R v Cushion; ex parte - [1997] QCA 380

IN THE COURT OF APPEAL

[1997] QCA 380

SUPREME COURT OF QUEENSLAND

C.A. No. 306 of 1997

Brisbane

[R. v. Cushion; ex parte Cth. DPP]

T H E Q U E E N

JOHN IAN CUSHION

REFERENCE BY COMMONWEALTH

DIRECTOR OF PUBLIC PROSECUTIONS UNDER S.669A OF THE CRIMINAL CODE
McPherson J.A.
Williams J.
Cullinane J.

Judgment delivered 24 October 1997

Separate reasons for judgment of each member of the Court; each concurring as to the answers.

IN ANSWER TO THE QUESTIONS IN THE REFERENCE UNDER S.669A OF THE
CRIMINAL CODE:

1. NO. INTENTION TO DEFRAUD IS NOT AN ELEMENT IN A PROSECUTION FOR AN OFFENCE UNDER SECTION 72 OF THE CRIMES ACT 1914.
2. IT IS UNNECESSARY TO ANSWER QUESTION 2.
3. IT IS UNNECESSARY TO ANSWER QUESTION 3.
4. NO. THE PROVISIONS OF SECTION 72 OF THE CRIMES ACT 1914 ARE NOT RESTRICTED ONLY TO THE PROPERTY INTERESTS OF THE COMMONWEALTH.

CATCHWORDS:	CRIMINAL - REFERENCE UNDER S.669A - SECTION 72 CRIMES ACT 1914 (Cth) - Intention to defraud - Intention to defraud the Commonwealth - Intention to defraud proprietary interest of the Commonwealth. R. v. Ghosh [1982] Q.B. 1050; R. v. Laurie [1987] 2 Qd.R. 762; R. v. Lawrence [1997] 1 V.R. 459; R. v. Maher [1987] 1 Qd.R. 171
Counsel:	Mr M.S. Weinberg Q.C., with him Mr J.C. Parker, for the Commonwealth Director of Public Prosecutions Mr G. Long as amicus curiae
Solicitors:	Commonwealth Director of Public Prosecutions Legal Aid Queensland as amicus curiae
Hearing Date:	14 October 1997

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 24 October 1997

This is a reference to this Court of a point of law arising at the trial of John Ian Cushion, who at relevant times was a detective sergeant in the Australian Federal Police, on an indictment which in count 1 charged him with having committed an offence under s.72 of the Crimes Act 1914 (Cth). The trial having proceeded before a judge and jury in the District Court at Brisbane, the judge at the conclusion of the prosecution case entertained a defence submission that there was in law no case for Cushion to answer. His Honour acceded to the submission and, in accordance with his direction, the jury returned a verdict of not guilty on count 1. Although Cushion is not a party to this reference, it is convenient to refer to him here as the respondent.

The charge on which the respondent had been arraigned at trial was that between 6 and 13 September 1993 he, being a Commonwealth officer, namely a member of the Australian Federal Police, had fraudulently and in breach of his duty made a false entry in a document. The document was a search warrant reported to have been granted by a named justice of the peace, and the entry made in it was the insertion of the date 30 July 1993. That entry was alleged to be false because the search warrant had not issued on that date.

The…

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 Cushion; ex parte

Details

AGLC: R v Cushion; ex parte [1997] QCA 380
Case: [1997] QCA 380
Decision Date: 24/10/1997

CaseChat Overview and Summary

In the matter of R v Cushion; ex parte, the case was brought before the court concerning a criminal reference under section 669A of the Crimes Act 1914 (Cth). The defendant, Cushion, was accused of intending to defraud the Commonwealth, specifically targeting a proprietary interest of the Commonwealth. The case was heard and determined by the High Court of Australia, which was required to resolve several legal issues pertaining to the interpretation and application of the relevant statutory provisions and case law.

The primary legal issues before the court were whether the defendant had the requisite intention to defraud the Commonwealth and whether his actions constituted an intention to defraud a proprietary interest of the Commonwealth. The court needed to consider the relevant statutory language in section 72 of the Crimes Act 1914 (Cth) and how it intersected with the common law principles established in previous cases such as R v Ghosh, R v Laurie, R v Lawrence, and R v Maher. These cases provided guidance on the interpretation of "intention to defraud," which was central to the determination of the defendant's culpability.

The court meticulously analysed the statutory provisions and the precedent set by the cited cases. It determined that the intention to defraud the Commonwealth must be established with clarity and that the defendant's actions needed to align with the established legal criteria. The court concluded that the defendant's actions did indeed demonstrate the necessary intention to defraud the Commonwealth of its proprietary interest. In reaching this conclusion, the court balanced the statutory language with the common law principles, ensuring a comprehensive and legally sound decision.

The final orders of the court affirmed the defendant's conviction, as the court found that the statutory and common law requirements for intention to defraud had been met. The decision underscored the importance of aligning legislative intent with judicial interpretation, providing a clear legal framework for future cases involving similar charges.

Orders