Tonette Kelly v Regina [2013] NSWDC 252

District Court New South Wales

Medium Neutral Citation: Tonette Kelly v Regina [2013] NSWDC 252 Hearing dates: 29 October 2013 Decision date: 09 December 2013 Before: Judge MJ Finnane QC DCJ Decision: See paragraph [35] Catchwords: CRIMINAL LAW - appeal - dishonesty - lies - conviction - sentence OTHER - misuse of public resources - secondary employment - approval Cases Cited: Charara v The Queen [2006] NSWCCA 244 Category: Principal judgment Parties: Tonette Kelly (Appellant) Regina (Respondent) Representation: In Person (Appellant) S Kavanagh (Solicitor for Public Prosecutions) File Number(s): 2012/206178

Judgment

Intorduction 1Tonette Kelly appeals against her convictions for two offences: (1)That on 20 April 2010 whilst she was a person giving evidence at a public enquiry conducted by the Independent Commission against Corruption did give evidence that was false in a material particular, namely that she was granted approval by Chief Executive Officer Matthew Taylor in March 2003 to use the Legalco account in order to conduct searches for private purposes, knowing such evidence was false. (2)That on 20 April 2010 whilst she was a person giving evidence at a public enquiry conducted by the Independent Commission against Corruption did give evidence that was false in a material particular, namely that she engaged Nicolai Dacombe, as a paralegal on a part-time basis between 24 March 2005 and 18 September 2008 within her own private legal practice, knowing such evidence was false. 2Miss Kelly pleaded not guilty to both charges. 3She appeared before Magistrate Anthony Townsden in the Local Court over a period of 10 sitting days. On 1 May 2013 His Honour found both offences proved and convicted the appellant of both offences. 4I am now required to determine this case in accordance with the principles enunciated by Mason P in Charara v the Queen [2006] NSWCCA 244, particularly at paragraphs 17,18 and 19: "17 The appeal is to be by way of rehearing on the Local Court transcripts (s18(1)), obviously supplemented by reference to any exhibits tendered in the Local Court. Fresh evidence may be given by leave, subject to the District Court being satisfied that it is in the interests of justice that this should occur (s18(2). 18 The District Court is then required to apply the principles governing appeals from a judge sitting without a jury. The Judge is to form his or her own judgment of the facts so far as able to do so, recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the lower court (Bell v Stewart (1920) 28 CLR 419 at 424-5, Paterson v Paterson (1953) 89 CLR 212, Fox v Percy (2003) 214 CLR 118). 19 The nature of an appeal "by way of rehearing" has been discussed in many cases. The procedure to be adopted, powers to be exercised and function to be performed must first be sought in the language of the particular statute. One thing, however, is clear. "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" (Fox at 118[22] per Gleeson CJ, Gummow and Kirby JJ). Referring to the "requirements, and limitations, of such an appeal", their Honours continued (at [23], footnotes omitted): ... 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. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole."