The Queen v Matijevic, Bonita Matijevic, Bonita v The Queen [1997] FCA 992

CATCHWORDS

CRIMINAL LAW - appeal against leniency of sentence; cross-appeal against conviction.

SENTENCE - charge of defrauding the Commonwealth - offence proven but no conviction entered by sentencing judge - considerations to be taken into account in declining to enter conviction.

CONVICTION - whether conviction unsafe and unsatisfactory - whether trial judge erred in failing to discharge jury when cross-examination suggested fraudulent conduct outside the dates specified in the indictment.

Crimes Act (Cth) 1914: ss 16A, 19B, 20, 29C, 29D

Public Service Act 1922: s 76R

M v The Queen 181 CLR 487

S v The Queen 168 CLR 266

Harriman v The Queen 167 CLR 590

Josip Sladic (1995) 86 A CRIM R 175

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

THE QUEEN v. BONITA MATIJEVIC and BONITA MATIJEVIC v. THE QUEEN

No ACT G 60 of 1996

Court: Gallop, Davies and Mathews JJ

Place: Canberra

Date: 15 July 1997

IN THE FEDERAL COURT OF AUSTRALIA )

AUSTRALIAN CAPITAL TERRITORY ) No ACT G 60 of 1996

DISTRICT REGISTRY )

GENERAL DIVISION )

ON APPEAL FROM THE SUPREME

COURT OF THE AUSTRALIAN CAPITAL

TERRITORY

BETWEEN: THE QUEEN

Appellant

AND: BONITA MATIJEVIC

Respondent

AND: BONITA MATIJEVIC

Cross Appellant

AND: THE QUEEN

Cross Respondent

COURT: Gallop, Davies and Mathews JJ

PLACE: Canberra

DATE: 15 July 1997

MINUTE OF ORDER

THE COURT ORDERS THAT:

1. The cross-appeal is dismissed.

2. The appeal is allowed and the orders purporting to be made under s 19B of the Crimes Act 1914 are quashed. In lieu thereof a conviction is entered on each count; the respondent is to be released upon her giving security without surety by recognizance in the sum of $500.00 to be of good behaviour for a period of two years.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

)

AUSTRALIAN CAPITAL TERRITORY ) No ACT G 60 of 1996

)

DISTRICT REGISTRY )

)

GENERAL DIVISION )

BETWEEN: THE QUEEN

Appellant

AND: BONITA MATIJEVIC

Respondent

AND: BONITA MATIJEVIC

Cross Appellant

AND: THE QUEEN

Cross Respondent

COURT: Gallop and Mathews JJ

PLACE: Canberra

DATE: 15 July 1997

REASONS FOR JUDGMENT

GALLOP and MATHEWS JJ:

Background

This is a Crown Appeal against the leniency of a sentence imposed upon the Respondent in the ACT Supreme Court on 6 September 1996. A cross-appeal was lodged shortly afterwards against conviction. Accordingly, the appeal was concerned both with the sustainability of the conviction and the appropriateness of the sentence.

Ms Matijevic was charged with two counts of defrauding the Commonwealth under s 29D of the Crimes Act (Cth) 1914 (the Crimes Act). The first charge was that between about 22 June 1992 and 22 July 1992 she defrauded the Commonwealth by causing the Department of Employment Education and Training (DEET) to pay for airfares and travelling allowances totalling $1125.20 for a journey to Rockhampton between 25 and 28 June 1992, which was of a private nature and not for official purposes. The second charge related to the payment of airfares of $945.60 for a journey by her husband to Rockhampton on the same dates, to which he as her spouse was said to have no entitlement as her journey was of a private nature and not for official purposes.

Ms Matijevic pleaded not guilty to both charges and on 2 September 1996 the matter went to trial before a jury. On 6 September 1996 she was convicted by the jury on both counts. The sentencing proceedings followed immediately. The presiding judge found the offences proved but declined to proceed to conviction. He ordered that Ms Matijevic enter into a $500 recognizance to be of good behaviour for two years.

It is from the leniency of this sentence that the Crown has appealed. Ms Matijevic’s appeal against conviction is based on two grounds, first that the conviction was unsafe and unsatisfactory and secondly that the trial judge erred in failing to discharge the jury following certain cross-examination of Ms Matijevic. We shall discuss each of these later.

Briefly stated, the facts of the matter are as follows. In 1992 Ms Matijevic was Assistant Secretary in the Strategic Planning & Development Branch, Vocational, Education & Training Division of DEET. This was a Senior Executive Service position which entitled its holder, when undertaking certain business travel, to have her spouse accompany her at Government expense.

On 28 April 1992 Ms Matijevic signed a movement requisition form in relation to a proposed trip to Rockhampton between 25 and 28 June 1992. At that stage it was proposed that she would leave Canberra on the morning of Thursday, 25 June and spend the day in Brisbane, flying on to Rockhampton that evening. She was to return to Canberra late on Sunday, 28 June. The “reason for travel” was given as “meet with TAFE TEQ - video makers and attend ISC/area office seminar (Rockhampton).” The form was approved by Mr Desmond Fooks, a First Assistant Secretary in the Department.

The movement requisition for spouse travel was signed by Ms Matijevic’s husband, Mr Mersiades, on 30 April and was approved by Ms Matijevic herself. In relation to this travel, it is accepted that if Ms Matijevic’s trip to Rockhampton was a business trip then she was entitled to have her husband accompany her. Accordingly the issue under both charges was essentially the same, namely whether Ms Matijevic’s travel was of a private rather than a business nature and, if so, whether she dishonestly arranged for the travel to be undertaken at Commonwealth expense.

At the time that these requisitions were completed, in late April 1992, Ms Matijevic had already obtained tickets for their two children to fly to Rockhampton and back on the same dates. These were paid for privately. At that stage she knew that on the Saturday, 27 June, her husband’s nephew, Jason Kyriazis, was to be married in Rockhampton. He had requested that one of Ms Matijevic’s sons be a page boy at the wedding.

As we shall be discussing later, it is perfectly legitimate for a journey to have a private purpose as well as a business one. Accordingly, the fact that Ms Matijevic was proposing to attend her nephew’s wedding in Rockhampton is, on its own, a neutral proposition. The real issue is whether there was a legitimate business purpose for this travel. Accordingly it is appropriate to return to the reasons given on the movement requisition for the taking of this trip.

The first reason given on the requisition was “meet with TAFE TEQ - video makers”. This was an allusion to a proposed meeting in Brisbane. At the date of the movement requisition, namely on 28 April 1992, no such meeting had been organised. However a Brisbane-based organisation called Reel Image Pty Limited, which had been making a documentary film in conjunction with TAFE TEQ (Technical & Further Education & Training & Education Qld), had been in contact with DEET in relation to this project and Ms Matijevic was their point of contact. Ms Diane Wallace of Reel Image gave evidence in which she said that she had had two meetings with Ms Matijevic in April 1992 and it was likely that there was a “loose arrangement” for them to meet again at the end of June. However the film was completed by the end of May 1992, about a month earlier than anticipated. Thereafter there was no need for any further contact between Ms Wallace and Ms Matijevic and no occasion for any meeting in Brisbane on 25 June.

