R v Johnstone - [2000] QCA 234

SUPREME COURT OF QUEENSLAND

CITATION: R v Johnstone [2000] QCA 234

PARTIES: R
v
JOHNSTONE, James Robert
(appellant)

FILE NO/S: CA No 372 of 1999
DC No 1217 of 1999

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction

ORIGINATING COURT:
District Court at Brisbane

DELIVERED ON: 16 June 2000

DELIVERED AT: Brisbane

HEARING DATE: 23 May 2000

JUDGES: McMurdo P, Pincus JA, Muir J
Judgment of the Court

ORDER: Appeal against conviction dismissed

CATCHWORDS:
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – VERDICT – INCONSISTENT, AMBIGUOUS AND MEANINGLESS VERDICTS – PARTICULAR CASES – PROPERTY OFFENCES – appellant convicted on three out of eight counts of misappropriation as employee – no clear basis for differentiation between counts on which convicted and counts on which acquitted – whether "merciful verdict"

CRIMINAL LAW – PARTICULAR OFFENCES – PROPERTY OFFENCES – CLAIM OF RIGHT – evidence that appellant practised "salary sacrificing", and that moneys the subject of indictment owed to appellant under this scheme – purpose of "salary sacrificing" to reduce income and payroll tax – whether Criminal Code s 22 defence of honest claim of right available where intention to defraud Commissioner of Taxation

R v B (CA No 346 of 1992, 2 September 1993), mentioned
R v Kirkman (1987) 44 SASR 591, followed
Mackenzie v The Queen (1996) 190 CLR 348, followed
R v Stone (unreported) 13 December 1954, UKCCA, mentioned

Criminal Code (Qld), s 22, s 408C, s 668E

COUNSEL: M W C Harrison for the appellant
L Clare for the respondent

SOLICITORS: Palella Humphries and Venardos for the appellant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: The appellant was convicted in the District Court at Brisbane on 27 October 1999 of three counts of misappropriation as an employee and acquitted on another five counts. He appeals against his convictions on the grounds that the guilty verdicts are inconsistent and irreconcilable with the verdicts of not guilty.

The eight counts on the indictment each allege that on or about a date specified, the appellant -

"…dishonestly applied to his own use property namely a sum of money namely [an amount specified] the property of BRISBANE ASSOCIATED FRIENDLY SOCIETIES’ DISPENSARY.
And at the time aforesaid [the appellant] was an employee of the said Brisbane Associated Friendly Societies’ Dispensary and the property dishonestly applied belonged to the said Brisbane Associated Friendly Societies’ Dispensary …".

Section 408C of the Criminal Code (Qld) relevantly provides –

"(1) A person who dishonestly –
(a)applies to his or her own use or to the use of any person –
(i) property belonging to another; or
(b)obtains property from any person; …

commits the crime of fraud".

At the times at which the subject counts of misappropriation are concerned the appellant was the accountant for the Friendly Care Chemists Friendly Society (Australia) Ltd, formerly called Brisbane Associated Friendly Societies' Dispensary ("the Society"). In the case of each count, the misappropriation was alleged to have taken place by means of the appellant's making out…

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 Johnstone

Details

AGLC: R v Johnstone [2000] QCA 234
Case: [2000] QCA 234
Decision Date: 16 June 2000

CaseChat Overview and Summary

The appellant was convicted of various property offences, including misappropriation as an employee, under the Criminal Code. The jury returned an inconsistent and ambiguous verdict, convicting the appellant on three counts out of eight of misappropriation, while acquitting him on the others. The appellant appealed against his conviction, arguing that the verdict was ambiguous and meaningless. The central issue before the court was whether the verdict was a "merciful verdict," as there was no clear basis for differentiating between the counts on which the appellant was convicted and those on which he was acquitted. Furthermore, the court had to consider whether the defence of honest claim of right was available to the appellant, given his practice of "salary sacrificing" and the evidence that the moneys subject to the indictment were owed to him under this scheme.

The court held that the verdict, although inconsistent, was not ambiguous or meaningless. The jury had clearly differentiated between the counts on which they believed the appellant was guilty and those on which they did not. The court found that the appellant had failed to demonstrate that the verdict was a "merciful verdict" as there was a rational basis for the jury's differentiation. Additionally, the court found that the defence of honest claim of right was not available to the appellant, as the intention to defraud the Commissioner of Taxation was an essential element of the offence, and there was no evidence that the appellant honestly believed he was entitled to the moneys in question. Therefore, the appeal against conviction was dismissed.

In light of the above, the court made no orders regarding the appellant's conviction. The appeal was dismissed, and the original conviction stood. The court did not find it necessary to make any further orders in relation to the matter.

Orders

Orders of the court

Appeal against conviction dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Johnstone [2000] QCA 234
PARTIES:	R v JOHNSTONE, James Robert (appellant)
FILE NO/S:	CA No 372 of 1999 DC No 1217 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	16 June 2000
DELIVERED AT:	Brisbane
HEARING DATE:	23 May 2000
JUDGES:	McMurdo P, Pincus JA, Muir J Judgment of the Court
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – VERDICT – INCONSISTENT, AMBIGUOUS AND MEANINGLESS VERDICTS – PARTICULAR CASES – PROPERTY OFFENCES – appellant convicted on three out of eight counts of misappropriation as employee – no clear basis for differentiation between counts on which convicted and counts on which acquitted – whether "merciful verdict" CRIMINAL LAW – PARTICULAR OFFENCES – PROPERTY OFFENCES – CLAIM OF RIGHT – evidence that appellant practised "salary sacrificing", and that moneys the subject of indictment owed to appellant under this scheme – purpose of "salary sacrificing" to reduce income and payroll tax – whether Criminal Code s 22 defence of honest claim of right available where intention to defraud Commissioner of Taxation R v B (CA No 346 of 1992, 2 September 1993), mentioned R v Kirkman (1987) 44 SASR 591, followed Mackenzie v The Queen (1996) 190 CLR 348, followed R v Stone (unreported) 13 December 1954, UKCCA, mentioned Criminal Code (Qld), s 22, s 408C, s 668E
COUNSEL:	M W C Harrison for the appellant L Clare for the respondent
SOLICITORS:	Palella Humphries and Venardos for the appellant Director of Public Prosecutions (Queensland) for the respondent