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R v Maudsley QCA 268
SUPREME COURT OF QUEENSLAND
R v Maudsley  QCA 268
MAUDSLEY, Craig Kelvin
CA No 207 of 2021
DC No 558 of 2019
Court of Appeal
Appeal against Conviction
District Court at Ipswich – Date of Conviction: 30 July 2021 (Lynch QC DCJ)
7 December 2021
11 November 2021
McMurdo JA and Daubney and Boddice JJ
PUBLIC SERVICE – DUTIES AND OFFENCES IN RELATION TO OFFICE – OFFENCES – MISCONDUCT IN PUBLIC OFFICE – where the prosecution’s case was that the appellant had acted with intent to dishonestly gain a benefit for another person or to dishonestly cause a detriment to another person – where the appellant argued that the proper construction of s 92A of the Queensland Criminal Code requires the prosecution prove that, absent the relevant improper purpose or intention, the officer would not have acted as they did – where the trial judge ruled that there was no such requirement – whether s 92A imports a requirement of causation, whereby an offence is only committed if the officer would not have acted a certain way, but for, an improper purpose or intent
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION AND NON-DIRECTION – MISDIRECTION – where the trial judge directed the jury that the appellant’s guilt could be established if they found that the appellant held a dishonest intent at the time of his acts – whether the judge properly directed the jury
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR UNSUPPORTABLE HAVING REGARD TO THE EVIDENCE – where the appellant was an employee of a local council – where the appellant was in a senior position – where the appellant oversaw the restoration of land – where the council entered into an agreement with a private company such that the private company was to source and manage the emplacement of fill at a disused mine site – where the appellant facilitated the dumping of fill by another company – where that company represented, on the appellant’s instruction, that the fill was coming from a council job – where the cost of that fill was charged to the council and at reduced rate – where there was evidence that the appellant was anxious to expedite the restoration of the land – whether a properly instructed jury could have, beyond reasonable doubt, excluded the possibility that the appellant would have acted the same way without an improper purpose
Criminal Code (Qld), s 1, s 92A
M v The Queen (1994) 181 CLR 487;  HCA 63, cited
Maitland v R; Macdonald v R (2019) 99 NSWLR 376;  NSWCCA 32, considered
Question of Law Reserved (No 2 of 1996) (1996) 67 SASR 63; (1996) 88 A Crim R 417;  SASC 5674, considered
R v Llewellyn-Jones (1967) 51 Cr App R 4, considered
Shum Kwok Sher v Hong Kong Special Administrative Region (2002) 5 HKCFAR 381;  HKCFA 27, considered
Sin Kam Wah Lam Chuen IP & Anor v Hong Kong Special Administrative Region (2005) 8 HKCFAR 192, considered
SKA v The Queen (2011) 243 CLR 400;  HCA 13, cited
A J Glynn QC, with A D Scott, for the appellant
S J Bain for the respondent
Gadens Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent
- McMURDO JA: This is an appeal against the conviction of an employee of the Ipswich City Council for an offence of misconduct in relation to a public office. After a trial by a jury in the District Court, the appellant was convicted and sentenced to a term of 18 months’ imprisonment, to be suspended after four months.
- The appellant was the Chief Operating Officer of Works, Parks and Recreation at the Council. This was a senior position in which the appellant was directly answerable to the Council’s Chief Executive Officer. One of his responsibilities was to supervise the restoration of certain land, at Austin Street in Redbank Plains, which was owned by the Council and on which there was a disused mine pit. The Council’s objective was to have the pit filled so that the land could be used by the Council as a depot for its vehicles.
- To that end, the Council had a written agreement with a company called Colmine Consulting Pty Ltd (Colmine), the director and owner of which was Mr Donegan. Under that agreement, Colmine was to manage the Austin Street site, and the emplacement of fill in the pit. Part of Colmine’s remuneration under the agreement was to come from charges which it could make for fill being dumped there. If fill was delivered to the site by the Council, Colmine could charge the Council at the rate of $1.50 per tonne. If a third party delivered fill to the site (and not on behalf of the Council), Colmine could charge the third party at a higher rate. Mr Donegan gave evidence that at the relevant time, Colmine was charging third parties between $4.60 and $6 per tonne.
- The Council had an agreement with a company called Landfill Logistics Qld Pty Ltd (Landfill Logistics), which was owned by Mr Innes. That agreement provided for the Council to acquire fill from Landfill Logistics on an ad hoc basis. Landfill Logistics was in the business of acquiring fill from sites where it was not needed, and causing it to be delivered to where there was a need.
- The appellant facilitated dealings between the Council and Colmine, and the Council and Landfill Logistics, by which the latter caused to be delivered some fill at Austin Street. Colmine thought that this was fill being delivered by or on behalf of the Council, and charged the Council at the rate of $1.50 per tonne. The prosecution case was that, in truth, this was not fill being delivered by or on behalf of the Council, with the result that Colmine suffered a detriment, or Landfill Logistics derived a benefit, by Colmine charging at the lower rate enjoyed by the Council.
