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Commissioner of Police v Antoniolli[2021] QCA 237

Commissioner of Police v Antoniolli[2021] QCA 237

SUPREME COURT OF QUEENSLAND

CITATION:

Commissioner of Police v Antoniolli [2021] QCA 237

PARTIES:

COMMISSIONER OF POLICE

(applicant)

v

ANTONIOLLI, Andrew Francis

(respondent)

FILE NO/S:

CA No 16 of 2021

DC No 78 of 2019

DC No 2347 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Ipswich – [2020] QDC 318 (Lynch QC DCJ)

DELIVERED ON:

9 November 2021

DELIVERED AT:

Brisbane

HEARING DATE:

10 June 2021

JUDGES:

Holmes CJ and Bond JA and Flanagan J

ORDER:

Leave to appeal refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDING OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE INFERENCES OF FACT INVOLVED – GENERALLY – where the respondent, in his capacity as a councillor of the Ipswich City Council (‘the Council’), had on 13 occasions bid at or authorised payments for bidding at charity auctions by way of a donation from the Council’s community donations fund (‘the Fund’) – where the respondent was convicted by a magistrate of 12 charges of fraud and one charge of attempted fraud – where the respondent appealed those convictions to the District Court – where the District Court judge found that the respondent’s use of the Fund to pay for charity auction items was neither outside nor prohibited by Council policy and that the respondent nevertheless believed that the practice was within Council policy provided that he did not benefit personally – where the District Court judge allowed the appeal and set aside the convictions – where the applicant appeals that decision pursuant to s 118(3) of the District Court of Queensland Act 1967 on grounds that, inter alia, the District Court judge erred in finding that use of the Fund to pay for charity auction items was outside or prohibited by Council policy – where leave to this Court is granted only where necessary to correct a substantial injustice – whether the District Court judge erred in finding that use of the Fund to pay for charity auction items was outside or prohibited by Council policy – whether such an error bears significantly on the District Court judge’s finding that the respondent held an honest belief that use of the Fund to pay for charity auction items was not outside policy – whether the applicant has identified a proper basis for interference by this Court in the District Court judge’s factual finding as to the state of the respondent’s belief

Criminal Code (Qld), s 408C(1)

District Court of Queensland Act 1967 (Qld), s 118(3)

Sale of Goods Act 1896 (Qld), s 29, s 30, s 41, s 59

Antoniolli v Queensland Police Service [2020] QDC 318, considered

Clark v Trevilyan [1963] QWN 11, cited

Davern v Messel (1984) 155 CLR 21; [1984] HCA 34, cited

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited

Hendle v Commissioner of Police [2020] QCA 26, cited

Hunold v Twinn [2018] QCA 308, cited

McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255, considered

Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7, cited

R v Easton [1994] 1 Qd R 531; [1993] QCA 255, cited

Ross v Commissioner of Police [2019] QCA 96, cited

Smith v Ash [2011] 2 Qd R 175; [2010] QCA 112, cited

Williamson v Betterlay Brick and Block Laying Pty Ltd (2020) 3 QR 594; [2020] QCA 52, cited

COUNSEL:

S J Farnden and S J Bain for the applicant

S C Holt QC for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the applicant

Robertson O'Gorman for the respondent

  1. [1]
    HOLMES CJ:  The applicant Commissioner of Police seeks leave to appeal, pursuant to s 118(3) of the District Court of Queensland Act 1967, against a decision of a District Court judge which set aside the respondent’s convictions by a magistrate of 12 charges of fraud and one charge of attempted fraud.

The nature of the respective appeals

  1. [2]
    The appeal to the District Court judge was brought under s 222(1) of the Justices Act 1886.  Such an appeal is, pursuant to s 223(1) of that Act, by way of rehearing on the evidence given in the proceeding before the magistrate, unless leave is given to adduce new evidence.  (That did not happen here.)  An appellate court proceeding on an appeal by way of rehearing is obliged to give the judgment it considers should have been given in the first instance, allowing for the limitations of proceeding on the record, including its disadvantage in assessing the credibility of witnesses whom it has not seen give evidence.[1]  However, “incontrovertible facts or uncontested testimony” may show the conclusions drawn at first instance to be erroneous, even though based on credibility findings.[2]  An appeal to this court, if leave is granted, is an appeal in the strict sense, involving the determination of error, not a rehearing.  The court will not set aside the factual findings of the District Court judge unless they were made without evidence or are unreasonable.[3]

The decisions appealed

  1. [3]
    The respondent was charged under s 408C(1) of the Criminal Code, which makes guilty of fraud anyone who

“…dishonestly…applies to his…own use or to the use of any person…property belonging to another…”.

A councillor of the Ipswich City Council (“the Council”), he had on 11 occasions bid at charity auctions for various items and on ten of those occasions had authorised payment for them by way of a donation from the Council’s community donations fund to the community organisation which held the auction; on the remaining occasion, no payment was made.  On another two occasions, the respondent had authorised payment of donations in circumstances where other councillors had bid at auction.

  1. [4]
    In summary, the magistrate found that the respondent knew the Council’s policy on donations did not permit the use of the Council’s community donations fund where an individual was to obtain a material or personal benefit; that he applied Council funds to his own use by authorising payment from the community donations fund to expunge the debt he (or others) incurred by bidding at the auctions and to obtain the right to the property the subject of the bid; and that he acted dishonestly by the standards of ordinary people in doing so.  Accordingly, he convicted the respondent of fraud and attempted fraud.
  2. [5]
    The District Court judge, however, rehearing the matter by way of appeal, concluded that the use of the Council’s community donations fund to pay for charity auction items was neither outside nor prohibited by Council policy; that the evidence “overwhelmingly suggest[ed]” that the respondent believed that the practice was within Council policy, provided he did not benefit personally; that the respondent had not applied the Council funds to his own use, but rather to the Council’s, for the purpose of genuine donations; and that dishonesty was not proved.  His Honour allowed the appeal and set the convictions aside.

The grounds of the proposed appeal

  1. [6]
    The applicant’s notice of application for leave to appeal appears to have merged the proposed grounds of appeal with the grounds for the application itself.  At any rate, the grounds identified are as follows:

“1. There is no evidence upon which the learned judge could conclude that the use of the Community Donation Fund for payment for charity auction items was not outside of or prohibited by policy,

Alternatively, the conclusion that the use of the Community Donation Fund for payment for charity items was not outside of or prohibited by policy was against the weight of evidence and unreasonable.

  1. There was no evidence upon which the learned judge could conclude that the payment from the Community Donations Fund for each charge was an application of funds to the Council’s use.

Alternatively, the conclusion that the payment was to the Council’s use was against the weight of the evidence and unreasonable.

  1. The learned judge erred in finding that the law of contract that applied to these transactions was inconsistent with payment enabling the respondent to exercise management and control of the auction item.
  1. The learned judge erred in finding that the prosecution had not particularised as part of its case that the respondent’s liability for the debt created by successfully bidding on auction items and the use of council funds to meet that obligation was an application of money to his own use.
  1. There was no evidence upon which the learned judge could conclude that the money bid on each auction item was well in excess of the true value of the items.

Alternatively, the conclusion that the money bid on each auction item was well in excess of the true value of the item was against the weight of the evidence and unreasonable.”

Leave to appeal

  1. [7]
    Whether leave to appeal under s 118(3) is granted is a matter of discretion as to which this court has set some general guidelines.  Leave is not granted merely on the basis that error may be shown in the judgment below.  Counsel for the applicant adverted to the principle which Bowskill SJA enunciated in McDonald v Queensland Police Service,[4] that leave would usually be granted only where an appeal was necessary to correct a substantial injustice to the applicant (as well as there being a reasonable argument that error had occurred).  However, it is difficult to see how that consideration can come into play in respect of a prosecuting authority; in that event, a more appropriate consideration is whether it is in the public interest that an appeal should proceed.
  2. [8]
    In the present case, the fact that the proposed appeal concerns an allegation of misappropriation of public money by a public official is a relevant feature of public interest.  In relation to whether error can be identified, although any appeal to this court is not by rehearing, it will be necessary to consider the evidence in the case and the reasons of both the magistrate and the District Court judge at some length in order to understand how the magistrate reached his conclusion of guilt and the District Court judge arrived at the decision that it should be reversed.

The Council’s donation policies

  1. [9]
    The Council’s community donations fund was a discretionary fund from which payments could be made to eligible community organisations.  In 2005, the year when the first of the charged offences occurred, the Council’s Community Donations Policy simply required community donations to be administered in accordance with a Community Donations Procedure.  That Procedure set out the information to be provided by councillors requesting the making of a community donation, which included whether it was for a “donation” or “grant”.  In relation to that distinction, the procedure provided:

“Identification of donations and/or grants:- Community Donation amounts provided for non-specific purposes are considered donations and would not attract GST.  However, where payment is specifically linked to a specific project, these are considered grants and GST would apply.”

Councillors were responsible for providing:

“…all relevant request details for Community Donations (including GST related documents)”.

  1. [10]
    In 2007, the Council adopted the Grants, Donations, Bursaries and Scholarships Policy, expressed to be for the purposes of reporting in accordance with the requirements of the Local Government Financial Standard 2005.  Made pursuant to s 502 to the Local Government Act 1993, which allowed the making of standards about financial management policies and principles with which local governments must comply, the Local Government Financial Standard required local governments to prepare and comply with a policy about grants to community organisations.[5]  (The term “grants” was not defined or limited to any particular type of payment.[6])  Such a policy was required to state the types of grants appropriate to receive council funds; eligibility criteria; the procedure for approving a grant; and that a grant could be given only if the local government were satisfied that it was to be used for a purpose in the public interest and met the criteria set out in the policy.[7]  On the repeal of the Local Government Finance Standard in 2009, the Local Government (Finance, Plans and Reporting) Regulation 2010[8] and, subsequently, the Local Government Regulation 2012[9] operated to similar effect.
  2. [11]
    The Grants, Donations, Bursaries and Scholarships Policy provided a “governing framework” for payments of the kind described in the Policy’s name to community organisations and individuals whose activities benefited the City of Ipswich.  Generally the Policy set out the aims which the grants, donations, bursaries or scholarships were to meet and provided that procedures would be established setting out eligibility, assessment and acquittal criteria for the provision of funding.  The Policy defined “community organisations” in accordance with the Local Government Finance Standard and set some location requirements for eligibility.  Importantly for present purposes, the Policy defined “donation” as follows:

“A donation is a cash and/or non-cash contribution to an individual or an organisation that may be associated with a particular event, purpose or project but does not carry with it any specific requirements for use, nor any acquittal requirement. In addition, the contribution does not seek benefits in exchange.”

“Grant” was defined as

“…a sum of money given to organisations or individuals for a specified purpose directed at achieving goals and objectives consistent with government policy”.

