R v Alwis - [2012] QCA 308

SUPREME COURT OF QUEENSLAND

CITATION:

R v Alwis [2012] QCA 308

PARTIES:

R
v
ALWIS, Dalugama Mudiyanselage Prabath
(applicant/appellant)

FILE NO/S:

CA No 118 of 2011
DC No 755 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

13 November 2012

DELIVERED AT:

Brisbane

HEARING DATE:

11 July 2012

JUDGES:

Margaret McMurdo P and Fraser and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Appeal against conviction dismissed.1.

Application for leave to appeal against sentence granted.2.

Appeal allowed and sentence set aside.3.

Instead, order that the appellant be sentenced to four and a half years imprisonment to be suspended on the date of the delivery of these reasons with an operational period of five years.4.

Declare that six days of presentence custody from 21 April to 27 April 2007 be time served under the sentence.5.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – where the appellant was convicted after a three day trial of defrauding his employer of $159,000 over approximately six months – where the appellant was the complainant's accountant – where after the appellant's employment was terminated, irregularities were discovered in the companies' books – where the appellant admitted transactions took place wherein money was transferred from the companies' accounts for his personal use – where conflicting evidence as to whether the companies' managing director authorised the appellant to use the money – where appellant made restitution of the funds taken plus an additional $20,000 – whether the appellant acted dishonestly – whether jury verdict was unreasonable or cannot be supported having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – whether the trial judge complied with Jury Act 1995 (Qld), s 51 – whether trial judge's noting the upcoming Easter Break placed undue pressure on the jury to reach a quick verdict

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF PROSECUTOR OR PROSECUTION – whether the prosecutor made statements in her closing address that were not supported by the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant had no prior criminal history – where the appellant's admission of the transactions greatly shortened the duration of the trial – where the appellant made restitution plus an additional $20,000 – where the trial judge was misinformed that the maximum term of imprisonment for the offence was 14 years, instead of 12 – where appellant was sentenced to five years imprisonment suspended after 24 months with an operational period of five years – whether the sentence was manifestly excessive in the circumstances

Jury Act 1995 (Qld), s 51

M v The Queen (1994) 181 CLR 487; [1994] HCA…

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 R v Alwis

Details

AGLC: R v Alwis [2012] QCA 308
Case: [2012] QCA 308
Decision Date: 13 November 2012

CaseChat Overview and Summary

In the case of R v Alwis, the appellant was convicted of defrauding his employer of $159,000 over a period of approximately six months. The appellant had acted as the complainant's accountant, and after his employment was terminated, irregularities were found in the companies' books. The appellant admitted to transactions involving the transfer of funds from the companies' accounts for personal use but claimed that the managing director had authorised these transactions. The appellant made restitution of the funds taken plus an additional $20,000. The appellant appealed against both his conviction and his sentence.

The primary legal issue in this appeal was whether the jury's verdict was unreasonable or could not be supported based on the evidence. The appellant argued that the trial judge's comments regarding an upcoming Easter break may have unduly pressured the jury to reach a quick verdict. Additionally, the appellant claimed that the prosecutor made statements during her closing address that were not supported by the evidence. The court needed to determine if the trial judge had correctly directed the jury in accordance with the Jury Act 1995 (Qld), s 51. Another significant legal issue was whether the sentence imposed on the appellant was manifestly excessive or inadequate.

The court found that the jury's verdict was not unreasonable or insupportable, given the evidence presented. The court also determined that the trial judge did not misdirect the jury and that the prosecutor's statements were supported by the evidence. However, the court found that the sentence imposed on the appellant was manifestly excessive. The trial judge had been misinformed that the maximum term of imprisonment for the offence was 14 years, instead of 12. Given the appellant's admission of the transactions, the shortened duration of the trial, and the restitution made, the court found that a sentence of five years imprisonment suspended after 24 months with an operational period of five years was manifestly excessive. The appeal against conviction was dismissed, and the application for leave to appeal against sentence was granted. The appeal against sentence was allowed, and the sentence was set aside. The court ordered that the appellant be sentenced to four and a half years imprisonment to be suspended on the date of the delivery of these reasons with an operational period of five years. The court also declared that six days of presentence custody from 21 April to 27 April 2007 be time served under the sentence.

Orders

Orders of the court

Appeal against conviction dismissed.1.

Application for leave to appeal against sentence granted.2.

Appeal allowed and sentence set aside.3.

Instead, order that the appellant be sentenced to four and a half years imprisonment to be suspended on the date of the delivery of these reasons with an operational period of five years.4.

Declare that six days of presentence custody from 21 April to 27 April 2007 be time served under the sentence.5.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Alwis [2012] QCA 308
PARTIES:	R v ALWIS, Dalugama Mudiyanselage Prabath (applicant/appellant)
FILE NO/S:	CA No 118 of 2011 DC No 755 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	13 November 2012
DELIVERED AT:	Brisbane
HEARING DATE:	11 July 2012
JUDGES:	Margaret McMurdo P and Fraser and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Appeal against conviction dismissed.1. Application for leave to appeal against sentence granted.2. Appeal allowed and sentence set aside.3. Instead, order that the appellant be sentenced to four and a half years imprisonment to be suspended on the date of the delivery of these reasons with an operational period of five years.4. Declare that six days of presentence custody from 21 April to 27 April 2007 be time served under the sentence.5.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – where the appellant was convicted after a three day trial of defrauding his employer of $159,000 over approximately six months – where the appellant was the complainant's accountant – where after the appellant's employment was terminated, irregularities were discovered in the companies' books – where the appellant admitted transactions took place wherein money was transferred from the companies' accounts for his personal use – where conflicting evidence as to whether the companies' managing director authorised the appellant to use the money – where appellant made restitution of the funds taken plus an additional $20,000 – whether the appellant acted dishonestly – whether jury verdict was unreasonable or cannot be supported having regard to the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – whether the trial judge complied with Jury Act 1995 (Qld), s 51 – whether trial judge's noting the upcoming Easter Break placed undue pressure on the jury to reach a quick verdict CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF PROSECUTOR OR PROSECUTION – whether the prosecutor made statements in her closing address that were not supported by the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant had no prior criminal history – where the appellant's admission of the transactions greatly shortened the duration of the trial – where the appellant made restitution plus an additional $20,000 – where the trial judge was misinformed that the maximum term of imprisonment for the offence was 14 years, instead of 12 – where appellant was sentenced to five years imprisonment suspended after 24 months with an operational period of five years – whether the sentence was manifestly excessive in the circumstances Jury Act 1995 (Qld), s 51 M v The Queen (1994) 181 CLR 487; [1994] HCA…