- The appellant was charged in the terms of s 92A(1)(c). The charge was:
“that on divers dates between the fourteenth day of September, 2016 and the twenty-third day of November, 2016 at Ipswich and elsewhere in the State of Queensland, Craig Kelvin Maudsley being a public officer did facilitate the dumping of fill on preferential terms in the abuse of the authority of office with an intent to dishonestly gain a benefit for Landfill Logistics Qld Pty Ltd and others, or with intent to dishonestly cause a detriment to Colmine Consulting Pty Ltd.”
- The substantial issues were whether the appellant acted in abuse of the authority of his office, and with an intent to dishonestly gain a benefit for Landfill Logistics or to dishonestly cause a detriment to Colmine. Ultimately, and after an adverse ruling about the construction of s 92A, the appellant case was confined to an argument that he acted only in the interests of the Council, his purpose being only to have fill deposited at Austin Street so that it could be put to its intended use. The prosecution case was that he was motivated also by wanting to help Landfill Logistics, or cause a detriment to Colmine.
- If the jury was satisfied that the appellant had those two purposes, being the proper one of serving the Council’s interests, and the improper one of benefiting Landfill Logistics (or damaging Colmine), the jury was directed that they would still find the appellant guilty. The trial judge gave this direction, having ruled that the improper purpose would make the appellant guilty of the offence, regardless of whether, absent that purpose, the appellant would have engaged in the same conduct.
- The appellant says that the jury was thereby misdirected, so that, at the least, he should be given a new trial. He also is argues that it was not open to the jury, had it been properly instructed, to convict him of the offence, so that this Court should substitute an acquittal for his conviction.
- Under both grounds, it is necessary for this Court to construe s 92A.
- Section 92A of the Code relevantly provides:
“92A Misconduct in relation to public office
- (1)A public officer who, with intent to dishonestly gain a benefit for the officer or another person or to dishonestly cause a detriment to another person—
- (a)deals with information gained because of office; or
- (b)performs or fails to perform a function of office; or
- (c)without limiting paragraphs (a) and (b), does an act or makes an omission in abuse of the authority of office;
is guilty of a crime.
Maximum penalty—7 years imprisonment.
- (2)A person who ceases to be a public officer in a particular capacity is guilty of a crime if, with intent to dishonestly gain a benefit for the person or another person or to dishonestly cause a detriment to another person, the person deals with information gained because of the capacity.
Maximum penalty—7 years imprisonment.
- (5)In this section—
authority, of office, includes the trust imposed by office and the influence relating to office.
deals with includes the following—
function includes power.
information includes knowledge.
office, in relation to a person who is a public officer, means the position, role or circumstance that makes the person a public officer.
performs includes purportedly performs and in relation to a power, exercises and purportedly exercises.”
- The term “public officer” is defined by s 1 of the Code as follows:
“public officer means a person other than a judicial officer, whether or not the person is remunerated—
- (a)discharging a duty imposed under an Act or of a public nature; or
- (b)holding office under or employed by the Crown;
and includes, whether or not the person is remunerated—
- (c)a person employed to execute any process of a court; and
- (d)a public service employee; and
- (e)a person appointed or employed under any of the following Acts—
- (i)the Police Service Administration Act 1990;
- (ii)the Transport Infrastructure Act 1994;
- (iii)the State Buildings Protective Security Act 1983; and
- (f)a member, officer, or employee of an authority, board, corporation, commission, local government, council, committee or other similar body established for a public purpose under an Act.”
- The language of s 92A is to be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. However where a provision of a code is ambiguous or imports terms to which the common law or statute has assigned a special meaning, it can be necessary to resort to the common law for the purpose of aiding in the construction of the Code. In this case, it is necessary to consider the common law offence, not only because the Explanatory Notes for this provision explained its intended departure from the common law offence, but also because some of the language in s 92A has a particular meaning under the common law.
The common law offence
- The Explanatory Notes stated that the Bill (relevantly) implemented a recommendation made in a report by the Crime and Misconduct Commission, which was “the introduction of a broad offence similar to the common law offence of misconduct in public office into the Criminal Code.” The Notes stated that “the CMC was of the view that the present Criminal Code offences are deficient in that they do not provide for all serious abuse or breach of public trust by a public official.”
- The Explanatory Notes further stated:
“In response to the recommendation a new offence of "Misconduct in relation to public office" will be included in the Criminal Code. The offence will apply to a public officer who acts or fails to act in abuse of the authority of office (or other specified conduct) and does so with intent to dishonestly gain a benefit for, or cause a detriment to, any person. The new offence will also prohibit former public officers from using any information gained because of their former position, to dishonestly gain a benefit for themselves or another person, or to dishonestly cause a detriment to another person.
The Bill deviates from the common law approach by including, as an element of the offence, an intention to dishonestly gain a benefit for or cause a detriment to, any person and in doing so provides clarity to officials as to the conduct to be expected of them. Such an approach is based on section 142.2 of the Criminal Code (Cwlth).”
- The CMC Report said that the common law offence of misconduct in public office:
“covers a great variety of circumstances on the part of public officers. It has been said that it is not easy to lay down with precision the exact limits of the kind of misconduct or misbehaviour. The difficulty in defining with precision the elements of the offence is because what constitutes misconduct depends on the nature of the relevant power or duty of the relevant officer. It follows that an exhaustive definition of the offence has not been attempted. …
The essence of the [common law] offence is that it is concerned with public officials who act (or omit to act) contrary to the duties of their office in a manner which so injures the public interest that punishment is warranted. While financial gain, dishonesty and corruption are often aspects of the offence they do not constitute elements of it”.
