Michell v The Queen
[1990] TASSC 27
•28 June 1990
Serial No 21/1990
List "A"
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Michell v R [1990] TASSC 27; A21/1990
PARTIES: MICHELL, John
v
R
FILE NO/S: CCA 233/1985
DELIVERED ON: 28 June 1990
DELIVERED AT: Hobart
JUDGMENT OF: Green CJ, Neasey and Wright JJ
Judgment Number: A21/1990
Number of paragraphs: 36
Serial No 21/1990
List "A"
File No CCA 233/1985
JOHN MICHELL v THE QUEEN
REASONS FOR JUDGMENT GREEN CJ
NEASEY J
WRIGHT J
28 June 2009
ORDERS OF THE COURT
Appeal dismissed.
Application for leave to appeal against sentence refused.
Serial No 21/1990
List "A"
File No CCA 233/1985
JOHN MICHELL v THE QUEEN
REASONS FOR JUDGMENT GREEN CJ
28 June 1990
This is an appeal against the appellant's conviction upon one count of obtaining goods by a false pretence and an application for leave to appeal against sentence. The particulars of the charge were as follows:
"JOHN MICHELL at Launceston in Tasmania on or about the 2nd day of July, 1985 with intent to defraud induced David John Dillon to deliver to persons unknown a quantity of seafood and a quantity of peas the property of Tas. Crays Pty Ltd by falsely pretending to David John Dillon that he had arranged for genuine buyers to purchase the seafood and peas, that premises situated at 188–190 Wellington Street, Launceston were occupied and that a business involving the sale of fish had recently opened at that address and that a cheque No. 154517 drawn on the Collins Street, Hobart Branch of the Savings Bank of Tasmania in the sum of $10,362.40 was a good and valid order for the amount named therein."
The only representation upon which it would have been open to the jury to find the charge proved was that the accused falsely pretended "to David John Dillon that he had arranged for genuine buyers to purchase the seafood and peas".
In essence the Crown case was that the appellant had been appointed by the company as a sales representative in the northern part of Tasmania and that in that capacity on 2 July 1985 the appellant introduced Mr Dillon to a number of purchasers of the company's products. The last introduction was to two men who took delivery of the property the subject of the indictment and paid by a cheque which it turned out had been stolen. The Crown alleged that the appellant was a party to a fraudulent scheme and the jury were asked to infer that by his conduct the appellant had represented that the two persons were genuine purchasers when to his knowledge they were not genuine purchasers but persons who intended to take the goods without paying for them.
I turn to the grounds of appeal which were argued before us.
Ground 2
"HIS Honour the Trial Judge erred in law in directing the jury that the Appellant could be convicted on the basis of a false representation which included the future conduct of other persons."
The false pretence alleged in the indictment was that the appellant "had arranged for genuine buyers to purchase the seafood and peas". Having given directions as to the elements of the crime of false pretences the learned trial judge said in the course of his summing up to the jury:—
"Do you feel confident enough to be able to infer from all this evidence that there was in fact a representation made by the accused to David Dillon, that he had arranged for genuine buyers to purchase the seafood and these men at Neptune were the men. Are you satisfied of that beyond reasonable doubt?
It is not sufficient for you to be satisfied beyond reasonable doubt that something dishonest was being perpetrated by the accused. It is not sufficient that you be satisfied beyond reasonable doubt that he was acting fraudulently and dishonestly. You have to be satisfied of these elements of the crime and one of them is you have to be satisfied that he did in fact make a false representation, one of the false representations set out in the Indictment, to David Dillon.
You also of course have to be satisfied that if he had that representation it was false, you have to be satisfied beyond reasonable doubt that those men were not genuine buyers and by genuine buyers, I take those words to mean genuine tradesmen and not criminals who were seeking to obtain goods without having to pay for them. Intentionally doing that, that's how I interpret that expression."
In my opinion there was no risk that the jury might have understood the allegation in the indictment or his Honour's summing up as suggesting that the case against the accused was that he had made a false representation about the future conduct of anyone. The effect of the above direction when considered in conjunction with the direction which his Honour had previously given that "the law is that it has to be a false representation of a fact, of an existing fact, of a state of affairs that exists at the moment and a promise that something will occur in the future is not sufficient" was that the jury would have understood that the appellant could only be convicted if they were satisfied that he falsely pretended that he had made an arrangement with genuine buyers–i.e. men who at the time that they were introduced had an intention to buy the goods. That was a misrepresentation about an existing state of affairs not about future conduct.
I would reject this ground on the basis that the learned trial judge did not give the direction alleged in this ground and there was no occasion to give a negative direction to the effect that a statement about future conduct would not constitute a false pretence.
