R v Maxwell - [2011] SADC 168

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MAXWELL
Criminal Trial by Judge Alone
[2011] SADC 168
Reasons for the Verdicts of His Honour Judge Clayton
2 November 2011
CRIMINAL LAW - PARTICULAR OFFENCES - MISCELLANEOUS OFFENCES AND MATTERS - BRIBERY AND CORRUPTION
Accused jointly charged with Mr Georges with six counts of Bribing and Corrupting a Public Officer contrary to s 249(1) of the Criminal Law Consolidation Act 1935.
The accused provided Mr Georges with the registration numbers of six motor vehicles which were subject to defect notices and cash. Mr Georges gave the cash to Mr Winning, a Public Officer, who made false entries in the Transport Regulation User Management Processing System to have each of the defect notices cleared.
VERDICT: Accused counselled or procured offence by Mr Georges. Guilty of each count.
Criminal Law Consolidation Act 1935 s 237, s 249, s 256, s 267 , referred to.
Lenzi v Miller [1965] SASR 1; Thomas v Hansberry [1958] SASR 127; R v Froggett [1966] 1 QB 152; R v Taylor (1875) LR 2 CCR 147; Re A-G’s Reference No 1 of 1975 [1975] QB 773, considered.

R v MAXWELL
[2011] SADC 168

Jarrod Michael Maxwell is charged with six counts of Bribing and Corrupting a Public Officer contrary to s 249(1) of the Criminal Law Consolidation Act 1935. He elected for trial by judge alone.
In the case of the first count the Particulars of the Offence are:
Jarred Michael Maxwell and Tony Georges between the 27th day of June 2009 and the 29th day of July 2009 at places unknown in the said state, improperly gave or offered to give a benefit to a public officer as a reward for the exercise of power that the public officer had by virtue of his office, namely clearing a defect notice relating to a Holden Commodore motor vehicle registered number (SA) WKX-927.
In the case of counts 2 to 6 inclusive the particulars of the motor vehicle and the dates of the alleged offending are different, but otherwise the Particulars of Offence are the same.
The accused has been jointly charged with Tony Georges. The Crown case is that there was a joint enterprise between Mr Maxwell and Mr Georges to give a benefit to a public officer.[1]
[1] T24 to 25.
The case concerns the removal of defect notices issued in relation to motor vehicles which police officers had assessed as being unroadworthy. Defect notices are recorded electronically and while in force they place restrictions on the use of a vehicle.
Service SA is the South Australian government agency which deals with the registration of motor vehicles. Once a defect has been repaired the owner can have the vehicle inspected and obtain a clearance certificate. Upon presentation of a clearance certificate Service SA can clear the defect notice by making an appropriate entry in the computer system.
Between 2 June 2009 and 27 July 2009 Mr Stuart Paul Winning was a customer service officer employed by Service SA at Marion. Mr Winning is alleged to be the public officer to whom the charges relate. By reason of his employment Mr Winning had access to the Transport Regulation User Management Processing System ("TRUMPS") by using his personal identification (CBSPW) together with a unique password.
The Crown case is that Mr Winning cleared defect notices relating to the six vehicles which are referred to in the Particulars of Offence by entering into TRUMPS false details of inspections. It is alleged that the accused and Mr Georges gave cash to Mr Winning who in return made the entries in TRUMPS.
The parties have been able to agree many facts, but the defence argues that the prosecution has failed to prove fundamental elements of the alleged offences. The accused gave evidence that he believed that money which he provided to Mr Georges was given by Mr Georges to a relative who was a mechanic and as such was able to remove the defect notices.
Section 249(1) of the Criminal Law Consolidation Act provides:
(1) A person who improperly gives, offers or agrees to give a benefit to a public officer or former public officer or to a third person as a reward or inducement for-
(a) an act done or to be done, or an omission made or to be made, by the public officer or former public officer in his or her official capacity; or
(b) the exercise of power or influence that the public officer or former public officer has or had, or purports or purported to have, by virtue of his or her office, is guilty of an offence.
...
"Public officer" has several definitions in s 237. One definition includes any employee of the Crown or any employee of a State instrumentality. Another in s 237 clause (i) defines "public officer" as "a person who personally performs work for the Crown, a State instrumentality or a local government body as a contractor or as an employee of a contractor or otherwise directly or indirectly on behalf of a contractor".
In the alternative to s 249 the prosecution relied upon s 256 of the Criminal Law Consolidation Act.
