Franke v The Queen - [2002] TASSC 96

[2002] TASSC 96

CITATION: Franke v R [2002] TASSC 96

PARTIES:  FRANKE, Anna
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 76/2002
DELIVERED ON:  13 November 2002
DELIVERED AT:  Hobart
HEARING DATES:  5 November 2002
JUDGMENT OF:  Underwood, Slicer and Evans JJ

CATCHWORDS

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Particular grounds - Unreasonable or insupportable verdict - Where appeal dismissed - Whether unsafe and unsatisfactory.

M v R (1994) 181 CLR 487; Kelly v O’Sullivan (1994) 4 Tas R 446, followed.

Aust Dig Criminal Law [969]

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 - Property offences - Receiving - Whether sentence manifestly excessive.

Aust Dig Criminal Law[1012]

REPRESENTATION:

Counsel:
             Appellant:  In person
             Respondent:  J Ransom
Solicitors:
             Respondent:  Director of Public Prosecutions

Judgment Number: [2002] TASSC 96
Number of Paragraphs: 33

Serial No 96/2002
File No CCA 76/2002

ANNA FRANKE v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD J
SLICER J
EVANS J
13 November 2002

Order of the Court

Appeal against conviction dismissed.

Application to extend time to appeal against sentence dismissed.

Serial No 96/2002
File No CCA 76/2002

ANNA FRANKE v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD J
SLICER J
EVANS J
13 November 2002

The appellant was sentenced to a term of imprisonment for a period of nine months following her conviction of the crime of receiving stolen property, contrary to the Criminal Code, s258(1). Her appeal against conviction is on the ground that:

"The conviction is unsafe and unsatisfactory in all the circumstances".

Prosecution case

On 29 August 2001, police went to the appellant's home in Launceston and found a number of woodheaters inside the premises. At the time of attendance, the appellant was in the process of cleaning one of the heaters which were located in the carport. An officer of Housing Tasmania was called to the home and identified, by serial numbers, two of the heaters as having come from Housing Tasmania.

Between April and August 2001, a number of woodheaters had been stolen from unoccupied homes belonging to Housing Tasmania, the period corresponding with the dates stated in the indictment.

The records of Housing Tasmania indicated that during the period April 2000 until August 2001, 17 woodheaters had been stolen from various homes owned by the Department in the Launceston area. Two of the heaters found at the appellant's home matched (by reference to serial numbers) ones stolen and the remaining three were not checked since the investigating officer advised that there was no need to so do.

The heaters were stolen by Mr Ricky Burns, who gave evidence at trial. He told the jury that he had stolen some 18 heaters from Housing Tasmania homes in the Rocherlea and Ravenswood areas of…

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 Franke v The Queen

Details

AGLC: Franke v The Queen [2002] TASSC 96
Case: [2002] TASSC 96
Decision Date: 13 November 2002

CaseChat Overview and Summary

Anna Franke appealed against her conviction for receiving stolen property, arguing that the verdict was unsafe and unsatisfactory. She also sought to extend time to appeal against her sentence. The appeal against conviction was dismissed by Underwood, Slicer, and Evans JJ of the Court of Criminal Appeal in Tasmania. The Court found that the evidence presented at trial, including the testimony of the accomplice and other witnesses, was compelling and supported the jury's verdict. The Court considered that the appellant's knowledge of the stolen nature of the woodheaters was adequately established, and her inconsistent and evasive responses during her police interview could have been regarded by the jury as indicative of guilt. The Court held that the direction given to the jury regarding the requirement of knowledge was appropriate and that the verdict was not unsafe or unsatisfactory. The appellant's application to extend time to appeal against sentence was also dismissed, as the sentence was deemed to be within the permitted range and did not demonstrate error. The Court concluded that the appeal against conviction should be dismissed and the application to extend time to appeal against sentence should be refused.

Orders