Ground 3
"HIS Honour the Trial Judge erred in law in failing to instruct the jury concerning the weight to be given to the purported notes of Constable Hinds tendered under Section 81B of the Evidence Act 1910."
There is no rule of law or rule of practice so well entrenched that it can be regarded as a rule of law which requires a trial judge to give such a direction in every case. Counsel for the appellant referred to the danger referred to by Gibbs J in Driscoll v The Queen (1977) 137 CLR 517 at 542 "that the jury may erroneously regard the written record as in some way strengthening or corroborating the oral testimony". But it must be borne in mind that the observations of Gibbs J related to a document which went into the jury room and to the issue of how a trial judge should exercise his discretion to exclude evidence. In this case there was no attack upon the trial judge's exercise of his discretion not to exclude the document and by virtue of s81P of the Evidence Act it did not go into the jury room. In any event the learned trial judge in this case did remind the jury that the accused had not "independently endorsed" or signed the notes and directed the jury that the "authenticity and correctness" of the notes depended upon the oral evidence of the police witnesses. I note further that it appears that at the trial counsel did not attach any significance to the fact that no further direction was given about the weight to be given to the evidence about the notes as they made no submissions about the matter at the end of the summing up although they both made submissions about other matters.
I would reject this ground.
Ground 4
"THE sentence imposed on the Appellant was manifestly excessive."
The applicant was sentenced to 12 months' imprisonment. As well the applicant had before the trial spent some weeks in respect of this charge and some 3 months in custody in respect of this charge and other charges.
At the time of the commission of the crime the appellant was aged 33 years and had a number of prior convictions for offences against property. In May 1986 the appellant's trial upon this charge was aborted and shortly thereafter having been released on bail he absconded. He was eventually tried and sentenced in December 1989.
Counsel for the appellant submitted that the learned trial judge fell into error by failing to give sufficient weight to the fact that the appellant had rehabilitated himself during the period during which he was at large after he had absconded. Counsel for the respondent submitted that little or no weight should be given to the accused's rehabilitation during that period and cited a decision of the Alberta Court of Appeal in R v Thompson (1989) 50 CCC (3d) 126. I reject both submissions.
In Thompson's case the Court said at pp130 and 131:
"Canadian appellate courts occasionally meet cases where someone is sentenced for an old crime which he has evaded for years. For the most part they affirm very long sentences, giving little or no weight to the convict's intervening rehabilitation while at large: see R v Duguid (1953), 107 CCC 310, 17 CR 370, [1954] OWN 34 (Ont CA), and R v Miller (1972), 8 CCC (2d) 97 (Man CA). ...
Here two sentencing principles appear to conflict: later rehabilitation as mitigation, versus not rewarding a criminal for his own wrong. ...
The English Court of Appeal stressed how wrong it would be to remove any of the natural consequences of skipping bail, let alone reward such flight. ..."
I agree with respect that ensuring that an accused person does not gain an advantage or does not appear to have gained an advantage as a result of the fact that he has absconded is a policy consideration which is capable of being relevant to the exercise of the sentence discretion. However if in a particular case the question of the likelihood of the accused re–offending is relevant to the exercise of the sentencing discretion I am not aware of any principle which would justify the Court refusing to have regard to the highly relevant fact that the accused has rehabilitated himself since the commission of the crime merely because that rehabilitation took place during a period when he had absconded. The fact that an accused person has rehabilitated himself remains a relevant fact regardless of the circumstances of the rehabilitation.
However in this case I do not think that the learned trial judge was required to give much weight to this consideration when one bears in mind the need for a sentence of general deterrence and the fact that the appellant committed another crime whilst he was at large.
The appellant was a party to a fraudulent scheme involving property valued at more than $10,000. The crime involved a degree of planning and deliberation in its execution and the appellant committed it by taking advantage of the fact that he was the company's agent. In view of these circumstances and the accused's record of prior convictions it could not be said that a sentence of imprisonment was inappropriate or that the sentence which was imposed could be characterised as manifestly excessive.
I would dismiss the appeal against conviction and refuse the application for leave to appeal against sentence.
Serial No 21/1990
List "A"
File No CCA 233/1985
JOHN MICHELL v THE QUEEN
REASONS FOR JUDGMENT NEASEY J
28 June 1990
I agree with the reasons and conclusion of Wright J in this matter.
Serial No 21/1990
List "A"
File No CCA 233/1985
JOHN MICHELL v THE QUEEN
REASONS FOR JUDGMENT WRIGHT J
28 June 1990
On 6 December 1988 the appellant was convicted of obtaining goods by a false pretence at Launceston on or about 2 July 1985. The Crown case was that the appellant had become a selling agent for the products of Tas Crays Pty Ltd, his role being to take orders for and introduce customers to the company in Launceston. He was not an employee of the company in any accepted sense of the word and was remunerated solely on a commission basis.