The second reason given on the movement requisition was “attend ISC/area office seminar (Rockhampton)”. In this regard an officer in the Rockhampton DEET office, Mr Jamieson, gave evidence that he had at one time suggested to Ms Matijevic that a meeting or “seminar” might be arranged between herself and the staff in the Rockhampton Industry Service Centre (ISC). However no such meeting was in fact ever organised.

It follows that at the time of Ms Matijevic’s trip to Rockhampton, neither of the two “reasons for travel” set out in the requisition form was effective. However Ms Matijevic said that there was a third reason for her travel, which she did not specify on the requisition form because of inadequate space. This was a proposed visit to the Stanwell Power Station just out of Rockhampton. A visit of sorts was in fact made by Ms Matijevic to this station on the Friday, 26 June, and much of the evidence in the trial thus concentrated on this visit, its planning and its aftermath.

There was no doubt as to the potential usefulness of a person in Ms Matijevic’s position visiting the Stanwell Power Station. The Station had a skills development programme with on-site training facilities which Queenslanders regarded as “the jewel in their crown”.[1] It was under consideration as a possible venue for inspection by a high level APEC delegation which was to visit Australia the following year. Ms Matijevic’s branch was in the process of organising this visit. Accordingly, there was every reason for Ms Matijevic, or a person in her position, to inspect the station for the purpose of determining its appropriateness as a venue for the forthcoming delegation.

With this background, we return to the evidence given at the trial. In the light of the challenge that the convictions are unsafe and unsatisfactory, it will be necessary to refer, albeit briefly, to the whole body of evidence given in the Crown case.

The evidence at the trial

The first Crown witness was Denise Le Mesurier, who in 1992 was Ms Matijevic’s executive assistant. It was she who, in April 1992, completed the details on the movement requisition forms, using information provided by Ms Matijevic. Subsequently she altered the details of Ms Matijevic’s flights from Canberra to Rockhampton on a pink carbon copy of her movement requisition form. This change would have been made, she said, on 24 June 1992, the day before Ms Matijevic was initially due to undertake this travel.

The next witness was Mr Fooks who in 1992 was First Assistant Secretary in DEET, a position superior to that of Ms Matijevic. He recalled having a conversation with her about her forthcoming trip to Rockhampton and the need to check possible locations
for the proposed APEC delegation to visit. He recalled discussing the possibility of her husband going with her, and he said that he had no problem with that.

In cross-examination, Mr Fooks said that the Department is concerned only with that part of an officer’s travel which is for official business and in respect of which an allowance is paid. There is no difficulty with officers spending weekends, at their own expense, at locations to which they have travelled for business purposes. He described Ms Matijevic as “a great associate, completely dedicated, very efficient” who worked very long hours.[2]

The next witness, Ms Jillian Johnson, produced the records from Australian Airlines relating to Ms Matijevic’s and Mr Mersiades’ travel. These showed that on Tuesday, 23 June Ms Matijevic’s travel plans were amended. Instead of leaving Canberra on the morning of 25 June her travel was postponed twenty-four hours to the morning of Friday, 26 June, connecting in Brisbane with a flight to Rockhampton. Similar alterations had been made on 18 June to Mr Mersiades’ flight arrangements, and on 15 June to those of the two children.

The evidence of the next witness, Ms Diane Wallace, has already been referred to. Ms Wallace was the representative of Reel Image in Brisbane. She confirmed that there might have been a “loose arrangement” for Ms Matijevic to meet with her in Brisbane in June. However as events emerged the need for this meeting evaporated in early June 1992 and there was no further contact between them.

Three witnesses from Rockhampton gave evidence in the Crown case. The first, Mr Anthony Jamieson, was employed by DEET in the Rockhampton Industry Service Centre. On about 12 May 1992 he had received a letter from a Mr Ray Donaldson in the Department’s Brisbane office. This letter indicated that Ms Matijevic was
interested in visiting the Rockhampton ISC on Friday 26 June. Mr Donaldson suggested that, if this date was suitable, a draft itinerary might be drawn up for her. He suggested the possibility of a visit to Stanwell and said that Ms Matijevic would be talking to the staff of the ISC whilst in Rockhampton. After receiving this letter Mr Jamieson telephoned Ms Matijevic in Canberra. She told him that she was making arrangements to go to the Stanwell Power Station and he agreed to act in a liaison capacity and look after her whilst she was in Rockhampton. He also suggested a meeting between Ms Matijevic and the staff in the Rockhampton ISC, however no firm arrangement was made in that respect. Mr Jamieson rang Ms Matijevic again about four to six weeks later. She confirmed that she was coming to Rockhampton but again no firm arrangements were made. A third telephone contact took place sometime towards the end of June in which Ms Matijevic told Mr Jamieson that she would not be able to travel to Rockhampton and any arrangements would have to be cancelled.

The next witness was Mr Peter Cheers, the human resources manager at Stanwell Power Station. He said that on Friday 26 June 1992, which would otherwise have been his day off, he attended at the power station as he had been deputed to conduct Ms Matijevic on a tour around the training centre at the station. The meeting was scheduled for 10.00 am but Ms Matijevic did not arrive. Mr Cheers waited until about 12 o’clock and then left.

Mr Cheers was asked about his normal procedure when he showed people around the training area. He responded:

A: Usually when we had somebody come in to have a look at the training we showed them the training area, the classrooms, which we’d developed. We also showed them some of the training material, the books, etcetera, that had been developed as well.

Q: I see. And I take it you had a set pattern of speaking to people, you had things that you wished to convey to them, did you? A: Yes, well, the number of people that had been through the training, the type of training we provided and if they wished, a tour of the power station ...[3]

The last witness from Rockhampton was Mr David Clark, who at the time was the site construction manager at Stanwell Power Station. It was he who had arranged for Mr Cheers to conduct Ms Matijevic around the station. His recollection was that the visit had been arranged by the DEET Office in Rockhampton although he was unable to say by whom.

It is worth interpolating here that the identity of the person or organisation who arranged Ms Matijevic’s visit to Stanwell on the morning of Friday 26 June remains a mystery on the evidence. Ms Matijevic said that she had no knowledge of this appointment having been made. She was not aware of any time having been fixed for her visit to the power station. In any event her plane did not arrive at Rockhampton until well after 10.00 am that Friday morning. Even had she known about the appointment she would not have been able to keep it.

The remaining two witnesses in the Crown case, Michael Nott and William Bowron, were involved in investigating the allegations against Ms Matijevic approximately a year later. On 28 June 1993 Mr Bowron had a meeting with Ms Matijevic in which he told her that there were some apparent irregularities about this travel. Ms Matijevic said she would check on some of the issues that had been raised and would respond in writing. Subsequently on 5 July 1993 Ms Matijevic sent a minute to Mr Bowron in the following terms:

On the original movement requisition, I was travelling to Brisbane (on the Thursday morning) for appointments (with Queensland TAFE representatives and Reel Image), and to Rockhampton on the Thursday evening (for a seminar with ISC officers and a visit to Stanwell Power Station). However, due to work constraints (preparation of the Entry-level Training Cabinet Submission), the Brisbane appointments were cancelled (quite late in the week, if I recall correctly) and I planned to travel to Rockhampton on the Thursday evening. In the meantime, my seminar with ISC officers was cancelled due to a number of factors (both work pressures on the Thursday evening, but also staff absences and unavailability at the Rockhampton end) but I proceeded with the visit to Stanwell Power Station, because of its reputation as one of the best examples of on-site competency-based training. (Stanwell was subsequently selected as one of the site visits for the recent APEC-HURDIT Study Mission to Australia on On-the-Job Training - organised by my Branch - and was rated by delegates as one of the most successful visits). I missed the flight on the Thursday evening because I was at work until after 7.00 pm, and I travelled to Rockhampton on Friday morning. I believe my movements requisition was amended to reflect this change on my behalf, but I am not sure.[4]

On 20 August 1993 Mr Nott, who was then an investigator with the Fraud Prevention Unit of DEET, had a conversation with Ms Matijevic which was recorded on tape and later transcribed into writing. This interview was primarily concerned with the documentation relating to Ms Matijevic’s Rockhampton trip. She was not asked about the purpose for the travel. However she told the interviewers that her Thursday meetings in Brisbane were cancelled earlier in that week as she was working on a Cabinet submission.

The last item in the Crown case consisted of an admission by Ms Matijevic that the Commonwealth had paid airfares for each of herself and her husband in the sum of $945.60 and had paid her the sum of $179.60 by way of travelling allowance in relation to this travel to and from Rockhampton between 26 and 28 June 1992.

Ms Matijevic was the first witness in the defence case. She said that in the week immediately preceding the travel to Rockhampton she was responsible for co‑ordinating and preparing a Cabinet submission. At the time she thought that this was required to be lodged by Monday 29 June. This would have involved intensive work over the whole of the week and the weekend. Accordingly on the morning of Thursday 25 June she sent a fax to the DEET office in Rockhampton and later telephoned Mr Jamieson, telling him that the trip was cancelled. He said that there would, in any event, have been little point in her meeting the staff in the Rockhampton DEET office on the Friday as a number of staff members were going to be away that day.

Ms Matijevic said that on the afternoon of the Thursday 25 June she realised that the Cabinet submission did not require to be lodged until later than she had originally thought. Accordingly she reactivated her travel plans. She said that she tried on a number of occasions to telephone the DEET Rockhampton office later that day but there was no answer. Accordingly, that evening she telephoned Jason Kyriazis in Rockhampton, he being a technical officer with Stanwell Power Station, and asked if he would take her to the station the following day.

On the Friday morning, 26 June, Ms Matijevic, her husband and children and flew to Rockhampton via Brisbane. On arrival she made no attempt to contact the DEET office in Rockhampton. However, a little later Mr Kyriazis collected her from her motel and drove her to the Stanwell Power Station. She described this visit in the following terms:

Q: And where at Stanwell did he take you? A: He took me around the perimeter of the site and he took me in particular to the training facility area which is outside the perimeter of the actual power station itself.

Q: And did you inspect the facilities there? A: I had a look around, yes.[5]

Ms Matijevic said that after this visit she directed that the Stanwell Power Station be included as a venue for the APEC study mission’s visit the following April. She tendered a number of documents which showed the importance of the study mission, the success of its visit and the prominent part played by Ms Matijevic in its organisation.

The clear import from Ms Matijevic’s evidence-in-chief was that it was her visit to the Stanwell Power Station on the Friday 26 June which satisfied her that this would be an appropriate venue for the forthcoming APEC mission. However as it later emerged, the visit was, at best, a cursory one. It involved first driving to a vantage point which overlooked the power station. She was cross-examined about what happened next.

Q: And then what did you do? A: We had a look at the training facility.

Q: Where was that? A: That’s adjacent to the power station itself but outside the perimeter of the power station.

Q: What did you do, did you get out of the car? A: Yes.

Q: Both of you? A: I think he got out but I really can’t remember.

Q: What, you may have gone on your own, is that right? A: I really don’t recall. I don’t recall.

Q: What time of the day was this, please? A: Just after lunch.

Q: Was anyone around at that stage? A: Not a lot of people, no.

Q: Yes, and what did you see? A: I looked at the training facility.

Q: Yes, what did it consist of? A: It consisted of about five buildings which were divided into a number of different classrooms or sort of simulating what was at the workforce - at the workplace.

Q: Did you go inside? A: No, I wasn’t able to get in.

Q: So, you looked at five huts from the outside, possibly on your own and possibly in company with your nephew-in-law, is that right? A: Yes, that’s right.

Q: You didn’t go inside the power station at all, is that right? A: That’s right.[6]

Mr Kyriazis gave evidence in the defence case which supported this version of events. On the previous day, the Thursday, he had obtained a permit to take Ms Matijevic into the power station. However, they did not take advantage of this and drove only around the periphery. Nor could they go into the training centre as the buildings were closed.

Four other witnesses were called in the defence case. One was Peter Lynam who in 1992 was the Queensland Director of Industry Training Programmes for DEET. In early 1992 he contacted Ms Matijevic and suggested that she should come to Queensland to look at the Stanwell Power Station. She was interested in doing so and Mr Lynam accordingly telephoned the Department’s Rockhampton office and asked them to arrange the visit. Some considerable time later Ms Matijevic told him that she had visited the power station and been able to use the information gained in subsequent seminar or function in Canberra.

The remaining three witnesses, Messrs Moran, Banakof and Slater, all went to character. They gave evidence of Ms Matijevic’s high reputation and standing and spoke glowingly of her skills and capacities as well as her commitment to her work. They described her as a person of the highest integrity and honesty.

The conduct of the defence was thus to dispute the proposition that Ms Matijevic’s travel to Rockhampton was of a private nature only and was dishonestly undertaken at Government expense. The jury was plainly satisfied beyond reasonable doubt of both these matters for it convicted Ms Matijevic of both charges.

Was the verdict unsafe and unsatisfactory?

The first ground of appeal is that the jury’s verdicts were unsafe and unsatisfactory. It was submitted by Mr Lasry QC that, there being clear evidence that there was good reason for Ms Matijevic to visit the Stanwell Power Station, and that a visit in fact took place, it was not reasonably open to the jury to be satisfied beyond reasonable doubt that the journey to Rockhampton was not for official purposes and that it was dishonestly undertaken.

Where a verdict is challenged on the basis that it is unsafe or unsatisfactory the appellate court is not concerned with whether, as a matter of law, there is evidence to support the verdict. The court must make its own independent assessment of the evidence and determine whether, notwithstanding that there is evidence upon which a jury might convict, it would be dangerous in all the circumstances to allow the verdict of guilty to stand. The ultimate question will always be whether the appellate court considers that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (M v The Queen 181 CLR 487 at 492-493 per Mason CJ, Deane, Dawson and Toohey JJ).

In this case it was incumbent upon the Crown to prove beyond reasonable doubt that there was no official purpose for Ms Matijevic’s travel to Rockhampton and that Ms Matijevic dishonestly undertook the travel at Commonwealth expense. It was common ground that in order to prove dishonesty the Crown would need to satisfy the jury beyond reasonable doubt that at the time she undertook the travel Ms Matijevic knew that she was not entitled to Commonwealth funding for it. This was the basis upon which his Honour summed up to the jury, and no criticism has been levelled at those directions, nor indeed at any other part of the summing up.

Returning to the facts of this case, there was clear evidence (if it were needed) that a Commonwealth officer is entitled to combine official travel with a private visit so long as no funding is sought for the private aspects of the travel.[7] Therefore it matters not that there was a private reason for Ms Matijevic to undertake her trip to Rockhampton. Even if this was the primary reason for the travel, no offence was committed so long as there was also a legitimate business purpose for it.

