R v Robinson - [2012] QCA 309

SUPREME COURT OF QUEENSLAND

CITATION: R v Robinson [2012] QCA 309

PARTIES:

R v ROBINSON, Robert Raymond Lloyd
(appellant)

FILE NO/S:

CA No 106 of 2011 DC No 806 of 2009
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING
COURT: District Court at Toowoomba
DELIVERED ON: 13 November 2012
DELIVERED AT: Brisbane
HEARING DATE: 13 August 2012
JUDGES: Margaret McMurdo P and Muir JA and North J
Separate reasons for judgment of each member of the Court,
each concurring as to the order made
ORDER: Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL
WHERE NO SUBSTANTIAL MISCARRIAGE OF
JUSTICE – where, at relevant times, appellant was
a Commissioner of the Aboriginal and Torres Strait Islander
Commission (“ATSIC”) – where appellant initially charged
with two counts of contravening s 26(1) of the

Commonwealth Authorities and Companies Act (“the Act”) and convicted after trial – where appellant appealed convictions – where appeal successful – where convictions set aside and new trial ordered – where new indictment
presented charging appellant with two counts of contravening

s 26(2)(a) of the Act – where appellant applied for indictment to be permanently stayed – where application denied – where
appellant applied for certain evidence to be excluded from his
trial – where application denied – where appellant convicted

at trial of two counts of using his position as an officer of the Commonwealth dishonestly with the intention of obtaining an
advantage for himself – where ATSIC provided grants to two
service providers for the purchase of particular motor
vehicles – where the appellant wrote two letters to facilitate
the sale of these vehicles for the purpose of raising funds for
his personal legal expenses – where appellant signed these
letters as the Commissioner of ATSIC – where crown

contended that under the conditions of grant the providers were not entitled to sell the vehicles without the permission

of ATSIC – where crown submitted appellant had knowledge of this condition – where correspondence was exchanged
between the AGS, the appellant, and others with respect to
the disposal of the vehicles – where appellant submitted that
there was no impediment to the sale of the vehicles because
the conditions of grant had been “acquitted” – where
appellant submitted acquittal took place when the vehicles
were purchased and paid for – where appellant gave evidence
at trial that he did not believe the grant conditions applied to
the subject vehicles – where appellant gave evidence that
money paid to his lawyers was money which was lent to him
by one of the providers – where appellant submitted trial
judge erred in not ordering that the new indictment be stayed
as an abuse of process – where appellant submitted trial judge

erred in not excluding from evidence an agreement entered into by the then Minister for Immigration, Multicultural and Indigenous Affairs on behalf of the Commonwealth and the
Chairman of ATSIC – where appellant submits trial judge
erred in ruling at the conclusion of the prosecution case that

there was a case to answer – where appellant submitted verdict unsafe and unsatisfactory – whether trial judged erred in not staying new indictment – whether trial judge erred in not excluding agreement from evidence – whether trial judge erred in ruling there was a case to answer – whether verdict
unsafe and unsatisfactory
Aboriginal and Torres Strait Islanders Commission Act 1989
(Cth), s 7(1A), s 10(2)(f)
Commonwealth Authorities and Companies Act 1997 (Cth),
s 26
Criminal Code 1899 (Qld), s 668E(1)
Public Service Act 1999 (Cth), s 65
Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51,
cited
Island Maritime Ltd v Filipowski (2006) 226 CLR 328;
[2006] HCA 30, considered
Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14,
considered
King v The Queen (1986) 161 CLR 423; [1986] HCA 59,
considered
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
Parker v The Queen (1997) 186 CLR 494; [1997] HCA 15,
considered
Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7,
considered
R v Koolmatrie (1989) 52 SASR 482, cited
R v Robinson [2010] 2 Qd R 446; [2009] QCA 250,
considered
R v Taufahema (2007) 228 CLR 232; [2007] HCA 11,
considered
R v Wilkes (1948) 77 CLR 511; [1948] HCA 22, considered
Williams v Commonwealth of Australia (2012) 86 ALJR 713;
[2012] HCA 23, cited
COUNSEL: P J Callaghan SC, with T D Gardiner, for the appellant
A MacSporran SC, with D Kent, for the respondent
SOLICITORS: Creevey Russell for the appellant
Director of Public Prosecutions (Commonwealth) for the
respondent

MARGARET McMURDO P: The appellant, Robert Raymond Robinson, was convicted in the District Court at Toowoomba on 13 April 2011 of two counts of dishonest use of position under s 26(2)(a) Commonwealth Authorities and
Companies Act 1997 (Cth) (“the Act”). He has appealed against those convictions
on five grounds. The first is that the primary judge erred in not staying the indictment as an abuse of process. The second is not pursued. The third is that the primary judge should have excluded evidence of an agreement between the
Aboriginal and Torres Strait Islander Commission (“ATSIC”) and the
Commonwealth of Australia in June 2003, establishing the Aboriginal and Torres Strait Islander Services (ATSIS) as an executive agency. The fourth is that the judge erred in ruling at the completion of the prosecution evidence that the appellant had a case to answer. The fifth is that the guilty verdicts were unreasonable, that is, that they should be set aside as unreasonable or not supported having regard to the evidence: s 668E(1) Criminal Code 1899 (Qld).
The particularised case
The prosecution particulars in respect of both counts were as follows. On 5 November 2004 (count 1) and 11 November 2004 (count 2) at Charleville the appellant was an officer of a Commonwealth authority, namely, a commissioner of ATSIC. He used this position to write letters on ATSIC letterhead, signing them as
“Commissioner” (count 1) and “Commissioner Queensland South Zone” (count 2).
In respect of count 1, he used his position dishonestly in that in the letter of 5 November:

“(i)

The assertion „ATSIC does not have the „„Bill of Sale” over the vehicles or any other legal encumbrance‟ is dishonest in that the grant conditions, to [the appellant‟s] knowledge, did
amount to a legal encumbrance and it was dishonest of him
to falsely assert the contrary;

(ii)

The assertion that „the advertisements by the Australian Government Solicitor are illegal and total nonsense‟ was dishonest in that, to [the appellant‟s] knowledge, the
advertisements were neither of these things;

(iii)

The assertion that „Please note, the sales of these vehicles are not subject to any grant terms and conditions‟ was, to [the appellant‟s] knowledge dishonest. He was aware that
the vehicles were subject to grant terms and conditions, in
particular, condition 17.4.”

In respect of count 2, he used his position dishonestly in that in the letter of 11 November:

“(i) The assertion in the second paragraph that „there are no legal
encumbrances whatsoever, the vehicles listed are not subject to any grant or conditions of grant and may be deposed of
(sic) in the normal course of business‟ was dishonest in that
[the appellant] was aware that there were legal encumbrances in the form of the grant conditions (in particular 17.4) which did apply;
(ii) The assertion that „the Board of ATSIC gives authority to
Bidjara CDEP and Bidjara Legal Service to dispose of these
vehicles‟ was dishonest. [The appellant] knew that this
statement was untrue.”

In respect of both counts 1 and 2 the prosecution particularised that the appellant
“had the intention of directly or indirectly gaining an advantage for himself by using
some of the proceeds of the sales of the vehicles for his own private legal expenses,
which in fact occurred”.[1]
[1]
Ground 1: the refusal of the stay
I agree with Muir JA that the first ground of appeal is not made out.
The charges relate to events in 2004, almost seven years before the trial the subject of this appeal. The appellant has had three trials. The first two concerned charges
under s 26(1) of the Act. The first trial was aborted. Only after the appellant‟s
2

successful appeal against his convictions on the second trial, when this Court noted
3

that the more appropriate charges may be under s 26(2), did the prosecution bring the present charges under s 26(2). The appellant contends that, as a result, the primary judge should have stayed the indictment.

The history of the prosecution of the appellant is therefore far from satisfactory.
But the fact that the prosecution path is a long way from best practice does not mean
it is an abuse of process warranting a stay. In support of his contention, the
appellant emphasised the relatively minor nature of the charges: see Island
4
Maritime Ltd v Filipowski. It is true that the counts are far from the most serious of
criminal charges. The community, however, has a significant interest in ensuring
that public office holders do not use their positions dishonestly. The nature of the
charges does not favour the granting of a stay. The decisive factor, however, is that
the evidence in all three trials was essentially the same, and the distinction between
the charges brought under s 26(1) and those later brought under s 26(2) did not
create a significantly different prosecution case amounting to an abuse of process:
5
see R v Taufahema.
The combination of the nature of the charges, their age and the course of the prosecution case did not warrant the staying of the indictment. For these reasons, as well as those of Muir JA, ground 1 is not made out.
Ground 3: the admissibility of the agreement establishing ATSIS
I also agree with Muir JA that the third ground of appeal is not made out.
Evidence showed that at the time of the alleged offences the relationship between
the appellant (a director of ATSIC) and its then executive agency, ATSIS, was
dysfunctional. ATSIC had obtained legal advice, which the appellant accepted, that
ATSIS was not lawfully established. On the basis of this advice, ATSIC
commenced proceedings in the High Court of Australia on 2 April 2004 seeking
6
a declaration to this effect.
The appellant contended that, as ATSIS could not be lawfully established without specific legislation, the judge erred in allowing evidence to be given of an agreement between ATSIC and the Commonwealth purportedly establishing ATSIS.
Despite the appellant‟s contrary, strongly held belief, apparently supported by legal
advice, I consider that ATSIS appears to have been validly established by way of
s 7(1A) and s 10(2)(f) ATSIC Act 1989 (Cth) and the interrelation of those
provisions with s 65 Public Service Act 1999 (Cth). The appellant submitted that
his contentions on this ground were supported by the recent High Court decision of
7
Williams v The Commonwealth. I reject that submission. In Williams, the funding
of the National School Chaplaincy Program (“NSCP”) was found to be beyond the Commonwealth‟s executive power under s 61 of the Constitution as there was no
Commonwealth legislative power underpinning the establishment of the NSCP. By contrast, s 7(1A) and s 10(2)(f) of the ATSIC Act under which ATSIS was established, were enacted under the legislative powers of the Commonwealth pursuant to s 51(xxvi) of the Constitution, so that the powers under s 65 Public Service Act could be enlivened.
Evidence of the agreement establishing ATSIS was admissible. It was relevant on each count as part of the chain of facts to establish that ATSIC through its agent ATSIS did not consent to the sale of the relevant vehicles. Although ultimately the appellant did not claim that ATSIC consented to the sales, he did not formally admit this during the prosecution case. In this way the agreement was also capable of relevance to the essential question on each count, namely, whether the appellant was acting dishonestly when he wrote the letters of 5 and 11 November.
For these reasons, as well as those given by Muir JA, the third ground of appeal is not made out.
Grounds 4 and 5: were the jury verdicts unreasonable?
In respect of grounds 4 and 5, I gratefully adopt Muir JA‟s recitation of the relevant
facts and issues. In determining ground 4, the question is whether there is any evidence capable of supporting the guilty verdicts, even if that evidence is tenuous,
inherently weak or vague. If so, the case must be left for the jury‟s consideration:
8
Doney v The Queen. By contrast, in determining ground 5, the question is whether, notwithstanding that as a matter of law there is evidence to sustain the guilty verdicts, an appellate court after reviewing the whole of the evidence finds it
was open to the jury to be satisfied beyond reasonable doubt of the appellant‟s guilt:
9

M v The Queen. In answering that question, in most cases any doubt experienced

10

by an appellate court will be a doubt which a jury ought also to have experienced.
As the question to be answered in ground 5 has a lower threshold for the appellant than that in ground 4, in the circumstances of this case my consideration of ground 4 can be subsumed in my consideration of ground 5.

