R v Fulton

[1994] QCA 106

IN THE COURT OF APPEAL [1994] QCA 106

SUPREME COURT OF QUEENSLAND

C.A. No. 37 of 1994

Brisbane
[R. v. Fulton]

BETWEEN

T H E Q U E E N
v.
MAXWELL ROBERT FULTON

(Appellant)

Macrossan C.J. McPherson J.A. Kiefel J.

Judgment delivered 28/04/94
Reasons for judgment by the Court

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE AND FOR A DIRECTION UNDER S.671G(3) OF THE CRIMINAL CODE REFUSED. A WARRANT TO ISSUE FOR ARREST OF THE APPELLANT TO LIE IN THE REGISTRAR'S OFFICE FOR A WEEK OR UNTIL FURTHER ORDER.

CATCHWORDSCRIMINAL LAW - Attempted false pretences - Insurance claim - "Home cover" policy - Burglary - Whether burglary only reported after lapsed policy renewed - Whether claimed items taken in burglary - Whether evidence of family members reliable.

Counsel:A. Glynn for the appellant

P. Ridgeway for the Crown

Solicitors:Barry & Nilsson for the appellant
Director of Prosecutions for the Crown
Hearing Date:12 April 1994

REASONS FOR JUDGMENT - THE COURT
Judgment delivered the Twenty-Eighth day of April 1994

The appellant was found guilty in the District Court of a single count of attempting to obtain money or goods by false pretences. He has appealed against his conviction and has also applied for leave to appeal against the sentence imposed, which was imprisonment for 6 months.

The charge of which the appellant was convicted arose out of a claim he made on a policy of insurance issued to him by CIC Insurance Limited. It was a "home cover" policy which extended to various risks including losses to house contents caused by theft following unlawful entry. The representations constituting the false pretence were contained in a claim form and attached list (ex. 14), which was submitted by the appellant in consequence of a breaking and entering of his house and the alleged theft from it of various items.

It does not appear to have been in dispute at the trial that some such break-in did in fact occur. The representations made in ex. 14 that were alleged to be false were that the loss had occurred, or at least had been discovered, on 28 August 1992; and that the items taken included a lady's diamond and ruby ring, and a pair of diamond and ruby earrings; as well as various household items such as videos, colour television sets, a microwave oven, CD player, telephone answering machine, and so on, identified in the accompanying list. What was in issue at the trial was whether the items listed were in fact in the house and had been taken; and also whether the break-in occurred on 28 August 1992 rather than on 26 August. The difference was important because the policy had not been renewed on 26 July 1992 by payment of the annual premium then due. It was, however, subsequently reinstated upon payment of the premium by the appellant on the afternoon of 26 August. Representing that the break-in had taken place on 28 August was, so it was alleged, intended to conceal from the insurer the fact that the appellant knew of it but did not disclose it when he paid the premium two days earlier.

At the trial the prosecution established the making of the representations by proving that the appellant had delivered the claim form and list (ex. 14), which was supported by a signed statement dated 5 October also furnished by the appellant to the insurer's loss adjuster (ex. 15), together with a supplementary handwritten statement (ex. 16). This still left the Crown with the task of proving the falsity of the representations. For this purpose several witnesses were called and testified. A Ms. Burnett said that the ring had been given to her by the appellant in 1987 and the earrings in 1988, and that she had had them in her possession ever since. She had lived with him at Tallaroon Street, Jindalee, for some four years or more until he moved out in June 1992 and went to live at Hazleton Street, Riverhills. She said in evidence that the ring was something she treasured. She never took it off and she had it on her finger when she testified at the trial.

Ms. Burnett also gave some evidence about a television set and some of the other items involved; but as regards those items the Crown relied principally on the evidence of the appellant's son Kyle Fulton to prove the falsity of the representations made in ex. 14. He said he remembered that the break-in had occurred not on Friday 28 August but on Wednesday 26 August, and he recalled the appellant in the afternoon of that day asking that other members of the family lend him money quickly to pay the insurance premium needed to reinstate the policy. Kyle Fulton also identified individual items on the list (ex. 14) that he said were no longer in the house on the date of the break-in as stated in the claim form.

