R v. Falkenhagen - [2008] QCA 136

COURT OF APPEAL

FRASER JA
PHILIPPIDES J
DAUBNEY J

CA No 55 of 2008

THE QUEEN

ERIC ALAN FALKENHAGEN Applicant

BRISBANE

..DATE 27/05/2008

JUDGMENT

APPLICANT conducted his own case

MR D MEREDITH (instructed by the Director of Public Prosecutions (Queensland)) for the respondent

FRASER JA: On 15 November 2006, after a six day trial, the applicant was convicted by a jury of one count of receiving a number of stolen welders and nine counts of fraud concerning the applicant's purported sales of the stolen welders. The applicant was sentenced to a term of four years imprisonment for the receiving offence and concurrent terms of two years imprisonment for each of the fraud offences. The Court fixed a parole eligibility date of 15 November 2008.

On 4 March 2008 the applicant filed a notice of application for an extension of time within which to appeal against his conviction and sentence. He requires an extension of more than 14 months.

In determining whether to grant the application the Court is required to examine whether there is any good reason shown to account for the delay and to consider overall whether it is in the interests of justice to do. See R v Tait [1999] 2 QdR 667 at 668, paragraph 5. The same decision shows that it is easier to excuse a short delay rather than a long delay such as has occurred here.

The offences concerned the admitted theft by persons unknown of 17 welders taken during a break-in of a factory near Brisbane in January 2006. The welders were apparently valued at some $12,000 each. Within a few days of the theft 10 of them were in the possession of the applicant in North Queensland. The applicant advertised them for sale and he sold nine of them for $2000 each. One of the cheques was stopped before being banked so that he received $16,000. The applicant told each purchaser the same false story as explanation for the sale. When first questioned by the police some two weeks after the theft the applicant said he had received four or five of the welders from a man whose name he did not know. He said that he had not seen the man again but that he believed that the man was entitled to sell the welders.

When the applicant gave evidence he admitted that he had received 10 welders. He said he had bought three and that the man had given him seven more on commission to sell. He said he had seen the man again the day before being questioned by police and had given him $12,600. When challenged with the fact that the applicant still had the proceeds of sale in his bank account the applicant said that he had $12,000 to $13,000 in his possession from another source which he gave to the man whose name he still did not know.

For the receiving charge the prosecution relied upon the inference that could be drawn from the fact…

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.

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Details

Case: [2008] QCA 136
Decision Date: 27 May 2008

CaseChat Overview and Summary

The Court of Appeal, comprising Fraser JA, Philippides J, and Daubney J, heard an application by Eric Alan Falkenhagen for an extension of time to appeal his conviction and sentence. Falkenhagen had been convicted by a jury of one count of receiving stolen property and nine counts of fraud related to the sale of stolen welders. The jury acquitted him of theft but convicted him on the receiving and fraud charges. Falkenhagen was sentenced to four years imprisonment for the receiving offence and concurrent two-year sentences for each of the fraud offences, with a parole eligibility date set for November 2008.

The legal issues before the court included whether there was a good reason for the more than 14-month delay in filing the notice of appeal and whether it was in the interests of justice to grant the extension. The court also needed to assess the substance of the proposed grounds of appeal against the conviction and sentence. The applicant argued that he was advised by his legal representatives not to appeal and that his health issues provided a reason for the delay. However, the court found these reasons unsatisfactory.

The court examined the proposed grounds of appeal, which included claims that the trial judge misdirected the jury on the mens rea requirement for the receiving charge and that the evidence did not prove the applicant knew the property was stolen. The court found that the trial judge had properly directed the jury on the elements of the offence and that the jury was entitled to reject the applicant's explanations. The court also concluded that there was no merit in the argument that the applicant's health issues should have precluded the admission of police interview recordings. The court found no substance in the proposed grounds of appeal and no reason to believe that the sentence was manifestly excessive or affected by error.

The Court of Appeal refused the application for an extension of time to appeal against conviction and sentence. The judges agreed that the lengthy delay and lack of substantial grounds for appeal warranted denying the extension.

Orders