Glynn, P.D. v The Queen

[1985] FCA 531

53'

IN THE FEDERAL COURT

)

OF AUSTRALIA

)

NORTHERN TERRITORY

)

DISTRICT REGISTRY

)

GENERAL DIVISION

)

ON APPEAL FROM THE SUPREME COURT

OF THE NORTHERN TERRITORY OF

AUSTRALIA

B E T W E E N :

PAUL DAMIEN GLYNN

Applicant

and

THE O U E E N

Respondent

CORAM:	Bowen C.J.	, Fox and Toohey	JJ.
16 August	1985

M TEMPORE REASONS FOR JUDGMENT

BOWEN C.J.

I will ask Mr. Justice Toohey to give the first

judgment.

TOOHEY J.

Mr. Tiffin has said all that can be said on behalf of

the appellant, but in my view the appeal should be dismissed. The

appellant was convlcted on two counts, the first of fraudulently

appropriating property contrary to s.206 of the Criminal Law

2 .

Consolidation Act, an offence that was particularlsed In these terms :

"CThat he1 between 1 May 1982 and 11 March 1983. at

Tennant Creek in the Northern Territory of Australia,

being Director a of Home Industrial Hardware

Pty. Lmited, did fraudulently take or apply for his

own use or purpose and other than the use or purpose of

the said company's property, namely, a Freeway 24 foot

Caravan, serial number FG224-25, the property	of the
sald Home Industrial Hardware Pty. Llmzted."

The second count was one of falsifying company documents contrary

to 5.208 of the Crimlnal Law Consolldation	Act.	It was
particularised thus:

"CThat he1 between 1 May 1982 and 6 February 1983 at Tennant Creek in the Northern Territory of Australla,

being a director of Home Industrlal Hardware Pty.

Limited, with intent to defraud, caused to be made

false entries In a book of account, namely a receipt

book belonging to the said Home Industrial Hardware

Pty. Llmlted. "

Several grounds of appeal have been abandoned or not argued and

the appeal now focuses on the proposition that the trial judge

erred In a particular direction to the Jury. The passages

complalned of appear on p.202 of the appeal book and In partlcular

in the following remarks by the trial judge.

If the caravan was bousht for Glynn In the first

place, and it was simply a matter of convenience that Home Industrlal Hardware bank account bank money was

used. then Glynn owned (sic) Home Industrlal Hardware

$6000 straicrht away. as soon as the cheque had been

drawn. Now, there 1 s no evldence that thls has ever

been repald, either by the loan account - Glynn's loan

account to the company being debited,	or repaid In some
other way.

3 .

/

Later his Honour said:

You would think that - although Glynn doesn't have

to prove anything if he doesn't want to, it's up to the

Crown to prove his guilt, as Mr Roberts quite fairly

puts to you - but you would think it would be In

Glynn's interest if there were any evidence at all,

either of a debit to his loan account or a payment of

$6000 in some other way to Home Industrial Hardware,

that this would have been produced for you."

The remarks of the trial judge must of course be read In the

context of his entire charge to the jury. So read, I am of the opinion that there was no misdirection. But even if one isolates

the particular paragraphs complained of, I am not persuaded that

there was a misdirection by his Honour. His Honour made some

comments, perhaps of a strong nature, but in no way did they shift

the onus of proof from the Crown to the appellant. Furthermore,

there was nothing in the interview between the appellant and the

investigating pollce officer, so far as I am aware, or in any

cross-examination of Crown witnesses, or in any evidence adduced on behalf of the appellant at the trial, that pointed to an issue

that the $6000, being the purchase price paid for

the caravan. was

paid in reduction of the appellant's loan account wlth the

company.

mat the appellant complains of is essentially proof of

a negative and of a failure by the Crown to prove a negative and

a matter very much within the knowledge of the appellant. In

those circumstances his Honour's remarks were not inappropriate,

nor did they constitute a misdirection.

4.

Counsel for the appellant submitted that the Crown had

not established on the first count that, at the relevant time, the

caravan was the property of the company and not of the appellant.

There was a further submission that by failing to adduce evldence

of the state of the loan account the Crown failed to establish

fraudulent intent. But there was evidence that the caravan was

the property of the company, evidence sufficient to ~ustify a

reasonable jury reaching that conclusion. There was also evidence

that Justified the jury finding an intent to defraud. In the

complete absence of any suggestion at the trial that there were

any relevant documents in existence or that the loan account had

been reduced to offset money paid on behalf of the appellant, I am

of the opinion that there was evidence on which the appellant

might properly be convicted and that nothing said by the trial

judge misdirected the jury in its deliberations.

For those reasons I am of the oplnion that the appeal

should be dismlssed. What I have said applies equally to the

challenge made in respect of the convictlon on count 1

and count 2 .

B O W C.J.

I agree.

I agree.

5.

BOWEN C.J.

The order of the court will be that the appeal be

dismissed.