“By at least the middle of the eighteenth century the common law had evolved a general, though ill-defined offence variously described as “official misconduct”, “breach of official trust”, or “misbehaviour in a public office”. To this day the precise metes and bounds of this offence remain uncertain. Indeed there has been – and is still – a tendency to regard “official misconduct” as a series of specific but interrelated offences such as oppression, neglect of duty, abuse of official power, fraud in office, etc. As a general offence it is, none the less, still recognised and applied as part of the common law of England. …
Unlike with the more narrow offences of bribery and extortion, official misconduct is not concerned primarily with the abuse of official position for pecuniary gain, with corruption in the popular sense. Its object is simply to ensure that an official does not, by any wilful act or omission, act contrary to the duties of his office, does not abuse intentionally the trust reposed in him.”
- In 2002, sitting in the Court of Final Appeal of Hong Kong in Shum Kwok Sher v Hong Kong Special Administrative Region, Sir Anthony Mason NPJ traced the history of the common law offence and identified its elements. He agreed with statements in the authorities that the offence “is not easy to define”, and endorsed this statement of Dr Finn in his 1977 article, “Public Officers: Some Personal Liabilities”:
“The kernel of the offence is that an officer, having been entrusted with powers and duties for public benefit, has in some way abused them, or has abused his official position.”
He agreed also with Doyle CJ in endorsing the statement of Dr Finn which I have quoted in the previous paragraph.
“A dishonest or corruptive motive will be necessary as in situations where the officer is exercising a power or discretion with a view to conferring a benefit or advantage on himself, a relative or friend. A malicious motive will be necessary where the officer exercises a power or discretion with a view to harming another. And a corrupt, dishonest or malicious motive will be required where an officer acts in excess of power. The point about these cases is that, absent the relevant improper motive, be it dishonest, corrupt or malicious, the exercise of the power or discretion would not, or might not, amount to culpable misconduct. Although the examples constitute some only of the situations which fall within the reach of misconduct in public office, they are enough the illustrate the proposition that the existence of an improper motive, beyond the existence of a basic wilful intent, is necessary to stamp various categories of conduct by a public officer as culpable misconduct for the purposes of the offence.”
He concluded that the elements of the common law offence of misconduct in public officer were:
“1. a public official;
- who in the course of or in relation to his public office;
- wilfully and intentionally;
- culpably misconducts himself.”
- Sitting in that Court subsequently, in Sin Kam Wah Lam Chuen IP & Anor v Hong Kong Special Administrative Region, Sir Anthony Mason reformulated those elements, having regard to the judgment of the English Court of Appeal in Attorney-General’s Reference (No 3 of 2003). He added an element of the absence of a reasonable excuse or justification for the official’s misconduct, together with a requirement that the misconduct be serious, not trivial, having regard to the responsibilities of the office and the office holder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities.
- It can be seen, therefore, that the CMC Report was correct in describing the common law offence in this way:
“Its broad nature is best understood by giving examples of the types of conduct caught by the common law offence of misconduct in public office:
- Fraud and deceits in office, such as where a public officer conceals a personal interest in a contract to which his/her official duties relate;
- Wilful neglect of duty (nonfeasance), such as where a police officer refuses to enforce the law;
- Wilful misuse of official power (misfeasance), such as where favouritism is displayed in the awarding of contracts or licences to a person;
- Wilful abuse of position or excesses of official authority (malfeasance), such as where a Minister wilfully uses his/her official influence to mislead or suppress an investigation in a matter in which he or she is personally interested; and
- The intentional infliction of harm or injury on a person (oppression), such as where a prison officer permits the assault of a prisoner.
The essence of the offence is that it is concerned with public officials who act (or omit to act) contrary to the duties of their office in a manner which so injures the public interest that punishment is warranted. While financial gain, dishonesty and corruption are often aspects of the offence, they do not constitute elements of it.”
- As Sir Anthony Mason explained in Shum Kwok Sher, in many cases a dishonest, corrupt or malicious motive will be necessary for the officer’s conduct to be culpable misconduct. The language of s 92A employs the mental elements of a dishonest, corrupt or malicious motive as described in Shum Kwok Sher. The evidently intended effect of s 92A was to confine the offence to cases of that kind.
- More recently, in Maitland v R; Macdonald v R, the New South Wales Court of Criminal Appeal further discussed the object and elements of the common law offence. The Court there said that “The object of the offence is to prevent public officers (in the case of misfeasance) from exercising their power in a corrupt and partial manner.” The Court noted that in Obeid v R, the question had been left open of whether “it was a necessary ingredient of the offence when based on an improper misuse of power, that the improper purpose was the sole purpose.” The judgment of the Court continued:
“Having regard to the rationale for the offence, it would be surprising if it was necessary for the improper purpose to be the sole purpose. If, for example, a Minister of the Crown embarked upon a transaction for the purpose of conferring a benefit on himself or his friends, it would not seem to matter that he also has a belief that the transaction would or might benefit some members of the public. In these circumstances, if the transaction in question would not have been undertaken but for the improper purpose, then subject to the other elements being made out, the offence, in our opinion, would have been committed.”
