Mullally v The Queen

[1999] WASCA 263

MULLALLY -v- THE QUEEN [1999] WASCA 263

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 263
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:227/1999	Heard:	12 NOVEMBER 1999
Coram:	HEENAN J	Delivered:	19/11/99
No of pages:	6	Judgment Part:	1 of 1
Result:	Bail refused
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Parties:	PATRICK EDWARD MULLALLY THE QUEEN
Catchwords:	Criminal law and procedure Bail Application pending appeal Substantial part of sentence likely to be served before hearing Prospects of success Exceptional circumstances claimed
Legislation:	Bail Act 1982 Sch 1 Pt C cl 1, cl 3 and cl 4
Case References:	Nil Bernt v The Queen (1994) 70 A Crim R 1 Caratti v The Queen [1999] WASCA 1991 Chamberlain v The Queen [1] (1983) 153 CLR 514 Marotta v The Queen [1999] HCA 4 Tran v The Queen, unreported; SCt of WA (Scott J); Library No 990117; 11 March 1999

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : MULLALLY -v- THE QUEEN [1999] WASCA 263 CORAM : HEENAN J HEARD : 12 NOVEMBER 1999 DELIVERED : 19 NOVEMBER 1999 FILE NO/S : CCA 227 of 1999 BETWEEN : PATRICK EDWARD MULLALLY

Appellant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Bail - Application pending appeal - Substantial part of sentence likely to be served before hearing - Prospects of success - Exceptional circumstances claimed

Legislation:

Bail Act 1982 Sch 1 Pt C cl 1, cl 3 and cl 4

Result:

Bail refused

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Representation:

Counsel:

Appellant : Mr T F Percy QC
Respondent : Mr J MacTaggart

Solicitors:

Appellant : Judith Wickham & Associates
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Bernt v The Queen (1994) 70 A Crim R 1
Caratti v The Queen [1999] WASCA 1991
Chamberlain v The Queen [1] (1983) 153 CLR 514
Marotta v The Queen [1999] HCA 4
Tran v The Queen, unreported; SCt of WA (Scott J); Library No 990117; 11 March 1999

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1 HEENAN J: On 21 October 1999 after a four day trial in the District Court at Perth before her Honour Judge Deane and a jury Patrick Edward Mullally was convicted of stealing $26,678.23. On the following day her Honour sentenced him to imprisonment for two years. Having filed a notice of appeal against conviction he now seeks bail pending hearing of the appeal.

2 The Crown case at the trial can be summarised as follows. For many years Mr Neville Bolger had conducted a transport business under the name of New England Freight Lines. On the advice of his accountant he founded a company, Boltrans Nominees Pty Ltd, of which he and his wife were directors and which took over the business. The company traded under the same business name. In 1992 Mr Bolger suffered a serious injury which prevented him from working. Thereafter the company failed to repay various moneys which it had borrowed. The Commonwealth Bank, its largest creditor, held a charge over its assets. In October 1992 a receiver and manager appointed by the bank took over the affairs of the company pursuant to the charge. During the next month Mr Bolger consulted the appellant, a solicitor conducting his own practice in Subiaco, and instructed him to have the receiver and manager removed as soon as possible.

3 In December 1992 Mr Bolger delivered or sent to the appellant six cheques for various amounts, the sum of which was $26,678.23. Five of the cheques were made out to New England Freight Lines and the sixth to Boltrans Nominees Pty Ltd. The appellant put the cheques into his trust account. During the following year he withdrew the full sum. In July 1994 he informed Mr Bolger that the money had been deducted from the trust account to meet the cost of work which he had done. In May 1997 he was charged with the offence for which he is now in prison.

4 The substance of the defence case at trial was that the money was held on trust as security for costs, that Mr Bolger had authorised its expenditure and that the appellant had an honest claim of right to the money. The appellant did not give evidence.

5 The notice of appeal contains 17 grounds. On the present application, in arguing that the appeal has strong prospects of success, counsel for the appellant relied upon only four of them.

6 The first of the grounds relied on relates to the copy of an unsigned letter dated 8 December 1992 addressed to "The Delegate of the Secretary, Department for Social Security". After leading evidence from

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Mr Bolger that he was on a disability pension while incapacitated by his injury counsel for the Crown put the document to him. Despite objection by defence counsel her Honour admitted it into evidence, presumably on the basis that the appellant was its author. The document contains the following passages:

"Boltrans Nominees Pty Ltd is not in receipt of any funds, as all of these funds are claimed legally, by the Receiver on behalf of the Commonwealth Bank.

The debt owing to the Commonwealth Bank is substantially in excess of any moneys to be received by the company and, accordingly, there will be no distribution to either the company or to Mr Bolger.

…..

As (sic) present and for the foreseeable future, Mr Bolger will not be in receipt of any distribution or funds of any sought (sic) whatsoever, or any property from his company."