  1. [12]
    In late 2008, the Grants, Donations, Bursaries and Scholarships Policy was amended to prohibit the making of community donations to individuals, and the definition of “donation” was amended correspondingly, to remove the reference to individuals.  The policy continued in similar terms over the rest of the period relevant to the charges, although from 2013 it referred to “legislative requirements under the Local Government Regulation 2012” in place of the reference to the Local Government Finance Standard.
  2. [13]
    From 2008, the Council adopted a more detailed Community Donations Policy, which specified as “related links” the Local Government Finance Standard and the Grants, Donations, Bursaries and Scholarships Policy.  Its purpose was said to be to provide a “defined mechanism” for “receipt, assessment, distribution, acquittal and recording of Community Donations”.  The Community Donations Policy dealt specifically with donations, identified some eligible organisations and other ineligible entities, and under the heading “Application Process”, required an organisation seeking funds to make a request to the mayor or a councillor, who was to endorse it and to provide the relevant information for its assessment.  Again, it was recognised that in some circumstances, a donation might be regarded and treated as a grant:

“Community Donation amounts provided for non-specific purposes are considered donations and would not attract GST.  However, where a material benefit is received by Council as a result of a donation, these may be considered grants and GST may apply and will be the responsibility of the recipient of the funding.”

Where that occurred, certain further information had to be provided by the mayor or councillor.  The Council’s Community Development Branch was to deal with requests for donations and would require acquittal forms to be submitted by organisations receiving donations above a certain amount.  The Community Donations Policy continued in similar terms over the period of the charges; including the passage dealing with the prospect that donations resulting in a material benefit would be considered grants.

  1. [14]
    The Council’s chief executive officer and Council officers to whom he sub-delegated held financial delegations to approve community donations under the Community Donations Policy; the mayor and councillors did not, although the Policy provided for their endorsement of requests for donations.  The manager of the Community Development Branch, who held such a delegation, gave evidence as to the procedure for approving donations, which involved assessment of them against the Community Donations Policy.  She said that if the claim were made in respect of an item bought at auction, the donation application would be rejected.
  2. [15]
    In June 2017, the Crime and Corruption Commission commenced to execute a series of warrants on the Council, seeking documentation in relation to applications for community donations.  After the arrest of the chief executive officer, an acting chief executive officer, Mr Kellar, took charge of the Council’s administrative affairs for a period commencing in October 2017.  He gave some evidence about the role, so far as policy matters were concerned.  Not surprisingly, he said that the chief executive officer had no power to amend Council policy.  If there were a question about the interpretation to be given to a policy, it would be resolved by asking the Council itself to clarify its intent and to pass a resolution confirming that interpretation, or, in some instances, by obtaining legal advice as to the correct interpretation.
  3. [16]
    Councillors who did not have financial delegations ought not, Mr Kellar said, to be acquiring items at auctions held by community organisations; purchases of that kind should be dealt with under the Local Government Regulation and the Council’s own procedures.  If he had been asked to approve a donation in payment for an item which had been purchased by a councillor at an auction, he would have said the donation was not validly made within the policy.  During his period working as chief executive officer, he became concerned that the donation policies were not sufficiently clear and that administrative staff were put in a difficult position, which led him to withdraw all financial delegations and require approvals to come through his office.

The prosecution evidence relating to the charges

  1. [17]
    The 13 charges involved 13 successful bids at auctions held by community organisations between 2005 and 2017 which (with the exception of the attempt charge) were then followed by the respondent’s approval of donations from the community donations fund to the relevant organisation.  The evidence as to what occurred in each instance was largely in the form of an agreed set of admissions.  Charge 1 concerned a painting which the respondent had himself painted and donated for the purpose of a school P&C’s auction, which took place in August 2005.  He bid $700 on it; he explained in an interview that he did not want anybody else to get his art, so he “bought it back”.  Subsequently, he gave his approval for payment of that amount from the community donations fund.  The painting was hung in the respondent’s divisional office.  In subsequent stocktakes of Council assets, it was identified as his property, as distinct from Council property, in a document signed by him.
  2. [18]
    Charge 2 related to a $250 bid for a rugby league jersey, a replica of a jersey worn by an Ipswich team in the early 20th Century, auctioned by an Ipswich football club in July 2010.  The club sent an invoice for that amount to the respondent but was directed by his electorate officer instead to seek a donation.  The respondent then supported the application, with an accompanying document which referred to assisting in rugby league century celebrations, without mention of auction or the jersey itself, and it was duly paid.  The jersey remained in the respondent’s divisional office.
  3. [19]
    The third charge concerned a “pamper pack” auctioned in support of a hospice in October 2011.  The respondent bid $200.  Subsequently, when the hospice emailed seeking payment for the item, its staff were directed to complete a community donation request form seeking a donation, which was approved by the respondent and paid.  The accompanying paperwork made no reference to an auction or the pamper pack.  After the donation was paid, the respondent collected the pamper pack, but what became of it afterwards is not known.  The prosecution accepted that it had not been given to any of the defendant’s daughters, and that the respondent had, a year later, given an item meeting its description to another community organisation to raffle.
  4. [20]
    Charge 4 concerned another auction by the hospice in March 2012 at which the respondent had successfully bid $1,000 for three pieces of art, of which he took immediate possession.  His electorate officer sent the hospice a community donation request form advising that a tax invoice could not be accepted, to which a hospice staff member responded by completing and returning the form as an attachment to an email.  In the body of the email, the hospice staff member asked that the hospice’s tax invoice be disregarded.  The email chain was sent with the form and the respondent’s approval for payment to the Community Development Branch, but the hospice email was altered by deletion of the words “please disregard our tax invoice”; and the earlier email advising that the tax invoice could not be accepted was omitted.  Again, the paintings were shown in Council stocktake documents signed by the respondent as belonging to him, not the Council.
  5. [21]
    The prosecution offered no evidence on charge 5.  Charge 6 concerned bidding by the then mayor of Ipswich, Mr Pisasale, rather than the respondent, at a school auction fundraiser in July 2012.  The school was advised that items at the auction would be paid for by the mayor and other councillors, including the respondent, who would contribute an amount of $500, attributed to the purchase of a print.  The school was forwarded a completed community donations form, which it returned, resulting in the respondent’s approval of a donation of $500 to the school.  The object of the donation request was said to be assisting with costs associated with the school’s 19th anniversary celebrations.  The print was subsequently displayed in the administration area of the Council’s office.
  6. [22]
    Charge 7 reflected the respondent’s successful bid of $250 for another pamper pack auctioned at a fundraiser for the hospice in October 2012.  A few days later, the hospice emailed the respondent’s office, confirming that he was the successful bidder and that the item was available for collection, and asking if a tax invoice should be raised.  The respondent’s administration officer returned a blank community donation form instructing the hospice to use the words “donation only”.  Those emails were removed from the request for processing of the donation application, which the respondent approved, resulting in a payment of $250 to the hospice.  The fate of the pamper pack is unknown, but again the prosecution admitted it was not given to any of the respondent’s daughters.
  7. [23]
    Charge 8 concerned a May 2014 fundraising auction of art painted by students at a special school.  In this case, another councillor bid $1,110 for four pieces of art, and the respondent and the mayor agreed to be involved in the payment process.  The respondent approved a payment of $350 on a donation request form which stated the purpose of the donation as to help transport special students.  The payment of $350 was duly made and the respondent received one of the paintings.
  8. [24]
    In August 2014, the respondent attended a fundraising dinner for a charitable organisation at which he successfully bid $400 for a bicycle.  The following day, he approved a payment from the community donation fund in an amount of $1,400 which incorporated the bid amount, and it was paid, giving rise to charge 9.  Again there was no reference in the paperwork to the auction or the bicycle.  The respondent collected the bicycle, unknown to any of his staff.  In cross-examination, it was put to him, and he agreed, that he already had the bicycle in his possession when he approved the donation.  Four years later, in April 2018 (the respondent by then having become mayor), it was located in his garage as a result of his informing a Council officer of its presence there.  He had asked the officer to help him catalogue and store some items of property and to go to his house to take possession of the bicycle.  The respondent informed the officer that he had left it covered by a blanket and considered it to be Council property.  There was some rust on it.  The bicycle was designed to be ridden by a woman, and the prosecution admitted that the respondent’s daughters had not used it.
  9. [25]
    Another councillor, Mr Morrison, the founder of the organisation which held the auction, who had been present when the bid for the bicycle was made, said that it was a well understood practice that councillors would bid at auctions and subsequently make donations from the community donations fund.  He had done likewise, returning the items he had purchased to the organisation which auctioned them.  He was not aware that there was any relevant Council policy and believed that the practice was permissible, provided there was no personal gain involved.  Mr Morrison did not make any mention of removing references to auction in the paperwork seeking payment of donations.
  10. [26]
    Charge 10 again concerned paintings purchased by the respondent, this time for a total of $400 at a fundraising auction held in November 2014 by a domestic violence support centre.  The organisation twice emailed the respondent’s Council office, seeking payment for items on the which the respondent had bid, and providing an invoice in the amount of $400 for “auction item[s]”.  In a July 2015 email, it was indicated that the issue needed to be resolved to the satisfaction of the organisation’s auditor.  Those references were omitted from the email chain sent with a donation request approved by the respondent for processing by the Community Development Branch.
  11. [27]
    Charge 11 arose from the respondent’s successful bid of $500 for a gym membership at a youth service’s fundraising auction held in May 2016.  He received a voucher for the membership in the mail some weeks later.  The organisation emailed the respondent seeking payment and offering to send an invoice.  The respondent’s electoral officer then forwarded a blank community donation request form to the organisation with instructions that it seek a donation towards its fundraising dinner, which it did.  That request was approved by the respondent and the amount of $500 paid.  Again, the accompanying documentation contained no reference to the auction or the gym membership.  There was no evidence that the gym membership was taken up.
  12. [28]
    Charge 12 concerned the respondent’s successful bid in May 2016 of $5,000 for a trek bicycle auctioned by a school-based charitable foundation.  The respondent did not take the bicycle with him after making the winning bid.  The organisation emailed his office, advising that payment needed to be arranged, and was instructed to seek a donation.  It completed a community donation request as instructed in the amount of $5,000; the purpose of the donation was simply put as “donation to Foundation”.  The document sent to the Community Development Branch contained the further information that it was to provide “support and scholarship” to needy children.  It was supported by the respondent and paid.  In December 2016, the respondent received a bicycle from the bike shop which had provided the bicycle auctioned; it was, on his account, a gift.  The delay between the auction and the obtaining of that bicycle and uncertainty as to the transaction led the magistrate to conclude that he could not be satisfied beyond reasonable doubt that the respondent’s receipt of the bicycle was related to the auction.
  13. [29]
    Charge 13, the final fraud charge, arose out of the respondent’s successful bid of $255 on a “Phantom prize pack” auctioned by the National Trust in April 2017.  At the fundraising dinner at which the auction was held, the respondent told an organiser that he was a fan of the Phantom comics and would add the item to his collection.  He attempted to pay for it using his credit card, but his card was declined.  A month or so later, the National Trust emailed the respondent advising how payment could be made and he could receive the pack.  His office replied by indicating that a community donation request form had been sent and asking that the item be given to an Ipswich local who could pass it on to him.  That was followed by an email attaching a blank community donation request form, with advice that the respondent had agreed to a donation of $500 and instructing that the form be completed as requesting “a donation to support National Trust programs in the Ipswich area”.  That produced a query from its recipient, advising that the bid had only totalled $255; but on a reply email that the donation covered both that amount and an additional amount to support National Trust programs, the completed form was returned as instructed.  At the beginning of June 2017, the respondent gave his approval to the $500 donation, which was forwarded for processing by the Community Development Branch with the email chain, which had deleted from it the instructions to request a donation to support National Trust programs in the Ipswich area.  However, he did not take possession of the Phantom pack.
  14. [30]
    Charge 14, the attempted fraud charge, concerned the respondent’s successful bid of $500 on a piece of art auctioned by a religious instruction network in June 2017.  On the night of the auction, the respondent said that he would donate the artwork back to the organisation, but would also donate two amounts of $500, one representing payment for the artwork.  The organisation sent an invoice for $1,000 containing separate entries for the donation and the purchase of the artwork and some months later an email indicating that it had on a number of occasions sought payment of the invoice.  No payment was made.
  15. [31]
    The respondent took part in a lengthy interview with police working for the Crime and Corruption Commission.  The prosecution relied on some statements he made in the course of it, including what he himself had described as an “admission”: that the Council’s donations policy was “flawed”, with “very low degrees of transparency and accountability”.  There was, the respondent said,

