R v Bosscher

Case [2024] QCA 253

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bosscher [2024] QCA 253

PARTIES:

R
v
BOSSCHER, Michael Frederick
(appellant)

FILE NO/S:

CA No 266 of 2023
DC No 826 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 27 November 2023 (Clare SC DCJ)

DELIVERED ON:

13 December 2024

DELIVERED AT:

Brisbane

HEARING DATE:

17 October 2024

JUDGES:

Flanagan and Boddice and Brown JJA

ORDERS:

1.   Paragraph 1(a)(i) to (iii) of the respondent’s application to adduce evidence filed 11 October 2024 is refused.

2.   Appeal allowed.

3.   The convictions for Counts 1 to 9 are set aside.

4.   A new trial is ordered on all counts.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – CONTROL OF PROCEEDINGS – DISCHARGE OF JURY – where, after a 28-day jury trial, the appellant was convicted of one count of fraud to the value of $30,000.00 or more and eight counts of fraudulently falsifying a record – where the appellant was an experienced criminal solicitor – where the charges related to defrauding the law firm that employed the appellant, Bosscher Lawyers, as part of an agreement or arrangement with two other participants, Meehan and Jones – where, at the commencement of the trial, the appellant had chosen to represent himself because he did not believe he would be eligible for Legal Aid – where the appellant had a pre-existing mental health condition, having suffered from major depressive disorder for about a decade – where, during the course of the trial, the appellant suffered a relapse of his depression, which resulted in the trial being adjourned for a period of 12 days – where the adjournment had occurred in the middle of Meehan’s cross examination, in circumstances where Meehan was a central witness to the Crown case – where the appellant applied to the trial judge to discharge the jury because of the lengthy adjournment – where there was uncontested medical evidence that the appellant had suffered a relapse of his pre-existing depressive mood disorder and would be operating at a reduced capacity in representing himself in the trial – where the trial judge refused the appellant’s application – whether, in the circumstances of the case, the trial judge’s refusal to discharge the jury occasioned a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON–DIRECTION – JUDGE'S SUMMING UP – where, after a 28-day jury trial, the appellant was convicted of one count of fraud to the value of $30,000.00 or more and eight counts of fraudulently falsifying a record – where the appellant was an experienced criminal solicitor – where the charges related to defrauding the law firm that employed the appellant, Bosscher Lawyers, as part of an agreement or arrangement with two other participants, Meehan and Jones – where Meehan was a central witness to the Crown case – where there was evidence, arising…

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AGLC
R v Bosscher [2024] QCA 253
Case
[2024] QCA 253
Decision Date

CaseChat Overview and Summary

In the case of R v Bosscher, the appellant was convicted following a lengthy jury trial of various counts of fraud and record falsification. The appellant, an experienced criminal solicitor, had chosen to represent himself during the trial due to his belief that he would not be eligible for Legal Aid. During the trial, the appellant experienced a relapse of his pre-existing major depressive disorder, resulting in a 12-day adjournment. The appellant applied for the jury to be discharged due to the delay and his impaired capacity to continue, but the trial judge refused the application. The appellant appealed the convictions, arguing that the trial judge’s refusal to discharge the jury resulted in a miscarriage of justice, particularly in light of the lengthy adjournment and his impaired state.

The legal issues before the court were whether the trial judge's refusal to discharge the jury constituted an error that led to a miscarriage of justice and whether the trial judge's failure to mention certain evidence during the summing up further prejudiced the appellant. The court had to consider whether the trial judge's discretion to refuse the discharge application was exercised properly and whether any omissions in the summing up had a prejudicial effect on the trial’s outcome.

The court found that the trial judge's refusal to discharge the jury did not occasion a miscarriage of justice. The court reasoned that the trial judge was in the best position to assess the potential prejudice caused by the adjournment and the effectiveness of any directions to mitigate it. The court also determined that the trial judge's omission of certain evidence during the summing up did not reinforce any prejudice caused by the adjournment. The omission was not deemed significant enough to warrant a new trial. However, the court concluded that the overall trial circumstances, including the lengthy adjournment and the appellant’s impaired state, warranted setting aside the convictions and ordering a new trial.

The final orders of the court were to refuse the respondent's application to adduce further evidence, allow the appeal, set aside the convictions on all counts, and order a new trial on all counts.

