R v Dobie

Case [2016] QCA 250

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dobie [2016] QCA 250

PARTIES:

R
v
DOBIE, Keith William
(appellant)

FILE NO/S:

CA No 3 of 2016
CA No 289 of 2015
DC No 318 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Southport – Date of Conviction: 21 October 2015

DELIVERED ON:

7 October 2016

DELIVERED AT:

Brisbane

HEARING DATE:

11 August 2016

JUDGES:

Fraser and Philip McMurdo JJA and North J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Allow the appeal.

2.   Set aside the conviction.

3.   Order a new trial.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted by jury of one offence against s 134.2 Criminal Code (Cth) of obtaining a financial advantage from a Commonwealth entity by deception – where the appellant contends the verdict is unreasonable and cannot be supported by the evidence – whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant was convicted by jury of one offence against s 134.2 Criminal Code (Cth) of obtaining a financial advantage from a Commonwealth entity by deception – where the trial judge was required to direct the jury as to the physical element of ‘deception’ – where the trial judge directed the jury as to the mental element of ‘intention’ but gave no direction as to the issue of deception – where the appellant’s case at trial raised the defence of mistake of fact under s 9.1 of the CriminalCode (Cth) – where the trial judge directed the jury as to a mistake of law – where the trial judge further directed the jury that the mistake must be ‘reasonable’ in order to establish the defence – whether the misdirections amounted to a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the parties submitted that the Court should assume that an incorrect transcription of the appellant’s formal admissions was provided to the jury – whether the unintentional inclusion of the incorrect transcription amounted to a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the respondent contends that notwithstanding any miscarriage of justice established by the appellant, such a miscarriage is not ‘substantial’ for the purposes of s 668E(1A) of the Criminal Code (Qld) and the proviso ought to be applied – whether a substantial miscarriage of justice has actually occurred – whether the proviso is applicable

Criminal Code (Cth) s 9.1, s 130.3, s 134.2
Criminal Code (Qld),…

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AGLC
R v Dobie [2016] QCA 250
Case
[2016] QCA 250
Decision Date

CaseChat Overview and Summary

In the case of R v Dobie, the appellant sought to appeal his conviction by a jury of one count of obtaining a financial advantage from a Commonwealth entity by deception. The appeal was premised on various grounds, including the assertion that the verdict was unreasonable and unsupported by the evidence, that there were misdirections or non-directions by the trial judge, and that there were other irregularities amounting to a miscarriage of justice. Additionally, the respondent contended that any miscarriage of justice identified did not amount to a substantial miscarriage of justice warranting the application of a proviso under s 668E(1A) of the Criminal Code (Qld).

The legal issues before the court involved determining whether the jury's verdict was unreasonable or insupportable considering the evidence presented. The court was also required to examine whether the misdirections by the trial judge concerning the elements of deception and mistake of fact constituted a miscarriage of justice. Furthermore, the court had to assess whether the unintentional inclusion of an incorrect transcription of the appellant's formal admissions in the evidence provided to the jury amounted to a miscarriage of justice. Finally, the court needed to decide whether the miscarriage of justice, if any, was substantial enough to warrant the application of the proviso under s 668E(1A) of the Criminal Code (Qld).

The court found that the misdirections by the trial judge concerning the element of deception amounted to a miscarriage of justice. The court held that the trial judge's failure to properly direct the jury on the physical element of deception, coupled with the inclusion of an incorrect transcription of the appellant's formal admission, significantly prejudiced the appellant's case. The court concluded that these errors made the path towards conviction unduly easy for the Crown and did not involve any forensic advantage for the appellant. However, the court also found that the cumulative effect of these errors did not constitute a substantial miscarriage of justice warranting the application of the proviso. The court thus allowed the appeal, set aside the conviction, and ordered a new trial.

In conclusion, the court's decision in R v Dobie underscores the importance of accurate jury directions and the potential consequences of misdirections or non-directions on the outcome of a criminal trial. The court's finding that the misdirections amounted to a miscarriage of justice, while not substantial enough to warrant the application of the proviso, highlights the need for careful consideration of the elements of deception and mistake of fact in criminal cases. The ordering of a new trial ensures that the appellant will have the opportunity to present his case anew, free from the prejudicial errors that occurred in the initial trial.

