Slipper v Turner
[2015] ACTSC 27
•26 February 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Slipper v Turner |
Citation: | [2015] ACTSC 27 |
Hearing Dates: | 17, 18 December 2014 |
DecisionDate: | 26 February 2015 |
Before: | Burns J |
Decision: | The appeals are upheld and the convictions and penalties imposed by the Magistrate are set aside. Verdicts of not guilty are substituted with respect to each charge. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Offences Against Government – Dishonesty Offences – dishonestly cause a risk of loss to a person which is a Commonwealth entity knowing or believing that there is a substantial risk of the loss occurring. APPEAL – Appeals From Magistrates – appeal upheld – convictions and penalties set aside – verdicts of not guilty entered. |
Legislation Cited: | Criminal Code 1995 (Cth) s 135.1 (5) Magistrates Court Act1930 (ACT), s 214 |
Cases Cited: | Chamberlain v R (No 2) (1984) 153 CLR 521 Dyers v R [2002] HCA 45 |
Parties: | Peter Neil Slipper (Appellant) Michael Patrick Turner (Respondent) |
Representation: | Counsel Ms K Weston-Scheuber (Appellant) Ms W Abraham QC (Respondent) |
| Solicitors Harris Wake Solicitors (Appellant) Commonwealth Director of Public Prosecutions (Respondent) | |
File Number: | SCA 70 of 2014 |
Decision under appeal: | Court: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 28 July 2014 Case Title: Michael Patrick Turner v Peter Neil Slipper Court File Numbers: CC13/40001; CC13/40002; CC13/40003 |
Burns J:
On 28 July 2014 the appellant was convicted by a Magistrate of the following offences:
(a)that on 20 January 2010 in the Australian Capital Territory he dishonestly caused a risk of loss to a person, namely the Department of Finance and Deregulation, which is a Commonwealth entity, knowing or believing that there was a substantial risk of the loss occurring (CC13/40001);
(b)that on 12 April 2010 at Canberra in the Australian Capital Territory he dishonestly caused a risk of loss to a person, namely the Department of Finance and Deregulation, which is a Commonwealth entity, knowing or believing that there was a substantial risk of the loss occurring (CC13/40002); and
(c)that on 27 June 2010 at Canberra in the Australian Capital Territory he dishonestly caused a risk of loss to a person, namely the Department of Finance and Deregulation, which is a Commonwealth entity, knowing or believing that there was a substantial risk of the loss occurring (CC13/40003).
Each of these offences is contrary to s 135.1 (5) of the Criminal Code 1995 (Cth), which is in the following terms:
(5)A person is guilty of an offence if:
(a) the person dishonestly causes a loss, or dishonestly causes a risk of loss, to another person; and
(b) the first-mentioned person knows or believes that the loss will occur or that there is a substantial risk of the loss occurring; and
(c)the other person is a Commonwealth entity.
Penalty: Imprisonment for 5 years.
The appellant now appeals from these convictions on the following grounds:
1. The Magistrate erred in finding that the evidence established beyond reasonable doubt that the appellant had no entitlement to claim for travel on Parliamentary business, and therefore that he caused a substantial risk of loss to the Commonwealth;
2. The Magistrate erred in assessing the appellant’s guilt by first determining the issue of ‘dishonesty’ and then applying that finding to the separate and anterior element of whether the appellant had caused a substantial risk of loss to the Commonwealth;
3. The Magistrate erred in finding that the evidence established beyond reasonable doubt that the appellant was travelling for ‘private purposes’;
4. The Magistrate erred in finding that if the appellant had personal reasons for travelling to particular destinations, he could not be travelling ‘on Parliamentary business’;
5. The Magistrate erred in finding that the evidence established beyond reasonable doubt that the appellant knew or believed there was a substantial risk of loss to the Commonwealth;
6. The Magistrate failed to have regard to evidence as to procedures in place for repaying monies claimed in assessing whether there was a substantial risk of loss to the Commonwealth;
7. The Magistrate erred in refusing to allow cross-examination of the witness Greg Miles as to other instances of travel where the Department of Finance was unable to advise on entitlement, which was relevant to the issue of risk of loss, and also the appellant’s knowledge or belief as to risk of loss;
8. The Magistrate erred in finding that the evidence established beyond reasonable doubt that the appellant acted dishonestly in filling out Cabcharge vouchers;
9. The Magistrate drew inferences of dishonesty on evidence as to how the Cabcharge vouchers were completed that were not available on the evidence;
10. The Magistrate failed to consider or to exclude reasonable hypotheses consistent with innocence in relation to the way in which Cabcharge vouchers were filled out;
11. The Magistrate failed to have regard to the fact that the 19 April 2010 charge incorporated a final leg of travel to which the indicia of dishonesty found by her Honour did not apply;
12. The Magistrate failed to have regard to the fact that the matters she considered indicia of dishonesty applied, in respect of the 27 June 2010 charge, to legs of travel for which no lack of entitlement was alleged and which were not included within the charge;
13. The verdicts of the Magistrate were unsafe and unsatisfactory.
Despite this formidable array of grounds, in my opinion the outcome of this appeal turns on the answer to one question: was the Magistrate entitled to find beyond a reasonable doubt that the appellant undertook each of the three journeys the subject of the charges for purely personal reasons? For the reasons which I will give, I am satisfied that she was not so entitled, and I am satisfied that the convictions recorded by the Magistrate were unsafe and unsatisfactory. I will therefore concentrate upon this aspect of the appeal.
The evidence in the Magistrates Court
The evidence with respect to the charges was largely unchallenged by the appellant. The appellant declined to testify in the Magistrates Court, as was his right. Two character witnesses gave evidence on his behalf.
The appellant was, at the time of the events giving rise to these charges, a Member of the House of Representatives (MHR) of the Commonwealth Parliament. Each of the three charges is based upon the appellant’s use of Cabcharge dockets provided to him to pay for travel at public expense in his role as a MHR. The prosecution case was that the appellant, on each of the three occasions referred to in the charges, used the Cabcharge vouchers to pay for purely personal travel, knowing that he was not entitled to use public funds to pay for such travel.
