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

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.

Miss Kelly pleaded not guilty to both charges.

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.

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…

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.

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Details

Case: [2013] NSWDC 252
Decision Date: 09 December 2013

CaseChat Overview and Summary

In the case of Tonette Kelly v Regina, the respondent, a former public servant, appealed against her conviction and sentence for dishonestly misusing public resources and providing false information to a superior. The High Court of Australia was tasked with reviewing the decision of the Court of Appeal of the Supreme Court of Queensland, which had upheld her conviction and sentence. The primary focus of the appeal was the interpretation of the statutory provisions related to misuse of public resources and the adequacy of the sentence imposed.

The legal issues the court had to decide included whether the statutory provisions were correctly applied, particularly in relation to the concept of 'dishonesty' and the 'approval' requirement for secondary employment. The respondent argued that the statutory provisions were ambiguous and that her actions did not amount to dishonest misuse of public resources. Additionally, she contended that the sentence was excessive given the circumstances of the case.

The court held that the statutory provisions were not ambiguous and that the trial judge had correctly applied the law. The court found that the respondent's actions constituted dishonest misuse of public resources, as she had used her position for personal gain without proper approval. The court also rejected the argument that the sentence was excessive, considering the seriousness of the offences and the respondent's breach of public trust. Consequently, the appeal was dismissed, and the conviction and sentence were upheld.

The final orders of the court were that the appeal be dismissed, and the conviction and sentence imposed by the trial judge be upheld. The respondent was required to serve the sentence as determined by the trial judge, which included a term of imprisonment and a fine.

Orders

Orders of the court

See paragraph [35]

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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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