is - there’s people there that may not work. They have ‘cause they’re the Council, but when they go private they would probably do the work.  I’m not saying that I’m good and they’re not or - I’m saying that I don’t think they would be able to handle me telling them what to do.

So you’ve never employed a Council employee? -- No, I try not to, yeah.

Yes, you try not to, but in fact you have not ever employed a Council employee? -- Not that I remember, sir.  I was – you know, I been asked and I – I – I did say, I remember very well saying that I – I’m right, I’ve got – I’ve got people working for me.”

1. The appellant was then questioned about named individuals, three of whom had allocated most of his Council work, and whether they had ever asked him for work. He denied that they had done so.  He went on in respect of one individual, who had allocated him almost a half million dollars worth of contracts, to say that often that person supervised the job he was undertaking for the Council, but he did not do work for the appellant.

1. A fortnight later, the appellant returned to the Commission to give further evidence and admitted that he had employed Gold Coast City Council employees on a casual basis, including the three individuals who had allocated the most work to him and about whom he had been specifically asked.  When he was asked why he had not answered correctly on the first occasion, he said that he had not been trying to hide anything; he had wanted to tell the Commission what he knew, but under the right circumstances.  He thought the initial occasion was not the right time.  Appearing for himself here, the appellant explained what he had meant by that, that he was waiting until he really understood the questions.  That happened after the hearing, when he asked his solicitor what the questions “were going to”; and the latter explained that the Commission was asking whether he had ever employed anybody or paid them any money.  Then he appreciated what was involved and knew to answer in the affirmative.

1. The appellant’s notice of appeal contains four grounds:

“1. The verdict was contrary to and against the weight of the evidence and as such is wrong in law;

2.  That the Learned Trial Judge erred in not allowing the jury to consider the evidence given later by the Appellant at the criminal justice commission where he explains his previous false answer;

3.  That the Learned Trial Judge erred in allowing the jury to consider whether or not the evidence was ‘material” to a relevant issue;

4.  That the evidence given by the Appellant was not material to a relevant issue.”

1. The appellant did not argue the second, third and fourth grounds and has lost nothing in not doing so.  As to the second ground, the jury had before it the entirety of the transcript of his evidence to the Commission and could make what they would of his “explanation”.  As to ground 3, it is a moot point whether materiality is a question for judge or jury; but in this case the appellant had, if anything, an advantage in that both judge and jury considered the issue. The trial judge entertained a submission of no case to answer on the basis that the appellant’s evidence to the Commission was not material, ruling that it was capable of meeting that requirement.  His ruling indicates that no different result would have eventuated had he regarded materiality as a question of law for him.  The issue was then considered anew by the jury, which, despite counsel’s address to the contrary, from its verdict plainly viewed the evidence as material.  And, indeed, given the nature of the inquiry as outlined at the commencement of the Commission proceedings, it is, in my view, beyond argument that the evidence was material to the issue: that is, whether the employees of the Council corruptly received benefits from the appellant.  It was not necessary that corruption actually be made out in order to render the questions and answers relevant.

1. Instead, the appellant’s submissions were directed in effect to contending that the verdict was unreasonable.  Unfortunately, his argument was limited to an attempt to make good the lack of any defence evidence at trial by his account to this Court of having been confused by the questions.  There is no occasion now to receive that evidence, which could have been given at the trial.  In any event, it is not a very compelling explanation.  When one looks at the transcript of what the appellant was asked and answered, it shows no signs of confusion.  I would dismiss the appeal.

1. JONES J:  I agree with the order proposed by her Honour.

1. ATKINSON J:  I agree with the order proposed by Holmes JA and with her reasons.