“…a point in time when you do go, you know, creep, we’ve just crept so far away from what is a reasonable ah, where a reasonable person would look and go, you know that’s fair or hey you know that’s a little out of line.”

The prosecution’s particularisation of the charges

  1. [32]
    In respect of the first charge, relating to the 2005 auction, the particulars of the acts constituting the offence were that the respondent had requested that community funds be paid to a school P & C, had approved the payment and caused a cheque to be drawn which was then delivered to the school P & C.  In relation to the remaining 11 fraud charges, the particulars of the relevant acts were that he had requested the organisation in each case to complete a community donations form which he had provided, supported the payment of the community donation and caused it to be made by an electronic transfer of funds.  For the attempted fraud charge, the particulars were that he had purchased the painting at the auction and requested that he be contacted to arrange for payment to the recipient.
  2. [33]
    For each of the fraud charges, the funds were said to have been applied to the respondent’s use because they had been used to pay for an auction item, enabling him to exercise management and control over it.  For the attempted fraud charge, that was said to have been the intention.  In all instances, dishonesty was particularised as resulting from knowledge on the part of the respondent that Council funds or the community donations funds could not be used to pay for auction items; his knowledge of the various policies and procedures; and his lack of any honest belief that it was a permissible use of the community donations fund to pay for auction items.

The defence case

  1. [34]
    The respondent gave evidence in the hearing before the magistrate.  He had been a councillor since 2001 and in August 2017 had been elected mayor after the previous mayor, Mr Pisasale, having been charged with corruption offences, resigned.  The respondent said he was aware of both the Grants, Donations, Bursaries and Scholarship Policy and the Community Donations Policy, but he was not aware of any prohibition on using community donation funds to pay for items purchased at fundraising auctions.  His understanding of the reference to “material benefit” in the Community Donations Policy was that it precluded any personal benefit to him as an individual or as a councillor.
  2. [35]
    The respondent said that Mr Pisasale, while mayor, had advised him in around 2004 or 2005 that paying for auction items with funds from the community donations funds was within the Council’s Community Donations Policy.  The then chief executive officer of the Council, Mr Wulff, when he asked him if it was in fact permissible, confirmed that it was, provided that the item purchased was not used for his own personal purposes, but remained Council property or was “repurposed”.  Mr Wulff advised that the term “auction” should not be used in the application process.  According to the respondent’s evidence a subsequent chief executive officer, Mr Lindsay, later gave him similar advice.
  3. [36]
    The respondent said he was aware that other councillors were adopting the same practice, which reinforced his view that it was an accepted and recognised practice within the Council.  He was not aware of any requirement that items purchased at auction be recorded.  He had not regarded any of the items purchased as his personal property; he had considered them Council property and he had signed the stocktake documents without reading them carefully.  As to his intentions regarding those items, he had intended that his painting (charge 1) should remain with the Council since it had been purchased with Council funds.  He had worn the replica football jersey (charge 2) on the day of the auction, before taking it back to his office.  He had thought it might be of historical interest to the Council or might be able to be auctioned by another charitable organisation.  He believed he had given the pamper packs (charges 3 and 7) to other community groups.  He had no interest in the items for which other councillors had bid (charges 6 and 8), and for which he had agreed to contribute by approving donations.
  4. [37]
    One of the paintings he had purchased in 2012 (charge 4), which had been recorded as his property, had been used to illustrate the cover of a Council brochure.  His recollection of the event he attended in November 2014 (charge 10) was that instead of auctioning paintings, the organisation simply put a price on them.  (This was at odds with the email reference to his having bid and the invoice for auction items, as well as the admission put into evidence.)  He had made it clear that the pictures should be retained by the organisation and he had pledged money to enable that to occur.  He had received the voucher for the gym membership (charge 11) in the mail but had not used it.  He had stored the bicycle the subject of charge 9 in his garage because it was too large to keep at the divisional office.  He had meant to repurpose it with another charitable group and had forgotten about it.  He had thought of using the trek bicycle (charge 12) as a prize to encourage cycling, but after the chief executive officer of the Council had been unenthusiastic about the idea, he had asked the supplier to return the bicycle to the organisation which had auctioned it.
  5. [38]
    When he bid on the Phantom pack at the National Trust auction (charge 13), he had meant to purchase it for himself, but his credit card had been declined.  He had thought about using the community donations fund to acquire it for personal use but when someone from the National Trust had mentioned their discomfort at having to complete a donations form, he said that he would not accept the item, but would instead make a donation.  He had not intended to collect the picture which was the subject of the attempted fraud charge (charge 14).  He did not at any time believe he was doing anything dishonest; he believed he was helping the community, which, he said, was “at the core” of who he was.
  6. [39]
    Under cross-examination, the respondent accepted that he had been present when the Council resolved in 2001 to adopt the Community Donations Policy and agreed that he was involved in the Council’s adoption of the Grants, Donations, Bursaries and Scholarship Policy, which he described as the “overarching Policy”.  He maintained that he was unaware until Mr Kellar informed him at the end of 2017 that the Community Donations Policy did not permit the use of the community donations fund for the purchase of auction items.  He acknowledged that as a councillor, he had no power to commit the Council to the making of any purchase, but, he said, he had been told by the chief executive officer that items purchased at auction could be repurposed or remain the property of Council.  It only became clear to him that the practice was not permissible when Mr Kellar told him so.
  7. [40]
    The respondent did not agree that receiving an item on which he bid at an auction was a benefit if that was not his intention; the benefit was, he maintained, received by the community organisation.  He asserted that the obligation to pay arose only where he actually took possession of the item in question.  He rejected a proposition put to him, that by successfully bidding for an item which he immediately donated back to an organisation, rather than claiming it, he had made a commitment to purchase it.  All he had done was to make a donation.  It was, he said, “semantics” to say that unless he were the successful bidder, he could not donate the item.  He confirmed that he had been advised that if the donation request form indicated that it was for payment for an auction item, the payment would not be made, and if that were to occur, he might well have had to pay for it himself.  That did not occur, because, following instructions, he had made sure that the applications contained no such mention of auction items.  He said that it was “not necessarily” his understanding that the donation he approved was the payment agreed for the item bid on at auction.  He rejected a suggestion made to him that the making of bids at auctions benefited him and his popularity, saying that the question reflected a “very cynical view”.
  8. [41]
    The respondent called in his case a number of character witnesses: two church ministers, two community members involved in local sporting organisations, another involved in community groups and his wife, all of whom spoke highly of his reputation for honesty and work for the community.

The magistrate’s findings

  1. [42]
    The magistrate assessed the respondent’s evidence as

“…largely self-serving and significantly contrived particularly in relation to matters of importance”.

He regarded his responses to the questioning about whether bidding at the auctions made him popular in his community as evasive, unresponsive, disingenuous and contrived.  The magistrate found that the respondent knew that donations where a councillor obtained a personal or material benefit contravened the Council’s community donation policy (a term which his Honour seems to have used generically to refer to both the Grants, Donations, Bursaries and Scholarship Policy and the Community Donation Policy).  He was reluctant to concede that by winning an auction bid he obtained a benefit, because he knew the obtaining of benefits ran counter to the community donation policy.  The magistrate rejected the respondent’s evidence that there was no connection between the approval of donation requests and the auction bid in each case.  His denials that he was obliged to pay for an item on which he had successfully bid and that he had in consequence of payment a right to possess or control it, similarly led to an inference that he knew that he was obtaining a benefit.

  1. [43]
    The magistrate found that the respondent became aware of a practice of purchasing auction items and using community donation funds to pay for the debt resulting from the bidding from other councillors, including the then mayor.  He had received advice from the mayor and two chief executive officers of the Council

“…as to how this worked in practice by not mentioning auction items in the request form material sent to the community donations [sic] branch…”

However, his Honour did not find that that advice meant the respondent had a bona fide belief that his conduct was not beyond the Council’s policy.

“In this regard the [respondent’s] contentions that the mayor, two CEO’s, chief operating officers and senior managers knew of this practice of donations being connected to auctions and receiving advice of it being within policy is incongruous[10] to wishing to hide the true circumstance of an auction item or items being won to those who are responsible for assessing donation requests.  It begs the question, as to why someone would conceal such a circumstance to those who can authorise the request when the CEO and mayor are the apex of the council and the CEO could authorise such payments.  The only rational inference is, that the defendant knew it was wrong and impermissible to make such claim to the community development branch, the primary recipient of the request form for authorisation in those circumstances.”[11]

  1. [44]
    The deletion of emails or parts of emails referring to auctions, prizes, delivery of items and tax invoices led to the inference that the respondent knew his conduct was not honest.  In some instances, he was being pursued by the relevant community organisation for payment and he had conceded that if the Community Development Branch had rejected the relevant donation request, he would have been liable to pay.  His refusal to accept that the donation was required to pay for the auction item on which he had bid was in conflict with the overwhelming weight of the evidence, including admissions made.  His insistence that he only intended to donate money to worthwhile organisations was intended to obscure the connection between the donation fund, the request for approval and the auction item.  The putting forward of the general aim of the auction (as opposed to the object of the particular bid) as the reason for approving the donation request was designed to hide his dishonest intent.  His statement at interview, in relation to the “creep” from what a reasonable person would consider fair, spoke to his objectively dishonest intent.
  2. [45]
    While accepting that the respondent was “genuinely motivated” to assist community organisations, the magistrate rejected his evidence that he did not do so in order to enhance his own reputation and popularity.  The notion of altruism in his willingness to bid items up had to be seen in light of the fact that it was not his money but the Council’s which paid for the item.
  3. [46]
    In R v Easton[12] Macrossan CJ described an act which would amount to an application of property for the purposes of s 408C as involving

“…some deflection from the purposes of the person to whom the property belongs”.