The Court adopted a “but for” test which was stated by Widgery J (as his Lordship then was) in R v Llewellyn Jones, and subsequently approved by the English Court of Appeal in R v Dytham. The Court drew further support for that approach in authorities on the analogous question of the mental element which is required for a breach of fiduciary duty, as well as the approach “commonly adopted in determining whether an exercise of power by administrative officers was for a purpose foreign to the purpose for which the power was conferred”.
- In R v Llewellyn Jones, the defendant, the registrar of a county court, was convicted on counts charging him with misbehaviour in a public office. One count alleged that he, acting as the registrar and with the intention of gaining improper personal advantage and without proper regard to the interests of a beneficiary, made an order, which he would not otherwise have made, that funds be paid out of court. Widgery J ruled that this was an offence recognised by the common law, and explained the mental element of the offence as follows:
“I have formed a clear view … that if the registrar of a county court when exercising his power to order payment out of court of money held on behalf of a beneficiary were to make an order in expectation of some personal benefit which he hoped to obtain and in circumstances where, had it not been for the personal benefit, he would not have made the order, that would be an example of misconduct in a public duty sufficient to come within this rule. The reason why I feel that that would come within the rule is because in that hypothetical case a public officer would be distorting the course of justice to meet his own personal ends and, in my opinion, it would be sufficient to justify a conviction if it could be shown that he had made such an order with intent to obtain personal benefit for himself and in circumstances in which there were no grounds for supposing that he would not have made the order but for his personal interest and expectation. On the other hand, I have reached an equally clear view that it is not enough to bring a county court registrar within the principle merely to show that, when making an order which was within his powers and which he could make for perfectly proper motives, he knew that by a side wind, as it were, he was going to gain some personal benefit.”
- In Maitland, the Court concluded as follows:
“Having regard to these authorities, it seems to us that the direction as to the mental element of the offence should have been that Mr Macdonald could only be found to have committed the crime (subject to the other elements being made out) if the power would not have been exercised, except for the illegitimate purpose of conferring a benefit on Mr Maitland and [his company].”
The proper construction of s 92A
- The offence under s 92A requires the proof of an intention. Generally, motive and intention mean different things, and the motive by which a person is induced to form an intention is immaterial so far as regards criminal responsibility: s 23(3) of the Code. Nevertheless, in the context of s 92A, the intention which is required under s 92A refers to a purpose for which the officer acted. It may be accepted that where the officer acted with an improper purpose as described in s 92A, that need not have been the officer’s sole purpose for the offence to have been committed. The critical question here is whether an offence is committed in a case where, absent the improper purpose, the officer would still have acted as he did.
- The elements of an offence under s 92A are interrelated. An act of the public officer is made culpable because of a causal connection between the act and the officer’s improper purpose (an intention to dishonestly confer a benefit or cause a detriment). It is because the act is done for that purpose that it constitutes an abuse of the authority of office. Conduct of a kind described in sub-paragraph (a) or (b) is conduct in abuse of the authority of office, as the introductory words of sub-paragraph (c) confirm. And the word “dishonestly” describes the impropriety of purpose which is required for the officer’s act to be an abuse of the office and thereby culpable conduct.
- The object of the offence under s 92A could be described as the prevention of public officers exercising, or failing to exercise, their powers in a corrupt, partial or malicious manner. The imposition of criminal responsibility for an act which the officer, if acting only for a proper purpose, would still have done, would go beyond what is necessary to achieve that object. And that object would not be defeated by the construction for which the appellant contends.
- The relationship between the required intent and the officer’s conduct being one of causation, the preferrable construction is that for an offence to have been committed, the intention or purpose must have been causative in the sense that, but for that intention, the “authority of office” would not have been exercised as it was.
The ruling of the trial judge
- At the conclusion of the evidence, the trial judge ruled on submissions as to what directions should be given about the elements of the offence. His Honour rejected a submission that the prosecution had to prove not only that the defendant had the relevant dishonest intent, but also that but for that intent, he would not have done the acts in question.
- The trial judge reasoned as follows:
“In making this submission, the defendant relied upon decisions regarding common law offences in other jurisdictions. I was referred also to the legislative history of section 92A, and the submission was made that the legislature’s intention was to create an offence in Queensland similar to the common law offence of misconduct in public office. The explanatory notes to the bill that created section 92A, however, in my view, do not support the submissions made. The notes indicate what was recommended in the report that preceded the introduction of the provision, but clearly also indicate an intention by the legislature to depart from the common law. The notes include a statement that the bill:
…deviates from the common law approach by including as an element of the offence an intention to dishonestly gain a benefit or cause a detriment to any person, and in doing so provides clarity to officials as to the conduct expected of them.
Ordinarily, the plain words of the provision creating the offence are to be considered for the purpose of deciding the nature and extent of the conduct it prohibits. The provision says nothing of any requirement that, although holding a dishonest intent, there is an additional requirement that but for that intent, the person’s acts would not have been done. If that were intended to be part of the requirement, it is expected that would be specified.
