SUPREME COURT OF QUEENSLAND

1. KEANE JA:  On 9 September 2008 the appellant was convicted upon the verdict of a jury of two counts of contravening s 26(1) of the Commonwealth Authorities and Companies Act 1997 (Cth) (“the Act”).

2. In respect of each offence the appellant was sentenced to concurrent terms of 12 months imprisonment, but the learned sentencing judge ordered that he be released forthwith upon giving security by recognisance in the sum of $1,000 on the condition that he be of good behaviour for a period of three years.  The appellant was also ordered to make reparation to the Commonwealth of Australia of $45,000 in respect of the loss suffered by the Commonwealth by reason of the offences.

3. The Commonwealth Director of Public Prosecutions appeals against the sentence on the ground that it is “manifestly inadequate”.

4. The appellant appeals against his convictions on a number of grounds. At the hearing of the appeal, the appellant was given leave to raise a new ground of appeal against his conviction. The new ground concerned the absence of proper instruction to the jury as to the elements of the offences with which he was charged. A discussion of this ground, which was the principal focus of the appeal, involves a consideration of the proper interpretation of s 26(1) of the Act. I propose to address this issue after first summarising the evidence led against the appellant at trial.

5. The grounds of appeal raised initially in the appellant’s notice of appeal can best be discussed after the new ground has been considered.

The evidence against the appellant

6. Each of the two charges against the appellant was based on a letter written by him to facilitate the sale of assets owned by entities associated with the appellant for the improper purpose of raising funds for his own legal expenses. The letters were written on 5 November and 11 November 2004 respectively. The first letter was written on the letterhead of a Commissioner of the now defunct Aboriginal and Torres Strait Islander Commission (“ATSIC”). Both letters were signed by the appellant as a Commissioner of ATSIC. It is not in dispute that ATSIC was a Commonwealth authority and that the appellant was an officer of that authority.

7. The Crown case asserted that the letters falsely stated that ATSIC’s General Terms and Conditions Relating to Grants (“the Conditions”) did not apply to certain motor vehicles which had been acquired by entities associated with the appellant and which were being sold by those entities (“the vendors”) to the person to whom each letter was addressed. The second letter asserted, falsely, that “the Board of ATSIC gives authority … to dispose of these vehicles”. The Crown contended that, under the Conditions, the entities associated with the appellant were not permitted to sell the vehicles without ATSIC’s permission, and that the appellant knew that that was the case.

8. The letter of 5 November 2004 was in the following terms:

“Mr Stuart Mitchell

PO Box 519 

Nerang Q

Attention: Stuart

Further to our telephone conversation of this morning concerning the advertisement in the Courier Mail (04.11.04) regarding the vehicles sold to you by the Bidjara CDEP Aboriginal Corporation.

These vehicles as listed below are wholly and solely the property of the Bidjara CDEP Aboriginal Corporation, ATSIC does not have the ‘Bill of Sale’ over the vehicles or any other legal encumbrance.

• Holden Dual Cab Rodeo(304 FJJ)
• Holden Dual Cab Rodeo(362 GHI)
• Holden Dual Cab Rodeo(279 HAC)
• Holden Rodeo Utility(941 GBJ)
• Holden Astra Sedan(360 GHI)

The advertisements by the Australian Government Solicitor are illegal and total nonsense.

The Bidjara CDEP has instructed their solicitors should these scaremongering attics [sic] continue the necessary legal action will be taken.

Stuart if any person you are dealing with in regards to the above-mentioned vehicles have any concerns I suggest you refer them to this letter or [they] may contact either myself as the Commissioner or the Chairperson of Bidjara CDEP.

Yours faithfully

Ray Robinson

Commissioner

Please Note: the sales of these vehicles are not subject to any Grant Terms and Conditions.”

9. It may be noted here that the advertisements by the Australian Government Solicitor (“AGS”) to which reference was made in this letter asserted that ATSIC’s consent to the sale of these motor vehicles was required and that ATSIC did not consent to the sale.

10. The letter of 11 November 2004 was in the following terms:

“Mr Stuart Mitchell

Riokate Pty Ltd

PO Box 519 

Nerang Q 4211

To Whom It May Concern:

The vehicles listed below plus all vehicles owned and registered in the name of Bidjara CDEP Company Limited and [Bidjara] and South-West Queensland Aboriginal Legal Services Limited are the sole property of the above named companies.

There are no legal encumbrances what so ever, the vehicles listed are not subject to any grant or conditions of grant and may be deposed of [sic] in the normal course of business.

HOLDEN ASTRA 508 FQSHOLDEN COMMODORE 268 HAC

HOLDEN ASTRA 360 GHIHOLDEN COMMODORE 955 GBJ

HOLDEN RODEO 362 GHIHOLDEN JACKAROO      277  HAC

HOLDEN RODEO 297 HACHOLDEN RODEO              941 GBJ

HOLDEN RODEO 304 FJJFORD FALCON                 599 GYS

The Board of ATSIC gives authority to Bidjara CDEP & Bidjara Legal Service to dispose of these vehicles.

Yours faithfully,

Ray Robinson

Commissioner

Qld South Zone”

11. The provision of the Conditions of specific relevance to the Crown case was cl 17.4. It was as follows:

“You must obtain our written approval:

a.before disposing of or giving security [over] any Grant Asset (other than trading stock of a commercial project) having a current market value over $5,000; and

  b.before using the proceeds from such disposal.”

12. It was not in dispute on the appeal that each of the motor vehicles in question was a “Grant Asset” for the purposes of this provision.

13. At trial, it was contended on behalf of the appellant that this provision applied only while the entity holding the asset was an “unacquitted borrower” from ATSIC and that each of the entities had acquitted their borrowing. At the time of the sales in question, the entities which owned the motor vehicles were debtors of ATSIC even though the debt relating specifically to the acquisition of the vehicles had been repaid. It was said that the entities in question were “acquitted borrowers” because the specific debts had been repaid.

14. On the hearing of the appeal in this Court, it was not argued that the Conditions, properly construed, operated in the way which the appellant had contended at trial. That was a sensible course: the contention advanced at trial cannot seriously be maintained. The obligation in cl 17.4 makes no exception for “acquitted borrowings”, and the entities in question remained debtors of ATSIC.

15. It was not in dispute at trial (or on the appeal) that ATSIC’s consent to the sales of the vehicles had not been obtained in accordance with cl 17.4 of the Conditions.

16. There was evidence from which it could be inferred that $45,000 of the proceeds of sale was paid to lawyers who were acting for the appellant in other matters for their fees. Mr Callaghan SC, who appeared with Mr Gardiner for the appellant, pointed out that these moneys were received by the lawyers in question before the letter of 11 November 2004 was written by the appellant so that this letter could not have been written with that purpose. But it was open to the jury to conclude that the appellant did not know that his indebtedness to his lawyers had been satisfied by the time he wrote the second letter and to infer that the appellant’s purpose in writing both letters was to facilitate the completion of the sale of the motor vehicles, to raise sufficient funds for his own private purposes rather than to raise funds for the benefit of ATSIC.

17. I turn now to consider the formulation of the prosecution case under s 26(1) of the Act.

The charge under s 26(1) of the Act

18. It is, I think, necessary to set out s 26 of the Act in its entirety in order to understand the points made by each side in relation to the proper interpretation of s 26(1).

19. Section 26 of the Act was in the following terms:

“Good faith, use of position and use of information–criminal offences

Good faith–officers

(1)An officer of a Commonwealth authority commits an offence if he or she:

(a) is reckless; or

(b) is intentionally dishonest;

and fails to exercise his or her powers and discharge his or her duties:

(c) in good faith in what he or she believes to be in the best interests of the Commonwealth authority; or

(d) for a proper purpose.

Note: Section 187 of the Corporations Act 2001 deals with the position of directors of wholly-owned subsidiaries of Commonwealth authorities.

Penalty for a contravention of this subsection: 2,000 penalty units or imprisonment for 5 years, or both.

Use of position–officers and employees

(2) An officer or employee of a Commonwealth authority commits an offence if he or she uses his or her position dishonestly:

(a) with the intention of directly or indirectly gaining an advantage for himself or herself, or someone else, or causing detriment to the Commonwealth authority or to another person; or

(b) recklessly as to whether the use may result in him or her or someone else directly or indirectly gaining an advantage, or in causing detriment to the Commonwealth authority or to another person.

Penalty for a contravention of this subsection: 2,000 penalty units or imprisonment for 5 years, or both.