As the primary judge made crystal clear to the jury in her final directions, at the end
of the trial there were but two disputed issues on each count. The first was whether
the appellant used his position dishonestly when he wrote the letters on 5 November
(count 1) and 11 November (count 2) to car dealer, Mr Stuart Mitchell, who
purchased the vehicles from Bidjara CDEP (count 1) and Bidjara Legal Service
(count 2). The second was whether, at the time the appellant wrote each letter, he
11
intended to directly or indirectly gain a personal advantage.
I will deal firstly with whether it was open to the jury to conclude on the evidence
on count 1 that when the appellant wrote the letter on 5 November, he intended to
directly or indirectly gain a personal advantage. It was common ground that the
appellant initiated the contact between Bidjara CDEP and Mr Mitchell which
culminated in the sale of the Bidjara CDEP vehicles and was actively involved in
negotiating the sale price. It was uncontentious that he used part of the proceeds
12
from the sale of the vehicles to pay his private legal expenses. The appellant and
Ms Miranda Mailman from the Bidjara Legal Service gave evidence that once the
appellant became aware of the controversy as to the authority of Bidjara CDEP and
Bidjara Legal Service to sell the vehicles, he insisted on borrowing the money for
his legal expenses from the Legal Service. He and the Legal Service drew up a loan
13
agreement but this had been misplaced and was not produced. He expected to be
able to repay the loan from a termination payout from ATSIC and from money

14

expected from the appeal costs fund resulting from an earlier aborted trial. It was, however, irrelevant to this aspect of count 1 whether the appellant intended to repay the money. To obtain a loan to pay personal legal expenses is to obtain a personal
advantage. Even on the appellant‟s case, there was, therefore, ample evidence for
the jury to be satisfied that the appellant wrote the letter of 5 November with the
intention of gaining the particularised personal advantage.

I turn next to consider whether, in respect of both counts 1 and 2, it was open to the jury to conclude from the evidence that when the appellant wrote each letter he was acting dishonestly as particularised.
The fact that Bidjara CDEP and Bidjara Legal Service had title to the vehicles and consented to their sale did not mean the appellant was acting honestly when he wrote the letters. Clause 17.4 of the grant under which ATSIC provided the vehicles to Bidjara CDEP and Bidjara Legal Service required grantee organisations
like Bidjara CDEP and Bidjara Legal Service to obtain ATSIC‟s written approval
15
before disposing of the vehicles. Certainly, there was a considerable body of credible evidence from the appellant and others that, for some time prior to 5 November, despite the terms of cl 17.4 it was common practice to sell such vehicles without obtaining ATSIC consent. The appellant and others considered
that the terms and conditions of the ATSIC grant were “acquitted” once the grantee
organisations purchased vehicles and title passed to them. They claimed to have
had legal advice to this effect. This aspect of the appellant‟s evidence as to his
belief was supported by the evidence of a Bidjara CDEP director in October and
November 2004, John Maris, and by the evidence of the appellant‟s counsel in
another matter, Mr Angelo Vasta QC. If the jury could not be persuaded beyond reasonable doubt that the appellant did not honestly hold this belief at the time he wrote each letter, he must be acquitted on that count.
There was, however, contrary evidence. A letter dated 7 November 2003 (almost a year before the alleged offences) from Mr Garry Kiniven (then the CDEP manager) to Ms Kathy Skuse, a field officer employed by ATSIS, requested Ms Skuse to
approve the dispersal of listed vehicles “as per section 17.4 of the General Terms and Conditions relating to grants” on vehicles being traded for new vehicles. Ms Skuse‟s evidence about this matter was a little confusing. The letter of
7 November 2003 suggested the practice was not as the appellant believed. But, in
cross-examination she agreed that once ATSIC grants were “acquitted” the assets
became the property of the grantee organisation which was relieved of any further obligations in respect of the grant terms and conditions, unless the vehicles were required for further top up money for trade-ins. And in re-examination, she stated that cl 17.4 required the grantee organisation to request permission for disposal of assets over $5,000, a practice which continued to apply for future years.
The appellant drew a distinction between the disposal of vehicles being traded-in
(to which the letter of 7 November 2003 related) and those simply sold (to which
counts 1 and 2 related). But Mr Watson, the chief executive officer of ATSIS at the
16
relevant time, and Ms Judith McNamara and Mr Ashok Kumar, both managers in grant administration under ATSIC and later ATSIS, each gave evidence that in November 2004 organisations receiving ATSIC grants had to apply for approval to dispose of assets acquired with ATSIC or ATSIS funds. The process they explained seemed more consistent with the clear terms of cl 17.4 of the grant than the
appellant‟s construction.
In support of the honesty of his belief, the appellant emphasised that the vehicles were given to Bidjara CDEP and Bidjara Legal Service under the grant and they had title. But so much was contemplated by the terms of cl 17.2 of the grant which
commences “Ownership of Grant Assets will vest in you”, that is, in the grantee
organisation.
To establish dishonesty, the prosecution had to prove beyond reasonable doubt that, at the time the appellant wrote each letter, he acted dishonestly by the standards of ordinary honest people and that he knew that what he did was dishonest. It therefore does not matter if his construction of cl 17.4 was inaccurate if it was honestly held. A wrong, pig-headed or irrational belief may be an honest one. The evidence established that at some point prior to 5 November the appellant may well have believed that Bidjara CDEP and Bidjara Legal Service were entitled to sell the relevant vehicles and that cl 17.4 had no application to the sales.

But at 6.00 pm on 28 October 2004 an Australian Federal Police officer handed Mr Maris a letter from Mr Robert Powrie, a senior lawyer with the Australian
Government Solicitor (“AGS”). It stated that Mr Powrie was acting for ATSIC, that
ATSIC had not given consent in terms of the grant for the sale of specified vehicles
(not those relevant to counts 1 and 2) and to “cease any attempts to dispose of these or any other vehicles”.[17] Mr Maris discussed this letter with the appellant who
[17]
telephoned Mr Powrie and told him that Mr Powrie did not act for ATSIC and must cease to threaten Bidjara CDEP. Shortly after 29 October 2004 Mr Maris received another letter, this time by registered post, signed by Mr Barry Cosgrove, a senior lawyer for the AGS. The letter listed vehicles, including some of those concerned in counts 1 and 2, and repeated the assertion that under the grant these vehicles
could not be disposed of without ATSIC‟s consent which had not been given.
Mr Maris discussed this letter, too, with the appellant who contacted others, including the chair of ATSIC, Mr Geoff Clark, and lawyers who, according to
Mr Maris and the appellant, confirmed that ATSIC‟s consent was not required.
Those who were said to have given that advice were not called at trial.
Mr Cosgrove then placed the advertisements referred to in the particulars in the
Charleville Star on the Wednesday after 29 October 2004, and in the Brisbane
Courier-Mail on the Saturday after 29 October, that is, prior to 5 November when
18

the appellant sent the first of the letters. The advertisements were in these terms:

The first listed vehicle related only to count 2 and the remainder to both counts 1 and 2. The appellant knew of these letters and advertisements prior to writing the letters the subject of counts 1 and 2. In the absence of independent evidence from
the lawyers whom he claimed advised that ATSIC‟s consent was not required, his
letter writing was either courageous, foolish, arrogant, desperate or dishonest, or perhaps a combination of two or more of those. The appellant rightly points out that he brought the advertisements to the attention of Mr Mitchell. But the jury were entitled to conclude that he did so dishonestly, making the most of an increasing
difficult situation. I reject the appellant‟s contention that, as different conclusions
were open, the jury must have been left in doubt on this issue. After reviewing the evidence I am satisfied the jury could rightly have found beyond reasonable doubt that when he wrote both letters he was acting dishonestly. They may have considered that he knew that his earlier apprehension of the terms of cl 17.4 may be wrong and that he wrote and sent the letters so as to ensure the vehicle sales were finalised with some of the proceeds to be used for his personal legal expenses. The jury could have reached a contrary conclusion, but they were certainly entitled to conclude his actions in these circumstances were dishonest by the standards of ordinary honest people.
I further note in respect of the dishonesty element in count 2 that the appellant wrote
in the final paragraph of the letter of 11 November: “The Board of ATSIC gives authority to Bidjara CDEP & Bidjara Legal Service to dispose of these vehicles”.
The jury may have considered that this statement was consistent with him knowing
that ATSIC‟s consent to dispose of the vehicles was required before sale. They
were not obliged to accept his evidence purporting to explain the circumstances leading to the insertion of that paragraph, that is, that Mr Mitchell requested the sentence be included and the appellant meant to express it differently. His explanation did not have the ring of truth and was not unequivocally supported by Mr Mitchell who, perhaps conveniently, could not recall details of their dealings concerning this paragraph. The jury were entitled to also consider this subsequent
suspicious conduct in assessing the appellant‟s alleged dishonesty on count 1.
Finally, I turn to consider whether it was open to the jury to find beyond reasonable doubt that the appellant intended to gain a personal advantage when he wrote the letter of 11 November (count 2). As for count 1, it is not contentious that the appellant introduced Mr Mitchell to Bidjara Legal Service and was actively involved in the sale of the vehicles. Part of the proceeds was used to pay his private legal expenses. It was irrelevant that he may have been borrowing their money. The appellant contended the evidence did not establish he gained an advantage in count 2 as the 11 November letter may have been written after Mr Mitchell had paid
the sale price into the trust account of the Bidjara Legal Services‟ solicitor and the appellant‟s legal representatives had been paid. There was no evidence as to
whether the appellant knew when he wrote and sent the letter of 11 November both
that Mr Mitchell had already paid for the vehicles and that the appellant‟s legal fees
had been paid. The question for the jury was not whether the appellant in fact gained a personal advantage by writing the letter but whether he intended so to do.
It was open to the jury to conclude from the appellant‟s conduct, clearly aimed at
accommodating Mr Mitchell, that when the appellant wrote the letter of 11 November he did not know whether Mr Mitchell had paid for the vehicles or
whether the appellant‟s private legal expenses had been met.[19] For these reasons, the jury were entitled to conclude that the appellant‟s intention in writing and
[19]

sending the letter of 11 November (count 2) was to gain the particularised
advantage.

After reviewing the whole of the evidence, I am satisfied the jury were entitled to be satisfied beyond reasonable doubt of the guilt of the appellant on each count. The judge correctly ordered there was a case to answer at the close of the prosecution evidence. It follows that grounds 4 and 5 are not made out. I agree with Muir JA that the appeal should be dismissed.
ORDER: The appeal against conviction be dismissed.

[32] MUIR JA: Introduction The appellant successfully appealed against his convictions after a trial by jury in the District Court of two counts of contravening
s 26(1) of the Commonwealth Authorities and Companies Act 1997 (Cth) (“the
Act”). On 1 September 2009, the Court of Appeal set aside the convictions and
20

ordered a re-trial. There had been a previous trial in which, on 13 March 2008, the
jury was discharged, having been unable to reach verdicts.

On 22 October 2009, the respondent presented a new indictment in the District Court at Toowoomba, charging the appellant with two counts of contravening s 26(2)(a) of the Act. The appellant applied for an order that the indictment be stayed permanently. That application was dismissed by the trial judge on 21 June 2010. The appellant brought another application pursuant to s 590AA of the Criminal Code seeking orders that certain evidence not be admitted in his trial. That application was dismissed on 26 November 2010.
On 13 April 2011, the appellant was convicted of both counts on the new indictment. He appeals against his convictions on the grounds discussed below.
The factual background
Before discussing those grounds, it is desirable to outline briefly some of the facts. At relevant times the appellant was a Commissioner of the Aboriginal and Torres
Strait Islander Commission (“ATSIC”). ATSIC provided grants to “„service providers‟, the Bidjara CDEP Company Ltd („Bidjara CDEP‟) and the Bidjara and Southwest Qld Aboriginal Legal Services Limited („BSWQALS‟), or („the Legal Service‟)”. The grants which are relevant for present purposes were issued to

Bidjara CDEP and the Legal Service for the purchase of particular motor vehicles.
Clause 17.4 of the grant terms and conditions provided:
“You must obtain our written approval:

a. before disposing of or giving security [over] any Grant Asset (other than trading stock of a commercial project) having a current market value over $5,000; and
b. before using the proceeds from such disposal.”