It is very likely upon the evidence that at the time that Ms Matijevic first arranged her trip to Rockhampton, in April 1992, she was attempting to organise business purposes which would justify her travelling at Commonwealth expense. As it transpired, the two reasons for travel which were specified on the travel requisition form never eventuated. However the undertaking of a visit to the Stanwell Power Station remained a
potentially genuine business purpose for the trip. Mr Lasry urged that in the light of the evidence that there was very good reason for Ms Matijevic to visit Stanwell Power Station, and that she did in fact visit the station, the Crown had failed to prove that there was no legitimate business purpose for the trip, and it was certainly not open to the jury to find that Ms Matijevic undertook the travel dishonestly, knowing that she had no entitlement to take it at Commonwealth expense.

Had Ms Matijevic been conducted around the Stanwell Power Station by Mr Cheers on the Friday morning, as had apparently been organised, (albeit without her knowledge), there would have been no question of any offence being committed. The Crown would clearly have been unable to prove the absence of a legitimate business purpose for the trip. But the visit which Ms Matijevic in fact made to the station was such that it was arguably open for the jury to find that it was a sham, designed to give the travel to Rockhampton the semblance of legitimacy in order to justify its being undertaken at Government expense. This then threw the focus upon Ms Matijevic’s credibility generally, as well as that of her account of the events leading up to her travel to Rockhampton.

There is no doubt as to the strength of the character evidence given in the defence case. Ms Matijevic, as an SES officer at a relatively young age, had a proven record of loyalty, commitment and integrity. She was, on all accounts, a dedicated and skilled worker who devoted long hours in the Government service. Nevertheless, there were certain aspects of the case which could have led the jury to form a less than favourable view of Ms Matijevic’s openness and honesty when she was recounting the events leading up to the Rockhampton visit and describing her visit to Stanwell.

We do not propose to explore every aspect in which Ms Matijevic’s credibility was criticised by the Crown. However it is appropriate to mention some of the more prominent matters which were raised. Amongst these were the timing and circumstances of the changes in her travel plans. It was common ground that by early June Ms Matijevic had no further reason to travel to Brisbane on the Thursday 25 June. Yet in her minute to Mr Bowron dated 5 July 1993 and in her interview with Mr Nott she said that it was work constraints during the week of travel which caused her to cancel the Brisbane appointments. Indeed she told Mr Bowron that this happened “quite late in the week, if I recall correctly”. Similarly, we know from the airline records that it was on Tuesday 23 June that Ms Matijevic’s departure from Canberra was changed to the Friday morning. Similar alterations had been made to her husband’s and children’s flight plans the previous week. However in her minute to Mr Bowron she said that she had planned to travel to Rockhampton on the Thursday evening, but had missed that flight because she was working until late into the night and was thus forced to take the plane to Rockhampton the following morning.

There was strong support for Ms Matijevic’s evidence that, until the Thursday 25 June, she believed that a Cabinet submission needed to be lodged the following Monday, with all the pressure which that entailed. Nevertheless, there was considerable material from which the jury could infer that she was over-stating the extent to which the alterations to her travel plans were caused by her work commitments.

As to Ms Matijevic’s visit to the Stanwell Power Station, her initial description conveyed the impression that this visit was an informative one which had significant consequences. It was only later, in cross-examination, that the true picture started to emerge. This was clearly a matter which the jury was entitled to take into account when assessing her credibility, and particularly when determining whether the Crown had made out its case that this visit was a sham, designed to justify her seeking Government funding for the travel to Rockhampton. In this respect the jury had before it the evidence of Mr Cheers, quoted earlier, as to what normally occurred during visits to the training area. None of the information he referred to was made available to Ms Matijevic. Indeed it is difficult to see how Ms Matijevic’s visit could possibly have provided any useful information or insight about any matter of significance relating to Stanwell or its training programme. When questioned about this at the trial, she said that it was necessary to ensure that the forthcoming mission would not be sent to “a construction site, a whole lot of dust and dirt”. It was also useful, she said, to see the juxtaposition of the training facility with the power station itself.

This material was relevant not only to the question of whether there was a legitimate business purpose for the travel, but also to the issue of honesty. It was well open to the jury to reject Ms Matijevic’s evidence as to the benefits to be gained from her visit from Stanwell. An adverse finding on a central issue such as this could well have led the jury to conclude that Ms Matijevic’s object in going to Stanwell with her nephew was to invest the Rockhampton trip with the appearance of officialdom so that it could be charged to Commonwealth expense. This would justify a finding of dishonesty and would thus provide sufficient basis for a conviction in relation to each charge.

The above discussion leads us inexorably to the view that upon the whole of the evidence given at the trial it was open to the jury to be satisfied beyond reasonable doubt of Ms Matijevic’s guilt. Accordingly it could not be said that the verdicts were unsafe and unsatisfactory. The first ground of cross-appeal must fail.

Should the jury have been discharged?

The second ground of cross-appeal was in the following terms:

His honour erred in failing to discharge the jury on Thursday 5 September when it was pointed out that cross-examination of the cross-appellant suggested fraudulent conduct on her behalf which was not charged in the indictment.

The relevant background is as follows. It will be recalled that each of the counts in the indictment charged offences which were said to have occurred between 22 June and 22 July 1992. The initial travel requisition forms were completed well before this time, in April 1992. In cross-examination Ms Matijevic was asked a number of questions about the information contained in these forms and her intention when she completed them. There was no objection to these questions at the time. However after the conclusion of the evidence in the case, defence counsel sought a discharge of the jury on the basis of these questions. This was declined and the trial proceeded to completion.

The questions giving rise to this ground of appeal occurred on two separate occasions. The first was as follows:

Crown Prosecutor: So as at 28 April you say there was no ISC area office seminar at Rockhampton organised although you thought that this was to be done in the future; is that correct? A: The Assistant Director of Industry Training in Brisbane had said to me that he will ask the DEET Rockhampton office to organise something - organise a seminar.

Q: Yes, and you had no knowledge of such a seminar having been organised as at the time that you completed your travel movement requisition form? A: No, that’s not correct.

Q: Isn’t it? A: You’re incorrect.

Q: I see, well, you tell me what your state of knowledge was as at the date you completed this document? A: My state of knowledge was that I had an arrangement with the Assistant Director, Industry Training in the Brisbane office of DEET, that he would arrange for the seminar.

Q: Well, why is that any different from what I’ve just put to you? A: Well, the difference is your first question, I believe, was I had no knowledge of a seminar being organised.

Q: Having been arranged as at that date, it was a proposal as at that date; isn’t that right? A: As far as I’m aware, it could’ve been arranged at that date, and certainly.

Q: Yes, it could’ve been arranged but you didn’t know whether it had or it hadn’t according to the evidence you are giving; is that right? A: Well, the reason is that I had made an arrangement with another person for the arrangement to be made, so, splitting hairs.

Q: The only arrangement you had as at 28 April 1992 was to attend a wedding at Rockhampton, wasn’t it? A: No, that’s not true.

Q: Wasn’t it? A: That’s not true.[8]

A little later Ms Matijevic was asked the following questions:

Crown Prosecutor: When did the visit to Stanwell Power Station come into the picture? A: It was in it right from the beginning.

Q: Was it? A: Yes.