Use of information–officers and employees

(3) A person who obtains information because he or she is, or has been, an officer or employee of a Commonwealth authority commits an offence if he or she uses the information dishonestly:

(a)with the intention of directly or indirectly gaining an advantage for himself or herself, or someone else, or causing detriment to the Commonwealth authority or to another person; or

(b) recklessly as to whether the use may result in himself or herself or someone else directly or indirectly gaining an advantage, or in causing detriment to the Commonwealth authority or to another person.

Penalty for a contravention of this subsection: 2,000 penalty units or imprisonment for 5 years, or both.”

20. By a document dated 18 February 2008, the Crown provided particulars of the “power”, “duty” and “lack of proper purpose” relied upon by the Crown in support of the charge against the appellant. These particulars reflect the circumstance that, at the time they were given, the Crown was also pursuing charges of a contravention of s 130.1 of the Criminal Code 1995 (Cth).  The Crown later elected not to proceed with the charges brought under the Criminal Code.  The Crown articulated its case against the appellant in the following terms:

“2.His duties in those capacities included any authority, duty function or power either conferred on him or which he held himself out as having (s 130.1 Criminal Code).

3. By his letters on Commission letterhead (describing himself as a Commissioner) he had, and held himself out to have, power to make representations to third parties as to the status of grant - purchased assets.

4. In doing so, a duty arose pursuant to s 26 of the CAC Act to do so in good faith in what he believed to be the best interests of the ATSIC.

As to improper purpose:

5. The question in these counts is not so much improper purpose as lack of a proper purpose, namely, the best interests of ATSIC. It was not in the best interests of ATSIC because the grant conditions were not being fulfilled, in that the assets were no longer being utilised for the purposes of the grants, having been taken away from the present service providers and then disposed of. However the true purpose which indicates lack of proper purpose, is Mr Robinson’s benefiting himself by paying private legal expenses, completely unconnected to ATSIC.”

21. The first trial of the charges against the appellant was aborted in March 2008. At a pre-trial hearing on 15 August 2008, counsel for the appellant submitted an outline of argument in which the directions said to be necessary for the proper instruction of the jury were set out. These included a direction that the jury should be specifically instructed that the Crown was obliged to prove, inter alia, that:

“(d)… [the appellant] possessed a power and was under a duty in his capacity of ATSIC Commissioner;

(e)… if not satisfied of (d) beyond reasonable doubt they were to acquit;

(f)… [the appellant] failed to exercise his powers and discharge his duty for a proper purpose;

(g)… if not satisfied of (f) beyond reasonable doubt they were to acquit”.

22. The appellant’s trial began again on 1 September 2008. In summing up the case for the jury, the learned trial judge directed the jury by reference to a sheet of paper on which he had listed the “five … elements that the prosecution must satisfy you about beyond reasonable doubt before you could return a verdict of guilty …”. The sheet of paper contained the following:

“Charge One

The prosecution must satisfy you beyond reasonable doubt:-

1. On or about the 5^th day of November 2004;

2. At Charleville in the State of Queensland;

3. Robert Raymond Lloyd Robinson being an officer of the Commonwealth Authority namely a Commissioner of the Aboriginal and Torres Strait Islander Commission;

4. Was intentionally dishonest;

5. And failed to exercise his powers and discharge his duties for a proper purpose.

Charge Two

The prosecution must satisfy you beyond reasonable doubt:-

1. On or about the 11^th day of November 2004;

2. At Charleville in the State of Queensland;

3. Robert Raymond Lloyd Robinson being an officer of the Commonwealth Authority namely a Commissioner of the Aboriginal and Torres Strait Islander Commission;

4. Was intentionally dishonest;

5. And failed to exercise his powers and discharge his duties for a proper purpose.”

23. His Honour went on to say to the jury:

“Members of the jury, the prosecution case is that [the appellant] was intentionally dishonest and failed to exercise his powers and perform his duties for a proper purpose in two ways.  Firstly, he wrongly asserted the grant terms and conditions did not apply … Alternatively, the prosecution says even if they did apply, he had the intentional dishonesty and improper purpose of using the proceeds for his private legal purposes.  However, members of the jury … if you conclude [the appellant] honestly believed or you have a reasonable doubt that he honestly believed that the grant terms and conditions did not apply, both alternative conditions of dishonesty put forward by the prosecution would fail and [the appellant] would be entitled to be found not guilty.”

24. On the hearing of the appeal, Mr Farr SC, who appeared with Mr Kent of counsel for the respondent, argued that the appellant had acquiesced in this formulation of the case against the appellant and thereby waived his insistence on the directions earlier said to be necessary.

25. On the appellant’s behalf, Mr Callaghan argued that the trial judge’s summing-up “did not adequately explain to the jury how they should apply a novel legal provision, set in an unusual context, with legal terms and issues upon which the jurors required clear guidance”. Mr Callaghan argued that the conduct of the appellant’s case was not such as to relieve the learned trial judge of the obligation to give a full direction to the jury as to the elements of the offence with which the appellant was charged, and to give a proper explanation of those elements.

26. Mr Callaghan’s argument must be accepted. If a more comprehensive direction was necessary to give proper direction to the jury (and I respectfully think it was), nothing in the conduct of the appellant’s case relieved the learned trial judge of the obligation to give that direction. Whether or not such a direction was indeed necessary depends upon the true interpretation of s 26(1) of the Act. To that issue I now turn.

Interpreting s 26(1) of the Act

27. The new ground of appeal, to which I have referred as the one on which the appellant placed his primary reliance, was that:

“His Honour the learned trial judge erred when he failed to provide the jury with any instruction as to the nature and scope of the ‘power’, ‘duty’ and ‘proper purpose’ which were relevant for the purposes of s 26 of [the Act].”

28. The written submission of the respondent in this Court is, in part, that s 26:

“does indeed enforce, and thereby create, a duty of good faith to ATSIC, although such a duty would be implied in any case.  The question as to whether the appellant actually did so [sic] was a jury question which they needed no more assistance to analyse.”

29. I should say immediately that I am respectfully of the opinion that it is wrong to say, as Mr Farr submits, that s 26(1) of the Act enforces a duty or that it creates one. Section 26(1) creates an offence where there is a failure to exercise a power and discharge a duty the existence of which is assumed by the provision. Even if it were not illogical to say that the section creates a duty because it enforces it, it would be wrong to say that s 26 creates any duty.

30. In oral submissions in this Court, Mr Farr argued that the learned trial judge’s directions to the jury were sufficient to isolate for the attention of the jury the real issues in the case, but he accepted that this submission could be accepted only if the duties of a Commissioner of ATSIC referred to in s 26(1) of the Act included the overarching obligation of a Commissioner to act honestly and in the best interests of ATSIC as opposed to the particular duties which attach to the office of Commissioner.

31. Mr Callaghan submitted that when s 26(1) of the Act speaks of the “powers and duties” of an officer of a Commonwealth authority, it is speaking of the specific powers and duties attaching to the office in question rather than the general obligation of the kind referred to by Mr Farr. Mr Callaghan argued that, in writing the letters in question, the appellant was not exercising any power which attached to his office; and he was not discharging a duty to conserve or manage the assets of ATSIC.

32. In my respectful opinion, Mr Farr’s concession was correct and Mr Callaghan’s submission should be accepted. I now proceed to explain why I have come to this view by reference to the detailed arguments advanced by the parties.

33. Mr Farr argued that s 26(1) should be understood as if it read: “an officer of a Commonwealth authority commits an offence if he or she … is intentionally dishonest in acting otherwise than in good faith … or for a proper purpose”. Mr Farr acknowledged that this reading of the provision rests uneasily with the notion that a penal statute should not be given an effect which the language used by the legislature to create the offence does not clearly require.  In this regard, in Beckwith v The Queen,^[1] Gibbs J said:

“The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R v Adams ((1935) 53 CLR 563, at pp 567-568); Craies on Statute Law, 7th ed (1971), pp 529-534. The rule is perhaps one of last resort.”

34. Mr Farr also acknowledged that, on his preferred reading of s 26(1), s 26(2) is largely otiose because it would do the same work as s 26(1). Ordinarily, of course, the courts endeavour to interpret a piece of legislation so as to give effect to all of its provisions.

