R v Jensen - [1998] QCA 300

COURT OF APPEAL

[1998] QCA 300

FITZGERALD P
DAVIES JA

FRYBERG J

CA No 8 of 1998
THE QUEEN
v.

DUDLEY PETER JENSEN

Applicant

BRISBANE
..DATE 24/02/98
240298 T16-17/DK/2 M/T COA23/98
THE PRESIDENT: This is an application for an extension of
time within which to appeal against conviction. The applicant,
Dudley Peter Jensen was convicted in the District Court of
Brisbane on 8 December 1997 on two counts of misappropriation.
Count 1 alleged:
"That between 30 November 1987 and 3 December 1992 the applicant

dishonestly applied for his own use or use of another person property in the form of a chose in action consisting of bank credits belonging to Veronica Margaret McCabe or the administrators or executors of her estate and further that the said property was upwards of $5,000."

The second count alleged:

"That between 3 December 1987 and 4 December 1993 Mr Jensen dishonestly applied to his own use or use of another person property in the of a chose in action consisting of bank credits belonging to Veronica Margaret McCabe and Josephine Mary McCabe or the administrators or executors of their estates and further that the said property was of a value of $5,000."

The jury acquitted Mr Jensen of a third count alleging:

"That between 8 September 1988 and 24 September that year he dishonestly applied to his own use or use of another person property in the form of a chose in action consisting of bank credits belonging to Veronica Margaret McCabe and Josephine Mary McCabe or the administrators or executors of their estates and further that the said property was of a value of $5,000."

...

THE PRESIDENT: Count 1 related to 27 withdrawals made by cheques drawn on the cheque account of Veronica Margaret McCabe totalling $31,624.19. Count 2 related to 67 withdrawals by 240298 T16-17/DK/2 M/T COA23/98

cheque from the joint account of Veronica

Margaret McCabe and Josephine Mary McCabe which totalled $192,116.83. Count 3 related to four withdrawals totalling $28,000 made from the joint passbook account of Veronica Margaret McCabe and Josephine Mary McCabe.

Mr Jensen did not seek to appeal against his conviction until the Attorney-General appealed against the sentence imposed by the trial Judge.

In respect of the two offences of which Mr Jensen was convicted His Honour imposed a sentence of imprisonment for three years, but suspended it immediately - that is to say, the whole term of imprisonment - on the basis that Mr Jensen must not commit another offence punishable by imprisonment within a period of three years, if he was to avoid being dealt with for the suspended term of imprisonment.

The Attorney-General's appeal was filed on 23 December 1997, that is to say, of course, shortly before Christmas, and Mr Jensen deposes to delays associated with the Christmas holiday period by way of explanation of his delay in commencing his appeal.

He says that he was unable to seek advice until 6 January 1998 and that thereupon there were instructions given for a…

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 Jensen

Details

AGLC: R v Jensen [1998] QCA 300
Case: [1998] QCA 300
Decision Date: 24/02/1998

CaseChat Overview and Summary

The Court of Appeal of Queensland heard an application from Dudley Peter Jensen, the applicant, seeking an extension of time to appeal against his conviction. Jensen was convicted in the District Court of Brisbane on two counts of misappropriation by dishonestly applying for his own use or use of another person property in the form of bank credits belonging to Veronica Margaret McCabe or the administrators or executors of her estate and Josephine Mary McCabe. Jensen did not seek to appeal against his conviction until the Attorney-General appealed against the sentence imposed by the trial judge. Jensen's appeal was filed one day late, and he claimed that delays associated with the Christmas holiday period prevented him from seeking legal advice until 6 January 1998. The court had to decide whether there was any prospect of success in Jensen's appeal. Jensen's sole ground for appeal was that the jury's verdicts were inconsistent, but the court found that this was not the case. The court also found that there was no substantial miscarriage of justice if there was any defect in the indictment.

The court found that Jensen's appeal had no prospects of success and refused the application for an extension of time. The court held that the verdicts of the jury were consistent and that there was no substantial miscarriage of justice if there was any defect in the indictment. The court also found that the point regarding the indictment being in incorrect form was not taken by Jensen at the time when the indictment was presented. The court concluded that the appeal which Jensen wished to bring had no prospects of success, and the application for an extension of time was refused. The appeal was dismissed, and Jensen's conviction and sentence remained in place.

Orders