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  4. Antoniolli v Queensland Police Service - [2020] QDC 318

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Antoniolli v Queensland Police Service[2020] QDC 318

Antoniolli v Queensland Police Service[2020] QDC 318

DISTRICT COURT OF QUEENSLAND

CITATION:

Antoniolli v Queensland Police Service [2020] QDC 318

PARTIES:

ANDREW FRANCIS ANTONIOLLI

(Appellant)

v

QUEENSLAND POLICE SERVICE

(Respondent)

FILE NO:

D2347/19; D78/19

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Ipswich

DELIVERED ON:

11 December 2020

DELIVERED AT:

Ipswich

HEARING DATE:

23 April 2020

JUDGE:

Lynch QC DCJ

ORDER:

  1. For each charge the appeal against conviction is upheld, the conviction is set aside, a verdict of acquittal is entered, and the appellant is discharged.
  1. In respect of the charge of breach of bail, the appeal against sentence is upheld, the order recording a conviction is set aside, and instead it is ordered that no conviction is recorded for that offence.

CATCHWORDS:

CRIMINAL LAW – APPEAL – s 222 Justices Act 1886 (Qld) where the appellant was convicted after a trial of 13 counts of fraud – where the appellant was sentenced to 6 months imprisonment wholly suspended for 18 months – where appeal against conviction for fraud charges – whether the property was applied to the use of the appellant – whether property deflected from the purpose of the owner

CRIMINAL LAW – APPEAL – s 222 Justices Act 1886 (Qld) where the appellant was convicted after a trial of 13 counts of fraud – where the appellant was sentenced to 6 months imprisonment wholly suspended for 18 months – where appeal against conviction for fraud charges – whether the application of property by the appellant was dishonest – whether the knowledge, belief or intent of the appellant shows the conduct was dishonest according to the standards of ordinary honest people

CRIMINAL LAW – APPEAL – s 222 Justices Act 1886 (Qld) – where the appellant was convicted after a trial of 13 counts of fraud – where the appellant was sentenced to 6 months imprisonment wholly suspended for 18 months – where appeal against conviction for fraud charges – whether honest claim of right under section 22(2) of the Criminal Code available – whether consideration of that defence necessary where dishonesty not proved

CRIMINAL LAW – APPEAL AGAINST SENTENCE – where convictions for fraud offences set aside and acquittals entered – where conviction recorded for offence of breach of bail – whether recording of conviction should be set aside

LEGISLATION:

Criminal Code 1899 (Qld), ss 4, 7, 22, 408C, 488, 644

Justices Act 1886 (Qld), ss 222, 223, 225

Local Government Act 2009 (Qld)

Sale of Goods Act 1869, s 59

CASES:

Fox v Percy (2003) 214 CLR 118

Lee v Lee (2019) 266 CLR 129

McLeod v The Queen (2003) 214 CLR 230

Peters v The Queen (1998) 192 CLR 493

R v Dillon; Ex parte Attorney-General [2016] 1 Qd R 56

R v Easton [1994] 1 Qd R 531

R v Perrin [2017] QCA 194

R v Russell [2019] 1 Qd R 181

COUNSEL:

S. Holt QC for the appellant

S. Farnden for the respondent

SOLICITORS:

Robertson O'Gorman Solicitors for the appellant

Office of the Director of Public Prosecutions for the respondent

Appeal

  1. [1]
    Andrew Francis Antoniolli (the appellant) was on 6 June 2019, convicted after a summary trial of 12 charges of fraud and 1 charge of attempted fraud. On 30 July 2019, the appellant entered a plea of guilty to a charge of breach of bail. On 9 August 2019, the appellant was sentenced to 6 months imprisonment for each offence of fraud and 3 months imprisonment for attempted fraud. Those sentences were ordered to be served concurrently but were wholly suspended for an operational period of 18 months. The appellant was convicted and not further punished on the breach of bail charge. Convictions were recorded for all offences.
  1. [2]
    Pursuant to s 222 of the Justices Act 1886, the appellant appeals against his conviction on the charges of fraud and attempted fraud, and against the sentences imposed for all offences.
  1. [3]
    For each charge, the grounds of appeal against conviction assert to the effect the learned Magistrate applied the wrong test for proof that property was applied to the use of the appellant; erred in finding the appellant acted dishonestly; applied the wrong test for proof under s 22 of the Criminal Code; and erred in finding the charges proved on the evidence. The grounds of appeal against sentence assert each of the sentences are manifestly excessive and that the learned Magistrate erred in concluding deterrence was of paramount importance.
  1. [4]
    I have reached the conclusion that the appeals against conviction should be upheld and verdicts of acquittal entered for each charge. The appeal against sentence on the charge of breach of bail should also be upheld, the recording of a conviction for that offence set aside, and an order made that no conviction be recorded. Following are my reasons for those conclusions.

Material

  1. [5]
    At the hearing of the appeal, the index to the appeal record book prepared by the parties was admitted and marked as Exhibit 1. That document, which is Appendix 1 attached to these reasons, lists the materials before the Court. Appendix 2, also attached to these reasons, lists the exhibits admitted before the learned Magistrate.

Charges

  1. [6]
    Charge number 5 was withdrawn. The fraud charges and the attempted fraud charge were all amended, by consent, at the commencement of the trial on 8/5/2019. Each of the fraud counts alleged the appellant dishonestly applied to his own use property, namely a sum of money, belonging to Ipswich City Council. Charge 14 alleged the appellant attempted to do so.
  1. [7]
    The breach of bail charge alleged that on the 25th day of May 2018, the appellant broke a condition of his bail undertaking that he not contact directly or indirectly any Ipswich City Council employees or councillors in relation to the charges he faced.

Prosecution case

  1. [8]
    The prosecution case, as opened at the commencement of the trial, and consistent with particulars tendered in evidence (Exhibit 1), was that the charges involved the defendant’s authorisation, or intended authorisation, of the use of Ipswich City Council funds to pay for items purchased at community fund raising auctions. The defendant was at all times an elected Ipswich City Councillor and in that capacity could recommend the making of donations to community organisations through the Community Donation Fund (CDF). The prosecution alleged the Ipswich City Council policy and procedures did not authorise use of those funds as a donation where any item was obtained as a result of payment. The prosecution alleged the funds were applied to the use of the defendant because payment in this way enabled the defendant to exercise management and control over the purchased item. The prosecution alleged the use of Council funds by the defendant was dishonest since the defendant knew, or did not believe, this was permissible use of Ipswich City Council community donation funds.
  1. [9]
    The prosecution case as particularised, was that the defendant was criminally responsible for each offence pursuant to s 7(1)(a), or (c), or (d), or s 7(4) of the Criminal Code, in that the defendant either himself did the acts identified, and/or knowingly aided doing the acts identified, or alternatively procured the acts identified for each charge.
  1. [10]
    For charge 1, the prosecution alleged payment of $700 via cheque was made from the CDF, at least in part, to pay Blair State School for a painting purchased at auction. The prosecution identified the following acts as constituting the offence, namely:
  1. Requesting that community funds be paid to the Blair State School.
  2. Approving the payment of community funds to the Blair State School.
  3. Causing a cheque to be completed for payment of the funds.
  4. Delivery of the cheque to the Blair State School.

  1. [11]
    For the remainder of the fraud charges (charges 2-13 inclusive), the prosecution identified the acts constituting the offences as being:
  1. Requesting that a Community Donations form be completed by the recipient.
  2. Providing a Community Donations form to the recipient.
  3. Supporting the payment of community donations to the recipient.
  4. Causing an electronic transfer to be completed for payment of community donation funds to an account held by the recipient.
  1. [12]
    For charge 2, the prosecution alleged payment of $250 via electronic transfer was made from the CDF to pay Jets Rugby League Club for a jersey purchased at auction.
  1. [13]
    For charge 3, the prosecution alleged payment of $200 via electronic transfer was made from the CDF to pay Ipswich Hospice Care for a “pamper hamper” purchased at auction.
  1. [14]
    For charge 4, the prosecution alleged payment of $1,000 via electronic transfer was made from the CDF to pay Ipswich Hospice Care for three pieces of artwork purchased at auction.
  1. [15]
    For charge 6, the prosecution alleged payment of $500 via electronic transfer was made from the CDF to pay West Moreton Anglican College for an item described as “Black Caviar Vertiramic” purchased at auction.
  1. [16]
    For charge 7, the prosecution alleged payment of $250 via electronic transfer was made from the CDF to pay Ipswich Hospice Care for a “pamper pack” purchased at auction.
  1. [17]
    For charge 8, the prosecution alleged payment of $350 via electronic transfer was made from the CDF to pay Ipswich West Special School for artwork purchased at auction.
  1. [18]
    For charge 9, the prosecution alleged payment of $400 via electronic transfer was made from the CDF to pay Ipswich Cares for a bike purchased at auction.
  1. [19]
    For charge 10, the prosecution alleged payment of $400 via electronic transfer was made from the CDF to pay Domestic Violence Action Centre for artwork purchased at auction.
  1. [20]
    For charge 11, the prosecution alleged payment of $500 via electronic transfer was made from the CDF to pay Young Life Australia for a gym membership purchased at auction.
  1. [21]
    For charge 12, the prosecution alleged payment of $5,000 via electronic transfer was made from the CDF to pay Red and White Foundation for an item described as “Trek Bicycle” purchased at auction.
  1. [22]
    For charge 13, the prosecution alleged payment of $255 via electronic transfer was made from the CDF to pay National Trust of Australia for an item described as “Phantom Pack” purchased at auction.
  1. [23]
    For charge 14, the prosecution alleged it was intended there be payment of $500 via electronic transfer from the CDF to pay Christian Religious Instruction Network Ltd for a painting purchased at auction. However, no such payment was ever made. The prosecution relied upon the applicant’s purchase of the painting at auction and his statements requesting that he be contacted to arrange for payment as evidencing the offence.

Evidence

  1. [24]
    Because the appeal is by way of rehearing on the evidence admitted in the proceedings below,[1] it is necessary to set out the evidence in some detail.

Admissions of fact - Exhibits 2, 31 & 32

  1. [25]
    Lists of admissions of fact, made pursuant to s 644 of the Code, were admitted as Exhibits 2, 31 and 32. The listed admissions in Exhibit 2 were to the following effect:

Items 1 & 2

Between March 2000 and 31 August 2017, the appellant was an elected Councillor of the Ipswich City Council.

Charge 1 (Items 3-7)

On 27/8/2005, Blair State School Parents and Citizens Association held a school fair. The appellant painted a painting which was auctioned at the fair, and which the appellant purchased for $700, and then took possession of. Payment of $700 was later made to the Blair State School P & C Association out of the CDF.

Charge 2 (Items 8-11)

On 30/7/2010, a sportsman’s lunch was held by the Ipswich Jets Rugby League Football Club at which various items were auctioned to raise funds. The appellant successfully bid $250 for a “Replica Centenary Jersey”. Payment of $250 was later made to Jets Rugby League Club out of the CDF.

Charge 3 (Items 12-16)

On 27/10/2011, a golf day was held by Ipswich Hospice during which various items were auctioned to raise funds. The appellant successfully bid $200 for a “pamper hamper”. Payment of $200 was later made to Ipswich Hospice Care out of the CDF. In August or September 2012, the appellant attended a fundraising golf day for Crime Stoppers Qld and donated an item he described as a ladies pamper basket which was used as a raffle prize.

Charge 4 (Items 17-23)

On 2/3/2012, an art auction was hosted by Ipswich Hospice during which pieces of art work were auctioned to raise funds. The appellant successfully bid $1,000 for three pieces of art and took possession of them. Payment of $1,000 was later made to Ipswich Hospice Care out of the CDF. The three pieces of artwork were photographed by Sean Madigan and identified as items 2, 3, 42 and 42a in his list (Exhibit 18).

Charge 6 (Items 24-28)

On 28/7/2012, West Moreton Anglican College held a dinner which the appellant attended and at which items were auctioned to raise funds. Then Mayor Pisasale successfully bid for several items. On 1/8/2012, West Moreton Anglican College advised in an email that Mayor Pisasale had arranged for the Council to pay for the items purchased and the appellant was to contribute $500 for the item described as “Black Caviar Vertiramic”. Payment of $500 was later authorised by the appellant out of the CDF. After the auction, the “Black Caviar Vertiramic” was received at the Council offices and on 17/4/2018 was noted to be displayed in the Mayoral staff area.

Charge 7 (Items 29-32)

On 25/10/2012, Ipswich Hospice held a golf day at which items were auctioned to raise funds. The appellant successfully bid $250 for a “pamper pack”. Payment of $250 was later made to Ipswich Hospice Care out of the CDF.

Charge 8 (Items 33-38)

On 23/5/2014, Ipswich West Special School held a student art auction to raise funds. The appellant and Councillor Charlie Pisasale attended and Councillor Charlie Pisasale successfully bid $1,110 for four pieces of artwork. Mayor Pisasale and the appellant agreed to contribute to the purchase. Payment of $350 was later made to Ipswich West Special School from the appellant’s CDF. The appellant received one piece of art.

Charge 9 (Items 39-43)

On 27/8/2014, Ipswich Cares Inc held a dinner during which items were auctioned to raise funds. The appellant successfully bid $400 for an item described as a “yellow bike”. Payment of $1,400 was subsequently made to Ipswich Cares out of the CDF. After the dinner, the appellant collected the bike from the President of Ipswich Cares and the bike was located in the appellant’s garage on 11/4/2018.

Charge 10 (Items 44-47)

On 25/11/2014, the Domestic Violence Action Centre held a Gala Cocktail event at which items were auctioned to raise funds. The appellant attended the event. On 16/7/2015, an invoice for three auction items and a document headed “Auction winners” was sent to the appellant’s Council email account. Payment of $400 was later made to Domestic Violence Action Centre out of the CDF.

Charge 11 (Items 48-52)

On 3/5/2016, Young Life Australia held a dinner at which items were auctioned to raise funds. The appellant successfully bid on an item described as “gym membership”. Payment of $500 was later made to Young Life Australia out of the CDF. The Lifestyle Gym confirmed that no one with the surname Antoniolli had been a member at the gym and could not say whether the membership voucher had been redeemed.

Charge 12 (Items 53-56)

On 21/5/2016, the Red and White Foundation held its annual ball at which items were auctioned to raise funds. The appellant successfully bid $5,000 on an item described as a “Trek Bicycle”. Payment of $5,000 was later made to Red and White Foundation Education Fund out of the CDF.

Charge 13 (Items 57-61)

On 25/4/2017, the National Trust of Australia (Queensland) held their annual dinner at which items were auctioned to raise funds. The appellant successfully bid $255 on an item described as “Phantom Pack”. Payment of $500 was later made to National Trust of Australia (Queensland) out of the CDF. Neither the appellant nor anyone from Ipswich Council took possession of the item.

Charge 14 (Items 62-65)

On 2/6/2017, the Christian Religious Instruction Network Ltd held a dinner at which items were auctioned to raise funds. The appellant successfully bid $500 on a piece of artwork described as “Creative Spirit by Alexandra Jack”. The appellant told Suzanne Overall on the night of the auction he wanted to donate the item back to Christian Religious Instruction Network and the appellant did not take possession of the item.

  1. [26]
    Exhibit 31 includes listed admissions to the following effect:

Item 1

Lindsey Denman was granted a use/derivative use undertaking by the Attorney- General and was therefore obliged to give evidence in accordance with her statement.

Items 2-13 – Sean Madigan

Sean Madigan was employed as COO of the Health, Security and Regulatory Services Department of Ipswich City Council. He was tasked to deal with items of Council property of interest to investigators. On Wednesday 11/4/2018, the appellant called Mr Madigan and asked him to catalogue and store items of property that were located at the appellant’s former divisional office. Mr Madigan met the appellant who said they needed to catalogue memorabilia that has been stored since he was elected mayor. The appellant also said they needed to pick up a bicycle from the appellant’s home which the appellant purchased at auction several years earlier. Mr Madigan told the appellant he would report this to the CCC and the appellant replied “I know you will, I asked you to do this because I knew you would do it properly.” The appellant said he’d had the bike in his garage for several years, it had been outside for a period, and the rain had damaged the basket. The appellant said he considered purchasing a new one and always knew the bicycle was Council property.

Mr Madigan and the appellant then attended the appellant’s former divisional office and catalogued items of property stored in a locked room. Mr Madigan recorded the items in a yellow notebook as well as the appellant’s comments as to how items came into his possession; the notes are Exhibit 27. A typed list of these items is Exhibit 18; photographs of the items are Exhibit 28.

Mr Madigan and the appellant attended the appellant’s home where Mr Madigan saw a yellow coloured women’s bicycle in the garage. Mr Madigan photographed the bicycle and told the appellant he would provide the photographs to the CCC. The appellant said he wanted that to happen and was glad it was being done properly. The bicycle had surface rust on the handlebars and chain. The bicycle was then transported to the Council building and secured.

Items 15-18 – Kathleen Turley (charge 10)

Kathleen Turley was employed by the Domestic Violence Action Centre in Ipswich. Items of artwork auctioned on 25/11/2014 were created by clients of the centre. Exhibit 12(c) contains notes recording the winners of auction items and the amounts of the bids. Exhibit 12(c) is a tax invoice forwarded to the appellant by email for the auction items. No records exist of the items purchased by the appellant or whether the appellant took the items from the event.

Items 19-22 – Janelle Van De Weyer (charge 12)

Janelle Van De Weyer is a volunteer with the charity Red and White Foundation. Ms Van De Weyer was aware the appellant attended the Foundation’s Gala Ball on 21/5/2016 and successfully bid for a Trek bicycle at auction. Ms Van De Weyer sent email correspondence contained in Exhibit 14[2]. Ms Van De Weyer was aware that the completed form was for a donation and that by completing and submitting the form the appellant was able to collect the bicycle.

Items 23-28 – Thomas Harrys (charge 12)

Thomas Harrys is a volunteer with the Red and White Foundation. Mr Harrys was involved in purchasing the bicycle for auction at the Gala Ball on 21/5/2016. The Yellow Jersey Bike Shop provided a bike for display at the event and the winning bidder was given a choice whether to take the displayed bike or receive a bike of that value from the store. The appellant successfully bid but did not take the bike with him on the night. Mr Harrys phoned Troy Dobinson on the night of the event and told him the appellant was the successful bidder and would be attending his store. The Yellow Jersey Bike Shop collected the display bike the next day and the voucher was not left with the event organisers afterwards and Mr Harrys did not contact the appellant to ask him to collect the voucher. The invoice from the Yellow Jersey Bike Shop for $3,200 was received and paid.

Items 29-33 – Jonathan Fisher (charge 13)

Jonathan Fisher is the CEO of the National Trust of Australia (Qld). On 20/5/2017, the organisation held a dinner at Brisbane City Hall which the appellant, on invitation, attended with his wife. Jonathan Fisher was the host of the event. At the dinner the appellant successfully bid $255 in a silent auction for a Phantom Pack. Exhibit 15 contains emails exchanged between the organisers and the appellant’s office which resulted in a donation of $500 being made to the Trust from Council, unrelated to the auction. The payment was not recorded against the auction prize. The Phantom Pack was never paid for or collected and was subsequently raffled to raise funds for Currumbin Wildlife Hospital Foundation.

Items 34-37 – Jane Jamieson (charge 13)

Jane Jamieson is the general manager of Currumbin Wildlife Sanctuary – National Trust of Australia (Qld). The appellant approached Ms Jamieson to pay for the Phantom Pack after the auction. The appellant told Ms Jamieson he was a big fan of the Phantom comics, had other memorabilia, and would add this to his collection. The appellant attempted to pay for the item but the credit card transaction was declined. The appellant said he would not take the item home and requested an invoice. The appellant provided his business card with contact details and was told the item would be available for collection once paid for. Ms Jamieson exchanged the email correspondence in Exhibit 15 regarding payment. The payment of $500 was queried and then referred to others in the organisation for clarification.

Items 38-41 – Susanne Verrall (charge 14)

The documents in Exhibit 16(c) headed “EFT Settlement details” are handwritten notes taken on the night of the event that record the appellant winning an item of artwork in a silent auction and pledging a further donation of $500. The document in Exhibit 16(c) headed “my pledge” was completed by the appellant on the night of the event. The document in Exhibit 16(c) headed “Division 7 Councillor” records the three occasions Ms Verrall emailed the invoice seeking payment for the auction item and the pledged amount. Ms Verrall voided the invoice after payment was not made.

  1. [27]
    Exhibit 32 includes listed admissions to the following effect:

Charges 3 and 7

The pamper packs were never given to any of the appellant’s five daughters.

Charge 9

The yellow bike was never used by any of the appellant’s five daughters.

  1. [28]
    The following is a summary of the evidence given by witnesses called at the trial.

Saskia Toohey

  1. [29]
    Detective Sergeant Saskia Toohey was the primary police investigator in the proceedings relating to Mr Antoniolli.[3] Det Toohey identified that the documents contained within Exhibits 3 through 28 were obtained as part of the investigation, and included documents obtained from Ipswich City Council relating to payment of donations and email correspondence, and also included documents obtained from the relevant community organisations.[4]
  1. [30]
    Detective Toohey interviewed the appellant in the presence of his legal representatives on 17/4/2018. The audio recording of the interview was admitted as Exhibit 17, and the transcripts of the interview Exhibits 17(a) and 17(b). The interview was played in evidence.[5] Detective Toohey said that during the interview, reference was made to a list of items (Exhibit 18) and photographs of those items (Exhibit 28), produced by Sean Madigan.
  1. [31]
    Detective Toohey said that after the interview with the appellant on 17/4/2018, a “Black Caviar” picture discussed during the interview, was seen by her to be hanging in an area nearby to the mayoral office.[6] Detective Toohey also said that after the interview she took possession of a number of items from an office in the Council building. These included a painting completed by the appellant (photographed as Exhibit 3(e)), a green football jersey (photographed as Exhibit 4(f)), and a painting described as an abstract of a lady’s face (photographed as Exhibit 10(d)).[7] Detective Toohey also said that on 18/4/2018, she attended a bicycle store on Brisbane Road, Ipswich with the appellant and took possession of a Trek brand bicycle (photographed as Exhibit 14(g)).
  1. [32]
    Detective Toohey said that former council CEO Carl Wulff initially declined to be interviewed regarding these allegations, was later interviewed, but was not asked about auction items;[8] and former council CEO Jim Lindsay declined to be interviewed.[9] Detective Toohey also identified a document which she described as listing all donations made from the Council’s Community Donations Fund, by all councillors (Exhibit 30).[10]

Jeffrey Mark Keech

  1. [33]
    Jeffrey Mark Keech was, at the time he gave evidence, employed as a finance manager at the Ipswich City Council; having previously filled the role of Chief Operating Officer of Finance and Corporate Services. He had been employed by the Council since June 2016.[11]
  1. [34]
    Mr Keech described the make-up of the Ipswich City Council. This included the Mayor and 10 Councillors, who were all elected representatives, and who were responsible for the strategy and policy setting of Council. Then, under the Local Government Act and regulations, the council’s Chief Executive Officer (CEO) was responsible for the administration of the council, which effectively meant overseeing operations and control of staff under the direction of council. The next reporting level consisted of six or seven Chief Operating Officers (COOs).[12] Mr Keech said that all staff were required, by both the Act and the Council’s Code of Conduct, to adhere to Council policies which were available for staff to access via the Council’s intranet, and any amended policies approved by Council which were similarly available.[13] Mr Keech also described council procedures, which were drafted in accordance with the policies, and which were to be applied to implement policies. Procedures could be amended by the CEO or COOs, but not inconsistently with council policy.[14] Mr Keech said that all new staff would attend an induction process, where they are made aware of the Code of Conduct obligations.[15]

  1. [35]
    Mr Keech said the Council’s financial delegation was to the CEO who was able to sub- delegate to others officers, however, the mayor and councillors had no financial delegation.[16] Mr Keech said that a requirement for a councillor’s endorsement or approval before processing payment of a donation was simply part of the approval process.[17]
  1. [36]
    Mr Keech said Council maintained asset registers for infrastructure assets greater than $10,000 and non-infrastructure assets greater than $1,000. He also said from 2017, Council maintained a below-threshold register with those items not treated as assets for accounting purposes.[18] He said the council art gallery maintained a register of all artwork regardless of value, but that items over the threshold would also be recorded in the asset register.[19] He said it was his understanding that prior to quadrennial elections, Council would carry out a stock take of items that were at divisional councillor’s offices, but that this was not a formal asset recording obligation.[20]
  1. [37]
    Mr Keech said that Council’s purchasing process required compliance with a procurement process and governance policy, with a requisition authorised by the person with financial delegation, and converted into a purchase order.[21] Mr Keech said that because councillors do not have any financial delegation, in order to make a purchase they would liaise with council staff who would act according to council policy. He said councillors did not have a council credit card.[22] Mr Keech said that prior to 2018, money was allocated in the annual budget under the Community Donations Policy to be available for councillors to spend at their discretion.[23] Mr Keech said there were also separate budget allocations for sponsorship and grants.[24]

Gary Russell Kellar

  1. [38]
    Gary Russell Kellar was, at the time he gave evidence, a self-employed management consultant. He had worked at the Ipswich City Council from 3/10/2017 until 29/5/2018 as acting CEO. Mr Kellar had previously worked as CEO of Logan City Council.[25] He said the role and responsibilities of the CEO are provided for in the Local Government Act and regulations. Mr Kellar described the operation of council and the role of CEO as follows:

The chief executive officer has the role of managing the organisation on behalf of the council. The council acts as, but a little different to, a board of directors, which creates policy, creates strategy, provides direction to the CEO in terms of how that policy and strategy will be implemented. And the CEO is then responsible to ensure that the organisation performs to achieve the objectives of council.[26]

  1. [39]
    Mr Kellar said the CEO is responsible for creation of an administrative framework to guide the implementation of that policy but the CEO was bound by the policies set by council.[27] He said that in the period he was acting CEO, if a question arose as to interpretation of a policy of council, that might be resolved by engaging with council to clarify it, perhaps obtaining a resolution of council confirming the interpretation, or obtaining legal advice.[28]
  1. [40]
    Mr Kellar said his view was that councillors acquiring items at charity auctions was outside what was permitted since “[i]t is, in fact a purchase and would be governed by the procedures and policies and requirements of both the Local Government Act and council’s own procedures in relation to purchases and procurements”. He also said councillors do not have a financial delegation.[29] He said there was a complex arrangement by which community donations were evaluated and approved and authorised for payment but that because “policies weren’t as clear as they should be, I eventually withdrew those delegations and made all the approval processes come through the CEO’s office.”[30] Mr Kellar acknowledged the appellant was fully supportive of reform of the process for approval of donations under the Community Donations Policy.[31]

Sharon Lee Williams

  1. [41]
    Sharon Lee Williams was a council employee from 1995, initially as a secretary but eventually as an electorate officer. She worked for the appellant in those capacities from 2004.[32] Ms Williams’ worked part-time for the appellant and job shared with Lindsey Denman.[33] Ms Williams said the appellant had a council email address, she and Ms Denman had one each, and there was also one for the appellant’s council division that she and Ms Denman accessed. Ms Williams said she was able to, and did, send emails from the appellant’s email address, but only at his request.[34]
  1. [42]
    Ms Williams described procedures used to process the making of community donations. She said community groups would be provided with forms to complete, either after the group made enquiry regarding funding, or if the appellant directed a form be sent to them. Once the completed form was returned, Ms Williams or Ms Denman completed a template, it was emailed to the appellant for his consideration, the appellant would endorse his approval by email with the amount of the donation, and that was forwarded by email to the council’s Community Development Department for processing of the payment.[35] Ms Williams said that occasionally these requests for donations were not processed; for example if the completed form listed “sponsorship” rather than “donation”, in which case it would be returned to the organisation to be amended.[36]
  1. [43]
    Ms Williams acknowledged there were occasions that community donations were processed in respect of items purchased by the appellant at charity auctions. Ms Williams said she was recently shown emails relating to pamper packs but said she did not otherwise recall those donation requests and did not at any time see any auction items.[37] Ms Williams was shown emails contained within exhibits 4(b), 4(c), 4(d), 5(a), 5(d), 9(a), 9(c), and 16, and identified emails sent by herself, Ms Denman and the appellant.[38] Ms Williams was also shown a number of photographs of items. She identified a picture painted by the appellant (exhibit 3(e)), which was hanging in appellant’s division office. She thought the appellant purchased the painting but was unaware as to how he did so. Ms Williams denied seeing a green jersey, (exhibit 4(f)), or a yellow bike (exhibit 11(c)), previously. She acknowledged seeing a “Trek” bike (Exhibit 14(g)), which she said was the property of the appellant, in the Division 7 office. Ms Williams also acknowledged seeing two pictures of bottles (exhibit 28 nos 2 & 3), abstract art from Ipswich Special School (exhibit 28 no 19), and a painting (exhibit 28 no 42) in the Division 7 office.[39]

Lindsey Denman

  1. [44]
    Lindsey Denman was employed by Ipswich City Council at different times from 1979 until October 2017, when she retired. She worked exclusively for the appellant from about 2004 and job shared with Sharon Williams.[40] Ms Denman said she and Ms Williams, and the appellant, each had an email account, and they also accessed the Division 7 email account. She said she used the appellant’s email account on occasions at his request.[41]
  1. [45]
    Ms Denman said community donations were processed where an application form was completed by the community group seeking funds. She said the process was initiated either by direct request from the community group, or sometimes by the appellant asking that a form be sent to the organisation. Once the completed form was received from the community group, she or Ms Williams completed a template which was forwarded by email to the appellant for his approval of the donation and indication of the amount. Once the appellant approved the donation, the documents were forwarded to the Community Development Department of council to process the payment.[42] Ms Denman said there were times she would check the form to ensure it complied with the policy requirements in identifying what the donation was for; this happened regarding auction items and also so as to ensure the requests were not for “sponsorship”. If the form was incorrect it would be returned to the community group to be amended to show it was for a “donation”. Occasionally the Community Development Department also returned forms to them because they required further information and where that happened it would similarly be returned to the community group for amendment. Any correction did not necessarily involve the appellant.[43]
  1. [46]
    Ms Denman said there were a couple of occasions she saw emails concerning the appellant purchasing auction items. Also, at times the appellant would ask that a donation form be sent to an organisation and she has since learned some of these were for auction items.[44] Ms Denman identified her own emails contained in exhibits 3(a), 6(a), 6(b), 6(c), 12(a) & (c), 13(b), 14(c), and 15(a).[45] Ms Denman agreed that in respect of exhibit 6(c), in her email to the Community Development Department for processing of the donation, the reference to the community group’s tax invoice was removed to suit the criteria for payment. She could not say whether or not the appellant was aware of this.[46] Similarly, for her email in relation to exhibit 12, Ms Denman said the reference by the community group to an invoice would have been removed to allow processing, although this was likely discussed with the appellant. Ms Denman acknowledged however, she had no memory of speaking with the appellant regarding specific donations that were processed.[47] Ms Denman recalled the emails contained in exhibit 14(c) concerning a bike which she said she discussed with the appellant. Ms Denman said after this the appellant rode a “Trek” bike to work which was similar to that shown in exhibit 14(g).[48] Ms Denman was referred to an email sent from the Division 7 office concerning a “Phantom prize pack” (Exhibit 15(a)). She said the appellant had asked her to contact the community group to ask whether that item could be brought to Ipswich, but later told her he had spoken with the community group and told them he would not take the item. She said the result was that the appellant did not receive the item but the organisation kept it. She said the donation for $500 had been processed before the conversation with the appellant.[49]
  1. [47]
    Ms Denman said she did not at any time see a basket or hamper containing ladies toiletry items at the Division 7 office, and had not seen the yellow bike shown in Exhibit 11(c) previously.[50] Ms Denman was also shown photographs with Exhibit 28 and said the item marked “2 and 3 McMahons Ipswich” were two paintings that had been sitting on a bench at the Division 7 office; a painting headed “Anzac memorial” had been painted by the appellant and hung in his office; an abstract painting labelled “Ipswich Special School lady’s face” was familiar and likely seen by her at the Division 7 office or in the mayoral offices; and a painting referred to as number 42 had also been hung in the appellant’s office.[51]
  1. [48]
    Ms Denman maintained that the appellant obtained the “Trek” bike weeks after the donation was processed to Red and White Foundation, rather than at least 6 months later as was suggested. She acknowledged in her police statement she claimed the appellant obtained that bike prior to the donation to Red and White Foundation, but said that was wrong. She said she did not discuss that bike with the appellant.[52]

Angela Diane Harms

  1. [49]
    Angela Diane Harms had, at the time she gave evidence, been employed by Ipswich City Council for 18 years. From 2012 she performed the role of community development manager, overseeing community development staff and the council’s donation policies. She and the COO were the only persons working within that branch with a financial delegation to approve community donations under the Community Donation Policy.[53]
  1. [50]
    Ms Harms described the procedure for processing a community donation included completion of a form by the organisation seeking the donation, councillors or the mayor forwarding the completed form, assessment by her branch as to whether the request met the policy criteria, if so her signing the approval, and that being forwarded to accounts branch for payment.[54] Ms Harms said that if the form indicated the purpose of the donation was to pay for an item purchased at auction, no approval would be given, and it would be sent back to the divisional office and the councillor who would be told they had to purchase the item with their own money.[55] She acknowledged that no written document existed to evaluate the eligibility of donation requests.[56] Ms Harms said they made sure that requests were made in such a way as to fit within the policy, including at times her giving advice to divisional office staff on how to re-word an application so as to comply, or as to who should make the application so as to comply.[57] Ms Harms said if she refused an application for a donation she would raise it with the COO or CEO, since both had the financial delegation to approve the expenditure. She acknowledged the CEO would have the final say.[58] Ms Harms said she sat on the Council’s Cultural and Community Development Committee and no question about the use of community donations to pay for auction items was ever raised at that committee.[59]

Alison Jennifer Battersey

  1. [51]
    Alison Jennifer Battersey was employed by Ipswich City Council, but also knew the appellant through her friendship with the appellant’s wife.[60] She said on 25 May 2018, she saw the appellant at the Ipswich City Council offices and spoke with him. She said also present were Sean Madigan, Wade Wilson and Roc Steen. She said the appellant referred to a “phantom lamp” that he was considering buying for himself, that he knew if he wanted it he’d have to pay for it himself, that he knew he couldn’t purchase it with council money which would be stepping over the line, and that he’d asked his wife if they could purchase it but decided not to do so.[61] Ms Battersey also said the appellant spoke about a person named Troy, and said he was worried why Troy was saying whatever he’d said, and worried Troy might be concerned about getting into trouble.[62]

David Henry Morrison

  1. [52]
    David Henry Morrison was a Councillor at Ipswich City Council from 2000 until 2018. He had known the appellant over that time period. He said the appellant had a very high reputation in the community and he had rarely heard anything negative about him. He also said the appellant had a very high reputation with other councillors regarding his integrity.[63]
  1. [53]
    Mr Morrison said he was the founder and a committee member of the organisation Ipswich Cares. He was aware of the appellant attending an Ipswich Cares fundraising event on 27/8/2014, and bidding at an auction for a yellow bike. Mr Morrison was aware that subsequently a donation was made for $400.[64] Mr Morrison said the appellant’s conduct was part of a well understood practice at the Council of councillors contributing to community fund raising by bidding on items at auctions and which were paid for by use of the CDF. He was aware of other councillors also engaging in this practice and did so himself. Mr Morrison said he was never told verbally or in writing there was any problem with this practice. He said there was no disapproval or suggestion it was wrong, and said if he had known it was wrong he would not have done it. He believed that as long as there was no personal gain by the councillor, this was perfectly okay. Mr Morrison said he was not aware of any Council policy which indicated this was a proper procedure.[65]
  1. [54]
    Mr Morrison acknowledged himself attending the same fundraising event on 27/8/2014 at which he bid on and purchased a print for $1,000, and which was paid for from the CDF. He also acknowledged engaging in similar conduct, i.e. bidding on items at community fund raising events and subsequently authorising payment from the CDF. Mr Morrison said he’d done the same thing with a Shane Warne cricket shirt for about $350, and a signed guitar for $150, paid to the Westside Community Care group. Mr Morrison said that when the items were delivered to his office he returned them.[66]

Troy Harry James Dobinson

  1. [55]
    Troy Harry James Dobinson was, at the time he gave evidence, a car salesperson. He had, between 2004 and November 2017, owned and operated a retail bicycle business known as the Yellow Jersey Bike Shop, from premises on Brisbane Road at Ipswich.[67] He said that business went into liquidation and was then purchased by a business known as “Trek”.[68] Mr Dobinson said he knew the appellant, as a friend, through involvement in the Ipswich community, and interacted with him from time to time.[69]
  1. [56]
    Mr Dobinson said when he operated the bike shop he would donate items from the shop to charity events.[70] He said on one occasion the Red and White Foundation purchased a voucher from his store, at cost price of $3,200, for auction at a charity night. He said his store provided a bike for display purposes on the night of the auction. He could not recall when this occurred but did not dispute the auction was in May 2016. He said he was told the appellant had won the bike at the auction, but said he had no knowledge of the appellant receiving the prize. Mr Dobinson also said he had no recollection of the appellant speaking with he or his staff concerning redeeming the voucher or collecting the prize.[71]
  1. [57]
    Mr Dobinson also said the appellant came into his store to purchase a bike and he and other staff attended to the normal sales processes of working out the type of bike, the size of the bike, and accessories. He said the appellant later collected the bike but he was not present at that time. Mr Dobinson said he could not say how the bike was paid for; although accepted that if it had been paid for with a voucher there would have been a record of that. Mr Dobinson said he could not recall whether the appellant was looking for a mountain bike and Mr Dobinson suggested he get a road bike. Mr Dobinson also could not recall when it was the appellant came into the shop but accepted they would have issued a quote at the time someone was looking to purchase. He did not dispute this was in December 2016.[72] Mr Dobinson denied the suggestion the appellant’s obtaining a bike from his store had nothing to do with the Red and White Foundation function, or that he gave the appellant a bike to be a supporter of cycling. Mr Dobinson said he did not recall the appellant telling him he would have to record the gift of the bike on his register of interests or that Mr Dobinson’s business name would be recorded.[73] Mr Dobinson said the appellant was on occasions the recipient of donated accessory items such as clothing but he could not say when that was. Mr Dobinson accepted it was good for business to sponsor the appellant because of his community status and that he discussed that with the appellant. He maintained that was only in respect of accessories and not for a bike.[74]
  1. [58]
    Mr Dobinson also said he saw the appellant at his workplace, probably on 27 April 2018, although he was unsure of the date. He said the appellant was looking for a vehicle for his wife and he showed the appellant some options. He said the appellant also asked if Mr Dobinson had been visited by police and he confirmed he had. Mr Dobinson said the appellant said Mr Dobinson had given the appellant the bike and Mr Dobinson replied “No”. Mr Dobinson agreed the appellant got upset at that point and said he wouldn’t have taken the bike otherwise. Mr Dobinson could not recall the appellant also saying he thought the bike was given to him so he could be a cycling ambassador.[75] Mr Dobinson agreed that when providing his statement to police on 26 April 2018, he was told by the police officer he should use the words “I never gave him a bike” and he replied “Do we really have to say that though.” Mr Dobinson explained this exchange as being because he didn’t want to be involved.[76]

Kym Nicole Coogan

  1. [59]
    Kym Nicole Coogan was employed at the Yellow Jersey Bike Shop from 2014 until November 2017, as manager of accounts and administration.[77] Ms Coogan said the store used a point of sale system with staff processing payments for sales, however made, which were recorded on the computer system. At the end of each day the information was transferred to an accounting system.[78] Ms Coogan said the computer records also recorded all stock on hand.[79]
  1. [60]
    Ms Coogan was working in the Ipswich store in May 2016 when a voucher was sold to the Red and White Foundation for $3,200. Ms Coogan did not participate in the sale but was aware of the transaction from other staff. Ms Coogan later had email correspondence with the Red and White Foundation regarding payment for the voucher. She identified these emails and records of the transaction in Exhibit 14(h). Ms Coogan acknowledged the general ledger records in Exhibit 14(h) shown to her, included a complete record of gift vouchers sold and redeemed for the financial years 1 July 2015 to 30 June 2016; and 1 July 2016 to 30 June 2017. She said gift vouchers redeemed would be recorded in the debit column in the general ledger.[80] Ms Coogan said the store would sometimes make donations of items. Those items would still be recorded in the store accounts system and identified as being a donation or sponsorship as opposed to a sale; however, they would not be identified as donations in the general ledger records.[81]

Nikki Lyn Parker

  1. [61]
    Nikki Lyn Parker was, at the time she gave evidence, employed by Ipswich City Council in the role of senior solicitor. She had been in that position since October 2016. She knew the appellant.[82] She said at about 5.00pm on Thursday 19 April 2018, she saw the appellant in the car park of the Council offices and spoke with him. She said the conversation lasted about half an hour and covered a range of topics. She said the appellant spoke about a bike and told her he bought a bike at auction using council community funds. The appellant said he asked then Council CEO Jim Lindsay if the council needed the bike, but Jim Lindsay said it wouldn’t be right to keep it. The appellant also said Mr Dobinson asked him numerous times to collect the bike but the appellant declined to do so. The appellant also said that some time later he was given a bike by Mr Dobinson, on the understanding it was a loan, and Mr Dobinson could at any time ask for its return. The appellant said the reason he was loaned the bike was that he was an ambassador for cycling in Ipswich. The appellant also said he knew the practice of purchasing items with community funds at auction and keeping them was wrong, and that was why he stopped that practice when he became mayor.[83]

Defendant’s interview with police

  1. [62]
    The appellant was interviewed by police on 17 April 2018. The interview was audio recorded. The recording was admitted as Exhibit 17; transcripts of the interview were admitted as Exhibits 17(a) and 17 (b). The first portion of the interview commenced at 2.01pm and concluded at 3.37pm; the second portion commenced at 3.41pm and concluded at 5.59pm. Present for the interview were the appellant, police officers Detective Sergeant Toohey and Detective Sergeant Edwards, and the appellant’s legal representative Christopher Wilson.
  1. [63]
    The appellant was informed of his right not to answer questions and that anything he said might be used as evidence. The appellant said he understood that right. The appellant was also informed he had the right to speak to a friend relative or lawyer of his choice and have that person present for the interview. The appellant had his legal representative present. The appellant acknowledged no threat, promise or inducement had been held out to him to participate.
  1. [64]
    The police officers indicated they wished to interview the appellant concerning his purchase of items at community fundraising events by use of Council’s community donations policy. The appellant said he was aware of the investigation. The appellant said he understood the policy was to facilitate assisting not-for profit community groups that provide some community benefit. He described the process by which a donation would be made. He said if a group approached him and he believed they were an appropriate recipient, he would provide them with a form to complete. He said once the completed form was returned he would provide it to his staff. His staff would check the details and send it to him for his authorisation and to stipulate an amount. He said the form and the authorisation would be forwarded to the Council’s Community Development area who would give final approval and then process the payment.
  1. [65]
    The appellant explained the policy did not allow providing sponsorship since that attracted GST obligations, however permitted supporting an organisation. The appellant said they were not expected to receive anything in return for the donation. The appellant described the policy as flawed and said that there had been a poor culture under the previous administration. Specifically, the appellant said:[84]

…if you want me to make a particular admission, I’m gonna make a particular admission now and the admission is the Policy is flawed. … The Policy has very low degrees of transparency and accountability. And if you want me to make a particular admission as to when I stood, turn around and looked and went … how the fuck did we get to this spot without someone pulling us back in… There comes a point in time when you do go, you know, creep, we’ve just crept so far away from what is reasonable, where a reasonable person would look and go, you know that’s fair or hey you know that’s a little out of line.

