R v Corbell

[1997] QCA 475

COURT OF APPEAL

[1997] QCA 475

MACROSSAN CJ
DOWSETT J

HELMAN J

CA No 312 of 1997
THE QUEEN
v.

MICHAEL FRANCIS CORBELL Applicant

BRISBANE
..DATE 18/11/97
181197 T11/ST23 M/T COA264/97
THE CHIEF JUSTICE: I shall ask Mr Justice Dowsett to deliver
his reasons first.

DOWSETT J: The applicant was arraigned before the District Court at Cairns, charged with numerous indictable offences of dishonesty but in addition, with three counts of simple offences, namely vagrancy by imposition. By virtue of the indictable offences which were before the Court, proceedings were taken to remove the simple offences into the District Court for sentence.

The applicant pleaded guilty to those simple offences together with the other indictable offences and in respect of the simple offences, was fined and ordered to pay, in total, restitution of $3,097. For present purposes it is not necessary to say anything further about the form of order.

In the course of submissions it was made clear that the applicant did not accept the Crown's claim for an order for restitution in respect of the simple offences. It is common ground that the matter was in dispute. The Crown did not lead any evidence to establish the amount of restitution claimed. However it seems that in the outcome, the learned trial Judge lost track of this fact and made an order for restitution in the form sought by the Crown.

The applicant now seeks leave to appeal with respect to the order for restitution. The Crown concedes that there was no evidence upon which the amount of restitution could have been calculated and that the order is therefore defective and should 181197 T11/ST23 M/T COA264/97

be set aside. However it is submitted that the matter should be remitted to the District Court for determination there, presumably in the expectation that at that stage, the Crown will be allowed to remedy the deficiency in evidence.

Whether or not there is power in the Court to take such a course may be said to be in doubt. It is true that in the decision Q v. T [1995] 2 Qd.R. 192, the members of the Court, for different reasons, appear to have reached the conclusion that there was such a power.

For present purposes, it is necessary to address that question.
Assuming that there is such a power, this is nonetheless not a
case in which I would consider it appropriate to exercise it.
The Crown in criminal proceedings is in the same position in
general as other parties in adversarial litigation. It is for

the Crown to lead the evidence upon which it seeks to rely at

the hearing.

There is an understandable and desirable expectation that, in general, factual matters will not be in dispute on sentence. However, that is not always the case and where it is made clear that there is a dispute as to a factual matter, it is obviously necessary that the party who bears the relevant onus should address the question of the evidence to be led.

As I have said, the time at which this must be done is at the trial. It will not generally be appropriate for either party to seek to lead further evidence on appeal or to seek a rehearing simply because it has failed to discharge the relevant 181197 T11/ST23 M/T COA264/97

evidentiary onus below. I do not say that it will never be the case, but this is certainly not a case in which such a course should be followed.

The amount in question is relatively small. The offences in question were not particularly serious and those who have been defrauded have other remedies. In the circumstances, I would allow the application. I would grant leave to appeal, allow the appeal and vary the order with respect to the relevant simple offences by deleting the orders for payment of restitution.

THE CHIEF JUSTICE: I agree.

HELMAN J: I agree.

-----