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Magnus v R

Magnus v R

Case [2013] VSCA 163 25 July 2013

Criminal Liability

Obtaining financial advantage by deception

Misrepresentation

Unanimity of jury

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0121

TIMOTHY FRANCIS MAGNUS	Appellant
V
THE QUEEN	Respondent

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JUDGE	BUCHANAN, ASHLEY and REDLICH JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	14 May 2013
DATE OF JUDGMENT	25 July 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 163 1st Revision, 25 July 2013, [catchwords]
JUDGMENT APPEALED FROM	[2011] VSC 557 (Justice T Forrest)

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CRIMINAL LAW – Conviction – Obtaining financial advantage by deception – Many charges – Multiple particulars to each charge alleging misrepresentations – Discussion of circumstances in which unanimity direction as to factual foundation of charge is required – Unanimity required – Whether judge failed to direct jury that, in respect of each charge, it must be unanimous that at least one misrepresentation had been materially operative – Whether, as a result of any error or irregularity, there had been a substantial miscarriage of justice – Crimes Act1958 (Vic), ss 82, 81(4) – Appeal dismissed – Observations on Crown inviting bench of three judges not to follow previous decisions of this Court.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr D D Gurvich	Michael J Gleeson & Associates
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA
ASHLEY JA
REDLICH JA:

On 25 August 2011, the appellant, Timothy Francis Magnus, was found guilty after a lengthy trial in the Trial Division of 53 charges of obtaining a financial advantage by deception contrary to s 82 of the Crimes Act 1958 (Vic). On 3 November 2011, the judge imposed a total effective sentence of three years and six months’ imprisonment, with a non-parole period of two years and three months. A declaration was made with respect to pre-sentence detention.[1] Magnus subsequently pleaded guilty to a further 78 charges of obtaining a financial advantage by deception and was sentenced on 13 February 2012.[2] The sentencing judge, who had presided at the earlier trial, found that the further offences, together with the 53 charges on which the appellant had already been convicted, represented one dishonest course of conduct embarked upon by the appellant between December 2005 and April 2007. The judge imposed a total effective sentence of six years six months’ imprisonment with a new non-parole period of two years and nine months’ imprisonment. The new non-parole period took into account the time the appellant had already served in custody.
[1][2011] VSC 557.
[2][2012] VSC 38.

The appellant now appeals by leave against his conviction on the 53 charges on which he was found guilty at trial.

Ground of appeal

There is a single ground of appeal:

The learned trial judge erred in failing to direct the jury that as to each count they had to be unanimous as to the particular statement that was said to be materially misleading.

Circumstances

The sentencing judge described the circumstances of the offending this way:[3]
[3][2011] VSC 557, [3]–[9].

In late 2005, you were working for an organisation known as…

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 Magnus v R

Details

AGLC: Magnus v The Queen [2013] VSCA 163
Case: [2013] VSCA 163
Decision Date: 25 July 2013

CaseChat Overview and Summary

The appellant, Magnus, was convicted by a jury of obtaining financial advantage by deception. The conviction arose from numerous charges, each with multiple particulars alleging misrepresentations. The appeal to the Court focused on the requirement for the jury to be unanimous about the factual foundation of each charge. Specifically, the court examined whether the trial judge correctly directed the jury that, for each charge, they had to be unanimous that at least one misrepresentation was materially operative. The Court held that a unanimity direction was necessary and that the trial judge's failure to provide such a direction constituted a significant irregularity. However, the Court concluded that this irregularity did not result in a substantial miscarriage of justice.

The legal issue before the Court was whether the absence of a proper unanimity direction constituted a substantial miscarriage of justice under the relevant statutory provisions. The Court considered the necessity of a unanimous jury decision on the materiality of the misrepresentations for each charge. It was established that the trial judge's omission in this regard was an error, but the Court had to assess whether this error impacted the overall fairness and accuracy of the trial. The Court concluded that, while the absence of a proper unanimity direction was a serious procedural error, it did not lead to a substantial miscarriage of justice in this instance. The evidence against the appellant was compelling, and the jury's verdict was not reasonably open to doubt, despite the procedural error.

Orders