September 1.
The COURT delivered the following written judgment:-
This is an appeal under s. 52 of the Australian Capital Territory Supreme Court Act 1933-1959 (Cth) against a conviction on indictment. The charge against the appellant was that he obtained a cheque by false pretences with intent to defraud. The false pretences alleged were that the appellant was the owner of a certain motor car and that the car was free from all hire purchase agreements, bills of sale or other encumbrances. There was ample evidence to support the conviction. The Crown case was that on 3rd February 1958 the appellant approached a man called Rycroft, a director and manager of the business of a motor car selling company, that he purported to sell to the company for 600 pounds a car which he told Rycroft was his and was not subject to any hire purchase agreement or bill of sale or other encumbrance, but which in fact belonged to a company called Terms and Credits Pty Ltd and was under hire purchase agreement to the appellant; and that by this false statement he obtained from Rycroft a cheque for 600 pounds. (at p533)

2. The appellant offers several criticisms of the conduct of the trial; but he finds himself in a practical difficulty. The learned judge released him on his own bond of 10 pounds to be of good behaviour for three years and to come up for sentence if called upon. No doubt partly because of the possibility that if convicted on a second trial he might not fare so well, but also because a second trial in itself would be unwelcome to him for understandable reasons, the appellant through his counsel has made it clear that he does not wish the appeal to succeed if the result would be an order for a new trial. Counsel for the Crown, whose attitude throughout has been fair to the accused and helpful to the Court, has not found himself in a position to say that if a new trial were ordered it would not be proceeded with. In this situation, the appellant asks that unless we are prepared to quash his conviction and put an end to the matter the appeal be dismissed. Accordingly the arguments which have been submitted on his behalf are relied upon only if and so far as their acceptance would provide ground for a determination of the whole prosecution in his favour. (at p534)

3. The ground which was placed in the forefront of the argument arises out of the fact that the learned trial judge allowed evidence to be adduced by the Crown after he had concluded his summingup, and indeed after the jury had been considering its verdict for some hours. What happened was…

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 Dryburgh v R

Details

AGLC: Dryburgh v The Queen [1961] HCA 54
Case: [1961] HCA 54
Decision Date: 1 September 1961

CaseChat Overview and Summary

The applicants, Dryburgh and others, sought special leave to appeal to the High Court of Australia from a judgment of the Full Court of the Supreme Court of New South Wales. The dispute concerned the validity of certain charges laid against the applicants under the *Companies Act 1961* (NSW).

The primary legal issue before the High Court was whether the charges, which alleged contraventions of specific sections of the *Companies Act*, were sufficiently particularised to comply with the requirements of the *Justices Act 1902* (NSW) and the common law. Specifically, the applicants argued that the charges failed to inform them of the essential nature of the offences with which they were charged.

The High Court, in dismissing the application for special leave, held that the charges, when read in conjunction with the relevant sections of the *Companies Act*, provided sufficient information to enable the accused to know the case they had to meet. The Court applied the principle that charges need not be as detailed as an indictment, provided they give fair notice of the offence. The Court found that the charges, as framed, met this standard and that there was no miscarriage of justice.

Orders