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Barnard v The King

Barnard v The King

Case [2025] WASCA 63 30 April 2025

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   BARNARD -v- THE KING [2025] WASCA 63
CORAM:   MAZZA JA
MITCHELL JA
HALL JA

HEARD:   10 MARCH 2025
DELIVERED          :   30 APRIL 2025
FILE NO/S:   CACR 61 of 2024
BETWEEN:   TRAVIS PAUL BARNARD
Appellant
AND
THE KING
Respondent

FILE NO/S: CACR 60 of 2024
BETWEEN: TRAVIS PAUL BARNARD
Appellant
AND
THE KING
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   MacLEAN DCJ
File Number            :   IND 1161 of 2022

Catchwords:

Criminal law - Appeal against conviction - Use of equipment connected to telecommunications network to facilitate commission of serious offence, namely fraud - Commonwealth offence - Whether trial judge erred in directing jury as to elements of offence - Whether verdict unreasonable or unsupported by evidence because not open to find appellant obtained a benefit - Whether trial judge erred by directing jury they could not take into account time at which use occurred in deciding whether a benefit had been obtained

Criminal law - Appeal against sentence - Whether sentencing judge erred in making findings of fact regarding surrounding circumstances of offence - Whether sentencing judge erred by failing to make finding that appellant reasonably believed he had an entitlement to funds he was seeking to obtain - Whether sentence of 3 years 10 months' imprisonment with minimum term of 1 year 11 months manifestly excessive

Legislation:

Criminal Code (Cth), s 4.1, s 5.1, s 5.2, s 5.3, s 5.4, s 5.6, s 473.1, s 474.14
Criminal Code (WA), s 409, s 552
Telecommunications Act 1997 (Cth), s 7

Result:

CACR 61 of 2024
Leave to appeal on ground 1 granted
Leave to appeal on grounds 2 and 4 refused
Appeal dismissed

CACR 60 of 2024
Leave to appeal on grounds 1 and 4 granted
Leave to appeal on grounds 2 and 3 refused
Appeal dismissed

Category: B

Representation:

CACR 61 of 2024

Counsel:

Appellant	:	C Edwards
Respondent	:	R Sharp KC & C Moss

Solicitors:

Appellant	:	Delta Legal
Respondent	:	Director of Public Prosecutions (Cth)

CACR 60 of 2024

Counsel:

Appellant	:	C Edwards
Respondent	:	R Sharp KC & C Moss

Solicitors:

Appellant	:	Delta Legal
Respondent	:	Director of Public Prosecutions (Cth)

Case(s) referred to in decision(s):

Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176
Kabambi v The State of Western Australia [2019] WASCA 44
Langdon v Kelemete‑Leoli‑McLean [2011] WASCA 26; (2011) 206 A Crim R 368
Larkin v The Queen [2012] WASCA 238
Milne v The Queen [2014] HCA 4; (2014) 252 CLR 149
Moylan v The State of Western Australia [2007] WASCA 52; (2007) 169 A Crim R 302
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Stevens [1999] NSWCCA 69
Savvas v The Queen [1995] HCA 29; (1995) 183 CLR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barnard v The King

Details

AGLC: Barnard v The King [2025] WASCA 63
Case: [2025] WASCA 63
Decision Date: 30 APRIL 2025

CaseChat Overview and Summary

The case of Barnard v The King involved an appeal against both conviction and sentence. The appellant was convicted of using equipment connected to a telecommunications network to facilitate the commission of a serious fraud offence under Commonwealth law. The central issue before the court was whether the trial judge had erred in directing the jury on the elements of the offence. Specifically, the court needed to determine if the verdict was unreasonable or unsupported by evidence because it was not open to the jury to find that the appellant obtained a benefit from the offence. Another aspect of the trial judge's direction was also contested, namely whether the judge was correct in telling the jury that the time at which the use of the equipment occurred could not be taken into account in deciding whether a benefit had been obtained.

The court held that the trial judge's direction to the jury was not erroneous and that the jury's verdict was supported by the evidence. The court found that it was open to the jury to conclude that the appellant had obtained a benefit from the offence, regardless of the time at which the use of the equipment occurred. The court also held that the sentencing judge did not err in making findings of fact regarding the surrounding circumstances of the offence. The court further determined that the sentencing judge was not required to make a finding that the appellant reasonably believed he had an entitlement to the funds he was seeking to obtain. Finally, the court found that the sentence of 3 years and 10 months' imprisonment with a minimum term of 1 year and 11 months was not manifestly excessive.

The court dismissed the appeal against both conviction and sentence, upholding the original verdict and sentence. The appellant's conviction for using equipment connected to a telecommunications network to facilitate the commission of a serious fraud offence was affirmed, and the sentence of 3 years and 10 months' imprisonment with a minimum term of 1 year and 11 months was also upheld. The court found no errors in the trial or sentencing process that warranted a different outcome.

Orders