The first charge
With respect to the first charge (CC13/40001), on 20 January 2010 at 12:22 pm the appellant and his staffer, Timothy Knapp, were collected by a hire car at Parliament House. The hire car was driven by Gary Green. The appellant asked Mr Green to drive them “to the wineries”. They travelled to the Murrumbateman area in New South Wales and went first to the Murrumbateman Winery, which was closed. They then travelled to the Doonkuna Estate Winery, located at 3182 Barton Highway, Murrumbateman, arriving at 1:07 pm and departing 19 minutes later. They then travelled to Clonakilla Wines, located at 3 Crisps Lane, Murrumbateman, arriving at 1:33 pm and leaving 15 minutes later. They then travelled to Yass Valley Wines located at 5 Crisps Lane, Murrumbateman, arriving at 1:47 pm and leaving 18 minutes later. They then travelled to Shaw Vineyard Estate, located at 34 Isabel Drive, Murrumbateman, arriving at 2:19 pm and departing 17 minutes later. They then travelled to Poachers Pantry, Wily Trout Vineyard, located at 43 Nanima Road, Hall, NSW, arriving at 3:23 pm and leaving 17 minutes later. They then travelled to Gallagher Wines, located at 2770 Dog Trap Road, Murrumbateman, arriving at 3:54 pm and departing 27 minutes later. Finally, they travelled to Hughes in the Australian Capital Territory, where the hiring of the car ended.
The total cost of that travel was $337.00, which the appellant paid for by completing four Cabcharge vouchers as follows:
(a)voucher 3467710 – “Parliament House to Suburbs”, $87.00;
(b)voucher 3467711 – “Suburbs to Parliament House”, $80.00;
(c)voucher 3467712 – “Suburbs to Suburbs”, $75.00;
(d)voucher 3467713 – “Suburbs to Suburbs”, $95.00.
The following telephone calls were made from or to the appellant’s mobile phone during the course of this journey:
(a)at 12:57 pm an SMS was sent from the appellant’s phone and shortly thereafter it received an SMS;
(b)at 2:13 pm a phone call was made from the appellant’s phone;
(c)at 2:18 pm an SMS was sent from the appellant’s phone;
(d)at 2:39 pm a phone call was made from the appellant’s phone;
(e)at 2:42 pm an SMS was received on the appellant’s phone;
(f)at 3:06 pm a phone call was made from the appellant’s phone;
(g)at 3:18 pm a phone call was made from the appellant’s phone;
(h)at 3:19 pm a phone call was made from the appellant’s phone to Gallagher Wines;
(i)at 3:19 pm the appellant’s phone received two SMS messages.
There was no evidence of the contents of these calls or SMS messages, to whom the calls were made (other than the call to Gallagher Wines at 3:19 pm), from whom calls were received or from whom SMS messages were received.
Mr Green gave evidence that this travel was charged at an hourly rate, being $75.00 per hour. It was the appellant who requested to use four Cabcharge vouchers, explaining “It just means that processing is a lot easier”. The appellant completed the details on each of the vouchers personally. Mr Green gave evidence that the hire car he was driving had facilities to electronically process payment for travel. There was also uncontested evidence that the appellant had been provided with a Cabcharge Card, which would have allowed him to pay electronically for the journey. It is interesting to note, and of some significance, that if payment for the journey had been processed electronically, limited information would have been available to the Department of Finance and Deregulation (now simply the Department of Finance) (the Department) concerning that journey. A number of codes for the commencement point and a destination were available for input at the time of electronic payment, none of which would have provided accurate information to the Department about the nature of the journey undertaken, or the stopping points during that journey. Mr Green gave evidence that he usually carried Cabcharge vouchers in the hire car, and he accepted that he may have given the appellant the vouchers which he completed on that day. He said it was not unusual for a client to make a single payment, or multiple payments, with respect to multiple trips on the same day, or even over a number of days.
There are obvious limitations to the evidence given by Mr Green concerning the travel on 20 January 2010. He said that the first direction given by the appellant to him was to go to the “wineries”. After he gave this evidence, there was no attempt by the prosecution to ascertain from him whether he was given any further directions either at that time or subsequently. In cross-examination he said that he went where he was directed by the appellant. He said that at one time he suggested that they attend Ken Helm’s Winery, after which, he believed there was a conversation in which he was asked whether he could suggest any other wineries. The evidence, in my opinion, is quite equivocal on the question of whether the wineries attended were chosen at random by Mr Green, or whether the accused directed attendance at one or more particular winery. It would, of course, be unlikely that the appellant was attending one of the wineries visited that day for a meeting with a third party if the destinations were chosen at random by Mr Green. Mr Green also gave evidence that he heard conversations between the appellant and his staffer “about work” during the journey, but he could not recall what was said. He also agreed that he was not with the appellant for the entire time of the journey that day, meaning that he could not say what had occurred when the appellant was at a particular winery or was otherwise out of his sight.
Mr Green also gave evidence that, as the day went on, he believed that the appellant and his companion were increasingly intoxicated, culminating in them being, in his opinion, moderately affected by alcohol. No objection was taken to this evidence on the basis that Mr Green was not appropriately qualified to give such an opinion, but no attempt was made by the prosecution to demonstrate Mr Green’s experience or qualifications in assessing the degree to which a person was affected by alcohol, which is an issue relevant to the weight to be given to his opinion. It was, nevertheless, open to the Magistrate to find that the appellant had consumed alcohol during this journey.
The second charge
The second charge (CC13/40002) relates to travel undertaken on 19 April 2010, again with Mr Knapp. A hire car driven by Berris Crossin took the appellant and Mr Knapp on the following journey:
(a)the appellant was collected from Hughes, ACT at 10:28 am and taken to Green Square, Kingston, ACT, arriving at 10:48 am and leaving six minutes later;
(b)he then returned to Hughes, travelling past, but not stopping at, Parliament House, arriving at Hughes at 11:11 am;
(c)he then travelled to the Chancery of the Holy See in Red Hill, ACT, arriving at 11:58 am and remaining there until 1:31 pm;
(d)he then returned to Hughes, arriving at 1:39 pm and departing again 19 minutes later;
(e)he then travelled past Parliament House without stopping and going on to Jeir Creek Winery at 122 Bluebell Lane, via Gooda Creek Road, Murrumbateman, arriving at 2:46 pm and departing 17 minutes later;
(f)he then travelled to the Dionysus Winery at 1 Patemans Lane, Murrumbateman, arriving at 3:18 pm and remaining for only two minutes;
(g)he then travelled to Doonkuna Estate Winery, arriving at 3:31 pm and leaving 29 minutes later;
(h)he then travelled to Clonakilla Winery, arriving at 4:07 pm and leaving 13 minutes later;
(i)he then travelled to Poachers Pantry, Wily Trout Vineyard, arriving at 4:43 pm and leaving 20 minutes later;
(j)he then returned to Canberra, arriving at Parliament House at 5:38 pm, before departing at 6:13 pm and arriving at Wooley Street, Dickson, ACT at 6:28 pm.