It was not in dispute on the trial or on appeal that each of the motor vehicles in
question was a “Grant Asset” for the purposes of this provision.
It is useful now to quote the recitation of facts contained in the reasons of Keane JA
21
on the first appeal:

“[6]

Each of the two charges against the appellant was based on a letter written by him to facilitate the sale of assets owned by entities associated with the appellant for the improper purpose of raising funds for his own legal expenses. The letters were written on 5 November and 11 November 2004 respectively. The first letter was written on the letterhead of a Commissioner of the now defunct Aboriginal and Torres Strait Islander
Commission („ATSIC‟). Both letters were signed by the

appellant as a Commissioner of ATSIC. It is not in dispute that ATSIC was a Commonwealth authority and that the appellant was an officer of that authority.
[7] The Crown case asserted that the letters falsely stated that

ATSIC‟s General Terms and Conditions Relating to Grants („the Conditions‟) did not apply to certain motor vehicles which
had been acquired by entities associated with the appellant and
which were being sold by those entities („the vendors‟) to the
person to whom each letter was addressed. The second letter

asserted, falsely, that „the Board of ATSIC gives authority … to dispose of these vehicles‟. The Crown contended that, under the
Conditions, the entities associated with the appellant were not
permitted to sell the vehicles without ATSIC‟s permission, and
that the appellant knew that that was the case.
[8] The letter of 5 November 2004 was in the following terms:
„Mr Stuart Mitchell
PO Box 519
Nerang Q
Attention: Stuart

Further to our telephone conversation of this morning concerning the advertisement in the Courier Mail (04.11.04) regarding the vehicles sold to you by the Bidjara CDEP Aboriginal Corporation.

These vehicles as listed below are wholly and solely the property of the Bidjara CDEP Aboriginal Corporation,
ATSIC does not have the “Bill of Sale” over the vehicles
or any other legal encumbrance.

Holden Dual Cab Rodeo (304 FJJ)
Holden Dual Cab Rodeo (362 GHI)
Holden Dual Cab Rodeo (279 HAC)
Holden Rodeo Utility (941 GBJ)
Holden Astra Sedan (360 GHI)
The advertisements by the Australian Government
Solicitor are illegal and total nonsense.
The Bidjara CDEP has instructed their solicitors should these scaremongering attics [sic] continue the necessary legal action will be taken.
Stuart if any person you are dealing with in regards to the above-mentioned vehicles have any concerns I suggest you refer them to this letter or [they] may contact either myself as the Commissioner or the Chairperson of Bidjara CDEP.
Yours faithfully
Ray Robinson Commissioner
Please Note: the sales of these vehicles are not subject to
any Grant Terms and Conditions.‟
[9] It may be noted here that the advertisements by the Australian
Government Solicitor („AGS‟) to which reference was made in this letter asserted that ATSIC‟s consent to the sale of these

motor vehicles was required and that ATSIC did not consent to
the sale.
[10] The letter of 11 November 2004 was in the following terms:
„Mr Stuart Mitchell

Riokate Pty Ltd
PO Box 519
Nerang Q 4211
To Whom It May Concern:

The vehicles listed below plus all vehicles owned and registered in the name of Bidjara CDEP Company Limited and [Bidjara] and South-West Queensland Aboriginal Legal Services Limited are the sole property of the above named companies.

There are no legal encumbrances what so ever, the vehicles listed are not subject to any grant or conditions of grant and may be deposed of [sic] in the normal course of business.

HOLDEN ASTRA 508 FQS HOLDEN COMMODORE 268 HAC HOLDEN ASTRA 360 GHI HOLDEN COMMODORE 955 GBJ HOLDEN RODEO 362 GHI HOLDEN JACKAROO 277 HAC HOLDEN RODEO 297 HAC HOLDEN RODEO 941 GBJ

HOLDEN RODEO 304 FJJ FORD FALCON 599 GYS
The Board of ATSIC gives authority to Bidjara CDEP &
Bidjara Legal Service to dispose of these vehicles.
Yours faithfully,
Ray Robinson
Commissioner
Qld South Zone‟”

On 29 October 2004, the AGS wrote to Mr Maris, a member of a committee formed with a view to taking Bidjara CDEP out of administration, stating that: the AGS acted for ATSIC; that the vehicles listed in the letter, including the subject vehicles, had been purchased using ATSIC grant funds and could not be disposed of without the consent of ATSIC; and that no such consent had been given. The letter
requested the cooperation of Mr Maris‟ company in securing the return of the motor vehicles to Indigenous Employment Projects Pty Ltd (“IEP”), a company controlled
by a Mr Carter, and cooperation with ATSIC to secure the transfer of the vehicles to
IEP so that Community Development Employment Project (“CDEP”) services “can be delivered without interruption”.
In his evidence-in-chief the appellant admitted being shown a copy of the letter by
Mr Maris. He swore that after seeing it he telephoned Mr Powrie, a senior lawyer in
22
the office of the AGS, and said:
“I wish you‟d stop going around sending these letters to the board of
directors. You do not act for ATSIC, you‟ve never acted for ATSIC,
and Australian Government Solicitors do not act for ATSIC.”
Mr Powrie did not deny that words to this effect were spoken by the appellant.
The appellant‟s explanation for his understanding that there was no impediment to
the sale of the vehicles was that the terms and conditions of the grant had been
“acquitted”. Acquittal, he explained, took place when grant monies had been
expended for the purpose for which they had been provided by ATSIC in
23

accordance with the grant terms and conditions. In this case, acquittal took place
when the subject vehicles were initially purchased and paid for.

Mr Mitchell, a motor vehicle dealer, went to Charleville at the request of Bidjara CDEP on 28 October 2004 where, in the presence of the appellant and others, he inspected vehicles the corporation was proposing to sell. He agreed to purchase five
vehicles for $53,500 and was given a letter on the corporation‟s letterhead signed by
two directors stating that the directors gave authority for the sale of the vehicles and
that they were owned by the CDEP “free and unencumbered”. He was also given
a receipt for $53,500 dated 28 October 2004 signed by both directors and a letter signed by them dated 28 October 2004 directing him to pay the $53,500 into the Frank Jongkind and Co Trust Account.

[43] Shortly afterwards, the appellant telephoned Mr Mitchell about the AGS advertisement. After he had obtained a copy, Mr Mitchell telephoned the appellant

who said he was sending him a letter to say “it was a load of codswallop” and that
“they were all free and unencumbered”.

Mr Jongkind‟s trust account receipt recorded the deposit on 2 November 2004 of
$53,500 received from Riokate Pty Ltd: the company through which Mr Mitchell acted. The trust account ledger card for Bidjara Aboriginal Housing and Land Company also recorded a payment of $25,000 to Thynne & Macartney on 10 November 2004 and one on the same date of $20,000 to Mr Vasta QC. The payments were for legal expenses incurred on behalf of the appellant.
The Legal Service subsequently contacted Mr Mitchell with a view to selling five of
its vehicles. Mr Mitchell went back to Charleville on 8 or 9 November to inspect
the vehicles. The appellant was present at the inspection and at a meeting of the
Board of the Legal Service on 9 November 2004 at which the Board resolved to sell
four vehicles for $47,000 to Riokate. There was also one other vehicle which
Mr Mitchell agreed to purchase for $10,000 and a tractor for $4,000, making a total
24
of $61,000. A payment from Riokate of $61,000 was recorded in Mr Jongkind‟s
trust account receipt as having been made on 16 November 2004. However,
Mr Jongkind‟s bank records show the receipt of this deposit on 11 November 2004.
The cheque to Thynne & Macartney was cleared on 12 November 2004. The cheque to Mr Vasta was dated 10 November 2011.
The appellant gave and called evidence. In his oral evidence he said that he did not believe that the grant terms and conditions applied to the subject motor vehicles. He also swore that the money transferred to the lawyers was money which he had been lent by the Legal Service.
It is now convenient to consider the grounds of appeal pursued on the hearing of the appeal.
Ground 1 – The trial judge erred in not ordering that the indictment presented
on 22 October 2009 be stayed as an abuse of process
The appellant‟s argument commenced by identifying four errors allegedly made by
the trial judge which were said to have vitiated the exercise of her discretion:

1. treating the situation as one which did not involve error by the prosecution;
2. failing to appreciate the significance of Keane JA‟s remarks in his reasons in
the first appeal that the evidence was more properly supportive of charges
under s 26(2) of the Act than s 26(1);
3. failing to have regard to the fact that an order for a stay did not mean the end of the prosecution; and
4. failing to acknowledge that the case to be run by the prosecution was a “new case”.

It is unnecessary for present purposes to pursue all of these points. In order to
succeed, the appellant must show that the trial judge‟s discretion should have been
exercised in favour of the grant of the stay. In that regard, the appellant argued that
the respondent used the second trial as a “dry run” from which to obtain an advisory
opinion as to the manner in which the case might actually succeed. The appellant submitted that it should not be open for the Crown to use the judicial process in this
fashion as it trivialises the significance of a trial upon indictment and “blurs the
separation of powers to an uncomfortable degree”. The appellant should not have to
25
face repeated prosecution until the Crown formulates a viable case.
The other major limb of the appellant‟s argument was that the respondent should
not be permitted to prosecute “a new case” at the third trial after the verdicts of the
26

jury on the second trial had been set aside on appeal. Attention was drawn to an
27

observation by the majority in R v Taufahema that the difference between the case
relied on in the first trial and the case to be relied on in the second trial must be
“substantial” if it is to stand as a bar to a second trial. It was submitted that the
difference here was substantial as the first and second trials were concerned with the exercise of powers or the breach of duties whereas the third trial was not, giving it
a very different “quality”. The second trial was run on a fresh rather than an
amended indictment grounded on another part of the Act. Consequently, it was urged, the case mounted on the second indictment was substantially different to that based on the first.

In Taufahema an accused was charged with the murder of a police officer on the basis of secondary liability. The officer had been killed by shots fired by a passenger in a car driven by the accused after it was pulled over by the officer. The prosecution originally contended that the accused was party to a joint criminal enterprise involving the use of a firearm to prevent the lawful arrest by police of himself and the passengers in the car. The case was put in the summing up as an allegation by the prosecution of a joint enterprise to evade apprehension, involving the shooting of a police officer as a foreseen possibility. On the hearing of an application for special leave to appeal from the judgment of the Court of Criminal Appeal, the Crown, for the first time, characterised the joint enterprise as the commission of an armed robbery in which a fatal shooting was foreseen as a possible incident. It was held, by a majority, that there was no substantial difference between the case relied on at the trial and that sought to be relied on if a new trial were ordered.

In the course of their reasons, Gummow, Hayne, Heydon and Crennan JJ implicitly
28
approved of a statement of Dawson J in King v The Queen, that “… the Crown
should not be given an opportunity to make a new case which was not made at the
first trial”. Reference was made to a submission by counsel for the accused that the case sought to be advanced by the respondent was a “new case” because it was
a case based on a radically different particularisation of the joint criminal enterprise.
29
Their Honours observed:
“The authorities on whether appellate courts should order a new trial
or an acquittal offer very little explicit exposition of what is meant,
conceptually, by a „new case which was not made at the first trial‟.
However, the way the authorities have been decided tends to show
that the „new case‟ test is not easy for accused persons to satisfy. It
is proposed to examine four of those authorities.”
30
After reviewing the authorities, their Honours said:
“These authorities suggest that the difference between the case relied
on in a first trial and the case to be relied on in a second trial must be substantial if the difference is to stand as a bar to an order for
a second trial.”
Their Honours then discussed the similarities and differences between the case advanced on the first trial and that intended to be advanced on the second trial,
noting that what the prosecution proposed to do at the second trial was “not to
advance any factual allegation inconsistent with what the jury or the Court of Criminal Appeal have already found, and not to advance any factual allegation
inconsistent with the case advanced at the first trial”.[31] It was said that what the
[31]
prosecution was proposing was to rely on the evidence called at the first trial, but to
characterise the facts “which that evidence may establish in a different way, but not a radically different way” and to “rely on an inference which could have been drawn in the first trial”.
32
Their Honours observed:
“As for tactical considerations, no doubt it was easier for the
prosecution to seek to establish the case left to the jury than the case
opened at the first trial at a factual level, and possibly the „new case‟,
had it occurred to counsel for the prosecution, was originally not run because of its perceived difficulty. In the circumstances as they have unfolded, however, it is hard to see why it is unfair for the prosecution to be allowed to remould its case in the manner proposed. What has happened may be regrettable and undesirable,
but it is not sinister.”