  1. [66]
    The appellant admitted he had used the CDF to pay for items purchased at fundraising events. The appellant estimated he had done so around two dozen times, give or take a half dozen. The appellant said he had recently asked Sean Madigan to compile an inventory, which included such items, from his divisional office. The appellant identified from the list prepared by Mr Madigan a number of items he purchased in this way. These included paintings of “McMahon’s bottles” which he believed had an historical value, a painting he had painted, and some artwork from the special school. Mr Antoniolli described he sometimes made donations in excess of the amount bid for an item.
  1. [67]
    The appellant admitted he purchased, he thought for $500, the yellow bike (charge 9) at a fundraising auction conducted by Ipswich Cares, as an item to repurpose by giving to another organisation to raffle. He said he collected the bike a couple of days later and for safe storage put it in his garage, although the bike remained the property of Ipswich City Council. Mr Antoniolli said he forgot about the bike and that was why it was still in his possession. The appellant admitted that he’d become concerned about still having it and eventually disclosed it to Sean Madigan to deliver it into Council’s possession. Mr Antoniolli also admitted he authorised the use of the CDF for payment for a Black Caviar print (charge 6), that was located hanging in the mayoral offices. He said that item was actually acquired by Mayor Pisasale, amongst a number of other items, at auction at a fundraising dinner. He said Mayor Pisasale bid on a number of items then later arranged for a number of Councillors who attended the dinner to each contribute from their CDF allocation in a joint payment.
  1. [68]
    Mr Antoniolli also acknowledged he purchased a pamper pack (charge 3), at an auction held to benefit Ipswich Hospice. Mr Antoniolli could not recall specifically who he gave it to but thought it might have been Crime Stoppers. Mr Antoniolli also acknowledged purchasing another pamper pack (charge 7), at another charity day. He said he had little recollection of this but denied giving either pack to his wife or daughters.
  1. [69]
    Mr Antoniolli also admitted successfully bidding for a bike (charge 12), at the Red and White Foundation event in May 2016. He said he initially believed the prize was the bike that was on display and he later learned it was a voucher. He said he could not recall the actual bid amount and he may have rounded up his donation to the amount of $5,000. He said he was asked a number of times to collect the voucher but insisted he did not want the bike. Mr Antoniolli said he spoke with the Council CEO and asked if the bike could be of use to Council’s transport promotion but the CEO declined. Mr Antoniolli said at Christmas time in 2016 he was given a bike by Troy Dobinson, but unrelated to the auction. He said he had decided to take up cycling and approached Troy Dobinson who insisted he take a bike to use to promote cycling in Ipswich. He was also given cycling equipment including clothing. The bike was to remain the property of Mr Dobinson. Mr Antoniolli said he did use the bike and promoted cycling in a number of ways. He said he was told by the Council CEO he should record any gift in his register of interests and recorded it as cycling equipment which referred to the use of the bike and clothing.
  1. [70]
    Mr Antoniolli said he also purchased a gym membership voucher (charge 11), at an auction for Young Life Ipswich. He said he did not use the voucher or give it to anyone else. In the end it was simply thrown away. Mr Antoniolli said he regarded this as appropriate use of the CDF since he did not himself gain any benefit. Mr Antoniolli admitted to purchase of a Jets Rugby League jersey (charge 2), through use of the CDF. He said that was one of the items recovered by Sean Madigan. Mr Antoniolli said he also used the CDF to donate to the Domestic Violence Action Centre art work auction (charge 10). He said he did not receive the items but donated them back to the organisation. Mr Antoniolli did not dispute biding on artwork at the Christian Network Religious Instruction auction (charge 14) but said he had not collected the item. Mr Antoniolli also admitted he bid on a Phantom pack (charge 13), at an auction run by National Trust. He said he intended to purchase the item but realised it was wrong and so simply made a donation but did not collect the prize. Mr Antoniolli also accepted he bid on the artwork (charge 4), which included the McMahon’s bottles and another piece. He took possession of those items which were shown in Mr Madigan’s list.
  1. [71]
    Mr Antoniolli said the reason the application forms that were sent to the Community Development department for processing did not record these as auction items was at the direction of the CEOs who were well aware of the practice. He said he now assumed that was so that the donation paperwork would survive the audit process. Mr Antoniolli said that in hindsight, he had come to the realisation the CEOs had been wrong but he maintained he acted as he did because they had assured him it was legitimate. Mr Antoniolli said if an issue arose as to whether or not something was within the policy of council, it was referred to the CEO for his determination. Mr Antoniolli said he had no intention to deceive council and he did not put any items to his personal use.

Andrew Francis Antoniolli

  1. [72]
    The appellant also gave evidence. He was born on 13 January 1971, and was married with five daughters. At the time he gave evidence he was unemployed. He said his first job after leaving high school was as a police officer, serving from 1990 until 2000. In 2000 he was elected to Ipswich City Council as a councillor.[85] Mr Antoniolli said his reason for entering politics was to contribute and make a difference for the community. He explained he had a long history of community involvement.[86]
  1. [73]
    Mr Antoniolli was re-elected as a councillor a number of times. He was elected as Mayor of Ipswich City Council in August 2017. Whilst a councillor, Mr Antoniolli served on various council committees including as chairman of the Health and Regulation Committee, as deputy chair of the Community Services Committee, as chair of the Planning and Development Committee, and as chair of the Works, Parks and Sport Committee.[87] He stood down from the position of Mayor on 3 May 2018.[88]
  1. [74]
    Mr Antoniolli said the structure of the Council, under the elected members, included the CEO who was ultimately responsible for the administration and operational delivery of council, and had final authority in those areas. Mr Antoniolli said he did not, as a councillor, have capacity to exercise any authority over expenditure of council funds since that remained the responsibility of the CEO. Mr Antoniolli said the CEO did have the power to delegate financial authority to the COOs, who could also further delegate financial authority to other council officers.[89]
  1. [75]
    Mr Antoniolli said the council published policies on different topics; these were available to members of the public on request and to council staff and councillors via the council intranet.[90] He said he was aware of the council policy regarding grants, donations, bursaries, and scholarships which governed their management and operation, in line with legislation. He said the policies were subject to minor amendments from time to time at the behest of the CEO, the department head, or in line with legislative change. He acknowledged, as a councillor, he would have voted on such changes, including the community donations policy.[91] Mr Antoniolli said the community donations policy provided a discretion for funds to be provided to community groups that were providing a community benefit in Ipswich. This was paid from the council community development fund, a specific fund provided for in the council budget. The policy provided that a community group could apply for money, to meet operational costs, for a specific project, or even capital items.[92]
  1. [76]
    Mr Antoniolli said the issue of use of community donation funds for payment of items purchased at auctions was not, to his knowledge, ever raised at any general council meeting, committee meeting, or other meeting. To his knowledge there was never any prohibition against the practice. As for the requirement that no material benefit was to be received by council, Mr Antoniolli said he understood that to mean he was not to receive any material or personal benefit himself as a councillor.[93] Mr Antoniolli said he would provide the blank application form and the organisation would complete the details. He said once the form was returned, his staff would make an assessment to confirm the necessary details were present, and he would then be asked to endorse the donation and specify an amount. He said the form was then sent to the Community Development Department for final approval and payment from the Community Donations Fund. Mr Antoniolli also said the forms were from time to time sent back to the community group for correction, including so that the group did not seek “sponsorship”, as opposed to a “donation”. This was because Council had GST obligations for sponsorships which did not arise for donations.[94]
  1. [77]
    Mr Antoniolli admitted he participated in auctions at community fund raising events to help the organisations raise money. He said he would try to raise the bids of others and generally would not himself exceed about $500. Payment for the items was made as for any donations from the CDF, but they were told not to include the word “auction” in the application process.[95] Mr Antoniolli said he first became aware of the practice from then Mayor Pisasale who told him it was within policy. Mr Antoniolli said he asked then CEO Carl Wulff whether the practice was legitimate and was assured it was. Mr Antoniolli said he asked this to ensure he was acting lawfully and within the Council policy. He said Mr Wulff later also told him he could not use the item personally, and it was to remain Council property or could be repurposed. Mr Wulff also told him not to use the word “auction” in the application process. Mr Antoniolli said he also asked the new CEO Jim Lindsay whether the practice was legitimate. He thought the change in CEO occurred about 2013. Mr Lindsay also told him the practice was legitimate and within policy provided he didn’t use any item for personal use and it remained Council property or was repurposed within the community. This could include returning the item or providing the item to another community group for their use in fund raising. Mr Antoniolli did not believe the advice of the CEOs was contrary to any policy or practice and said modification of application forms was consistent with the advice he’d been given to avoid use of the words “sponsorship” and “auction”. Mr Antoniolli said neither Mr Wulff nor Mr Lindsay said anything about the recording of items and no formal recording was carried out. However, after Mayor Pisasale stood down, Mr Antoniolli initiated, through CEO Jim Lindsay, a process to record all items acquired by councillors by those means.[96]
  1. [78]
    Mr Antoniolli said he may have purchased about 25 items at auctions over the years. He said over time he saw this as a good way to assist organisations with their necessary fund raising. He became aware that other councillors also engaged in this practice; including, Mayor Pisasale, and Councillors Morrison, Attwood, Morrow, Bromage, Charlie Pisasale, Ireland and Pahlke. Mr Antoniolli said the participation of other councillors in this way reinforced to him that the practice was accepted and well known.[97] Mr Antoniolli said when he became Mayor he proposed to instigate a register to keep track of all items. However, he said when Mr Kellar commenced as acting CEO, his advice was the practice was contrary to policy. He said until then he had no sense of any problem with the practice.[98]
  1. [79]
    Mr Antoniolli said he was aware of some records prepared by Council staff preceding elections. He acknowledged the documents purported to identify which items of property located at his divisional office were his, and those which were owned by Ipswich City Council. He did not prepare the documents but acknowledged signing them. Mr Antoniolli denied that the notations on the records or his signing them meant that any of the items purchased at auctions were his personal property, or that he regarded any of those items as his personal property. Included in items identified as the appellant’s were the paintings obtained for charges 1 and 4. He said he regarded the items as being the property of Council and they always remained physically at the Council offices. Mr Antoniolli said he signed the documents as a procedural requirement thinking they simply recorded what property was actually in his office prior to the election to avoid misappropriation of items. Mr Antoniolli said some other items photographed were definitely not his but belonged to Council. The exception to this was the yellow bike that was stored at his house, but only because it was too big to be kept at his divisional office. Mr Antoniolli said when he became aware of the investigation into community donations he asked Mr Madigan to accompany him to identify all items and ensure full disclosure. As an example of auction items remaining the property of, and available for the use of, Council, Mr Antoniolli identified a Council produced brochure, the cover of which was a copy of a painting he had purchased at an auction using the CDF. That brochure was admitted as Exhibit 33.[99]
  1. [80]
    Mr Antoniolli said the period prior to his being interviewed by police was a very stressful time. He said in that period a staff member had committed suicide and the funeral had taken place the week before the interview, another staff member was suicidal and required assistance, a close friend had been charged by the CCC, and other staff members had been questioned by the CCC.[100] Mr Antoniolli also said that he did not know precisely what he was to be questioned about prior to the interview occurring but wanted to participate to assist investigators and because he believed he had nothing to hide. He said before the interview the acting CEO had told him the use of the CDF to pay for auction items was not appropriate; this left him thinking he’d been misled and done the wrong thing. He explained his statement to that effect was made in that context. Mr Antoniolli however, denied acting dishonestly in authorising payments for items purchased at auction and maintained that if he had been aware the practice was not legitimate he would not have participated and would have alerted others accordingly.[101]
  1. [81]
    Regarding bidding on items at auctions, Mr Antoniolli accepted that once a bid was successful there was an obligation on the part of the bidder to pay for the item, however said that was only the case where the item was acquired or claimed, and not where the item was not acquired because it was donated back. He accepted that a decision to donate an item back was at the discretion of the bidder. He did not accept that receiving an item was necessarily a benefit if he had no intention to use it.[102] Mr Antoniolli accepted that a dictionary definition of “donation” did not include receiving anything in return, but maintained that his understanding of the Council’s donation policy allowed for receipt of an item provided it was not for his personal benefit. He based this on the advice he’d been given by the former Mayor and two Council CEOs. Mr Antoniolli denied the suggestion that he had not been told by the former mayor and two CEOs the practice was legitimate. Mr Antoniolli accepted that it was for Council to set the policy and the CEO’s role was to administer policy; however, Mr Antoniolli said sometimes whether something was within policy needed to be determined by the CEO’s adjudication. Mr Antoniolli did not accept that the reason he asked the CEOs about the legitimacy of using the CDF for auction purchases was because he knew it was outside of Council policy. Neither did Mr Antoniolli accept that removal of the reference to the payment being in respect of an auction item in the application form showed it was outside policy. Mr Antoniolli said that the practice was well known, was known to the CEOs, and was known to the COOs who were administering the process. Mr Antoniolli did not accept that this was misleading the persons who were approving the applications for payment. Although Mr Antoniolli accepted he had no financial delegation to purchase items on behalf of Council, he maintained the advice of the CEOs was that the process was acceptable if the item was simply given back or became Council property. Mr Antoniolli rejected the assertion he knew throughout the time he was a Councillor the use of the CDF for purchase of items at auction was not permitted by Council policy.[103] Mr Antoniolli also denied the suggestion that his purchasing items was a method of increasing his popularity.[104]
  1. [82]
    Mr Antoniolli was specifically asked about his understanding and use of the Council donations policy. The following exchanges occurred:

Well, what was the purpose of that policy – the community donations policy?---Well, the community donations policy provided an opportunity for – I guess you could call it a degree of discretion, with respect to moneys that could be given to community groups, not-for-profits, who were providing a community benefit within the Ipswich area.

…

All right. Well, what was your understanding as to that which was permitted under the community donations policy?---It was my understanding that a community group – as I said, a local community group – who was providing a community benefit to our city – could apply for money through that process for anything from just their ongoing operational costs right through to an event, project and to a degree also capital items.[105]

…

We’ve seen or the court’s received into evidence policies which suggest that – quote – “no material benefit” – close quote – was to be received by council in return for a community donation. Were you aware of that specific aspect to the policy?---My understanding was that there was to be no material benefit or personal benefit to myself as an individual, as a councillor.

We’ve heard evidence about the process of filling out forms by which these donations would get from the council to the community group. What was your responsibility, if any, in that regard – that is to say, would councillors actually fill out these forms?---No. I – I never filled out a form for any of the community groups. I always handed them the form or sent them the form. However, on occasion, I may have added essential information to that form in the sense of they may not have put an email address in or a mobile contact number – that sort of ancillary information.

Well, after the community group had completed the form, and it was received by council, what would happen then?---Generally speaking, my staff – I refer to them as my “PA”; however, the official designation is electorate officer – would do the initial assessment to determine whether or not it looked like it met the policy and of course ensure that sufficient information was contained therein. It would then be referred to myself for some form of endorsement. And – and that endorsement would obviously not only include that I would agree to donate money but the amount involved that I would wish to donate. It would then go back to my PA – electorate officer – who would then on-forward it for the final authority and assessment of the community development department.[106]

…

All right. And my specific question is, is that you knew, at the time that you made these community donation requests, your knowledge of the word donation was, it’s not a donation if you get something in return?---I saw it in the context of benefit. I wasn’t receiving a benefit. The – the benefit was being received, in many respects, by the community organisation. Certainly that was on my mind and intent – my intent at the time.

And you knew, didn’t you, though, that as per your policy, a donation meant that you’re not expected to receive anything in return?---Yes, I did say that my understanding was the policy that I – was that I was not to receive a personal benefit.

And – well, it goes beyond what you were expected to receive as a personal benefit. It is not a donation if anything is received in return?---Well, that was not my understanding at the time. However, it was a matter that obviously I clarified or attempted to clarify through two CEOs, who both gave principally the same advice, and they both seemed to accord with one another, so I took it as having met the policy.

All right. So are you saying, then, that you knew that it was outside the policy to pay for auction items using the Community Donation Funds?---Well, essentially, I didn’t find out that it was actually outside the policy until Gary Kellar, a person who I greatly admire and respect for his integrity and honesty, informed me that we were misinterpreting – or the CEO had misinterpreted the policy and it was not approved. It was not available to councillors to do that.[107]

…

The CEO has no power to approve something that’s outside of a policy?---I – I’m not sure what you understand with respect to policies, but I’m sure you do, but with respect to policy, you cannot write a policy for every single situation. So there are times within policy where the CEO is given the approval to make decisions. So even though a CEO cannot operate outside a policy, we had a number of policies which gave power to the CEO in certain situations where something – a situation might come up that didn’t quite fit, the square peg in the round hole, so to speak, where the CEO can make the final adjudication. Now, either way, when the CEO is giving me advice, the way he has, it was either going to be within the policy or I assume that he had the ultimate power in relation.

…

The ultimate power rests with council, who set the policy?---Well, obviously, policies, to be – generally to be amended, procedures don’t require, I don’t believe procedures need to be approved by council, but many are, but policies do need to ordinarily go through the council process to – to be amended, changed, implemented, repealed and the like.[108]

…

All right. And on – while you’re looking at that second page [of Exhibit 22(a)], that contains a – the top of the second page contains a heading of definitions?---Yeah.

And that contains a definition of the word “donation”?---Yes, I see that. Yes. And it specifically says – the last sentence: … in addition the contribution did not seek benefits in exchange.?---Where’s that – oh, last sentence?

Yes?---Yes, I see that. Yes.

And that doesn’t say anything about personal benefit in exchange? It simply says:… the contribution does not seek benefit in exchange. You agree with that?- --I do agree with that. It is – there it is.

And you understood that it wasn’t a donation in accordance with that policy if a benefit was sought in exchange?---Well, that’s clearly been pointed out to me by – as I said, by Gary Kellar. But, prior to that, the information I received and instructions I received were to the contrary of that.

Well - - -?---And that’s the advice I operated on.[109]

…

All right. So do you agree with me that what Carl Wulff and Jim Lindsay were telling you to do was outside of policy?---That is the advice I received from Gary Kellar. Yes.

All right. And you knew that at the time, didn’t you?---No, I didn’t. I would never have undertaken the practice if I had have known that at the time.

So you say that Carl and – Jim, I think, was it – told you to exclude any mention in community donation applications for this being an auction item?---That’s correct. Yes.

And that was because it didn’t fit with the policy?---That’s not the words they used. No.

All right. This was, effectively, I suggest, a work around the policy that they suggested to you?---Well, I had no reason to believe why the CEO would be providing advice to me for a workaround. It is – essentially, it’s a common-use phrase that – it’s the CEO’s role, in many respects, other than what their job description says – the unwritten job description is to ensure councillors don’t get into trouble – so, in other words, to steer them away from wrongdoing.

All right. If there was nothing wrong with using the community donation form to pay for auction items, according to them, then why not just write on the forms that it was to purchase an auction item?---Again, I’m not 100 per cent sure. I have speculated a few things in the interview, and – and I guess I can speculate them now, but I cannot be certain as to the intent of the CEOs at the time.

All right. Well, why didn’t you write in the forms that it was to purchase an auction item?---As I said, I was operating under the instructions of two CEOs.

Okay?---Or – obviously, initially, in the first place, Carl Wulff, and then, obviously, over time, the second CEO.

And you’re saying that it didn’t strike you as odd that they were telling you to deliberately exclude mention of this being for an auction item?---Not essentially. And, again, as I said, particularly when Jim Lindsay said it was okay, I thought that, obviously, they’re in accord with one another, with the same advice. Look, I’m not sure, you know, why I would have thought anything otherwise, particularly when Jim Lindsay gives the same advice.

Well, the effect of it is that there is no mention to anyone about the existence of there having been an auction and items bid on and items acquired or whatever happened to the items?---Well, clearly, it was a well-known practice. In fact, again, as I have said, numerous senior managers within council would have been aware of it. The CEO was aware of it. I believe that the COOs – the relevant COOs at the time would have been aware of it, and, again, there was ample opportunity for any of them to tell us that the practice was not lawful - - -

Those - - -? and, again, if they had have, I would’ve stopped immediately.

The people that are approving the community donation request forms are receiving a form that has no reference to it as being related to an auction item. You agree with that?---The community donation form is a very, very simple form.

The Community Development Branch is responsible for assessing those applications? I believe that’s the case. I’m not sure what the department name was throughout the course of history, but certainly that Community Development rings true, yes.

And you were ensuring that they were not provided with any information that this was in relation to auction items? I was following the advice of the CEO.

And that was ensuring that there was no information being forwarded to the Community Development Branch that included that it was in relation to an auction item? Matters relative to auctions were considered as a donation, yes, and as I said numerous occasions, I did not receive, claim, acquire or desire the items that were bid for. They were donated straight back. So, essentially, they were, in essence, a donation.

All right. I’m not sure if you’ve answered my question. You were ensuring that the Community Development Branch did not receive any information that a payment may relate to an auction item being bid on?---As per the CEO’s instructions I followed, yes.

All right. And you were, by doing that, misleading those responsible for approving the forms as to the purpose of the donation, weren’t you? I didn’t believe that at the time, no.[110]

  1. [83]
    Mr Antoniolli was asked about the purchase of items the subject of each of the charges.

