R v Kelly - [2005] QCA 241

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kelly [2005] QCA 241

PARTIES:

R
v
KELLY, Richard Nicholas
(appellant/applicant)

FILE NO/S:

CA No 423 of 2004
DC No 89 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

15 July 2005

DELIVERED AT:

Brisbane

HEARING DATE:

22 June 2005

JUDGES:

Williams, Jerrard and Keane JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.    Appeal against conviction dismissed
2.    Application for leave to appeal against sentence       dismissed

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - WHERE GROUNDS FOR INTERFERENCE WITH VERDICT - PARTICULAR CASES - WHERE APPEAL DISMISSED - where appellant was convicted after trial by jury of one count of fraud - where appellant had been employed as the general manager of a company - where appellant was paid pursuant to invoices that the appellant rendered to the company's managing director - where appellant was authorized to have direct access to company bank accounts to procure payments on invoices countersigned by the managing director - where it was alleged that the appellant took advantage of this arrangement to pay himself more than the amount to which he was entitled - where the appellant and the managing director gave conflicting evidence as to the size of the appellant's remuneration package - where one invoice for payment submitted by the appellant related to "disbursements subcontractor/supplies and chemicals" - where appellant gave evidence this amount was actually the consultancy fee owing to him for the month of April 2003 but was characterized in a different form so that it could be charged as an overhead to the customer for accounting purposes - where trial judge commented to the jury in his summing up that it had not been put to the managing director that he had been a party to this scheme as was claimed by the appellant - where trial judge drew jury's attention to the fact that the date of the invoice made it impossible for the appellant to have actually performed any consulting services at the time the invoice was presented - where no redirection was sought by appellant's counsel at trial - whether the failure of the trial judge to direct the jury in relation to the operation of the rule in Browne v Dunn in such circumstances resulted in a miscarriage of justice

Criminal Code 1899 (Qld), s 668E(1A)

Browne v Dunn (1893) 6 R 67, cited

Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593, applied

R v Foley [1998] QCA 225; [2000] 1 Qd R 290, considered
R v McDowell [1997] 1 VR 473, cited

TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124,      applied

COUNSEL:

M C Chowdhury for appellant/applicant
T A Ryan for respondent

SOLICITORS:

Legal…

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 Kelly

Details

AGLC: R v Kelly [2005] QCA 241
Case: [2005] QCA 241
Decision Date: 15 July 2005

CaseChat Overview and Summary

The appellant, Kelly, was convicted of fraud following a trial by jury. The conviction stemmed from his role as the general manager of a company, where he was responsible for invoicing and had access to the company's bank accounts. The central issue was whether Kelly exploited this position to overpay himself. Conflicting testimonies from Kelly and the managing director complicated the case, particularly regarding an invoice labelled as "disbursements subcontractor/supplies and chemicals," which Kelly claimed was a consultancy fee disguised for accounting purposes. The trial judge's comments during summation on the invoice's timing and the managing director's potential involvement were pivotal. Kelly argued that the judge's omission to direct the jury on the rule in Browne v Dunn led to a miscarriage of justice.

The court had to determine if the trial judge's failure to properly direct the jury on the rule in Browne v Dunn constituted a significant error. This rule concerns the credibility of witnesses and whether an accused can be found guilty if there is doubt about a witness's complicity in a fraudulent scheme. The court considered whether this oversight was so substantial that it might have influenced the jury's verdict. The analysis involved reviewing the trial judge's comments and their potential impact on the jury's understanding and decision-making process. The court examined precedents such as Festa v The Queen and TKWJ v The Queen to understand how such errors should be assessed in appeals.

The court concluded that the trial judge's comments, while potentially prejudicial, did not reach the threshold of a miscarriage of justice. The judge's remarks did not misdirect the jury to the extent that it could be said the verdict was unsafe or unsatisfactory. The court found that the jury was adequately directed on the essential elements of the offence and the credibility of the witnesses. The absence of a redirection request during the trial further supported the conclusion that the error did not significantly affect the outcome. Consequently, the appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was also rejected.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence dismissed

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Kelly [2005] QCA 241
PARTIES:	R v KELLY, Richard Nicholas (appellant/applicant)
FILE NO/S:	CA No 423 of 2004 DC No 89 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	15 July 2005
DELIVERED AT:	Brisbane
HEARING DATE:	22 June 2005
JUDGES:	Williams, Jerrard and Keane JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - WHERE GROUNDS FOR INTERFERENCE WITH VERDICT - PARTICULAR CASES - WHERE APPEAL DISMISSED - where appellant was convicted after trial by jury of one count of fraud - where appellant had been employed as the general manager of a company - where appellant was paid pursuant to invoices that the appellant rendered to the company's managing director - where appellant was authorized to have direct access to company bank accounts to procure payments on invoices countersigned by the managing director - where it was alleged that the appellant took advantage of this arrangement to pay himself more than the amount to which he was entitled - where the appellant and the managing director gave conflicting evidence as to the size of the appellant's remuneration package - where one invoice for payment submitted by the appellant related to "disbursements subcontractor/supplies and chemicals" - where appellant gave evidence this amount was actually the consultancy fee owing to him for the month of April 2003 but was characterized in a different form so that it could be charged as an overhead to the customer for accounting purposes - where trial judge commented to the jury in his summing up that it had not been put to the managing director that he had been a party to this scheme as was claimed by the appellant - where trial judge drew jury's attention to the fact that the date of the invoice made it impossible for the appellant to have actually performed any consulting services at the time the invoice was presented - where no redirection was sought by appellant's counsel at trial - whether the failure of the trial judge to direct the jury in relation to the operation of the rule in Browne v Dunn in such circumstances resulted in a miscarriage of justice Criminal Code 1899 (Qld), s 668E(1A) Browne v Dunn (1893) 6 R 67, cited Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593, applied R v Foley [1998] QCA 225; [2000] 1 Qd R 290, considered R v McDowell [1997] 1 VR 473, cited TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, applied
COUNSEL:	M C Chowdhury for appellant/applicant T A Ryan for respondent
SOLICITORS:	Legal…