33

[56]

The authorities discussed in the joint reasons were R v Wilkes,

King v The

34 35 36

Queen, Jiminez v The Queen and Parker v The Queen.

The decision in Wilkes turned on very distinctive facts and does not shed a great deal of light on the principle under consideration.
King, like Wilkes, was a case involving inconsistent verdicts. King and another
were charged with murdering King‟s wife. King was convicted and the co-offender,
Matthews, was acquitted. The Court of Criminal Appeal directed that King be

retried on the basis that King‟s trial had miscarried as a result of the content of the
trial judge‟s summing up. Dawson J concluded that:[37]
[37]
“If the verdict against King in this case was inconsistent with the
verdict in favour of Matthews, then the Crown could properly succeed against King upon a retrial only by putting a new case. It certainly ought not be allowed to proceed in any retrial upon a basis
inconsistent with the jury‟s verdict of acquittal of Matthews.”

In Jiminez, the only judge who relied on the principle under consideration was
McHugh J. He concluded that a new trial should not be ordered because “… a
second trial would allow the Crown to make a case different from that which it put
to the jury at the first trial”.[38]
[38]

39

In Island Maritime Limited v Filipowski, the owner and the master of a ship which
allegedly discharged oil were both charged by summons with contraventions of
provisions of the Marine Pollution Act 1987 (NSW). At the conclusion of the
prosecution case, it was found that the defendants had no case to answer on the
basis that the provisions of the Act relied on by the prosecution had no application.
The prosecutor subsequently filed summonses in the same Court charging the
defendants with contraventions of other provisions of the Act relating to the same
discharge. The defendant sought a permanent stay of the later proceedings on
grounds that they were bound by the principle of autrefois acquit or constituted an
40
abuse of process. Gleeson CJ, Heydon and Crennan JJ concluded:
“The error by the prosecution in filing the first set of summonses as
it did is regrettable but not oppressive. The appellants are not being prosecuted for the same offence, or overlapping offences: originally they were prosecuted for the wrong offence and now they are being prosecuted for the right one. The Court of Criminal Appeal rightly said that the delays that have taken place reveal a desultory approach which is to be deplored, but the delays, partly unexplained though they are, have not been of extraordinary length. The filing of the second set of summonses was not in substance anything more than a belated amendment of the first set. The problem with which the Convention, the Commonwealth Act and the Marine Pollution Act are attempting to deal is a very serious one. Depending on the circumstances eventually established, the crimes alleged against the appellants are serious. There is a high public interest in having the allegations disposed of, one way or the other, on the merits. Nothing has been pointed to which prevails over that interest, and no appellable error has been demonstrated in the handling of this
question in the courts below.”
It is now necessary to consider the application of the principles discussed above to the facts and circumstances of this case.
Section 26 of the Act was in the following terms:
“Good faith, use of position and use of information–criminal
offences
Good faith–officers

(1) An officer of a Commonwealth authority commits an offence
if he or she:

(a) is reckless; or
(b) is intentionally dishonest;
and fails to exercise his or her powers and discharge his or her
duties:

(c)

in good faith in what he or she believes to be in the best interests of the Commonwealth authority; or
(d) for a proper purpose.
…

(2)

An officer or employee of a Commonwealth authority commits an offence if he or she uses his or her position dishonestly:

(a)

with the intention of directly or indirectly gaining an advantage for himself or herself, or someone else, or causing detriment to the Commonwealth authority or to another person;
…”

The indictment at the time of the second trial alleged that the appellant being an
ATSIC Commissioner on or about 5 November 2004 at Charleville “was
intentionally dishonest and failed to exercise his powers and discharge his duties for
a proper purpose”; and on or about 11 November 2004 at Charleville “was
intentionally dishonest and failed to exercise his powers and discharge his duties for
a proper purpose”.
The indictment for the third trial alleged:

“Count 1.

On or about the fifth day of November 2004 at Charleville in the State of Queensland, ROBERT
Commonwealth RAYMOND LLOYD ROBINSON being an officer of a
Authorities and Commonwealth authority, namely a Commissioner of
Companies Act the Aboriginal and Torres Strait Islander Commission,
Section 26(2)(a) used his position dishonestly with the intention of
directly or indirectly gaining an advantage for himself

Count 2

On or about the eleventh day of November 2004 at Charleville in the State of Queensland, ROBERT
Commonwealth RAYMOND LLOYD ROBINSON being an officer of a
Authorities and Commonwealth authority, namely a Commissioner of
Companies Act the Aboriginal and Torres Strait Islander Commission,
Section 26(2)(a) used his position dishonestly with the intention of
directly or indirectly gaining an advantage for himself”
41

Section 26(1), as was held in R v Robinson, “creates an offence where there is a
failure to exercise a power and discharge a duty the existence of which is assumed
by the provision”. The powers and duties are ones “held by or imposed on the officer in question as aspects of his or her particular office”.[42] Section 26(2) is concerned relevantly with the dishonest use of an officer‟s position “with the
[42]
intention of directly or indirectly gaining an advantage for himself or herself, or
someone else”.
In summing up the case to the jury, the trial judge in the second trial directed the

43

jury by reference to a sheet of paper provided to them which provided:
“Charge One
The prosecution must satisfy you beyond reasonable doubt:–
th

1. On or about the 5 day of November 2004;
2.         At Charleville in the State of Queensland;
3.         Robert Raymond Lloyd Robinson being an officer of [a] Commonwealth Authority namely a Commissioner of the Aboriginal and Torres Strait Islander Commission;
4.         Was intentionally dishonest;
5.         And failed to exercise his powers and discharge his duties for a proper purpose.

Charge Two
The prosecution must satisfy you beyond reasonable doubt:–
th

1. On or about the 11 day of November 2004;
2.         At Charleville in the State of Queensland;
3.         Robert Raymond Lloyd Robinson being an officer of [a] Commonwealth Authority namely a Commissioner of the Aboriginal and Torres Strait Islander Commission;
4.         Was intentionally dishonest;
5.         And failed to exercise his powers and discharge his duties for
a proper purpose.”

As an aid to her summing up in the third trial, the trial judge provided the jury with

44

a one page document which commenced:
“Major issues in dispute:
1. Whether the defendant used his position as a Commissioner of the Aboriginal and Torres Strait Islander Commission (ATSIC) dishonestly when he wrote the letters to Stuart Mitchell on or about 5 and 11 November 2004?
2. Whether the defendant had the intention (at the time he wrote each letter) of directly or indirectly gaining an advantage for himself?

Both of these issues relate to the defendant‟s state of mind at the time
he wrote each of the letters.
To prove the defendant acted dishonestly, the prosecution must satisfy you:
1. That what the defendant did was dishonest by the standards of ordinary honest people;
and:
2. That the defendant knew that what he did was dishonest by those standards.

Intention is an element of the offences…”

Each count on both indictments required proof that:

the appellant was a Commissioner of ATSIC;
being a Commissioner of ATSIC, the appellant was intentionally dishonest;
the dishonesty concerned the contents of and the sending of a particular letter;
in the letter the appellant falsely stated that the grant terms and conditions did
not apply; and

the appellant had the intention at the time of writing the letter of dishonestly
gaining an advantage for himself.

The focus in the third trial was on whether; the appellant actually believed when writing and/or sending the 5 November and 11 November letters that the vehicles
listed in the letters were not “subject to any grant terms and conditions” such as to
pose a legal impediment to their sale; and additionally in respect of count 2, whether the appellant believed the assertion in the 11 November letter that the Board of ATSIC gave authority to Bidjara CDEP and the Legal Service to dispose of the vehicles. It was not suggested that there was a different focus on the second trial.
In determining whether the prosecution was presenting “a new case” in the new
indictment, the substance of the case presented at the second and third trials is more
important than the theoretical possibilities open on the wording of the indictment.
In determining rights, duties and obligations, the law generally looks to substance
45
rather than form. It is significant that on the s 590AA application and on appeal, the appellant did not identify or seek to identify any respect in which the evidence relied on by the prosecution in the two trials, or the general thrust of the prosecution case, differed. Nor did the appellant identify any way in which he had been prejudiced in presenting his defence or otherwise in relation to the conduct of the second trial, apart from the prejudice inherent in his having to face a further trial.
In my view, the appellant failed to demonstrate that the case presented on the new indictment differed substantially from that presented on the first indictment or that the new case occasioned any oppression or unfairness. The verdicts on the second
trial were set aside because the jury‟s attention was not directed by the trial judge to
whether the appellant failed to exercise a power and discharge a duty to prevent the
sales: “the jury‟s attention was not drawn to consider what act or omission on the appellant‟s part could give rise to an offence”.[46] The misdirection no doubt
[46]
resulted, in part at least, from the way the prosecution case was conducted, but assertions of abuse of the judicial process by the prosecution are unfounded. The
prosecution, rightly or wrongly, concluded after having regard to Keane JA‟s
reasons that it was preferable to base its case on s 26(2) rather than s 26(1), while
retaining not only the same evidentiary base but also the same central arguments.
Some emphasis was placed on the fact that the original charges had been carefully selected by the prosecution. It may be accepted that they were, but that is as it

47

should be. This may be a relevant factor, but as was the case in R v Taufahema, it
does not outweigh the considerations addressed above.

The exercise of the trial judge‟s discretion in refusing a stay was not shown to have
miscarried. This ground was not made out.
Ground 3 – The trial judge erred in not excluding from evidence an agreement

entered into by Mr Philip Ruddock, the then Minister for Immigration,
Multicultural and Indigenous Affairs, on behalf of the Commonwealth and
Mr Geoff Clark, as Chairman of ATSIC, in or about June 2003

In June 2003, an agreement (“the agreement”) was signed by Mr Philip Ruddock, as
Minister for Immigration, Multicultural and Indigenous Affairs, on behalf of the
Commonwealth of Australia and by Mr Geoff Clark, purportedly on behalf of

48

ATSIC. It was stated in the agreement that it was made between and bound the:
“1 Commonwealth of Australia represented by Aboriginal &
Torres Strait Islander Services (ATSIS)
2 Aboriginal & Torres Strait Islander Commission (ATSIC)”
49

The document then provided:
“PREAMBLE
In implementing this Agreement, both ATSIC and ATSIS are committed to working together in the best interests of all Aboriginal and Torres Strait Islander peoples. This will be done to assist ATSIC to achieve its goal of self-determination and empowerment of all the indigenous peoples of Australia.
BACKGROUND

A.

By notice in the Gazette of 30 May 2003, Aboriginal and Torres Strait Islander Services was established as an executive agency as from 1 July 2003.

B.

ATSIS has been given a number of functions including, delivering programs for Aboriginal and Torres Strait Islanders and providing policy advice and advocacy support to ATSIC.

C.

ATSIC was established by Section 6 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth.) (the Act).

D.

Some of the functions that ATSIC has to date carried out will from 1 July be performed by ATSIS and ATSIS will act as agent for ATSIC in relation to certain other functions of ATSIC.

E.

Certain employees of ATSIC will also be transferred to ATSIS pursuant to s.72 of the Public Service Act 1999.

F.

