R v Heinze

Case [2005] VSCA 124

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 242 of 2004

THE QUEEN

v.

FREDERICK RICHARD HEINZE

No. 289 of 2004

DIRECTOR OF PUBLIC PROSECUTIONS

v.

FREDERICK RICHARD HEINZE

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JUDGES:

CALLAWAY, EAMES and NETTLE, JJ.A.

WHERE HELD:

MELBOURNE

DATE OF HEARING:

26 April 2005

DATE OF JUDGMENT:

19 May 2005

MEDIUM NEUTRAL CITATION:

[2005] VSCA 124

First Revision:  19 May 2005

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Criminal law – Application for leave to appeal against conviction and Crown appeal against sentence – False accounting, obtaining a financial advantage by deception, making a false document, using a false document and perjury – Whether presentment should have been severed – Whether separate consideration directions adequate – Whether document properly admitted to rebut suggestion of recent invention – Whether document otherwise admissible – Omission to give directions regarding use of document – Whether exception taken – Whether appellate intervention warranted – Whether Jones v. Dunkel direction should have been given adverse to Crown – Judge's direction regarding elements of false accounting – Whether defence counsel wrongly prevented from cross-examining bank officer about bank's alleged bias  - Total effective sentence of two years' imprisonment, with three months to serve immediately and 21 months suspended for two years – No effective cumulation – Whether sentence manifestly inadequate despite mitigating factors – Respondent resentenced to four years’ imprisonment with non-parole period of two years – Evidence Act 1958, ss. 58A, 58B.

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APPEARANCES: Counsel Solicitors
For the Crown Mr. P.A. Coghlan, Q.C., D.P.P. with Mrs. C.M. Quin Mr. S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant/
Respondent		 Mr. P.F. Tehan, Q.C.
with Mr. R.A.R. Lewis 		Cahills

CALLAWAY, J.A.:

  1. Frederick Richard Heinze applies for leave to appeal against conviction and the Director of Public Prosecutions appeals against the sentence that was imposed.   Mr Heinze is the applicant in the first case and the respondent in the second, but I shall follow the convenient course adopted by Nettle, J.A. in his reasons, which I have read in draft, and call him "the applicant" in both parts of this judgment. 

  1. As Nettle, J.A. records, the applicant was found guilty, following a trial, on two counts of false accounting (counts 1 and 2), one count of obtaining a financial advantage by deception (count 3), one count of making a false document (count 4), one count of using a false document (count 5) and one count of perjury (count 6).   Following a plea for leniency, he  was sentenced on 21st  September 2004.  I shall set out the sentence in full, as it appears in the return of prisoners:

"Count 1.       He be imprisoned for a period of 12 months.

Count 2.       He be imprisoned for a period of 12 months.

Count 3.       He be imprisoned for a period of 15 months.

These sentences be served concurrently on each other an effective sentence on these 3 counts of 15 months.

Count 4.       He be imprisoned for a period of 15 months.

Count 5.       He be imprisoned for a period of 15 months.

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R v Heinze [2005] VSCA 124
Case
[2005] VSCA 124
Decision Date

CaseChat Overview and Summary

In the case of R v Heinze, the respondent was convicted on multiple charges including false accounting, obtaining a financial advantage by deception, making a false document, using a false document, and perjury. The Crown appealed the sentence imposed by the trial judge, which was deemed manifestly inadequate. The respondent, on the other hand, applied for leave to appeal against his conviction. The legal issues before the court included whether the presentment should have been severed, whether separate consideration directions were adequate, the admissibility of certain documents, and the propriety of the sentence.

The court examined whether the presentment should have been severed and concluded that the separate consideration directions were adequate to avoid any risk of prejudice. Regarding the admissibility of Exhibit U, the court held that it was properly admitted to rebut the suggestion of recent invention and was also admissible under s.58B of the Evidence Act 1958 as an entry made in a book of account. The court rejected the respondent's argument that there was a significant difference between bank diary notes and mere correspondence, finding that both were documents used in the ordinary business of a bank.

The court found that the total effective sentence of two years' imprisonment, with three months to serve immediately and 21 months suspended for two years, was manifestly inadequate. The respondent was resentenced to four years’ imprisonment with a non-parole period of two years. The court's decision was based on the severity of the offences, the need for general deterrence, and the significant harm caused to the victims.

The court concluded that the appeal against sentence should be allowed, and the respondent was resentenced as indicated. The application for leave to appeal against conviction was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Furthermore, the Crown says that Exhibit U was not only admissible on the basis that it went to rebut the imputation of recent fabrication but also under s.58B of the Evidence Act 1958 as an entry made in a book of account and therefore as prima facie evidence of the truth of its contents. Section 58B[43] provides among other things that an entry in a book of account[44] shall be prima facie evidence of the matters, transactions and accounts therein recorded, and in R v Smart[45] it was held that it is sufficient for a document to qualify as a “book of account” that it be one of the documents used in the ordinary business of a bank. Hence diary notes made by bank officers as to the financial standing and condition of two companies the subject of fraud charges were admissible as evidence of the standing and condition of the companies at the time the notes were made. Parity of reasoning suggests that copies of correspondence sent and received by a bank in the ordinary course of its business should also qualify as books of account.[43] “58B. Entries in book of account to be evidence[44]“Book of account” is defined in s. 58A as including a ledger, day book, cash book, account book, and any other document used in the ordinary business of an authorised deposit–taking institution.[45][1983] 1 VR 265 at 290-293. The applicant resists that conclusion. He submits that there is a significant difference between bank diary notes and mere correspondence and that while it might be supposed that diary notes are made in the ordinary business of a bank, mere correspondence is not. I see no relevant difference between the diaries in Smart and Exhibit U. It has been held in England that letters are not “books of account” within s.9(2) of the Bankers’ Books Evidence Act 1879 (UK)[46]. But the definition under the English act is narrower than under s.58A of the Evidence Act 1958. The English definition speaks of ledgers, day books, cash books, account books, and all other books used in the ordinary business of the bank (as opposed to all other documents used in the ordinary business of the bank) and as the court noted in R v Smart, the effect of substituting ‘’documents” for “books”[47] was to make admissible all other documents used in the ordinary course of the business of the bank.[48] An analogous approach was taken in New South Wales under s.14 B of the Evidence Act 1898 (NSW). It was held that the phrase “record of a business” was a descriptive term, not confined to any particular category of document, and hence that it included correspondence and internal memoranda[49] as well as notes of a one-off meeting.[50] The same has also been said of s.69 of the Evidence Act 1995 (NSW)[51].[46]R v Dadson (1983) 77 Cr App R 91 at 94.[47]The English definition was used in the Evidence Act 1958 until 1965 when it was amended by substituting “all other documents” for “all other books”.[48][1983] VR 265 at 291.[49]Atra v. Farmers & Graziers Co-op Co. Ltd (1986) 5 NSWLR 281 at 288.[50]Feltafield Pty Ltd v. Heidelberg Graphic Equipment (1995) 56 FCR 481 at 483.[51]Drabsch v Switzerland General InsuranceCo. Ltd. [1999] NSWSC 1030; Global Medical ImagingManagement Ltd. (In Liq.) v. Australian Mezzanine Investments Pty. Ltd. [2003] NSWSC 431; Burgess v. Kelspur Pty Ltd (2001) 21 NSWCCR 490 at [5].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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