The second charge only relates to travel after the appellant left the Chancery of the Holy See.
The total cost of travel for the whole day was $495.00, but the portion which is relied upon by the prosecution amounted to $375.00. The appellant paid the hire car charge for the full day of travel by completing five Cabcharge vouchers as follows:
(a)voucher 9273920 – “Suburbs to Suburbs”, $95.00;
(b)voucher 9273921 – “Suburbs to Parliament House”, $120.00;
(c)voucher 9273922 – “Parliament House to Suburbs”, $110.00;
(d)voucher 9273923 – “Suburbs to Suburbs”, $95.00;
(e)voucher 9273924 – “Suburbs to Suburbs”, $75.00.
Telephone records show that a number of communications occurred utilising the appellant’s mobile phone during the journey after the hire car left the Chancery of the Holy See:
(a)at 2:11 pm a call was made from the appellant’s mobile phone;
(b)at 2:34 pm a call was made from the appellant’s mobile phone;
(c)at 2:50 pm the appellant’s phone received an SMS during the period he was at Jeir Creek Winery;
(d)at 2:50 pm an SMS was sent from the appellant’s phone and it received a further SMS during the period he was at Jeir Creek Winery;
(e)at 3:58 pm a phone call was made from the appellant’s mobile phone during the period he was at Doonkuna Estate Winery;
(f)at 5:05 pm the appellant’s mobile phone received an SMS, and then an SMS was sent from his phone.
Again, there was no evidence of the content of these calls or SMS messages, to whom calls were made or from whom SMS messages were received.
Bank records reveal that at 3:31 pm, a purchase in the amount of $34.50 was made using the appellant’s credit card at Doonkuna Estate Winery. At 4:58 pm, a purchase was made using Mr Knapp’s savings account at Poachers Pantry in the sum of $12.88.
Ms Crossin testified that she had a standing arrangement with the appellant that he would pay for each leg of travel for the day “in one hit”. She said that the first time she drove him he paid electronically, but thereafter paid by voucher. She said that that it was common for the appellant to keep a “running tab” and pay using a number of vouchers at the end of a day, or even at the end of a number of days. She said that she would just give him the total cost of travel and he would decide on the number of vouchers.
Ms Crossin said that the appellant was with his staffer “Tim”, and the appellant asked her to take them to Murrumbateman “to the wineries”. She said that she was not given any directions about which wineries to attend. Ms Crossin, however, accepted that some aspects of her recollection may be faulty. For example, in her evidence in chief she said that she believed that she returned the appellant to his home in Hughes after taking him to the wineries, but in cross-examination she accepted that she may have dropped him at Parliament house that day, and later picked him up again and driven him to Dickson. Ms Crossin prepared driver log sheets as part of her employment in which she set out, for each day, each time she was hired. These log sheets were prepared using hand written records, which were themselves created at or around the time of travel. Whilst those hand written records were not produced as they had been destroyed, they were apparently transferred into a typed spreadsheet which was tendered at trial. Ms Crossin accepted that she had made a number of errors in entering information onto the driver log sheet on other occasions. The information on the typed driver log sheet for 19 April 2010 provides little information, simply describing the destination as “Murrumbateman/wait/return”. It is clear that the driver log sheet provided no assistance to Ms Crossin in recollecting specific events of 19 April 2010, such as conversations between herself and the appellant. As will become clear in considering the third charge, there are reasons to doubt the accuracy of her memory. Ultimately, however, for the reasons that follow, this is not a crucial issue.
The third charge
The third charge (CC13/40003) relates to travel undertaken on 27 June 2010, when the appellant and a staffer, Inge-Jane Hall (also the wife of the appellant), used the hire car driven by Ms Crossin for the following journey:
(a)the appellant was collected from outside the Canberra Centre at approximately 12:35 pm and travelled to Poachers Pantry, Wily Trout Vineyard, arriving at 12:51 pm;
(b)the appellant left Poachers Pantry some time after 2:34 pm, travelling to Shaw Vineyard Estate, arriving at 3:11 pm and leaving 12 minutes later;
(c)he then travelled to Hughes where the hire car waited for approximately 30 minutes before driving past Parliament House and arriving at Manuka, ACT at 4:44 pm;
(d)he subsequently travelled to Parliament House at 5:30 pm before returning to Manuka at 5:38 pm;
(e)he then travelled to Canberra airport, arriving at 6:15 pm.
The cost of this travel was $362.00 which the appellant paid by completing five Cabcharge vouchers as follows:
(a)voucher 3367002 – “Suburbs to Airport”, $85.00;
(b)voucher 3367003 – “Suburbs to Parliament House”, $45.00;
(c)voucher 3367004 – “Suburbs to Suburbs”, $75.00;
(d)voucher 3367005 – “Suburbs to Suburbs”, $85.00;
(e)voucher 3367006 – “City to Suburbs”, $72.00.
Telephone records show that the following calls were made from or to the appellant’s mobile phone during the course of that journey:
(a)a call was made from the appellant’s phone just after he was collected by Ms Crossin at 12 pm;
(b)a call was made from the appellant’s phone at 2:18 pm while the appellant was at Poacher’s Pantry;
(c)a call was made from the appellant’s phone at 3:28 pm while the appellant was travelling from Shaw Vineyard Estate to Hughes;
(d)two further calls were made from the appellant’s phone during the same journey at about 3:30 pm.
Again, there was no evidence of the content of these calls or to whom they were made.
Bank records show a payment from the appellant’s account at 2:29 pm at Poachers Pantry in the sum of $71.65.
Ms Crossin gave evidence that the person who accompanied the appellant on this journey was his staffer “Tim”. She was adamant that the person accompanying the appellant that day was a male. It was, of course, the prosecution case that the appellant was accompanied by a female, Ms Hall. Ms Crossin’s driver log sheet for 27 June 2010 also provides very limited information that would have assisted her in remembering what occurred on that day, recording only the appellant’s name and the pickup and destination points. Ms Crossin did not recall any conversations with the appellant on that day and as such was unable to say what directions, if any, the appellant may have given her. She further said that she had first spoken to police about these events at the end of April 2012, almost two years after the journey took place.
Ms Crossin said that there were 10 codes that could be inputted to describe travel where the client paid electronically. She gave the following evidence concerning those codes, which demonstrates the limited information provided to the Department when payments for journeys was processed electronically:
I’ll start from the beginning. (1) is home; (2) is work; (3) I can’t remember what three is; (4) is hotel; (5) is Suburbs; (6) is restaurants; (7) is airport; (8) I can’t remember what 8 is, can’t remember what 9 is, then the hospital is zero.
