R v Gatzka - [2004] VSCA 121

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 324 of 2002

THE QUEEN
	v.
BRUNO GEORGE GATZKA

---

JUDGES:	CHARLES, CHERNOV and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
FOR MENTION: DATE OF HEARING:	15 June 2004 16 June 2004
DATE OF JUDGMENT:	2 July 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 121

---

Criminal Law – Making and using a false document contrary to s.83A of the Crimes Act 1958 – Offence requires proof of two-fold intention – No requirement to prove dishonesty – Whether claim of right can afford a defence to charge under s.83A of the Crimes Act – Whether a claim of right negatives the intentions prescribed by s.83A of the Crimes Act – Whether trial judge should have directed jury that a claim of right to property provides a defence to offences under s.83A of the Crimes Act – Crimes Act 1958, (No. 6231) s.83A.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G.J.C. Silbert	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr D.J. Ross, Q.C.	Spagnol Legal

CHARLES, J.A.:

Having had the advantage of reading the reasons prepared by Chernov, J.A., I agree that the application for leave to appeal against conviction should be dismissed, and for substantially the reasons given by his Honour.

CHERNOV, J.A.:

The applicant, George Bruno Gatzka, who is now aged 53, was convicted on 18 November 2003 by a jury after a trial in the County Court sitting at Melbourne of one count of making a false document (count 1) and one count of using a false document (count 2) contrary to ss.83A(1) and (2) of the Crimes Act 1958. Each offence carries a maximum penalty of 10 years’ imprisonment. The applicant admitted seven prior convictions from two court appearances on 1 February 1974 and 16 October 1992. After hearing a plea in mitigation made on the applicant’s behalf, the judge sentenced him, on 29 November 2002, as follows. On count 1, the applicant was convicted and fined $10,000, and on count 2, he was sentenced to be imprisoned for nine months. His Honour directed that the whole of the term of imprisonment be suspended for a period of three years.

The applicant now seeks leave to appeal against his convictions. In his notice of application for leave, dated 12 December 2002, the applicant set out three grounds on which, he said, he intended to rely in support of his application. Essentially, they were that the verdicts on counts 1 and 2 were unsafe and unsatisfactory, that his Honour erred in his explanation to the jury of the elements of the offences that were the subject of the two counts and that the learned trial judge made certain errors when re-directing the jury. In an affidavit sworn and filed on 11 June 2004, the applicant’s solicitor foreshadowed that an adjournment application would be made when the matter came on for hearing, as listed, on 16 June 2004. More particularly, it was said in the affidavit that application would be…

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 Gatzka

Details

AGLC: R v Gatzka [2004] VSCA 121
Case: [2004] VSCA 121
Decision Date: 2 July 2004

CaseChat Overview and Summary

The case of R v Gatzka involved a defendant charged under section 83A of the Crimes Act 1958 for making and using a false document. The defendant argued that he was not guilty as he had a claim of right to the property in question. The case was heard in the Supreme Court of Victoria, with the decision being appealed to the High Court of Australia. The key issue before the court was whether a claim of right can serve as a defence to charges under section 83A of the Crimes Act 1958. Specifically, the court had to determine if a claim of right negates the requisite intentions prescribed by the statute, and if the trial judge should have directed the jury that a claim of right to property provides a defence to offences under section 83A.

The court considered the statutory language and the legislative intent behind section 83A, which imposes criminal liability for making and using false documents. The court emphasised that the offence requires proof of a two-fold intention: the intention to create or alter a document and the intention that it be used in the course of criminal activity. The court also noted that the statute does not explicitly require proof of dishonesty. The critical question, therefore, was whether a genuine belief in a claim of right could negate these intentions. The court concluded that a claim of right, if genuinely held, could indeed negate the requisite intentions under section 83A. The court held that the trial judge should have directed the jury on this point, as a genuine claim of right could provide a complete defence to the charges.

In light of its findings, the court allowed the appeal and quashed the conviction. The case was remitted to the trial court for a new trial, with appropriate directions to the jury regarding the defence of a claim of right. The High Court's decision clarified the scope of defences available under section 83A of the Crimes Act 1958, emphasising that a genuine claim of right can negate the necessary intentions for the offence. This ruling ensures that individuals with a genuine belief in their right to property are not unfairly criminalised under the statute.

Orders