R v Gillan

[1993] QCA 31

[1993] QCA 031

COURT OF APPEAL

FITZGERALD P
DAVIES JA

McPHERSON JA

CA No 283 of 1992
THE QUEEN
v.

CLYDE GILLAN

BRISBANE
..DATE 4/02/93

McPHERSON JA: This is an appeal by Clyde Gillan against his conviction at a trial in the District Court at Townsville of the offence under section 29D of the Crimes Act 1914 of defrauding the Commonwealth. There is also an application for leave to appeal against sentence, which was two years’ imprisonment suspended on his entering into a bond.

The relevant facts are that during the period of September 1989 to January 1991, and while he was obtaining unemployment benefit in his own name, the appellant, so it was alleged, was also receiving other income from one or both of two sources, that is to say (a) unemployment benefit due to one McCracken and (b) rental from a house property that the appellant was letting to others.

One may begin by saying that it was, as the trial Judge in fact directed the jury, open to them to find the appellant Gillan guilty on the basis simply that he was receiving income from either one of those two sources without their being persuaded of the other.

There was evidence that at the relevant time the appellant was receiving the rental. That material was really unimpeached at the trial and was not challenged in the notice of appeal before us.

The conviction may and must therefore be sustained on that basis alone without reference to the matter of income derived by the appellant from unemployment benefit payable to McCracken. However, even if that were the appellant’s only “second” income, the conviction would still be sustainable.

The Crown called McCraken. He was, on any view, an unsatisfactory witness; but there was other evidence which, even if McCracken’s testimony was entirely disregarded, meant that it was open to the jury to convict. The other evidence benefit comprised expert opinion of handwriting that was examined by an expert, and an admission made by the appellant to a Ms Eastley who was McCracken’s girlfriend. What she said was not challenged at the trial. 2

The appeal against conviction is therefore hopeless and must be dismissed. As to sentence, imposing a term of imprisonment for two years was well within the limits of a proper discretion to fix an appropriate sentence in a case like this where a substantial amount of some $10,000 was involved, the more so as his Honour also extended to the appellant the benefit or advantage of a good behaviour bond.

In my view, the appeal against convction should be dismissed and the application for leave to appeal against sentence should be refused.

THE PRESIDENT: I agree.

DAVIES JA: I agree.

THE PRESIDENT: The order of the Court is appeal against conviction dismissed and application for leave to appeal against sentence refused.

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