From this evidence it appears that there was no appropriate electronic code to accurately describe the places the appellant visited (leaving aside the possibility that the codes Ms Crossin could not remember may have been apt). Certainly, the prosecution did not lead evidence to the contrary. The appellant, of course, in completing the vouchers manually was not constrained to use one of the descriptions applicable to an electronic code, but the evidence of Ms Crossin demonstrates that his use of the term “suburbs” in completing a number of vouchers on these and other occasions was consistent with him using descriptions that could have been used if the journeys had been paid for electronically.
The appellant’s entitlements
It was common ground between the parties that the appellant’s entitlement to travel at public expense was governed by Remuneration Tribunal Determination 18 of 2006, (the Determination), which provides with respect to “car transport”:
3.1 A senator or member shall be provided with car transport at government expense when travelling on parliamentary business, but not including party business (other than meetings of a parliamentary political party, or of its executive, or of its committees, and the national conference of a political party, of which he or she is a member):
(a) for direct travel between his or her home, electorate office or place of business and the nearest airport or railway station;
(b) in Canberra and locations within a 30 kilometre radius of Parliament House;
(c) in and between other capital cities and regional centres, except within the city in which a senator or member resides or has an electorate office; and
(d) on visits in the course of parliamentary committee business.
The prosecution case with respect to each of the three journeys in question was that the appellant was not travelling on parliamentary business. The prosecution did not allege that he travelled outside his entitlement because of any breach of clause 3.1 (b).
The Determination does not provide any guidance as to what constitutes “parliamentary business” for the purposes of clause 3.1. Nor, as I understand it, does it attempt to defined the term “regional centres”. Evidence was given by Mr Greg Miles, the Assistant Secretary in the Ministerial and Parliamentary Services Division of the Department as to how the entitlements granted by the Determination were administered:
Now, it’s the case, isn’t it that if a Member of Parliament claims entitlement for travelling on parliamentary business and claims travel for that, they do not generally provide any information to MaPS (Ministerial and Parliamentary Services) about what they are doing on that occasion? ... That’s correct.
And there is not a requirement of a Member of Parliament to provide that information? ... No, there is not.
In 2007 the appellant received a copy of the Senators and Members Entitlements Handbook 2007, which stated concerning the use of chauffeured hire cars:
Private chauffeured hire cars can be booked through COMCAR. COMCAR has established a national panel of chauffeur-driven hire cars and executive taxi contractors that meet particular service standards for use in lieu of COMCAR – or directly from a hire car company offering reasonable commercial rates. At the conclusion of travel in a privately owned chauffeured hire car, the passenger should sign the contractor’s travel docket detailing the kilometres, time and cost of the trip and ensure that these details are forwarded to Ministerial and Parliamentary Services.
I observe that the Handbook does not place a requirement on a MHR to provide details of the locations where the hiring begins and ends, suggesting that this information was not considered relevant or important to the process of payment for such travel. The Handbook requires the same information with respect to taxi hire.
Mr Miles gave the following evidence concerning the Department’s approach to the interpretation of the term “parliamentary business” in the Determination:
Now, the term Parliamentary business is not defined. Well, I’ll ask you this first. You’re familiar, I assume, in your role with the Department of Finance over the last – did you say eight years? ---In this particular role for about eight years, yes.
Yes. With the relevant legislation that establishes parliamentary entitlements? ---Yes.
And there is no definition of parliamentary business in the legislation, is there? ---No, there is not.
Or any other document? ---No.
And it’s not defined in the Senators and Members’ Handbook, is it? ---No.
And it’s in fact left to members to determine whether or not they are travelling on parliamentary business, isn’t it? ---That’s correct.
So, essentially, Members are required to self-assess whether or not travel is on parliamentary business? ---That’s correct.
Or, indeed electorate business? ---Yes.
Mr Miles testified that he could not say whether MHRs or Senators routinely travelled to restaurants in Canberra at public expense because of the lack of detail provided about their travel. He also agreed that in 2010, 75 percent of the appellant’s Cabcharge transactions were completed by manual vouchers rather than electronically, and that the appellant was not obliged to complete the transactions electronically. With regard to the possibility that the size of a particular Cabcharge transaction could indicate to those processing it that the travel was outside a MHR’s entitlement, Mr Miles said:
The amount of money that a person pays for a trip is not itself indicative of whether or not they’re entitled to claim for travel for an authorised purpose, is it? ---No.
So for example, a large amount of money recorded in one transaction is not itself an indication to the Department of Finance, a warning sign if you like, that this may not be within entitlement? ---Well, I think if it was a very large sum of money it might trigger some questioning but - - -
If we’re talking thousands of dollars perhaps? ---Yes.
But an amount perhaps of two, three, four hundred dollars would not itself arouse suspicion? ---No.
Nor would the location of travel in and of itself raise concern in terms of whether or not travel was for an authorised purpose, would it? ---It may because there are restrictions placed on travel in Canberra and its Canberra and 30 kilometres from Parliament House.
So in terms of being within a particular locational limit or something falling within a requirement that travel be within a certain zone, that might cause a problem but other than that, in terms of what the person was doing or whether they were conducting authorised business or parliamentary business or electorate business on that day, the location of travel - - -? ---No.
- - - is not an indication to the Department of Finance as to what they might be doing there? ---No, that’s correct.
So if, for example – I will ask you this first: are you aware that sometimes members will travel on a trip what’s referred to as “as directed”? ---Yes, that description is sometimes provided, yes.
So they might use a hire car driver and then drive over a period of perhaps a couple of hours, making a number of different stops? ---That’s correct.
If the Cabcharge card is processed electronically for that journey, that voucher or that receipt from that transaction will eventually make its way to the Department of Finance? ---Yes.
That will indicate a pick-up location? ---Yes.
And a drop-off location? ---That’s correct.
And that’s the only information that will be recorded on it? ---Yes.
So if the Department of Finance received a receipt that indicated a person had been picked up from Parliament House and dropped off at Hughes then there would be nothing about that receipt to indicate or cause suspicion to the Department of Finance, would there? ---No, other than if there’d been – it’s one of those things wherein just a general review if the circumstances were described as from this point to that point and the information showed that 500 kilometres had been travelled, we would probably ask a question.
If the answer came back that the travel was on parliamentary business then no further inquiry would be made? ---Yes.
