Douglas Gordon Johnston v The Queen - [2021] VSCA 11

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0166

DOUGLAS GORDON JOHNSTON	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	MAXWELL P, BEACH and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 January 2021
DATE OF JUDGMENT:	10 February 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 11
JUDGMENT APPEALED FROM:	[2019] VCC 825 (Judge Wilmoth)

---

CRIMINAL LAW – Appeal – Conviction – Obtaining financial advantage by deception (9 charges) – Three sets of complainants – Judge ruled husband and wife complainants not available to give evidence – Whether ‘mentally or physically unable’ to give evidence – Documentary evidence wholly inadequate to establish incapacity – Need for expert evidence or assessment of witness by judge – Miscarriage of justice – Error confined to relevant charges – Appeal allowed in part – Relevant convictions quashed – Retrial ordered – Evidence Act 2008 s 65.

CRIMINAL LAW – Appeal – Conviction – Obtaining financial advantage by deception – Distinction between false representation and unfulfilled promise – Whether directions adequate – Directions given as written questions – No exception taken – No error – Jury comprehension – Benefits of question format – Jury Directions Act2015 ss 1, 11, 12, 15, 16 and 67.

CRIMINAL LAW – Appeal – Evidence – Incriminating conduct – Correspondence between applicant and solicitors for complainant – Applicant’s denial of involvement – Whether capable of constituting evidence of incriminating conduct – Whether communications made ‘in an attempt to negotiate settlement’ – No error – Jury Directions Act2015 s 20, Evidence Act 2008 s 131.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms G Connelly	Amad Lawyers
For the Respondent	Mr J Gullaci	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

MAXWELL P
BEACH JA
NIALL JA:

Summary

After a trial in the County Court, the applicant was convicted of nine charges of obtaining financial advantage by deception. He was sentenced to 6 years’ imprisonment, with a non-parole period of 3 years.

The applicant’s co-offender was his wife, Maureen Johnston, who pleaded guilty to some of the same charges and to a number of other similar charges. She was sentenced to 5 and a half years’ imprisonment, with a non-parole period of 2 years.

The Crown case against the applicant was that he had deceived three separate sets of victims: Ms Westlake (charges 1-4), Mr and Mrs Stephens (charges 5, 8 and 9) and Mr Busuttil and Ms Boulton (charges 6 and 7). In each case, the victims had been persuaded to invest funds, through the applicant and his wife, in property developments which were said to be in planning or already under way. The amounts defrauded totalled $45,000, $720,000 and $50,000 respectively.

The applicant now seeks leave to appeal against his conviction. His principal ground concerns the ruling of the trial judge that both Mr and Mrs Stephens were ‘not available to give evidence’, within the meaning of s 65(1) of the Evidence Act2008 (‘Evidence Act’), and that the prosecution could instead adduce…

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 Douglas Gordon Johnston v The Queen

Details

AGLC: Douglas Gordon Johnston v The Queen [2021] VSCA 11
Case: [2021] VSCA 11
Decision Date: 10 February 2021

CaseChat Overview and Summary

The appeal by Douglas Gordon Johnston against his convictions for obtaining financial advantage by deception was heard in the court. The case involved three sets of complainants, and Johnston was found guilty on nine related charges. A central issue in the appeal was the trial judge’s ruling that the husband and wife complainants were unavailable to give evidence, which Johnston argued led to a miscarriage of justice. The second issue concerned the adequacy of the jury directions regarding the distinction between false representation and unfulfilled promises, as well as the admissibility of incriminating correspondence between Johnston and the complainants’ solicitors.

The court found that the judge's decision to deem the complainants unavailable was based on documentary evidence which was wholly inadequate to establish their incapacity. The court held that either expert evidence or a direct assessment by the judge was necessary to properly evaluate the witnesses' availability. This omission was deemed a significant error, leading to a miscarriage of justice on the relevant charges. Consequently, the appeal was allowed in part, and the relevant convictions were quashed. The court ordered a retrial on those charges. Regarding the jury directions, the court found no error in the judge's approach, as the directions were clear and aided the jury’s comprehension of the issues. The incriminating correspondence was also held to be admissible, as it was not made in an attempt to negotiate a settlement.

The court ordered that Johnston’s convictions on the relevant charges be quashed, and a retrial be conducted. The remaining convictions were upheld, and Johnston’s sentence was to remain in effect pending the outcome of the retrial. This decision highlights the necessity for comprehensive evidence and appropriate jury directions in criminal trials, particularly when the unavailability of key witnesses is at issue.

Orders