Court of Appeal (Qld)|2001-07-20|Before: McPherson and Thomas JJA, Chesterman JSeparate reasons for judgment of, each member of the Court, each concurring as to the orders made
McPherson and Thomas JJA, Chesterman JSeparate reasons for judgment of, each member of the Court, each concurring as to the orders made
Catchwords
CRIMINAL LAW – PARTICULAR OFFENCES – FRAUD – where
appellants convicted of defrauding the Jupiters Casino by allegedly
taking part in a planned scheme involving the corruption of a croupier
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – PARTICULAR OFFENCES – FRAUD – whereappellants convicted of defrauding the Jupiters Casino by allegedlytaking part in a planned scheme involving the corruption of a croupierCRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –INFORMATION, INDICTMENT OR PRESENTMENT – JOINDER OF COUNTS– whetherthe Crown should have charged a separate count for each dishonest bet made byeach appellant rather than joiningthem – where the construction of s 408C(2) (d) and s 568 (3) of the Criminal Code allows joinder of frauds –where thiswas the correct approach when the charge is in respect of a processof dishonesty which continued over each game sessionCRIMINAL LAW –JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENTIARY MATTERSRELATING TO WITNESSES AND ACCUSEDPERSONS – IDENTIFICATION EVIDENCE– MODES OF PROOF – PRIOR VISUAL IDENTIFICATION –IDENTIFICATION FROM PHOTOGRAPHS– where part of the identification
evidence against the appellants included a pre-recorded interview with a primary
witness
who identified the appellants (who were allocated target numbers) out of
a series of photographs – where this procedure did
not conform to
identification from a line up or photo board – whether pre recorded
interview should have been excluded on the
basis it unfairly lent weight to the
witness’ evidence – where it was rather the necessary means by which
the reliability
of the witness could be assessed - where the receipt of
evidence was not inconsistent with principles in Alexander v The Queen
because of the familiarity between the witness and appellants
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS
– UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE EVIDENCE
CIRCUMSTANTIAL - MISDIRECTION AND NON DIRECTION – CONSIDERATION OF SUMMING
UP AS A WHOLE – whether directions on identification
evidence failed
sufficiently to identify matters undermining the reliability of the primary
witness’s identification evidence
– whether difficulties of cross
cultural identification had been adequately identified – where sufficient
Domican warnings were given – whether trial judge erred in
commenting on taped evidence – whether trial judge erred in directions
on
circumstantial evidence - whether summing up was unduly favourable to the Crown
– where criticisms of summing up and directions
did not raise true points
of error –– where the summing up was favourable to the Crown but not
so as to discern a miscarriage
of justice – where strong Crown
caseEVIDENCE – ADMISSIBILITY AND RELEVANCY – OPINION
EVIDENCE – EXPERT OPINION – QUALIFICATIONS OF WITNESS –
whether evidence given by an expert witness in the rules and procedures of the
card games could be correctly categorised as opinion
evidence – where the
categories of such evidence are not limited to areas of scholastic studies
– where such evidence
was properly viewed as an aid to the jury –
Butera appliedCRIMINAL LAW – APPEAL AND NEW TRIAL
– PARTICULAR GROUNDS – MISDIRECTION AND NON DIRECTION –
PRESENTATION OF
CROWN CASE – where the Crown Prosecutor was allowed to
interpolate Crown allegations during the giving of the expert witnesses’
evidence – whether this added weight to the Crown’s case –
where the circumstances of this case called for such
a procedure – where
no discernible errorCRIMINAL LAW – APPEAL AND NEW TRIAL –
APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – whether the
trial
judge erred in treating each appellant on the basis they were part of an
overall scheme which netted a considerable sum of money
– where the very
nature of the criminal activity was that each would benefit from a combined
criminal enterprise – whether
sentences of 3 years manifestly excessive
– whether there is a distinction in defrauding institutions and
individuals –
where sentence properly reflected the deliberation, planning
and the corruption of othersCasino Control Act 1982 (Qld), s65,
(4), s568 (5), s668F (2)Alexander v The Queen [1981] HCA 17