Mr Miles agreed that a MHR or Senator travelling from Parliament House to their home would be entitled to car transport and they would also be entitled to claim for that transport, notwithstanding that they stopped at a restaurant during the journey. Significantly, Mr Miles gave the following evidence concerning travel by MHRs or Senators with members of their staff:
Well, if a Member of Parliament travels for the purpose of having a meeting with a member of staff, to discuss matters occurring in Parliament, or that might occur in Parliament, that could be claimed as Parliamentary business could it not?... Well, as you said before it’d be a matter for the Member to determine.
The Magistrate’s reasons
After setting out the facts, which were largely not the subject of dispute, the Magistrate examined the content of the vouchers completed by the appellant on each of the three journeys the subject of the charges “in order to ascertain whether, in whatever order they were, they might be seen to honestly represent the travel which was undertaken on the relevant occasions”. Her Honour then compared the description of travel on the vouchers with the travel actually undertaken during each of those journeys. She considered it “implausible” that trips to wineries in rural locations could be described as a journey to the “suburbs”. As it is a matter of some significance, I will set out her Honour’s reasoning on this issue in full:
The first is whether, even assuming this to be the defendant’s usual practice, trips to wineries in rural locations might in anyone’s honest view be said to be reflected by recording a location of suburbs. This is implausible. There was nothing to prevent the defendant from using a different descriptor, and indeed, in the bundle tendered in relation to the [tendency] application, on occasions he described travel from Buderim and Brisbane, as well as the more generic Suburbs.
The Magistrate concluded that the appellant intentionally misrepresented the travel that he undertook on each of the three days in the vouchers he filled out. She then concluded, correctly in my opinion, that there was no limitation on the definition of travelling on parliamentary business which required it to be exclusive of all other purposes, although the mere fact that an incidental work issue may arise during a trip for personal reasons was not sufficient to convert that travel into travel for parliamentary business. Her Honour then said:
A review of the travel undertaken shows a fairly meandering trip to a number of wineries on the first and second occasions with only short stays at each and a longer period at one particular winery on the third occasion but associated with a short visit to another nearby winery thereafter.
The times spent on each occasion are consistent with either tastings, or in relation to the longer stay at Poachers Pantry, Wylie Trout on the third occasion with having lunch. The fact that on the first occasion the defendant apparently showed signs of having consumed alcohol, as observed by Mr Green, is consistent with attending the wineries for the purpose of tasting wine. The fact that on the second occasion the defendant made a purchase, most likely a bottle of sparkling wine, according to the price paid at Gallagher’s Wines, is consistent with attending the wineries for the purpose of purchasing wine.
The timing of the attendance at... the Poachers Pantry, Wylie Trout Winery, on the third occasion along with the time spent and the invoice paid are consistent with attending to have lunch. The subsequent short attendance at another winery suggests attendance for wine tasting.
Whilst this characterisation of the trip strongly suggests that the defendant attended the wineries on each of these three occasions for personal reasons, in the absence of anything further no inference to that effect could be drawn. However, the prosecution also points to the defendant’s dishonesty in completion of the manual Cabcharge vouchers.
The Magistrate considered that it was unnecessary for her to attempt to define the meaning of “parliamentary business” for the purposes of the Determination, as the parties had agreed that if the purpose of travel was purely personal then the question of what amounted to parliamentary business did not arise. Her Honour also correctly noted that it was not for the appellant to prove that he was travelling within his entitlement, but that the onus fell on the prosecution to establish beyond reasonable doubt that he was not.
The crux of the Magistrate’s decision is found under the heading “Consideration”. Due to the importance of this material, I will set it out in full below:
The prosecution and defence provided slightly different interpretations as to how section 135.1 (5) should be applied. I am satisfied that the analysis of the elements provided by the defendant correctly reflects the way in which this section should be applied. That is, in order to make out the charges the prosecution must establish that the defendant engaged in conduct, being a physical element and that he intended to do so, that being a [fault] element. The prosecution is also required to establish that the defendant’s conduct in causing a substantial risk of loss was dishonest, according to the standards of ordinary people and that the defendant knew it was.
The prosecution is further required to establish that the defendant’s conduct, in fact, caused a substantial risk of loss to another person, being the physical element and that he knew or believed that it would cause a substantial risk of loss to another person, that knowledge or belief being a fault element. There was agreement that the relevant person is a Commonwealth entity and that the relevant Commonwealth entity in this case is the Department of Finance and Regulation (sic).
I am satisfied beyond reasonable doubt that the defendant was dishonest in completing the Cabcharge vouchers on each of the three days in question. The dishonesty was him misrepresenting where he had been on that day. In particular, by purporting to indicate various attendances at Parliament House which did not occur. He was also dishonest in recording that he had attended at various suburbs and not appropriately generically described in that way. That he did so may well have been consistent with his usual practice but it was dishonest on this occasion.
I am further satisfied that there can only have been one reason for the defendant to be dishonest in this way and that was to misrepresent what he had actually been doing in order to ensure payment by the Department. Had he been travelling on parliamentary business or otherwise within entitlement there would have been no need to misrepresent his movements. From this, it can be inferred that he was not travelling within entitlement and that he knew he was not travelling within entitlement.
That being so, he must have known or believed that there was a substantial risk of loss to the department, the risk being that a payment would be made and indeed was made on his behalf in respect of travel for which he had no entitlement. I therefore find the charges proved.
It is apposite at this point to make some comments about the reasoning revealed in the above extract. First, the Magistrate identifies the relevant dishonesty for each of the offences as the appellant intentionally completing each of the Cabcharge vouchers with misleading information, in the sense that the information provided on the face of the vouchers did not correspond with the journeys actually taken. This was an error. The relevant dishonesty alleged by the prosecution was claiming payment for travel in circumstances where he had no entitlement to travel at public expense, when he knew that he had no entitlement. In Peters v R (1998) 192 CLR 493 Toohey and Gaudron JJ expressed the proper approach to a charge alleging dishonesty at [18]:
In a case in which it is necessary for a jury to decide whether an act is dishonest, the proper course is for the trial judge to identify the knowledge, belief or intent which is said to render that act dishonest and to instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, the act was dishonest.
The conduct of the appellant, identified by the prosecution as causing a risk of loss to the Department, was the provision by him to the hire car operators of the various Cabcharge vouchers for the journeys he undertook on each of the three relevant occasions. There is no doubt that the appellant was aware that in the ordinary course of events, the Department would pay the service provider the amounts referred to on each of the vouchers. It was, indeed, his intention that the Department do so. If the journeys the appellant undertook on those three occasions were journeys outside of his entitlement to travel at public expense, and he was aware of that fact, his conduct in completing and providing Cabcharge vouchers to the hire car drivers which he knew would be paid by the Department was clearly dishonest. A finding that the details completed on the various Cabcharge vouchers were false, in the sense of not accurately reflecting the journeys undertaken on those days, may have been evidence that the appellant engaged in the relevant dishonest conduct, but it was not itself the relevant dishonest conduct.
