AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 9 December 2013

Tonette Kelly v Regina

[2013] NSWDC 252

Fraud & dishonestyPublic order & justice offences
CRIMINAL LAW APPEAL DISHONESTY LIES CONVICTION SENTENCE OTHER

Citation: Kelly v Regina [2013] NSWDC 252
Court: District Court of New South Wales
Date: 9 December 2013
Judge: Judge MJ Finnane QC DCJ

Background

The appellant was a senior legal officer at a public authority who, over time, developed an extensive private conveyancing practice run from her home. As a public servant, she required approval for any secondary employment. She obtained a memorandum from the then Chief Executive Officer in March 2003 permitting secondary employment, but that approval was limited to a small amount of conveyancing work for family members and staff.

The appellant used her employer's Espreon (formerly Legalco) database account to conduct searches for her private clients, at the authority's expense, without disclosing this to anyone in authority. After anonymous complaints were received, an internal inquiry was held in 2004, followed later by an inquiry conducted by the Independent Commission Against Corruption (ICAC).

At the ICAC inquiry, the appellant gave two pieces of evidence that formed the basis of the charges against her: first, that the then CEO had specifically approved her use of the Legalco account for private purposes in March 2003; and second, that she had engaged a named individual as a part-time paralegal in her private practice over a three-year period. She was convicted of giving false evidence in both respects by the Local Court, and appealed to the District Court.

  • Whether the appellant gave false evidence at the ICAC inquiry when she claimed she had received specific approval to use the authority's Legalco database account for private purposes.
  • Whether a memorandum dated 20 March 2003, purportedly signed by the CEO approving use of the Legalco account, was genuine.
  • Whether the appellant gave false evidence at the ICAC inquiry when she claimed to have engaged a paralegal in her private practice over an extended period.
  • Whether the appellant had a valid defence of duress in relation to the second charge.
  • Whether the Local Court magistrate's findings were open on the evidence, applying the rehearing principles from Charara v The Queen [2006] NSWCCA 244.

Decision

First charge: approval to use the Legalco account

The District Court found, beyond reasonable doubt, that the CEO had not granted specific approval to use the authority's Legalco account for private purposes. The approval he gave in March 2003 was limited to secondary employment involving a small amount of conveyancing work, and the appellant had never disclosed that she intended to use the authority's database at its expense.

The court also found that the memorandum of 20 March 2003, which the appellant relied upon as evidence of specific Legalco approval and which purported to bear the CEO's signature and the word "approved," was a forgery prepared for the ICAC hearing. This finding aligned with the conclusions of both the ICAC and the magistrate. The court further noted the appellant had never reimbursed the authority for her use of the database and had not raised any entitlement to offset overtime against that use.

Second charge: engagement of a paralegal

By the time of the Local Court hearing, the appellant had conceded she gave false evidence about engaging the named individual as a paralegal. She relied instead on a defence of duress, claiming she had received an anonymous threatening document. The court rejected this defence. The alleged threat was not of a character that would drive a reasonable person to give false evidence, ample opportunity existed to avoid the consequences, and the claim of receiving an anonymous threat was found to be improbable.

Overall credibility

Judge Finnane found the appellant was not a credible witness, describing her evidence as rambling, unconvincing and unreliable. Both charges were found proved, and the appeal was dismissed.

Orders Made

No orders were made in this decision.

Key Takeaways

  • In dismissing the appeal, the District Court applied the rehearing principles from Charara v The Queen, forming its own view of the facts while giving significant weight to the magistrate's credibility findings, given the magistrate had seen and heard all witnesses.
  • A defence of duress requires a threat of sufficient gravity that it would drive a reasonable person to act as the defendant did; a claimed anonymous threat that was improbable and left ample opportunity for evasive action will not satisfy this threshold.
  • The production of a document at an ICAC inquiry, subsequently found to be a forgery, was treated as a significant aggravating feature of the false evidence charge rather than as a separate standalone issue.
  • Approval for secondary employment as a public servant does not, without more, constitute approval to use public resources to support that secondary employment; the court found these were entirely separate matters.
  • Consistent findings across ICAC, the Local Court and the District Court all pointing to the same conclusion reinforced the court's confidence in the verdicts, illustrating how concurrent findings at multiple levels can fortify a conviction on appeal.

Legislation and Cases Referenced

Cases:
- Charara v The Queen [2006] NSWCCA 244 (principles governing District Court appeals by way of rehearing from Local Court)
- Bell v Stewart (1920) 28 CLR 419
- Paterson v Paterson (1953) 89 CLR 212
- Fox v Percy (2003) 214 CLR 118

Legislation: No specific legislation was identified in the provided text.