35. The collocation of the reference in s 26(1) to powers and duties with the proscription in s 26(2) of “use of position” tends strongly, I think, to support Mr Callaghan’s submission that the reference in s 26(1) to powers and duties is to powers and duties which are truly held by or imposed on the officer in question as aspects of his or her particular office.  The exercise of these powers and duties is to be distinguished from the exercise of a mere opportunity to do an act in breach of the general obligation to act honestly.  In my respectful opinion, it is no answer to this point to say that the appellant was legally entitled to describe himself as a Commissioner of ATSIC and to use the letterhead of a Commissioner only because he held office as such and doing so was incidental to holding that office.  The appellant was not charged with dishonest use of his position under s 26(2) of the Act.  Further, it may be correct to say that the powers and duties of a Commissioner arise solely by or under the Act in a general sense, but whether or not the duties of a Commissioner were specified in a more immediate and direct way by resolution or the adoption of a duty statement, or were assumed by the appellant because of the way in which he conducted himself, depends on matters of evidence which, because of the way the case against the appellant was formulated and presented, have not been addressed.  Nor is this difficulty resolved by reliance upon s 23(1) of the Act which obliges an officer of a Commonwealth authority to “exercise his or her powers and discharge his or her duties:  (a) in good faith in the best interests of the Commonwealth authority; and (b) for a proper purpose”.  Section 23 of the Act does not prescribe the powers and duties of an officer of a Commonwealth authority:  it requires the powers and duties which it assumes apply in any given case to be exercised in good faith and for a proper purpose. 

36. It is tolerably clear that, so far as the provisions of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (“the ATSIC Act”) are concerned, the appellant had no specific power or duty attaching to his office in relation to the management or sale of ATSIC’s rights in respect of the vehicles in question.  The appellant could not arrogate to himself a power and duty by “holding himself out to have power to make representations to third parties as to the status of grant-purchased assets” as the Crown’s particulars of 18 February 2008 asserted.  This does not mean that there is a lacuna in the Act:  the dishonest use of opportunities which arise de facto in the course of office is expressly proscribed by s 26(2) of the Act.

37. Mr Farr emphasised that s 26(1) of the Act refers to the “exercise [of] … powers and discharge [of] … duties” and argued that the use of the conjunctive “and”, rather than the disjunctive “or” is significant. He contended that the conjunction serves to subject an officer to the duty to exercise all the powers of his or her office honestly. In more concrete terms, on Mr Farr’s view, the appellant was duty-bound to stop the sale of the motor vehicles rather than to facilitate their sale. The significance of the conjunctive “and” must be acknowledged, but I am persuaded that it creates more problems for Mr Farr than it solves.  The conjunction of powers and duties tends, if anything, to support the notion that the duties referred to in s 26(1) are, like powers, specific to the office in question. 

38. As I have noted, the duty propounded by Mr Farr is the general obligation to act honestly for the benefit of ATSIC. While there may be little doubt that a Commissioner of ATSIC was under a duty under the general law to exercise the powers of his office honestly, it seems unlikely that it is this general duty which s 26(1) has in mind.  That is because each of “dishonesty” and absence of a proper purpose is itself made an element of the offence created by s 26(1).  These elements are separate and distinct from the “power and duty” element.

39. The duty for which Mr Farr contends would have involved the appellant in a breach of s 26(1) of the Act even if he had not written the letters in question. To say the least, that result seems quite incongruous, given the focus of attention at trial on the letters written by the appellant and the directions given by the learned trial judge to the jury. It may well be that in writing and publishing the letters in question, the appellant was abusing his position in contravention of s 26(2) of the Act, but that was not the offence with which he was charged. And as I have said, his office did not involve a power or duty in relation to the sale of grant-purchased assets.

40. In my respectful opinion, s 26(1) of the Act, in proscribing the failure of a defendant to exercise a power and discharge a duty attaching to his or her office, assumes the existence of powers and duties which attach to the office in question; it does not itself impose any duties just as it does not itself confer any powers on the officer holder.  That the “duty” to which s 26(1) refers is not the general obligation to act honestly is made clear, I think, by the circumstance that, in s 26(1), dishonesty on the part of the officer is an element of the offence additional to the failure to exercise powers and discharge duties. 

41. For the sake of completeness, I should say that the view which I have taken of the proper construction of s 26 of the Act has no implications for the proper interpretation of s 184 of the Corporations Act 2001 (Cth).  That section creates offences by directors and other officers of corporations in terms materially similar to s 26 of the Act; but the specific powers and duties of directors and other officers of corporations are routinely found in the Corporations Act^[2] and in the constitution and resolutions of the board of any given corporation.  Individual directors and officers of corporations routinely exercise powers and duties deriving from such sources in relation to the day to day management of their corporations.  The awkwardness which arises in the present case, by reason of the prosecution’s attempt to shoehorn the charges against the appellant into s 26(1) rather than s 26(2), arises because there is nothing in the ATSIC Act to suggest that the appellant had any power or duty in respect of the day to day operations of ATSIC, and no other legal or factual basis for concluding that the appellant was exercising a power or discharging a duty as a Commissioner of ATSIC was articulated as part of the prosecution’s case against the appellant.

The directions to the jury

42. To the extent that the respondent’s submission in this Court was that the appellant’s duty “[to act] in the best interests of ATSIC [was] the positive one to prevent the transactions rather than facilitate them in order to use the proceeds of the sales”, the jury were never instructed to consider whether the appellant failed to perform that duty. While it might be argued with some force that the appellant was acting dishonestly in using his office in writing the letters in question, the jury were not asked to address the issue whether the appellant failed to exercise a power and discharge a duty to prevent the sales. That issue was never articulated to the jury. There can be little doubt the jury would have had no appreciation that this was an issue which they were required to determine. To the extent that it might have been arguable that by acting as he did the appellant may have come under a duty to alert the Commission to the prospective sales to enable the Commission to consider the appropriate action, this too was never articulated to the jury. It can be seen that the directions of the learned trial judge to the jury referred to in paras [22] and [23] above identify only mental elements of the offences charged against the appellant: the jury’s attention was not drawn to consider what act or omission on the appellant’s part could give rise to an offence. The effect of the direction was that the appellant could have been convicted simply because the jury found him to be dishonest in relation to the sale of the cars. It would not be fair to the appellant for this Court to proceed on the footing that he had accepted that there was no issue as to his acts or omissions as opposed to his state of mind.

43. In RPS v The Queen,^[3] Gaudron ACJ, Gummow, Kirby and Hayne JJ said:

“The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence … Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues.”

44. And as Hayne J said in HML v The Queen,^[4] “the trial judge must decide what are the real issues in the particular case and tell the jury, in the light of the law, what those issues are”.

45. In my respectful opinion, the directions given by the learned trial judge in this case were not apt to lay before the jury the real issues in the case against the appellant, whether that case be as it is now articulated by Mr Farr or as it might have been articulated in the light of the correct interpretation of s 26(1) of the Act.

46. Mr Farr argued that because “there can be no other reasonable conclusion than that the Appellant’s actions were within ‘power’ as discussed in s 26(1) of the [CAC Act] … it was not necessary for [the learned trial judge] to give any particular directions about this non-contentious issue …”.  But this assertion treats the fact that the appellant purported to speak for ATSIC in writing the letters in question as decisive of the question whether he was actually exercising a power truly vested in him.  It fails to come to grips with the point that, in writing the letters in question, the appellant was apparently acting outside his powers and duties as a Commissioner of ATSIC.  In this respect, this case may be contrasted with the decided cases relied upon by Mr Farr and to which I now turn. 

47. In R v Cassidy,^[5] the execution of documents on behalf of a company was within the power of the defendant as a director to sign documents on the company’s behalf.  Similarly, in R v Adler,^[6] the defendant was a director empowered to speak for his company, and in R v Williams,^[7] the defendant had signed a letter on behalf of the company that being something which a director is empowered by law to do on behalf of the company.  The position was the same in R v Lo.^[8]  In R v Evans,^[9] the defendant exercised the power of a director and financial controller of a company to manage its day to day affairs.  In the present case, the appellant had no power or duty as a Commissioner to manage the day to day affairs of ATSIC.

48. The appellant’s powers as a Commissioner of ATSIC derived from s 7, s 27 and s 44 of the ATSIC Act.^[10]  It may be argued that the appellant was empowered to raise questions concerning proposals for the disposition of ATSIC’s assets to entities of the kind associated with him at meetings of ATSIC.  It may even be arguable that he was duty-bound to exercise this power by alerting the Commission to the proposed disposition, and that his failure to do so contravened s 26(1) of the Act.  But the charges against the appellant were simply not framed in this way, and that was not the case presented to the jury.

49. In summary, the case against the appellant, as explained to the jury by the learned trial judge, did not identify the relevant power and duty which the appellant was alleged to have dishonestly failed to exercise and discharge. Accordingly, the new ground of appeal must be upheld. As a result, the appeal must be allowed. That conclusion leads to the question whether a new trial should be ordered.

A new trial?

