R v Gregory (No 1) - [2009] VSC 358

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1405 of 2009

THE QUEEN

PAUL JOHN GREGORY

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 July 2009
DATE OF RULING	25 August 2009
CASE MAY BE CITED AS:	R v Gregory
MEDIUM NEUTRAL CITATION:	[2009] VSC 358

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CRIMINAL LAW – Two counts of defrauding the Commonwealth and one count of conspiracy to dishonestly cause a risk of loss to the Commonwealth – Joinder of counts in one indictment – Severance application – Nexus between counts – Crimes Act 1958 (Vic), s 371, Sixth Schedule r 2.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr Y Hardjadiabrata	Commonwealth Director of Public Prosecutions
For the Accused	Mr I Temby QC	Sparke Helmore

HIS HONOUR:

Paul John Gregory is charged on indictment with two counts of defrauding the Commonwealth (s 29D of the Crimes Act 1914 (Cth)) and one count of conspiracy to dishonestly cause a risk of loss to the Commonwealth (s 135.4(5) of the Commonwealth Criminal Code). The three counts on the indictment are set out in full in the appendix. The two counts of defrauding the Commonwealth are alleged to have occurred respectively between January 1994 and 6 October 1995 and between 1 July 1994 and 23 January 1996 and each concern an alleged failure by a person named Glenn Dawson Wheatley to declare income to the Commissioner of Taxation. The conspiracy count is alleged to have occurred between 28 March 2003 and 26 May 2004 and also concerns the taxation affairs of Mr Wheatley.

On 14 July 2009 I heard an application on behalf of the accused to sever the indictment. The application was made on two grounds. First, it was submitted that the joinder of the charges was not authorised by the applicable rule, being Rule 2 of the Sixth Schedule to the Crimes Act 1958 (Vic). Secondly, it was submitted that if the charges had been properly joined in the one indictment an order should be made under s 372(3) of the Crimes Act 1958 (Vic) for separate trials of the two counts of defrauding the Commonwealth on the one hand and the conspiracy count on the other on the basis that the accused may be prejudiced or embarrassed in his defence by reason of being charged with all three counts on the one indictment and that it is desirable to direct that counts 1 and 2 be tried separately from count 3. Before considering the submissions made, it is necessary to outline the general nature of the Crown case.

The Crown case

The Crown has filed a document described as a summary of the Crown opening, which is itself 99 paragraphs long. My summary of that summary is as follows.

All three counts on the indictment concern allegations that the accused, together with others, used Swiss bank accounts, offshore trust structures, and entities associated with an accounting organisation in Jersey and in Switzerland known as Strachans…

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 Gregory (No 1)

Details

AGLC: R v Gregory [2009] VSC 358
Case: [2009] VSC 358
Decision Date: 25 August 2009

CaseChat Overview and Summary

The case of R v Gregory (No 1) involved the appellant, Gregory, who faced two counts of defrauding the Commonwealth and one count of conspiracy to dishonestly cause a risk of loss to the Commonwealth. The appellant applied for severance of the counts, arguing that the counts were not properly joined as they did not form part of the same transaction or series of transactions. The matter was heard in the Court of Appeal of the Supreme Court of Victoria.

The primary legal issue before the court was whether the counts in the indictment were properly joined under the provisions of the Crimes Act 1958 (Vic). Specifically, the court had to determine whether the counts related to the same transaction or series of transactions, which would permit their joinder under rule 2 of the Sixth Schedule to the Act. The appellant contended that the counts did not meet the criteria for joinder, as they were not part of the same transaction or series of transactions, and therefore, severance should be granted.

The court examined the criteria for joinder of counts under the Crimes Act 1958 (Vic) and considered the relationship between the counts. The court held that the counts were properly joined as they were part of the same transaction or series of transactions, and thus, the appellant's application for severance was dismissed. The court found a sufficient nexus between the counts, which justified their joinder in a single indictment.

The court did not make any final orders as the appeal related to the severance application, which was dismissed. The case proceeded to the substantive trial on the merits of the charges against the appellant.

Orders