Tonette Kelly v Regina

[2013] NSWDC 252

District Court

New South Wales

Medium Neutral Citation:	Tonette Kelly v Regina [2013] NSWDC 252
Hearing dates:	29 October 2013
Decision date:	09 December 2013
Before:	Judge MJ Finnane QC DCJ
Decision:	See paragraph [35]
Catchwords:	CRIMINAL LAW - appeal - dishonesty - lies - conviction - sentence OTHER - misuse of public resources - secondary employment - approval
Cases Cited:	Charara v The Queen [2006] NSWCCA 244
Category:	Principal judgment
Parties:	Tonette Kelly (Appellant) Regina (Respondent)
Representation:	In Person (Appellant) S Kavanagh (Solicitor for Public Prosecutions)
File Number(s):	2012/206178

Judgment

Intorduction

1. Tonette Kelly appeals against her convictions for two offences:

(1)   That on 20 April 2010 whilst she was a person giving evidence at a public enquiry conducted by the Independent Commission against Corruption did give evidence that was false in a material particular, namely that she was granted approval by Chief Executive Officer Matthew Taylor in March 2003 to use the Legalco account in order to conduct searches for private purposes, knowing such evidence was false.

(2)   That on 20 April 2010 whilst she was a person giving evidence at a public enquiry conducted by the Independent Commission against Corruption did give evidence that was false in a material particular, namely that she engaged Nicolai Dacombe, as a paralegal on a part-time basis between 24 March 2005 and 18 September 2008 within her own private legal practice, knowing such evidence was false.

1. Miss Kelly pleaded not guilty to both charges.

1. She appeared before Magistrate Anthony Townsden in the Local Court over a period of 10 sitting days. On 1 May 2013 His Honour found both offences proved and convicted the appellant of both offences.

1. I am now required to determine this case in accordance with the principles enunciated by Mason P in Charara v the Queen [2006] NSWCCA 244, particularly at paragraphs 17,18 and 19:

"17 The appeal is to be by way of rehearing on the Local Court transcripts (s18(1)), obviously supplemented by reference to any exhibits tendered in the Local Court. Fresh evidence may be given by leave, subject to the District Court being satisfied that it is in the interests of justice that this should occur (s18(2).

18 The District Court is then required to apply the principles governing appeals from a judge sitting without a jury. The Judge is to form his or her own judgment of the facts so far as able to do so, recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the lower court (Bell v Stewart (1920) 28 CLR 419 at 424-5, Paterson v Paterson (1953) 89 CLR 212, Fox v Percy (2003) 214 CLR 118).

19 The nature of an appeal "by way of rehearing" has been discussed in many cases. The procedure to be adopted, powers to be exercised and function to be performed must first be sought in the language of the particular statute. One thing, however, is clear. "The 'rehearing' does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits" (Fox at 118[22] per Gleeson CJ, Gummow and Kirby JJ). Referring to the "requirements, and limitations, of such an appeal", their Honours continued (at [23], footnotes omitted):

... On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance". On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole."

1. This requires me to pay careful regard to the reasons of the learned Magistrate since he saw and heard all of the witnesses and clearly was in a better position than me to evaluate credibility.

The Charges

1. I propose to deal first with the first charge.

1. Tonette Kelly was the senior legal officer at the Maritime Services Authority at all relevant times and was regarded highly as a skilled lawyer and someone who gave sound advice. Over time, she developed an interest in maintaining her own legal business, separate from that of Authority. As she was a public servant, she was bound by the need to seek agreement to engage in secondary employment.

1. For some time she carried out some conveyancing work at her home, doing very little in fact. Initially, she advertised herself in her local areas as being a solicitor who did conveyancing, but in the course of time, she set up and maintained a much more extensive legal practice. In a physical sense it was conducted at her home in Schofields, where she relied to a great extent on work carried out by her sister.

1. Solicitors and conveyancers in New South Wales frequently make use of the services of a company known as Espreon, formerly known as Legalco, a company that carries out searches on databases maintained by the Registrar General's Department, and various statutory authorities. These searches are necessary to obtain details such as the ownership of land, mortgages and other charges, caveats, zoning of land and the charges imposed by various statutory authorities.