50. Mr Callaghan argued that it is clear beyond argument that the appellant was under no duty, and possessed no corresponding power, to take steps to prevent the sale of the vehicles; accordingly, he submitted that there should be a verdict of acquittal entered for the appellant because the further prosecution of these charges is doomed to fail. I am not satisfied that that is necessarily so. As I have noted, it is arguable that under the ATSIC Act, the powers and duties of ATSIC’s individual Commissioners extended to conserving ATSIC’s interests by raising matters affecting those interests with the Commission so that it could take the necessary and appropriate steps. The sales in question may fall within the scope of this argument. Such an argument may have been open to the prosecution in this case, but it was not put to the jury for decision.

51. Mr Callaghan also opposed the making of an order for a new trial on the basis that it would be oppressive for the appellant to be subjected to a further trial. I reject that submission. A retrial would be no more oppressive for the appellant than it is for the many other accused persons who regularly find themselves in such a position.

52. In my opinion, there should be an order for a retrial.

The other grounds of appeal

53. The conclusion that the appeal must be allowed and a retrial ordered makes it strictly unnecessary to determine the other grounds of appeal, but, for the sake of completeness, I will address those grounds briefly.

54. Some of the original grounds concern alleged irregularities in the course of the trial which may be avoided by simple prudence on the part of those responsible for the conduct of the new trial. In this regard, there is a ground of appeal directed to the prejudicial effect of aspects of prosecuting counsel’s cross-examination of the appellant at trial. There is no reason to think that this problem will arise at a new trial. Similarly, on the hearing of the appeal neither party sought to support the instruction given by the learned trial judge to the jury that the ascertainment of the legal effect of the Conditions was a matter for determination by the jury. Both sides accepted as correct the view that the legal effect of the Conditions was a matter of law upon which the judge was obliged to instruct the jury. There is no reason to expect that this error is likely to be repeated at a new trial; accordingly, it is unnecessary to say anything more on the ground of appeal to the effect that the trial judge’s directions to the jury should have been more fulsome in pointing out matters of “fact” which favoured the defence.

55. Next, there is a ground of appeal relating to the change of venue. A brief statement of the history of the proceedings is necessary to an understanding of this ground. As I have noted, the appellant first stood trial (“the first trial”) in March 2008 at Charleville. After the jury had retired to consider their verdict, a note was sent to the learned trial judge. It was in the following terms: “Some of the jurors have concerns that a particular member cannot be objective as they [sic] are related to a witness.” Counsel who then appeared for the appellant informed the court that one of the jurors had been the partner of a person who was the former partner of the appellant’s personal assistant. An application was made on the appellant’s behalf for the discharge of the jury. This application was refused; but ultimately the jury were unable to reach a verdict and as a result the jury was discharged. On 29 April 2008 the Crown applied for a change of venue for the trial. The appellant opposed the change of venue. Over the appellant’s opposition, the trial was adjourned from Charleville to Toowoomba on the basis of the learned judge’s concern that the appellant’s connections with the small community at Charleville were such as to require a change of venue in order to ensure a fair trial.

56. I consider that there is no substance to the appellant’s complaint about the order for the change of venue. The appellant was unable to show that his prospects of a fair trial were in any way adversely affected by the change in venue ordered in this case much less that the change in venue resulted in a miscarriage of justice.

57. The appellant also contended that the verdict of the jury was unreasonable. The question raised by this ground of appeal is whether, on the whole of the evidence given at trial, it was reasonably open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt.

58. Putting to one side the “power/duty” issue discussed above, it is apparent from what has been said concerning the evidence adduced against the appellant that a reasonable jury could have concluded that the appellant was engaged in the pursuit of an improper purpose. As to whether or not the appellant could reasonably have been found to have been dishonest in that regard, the jury had the benefit of seeing the appellant give evidence, and of making an evaluation of him based upon his performance in the witness box.

59. Of the appellant’s evidence, it was said by his own counsel: “[I]t’s not always easy to follow, and the points that he might have been trying to make lost [sic] in a certain amount of argumentative and non-responsive testimony …”. It may well be that the appellant’s argumentative and non-responsive testimony led the jury to regard him as a man intent upon obfuscation because he had something to hide. In any event, it was open to the jury to resolve the issues as to dishonesty and lack of proper purpose against the appellant. 

Conclusion and orders

60. The appeal must be allowed, the convictions and orders made below set aside. There must be an order for a retrial.

61. There is no need to determine the respondent’s appeal against sentence.

62. MUIR JA:  I agree with the reasons of Keane JA and with the orders he proposes.

63. FRYBERG J: In my judgment this appeal should be dismissed.

64. Most of the relevant facts have been set out by Keane JA in his reasons for judgment. I shall supplement, with minimal repetition, the history of the matter given by his Honour.

Ground 5

65. When the appeal was called on, Mr Robinson sought leave to add the following ground to his notice of appeal:

“5.His Honour the learned trial judge erred when he failed to provide the jury with any instruction as to the nature and scope of the ‘power’, ‘duty’ and ‘proper purpose’ which were relevant for the purposes of s.26 of the Commonwealth Authorities and Companies Act.”

The respondent did not oppose leave to amend with the proviso that success of such an application should depend on whether the amended ground be found meritorious after the hearing of the appeal.  The court granted leave to amend unconditionally.

The particulars

66. On 15 February 2008, before the first trial, counsel for Mr Robinson sought “brief particulars” of the first count^[11] as follows:

“-Particularize the duty/power Mr Robinson was discharging/exercising

- What was the improper purpose Mr Robinson was engaged in”.

Three days later the prosecutor responded (so far as is now relevant):

“3.By his letters on Commission letterhead (describing himself as a Commissioner) he had … power to make representations to third parties as to the status of grant-purchased assets.

4. In doing so, a duty arose pursuant to s 26 of the CAC Act to do so in good faith in what he believed to be the best interests of the ATSIC.

As to improper purpose:

5. The question in these counts is not so much improper purpose as lack of a proper purpose, namely, the best interests of ATSIC.  It was not in the best interests of ATSIC because the grant conditions were not being fulfilled, in that the assets were no longer being utilised for the purposes of the grants, having been taken away from the present service providers and then disposed of.  However the true purpose which indicates a lack of proper purpose, is Mr Robinson’s benefiting himself by paying private legal expenses, completely unconnected to ATSIC.”^[12]

The appellant’s submissions

67. In his written outline, Mr Robinson submitted that the trial judge did not:

“(a)identify, for the purposes of s 26(1), any relevant power;

(b)identify, for the purposes of s 26(1), any relevant duty.”

68. In oral submissions Mr Callaghan SC sought on Mr Robinson’s behalf to enlarge the scope of those submissions to include failure to give instructions regarding the identification of a proper purpose. When it was pointed out that the judge had identified the “improper purpose of using the proceeds for his private legal purposes”, the submission changed to one that his Honour failed to identify for the jury the evidence relating to the existence of the purpose which was favourable to Mr Robinson. In particular it was submitted that Mr Robinson’s second letter was written after the instruction to pay his legal costs had been given.

69. In the course of the hearing of the appeal and in subsequent written submissions filed by leave, Mr Robinson advanced a number of submissions some of which might be thought to be strictly outside the ambit of the notice of appeal. He did so with a degree of encouragement from the bench and it is appropriate to deal with all of the submissions. Collectively they may be summarised as follows:

(a)There is relevantly no power which can be identified for the purposes of the offence.  There is no statutory power and there cannot be power in factual context, as it was put, because relevantly the Commonwealth Parliament can only legislate in respect of someone who occupies a relevant position;

(b)The prosecution never properly identified the relevant power;

(c)The judge failed to identify with precision the relevant power and the relevant duty.

The question whether there is any relevant duty which can be identified for the purposes of the offence was also canvassed during the discussions and it is appropriate to refer to it also.

Proper purpose

70. The oral submission may be disposed of shortly. First, there was no application at the trial for a redirection to expand on the evidence favourable to Mr Robinson regarding purpose. Second, unless Mr Robinson knew that the process of paying his legal fees was already in train at the time he wrote the second letter, the submission has in that particular no substance. We were not referred to evidence of any such knowledge. Ultimately Mr Callaghan sought to subsume the point into ground 4.

Power

71. I deal with the first and second of the summarised submissions together. The second may be also disposed of shortly. If the power identified in particular 3 is truly a power for the purposes of s 26(1)^[13] of the Commonwealth Authorities and Companies Act 1997 (“the CAC Act”), it was in my judgment adequately identified.  In any event, no such complaint was made at the trial and it is now too late to make it.  The more substantial question is whether the asserted power satisfies the requirements of the section.