Clearly, a person can have more than one intention at any given time. If a defendant held an honest intention to achieve an outcome for his employer and at the same time held a dishonest intention to benefit a third party, the provision could be defeated by importing the additional requirement submitted for. I see no basis to conclude that the clear words of the section do not identify all that is necessary to be proved under the provision. I reject the submission.
Submissions were also made as to the form of words necessary to explain to the jury what must be proved beyond reasonable doubt concerning the element of the offence that the defendant’s conduct was in abuse of the authority of office. I was not referred to any binding Appellate Court decision which considered what is meant by that term in section 92A. However, it seems to me the term is capable of being readily understood by the jury.
My directions will include that the jury must be satisfied the conduct was deliberately in abuse of the authority of office and was outside of the duties and responsibilities the defendant had in his position of employment. In those circumstances, it is also unnecessary to direct the jury that to conclude the conduct was an abuse of the authority of office, they must be satisfied that but for his dishonest intent, the defendant would not have done those acts.”
- I have explained why I respectfully disagree with the judge’s construction of s 92A.
The summing up
- Consistently with that ruling, the judge directed the jury as follows:
“What must be proved is that what Mr Maudsley did was outside of the duties and responsibilities Mr Maudsley had as the chief operating officer Works Parks and Recreation at Ipswich City Council, and/or was in breach of the trust placed in him by reason of his holding that position, and/or he misused his influence relating to that office.
In addition, it must be proved he deliberately acted outside of his duties or responsibilities or in breach of trust or misuse of his influence of his office. What is alleged is that the decision to allow Landfill Logistics to deposit fill at the Austin Street site was not purely – sorry, was not made purely to fulfil his responsibilities in his role as COO. It is alleged there were other factors motivating that decision including to assist his friend, Mr Innes and his company and, perhaps, also to disadvantage Colmine Consulting. This, too, is a question of fact for you to decide. This element of the charge is in dispute.
What is required to be proved beyond reasonable doubt is that at the time of Mr Maudsley’s acts he held at least one of the necessary dishonest intentions. If he then also held an honest and legitimate intention of fulfilling council’s objective of filling the void at Austin Street, this element of the charge will still be proved, but it must be proved the defendant had at least one of the necessary dishonest intentions at the time of his acts, that is an intent to dishonestly gain an advantage for Landfill Logistics or others or an intent to dishonestly cause a detriment to Colmine Consulting.”
- The jury was thereby misdirected.
An unreasonable verdict
- The prosecution provided written particulars of its case. They relevantly included the following:
“1. Communicating / organising / making representations to Wayne Innes regarding facilitating the dumping of fill on preferential terms (I.e. that fill could be dumped at a reduced rate on the basis of misrepresenting that the fill is coming from Ipswich City Council jobs); and / or
- Negotiating / communicating with Colmine Consulting Pty Ltd regarding the dumping of the fill at the property referred to as Austin Street; and / or
- Communicating with Wayne INNES including advising him to falsely claim the fill was related to Ipswich City Council sites; and / or
- Offering and / or facilitating for Ipswich City Council to pay (part or all of) the cost associated with the dumping of fill at the property referred to as Austin Street; and / or
- Communicating with Wayne INNES regarding discrepancies reported to agents / staff of Colmine Consulting Pty Ltd as to the source of fill being dumped at the property referred to as Austin Street; and / or
- Communicating with Wayne INNES regarding communication received from agents / staff of Colmine Consulting Pty Ltd.
Such acts were in abuse of the authority of office in that the defendant used the authority of office (which includes the trust imposed by office and the influence relating to office) in a way that was contrary to the proper duties and functions of that office.
Such acts were accompanied with an intent to dishonestly gain a benefit for Landfill Logistics Qld Pty Ltd and others in that:
- Craig Kelvin MAUDSLEY intended to gain the benefit of a reduced dumping rate for Landfill Logistics Qld Pty Ltd and others. That intention was dishonest in that he was aware that the fill Wayne INNES was organizing to dump was not coming from Ipswich City Council sites and not entitled to dump at reduced Ipswich City Council rates. Craig Kelvin MAUDSLEY intended to mislead Colmine Consulting Pty Ltd as to the source of the fill which was being dumped.”
- There was evidence from Mr BR Hines, a former employee of the Council, who at relevant times was employed in a position in which he reported directly to the appellant. As such, he dealt with the appellant daily. He described the Council’s dealings with Landfill Logistics, under the Council’s agreement with it which governed the supply on an ad hoc basis of fill to the Council. Usually, the Council paid for the fill, although Mr Hines could recall one occasion where the fill was delivered to the Council at no cost. He could recall no occasion where the Council was paid by Landfill Logistics to take the material.
- During his evidence in chief, a recording was played of a telephone conversation between Mr Hines and Mr Innes. This was one of several recordings which had been covertly made in the course of an investigation by the Crime and Corruption Commission (CCC). The jury had a transcript of the conversation. It recorded Mr Innes telephoning Mr Hines, to tell him that Mr Innes had 165,000 metres of material which would be available in two to three weeks. Mr Hines suggested that Mr Innes speak to the appellant about that proposal. Mr Hines said in evidence that he made that suggestion because he knew that the appellant was becoming frustrated with the lack of progress in filling the hole at the Austin Street site, a concern which the appellant regularly expressed to him. Mr Hines said that at this time, there was “a time imperative” on the hole being filled.