The magistrate found that the relevant deflection of purpose in the present case was the respondent’s application to his own use of money held in the community donations fund in order, in each instance, to satisfy the debt he had accrued at auction and to obtain the right to the items on which he bid.  Accepting the defence submission that the money in the fund was intended to support community organisations, there was, nonetheless, a deflection from the Council’s use of the funds for that purpose.  The fact that its policy contemplated a donation as something which did not provide a benefit in return supported that analysis.

  1. [47]
    The respondent’s counsel had put this argument: the prosecution case in relation to the element of use was particularised as use of the funds to pay for auction items enabling the respondent’s management and control over them; but at the point at which the respondent gave the donation approvals, there was no evidence that management and control was then enabled.  The magistrate rejected any notion that there was a temporally confined aspect to the approval.  The ultimate destination of the property was immaterial.  The prosecution case was that the application of funds enabled the respondent to exercise management and control over the item; the respondent was able to, and did, exercise management and control of each item by refraining from collecting it, repurposing it, or collecting it and storing it, on the Council’s property or at his own.
  2. [48]
    The magistrate found that the respondent’s application of the funds was dishonest by the standards of ordinary and honest people.[13]  The intention which rendered his actions dishonest was evident from his knowledge that there were flaws in the donation funds system, and his admission that he was concerned about the “creep” of the practice of using donation funds to buy items; his knowledge that if an auction were mentioned in the request form it would be rejected; the practice of sending email directions to the community organisations that they ought not mention any auction; the deletion of email references to auctions, invoicing and collection of items; his recording of some items as his personal property; his failure to maintain any register of the items he obtained at auction; his lack of any attempt to advise anyone of them or how he had come by them; the storage of the bicycle in his garage; and the self-serving nature of his evidence.
  3. [49]
    As to the excuse of honest claim of right under s 22 of the Criminal Code, the magistrate found that the Crown had established the necessary dishonest intention in relation to each charge and in the process discharged its burden under s 22.

The District Court judge’s construction of the policies

  1. [50]
    The District Court judge observed that although by definition in the Grants, Donations, Bursaries and Scholarship Policy, a donation could not seek benefits in return, that was not to prohibit the receipt of a benefit.  The Community Donations Policy in fact contemplated the receipt of a material benefit as a result of a donation.  Mr Kellar’s view that the community donations fund could not be used where an auction item was received was inconsistent with the wording in the policy documents and with the way the policy had been interpreted and applied at the relevant time.  He had acknowledged that interpretation of Council policy sometimes fell to the chief executive officer.  (That was, in fact, a misunderstanding of Mr Kellar’s evidence.)  The magistrate had accepted the respondent’s evidence that the former mayor and the successive chief executive officers had told him that the practice of using the community donations fund to pay for charity auction items was acceptable.  (Again, as will later be discussed in more detail, this seems to be a misunderstanding of the magistrate’s finding.)
  2. [51]
    His Honour came to this conclusion:

“Thus the evidence showed the written statements of the donations policy did not in terms prohibit use of the CDF [the community donations fund] to pay for charity auction items, but actually contemplated receipt of a benefit in return. Further, in the relevant period, the policy was interpreted and applied on the basis that practice was within policy and legitimate. In light of this, any lack of reference to auction items or express permission in the policy documents cannot be equated with prohibition. On the basis of all of the evidence, contrary to the learned Magistrate, I conclude the use of the CDF for payment for charity auction items was not outside of or prohibited by policy.”[14]

The judge’s finding as to the application of the funds

  1. [52]
    The learned judge then turned to the question of whether the respondent had applied the funds to his own use.  The prosecution had particularised the respondent’s application of Council funds to his own use as the use of those funds to pay for the items for which he or others had bid,

“…enabling him to exercise management or control over the item”.

The relevant act was his approval or support (or intended approval or support) of the payment, in each case, of a donation.  That was problematic, since in no instance was the respondent enabled to exercise management or control of items because of his approval or support of a donation.  On the prosecution case, any entitlement to management or control of items arose when the auction bid was accepted, not when payment was made for it.  That was consistent with the law of contract and s 59 of the Sale of Goods Act 1896, which provided that the sale was complete when the bid was accepted, and with the facts.  The respondent had taken possession and control of some of the items at the time of the auction, while others were not collected by him.  In relation to those items for which others bid, the successful bidder in each case was entitled to management and control, not he.  The assertion in the prosecution particulars that the use of Council funds enabled the respondent to exercise management or control of the auction items was contrary to the evidence.

  1. [53]
    The magistrate had accepted what the District Court judge described as the applicant’s submission that the respondent became personally liable for the debt arising in each instance from the successful auction bid, so that his use of Council funds to pay it in each instance was an application of money to his own use.  That was not the particularised case, but the Judge did not, in any event, consider that the prosecution had proved on that basis that Council funds were applied to the respondent’s own use.  The proposition that the respondent had a personal liability to pay was premised on the view that the policy did not permit the use of the community donations fund for that purpose, and the judge’s conclusion was to the contrary.  On the assumption that it was not outside policy to use the community donations fund in that way, the question remained whether the debt created was the result of the respondent’s acting as a councillor or as an individual.  It was significant that he had been told by others that the use of the community donations fund for the purpose was proper; that other councillors and the mayor made similar use of the fund; and, as the magistrate had found, that the respondent was motivated to assist community organisations.
  2. [54]
    The nature and disposition of the item involved was also relevant.  The value of many of the items was likely to have been negligible, with the exceptions of the pamper packs, the bicycles, the gym membership and the Phantom pack, which were either not taken or not used.  That suggested that the purchases were altruistic.  The exception was the Phantom pack, which the respondent said he bought for his own purposes, later changing his mind.  If he had used the donation to meet his personal obligation to pay for it, that might amount to an application to the community donations fund to his own use; but his evidence was that he supported the donation to assist the community organisation.  In those cases where someone else had bid, the debt was not his.  In relation to charge 10, accepting the respondent’s evidence (contrary to the documentary evidence and the admission) that he had simply agreed before the auction to make a donation, and had not bid, there would be no debt, merely a promise to donate.  In those cases, then, his Honour reasoned, the respondent’s support for a donation must have been to aid the organisation, not to discharge a personal debt.
  3. [55]
    The purpose of the community donations fund was to support community organisations.  The nature of the items, their lack of use and that the respondent was not, in a couple of instances, the bidder, suggested that these were genuine donations made in the way suggested by the chief executive officer, engaged in by others and not outside Council policy.  The only rational conclusion was that the respondent’s support of donations from the community donation fund was a legitimate use of the money.  With the possible exception of charge 13, which concerned the Phantom pack, the prosecution had not proved an application of funds to the respondent’s use.
  4. [56]
    The magistrate had found this element of the case made out, but he had failed to consider whether and when the right to management or control of the items arose or whether it was enabled by the respondent’s supporting a donation.  He had also failed to consider that Council policy at this time had been interpreted and applied as permitting use of the council donations fund in that way, and he had erred in concluding that the Council policy did not allow the donations.  The magistrate’s conclusion that the prosecution had proved application of the funds to the respondent’s own use in relation to the charges, other than charge 13, was wrong.
  5. [57]
    In relation to charge 13, the respondent had bid for himself but ultimately refused the item and authorised a donation.  The magistrate had rejected his claim that this was a genuine donation, concluding that his conduct was dishonest, but the District Court judge did not accept his Honour’s assessment of the respondent’s evidence, for a number of reasons.  As a result, he concluded that the evidence raised a reasonable doubt as to whether the payment in respect of that charge was applied to the respondent’s own use.

The rejection of the magistrate’s finding of dishonesty

  1. [58]
    In concluding that the magistrate’s finding of dishonesty on the part of the respondent could not stand, the District Court judge took into account his own conclusion that the Council’s donations policy did not prohibit receipt of items in return for donations; that the respondent had been told that the method adopted was permissible, provided that the councillor in question received no personal benefit; and that the respondent followed the advice he was given in ensuring that the application did not refer to receipt of auction items, as did others.  That suggested that the respondent was acting honestly.  In addition, the funds went to the community organisations, not the respondent.  None of the items was used personally by the respondent or his associates and some were not actually received by him.  Many of the sums paid by way of donation were in excess of the true value of the items, consistent with their being genuine donations in support of the organisations’ fund-raising.
  2. [59]
    The magistrate’s conclusion that the respondent acted dishonestly stemmed largely from his view that the Council’s donations policy, to the respondent’s knowledge, prohibited receipt of any item in return; but the District Court judge did not accept that premise.  The magistrate’s reliance on the respondent’s acknowledgement to the police that the donations policy was flawed, lacking transparency and accountability, disregarded the context in which it was made; coming after he was informed by Mr Kellar that the practice was not legitimate.  Those statements should not have been relied on as an admission of knowledge of wrongdoing.  The magistrate’s criticism of the respondent’s claim that he received no personal benefit by obtaining items at auctions was based on an erroneous view that the policy prohibited receipt of items in return for donations.
  3. [60]
    In the District Court judge’s view, the magistrate’s finding that the respondent’s stated intention to support community organisations was an attempt to hide his dishonest intent was at odds with his acceptance of the respondent’s desire to assist community organisations.  (This is an over-simplification of the magistrate’s reasons.  The magistrate said that the respondent’s contention that his sole intention was to donate to worthwhile organisations was designed to obfuscate the connection between the donations fund the request for approval and the auction item, while the identifying of the general aim of the auction, rather than the auction itself, as the basis of the approval of the donation request was designed to hide the dishonest intent.)  It was also at odds with his acceptance that the respondent had been told what he was doing was permitted and with the judge’s own view that the practice was within policy.
  4. [61]
    The District Court judge noted in particular that although the magistrate had accepted that

“…the [respondent] was advised the practice was legitimate”,[15]

he had nonetheless concluded that he did not believe it was within policy and permissible.  That seemed to be because he did not believe that the chief executive officers would direct that applications did not include reference to auction items, but that reasoning was based on a misconstruction of the policy as prohibiting receipt of benefits in return for donations.  The judge rejected the magistrate’s finding that the respondent did not believe the practice was legitimate and in turn his conclusion that dishonesty had been proved beyond reasonable doubt:

“Although the learned Magistrate made many statements critical of the appellant’s evidence, including regarding his demeanour and manner, the finding the appellant did not believe the practice was legitimate was critical to the conclusion that dishonesty was proved beyond reasonable doubt. In my view the basis upon which the Magistrate found the appellant believed the practice was not within policy and impermissible was fundamentally flawed and inconsistent. It amounted to a finding the appellant was dishonest even though he acted entirely as the CEO said he could. This finding is based not just upon the learned Magistrate’s rejection of the appellant’s evidence, but also the conclusion the practice was outside policy and the perceived inexplicability of the direction not to refer to auction items. I reject this reasoning as demonstrating knowledge by the appellant the practice was not legitimate.”[16]

  1. [62]
    The District Court judge went on to consider and reject other matters which the magistrate had regarded as demonstrating dishonest intent: the respondent’s admission that he was aware of flaws in the system and a “creep” in practice from what a reasonable person would consider fair, which in context did not amount to an admission; the refraining from reference to auction items, which was insignificant given that the respondent had been directed in that regard; the recording of some of the artwork as the respondent’s personal property, when those items were of no real value; the storing of the bicycle at his residence when it had never been used, and the suggestion that the respondent benefited from the auction bids because his popularity was enhanced, when that was not the particularised case.  Even allowing for the magistrate’s observations of the respondent when giving evidence, his rejection of the latter’s evidence was largely based on the conclusion that the policy did not permit use of the community donations fund to purchase auction items.  That was, in the judge’s view, wrong; so that he was not bound by the magistrate’s finding in relation to the respondent’s credit and reliability.
  2. [63]
    Regarding himself, then, as entitled to reach a different view from the magistrate, the District Court judge made these findings:

“In my view, the evidence overwhelmingly suggests the appellant believed the practice of purchasing items at charity auctions was within the Council donations policy, as long as he did not benefit personally. I accept he faithfully applied the procedures for making application for payment from the CDF, as directed. All of the recipients of funds were the deserving community organisations that were attempting to raise money. The evidence shows the appellant did not in fact benefit in any personal sense, from any of the charged instances. The occasions where the appellant did not himself bid show those payments from the CDF were bona fide donations. Where the appellant himself bid, the amounts of the bids and the destination of the items show the payments from the CDF were also bona fide donations. I include in this the occasion of approval of the donation for charge 13, since the appellant nevertheless had a discretion to donate, and eventually determined to do so, independent of his decision not to purchase the item. The evidence shows the appellant was aware that others engaged in the same practice. The evidence shows that for charges 6 and 9, the payment from the CDF was actually approved by the CEO and involved multiple contributors from their respective CDF allocations.”[17]

Having made those findings, the judge concluded that the respondent’s conduct was not dishonest by the standards of ordinary decent people.  An ordinary honest person would have regarded the donations as appropriate

“…where the funds came from a source dedicated to that purpose, was [sic] consistent with the guidelines or rules applying to that use, and the appellant did not in any way benefit personally from the gift.”[18]

Dishonesty had not been proved beyond reasonable doubt; with the result that the convictions were set aside.

The applicant’s submissions

  1. [64]
    The applicant’s first proposed ground of appeal was that the District Court judge had erred in concluding that the Council’s policy permitted use of the community donation fund to pay for charity auction items.  This was posited as an error of law on the basis that it was a finding of fact made without evidence.  Counsel argued that the Grants, Donations, Bursaries and Scholarship Policy did not permit the seeking of a benefit in return for a donation, and the use of the funds to pay for purchased goods amounted to that.  The provision in the Community Donations Policy contemplating receipt of material benefit simply meant that in that instance the funding moved into the definition of “grant”.  It made no difference to the exclusion from the definition of “donation” of the circumstance where a benefit was sought.
  2. [65]
    The judge’s construction was based in part on his conclusion that the policy was interpreted and applied on the basis that the practice of paying for auction items from the community donations fund was within it and was legitimate, which in turn was based on an erroneous perception that the magistrate had found the respondent was advised to that effect.  The only evidence that he had received such advice came from the respondent himself, and the magistrate rejected it.  To the contrary, the fact that the respondent was instructed to ensure that there was no mention in the forms or in emails that the donation would be used in relation to auction debts precluded any finding that the activity was within policy.  The judge had misinterpreted the evidence of Mr Kellar as indicating that the chief executive officer had a role in interpreting policy. Mr Kellar had said that if there were a query about the interpretation of a policy it would be resolved in a number of ways, which might involve engagement with the council to clarify its intent or obtaining a legal opinion.
  3. [66]
    The error as to the policy’s effect was consequential for a number of reasons.  It formed part of the rationale for rejecting the magistrate’s findings.  The judge’s finding that the respondent’s conduct was not dishonest by the standards of ordinary decent people was based on his conclusion that the policy permitted the use of the community donations fund to buy auction items.  That conclusion had also formed the basis for his Honour’s finding that the funds were applied to the Council’s own use.
  4. [67]
    As to the second proposed ground, the District Court judge’s finding that the payments from the community donations fund were made to the Council’s use was largely based on the finding that such payments were not outside policy, but was also based on a mistaken view that there was no personal liability in the respondent to pay for the items on which he had successfully bid.  That was an error: the respondent held no financial delegation and could not bind the Council in the purchase of the items.  He was the buyer and the Sale of Goods Act created a duty in the buyer to accept and pay for goods.[19]  In instances where others bid, the respondent chose to apply the funds to obtain expungement of their liability.
  5. [68]
    As to the third ground, the District Court judge was wrong in rejecting the prosecution case that the respondent applied Council funds to pay for auction items in order to enable him to exercise management or control over the item in question.  He had reached that result on the mistaken premise that entitlement to management and control arose, under the law of contract, when the respondent’s bid was accepted, not when the item was paid for.  However, under the Sale of Goods Act, although property in the goods passed to the successful bidder at an auction, the unpaid seller had a right to retain the goods until payment of the price.[20]  Delivery and payment were concurrent conditions unless otherwise agreed, so that the buyer had to be ready and willing to pay the price in exchange for possession of the goods.[21]
  6. [69]
    In relation to the proposed fourth ground of appeal, the applicant argued that the District Court judge was wrong to find a discrepancy between the particulars provided, which said that the respondent had used the fund to pay for the item enabling him to exercise management and control over it, and the case that the respondent was personally liable for the debt, so that using the fund to meet that obligation amounted to applying it to his own use.  There was no relevant distinction between the assertion made in the prosecution case that the Council’s funds had been used to pay for the auction items and those funds having been used to pay the respondent’s personal debt (or that of others) represented by the purchase price of the goods.  The particulars reflected the position that he had a legal right to possession after payment for the goods, not before, regardless of whether he had actually taken physical possession.
  7. [70]
    In relation to ground 5, the evidence did not allow a conclusion, the applicant submitted, as to whether, as the judge had found, the amounts paid for the various items were “well in excess of the true value of the items”.  The only possible exceptions were in relation to the artworks the subject of charges 1 and 8, which the respondent himself had said were of no value.  The importance of the erroneous finding was that the judge had relied on it as explaining the respondent’s failure to refer to the auction items in supporting the donations and his identification of them as his personal property.
  8. [71]
    There was, the applicant submitted, no proper basis to reject the magistrate’s findings.

The respondent’s submissions

  1. [72]
    The respondent argued that the District Court judge had not found that the use of the Council donations fund to pay for charity auction items was within policy, but simply that it was not outside of or prohibited by policy.  In written submissions, it was contended that the finding was one of fact, which was neither unreasonable nor made without evidence and could not be disturbed on appeal.  Anyway, the issue was not whether the practice was authorised by the policy, but whether it was prohibited by it.  The learned judge was correct in observing that the definition in the Grants, Donations, Bursaries and Scholarship Policy did not prohibit the receipt of a benefit in return for a donation, and the Community Donations Policy contemplated receipt of a benefit.
  2. [73]
    Even if the District Court judge’s construction of the policy were wrong, a different construction would have made no difference to his Honour’s conclusion that the dishonest state of mind was not proved.  Rather, the judge’s conclusion was founded on analysis of a range of circumstances which independently would necessarily have resulted in a conclusion that the Crown could not prove the requisite state of mind beyond reasonable doubt.  The respondent had been given instructions as how to proceed by the two chief executive officers.  The magistrate had not found that there was some conspiracy to commit fraud in which the chief executive officers had taken part.  In the absence of such a finding, the acceptance that the chief executive officers had approved the practice carried with it an acceptance that what was occurring was within policy.
  3. [74]
    If the District Court judge had erred in his reading of the magistrate’s findings, there was no material difference between the respondent’s following instructions as to how to make the applications and his being told that the practice was legitimate; it was not the error on which the appeal was based; and in any event it could make no difference to the outcome, given the evidence on which the judge had relied as establishing that the respondent believed the practice was within the policy and did not benefit personally.
  4. [75]
    Mr Kellar had expressed his concern about a lack of clarity in the Council’s policy documents.  Also pointing to a lack of clarity in the policies was an inconsistency between the Grants, Donations, Bursaries and Scholarship Policy and the Community Donations Policy, in that the first defined a donation as not involving any acquittal process, while the second provided for acquittal.  It was not possible to say precisely whether or not the practice was within, or without, the policy, and that uncertainty precluded proof of dishonesty on a subjective or objective basis.  The practice of excluding any reference to auction items in documents supporting applications for donations could not support a conclusion of dishonesty when it was precisely what the respondent had been told to do by the chief executive officers.  Deletion of references in the forwarded emails to “auction” amounted to compliance with the instruction to make the application in a way which did not refer to auction items.
  5. [76]
    The respondent argued that the District Court judge’s findings about the nature of the transactions made it clear that the items were not sought for any purpose other than as a means of making donations to a community organisation.  The purpose of the community donations fund was to support community organisations, and the funds were directed to community organisations.  The learned judge was correct in finding that the payments were not a deflection from the fund’s purpose and were not made for the respondent’s own use.
  6. [77]
    Also relevant to the question of dishonesty was the fact that the respondent did not receive some items and did not use others, and none provided him any personal benefit.  The value of the items and the amount paid for them was consistent with the payments being donations.  The finding of fact that the value of most of the items was negligible was relatively minor, but in any event was a conclusion open to his Honour.  The respondent had endorsed payment for items he had not himself bid for, which suggested altruism.  Councillor Morrison had given evidence that the community donations fund was used by him and others to pay for auction items and there was evidence that the former mayor and other councillors had used that fund in that way.  All of those matters supported the District Court judge’s conclusion that dishonesty was not proved.
  7. [78]
    Finally, the respondent submitted, the prosecution had particularised its case on the basis that he had used the funds to pay for each item enabling him to exercise management and control over it, but in fact he had already decided what was to become of the items before approval of the donations; so that management and control were independent of payment.

Error warranting leave to appeal?

  1. [79]
    Contrary to the submission of both parties, I regard the District Court judge’s construction of the donations policies as involving the determination of a question of law, not of fact.  The Grants, Donations, Bursaries and Scholarship Policy, which provided the “governing framework” for the Council’s donations program, was expressed to be made to meet legislative requirements, and both it and the Community Donations Policy dealt with matters required by the successive regulations to be the subject of policy.  Those Policies set out the basis on which the Council could pay out funds to community organisations.  The ascertainment of the legal effect of expressions contained in them – and in particular the definition of “donation” in the Grants, Donations, Bursaries and Scholarship Policy – involved a question of law.[22]
  2. [80]
    The learned District Court judge was correct up to a point in his construction of the Grants, Donations, Bursaries and Scholarship Policy; as he said, it did not prohibit receipt of a benefit in return for a donation.  The magistrate expressed that Policy too broadly when he spoke of its being contravened where a benefit was obtained.  But the District Court judge appears to have gone a step further and regarded the fact that the Community Donations Policy contemplated receipt of a benefit as warranting a conclusion that the use of the community donations fund to pay for charity auction items was within the Grants, Donations, Bursaries and Scholarships Policy.[23]  The difficulties with his reasoning are twofold.
  3. [81]
    Firstly, the definition of “donation” in the Grants, Donations, Bursaries and Scholarship Policy, excluded contributions which sought benefits in exchange.  That is consistent with the ordinary meaning of “donation”, as a gift without expectation of return; as not involving a quid pro quo.  The subsequent receipt of an unsought benefit would not change the character of the original payment as a donation, although, as the Community Donations Policy indicated, depending on the circumstances, it might require treatment as a grant for tax purposes.  But the question as to whether a contribution had the character of a donation was not answered in the case of charity auction items by saying that payment for them from the community donations fund was not expressly prohibited and that receipt of a benefit was contemplated in the Community Donations Policy.  Whether a donation fell within the Grants, Donations, Bursaries and Scholarships Policy depended on whether it was approved in order to obtain a benefit.
  4. [82]
    Secondly, his Honour’s reliance on what he understood to be the interpretation and application of the policy “on the basis that practice was within policy and legitimate” is puzzling.  There seems to have been a conflation of what the policy permitted with what those applying it understood it to permit.  Although the second was relevant to questions of dishonesty, it could not bear on what the correct construction of the policy was.  (Similarly, Mr Kellar’s opinion, and the judge’s apparent misunderstanding of his evidence, were immaterial in this regard.)  And there is this problem: the only evidence that the chief executive officers had interpreted and applied the policy on the basis that paying for auction items was legitimate came from the respondent.  Contrary to the District Court judge’s perception, the magistrate did not accept that evidence.
  5. [83]
    What the magistrate accepted was that the practice existed and that the respondent had been advised by the former mayor and the two chief executive officers that it was necessary in the process to ensure that auction items were not mentioned in the request form sent to the Community Development Branch.  But the magistrate rejected the respondent’s evidence that he believed the conduct was permissible, saying,

“In this regard the [respondent’s] contentions that the mayor, two CEO’s, chief operating officers and senior managers knew of this practice of donations being connected to auctions and receiving advice of it being within policy is incongruous to wishing to hide the true circumstance of an auction item or items being won to those who are responsible for assessing donation requests.”[24]  (italics added)

His Honour went on to conclude that the respondent knew the practice to be wrong and impermissible.  It is quite clear from the relevant passage that the magistrate accepted that the respondent was told of the practice, but not that he was told that it was within policy or legitimate.

  1. [84]
    The respondent had argued here that, the magistrate not having made a finding of criminal conspiracy between the chief executive officers and the respondent, it must follow that the chief executive officers had accepted what was occurring was within policy.  But the magistrate could not properly have made a finding of criminality on the part of persons not before the court on the strength of the respondent’s evidence when the prosecution case did not require that conspiracy be proved.  And as I have said, the magistrate made it quite clear that, given the concealment of the auction aspect, he did not accept that anyone advising the respondent had told him the practice was permissible.
  2. [85]
    The District Court judge’s error in construction of the policy was consequential.  His Honour considered the case of whether the respondent had applied funds to his own use in order to meet his personal liability for the debt arising from the successful bids on the assumption that his doing so was not outside policy.  He concluded that the payments were genuine donations for a number of reasons which included, again, that the use of the community donations fund was not outside Council policy, leading him to the conclusion that the respondent’s actions in relation to all of the charges other than charge 13 were an application of money to the Council’s own use.  The magistrate’s conclusions in that regard, the judge said, could be rejected because of his erroneous view that the Council policy excluded a benefit in return for a donation and his failure to consider that the policy was interpreted and applied as permitting the use of the fund in that way.  The magistrate’s criticism of the respondent’s evidence and conclusion that he had acted dishonestly were also based (in the judge’s view) on the erroneous premise that the use of the fund to purchase items at auction was outside policy.
  3. [86]
    Because of what he perceived as those errors, the judge regarded himself as not bound by the magistrate’s findings concerning credit and reliability in determining whether his conduct would be considered dishonest by the standards of ordinary honest people.  He, in contrast, came to the conclusion that the conduct was not dishonest by that standard because an ordinary honest person would take into account that the funds came from a source dedicated to the purpose of making payments to deserving organisations and was consistent with the rules applying to the use would not conclude that there was dishonesty.
  4. [87]
    The applicant is correct, in my view, in her contention that the error in construction of the policy was significant in the District Court judge’s conclusions.  Because of that error, and because the prospective appeal concerns whether an elected official was properly convicted of fraud in relation to public funds, a matter of public interest, I would grant leave to appeal.

Should the appeal be allowed?

  1. [88]
    The first appeal ground is made out.  However, that is not the end of the matter.  In deciding whether leave to appeal should be granted, it is necessary to consider whether the magistrate’s decision was properly set aside on other grounds which the judge accepted.  That leads to the question of whether the prosecution proved its case that the respondent had applied Council funds to his own use, which entails a consideration of the third and fourth grounds of appeal.
  2. [89]
    As the District Court judge pointed out, the prosecution case at first instance had been particularised as involving an application of funds to the respondent’s use in that they were used to pay for an auction item enabling him to exercise management and control of it; a case which his Honour did not consider to have been made out.  However, he went on to consider the case on the basis of what he said was the applicant’s submission that the application of money was also to meet the respondent’s personal liability for the debt created, which the magistrate had accepted as correct.  In relation to this, though, it does not seem in fact that the applicant had submitted at first instance that the use in question was constituted by the application of funds to the respondent’s personal liability.  That characterisation emerges for the first time in the magistrate’s reasons, in his finding that the respondent had used the money both to satisfy the debt he had accrued at auction and to obtain the right to the items in which he had bid.  That finding was then referred to in the submissions for the respondent to the District Court judge as entailing the magistrate’s acceptance of the applicant’s submissions; but in fact, no such submission was made in the applicant’s written or oral submissions to the magistrate.
  3. [90]
    There is a disparity between the case which the applicant now argues, that the use of the community donations fund to expunge the personal liability of the respondent, or others, for the debt owed as a result of a successful auction bid was an application of the money to the respondent’s own use, and the particularised case, which was of payment, not to discharge liability, but to enable the exercise of management and control over the items bought.  The magistrate found a combination of the two: the expungement of the debt in combination with the achievement of management or control.
  4. [91]
    Contrary to the magistrate’s view, the temporal aspect of the donation was not irrelevant; if the prosecution were to make out a case that the donation approval was given in order to enable management or control, the purpose of the respondent at the time the approval was given was critical, both to establishing a breach of the Council’s policy and to establishing that the respondent applied the funds to his own use in the way particularised by the Crown.
  5. [92]
    That particularised case was not consistently made out.  Although the seller was entitled, as the applicant submitted, to retain the item the subject of a successful bid until payment, pursuant to s 41 of the Sale of Goods Act, in some instances the respondent took possession of the item at the time of the auction or in the interval before the donation approval.  Property having passed at the auction, once the respondent was in physical possession, the seller’s only remedy was an action to recover the price.  Contrary to the applicant’s submission, in those instances, payment was not necessary in order to give the respondent a legal right to the goods.  It seems clear that in respect of charges 2, 4 and 9, that was the case.  In other instances (charges 1 and 7), the evidence simply did not make clear at what point possession was taken of the item.
  6. [93]
    Other items were not collected at all (charges 10, 11, and 12) and the evidence does not show when the respondent intimated his intentions in that regard, so as to allow an inference that donation approval was given for the purpose of exercising management or control over them.  (A decision not to collect an item, communicated to the seller, might amount to a form of control of it; but it is difficult to accept that the absence of collection per se could constitute management or control.)  In two instances, charges 6 and 8, others made the bids, so that payment entitled them, not the respondent, to control of the item.  In relation to charge 13, it is unclear on the prosecution case whether the respondent had indicated he would not collect the Phantom Pack before or after the donation was actually approved.  On the respondent’s evidence, the intimation was given before the approval of the donation.  In respect of charge 14, where no approval was given and the paintings were not collected, one could only speculate as to what the respondent’s purpose might have been were approval ever given.  The exception, where it seems reasonably clear that donation approval took place before possession was taken of the item in question, is charge 3, concerning the first pamper pack.
  7. [94]
    I have considered whether the applicant can argue that, notwithstanding she had framed her case as seeking payment in order to exercise management and control, it is open to convict the respondent on a simpler basis: that clearly, as he must have appreciated, there was a benefit to him in having the Council make payments from its fund to meet the commitment he had made in bidding at auction and it could rationally be inferred that was the intention of the donation approval.  But that was not, at any stage at first instance, the particularised case.  And there is the additional complication that the magistrate made the finding of dishonesty by community standards in the context of his finding (unsupported by the evidence, as I have concluded) that the respondent’s actions were for the particular purpose of obtaining control of the auction items, not merely to obtain payment of his debt.
  8. [95]
    I have also given some consideration as to whether it is arguable that the convictions should be restored in respect of charge 3, in respect of which the case that management and control was achieved by payment of the donation could be made out.  The difficulty is that all charges were heard together, quite properly, given that they involved, on the prosecution case, a common modus operandi, but they were not given separate consideration.  The magistrate made a broad finding that management and control was exercised by collecting, repurposing or not collecting the various items.  There was no focus on the purpose of each donation approval to determine whether it was within or outside Council policy – whether it was made in order to obtain a benefit – and whether, as particularised, it was given to enable the respondent to control or manage the auctioned item.  And once again, the magistrate’s further findings as to dishonesty were premised on a conclusion that the prosecution case as to the respondent’s use of the funds was made out in respect of all charges.
  9. [96]
    Thus, even though there is a charge for which could it be said, at least so far as timing is concerned, that the respondent arguably applied the funds in order to obtain control or management of auction items, the general nature of the magistrate’s findings means that it is impossible fairly to isolate and deal with that charge now.

Conclusion

  1. [97]
    There is no need to consider the remaining proposed grounds of appeal.  For the reasons I have given, I would grant leave to appeal and dismiss the appeal.
  2. [98]
    BOND JA:  I have the advantage of reading in draft the judgment of the Chief Justice.  I respectfully adopt her Honour’s careful examination of the evidence and of the reasoning of the Magistrate and, on appeal, of the District Court judge.  That enables me to express my views on what I regard to be the dispositive issues in a relatively summary way.
  3. [99]
    As the Chief Justice has explained,[25] the respondent had appealed to the District Court judge from his conviction before a magistrate on 12 charges of fraud and one charge of attempted fraud.  That appeal was successful, and, for each charge, the District Court judge set aside the conviction and entered a verdict of acquittal.
  4. [100]
    Proof of the respondent’s dishonesty was essential for all charges and required the prosecution to establish beyond reasonable doubt: (1) that the respondent had the state of mind, intention or knowledge which was said to be dishonest; and (2) that, having that state of mind, intention or knowledge, the conduct of the respondent was dishonest based on the standards of ordinary, decent people.[26]
  5. [101]
    Dishonesty was particularised as resulting from knowledge on the part of the respondent that Council funds or the community donations funds could not be used to pay for auction items; his knowledge of the various policies and procedures; and his lack of any honest belief that it was a permissible use of the community donations fund to pay for auction items.[27]
  6. [102]
    The critical findings by the District Court judge on the element of dishonesty were expressed in these terms (references to the appellant being references to the respondent in this Court):[28]

“In my view, the evidence overwhelmingly suggests the appellant believed the practice of purchasing items at charity auctions was within the Council donations policy, as long as he did not benefit personally.  I accept he faithfully applied the procedures for making application for payment from the CDF [i.e. the Community Donations Fund], as directed.  All of the recipients of funds were the deserving community organisations that were attempting to raise money.  The evidence shows the appellant did not in fact benefit in any personal sense, from any of the charged instances.  The occasions where the appellant did not himself bid show those payments from the CDF were bona fide donations.  Where the appellant himself bid, the amounts of the bids and the destination of the items show the payments from the CDF were also bona fide donations.  I include in this the occasion of approval of the donation for charge 13, since the appellant nevertheless had a discretion to donate, and eventually determined to do so, independent of his decision not to purchase the item.  The evidence shows the appellant was aware that others engaged in the same practice.  The evidence shows that for charges 6 and 9, the payment from the CDF was actually approved by the CEO and involved multiple contributors from their respective CDF allocations.

In light of these findings, I conclude the conduct of the appellant was not dishonest by the standards of ordinary decent people.  An ordinary honest person would, in my view, regard the payments to deserving organisations as entirely acceptable where the funds came from a source dedicated to that purpose, was consistent with the guidelines or rules applying to that use, and the appellant did not in any way benefit personally from the gift.  It follows that the element of dishonesty has not been proved beyond reasonable doubt in respect of each charge and the convictions should be set aside.”

  1. [103]
    In my view, the application for leave to appeal should be refused because the applicant failed to establish a reasonable argument that this Court should overturn the District Court judge’s finding that the respondent believed the practice of purchasing items at charity auctions was within the Council donations policy, as long as he did not benefit personally.  Unless the applicant could overturn that finding, dishonesty could never be established, and any appeal was bound to fail.
  2. [104]
    In order to explain why I would resolve the present application in that way, it will be necessary to address these matters:
    1. (a)
      the principles governing the discretion to grant or refuse leave to appeal;
    2. (b)
      the principles governing the approach this Court would take to setting aside a factual finding made by the District Court in its appellate jurisdiction; and
    3. (c)
      why I conclude that leave to appeal should be refused in this case.

Leave to appeal

  1. [105]
    Section 118(3) of the District Court of Queensland Act 1967 confers on the applicant, as a party dissatisfied with the judgment of the District Court in its appellate jurisdiction, a right to appeal to this Court, with the leave of this Court.
  2. [106]
    In McDonald v Queensland Police Service [2018] 2 Qd R 612, Bowskill J (with whom Fraser and Philippides JJA agreed) summarised relevant principle in these terms:[29]
  1. “(c)
    this Court’s discretion to grant or refuse leave to appeal is unfettered, exercisable according to the nature of the case, but leave to appeal will not be given lightly, given that the applicant has already had the benefit of two judicial hearings;
  1. (d)
    the mere fact that there has been an error, or that an error can be detected in the judgment is not ordinarily, by itself, sufficient to justify the granting of leave to appeal – leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected”.
  1. [107]
    Her Honour’s identification of the twin considerations of (1) an appeal being necessary to correct a substantial injustice to the applicant and (2) the existence of a reasonable argument that there is an error to be corrected, are oft applied but should not be read as if they were a statute.  The discretion is unfettered.  Whilst it is well-recognised that the mere existence of a reasonable argument that there is an error to be corrected will not usually be sufficient to justify a grant of leave, the nature of the requisite additional considerations cannot be exhaustively defined and have been expressed in different ways.
  2. [108]
    Thus, for example, in Hunold v Twinn [2018] QCA 308, Jackson J (with whom Gotterson and McMurdo JJA agreed) observed:[30]

“… usually an applicant for leave must show that the appeal will involve a question of some importance or some other reason why, in the particular case, it is in the interests of justice to grant leave.”

  1. [109]
    And in Ross v Commissioner of Police [2019] QCA 96, Wilson J (with whom Gotterson and McMurdo JA agreed) observed:[31]

“The Court of Appeal exercises a general discretion to grant leave under section 118 of the District Court of Queensland Act 1967 (Qld) depending upon the nature of the case.  An important point of law or question of general or public importance remains a sufficient, but not a necessary, prerequisite to a grant of leave to appeal.”

  1. [110]
    Finally, in Williamson v Betterlay Brick and Block Laying Pty Ltd (2020) 3 QR 594, Philippides JA (with whom Morrison JA and Applegarth J agreed) observed:[32]

“While the Court’s discretion to grant leave pursuant to s 118(3) DC Act is unfettered, leave to appeal against a decision of the District Court in its appellate jurisdiction will not be given lightly.  Given that the applicant has already had the benefit of two judicial hearings, more than mere error is ordinarily required to justify the granting of leave to appeal.  Accordingly, the applicant must demonstrate that an appeal is ‘necessary to correct a substantial injustice and there [is] a reasonable argument that there was an error to be corrected”.  Furthermore, in determining whether there is substantial injustice, the Court will generally consider ‘whether the issue is a matter of public or community importance; whether the case involves a question or principle of general importance; or whether the matter considers an important point of law’.”

  1. [111]
    As was said by Fraser JA in Smith v Ash [2011] 2 Qd R 175 at 189 [50] (footnote omitted):

“It is to be emphasised though that, whilst the Court exercises the discretion on a principled basis and those tests provide very useful guidance, s 118(3) confers a general discretion on this Court to grant or refuse leave to appeal which is exercisable according to the nature of the case.”

  1. [112]
    The present application involved a prosecutor’s application for leave to appeal from an acquittal by the District Court exercising its appellate jurisdiction.  The respondent did not dispute the jurisdiction of this Court to entertain such an application, noting that leave to appeal had been granted by this Court in other such prosecution applications.[33]
  2. [113]
    The respondent did suggest that there might be some difficulty in applying to such an application the first of the two considerations identified by Bowskill J in McDonald v Queensland Police Service and referred to at [10] above.  The proposition is literally true: an applicant prosecutor could hardly contend that an appeal was necessary to correct a substantial injustice “to the applicant”.  But in that context the phrase “to the applicant” is superfluous.  It does no damage to the language or to legal principle to observe that if a convicted person has secured an acquittal from a lower appellate court because of an appellable error by that court, that too might be capable of being regarded as a substantial injustice in a proper case.  As was observed by Mason and Brennan JJ in Davern v Messel (1984) 155 CLR 21 at 60:[34]

“The fundamental question, however, as it seems to us, is whether once the defendant appeals from a conviction at first instance, thereby setting the appellate process in motion, it is legitimate for the prosecutor by recourse to the same process to have an error on the part of the first appellate court corrected.  As Friedland comments, at p. 293, once the case is in the appellate hierarchy there is no legitimate reason why the matter should not be determined by the higher court.  The exercise, on proper occasions, of the further appellate jurisdiction is important to ensure the due administration of justice in the individual case as well as for the general administration of the criminal law.”

  1. [114]
    There is no dispute as to the significance of the second of the considerations identified by Bowskill J in McDonald v Queensland Police Service.  Ordinarily an applicant for leave to appeal must be able to persuade the Court of Appeal that it has a reasonable argument that there is an error to be corrected.  To her Honour’s statement I would add one elaboration, namely that the error sought to be corrected on appeal must be such as would support the applicant’s claim for relief.[35]  Thus, it would not usually avail an applicant to identify a reasonably arguable case of error which, even if corrected, would not justify the remedy it sought.
  2. [115]
    In summary, the principles which inform the discretion to grant or refuse leave in a prosecutor’s application for leave to appeal from an acquittal by the District Court exercising its appellate jurisdiction should not be regarded as differing in any significant way from the principles as expressed in other cases in this Court:
    1. (a)
      The discretion is unfettered, and exercisable according to the nature of the case, but leave to appeal will not be granted lightly, given that the applicant has already had the benefit of two judicial hearings.
    2. (b)
      It will usually be necessary – but not sufficient – that the Court be persuaded that there is a reasonable argument that there is an error to be corrected, which, if corrected would justify the applicant’s claim for relief.
    3. (c)
      Tests which provide useful guidance as to the nature of the additional consideration over and above the existence of a reasonable argument that there is an error to be corrected include:
      1. that leave is necessary to correct a substantial injustice;
      2. that the proposed appeal raises an important point of law or principle; and
      3. that the proposed appeal raises a question of general or public importance.