On 2 July 1985 he made arrangements for some sales in Launceston. He accompanied David John Dillon and another employee of the company on a round of deliveries during which goods were delivered to customers and payments were then and there made by those customers to Mr Dillon. The final transaction was the largest. The appellant directed Mr Dillon to premises in Wellington Street which had formerly operated as a seafood outlet where they were met by two men. Mr Dillon discussed the proposed transaction with the two men and they inspected the goods consisting of seafood and peas. They agreed to purchase the same for a price of $10,362.40. The goods were unloaded from Tas Crays Pty Ltd's van and payment was made by cheque to Mr Dillon. However, Mr Dillon was suspicious and went with the appellant to the appellant's home where he made a phone call which established that the cheque had been stolen. Mr Dillon returned to the premises where the goods had been left and found, that with the exception of one box of prawns, the merchandise was still there.
The appellant was interviewed by police and allegedly admitted his involvement in the proposed transaction saying inter alia, "it was my part to act out the con". The two men who had presented the worthless cheque were not apprehended and their identity was not discovered.
The appellant was charged with obtaining goods by a false pretence contrary to s250 of the Criminal Code, particulars of which were as follows:
"John Michell at Launceston in Tasmania on or about the 2nd day of July 1985 with intent to defraud induced David John Dillon to deliver to persons unknown a quantity of seafood and a quantity of peas the property of Tas Crays Pty Ltd by falsely pretending to David John Dillon that he had arranged for genuine buyers to purchase the seafood and peas, that premises situated at 188 – 190 Wellington Street Launceston were occupied and that a business involving the sale of fish had recently opened at that address and that a cheque No 154517 drawn on the Collins Street Hobart branch of the Savings Bank of Tasmania in the sum of $10,362.40 was a good and valid order for the amount named therein".
There was little, if any, evidence to sustain the allegations made in the latter part of these particulars but there was material from which the jury could properly infer that the appellant had falsely pretended to Mr Dillon that he had arranged for genuine buyers to purchase the seafood and peas. The learned trial judge left the case to the jury on the basis that this was the only proper foundation upon which they could convict the appellant.
The appellant appeals against conviction upon a number of grounds. Ground 1 was abandoned. Ground 2 is in the following terms:
"His Honour the trial judge erred in law in directing the jury that the appellant could be convicted on the basis of a false representation which included the future conduct of other persons."
It is beyond dispute that a promise to do something in the future is not a pretence for the purposes of s250 of the Criminal Code. However, in this case the false representation alleged by the Crown was not of this quality and in my opinion, it was unnecessary and undesirable for the learned trial judge to complicate the issues at the trial by introducing material of the kind now contended for by the appellant. In this case the conduct amounting to the false pretence by the appellant was the claim which he had allegedly made to Mr Dillon that he had arranged for genuine buyers to purchase the goods. The fact alleged to be false was that the buyers were genuine and that the appellant knew that to be a false representation at the relevant time.
Having examined the transcript of his Honour's directions to the jury I am satisfied that he correctly and adequately instructed them as to the material elements of the crime alleged and that this ground of appeal cannot succeed.
Ground 3 of the appeal was that:
"His Honour the trial judge erred in law in failing to instruct the jury concerning the weight to be given to the purported notes of Constable Hinds tendered under s81B of the Evidence Act 1910."
This complaint relates to notes of an alleged conversation between Constable Hinds and the appellant which were tendered at the conclusion of Constable Hinds' evidence–in–chief in accordance with s81B of the Evidence Act 1910. It was not claimed that these notes had been acknowledged by the accused as correct, nor that he had been invited to sign the notes. The court has both a statutory and common law discretion to exclude such evidence in a criminal trial (see s81H) but no complaint is made that the learned trial judge's discretion was wrongly exercised. Any written material admitted in a criminal trial pursuant to s81B must be read out at the trial but may not go to the jury unless the judge is satisfied that the contents are so complex that the document could not reasonably be comprehended by the jury without reading it for themselves (see s81P). Constable Hinds' notes were read out at the trial but did not go to the jury. In the course of ruling upon the admissibility of this material, the learned trial judge said:
"I do not agree that by admitting it into evidence the document will be elevated in its status beyond that which it has and should have, and in due course I will warn the jury that its authenticity depends on whether or not the oral evidence of the police officers is to be accepted."