(1981) 145 CLR 395,
distinguishedAlexandridis [1994] 76 A Crim R 391,
consideredButera v Director of Public Prosecutions (Vict) [1987] HCA 58
(1987) 164
CLR 180, followedDavies and Cody v The King [1937] HCA 27
(1937) 57 CLR 170,
distinguishedDirector of Public Prosecutions v Merriman [1973] AC
584, consideredDomican v The Queen [1992] 173 CLR 555, considered
Edwards v R [1993] HCA 63
(1993) 178 CLR 193, distinguishedJacobson CA No 319
of 1994, 26 October 1994, consideredPeacock v The King (1911) 13 CLR
616, consideredPitkin v The Queen [1995] HCA 30
(1995) 69 ALJR 612,
distinguishedR v D [1995] QCA 329
[1996] 1 Qd R 363, consideredR v De
Simoni (1981) 147 CLR 383, consideredThe Queen v Ching, ex parte
A-G CA No 269 of 1992, 21 October 1992, consideredWeal v Bottom
(1966) 40 ALJR 436, considered
Judgment (25 paragraphs)
[1]
CRIMINAL LAW - PARTICULAR OFFENCES - FRAUD - where appellants convicted of defrauding the Jupiters Casino by allegedly taking part in a planned scheme involving the corruption of a croupier
[2]
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER OF COUNTS - whether the Crown should have charged a separate count for each dishonest bet made by each appellant rather than joining them - where the construction of s 408C (2) (d) and s 568 (3) of the Criminal Code allows joinder of frauds - where this was the correct approach when the charge is in respect of a process of dishonesty which continued over each game session
[3]
CRIMINAL LAW - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - MODES OF PROOF - PRIOR VISUAL IDENTIFICATION - IDENTIFICATION FROM PHOTOGRAPHS - where part of the identification evidence against the appellants included a pre-recorded interview with a primary witness who identified the appellants (who were allocated target numbers) out of a series of photographs - where this procedure did not conform to identification from a line up or photo board - whether pre recorded interview should have been excluded on the basis it unfairly lent weight to the witness' evidence - where it was rather the necessary means by which the reliability of the witness could be assessed - where the receipt of evidence was not inconsistent with principles in Alexander v The Queen because of the familiarity between the witness and appellants
[4]
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE EVIDENCE CIRCUMSTANTIAL - MISDIRECTION AND NON DIRECTION - CONSIDERATION OF SUMMING UP AS A WHOLE - whether directions on identification evidence failed sufficiently to identify matters undermining the reliability of the primary witness's identification evidence - whether difficulties of cross cultural identification had been adequately identified - where sufficient Domican warnings were given - whether trial judge erred in commenting on taped evidence - whether trial judge erred in directions on circumstantial evidence - whether summing up was unduly favourable to the Crown - where criticisms of summing up and directions did not raise true points of error -- where the summing up was favourable to the Crown but not so as to discern a miscarriage of justice - where strong Crown case
[5]
EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION - QUALIFICATIONS OF WITNESS - whether evidence given by an expert witness in the rules and procedures of the card games could be correctly categorised as opinion evidence - where the categories of such evidence are not limited to areas of scholastic studies - where such evidence was properly viewed as an aid to the jury - Butera applied
[6]
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON DIRECTION - PRESENTATION OF CROWN CASE - where the Crown Prosecutor was allowed to interpolate Crown allegations during the giving of the expert witnesses' evidence - whether this added weight to the Crown's case - where the circumstances of this case called for such a procedure - where no discernible error
[7]
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - whether the trial judge erred in treating each appellant on the basis they were part of an overall scheme which netted a considerable sum of money - where the very nature of the criminal activity was that each would benefit from a combined criminal enterprise - whether sentences of 3 years manifestly excessive - whether there is a distinction in defrauding institutions and individuals - where sentence properly reflected the deliberation, planning and the corruption of others