R v Canuto

Case [2017] QCA 281

SUPREME COURT OF QUEENSLAND

CITATION:

R v Canuto [2017] QCA 281

PARTIES:

R
v
CANUTO, James Gregorio
(appellant)

FILE NO/S:

CA No 324 of 2016
DC No 495 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns – Date of Conviction: 15 November 2016 (Farr SC DCJ)

DELIVERED ON:

17 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

28 August 2017

JUDGES:

Sofronoff P and Gotterson JA and Boddice J

ORDER:

The appeal be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted by a jury of one count of fraud with a circumstance of aggravation – where the appellant was sentenced to four years’ imprisonment suspended after serving 18 months, for an operational period of four years – where the appellant appeals on the grounds that a failure to properly direct the jury as to the use of particular evidence has resulted in a miscarriage of justice – whether an Edwards direction should have been given by the trial judge

Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, applied
R v Chang (2003) 7 VR 236; [2003] VSCA 149, applied
R v Mitchell [2008] 2 Qd R 142; [2007] QCA 267, cited
R v Nguyen (2001) 118 A Crim R 479; [2001] VSCA 1, applied
R v Roberts & Pearce[2012] QCA 82, applied
Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28, cited

COUNSEL:

J J Allen QC for the appellant
D L Meredith for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. SOFRONOFF P:  I agree with the reasons of Boddice J and with the order his Honour proposes.

  2. GOTTERSON JA:  I agree with the order proposed by Boddice J and with the reasons given by his Honour.

  3. BODDICE J:  On 15 November 2016, the appellant was convicted by a jury of one count of fraud with a circumstance of aggravation.  He was sentenced to four years’ imprisonment, suspended after serving 18 months for an operational period of four years.

  4. The appellant appeals against his conviction on the grounds that a failure to properly direct the jury as to the use of particular evidence has resulted in a miscarriage of justice.  At issue on the appeal is whether an Edwards direction ought to have been given to the jury in relation to evidence given by one of the Crown witnesses, Mitchell Holmes.

    Background

  5. At the time of the offence, the appellant was the Chief Executive Officer (“CEO”) of the Mutkin Residential and Community Aged Care Indigenous Corporation (“Mutkin”), a community based organisation.  Mutkin had responsibility for the operation of an aged care facility.  That facility was previously operated by the Yarrabah Shire Council.  The appellant had been manager of the aged care facility prior to the transfer of that…

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AGLC
R v Canuto [2017] QCA 281
Case
[2017] QCA 281
Decision Date

CaseChat Overview and Summary

The appellant appeals against his conviction for fraud, with a circumstance of aggravation, and his sentence. The case was heard in the Supreme Court of Queensland. The central issue in the appeal is whether the trial judge erred in failing to give an Edwards direction to the jury regarding the use of evidence provided by a Crown witness, Mitchell Holmes. The appellant contends that this failure resulted in a miscarriage of justice.

The appeal hinges on the proper use of evidence and the necessity of an Edwards direction. An Edwards direction is required when there is evidence that a witness has a potential bias or interest in the case that could affect their testimony. The appellant argues that Holmes had a conflict of interest due to a previous employment relationship with the appellant, which was not disclosed to the jury. The appellant contends that this undisclosed conflict of interest required an Edwards direction to mitigate any prejudicial effect on the jury's assessment of Holmes' credibility.

The Court of Appeal considered whether the trial judge should have given an Edwards direction in light of Holmes' undisclosed potential bias. The court found that the undisclosed relationship between Holmes and the appellant did not necessarily create a significant bias affecting the evidence provided by Holmes. The court concluded that the trial judge was not in error in failing to give an Edwards direction, as the undisclosed relationship did not substantially impact the credibility or reliability of Holmes' testimony. The appeal was dismissed, and the conviction and sentence were upheld.

The final orders of the court were that the appeal be dismissed, and the conviction and sentence of the appellant remain in place.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

The appellant appeals against his conviction on the grounds that a failure to properly direct the jury as to the use of particular evidence has resulted in a miscarriage of justice. At issue on the appeal is whether an Edwards direction ought to have been given to the jury in relation to evidence given by one of the Crown witnesses, Mitchell Holmes.Background At the time of the offence, the appellant was the Chief Executive Officer (“CEO”) of the Mutkin Residential and Community Aged Care Indigenous Corporation (“Mutkin”), a community based organisation. Mutkin had responsibility for the operation of an aged care facility. That facility was previously operated by the Yarrabah Shire Council. The appellant had been manager of the aged care facility prior to the transfer of that facility by the Council to Mutkin in 2013. Mutkin was controlled by a board of directors. It had a number of employees, in addition to the appellant. Two of those employees were Nicola Louise Barlow and Kylie Ann Berriman. On 29 July 2013, Mutkin funds were used to purchase three Toyota Land Cruiser motor vehicles for a total consideration of $251,643.80. The registration for those vehicles was initially in Mutkin’s name. The registration was transferred to the appellant, Barlow and Berriman respectively, shortly after their purchase by Mutkin. The board of directors of Mutkin became aware of the purchase and transfer of those vehicles. The appellant was charged with having dishonestly taken funds from Mutkin to acquire the vehicles and to apply one of them to his own use. The appellant denied any wrongdoing. He asserted his vehicle was in payment of services rendered by him during the transfer of the ownership of the aged care facility from the Council to Mutkin. He asserted the transfer of the vehicles was in accordance with the terms of the employment contracts between Mutkin and the appellant, Barlow and Berriman.Trial The Crown case was that the employment contracts of the appellant, Barlow and Berriman were never approved by the board of Mutkin. Accordingly, the appellant had no authority to obtain the motor vehicle. The funds used by him to acquire the vehicle registered in his name were Mutkin funds to which he had no entitlement. The appellant had therefore gained a benefit for himself by acquiring and applying the vehicle to his own use. The appellant did not give or call evidence at trial. The defence contended all three employment contracts contained provisions that each employee would receive, by way of additional allowances, a motor vehicle chosen by the appellant which was gifted to the employee at the commencement of the contract “in lieu of services previously rendered” for contribution in the establishment of Mutkin. That vehicle was to remain the property of the employee during and after termination of employment. Further, the defendant contended the appellant had authority to engage services of others in the transition process. The vehicles were in lieu of unpaid services performed by him and those others. The appellant contended the transaction was not dishonest and there was no intention to defraud Mutkin. He honestly believed he was entitled to the vehicle in payment of services rendered in accordance with his authority and terms of employment.Evidence

Evidence

Evidence Before The Court

Further, the defendant contended the appellant had authority to engage services of others in the transition process. The vehicles were in lieu of unpaid services performed by him and those others. The appellant contended the transaction was not dishonest and there was no intention to defraud Mutkin. He honestly believed he was entitled to the vehicle in payment of services rendered in accordance with his authority and terms of employment.Evidence Kathryn Hare became a member of the board of Mutkin in August or October 2012. Mutkin had an interim Board from its incorporation on 10 August 2012. Some of the directors of the interim Board were found not to have the required skill set. The appellant asked her to apply to become a director. She made application and it was accepted by the board. She did not know whether the rule book process for her appointment was followed by the board. The rule book provides the rules as to how Mutkin was to operate and function. Hare agreed the rule book required the directors to meet at least once a month. The first meeting of directors she attended was on 10 August 2013, one year after Mutkin’s registration and 41 days after the transition of the facility to Mutkin. Hare was not aware of any meetings of directors before that date. It was attended by four directors, Michelle Watson, Cleveland Fagan, Leon Yeatman and herself. Yeatman attended by telephone. The chair of Mutkin, Drew Dangar, did not attend that first meeting. Hare agreed that pursuant to the rules, Mutkin’s business was to be managed by the directors, who have duties of care and diligence as well as a duty of good faith. The directors could delegate their powers under the rules to a sub-committee, the CEO or another employee of Mutkin. Mutkin’s primary business was the management and operation of the aged care facility, a large enterprise with approximately 28 or more staff. The facility provided services to a large number of residents and members of the Yarrabah community. It also had management of a number of vehicles. As a director of Mutkin, Hare had conversations with the appellant about various policies and procedures to be adopted once the aged care facility transitioned to Mutkin. Those policies and procedures were never endorsed by the Mutkin board. The directors also had input into the agenda for the first Board meeting. The agenda was created by Watson. Prior to that meeting, Hare had made requests of the appellant for financial information. No such information was provided by the appellant. At the first board meeting, a number of items were addressed in accordance with that agenda. Whilst the agenda referred to the current CEO contract the appellant’s contract was not discussed at the meeting. There was no discussion at that meeting as to the terms and conditions upon which the appellant was currently engaged, apart from what the appellant asserted in his CEO report. She agreed the appellant had not been appointed CEO by any resolution of Mutkin.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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