If the appellant were the author of the letter - whether or not it was a draft and whether or not it was engrossed, signed and sent - its contents would show that at the time when he received the money he well knew that it was not available for payment of his costs. As his counsel observed on the hearing of the present application, it was an exhibit which the members of the jury had with them when they retired, which they could read and read again and, therefore, was bound to carry considerable weight with them in their deliberations.

7 On the face of the document itself it was prepared by the appellant: it bears his initials as well as the name of his firm. As it was a small firm and as Mr Bolger had consulted him personally, perhaps one could infer that the appellant had drafted the document. But Mr Bolger could not identify it and there was no other evidence as to its source. On the hearing of the appeal the Court might well find that it should not have been admitted into evidence. Nevertheless, its exclusion would not necessarily have made a difference. Its contents show merely that the appellant knew what any solicitor must have known: that is, that the money was not available for payment of his costs, whether or not Mr Bolger had authorised its use for that purpose.

8 The second ground on which counsel relied relates to Mr Peter Whyte, a solicitor who was employed by the appellant from

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October 1993 onwards and took over his practice in approximately April 1994. Her Honour ruled that defence counsel should not ask Mr Whyte to identify a page of a schedule which he had prepared in July 1994 from information on files left in the office by the appellant and which described $26,563.28 (sic) as received from Mr Bolger on 9 December 1992 as "security for costs". The ruling was made at the request of counsel for the Crown. I think it is sufficient now to say that the ruling does not seem to have had any substantial bearing on the case.

9 The third ground on which counsel relied relates to the allegation in the indictment that the money was "the property of Boltrans Nominees Pty Ltd, receiver and manager appointed, trading as New England Freight Lines". He submitted that in summing up her Honour had oversimplified the position of Mr and Mrs Bolger in relation to their company. My impression, admittedly derived from only a superficial reading of the transcript, is that the evidence overwhelmingly supports the allegation as to the ownership of the money and as to the position of Mr and Mrs Bolger in respect of the company. My tentative view is that her Honour's direction in that regard was accurate and ample.

10 As to the fourth ground, counsel criticised two aspects of her Honour's direction on the application of s 22 of TheCriminal Code. The first aspect was her Honour's use of the word "genuine" rather than "honest" when speaking of the absence of criminal responsibility for an act done in respect of property in the exercise of an honest claim of right. On one occasion, for example, her Honour said, "The prosecution must satisfy you beyond reasonable doubt that the accused did not believe he had a genuine right or did not believe he had a genuine belief that he was entitled to the money taken from the Bolgers' trust account". As the dictionary shows, "honest" and "genuine" have different meanings. The former means "real", "true" or "not counterfeit", commonly referring to articles or things, whereas the latter means "fair", "straightforward" or "free from fraud", commonly referring to persons, beliefs or feelings. But the meanings sometimes overlap and, although counsel and judges might well find the topic an interesting one, it is unlikely that the use of one word for the other would have caused any misunderstanding on the part of the jury in this case.

11 The other aspect criticised was her Honour's re-direction to the members of the jury shortly after they had retired to consider their verdict. At the request of counsel for the Crown her Honour told them that as a matter of law Mr Bolger could not have authorised the appellant to use the money as he did. Then her Honour went on to say,

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"However, I also remind you that the defence in this case is one of honest claim of right. That is a defence that the Crown must negative and it is simply a matter of the accused saying that he had an honest belief or a genuine belief that he was entitled to use the moneys as he did, and it doesn't matter that it was not a reasonable belief, as I have explained to you the sense of reasonableness in my charge. Of course, it also doesn't matter if that belief, if you find that it was held by the accused - and that’s a matter for you - involved a mistake of law.

So I hope that I have clarified that particular point for you, members of the jury, if indeed you are in any doubt about it; but I will now ask you to retire again and effectively start your deliberations."

The redirection is criticised in that it did not include a reminder that the Crown bore the onus of proving the absence of an honest claim of right beyond reasonable doubt. Bearing in mind that in the course of her summing up her Honour had already directed the jury clearly and correctly on several occasions as to onus and standard of proof as it applied generally to the Crown case and to the claim of right made on behalf of the appellant, I do not believe that yet another reminder as to the standard of proof was either necessary or desirable.

12 Appreciating that the grounds of appeal cannot be argued fully at this stage, I have formed the tentative view that the appeal is unlikely to succeed. In my opinion, the case against the appellant was strong and was made even stronger by the absence of his own oral testimony in support of the claim under s 22.

13 The appellant is a 54-year-old married man with six children. His wife and children are totally dependent on him. If bail is not granted his present business, an arbitration and mediation consultancy, will collapse and he will find it extremely difficult to obtain employment on his release. In the past he has adhered to all conditions of bail and there is no reason to believe that he would not do so in the future. It is likely that the appeal will not be heard before April next. By then, if he is not released to bail, the appellant will have served about three-quarters of the non-parole period of his sentence. Those considerations, of course, are very much in his favour. But in my opinion they are outweighed by the strength of the case against him. As I am not satisfied that there are exceptional reasons for his admission to bail the application is refused.