R v Aprile - [2019] QCA 226

[2019] QCA 226

COURT OF APPEAL

PHILIPPIDES JA
HENRY J
BROWN J

CA No 49 of 2019
DC No 384 of 2018

THE QUEEN

APRILE, Laura Appellant

BRISBANE

THURSDAY, 24 OCTOBER 2019

JUDGMENT

BROWN J: This is an appeal that was originally commenced by the appellant acting on her own behalf seeking to set aside her conviction on six counts of using forged documents, contrary to s 145.1(1) of the Criminal Code Act 1995 (Cth), hereinafter referred to as the Code, and three counts of obtaining a financial advantage by deception, contrary to s 134.2(1) of the Code. The appellant was convicted on 8 February 2019 following a trial.

An original notice of appeal and submissions were filed by the appellant on her own behalf. Recently, however, Mr Mumford of counsel agreed to act on her behalf on a pro bono basis. The willingness of Mr Mumford, like a number of other members of the Bar, to act on behalf of self‑represented persons who are otherwise unrepresented assists not only the person concerned, but also the administration of justice. The present appeal is an example of such assistance. It should also be said that the counsel acting on behalf of the Commonwealth Director of Public Prosecutions have also shown great assistance to the administration of justice in their approach to the amended notice of appeal.

As a result of Mr Mumford's intervention, the notice of appeal was amended. The grounds of appeal set out in the original notice and the application to adduce further evidence were abandoned. The appellant now seeks leave to pursue only two grounds of appeal, namely that:

(a)A substantial miscarriage of justice was occasioned, in that:
i.The learned trial judge failed to direct the jury as to the meaning of the word "dishonesty" as set out in s 130.3 of the Code;

ii.The “Elements of Offences” document did not include the element that the documents the subject of counts 1 to 6 on the indictment were, in fact, “false documents”, as defined in s 143.2 of the Code.

"Dishonesty" is defined in s 130.3 of the Code.[1] It requires satisfaction of both an objective and subjective test. The element of dishonesty was common to all counts on the indictment and an essential element in the Crown proving its case against the appellant. The appellant contends that, in his summing up, the trial judge directed the jury that dishonesty was an element of which they were required to be satisfied in relation to the relevant offences, but did not give any direction as to the meaning of dishonesty pursuant to the Code or how to approach the task of determining beyond reasonable doubt whether the appellant's actions were dishonest. The test applied by the jury in determining dishonesty, or whether all members of the jury applied the same definition, cannot, in the circumstances, be known.

[1]For the purposes of Chapter 7 of the Code, which contains both of the offences…

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 Aprile

Details

AGLC: R v Aprile [2019] QCA 226
Case: [2019] QCA 226
Decision Date: 24 OCTOBER 2019

CaseChat Overview and Summary

In the case of R v Aprile, the appellant, Laura Aprile, was convicted on six counts of using forged documents and three counts of obtaining a financial advantage by deception. The appeal against her conviction was originally commenced by the appellant acting on her own behalf. However, Mr Mumford of counsel later agreed to act on her behalf on a pro bono basis. The grounds of appeal were subsequently amended, and the appellant sought leave to pursue only two grounds of appeal. The first ground was that a substantial miscarriage of justice was occasioned as the trial judge failed to direct the jury as to the meaning of the word "dishonesty" as set out in s 130.3 of the Criminal Code Act 1995 (Cth). The second ground was that the "Elements of Offences" document did not include the element that the documents the subject of counts 1 to 6 on the indictment were, in fact, "false documents", as defined in s 143.2 of the Criminal Code Act 1995 (Cth).

The Court of Appeal found that the trial judge failed to direct the jury as to the meaning of the word "dishonesty" as set out in s 130.3 of the Criminal Code Act 1995 (Cth), which requires satisfaction of both an objective and subjective test. The Court also found that the trial judge did not direct the jury that the documents were required to be "false documents" within one or more of the definitions set out in ss 143.2(1)(a), (b), (c), (d) or (e) of the Criminal Code Act 1995 (Cth). These elements were essential to both categories of offences with which the appellant was charged. The Court found that these failures amounted to a substantial miscarriage of justice.

The Court allowed the appeal, quashed the convictions for counts 1 to 9, and ordered a retrial on all counts. The Court also granted bail to the appellant on condition that she be released from the custody of Corrective Services and such bail is granted upon the conditions that applied to her bail prior to trial.

Orders