R v Robinson

Case [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…

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AGLC
R v Robinson [2012] QCA 309
Case
[2012] QCA 309
Decision Date

CaseChat Overview and Summary

In the case of R v Robinson, the appellant, a former Commissioner of the Aboriginal and Torres Strait Islander Commission (ATSIC), was convicted of two counts of using his position dishonestly to obtain an advantage for himself. The convictions stemmed from the appellant's actions in facilitating the sale of motor vehicles that had been purchased with ATSIC grant funds, without obtaining the necessary consent from ATSIC. The appellant wrote two letters to aid in the sale of these vehicles, using his position to lend credibility to the transactions, which were intended to raise funds for his personal legal expenses. The High Court was tasked with determining whether the trial judge had erred in various respects, including in not staying the new indictment, excluding certain evidence, ruling there was a case to answer, and whether the verdict was unsafe and unsatisfactory.

The court examined whether the trial judge erred in not staying the new indictment as an abuse of process, excluding an agreement from evidence, or ruling that there was a case to answer. The appellant argued that his trial was fundamentally unfair due to these alleged errors. However, the High Court found that the jury was entitled to conclude that the appellant made the statements in the letters dishonestly and that it was open to them to be satisfied beyond reasonable doubt of his guilt. The court also noted that the appellant's arguments concerning the delegation of powers and the constitutionality of the agreement were not necessary to consider, as the central issue was the appellant's state of mind when writing the letters.

In conclusion, the High Court found that the jury acted reasonably in convicting the appellant and dismissed the appeal. The reasoning hinged on the jury's advantage in seeing the witnesses and hearing the evidence, which allowed them to make a reasoned decision based on the presented facts. The court did not find any substantial miscarriage of justice, and thus, the convictions were upheld.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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 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: 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 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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.

Ratio Decidendi

Legal Principle Established

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