- Evidence was given by Mr Innes. He was the director of Landfill Logistics from 2010 until 12 December 2016, when it went into liquidation (as an insolvent company), and he was a shareholder throughout that period.
- Mr Innes described the business of his company. Landowners would pay the company to have material moved from their sites, and on occasion, the company would be able to obtain payment for the material from an owner of a site to which it was delivered. On other occasions, the end user might not pay for the material, and there were also jobs where Mr Innes’s company would have to pay that end user.
- He described his relationship with the appellant as being “a bit of both” a professional relationship and a friendship. As to whether he had a “social relationship as well” with the appellant, he said that he thought that the two had met three times outside of work, which occurred through a local rugby league group. Mr Innes had also employed the appellant’s son, for a period perhaps six months, but apparently prior to the events in question.
- Mr Innes said that in the lead up to November 2016, there was a quantity of fill potentially available which “had no home”, to come from a construction site. That was not a site associated with the Council. In the usual way of his business, the actual transportation of the material was to be done by a sub-contractor, but it was Mr Innes who was to find a place to which it could be taken.
- Mr Innes listened to the recording of his conversation with Mr Hines which I have discussed earlier. The jury was then played a recording of a telephone conversation between Mr Innes and the appellant later on that day. Mr Innes told the appellant that he had 165,000 metres of material, to which the appellant responded that:
“[M]y old mate at … Redbank Plains [a reference to the Austin Street site] is draggin the chain a bit. … He hits me up $1.50 a tonne to … drop the stuff into the …. hole there …[T]hen that’s just from Council jobs. … I’m quite happy to say to ya, if you, if that, if that fits with you, I’m quite happy to say that all your stuff’s comin of a Council job …
It gives you somewhere to put it. You just have to help me cover the $1.50 a tonne that’s all.”
- Mr Innes commented that “no one wants to deal with him [an apparent reference to Mr Donegan]” and that “he’s struggling …he’s wantin to charge ‘em three, four, five bucks all that sort of stuff … he’s really going to struggle to meet anywhere near that over the next … few months …”.
- The appellant said in response “my tolerance is gettin pretty low with him, but I’ve got … to let him hang himself, if you know what I mean?”, but added that “I’m more than happy, if … that stacks up for you to throw it in there …”. The appellant asked Mr Innes to have “a think about it” and said, in relation to the Council’s contract with Colmine, “it’s not working the way it’s supposed to work … I just want my hole filled … that’s the outcome I’m lookin for.”
- The jury heard a recording of another conversation, which occurred five days later, between the appellant and Mr Innes. For the most part it was about unrelated things, but the appellant asked Mr Innes where he had “ended up” with the fill which they had discussed. The appellant said “I’m happy to take it off you I just wanna get this hole filled [and Mr Donegan is] gonna charge me $1.50 but at the end of the day come to me, come to me with a proposal ‘cause you know if you wanna, you want me to wear the $1.50 on it or something I’m happy to …”.
- The next of the recorded conversations between them which was played to the jury occurred on 5 October 2016 (about two weeks after the previous conversations). Mr Innes said that he was contacting the appellant about “that hole at Austin Street”, where “no one wants to deal with the bloke”. The appellant asked what Mr Innes needed “to drop it off there”, to which Mr Innes replied “is a buck a metre gonna be the way to go?”. Mr Innes said that “the way it’s goin’ you are never gonna get that hole filled”. The appellant said that in another month he would be “pullin’ the trigger on the contract ‘cause [Mr Donegan] can’t work with the neighbours” who were “dobbin him … into the … EPA”. The appellant referred to a time at which Mr Innes had managed the Austin Street site, saying that the appellant then knew that “the hole was being filled and … it was being done properly”. Mr Innes said that “everybody around the scene has just put a black list on [Mr Donegan]”.
- In a conversation on 10 November 2016, referring to the proposed supply of the fill to Austin Street, the appellant said to Mr Innes “I’ll get onto Donegan again tonight … if it’s a goer, you just need to tell all the … drivers … its comin from a job, a Council job.”
- The jury then heard recordings of conversations between Mr Innes and a person from the company which was to transport the material to Austin Street. Mr Innes was heard to say that the carrier’s dockets should be marked “ICC” in order to make it appear that this material was coming from the Council.
- In a conversation on 16 November 2016, the appellant asked Mr Innes whether it was clean fill which was being delivered to Austin Street, and added that he just wanted the hole there to be filled.
- The jury heard a recording of a conversation between Mr Innes and a Mr Brian Farrell, on 17 November 2016. Mr Farrell worked for Colmine at Austin Street and Mr Innes was inquiring about the hour at which the site would be closed for the day. Mr Innes then identified himself by a false name, he said in evidence, because he did not want a Mr Halpin, who managed the Austin Street site for Colmine, to know that Mr Innes was involved with this delivery. In a subsequent conversation on that day, Mr Farrell inquired if Mr Inness was a subcontractor, or worked for the Council, to which Mr Innes replied “we work for the Council”.