In order to enable these arrangements to be put into place smoothly and co-operatively, the parties have agreed to enter into this agreement which will set out both transitional arrangements and interim arrangements for the long term co- operation of both parties in relation to their functions.
…”

The effect of the agreement was to vest the great bulk of ATSIC‟s functions in
ATSIS.
At a hearing before the trial judge under s 590AA of the Criminal Code, the appellant sought a determination that the agreement was inadmissible. On appeal it was alleged that the trial judge erred in not excluding the agreement on the basis that it was:
“… unlawfully, improperly or unfairly obtained because by
necessary implication it was beyond the power of the Executive
Government:
(i) to establish ATSIS to engage in activities which parallel the functions hitherto performed by ATSIC and conferred on ATSIC by the ATSIC Act 1989;
(ii) by operation of the ATSIC Act 1989 to expend money
appropriated to ATSIS.”
It was contended also that the trial judge erred in finding that ATSIC had power to
delegate the performance of its obligations to ATSIS and in finding that ATSIC‟s

then Chairman, Mr Clark, had been authorised to sign the agreement on behalf of
ATSIC.

The challenge to the admissibility of the agreement was mounted because the prosecution intended to call Mr Watson, the Chief Executive Officer of ATSIS, to say that at the time the two letters to Mr Mitchell were written, he was the person with the authority to give consent on behalf of ATSIC to the sale of the vehicles and that no such consent was sought or obtained. In this regard, the role of the agreement was to establish that ATSIS had assumed the relevant duties and powers of ATSIC.
It is difficult to see why the pre-trial hearing in respect of the relationship between ATSIC and ATSIS and the validity of the agreement consumed five hearing days. These matters went only to the question of the admissibility of the agreement for the
purpose identified above. If the appellant‟s contentions as to the invalidity of the agreement are correct, ATSIC‟s consent could be given only by ATSIC itself and
not by ATSIS as its agent. It was never part of the defence case that the Board of ATSIC had given consent. The appellant, as an ATSIC director, was in a position to know whether such consent had been given and never suggested that it had. Moreover, it could have been safely predicted that the jury would be able to conclude from the evidence to be led by the prosecution that ATSIC had not consented.
In my view, the trial judge was correct in finding that the agreement was admissible.
Even if it was invalid and ATSIS had no authority to act as ATSIC‟s agent, the evidence was that it purported to do so. ATSIC‟s functions in relation to grant
monies were in fact taken over by ATSIS on 1 July 2003. What happened, in fact rather than in terms of legal principle or theory, in relation to the operations which ATSIC had formerly undertaken, bore on the question whether ATSIC had
consented to the disposition of the subject vehicles. If ATSIC‟s role in respect of
such consents had been assumed by ATSIS, it would tend to follow that ATSIC itself would not have given consent. Whether ATSIC had given its consent was a live issue during the pre-trial hearing and at the time the agreement was admitted
into evidence. The defence did not formally admit that ATSIC‟s consent had not
been given.
Another alleged error on the part of the trial judge in relation to her decision not to exclude the agreement was her finding that the Board of ATSIC approved the signing of the transitional agreement. Minutes of a meeting of the Board of ATSIC held on 16, 17 and 19 June 2003 contain a resolution approving the draft agreement
“subject to the changes made by the Board, for signature by the ATSIC Chairman
on behalf of ATSIC and the Minister… on behalf of the Commonwealth”. Minutes
of the Board meeting held on 18 – 20 August 2003 record the acceptance of the
minutes of the previous meeting as a true and correct record of that meeting. The appellant contended that the trial judge erred in accepting the evidence of three board members who confirmed the accuracy of the minutes over the evidence of five other board members to the effect that the Board had not agreed to the signing of the agreement. It was submitted that the evidence of the latter board members was supported by:

1. the ATSIC Board minutes of June 2004 which contained details of discussions that cast doubt on the accuracy of the earlier minutes; and
2. the fact that the ATSIC Board initiated a High Court challenge to the validity of the agreement.

A number of other criticisms were made of the trial judge‟s findings, but it is
unnecessary to discuss them because, for the reasons advanced above, the question of the validity of the agreement did not make its existence and what had been done in purported performance of it irrelevant. I note that both the prosecution and the
defence accepted on the trial that the “real issue” in relation to the validity of the

agreement and the operation of cl 17.4 of the grant terms and conditions concerned
the state of mind of the appellant.

Accordingly, ground 3 was not made out.
Ground 4 – the trial judge erred in ruling at the conclusion of the prosecution
case that there was a case to answer
The appellant contended that the trial judge should have held that there was no case to answer as the prosecution had failed:

1.

to prove that consent had not been obtained in accordance with the grant terms and conditions; and
2. to show that the appellant could have had the dishonest intention alleged.

The appellant‟s argument in relation to the first of these contentions was to the following effect. The prosecution‟s case was that the appellant knew that the vehicles were owned subject to grant terms and conditions which required ATSIC‟s
consent to dispose of the vehicles and that consent had not been obtained. It was further part of the prosecution case that, as a result of the agreement, any such consent needed to be obtained from ATSIS via Mr Watson. The trial judge erred in concluding that there was credible evidence that Mr Watson was the person from whom consent should have been obtained and that otherwise lack of consent was not something the Crown needed to prove as the prosecution case was always that, contrary to the terms and conditions of the grant of monies by ATSIC, the vehicles were sold without consent. Section 45(1) of the ATSIC Act makes it clear that only ATSIC can delegate its functions and powers. Such a delegation must be in writing
under the Commission‟s seal. The delegation held by the former Chief Executive
Officer of ATSIC was revoked in March 2004 and not reissued and Mr Watson held no such authority from ATSIC.
The appellant‟s argument in this regard suffers from the defects identified in ground 3. Whether Mr Watson had authority to act as ATSIC‟s agent for relevant
purposes did not need to be determined in order to enable the prosecution to prove that ATSIC had not consented to the sale of the vehicles. The evidence established that: Mr Watson did not give consent; no local officers of ATSIS gave consent; the
Board of ATSIC gave no relevant consent; and that it was not part of the Board‟s
normal role to give such consent.
It was not suggested to Mr Watson that anyone else may have given consent on behalf of ATSIC, whether directly or via ATSIS. It was open to the jury to conclude that if Mr Watson and the ATSIC officers, referred to later, had not provided any relevant consent, no one else on behalf of ATSIC had done so. It was not suggested in cross-examination of the ATSIC officers that anyone on behalf of ATSIC itself or ATSIS had given consent. Moreover, it was plainly implicit in the stance adopted by the appellant, Bidjara CDEP and the Legal Service that neither ATSIC nor ATSIS had been requested to give any consent. The conduct of the AGS also made it plain that they had been instructed by ATSIS that no consent had been given.
I now turn to the second limb of this ground.
The chronology of sale of the Bidjara CDEP vehicles was:

26.10.04 – inspection and agreement of price $61,000
28.10.04 – exclusion of one vehicle and price reduced to $53,000
29.10.04 – vehicles delivered
02.11.04 – Mr Mitchell paid $53,000 for the vehicles
05.11.04 – appellant sent the 5 November letter

The transaction was complete prior to the letter being sent.
The chronology of the sale of the BSWQALS vehicles was:

03.11.04 – authority to disburse trust funds
04.11.04 – authority to disburse to Thynne & Macartney
09.11.04 – inspection and agreement of price
Mitchell sought the 11 November letter from appellant
10.11.04 – Appellant‟s direction to Jongkind to apply funds held in trust to
Vasta and Thynne & Macartney

Jongkind drew cheques to Mr Vasta QC and Thynne & Macartney
11.11.04 – Mitchell paid $61,000 for the vehicles
Appellant sent the 11 November letter
12.11.04 – Mr Vasta QC and Thynne & Macartney cheques cleared

Each of the cheques in favour of Mr Vasta QC and Thynne & Macartney was drawn by Mr Jongkind on 10 November prior to the sending of the 11 November letter.
Further submissions were made to the following effect. In the opening of the prosecution case, the prosecutor contended that the assertions in the 5 November
letter that “the advertisements by the Australian Government solicitor were illegal and nonsense and the cars were not subject to grant terms and conditions”[50] were “dishonest statements made to ensure sales went through”. In relation to the second
[50]
letter, it was opined by the prosecutor that the assertions in the letter that “the listed
vehicles were the property of [Bidjara] CDEP or the Legal Service and there were
no encumbrances, nor were they subject to any grant or conditions of grant” were
51

dishonest. The prosecutor said, “He knew the contrary to be true … The Crown
says that was all done to make sure the sales would go through.”
52

A little later, the prosecutor said:
“Secondly, $25,000 went to fund the defamation action, that is the
one being conducted by Thynne & Macartney. Those legal expenses,
so says the prosecution, were Mr Robinson‟s purpose in ensuring the
sale of the cars, that is securing a fund of money which he could
arrange to be partially used for his own purposes.”
The trial judge was criticised for stating in her reasons for dismissing the no case
application that there was only a slight difference between the written particulars
provided by the prosecution and the case advanced on trial. The written particulars
53
relevantly stated:
“[The appellant] had the intention of directly or indirectly gaining an
advantage for himself by using some of the proceeds of the sales of the vehicles for his own private legal expenses, which in fact
occurred.”
The trial judge also concluded that any difference in the particulars was “not so
significant as to amount to a different case for the [appellant] to answer, or to
disadvantage the [appellant] in any way”.[54] These findings were not criticised by
[54]
the appellant.
The argument advanced was that as count 2 related to the conduct of the appellant in sending the letter on or about 11 November 2004, the appellant could not have had the intention of making sure the sales would go through. This conclusion, it was argued, was able to be drawn from the chronology. It was submitted that if, as was the case, the appellant directed Mr Jongkind to apply funds held in trust to Mr Vasta and Thynne & Macartney on 10 November 2004 and Mr Jongkind drew the cheques
on that day, the “obligation to the legal representatives [was] discharged” and it was

not possible for the letter to have been written with the intention of using money for
something that had already been done.
55

[98]

Keane JA said in his reasons in the earlier appeal,

that:

“There was evidence from which it could be inferred that $45,000 of
the proceeds of sale was paid to lawyers who were acting for the appellant in other matters for their fees. Mr Callaghan SC, who appeared with Mr Gardiner for the appellant, pointed out that these moneys were received by the lawyers in question before the letter of 11 November 2004 was written by the appellant so that this letter could not have been written with that purpose. But it was open to the jury to conclude that the appellant did not know that his indebtedness to his lawyers had been satisfied by the time he wrote the second
letter and to infer that the appellant‟s purpose in writing both letters
was to facilitate the completion of the sale of the motor vehicles, to raise sufficient funds for his own private purposes rather than to raise
funds for the benefit of ATSIC.”

Counsel for the appellant disputed that reasoning, noting that the evidence showed
that the appellant had directed Mr Jongkind to apply funds “held in trust” and that
cheques were drawn on 10 November. It was asked, rhetorically:
“… how is it open for the jury to conclude that on the 11th the

th

appellant did not know that he had dealt with a situation on the 10 ,
and even if there was some basis in the evidence for inferring that, as opposed to speculating along those lines, this would be something
that has to be proved beyond reasonable doubt.”

