Legal Research
Cases
R v Fisher

R v Fisher

Case [2009] VSCA 100 18 May 2009

Natural Justice & Procedural Fairness

Sentencing

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 777 of 2008

THE QUEEN
	v
STEVEN KING FISHER

---

JUDGES:	REDLICH and DODDS-STREETON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 May 2009
DATE OF JUDGMENT:	18 May 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 100

---

PRACTICE AND PROCEDURE – Natural justice – Out of court communications with Judge’s Associate via emails – Associate responding by email – Emails containing information bearing upon substantive issues – Disclosure to other party – No reasonable apprehension of bias.

PROCEDURAL UNFAIRNESS – Denial of opportunity to address unanticipated findings – Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 492 applied.

CRIMINAL LAW – Sentence – Relevance of misleading conduct on the plea to the question of remorse – Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr S M Cooper	Mr C Hyland, Solicitor for OPP
For the Appellant	Mr T E Wraight	Victoria Legal Aid

REDLICH JA
DODDS-STREETON JA:

The appellant was convicted in the County Court on four counts of obtaining financial advantage by deception, seven counts of attempting to obtain a financial advantage by deception and three counts of theft. Sentences of between one and six months were imposed on each count and orders of cumulation were made on all but one count producing a total effective sentence of two years’ imprisonment. A minimum non-parole period of 15 months was fixed. An order requiring compensation in the amount of $10,000 was also made.

The Appeal

The appellant now appeals against that sentence, on the grounds that that the learned sentencing judge received out of court communications from the prosecution concerning a matter material to the plea, namely the whereabouts of the appellant’s daughter for whom he had claimed to have sole care and responsibility, that he was denied procedural fairness as he was not permitted to explain the current arrangements regarding the care of his daughter, that insufficient weight was attached to his plea of guilty because of the view that he had misrepresented his daughter’s circumstances, that unjustified findings were made as to his use of the money he obtained, and that the total effective sentence and non-parole period were manifestly excessive.

The Offences

It is unnecessary to set out the full details of the appellant’s offending. In summary the appellant submitted 11 fraudulent applications to the National Australia bank seeking loans and credit cards. The appellant did so using eight different identities including former relationship partners and associates. False documentation including false details as to assets, liabilities, income, expenses, false PAYG payment summaries, false ATO documentation, false addresses, telephone numbers and a false drivers licence were used. Each of the applications was made either without the knowledge of those whose names they were made in, or on the basis of false representations to those persons as to the purpose for which their identity was being utilised. The appellant dishonestly obtained $120,000 and attempted to obtain a further $160,000 via applications that were refused. The appellant further…

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 Fisher

Details

AGLC: R v Fisher [2009] VSCA 100
Case: [2009] VSCA 100
Decision Date: 18 May 2009

CaseChat Overview and Summary

The case of R v Fisher involved a criminal matter where the appellant was convicted of various offences. The dispute primarily revolved around the fairness of the trial process and the sentencing considerations. The case was heard in the court of appeal. The appellant contested the trial judge's handling of certain out-of-court communications with the judge’s associate, as well as the sentencing process, particularly the consideration of misleading conduct on the plea and its impact on the question of remorse.

The court was tasked with deciding whether the out-of-court communications between the judge's associate and the appellant breached the principles of natural justice. Specifically, the issue was whether the emails, which included information pertinent to the substantive issues, and the associate's responses, warranted a reasonable apprehension of bias. Additionally, the court had to determine if the procedural unfairness arose from denying the appellant the opportunity to address unanticipated findings, as per the precedent set in Ucar v Nylex Industrial Products Pty Ltd.

The court held that there was no reasonable apprehension of bias due to the communications between the judge's associate and the appellant. The emails and the associate’s responses did not contain information that would lead a reasonable observer to conclude that there was a real likelihood of bias. Furthermore, the court found that the procedural unfairness doctrine did not apply as the appellant was not deprived of a meaningful opportunity to address the unanticipated findings. The court also found that the misleading conduct on the plea was relevant to the sentencing consideration of remorse, and the trial judge had properly taken this into account.

The appeal was dismissed, and the original sentencing and conviction were upheld. The court found no grounds to interfere with the trial judge's decisions on the matters of natural justice, procedural fairness, and sentencing.

Orders