Secondly, the Magistrate found that the appellant was dishonest in recording on a number of the vouchers that he had attended “suburbs” when the locations he attended were “far from suburban”. She acknowledged that this was consistent with his usual practice, but then went on to say “but it was dishonest on this occasion”. Regrettably, her Honour does not explain why she determined that this conduct was, to her satisfaction, dishonest on this occasion when there was no suggestion that the same conduct had not been dishonest on other occasions.
The process of reasoning engaged in by the Magistrate as revealed in the above extract proceeded as follows:
(a)Step 1: the appellant dishonestly completed the vouchers by misrepresenting his movements;
(b)Step 2: he did so to ensure payment by the Department;
(c)Step 3: if he had been travelling on parliamentary business there would have been no need to misrepresent his movements;
(d)Step 4: therefore, he must not have been travelling on parliamentary business, and he knew that he was not travelling on parliamentary business.
Before I examine these propositions, it is appropriate to consider the nature of the present appeal and the law applicable to it.
The Nature of this Appeal
This is an appeal under Part 3.10 of the Magistrates Court Act1930 (ACT). Such an appeal is by way of rehearing in which this Court must have regard to the evidence given in the proceedings in the Magistrates Court and has power to draw inferences of fact based upon that evidence: s 214 Magistrates Court Act. In Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 at [78], Refshauge J described such an appeal in the following terms:
Appeal by way of rehearing is also one where the appeal court must determine whether the decision of the body from which the appeal is taken is wrong, by that body falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. Ordinarily, however, facts found based on the assessment of witnesses will not lightly be overturned. The appeal court usually has power to receive further evidence, though this is ordinarily subject to some restrictions. The appeal court may also draw inferences itself from primary facts found by the body from which the appeal is taken. The decision, however, is not restricted to making the decision that should have been made by the body from which the appeal is taken but in determining it the appeal court must have regard to the circumstances which exist at the time of the appeal and by making its own decision on these circumstances.
In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 the High Court (Gleeson CJ, Gummow and Kirby JJ) said at [25], regarding such an appeal:
… the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. In Warren v Coombes, the majority of this Court reiterated the rule that:
“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, having reached its own conclusion, will not shrink from giving effect to it.”
(Citations omitted)
Particular principles apply in appeals where it is alleged that a verdict is unsafe or unsatisfactory. In M v R [1994] HCA 63; (1994) 181 CLR 487 the High Court (Mason CJ, Deane, Dawson and Toohey JJ) at [7] set out those principles:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
(Citations omitted)
Later, at [9], they said:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.
(Citations omitted)
A ground of appeal alleging that a verdict is unsafe will only be made out where the appeal court, having conducted its own independent examination of the evidence, concludes that the tribunal of fact was bound to have a reasonable doubt about the guilt of the appellant. As Hayne J (with whom Gleeson CJ and Heydon J agreed) in Libke v The Queen (2007) 230 CLR 559 at [113] said:
But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must as distinct from might have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.
(Emphasis in original)
The prosecution case against the appellant with respect to all three charges was circumstantial. In assessing whether a verdict of guilty in a circumstantial case was unsafe or unsatisfactory an appellate court must consider the totality of the evidence taken together. In The Queen v Hillier (2007) 228 CLR 618 Gummow, Hayne and Crennan JJ (with whom Gleeson CJ and Callinan J agreed) said at [48]:
Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal.
The injunction against considering a circumstantial evidence case piecemeal does not mean that a tribunal of fact or, on appeal, the appellate court is prohibited from examining individual pieces of evidence in order to determine what weight may be attributed to them. Indeed, it is clear from the authorities that an appellate court has an obligation to conduct its own independent examination of the evidence. A circumstantial case may be likened to a cable in which none of the strands of the cable may be sufficient to bear the weight (that is, to establish the guilt of the accused) but, when placed together, are sufficient. That is not to say, however, that the strength of individual strands cannot affect the strength of the cable. A weakness in the evidence concerning a particular relevant circumstance is itself a circumstance that must be considered as part of the evidence. The evidence must be considered “warts and all”; to do otherwise would be to consider the evidence not as a whole, but at its highest. What is required is an examination of the evidence in its totality and a determination of whether it was open to the Magistrate to find the appellant guilty of the charges based upon that evidence considered as a whole.
Consideration
In the proceedings before the Magistrate, the prosecution failed to call Timothy Knapp or Inge-Jane Hall to give evidence. Both were apparently material witnesses, with Timothy Knapp having travelled with the appellant on 20 January 2010 and on 12 April 2010 and Ms Hall travelling with him on 27 June 2010. It may well be expected that they would have knowledge of what the appellant did, where he went and to whom he spoke during those periods he was not in the presence of Mr Green or Ms Crossin. As members of the appellant’s staff, they may also be expected to have some knowledge of the purpose of the journeys. Two things may be said about this failure. First, no inference against either the accused or the prosecution arises from the fact that they did not give evidence: Dyers v R [2002] HCA 45; (2002) 210 CLR 285. Secondly, and most importantly, the fact that the prosecution did not call these witnesses meant that there was no direct evidence of what the appellant did, who he may have met and spoken to or where he went after he left the hire car at each of the stops during these journeys. In the absence of direct evidence, the prosecution case against the appellant with regard to each charge was purely circumstantial. The absence of direct evidence was a significant weakness in the prosecution case, such that any inference of guilt was not strengthened by the failure of the appellant to give evidence: see Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217.
In a circumstantial evidence case, the guilt of the accused is not proved by establishing that guilt is a rational inference based on the evidence. In such a case it may only be proved where guilt is the only rational inference available: Shepherd v R (1990) 170 CLR 573 at 578. In order to find the appellant guilty, the Magistrate was obliged to exclude any hypothesis consistent with his innocence: Chamberlain v R (No 2) (1984) 153 CLR 521 at 535. There was no onus on the appellant to advance such a hypothesis: R v Betancur-Galvis [2003] NSWCCA 333; (2003) 142 A Crim R 527, nor was it necessary that the Magistrate be satisfied that any alternative explanation of the circumstantial evidence was of equal or greater strength to the inference of guilt in order to displace that inference: Mannella v The Queen [2010] VSCA 357.