Following the discovery of irregularities Mr Winning was arrested and his mobile telephone was seized. In the mobile phone of Mr Winning police officers found Mr Georges’ telephone number. Police officers then seized Mr Georges’ telephone in which they found Mr Maxwell's phone number and Mr Maxwell's phone was seized. The Crown case involves an analysis of text messages which were extracted from the telephones. Text messages passing between Mr Willing and Mr Georges and Mr Georges and Mr Maxwell are set out in Exhibit P2. I will refer to some of those messages later.
An audit of the archived records of Service SA has established that there are no source documents which could have provided a basis for Mr Winning clearing the relevant defect notices. It is agreed that the inspection details which were entered into TRUMPS to clear the relevant defect notices were false.[2]
[2] Agreed Facts paras 11, 19, 27, 35, 43 and 51.
Joint Enterprise
There is evidence that Mr Georges communicated with Mr Winning but there is no evidence of any contact between the accused and Mr Winning. The Crown case is that there was a joint enterprise between the accused and Mr Georges and that it was through Mr Georges that Mr Georges and the accused gave a benefit to Mr Winning, who was a public officer.
In the case of each count the text messages set out in Exhibit P2 include communications between the accused and Mr Georges which preceded communications between Mr Georges and Mr Winning. The text messages establish that the accused and Mr Georges had a common purpose in seeking to have the relevant defect notices removed. The messages also establish that there was a payment of cash in return for the removal of the defect notices. Mr Georges knew that the cash was to be paid to Mr Winning because he made the payments. Whether the accused knew that the money was to be given or offered to a public officer is a matter which I consider below.
Normally, with cases of joint enterprise, the accused will be present at or in the vicinity of the scene of the crime, either playing part in carrying out the common purpose, or being ready to do so if required. In this case the contact between Mr Georges and Mr Winning took place after the accused had sent an SMS message to Mr Georges and in each case the contact between Mr Georges and Mr Winning did not involve the accused.
The Crown case is that the accused and Mr Georges made arrangements pursuant to which Mr Georges approached Mr Winning. The role of the accused in the alleged offending was really that of an accessory before the fact. Section 267 of the Criminal Law Consolidation Act provides:
A person who aids, abets, counsels or procures the commission of an offence is liable to be prosecuted and punished as a principal offender.
The evidence establishes that in each case the accused provided to Mr Georges the registration numbers of vehicles and cash which Mr Georges passed on to Mr Winning. I find that the evidence establishes that the accused thereby procured Mr Georges to give or offer to give a benefit, namely cash, to Mr Winning in return for the removal of defect notices. Mr Georges was the principal offender. If the accused is to be found liable it must be pursuant to s 267. It is necessary to consider whether the actions of Mr Georges constituted the offences which are charged and if so did the accused aid, abet, counsel or procure those offences.
Aiding and abetting relates to accessories who are present at the time when the offence is committed. Lunn [6332.10] referring to Lenzi v Miller [1965] SASR 1 at 10-11; Thomas v Hansberry [1958] SASR 127; R v Froggett [1966] 1 QB 152. The accused was not present at a time when Mr Georges committed any offence.
The words "counsels or procures" refer to accessories who were not present when the offence was committed. Such persons were formerly known as accessories before the fact. Lunn, [6332.15] referring to Lenzi v Miller at 10-11, states that to be an accessory before the fact the defendant must do something in the nature of advising and procuring or assisting. R v Taylor (1875) LR 2 CCR 147. "Procuring" means to produce by endeavour and by taking appropriate steps to produce its happening"; Re A-G’s Reference No 1 of 1975 [1975] QB 773.
For an offender to be liable pursuant to s 267 the defendant must know of the essential matters which constitute the offence.[3]
[3] Lunn [6332.20].
Exercise of Power by a Public Officer
The evidence establishes that the accused knew that Mr Georges was giving the registration numbers of vehicles which had been defected and the cash to another person. Whether the accused knew the identity of the other person or that the other person was a public officer and that the giving of the money was improper are matters to be considered.
It is agreed that from 2 June 2009 until 27 July 2009 Mr Winning was employed as a customer service officer at the Marion Branch of Service SA. His TRUMPS user identification was CBSPW.