1. The Espreon database is capable of being searched by any person who becomes a subscriber. Naturally, it charges for its services. The Authority had an account with Espreon because the Authority owned a considerable amount of real property and from time to time sold or leased some of that property. The appellant and lawyers in the legal branch knew what services were provided by Espreon and that the Authority paid for those services. However, I am satisfied that none of the chief executives of the Authority had any knowledge of Espreon or what it did, nor did any of them understand what was involved in conducting conveyancing transactions.

1. The hearing of the prosecutions before the Local Court occupied some 10 days of hearing. Miss Kelly claimed that she had Authority at all times to use the Espreon account and that this Authority had been specifically granted to her in 2003 by the then chief executive, Matthew Taylor.

1. I am satisfied that Mr Taylor did not grant any such Authority. What he did was to permit her to engage in secondary employment because he understood it involved her doing a small amount of conveyancing work for members of her family and some staff of the Authority. She led him to understand that she would be making a few phone calls a week and perhaps receiving or sending a few documents. She did not tell him at any time, nor did she tell anyone else working for the Authority, that she would be using its Espreon account at the expense of the Authority for the purpose of conducting her private business.

1. Mr Taylor gave the approval for secondary employment in a memorandum of 7th March 2003.

1. In 2004, Mr Oxenbould, his successor as chief executive, following anonymous complaints being received that the appellant was conducting a conveyancing business and using the resources of the Authority, directed that an Inquiry be conducted by a Mr Clarke, barrister-at-Law. At Mr Clarke's invitation, the appellant provided a statement in which she said that she had approval for secondary employment, that the conveyancing work she was carrying out was not extensive and she forwarded the memorandum of 7 March 2003.

1. When allegations were made subsequently that led to an Inquiry of the Independent Commission against Corruption (ICAC), she provided written material claiming that she had permission to conduct conveyancing activities and that permission included the right to use a database at the expense of the Authority, known as Legalco. This database subsequently became known as Espreon.

1. The ICAC Inquiry was concerned with whether she had Authority to use the Espreon database and she made a statement, enclosing a memorandum of 20 March 2003. This memorandum purported to be signed by Mr Taylor and to have the word "approved" placed on it. The body of the memorandum contained a request by the appellant for consent to use the Legalco database for the purposes of her conveyancing business and on the basis that she would reimburse the Authority for the cost of its use.

1. The appellant gave evidence at the ICAC Inquiry and maintained that the memorandum of 20 March 2003 was genuine and that Mr Taylor had signed it and placed the word "approved" on it.

1. Much of the evidence that the ICAC Inquiry turned on whether the memorandum of 20 March 2003 was genuine. Mr Taylor gave evidence that he did not sign this document and that evidence was supported by others in the Authority. He also denied placing the word "approved" on the document. What was significant about this document was that if it were a genuine document, then the appellant was justified in using the Legalco database. If the document were not genuine, then she had no Authority to use the database.

1. The extent of her conveyancing business was also the subject of evidence at the Inquiry. Indeed officers of ICAC attended her home and seized a large quantity of records, including records of legal work that she had conducted over a number of years. However the Inquiry essentially focused on the question did she have permission to use the Legalco database. It was not investigating, except as a secondary matter, whether she had an approval for secondary employment

1. The memorandum on which she relied was not produced to Mr Clarke during his Inquiry and he was given no information about it. She was questioned about this at the ICAC Inquiry. She maintained the memorandum was in existence at the time but she did not produce it to Mr Clarke because it was not relevant.

1. In my opinion, what she said about this was unconvincing and improbable. If this document had been in existence at the time of Mr Clarke's Inquiry, it would have been extremely relevant, because it would have shown that Mr Taylor not only approved of her having secondary employment, but also approved of her using the Authority's funds to access the Espreon database. It also would have shown that she had claimed to Mr Taylor and he agreed with her claim, that she was entitled to offset the costs of using the Espreon database against a large amount of unpaid overtime she had accumulated.

1. Miss Novotny, an expert in handwriting and the forgery of documents examined the two memoranda and concluded that the word "approved" in the memorandum of 20 March 2003 was a copy of a word from some other document and that, accordingly, this document was a forgery. In my opinion, ICAC were entitled to act on that opinion of Miss Novotny. The learned Magistrate also accepted the evidence of Miss Novotny and was clearly entitled to do so. I accept the evidence of Miss Novotny

1. Subsequently, after she had given evidence before ICAC, she produced two stamps that he said had been placed in her home letterbox by an unknown person. Those stamps were the subject of expert examination and subsequent evidence by Mr Paul Westwood, a well-known document examiner. One of the stamps had the word "approved" on it and it could have been used to stamp that word on documents. However Mr Westwood concluded that the manner in which the stamp reproduced the word "approved" on a document meant that it was not used to produce the word "approved" on the document of 20 March 2003. He further examined the manufacture of the stamp and concluded that it was made in 2012 and that it had scratches on metal parts of the body, designed in his opinion to convey the impression that the stamp was an old and well-worn one.

1. The magistrate was clearly entitled to accept the evidence of Mr Westwood and to conclude that the stamps could not have been used to put the word" approved" on the document of 20 March 2003. Clearly, this stamp could not have been used to produce the word "approved" on the memorandum of 20th March 2003. Apart from this evidence, Mr Taylor denied using a stamp to put the word "approved" on the document of 20 March 2003.

1. Another claim made by the appellant was that she obtained the approval on 20 March 2003 on the basis that she was working a large amount of unpaid overtime and this could be offset against any debt she had for the use of the database. Mr Taylor gave evidence that he knew nothing of this. This question was put to other witnesses and it was established clearly that this claim was unknown to Mr Dunn, the CEO of the time of the ICAC enquiry nor was it known to Mr Robinson, the appellant's supervisor who gave evidence that there was never any discussion with her about offsetting wages so that she could use the Legalco/ Espreon database.

1. Miss Ohanian, the human resources manager of the Authority saw the memorandum of 7 March 2003, but only one page of it was on the file and she did not see the memorandum of 20 March 2003 until the ICAC hearing. She was also of the opinion that there was no way in which an employee could offset over time against the use of resources of the Authority and she said that she could not imagine the CEO giving such approval.

1. Jill Saffron, an office manager, confirmed that she had seen the memorandum of 7 March without any attachments. Brian Stanwell, a previous supervisor of the appellant said that at no point did the appellant raise as an issue, the offsetting of over time against the use of resources, nor did she ever discuss secondary employment.

1. All of this evidence, in my opinion, enables me to say that I am satisfied beyond reasonable doubt that the document of 20 March 2003 is a forgery that was prepared by the appellant for the purposes of the ICAC hearing. It did not exist before that time. This finding coincides with identical findings of ICAC and the learned Magistrate.

1. I am also satisfied beyond reasonable doubt that at no time did the appellant raises anyone in authority her entitlement to offset overtime against the use of resources. I would add, that the appellant admitted in evidence that she did not at any time pay any money back to the Authority to compensate for her use of the Espreon database.

1. There is no doubt in my opinion that the appellant gave false evidence before the ICAC as was claimed by the prosecution before the Local Court.

1. I am fortified in my opinions by the findings of the learned magistrate (now a judge of this Court). His opinions coincide with my opinions. He did not accept the appellant as a credible witness. Nor do I.

Second charge

1. By the time of the hearing before the Local Court, the appellant admitted that she had given false evidence before the ICAC in which she said that she had engaged Mr Dacombe as a paralegal for a period of three years on a part-time basis, knowing that the evidence was false.

1. However she also raised before the Local Court a defence of duress. I have considered the reasons of the learned Magistrate in relation to this matter and I find myself in complete agreement with what he has said. None of the facts alleged by her were of such a character as to enable her to claim that there was a threat of such a kind as would drive a reasonable person to act as she did. Like the magistrate, I am of the opinion that if there was a threat of some kind there was ample opportunity for her to take action to avoid the consequences of the threat. She did not do this. Instead she chose to give false evidence. In my opinion the learned Magistrate was correct in rejecting the defence of duress and finding her guilty of this offence. I would add that her claim of the receipt of an anonymous document containing a threat was improbable.

1. The evidence given by the appellant before the ICAC and before the learned magistrate was rambling, unconvincing and unreliable. The submissions she made both to the learned magistrate and to me were equally unconvincing. I do not accept her as a witness of truth. I do not accept the validity of any of her submissions

Conclusion

1. I find the offences proved.

**********

Decision last updated: 24 December 2013