Orders

Orders of the court

1. Allow the appeal.

2. Set aside the conviction.

3. Order a new trial.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The cumulative effect of those legal errors was that the trial judge’s directions wrongly conveyed to the jury that the suggested mistake by the appellant was irrelevant if the respondent proved beyond reasonable doubt that the mistake was unreasonable. Defence counsel’s omission to seek a redirection could not be explicable as a reasonable forensic decision made in the interests of the appellant. The misdirection made the path towards conviction unduly easy for the Crown and it did not involve any forensic advantage for the appellant. The misdirection amounted to a miscarriage of justice.Ground (c): Wrong evidence of an admission Both parties asked the Court to proceed on the footing that a copy of the “document book” (exhibit 2), which was given to the jury and was in the jury room during their deliberations, included an incorrect transcription of the appellant’s formal admission in exhibit 16 that “[d]uring the four quarters to which the BAS related, the defendant did not conduct or carry on a business called Chocolate Blonde Enterprises”; in the document book, the admission included the additional text, “or any other business under [the appellant’s ABN]”. The purported admission made a nonsense of the appellant’s case that the BAS did not concern Chocolate Blonde Enterprises but a different business or businesses which did trade in the relevant period. It is not possible to exclude the hypothesis that the jury, acting upon the misstatement of the appellant’s admission, found that the appellant did not conduct any business under his ABN during any of the four quarters to which the BAS related and, for that reason alone, he knew when he signed each of the BAS that the figures in it were false. The error was unintentional. It amounted to a miscarriage of justice.The proviso Each of the second and third grounds of appeal amounts to a ground for concluding that, in terms of s 668E(1) of the Criminal Code (Qld), there was a miscarriage of justice such as would oblige the Court to allow the appellant’s appeal against conviction. Section 668E(1A), commonly called “the proviso”, provides:“However, the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.” The respondent argued that the Court should find that no substantial miscarriage of justice had actually occurred and for that reason dismiss the appeal. The respondent argued that R v Navarolli is authority for the proposition that the Court may apply the proviso even though the jury was not directed correctly in relation to s 9.1 of the Commonwealth Code, and that this was a particularly apt case for the application of the proviso because the appellant did not give evidence and there was no relevant issue about the credibility of the witnesses in the Crown case. The respondent relied upon the arguments it advanced in opposition to the appellant’s first ground of appeal in support of a contention that the Court would be satisfied beyond reasonable doubt that the appellant was guilty of the offence charged against him.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The respondent argued that the BAS on their face constituted declarations by the appellant that Chocolate Blonde Enterprises had incurred GST on purchases in the stated amount, it had not accrued GST on sales in the same period, and it was entitled to a refund of the amount stated as GST incurred on purchases. Contrary to the way in which the appellant’s case was put on appeal, the defence case at trial was that the appellant mistakenly believed that he could obtain a refund of income tax (not GST) by submitting the BAS. The respondent submitted that there were good reasons why a different approach was taken at the trial. The GST registration for the appellant’s ABN had been cancelled because of low turnover, GST on sales in the BAS was reported at zero but the amount claimed for GST in all the BAS was $17,392, that amount implied that about $191,000 had been spent on purchases, and it was submitted that it was not credible that a taxpayer who expended $191,000 on purchases would not have claimed the GST at the time or that such a person would have expended $191,000 without generating any income. The respondent argued that the amounts stated in the appellant’s communication with the ATO were not consistent with $17,000 having been incurred as GST on purchases. The appellant had not supplied to the tax office documents demonstrating that he had incurred the amount of GST he claimed in the BAS. The respondent accepted that the prosecution’s attempt to prove that the appellant had no conversation with an ATO officer named Alan did not succeed, but the respondent submitted that a jury, acting reasonably, inevitably would have concluded that any such employee would not have given the advice the appellant claimed to have been given.Consideration The evidence raised for the jury’s consideration questions whether the appellant intended that the completed BAS related to a business or businesses other than Chocolate Blonde Enterprises and whether the appellant believed that the ATO appreciated as much. The appellant’s admission that Chocolate Blonde Enterprises did not carry on business in any of the periods to which the BAS related therefore did not necessarily establish that the figures in the BAS should be regarded as untrue or that the appellant believed that the figures in the BAS were untrue. This much was recognised in the respondent’s submissions, which were not confined to the simple proposition that, in light of the appellant’s admission, the claims in the BAS were manifestly false. It is not relevant to the disposition of this appeal to decide whether, as the respondent argued, the appellant confined his case at trial to issues about income tax or whether defence counsel’s rather general submissions to the jury encompassed issues about GST. On either view, it was open to the jury to find that the appellant knew, as was the case, that he was not entitled to recover as payments or credits pursuant to the BAS the amounts totalling $17,392 claimed in the BAS. The evidence allowed the jury to find that the BAS claimed much greater amounts than any of the amounts which the appellant had earlier and later claimed were owing to him. For example, it was open to the jury to regard Mr Marshall’s evidence as establishing that the appellant claimed that the ATO owed him only about $10,000 which the appellant then characterised as overpaid income tax. The jury could also regard the evidence summarised in [9] and [11] of these reasons as establishing that the upper limit of the appellant’s claim (however it was then characterised, which is not entirely clear) was $5,584.00 for 2007 and $1,461.00 for 2008.