Ms Crease is employed as the Manager, Customer Service Centre by the Department of Transport Energy and Infrastructure under the umbrella of Service SA. She gave evidence that customer service officers use TRUMPS in their daily duties for lifting defect notices. In order to access TRUMPS an employee needs to enter his personal user logon as well as a unique password. The user logon of Mr Winning was CBSPW. The letters CB stand for Cashier Balance and the letters SPW are Mr Winning’s initials.
I find that Mr Winning was a public officer within the meaning of s 249 of the Criminal Law Consolidation Act.
In order to get a defect cleared on TRUMPS a customer service officer must enter the registration number of the vehicle, the inspection details and whether the result was a pass. The details include the inspection results, certificate number, the date of the inspection, time of inspection and the inspectors ID.[4]
[4] T34.
Ordinarily the client presents the inspection certificate to the cashier who takes a photocopy. At the end of each day the photocopies of the inspection certificates are collected and stored at a place called Recall.
It is not possible to access TRUMPS without using the user identification and unique password. There were protocols and policies which meant that TRUMPS could not be accessed using someone else's user ID and private password. Employees are not permitted to give their user identification or unique password to anybody else.[5]
[5] T29.
Exhibits P9 to P14 inclusive are copies of the records of Service SA relating to each of the relevant vehicles. Exhibit P9 relates to the vehicle referred to in count 1 which is registered number WKX 927. Page 8 of that exhibit is a printout of the electronic records relating to that vehicle. The records evidence the removal of the defect notice relating to that vehicle. An entry described as "Roadworthy Inspection (Clear Defect Inspection) by Road Transport Assessment and Safety at Wednesday, June 10 1530:00CST 2009 was made at the Marion branch (17) by operator 16, CBSPW, who was Mr Winning. No other significant information was required for the defect to be removed.
Exhibits P10 to P14 contain similar evidence of the removal of defect notices in respect of each of the other five vehicles. The records show that all of the notices were removed at Marion by CBSPW, Mr Winning.
I find that there was an exercise of power by a public officer. The offences charged is giving or offering a benefit to a public officer as a reward for the exercise of the power.
Did the accused give or offer a benefit to a Public Officer?
In each case cash was given by Mr Georges to Mr Winning.
In the case of count one a message from the accused to Mr Georges advised "Hey bud he is just sending me the details and I’ll have the cash later".[6]
[6] Exhibit P2.
In the case of Count 2:
·       A message from the accused to Mr Georges on 10 July 2009 enquired "How much we lookin at".
·       A message sent from the accused to Mr Georges on 12 July advised "He should have the cash tomorrow so tell him to do it Tuesday or somethin".
·       On the following day Mr Winning advised Mr Georges "All done mate".
·       A message sent about 20 minutes later from the accused to Mr Georges advised "Cheers bud I'm not gonna tell him till I get the cash he should have it tonight".
·       About six hours later the accused sent a message to Mr Georges "I'll have it first thing in the morning. If you can swing past work then. Cheers bud".
In the case of count three none of the messages identify the payment but they do evidence the same modus operandi. The first text on 20 July enquired "Hey Bud you good for a defect tonight". A payment to have the defects cleared can be inferred.
In the case of counts four, five and six:
·       The accused sent a message to Mr Georges on 23 July 2009 "How much he want for each".
·       Mr Georges responded a few minutes later "600 for one and the other two 1000".
·       About two hours later Mr Georges sent a message to the accused "Hey man can you collect that mon".
·       The accused replied to Mr Georges a few minutes later "I should have most tonight but need to wait for Sean to bring me part of it. I will have all of it by tomorrow night there all good guys".
·       About 20 minutes later Mr Georges sent a message to the accused "OK mate I'll pick up what you can".
·       A few minutes later the accused sent a message to Mr Georges "Yea bud otherwise I'll have it all bout lunchtime tomorrow and you could get it all then".
·       Georges responded "Ok mate just let me know".
·       At about midday on the following day Georges enquired "Hey mate have you got that cash".
·       The accused responded "I have got to grab the last bit at lunch if you come here about 3 I’ll have it all. Cheers bud".
·       About half an hour later Mr Georges sent a message to the accused "Ok bro no worries".
·       About three hours later the accused sent a message to Mr Georges "I have enough here to cover it but someone is giving me trouble for cash so come down anytime from now on".
The messages establish a pattern whereby the accused collected cash from the vehicle owners and passed it on to Mr Georges who in turn gave it to the person who removed the defect notices. I have found that it was Mr Winning who removed the defect notices. It can be inferred that Mr Winning was given the cash by Mr Georges.