Subsequently, in the jury's presence, when admitting the document, the learned trial judge said:
"Ladies and gentlemen you have heard evidence from Detective 1/C Constable Hinds here that when he and Sergeant Powell were in an interview room with the accused and there was a conversation between Sergeant Powell and the accused 1/C Constable Hinds said he made notes of that conversation and these notes are now going to be read to you by Mr Chilcott. They will not go with you to the jury room it's a case of an exhibit which does not go to the jury to the jury room which is unusual but that is because the High Court of Australia has ruled that unless the accused has in some way independently endorsed or signed the notes as correct then they are not to be given to the jury to go into the jury room and really the authenticity of them – the notes – the correctness of them depends of course on the oral evidence of the police officers and is to be determined in that way I will say more to you about them later when just before you retire to consider your verdict in any event Mr Chilcott will read them to you now."
In fact his Honour did not give further directions on this matter to the jury in the course of his summing up. There is no requirement in the Evidence Act 1910 that a document admitted under s81B is to be the subject of comment to the jury by the trial judge in the course of his summing up. It was submitted by counsel for the appellant that such a course has been followed with such consistency by judges of this Court in the past, that it should be regarded as a rule of practice amounting to a rule of law. In my own experience, any comment as to the weight to be accorded to a s81B document varies from judge to judge and trial to trial and thus I reject this submission. It was not contended that there were any special features of this trial which rendered the appellant's conviction unsafe or unsatisfactory in the absence of such a comment by the trial judge (compare Carr v The Queen (1988) 165 CLR 314). There can be no doubt that the provisions contained in Division 7 of the Evidence Act 1910 modifying the hearsay rule, have significantly affected the admissibility of evidence given in criminal trials in this State. Some of these effects have been discussed in recent decisions of the Court of Criminal Appeal (see for example Jones v The Queen 47/1988 and Gardenal–Williams v The Queen [1989] Tas R 62). Whilst these legislative provisions exist and are capable of application through the process of statutory interpretation, there is little scope or justification for applying or extending the jurisprudential approach which is to be seen in cases such as Driscoll v The Queen (1977) 137 CLR 517. It is worth noting of course, that one of the principal concerns expressed by the High Court in Driscoll, namely the possibility that a jury may attach undue weight and corroborative value to a written document, does not really arise in the present case because of the restrictive provisions of s81P. Counsel for the appellant submitted that notwithstanding this distinction, the fact that the document in question was read aloud to the jury by Crown counsel would have the effect of impressing it with an authenticity to which it was not necessarily entitled. This does not necessarily follow and in my opinion there was nothing in the way in which this case was conducted which would lead me to that conclusion. In my opinion, ground 3 of the appeal is not made out.
Ground 4 contains an application for leave to appeal against sentence in the following terms:
"The sentence imposed on the appellant was manifestly excessive."
It is not submitted that the learned trial judge misdirected himself in law, but it is suggested that having regard to the circumstances of the age, antecedents and prior record of the appellant, the sentence of 12 months' imprisonment imposed by him was excessive. Complaint was also made that the learned trial judge had failed to acknowledge any specific credit that he was giving to the appellant for a period spent in custody prior to sentence. In my opinion, neither of these factors vitiates the sentence imposed. The appellant is 37 years of age, and has a number of previous convictions for offences involving dishonesty. He played a significant role in a fraudulent scheme involving goods of a substantial value.
The learned trial judge took into account that the appellant was in "a position of trust as an agent of (the) company" and that he betrayed that trust but there is no reason to suppose that he gave undue precedence to this aspect of the matter or regarded the appellant's position as in any way comparable to that of an employee of long standing who has been entrusted with the responsibility of handling large financial transactions on his own.
It was submitted that the need for a deterrent sentence had diminished or disappeared because, although the appellant's trial had been delayed for several years because he had absconded from his bail, he had, during this period, undergone a process of rehabilitation and self redemption. In my opinion this argument overlooks two important factors.
Firstly, it is trite to say that deterrence in sentencing is not confined to the individual. It is well recognised that for the purpose of general deterrence, planned fraudulent schemes of the kind now being discussed frequently justify a custodial sentence irrespective of the personal attributes of the individual offender.
Secondly, as has recently been pointed out in Reg v Thompson (1989) 50 CCC (3d) 126, an offender who absconds and "unilaterally seize(s) for himself chances for reform denied to accused persons who either obey conditions of their bail or who cannot raise bail" should not be seen as achieving some advantage thereby. "A light sentence ... would make it an attractive business proposition for others on bail to flee. It would tend to remove the risk for them." Therefore whilst the fact of reform (if indeed it is a genuine reform) cannot be overlooked it must usually be subordinated to the principle that absconding offenders cannot be seen to have gained a reduction in their sentence which they would not have achieved had they complied with their obligations and answered their bail.
In my opinion this ground is not sustained. I would dismiss the appeal and refuse leave to appeal against sentence.
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