R v Lo Presti - [2005] VSCA 259

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 26 of 2005

THE QUEEN
	v.
JOSEPH FRANCIS LO PRESTI

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JUDGES:	ORMISTON, BUCHANAN and ASHLEY, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	10 and 11 August 2005
DATE OF JUDGMENT:	11 November 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 259

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Criminal law – Obtaining financial advantage by deception – Duplicity – Counts alleging several false representations not duplicitous – Record of interview – Section 464A(2)(a) of the Crimes Act 1958 not breached – Recklessness not in issue – Trial judge not required to direct jury as to recklessness – Deception – Presentment alleged false statements relating to future events – Trial judge failed to direct the jury that statements as to future events only amounted to deception if they mis-stated present intention – Jury may have found guilt on the basis of false promises or predictions – Retrial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr Simon Gillespie-Jones with Ms M. Green	Ferraro, Pruscino & Co.

ORMISTON, J.A.:

In this application I have had the advantage of reading the reasons for judgment to be delivered by Buchanan, J.A. I agree in his conclusions and in his reasoning, but I would wish to express my own reasoning as to the disposition of two grounds, 8(a) and (b) and 10, as to the latter of which leave to amend should be granted and the ground upheld.

The gist of the particular problem arose in the course of argument, although it had a bearing on the answer to ground 8 which in the relevant paragraphs complained (under para.(a)) of inadequate directions to the jury on the elements of the offences (and the relation of that law to the evidence), as well as, under para.(b), a complaint that the judge had failed adequately to state the law on recklessness in the context of counts of obtaining financial advantage (or property) by deception. The Court did not directly grant leave to add a new ground 10, but it said that it would await the content of the ground and the arguments put on each side before concluding whether leave should be granted. The proposed ground now asserts that in relation to four particulars in count 1 and three particulars in each of counts 2 and 3 there was a miscarriage of justice in that each of those particulars “contain no words or conduct as to existing fact or as to law, or as to the then present intention of any person”. Whether the form of particular is common or not, a similar form of plea, viz. “would be applied …”, is proffered in Freckelton: Indictable Offences in Victoria[1], although later it is suggested that “it may be advisable” to insert words such as “that he or she then intended” before the relevant allegation.[2] In the present case each of the relevant paragraphs alleged (with one exception) that the applicant…

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 Lo Presti

Details

AGLC: R v Lo Presti [2005] VSCA 259
Case: [2005] VSCA 259
Decision Date: 11 November 2005

CaseChat Overview and Summary

In the case of R v Lo Presti, the defendant was charged with offences related to obtaining financial advantage by deception. The dispute arose in the Court of Appeal of Victoria, where the defendant sought to overturn his conviction. The central issue before the court was whether the trial judge erred in several respects that could have affected the outcome of the case. Specifically, the court examined whether the counts in the indictment were duplicitous, whether the procedure relating to the recording of an interview with the defendant contravened section 464A(2)(a) of the Crimes Act 1958, and whether the trial judge was required to direct the jury as to recklessness. Additionally, the court assessed whether the trial judge properly directed the jury regarding the nature of deception in relation to statements about future events.

The court found that the counts in the indictment were not duplicitous, as they related to distinct acts of deception. Furthermore, the recording of the interview did not breach section 464A(2)(a) of the Crimes Act 1958, as it was not suggested that the defendant was prejudiced by the recording. Concerning recklessness, the court determined that it was not an issue in the case and, therefore, the trial judge was not required to direct the jury on this point. However, the court identified a significant error in the trial judge's direction to the jury regarding deception. The trial judge failed to instruct the jury that statements about future events only amounted to deception if they misstated the present intention. This omission could have led the jury to convict on the basis of false promises or predictions rather than a deception concerning a present fact. Given this error, the court concluded that the verdict was tainted and ordered a retrial.

The court's reasoning and conclusions led to the ordering of a retrial in the matter. The trial judge's failure to properly direct the jury on the nature of deception concerning future events necessitated a new trial to ensure a fair determination of the defendant's guilt or innocence. The court did not address any additional orders beyond the necessity for a retrial.

Orders