- Later on the same day, there was a telephone conversation between the appellant and Mr Innes, in which the appellant was told Mr Innes’s misrepresentation to Mr Farrell.
- Mr Innes said that he could not recollect the number of days in which he delivered fill to the Austin Street site, and nor could he recall whether he was invoiced for the cost of doing so. As far as he could recall, he did not pay for the fill that was deposited at Austin Street.
- Mr Donegan testified that he was a director and the owner of Colmine. He gave evidence of his dealings with the appellant about the delivery of this material.
- On 7 November 2016, the appellant emailed Mr Donegan saying that he had “a job that has some 30,000 m”. At one point in the emails which followed, Mr Donegan indicated a preparedness to discount the “current rate”, depending upon the amount of tonnage involved. At one point, the negotiations appeared to result in the appellant securing a price of $0.85 per tonne, all the time representing that this would be a delivery of the Council’s fill.
- Mr Donegan identified records of his company which recorded the dumping of 3,514 tonnes of fill at Austin Street, which was charged by Colmine to the Council.
- There was further evidence from another Council officer, through whom some accounting records were tendered and from an investigator at the CCC, who explained the absence of Mr Farrell as a witness. The appellant did not give or call evidence.
- In his closing address to the jury, the prosecutor conceded that “part of” the appellant’s intention “was to have the hole filled as he thought it was going too slow”. The prosecutor’s concession was properly made. It should be noted also that the trial judge, when sentencing the appellant, accepted that there was “a genuine Council imperative to have that void filled.” But the prosecutor argued that the appellant also intended to dishonestly gain a benefit for Mr Innes and his company Landfill Logistics, which was to be inferred from “the formation of this entire arrangement”.
- Quite apart from the prosecutor’s concession, the jury could not have excluded the possibility that at least one purpose for the appellant acting as he did was the proper purpose of progressing the restoration of the Council’s land. There was abundant evidence of the appellant’s concern that this had not been progressing at a pace which the appellant thought was necessary, and that the appellant saw the prospect of sourcing a large amount of material from Landfill Logistics as a means of addressing that delay.
- It was not open to the jury to find that the appellant meant to cause a detriment to Colmine. The appellant was dissatisfied with Colmine’s performance and he was considering whether the Council’s agreement with Colmine might be terminated. However the jury could not have inferred from that dissatisfaction that the appellant meant to do damage to Colmine, and ultimately, it appears that the prosecutor did not argue for such a finding. His argument was focussed upon the alternative intention which was alleged, namely an intention to dishonestly benefit Mr Innes and his company.
- It was open to the jury to find that there was friendship between the appellant and Mr Innes. Some of the recorded conversations could give impression that the appellant was happy to be doing Mr Innes a favour. Against that possibility, however, is the fact that this was language which, legitimately, might be used to promote a business relationship between the Council and one of its contractors.
- Certainly, the appellant acted dishonestly, in that he deliberately deceived employees of Colmine by representing that this material was being delivered by the Council. That dishonesty was serious and discreditable conduct, but the offence which was charged was not one constituted simply by the making of a misrepresentation, even a fraudulent one.
- A properly instructed jury would have had to consider whether the appellant would have acted as he did, if his only purpose was to have material delivered to Austin Street which the Council there required. Was this conduct in which the appellant might have engaged if he had had no interest in doing Mr Innes a favour? The jury’s verdict is of no assistance here because the jury was not directed to consider that question.
- In my conclusion, on the evidence at this trial, it would not have been open to the jury to be satisfied, beyond reasonable doubt, that absent any intention to benefit Landfill Logistics, the appellant would not have facilitated the dumping of fill on these terms. Whilst the preferential nature of the terms might have indicated an intention to benefit Landfill Logistics, there was the fact that this material was not available for the Council’s purposes if Landfill Logistics had to pay Colmine’s usual charge to a third party supplier. The evidence did not suggest that Mr Innes would have been prepared to deliver this fill to Austin Street, if required to pay something of the order $4.50 or more per tonne. A properly instructed jury could not have excluded the possibility, beyond a reasonable doubt, that the appellant might have done the same thing without wanting to benefit Mr Innes.
- In consequence, it was not open to the jury to convict the appellant of this offence.
- I would order that the appeal be allowed, the conviction quashed and that a verdict of acquittal be substituted.
- DAUBNEY J: I have had the significant advantage of seeing drafts of the judgments of the other members of the Court in this matter. It is not necessary for me to restate the background and relevant legislative provisions which have been comprehensively canvassed in the reasons of McMurdo JA.
- I agree, for the reasons given by McMurdo JA, that the jury was misdirected, and that the appeal ought be allowed on that ground.
- However, having reviewed the evidence led at trial, particularly of the recorded conversations involving the appellant, I am of the view that it was open to the jury, on a consideration of the evidence as a whole and properly instructed, to conclude that the appellant was guilty of the offence charged. In that regard, I agree with the reasons of Boddice J.
- Accordingly, I would order that the appeal be allowed, the conviction be quashed, and that there be a new trial.
- BODDICE J: I agree, for the reasons given by McMurdo JA, that the appeal should be allowed. However, I have reached a different conclusion in relation to whether it was open to the jury to convict the appellant of the offence. Accordingly, whilst I would allow the appeal and quash the conviction, I would order a retrial.