Q: You decided that you wouldn’t mention this on the travel requisition form, is that right? A: As I explained yesterday, Denise filled in the movement requisition form. There simply wasn’t enough space in the box to include Stanwell, and as well as that, as I also said yesterday, Des Fooks, who approved the movement requisition, also specifically knew that I was going there because we had discussed it.

Q: I see. You claim that Mr Fooks knew that a purpose of your visit was to go to Stanwell Power Station; is that what you claim? A: Yes.[9]

An objection then ensued. However this related to the factual accuracy of what was being put to the witness rather than to the legitimacy of the line of questioning.

The following morning Ms Matijevic’s counsel sought a discharge of the jury on the basis that it was not open to the Crown to rely upon material which suggested acts of deception outside the dates charged in the indictment. After extensive discussion the application was declined.

Before us Mr Lasry submitted that this line of questioning had the effect of suggesting to the jury that Ms Matijevic embarked on a fraudulent enterprise of deceiving the Government in April 1992 when she first signed the travel movement requisition forms. As this was outside the period specified in the indictment he said that it was not open to the Crown to present its case in this way. If, as the Crown was suggesting in these questions, false information was inserted on the forms from the outset, then it is likely that this constituted an independent offence. That being so it was highly prejudicial to Ms Matijevic to allow this line of questioning to go before the jury.

There are a number of reasons why this ground of appeal cannot succeed. We shall mention some of them, but briefly only.

It is clear that each of the offences charged in the indictment was committed, if at all, at the time of travel, or at least within the period allowed for the return of travel allowances in the event of changed plans. This occurred well within the dates mentioned in the indictment. The jury was correctly directed to assess Ms Matijevic’s state of mind at that time in determining whether the Crown had made out its case. But this did not mean that the jury was restricted to Ms Matijevic’s actions during that period. They were perfectly entitled to consider anything that went before or after for the purpose of determining her state of mind at the time of travel. It has never been the law that dates specified in indictments need to be expressed so widely as to include all preparatory acts; or, to put it another way, that only actions committed within the specified dates will be admissible at trial. There was no objection to the Crown’s tender of the movement requisition forms which were completed in April 1992. Nor could there have been, as this material was clearly both relevant and admissible. However Mr Lasry submitted that, if Ms Matijevic completed the movement requisition forms dishonestly, (as he says the Crown was suggesting in this line of cross-examination) then this constituted a separate offence under s 29C of the Crimes Act. As such it was a prejudicial and impermissible line of questioning.

The case primarily relied upon by Mr Lasry in support of this ground of appeal was S v The Queen (1989) 168 CLR 266. But that was an entirely different situation, in which the High Court, by majority, quashed a conviction based on an indictment which alleged unspecified acts of sexual intercourse over a twelve month period. It was the latent ambiguity and duplicity of the indictment which was said to lead to a substantial miscarriage of justice in that situation. The issues underlying that case have no relevance to the circumstances here. Nor do the “propensity” cases referred to by Mr Lasry provide support for this ground of appeal. Indeed in Harriman v The Queen (1959) 167 CLR 590, their Honours, in their various judgments, confirmed that similar fact evidence is inadmissible not because of its lack of probative value or relevance, but because its probative value is likely to be outweighed by the prejudice it would cause to the accused. There is no rule which says that evidence which suggests the possibility of prior criminal conduct is for that reason inadmissible. If it has high probative value and does little to prejudice the accused then in the normal course of events it will be admitted.

We would not in any event have categorised the cross-examination which gave rise to this ground of appeal as raising issues of “similar facts”. It was merely exploring Ms Matijevic’s state of mind at the time she completed the movement requisition forms, this being highly relevant to the issues before the jury. The fact that the Crown Prosecutor’s questions suggested the commission of another offence, if that be so, would not make the line of questioning impermissible. It might entitle the witness to decline to answer the questions on the ground of self-incrimination. But that did not apply here as Ms Matijevic answered the questions in the negative, thus denying any fraudulent intention.

It follows from all we have said that we regard this ground as lacking in substance. In our view it must fail.

Accordingly we would dismiss the cross-appeal and confirm the finding of guilt in each case. We now turn to the matter of sentence.

The sentencing appeal

The sentencing proceedings took place immediately after the jury returned with its findings. Defence counsel relied on the character evidence which had been given during the trial. No further evidence was called. However his Honour was informed that Ms Matijevic had repaid the whole of the money involved in the two charges. His Honour then proceeded to sentence. He commenced with the following observations:

In this matter the jury has returned its verdict and in my view that is consistent with the evidence as presented being accepted by them that, at least at the time when the trip was undertaken there was then known to you no legitimate business purpose, although I accept that you attempted to resurrect it but in fact you were just too late. It was therefore, although an offence under section 29D of the Act, more an error of judgment than a premeditated matter. Had the jury been satisfied that the original application was made with a view to obtaining funding for a trip which was of a private nature, then the matter would be more serious but I accept that in effect you were overtaken by circumstances.[10]

He went on to say that he was impressed with the character evidence given on Ms Matijevic’s behalf and accepted that the offence was out of character. He commented that Ms Matijevic remained liable to have disciplinary proceedings brought against her in the Public Service. In the light of all these circumstances his Honour deemed it inexpedient to inflict punishment which would involve a conviction. His sentence was couched in the following terms:

So, I therefore, while finding the offence proved, decline to proceed to conviction and dismiss the charge on condition that you enter into a recognizance, yourself in the sum of $500, to be of good behaviour for a period of 12 months from this date. It is a condition of that recognizance that the sum referred to in the charge be, or have been repaid to the Commonwealth within 14 days from this date. If that sum has already been refunded, of course, then that order will not require any further fulfilment.[11]

The power to discharge an offender without proceeding to conviction is set out in s 19B of the Crimes Act. Subsection 19B(1) provides as follows:

19B. (1) Where:

(a) a person is charged before a court with an offence against the law of the Commonwealth; and

(b) the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:

(i) the character, antecedents, cultural background, age, health or mental condition of the person;

(ii) the extent (if any) to which the offence is of a trivial nature; or

(iii) the extent (if any) to which the offence was committed under extenuating circumstances;

that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;

the court may, by order:

(c) dismiss the charge or charges in respect of which the court is so satisfied; or

(d) discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he will comply with the following conditions:

(i) that he will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order;

(ii) that he will make such reparation or restitution, or pay such compensation, in respect of the offence or offences concerned (if any), or pay such costs in respect of his prosecution for the offence or offences concerned (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):

(A) on or before a date specified in the order; or

(B) in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs - by specified instalments as provided in the order; and

(iii) that he will, during a period, not exceeding 2 years, that is specified in the order in accordance with subparagraph (i), comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed.

In this case, his Honour’s order did not accord with the provisions of s 19B. Having found the offence proved, and having expressed the opinion that it was inexpedient to inflict punishment which would involve a conviction, he then purported to dismiss the charge but to do so on conditions. However the dismissal of a charge under par 19B(1)(c) cannot be accompanied by conditions. If conditions are to be attached, then the appropriate order is to discharge the offender under par 19B(1)(d). Accordingly, if for no other reason, his Honour’s sentence would need to be set aside and Ms Matijevic re-sentenced in a form permitted by the legislation.

