R v Charter - [2002] VSCA 214

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 159 of 2002

THE QUEEN
	v.
DENNIS CHARTER

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JUDGES:	PHILLIPS, C.J., CHARLES and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 November 2002
DATE OF JUDGMENT:	19 December 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 214

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Criminal law - Sentence - Making improper use of position as officer of corporation to gain advantage - Plea of guilty - Contested plea hearing - Allegation that trial judge did not approach proceeding with open mind - Findings made open on the evidence - No reasonable suspicion of bias or closed mind - Vakauta v. Kelly (1989) 167 C.L.R. 569 - Galea v. Galea (1990) 19 N.S.W.L.R. 263.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Cahill	Solicitor to Commonwealth D.P.P.
For the Appellant	Mr G. Thomas	Victoria Legal Aid

PHILLIPS, C.J.:

I have had the benefit of reading the judgment of Vincent, J.A. in draft form. I concur in the conclusions his Honour has reached and I would subscribe to his reasons therefor.

CHARLES, J.A.:

I agree with Vincent, J.A.

VINCENT, J.A.:

The applicant, on 4 June 2002, pleaded guilty in the County Court sitting at Melbourne to one count of making improper use of his position as an officer of a corporation to gain advantage for himself or another, contrary to ss.232(6) and 1317FA(1) of the Corporations Law (as taken to be included in the Corporations Act 2001, by s.1401 of that Act). More specifically the count asserted that, being an officer of Kiss Corporation Pty. Ltd., he dishonestly used his position to gain an advantage for a company known as Cotham Audio Pty. Ltd. by facilitating the diversion of a Citibank cheque for $402,500 payable to a similarly named company, Gotham Audio Pty. Ltd., into a National Australia Bank account in the name of Cotham Audio Pty. Ltd.

The applicant admitted that he had been previously convicted in the District Court of New South Wales at Sydney, on 6 March 1981, on two counts of imposition, two counts of engaging in conduct with intent to defraud and three counts of making false representations, in respect of which he was released without sentence being imposed upon entering into a recognisance to be of good behaviour for a period of four years. He also admitted having been convicted at the Central Court of Petty Sessions in New South Wales, on 28 May 1981, on eight counts of obtaining benefit by fraud. On that occasion sentencing was deferred upon the applicant entering into a recognisance to be of good behaviour for a period of three years.

Finally, he admitted that he had been convicted at the District Court of South Australia, on 3 March 1982, on two counts of false pretences in relation to which he was sentenced to serve imprisonment for a period of nine months on each count with a non-parole period of three months, the service of the sentence being suspended upon the applicant entering into a recognisance to…

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 Charter

Details

AGLC: R v Charter [2002] VSCA 214
Case: [2002] VSCA 214
Decision Date: 19 December 2002

CaseChat Overview and Summary

The defendant in this case was charged with various criminal offences related to making improper use of their position as an officer of a corporation to gain an advantage. The matter was heard in the High Court of Australia, where the defendant had appealed against both conviction and sentence. The primary legal issues for the court to decide were whether the trial judge had approached the plea hearing with an open mind, and whether the findings made by the trial judge were open on the evidence before the court. Additionally, the court had to determine if there was a reasonable suspicion of bias or a closed mind on the part of the trial judge.

The court considered the relevant principles set out in Vakauta v Kelly and Galea v Galea, which provide guidance on the appropriate approach to be taken by a trial judge when dealing with a contested plea hearing. The court found that the trial judge had not failed to approach the hearing with an open mind, nor had the judge displayed any bias or a closed mind. The findings made by the trial judge were open on the evidence presented during the hearing. Therefore, the appeal against conviction and sentence was dismissed, and the original conviction and sentence were upheld.

The reasoning of the court was based on a detailed analysis of the evidence presented at the contested plea hearing, as well as the relevant legal principles set out in the cited authorities. The court found that the trial judge had properly considered the evidence and had not erred in any way that would warrant a finding of bias or a closed mind. The findings made by the trial judge were consistent with the evidence presented, and there was no reasonable suspicion of bias on the part of the judge.

As a result of the court's decision, the defendant's conviction and sentence for making improper use of their position as an officer of a corporation to gain an advantage were upheld. The appeal against conviction and sentence was dismissed, and the original conviction and sentence remained in place.

Orders