On 4 November 2004, Bidjara Aboriginal Housing and Land Co Limited had given
written authority to Mr Jongkind to apply “funds held in trust for the directors of [that company] towards costs and disbursements including counsel‟s fees and
witness expenses in relation to the case of Raymond Robert Lloyd Robinson ats
Thompson”.[56] In a document dated 10 November 2004 addressed to Mr Jongkind,
[56]
the appellant authorised and directed Mr Jongkind to apply funds held in trust (pursuant to the authority given by the directors of Bidjara Aboriginal Housing and
Land Co Limited) towards satisfaction of Mr Jongkind‟s costs and outlays in relation to the appellant‟s criminal trial in the District Court in Brisbane and his
defamation proceedings commenced by Mr Thompson. Although the cheques to Mr Vasta and Thynne & Macartney were drawn on 10 November, the trust account bank statement shows the deposit of $61,000 paid by Mr Mitchell on 11 November and the debiting of the payments to Mr Vasta and Thynne & Macartney on 12 November.
Having regard to the way in which the transactions progressed and the appellant‟s
enthusiastic and aggressive support for the sale of the vehicles from as early as
5 November 2004, it was open for the jury to conclude that the appellant‟s intention
in writing and sending the letters was to gain an advantage as particularised. The 11 November letter cannot be looked at in isolation from the 5 November letter and the other conduct of the appellant in respect of the vehicle sales and the payment of his legal fees. It was open also for the jury to infer that there was a continuing course of conduct which included the sending of the letters and that it was the intention of the appellant in sending the letters to ensure that Mr Mitchell, the purchaser, did not renege on the sales, or attempt to obtain a refund or return of his
money. The evidence discussed under the next heading in relation to the appellant‟s
protracted, close and forceful involvement in the vehicle sales even though he was not a director of either the Bidjara CDEP or the Legal Service also assisted the drawing of the inference contended for by the prosecution.
As the respondent correctly submitted, the elements of the charges did not require the prosecution to prove any causative link between the letters and the payments of
fees on the appellant‟s behalf. Rather, the prosecution had to prove that the

appellant used his position dishonestly with the intention of directly or indirectly
gaining an advantage.

For these reasons, this ground was not made out.
The verdict was unsafe and unsatisfactory
The appellant relied on a combination of matters to establish that the jury could not have been satisfied beyond reasonable doubt that:

1. the appellant used his position dishonestly with the intention of directly or indirectly gaining an advantage for himself in respect of either of the counts;
2. what the appellant did by way of sending each letter was dishonest by the standards of ordinary honest people; and
3. at the time of sending the two letters the appellant knew that what he did was dishonest by the standards of ordinary honest people.

It is now proposed to refer to each of the matters relied on by the appellant to support these contentions. My discussion of such matters is in plain type:
The vehicles sold by each of the Aboriginal corporations were owned by the vendor.
The Aboriginal corporations were distinct and separate entities from the appellant.
There was no registered encumbrance over the vehicles.
The appellant played no part in the decision by the companies to sell the vehicles.
Ms Mailman, who at relevant times was a director of the Legal Service, gave evidence that a service provider was using the cars without paying rent and that the cars were not being looked after. She said that the Board resolved to sell the cars and obtained advice from Mr Jongkind that this was legally permissible. Asked if the appellant was involved in any way with the decision of the Board to sell the
assets, she responded, “No. Mr Robinson wasn‟t on our committee”.
Ms Mailman was shown a copy of minutes of the meeting of the Board of the Legal Service of 9 November 2004 which noted discussion of the sale of the vehicles and contained a resolution that they be sold for $47,000. The minutes recorded the presence of Mr Mitchell and the appellant. Ms Mailman, however, said that the
appellant was not in the room when there was discussion about “the actual sale of the cars or selling them… because he went to get something to eat”. Counsel for
the respondent drew attention to the fact that the minutes do not record that the appellant left the meeting at any stage, although they do record the arrival at the
meeting of Mr Mitchell “to discuss vehicle”.[57]
[57]
Mr Maris agreed in cross-examination that the appellant excused himself from “any
discussion about the decisions that were to take place” at a meeting of the Board of
58

Bidjara CDEP concerning the sale of the vehicles. Mr Maris recalled, however,

59

that it was Mr Robinson who brought Mr Mitchell to be introduced to the Board.

Mr Mitchell‟s evidence was to this effect. In response to an invitation from the
Legal Service he went to Charleville on 8 or 9 November and inspected the subject
vehicles outside the Legal Service‟s premises. The appellant was one of the people
present during the inspection. When agreement was reached as to price, the
appellant “… was at the head of the table, and he was throwing questions. The others were throwing questions backwards and forwards”. The appellant agreed with Mr Mitchell‟s evidence in this regard, but nevertheless asserted that he did not
take part in the negotiations.
Mr Kinivan managed the CDEP program at Charleville in 2004. He answered to the Board of the Bidjara CDEP before the functions of the Board were replaced by IEP. He said that the Bidjara CDEP lost its ATSIC grant funding in 2004 and that the funding was then given to IEP. He recalled being telephoned by the appellant in
2004 and being told by the appellant that the Bidjara Board had decided to sell “the vehicles, because Ron Carter refused to pay rent on them”.[60] He was subsequently
informed of a meeting of the Bidjara Board at which a decision was made to sell the
vehicles. After that the appellant spoke to him and told him that “he was selling the vehicles because there was no rent paid on them”.[61] This evidence was not

challenged in cross-examination. It also suggests the appellant had a close interest
[60]
[61]
and involvement in the vehicle sales.

Even if the jury accepted that the appellant did not participate in the actual decisions to sell the vehicles, it was open to them to conclude that the appellant had a strong interest in the sales of the vehicles at relevant times. The evidence of Messrs Kinivan and Mitchell shows that such interest was not merely transient in nature.
The telephone call to Mr Powrie and the tone of the appellant‟s letters indicate that

the appellant felt strongly about the sales of the vehicles and was prepared to take
action, including involving his legal advisors, to ensure that they were completed.
The money advanced to the appellant from the proceeds of sale of the vehicles was by loan.

Ms Mailman gave evidence to that effect. Counsel for the respondent submitted,
however, that no loan agreement was referred to in any minutes of the Legal Service
meetings and no such agreement was ever produced. There is no evidence that any
loan agreement was prepared and the Federal Agent who gathered up all relevant
documents pursuant to search warrants did not find, and was not directed to, any
such document. It was submitted also, and I accept, that even if the money had
been provided to the appellant by way of loan, that would not prevent the writing of
the letters with the intention of gaining an advantage. The loan could not have been
62
made unless the proceeds of sale of the vehicles had been received.
The appellant had other sources of monies available to meet his outstanding legal obligations apart from the proceeds of sale of the vehicles. He could have
borrowed the money from others – for example Mr Kells as was done when
Mr Vasta returned the $20,000 cheque and the funds from the appeal costs fund in relation to his defamation trial.
The respondent‟s counsel‟s contention was that whether the appellant could have
made other arrangements to pay his legal fees is irrelevant to the issues in the case. The question is whether by writing the letters he used his position dishonestly with the intention of advantaging himself.
The prosecution failed to prove that any person from ATSIS had the authority to approve the sale of the vehicles.
For the reasons given above, even if this contention is correct, it is of no consequence.
The appellant honestly believed that Mr Watson held no lawful delegation or authority to act on behalf of ATSIC in approving the disposal of ATSIC funded assets, particularly vehicles.
The respondent submitted that whether the appellant‟s evidence in this regard
should be accepted was a matter for the jury. That is so, but there was strong
corroboration for the appellant‟s evidence in this regard. The appellant‟s belief,
however, says little about his belief in relation to there being no necessity to obtain
ATSIC‟s consent to the sales and the giving of ATSIC board approval.
The appellant was not a member of the Board of either of the Aboriginal corporations which sold the vehicles.
This contention was discussed in paragraphs [106] – [111] above.
The appellant did not have or claim to have authority to determine where the proceeds of sale were to be deposited by Mr Mitchell.
The Aboriginal corporations, and only the Aboriginal corporations, could have directed and authorised the use of the proceeds of sale.
The prosecution case was that the appellant influenced the corporations and utilised part of the proceeds of sale of the vehicles.
The proceeds of sale were paid by Mr Mitchell’s company to the Aboriginal
corporations.
The respondent submitted that although the above statement is accurate, part of the monies were paid out to the appellant forthwith on the written authorisation, inter alia, of the appellant. He provided a trust account authority signed by him for the release of the funds for his purposes. Moreover, the use of some of the proceeds of
sale of the vehicles to meet the appellant‟s legal expenses was in contemplation at
63
least as early as 4 November 2004. It appears from the solicitor‟s ledger cards that
there was insufficient money in the trust account to pay the $45,000 on account of
legal fees before receipt of the first tranche of the proceeds of sale.
The appellant could have only obtained the use of the monies by the authority of each of the Aboriginal corporations.

grant (through the acquittal process) or as a result of the alleged acquittal practice it
was whether the appellant honestly so believed.

In reaching their conclusions in this regard, the jury would obviously have had
regard to their perceptions of the appellant‟s credibility. If they did not find him
a credible witness, as must have been the case, they need not have accepted his evidence about having been informed of relevant matters by Messrs Clark, Wanganeen, Vasta, Atkinson and Power. There was only fleeting reference to Mr Atkinson in the evidence. Mr Vasta identified him as a solicitor who worked with Mr Power and who briefed him from time to time. Mr Vasta, who unlike the other men just mentioned, did give evidence on the trial, gave no evidence of having
discussed with the appellant the question of an ATSIC funded body‟s right to dispose of “acquitted” assets without ATSIC‟s consent. The jury were also entitled to reject some or all of Mr Maris‟ evidence which differed in one significant respect
from that of Mr Kinivan.
I now turn to a consideration of the case presented in respect of the final paragraph of the 11 November letter.

88

The prosecutor dealt with the matter in his closing address as follows:
“In respect of the second letter, the one undated, but sent about the
11th of November - it‟s asserted in the second paragraph that, „There
are no legal encumbrances whatever, the vehicles listed are not subject to any grant or conditions of grant, and may be [disposed] of
in the normal course of business.‟ That is, in my submission,
dishonest, because he was aware there were legal encumbrances in
the form of the grant conditions to which I‟ve referred. The assertion
that the board of ATSIC gives authority to Bidjara CDP and Bidjara Legal Service to dispose of these vehicles was dishonest. He knew
that they didn‟t give that authority, and frankly ladies and gentlemen,
if you can understand the semantic exercise that was attempted to be gone through with Mr Mitchell about some different meaning about
„gave authority‟, or something, you‟re better than me. I couldn‟t
understand what the distinction was. It‟s dishonest to assert that
someone had given authority because they hadn‟t.”
89
In his address, defence counsel informed the jury that:
“The real issue in the case is whether the prosecution have proved
beyond reasonable doubt that Mr Robinson used his position dishonestly with the intention of directly or indirectly gaining an
advantage for himself.”
Counsel submitted that when the two letters were written his client‟s “intention was
no more than to restate what he honestly believed to be true”.[90] Counsel said that

91

the jury could not decide the charges:
“…without giving full weight to the context of the issues that led to
the sale of the cars in the first place.
Those issues are Mr Robinson‟s belief as to the authenticity of the transitional agreement. It‟s Mr Robinson‟s belief as to whether
Mr Watson had any authority to approve the disposal of ATSIC
funded cars.”
[90]

