Fong v The Queen - [2004] NTCCA 6

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Fong v The Queen [2004] NTCCA 6

PARTIES: WILLIAM DESMOND FONG

THE QUEEN

TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION: CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO: CA 7 of 2003 (SCC 9929185/20201844 & 20201845)

DELIVERED: 8 September 2004

HEARING DATES: 18 May 2004

JUDGMENT OF: ANGEL, MILDREN & RILEY JJ

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION

Appeal and New Trial – inconsistent verdicts – whether verdicts may be reconciled – where inconsistency between verdicts of acquittal and verdict of guilty, generally appellate court not disturb the acquittal

MacKenzie v The Queen (1996) 190 CLR 348, applied

Crimes Act 1914 (Cth), s 29B

Appeal and New Trial – imposing upon the Commonwealth by an untrue representation – representation need not be made directly to the Commonwealth or a Commonwealth authority – representation need not mislead the Commonwealth or a Commonwealth authority
Baxter [1988] 1 Qd R 537; Bryce v Curtis [1984] WAR 348; Jacobsen v Piepers [1980] Qd R 448, applied

Bacon v Salamane (1965) 112 CLR 85, considered

Joyce v Grimshaw (2001) 120 A Crim R 338, disapproved

Dutton v O’Shane (2003) 200 ALR 710, not followed

Cheques and Payment Orders Act 1986 (Cth), s 94
Crimes Act 1914 (Cth), s 29D

REPRESENTATION:

Counsel:
Appellant: Ms E Fullerton SC with Mr J Lawrence
Respondent: Mr P Usher

Solicitors:
Appellant: Tony Crane
Respondent: Commonwealth Director of Public Prosecutions

Judgment category classification: A
Judgment ID Number: Mil 04337
Number of pages: 32

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Fong v The Queen [2004] NTCCA 6
No. CA 7 of 2003
(SCC 9929185/20201844 & 20201845)

BETWEEN:

WILLIAM DESMOND FONG
Appellant

AND:

THE QUEEN
Respondent

CORAM: ANGEL, MILDREN & RILEY JJ

REASONS FOR JUDGMENT

(Delivered 8 September 2004)

ANGEL & RILEY JJ:

[1] The facts and circumstances giving rise to this appeal appear in the reasons for judgment of Mildren J and there is no need to repeat them.
[2] As regards count 3, imposing upon the Commonwealth by an untrue representation contrary to s 29B Crimes Act 1914 (Cth), if the decision of the Full Federal Court in Joyce v Grimshaw (2001) 120 A Crim R 338 which was followed in Dutton v O’Shane (2003) 200 ALR 710 at 729 is correct the verdict of guilty on count 3 is unsupportable. In Joyce v Grimshaw the Full Federal Court followed certain obiter dicta of the Full Federal Court in Guillot v Hender (1999) 86 FCR 294; 104 A Crim R 589 in preference to the decision and reasoning of the Queensland Full Court in Jacobsen v Piepers [1980] Qd R 448 and of the Queensland Court of Criminal Appeal in Baxter [1988] 1 Qd R 537, and of Burt CJ in Bryce v Curtis [1984] WAR 348. If those cases correctly construe s 29B Crimes Act 1914 (Cth) the verdict…

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 Fong v The Queen

Details

AGLC: Fong v The Queen [2004] NTCCA 6
Case: [2004] NTCCA 6
Decision Date: 08 September 2004

CaseChat Overview and Summary

The Court of Criminal Appeal of the Northern Territory heard an appeal by William Desmond Fong against his convictions for imposing upon the Commonwealth by an untrue representation contrary to s 29B of the Crimes Act 1914 (Cth) (count 3) and for defrauding the Commonwealth contrary to s 29D of the Crimes Act 1914 (Cth) (count 7). Fong had been acquitted on five other counts of defrauding the Commonwealth but convicted on count 3 and count 7.

The legal issues before the Court were whether the conviction on count 3 was supportable given differing interpretations of s 29B of the Crimes Act 1914, and whether the guilty verdict on count 7 was unreasonable and inconsistent with the acquittal verdicts on the other fraud counts, contrary to the principles established in *MacKenzie v The Queen*.

The Court determined that the correct interpretation of s 29B of the Crimes Act 1914 was that an offence could be committed even if the misrepresentation was not made directly to the Commonwealth or a Commonwealth authority, and even if the Commonwealth was not actually misled. Applying this interpretation, the Court affirmed Fong's conviction on count 3. Regarding count 7, the Court found that the jury's acquittal on the other fraud counts indicated they were not satisfied beyond reasonable doubt that Fong knew the claims were false. The Court concluded that the evidence, particularly the telephone calls from the Australian Taxation Office, did not provide a sufficient basis to distinguish the conduct relating to count 7 from that of the acquitted counts, rendering the guilty verdict unreasonable and an affront to logic.

Consequently, the Court dismissed the appeal against the conviction on count 3, but allowed the appeal against the conviction on count 7, setting aside the verdict and entering a verdict of acquittal. The matter was remitted to the trial judge for resentencing on count 3.

Orders