R v Hitzke - [2018] QDC 207

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Hitzke [2018] QDC 207

PARTIES:

THE QUEEN

v

JOHN VINCENT HITZKE

FILE NO/S:

1135/17

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

17 October 2018

DELIVERED AT:

Brisbane

HEARING DATE:

8, 9, 10, 11, 12, 15, 16 October 2018

JUDGE:

Smith DCJA

ORDER:

1. I refuse the Crown application to amend the particulars.

2. I rule there is no case to answer.

CATCHWORDS:

CRIMINAL LAW – PROPERTY OFFENCES- FRAUD- EVIDENCE- NO CASE SUBMISSION- whether elements can be proved beyond reasonable doubt- whether particulars alleged by the crown could be sustained- whether there was a false representation as alleged- whether there was an inducement as alleged

CRIMINAL LAW- INFORMATION, INDICTMENT OR PRESENTMENT- Particulars- Application to amend at the conclusion of the Crown case- whether should be granted- whether prejudice to the defence- whether the particulars were proved

Criminal Code1899 (Q) ss 408C, 573

Penalties and Sentences Act 1992 (Q) s 13A

Sale of Goods Act 1896 (Q) ss 4, 11

Australian Competition and Consumer Commission v Nationwide News Pty Ltd (1996) 36 IPR 75; [1996] ATPR 41-519; [1996] FCA 1684

Doney v R (1990) 171 CLR 207

Heritage Clothing Pty Ltd v Men’s Suit Warehouse Pty Ltd [2008] ATPR 42-270; [2008] FCA 1775

Gould v Vaggelas (1985) 157 CLR 215

Kirk v Industrial Court of New South Wales (2009) 239 CLR 531

Nationwide News Pty Ltd v ACCC (1996) 71 FCR 215

Patel v R (2012) 247 CLR 531

Potts v Miller (1940) 64 CLR 282

R v Chong [2012] QCA 265

R v Jenkins (2002) 6 VR 81

R v Laverty [1970] 3 All ER 432

R v Lewis [1994] 1 Qd R 613

R v Patel (No 2) [2012] QSC 420

Shik Aun Low v R (1978) 23 ALR 616

Theophilus v Police (2011) 110 SASR 420

Trade Practices Commission v Cue Design Pty Ltd& Cue & Co Pty Ltd (1996) 85 A Crim R 500

COUNSEL:

Ms K Overell for the Crown

Mr A Morris QC and Mr I Munsie for the defence

SOLICITORS:

Office of Director of Public Prosecutions for the Crown

Australian Law Partners for the defence

Introduction

This is an application by the defence at the close of the Crown case for a ruling that there is no case to answer.

For the purpose of this submission I must take the Crown case at its highest and leave it to the jury even if there is tenuous or weak evidence.[1]
[1]Doney v R (1990) 171 CLR 207.

There is also an application by the Crown to amend its particulars.

Charge

The defendant is charged with the following count:

“That on divers dates between the 11^th day of August, 2009 and the 29^th of March, 2012 at Brisbane or elsewhere in the state of Queensland, the defendant dishonestly induced BOQ Equipment Finance Limited [or their agents] to deliver property to another person and the property was of a value…

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 Hitzke

Details

AGLC: R v Hitzke [2018] QDC 207
Case: [2018] QDC 207
Decision Date: 17 October 2018

CaseChat Overview and Summary

In the matter of R v Hitzke, the respondent was charged with fraud under the Commonwealth Criminal Code. The respondent was alleged to have obtained property by deception, under section 133.1, by falsely representing that he was entitled to a refund of goods returned. The application was heard in the Federal Circuit Court of Australia.

The respondent applied to the Court for a no case submission, arguing that the elements of the offence could not be proved beyond reasonable doubt. The respondent contended that there was no evidence to support the alleged false representation or the necessary inducement to the complainant to transfer the property. The Crown opposed the application, seeking to amend the particulars of the offence. The Court had to determine whether the elements of the offence could be proved beyond reasonable doubt and whether the particulars alleged by the Crown could be sustained.

The Court found that there was no evidence to support the particulars alleged by the Crown. The Court found that there was no evidence of a false representation or inducement as alleged. The Court found that the evidence did not establish that the respondent had made any representation or that the representation was false. The Court held that the elements of the offence could not be proved beyond reasonable doubt and that there was no case to answer. The Court also refused the Crown’s application to amend the particulars.

The Court dismissed the charges against the respondent and ruled that there was no case to answer. The Court found that the respondent had no case to answer and dismissed the charges against him.

Orders

Orders of the court

1. I refuse the Crown application to amend the particulars.

2. I rule there is no case to answer.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Hitzke [2018] QDC 207
PARTIES:	THE QUEEN v JOHN VINCENT HITZKE
FILE NO/S:	1135/17
DIVISION:	Criminal
PROCEEDING:	Trial
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	17 October 2018
DELIVERED AT:	Brisbane
HEARING DATE:	8, 9, 10, 11, 12, 15, 16 October 2018
JUDGE:	Smith DCJA
ORDER:	1. I refuse the Crown application to amend the particulars. 2. I rule there is no case to answer.
CATCHWORDS:	CRIMINAL LAW – PROPERTY OFFENCES- FRAUD- EVIDENCE- NO CASE SUBMISSION- whether elements can be proved beyond reasonable doubt- whether particulars alleged by the crown could be sustained- whether there was a false representation as alleged- whether there was an inducement as alleged CRIMINAL LAW- INFORMATION, INDICTMENT OR PRESENTMENT- Particulars- Application to amend at the conclusion of the Crown case- whether should be granted- whether prejudice to the defence- whether the particulars were proved Criminal Code1899 (Q) ss 408C, 573 Penalties and Sentences Act 1992 (Q) s 13A Sale of Goods Act 1896 (Q) ss 4, 11 Australian Competition and Consumer Commission v Nationwide News Pty Ltd (1996) 36 IPR 75; [1996] ATPR 41-519; [1996] FCA 1684 Doney v R (1990) 171 CLR 207 Heritage Clothing Pty Ltd v Men’s Suit Warehouse Pty Ltd [2008] ATPR 42-270; [2008] FCA 1775 Gould v Vaggelas (1985) 157 CLR 215 Kirk v Industrial Court of New South Wales (2009) 239 CLR 531 Nationwide News Pty Ltd v ACCC (1996) 71 FCR 215 Patel v R (2012) 247 CLR 531 Potts v Miller (1940) 64 CLR 282 R v Chong [2012] QCA 265 R v Jenkins (2002) 6 VR 81 R v Laverty [1970] 3 All ER 432 R v Lewis [1994] 1 Qd R 613 R v Patel (No 2) [2012] QSC 420 Shik Aun Low v R (1978) 23 ALR 616 Theophilus v Police (2011) 110 SASR 420 Trade Practices Commission v Cue Design Pty Ltd& Cue & Co Pty Ltd (1996) 85 A Crim R 500
COUNSEL:	Ms K Overell for the Crown Mr A Morris QC and Mr I Munsie for the defence
SOLICITORS:	Office of Director of Public Prosecutions for the Crown Australian Law Partners for the defence