72. Mr Robinson submitted that the power described in the section was restricted to one expressly (or perhaps impliedly) conferred by statute. Unlike a company, ATSIC had no constitution, so no power could be derived from that source. The power alleged by the prosecution was not a statutory power and it was not possible to identify any such power.

73. The Crown conceded that the power alleged by it was not a statutory power, but submitted that it did not have to be. It submitted that it was sufficient that Mr Robinson did something as a Commissioner.  In the present case the uncontested evidence was that he used the letterhead of and signed his name as a Commissioner.

74. It must I think be conceded that anything done in contravention of the section must have been done as a Commissioner. Although the position of Commissioner is a full-time position,^[14] it is inconceivable that the Act was intended to refer to everything done by a Commissioner in any aspect of his or her life.  Once that is accepted it is extremely difficult to think of an act done as a Commissioner which is not done in the exercise of a statutory power, express or implied.  The position of Commissioner is a creature of statute.  Any powers vested in a Commissioner as such must surely arise by or under statute.  There are no relevant regulations; ATSIC has no constitution; and its limited powers of delegation^[15] do not allow delegation to a Commissioner.

75. To that extent I accept the submission made on behalf of Mr Robinson. Where I part company with that submission is with the proposition that the power alleged by the prosecution was not a statutory power.  In my judgment the ATSIC Act not only created the position of Commissioner,^[16] it also vested in Commissioners by implication the power to do anything reasonably incidental to the office.  Mr Robinson was legally entitled to describe himself as a Commissioner and use the letterhead of a Commissioner only because he legally held office as such and doing so was incidental to holding office.^[17]  No one other than a Commissioner had power lawfully to act in that way.^[18]  The court should not act on the Crown’s concession to the contrary.

76. “Power” in s 26(1)(a) of the CAC Act (and for that matter, “duty”) should not be narrowly construed; although this is not an appropriate context for a jurisprudential analysis of distinctions between powers, rights and authorities.  In my judgment the power which was particularised by the Crown was a power within the meaning of the section.

Duty

77. The Crown submitted that s 26

“... creates an obligation for an officer of a Commonwealth authority to honestly exercise his powers and discharge his duties in good faith and in what he believes to be in the best interests of the Commonwealth authority or for a proper purpose.  It does indeed enforce, and thereby create, a duty of good faith to ATSIC, although such a duty would be implied in any case”.

78. Section 26, like a number of provisions in Div 4 of the CAC Act, obviously has ancestors in the predecessors of the Corporations Act.  The structures of the two acts are comparable.  A historical analysis is unnecessary; it is sufficient to examine the two schemes as they stood in 2004 when the offences were allegedly committed.^[19]

79. Division 4 of the CAC Act was concerned with the conduct of officers.  Part 2D.1 of the Corporations Act was its equivalent.  Subdivision A of the former set out general duties; Div 1 of the latter did the same.  An intention to impose duties appears from s 21(1) of the former:

“(1)This Part sets out some of the most significant duties of officers and employees of Commonwealth authorities.  Other duties are imposed by other provisions of this Act and other laws (including the general law).”^[20]

80. The first substantive section in each case^[21] commenced with provisions dealing with the care and diligence of officers/directors, which were framed in equivalent terms.  Next, each dealt with the business judgment rule, again in equivalent terms.

81. Section 23 of the CAC Act provided:

“23 Good faith—civil obligations

Good faith—officers

(1)An officer of a Commonwealth authority must exercise his or her powers and discharge his or her duties:

(a)in good faith in the best interests of the Commonwealth authority; and

(b)for a proper purpose.

(2)A person who is involved in a contravention of subsection (1) contravenes this subsection.”

82. Section 181 of the Corporations Act provided:

181 Good faith—civil obligations

Good faith—directors and other officers

(1)A director or other officer of a corporation must exercise their powers and discharge their duties:

(a)in good faith in the best interests of the corporation; and

(b)for a proper purpose.

(2)A person who is involved in a contravention of subsection (1) contravenes this subsection.”

In similar vein, ss 24 and 25 of the CAC Act matched ss 182 and 183 of the Corporations Act. 

83. None of these provisions specified the consequence of a contravention of the obligations set out in them. In both acts that task was performed elsewhere. Such a breach could have both civil and criminal consequences under each Act.^[22]

84. The civil consequences were prescribed by sch 2 of the CAC Act and by Pt 9.4B of the Corporations Act.  Those provisions required a court which was satisfied that a person had contravened the obligations to make a declaration of contravention.^[23]  In each case such a declaration was conclusive evidence of the matters in it.^[24]  In each case the court might make a pecuniary penalty order^[25] or a compensation order^[26] and the provisions enabling that were similar.  Similar procedural provisions then followed in each case.

85. The criminal consequences were prescribed by s 26 of the CAC Act and by s 184 of the Corporations Act.^[27]  The former provided:

“26  Good faith, use of position and use of information—criminal offences

Good faith—officers

(1)An officer of a Commonwealth authority commits an offence if he or she:

(a)is reckless; or

(b)is intentionally dishonest;

and fails to exercise his or her powers and discharge his or her duties:

(c)in good faith in what he or she believes to be in the best interests of the Commonwealth authority; or

(d)for a proper purpose.

Penalty for a contravention of this subsection: 2,000 penalty units or imprisonment for 5 years, or both.

Use of position—officers and employees

(2)An officer or employee of a Commonwealth authority commits an offence if he or she uses his or her position dishonestly:

(a)with the intention of directly or indirectly gaining an advantage for himself or herself, or someone else, or causing detriment to the Commonwealth authority or to another person; or

(b)recklessly as to whether the use may result in him or her or someone else directly or indirectly gaining an advantage, or in causing detriment to the Commonwealth authority or to another person.

Penalty for a contravention of this subsection: 2,000 penalty units or imprisonment for 5 years, or both.

Use of information—officers and employees

(3)A person who obtains information because he or she is, or has been, an officer or employee of a Commonwealth authority commits an offence if he or she uses the information dishonestly:

(a)with the intention of directly or indirectly gaining an advantage for himself or herself, or someone else, or causing detriment to the Commonwealth authority or to another person; or

(b)recklessly as to whether the use may result in himself or herself or someone else directly or indirectly gaining an advantage, or in causing detriment to the Commonwealth authority or to another person.

Penalty for a contravention of this subsection: 2,000 penalty units or imprisonment for 5 years, or both.”

Section 184 was materially identical.

86. The CAC Act provided that ss 22 to 26 had effect in addition to and not in derogation of any rule of law relating to the duty or liability of a person because of his or her office or employment in relation to a Commonwealth authority.^[28]  Section 185 of the Corporations Act had a similar effect in relation to the corresponding provisions in that Act.

87. It will be observed that the focus of the sections just referred to was the individual officer/director. In this respect these duty provisions differed from most of those which conferred powers on directors. Generally the latter conferred powers on directors acting as the board of directors. Relatively few powers (or rights) were conferred on individual directors.^[29]

88. The similarities between the two acts mandate a harmonious construction of them. Identifying that construction requires brief reference to the functions and history of directors’ duties.

89. The practical function of directors’ duties has been described in one of the leading texts:

“The function of directors’ duties

5.4The main function of directors’ duties is to ensure the loyalty of directors to their company.  The existence of the duties is a recognition that the interests of directors may diverge from those of shareholders.  There are several ways in which the interests of directors and shareholders may diverge.  First, directors may engage in self-dealing transactions which benefit themselves at the expense of the company.  It is this type of situation which the duty of directors to act in the best interests of the company and the duty to avoid conflicts of interest are designed to regulate.  Another situation in which the interests of directors and shareholders may diverge is where directors act with insufficient care or diligence in relation to the affairs of the company.  It is to this situation that the duties of care, skill and diligence are directed.”^[30]

That applies equally under the CAC Act.

90. The historical development of directors’ duties was summarised by Owen J in The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9).^[31]  Some extracts of what his Honour wrote are particularly relevant:

“4371    Under modern systems of commercial regulation, companies are legal entities incorporated under the umbrella of a general statute.  The assets of a company are just that: they belong to the company and not to the directors or others who manage the business.  This was not always the case.

…

4374    Given the nature of the relationship it is not surprising that the law has intervened to define standards of conduct to which directors must adhere in carrying out their management functions.  But it was the courts, rather than the legislature, that initially did so.  The general law (by which I mean both the common law and equity) recognised a number of duties applying to directors:

• To act in good faith.
• To exercise powers for a proper purpose.
• To avoid conflicts of interest.
• To retain discretions.
• To exercise care, skill and diligence.

