We had acted for a client was accused of misconduct in public office. The client held a senior role at a government-funded organisation in regional Victoria. The factual circumstances included that the organisation entered into a contract with a third party for the delivery of services. The third party issued invoices for work purportedly done and were paid nearly 2 million dollars. It transpired that they did not deliver the service and had provided fraudulent documents in support of the invoices.
What is alleged to have occurred?
The matter was investigated by IBAC. They alleged that the client was a party to the deception in that they knew the services were not being delivered and yet aided in the invoices being paid despite that knowledge.
Further, the client’s involvement in the engagement and management of the contract constituted misconduct in public office. It was alleged that they failed to take basic steps to ensure the legitimacy of the 3rd party provider and was delinquent, either intentionally or negligently, in their duty to determine if the service had been delivered. Finally, it was alleged that they had modified official business records which purportedly gave an advantage to the owner of the 3rd party business.
IBAC commenced an investigation into the matter. We supported the client through the process of giving evidence before the Commission. It was an incredibly difficult and daunting process for the client but they were comforted by having a clear understanding of their rights and obligations when giving evidence.
Following the IBAC investigation, the client was prosecuted criminally in accordance with the allegations outlined above. We strenuously denied the primary allegations, but did concede that there had been a modification of business records. The prosecution was unwilling to proceed on that charge only. We pleaded not guilty and proceeded to defend the charges through the Court system.
What happened at court?
Charges that involve the misappropriation of funds over the amount of $100,000 are heard in the indictable stream of Court. An important part of that process is a Contested Committal hearing, where the defence have an opportunity to cross-examine selected prosecution witnesses to test their evidence. The Magistrate will hear the evidence and assess if there is evidence of sufficient weight for the matter to progress to trial. This threshold is very low. The committal process is very important to the defence as we use it strategically to set up arguments that will be pursued at Trial.
The matter was extremely voluminous. There were tens of thousands of pages in the brief of evidence. The preparation of the defence required careful and methodical analysis of the evidence. We had many conferences with the client mapping out their involvement with the 3rd party company in great detail. Our defence was that our client was not aware of the scheme executed by the 3rd party provider, and that the client had exercised adequate due diligence in the execution of their role.
Our cross-examination of the witnesses was centered around revealing the client’s lack of knowledge, and that the client was not responsible for the oversight of the contract as alleged. Our position was that when the significant issue of fraud was identified, our client became the ‘fall person’ and the client’s role and responsibilities were overstated to justify the blame that had been attributed to the client. The cross-examination of the witnesses was successful in revealing the weaknesses in the prosecution’s case.
At the conclusion of the committal hearing, we made an application for discharge on all charges except for the modification of data charge. Given the very low threshold, the Magistrate committed the client to stand trial but indicated to the prosecution that the threshold was only just met, and that real consideration had to be given to the future conduct of the matter given that the standard of proof required to be met at the trial was beyond reasonable doubt.
The matter progressed to the County Court. We prepared an Application for Discontinuance which was submitted to the Director of Public Prosecution. In it, we set out the deficiencies in the prosecution case by reference to the evidence in the brief and the evidence provided in the committal hearing. We submitted that on a proper analysis of the matter, the prosecution was destined to fail.
Further, we raised several significant personal features relating to the client, including the client’s lack of prior history, the client’s substantial contribution to the community over the years, and the decline in the client’s mental health as a result of the investigation and subsequent proceedings.
What was the result?
The case was successful. The prosecution ultimately agreed to withdraw all of the charges in dispute related to the alleged misconduct in public office. A plea of guilty proceeded on the charge of modifying data held by the organisation. The client received a without conviction fine.
Kristina Kothrakis
Kristina has significant experience in criminal trials and also holds a degree in Science, majoring in Psychology, an invaluable area of knowledge, as many of her clients suffer from psychological disorders.Kristina strives to achieve the best possible result for all her clients. Skilled, decisive and assertive, Kristina demonstrates dedication, care and professionalism at all times.
View Kristina Kothrakis' profile.
DISCLAIMER: This is a real case study of an actual case from our files. Details pertaining to the client have been changed to protect their privacy. The sentence imposed and the charge have not been altered. These case studies are published to demonstrate real outcomes and give an indication of possible tariffs in Court. We do not guarantee a similar case on these charges will get the same result. Please note that we post results at our discretion, therefore while many case studies are average results, others are notable for their exceptional outcomes. PUBLISHED 01/11/2024