I find that the accused counselled or procured Mr Georges to give the cash to another person to have the defect notices cleared.
Mr Georges dealt with Mr Winning and Mr Georges knew whom the money was given to. However did the accused know that the money was being given or offered to a public officer?
The prosecutor argued that it can be inferred from the text messages that Mr Georges and the accused would have known that a benefit was to be given or offered to a public officer. For example a SMS message from the accused to Mr Georges dated 10 July 2009 relating to count 2 enquired "Hey Bud your mate still good for defects?". The prosecutor argued that it can be inferred from that message that the accused knew that the person referred to as "your mate" was a public officer because that person had the ability to clear defects.
Mr Georges knew that Mr Winning was a public officer by reason of his employment. The evidence does not establish that the accused had the same knowledge. However even if the accused was unaware of Mr Winning or of his employment, the accused did know that the person to whom the money was to be paid had the power to clear defect notices. The clearing of defect notices is work performed for the Crown or a state instrumentality such as to make a person who carries out that work a public officer within the meaning of the definition in s 237(i) of the Criminal Law Consolidation Act.
I accept the prosecutor's argument that it can be inferred that the accused knew that the "mate" was a public officer because that person had the ability to clear defects, that being work for the Crown or a state instrumentality.
I find that the evidence gives rise to an inference the accused knew that the person to whom the money was given was authorised to clear defects. It can be inferred that he knew that the person to whom the money was given was a public officer. In my opinion there is no other inference that can reasonably be drawn as to the belief of the accused.
I find that the evidence relied upon by the Crown establishes that the accused knew that a benefit was given or offered to a public officer.
The Evidence of the Accused
I have analysed the evidence of the accused carefully and compared his oral evidence with the objective evidence, such as text messages. I find that the accused is not a witness of truth and I am unable to accept his evidence. However, even on his own evidence the accused knew that the money was being offered to a person who fell within the definition of a public officer in s 237(i).
The accused gave evidence and was subjected to cross examination. I give him credit for that fact and I treat his evidence the same way as I treat the evidence of other witnesses.
In respect of count 1 the accused admitted that he sent the first message shown in Exhibit P2, a message from his phone to Mr Georges, on 28 June 2009. The text of that message was "Hey bud he is just sending me the details and I’ll have the cash later". The accused also admitted that he sent to Mr Georges the second message in Exhibit P2 which advised of the registered number of the vehicle involved in count one. When the accused was asked how those messages came about he said:
I believe there was a phone call asking him about it, asking if it was possible first and he would have said "Just send the details to me" in regards to the car. The vehicle registration number I don't know, I believe that would have come from someone who I was working with who would have known Tony. He was quite a well-known person around the southern area.[7]
[7] T94.
Accordingly, as to count one, there is evidence that the accused provided the registered number of the defected motor vehicle and evidence that the accused gave Mr Georges cash to have the defect notice removed.
The accused said he did not know who the registered owner of the vehicle was and that to his knowledge he never met him. He said that the person who informed him of the registration number was Shaun Wilson, an apprentice who worked with him.
The accused was asked how it was that he came to send the two messages and have other conversations with Mr Georges if it was Mr Wilson who had given him the registration number. He replied "Because Shaun would have known Tony (Mr Georges) and I believe Tony said - would have said to him, while they were out, to contact him through me because Shaun wasn't a close friend of Tony, he didn't know him all that well".[8] The accused said "I believe Shaun approached me about a friend's car saying that he had seen Tony and Tony said to contact him through me". Although he could not recall the phone call from Shaun Wilson the accused believed that he had spoken with Mr Georges before the message was sent. He acknowledged that the purpose of sending the registration number to Mr Georges was to obtain a defect clearance.[9]
[8] T94.
[9] T95 l5.

The accused gave evidence that Mr Georges spoke to him about payment but said "I don't believe that was mentioned until after he had the details of the car".[10] The accused said that he was not to receive any money himself and the cash which he received from Shaun Wilson was passed to Mr Georges.
[10] T95.
The accused said that he had no idea what happened to the money after he gave it to Mr Georges. The accused was asked what he thought the money was for and he replied:
At the time, I believe it was defect clearance, part-payment for repairs, for money to go down for repairs; parts, repairs and clearance on defect on vehicle.[11]
[11] T95 l25.