The element of falsity in the charge against the appellant was plainly established at the trial by the foregoing testimony of Ms. Burnett and of Kyle Fulton if their evidence was accepted by the jury. The verdict shows it was. On appeal it was argued that the conviction was unsafe because those two witnesses were demonstrably so unreliable that their evidence should have been rejected. In the case of Ms. Burnett, the reason given is that, as the rejected former lover of the appellant, she bore him ill-will; and, furthermore, that she had in 1988 sworn some answers to interrogatories in a personal injuries action that she now acknowledged were false. In the case of Kyle Fulton, it was said that his attitude to the appellant was so unfilial that on one occasion he had gone to the length of forging his father's signature to a document in order to land him in trouble with his employer.

These were both matters that the jury might be expected to, and presumably did, take into account in deciding whether or not they believed the evidence of Ms. Burnett and Kyle Fulton. Deciding questions of credibility and the reliability of oral testimony is the central role of the jury in a criminal trial. It is said that, for that reason, "an appellate court will infrequently set aside a conviction as being unsafe because the evidence of a Crown witness lacked reliability or credibility": Chidiac v. The Queen (1991) 171 C.L.R. 432, 444, per Mason C.J.; see also per Dawson J., at 453. The present case involved none of the special categories of testimony that are traditionally viewed by the courts with great caution, such as identification evidence, or the evidence of accomplices, or of children, or of complainants in sexual cases (ibid, at 444). Jurors seldom have the same degree of regular exposure to evidence of that kind that has tended to alert judges and legal practitioners to the endemic weaknesses of such testimony.

The same cannot be predicated of the evidence of the two witnesses challenged in this appeal. The behavioural patterns of disaffected lovers and adolescent sons are at least as well known to jurors as to anyone else. Much effort was expended by defence counsel in cross-examination, and doubtless also in address, in bringing such matters to the notice of the jury in the present case. There is no reason to suppose that, in deciding as they did, the jury disregarded the dangers pointed out, or that they failed to give them proper weight. In the end, however, they evidently determined to accept the evidence of those two witnesses. A perusal of the testimony of Ms. Burnett and of Kyle Fulton as it appears in the pages of the record discloses nothing that would make it plainly unworthy of credence. The incidents relied on as demonstrating animosity on their part are cogent; but they are not so fatal to credit as to preclude a rational jury from believing what they said. Indeed, it is by no means impossible that part of the adverse impression that the jury evidently formed of the appellant also owed something to details of matters that were put against Ms. Burnett and Kyle in the course of their cross-examination.

In the end we are far from persuaded that Ms. Burnett and Kyle Fulton were so obviously unreliable as witnesses as to require outright rejection of their evidence. Ms. Burnett's demonstration in the witness box that she had the supposedly stolen ring on her finger could hardly have failed to impress the jury charged with determining the truth of her statement that the ring had never left her possession. Success on that item alone would have sufficed to establish the falsity element of the offence charged. The prosecution was not obliged to prove that false representations were made concerning each and every item in the list. Proof of only one would be enough. To establish the Crown case on this point it was sufficient that Ms. Burnett's evidence about the ring was believed, even if Kyle Fulton's evidence was rejected.

The notion that the jury ought at least to have rejected Kyle Fulton's evidence led counsel for the appellant to advance to a further argument, for which he candidly acknowledged there was no authority. It was that if, as the appellant contended, Kyle Fulton's evidence ought to have been disregarded, the Court was left in the difficult position of not knowing whether the jury might not have acted on the unreliable evidence of Kyle Fulton rather than the evidence of Ms. Burnett. In that event, it was said, there would have been a miscarriage of justice at the trial which should be corrected on appeal.

The submission has more than one weakness. The most obvious is that the Court is being asked to assume that, confronted with two persons as witnesses, the jury elected to act on the evidence of the very one who (as is also urged) they ought plainly to have realised they should reject. There is, however, no warrant in law or in fact for imputing to this or any other jury a bias in favour of the least rational method of arriving at their verdict. It is in any case not uncommon for evidence of an element of an offence to be proved by more than one witness, who testify about various and often distinct matters they have seen or heard, and who do so with differing degrees of cogency. It is not the law that, if one of those witnesses is patently unworthy of credit, the verdict and conviction must be set aside on appeal irrespective of evidence from other credible witnesses capable of independently supporting the verdict.

