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Ripperger v Kelly

Ripperger v Kelly

Case [2014] NSWSC 584 16 May 2014

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Supreme Court

New South Wales

Case Title: Ripperger v Kelly

Medium Neutral Citation: [2014] NSWSC 584

Hearing Date(s): 17/10/2013; 7/11/2013

Decision Date: 16 May 2014

Before: Fullerton J

Decision:
1. The summons is dismissed.
2. The plaintiff is to pay the defendant's costs of the appeal.

Catchwords: APPEAL - appeal from Local Court - corruptly offering to give an agent a benefit as inducement or reward for doing or not doing something in relation to the affairs or business of the agent's principal - adequacy of reasons in dismissing the information - whether matter should be remitted - meaning of "agent" - purporting to be an agent - meaning of "corruptly"

Legislation Cited: Crimes Act 1958 (Vic), s 175(1), s 176(2)
Crimes Act 1900 (NSW), s 249
Crimes (Appeal and Review) Act 2001 (NSW), s 59(2)(a)
Criminal Procedure Act 1986 (NSW), s 214(1)(b)

Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27
Director of Public Prosecutions (NSW) v Elias [2013] NSWSC 28
Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402
Jagdeo Singh v State of Trinidad & Tobago [2006] 1 WLR 146
Jamieson v R [1988] VR 879; 34 A Crim R 308
R v Gallagher [1986] VR 219
R v Harrington (English Court of Appeal (Criminal Division), 28 September 2000, unrep)
Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449

Category: Principal judgment

Parties: Bernhard Ripperger (Plaintiff)
Jason Michael Kelly (Defendant)

Representation

- Counsel: Counsel:
M Higgins/B Baker (Plaintiff)
B Pierce (Defendant)

- Solicitors: Solicitors:
Crown Solicitor's Office (Plaintiff)

File Number(s): 2013/182189

Decision Under Appeal

- Court / Tribunal: Local Court

- Before: Stevenson LCM

- Court File Number(s): 2013/526

JUDGMENT

HER HONOUR: On 12 September 2012 the defendant, Jason Michael Kelly, was served with a Court Attendance Notice alleging that on 8 March 2008 he committed an offence contrary to s 249B(2)(a) of the Crimes Act 1900 (NSW).
The particulars of the offence alleged that the defendant gave his barrister, John Hart, as agent, the sum of $12,000 to pay to a Crown prosecutor, Gary Corr, as Hart's principal, so that a prosecution of the defendant and two others (Christopher Trinder and Jeffrey Nankivell) would not proceed.
Omitting parts of s 249B of the Crimes Act which have no application to this case, the section is in the following terms:
249B Corrupt Commission or Rewards
(2) If any person corruptly gives or offers to give to any agent, or to any other person with the consent or at the request of any agent, any benefit:
(a) as an inducement or reward for or otherwise on account of the agent's:
(i) doing or not doing something, or having done or not having done something ...
(ii) ...
in relation to the affairs or business of the agent's principal ...
(b) ...
the first mentioned person is liable to imprisonment for 7 years.
Section 249A defines "agent" to include:

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Ripperger v Kelly

Details

AGLC: Ripperger v Kelly [2014] NSWSC 584
Case: [2014] NSWSC 584
Decision Date: 16 May 2014

CaseChat Overview and Summary

The case of Ripperger v Kelly involved an appeal from the Local Court concerning allegations of corruptly offering an agent a benefit as an inducement or reward for performing or not performing actions related to the affairs or business of the agent's principal. The court was asked to determine whether the dismissal of the information was adequately reasoned and if the matter should be remitted. Additionally, the case examined the definitions and implications of "agent" and "corruptly" in the context of the charges brought against the appellant.

The central legal issues the court needed to address were whether the appellant's actions constituted the offence as defined and whether the Local Court provided sufficient reasoning in dismissing the charges. The court had to interpret the statutory terms "agent" and "corruptly" to ascertain whether the appellant's conduct fell within the scope of the criminal provision. The adequacy of the reasons given by the Local Court in dismissing the information was also scrutinized to ensure that the decision-making process was transparent and justifiable.

The court found that the Local Court's reasons for dismissing the information were inadequate, lacking the necessary detail and analysis to support the decision. Consequently, the court held that the matter should be remitted to the Local Court for further consideration. The court clarified the meanings of "agent" and "corruptly" in the context of the legislation, confirming that the appellant's conduct could be considered within the scope of the offence if the appellant was acting in a purported agency capacity. The court's ruling emphasized the importance of clear and thorough reasoning in criminal cases and provided guidance on the interpretation of the statutory terms in question.

Orders