4375    Broadly speaking, the first four of those duties stemmed from the fiduciary nature of the relationship between the director and the corporation, although whether they are all (or in all circumstances) ‘fiduciary duties’ is a question to which I will return later. ...

4376    The general law duty to act in good faith was often referred to simply as a duty to act honestly and it soon came to be regarded as encompassing a responsibility to act for the benefit of the company: Richard Brady Franks Ltd v Price (1937) 58 CLR 112 at 138 (Rich J); Mills v Mills (1938) 60 CLR 150 at 188 (Dixon J).  Those cases also demonstrate the close relationship between the duty to exercise powers properly and the duty to act in the interests of the company: see Richard Brady Franks at 142; Mills v Mills at 185.

4377    The legislature was relatively slow to impose general standards of conduct for company directors.  … It was not until the second half of the 20th century that the legislature intervened to decree general standards. …

4378    It was said at the time that this was intended to be declaratory of the existing law. But that must be a reference to the civil consequences of a breach by a director of his or her obligations because s 124(3) rendered a breach of the provision an offence against the Act.  It was not an offence under the existing law. …

…

4380    When the Corporations Act 2001 (Cth) was introduced, the relevant section mirrored s 181(1) of the Corporations Law and this remains so in the current version of the legislation.  CLERP also separated the civil and criminal consequences of a breach of the provision, with a new subsection, s 184(1), dealing with the latter. ...

4381    The explanatory memorandum to CLERP said that the ‘substantive duties of directors [would] remain unchanged’ … .

4382… I refer to par 6.7 of The Explanatory Memorandum only to illustrate that the legislature, in enacting, s 181(1), intended to mirror the general law duties of directors.”

91. The history of the legislation strongly suggests that it was intended to impose duties on directors/officers.  The words of the relevant sections support that view.  Section 21(1) of the CAC Act has been quoted above.  Sections 22-25 are expressed in terms which impose obligations.  It is true that the headings to those sections include the words “civil obligation only”.  However those words are simply a label to assist in identifying the provisions as ones the breach of which will, without more, give rise to civil liability but not give rise to criminal liability.  Those sections operate to impose duties.  They do not themselves impose civil liability; that is the province of sch 2. 

92. Schedule 2 has nothing to do with the imposition of criminal liability. That liability is imposed by s 26,^[32] the terms of which assume the existence of the relevant duties.  The section makes it clear that no criminal liability attaches to the mere breach of the statutory duties.  For criminal liability to exist something more must be shown.  The additional element in relation to the duty imposed by s 23(1)(b) is either recklessness or intentional dishonesty.

93. I would therefore hold that, as a matter of law, Mr Robinson was under the duty specified in the particulars, albeit that the particulars nominated the wrong section of the act as the source of the duty. The error is of no consequence. He was also under a duty to exercise his powers and discharge his duties for a proper purpose. That duty was separate and distinct from the duty to act in good faith.^[33]  There was therefore a disconformity between the particulars and the terms of the two counts in the indictment.  No objection was taken to this at the trial.  It was the duty to act for a proper purpose to which his Honour referred in instructing the jury.  That conformed with the terms of the charge on the indictment.  Mr Robinson does not complain of duplicity in the charge.  The disconformity may therefore be disregarded.

The directions to the jury

94. Keane JA has described the relevant parts of the summing up. In short, the jury were told that the Crown must satisfy them that Mr Robinson failed to exercise his powers and discharge his duties for a proper purpose and they were told what conduct constituted the failure alleged by the Crown. The relevant power and duty were not identified and no explanation of those words was given. If there was truly an issue regarding these elements of the offence, these omissions would warrant ordering a retrial.

95. Counsel for Mr Robinson did not during his address refer to the issues of power and duty in any way which suggested that their existence was controversial, and neither side sought any relevant redirection from the trial judge. The Crown submitted that this was because those matters were not truly in issue. After referring to RPS v The Queen,^[34] Mr Farr SC submitted:

“Now that passage is import and significant, in our submission, because the fundamental task is of course to ensure a fair trial - that’s nothing surprising there - and to instruct the jury about so much of the law as they need to know in order to dispose of the issues.  Now, in our submission, the issues were clearly identified throughout the course of this trial, which I’ve already referred to and won’t repeat, but it did not involve this aspect of the powers and duties because of the factual context of this case and in the way the defence case was run.  It just did not arise.  It wasn’t an issue ….”

96. Mr Callaghan countered this by submitting that the question had been raised by counsel before the trial, and by his summing up the judge effectively ruled against counsel’s submission. It is therefore necessary to refer to some of the pre-trial history.

97. I have described above the request for particulars made by counsel for Mr Robinson on 15 February 2008.^[35]  On 19 February Mr Robinson applied under s 590AA of the Criminal Code for an order that the two counts be stayed on the basis that their inclusion in the indictment was an abuse of process, oppressive and vexatious.  He sought no order regarding the particulars.  In the course of that application his counsel made these submissions:

“Before I sit down, my submission is that the particulars that were provided in respect of counts two and four that I requested aren’t adequate.  I don’t know if your Honour has section 26 here?  That is the particular provision that – that’s 26 of the Commonwealth Authorities and Company Act.

HIS HONOUR: Yes.  I have it here.

MR GARDINER: But it, for relevant purposes, provides that an officer of the Commonwealth authority – if he is intentionally dishonest – which is sub-paragraph 1(b) – and fails to exercise his powers and discharge his duties for a proper purpose – which is sub(d) – that’s the particularised account.

If the Crown intend to proceed with that count the defence are entitled to be told exactly what are the powers or the power and what is the duty that he is said to have failed to exercise and the duty that he was said to have failed to discharge and my submission is that paragraphs 2 and 3 of the particulars that were provided yesterday don’t adequately assist in identifying those issues.

Paragraph 2 read, ‘His duties in those capacities included any authority, duty, function or power either conferred on him or which he held himself out as having.’  It’s really, in my submission, saying a duty is defined as a duty.  In my submission that’s inadequate.  So it hasn’t been, in my submission – and equally the power that
I sought to have particularised that he was exercising hasn’t, in my submission, been adequately defined.

HIS HONOUR: The duty and the power.

MR GARDINER: Yes.  It’s worthy of noting for the purposes of the argument that section 26 comes under division 4 of that Act referring to conduct of offices.  That’s the heading of the division that the – that the provision appears under at the top of section 21 and obviously your Honour would appreciate that that is an exact mirror of the allegations in section – in elements 5 of count 1 of the Criminal Code charge where they’re focusing on the – it’s an allegation of conduct in the exercise of his duties.  So, again, it’s an obvious example of the duplicitous exposure to prosecution that is leading to unfairness in my submission, to Mr Robinson, the way the indictment has been drafted against him.”

98. Both the request and that submission make it clear that counsel was quite aware of the need to identify the relevant power and duty for the purposes of s 26(1) of the CAC Act.  It is also clear that counsel did not on 19 February seek any order for further and better particulars.  I infer that was for tactical reasons.  As Mr Callaghan submitted before us:

“The duty [of defence counsel] is not to assist the Crown and if – to engage on that, if there is a tactical advantage in not seeking particulars then defence counsel should be allowed to do that if it is only going to serve to focus the Crown’s attention on a deficiency in the evidence which otherwise exists.  There is no obligation for the defence to cure that.”

On 26 February counsel notified the judge’s associate that he did not need to further mention the matter of particulars.  By that time the prosecution had elected to proceed only on the two CAC Act charges as a result of the judge’s ruling of 21 February.  That was the last time the question of particulars was raised.

99. Counsel were again before Samios DCJ on 15 August 2008 when Mr Robinson sought a direction restraining the prosecutor from addressing the jury on a basis raised at the first trial and said to be inconsistent with a ruling of the judge. In the course of a comprehensive listing of the directions for which he contended, counsel submitted that the judge should direct the jury at the forthcoming trial that they would need to be satisfied beyond reasonable doubt that at the time of writing the letters Mr Robinson possessed the power and was under a duty in his capacity of ATSIC Commissioner. That submission was not related to the subject matter of the application, and unsurprisingly it was not submitted that the judge would have to direct the jury in greater detail than that. It does show that counsel remained conscious of the need for the prosecution to prove the existence of a relevant power and duty.

100. In my judgment these circumstances are insufficient to support the submission made on behalf of Mr Robinson. The judge at no time refused to direct the jury about the elements of power and duty, nor did he reject any submission that he do so in greater detail than he did.

101. Mr Callaghan further submitted, “[O]n issues like this and in a trial like this you can’t contract out of a need to instruct a jury on the elements of the offence.” I reject that submission.  An accused can formally admit an element of an offence.  Why should he not demonstrate his willingness to cooperate in the administration of justice by dispensing with the need for the jury to be instructed in detail about an element which is not really in issue?  It is unnecessary, and in the absence of full argument undesirable, to discuss the precise applicability of the legal concept of waiver in this context.  It is well settled that an accused is ordinarily bound by his lawyer’s conduct of the case.^[36]  In the present case counsel did not contest the prosecution’s proof of power and duty.  A trial judge is not obliged to explain the legal meaning of elements of the offence, proof of which is not really in issue.^[37]  In such cases, an appeal court will not look favourably at a ground which asserts that the judge should have said more.  The absence of a direction in such circumstances is the product of the adversarial system.  The trial will not have been unfair, and fairness is the central thesis of the administration of criminal justice in Australia.^[38]

102. I hold that the summing up was in this respect adequate. It follows that ground 5 in the notice of appeal fails.

Grounds 1 and 4

103. I agree with Keane JA that these grounds should be rejected, for the reasons given by his Honour.^[39]

Ground 2

104. Ground 2 was:

“The learned trial judge erred in not discharging the jury when it was suggested to Mr Robinson in cross-examination that an audited report by KPMG Accountants of the Bidjara Legal Service discovered approximately $700,000.00 had gone missing and that a ‘fair bit of it went to’ Mr Robinson.”

The trial context

105. The cars referred to in Mr Robinson’s two letters were owned by two aboriginal corporations.^[40]  By way of background the Crown led evidence about the history of those organisations.  Mr Robinson had been a board member of each until 30 June 2003 when he was forced to resign as a result of a requirement that no ATSIC Commissioner hold a position with an ATSIC funded organisation.  In the latter half of 2003 the activities of ATSIC came to be carried out through a government agency, ATSIS.  In late 2003 ATSIC decided to withdraw funding from both Bidjara organisations for alleged breaches of conditions of grants.  This decision was controversial and politically charged.  Whether it was validly made was irrelevant to the issues in the trial, but Mr Robinson attempted to use the proceedings to demonstrate that it was at least unwarranted.

106. He did this in a number of ways, but two are presently material. First his counsel elicited in cross-examination of a Crown witness a statement that one of the organisations had not been in breach of any funding arrangement.^[41]  Second he tendered a 2004 report to ATSIC by two Commissioners^[42] appointed “to have an independent look at the situation”.  The prosecutor objected to the tender, but the judge admitted it as evidence of a matter affecting Mr Robinson’s state of mind, which itself was said to be relevant to how Mr Robinson subsequently acted.

107. Unfortunately, when it came to cross-examination, the initial focus was not on Mr Robinson’s state of mind but on whether there had in 2003 been any breach of grant conditions:

“Now, you gave some evidence yesterday, didn’t you, and had a document tendered, about this whole business of somehow the Bidjara organisations not really being in breach, or it was only some minor dispute about self-generated funds, something like that?  Is that the story?-- That’s correct.  I’ll tell you - I’ll tell you how a breach occurs.  Do you want me to explain that to you and jury how the breach occurs?

Well, is one example 400,000 missing dollars?  Would that be a breach-----?-- Well-----

-----Mr Robinson?-- No, there’s no $400,000 missing, Mr Kent.  Well, we’ll see about that?-- Mr Kent, there’s no $400,000 missing.  There’s been no complaint to any fraud awareness unit or the Office of Audit and Evaluation in regards to that.

That is not true.  That’s incorrect.

…

About 300,000 for the legal service?-- I’ve got a document in my pocket here - right - that proves you’re wrong.

Okay?-- Do you want me to pull it out and show it to the jury?

We might stick to my documents in a minute, Mr Robinson?-- This is a legal document.

You agreed or you said yesterday, didn’t you - I think we agreed about this: Mr Alfredson organised for an audit of the Bidjara organisations by KPMG?-- Yeah.  How that - how that went - and I’ll explain it to you again-----

Well, you probably just need to answer that question?—Just for the jury so we - they know what we’re talking about.  We’ve got to explain it.  We don’t want to confuse the jury.  The Minister, Phillip Ruddick-----

All right?-- -----called for an audit in the five Bidjara organisations because of false complaint from Gibbons, right, because Gibbons hated me, a sworn enemy as you know, and when I rang him he said he was going to do a forensic audit and he’d given it to Rod Alfredson who was the director of the Office of Audit and Evaluation within - within the ATSIC unit.  Rod Alfredson then commissioned KPMG, a firm of chartered accountants, to do the audit.”

Then came a long and involved explanation of the circumstances surrounding the 2004 KPMG audit.  Shortly afterwards the prosecutor returned to the topic in a more focussed way:

“You heard about, didn’t you, the results of the audit that created all these problems, the ones that led to this report that you tendered yesterday from Wanganeen and Austin?  You knew what they went out about because there’d been this audit of the Bidjara organisations, didn’t you?-- Yeah, but what - that report went before the board.  Had the report you’re talking about gone before the board?

I’m just going to show you something here?-- Now, hold on a minute. I’ve asked you a question.  You talked about Austin and Wanganeen-----

Yes, unfortunately-----?-- -----so I can - so I can get-----

-----you don’t run it, you see, Mr Robinson?  I ask the questions, you see?-- Yeah.  Do you want-----

I’m showing you a document?-- Yeah.  Do you want me to get this - I want to know whether that - that - you’re talking about a report that went before the board, are you?  The board of-----

HIS HONOUR: No, Mr Robinson, just - I think at this stage, just answer the question about this document.  Mr Kent, what’s the question?

…

MR KENT: You became aware of the report, didn’t you, Mr Robinson?-- I did not.  I don’t know anything about that document and I answered you that before, and that document has never been before the board of commissioners.

So - well, how do you know that if you don’t know about the document, Mr Robinson?-- Because I never seen it before the board of commissioners, that’s how I know.

Are you saying that you’re aware of and happy to tender-----?-- Mmm.

-----the Austin and Wanganeen report that investigated these problems-----?-- Because they came before-----

-----but you don’t want to know about what the problems are?-- No, no.

Is that the case-----?-- No.

-----Mr Robinson?-- No, this document is an invalid - and you know that document.  You showed me the original to that document, and that’s where you made your mistake.

…

MR KENT: Yes.  You well knew, I suggest, when in late December 2003, January 2004, that after the Bidjara audit by KPMG, the legal service was, firstly, found to not meet the standards of good corporate Governments or financial management.  You knew that, didn’t you?-- Can I ask you a question in regards before I answer?

Well, I’d rather you answer mine if that’s okay?-- No, I didn’t know that.

You didn’t know that.  All right?-- No.

You thought that the audit said that the legal service was perfectly aboveboard, is that what you thought?-- I never – I never seen any audit.

You see-----?-- And I say-----

-----you say, Mr Robinson, don’t you-----?-- Yeah.

-----and you want to produce in this Court-----?-- Yeah.

-----Wanganeen and Austin go off-----?-- Yeah.

-----and do some investigation, apparently by talking to the organisations-----?-- Yeah.

-----saying that everything’s ‘tickety-boo’ with Bidjara?-- No.

That’s your story, isn’t it?-- No. No, my story is – and you’re trying to make a big thing out of nothing, Mr Kent - and I’m trying to answer - give you straight honest answers, and let me just say this to you: that Austin and Wanganeen report was put before the board.  It was a board report.  It actually went before the board.  Document - you’re talking about this document here.  The first time you gave it to me, the original, it was unsigned and undated.  You gave it to me, and I told you that I’ve never seen that document before.  That document’s never been put before the board.  That document has never been sighted before the board.

Mmm?-- So you’re asking me something that I’ve never seen before.

Austin and Wanganeen went out there because there’d been a complaint about Bidjara; correct-----?-- No, I-----

-----or not?-- No.

Or did someone come round and say, ‘Gee, Bidjara’s doing well.’?-- No, no.

‘We’d better send Austin and Wanganeen off to see how good they are.’?-- No.

Is that the story?-- You heard my evidence.

You don’t want to admit, do you, Mr Robinson, about the-----?-- You want me to-----

-----700-odd thousand dollars that went missing which is the true, isn’t it, Mr Robinson?-- Mr Kent-----

Fair bit of it went to you, I suggest, Mr Robinson; is that right?

MR GARDINER: I object to that, your Honour.”

