A PROMINENT Queensland lawyer has raised concerns about a potential "abuse of process" in appealing a former ATSIC deputy director's conviction on dishonesty charges.
Peter Callaghan represented Robert Raymond Lloyd Robinson in the Court of Appeal on Monday, arguing the way the Commonwealth handled his case was a "disadvantage" and "a prejudice" to his client.
Robinson's charges arise from two letters he sent under the ATSIC banner in 2004 endorsing the $114,000 sale of 10 vehicles which then belonged to Charleville-based Aboriginal agencies Bidjara CDEP and Bidjara South West Queensland Legal Service.
The Commonwealth had alleged ATSIC did not approve the sale and Robinson derived monetary benefit, believed to be $45,000, from the sale to fund a private legal matter.
Robinson had strenuously denied any wrongdoing, arguing approval was not necessary because the two Aboriginal agencies had owned the respective cars through ATSIC funding. ATSIC was abolished in 2005.
In the Court of Appeal on Monday, Mr Callaghan said Robinson's first trial was hung when a jury could not reach a decision and his second resulted in a guilty verdict.
He said the Court of Appeal had overturned the verdict and ordered a new trial but the justices had "dictated" advice suggesting the Commonwealth try for a conviction under a different subsection of the relevant Act.
Mr Callaghan said they were successful in getting a conviction on the new charges, resulting in 12 months jail with immediate release on a three-year good behaviour bond.
He said his client was now forced to appeal in the very court which "dictated" the advice.
"The Crown has acknowledged the choice of charge for the appellant's trial was dictated by this court, it was the explicit preference of this court," he said.
"If the Crown thinks of it in this fashion then it is impossible to think any fair-minded observer would view it differently.
"That is important when we turn to consider the aspect of abuse of process which concerns the erosion of public confidence in court processes.
"If the prosecution is allowed to continue in the manner this has been litigated, that is to say, they run a trial, don't get a result, run it again, get it wrong, run it again and finally, with the assistance of some advice from the court, get a conviction, the question must be asked what is the incentive for the Crown to ever get it right?"
The three Court of Appeal justices have reserved their decision.
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