However the substantial argument for the Crown did not relate to the form of sentencing. The Crown Prosecutor urged strongly that a discharge under s 19B was not appropriate in the circumstances of this case. It was submitted that notwithstanding Ms Matijevic’s previous good character, the offences involved breaches of public trust committed for pecuniary gain by a person not suffering from financial hardship. His Honour’s comment that the offences involved a “error of judgment” was inconsistent with the jury’s finding, which necessarily involved an element of dishonesty. As such the offences were serious ones and it was entirely inappropriate to invoke s 19B.

It was urged on Ms Matijevic’s behalf that his Honour’s reference to an error of judgment should not be taken to indicate an absence of criminality. Rather his Honour was distinguishing between a spontaneous decision on the part of the respondent to proceed with her travel, notwithstanding that, as it emerged, there was no proper business purpose for it, and the much more serious action of deliberately organising in advance to obtain Government funding for a private trip.

The respondent also relied upon the numerous authorities which distinguish between sentencing appeals brought by the Crown and those brought by the defence. The principles were well set out by Miles CJ in Josip Sladic (1995) 86 A Crim R 175 at 178‑9:

The principles to be applied in this situation are stated in the well known decision of the Full Court of the Federal Court of Australia, Tait and Bartley (1979) 24 ALR 473 at 476 and are binding on this Court. They are summarised in the following passage:

“An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error.”

Although, on the face of it, the principles so stated apply to both appeals by a convicted person and appeals by a prosecuting authority, the appellate court, ever watchful for unfairness to an accused or convicted person, will be more cautious in exercising the discretion to interfere with the penalty or sentence imposed in order to increase it than it would be where the appeal was against the severity of the penalty or sentence. In Tait and Bartley this latter principle was considered to derive from what was referred to as the “double jeopardy” involved in an appeal against the leniency of a sentence. In the circumstances of the case before it, the Federal Court stressed that it would be unjust to a convicted person to expose him or her to such double jeopardy if the prosecution had not assisted appropriately in the sentencing process.

Another authoritative statement as to prosecution appeals is that of King CJ in Osenkowski (1982) 30 SASR 212 at 213; A Crim R 394 at 395:

“The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for
crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.”

Finally, on these general matters, there is an established practice, if not a principle, that an appellate court on a prosecution appeal against sentence will not interfere merely to adjust that sentence, even if error be shown, and that the sentence to be substituted will “often be less than a judge of the appellate court would have imposed if the matter had originally come before” [that judge]: see P(1992) 64 A Crim R 381 at 384; cf Paterson v Fenwick (unreported, Supreme Court, ACT, Higgins J, No SCA 51 of 1993, 18 March 1994) at p 1.

It is always incumbent upon a sentencing court (whether at first instance or on appeal) to adopt the view of the offence which is most favourable to the defence, according to the evidence before it. In this case, the most favourable view is that it was not until very shortly before Ms Matijevic undertook her travel to Rockhampton that she realised that no genuine business reason remained for it. This view is well available from the evidence; and although the Crown Prosecutor pointed to material which he suggested showed more substantial premeditation, this is the scenario which we consider should be treated as the basis for sentence.

Having realised, at that late stage, that no business purpose remained for her travel, Ms Matijevic attempted to bolster her situation by arranging for Mr Kyriazis to drive her around the power station - a step which the jury clearly found was not a genuine attempt to advance her employer’s interests. At that point she should have realised the untenability of her situation and offered to refund to the Commonwealth the amount which had been paid towards the travel. We take it that when his Honour was referring to an “error of judgment” he was referring to Ms Matijevic’s failure to adopt this course. It was, however, considerably more than an error of judgment. The jury’s verdict means that she was deliberately enriching herself at the expense of the Government, albeit that she had not set out to do so from the beginning.

With this background we return to the terms of s 19B and particularly the matters to be considered under par 19B(1)(b). Of the matters specified in subpars (i), (ii) and (iii) only those set out in subpar (i) could be relevant to this case. It could not be suggested that a fraud upon the Government was an offence of a trivial nature (as in subpar (ii)) or that the offence in this case was committed under extenuating circumstances (as in subpar (iii)). It is thus only the character and antecedents of Ms Matijevic, referred to in subpar (i), which would entitle her to the leniency provided by this section.

Subparagraphs (i), (ii) and (iii) of par 19B(1)(a) are expressed in the alternative. A consideration of any one of them would be sufficient to enable a court to conclude that it would be inexpedient to inflict any punishment. Nevertheless, all matters which are referred to in those subparagraphs are potentially relevant. There are some offences which by their very nature are so serious that it would be difficult to conceive of s 19B applying to them, at least unless there were very strong extenuating circumstances. And although these three subparagraphs set out the only matters which a sentencing court is entitled to take into account when determining that it is inexpedient to inflict punishment, this section does not purport to restrict the general sentencing considerations which a court can take into account. To the contrary, s 16A lists a large number of matters which must be taken into account by any court which is proposing to sentence or to make orders in relation to a federal offence. This section applies, by its own terms, to orders under s 19B (see subs 3). Amongst the matters specified in s 16A is “the degree to which the person has shown contrition for the offence” (par (2)(f)). In this case, Ms Matijevic has repaid the travelling expenses which were the subject of the charges, but does not otherwise appear to have shown any contrition. It is clearly open to all citizens to defend criminal charges brought against them, and the fact that they have chosen to do so cannot be used against them. However in adopting this course they can sometimes deprive themselves, if convicted, of the opportunity of seeking leniency on the ground of remorse or contrition. This, in our opinion, is such a case.

A further relevant consideration in this case is general deterrence. This is not amongst the matters which a sentencing court is required to take into account under subs 16A(2), but it is clear that the section does not purport to provide an exhaustive list of matters to be considered on sentence. In our view, general deterrence is a very significant factor in a case such as this. The payment of travel allowances to Government officers is to a large extent based on trust. It would not be difficult for officers at a relatively senior level to use this system for their personal gain, as the jury has found Ms Matijevic did. It is thus essential that there be powerful disincentives, and that those who abuse the system be seen to suffer more than minor penalties.

All these considerations persuade us that this was not an appropriate case for the application of s 19B. We therefore allow the appeal, quash his Honour’s orders on sentence and enter a conviction on each charge. Accordingly it is necessary to proceed to sentence.

At the hearing of the appeal it was suggested that Ms Matijevic might file a supplementary affidavit setting out any matters she wished to have taken into account on sentence. This she did in an affidavit dated 20 April 1997. The Crown having filed no material in response, we assume that the accuracy of this material is accepted.

Ms Matijevic’s affidavit shows that on 19 March 1997 she resigned from the Commonwealth Public Service. On her resignation she received $18,012 net by way of termination payments. She is seeking a further $5000 in respect of performance pay for the period 1 July 1992 to 30 June 1993. By reason of the criminal proceedings against her she was not permitted to take a voluntary retirement under s 76R of the Public Service Act 1922. Had she done so her net payment on termination would have been $84,917. There is an even greater difference between the amount of superannuation to which Ms Matijevic became entitled on resignation and that which she would have received on a voluntary redundancy. Upon retirement she would have received approximately $243,000. On resignation she in fact received approximately $61,000. There may be an entitlement to a further $12,000, but the discrepancy remains very substantial indeed.