108. The jury then withdrew. After hearing submissions Samios DCJ refused to allow an adjournment to enable counsel to take instructions from Mr Robinson regarding a possible application for discharge of the jury, saying

“I’m not going to abort the trial because of the questions. Mr Robinson denied the suggestion.  Mr Kent should not continue with this line of questioning because it’s of a collateral matter and its been denied.”

When the jury returned his Honour said to them:

“Members of the jury, Mr Robinson was asked a question that implied that he may have received, illegally, funds from one of these organisations.  Now, a question – he denied it, and you must remember that he did deny it.  You also must appreciate in a trial, a question is not evidence.  To ask a question is not evidence.  The evidence is the answer.  And in this trial you have not had litigated before you, as a principal issue, any allegation about other funds from another organisation and, therefore, the defence would not be prepared to have met that allegation.  It is a collateral issue and it’s been denied, and you must not draw any adverse inference against Mr Robinson by reason of the question that was asked.”

The transcript does not record any denial by Mr Robinson, but it is apparent that when the objection was taken three people, the judge, counsel and the witness, were speaking at once. 

109. The jury then retired for morning tea. Thereupon the prosecutor placed on record his denial that he had suggested to Mr Robinson that he got the money illegally. His Honour said, “I thought that was the clear implication from the question.” The prosecutor assured his Honour that this had not been his intention.

The submissions

110. Mr Robinson submitted that the judge’s construction of the question was correct and that the prosecutor’s question was prohibited by s 15 of the Evidence Act 1977 which provides:

“15Questioning a person charged in a criminal proceeding

… .

(2)Where in a criminal proceeding a person charged gives evidence, the person shall not be asked, and if asked shall not be required to answer, any question tending to show that the person has committed or been convicted of or been charged with any offence other than that with which the person is there charged, or is of bad character, unless …

(3)A question of a kind mentioned in subsection (2)(a), (b) or (c) may be asked only with the court’s permission.

(4)If the proceeding is a trial by jury, an application for the court’s permission under subsection (3) must be made in the absence of the jury.”

He submitted that the jury should have been discharged as there was nothing that the judge could have done to undo the damage caused by the question.  He further submitted that telling the jury that the appellant had denied the suggestion when he had not done so would have misled and distracted them.

111. For the Crown it was submitted that the question was not in context objectionable; that the question was caused by Mr Robinson’s long winded and unresponsive answers which were capable of goading a normally calm advocate beyond endurance; that the question was not intended to suggest illegality; and that the judge had correctly exercised his discretion not to discharge the jury.

Discussion

112. I accept Mr Robinson’s submission that the judge’s construction of the question was correct. Against the background of questions about an audit and money being missing, a question which asserted that a fair bit of the missing $700,000 went to Mr Robinson strongly suggested that he had committed an offence other than the one with which he was charged. Thereby it contravened the opening paragraph of s 15(2).  In my judgment the intention of the prosecutor was irrelevant to the issue of whether the question was prohibited.  There is nothing in s 15 to suggest otherwise.  Nor can I see how the fact that the witness had goaded the prosecutor makes any difference.  The respondent did not identify any exception to the section which might have covered the question, and in any event, no application had been made for permission under s 15(3).

113. The judge exercised his discretion adversely to Mr Robinson, after giving the jury a direction not to draw any adverse inference against Mr Robinson by reason of the question, which, he pointed out, Mr Robinson had denied. I have no doubt that the judge would not have said this unless he had heard such a denial. I note that counsel for Mr Robinson did not suggest to his Honour that he was in error.

114. Before this Court, Mr Robinson relied on four factors for the contrary conclusion, citing R v Allouche.^[43]  The first was the nature of the objectionable remarks.  It is true that they carried a considerable sting, and that a jury might reasonably expect a Crown prosecutor not to say such a thing without a substantial foundation.  However it must also be borne in mind that Mr Robinson was a very difficult witness who persistently gave unresponsive, verbose and argumentative answers.  His Honour was entitled to conclude that the jury would doubtless take those circumstances into account in assessing the prosecutor’s conduct.

115. The second factor was the strength of the Crown case. Mr Robinson submitted that it was difficult for this Court to form any relevant assessment of the overall strength of the evidence. I reject that submission. In my judgment this was a strong Crown case and little of what Mr Robinson said in testimony diminished it.

116. The third factor was the extent of any attention by the trial judge to rectifying the matter. The judge gave the jury a direction very promptly after the incident and the direction was plain commonsense. It must have mitigated the effect of the question.

117. The last factor relied upon by Mr Robinson was whether the defence sought the discharge of the jury. In the event, the defence did not do so, but that was not for want of trying. The judge refused the adjournment needed to obtain instructions and gave his ruling on the substance of the matter. That factor therefore cannot operate adversely to Mr Robinson.

118. It is also relevant to take into account the seriousness of the occurrence in the context of the contested issues and the deliberateness of the conduct.^[44]  The context was an issue about whether Mr Robinson genuinely believed that there had been no basis for the withdrawal of funding from the two corporations.  That was at best a very marginal issue and things said in that context were unlikely to have much overall impact.  Of course that does not detract from the sting to which I have already referred.  Mr Robinson did not suggest that the prosecutor’s question had been asked in deliberate disregard of the section.

119. In my judgment Mr Robinson has not demonstrated that the discretion miscarried or that the prohibited question provided a ground for this Court to intervene. Ground 2 must be rejected.

Ground 3

120. Ground 3 was:

“The learned trial judge erred in not directing the jury in the summing-up that in determining the proper construction of the Grant Terms and Conditions, if they found the language of the terms and conditions was ambiguous or doubtful, the ambiguity or doubt ought be resolved in favour of Mr Robinson.”

121. Relevantly the judge directed the jury as follows:

“The proper construction of the agreement between ATSIC and the service provider is a matter for you in this case.  This is because you have to decide the surrounding circumstances before you could arrive at what is the proper construction.  That is, as far as the grants terms and conditions are concerned, there are two opposing claims being made on the proper construction of the agreement.  One claim is at clause 17.4 applies throughout the relationship which continues even when the vehicle is sold after 12 months.  Permission is required for the sale and disposal of the proceeds.

On the other hand, the other constructions contended for is once there is an acquittal of the grant, the vehicle belongs to the organisation, and the service provider can do what it likes with it and the proceeds too.  The proper construction of the agreement is to be reached by you after you find what are the facts and surrounding circumstances.  Here the prosecution says its plain, ordinary meaning.  Here the prosecution says on its plain, ordinary meaning the words of the agreement mean and require permission from ATSIC, even if the grant is acquitted.

A number of witnesses gave evidence to that effect.  Although what they said cannot bind you as being their opinion on the matter, what they said, though, was their experience of the terms and conditions in practice.  The defence says the surrounding circumstances here include a system, including section 20 of the ATSIC Act, to deal with a breach.  Further, the defence says that realistically a service provider is not going to sell vehicles after 12 months and pocket the money because it would not be funded further.

Further – further it is only a 12-month agreement, and finally there would be so many disputes that ATSIC funds would be taken up with Court cases over the sale of motor vehicles immediately after the 12-month period expired.  Those are the surrounding circumstances that you would take into account and it is up to you to find whether they exist or not.  Once you decide that they exist and they are the surrounding circumstances, then you can reach the conclusion that you consider is proper in the circumstances regarding the proper construction of the grants’ terms and conditions and their application.”

122. In the course of argument, counsel for Mr Robinson conceded that ground 3 as expressed could not be sustained. That concession was rightly made. The proper construction of the grants was not a question for the jury. It was a question of law which fell to be decided by the trial judge. The defence asserted that there existed some surrounding facts which affected the interpretation of the grants. Those facts are referred to in his Honour’s direction. His Honour ought to have considered whether any or all of those facts if accepted did as a matter of law affect the interpretation of the grants. If he decided that they did, he ought to have instructed the jury what the available interpretations were and on what facts they depended. It would then have been a matter for the jury to decide whether the facts existed and to apply the appropriate construction given to them by the judge.

123. In my judgment only one interpretation of the grants was open, and that was the one which arises on the plain face of the words of the grants. The facts relied on by the defence did not, individually or collectively, provide a basis for a different interpretation. Consequently there was no issue of fact affecting the construction of the grants for the jury to decide.

124. There was therefore a misdirection. However it plainly favoured the defence. Mr Robinson was unable to identify any prejudice which flowed from the misdirection.  Ground 3 should therefore be rejected.

Outcome of the appeal

125. It follows that Mr Robinson’s appeal against conviction should be dismissed.

The Director of Public Prosecutions’ appeal against sentence

126. My colleagues propose to allow the appeal and order a retrial. It is therefore futile, and probably undesirable, that I deal with the cross-appeal.