Charge 1

  1. [84]
    For charge 1, Mr Antoniolli admitted he was present at the auction held by Blair State School where he purchased the artwork he had painted. He and Mr Pisasale were asked to paint pieces for auction. He said his discussions with organisers beforehand confirmed he would make a donation by bidding on the artwork and a figure was agreed. He said Mr Pisasale bid against him to ensure the winning bid was in accordance with the agreed amount. Mr Antoniolli said he did not at any time consider the painting became his personal property, but believed it remained the property of Council since it was purchased with Council funds. He regarded the painting as being of inconsequential value. He said the painting, identified as depicted in Exhibit 3(e), returned with him to his office. Mr Antoniolli said that payment for the auction item was included in the total amount of $2,200 paid by the Council to the school, as per Exhibit 3(c). That figure included a total of $1,500 contributed by Mr Pisasale, and $700 contributed by the appellant, from their respective CDF allocations. Mr Antoniolli said the $700 was made up of the auction price and a further amount he pledged simply as a donation. Mr Antoniolli said he did not regard the purchase as being for his personal benefit, and the donation was made purely for the benefit of the school P & C. Mr Antoniolli denied his authorisation of the payment was to honour the commitment he had made to purchase. He had made earlier donations to the school from the CDF. Mr Antoniolli said he believed the use of the funds was legitimate and within Council policy.[111]

Charge 2

  1. [85]
    Mr Antoniolli acknowledged attending the auction event held by Ipswich Jets Rugby League Club, concerning charge 2. Mr Antoniolli said he believed the function was celebrating the centenary of rugby league in Ipswich which coincided with the Ipswich City sesquicentenary. He acknowledged he purchased a jersey at the auction which was a replica of the original Ipswich jersey and which also displayed the Ipswich sesquicentenary logo. He said this was an item that might be of historical interest to the Council but which could be repurposed. He said he took the jersey to his office where it remained until given to Mr Madigan. Mr Antoniolli said he did not believe he retained any interest in or control over the jersey. He did not regard it as a personal benefit and did not use it personally. Mr Antoniolli acknowledged that Exhibit 4(c) contained his email authorising payment of $250 from CDF to support the Ipswich Jets Rugby League. Mr Antoniolli denied his authorisation of the payment was to honour the commitment he had made to purchase. Mr Antoniolli said he believed the purchase was within Council policy.[112]

Charge 3

  1. [86]
    Mr Antoniolli acknowledged his attendance at a golf day and purchase of a pamper pack, relevant to charge 3. He said he was interested in supporting Ipswich Hospice and believed the pamper pack was an item that could be repurposed by another community organisation using it to raise funds. He saw no interest in the Council owning the item. Mr Antoniolli said he did not give a pamper pack to his wife or daughters, however, after his police interview confirmed with a Crime Stoppers committee member he had donated one to them. Mr Antoniolli identified Exhibit 5(b) was his email authorisation of payment of $200 from the CDF for this item. He said his purpose was to assist Ipswich Hospice and he did not gain any personal benefit. Mr Antoniolli denied his authorisation of the payment was to honour the commitment he had made to purchase. He said his only exercise of control over the item was to repurpose it. He believed this purchase was within Council policy. He acknowledged the email in Exhibit 5(c) showed that payment from Council occurred prior to the item being collected from Ipswich Hospice.[113]

Charge 4

  1. [87]
    Mr Antoniolli acknowledged attending the Ipswich Hospice art auction, relevant to charge 4. He purchased two items at this auction which were paid for from the CDF. One of the items included paintings of McMahon’s soft drink bottles, and the other item was a collaborative painting, later used in the production of the Council brochure, Exhibit 33. Mr Antoniolli said he acquired these items which remained the property of the City of Ipswich and identified his authorisation for payment of $1,000 in Exhibit 6(c). He said he took the items to his office, but did not regard himself as having any personal interest in, or right of control over, them. He said the payment was authorised to assist a community organisation namely Ipswich Hospice, and Mr Antoniolli denied his authorisation of the payment was to honour the commitment he had made to purchase.[114]

Charge 6

  1. [88]
    Mr Antoniolli acknowledged his attendance, together with a number of other councillors and the mayor, at a dinner for West Moreton Anglican College, relevant to charge 6. Mr Antoniolli said Mayor Pisasale asked him at that event if he would contribute to payment for items Mr Pisasale had bid on at the auction, and Mr Antoniolli agreed. Mr Antoniolli said he had no personal interest in the items, did not himself bid on any item, and did not at any time ever receive any item. He accepted that the emails contained within Exhibit 8(e) included his authorisation for payment of $500 from the CDF on his account for a Black Caviar print. The emails also identified that Mayor Pisasale authorised payment of $2,000 for a State of Origin print, Councillor Bromage $500 for a signed soccer ball, and Councillor Pahlke $1,000 for a Black Caviar print, all from the CDF. Mr Antoniolli said he later saw Black Caviar prints in the mayoral offices. Mr Antoniolli said he did not regard himself as having any interest in, or right of control over, these items and the purpose of the authorisation for payment was to assist the school foundation. Mr Antoniolli denied his authorisation of the payment was to honour the commitment he had made to purchase. He believed this authorisation was within Council policy.[115]

Charge 7

  1. [89]
    Mr Antoniolli acknowledged his purchase of a pamper pack at an Ipswich Hospice auction, relevant to charge 7. He said he regarded the item as one suitable to be repurposed and did not otherwise regard himself as acquiring any interest in, or right of control of, it. Mr Antoniolli said he may have later given the item to a person who attended his office looking for a contribution for a community event. Mr Antoniolli said he did not take the item home or give it to any member of his family. Mr Antoniolli acknowledged Exhibit 9(c) included his email authorising payment of $250 from the CDF, and said the purpose was simply to support the Ipswich Hospice as a community organisation. Mr Antoniolli denied his authorisation of the payment was to honour the commitment he had made to purchase. He believed the authorisation was within Council policy.[116]

Charge 8

  1. [90]
    Mr Antoniolli acknowledged his attendance at an event hosted by the Ipswich West Special School in support of their arts program, relevant to charge 8. Councillor Charlie Pisasale also attended as well as parents of students who were making donations. Mr Antoniolli said he, Charlie Pisasale, and Mayor Pisasale, who they spoke with via phone, agreed to each contribute to the purchase of three pieces of art created by the students. This pledge was given beforehand in discussion with the principal. Mr Antoniolli said the paintings were of little actual value. Mr Antoniolli said the school representatives later attended the Council chambers and presented the paintings to himself, Councillor Charlie Pisasale and Mayor Pisasale. Mr Antoniolli acknowledged his email authorising payment of $350 from the CDF was included in Exhibit 10(a), and the records showed Councillor Charlie Pisasale contributed $350, and Mayor Pisasale contributed $500. He said the purpose of the payment was to assist the school and he believed it was within policy. Mr Antoniolli denied his authorisation of the payment was to honour the commitment he and Charlie Pisasale had made to purchase. Mr Antoniolli also said he recalled the donation could not be made to the school’s core function since that was funded by the State Government and would have been outside policy. He said instead the donation was made towards transport.[117]

Charge 9

  1. [91]
    Mr Antoniolli acknowledged his attendance at a dinner held in support of an organisation known as Ipswich Cares, relevant to charge 9. Mr Antoniolli successfully bid on a yellow bicycle at that auction. Mr Antoniolli said at first he unsuccessfully bid on a different item and then bid for the bike, which he saw as suitable for donation to another community organisation. He said he did not regard himself as having any interest in the bike or right to control of it, except for that purpose. Mr Antoniolli said on reflection it was not the best choice since it was more difficult to store and he came to realise the problem of there being no Council record of the existence of the bike at all. He said this realisation occurred after the departure of Mayor Pisasale and there being multiple items acquired by Mayor Pisasale which were not documented. He acknowledged the bike was stored in his garage and said over time he forgot about it and for that reason he still had possession of it. Mr Antoniolli said the bike had never been ridden and was in near pristine condition, except for some superficial surface rust. Mr Antoniolli acknowledged Exhibit 11(a) contained his email authorising payment of $1,400 from the CDF although he believed the bike was purchased for only $400; the remainder was simply a donation to that organisation for the amount that was pledged beforehand. Mr Antoniolli said his authorisation was to assist the organisation, not for any personal reward, and he believed it was within policy. Mr Antoniolli also said that at the time he approved the donation he understood the donation was to pay for the bike he had in his possession. Mr Antoniolli said other councillors also contributed to Ipswich Cares in the same way.[118]

Charge 10

  1. [92]
    Mr Antoniolli acknowledged his attendance at an event for the Domestic Violence Action Centre, relevant to charge 10. Mr Antoniolli said a number of small paintings by domestic violence victims were auctioned which he bid for. He said he thought the paintings would be best retained by the organisation and did not intend to take possession of any items. He believed the organisers retained the items he bid on. Mr Antoniolli said this was, in effect, him donating the paintings back to the organisation. Mr Antoniolli acknowledged his email authorising payment of $400 from the CDF was within Exhibit 12(a). He said he did not expect any personal gain from authorising the payment and did not exercise any control apart from donating them back to the organisation. He believed the authorisation was within Council policy. Mr Antoniolli denied his authorisation of the payment was to honour the commitment he had made to purchase.[119]

Charge 11

  1. [93]
    Mr Antoniolli acknowledged his attendance at a fund raising event held by Young Life, relevant to charge 11. He successfully bid for a gym membership in a silent auction. Mr Antoniolli said he bid $250 in the auction but pledged to donate $500 when the organisers approached him. He told them he did not want the voucher for the gym membership and said they should keep it. He said that some time later he received a voucher for the gym membership in the mail but he did not use it and the voucher was never redeemed. Mr Antoniolli acknowledged his email authorisation for payment of $500 from the CDF was contained within Exhibit 13(c). He said the donation was to assist the organisation and he believed the authorisation was within policy. Mr Antoniolli denied his authorisation of the payment was to honour the commitment he had made to purchase.[120]

Charge 12

  1. [94]
    Mr Antoniolli acknowledged his attendance at a fundraising event held by the Red and White Foundation. He successfully bid for a bike at that function. He was unsure of the amount of the bid, but said he rounded the total donation figure up to $5,000. He said he believed he was bidding for the bike that was on display and only learned later that it was in fact a voucher. Mr Antoniolli said he believed the bike might be used by Council as a prize to promote Council’s alternative transport program, which included cycling. However, Mr Antoniolli said when he later raised this possibility with the CEO Jim Lindsay, Mr Lindsay was not enthused and told him he should surrender the bike back to the Foundation. Mr Antoniolli said he did not receive the voucher or the bike. Mr Antoniolli said he contacted Troy Dobinson from the Yellow Jersey Bike Shop, told him he wanted to donate the bike back to the Red and White Foundation, and Mr Dobinson said to leave it with him. Mr Antoniolli acknowledged he did not communicate that directly to the Red and White Foundation but relied upon Mr Dobinson’s assurance; which in hindsight he regretted. Mr Antoniolli said he did not believe by bidding for the bike he would gain any personal interest or the right to exercise control over it, or benefit in any way. Mr Antoniolli acknowledged his email authorising payment of $5,000 as contained in Exhibit 14(e). Mr Antoniolli said although this donation was for a relatively large amount, he and others had regularly made similar donations, as demonstrated by reference to Exhibit 30. Mr Antoniolli said he believed the donation was to support a worthwhile community organisation and was within policy. Mr Antoniolli denied his authorisation of the payment was to honour the commitment he had made to purchase the bike.[121]
  1. [95]
    Mr Antoniolli said later the same year, he decided to take up cycling as an alternative exercise due to some injuries he’d experienced from running. He contacted Mr Dobinson who encouraged that course. Mr Antoniolli later went to Mr Dobinson’s store intending to purchase a bike within a budget of around $2,000, but Mr Dobinson insisted he wanted to give Mr Antoniolli a bike so that he might become a supporter of cycling in Ipswich. Mr Antoniolli said he asked Mr Dobinson whether that offer was connected with the Red and White Foundation auction and Mr Dobinson assured him it was not. Mr Antoniolli said he did not commit to accepting the bike but later spoke with CEO Jim Lindsay who also enquired whether this was connected to the auction. Mr Antoniolli said Mr Lindsay told him that if he accepted the gift he should record it in his register of interests. Mr Antoniolli said he spoke with Mr Dobinson and said he would not accept the bike as a gift but would be prepared to use it as long as Mr Dobinson remained the owner and had the right to reclaim possession of it. Mr Dobinson agreed to this course and Mr Antoniolli took possession of the bike on that basis. For this reason, Mr Antoniolli said, he only recorded cycling equipment and accessories, which also included his use of the bike, in his register of interests. He denied the suggestion the bike was received as a result of his purchase at the auction. Mr Antoniolli said he subsequently did become a cycling supporter and promoted that publicly, and denied suggestions to the contrary. Mr Antoniolli identified a brochure which depicted himself taking part in a cycling event (Exhibit 34), and a pamphlet which depicted himself and Mr Dobinson promoting the Ipswich Cycle Park development (Exhibit 35). Mr Antoniolli said these were campaign materials produced for the mayoral by-election.[122]
  1. [96]
    Mr Antoniolli admitted that after his police interview, he approached Mr Dobinson at his workplace and asked whether he’d spoken to police. He said he had. Mr Antoniolli told him in effect, his use of the bike was unrelated to the Red and White Foundation. Mr Dobinson replied “No, it had nothing to do with it. The voucher had been paid, that was the end of it.” Mr Antoniolli said he became upset because he believed Mr Dobinson had not been honest with him and said “If I had have known that, there’s no way I would’ve accepted the bike”.[123]

Charge 13

  1. [97]
    Mr Antoniolli acknowledged attending an event held by the National Trust where he bid in a silent auction for a Phantom pack, relevant to charge 13. Mr Antoniolli said, despite telling police or Ms McDonald he had been drinking at the event, he was not affected by alcohol and had consumed only mid strength beer. He said he was likely confused due to stress when he made those statements. Mr Antoniolli said initially he intended buying the Phantom pack for himself because he was a Phantom fanatic and he attempted to pay for the prize with his credit card, however the transaction was declined. He said he later spoke with his wife who did not support his purchasing the prize and so he decided against buying it. Mr Antoniolli said he later contemplated using Council funds through the CDF to pay for the pack but realised that was wrong and did not proceed with that process. He said he felt a sense of commitment because he had agreed initially to the purchase, and also felt an obligation to the organisation. However, Mr Antoniolli said, he realised Council funds could not be used for that purpose and so told the representative from the National Trust he would not accept the item but instead make a donation of $500 to their Ipswich branch. He did not receive the Phantom pack. Mr Antoniolli acknowledged his email authorisation for payment of $500 to the National Trust from the CDF as contained within Exhibit 15(d). He said he did not regard that authorisation as giving him any interest in the Phantom pack and the donation was for the assistance of the Ipswich branch of the National Trust which he believed was within Council policy. Mr Antoniolli maintained that his decision to make the donation occurred after he had decided he would not use Council funds to pay for the Phantom pack and would not take possession of it. He said although he accepted the account of Ms Denman as to what occurred, he believed the donation was approved after he decided not to accept the item.[124]

Charge 14

  1. [98]
    Mr Antoniolli acknowledged his attendance at a fundraising event held by the Christian Religious Instruction Network, relevant to charge 14. He successfully bid on an item in a silent auction. Mr Antoniolli said he told the organisers at the event he could not accept the item but pledged to donate a total of $1,000 instead. Mr Antoniolli said it was only after his arrest he discovered that payment had not in fact been made. Mr Antoniolli said he believed this pledge to donate to the Christian Religious Instruction Network was within the policy of Council. Mr Antoniolli denied his authorisation of the payment was to honour the commitment he had made to purchase but said it was to honour his commitment to donate $1,000.[125]

Willem Frederick Muys

  1. [99]
    Willem Frederick Muys is minister of religion and executive pastor at Glory City Church at Tivoli. He is also a senior director with a number of church and charitable organisations providing community support for disadvantaged persons. Mr Muys was aware of the allegations against the appellant. He first met the appellant in about 2002. In connection with Mr Muys responsibilities regarding the church bodies he represented, he had regular contact with the appellant in his role as a Councillor. Mr Muys said in his experience the appellant always acted with professionalism, impartiality and integrity. Mr Muys said the appellant was held in the highest regard amongst the clergy. As for the Ipswich Chamber of Commerce, Mr Muys said he only heard positive things about the appellant’s character and contribution to the city, and never heard anything disparaging about him.[126]

James Richard Runham

  1. [100]
    James Richard Runham is a retired school teacher. He first met the appellant about 18 years before when the appellant ran for election to Council. Mr Runham was aware of the allegations against the appellant. Mr Runham dealt with the appellant in connection with a number of P & Cs, various school councils, a disability support organisation established by Mr Runham, and as a volunteer with the rural fire brigade. Mr Runham said in his interactions with the appellant, the appellant was always positive, respectful, determined and honest. He said the appellant had a passion and care for his fellow citizens. Mr Runham said the appellant enjoyed a very high reputation within these organisations, including for honesty.[127]

Gail Therese Lyne

  1. [101]
    Gail Therese Lyne is retired, having worked for Queensland Rail for 45 years; the last 20 years as manager of the customer contact centre. She was president of Ipswich Netball and had been for 20 years. She was aware of the allegations against the appellant. She had known the appellant in her capacity as president of Ipswich Netball for 10-15 years. She had contact with the appellant because his children played netball and through his role as a Councillor. In that capacity, the appellant had provided assistance many times concerning facilities and things such as bursaries, and contributed by working at the courts. Ms Lyne said within the netball community the appellant was very well respected.[128]

Carl Phillip Mutzelburg

  1. [102]
    Carl Phillip Mutzelburg is a church minister and was previously a neighbor of the appellant. He was aware of the allegations against the appellant. He had known the appellant about 20 years; their respective families associated socially, and the children attended the same school. Mr Mutzelburg had contact with the appellant socially, through the school P & C, and at church events. Mr Mutzelburg said the appellant was well regarded as someone who contributed to Ipswich as a hardworking and industrious Councillor and he had never heard anything contrary regarding his integrity.[129]

Bradley Kennedy Smith

  1. [103]
    Bradley Kennedy Smith is an operations manager. He was aware of the allegations against the appellant. Mr Smith had known the appellant for about 20 years through their respective participation with touch football. Mr Smith said the appellant was a reliable support in connection with organising for touch football games and general meetings. Mr Smith also said the appellant and his wife conducted fundraising for charity through the Police Citizens Club. Mr Smith said the appellant had many friends within the organisation and was very well respected.[130]

Karina Jane Antoniolli

  1. [104]
    Karina Jane Antoniolli is the wife of the appellant. She had known the appellant since they were teenagers; they started dating in 1992. She therefore had knowledge of her husband’s reputation within the community. Mrs Antoniolli was aware of the allegations against her husband. Mrs Antoniolli said her husband was held in high esteem within the community; he helped many community organisations, and spent his 40th birthday helping the cleanup after the 2011 floods. Mrs Antoniolli said many community organisations held her husband in very high regard. Mrs Antoniolli said she was aware of the allegation relating to a yellow ladies bike. She knew that bike was stored in their garage at home. She said that bike was never ridden by anyone. Mrs Antoniolli was also aware of the allegation relating to her husband receiving a bike from Yellow Jersey Bikes. She had spoken to her husband concerning that bike. Mrs Antoniolli was also aware of allegations concerning pamper packs. Mrs Antoniolli said neither she, nor their daughters, ever received any pamper packs from the appellant.[131]

Reasons of Magistrate[132]

  1. [105]
    The learned Magistrate identified the elements of the charged offences as including that the appellant acted dishonestly, in applying to his own use, the property of another. His Honour recognised that what was in issue was whether money was applied to the appellant’s own use, whether that was done dishonestly, and whether the appellant acted under an honest claim of right.[133]
  1. [106]
    The learned Magistrate also recognised that much of the evidence of events was not disputed. In this context, the learned Magistrate referred to the evidence of Mr Keech that approval of payment of donations from the CDF required the endorsement of a councillor as part of the formal process.[134] The Magistrate also referred to the evidence of Ms Harms, who had delegation to approve payment of donations, that a request for approval of a donation would be refused if an item had been purchased at auction.[135] The learned Magistrate highlighted Mr Keech’s evidence that because councillors had no financial delegation, any request by them for purchase of an item was processed by consultation with council staff.[136]
  1. [107]
    The learned Magistrate identified the factual circumstances behind each of the charges.[137]
  1. [108]
    The learned Magistrate made a number of findings adverse to credit, based on the appellant’s demeanour and manner of giving evidence. In particular, the Magistrate described the appellant’s evidence as “largely self-serving and significantly contrived”; appeared “rehearsed” and “unduly defensive and lacked a ring of truth”; and to be “evasive, deflective and deliberately unresponsive to crucial issues concerning the consequences of successfully bidding on an auction item, being given permission or instructed or advised to purchase items at auction using the Community Donation Fund by others, and that he was entitled to act as he did.”[138]
  1. [109]
    The learned Magistrate detailed the appellant’s account concerning his knowledge and use of the CDF.[139] He also outlined the appellant’s assertions the then mayor and two Council CEOs instructed that using the CDF to pay for auction items was within Council policy; that the CEOs instructed not to refer to auction items in the application process; and that to his knowledge other councillors did likewise. The learned Magistrate also noted the evidence regarding charges 6 and 8, and that of Councillor Morrison, supported that others also engaged in this practice.[140]
  1. [110]
    The learned Magistrate said the appellant “conceded in cross-examination the community donation policy was flawed as it had had low degrees of transparency and accountability”, and quoted a passage from the appellant’s police interview in which he said “[w]e’ve just crept so far away from what is reasonable” and “all of a sudden you just realise how did this happen? I agree wholeheartedly …that it is a flawed policy”.[141] The Magistrate later concluded this statement “was telling on [the appellant’s] objectively dishonest intent”.[142] The learned Magistrate quoted passages from the appellant’s police interview and evidence which he suggested showed the appellant “demonstrably exhibited deliberate evasiveness and unresponsiveness” which the Magistrate found “disingenuous and contrived”.[143]
  1. [111]
    The learned Magistrate quoted from the appellant’s evidence that his view was, to the effect, that where an item bid for at auction is not claimed or is donated back, the purchaser did not acquire it. The Magistrate next suggested inconsistency between on the one hand the appellant’s acceptance the definition of donation was that no benefit was received, compared to his assertion that he did not receive personal benefit in bidding for items. The Magistrate said the appellant also acknowledged the Council policy definition effectively excluded receipt of any benefit and was not limited to personal benefits.[144]
  1. [112]
    The Magistrate described the appellant as evasive when it was suggested he had not been advised the use of the CDF to purchase auction items was appropriate.[145] The Magistrate also said the appellant was evasive in that he continued to assert the advice he’d received from the two CEOs and the former mayor was the authority for his purchasing items.[146] The learned Magistrate said the appellant denied the suggestion he bid on items to take control of them and quoted a passage of the evidence in apparent “telling” contradiction of this claim.[147]
  1. [113]
    The learned Magistrate accepted the evidence of the appellant and the character witnesses as to the appellant’s reputation for community mindedness and “desire to profoundly assist community organisations”.[148] However, the learned Magistrate found the appellant:
  • by his own admission knew the community donation policy was flawed for lack of transparency and accountability;[149]
  • was aware that few requests for community donation funds were refused;[150]
  • by his own admission knew the donations policy mandated donations were against policy where there was material or personal benefit for an individual or councillor;[151]
  • illogically refused to concede that upon a successful bid he obtained a benefit, contrary to his admission the donation policy prohibited obtaining a benefit;[152]
  • persisted with untenable denials his requests for payment of donations were connected with auction bids;[153]
  • by his unsupported denial and obfuscation regarding the obligation to pay for an item won at auction, demonstrated he knew he was thereby obtaining a benefit.[154]
  1. [114]
    Ultimately, the learned Magistrate accepted the appellant’s evidence regarding his being advised the use of the CDF for purchase of auction items was legitimate. His Honour said:[155]

I find that he became aware of the practice of purchasing auction items and using community donation funds to pay for the debt owed to successfully bidding on such an item from other councillors including the then Mayor, Paul Pisasale. I further find that the defendant’s contentions that he received certain advice or instruction from Mayor Pisasale and the two CEOs of Jim Lindsay and Carl Wulff, as to how this worked in practice by not mentioning auction items in the request form material sent to the community donations branch are reliable and should be accepted. The unchallenged evidence of charges 6 and 8, where the Mayor and other councillors are involved in similar auction and donation methods supports such a compelling inference.

However, the Magistrate did not accept the appellant therefore believed the practice was legitimate. He went on:[156]

I do not find however, such instruction or advice meant that he held a bona fide belief that his conduct was not outside of policy and permissible. The defendant’s evidence should be rejected in this regard. His justification in not informing the community development branch of the true circumstances of the donation request being connected to winning a successful bid at an auction was because he was following the two CEO advices and the common practice known to be employed is in direct conflict with the evidence of donation request forms having no reference to auctions and items won at auction. In this regard the defendant’s contentions that the mayor, two CEOs, 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. 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.

  1. [115]
    The learned Magistrate went on to find the deletion of emails or parts thereof which referenced auctions and items won, from the materials submitted for processing of the donation applications, led to a “clear and telling inference” the appellant knew “his conduct was not bona fide”.[157] The learned Magistrate concluded the appellant’s refusal to accept the payments were related to purchases and his insistence he intended only to donate to worthwhile organisations “was a fanciful construction to hide his dishonest intent”.[158] The Magistrate said this conclusion is “highlighted” by the “uncomfortable reaction” of the appellant’s electorate officer to the Red and White Foundation seeking payment for the bicycle for charge 12; and the emails of the electorate officer advising that the amount for charge 13 was to cover payment for the Phantom pack as well as a donation.[159]
  1. [116]
    The learned Magistrate concluded the appellant applied money to his own use to expunge the debt accrued at auction, and in order to obtain the right to the items he successfully bid upon. His Honour regarded this as a deflection from the purpose of the CDF to support community organisations since the Council policy did not permit receipt of any benefit in exchange for a donation. The learned Magistrate said that what actually happened to the auctioned item was of no significance since the appellant nevertheless exercised management or control over the item by either repurposing, not collecting, collecting directly or indirectly, and storing the items.[160]
  1. [117]
    The learned Magistrate concluded that dishonesty was proved. His Honour said for each charge the appellant had not disclosed to those approving the applications for donations that each was connected with an auction item which he obtained a right to. His Honour said dishonest intent was also demonstrated by the appellant’s:
  • knowledge there were flaws in the donation fund system;
  • admission of concern about the “creep” of the practice;
  • knowledge that reference to auction items in the application form would see it rejected;
  • staff instructing recipient organisations not to refer to the auction;
  • staff deleting reference in emails to auction items or payment for them;
  • recording auction items as his personal property not as Council property;
  • failure to keep a register of items purchased at auction;
  • failure to advise others of items purchased at auction;
  • storage of the yellow bicycle at his residence without the knowledge of others;
  • advising of the existence of the yellow bike only after the investigation commenced;
  • self-serving evidence. [161]
  1. [118]
    The learned Magistrate considered the decision of the Court of Appeal in R v Perrin, in concluding the prosecution had excluded the defence of honest claim of right under s 22(2) of the Code.
  1. [119]
    The learned Magistrate convicted the appellant of each of the charges.

Appellant’s submissions on appeal

  1. [120]
    The amended grounds of appeal,[162] are as follows:

The learned Magistrate:

  1. misdirected himself as to that which the prosecution was required to prove before it could be found that property had been applied to the appellant’s own use;
  2. (a) erred in finding that any action of the appellant was accompanied by dishonesty; and

(b) misdirected himself, in circumstances where section 22 of the Criminal Code had application, as to what the prosecution was required to prove;

  1. erred in finding that the prosecution case, as particularised, had been established on the evidence.

Grounds 1 and 3

  1. [121]
    The appellant identified that the case particularised by the prosecution for charges 1- 13, was that the appellant applied Council funds to his own use by “approving”, “supporting”, or “causing” the payment of funds, thereby enabling him to exercise management or control over each auction item. For charge 14, the prosecution particularised the appellant intended to achieve that result and attempted to do so. The appellant submits, consistent with authority, proof of the property being applied required evidence of a “deflection from the purposes of the person to whom the property belongs”.
  1. [122]
    The appellant points to the evidence of Council staff, (in particular Harms, Keech, Williams and Denman), that the Council funds were drawn from, or intended to be drawn from, the CDF, a discretionary fund intended for community donations. The appellant also points to the Council’s published statements of the policy as showing the purpose of the CDF was “to support a range of grants, donations, bursaries and scholarship programs for eligible community organisations” (per Exhibit 22(a)), and “support the role of community organisations and recognise their valuable contribution in the delivery of community services and in enhancing the lifestyle of Ipswich residents” (per Exhibit 23(j)). The appellant submits that in the case of each of the charges, the money coming from the CDF was actually paid to community organisations. It was submitted therefore no deflection from purpose was established by the acts of the appellant.
  1. [123]
    In addition, the appellant argued the assertion by the prosecution that the Council donations policy did not permit use of donations where there was any item of property acquired was itself erroneous. It was submitted the text of the policy documents (as per Exhibits 22(a) and 23 (j)), did not in terms prohibit use of the CDF where an item was received in return for a donation. It was submitted the policy, as read, simply said the donation “does not seek benefits in exchange” (Exhibit 22(a)), and noted “a material benefit” received in return for a donation may attract GST (Exhibit 23(j)). The appellant argued the use of funds was therefore not outside of Council policy and not a deflection from purpose.
  1. [124]
    Further, the appellant submitted that since the Council CEO was the person with financial delegation, the CEO had the power to approve the use of the CDF in the way described. Here, the evidence accepted by the learned Magistrate was that such approval had actually been given by two former CEOs. It was submitted therefore it could not be said the payment of donations from the CDF in these instances were a deflection from the purpose expressly articulated. It was submitted this was reinforced by the learned Magistrate’s finding that other councillors and the former Mayor also engaged in this practice. The appellant also submitted that in no sense could the bidding for items at charity auctions be seen as the appellant acquiring or purchasing assets for Council in breach of requisition policy.
  1. [125]
    Also, the appellant submitted the learned Magistrate’s conclusion that funds were applied to the appellant’s own use was in error. It was submitted the learned Magistrate’s reasoning that the ultimate destination of the auction items was immaterial since the appellant exercised management or control of all items, is flawed and ignores the evidence the appellant was never in possession of some items (as for charges 7, 10, 11, 12, 13 and 14), and was not the person who actually bid for others (as for charges 6, 8 and 10). As for the other charges where items were received by the appellant, it was submitted the evidence showed they were not used by him personally and it could not be said he received any personal benefit from them. The appellant points out that in each case, the act of the appellant supporting payment of the donation occurred well after the auction. It is submitted therefore there was no evidence of funds being applied to the appellant’s own use to enable him to exercise control over the auction items.

Ground 2

  1. [126]
    The appellant submitted that, consistent with authority, it was necessary to determine what was the appellant’s state of mind, knowledge and motivation at the time he supported or endorsed the payment of funds, and determine whether that was dishonest by the standards of ordinary honest people. The appellant submits the learned Magistrate’s conclusion of dishonesty is inconsistent and irreconcilable with the learned Magistrate’s finding that the appellant was motivated to benefit community organisations, and was in fact told by the former mayor and two CEOs that the practice of using the CDF to pay for auction items was within policy, and that in processing the payments he should not make reference to auction items.
  1. [127]
    The appellant submits the learned Magistrate’s acceptance of this aspect of the appellant’s account should be respected since it was based on evaluation of the appellant’s account and was supported by other evidence. It was submitted this finding of the learned Magistrate was logically inconsistent with his conclusion the appellant believed his conduct was outside of the policy and not permissible. This is because that conclusion was based upon removal of references to auction items from the application forms submitted for payment; whereas, this was the very instruction the learned Magistrate accepted was given to the appellant. Further, it was submitted that in any event, the policy of Council did not expressly prohibit receipt of items in return for a donation, and the context was that these were items bid for at fund raising auctions in aid of community organisations.
  1. [128]
    The appellant also submitted that objective assessment of the appellant’s conduct would show his authorising payment from the CDF was done in circumstances where: the authorisation did not accompany his receipt or relinquishing of any item; as intended by Council, the funds were actually applied to community organisations; and the appellant did not gain any personal use or benefit of any item. It was submitted it was not open to conclude beyond reasonable doubt that dishonesty was established.
  1. [129]
    The appellant also submitted the decision in Perrin (referred to below), should not be read as excluding in every case charged under s 408C, the need to consider whether a defence under s 22 is available, and the learned Magistrate was in error in not separately considering that issue. The appellant submitted that consistent with the finding of the Magistrate as to what the appellant was told, his subjective honest belief was that the use of the CDF was legitimate, and that was undertaken with the intention to support and assist community organisations. It was submitted that conclusion could not be excluded beyond reasonable doubt and should have resulted in the appellant’s acquittal of all charges.

Respondent’s submissions on appeal

Whether application of funds for appellant’s own use

  1. [130]
    The respondent maintained the authorisation of payments by the appellant was the application of Council funds for the appellant’s own use, since that enabled him to exercise management and control of the individual items. The respondent submitted that since the appellant had no authority to purchase on behalf of Council, and the Council policy did not permit use of the CDF for purchase of items, the authorisation by the appellant of the payments demonstrated the necessary deflection from purpose. In written submissions, the respondent argued:[163]

The appellant applied the funds to his own use in that the items were purchased by him and thereby he had the management and control over them and could decide what to do with them This was the benefit that he obtained, the ability to put the items to whatever use he chose, whether that be to hang it in his office, or to donate it back to the organisation or keep it at his home. None of those decisions could be made without him having taking the step of purchasing those items using the Community Donations Funds to do so.

  1. [131]
    The respondent also submitted that by bidding on items without authority to do so on behalf of the Council, the appellant entered into a contract for sale of the auction items and thereby created a personal debt. It was submitted the appellant sought to satisfy that personal debt by use of Council CDF, which was therefore deflected from its purpose.
  1. [132]
    The respondent relied upon the evidence of witness Keech that all Council staff, including the CEO and Councillors, are required by the Code of Conduct (Exhibit 20(a) and (b)), to adhere to Council policy. The respondent submitted the Council donations policy was clear in prohibiting the use of donations funds for purchases. The respondent also relied upon the evidence of witness Harms that she would not approve an application for donation if it was for payment of an auction item. The respondent submitted that the definition of donation in the Council policy document did not allow for receipt of an item in exchange. It was submitted the use of the CDF to pay for items purchased at auction was therefore outside of policy and not authorised. In response to the submission that the statements of the policy contained in Exhibits 22(a) and 23(j) did not in terms prohibit receipt of an item in return for a donation, and that the definition of donation did not say a benefit in return was not permitted, the respondent submitted that the policy documents do not specifically authorise use of the CDF for purchase of auction items and there was an “absence of approval” of that conduct in the Council policies.
  1. [133]
    The respondent submitted the applications for payment made no mention that items were purchased at auction; those details being removed from the accompanying correspondence. The respondent submitted this showed a deliberate deception of those tasked with processing the applications in the knowledge that the applications would be rejected if that information were included. The respondent also relied upon the circumstance that the appellant could have simply donated money from the CDF without bidding at auctions if he wished to comply with the policy. The respondent submitted the evidence demonstrated the funds were applied to the appellant’s own use.

Dishonesty and section 22(2)

  1. [134]
    The respondent submitted the evidence showed the appellant knew or believed that Council CDF could not be used to purchase auction items, and so was aware his actions were not authorised, and viewed objectively, should be regarded as dishonest. The circumstances included that the applications did not disclose that the purpose was to pay for auction items, and no list was maintained of the items purchased or their existence disclosed to Council staff. In addition, the respondent pointed to the conclusions of the learned Magistrate which included that the appellant: knew of flaws in the donation system; admitted being concerned about the practice; knew that mention of auction items would result in the application being rejected; had staff who asked the organisations not to refer to auctions; removed reference to auction items from the applications; recorded some auction items as his personal property; did not list the items; did not advise Council staff of the existence of the items; stored one item at his home; and disclosed that item only after being aware of the investigation; and gave self- serving evidence.
  1. [135]
    The respondent also submitted the appellant entered into personal debts by bidding for items at auctions and sought to satisfy those debts by using Council funds. It was submitted the fact he did not advise Council he had purchased items when applying for funds showed he did not honestly believe the funds could be used for that purpose. It was submitted the Council policy prohibited the use of the CDF for purchases which the appellant well knew, so that the fact community organisations received the funds was of no consequence. It was submitted the element of dishonesty was proved on the evidence beyond reasonable doubt.
  1. [136]
    The respondent submitted that because the element of dishonesty was proved beyond reasonable doubt, that necessarily excluded the operation of s 22(2). It was submitted that on the basis of the matters already referred to, a finding the appellant held an honest belief he was entitled to act as he did was not open. It was submitted in those circumstances the learned Magistrate did not err in concluding the defence had been excluded.
  1. [137]
    The respondent submitted that the Magistrate’s finding that two CEOs and the former mayor advised the appellant the practice was legitimate and that no mention should be made of auction items when applying for the donation, was not a bar to a conclusion the appellant knew the practice was not authorised. It was submitted that if the practice was legitimate and approved, there was no reason not to include the reference to auction items in the applications; instead, this pointed to dishonest deception. The respondent submitted the appellant’s dishonest belief was demonstrated by the evidence when viewed overall, and the fact others were also doing likewise, did not show to the contrary.
  1. [138]
    The respondent also submitted the findings of the Magistrate in rejecting the appellant’s evidence should be respected on this hearing. The respondent submitted the charges were proved beyond reasonable doubt.

Relevant law

Nature of appeal

  1. [139]
    Section 223(1) of the Justices Act 1886 provides this appeal is by way of rehearing on the evidence given in the proceedings below. On the hearing of this appeal, I am authorised by s 225(1) and (3) of the Justices Act, to “confirm, set aside or vary” the orders appealed against or make any other order I consider just, and may exercise any power that could have been exercised at first instance.
  1. [140]
    In Fox v Percy,[164] the majority explained an appeal by way of rehearing as follows:

The nature of the ‘‘rehearing’’ provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the sub-sections quoted. The ‘‘rehearing’’ does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.

The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to ‘‘give the judgment which in its opinion ought to have been given in the first instance’’. On the other, it must, of necessity, observe the ‘‘natural limitations’’ that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘‘feeling’’ of a case which an appellate court, reading the transcript, cannot always fully share. …

Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of ‘‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’’. In Warren v Coombes, the majority of this Court reiterated the rule that:

‘‘[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.’’

…

The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute. (Citations removed)

  1. [141]
    More recently, in Lee v Lee,[165] a majority of the High Court restated the task of the appellate court, in the present circumstances, as follows:

A court of appeal is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are "glaringly improbable" or "contrary to compelling inferences" is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, "in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge". Here, the trial judge's findings of primary fact were not disturbed. However, in material respects, the Court of Appeal found that the inferences that his Honour drew from those findings were wrong. Notably, the trial judge's finding that the driver was not wearing the seatbelt not only was contrary to each party's case but, if correct, on the Court of Appeal's analysis, would lead to the conclusion that there was no real prospect that the appellant was the driver. And the trial judge's acceptance of the RACQ's case, that the appellant had been pulled from the driver's seat to the passenger seat immediately behind in something less than 90 seconds, was, in the Court of Appeal's analysis, unlikely.

Having rejected the essential planks of the trial judge's reasoning, it was not to the point for the Court of Appeal to formulate the question as which of the two hypotheses the trial judge considered to be the more probable. Nor was it to the point to consider whether the trial judge had been unduly influenced by the DNA evidence. It was an error for the Court of Appeal to dismiss the appeals in this "very closely balanced" case on the footing that the trial judge's decision was neither glaringly improbable nor contrary to compelling inferences. It was the duty of the Court of Appeal to decide for itself which of the two hypotheses was the more probable. It was the duty of the Court of Appeal to persist in its task of "weighing [the] conflicting evidence and drawing its own inferences and conclusions", and, ultimately, to decide for itself which of the two hypotheses was the more probable. It did not. The appellant's second ground is made good. (Citations removed)

Elements of offences

  1. [142]
    Section 408C(1)(a)(i) of the Code relevantly provides that a person who dishonestly applies to his own use property belonging to another, commits the offence of fraud. The elements of the present offences are:
  1. the defendant applied to his own use;
  2. property belonging to another;
  3. in doing so, the defendant acted dishonestly.
  1. [143]
    Charge 14 was charged as attempted fraud. For that charge the prosecution were required to prove, consistent with the definition of attempt in s 4 of the Code, the appellant attempted dishonestly to apply property of another to his own use.
  1. [144]
    In this case the disputed elements were whether the appellant applied Ipswich City Council funds to his own use, and if so, whether he did so dishonestly. In addition, it was common ground that a possible defence of an honest claim of right was raised on the evidence. Section 22(2) of the Code relevantly provides that a person is not criminally responsible, as for an offence relating to property, for an act done by the person with respect to any property in the exercise of an honest claim of right and without intention to defraud.
  1. [145]
    What is meant by the term “applies to his own use” was considered in R v Easton,[166] where Macrossan CJ said:

Under s. 408C, before an item of property will be ‘‘applied’’, there has to be a mental element, an intention held in relation to the thing, and also there has to be some implementation of that intention, i.e. some act or acts which constitute some dealing with the thing: in simple terms something has to be done to or with the thing. Usually there will be, I think, some influence exerted upon the thing affecting its form, location or its attributes. The ‘‘application’’ will involve some deflection from the purposes of the person to whom the property belongs.

  1. [146]
    Also in that case, Pincus JA and Demack J considered what is meant by that phrase. Their Honours said:

It appears to us that, despite the legislative history, the Queensland section must be construed on the basis that there has been a deliberate departure from the language used in the United Kingdom legislation. Authorities dealing with the notion of application to one’s own use, in other contexts, may be of limited help, as examples. In a sales tax case, Deputy Commissioner of Taxation v. Taubmans (N.S.W.) Pty Ltd, the question was whether a paint manufacturer which supplied its retailers with colour cards for use by customers applied the cards to its own use in so doing. It was held that the cards were applied to the manufacturer’s own use by, amongst other things, making them available to the storekeepers to assist prospective buyers. Then in Williams v. Papworth, a Privy Council case on appeal from New South Wales, one of the questions argued was whether money had been applied by trustees for the maintenance and education of children. The reasons include the statement:

‘‘But the word ‘applied’ does not import a power of selection: it simply means ‘devoted to’ or ‘employed for the special purpose of’.’’

The relevant meaning of ‘‘apply’’ in the Oxford Dictionary is – ‘‘6. To put to use; to employ, spend, dispose of’’. The relevant meaning of ‘‘use’’ in the same dictionary is – ‘‘1. a. The act of employing a thing for any (esp. a profitable) purpose; the fact, state or condition of being so employed; utilisation or employment for or with some aim or purpose, application or conversion to some (esp. good or useful) end.’’ These two definitions show that there is a close affinity between ‘‘apply’’ and ‘‘use’’, but for present purposes something more than a claim or assertion of ownership is required.

In our view, a claim or assertion of ownership of property will not ordinarily be able to be described as an application of that property to one’s own use. Mere words can in some circumstances be caught by the section; for example, an oral agreement whereby property, then in the possession of a bailee, is left with the bailee as security for an advance would no doubt constitute an application of that property for the bailor’s own use. Had the appellant been shown to have cashed the cheque or used it as security or lodged it to the credit of his own account with a bank, it would have been an application to the appellant’s own use; but the mere claim of ownership, although dishonestly made, was not enough. The point may, in our view, be illustrated by considering the application of the section to a physical chattel. If a person occupying the driver’s seat of a motor car says dishonestly, ‘‘This car is mine’’, that will not, at least in general, amount to an application of the car to the use of the person making the false statement. (Citations removed)

  1. [147]
    In R v Russell,[167] Gotterson JA, after quoting from Macrossan CJ’s judgement in Easton, concluded:

From these observations, one may draw that for the purposes of s 408C(1)(a), to apply property involves a dealing with it, usually by exerting some influence upon it affecting its form, location or attributes. A dishonest application of property will involve deflecting it from the purposes of the person to whom the property belongs.

  1. [148]
    Since the decision of the Queensland Court of Appeal in R v Dillon; Ex parte Attorney- General,[168] it has been accepted that proof that property was applied “dishonestly” for the purposes of s 408C, requires showing that the defendant’s actions were dishonest by the standards of ordinary honest people. In that case, McMurdo P said:[169]

As “dishonestly” in s 408C has its ordinary meaning, this Court must follow the meaning given to “dishonesty” by the High Court in Peters and McLeod. Despite the previously settled approach in Queensland since 1987, Queensland Courts must now construe the term “dishonestly” in s 408C as requiring the prosecution to prove only that what the accused person did was dishonest by the standards of ordinary honest people. To secure a conviction, the prosecution need not prove that the accused person must have realised that what he or she was doing was dishonest by those standards. This construction works harmoniously with the defence provisions of the Criminal Code, particularly s 22(2), so that, where there is evidence that the accused person had an honest belief that he or she was entitled to act as he or she did, to secure a conviction the prosecution must disprove the honest belief beyond reasonable doubt.

  1. [149]
    Authority for that conclusion included the decision of the High Court in Peters v The Queen,[170] where Toohey and Gaudron JJ said:

In a case in which it is necessary for a jury to decide whether an act is dishonest, the proper course is for the trial judge to identify the knowledge, belief or intent which is said to render that act dishonest and to instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, the act was dishonest. … If the question is whether the act was dishonest according to ordinary notions, it is sufficient that the jury be instructed that that is to be decided by the standards of ordinary, decent people.

  1. [150]
    This passage was quoted with approval in McLeod v The Queen.[171] In McLeod, the majority concluded that directions from the trial judge concerning an honest claim of right were unnecessary. The majority said:[172]

Adopting the reasoning in Peters, as we do, and applying it to the offences now under consideration, there is no requirement that the appellant must have realised that the acts in question were dishonest by current standards of ordinary, decent people. To require reference to a "subjective" criterion of that nature when dealing with a claim of right would have deleterious consequences. It would distract jurors from applying the Peters direction about dishonesty, and it would limit the flexibility inherent in that direction. A direction about the "subjective" element of a claim of right was neither necessary nor appropriate in this case.

  1. [151]
    Consistent with the decision in Dillon, the test for proof the defendant acted “dishonestly” was applied in the Queensland case of R v Perrin,[173] which involved offences of forgery (s 488 of the Code) and fraud (s 408C of the Code). In Perrin, the court rejected the complaint that the trial judge should have directed the jury concerning the application of s 22(2) of the Code; that is that the defendant held an honest claim of right in acting as he did. In that case Morrison JA, with whom Atkinson J agreed, concluded:[174]

In my respectful view that approach is correct, in accordance with McLeod and Roberts, and, as with Roberts, directly applicable to forgery offences under s 488 and the fraud offences under s 408C(1)(d) Criminal Code 1899. To succeed the Crown has to prove a necessary element, namely an intention to defraud or dishonesty, which is indistinguishable from proof that excludes the absence of intention to defraud or dishonesty (necessary for the defence under s 22(2)).

Consideration

  1. [152]
    As noted already, this is an appeal by way of rehearing on the evidence admitted in the proceedings below. I am required to review the evidence and draw my own conclusions, giving due deference to factual findings of the learned Magistrate which are likely to have been affected by impressions about the credibility and reliability of witnesses, formed as a result of seeing and hearing them give their evidence, unless they are glaringly improbable or contrary to compelling inferences.
  1. [153]
    As is clear from the conduct of these proceedings, both at trial and on appeal, much of the factual background was not disputed. At all relevant times the appellant was an elected Councillor of the Ipswich City Council. Part of the proper administration of the Council included each Councillor having an ability to make discretionary donations to suitable community organisations to assist their operation. Specific allowance for this was made in Council’s budget and each Councillor had a yearly allocation available to them for this purpose. The funds paid out in these discretionary donations were debited from the Community Donations Fund (CDF). The process by which funds would be paid included provision of a completed application form to the Council’s Community Development department. The individual Councillor was required to indicate their support or approval for the payment. Once assessed by the appropriate Council officer as complying with the scheme, approval was given which resulted in payment to the relevant organisation.
  1. [154]
    It was also accepted that the individual councillors and the mayor held no financial delegation; i.e. they had no authority to themselves approve Council expenditure. That responsibility rested with the Council CEO, who also held authority to delegate that responsibility to other Council officers. Further, it was accepted the CEO did not have the power to establish policy or amend it, rather that was the role of the elected Council through resolution by the Mayor and Councillors at regular Council meetings.
  1. [155]
    The allegations for each charge were that the appellant dishonestly applied, or in the case of charge 14 attempted to apply, Council funds to his own use. For each of the charges it was admitted there had been a fund raising auction held by a community organisation at which items were purchased by someone, and that the appellant promised to or subsequently authorised payment of a donation from the CDF to the community organisation in question. The evidence was not that it was the appellant who successfully bid on each occasion. In addition, the evidence showed that some of the items the subject of the auctions came into the possession of the appellant, whereas others did not.

Whether use of CDF contrary to Council policy

  1. [156]
    At the heart of the prosecution case was the assertion that the use of the Council CDF to purchase items at charity auctions was contrary to policy and unauthorised. This proposition was particularised as being the basis of the prosecution case that the appellant’s actions were dishonest, and also that the funds were deflected from their true purpose and hence applied to the appellant’s own use. This proposition was accepted by the learned Magistrate and became the foundation of his finding the elements of the charged offences were proved. The respondent maintains that assertion on this appeal whereas the appellant contends no such conclusion could be drawn.
  1. [157]
    The documents said to reflect the Council policy and procedures for payment of donations from the CDF, and the various iterations of it over the period of the charges, were put into evidence. These are set out in Exhibits 22, 23, 24, and 25. The respondent’s primary submission was that the use of the CDF for payment of items purchased at charity auctions was prohibited under the policy as described in those documents. It was accepted on the hearing of this appeal that the relevant statements of policy can be found in Exhibits 22(a) and 23(j); the amendments of the policies otherwise being of no present consequence.
  1. [158]
    Exhibit 22(a) includes a definition of “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 return.

  1. [159]
    Exhibit 23(j) includes this description under the heading “Application Process”;

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. In these circumstances advice of Council’s Taxation Accountant is required. In the instance of a grant, the following GST requirements are to be provided by the applicant: …

  1. [160]
    The definition provides the donation may be for a specific purpose, but that is not mandatory. Although the definition provides the donation does not seek benefit in return, that cannot logically be read as a prohibition of any benefit in return. To the contrary, the procedure document expressly contemplates receipt of benefit in return for a donation, including material benefits. Far from prohibiting their receipt, the procedure document instructs that record keeping procedures and taxation obligations may vary if a benefit is regarded as material. These policy documents cannot sensibly be construed as prohibiting receipt of a benefit in return for a donation made from the CDF. In this context, I note also the evidence of former CEO Mr Kellar, that because of a lack of clarity in the policy documents, subsequent to these events he withdrew the delegation for council staff to approve donation applications and directed they be assessed through the CEOs office.
  1. [161]
    The argument advanced by the respondent, that it was not within policy if any item was received for the donation, included that the ordinary understanding of the word donation, as per its dictionary definition, would not contemplate receipt of anything in return. Yet it is difficult to see why that construction should be preferred where specific definitions indicate otherwise. When pressed as to the terms of these documents, the respondent acknowledged they do not expressly prohibit the conduct in question. Instead, the respondent submitted, since auction items are not referred to in the policy documents, it should be concluded the practice was not permitted.
  1. [162]
    The respondent also argued that this position was consistent with Mr Kellar’s conclusion when he was CEO, the use of the CDF in this way was outside policy. The basis of his opinion was that he regarded any receipt of an auction item as an acquisition and therefore only permitted in accordance with formal procedures. However, the opinion of Mr Kellar is inconsistent with the wording in the policy documents themselves, and is also inconsistent with the way the policy was interpreted and applied during the period of the alleged offences. Mr Kellar acknowledged interpretation of Council policy sometimes fell to the CEO for determination. Mr Kellar’s opinion is not conclusive.
  1. [163]
    The learned Magistrate found the appellant was told the CDF could be used in this way. That finding was based upon acceptance of the appellant’s account, as given to police and in evidence, that the former Mayor advised the practice was acceptable, and this was confirmed by successive CEOs. No evidence was led in contradiction of that claim and no submission was made by the respondent that I should reject the Magistrate’s finding. The evidence of the appellant and Councillor Morrison was that they and others used the CDF in this way, and the evidence otherwise suggests strongly that other councillors and the Mayor did so. This conclusion of the Magistrate seems to me entirely correct.
  1. [164]
    Thus the evidence showed the written statements of the donations policy did not in terms prohibit use of the CDF 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. I do not understand the Magistrate’s finding otherwise to have been based on questions of credit or reliability because of his assessment of the witnesses. In those circumstances, that finding should not be accepted or followed by me in determining this appeal.

Whether funds applied to appellant’s own use

  1. [165]
    The prosecution particularised for all charges that the appellant applied Council funds to his own use by using the CDF “to pay for the item enabling him to exercise management or control over the item”. The specific act identified was the appellant’s “approving” or “supporting”, or intending to approve or support, payment of each donation.
  1. [166]
    Framing the case in this way presented obvious difficulty, since in no instances did the appellant become enabled to exercise management or control of items as a result of his supporting or approving a payment from the CDF. On the prosecution case, any entitlement to management or control of items, if it existed at all, arose at the time a bid was accepted at the auction. In no instances was it demonstrated that the entitlement to possession was dependent upon payment being made. The assertion it was the appellant’s act of supporting a donation which entitled him to exercise management or control of the items is therefore inconsistent with the facts for each charged event, and also with the law of contract as applied to these transactions.[175] In the present case, upon completion of the sale, the successful bidder may have been liable for the debt thereby created, but payment of that debt was not the event that enabled an entitlement to possession.
  1. [167]
    The uncontested evidence showed that for charges 1, 2, 4 and 9, the appellant took possession of the item at the time of the auction. For charge 1, which involved the appellant’s own painting, the auction occurred on 27/8/2005, whereas the appellant indicated his support for payment of a donation on 9/9/2005. For charge 2, which involved a Jets Rugby League jersey, the auction occurred on 30/7/2010, whereas the appellant indicated his support for the donation on 7/9/2010. For charge 4, which involved three pieces of art, the auction occurred on 2/3/2012, whereas the appellant indicated his support for the donation on 15/3/2012. For charge 9, which involved a yellow bicycle, the auction occurred on 27/8/2014, whereas the appellant indicated his support for a donation on 28/8/2014. As is obvious, since possession of the relevant item was actually taken in advance of the appellant indicating his support for the donation, there was no basis to conclude that support enabled his management or control of the item.
  1. [168]
    For charges 6, 10,12,13 and 14, the evidence showed the items in question were never collected or in the physical possession of the appellant. Although for these charges the respondent argued it was the entitlement to management or control that resulted, that right or entitlement arose at the time of the acceptance of the bid, not because the appellant later supported payment from the CDF. For charge 6, which involved a Black Caviar print, the auction occurred on 28/7/2012, whereas the appellant indicated his support for the donation on 17/8/2012. For charge 10, which involved 3 pieces of art, the auction occurred on 25/11/2014, whereas the appellant indicated his support for the donation on 16/7/2015. For charge 12, which involved a voucher for a bicycle, the auction occurred on 21/5/2016, whereas the appellant indicated his support for the donation 16/6/2016. For charge 13, which involved the Phantom pack, the auction occurred on 25/4/2017, whereas the appellant indicated his support for the donation on 2/6/2017. For charge 14, which involved artwork, the auction occurred on 2/6/2016, at which the appellant pledged a donation, however, no subsequent support was given for the donation.
  1. [169]
    For charges 3, 8 and 11, the evidence did not show when the item in question was received by the appellant. For charge 3, which involved a pamper pack, the auction occurred on 27/10/2011, whereas the appellant indicated support for the donation on 7/12/2011. For charge 8, which involved a piece of artwork, the auction occurred on 23/5/2014, whereas the appellant indicated his support for the donation 19/6/2014. For charge 11, which involved a voucher for gym membership, the auction occurred on 3/5/2016, whereas the appellant indicated his support for the donation 18/8/2016.
  1. [170]
    For charge 7, the evidence did not show whether or not the appellant ever had possession of the subject item. For charge 7, which involved a pamper pack, the auction occurred on 25/10/2012, whereas the appellant indicated his support for the donation on 21/11/2012.
  1. [171]
    In addition, the uncontested evidence shows the appellant did not in fact bid for the items in respect of charges 6 and 8; and likely did not do so in respect of charge 10. For charge 6, then Mayor Pisasale bid for items and later sought donations to the host organisation from other Councillors, including the appellant. The print assigned as being “paid for” by the appellant was not collected by him but apparently by the Mayor who kept it in the mayoral offices. It is not clear on the basis of the particularised case how the appellant indicating his support for this donation ever entitled him to management or control of the print; the person with that right was presumably the former Mayor. For charge 8, assuming the respondent’s argument to be correct, Councillor Charlie Pisasale, the successful bidder, was the party entitled to management and control of the items, not the appellant. For charge 10, the appellant’s evidence suggested that he came to an agreement prior to the auction that he would simply make a donation rather than bid for items. In that case, no contract of sale occurred at all and the appellant’s support for a donation could not have enabled any entitlement to management and control of an item.
  1. [172]
    Although the respondent argued the appellant applied Council money to his own use by using it to pay for the respective items, the particulars asserted in addition, that was what enabled the appellant to exercise management or control of the items. On the evidence, that was clearly not so.
  1. [173]
    Despite the way this element of the case was particularised, the respondent also submitted the appellant became personally liable 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. The learned Magistrate accepted this to be correct. As is obvious from above, despite that submission and finding, that was not the case particularised by the prosecution as the basis of the appellant’s application of funds to his own use. Nevertheless, I should consider whether the prosecution proved that Council finds were applied to the appellant’s own use.
  1. [174]
    The proposition that the appellant’s successfully bidding on items created a personal liability to pay, is premised upon an acceptance that he was not entitled to utilise the CDF for that purpose. As explained above, my conclusion is that doing so was not contrary to Council policy. However, assuming that his doing so was not outside policy, the question remains whether this was a legitimate use of the CDF; i.e. whether in each case the evidence showed any debt created was due to the appellant discharging his role as an Ipswich City Councillor, or whether he was simply acting in his own right.
  1. [175]
    In examining this question, it is significant that the evidence showed the appellant was told by the responsible Council officer this was an acceptable use of the CDF for assisting community organisations, other Councillors and the Mayor made similar use of the CDF, and as specifically found by the learned Magistrate, the appellant was motivated to assist deserving community organisations. Also, relevant is the nature of the items involved and what became of them.

  1. [176]
    For charge 1, the item was a painting created by the appellant specifically for the auction he attended. The real value of such an item must be negligible; this item remained afterwards in the appellant’s divisional office. For charge 2, the item was a commemorative jersey of little value, which remained in a drawer in the appellant’s office. For charge 3, the item was a pamper pack, possibly donated for use as an auction item to another charitable organisation. For charge 4, the item was artwork which remained in the appellant’s office. For charge 6, the item was a Black Caviar print which the appellant never received, but which was presumably retained by the former Mayor and kept in his offices. For charge 7, the item was a pamper pack, it was unclear whether the appellant ever received it. For charge 8, the item was a painting bid for by another Councillor and which remained in the appellant’s office. For charge 9, the item was a push bike which was stored at the appellant’s residence, but which the evidence showed was never used by any person. For charge 10, the item was artwork never received by the appellant and apparently retained by the community organisation. For charge 11, the item was a voucher for gym membership which was received by the appellant, but never used by any person. For charge 12, the item was a voucher for a bicycle which was never received by the appellant or redeemed by any person. For charge 13, the item was a Phantom pack which was never received by the appellant, and was subsequently raffled by the community organisation. For charge 14, the item was artwork which was never received by the appellant and remained in the possession of the organisation.
  1. [177]
    It is uncontested on the evidence that none of these items were actually used by the appellant, or any person associated with him, for his/their personal benefit. That suggests the purchases were charitable. Although some items had intrinsic value, such as the pamper packs (charges 3 and 7), the push bikes (charges 9 and 12), the gym membership (charge 11), and the Phantom pack (charge 13), it is likely the other items were of minimal or no significant value. That items had minimal or no value might suggest the purchases were altruistic rather than for personal gain. Where the item did have value, but was not actually taken or used, also suggests the purchase was altruistic.
  1. [178]
    The one exception was the bid by the appellant for the Phantom pack (charge 13), which the appellant admitted was made in his own right rather than as an Ipswich City Councillor. The appellant intended to purchase this item but changed his mind. Although he considered using Council funds to pay for the item for his personal benefit, he did not do so. He said that ultimately he decided not to accept the item but nevertheless made a donation to the organisation from the CDF. This evidence stands uncontradicted. If the support for a donation by the appellant was for the purpose of making good his admitted personal obligation to pay for this item, that potentially was an application of the CDF for the appellant’s own use. The appellant’s evidence was that his support for a donation was instead to assist the community organisation.
  1. [179]
    In addition, as already identified, the appellant was not the person who actually bid for items in charges 6 and 8; and perhaps also charge 10. For charge 6, it was uncontested that then Mayor Pisasale bid for items and later sought donation contributions from other Councillors, including the appellant. For charge 8, Councillor Charlie Pisasale bid, although by agreement between he, the then Mayor and the appellant. In the case of these charges, the personal debt, it there was one, presumably accrued to the bidder, not the appellant. For charge 10, the appellant said he agreed prior to the auction he was not bidding for items but would simply make a donation. In that case there was no contract of sale but simply a promise to donate and therefore no personal debt. This suggests his support for a donation in these cases was to support the organisation rather than to discharge any personal debt.
  1. [180]
    It was admitted the purpose of the CDF was to support community organisations and recognise their valuable contribution to delivery of community services for the betterment of Ipswich residents.[176] The Council funds available were allocated for the purpose of discretionary donations by Councillors to deserving community organisations. It was also admitted that in the case of each charge, that is where the funds were directed. No evidence of personal gain by the appellant emerged, with the possible exception of charge 13. Otherwise, that the items were purchased at fundraising events for community organisations, the nature of the items, their lack of use, and that the appellant was not the bidder in some cases, strongly suggested the payments were genuine donations. The donations were made according to the methods approved by the principal responsible Council officer, and use of the CDF in this way was not outside council policy and was engaged in by others.
  1. [181]
    Excluding charge 13, in my view, the only rational conclusion to be drawn is that the appellant’s support for payments was a legitimate use of the Council money drawn from the CDF. Although theoretically possible the appellant was applying funds to his own use, that conclusion is not reasonably open on the evidence. The innocent explanation most certainly cannot be excluded beyond reasonable doubt. I conclude the payments from the CDF to the separate organisations was not a deflection from purpose but rather an application of money to the Council’s own use.
  1. [182]
    It follows that, with the exception of charge 13, my conclusion is that the prosecution did not prove beyond reasonable doubt the element of each offence that the property of the Council was applied to the use of the appellant.
  1. [183]
    The learned Magistrate concluded this element of all charges was made out. Regarding whether the funds were applied, his Honour said:[177]

In my view, the deflection from the purpose of the money is seen in that the [appellant] has applied to his own use to satisfy or expunge the debt accrued at an auction and obtain the right of the property … being the auction item or items he successfully bid upon. …The nature of the policies and procedures contemplating a donation being something that does not afford a benefit to the Council, further supports this view.

While they are not an exhaustive statement of the Council’s corporate state of mind, the concept of no benefit being derived or accrued from the donation, is the foundation of the deflection from purpose demonstrated by the [appellant].

  1. [184]
    As to whether application of funds were to the appellant’s own use, his Honour said:[178]

In my view, the temporal aspect of when he approves or endorse the request for funds should not be confined as suggested by the [appellant] to this temporally confined moment. The concept in Easton of “some influence exerted upon the thing affecting its form, location or attributes” is met when the [appellant] approves or supports the completed documentation for the community donation form request, albeit absent any reference to an auction item.

…

In my view, where the property ended up after the auction is largely immaterial to this element. The prosecution alleges that the application of funds enabled the [appellant] to exercise management and control over the item. It is clear on the evidence that for each charge the [appellant] either repurposed, did not collect, or collected directly or indirectly and stored the auction item on the Council’s property or at his home. All of these actions clearly demonstrate an exercise in management and control of each item subject of the charge. The own use element is therefore satisfied.

  • [185]
    His Honour’s reasons do not disclose analysis of the individual transactions, but instead blanket application of his findings to all of the charges. His Honour did not address the question of whether, and if so when, the right to management or control of items arose, or whether any such right was in fact enabled by the appellant’s support for a donation. Nor did his Honour consider that during the relevant period Council policy was interpreted and applied as permitting use of the CDF in this way. As expressed above, I do not accept the learned Magistrate’s conclusion the Council policy excluded any benefit in return for the donation. The conclusions of his Honour that this element of the charges was proved does not rely upon findings as to credit or reliability, since the background facts were not disputed. In my view, the conclusion of the learned Magistrate was in error and should not be accepted. In consequence, except for charge 13, the prosecution did not prove the applicant applied funds to his own use. On that basis those convictions cannot stand.
  1. [186]
    For charge 13, the question remained whether the donation was made for the appellant’s own use or that of Council as a genuine donation. The “theoretical” possibility, rejected above as not rationally open in respect of the other charges, was raised by the appellant’s admission that he actually bid on the Phantom pack for himself, not as a Councillor seeking to make a donation. It was accepted however that ultimately he refused to accept the item, did not pay for it himself, and instead authorised a donation to that organisation.
  1. [187]
    In order to prove the appellant’s support for this payment was an application to his own use, it was necessary to exclude the appellant’s contrary claim beyond reasonable doubt. This required consideration of the appellant’s evidence. The learned Magistrate rejected the appellant’s explanations and concluded his conduct was dishonest. I should respect those findings, except where they are glaringly improbable or contrary to compelling inferences. Set out below is my detailed consideration of the Magistrate’s findings regarding the appellant’s evidence. For the reasons there explained, I do not accept the learned Magistrate’s reasoning when it comes to assessment of the appellant’s evidence. In light of those findings, I would conclude that, regrading the appellant’s account concerning charge 13, that evidence at least raises a reasonable doubt as to whether the payment was applied to the appellant’s own use. In those circumstances, I conclude this element of the charge is not proved and the conviction for charge 13 should be set aside.

Dishonesty and honest claim of right s 22(2)

  1. [188]
    The prosecution were required to prove, as an element of each offence, the appellant dishonestly applied money to his own use. This required identification of the knowledge, belief or intent of the appellant that was said to render his application of funds dishonest, determination whether the appellant held that knowledge, belief or intent, and if so, determination whether his conduct was dishonest according to the standards of ordinary honest people. The prosecution case was that the appellant’s dishonesty was proved because he knew Council funds could not be used to purchase auction items, in particular that the CDF could not be used for that purpose, and the appellant did not honestly believe the use of Council funds in this way was permissible.
  1. [189]
    The appellant admitted he authorised or supported payments from the CDF which were the basis of each of the charges. He said he did so as a means of making donations in support of community groups which were attempting to raise funds. As identified above, my conclusion is that the donations policy of Council did not prohibit receipt of items in return for donations. Therefore, donations from the CDF in payment for items at charity auctions was consistent with Council policy and the advice given to the appellant.
  1. [190]
    The appellant said the method he adopted was one he was told complied with Council policy and was used by other Councillors and the then Mayor. Successive Council CEOs supported this use, provided, no personal benefit ensued to the Councillor, items could be re-purposed, and any items received remained Council property. The appellant was also advised that the application for payment should not refer to receipt of auction items. That the appellant followed the advice he was given and that others did likewise strongly suggests the appellant was acting honestly.
  1. [191]
    In addition, it was uncontested that all of the funds distributed from the CDF went to the community organisation that held the fund raising event, not to the appellant. The value of the items the subject of the charges, how much it was asserted was paid for them, and what became of the items, is obviously relevant to whether they were dishonestly purchased or obtained. The evidence shows the value of most items was negligible, but for charge 9 (yellow bike) was perhaps a few hundred dollars at most; and for charge 12 (bicycle voucher) was $3,200. Some items were received by the appellant and remained in his office, some were never received at all, some were received but passed on to another community group, and one was stored at his residence. The evidence showed that none of the items were used personally by the appellant or persons associated with him. The value of the items, that some were never received by the appellant, and that none of them provided any personal benefit, also strongly suggests the purchases were for charitable purposes.
  1. [192]
    For charge 1, the appellant’s own painting, the donation amount was $700, the amount bid was unknown, but would seem likely to have been less than that paid out. For charge 2, the jersey, the bid was $250 and the donation paid was the same amount. For charge 3, the pamper pack, the bid amount was $200 and that was the amount paid. For charge 4, the artwork, the bid amount was $1,000 and that was the amount paid. For charge 6, the Black Caviar print, the amount bid by the then Mayor for any item is unknown, but later the Mayor asked the appellant for a donation of $500, which someone listed as against the print, and was the amount paid. For charge 7, a pamper pack, the bid amount was $250 and that was the amount paid. For charge 8, the artwork by the Special School students, the total amount bid by Councillor Charlie Pisasale was $1,100 which was divided so that the appellant’s contribution, as paid, was $350. For charge 9, the yellow bike, the amount bid was $400 and the amount of the donation was $1,400. For charge 10, artwork by domestic violence victims, the recorded bids were two of $50, and one of $300, and the amount paid was $400. In this case the appellant said he did not bid but agreed beforehand to donate a set amount. For charge 11, the gym membership, the amount bid was $500 and that was the amount paid. For charge 12, the bicycle voucher, the amount bid was $5,000 and that was the amount paid. For charge 13, the Phantom pack, the amount bid was $255 and the amount paid was $500. For charge 14, before the event the appellant pledged to donate $500 and bid $500 at the auction. No payment was actually made. These figures would suggest that the sums paid were all well in excess of the true value of the items, consistent with these being donations designed to support the organisations fund raising efforts.
  1. [193]
    The respondent relied upon a number of features in support of the contention the appellant’s conduct was deliberately dishonest. It was suggested the procedure used to apply for donations involved deception of those responsible for assessing and approving the payments, because none disclosed the items were the subject of purchase at an auction, a detail the appellant was aware would see the application refused. In particular, the respondent relied upon removal of details from emails referring to auction items or invoices for them. The appellant’s response was that he simply adopted the mechanism he was told to use. The respondent argues that process prevented the Council from determining whether the application was within policy because relevant details were withheld. That submission, however, overlooks that it was the CEO, as the responsible Council officer that held the financial delegation, who determined the practice was within policy, and who directed how it should be implemented. This argument is akin to suggesting that by following the advice of the CEO, the appellant was deceiving the CEO.
  1. [194]
    The respondent argued the procedure adopted was dishonest since, if approved by the CEO, there was no reason not to include reference to items being obtained at auction. The respondent also criticised the appellant as being unable to explain why the CEO might suggest this method. The obvious answer is to be found in the document, Exhibit 23(j), which details the procedure for consideration of applications. That document indicates that donations made for non-specific purposes will be accepted, and identifies that where a material benefit in return is received by Council, GST implications may arise. It follows that the advice to the appellant allowed easy compliance with the written procedure; it did not identify a specific purpose for the donation regarding items that were largely of no value. Where the item was not received by Council, no benefit was accrued. This was a procedure the CEO had authority to approve without any change to Council policy. The criticism of the advice and method is therefore unfounded. The criticism of the appellant was unfair; first, since he was being asked to comment upon another person’s thought processes, and second, because the appellant did in fact offer a possible explanation in the police interview, namely, he assumed it was related to ensuring audit compliance. The respondent’s further argument the practice was not legitimate because the CEO had no power to change Council policy also fails since the policy did not prohibit receipt of items in return for donations, and that policy was not changed by the advice of the CEO.
  1. [195]
    The respondent submitted the appellant’s claim the auction items always remained the property of Council should be rejected, because it was inconsistent with his having identified some of them as his personal property in stock take records. These documents (Exhibit 21), were prepared by a Council officer, not the appellant, to secure Council assets in the event of a change of councillor after an election. The photographs of items in the appellant’s office include some of the artwork (for charges 1 and 4) which was bid for at auctions. The lists identify these as the personal property of the appellant and also identify items of furniture and other hardware as the property of Council. The appellant acknowledged signing the documents but said he did so as a matter of procedure and not intending to claim ownership of the auction items. This argument may have carried more force if it concerned items of some real value or that could be shown to have been personally used by the appellant. I conclude the appellant’s explanation is plausible given the nature of the items involved and the long period during which they simply remained in his office.
  1. [196]
    The respondent submitted that because the appellant kept no list of items of property purchased in this way, and did not disclose the items to any Council officer, his use of the CDF should be seen to be dishonest. The appellant, while conceding that the suggested record keeping was in hindsight appropriate, maintained he simply followed the advice he was given. That the Council had a poor governance policy for recording such items can hardly be an indicator of dishonesty by the appellant where it is clear his acquiring the items was in accordance with the accepted practice of Council.
  1. [197]
    The respondent also submitted the rejection of the appellant’s evidence by the learned Magistrate, based upon assessment of his credit and reliability and having seen him give evidence, should be respected on the appeal. The respondent contends on that basis the Magistrate’s finding the appellant acted dishonestly should be applied.
  1. [198]
    The learned Magistrate was highly critical of the appellant’s evidence, ultimately concluding he acted dishonestly. Much of that criticism stemmed from the Magistrate’s conclusion that the donations policy expressly prohibited receipt of any item in return, and use of the CDF to purchase items at auctions was, to the appellant’s knowledge, outside policy. As already indicated, I do not accept that to be so. The Magistrate levelled specific criticism at the appellant’s failure to accept that proposition.
  1. [199]
    The learned Magistrate found the appellant admitted knowing the donation policy was “flawed for lack of transparency and accountability”[179] and relied on this as one of the reasons for his conclusion the appellant “exhibited dishonest intent”.[180] This was presumably based upon the statements by the appellant to police as set out above at [65]. Reliance upon these statements as an admission ignores the context in which they were made. At no time did the appellant acknowledge that at the time he bid at charity auctions or supported payments from the CDF he believed he was doing anything wrong. Those statements, consistent with the evidence of the appellant in cross- examination set out above at [82], were no more than a reflection of the appellant’s state of mind after being informed by Mr Kellar that his view was the practice was outside policy and therefore not legitimate. The appellant at all times maintained he acted in accordance with the advice of the CEOs and which he genuinely believed to be correct. The use of the statements as an admission of knowledge of wrongdoing by the learned Magistrate was factually wrong.
  1. [200]
    The learned Magistrate stridently criticised the appellant’s claims he did not receive any personal benefit by reason of his obtaining items at auctions.[181] I do not accept the underlying proposition which was based upon the Magistrate’s view that receipt of any item in return for a donation was prohibited under the policy. The learned Magistrate concluded the appellant’s stated intention to support community organisations was an attempt to “obfuscate”, and a “fanciful construction to hide his dishonest intent”.[182] This finding is at odds with the Magistrate’s acceptance of the appellant’s “community mindedness and his desire to profoundly assist community organisations”.[183] It is also in contrast with the Magistrate’s acceptance that the appellant was doing exactly what he was told was permitted.[184] It is also at odds with my view that the practice was entirely within policy.
  1. [201]
    Despite the learned Magistrate’s acceptance the appellant was advised the practice was legitimate, and that he was also told not to make reference to auction items in the donation applications, and that others were similarly engaged in this practice, the Magistrate nevertheless concluded the appellant did not believe the practice was within policy and permissible. The primary basis for that conclusion appeared to be the Magistrate’s regarding as being incredible that the persons with ultimate power to approve the application, and who knew of the practice, would direct the applications not include reference to auction items. This reasoning is based upon acceptance that no benefit was permitted under the donations policy and ignores the content and detail of the policy procedure documents themselves. The policy did not prohibit receipt of benefits in return for donations, identified that non-specific donations were acceptable, and required GST calculations where the benefit in return was regarded as material. It is hardly surprising the CEOs would wish to avoid such accounting difficulty as might otherwise arise, in respect of items of no real value to Council, and in circumstances where the CDF funds could otherwise simply be gifted.
  1. [202]
    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.
  1. [203]
    The learned Magistrate found a number of further features in combination demonstrated the appellant’s dishonest intent.[185] As for the assertion the appellant knew of flaws in the system and admitted of a “creep” of common practice, the true context of those statements does not show any knowledge or admission of wrongdoing. As for the methods employed in making applications without reference to auction items, these matters lose any significance in light of the direction, the Magistrate acknowledged the appellant was given, concerning processing applications. As for the recording of some artwork as the appellant’s personal property, those items were all but valueless, were of no practical purpose or interest to Council, could just as easily have been disposed of, and the circumstances do not show necessarily any conscious, let alone dishonest, decision was made to claim them. That the appellant did not record all items or inform Council staff of their presence might reflect that the property was of no real value to Council, or perhaps poor governance, but does not indicate the purchases must have been dishonest. That an item was stored at the appellant’s residence might have been of significance except that the uncontested evidence was the bicycle had never been used. In those circumstances the appellant’s explanation that it was there purely as a storage site should be accepted. The disclosure of the bike and other items to Sean Madigan after the appellant became aware of the investigation is not inconsistent with the appellant having acted honestly throughout. As to the suggestion the appellant benefited from the practice by raising his popularity, this case was not particularised or framed on that basis. The appellant’s rejection of that suggestion as cynical provides no basis for concluding any dishonesty on his part.
  1. [204]
    The learned Magistrate’s finding the conduct of the appellant was dishonest by the standards of ordinary honest people was based upon the Magistrate’s rejection of the appellant’s claims of innocence, but that in turn was substantially based upon the conclusion the policy did not permit use of the CDF to purchase auction items because that involved receiving a benefit in return. This finding was itself the basis of much of the Magistrate’s criticism of the appellant’s evidence. Even accepting the Magistrates observations concerning the appellant’s manner and demeanour when giving evidence, the substantial reason for rejection of his evidence is not supported by the evidence. In those circumstances I conclude I am not bound by the learned Magistrate’s findings concerning the appellant’s credit and reliability, when it comes to determining whether the conduct of the appellant should be judged as dishonest by the standards of ordinary honest people.
  1. [205]
    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.
  1. [206]
    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. [207]
    The parties acknowledged that a possible defence under s 22(2) of the Code was raised on the evidence. The learned Magistrate, relying upon the decision of the Court of Appeal in Perrin, concluded that proof of the element of dishonesty meant the defence was necessarily excluded because for that provision to apply, the defendant had to have acted without intention to defraud. I accept the correctness of that approach. In the present circumstances, however, I am not satisfied the element of dishonesty has been proved beyond reasonable doubt. It is therefore unnecessary for me to consider whether the defence has been excluded by the prosecution beyond reasonable doubt. However, as is obvious from these reasons, I would conclude that defence has not been excluded.

Sentence appeal

  1. [208]
    In light of the conclusions regarding the appeals against conviction, it is necessary only to deal with the sentence appeal in respect of the charge of breach of bail. For that offence the appellant was convicted and not further punished and a conviction was recorded. The appellant submitted that in the event the appeals against conviction were upheld in relation to all charges, the appropriate order is that no conviction should be recorded for the breach of bail charge. This submission was made on the basis the offence involved the appellant speaking to Council employees about the case, in breach of a condition prohibiting him from doing so. The offence occurred in circumstances where the appellant was emotionally upset and psychologically fragile. The appellant spent a night in custody as a result of being charged. He has no prior convictions, and as found by the Magistrate, was a person of otherwise good character.
  1. [209]
    This submission should be accepted.

Orders

  1. [210]
    I make the following orders:
  1. For each charge the appeal against conviction is upheld, the conviction is set aside, a verdict of acquittal is entered, and the appellant is discharged.
  1. In respect of the charge of breach of bail, the appeal against sentence is upheld, the order recording a conviction is set aside, and instead it is ordered that no conviction is recorded for that offence.

Appendix 1

  1. Bench charge sheets
  2. Trial Transcripts

Transcript of Trial Hearing – Day 1 8/05/2019

Transcript of Trial Hearing – Day 2 9/05/2019

Transcript of Trial Hearing – Day 3 13/05/2019

Transcript of Trial Hearing – Day 4 14/05/2019

Transcript of Trial Hearing – Day 5 20/05/2019

Transcript of Trial Hearing – Day 6 (Decision) 6/06/2019

  1. Exhibits Tendered at Trial (see 2 separate folders)
  2. Defendant’s Closing Submissions 20/05/2019
  3. Crown’s Outline of Submissions 20/05/2019
  4. Defendant’s Sentence Submissions 30/07/2019
  5. Transcript of sentence submissions 30/07/2019
  6. Transcript of sentence remarks 9/08/2019
  7. Notice of Appeal 3/07/2019
  8. Notice of Appeal 15/08/2019
  9. Amended Notice of Appeal 12/08/2019
  10. Amended Notice of Appeal 04/11/2019
  11. Outline of Argument on behalf of the Appellant 4/11/2019
  12. Outline of Submissions on behalf of the Respondent 24/02/2020

Appendix 2

Number

Description

Witness produced

through

1

Particulars

N/A

2

Admitted facts

CHARGE 1

3 (a)

Email dated 10/02/05 from Lindsey Denman

Toohey

3 (b)

Email dated 22/04/2005 from Div 7 Office to Records General Logon

Toohey

3 (c)

Email dated 09/09/2005 from Andrew Antoniolli to Lisa Holliday

Toohey

3 (d)

Email dated 09/09/2005 from Lisa Holliday to Records General Logon

Toohey

3 (e)

4 x photographs of the painting

Toohey

CHARGE 2

4 (a)

Email dated 13/08/2010 from Antoniolli to Division 7 Officer +

invoice attached to it

Toohey

4 (b)

Email dated 17/08/2010 from Sharryn William to Louise Hay +

community donation form attachment

Toohey

4 (c)

Email dated 07/09/2010 from Antoniolli to Division 7 Office

Toohey

4 (d)

Email dated 07/09/2010 from Div 7 to Community Donations +

attachment

Toohey

4 (e)

Community Development Branch documents: Accounts payable form dated 13/09/10

Email 07/09/10 from Sharryn Williams Completed community donations request form

Toohey

4 (f)

3 x Photographs of Jersey seized from ICC – Replica Centenary jersey

Toohey

CHARGE 3

5 (a)

Email dated 05/12/2011 from Alison Lahey to Div 7 Office and

attachments

Toohey

5 (b)

Email dated 07/12/2011 from Andrew Antoniolli to Div 7 Office +

attachments

Toohey

5 (c)

Email dated 09/01/2012 from Lindsey Denman to Div 7 Office

Toohey

5 (d)

Community Development Branch documents (December 2011): Accounts Payable Form (dated 09.12.11)

Email 07/12/2011 – from Sharryn Williams to Community Donations Completed Community Donations Form (dated 05/12/11)

Public Liability Insurance

Email 07/12/2011 – Sharryn Williams to Div 7 Office

Toohey

CHARGE 4

6 (a)

Email dated 09/03/2012 from Lindsey Denman to Melissa Austernin +

attachment

Toohey

6 (b)

Email dated 09/03/2012 from Melissa Austrernin to Lindsey Denman

+ attachment

Toohey

6 (c)

Email 15/03/2012 from Lindsey Denman to Community Donations

Toohey

6 (d)

Community Development Branch Documents Accounts payable form dated 30/13/12

Email 21/03/12

Completed community donations form and insurance CEO approval

Toohey

CHARGE 5 – Discontinued, exhibit 7 removed.

CHARGE 6

8 (a)

Email dated 30/07/2012 from Heather Gunn to Mary Missen

Toohey

8 (b)

Email dated 01/08/2012 from Heather Gunn to Mary Missen – includes

pictures of auction items bought by councillors + attachments exhibit 10

Toohey

8 (c)

Email dated 09/08/2012 from Mary Missen to Carol Bandy - + attachment in exhibit 12

Toohey

8 (d)

Email dated 09/08/2012 from Mary Missen to Antoniolli, Pahlke +

attachment

Toohey

8 (e)

Email dated 17/08/2012 from Andrew Antoniolli to Mary Missen

Toohey

CHARGE 7

9 (a)

Email dated 01/11/2012 (1:46pm) from Melissa Austernin to Sharryn

Williams

Toohey

9 (b)

Email dated 01/11/2012 (4:42pm) from Melissa Austernin to Sharryn

Williams + attachment completed community donation form

Toohey

9 (c)

Email from 21/11/2012 from Sharryn Williams to Community

Donations + attachment

Toohey

9 (d)

Community Development Branch documents:

Accounts Payable Form

Email 21/11/2012 – from Sharryn Williams to Community Donations Completed Community Donations Form

Public Liability Insurance

Ipswich City Council Remittance Advice

Toohey

CHARGE 8

10 (a)

Email dated 19/06/2014 from Andrew Antoniolli to Division 7 Office

+ attachment

Toohey

10 (b)

Email dated 26/06/2014 from Lindsey Denman to Community Donations + Completed Community Donations Form dated 17/06/2014

and Public Liability Insurance

Toohey

10(c)

Community Development Branch documents:

Accounts Payable Form (dated 04/07/14)

Email 26/06/2014 – from Lindsey Denman to Community Donations Completed Community Donations Form (dated 17/06/14)

Public Liability Insurance ICC Donation Acquittal Form

Toohey

10 (d)

3 x Photographs of the Exhibit

Toohey

CHARGE 9

11 (a)

Email dated 28/08/2014 from Andrew Antoniolli Div 1 Office +

attachment completed community donation form

Toohey

11 (b)

Community Development Branch documents (DECEMBER 2011): Accounts Payable Form (03/10/14)

Email 29/08/2014 – from Victor Atwood to Div 1 Office Completed Community Donations Form (dated 17/09/14)

Email from 22/09/2014 from Div 1 Office to Community Donations ICC Approval – donation over $3000 Form to – Ipswich Cares Dinner ICC Approval for donation for $300 Form – Raise Awareness Walk Email dated 24/09/2014 from John Adams to Josie Berry

Email dated 25/09/2014 John Adams to Community Donations

ICC – Approval – donation over $200 Form to – Ipswich Cares Acquittal Report for donation exceeding $250 – 02/10/2014

Toohey

11 (c)

12 x photographs of yellow bike numbered 17 – 28

Toohey

CHARGE 10

12 (a)

Email dated 16/07/2015 from Andrew Antoniolli to Division 7 Office

+ attachments

Toohey

12 (b)

Email dated 16/07/2015 from Lindsey Denman to Community

Donations + attachment

Toohey

12 (c)

Email dated 16/07/2015 from Lindsey Denman to Roz Clarke (DVAC)

+ attachments

Toohey

12 (d)

Community Development Branch documents:

Accounts Payable Form (dated 17/07/2015)

Email 16/07/2015 from Lindsey Denman to Community Donations Completed Community Donations Form

Toohey

CHARGE 11

13 (a)

Email dated 08/06/2016 from Andrew Antoniolli to Div 7 Office

Toohey

13 (b)

Email dated 09/06/2016 from Lindsey Denman to Alison Sellar +

attachment

Toohey

13 (c)

Community Development Branch documents:

Accounts Payable Form

Email 18/08/2016 from Lindsey Denman to Community Donations Completed Community Donations Form

Public Liability Insurance

Toohey

CHARGE 12

14 (a)

Email dated 24/05/2016 from Troy Dobinson to Thomas Harrys

Toohey

14 (b)

Email dated 01/06/2016 from Janelle Van De Weyer to Division 7

Office

Toohey

14 (c)

Email dated 02/06/2016 from Lindsey Denman to Janelle Van De

Weyer + attachment Blank Community Donation Form

Toohey

14 (d)

Email dated 16/06/2016 – Lindsey Denman to Community Donations

+ attachment Completed Community Donation Form

Toohey

14 (e)

Community Development Branch documents:

Accounts Payable Form

Email 16/06/2016 from Lindsey Denman to Community Donations Completed Community Donations Form (Extra information on form not included in Form sent by Janelle Van De Weyer)

Public Liability Insurance

Toohey

14 (f)

Yellow Jersey Quote 16-00012459 dated 15/12/2016

Toohey

14 (g)

Photographs of bike numbered 6-10

Toohey

CHARGE 13

15 (a)

Email dated 16/05/2017 from Div 7 Office to Jane Jamieson

Toohey

15 (b)

Email dated 01/06/2017 from Josslyn Teske to Div 7 Office +

attachment Blank Community Donation Form

Toohey

15 (c)

Email dated 01/06/2017 from Lindsey Denman to Josslyn Teske

Toohey

15 (d)

Email dated 02/06/2017 from Lindsey Denman to Community

Donations + Completed Community Donations Form

Toohey

15 (e)

Community Development Branch documents: Accounts Payable Form

Email 2 June 2017 – from Div 7 Office to Community Donations Completed Community Donations Form

Public Liability Insurance

Toohey

CHARGE 14

16 (a)

Email dated 02/11/2017 from Division 7 Office to Sharryn Williams +

Tax Invoice dated 15/06/2017 from CRI Network

Toohey

16 (b)

Community Development Branch documents: Accounts Payable Form

Email 17 May 2017 from Mary Missen to Community Donations Email 13 April 2017 from Paul Tully to Fran Bloom

Community Donations Endorsement

Completed Community Donations Form Certificate of Protection

Toohey

16 (c)

Copy of Tax Invoice from CRI Network and voided Tax Invoice from

CRI Network

Toohey

   

17 (a)

Record of Interview Audio dated 17/04/2018 Part A (01:37:13) and

Transcript

Toohey

17 (b)

Record of Interview dated 17/04/2018 Part B (02:17:51) and Transcript

Toohey

18

Madigan Documents referred to in record of interview

Toohey

19

Register of Interests dated 31/01/2017 referred to in Record of

Interview

Toohey

   

20 (a)

Code of Conduct for Councillors

Keech

20 (b)

Code of Conduct for Employees

Keech

   

21 (a)

Stocktake End of Term 2008

Keech

21 (b)

Stocktake End of Term 2012

Keech

21 (c)

Stocktake End of Term 2016

Keech

   

22

Grants, Donations, Bursaries and Scholarships Policies Timeline

Keech

22 (a)

Grants, Donations, Bursaries and Scholarships Policy – 27/11/2007 –

27/10/2008

Keech

22 (b)

Grants, Donations, Bursaries and Scholarships Policy – 27/10/2008 –

10/12/2012

Keech

22 (c)

Grants, Donations, Bursaries and Scholarships Policy – 10/12/2012 –

05/11/2013

Keech

22 (d)

Grants, Donations, Bursaries and Scholarships Policy – 05/11/2013 –

14/10/2014

Keech

22 (e)

Grants, Donations, Bursaries and Scholarships Policy – 14/10/2014 –

12/01/2015

Keech

22 (f)

Grants, Donations, Bursaries and Scholarships Policy – 12/01/2015 –

30/06/2015

Keech

22 (g)

Grants, Donations, Bursaries and Scholarships Policy – 30/06/2015 –

25/07/2017

Keech

22 (h)

Grants, Donations, Bursaries and Scholarships Policy – 25/07/2017 –

27/02/2018

Keech

22 (i)

Grants, Donations, Bursaries and Scholarships Policy – 27/02/2018 –

26/06/2018

Keech

22 (j)

Grants, Donations, Bursaries and Scholarships Policy – 26/06/2018 -

Current

Keech

   

23

Community Donations Policy Timeline

Keech

23 (a)

Community Donations Policy 27/06/2001 – 27/10/2008

Keech

23 (b)

Community Donations Policy 27/10/2008 – 24/02/2009

Keech

23 (c)

Community Donations Policy 24/02/2009 – 26/05/2009

Keech

23 (d)

Community Donations Policy 26/05/2009 – 29/06/2010

Keech

23 (e)

Community Donations Policy 29/06/2010 – 04/09/2012

Keech

23 (f)

Community Donations Policy 04/09/2012 – 10/12/2012

Keech

23 (g)

Community Donations Policy 10/12/2012 – 19/02/2013

Keech

23 (h)

Community Donations Policy 19/02/2013 – 05/11/2013

Keech

23 (i)

Community Donations Policy 05/11/2013 – 22/04/2016

Keech

23 (j)

Community Donations Policy 22/04/2016 – 26/06/2018

Keech

Documents Implementing Community Donations Policies

24 (a)

Documents Implementing Community Donations Policy A 27/06/2001

– 27/10/2008 – Council Ordinary Meetings 27/06/01

Keech

24 (b)

Documents Implementing Community Donations Policy B 27/10/2008

– 24/02/2009 and Grants Donations and Bursaries and Scholarships Policy B – Council Ordinary Meeting 14/10/08

Keech

24 (c)

Documents Implementing Community Donations Policy C 24/02/2009

– 26/05/2009 – Council Ordinary Meeting 24/02/09

Keech

24 (d)

Documents Implementing Community Donations Policy D 26/05/2009

– 29/06/2010 – Council Ordinary Meeting 26/05/09

Keech

24 (e)

Documents Implementing Community Donations Policy E 29/06/2010

– 04/09/2012 – Council Ordinary Meeting 29/06/10

Keech

24 (f)

Documents Implementing Community Donations Policy F 04/09/2012

– 10/12/2012 – Council Ordinary Meeting 04/09/2012

Keech

24 (g)

Documents Implementing Amendments to Grants Donations and

Bursaries Scholarship Police C approved on 10/02/12 and Community Donations Policy G

Keech

24 (h)

Documents Implementing Community Donations Policy H 19/02/13 –

Council Ordinary Meeting 19/02/13

Keech

24 (i)

Documents Implementing Community Donations Policy I and Grants donations Bursaries and Scholarships Policy D approved on

05/11/2013

Keech

24 (j)

Documents Implementing Grants Donations Bursaries and

Scholarships Policy E on 14/10/14 – Council Ordinary Meeting 14/10/14

Keech

24 (k)

Documents Implementing Grants Donations Bursaries and Scholarships Policy F approved on 12/01/15

Keech

24 (l)

Documents implementing Grants Donations Bursaries and

Scholarships Policy G 30/06/15 – Council Ordinary Meeting 30/06/15

Keech

24 (m)

Documents Implementing Community Donations Policy J 20/04/2016

Keech

   

25

Community Donations Procedures Timeline

Keech

25 (a)

Procedure 58/05 Donations in Kind to Charitable/Community

Organisations approved on 26 May 2000

Keech

25 (b)

Procedure 43/51 Distribution of Community or Individual

Contributions, Donations or Gifts approved on 3 June 2002

Keech

25 (c)

Procedure 09/04 Allocation of Community Donations approved on 4

December 2003

Keech

25 (d)

Procedure 09/04 Allocation of Community Donations approved on 10

June 2008

Keech

25 (e)

Management of Community Donations police approved on 15 May

2012

Keech

25 (f)

Second Version of Management of Community Donations police

approved on 15 May 2012

Keech

25 (g)

Management of Community Donations police approved on 15 April

2013

Keech

25 (h)

Management of Community and City Wide Donations approved on 5

November 2013

Keech

25 (i)

Management of Community and City Wide Donations approved on 17

September 2015

Keech

25 (j)

Management of Community and City Wide Donations approved on 29

September 2015

Keech

   

26

Event Sponsorship Policy Timeline

Keech

26 (a)

Event Sponsorship Policy adopted 21 July 2009

Keech

26 (b)

Event Sponsorship Policy adopted 14 October 2014

Keech

   

27

Handwritten Notes

Madigan

28

Bundle of 42 photographs

Madigan

Footnotes

[1] Section 223(1) of the Justices Act 1886.

[2] The admissions document incorrectly describes this as Exhibit 10.

[3] Trial transcript (T) 1-28, lines 22-23.

[4] T 1-28 line 27 – 1-30 line 28.

[5] T 1-31 line25 – 2-3 line 15.

[6] T 2-3 lines 34-45.

[7] T 2-4 line 1 – 2-5 line 6.

[8] T 2-3 lines 19-28.

[9] T 2-3 lines 30-32.

[10] T 2-5 line 36 – 2-6 line 7.

[11] T 2-7 lines 28-36.

[12] T 2-7 line 42 - 2-8 line 31.

[13] T 2-8 line 33 – T-9 line 5.

[14] T 2-9 lines 17-42.

[15] T 2-9 line 43 – 2-10 line 2.

[16] T 2-10 lines 14-30.

[17] T 2-10 lines 19-25.

[18] T 2-10 line 37 – 2-11 line 43.

[19] T 2011 line 45 – 2-12 line 3.

[20] T 2-12 lines 5-19.

[21] T 2-12 lines 21-32.

[22] T 2-12 line 45 – 2-13 line 20.

[23] T 2-13 line 34 – 2-14 line 3.

[24] T 2-14 lines 12-28.

[25] T 2-15 line 36 – 2-16 line 10.

[26] T 2-16 lines 16-21.

[27] T 2-16 lines 29-37.

[28] T 2-16 line 45 – 2-17 line 3.

[29] T 2-17 lines 5-14.

[30] T 2-17

[31] T 2-18 lines 13-28.

[32] T 2-19 lines 26-46.

[33] T 2-20 lines 3-9.

[34] T 2-20 line 28 – 2-21 line 24.

[35] T 2-21 line 37 – 2-23 line 19.

[36] T 2-23 lines 14-28; 2-31 lines 16-47.

[37] T 2-23 lines 30-46.

[38] T 2-24 line 5 – 2-28 line 31.

[39] T 2-28 line 33 – 2-30 line 46.

[40] T 2-33 line 15 – 2-34 line 11.

[41] T 2-34 lines 13 – 2-35 line 10.

[42] T 2-35 line 12 – 2-36 line 31.

[43] T 2-36 line 33 – 2-37 line 35.

[44] T 2-37 lines 37-42.

[45] T 2-38 line 1 – 2-43 line 21.

[46] T 2-39 line 40 – 2-40 line 25.

[47] T 2-40 line 27 – 2-41 line 21; 2-48 line 5 – 2-49 line 21.

[48] T 2-41 line 45 – 2-42 line 47.

[49] T 2-43 lines 1-21; 2-47 line 17 – 2-48 line 3.

[50] T 2-43 lines 23-32.

[51] T 2-43 line 39 – 2-44 line 45.

[52] T 2-45 line 10 – 2-47 line 15; 2-49 lines 23-27.

[53] T 2-61 line 25 – 2-62 line 3; 2-64 lines 38-42.

[54] T 2-62 lines 5-23.

[55] T 2-63 lines 22-35.

[56] T 2-64 lines 17-36.

[57] T 2-64 line 44 – 2-65 line 40.

[58] T 2-65 line 42 – 2-66 line 17.

[59] T 2-66 lines 19-30.

[60] T 2-68 lines 1-19.

[61] T 2-68 lines 21 – 2-69 line 16; 2-69 lines 46-47.

[62] T 2-69 lines 18-34.

[63] T 2-72 lines 1-35.

[64] T 2-72 line 37 – 2-73 line 15.

[65] T 2-73 lines 17-40; 2-76 lines 29-46; 2-77 lines 11-18.

[66] T 2-74 line 36 – 2-76 line 27.

[67] T 2-78 lines 6-23.

[68] T 2-78 lines 25-29.

[69] T 2-78 lines 31-41.

[70] T 2-78 lines 43-45.

[71] T 2-79 lines 1-36; 2-81 line 44 – 2-83 line 8; 2-85 lines 3-7; 2-85 line 9 – 2-86 line 30.

[72] T 2-79 line 44 – 2-80 line 27; 2-84 line 10 – 2-85 line 7; 2-88 lines 20-26; 2-93 lines 16-46.

[73] T 2-86 line 41 – 2-87 line 8; 2-88 lines 9-18; 2-91 line 41 – 2-92 line 8; 2-93 lines 1-14.

[74] T 2-80 lines 35-47; 2-88 lines 28-40.

[75] T 2-81 lines 1-28; 2-92 lines 10-27.

[76] T 2-89 line 4 – 2-91 line 39.

[77] T 3-3 lines 1-11.

[78] T 3-3 line 13 – 3-4 line 5.

[79] T 3-4 lines 7-18.

[80] T 3-4 line 20 – 3-7 line 15; 3-8 line 26 – 3-9 line 25.

[81] T 3-7 line 20 – 3-8 line 5; 3-9 lines 27-44.

[82] T 3-11 lines 25-36.

[83] T 3-11 line 43 – 3-12 line 39.

[84] Exhibit 17(a) Transcript of police interview at p 29 line 1314 – p30 line 1348.

[85] T 3-22 line 45 – 2-23 line 41.

[86] T 3-23 line 43 – 3-24 line 6.

[87] T 3-23 lines 12-26.

[88] T 3-24 lines 28-29.

[89] T 3-25 lines 1-22.

[90] T 3-25 lines 26-30.

[91] T 3-25 line 32 – 3-26 line 13.

[92] T 3-26 lines 15-36.

[93] T 3-26 line38 – 3-27 line 8.

[94] T 3-27 line 10 – 3-28 lines 28.

[95] T 3-28 line 30 – 2-30 line 8.

[96] T 3-30 line 10 – 3-32 line 16.

[97] T 3-32 line 21 – 3-33 line 10; 4-7 line 31 – 4-17 line 45.

[98] T 3-33 lines 12-46.

[99] T 3-34 line 1 – 3-36 line 45; 4-40 line 30 – 45 line 44; 4-49 line 21 – 4-50 line 6.

[100] T 3-24 lines 31-44.

[101] T 3-74 line 32 – 3-76 line 30.

[102] T 3-92 lines 1-42.

[103] T 3-92 line 44 – 3-99 line 6; 4-5 lines 10-13, 42-45; 4-6 lines 12-42; 4-20 line 37 – 4-22 line 9.

[104] T 4-18 lines 1-46.

[105] T 3-26 lines 15-19, 25-30.

[106] T 3-27 lines 4-27.

[107] T 3-93 lines 9-32.

[108] T 3-94 lines 8-17, 22-26.

[109] T 3-96 line 38- -3-97 line 14.

[110] T 3-97 line 24 – 3-99 line 6.

[111] T 3-37 line1 – 3-41 line 10; 4-25 line 23 – 4-26 line 32.

[112] T 3-41 line 12 – 3-43 line 3; 4-26 line 34 – 4-27 line 27.

[113] T 3-43 line 5 – 3-45 line 31; 4-27 line 29 – 4-28 line 2.

[114] T 3-45 line 33 – 3-47 line 20; 4-28 lines 4-32.

[115] T 3-47 line 22 – 3-50 line 34; 4-28 line 34 – 4-29 line 8.

[116] T 3-50 line 36 – 3-52 line 30; 4-29 lines 10-16.

[117] T 3-52 line 32 – 3-55 line 34; 4-29 line 18 – 4-30 line 5.

[118] T 3-55 line 36 – 3-59 line 4; 3-99 line 35 – 3-101 line 24; 4-32 lines 7-25.

[119] T 3-59 line 6 – 3-59 line 46; 4-32 line 27 – 4-33 line 15.

[120] T 3-60 line 1 – 3-62 line 2; 4-33 line 17 – 4-34 line 30.

[121] T 3-62 line 39 – 3-66 line 20; 3-86 line 38 3-87 line 6; 4-34 line 32 – 4-35 line 14.

[122] T 3-66 line 22 – 3-68 line 37; 3-79 line 19 – 3-85 line 24; 4-50 line 8 – 4-51 line 13.

[123] T 3-69 line 21 – 3-70 line 24.

[124] T 3-70 line 26 – 3-73 line 8; 4-35 line 16 – 4-39 line 34.

[125] T 3-73 line 10 – 3-74 line 30; 4-39 line 36 – 4-40 line 28.

[126] T 4-52 line35 – 4-54 line 18.

[127] T 4-55 line 12 – 4-56 line 12.

[128] T 4-57 line 3 – 4-57 line 46.

[129] T 4-59 line 1 – 4-61 line 8.

[130] T 4-62 line 15 – 4-63 line 25.

[131] T 4-64 line 12 – 4-65 line 40.

[132] A number of errors in transcription of the Magistrates decision were noted and where necessary resolved by resort to the audio recording.

[133] Transcript of decision 6/6/2019 (D), p2 line 43 – p3 line 25.

[134] D 4 lines 8-11.

[135] D 3 lines 32-47.

[136] D 4 lines 11-15.

[137] D 4 line 20 – 20 line 28.

[138] D 21 lines 5-22.

[139] D 21 line 24 – 22 line 20.

[140] D 22 lines 22-43.

[141] D 22 line 45 – 23 line 22.

[142] D 31 lines 29-33.

[143] D 23 line 4 – 24 line 43.

[144] D 24 line 43 – 25 line 20.

[145] D 26 line 42 – 27 line 7.

[146] D 27 lines 9-33.

[147] D 27 line 39 – 29 line 2.

[148] D 29 lines 31-34.

[149] D 29 lines 36-38.

[150] D 29 lines 38-40.

[151] D 29 lines 40-42.

[152] D 29 lines 43-46.

[153] D 30 lines 1-3.

[154] D 30 lines 4-7.

[155] D 30 lines 7-18.

[156] D 30 lines 18-35.

[157] D 30 lines 37-39.

[158] p;D 30 line 39 – 31 line 12.

[159] D 31 lines 14-27.

[160] D 32 line 42 – 33 line 37.

[161] D 33 line 39 – 34 line 17.

[162] Leave to file an amended Notice of Appeal was granted by consent on the hearing of the appeal.

[163] At para 5.19.

[164] (2003) 214 CLR 118, per Gleeson CJ, Gummow, Kirby JJ at 125-127, [22], [23], [25], [27].

[165](2019) 266 CLR 129, per Bell, Gageler, Nettle, Edelman JJ at 148-149, [55]-[56].

[166] [1994] 1 Qd R 531 at 535.

[167] [2019] 1 Qd R 181 at 191, [43].

[168] [2016] 1 Qd R 56.

[169] At 68, [48]; Morrison JA and Dalton J agreeing.

[170] (1998) 192 CLR 493 at 504, [18].

[171](2003) 214 CLR 230; per Gleeson CJ, Gummow, Hayne JJ at 504, [37], McHugh J at 256, [99]; Callinan J at 264, [130].

[172] At 245, [46]; McHugh agreeing at 258, [107].

[173] [2018] 1 Qd R 174.

[174] At 199, [112].

[175] See s 59 of the Sale of Goods Act 1869; also Cheshire and Fifoot’s Law of Contract, Ninth Australian Edition at chapter 3.18. A bid at auction is regarded as an offer which the auctioneer is free to accept or reject and the sale becomes complete upon the fall of the hammer or other acceptance by the auctioneer.

[176] See Exhibit 23(j).

[177]D 32 line 42 – 33 line 14.

[178] D 33 lines 21-37.

[179] D 29 lines 36-38.

[180] D 34 lines 1-4.

[181] D 29 lines 44-46; 30 lines 1-7.

[182] D 31 lines 7-12.

[183] D 29 lines 31-34.

[184] D 30 lines 7-17.

[185] D 34 lines 1-17.

Close

Editorial Notes

  • Published Case Name:

    Antoniolli v Queensland Police Service

  • Shortened Case Name:

    Antoniolli v Queensland Police Service

  • MNC:

    [2020] QDC 318

  • Court:

    QDC

  • Judge(s):

    Lynch QC DCJ

  • Date:

    11 Dec 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Fox v Percy (2003) 214 CLR 118
2 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
Lee v Lee (2019) 266 CLR 129
2 citations
Jump To
Cite 1 - (2019) 266 CLR 129
Cite 2 - (2019) 266 CLR 129
Macleod v The Queen (2003) 214 CLR 230
3 citations
Jump To
Cite 1 - (2003) 214 CLR 230
Cite 2 - (2003) 214 CLR 230
Cite 3 - (2003) 214 CLR 230
Peters v R (1998) 192 CLR 493
2 citations
Jump To
Cite 1 - (1998) 192 CLR 493
Cite 2 - (1998) 192 CLR 493
R v Dillon; ex parte Attorney-General[2016] 1 Qd R 56; [2015] QCA 155
3 citations
Jump To
Cite 1 - [2016] 1 Qd R 56
Cite 2 - [2016] 1 Qd R 56
Cite 3 - [2016] 1 Qd R 56
R v Perrin[2018] 2 Qd R 174; [2017] QCA 194
1 citation
Jump To
Cite 1 - [2017] QCA 194
R v Perrin [2018] 1 Qd R 174
2 citations
Jump To
Cite 1 - [2018] 1 Qd R 174
Cite 2 - [2018] 1 Qd R 174
R v Russell[2019] 1 Qd R 181; [2018] QCA 96
2 citations
Jump To
Cite 1 - [2019] 1 Qd R 181
Cite 2 - [2019] 1 Qd R 181
The Queen v Easton[1994] 1 Qd R 531; [1993] QCA 255
2 citations
Jump To
Cite 1 - [1994] 1 Qd R 531
Cite 2 - [1994] 1 Qd R 531

Cases Citing

Case NameFull CitationFrequency
Commissioner of Police v Antoniolli [2022] QCA 11 citation
Commissioner of Police v Antoniolli [2021] QCA 237 5 citations
1

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