McMunn v The Queen - [2007] VSCA 149

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 173 of 2005

JOHN THOMAS McMUNN

THE QUEEN

(Commonwealth)

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JUDGES:	ASHLEY and KELLAM JJA and KAYE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 July 2007
DATE OF JUDGMENT:	2 August 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 149

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Criminal law – Conviction on multiple counts of defrauding the Commonwealth and dishonestly obtaining a financial advantage by deception – Appeal against conviction – Alleged miscarriage of justice by reason of failure of Crown to call witnesses, by a change in the Crown case during the trial and by counsel for the Crown and the judge misstating the nature of the arrangements to which the applicant and taxpayer investors were parties – Whether trial judge erred by admitting into evidence record of examination of applicant by employees of the Australian Taxation Office pursuant to s 264(1)(b) of the Income Tax Assessment Act 1936 (Cth) – Whether trial judge erred by admitting into evidence Position Paper prepared by the Australian Taxation Office – Whether conduct of applicant’s counsel at trial so deficient as to cause a miscarriage of justice – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
Applicant	In person
Respondent	Ms R E Carlin	Commonwealth Director of Public Prosecutions

ASHLEY JA:

John McMunn seeks leave to appeal against his conviction on 16 counts of defrauding the Commonwealth[1] contrary to the now-repealed s 29D of the Crimes Act 1914 (Cth) (“the Commonwealth Act”) and 16 counts of dishonestly obtaining a financial advantage by deception[2] contrary to s 82 of the Crimes Act 1958 (Vic) (“the State Act”).[3]
[1]Counts 1, 3, 5, 9, 11, 13, 15, 17, 21, 23, 25, 27, 29, 31, 33 and 35. The maximum penalty for each offence was 1,000 penalty units or 10 years’ imprisonment, or both.
[2]Counts 2, 4, 6, 10, 12, 14, 16, 18, 22, 24, 26, 28, 30, 32, 34 and 36. The maximum penalty for each offence was 10 years’ imprisonment.

In respect of his convictions on the counts referable to the State Act (“the State offences”), the judge imposed a total effective sentence of five years and four months’ imprisonment, and fixed a non-parole period of three years and six months. In respect of the offences referable to the Commonwealth Act (“the Commonwealth offences”), the judge imposed a period of two years’ imprisonment commencing on 5 May 2007, and ordered that the applicant then be released on a 12 month recognisance to be of good behaviour. The applicant sought leave to appeal against sentence. But he applied for leave to file a Notice of Abandonment at the hearing, and I am of opinion that the Court should grant the leave sought.

I add this for sake of completeness. At the conclusion of oral submissions, the Court requested written submissions from both parties relating to the propriety of the form of the sentence. In response to submissions made by the respondent, which in my opinion established such propriety, the applicant provided a short…

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 McMunn v The Queen

Details

AGLC: McMunn v The Queen [2007] VSCA 149
Case: [2007] VSCA 149
Decision Date: 2 August 2007

CaseChat Overview and Summary

McMunn was convicted on multiple counts of defrauding the Commonwealth and dishonestly obtaining a financial advantage by deception. The applicant appealed against his conviction, alleging a miscarriage of justice due to the Crown's failure to call certain witnesses, a shift in the Crown's case during the trial, and alleged misstatements by the Crown's counsel and the judge regarding the nature of the arrangements between the applicant and taxpayer investors. The central issues before the court were whether the trial judge erred in admitting specific pieces of evidence and whether the conduct of the applicant's counsel during the trial was deficient to the point of causing a miscarriage of justice.

The court held that the trial judge did not err in admitting the record of examination of the applicant by the Australian Taxation Office employees under section 264(1)(b) of the Income Tax Assessment Act 1936 (Cth), as the record was relevant and probative of the applicant's state of mind and intent. The court also found that the Position Paper prepared by the Australian Taxation Office was admissible as it was relevant to the understanding of the arrangements in question. Additionally, the court determined that the conduct of the applicant's counsel did not reach the level of deficiency that would cause a miscarriage of justice. Consequently, the appeal was dismissed.

The court's reasoning was grounded in a thorough examination of the evidence and the legal standards applicable to the admissibility of evidence and the conduct of legal counsel. The court found no basis to overturn the conviction, as the trial was conducted fairly and in accordance with legal principles. The evidence presented was sufficient to support the jury's verdict, and there was no miscarriage of justice that would warrant a new trial. The applicant's appeal was thus unsuccessful.

Orders