I do not accept the evidence that the accused did not know what the money was for or that he thought that part of the money was for repairs or parts. The possibility that repairs would be carried out is inconsistent with the scheme contemplated by the text messages and would have been impossible during the timeframe within which the transactions were completed.
The accused was asked whether he enquired of Mr Georges how the defect clearance was going to be done and he replied "No, I assumed that it was a family member in motor trade".[12]
[12] T95 l32.
The accused said that he did not think that the arrangement could result in a person in Service SA clearing the defect. He said "I believe an authorised person being a mechanic for a workshop or something similar could also clear a defect like that".[13] He had read about that happening in the eastern states. Also one of his friends worked for a company which sold trailers and that company could access the government registration computer system. In 2009, when the accused had to deal with minor defects in his own vehicle he was able to have them cleared by attending at a police station.[14]
[13] T96.
[14] T97.
The accused said that when Mr Georges said he could clear defects his belief was that it would be done "through the family member and I believed that the legislation might be passed around for an authorised person to clear the defect".[15] It is significant that the accused believed that the defect could be cleared by "an authorised person" and that such authority stemmed from legislation.
[15] T97 to 98.
The belief which the accused claimed in examination-in-chief to have had was summarised in the following passage of evidence:
QDo you know that he (Winning) was allegedly clearing defects for Tony Georges.
AOnly now through the proceedings.
QIn relation to all six of these registration numbers that you passed on, what was your belief, at the time, as to what Tony Georges was going to do.
AI believed he was passing the money on to a family member who was an authorised agent who could clear the defect.
QDid you think that that person was employed by the government.
ANo.
QDid you have any thoughts as to where they might be working.
AI believe they were a mechanic who was authorised.[16]
[16] T102.
If the clearing of the defect notice was to be carried out by an authorised agent or a mechanic who was authorised, such agent or mechanic would be a "public officer" within the meaning of para (i) of s 237 of the Criminal Law Consolidation Act. Even if the accused was not aware of the correct classification of the person to whom the money was paid, the accused did know that the person "was an authorised agent who could clear the defect". I find that on his own evidence such knowledge establishes that the accused knew that the payments were being given or offered to a public officer to clear defects.
Was the benefit given improperly?
The question then arises as to whether the accused knew that the benefit was given or offered to the public officer improperly.
The accused was asked in cross-examination why did he have to get involved at all, that is involved in passing on cash to Mr Georges’ uncle. He answered "Because Tony had said to certain people to contact him through me". When asked why he replied "I don't know".[17] The cross-examiner asked why was it necessary for him to be a middleman in a lawful transaction with a mechanic lawfully inspecting vehicles. He replied "Because Tony was quite a well-known person in the southern area, everyone knew him on a quite general level. At the time I had known him on a bit of a better level so he asked them to contact him through me".[18]
[17] T116.
[18] T116.
They were not satisfactory answers. If the situation was as the accused claimed there was no reason for him to be involved in the transactions at all. In fact there was no reason for Mr Georges to be involved either. The explanation which the accused gave is unacceptable, particularly given his own unfamiliarity with the vehicle owners and the fact that he had not met and knew nothing about any uncle of Mr Georges. It would have been difficult to accept the explanation of the accused if there was only one transaction, but there were six transactions involving different vehicles.
When the cross-examiner suggested that the accused might have told Mr Georges that he could put the customers straight in touch with Mr Georges’ uncle the accused replied "No, because as I said, they are a tight knit family group who don't say much about what's in the family". That response just does not make sense and does not answer the suggestion that the accused might have directed the vehicle owners to Mr Georges’ uncle. What being a tight-knit family has to do with the matter is not clear. The cross-examination continued:
QBut this is business, isn't it.
AYes.
QYou thought you were facilitating a business transaction.
AAnd I thought that Tony wouldn't want to give out his uncle's number or pass on any details to someone.
QWouldn't want to give out a mechanics phone number who was doing lawful business.
AI didn't think about it at the time.[19]
[19] T116.
QWhy not.
ABecause I had my own beliefs at the time that it was going to his uncle for payment of this, payment to clear the defects and part payment for repairs and that his uncle had access to get the people's information to contact them directly.
QLet's say that's all right for the sake of argument. Why do you have to do it.
ABecause Tony didn't want to give out his number, I assumed. These people knew Tony on a very general level of going out and that I knew him a bit better so other people knew me so he would get them to contact him through me.
QWhy did you assume Tony George didn't want his uncle to make it public that he had a lawful business clearing defects.