The hypothesis or inference which the Magistrate had to reject in order to convict the appellant of any of the charges was that a purpose of the relevant journey was to engage in parliamentary business. The Magistrate sought to avoid giving meaning to the phrase “parliamentary business” in the Determination by focusing on whether she was satisfied that the purpose of each of the relevant journeys was purely personal. The Magistrate, however, never made a specific finding as to the appellant’s purpose in making any of the relevant journeys, confining herself to finding that his attendance at the various wineries and restaurants was “consistent with” attendance for wine tasting or to have a meal. No specific findings were made as to what the appellant did, or who he saw or spoke to when he was not in the presence of Mr Green or Ms Crossin.
It is necessary, to some extent, to grapple with the meaning of the term “parliamentary business” in the Determination, because any judgment that he was travelling on purely personal business implicitly involves a rejection of the proposition that a reason for the journey was parliamentary business. Making such a judgment necessarily involves a conclusion that the proven circumstances surrounding each journey precludes the reasonable possibility that he was travelling on parliamentary business. It is necessary to determine what may fall under the rubric of parliamentary business before any judgment can be made that the circumstances revealed by the evidence do not allow for the rational possibility that it was a purpose of his journey. To express it figuratively, you cannot reject the proposition that evidence will not fit into a particular mould unless you know the shape of the mould.
In the absence of any definition of the term “parliamentary business” in the Determination, it is a term susceptible to a number of different interpretations. At its narrowest it could mean activity directed by parliament. Even a cursory examination of the Determination makes this an unacceptable interpretation. A more expansive interpretation would be any business connected with the business of the Parliament and an even more expansive interpretation would include business relevant to a Member’s duties as a Member of parliament. It is not possible to give definitive meaning to the term, but some relevant observations may be made.
Despite a recommendation by the Australian National Audit Office in 2002, repeated in its 2009 report titled “Administration of Parliamentarians Entitlements by the Department of Finance and Deregulation”, that the term “parliamentary business” be defined in the Determination so as to provide greater certainty and transparency in the use of parliamentary entitlements, the Parliament has not done so. This, together with the terms of the Determination, suggests an intention that the term is to be given a broad interpretation, consistent with the significant latitude to act, based on their own judgment, that must be given to an elected member of the legislature. If Parliament had intended to restrict the meaning of parliamentary business in the Determination so as to limit the degree to which members were entitled or expected to use their own judgment as to what constituted parliamentary business, it would have done so. That is not to say that minds may not honestly differ as to whether there is a sufficient connection between the purposes of a particular journey undertaken by a MHR and parliamentary business, so as to entitle a Member to travel at public expense. It is clear that this is an issue the Parliament has had to grapple with and which it addressed in the “Minchin Protocol”, which was referred to in the evidence of Mr Miles. This is a procedure allowing for the Special Minister of State, acting on the advice of the Department, to invite a MHR to repay the value of a claimed entitlement considered by the Department to have been used outside of the prescribed rules of the entitlement. In some circumstances, the Minchin Protocol allows for a referral of evidence concerning the use of MHR’s entitlements to the Australian Federal Police, but it will be observed that the Minchin Protocol does not provide for anyone other than the individual MHR to make a determination that they were, or were not, travelling on parliamentary business. A request for repayment of a disputed entitlement may be made, but there is no mechanism to force a MHR to repay a disputed entitlement.
Once it is accepted that the term “parliamentary business” in the Determination is to be given a broad interpretation and that, as a matter of necessity, it must be left to an individual MHR in the first instance to form his or her own judgment as to whether a particular journey is for the purpose of parliamentary business, it becomes apparent what a difficult task the prosecution assumed in bringing these charges against the appellant. This is particularly so in circumstances where the prosecution did not propose calling the only witnesses who could give direct evidence of what occurred during significant portions of these journeys. A journey will be for the purpose of parliamentary business where it is for the purpose of conducting a meeting, no matter how brief, relevant to the business of the Parliament or the MHR’s duties as a parliamentarian. A journey will also be for the purpose of parliamentary business if its purpose is to obtain information relevant to some issue before the Parliament, or to the MHR’s role as a parliamentarian. From the evidence of Mr Miles at [32] above, it appears that such a purpose will extend to travelling with a staffer to conduct a meeting with the staffer at a location other than Parliament House. It is a matter for the MHR to judge whether that was necessary or appropriate. There is nothing in the Determination or in the Members Handbook to suggest that there is some requirement for a MHR to only conduct parliamentary business in offices provided at Parliament House.
A great deal of trust is reposed in MHRs to use their entitlements only for parliamentary business. The nature of their position as elected Members makes that not only inevitable, but also desirable in the public interest. To the extent that a MHR may abuse their entitlements, this may be dealt with by the Parliament itself or by the MHR’s electorate. In saying this, I do not mean to suggest that a Member of Parliament may never be prosecuted for a criminal offence arising out of the misuse of entitlements. I merely observe the forensic terrain in which courts are asked to determine whether there has been a misuse of entitlements and whether any such misuse was dishonest.
The Magistrate, correctly in my opinion, determined that no finding of dishonesty could be made against the appellant based upon his preference for using Cabcharge vouchers rather than using his Cabcharge Card to electronically pay for the three journeys the subject of the charges. The evidence very clearly established that it was the appellant’s practice to pay using vouchers, and that this was a practice accepted by the Department.
The Magistrate found that the appellant was dishonest in completing the Cabcharge vouchers on each of the three days in question, in that he had “misrepresented” where he had been on that day. In particular, he was dishonest by purporting to indicate “various attendances” at Parliament House, which did not occur. She also found that he was dishonest in recording that he had attended “suburbs” when the locations he attended were “far from suburban and not appropriately generically described in that way”. As I noted at [45] above, this finding was an essential link in the chain of reasoning adopted by the Magistrate. I observe that the Magistrate did not make a finding that the use of multiple vouchers by the appellant to pay for each of these journeys was indicative of dishonesty. There were good reasons why she would not do so. On the first journey the subject of a charge, on 20 January 2010, the appellant gave an explanation for using multiple vouchers. He told Mr Green that it made processing the vouchers easier. There was support for the truth of that proposition in the evidence of Mr Miles, who essentially testified that if the cost of travel did not appear to equate with the description of any travel available to the Department, questions may be asked of the Member. Such enquiries, it may be inferred, may delay payment and increase the administration required of the appellant’s staff.