Orders

Orders of the court

1. Paragraph 1(a)(i) to (iii) of the respondent’s application to adduce evidence filed 11 October 2024 is refused.

2. Appeal allowed.

3. The convictions for Counts 1 to 9 are set aside.

4. A new trial is ordered on all counts.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Ms O’Gorman KC identified the two bases for the discharge application:“My submission is that it (the delay) would now be prejudicial on that basis alone, and certainly in conjunction with Mr Bosscher’s current impairments, for the trial to continue … the earliest that the evidence in the trial will resume is tomorrow, Tuesday the 7th of November.By that time, it will have been some 12 days since the jury last heard any evidence in this matter.”[37][37]RB, vol 3, page 965, lines 5–14.(b) The appellant’s evidence on voir dire According to the appellant, at the time that he made the decision to represent himself he believed he would be able to conduct the trial to conclusion. He was not suffering any symptoms of depression over and above those which he had lived with for a decade. He did not apply for Legal Aid prior to the trial, as he did not believe he would meet the “means test”.[38][38]RB, vol 6, page 2307, paras 2–3. On Saturday 21 October 2023, the appellant was able to work for six to eight hours productively. However, he described that on Sunday 22 October 2023, his mood “plummeted”. He was unable to do any work. By Thursday 26 October 2023, he was physically ill. Over the course of that Friday, Saturday and Sunday his mental health deteriorated “drastically”.[39] He could not concentrate on anything, he could not work, and he had no appetite.[39]RB, vol 6, page 2309, para 23. He undertook a number of steps to obtain both psychiatric and psychological assistance. He was finally able to see Dr Khoo and Ms Ward on Tuesday, 31 October 2023. As to the appellant’s history of depression, he was first diagnosed with a major depressive disorder in about 2010. He commenced seeing Dr Khoo in 2021. He confirmed on oath that the symptoms he reported to Dr Khoo, Ms Ward and Dr Kovacevic were correct. In cross-examination, the appellant accepted that he had been aware of his depression since 2012 but had been able to conduct a busy legal practice since at least 2017. While he could recall that his depression affected him coming to work on occasions, he did not recall any occasion where he was unable to appear in court. He had in the past taken approximately six months off work to ensure the medication for his depression was correct, and that any improvement to his mental health condition was maintained. This was in 2021. The appellant decided to represent himself in July 2023, although he had the assistance of a solicitor, Mr McKenzie. While he had never applied for Legal Aid, he was intending to do so if the discharge application was granted. He was uncertain whether he would be granted Legal Aid for the purposes of being represented at any future trial. In cross-examination, the appellant accepted that he would have been eligible to apply for Legal Aid at least one month before the trial commenced. He had, however, by that stage made the decision to represent himself.[40][40]RB, vol 3, page 957, lines 35–46. When he made the decision to represent himself, he considered that he was capable of doing so. He was still of this view until the previous week. He had been able to prepare the cross-examination of Meehan and considered that he had a further half day of cross-examination to go.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

When the trial resumed after the 12-day delay, there was a further 10 days of evidence before the Crown closed its case. The appellant addressed the jury for part of Day 25, the whole of Day 26 and part of Day 27, which was approximately nine hours.(g) Consideration of Ground 4 Section 60(1) of the Jury Act provides:“If a jury can not agree on a verdict, or the judge considers there are proper reasons for discharging the jury without giving a verdict, the judge may discharge the jury without giving a verdict.” Where an application is made pursuant to s 60, a trial judge has a discretion whether an order discharging the jury should be made. The discretion is exercised where the judge considers there are proper reasons for discharging the jury.[62] For an appellate court, the relevant question is whether the trial judge’s discretion miscarried. The appeal, however, is not against the failure to discharge the jury but against, the conviction.[63][62]The House v The King (1936) 55 CLR 499 principles therefore apply to any appeal: see R v Fennell [2017] QCA 154 at [140].[63]Maric v The Queen (1978) 52 ALJR 631 at 634–635. In Matthews v The Queen,[64] the Victorian Court of Appeal endorsed the following summary of the relevant principles in relation to discharge applications:[65]“•The discretion to discharge the jury can only be exercised when there is a ‘high degree of need for such discharge’.•The discretion to discharge the jury is to be exercised only when that course is necessary to prevent a miscarriage of justice.•Ordinarily, a trial judge will be in a better position than an appeal court to assess whether, having regard to the course and atmosphere of the trial, any prejudice may be dispelled by a clear warning to the jury.•An appeal predicated upon a trial judge’s failure to discharge a jury is not an appeal against that failure, but an appeal against the conviction. The applicant bears an onus of demonstrating that the exercise of his Honour’s discretion was infected by error. …•An appellate court will not lightly interfere with the discretion to refuse an application to discharge a jury.”[64][2021] VSCA 20 at [32].[65]Citing Carson v R [2019] VSCA 317. The test relating to the determination of applications to discharge was set out in R v Boland,[66] where it was held that an applicant must demonstrate that there is a “a high degree of need for such discharge” before any application is granted.[66][1974] VR 849 at 866. In Crofts v The Queen,[67] a majority of the High Court accepted that this approach was correct, and made the following additional observations:[68] “It may be accepted that the Court of Criminal Appeal approached the matter with the correct principles in mind. No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.”[67](1996) 186 CLR 427 at 440 (Toohey, Gaudron, Gummow and Kirby JJ; Dawson J writing separate reasons).[68](1996) 186 CLR 427 at 440–441. See also the observations of Dawson J at 432.