Regina v Munro [1999] NSWCCA 31

New South Wales Court of Criminal Appeal CITATION : Regina v Munro [1999] NSWCCA 31 revised -10/03/99 FILE NUMBER(S) : CCA 60173/98 HEARING DATE(S) : 9 March 1999 JUDGMENT DATE : 9 March 1999

PARTIES : Regina v Roger Gareth Munro JUDGMENT OF : Meagher JA at 12; Grove J at 1; Dunford J at 13

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 95/51/0203 LOWER COURT JUDICIAL OFFICER : Knight DCJ

COUNSEL : L.M.B. Lampratti (Crown) P. Byrne, SC (Applicant) SOLICITORS : S.E. O'Connor (Crown) Somerville Laundry Lomax (Lismore) (Applicant) CATCHWORDS : Criminal Law and Procedure; Common Law Bribery; Sufficiency of Evidence DECISION : Appeal allowed

IN THE COURT OF CRIMINAL APPEAL

60173/98

MEAGHER JA GROVE J DUNFORD J

Tuesday 9 March 1999

REGINA v ROGER GARETH MUNRO

JUDGMENT

1 GROVE J: The appellant was tried upon an indictment charging three counts of common law bribery. At the close of the Crown case the presiding judge, his Honour Judge Knight, directed a verdict of acquittal on the first count. At the conclusion of the trial the jury found the appellant not guilty on the third count. This appeal, therefore, is concerned only with the conviction returned by the jury on the second count which charged the appellant that between 1 October 1988 and 20 October 1988 he did offer to Thomas Edward Hogan, a councillor of the Tweed Shire Council, the sum of $5,000 so that the said Thomas Edward Hogan should accept in his official capacity the said $5,000 as an inducement to incline him to act in a manner contrary to his duty, namely to show favour to the interests of Roger Gareth Munro. 2 The background of the charge is extensive, but it is not necessary for present purposes to dilate upon it at length. I shall deal with the second ground of appeal which challenged the sufficiency of the evidence to support the count. The appellant was a university lecturer with considerable experience in planning and environmental matters and was in business on his own account as a consultant in the Tweed Shire. The man Hogan named in the indictment was at all material times a councillor on the local shire council, as was a man called Pearson who was a partner in a real estate firm in business in the area. The appellant through one of his companies drew a cheque for $5,000 in favour of Mr Pearson's real estate firm. That cheque was accepted by the firm and dealt with as if it was the property of Mr Hogan. It was either received in the post or hand-delivered by Mr Hogan to the real estate agent's office. The evidence about this is not definitive. Be that as it may, there was evidence that in order to avoid the bank applying any moneys received by Mr Hogan to the reduction of mortgage debts which he owed, it was a not uncommon practice for moneys to be received by the agents and passed through their trust account and either given to Mr Hogan or disbursed at his direction. In respect of this particular cheque, it was disbursed by payment into the account of a man called Ross in the Australian Capital Territory. All this detail does not matter except to the extent that it shows that a cheque which on its face was drawn by the appellant in favour of the real estate firm was in fact received by Hogan and was to all intents and purposes treated as his property. 3 There was evidence that contact had been made with the real estate agents as a result of which an employee called McAuliffe in October 1988 drew a false receipt in respect of the cheque which I have mentioned. It bore the same date as the cheque and purported to record that it was received into the agent's trust account in respect of certain land at Chinderah. When asked how he came to prepare that receipt, Mr McAuliffe said that as he recalled, the details were given to "us" by the appellant. He couldn't recall exactly. Later he explained that he thought the instructions had either come from the appellant to himself or from Mr Pearson. Mr Pearson gave evidence that the cheque had been received (he thought) either from the appellant or from Mr Hogan. The evidence was, to say the least, ephemeral. For present purposes, however, I am prepared to infer that it was, and it was open to the jury to find, that a request came from the appellant for some falsification of a receipt for the money which had become in effect Hogan's. The offer by the appellant to Hogan was the first ingredient of charge which required proof. 4 The next matter, however, that it was essential for the Crown to prove was that the payment from the appellant to Hogan was an inducement to incline him to act in a manner contrary to his duty, namely to show favour to the appellant's interests. The terms of that pleading are couched in the future. 5 The evidence shows that there was critical interest of the appellant and his clients in the proclamation (and possible rescission) of a local environment plan which had been passed by the council. It appears that numerous landholders, many of whom were clients of the appellant, were interested in the effect upon the value of their land of the delineation of certain buffer zones in the zoning of land within the Tweed Shire. In June 1988 Mr Hogan had given notice of his intention to move a motion in council to rescind the approval of the plan. That date, of course, anteceded the payment of $5,000, referred to in the second count, which was made in October of that year. 6 The purpose of the payment as specified in the count in the indictment was something that it was necessary for the Crown to prove. There is simply no evidence which would support a finding that the payment to Hogan in the manner in which I have described (by the cheque which emanated originally from the appellant) was for such a purpose. It is clear enough on a reading of all the evidence that the activity of the appellant and Hogan was suspicious in the extreme, but it was necessary for the Crown to adduce evidence capable of sustaining the charge which it had brought. The necessary evidence in connection with the second count was, as I have observed, simply absent. Counsel for the Crown contended that it was open to the jury to infer the purpose but was unable to point to facts from which the specific reference could be drawn. 7 Hogan was a shire councillor; he was in possession of money emanating from the appellant; there was no legitimate commercial reason for the appellant to pay money to the real estate agents (his explanation offered in an unsworn statement can be treated as - understandably - totally rejected by the jury) and the appellant sought the issue of a false receipt. Those facts put the Crown case at its highest. As I have indicated, those facts give rise to considerable suspicion of some wrongdoing but they do not provide a resource for inference that there was a payment by the appellant to Hogan specifically to induce him to act in the future contrary to his duty as a shire councillor. 8 In contrast, the evidence on the first and third counts which, as I have recorded, resulted in acquittals, did show that the purported payments in those cases related to particular projects It might therefore be inferred that some future benefit might be expected so far as the first count is concerned, although the argument in relation to the second count was specifically directed to evidence which showed that whatever it was that concerned Hogan in respect of that payment, it related to things past. 9 The appellant has brought this appeal upon three grounds, the first of which related to the admissibility of evidence of Mr McAuliffe and Mr Pearson in particular being admitted in the absence of reasonable evidence of the criminal common purpose of the appellant and Hogan. It is unnecessary in my view to examine in any detail the submissions in relation to that matter having regard to the conclusion which I have reached that there simply was no evidence to support an essential ingredient of the count, namely that the payment made was in respect of an inducement to incline Hogan to act contrary to his duty as a councillor of Tweed Shire Council. 10 The third ground was expressed in the now precluded language that the conviction was unsafe and unsatisfactory: Fleming v The Queen 1998 73 ALJR 1. 11 In the circumstances, I propose that the appeal be allowed and the conviction and sentence quashed and a verdict and judgment of acquittal on the second count of the indictment directed. 12 MEAGHER JA: I agree. 13 DUNFORD J: I also agree. 14 MEAGHER JA: The orders of the court therefore will be the orders proposed by Grove J. **********