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.
2. 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
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.
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.
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.
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
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
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.
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
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.
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.
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:
a. Requesting that community funds be paid to the Blair State School.
b. Approving the payment of community funds to the Blair State School.
c. Causing a cheque to be completed for payment of the funds.
d. Delivery of the cheque to the Blair State School.
For the remainder of the fraud charges (charges 2-13 inclusive), the prosecution identified the acts constituting the offences as being:
a. Requesting that a Community Donations form be completed by the recipient.
b. Providing a Community Donations form to the recipient.
c. Supporting the payment of community donations to the recipient.
d. Causing an electronic transfer to be completed for payment of community donation funds to an account held by the recipient.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
1 Section 223(1) of the Justices Act 1886.
Admissions of fact - Exhibits 2, 31 & 32
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.
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 142. 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
2 The admissions document incorrectly describes this as Exhibit 10.
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.
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.
The following is a summary of the evidence given by witnesses called at the trial.
Saskia Toohey
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
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.
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
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.
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)).
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
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
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
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
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.
approval before processing payment of a donation was simply part of the approval process.17
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
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
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
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.
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
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
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
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
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.
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
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
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
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
36 T 2-23 lines 14-28; 2-31 lines 16-47.
37 T 2-23 lines 30-46.
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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
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
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
43 T 2-36 line 33 – 2-37 line 35.
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50 T 2-43 lines 23-32.
51 T 2-43 line 39 – 2-44 line 45.
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
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
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
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,
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.
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60 T 2-68 lines 1-19.
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
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
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
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
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62 T 2-69 lines 18-34.
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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.
Troy Harry James Dobinson
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
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
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
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74 T 2-80 lines 35-47; 2-88 lines 28-40.
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
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
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
75 T 2-81 lines 1-28; 2-92 lines 10-27.
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81 T 3-7 line 20 – 3-8 line 5; 3-9 lines 27-44.
Nikki Lyn Parker
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
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.
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.
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
82 T 3-11 lines 25-36.
83 T 3-11 line 43 – 3-12 line 39.
form and the authorisation would be forwarded to the Council’s Community Development area who would give final approval and then process the payment.
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.
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.
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.
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
84 Exhibit 17(a) Transcript of police interview at p 29 line 1314 – p30 line 1348.
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.
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.
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.
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
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
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
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
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
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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
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
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
93 T 3-26 line38 – 3-27 line 8.
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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
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
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
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.
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
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
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.
…
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.
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
105 T 3-26 lines 15-19, 25-30.
106 T 3-27 lines 4-27.
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?
107 T 3-93 lines 9-32.
108 T 3-94 lines 8-17, 22-26.
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.
109 T 3-96 line 38- -3-97 line 14.
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.
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.
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.
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.
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.
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.
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
179 D 29 lines 36-38.
180 D 34 lines 1-4.
181 D 29 lines 44-46; 30 lines 1-7.
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.
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.
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.
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
182 D 31 lines 7-12.
183 D 29 lines 31-34.
184 D 30 lines 7-17.
185 D 34 lines 1-17.
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.
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.
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.
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.
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
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.
This submission should be accepted.
Orders
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.
2. 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
Bench charge sheets
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
Exhibits Tendered at Trial (see 2 separate folders)
Defendant’s Closing Submissions 20/05/2019
Crown’s Outline of Submissions 20/05/2019
Defendant’s Sentence Submissions 30/07/2019
Transcript of sentence submissions 30/07/2019
Transcript of sentence remarks 9/08/2019
Notice of Appeal 3/07/2019
Notice of Appeal 15/08/2019
Amended Notice of Appeal 12/08/2019
Amended Notice of Appeal 04/11/2019
Outline of Argument on behalf of the Appellant 4/11/2019
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 | |