AI don't know.
QThink about it now, take your time.
AI can see now, but at the time being a close-knit family group I thought that they wouldn't want to say. If Tony was doing it as a favour to people-
QIt's not a favour, it’s for cash.
AI don't know. That was my beliefs at the time.
QYou did know-
AYes, I knew it was for cash.
QI’ll have the cash later.
AYes.
QWhy did you have to handle any cash.
AI believed Tony didn't want his number and people knowing him any better.
QBased upon what.
AJust my opinions and my knowledge of the family group.
QSo this is another assumption. You assumed because they were a close-knit group that his uncle wouldn't want any more business.
ANo, that I assumed that his uncle would have got business through Tony.
QWhy through Tony.[20]
[20] T117.
AI don't know. When Tony mentioned it I assumed that it was through him.
QYou assumed a mechanic conducting a lawful business would only get business through his nephew.
ADepending on how much work he was doing or what he was doing then, yes.
QIn a phone call made through discussions in a pub.
AYes.
QThe details you passed on through Tony Georges, did they include any details about a vehicle apart from the engine number for the Ford.
AJust registration numbers.
QSo you thought that by passing a registration number to Tony Georges’ uncle via Tony Georges that he could do a mechanical inspection.
AYes with a registration number that he could pull the details up of the vehicle and that he could contact the owner and organise anything from there.
QRight, so you were assuming that the uncle would then contact the owner having got the details and then they would sort out the mechanical inspection.
AYes.
QWhy would you assume that if you also assumed that the owner or Tony Georges’ uncle didn't want anything to do with the owner.
AI didn't know that Tony's uncle didn't want anything to do with the owner. I said Tony didn't want contact with other people and he was putting them on to me. Tony's uncle I never had contact with, I didn't know about. I assumed it was his uncle.
QAnd assumed that his uncle would cut out the middleman and go straight to the owner of the vehicle.
AYes.
QWhat was the purpose of you and Tony being involved if that's what was going to happen in the end.
ABecause Tony's uncle, he was-from what I learnt later he wasn't doing very much work himself so then if Tony was drumming the work up and then he was contacting people as it was happening.[21]
[21] T118.
QDid you think that work could take place overnight.
AI believed that the contact could have been made. Because I knew none of the owners of the vehicle I don't know if contact was made or how it occurred.
QI'm just thinking, for example, in relation to count 3, 5.27 you send a text "Hey bud, you good for a defect tonight?
AYes.
QSo you were expecting between the hours of 5.27 and midnight Tony Georges’ uncle would get in touch with the owner of the vehicle, do the vehicle inspection, perhaps repair it, then upload the details onto the computer and get the defect cleared. All that done in one night.
ANo, not necessarily.
QWell, how could it have been lawful then.
ABecause he was contacting people on the day and then was arranging it from there. Once he said it was done I didn't know what was done, I didn't know if the defect was clear, if he meant he had made contact with the owner.
QWhat exactly was the service his uncle was providing then if he wasn’t fixing these vehicles overnight.
AI assumed that he was contacting the owners, organising the vehicles to come there so he could inspect it and doing some repairs with the money. That's why I thought the money was varying as per the vehicle.[22]
[22] T119.
That evidence demonstrates the unlikelihood of the situation suggested by the accused.
It was nonsense to suggest that the vehicle owners could not contact “the uncle” direct because that is what the vehicle owners would have had to do to arrange repairs, if that was what was to happen. I find that was not what was to happen.
In relation to count 3 the originating text message at 17:27:01 enquired "Hey Bud, you good for defect tonight?"[23] The prosecutor suggested that the text could be interpreted to mean that the removal of the defect notice would have been achieved that night. If so that was not consistent with Mr Georges making contact with his uncle, the uncle locating the vehicle and the owner, inspecting the vehicle, identifying the actual defects, obtaining any parts that may have been required, carrying out whatever work was required to repair the defect and then taking whatever steps were necessary for the defect notice to be lifted, all overnight. Within about one minute of the enquiry Mr Georges replied to the accused "Yeah can get it done tomorrow x".
[23] T119.
The only information which the accused ever provided to Mr Georges with respect to all six vehicles, and therefore the only information that Mr Georges could pass on to the person who was to lift the defect notice, was the registration number of the vehicle.
The accused was the person who collected the money from the clients. Why should the accused on six separate occasions have accepted the responsibility to collect cash from persons at best he was barely familiar with, on behalf of a mechanic whom he had never met.
If the scenario suggested by the accused was correct why at 16:24 on 23 January 2009 in connection with counts four, five and six did the accused send to Mr Georges a text message enquiring "How much he wants for each?" The suggestion that a mechanic might estimate how much it would cost to make a vehicle roadworthy with no more information than the registration number and perhaps a short description of the nature of the problem, if he was able to glean that from the computer system, illustrates the impossibility of the situation postulated by the accused.[24]
[24] T121.
In the text which Mr Georges sent to the accused in reply at 16:27:18 that day Mr Georges advised that the cost of having the defect notices cleared would be $600 for one vehicle and $1,000 each for the other two vehicles. At that time the vehicles had not been inspected. In fact there is no evidence that any of the vehicles were ever inspected. The accused said that he thought that Mr Georges’ uncle had gone into the computer system, seen what the defects were, estimated parts and material and had come back with the estimate.[25] If that belief of the accused was correct the uncle must have done all those things in respect of three separate vehicles in less than three minutes.
[25] T121 l28.
The accused is a mechanic. He must have known that the fees quoted did not involve a legitimate estimate of the cost of repairs. First, there was insufficient time for any proper estimate to be made. Secondly, the description of the defects on the computer system was brief. It could not have provided any basis for estimating the cost of repairs.
At 16:41:12 Mr Winning sent a message to Mr Georges advising "All done bro". The accused had advised Mr Georges of the first two registration numbers at 16:14:39 and of the third registration number at 16:20:50. That was the earliest Mr Winning was advised of the registration numbers. Mr Winning had taken a little over 20 minutes to remove three defect notices.
Then at 16:42:05 on the same day, that is less than 30 minutes after the accused had passed on the first two registration numbers to Mr Georges, Mr Georges advised the accused "They are all done bro". The accused was therefore aware that it had taken less than 30 minutes to remove defect notices on three separate vehicles. The accused must have known that the work which would have been required to repair the defects on the three vehicles, at a cost of either $600 or $1000 each, could not possibly have been carried out in such a short time.
The objective evidence establishes that the accused must have known that no repair work was ever intended to be carried out on any of the vehicles and that nothing was done other than the removal of the defect notice. The accused was on notice of the irregularity of the transactions.
The objective evidence establishes that when he advised Mr Georges of the registration numbers of vehicles which had been defected the accused knew that Mr Georges was able to have the defects cleared almost instantly for cash. The accused denied that but I do not accept his evidence.[26]
[26] T122.
The irregularity of the transactions is further evidenced by the fact that no details of the actual defects, and no details of the names of vehicle owners were ever provided by the accused or Mr Georges and there was always an expectation that the defect notices would be cleared very quickly, either within the space of 20 or so minutes or at most overnight. The cost of repairing the defects was arrived at without any inspection of the vehicles or even any discussion as to the nature and extent of the defects.
The fact that the accused is a mechanic is not insignificant.
I reject the evidence of the accused in its entirety. It is inconsistent with the objective facts and it defies commonsense.
I accept the submission of the prosecutor that both Mr Georges and Mr Maxwell must have realised that the person removing the defects was a public officer with the power to remove the defects.
I find that the accused knew that the benefit given or offered to the person to clear the defect notices was improper.
Conclusions
I have considered each charge separately and have arrived at the same conclusion in each case.
The evidence establishes beyond reasonable doubt that the accused obtained money from the owners of each of the vehicles which he paid to Mr Georges and that Mr Georges gave the money to Mr Winning to have defects lifted.
The evidence establishes that each of the defects was removed on the computer utilising the user number and unique password of Mr Winning. I find that each of the defects was removed by Mr Winning.
I find that Mr Winning was a public officer and that the removal of each of the defects involved the exercise of the power that Mr Winning had by virtue of his office.
I find that the accused believed that the defects were lifted by a person with authority to do that and the accused knew what the person who was given money to lift the defects was a public officer within the meaning of s 237(i) of the Criminal Law Consolidation Act.
In each case the payment given by Mr Georges to Mr Winning amounted to the improper giving of a benefit to a public officer for the exercise of a power which the public officer had by virtue of his office. I find that the accused counselled or procured that act by giving the registration numbers and the money to Mr Georges.
I find that each of the elements of each offence has been proved beyond reasonable doubt.
In each case there will be a verdict of guilty.