R v Kowaliw - [2013] QCA 350

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kowaliw [2013] QCA 350

PARTIES:

R
v
KOWALIW, Damien Alexander
(appellant/applicant)

FILE NO/S:

CA No 365 of 2011
DC No 2250 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

29 November 2013

DELIVERED AT:

Brisbane

HEARING DATE:

6 August 2013

JUDGES:

Muir and Fraser JJA and Philip McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Application for leave to adduce evidence refused.

2.   Appeal dismissed.

3.   Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was found guilty of three counts of stealing as a servant – where the appellant worked as an attendant at a car park – where the prosecution alleged the appellant took sums of money from the payment machines – where the appellant did not give or call evidence at trial – where the appellant sought to adduce a forensic accounting report as fresh evidence in the appeal – where the appellant argued that the report demonstrated the conviction on count 1 involved a miscarriage of justice – where the appellant submitted the report demonstrated unreliability in evidence led at trial as to the difference between the car park’s records of money received by the payment machines and the money collected from the machines – whether the forensic accounting report should be admitted as fresh evidence – whether the conviction on count 1 involved a miscarriage of justice

Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
Michaelides v The Queen (2013) 87 ALJR 456; [2013] HCA 9, cited
Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35, cited
R v Spina[2012] QCA 179, cited

COUNSEL:

M J Byrne QC, with C F Wilson, for the appellant/applicant
G P Cash for the respondent

SOLICITORS:

Fisher Dore Lawyers for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent

[1] MUIR JA: For the reasons given by Fraser JA, I agree that the application for leave to adduce evidence in the appeal should be refused, that the appeal against conviction should be dismissed and that the application for leave to appeal against sentence should be refused.

[2] FRASER JA: The appellant was found guilty by a jury of three counts of stealing as a servant. Count 1 charged that the appellant, being the servant of Wilson Parking Australia 1992 Pty Ltd (“Wilson Parking”), stole a sum of money the property of Wilson Parking on divers dates between 5 September 2007 and 4 April 2009. Counts 2 and 3 charged that the appellant committed the same offence on…

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 Kowaliw

Details

AGLC: R v Kowaliw [2013] QCA 350
Case: [2013] QCA 350
Decision Date: 29 November 2013

CaseChat Overview and Summary

In the matter of R v Kowaliw, the appellant was found guilty of three counts of stealing as a servant. The appellant was an attendant at a car park where he was accused of taking sums of money from the payment machines. The appellant did not provide evidence or call any witnesses at his trial. The appeal against his conviction and sentence was heard in the higher court.

The primary legal issues before the court were whether a forensic accounting report could be admitted as fresh evidence in the appeal and if the conviction on count 1 involved a miscarriage of justice. The appellant argued that the report demonstrated a discrepancy between the car park’s records of money received by the payment machines and the money collected from the machines, suggesting unreliability in the evidence presented at trial.

The court held that the forensic accounting report did not constitute fresh evidence as it did not meet the criteria set out in the relevant legislation. Furthermore, the court found that there was no miscarriage of justice in the conviction on count 1, as the evidence presented at trial was sufficient to support the guilty verdict. Consequently, the application for leave to adduce evidence was refused, the appeal was dismissed, and the application for leave to appeal against the sentence was also refused.

Orders

Orders of the court

1. Application for leave to adduce evidence refused.

2. Appeal dismissed.

3. Application for leave to appeal against sentence refused.

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 Kowaliw [2013] QCA 350
PARTIES:	R v KOWALIW, Damien Alexander (appellant/applicant)
FILE NO/S:	CA No 365 of 2011 DC No 2250 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	29 November 2013
DELIVERED AT:	Brisbane
HEARING DATE:	6 August 2013
JUDGES:	Muir and Fraser JJA and Philip McMurdo J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to adduce evidence refused. 2. Appeal dismissed. 3. Application for leave to appeal against sentence refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was found guilty of three counts of stealing as a servant – where the appellant worked as an attendant at a car park – where the prosecution alleged the appellant took sums of money from the payment machines – where the appellant did not give or call evidence at trial – where the appellant sought to adduce a forensic accounting report as fresh evidence in the appeal – where the appellant argued that the report demonstrated the conviction on count 1 involved a miscarriage of justice – where the appellant submitted the report demonstrated unreliability in evidence led at trial as to the difference between the car park’s records of money received by the payment machines and the money collected from the machines – whether the forensic accounting report should be admitted as fresh evidence – whether the conviction on count 1 involved a miscarriage of justice Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26, cited M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited Michaelides v The Queen (2013) 87 ALJR 456; [2013] HCA 9, cited Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35, cited R v Spina[2012] QCA 179, cited
COUNSEL:	M J Byrne QC, with C F Wilson, for the appellant/applicant G P Cash for the respondent
SOLICITORS:	Fisher Dore Lawyers for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent