CITATION: Loone and Loone v Tasmania [2008] TASSC 7
PARTIES: LOONE, Peter John LOONE, Malcolm James v STATE OF TASMANIA (THE)
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS) JURISDICTION: APPELLATE FILE NO/S: CCA 9/2007 DELIVERED ON: 25 February 2008 DELIVERED AT: Hobart HEARING DATES: 14 August, 15 November 2007 JUDGMENT OF: Underwood CJ, Slicer and Evans JJ
CATCHWORDS:
Criminal Law – Appeal and new trial and inquiry after conviction – Particular grounds – Unreasonable or unsupportable verdict – Where appeal allowed – Dishonestly acquiring a financial advantage – Elements in crime – No evidence of pleaded deception.
Criminal Law – Appeal and new trial and inquiry after conviction – Practice after criminal appeal legislation – Power to order new trial or quash conviction and direct entry of judgment of acquittal – Particular cases – New trial granted – When verdicts set aside on ground of unsafe or unsatisfactory.
Criminal Code (Tas), s404(1). Gipp v R (1998) 194 CLR 106, applied. Giam v R (1999) A Crim R 416; Cheatley v R [1981] Tas SR 123, referred to. Aust Dig Criminal Law [1029]
REPRESENTATION:
Counsel: Appellants: G A Richardson Respondent: K Brown Solicitors: Appellant: G A Richardson Respondent: Director of Public Prosecutions
Judgment Number: [2008] TASSC 7 Number of Paragraphs: 105
Serial No 7/2008 File No CCA 9/2007
PETER JOHN LOONE and MALCOLM JAMES LOONE v THE STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD CJ (Dissenting in part) SLICER J EVANS J 25 February 2008
Order of the Court:
In the case of Peter John Loone, the convictions on counts 3, 4 and 6 be quashed and there be a new trial of those counts in the indictment.
In the case of Malcolm James Loone, the convictions on counts 3 and 4 be quashed and there be a new trial of those counts in the indictment.
Serial No 7/2008 File No CCA 9/2007
PETER JOHN LOONE and MALCOLM JAMES LOONE v THE STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD CJ 25 February 2008
An introduction
The appellants are brothers. Mr Peter Loone is the younger of the two. They were both employed by Holymans Limited, a transport company. In 1999 Patrick Corporation purchased the Holyman group of companies, including one which was subsequently renamed Patrick Tasmania.
The appellants were employees of Holymans Limited at the time of the takeover. After the takeover they were both employed by Patrick Tasmania, Mr Peter Loone as the company's general manager and Mr Malcolm Loone as its national purchasing officer.
The appellants were arraigned upon an indictment that charged them both with 12 counts of dishonestly obtaining a financial advantage. The complainant on count 1 was Holyman Limited. The pleading alleged that the crime was committed on 28 September 1999. The complainant on the remaining eleven counts was "Patrick's Tasmania Ltd" [sic]. The…
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.
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Loone v Tasmania [2008] TASSC 7
Case
[2008] TASSC 7
Decision Date
CaseChat Overview and Summary
The appellant, Loone, was convicted by a jury in the Supreme Court of Tasmania of dishonestly acquiring a financial advantage. Loone appealed against his conviction on the grounds that the verdict was unreasonable or unsupportable, primarily arguing that there was no evidence to support the element of deception as pleaded. The Court of Criminal Appeal was required to determine whether the jury's verdict was based on evidence that met the legal criteria for the offence of dishonestly acquiring a financial advantage, specifically focusing on whether the deception element was proven.
The Court of Criminal Appeal examined the evidence presented in the case to determine if it supported the jury's conclusion that the appellant had dishonestly acquired a financial advantage through deception. The court assessed whether the prosecution had established the essential element of deception, which was a crucial component of the offence. The court found that there was insufficient evidence to support the jury's finding that the deception element had been proven, leading to the conclusion that the verdict was unreasonable or unsupportable.
Consequently, the Court of Criminal Appeal allowed the appeal, quashed the conviction, and ordered a new trial. The court held that the absence of evidence to prove the deception element rendered the conviction unsafe and unsatisfactory, necessitating a fresh determination of the appellant's guilt or innocence. The court emphasised the importance of ensuring that all elements of a criminal offence are supported by evidence before a jury can return a guilty verdict.