Were it not for the commission of these offences, Ms Matijevic could have had a highly promising career in the Commonwealth Public Service. There is no evidence before us as to what occupation she is currently undertaking or proposing to undertake. She is now living in Queensland, where her husband is working, and will presumably undertake some form of employment there. In any event, it is obvious that her career prospects will be significantly reduced by the circumstances in which she left the public service and the fact of these convictions. To this must be added the major financial loss she has already suffered as a result of these offences. Were it not for these losses we would have considered the payment of a fine to be an appropriate punishment for these offences. However we think it inappropriate to impose any further financial burden upon her. Accordingly we would propose to release her, without passing sentence, upon her entering into a recognizance under s 20 of the Crimes Act. In reaching this conclusion we have taken into account all relevant matters referred to in subs 16A(2).

The final orders we make are as follows. We dismiss the cross-appeal. We allow the appeal and quash the orders purporting to be made under s 19B of the Crimes Act 1914. In lieu thereof we enter a conviction on each count and order that on each count the respondent be released, without passing sentence upon her, upon her giving security without surety by recognizance in the sum of $500.00 to be the satisfaction of the Supreme Court of the Australian Capital Territory that she will be of good behaviour for a period of 2 years.

I certify that this and the 28 preceeding pages are a true copy of the Reasons for Judgment herein of the Honourable Justices Gallop and Mathews.

Associate:

Date: 15 July 1997

Counsel for the appellant and cross respondent: Mr P Roberts

Solicitor for the appellant and cross respondent: Commonwealth

Director of Public

Prosecutions

Counsel for the respondent and cross appellant: Mr Lasry QC with

Mr N Adams

Solicitor for the respondent and cross appellant Pappas, J - Attorney

Date of hearing: 7 April 1997

Date of judgment: 15 July 1997

IN THE FEDERAL COURT OF AUSTRALIA )

)

AUSTRALIAN CAPITAL TERRITORY )

)

DISTRICT REGISTRY ) No ACT G 60 of 1996

)

GENERAL DIVISION )

)

On appeal from the Supreme Court

of the Australian Capital Territory

BETWEEN: THE QUEEN

Appellant

AND: BONITA MATIJEVIC

Respondent

AND: BONITA MATIJEVIC

Cross Appellant

AND: THE QUEEN

Cross Respondent

Coram: Gallop, Davies & Mathews JJ.

Date: 15 July 1997

Place: Canberra

REASONS FOR JUDGMENT

Davies J.: The indictment charged as follows:-

"... THAT BONITA MATIJEVIC at Canberra in the Australian capital Territory between the 22nd day of June 1992 and the 22nd day of July 1992 defrauded the Commonwealth by causing the Department of Employment Education and Training to pay for airfares and travel allowance totalling $1125.20 for a journey by Bonita
Matijevic to Rockhampton which occurred between the 25th day of June 1992 and the 28th day of June 1992, which was of a private nature and not for official purposes.

AND FURTHER THAT between the 22nd day of June 1992 and the 22nd day of July 1992 Bonita Matijevic at Canberra aforesaid defrauded the Commonwealth by causing the Department of Employment Education and Training to pay for airfares totalling $945.60 for a journey by her husband to Rockhampton between the 25th day of June 1992 and the 28th day of June 1992 as a spouse accompanied journey to which she had no entitlement as her journey was of a private nature and not for official purposes."

The counts alleged offences against s.29D of the Crimes Act 1914 (Cth).

Upon her trial, the jury found the respondent, Bonita Matijevic, guilty on both counts. The learned trial Judge, after taking into account the possibility of public service disciplinary procedures, found the offence proved but declined to proceed to conviction and dismissed the charges on condition that Mrs Matijevic enter into recognisance in the sum of $500 to be of good behaviour for a period of 12 months. His Honour made it a condition of the recognisance that the sums referred to in the charges be or had been repaid to the Commonwealth within 14 days of the sentence.

The Crown appealed on the basis of inadequacy of sentence whilst Mrs Matijevic cross-appealed on the ground that the verdict of the jury was unsafe and unsatisfactory and on the further ground that the trial Judge had erred in failing to discharge the jury when the cross-examination, so it was said, suggested fraudulent conduct on Mrs Matijevic's behalf which was not charged. I shall deal first with the cross-appeal.

A broad outline of the facts is sufficient for present purposes. In 1991, Mrs Matijevic was Assistant Secretary, Strategic Planning & Development Branch, Vocational Education & Training Division of the Department of Employment, Education & Training ("DEET"). Early in 1992, Mrs Matijevic became aware that her nephew was to marry in June at Rockhampton, Queensland. Mrs Matijevic decided to arrange affairs related to her employment in such a way that she and her husband could travel to Rockhampton for the weekend of the wedding at the Commonwealth's expense. Mrs Matijevic was entitled to take her husband with her when travelling at Commonwealth expense at least once per year. A movement requisition form was created for Mrs Matijevic and signed by her dated 28 April 1992. At that time, she planned to leave Canberra on the morning of Thursday, 25 June and to travel to Brisbane where she proposed to meet with a firm known as Reel Image along with representatives of TAFE Queensland. She intended to fly that evening to Rockhampton and, on Friday, 26 June, to meet with the industry service centre staff at Rockhampton of the Department of Employment, Education & Training and to travel to view a local power station, the Stanwell Power Station. Mrs Matijevic gave evidence at the trial that, in addition to these arrangements, she had a loose arrangement with the Assistant Director of Industry Training in the Brisbane State office of DEET, that, if she had time on the Thursday, she would meet with him and his staff. An appropriate movement requisition form for Mrs Matijevic's husband was also prepared and it was
approved by Mrs Matijevic under her authority. Mrs Matijevic's own form was approved by a superior officer.

It is not in dispute that Mrs Matijevic was entitled to call upon the Commonwealth to pay for travel only if that travel was official travel. There was placed in evidence a document which described the guiding principle in these terms:-

"The guiding principle in the planning and organisation of official travel is the need for overall efficiency and cost effectiveness of travel funds (taxpayers money). Officers incurring or approving travel expenditure need to ensure their decisions can stand up to public scrutiny on the grounds of economy, efficiency and probity."

It is not in dispute that, had Mrs Matijevic's expectations eventuated, her travel would have constituted official travel and that she would have been entitled to have her husband accompany her on the trip at the Commonwealth's expense.

However, due to a series of events which I need not set out, Mrs Matijevic left Canberra with her husband on Friday, the 26th, not on Thursday, the 25th, without an expectation of meeting any relevant person, either in Brisbane or Rockhampton. It is a quirk of fate that arrangements had been made for Mrs Matijevic to visit the Stanwell Power Station on the Friday morning and that a Mr P.J. Cheers, a Human Resource Officer for the Queensland Electricity Commission, had waited for her between 10 am and midday on Friday, the 26th. However, Mrs Matijevic was either not aware of that arrangement or believed that it had
been cancelled. Mrs Matijevic did not believe that any relevant officers in the Rockhampton office of DEET would be available and, consequently, did not expect to meet them and made no attempt to do so.

The only step that Mrs Matijevic took in relation to her employment was that she asked her nephew, who was an employee of the Stanwell Power Station, to drive her to the Stanwell Power Station, not into the Station, but to its perimeter where some buildings comprising a training facility area were situated. Mrs Matijevic gave this evidence in cross-examination, inter alia:-

"And where at Stanwell did he take you?---He took me around the perimeter of the site and he took me in particular to the training facility area which is outside the perimeter of the actual power station itself.

And did you inspect the facilities there?---I had a look around, yes.

...

This is what you said that was the reason, at page 180 of the transcript, in answer to your counsel. Question, `Why is it necessary for a person of your level to look at this venue?' Answer, `I was responsible for the study mission. At the end of the day, if the study mission didn't go well, I was the person whose bum got booted basically, in the Department and we were not going to take 45 high level people from Asian nations who are not used to Australia, up to Rockhampton to look at what could have been because it had only been described to us as a construction site, a whole lot of dust and dirt.' Is that the reason that you went to this power station, madam?---Yes.

So, having gone all that way to visit the Rockhampton Power Station - I'm sorry, the Stanwell Power Station, to see if it consisted of a whole lot of dust and dirt, you decided that you wouldn't actually go through the gate of the power station. Is that right?---That's correct.

Did Mr Jason Kyriazis (the nephew), did he offer to take you through the gate?---Yes, I - actually, I don't recall that. I can't recall that.

Were you in a hurry?---No, I wasn't in a hurry.

You weren't?---No.

Were you interested to have a look at the power station at all?---As I mentioned earlier, I had seen inside power stations before.

...

And how did you know it didn't consist of a whole lot of dust and dirt?---Because you could see.

From outside the perimeter fence?---Yes.

Well, I suppose if that was the purpose of your visit you could've made a phone call to someone and asked them, couldn't you, `Does the Stanwell consist of a whole lot of dust and dirt'?---No, because at the end of the day the study mission was being organised by my branch within the central office and me in particular, and it was necessary to ensure that every place that we took people to was seen to be appropriate.

So you travel - how far is it from Canberra up to Stanwell?---Canberra to Rockhampton, I'm not sure, it'd be over 1000 miles.

You travel all that way to have a look from the outside of a number of huts. Is that basically what you did?---Yes, and to look at the, I guess, the juxtaposition of the training facility with the power station itself.

I see, and what was the juxtaposition of the two?---Well, the two were together on site, side by side.

I see, and you needed to have a look to find out that the huts were side by side with the power station, did you?---Yes.

How long were you there?---At the power station?

...

Well, how long was it?---I can't recall.

...

Well, it wouldn't have taken very long to walk around from the outside five huts, would it?---I can't recall how long I was there.

So, the Commonwealth Government spent some, what was it, $2000 to send you up to Rockhampton so you could walk around the huts at the Stanwell Power Station, is that right?---They spent about $1000 to send me, yes.

That's the position, isn't it?---Yes, as I described it."

Thereafter, the remainder of the trip was concerned with the wedding, which took place in Rockhampton that weekend, and with associated social activities.

The relevant departmental instruction with respect to altered departmental travel read as follows:-

"Where the actual travel differs from the planned travel itinerary, the officer shall provide details of the variations to the delegate who approved his or her travel. The officer must also repay any excess travelling allowance as soon as possible but no later than fourteen days after completion of the journey (Finance Direction 14B refers). If an officer does not repay the outstanding travelling allowance within fourteen days or has not been given an extension of time under Finance Direction 14B, then the debt recovery procedures as outlined in Secretary's Management and Finance Instruction No 19 shall apply ie, offsetting the outstanding debt against the officer's salary entitlement."

In my opinion, it was open to the jury to conclude that Mrs Matijevic's trip to Rockhampton was not official travel, that she went for a private purpose and that, whether or not she gained some benefit as a Commonwealth employee from driving to the Stanwell Power Station, the Commonwealth's interest in her doing so was so insubstantial as not to confer the character of official travel on the trip from Canberra to Rockhampton and return. It was also open to the jury to find that Mrs Matijevic was aware, in the circumstances, that she had no entitlement to claim the travel as official travel.

As the Commonwealth was not reimbursed on Mrs Matijevic's return to Canberra, I am satisfied that it was open to the jury to conclude that Mrs Matijevic defrauded the Commonwealth as charged and that the verdict was not unsafe or unsatisfactory.

The second issue in the cross-appeal concerns some questions of counsel for the Crown which may have tended to throw doubt upon Mrs Matijevic's intentions in April 1992, when the movement requisitions were lodged. The point
has been taken that this was a time outside the period nominated in the indictment. I regard the point as of no significance. The events in April 1992 were part of the res judicata and, in the context, the questions were relevant and proper.

In imposing sentence, the trial Judge said:-

"In this matter the jury has returned its verdict and in my view that is consistent with the evidence as presented being accepted by them that, at least at the time when the trip was undertaken there was then known to you no legitimate business purpose, although I accept that you attempted to resurrect it but in fact you were just too late. It was therefore, although an offence under section 29D of the Act, more an error of judgment than a premeditated matter. Had the jury been satisfied that the original application was made with a view to obtaining funding for a trip which was of a private nature, then the matter would be more serious but I accept that in effect you were overtaken by circumstances.

Nevertheless, what you ought to have done, of course, was to have cancelled - not tried to resurrect the arrangements at that stage but to have, in effect, reinstated whatever purposes there were at a later point of time when it could be done without the pressure of the private engagement that you had. But I have to say I am impressed with your character antecedents and so on that have been given in evidence. I accept that the offence was not one which was habitual, in terms of indicating any sort of general conduct of yours, which was dishonest. And although one cannot describe the payment of fares and travelling allowance of the order of $2000 as trivial, nevertheless it is plain that you could have been dealt with by internal disciplinary machinery in the Public Service, and no doubt to much the same effect this will now occur. You are liable to those disciplinary procedures, in any event.

In the light of all those circumstances, it seems to me that it is inexpedient to inflict punishment which would involve a conviction. So, I therefore, while finding the offence proved, decline to proceed to conviction and dismiss the charge on the condition that you enter into a recognizance yourself in the sum of $500, to be of good behaviour for a period of 12 months from this date. It is a condition of that recognizance that the sum referred to in the charges be, or have been repaid to the Commonwealth within 14 days from this date. It is a condition of that recognizance that the sum referred to in the charges be, or have been repaid to the Commonwealth within 14 days from this date. If that sum has already been refunded, of course, then that order will not require any further fulfilment." (emphasis added)

This order was incorrect in that s.19B of the Crimes Act does not allow for both the dismissal of the charge and the imposition of a recognisance. They are alternatives.

Of more importance is the fact that the offences were not trivial and, as the matter could have been but was not rectified within 14 days of the travel, there were no extenuating circumstances. The crimes were therefore not appropriate for the application of s.19B.

In the circumstances, the Court must consider the sentence for itself. I would impose a conviction on each charge and would apply s.20 of the Crimes Act. In my opinion, this is an appropriate case to require a 12 months good behaviour bond and, as the matter was not mitigated by a plea of guilty, also the payment of a significant monetary penalty in accordance with s.20(a)(iii) of the Crimes Act. However, as my colleagues are of a different view, I defer to their opinion. I join with the orders proposed by Gallop & Mathews JJ.

I certify that this and the preceding 8 pages

are a true copy of the reasons for judgment

of the Honourable Justice Davies.

Associate:

Date: 15 July 1997

[1] Appeal Book, Fooks, p 5.

[2] Appeal Book, p 22.

[3] Appeal Book , p 70.

[4] Appeal Book, p 230.

[5] Appeal Book, p 108.

[6] Appeal Book, pp 158-159.

[7] Appeal Book, Fooks, p 22.

[8] Appeal Book, pp 133-134.

[9] Appeal Book, p 145.

[10] Appeal Book, p 317.

[11] Appeal Book, p 318.

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