In his address, defence counsel referred to the letter of 11 November and to the
statement in it that the Board of ATSIC “gives authority”. He said that the words came from Mr Mitchell‟s handwritten draft and that the appellant telephoned Mr Mitchell with a view to altering the words. He then dealt with Mr Mitchell‟s
evidence of being contacted by the appellant to correct the letter to state, as defence
counsel put it, that “ATSIC allows the sale of the cars”. Defence counsel did not
expand on what was meant by the appellant‟s preferred terminology. He
92
submitted:
“So that last paragraph in the second letter can be put to bed quickly,
because it was a sentence drafted by Mitchell and it was identified by Robinson as being incorrect. He did what he reasonably could have and should have done to correct it after he read it, and there is no
doubt about his evidence upon that and there‟s no doubt about Mr
Mitchell‟s evidence on that issue.”
The appellant gave the following evidence in respect of the letter of 11 November 2004. Mr Mitchell sent him a handwritten document in terms of the letter. The
appellant‟s secretary typed it, he signed it and it was sent back to Mr Mitchell. After it was sent, the appellant contacted Mr Mitchell to correct it so that it read “the Board of ATSIC „permits‟ or „allows‟ Bidjara CDEP and Bidjara Legal Service to dispose of these vehicles”. Mr Mitchell told him that the letter had already been
sent to the AGS.
The following exchanges occurred in the cross-examination of the appellant by the
93
prosecutor:
“I take you then to the last paragraph?-- Mmm.
„The Board of ATSIC gives authority to Bidjara CDEP and Bidjara
Legal Service to dispose of these vehicles.‟ I‟m putting to you, that
was quite dishonest, you knew that was the case?-- No. Well, it is the
case, Mr Kent.
When did the Board of ATSIC give authority for that?-- No. It - I
never said - the Board of ATSIC gives authority, I never said „gave
authority‟. It gives authority.
Well, what do you mean about - what do you mean? I don‟t
understand?-- Well, it allows, it permits, it gives.
Well, in order to give authority, Mr Robinson?-- Mmm. Mmm.
Doesn‟t the Board have to indicate or tell someone that it‟s giving
authority?-- Yeah. It gives authority in a - in a wider range, like, when - when - see, the - the - just let me explain this to you; when you get a vehicle - when you get a vehicle or get vehicles, you get
them off the regional council‟s budget, right? And the regional
council budget - and the regional council has got sole discretionary powers over their budget. The Board of Commissioners, they got nothing to do with vehicles. But if someone does the wrong thing, they can take a section 20 out and claim those vehicles back. But that can only be done by the Board of Commissioners. Do you understand? So it gives, it allows, it permits.
Are you saying that it somehow gives it, by meaning of the - what,
an interpretation that you‟re placing on the conditions or something?- - Yeah. It‟s a - you see - if you - if - say if I didn’t acquit my grant
and I wanted to go and sell those vehicles - I was an organisation,
I wanted to go and sell those vehicles, I would have to then, under
this grant terms and conditions, I would then have to go back, not the staff - not to the staff, not to with anyone with a delegation, I would have to go back to the regional council to get permission to sell that
vehicle, because it’s how come that vehicle is purchased under the
regional council budget. And when the regional council gets their budget, they got sole discretionary power over that budget. Even if
the Board of Commissioners said, „No, you can‟t sell that vehicle.‟ The Board of Commissioner has got nothing to do with it. It‟s - it‟s
the regional council. And if the - if the regional council - if for some reason someone goes and starts selling their vehicles without -
without getting that consent of the regional council if they haven‟t
acquitted that - that grant, then it goes to the - it goes the - the regional council for section 20. That section 20 then goes on to the Board of Commissioners and the Board of Commissioners pass the
section 20 and say, „Look, you can‟t - you can‟t - you can‟t - we‟re taking that asset back off you.‟ Like we did with Warwick. Like we
did with SWACAs. Like we done with the organisation in Gympie. It takes that back under section 20. But this - and then occasion - and this occasion these - these vehicles were acquitted and - they were acquitted and the grant terms and conditions no longer apply therefore they can go and sell those vehicles.
What I‟m putting to you-----?-- There - because they own them.
Hmm?
What I‟m putting to you is that you were perfectly well aware that
there had been no ATSIC board meeting giving any authority to
anyone to dispose of these vehicles?-- I never said-----
That‟s the truth, is it not, Mr Robinson?-- I - no - look, I never said
that, Mr Kent.
Well, the letter does, Mr Robinson?-- No. No, I didn‟t say that. The letter doesn‟t read like that. The - the letter reads that it gives - gives
permission. It might not have been - as I said, it could have been
worded better. It could have been worded „allows‟ or „permits‟ but I didn‟t realise what it read until after I signed it, and then I got on to Stuart Mitchell, as he‟s gave you in evidence, I got on to him and I said, „Listen, that should be allows or permits.‟ He says, „Too late. I‟ve sent it off to the Australian Government Solicitor.‟ Which I‟d give it to him to do anyway. And he said, „I sent it off.‟ I say, „Okay, that‟s all right.‟” (emphasis added)
It may be noted that the situation discussed by the appellant in the passage
highlighted above could never arise if the appellant‟s understanding of the acquittal
process and its consequences was correct. Once the vehicles were purchased with grant monies, they would be the property of the grantee and free of the grant terms and conditions.
In cross-examination defence counsel suggested to Mr Mitchell that he had been contacted by the appellant after he received the 11 November letter and told that the

letter should have read “the ATSIC Board allows [Bidjara] and other organisations
to sell the assets”. Mr Mitchell responded:[94]
[94]
“Yeah. Look, it‟s a vague recollection, but there was a recollection
that - that his secretary or whoever was there was - typed - typed it up. And I also note that when - that the conversation went, to my
thoughts going back, and it‟s quite a few years, is that - that the letter
was - that it was something to do with ATSIC and I was - the reason
I say that is because in the paper, it says that, „You could be liable to ATSIC.‟ Now, he is - he was, and was at the time, the Commissioner
for ATSIC. Now, that was - that was - that was one of the things that
I wanted a letter from him - another letter.”

Mr Mitchell said that he remembered telling the appellant “It‟s too late, the letter‟s
gone to the solicitors”. The primary judge said that she “didn‟t quite follow that last
exchange”. It was clarified that what was being referred to was the last paragraph
of the 11 November letter and, in particular, “the Board gives authority”. This was
95
then said:
“DEFENCE COUNSEL: The conversation was along the lines that it
should have read, „The Board allows [Bidjara] and other
organisations to sell their assets.‟
HER HONOUR: Rather than, „Gives authority.‟
DEFENCE COUNSEL: That‟s correct.
HER HONOUR: Okay.
DEFENCE COUNSEL: And it was a correction by Mr Robinson,
I suggested, as to the language that was used.
HER HONOUR: Yes. But Mr Mitchell - that was purely an exchange - a verbal exchange, it was never corrected-----?-- It was never corrected.
-----in writing?-- No. The first letter - the letters had already gone. recollected that the original letter states that, the people have the authority to sell.
The first two - unless it was too late.
Yes?-- And this one, then the ATSIC Board gives the letter.
Gives them authority?-- It was - it was play on words.”
In re-examination, Mr Mitchell said he could not remember the exact words used in
his conversation with the appellant about the letter and he accepted that he could not

96

be precise about what words were used. He recalled the appellant saying it was
“worded wrong”.

It is plain from the appellant‟s own evidence that he had no belief when providing
Mr Mitchell with the letter of 11 November that the Board of ATSIC had given authority or was, by the letter, giving authority to Bidjara CDEP and the Legal Service to dispose of the vehicles. No such authority had been given or was conveyed by the letter. The defence did not contend to the contrary. However, the
prosecutor‟s submission to the jury that the “semantic exercise” involved in the

discussion which the appellant said he had with Mr Mitchell was incomprehensible
was, perhaps, too harsh.

What the appellant appeared to be saying was to the effect that the grant procedure permitted or contemplated the sale of grant acquired assets without consent where the grant had been acquitted in respect of such assets. But the jury did not have to
accept that the explanation embodied the appellant‟s genuine belief. Even the
proposed changed wording referred to the Board of ATSIC, suggesting board involvement. Moreover, although the appellant was aware that he was dealing with a serious dispute in which the AGS was involved on behalf of ATSIS, he made no attempt to inform the AGS of the error he later asserted.
Conclusion
With respect to the first letter, the conviction can be sustained only if it was open to the jury to conclude that the appellant did not believe on 5 November 2004 that Bidjara CDEP and the Legal Service were entitled to dispose of the vehicles without
ATSIC‟s consent. For the reasons given above, I am of the view that it was open to
the jury to so conclude.
In respect of the second letter, the prosecution also relied on the assertion in the
11 November letter that “the Board of ATSIC gives authority…”. For the reasons
given earlier, the jury were entitled to conclude that the appellant made that
statement dishonestly “according to ordinary notions”.[97]
[97]
For the above reasons, I have concluded that it was open to the jury acting
reasonably to be satisfied beyond reasonable doubt of the appellant‟s guilt. In so concluding, I have had regard to the jury‟s advantage in seeing the witnesses and
hearing the evidence.
Accordingly, I would order that the appeal be dismissed.
NORTH J: I have read the reasons for judgment of Muir JA and agree, for the reasons given, that the appeal should be dismissed.
I wish to make brief reference to two arguments that were advanced by Senior
Counsel for the appellant in argument in support of ground 3. Both submissions
98

concerned the lawfulness of the June 2003 agreement which, it was submitted, if
unlawful was inadmissible.

The first argument was that ATSIC could not vest in an executive agency (in this case ATSIS) the responsibility and power to perform the functions required of ATSIC under the Aboriginal and Torres Strait Islander Commission Act 1989 (the Act). In argument Senior Counsel developed this submission based upon an examination of sections of the Act. He submitted that the terms of the Act did not permit ATSIC to resolve (assuming it had by resolution authorised or ratified the 2003 agreement) to delegate the performance of its functions to another entity.
The second argument, which was only expressly advanced in reply, was that it was
beyond the power of the Commonwealth Executive under section 61 of the
Constitution to establish an agency by the exercise of executive power (ATSIS) and
to enter into the 2003 agreement with ATSIC to vest in ATSIS the power to perform
99
the functions the 2003 Act vested in ATSIC.
It is not necessary for this Court to consider these particular contentions. As Muir JA has pointed out the issue at trial concerned the state of mind of the appellant when he wrote the letters in question as to whether clause 17.4 of the grant terms required the prior approval of ATSIC before the motor vehicles could be sold.
At the trial the appellant did not formally admit that ATSIC‟s consent had not been
given. When he gave evidence he did not contend that it had been given, in fact he was at pains to make it clear that was not his belief. But until the defendant gave evidence it was a live issue at the trial whether the consent of ATSIC had been obtained. Whether or not ATSIS acting on behalf of ATSIC could give that consent or whether that consent had to be given by ATSIC may be an interesting point but at the trial until the appellant gave evidence, the evidence of Mr Watson and other witnesses was relevant as to whether any consent had been given.
In his evidence at trial the appellant said that he believed the “acquittal” of the grant
funds at the time the grants were made and the vehicles purchased satisfied all terms
of the grant and that it was his belief that the approval of ATSIC was not required if
the vehicles were to be sold. The issues squarely raised for the jury was whether
that belief was honestly held at the time the letters of 5 November and 11 November
were written. When confronted in cross-examination with the letters (particularly
100
that of 11 November) his explanation was incoherent.
The jury was entitled to disbelieve the appellant. On the evidence the verdict of the jury was open.

AB 2322–2323.

2

R v Robinson [2010] 2 Qd R 446; [2009] QCA 250.

3

Above, 459 [39], 460 [42].

4

(2006) 226 CLR 328, 355–356 [83(1)] (Kirby J).

5

(2007) 228 CLR 232.

6

AB 2332.

7

[2012] HCA 23; (2012) 288 ALR 410; (2012) 86 ALJR 713.

8

(1990) 171 CLR 207.

9

(1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ).

10

Above, 494.

11

The terms of the letters are extracted from R v Robinson [2010] 2 Qd R 446, 452 [8] and 453 [10]
and in Muir JA‟s reasons at [37].

12

See Muir JA‟s reasons at [44].

13

Transcript 516 (8 April 2011).

14

The expected payments from the appeal costs fund were supported by the evidence from the
appellant‟s former solicitor in a defamation action, Mr Douglas Spence.

15

Set out at [35] of Muir JA‟s reasons.

16

Mr Watson‟s evidence is summarised in Muir JA‟s reasons at [139] – [145].

Ex 5.

18

AB 1406.

R v Robinson [2010] 2 Qd R 446, 454 [16], Muir JA agreeing at 463 [62].

20

R v Robinson [2009] QCA 250.

21

R v Robinson [2009] QCA 250 at [6] – [10].

22

AB 683.

23

AB 686.

24

AB 436.

25

See R v Koolmatrie (1989) 52 SASR 482 at 496.

26

R v Taufahema (2007) 228 CLR 232.

27

(2007) 228 CLR 232.

28

(1986) 161 CLR 423 at 433.

29

R v Taufahema (2007) 228 CLR 232 at 258.

30

At 262.

32

At 263.

33

(1948) 77 CLR 511.

34

(1986) 161 CLR 423.

35

(1992) 173 CLR 572.

36

(1997) 186 CLR 494.

King v The Queen (1986) 161 CLR 423 at 433.

(1992) 173 CLR 572 at 590.

39

(2006) 226 CLR 328.

40

At [32].

41

[2009] QCA 250 at [29].

At [35].

43

At [22].

44

AB 2330.

45

See e.g. Commissioner of Taxation v BHP Billiton Minerals Pty Ltd (2011) 244 CLR 325 (taxation);
City of Brisbane v Commissioner of Stamps [1923] St R Qd 54 at 58; Oughtred v Inland Revenue
Commissioners [1960] AC 206 (stamp duty); Ha v State of New South Wales (1997) 189 CLR 465 at
498; Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 466 – 467; Cole v Whitfield
(1988) 165 CLR 360 at 408 (statutory construction / constitutional law); O’Dea v Allstates Leasing
System (WA) Pty Ltd (1983) 152 CLR 359 at 368; Acron Pacific Ltd v Offshore Oil NL (1985) 157
CLR 514 at 520 (contract law).

R v Robinson [2009] QCA 250 at [42].

47

(2007) 228 CLR 232 at 258 [58].

48

AB 1529.

49

AB 1529.

AB 393.

51

AB 394.

52

AB 395.

53

AB 2323.

AB 649.

55

R v Robinson [2009] QCA 250 at [16].

AB 1433.

AB 1419.

58

AB 425.

59

AB 408.

AB 479.

AB 480.

62

AB 1426.

63

AB 1433.

AB 467 – 468.

AB 689.

AB 427.

67

AB 428.

AB 478.

69

AB 509.

70

AB 530.

AB 1559.

72

AB 1649.

74

AB 1650.

75

AB 548.

76

AB 548.

AB 549.

78

AB 553.

AB 554.

80

AB 563 – 564.

81

AB 584.

82

AB 584 – 585.

83

AB 589 – 590.

84

AB 572.

86

AB 580.

87

AB 738.

88

AB 792.

89

AB 768.

91

AB 768.

92

AB 782.

93

AB 704 – 705.

AB 446.

95

AB 447 – 448.

96

AB 450.

Peters v The Queen (1998) 192 CLR 493 at 504.

98

Exhibit 38, AB 1526.

99

The submission was not developed at length in argument but counsel referred to Williams v

Commonwealth of Australia (2012) 86 ALJR 317; [2012] HCA 23.

100

See for example the evidence in cross-examination in the reasons of Muir JA at [165].

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Citations

R v Robinson [2012] QCA 309

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High Court Bulletin [2013] HCAB 5

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R v Pastor Pastor [2025] QSCPR 10

High Court Bulletin [2013] HCAB 5

Cases Cited

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Statutory Material Cited

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R v Robinson [2009] QCA 250

Pearce v The Queen [1998] HCA 57

Williams v The Commonwealth [2012] HCA 23

CITATION:	R v Robinson [2012] QCA 309
PARTIES:	R v ROBINSON, Robert Raymond Lloyd
(appellant)
FILE NO/S:	CA No 106 of 2011 DC No 806 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED ON:	13 November 2012
DELIVERED AT:	Brisbane
HEARING DATE:	13 August 2012
JUDGES:	Margaret McMurdo P and Muir JA and North J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL
WHERE NO SUBSTANTIAL MISCARRIAGE OF
JUSTICE – where, at relevant times, appellant was
a Commissioner of the Aboriginal and Torres Strait Islander
Commission (“ATSIC”) – where appellant initially charged
with two counts of contravening s 26(1) of the
Commonwealth Authorities and Companies Act (“the Act”) and convicted after trial – where appellant appealed convictions – where appeal successful – where convictions set aside and new trial ordered – where new indictment
presented charging appellant with two counts of contravening
s 26(2)(a) of the Act – where appellant applied for indictment to be permanently stayed – where application denied – where
appellant applied for certain evidence to be excluded from his
trial – where application denied – where appellant convicted
at trial of two counts of using his position as an officer of the Commonwealth dishonestly with the intention of obtaining an
advantage for himself – where ATSIC provided grants to two
service providers for the purchase of particular motor
vehicles – where the appellant wrote two letters to facilitate
the sale of these vehicles for the purpose of raising funds for
his personal legal expenses – where appellant signed these
letters as the Commissioner of ATSIC – where crown
contended that under the conditions of grant the providers were not entitled to sell the vehicles without the permission
of ATSIC – where crown submitted appellant had knowledge of this condition – where correspondence was exchanged
between the AGS, the appellant, and others with respect to
the disposal of the vehicles – where appellant submitted that
there was no impediment to the sale of the vehicles because
the conditions of grant had been “acquitted” – where
appellant submitted acquittal took place when the vehicles
were purchased and paid for – where appellant gave evidence
at trial that he did not believe the grant conditions applied to
the subject vehicles – where appellant gave evidence that
money paid to his lawyers was money which was lent to him
by one of the providers – where appellant submitted trial
judge erred in not ordering that the new indictment be stayed
as an abuse of process – where appellant submitted trial judge
erred in not excluding from evidence an agreement entered into by the then Minister for Immigration, Multicultural and Indigenous Affairs on behalf of the Commonwealth and the
Chairman of ATSIC – where appellant submits trial judge
erred in ruling at the conclusion of the prosecution case that
there was a case to answer – where appellant submitted verdict unsafe and unsatisfactory – whether trial judged erred in not staying new indictment – whether trial judge erred in not excluding agreement from evidence – whether trial judge erred in ruling there was a case to answer – whether verdict
unsafe and unsatisfactory
Aboriginal and Torres Strait Islanders Commission Act 1989 (Cth), s 7(1A), s 10(2)(f) Commonwealth Authorities and Companies Act 1997 (Cth), s 26 Criminal Code 1899 (Qld), s 668E(1) Public Service Act 1999 (Cth), s 65
Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51, cited Island Maritime Ltd v Filipowski (2006) 226 CLR 328; [2006] HCA 30, considered Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14, considered King v The Queen (1986) 161 CLR 423; [1986] HCA 59, considered M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited Parker v The Queen (1997) 186 CLR 494; [1997] HCA 15, considered Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7, considered R v Koolmatrie (1989) 52 SASR 482, cited R v Robinson [2010] 2 Qd R 446; [2009] QCA 250,
considered
R v Taufahema (2007) 228 CLR 232; [2007] HCA 11, considered R v Wilkes (1948) 77 CLR 511; [1948] HCA 22, considered Williams v Commonwealth of Australia (2012) 86 ALJR 713; [2012] HCA 23, cited
COUNSEL:	P J Callaghan SC, with T D Gardiner, for the appellant A MacSporran SC, with D Kent, for the respondent
SOLICITORS:	Creevey Russell for the appellant Director of Public Prosecutions (Commonwealth) for the respondent

“(i)	The assertion „ATSIC does not have the „„Bill of Sale” over the vehicles or any other legal encumbrance‟ is dishonest in that the grant conditions, to [the appellant‟s] knowledge, did
amount to a legal encumbrance and it was dishonest of him to falsely assert the contrary;
(ii)	The assertion that „the advertisements by the Australian Government Solicitor are illegal and total nonsense‟ was dishonest in that, to [the appellant‟s] knowledge, the
advertisements were neither of these things;
(iii)	The assertion that „Please note, the sales of these vehicles are not subject to any grant terms and conditions‟ was, to [the appellant‟s] knowledge dishonest. He was aware that
the vehicles were subject to grant terms and conditions, in
particular, condition 17.4.”

“(i)	The assertion in the second paragraph that „there are no legal
encumbrances whatsoever, the vehicles listed are not subject to any grant or conditions of grant and may be deposed of
(sic) in the normal course of business‟ was dishonest in that
[the appellant] was aware that there were legal encumbrances in the form of the grant conditions (in particular 17.4) which did apply;
(ii)	The assertion that „the Board of ATSIC gives authority to
Bidjara CDEP and Bidjara Legal Service to dispose of these
vehicles‟ was dishonest. [The appellant] knew that this statement was untrue.”

a.	before disposing of or giving security [over] any Grant Asset (other than trading stock of a commercial project) having a current market value over $5,000; and
b.	before using the proceeds from such disposal.”

“[6]	Each of the two charges against the appellant was based on a letter written by him to facilitate the sale of assets owned by entities associated with the appellant for the improper purpose of raising funds for his own legal expenses. The letters were written on 5 November and 11 November 2004 respectively. The first letter was written on the letterhead of a Commissioner of the now defunct Aboriginal and Torres Strait Islander
Commission („ATSIC‟). Both letters were signed by the
appellant as a Commissioner of ATSIC. It is not in dispute that ATSIC was a Commonwealth authority and that the appellant was an officer of that authority.
[7]	The Crown case asserted that the letters falsely stated that
ATSIC‟s General Terms and Conditions Relating to Grants („the Conditions‟) did not apply to certain motor vehicles which
had been acquired by entities associated with the appellant and
which were being sold by those entities („the vendors‟) to the
person to whom each letter was addressed. The second letter
asserted, falsely, that „the Board of ATSIC gives authority … to dispose of these vehicles‟. The Crown contended that, under the
Conditions, the entities associated with the appellant were not
permitted to sell the vehicles without ATSIC‟s permission, and
that the appellant knew that that was the case.
[8]	The letter of 5 November 2004 was in the following terms:
„Mr Stuart Mitchell
PO Box 519 Nerang Q
Attention: Stuart
Further to our telephone conversation of this morning concerning the advertisement in the Courier Mail (04.11.04) regarding the vehicles sold to you by the Bidjara CDEP Aboriginal Corporation.
These vehicles as listed below are wholly and solely the property of the Bidjara CDEP Aboriginal Corporation,
ATSIC does not have the “Bill of Sale” over the vehicles
or any other legal encumbrance.

“Count 1.	On or about the fifth day of November 2004 at Charleville in the State of Queensland, ROBERT
Commonwealth	RAYMOND LLOYD ROBINSON being an officer of a
Authorities and	Commonwealth authority, namely a Commissioner of
Companies Act	the Aboriginal and Torres Strait Islander Commission,
Section 26(2)(a)	used his position dishonestly with the intention of
directly or indirectly gaining an advantage for himself
Count 2	On or about the eleventh day of November 2004 at Charleville in the State of Queensland, ROBERT
Commonwealth	RAYMOND LLOYD ROBINSON being an officer of a
Authorities and	Commonwealth authority, namely a Commissioner of
Companies Act	the Aboriginal and Torres Strait Islander Commission,
Section 26(2)(a)	used his position dishonestly with the intention of
directly or indirectly gaining an advantage for himself”

should be. This may be a relevant factor, but as was the case in R v Taufahema,	it
does not outweigh the considerations addressed above.

A.	By notice in the Gazette of 30 May 2003, Aboriginal and Torres Strait Islander Services was established as an executive agency as from 1 July 2003.
B.	ATSIS has been given a number of functions including, delivering programs for Aboriginal and Torres Strait Islanders and providing policy advice and advocacy support to ATSIC.
C.	ATSIC was established by Section 6 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth.) (the Act).
D.	Some of the functions that ATSIC has to date carried out will from 1 July be performed by ATSIS and ATSIS will act as agent for ATSIC in relation to certain other functions of ATSIC.
E.	Certain employees of ATSIC will also be transferred to ATSIS pursuant to s.72 of the Public Service Act 1999.
F.	In order to enable these arrangements to be put into place smoothly and co-operatively, the parties have agreed to enter into this agreement which will set out both transitional arrangements and interim arrangements for the long term co- operation of both parties in relation to their functions.
…”

appellant did not know that he had dealt with a situation on the 10	,
and even if there was some basis in the evidence for inferring that, as opposed to speculating along those lines, this would be something
that has to be proved beyond reasonable doubt.”

be precise about what words were used.	He recalled the appellant saying it was
“worded wrong”.

concerned the lawfulness of the June 2003 agreement	which, it was submitted, if
unlawful was inadmissible.