Criminal law—Stealing—Receipt of funds some of which expressly intended for election campaign purposes—Mixing of funds in common bank account—Money withdrawn for personal purposes—Correctness of conclusion of Court of Criminal Appeal (WA) that moneys held on trust for each donor—Conviction for stealing quashed on basis of misdirection at trial—Whether new trial should have been ordered—Crown proposing significant amendments to indictment at new trial. The Criminal Code (WA), ss 371, 373, 378, 584.
Orders
G R James QC with M J Watson for the appellant (instructed by Dwyer Durack)
J R McKechnie QC with A R Beech for the respondent (instructed by Director of Public Prosecutions, Western Australia)
1. Appeal allowed.
2. Set aside the order of the Court of Criminal Appeal directing that there be a new trial. 3. Enter verdicts of acquittal on counts 1, 3, 4, 5, 6, 7 and 11.
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Decision
BRENNAN CJ.
1. The facts giving rise to this appeal are stated by Dawson, Toohey and McHugh JJ. The question for determination is whether, having regard to the terms in which the indictment was framed, the evidence was sufficient to support the conviction of the appellant on those counts on which the jury found him guilty. The answer to that question depends on the sufficiency of the evidence to establish that money withdrawn by the appellant from the "ALP David Parker for Fremantle Campaign" bank account[1] ("the account") on the occasions specified in the respective counts was the property of the persons referred to in those counts. In each count, the property in the money withdrawn was laid in a named donor of money "and others".
2. By virtue of s 373 of The Criminal Code (WA) ("the Code"), money given to a recipient with a direction that it be applied for a given purpose is deemed to be the property of the person giving it ("the donor") until the direction has been complied with. It follows that each contribution that was received by or on behalf of the appellant accompanied by a direction to apply it for a purpose (such as defraying the election expenses of the appellant) is deemed to have been the property of the donor, at least until it was paid into the account. On payment into the account, the actual notes and coins and the proceeds of cheques contributed by donors were converted into credits in that account. When each contribution was paid into the account, it was mixed with other moneys, some of which had been contributed with a direction as to their application and some of which were free funds which the appellant was entitled to apply to his own private use.…
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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Details
AGLC
Parker v The Queen [1997] HCA 15
Case
[1997] HCA 15
Decision Date
CaseChat Overview and Summary
In *Parker v The Queen*, the High Court of Australia considered an appeal by the applicant, Parker, against a decision of the Court of Criminal Appeal of Western Australia. The dispute concerned charges of stealing, specifically relating to the receipt and subsequent misappropriation of funds intended for an election campaign. The Court of Criminal Appeal had quashed Parker's conviction due to a misdirection at trial but had ordered a new trial.
The central legal issues before the High Court were whether the Court of Criminal Appeal had erred in its conclusion that the moneys received were held on trust for each donor, and consequently, whether a new trial should have been ordered, particularly in light of the Crown's intention to propose significant amendments to the indictment for any new proceedings.
The High Court allowed the appeal, setting aside the order for a new trial made by the Court of Criminal Appeal. The Court entered verdicts of acquittal on several counts of the indictment. This outcome was based on the Court's determination that the trial judge's directions regarding the trust nature of the funds and the elements of stealing were flawed, and that in the circumstances, a retrial was not warranted.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the order of the Court of Criminal Appeal directing that there be a new trial.
3. Enter verdicts of acquittal on counts 1, 3, 4, 5, 6, 7 and 11.