- The comprehensive reasons of McMurdo JA succinctly summarise the relevant legislation and evidence led at trial. As a consequence of that summary, which I gratefully adopt, I am able to shortly state my reasons.
- Whilst the Crown case included an appropriate concession that a part of the appellant’s intention in facilitating the dumping of the relevant fill “was to have the hole filled as he thought it was going too slow”, the Crown case was that the appellant also intended to dishonestly gain a benefit for Mr Innes and his company, Landfill Logistics.
- There was evidence from which it was open to the jury to conclude that the appellant had such a dishonest intention. That evidence flowed from the contents of the various recorded conversations between the appellant and Mr Innes.
- A consideration of those conversations, in the context of the other evidence led at trial, supports a conclusion it was also open to a jury to find that, but for the arrangement being beneficial to Mr Innes and Landfill Logistics, the appellant would not have facilitated the dumping of the fill.
- The recorded conversations, as a whole, are consistent with the appellant intending to gain a benefit for Mr Innes and Landfill Logistics, rather than accepting the foreshadowed fill regardless.
- Once the jury, on a consideration of the evidence as a whole, was satisfied beyond reasonable doubt that absent the intention to benefit Mr Innes and Landfill Logistics the appellant would not have facilitated the dumping of fill on these terms, the appellant was guilty of the offence.
- As I have concluded it was open to the jury to convict the appellant of the offence, I would order:
- (1)The appeal be allowed.
- (2)The conviction be quashed.
- (3)There be a new trial.
Brennan v The King (1936) 55 CLR 253 at 263 per Dixon and Evatt JJ; Stuart v The Queen (1974) 134 CLR 426 at 437 per Gibbs J.
Bank of England v Vagliano Bros  AC 107 at 145; Stuart at 137 per Gibbs J; Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 at 22 per Mason J; Boughey v The Queen (1986) 161 CLR 10 at 30-31 per Brennan J; Mellifont v Attorney-General (Qld) (1991) 173 CLR 289 at 309 per Mason CJ, Deane, Dawson, Gaudron and McHugh JJ); R v LK (2010) 241 CLR 177 at 220  per Gummow, Hayne, Crennan, Kiefel and Bell JJ.
Criminal Code and Other Legislation (Misconduct and Breaches of Discipline and Public Sector Ethics) Amendment Bill 2009 (Qld), Explanatory Notes, p 3.
As the Crime and Corruption Commission was then called.
Criminal Code and Other Legislation (Misconduct and Breaches of Discipline and Public Sector Ethics) Amendment Bill 2009 (Qld), Explanatory Notes, p 3.
Public Duty, Private Interest: Issues in pre-separation conduct and post-separation employment for the Queensland Public Sector. Crime and Misconduct Commission, December 2008 pp 27-28.
(1996) 88 A Crim R 417 at 418; (1996) 67 SASR 63 at 64.
(1978) 2(6) Crim LJ 307 at 307-308.
 HKCFA 27;  2 HKLRD 793; (2002) 5 HKCFAR 381;  3 HKC 117.
 3 HKC 117 at 135 citing R v Llewellyn-Jones (1967) 51 Cr App R 4 at 6; Question of Law Reserved (No 2 of 1996) (1996) 88 A Crim R 417 at 420, 438 and Ex Parte Telegraph Group  1 WLR 1983 at 1993.
(1977) 51 ALJ 313 at 315.
Shum Kwok Sher v Hong Kong Special Administrative Region  3 HKC 117 at 139 .
Shum Kwok Sher v Hong Kong Special Administrative Region  3 HKC 117 at 140 .
 HKCFA 29;  2 HKLRD 375; (2005) 8 HKCFAR 192.
Sin Kam Wah Lam Chuen IP & Anor v Hong Kong Special Administrative Region  HKCU 672 at .
 2 Cr App R 23.
(2010) 27 VR 310;  VSCA 106 at .
(2015) 91 NSWLR 226;  NSWCCA 309 at .
Public Duty, Private Interest: Issues in pre-separation conduct and post-separation employment for the Queensland Public Sector. Crime and Misconduct Commission, December 2008 p 28.
In the passage set out above at .
(2019) 99 NSWLR 376;  NSWCCA 32 (“Maitland”).
Maitland at 391 .
Maitland at 392 .
Maitland at 392 .
(1967) 51 Cr App R 4.
 QB 722 at 726.
Mills v Mills (1938) 60 CLR 150 at 185-186;  HCA 4 and Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285 at 293-294;  HCA 11.
Thompson v Council of the Municipality of Randwick (1950) 81 CLR 87 at 106;  HCA 33.
R v Llewellyn Jones (1967) 51 Cr App R 4 at 6.
Maitland at 394 .
cf Maitland at 395 .
Just as under the common law offence: Maitland at .
cf Shum v Kwok Sher at , discussed earlier at .
cf Maitland at .
M v The Queen (1994) 181 CLR 487 at 494-5.
SKA v The Queen (2011) 243 CLR 400 at 409 .
- Published Case Name:
R v Maudsley
- Shortened Case Name:
R v Maudsley
 QCA 268
McMurdo JA, Daubney J, Boddice J
07 Dec 2021
- Selected for Reporting: