Court of Appeal (Qld)|2002-12-06|Before: McMurdo P, Williams JA and Helman JSeparate reasons, for judgment for each member of the court, each concurring as to the orders, made
McMurdo P, Williams JA and Helman JSeparate reasons, for judgment for each member of the court, each concurring as to the orders, made
Catchwords
CRIMINAL LAW – PARTICULAR OFFENCES – PROPERTY OFFENCES –
FALSE PRETENCES AND OTHER FRAUDS AND IMPOSITIONS –
FALSE PRETENCE OR
PROMISE – PROOF AND EVIDENCE – where appellant represented to each
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – PARTICULAR OFFENCES – PROPERTY OFFENCES –FALSE PRETENCES AND OTHER FRAUDS AND IMPOSITIONS –FALSE PRETENCE ORPROMISE – PROOF AND EVIDENCE – where appellant represented to eachinvestor that there was an institutionknown as the British Marine Bank whichwas material to the investment –– where a jury was entitled toconclude upon theevidence that the appellant did not hold an honest belief thatthe bank was registered and operating in Australia and that insufficientinquiries were made about the existence of the bank and that the professedbelief of the appellant was not reasonably founded –whether the appellanthad an intent to defraud on each material occasion and the appellant’sstate of mind at the time of eachof the relevant transactions - whether verdictof jury unsafe and unsatisfactoryCRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –
MISDIRECTION AND
NON-DIRECTION – GENERAL MATTERS – CONSIDERATION OF SUMMING UP AS A
WHOLE - whether learned trial judge
erred in his summing up in directing the
jury where the telling of lies could be an indication of guilt following
Edwards v The Queen
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION –
APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE –
CIRCUMSTANCES NOT
INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – IMPROPER
ADMISSION OR REJECTION OF EVIDENCE
– whether learned trial judge erred in
allowing the trial to proceed where one witness may have given inconsistent
evidence
to that given in the trial of a co-offender and one witness gave an
incorrect date
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION –
APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE –
CIRCUMSTANCES NOT
INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL – OTHER
IRREGULARITIES - whether the state
of the appellant’s health during the
trial prevented him from having a fair trial
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION –
APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –
UNREASONABLE OR
INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED - whether verdict should be
set aside because counsel had allegedly
acted contrary to written instructions
with particular regard to the cross-examination of investors
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION –
APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE –
APPEAL BY CONVICTED
PERSONS – APPLICATIONS TO REDUCE SENTENCE – PARTICULAR OFFENCES
– PROPERTY OFFENCES - where
appellant sentenced to 5 years’
imprisonment on each of the false pretence charges to be served concurrently and
one year on
each of the other charges - whether the sentence was manifestly
excessive – ordered that given the amount of money involved
in 22 counts
of fraud and relevant dishonesty involving conduct of a serious nature a
sentence of 5 years’ imprisonment was
within the range
Criminal Code (Qld) s 427, s 408C
Edwards v The Queen [1993] HCA 63
(1993) 178 CLR 193, referred to
Judgment (3 paragraphs)
[1]
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - FALSE PRETENCES AND OTHER FRAUDS AND IMPOSITIONS - FALSE PRETENCE OR PROMISE - PROOF AND EVIDENCE - where appellant represented to each investor that there was an institution known as the British Marine Bank which was material to the investment -- where a jury was entitled to conclude upon the evidence that the appellant did not hold an honest belief that the bank was registered and operating in Australia and that insufficient inquiries were made about the existence of the bank and that the professed belief of the appellant was not reasonably founded - whether the appellant had an intent to defraud on each material occasion and the appellant's state of mind at the time of each of the relevant transactions - whether verdict of jury unsafe and unsatisfactory CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - CONSIDERATION OF SUMMING UP AS A WHOLE - whether learned trial judge erred in his summing up in directing the jury where the telling of lies could be an indication of guilt following Edwards v The Queen CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - whether learned trial judge erred in allowing the trial to proceed where one witness may have given inconsistent evidence to that given in the trial of a co-offender and one witness gave an incorrect date CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL - OTHER IRREGULARITIES - whether the state of the appellant's health during the trial prevented him from having a fair trial CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED - whether verdict should be set aside because counsel had allegedly acted contrary to written instructions with particular regard to the cross-examination of investors CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - PARTICULAR OFFENCES - PROPERTY OFFENCES - where appellant sentenced to 5 years' imprisonment on each of the false pretence charges to be served concurrently and one year on each of the other charges - whether the sentence was manifestly excessive - ordered that given the amount of money involved in 22 counts of fraud and relevant dishonesty involving conduct of a serious nature a sentence of 5 years' imprisonment was within the range Criminal Code (Qld) s 427, s 408C