The approach this Court would take to setting aside a factual finding made by the District Court in its appellate jurisdiction

  1. [116]
    The nature of an appeal to this Court from a judgment of the District Court in its appellate jurisdiction, if leave to appeal is granted, was also a subject considered in McDonald v Queensland Police Service.  Bowskill J explained:[36]
  1. “(e)
    if leave is granted, the appeal is an appeal in the strict sense (cf s 118(8)), in respect of which the Court’s sole duty is to determine whether error has been shown on the part of the District Court, on the basis of the material before the District Court.  This Court is not engaged in a rehearing; as such, it is not this Court’s task to decide where the truth lay as between the competing versions of the witnesses; and it is not for this Court to substitute its own findings for those of the District Court judge;
  1. (f)
    a factual finding of a District Court judge, on an appeal to that court (which may be different from, or additional to those made by the Magistrate at first instance, or which may confirm the findings of the Magistrate at first instance, since the appeal to the District Court is by way of rehearing) may only be reviewed on an appeal to this Court if there is no evidence to support it, or it is shown to be unreasonable, in the sense discussed in Hocking v Bell in relation to findings of fact by a jury;
  1. (g)
    on the hearing of an appeal, this Court has power to draw inferences of fact from facts found by the District Court judge, or from admitted facts or facts not disputed, but, except where there is no evidence on which the judge below might have reached his or her conclusions, or the conclusions are unreasonable, any such inferences shall not be inconsistent with the findings of the District Court judge (s 119(1));”
  1. [117]
    It is important to understand what is meant by a factual finding being shown to be “unreasonable”.  “Unreasonable” means unreasonable in a particular legal sense, namely the sense discussed in Hocking v Bell (1945) 71 CLR 430 in relation to findings of fact by a jury.  As Gibbs J observed in Clark v Trevilyan [1963] QWN 11:[37]

“If we are bound, as I think we are, to treat the findings of a District Court judge as though they were those of a jury, we have no right to substitute our own findings for those of the District Court judge.  Our function is limited to see first whether there is any evidence in support of the findings, and secondly whether the finding can be set aside as being against the weight of evidence and unreasonable, within the meaning of the authorities discussed by Dixon J … in Hocking v Bell ([1945] 71 CLR 430 at pp 497–499).  When these tests are applied, the finding that is now attacked cannot be disturbed.  Slight as it was, there was some evidence to support the judge’s finding … There is no such preponderance of evidence against this finding as to make it unreasonable.”

  1. [118]
    It would not be enough for an applicant for leave to appeal pursuant to s 118 to show that the factual finding was reached by a course of reasoning that this Court might find unsatisfactory, or unpersuasive, or even incorrect in some respects.  In order to reach a conclusion that a factual finding of the District Court judge was unreasonable in the relevant sense, this Court would have to be persuaded, as Fraser JA observed in Hendle v Commissioner of Police [2020] QCA 26:

“… that there is an “overwhelming preponderance” of evidence against [the finding of fact] or “such a preponderance of evidence” as to make [the finding of fact] “unreasonable, and almost perverse”; see Hocking v Bell (1945) 71 CLR 430 at 499 (Dixon J)”.

  1. [119]
    The circumstance that the proposed appeal to this Court would be confined to overturning factual findings by the District Court judge only if it could be persuaded that there was either no evidence or that the finding was unreasonable in the relevant sense is particularly significant for the present case.

Leave should be refused in the present case

  1. [120]
    As the Chief Justice has identified,[38] the question at issue in the proposed appeal concerned an allegation of misappropriation of public money by a public official.  The due administration of justice in such a case is a question of public importance.  Moreover, if a public official convicted of such an offence had secured an acquittal from a lower appellate court because of an appellable error by that court, I would regard that outcome as amounting to a substantial injustice in need of correction.
  2. [121]
    To my mind, those considerations would have been sufficient to warrant a grant of leave to appeal if the applicant had been able to identify an arguable error in the decision below which, if corrected, would justify the applicant’s claim for relief.  In this case the relief sought by the applicant included that the verdicts of acquittal entered by the District Court be overturned and the original convictions be reinstated.
  3. [122]
    The problem for the applicant was that the District Court judge had found that dishonesty was not proved and in reaching that conclusion made a finding as to the respondent’s actual belief, namely that the respondent believed the practice of purchasing items at charity auctions was within the Council donations policy, as long as he did not benefit personally.  The existence of such a state of belief was antithetical to a conclusion that the respondent had the state of mind, intention or knowledge which was said to be dishonest.
  4. [123]
    On the circumstances of this case, the applicant needed to identify an arguable error the correction of which would justify overturning that factual finding.  Unless that could be done, the verdicts of acquittal could not be overturned and no other case of arguable error would be to the point.
  5. [124]
    The Chief Justice has explained that the District Court judge concluded that the use of the Community Donations Fund for payment for charity auctions was not outside or prohibited by the relevant policies which had been adopted by the Council.[39]  Further, the Chief Justice has explained in detail the reasoning by which the District Court Judge arrived at the conclusion that dishonesty had not been proved beyond reasonable doubt.[40]  I agree with the Chief Justice that the District Court judge correctly concluded that the Grants, Donations, Bursaries and Scholarship Policy did not prohibit receipt of a benefit in return for a donation, but that he erroneously concluded that a contribution made in the knowledge that a benefit would be provided by the recipient was within that policy.[41]
  6. [125]
    Where I respectfully depart from the Chief Justice’s reasoning on the question of leave is that I do not think that that error matters to the critical consideration.  I do not think that it is arguable that that error is one which, if corrected, would justify overturning the factual finding as to the respondent’s belief, when one has regard to the constraints on doing so applicable to this Court on the proposed appeal.  Unless the error justified that course, the fact of the error would not warrant a grant of leave to appeal.  In my view, the error of construction of the policy did not.  There was no necessary logical connection between what was, objectively, the proper construction of the policy, and the conclusion that one might make as to the actual state of the respondent’s belief.  And even if there was, it could not be said that there was no evidence to support the finding as to the respondent’s belief.  And the identification of the error of construction does not suggest that there was an “overwhelming preponderance” of evidence against the finding as to the respondent’s belief or “such a preponderance of evidence” as to make the finding as to the respondent’s belief “unreasonable, and almost perverse”.  Indeed, there was no real attempt by the applicant to attempt to persuade this Court to reach that conclusion or indeed to grapple at all with the operative constraint on appellate interference with that particular finding of fact.
  7. [126]
    The applicant did not identify any arguable basis for overturning the District Court judge’s finding as to the state of the respondent’s belief, having regard to the constraints on this Court’s ability to overturn a factual finding.  Unless the applicant could overturn that finding, dishonesty could never be established, and any appeal was bound to fail.
  8. [127]
    For the foregoing reasons, I would refuse leave to appeal.
  9. [128]
    FLANAGAN J:  I agree that leave to appeal should be refused for the reasons given by Bond JA.

Footnotes

[1]Fox v Percy (2003) 214 CLR 118 at 125-126.

[2]Fox v Percy (2003) 214 CLR 118 at 128.

[3]McDonald v Queensland Police Service [2018] 2 Qd R 612 at 626.

[4][2018] 2 Qd R 612 at 625.

[5]Section 4.

[6]The dictionary meaning of the term, used as a noun, is “a sum of money, etc. which is the subject of a formal grant”: Oxford English Dictionary.

[7]Section 11.

[8]Made pursuant to s 270 of the Local Government Act 2009.

[9]Also made pursuant to s 270 of the Local Government Act 2009.

[10]The words used in the transcript are “in congress”.  However, in context, the word plainly is “incongruous,” as the District Court judge recognised and counsel for the respondent accepted.

[11]Transcript Magistrates Court, 6 June 2019, at 30.

[12][1994] 1 Qd R 531 at 535.

[13]The test identified in Peters v the Queen (1998) 192 CLR 493; see also R v Dillon; Ex parte Attorney-General (Qld) [2016] 1 Qd R 56.

[14]Antoniolli v Queensland Police Service [2020] QDC 318 at [164].

[15]At [201].

[16]At [202].

[17]At [205].

[18]At [206].

[19]Sale of Goods Act s 29.

[20]Sale of Goods Act s 41(1)(a).

[21]Sale of Goods Act s 30.

[22]Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306 at 335.

[23]Although the respondent emphasised that the judge had spoken of payments not being outside the policy rather than within it, it is difficult to regard the two as materially different; and in fact his Honour did (at Antoniolli v Queensland Police Service [2020] QDC 318 [200]) express his view that “the practice was entirely within policy”.

[24]Transcript, Magistrates court, 6 June 2019 at 30.

[25]Reasons of the Chief Justice at [1] and [3].

[26]Peters v The Queen (1998) 192 CLR 493.

[27]Reasons of the Chief Justice at [33].

[28] Antoniolli v Queensland Police Service [2020] QDC 318 at [205] to [206].

[29]McDonald v Queensland Police Service [2018] 2 Qd R 612 at 625 [39], footnotes omitted.

[30]At [16], footnote omitted, emphasis added.

[31]At [11], footnote omitted, emphasis added.

[32]At 601-602 [25], footnotes omitted, emphasis added.

[33]Commissioner of Police v Al Shakarji [2013] QCA 319; Commissioner of Police v Flanagan [2019] 1 Qd R 249; Commissioner of Police v Stehbens [2013] QCA 81; Queensland Police Service v Terare (2014) 245 A Crim R 211, and Commissioner of Police v Broederlow [2020] QCA 161.

[34]In Thompson v Mastertouch TV Service Pty Ltd (1978) 38 FLR 397, the Full Court of the Federal Court had found that a generally expressed right of appeal could not without words of specific intendment override the common law protection of the right against double jeopardy so as to permit a prosecutor to appeal from an acquittal.  In Davern v Messel, the High Court approved the principle, but, by majority (Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ, Murphy and Deane JJ dissenting), concluded it would not operate in the case of an appeal from the successful outcome of an appeal initially lodged by an offender convicted at trial.

[35]see Tsigounis v Medical Board of Queensland [2006] QCA 295 per Keane JA (with whom Williams JA and Dutney J agreed) at [15].  Although McDonald v Queensland Police Service did not support observations made by Keane JA in this passage that an applicant must be able to identify an arguable error of law, there was no criticism of his Honour’s observation that the error identified as a basis for leave must be such as would support the applicant’s claim for relief.

[36]McDonald v Queensland Police Service [2018] 2 Qd R 612 at 625-626 [39], Fraser and Philippides JJA concurring, footnotes omitted, emphasis added.

[37]At 27, Mansfield CJ and Philp J concurring, cited with approval by Bowskill J in McDonald v Queensland Police Service [2018] 2 Qd R 612 at 620.

[38]Reasons of the Chief Justice at [8].

[39]Reasons of the Chief Justice at [50] to [51].

[40]Reasons of the Chief Justice at [58] to [63].

[41]Reasons of the Chief Justice at [80] to [81].

Close

Editorial Notes

  • Published Case Name:

    Commissioner of Police v Antoniolli

  • Shortened Case Name:

    Commissioner of Police v Antoniolli

  • MNC:

    [2021] QCA 237

  • Court:

    QCA

  • Judge(s):

    Holmes CJ, Bond JA, Flanagan J

  • Date:

    09 Nov 2021

  • White Star Case:

    Yes

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