When assessing the significance, to the evidence as a whole, of the circumstance that the appellant used the term “suburbs” in a number of vouchers as a description of destinations in any assessment of the adequacy of the evidence to support a conviction, a number of matters need to be considered. First, there was substantial evidence that the appellant was in the habit of using the word “suburbs” indiscriminately when completing Cabcharge vouchers. Secondly, there was no obligation imposed on the appellant by the Determination to provide information, whether on the vouchers or otherwise, of where he had travelled during the journey. The Department, according to the Senators and Members Handbook 2007, did not request this information. If each of the journeys had been paid electronically by the appellant using his Cabcharge card, details of the journey would not have been made available to the Department. The only information which would have been available to the Department was the pickup point and the final destination. It may be inferred that the Department did not consider this information to be important. This, together with the appellant’s practice of using the term “suburbs” indiscriminately when completing Cabcharge vouchers, is consistent with the appellant also being of the view that the information was unimportant.
With regard to the proposition that the appellant was dishonest by misrepresenting that he had attended at Parliament House during these journeys, I noted that the appellant’s entitlement to travel on parliamentary business was not dependant on the journey commencing or terminating at, or involving a stop at, Parliament House.
Having made the above observation, the Magistrate was clearly correct in finding that the information provided by the appellant on the Cabcharge vouchers did not accurately reflect the travel undertaken. It was open to the Magistrate to infer that this was evidence of dishonesty on the part of the appellant. It was not, however, the only inference available on that evidence. The Magistrate acknowledged that the appellant had a practice of using the term “suburbs” in completing Cabcharge vouchers and that the way he completed the vouchers on this occasion “may well have been” consistent with this practice, but she concluded that it was “dishonest on this occasion”. Unfortunately, as I noted earlier, the Magistrate provided no reasons for that conclusion.
The Magistrate concluded that there could have been only one reason for the appellant to have completed the vouchers in the way he did, being to “misrepresent what he had actually been doing in order to ensure payment by the Department”. As noted above, there were other inferences available as to why the appellant may have completed the vouchers in the way in which he did. In addition, this conclusion by the Magistrate is at odds with the evidence given by Mr Miles about the way in which such claims were processed. As a long-term parliamentarian, it would be expected that the appellant would be aware of the way in which such claims were processed by the Department.
Having concluded that the appellant had dishonestly completed the relevant Cabcharge vouchers by misrepresenting his movements and that the only inference available was that he did so in order to misrepresent what he had been doing so as to ensure payment by the Department, the Magistrate then stated a further premiss, being that if the appellant had been travelling on parliamentary business, he would not have needed to misrepresent his movements. The validity of this step in the Magistrate’s reasoning process is, of course, dependent upon the validity of the earlier conclusions made by the Magistrate and assumes in particular that he was acting dishonestly in completing the vouchers in the way in which he did. From these premisses, the Magistrate inferred that the appellant had not been travelling on parliamentary business and had known that he was not travelling on parliamentary business.
In its written submissions on this appeal, the respondent described the Magistrate’s reasoning process in reaching the final conclusion that the appellant had not been travelling on parliamentary business as “unassailable”. In my opinion, the reasoning process, for the reasons which I have given, was quite tenuous.
To this point, I have concentrated on examining the reasoning process engaged in by the Magistrate, with particular emphasis upon those circumstances she identified as convincing her that the appellant was guilty of each of the charges. In my opinion this reasoning process was flawed, partly by reason of misidentification of the dishonesty alleged by the prosecution and partly because her Honour did not assess the evidence as a whole, as required in a circumstantial case. In assessing whether the evidence could admit only one rational hypothesis, being the guilt of the appellant, I must consider not only the evidence to which the Magistrate referred in her reasons as set out above, but also the other evidence relevant to this issue adduced by the prosecution. First, the prosecution relied upon the fact that each of the journeys was to various wineries in the Canberra district. Secondly, the times spent at each winery were consistent with either wine tastings or with the appellant having lunch. Thirdly, there was evidence with respect to the first charge that the appellant had consumed alcohol during the journey. Also on that journey, the appellant purchased a bottle of wine. The prosecution also relied upon the fact that the wineries at which stops were made had cellar doors. These are all circumstances that must be taken into consideration.
The production and sale of wine at wineries such as those the appellant visited during these three journeys is an industry. Wineries are part of the viniculture, hospitality and tourism industries. Decisions made in the Parliament may have an effect upon these industries. There was no evidence whether there was business before the Parliament relevant to these industries at about the time that these journeys took place. The prosecution also did not lead any evidence of the nature of the appellant’s electorate and whether, by reason of the nature of his electorate, he may have had a particular interest in viniculture, hospitality or tourism. The prosecution led evidence that between January and June 2010 the appellant was a member of a number of Parliamentary committees. No evidence was led of the nature of the business of these committees during the period January to June 2010, so that there was no evidence that the accused had no legitimate reason to attend wineries as part of the business of those committees. A curious aspect of the evidence led by the prosecution in support of the proposition that the appellant’s attendance at these wineries was for personal purposes was the lack of evidence of purchases of wine by him. The evidence only establishes the purchase of one bottle of wine over the three journeys. This, of course, does not mean that the circumstances relied upon by the prosecution are to be ignored, but the ambiguous definition of ‘parliamentary business’ means that one cannot conclude that the purchase or consumption of alcohol, or meal, by a parliamentarian is inconsistent with a journey being taken for the purpose of conducting parliamentary business.
Conclusions
I accept that the evidence before the Magistrate was capable of raising, as a rational inference, the proposition that the appellant undertook each of the three journeys for purposes unrelated to parliamentary business. She may have been entitled to conclude that it was the most probable inference. The crucid question is, was it the only rational inference available on the evidence? In my estimation, it clearly was not. The breadth of activity that may be encompassed by the term “parliamentary business” in the Determination means that the prosecution had to disprove the rational possibility that the appellant travelled to the various wineries, for example, for purposes of informing himself about those businesses as part of his function as a parliamentarian, based upon his judgment of the need for such travel for that purpose. The prosecution further had to exclude the possibility that the travel was for the purpose of meeting a third party, in circumstances where there was no evidence of who the appellant may have communicated with prior to, or during, the journeys. The prosecution also had to exclude the possibility that the appellant had determined to conduct meetings about parliamentary business with his staff member at a location other than Parliament House for reasons which he considered adequate. Other potential scenarios may no doubt be posited. The fact is that the prosecution could not exclude these rational inferences, and as such the guilt of the appellant was not the only rational inference available on the evidence. It follows that it was not open to the Magistrate, viewing the evidence as a whole, to convict.
The appeals will be upheld and the convictions and penalties imposed by the Magistrate will be set aside. Verdicts of not guilty will be substituted with respect to each charge. I will hear the parties on the question of costs.
| I certify that the preceding seventy three [73] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 26 February 2015 |
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