The appeal against conviction therefore fails. So far as sentence is concerned, the term of six months imprisonment does not impress us as being manifestly excessive. The offence is of a kind said to be prevalent and the amount of some $13,000 involved is by no means negligible. In sentencing the appellant to a term of imprisonment, the learned judge said he bore in mind both the circumstances of the case and the appellant's history. Among them may have been the circumstance that there had been a carefully contrived plan to induce the insurer to pay for numerous items that were in fact not insured at all, and to do so under a policy which the appellant had succeeded in reinstating by means of a dishonest subterfuge.

The appellant had, it should be added, previous convictions in 1986 for two offences of forgery, one of uttering, and another of false pretences. They arose out of the sale and transfer or attempted transfer of a house he owned jointly with his former wife, who disappeared in 1986. In order to enable the property to be sold, the appellant prevailed on Ms. Burnett to sign the transfers pretending that she was his wife. In consequence she was also charged with committing an offence.

On that occasion the appellant was, in respect of the first three of those charges, discharged on entering into a bond to be of good behaviour for three years; and, in respect of the false pretences charge, he was fined $1,000. The bond had expired only a week before the first steps were taken toward the commission of the present offence. On sentencing for the present offence his Honour may therefore have been justified in considering that the previous conviction and sentence had done nothing to deter the appellant from resorting to falsehoods as a means of solving his financial problems. Consistently with the principles on which this Court acts in applications like this, there is no basis on which the sentence that was imposed here can properly be revised.

It was urged upon us that we should, on the application for leave to appeal against sentence, receive and act upon an affidavit from the appellant deposing to health problems that he would experience in prison because of a condition from which he suffers. The matter was not relied on before the sentencing judge, although the condition was known prior to the sentence hearing. In such circumstances it would, we consider, be a rather rare case in which this Court would be prepared to receive such evidence for the first time on appeal in order to review a sentence properly imposed. Conceding the force of this, Mr Glynn of counsel then confined his application to requesting that we read the affidavit in the event that we were persuaded that the appeal against sentence should succeed.

For the reasons already given we consider that the application to appeal against sentence should be refused. Counsel made a further application for an order that, in the event of dismissal of the appeal, the period of some days during which the appellant was in custody until granted bail pending determination of his appeal should be counted as part of his sentence. The application was made under s.671G(3) of the Criminal Code. So far as relevant here, it is to the effect that the time during which an appellant is "specially treated" as an appellant in custody pending determination of his appeal is not to count as part of the appellant's term of imprisonment under the sentence. The provision is expressed to be "subject to any directions which the Court may give to the contrary on any appeal", and it is for such a direction that application is made.

Section 671G must be viewed in conjunction with s.75(3) of the Corrective Services Act 1988. It enables an appellant detained in custody pending determination of his appeal to require the Corrective Services Commission to treat him as a prisoner serving a term of imprisonment: s.75(3)(a). To achieve this it is necessary for the appellant to give written notice to the Commission. If that is done, then, subject again to any order of the Court to the contrary, the time during which he is treated as a prisoner counts as part of his sentence: s.75(3)(b).

The difficulty is that, even if we were minded here to make the order sought, we do not have material before us enabling a proper discretion to be exercised in the matter; for example, we do not know whether the appellant was not being "specially treated as an appellant" under s.671G before his release on bail pending appeal, or why written notice was not given to the Commission. In these circumstances it would not be right to accede to his application on this point. It is enough to say that no reason has been shown why this Court should exercise in the appellant's favour any discretion that it possesses under s.671G.

The appeal against conviction is dismissed. The application for leave to appeal against sentence and for a direction under s.671G(3) of the Criminal Code are refused. A warrant must issue for the arrest of the appellant, but it will lie in the office of the Registrar for one week or until further order.