R v Lyons

Case [2021] QCA 136

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lyons [2021] QCA 136

PARTIES:

R
v
LYONS, Dianne Barbara
(appellant/applicant)

FILE NO/S:

CA No 221 of 2017
CA No 246 of 2017
DC No 131 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 22 August 2017; Date of Sentence: 22 August 2017 (Farr SC DCJ)

DELIVERED ON:

25 June 2021

DELIVERED AT:

Brisbane

HEARING DATES:

17 February 2021 and 20 April 2021

JUDGES:

McMurdo and Mullins JJA and Wilson J

ORDERS:

1.   The application for leave to read and file the affidavit of D Lyons sworn 17 February 2021 is refused.

2.   The appeal against conviction is allowed, the verdict of guilty on each count is set aside and a retrial is ordered on each count.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of five counts of fraud to the value of over $30,000.00 and three counts of fraud – where the fraud was allegedly committed by the appellant in the course of operating a business importing vessels – where the appellant gave evidence in her own defence – where the prosecution case was supported by a considerable body of documentary evidence – whether the verdict of guilty on each count was unreasonable or unsupported by the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – OTHER MATTERS – where dishonesty was an element of each count – where the trial judge failed to identify the knowledge, belief or intent said to render the appellant’s acts dishonest, at least in relation to counts four to eight – where the trial judge made very brief reference to the prosecution case on dishonesty in relation to some counts – whether the trial judge erred in not providing more detailed instructions about the knowledge, belief or intent said to render the appellant’s actions dishonest on each count

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – JOINT TRIAL OF SEVERAL COUNTS – where the appellant was convicted of five counts of fraud to the value of over $30,000.00 and three counts of fraud – where each count involved a different complainant –where much of the evidence was admissible on multiple counts, but some evidence was admissible only on one count – where the appellant’s credibility was relevant to each count – where the trial judge failed to direct the jury to consider each charge separately and only on the evidence relevant to it, or inform the jury that they could return separate verdicts – whether the trial judge erred in not providing these directions

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant alleged that the trial judge and prosecutor had engaged in misconduct –…

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AGLC
R v Lyons [2021] QCA 136
Case
[2021] QCA 136
Decision Date

CaseChat Overview and Summary

The case of R v Lyons was heard in the Queensland Court of Appeal. The appellant was convicted of five counts of fraud to the value of over $30,000.00 and three counts of fraud, allegedly committed while operating a business importing vessels. The appellant gave evidence in her own defence, while the prosecution case was supported by a considerable body of documentary evidence. The appeal centred on the question of whether the verdict of guilty on each count was unreasonable or unsupported by the evidence.

The legal issues that the Court had to decide were whether the trial judge erred in failing to identify the knowledge, belief, or intent said to render the appellant's actions dishonest on each count, and whether the trial judge made a mistake in not directing the jury to consider each charge separately and only on the evidence relevant to it. The Court was also tasked with examining whether the trial judge's failure to provide more detailed instructions about the knowledge, belief, or intent said to render the appellant's actions dishonest on each count, or to direct the jury to consider each charge separately, resulted in a miscarriage of justice.

The Court found that the trial judge erred in not providing more detailed instructions about the knowledge, belief, or intent said to render the appellant's actions dishonest on each count, and in not directing the jury to consider each charge separately. The Court held that these errors resulted in a miscarriage of justice, and set aside the verdict of guilty on each count. The Court ordered a retrial on each count.

The orders of the Court were that the application for leave to read and file the affidavit of D Lyons sworn 17 February 2021 is refused, and the appeal against conviction is allowed, the verdict of guilty on each count is set aside and a retrial is ordered on each count.

Orders

Orders of the court

1. The application for leave to read and file the affidavit of D Lyons sworn 17 February 2021 is refused.

2. The appeal against conviction is allowed, the verdict of guilty on each count is set aside and a retrial is ordered on each count.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The prosecution case in relation to count three was that Mr Ross’ funds did not go directly to US Shipping, but instead went into the appellant’s Western Union account, and then onto US Shipping for a purpose that was unauthorised by Mr Ross. The appellant’s evidence in relation to count three was that, through an administrative error, Mr Ross’ funds were incorrectly sent directly to US Shipping. The question for the jury was whether they were satisfied, beyond a reasonable doubt, that the appellant received monies from Mr Ross for a specific purpose and dishonestly misused those funds for an unauthorised purpose. Once again, these were matters for the jury to consider. If the jury accepted the appellant’s evidence or was left in a state of reasonable doubt as to what the true position was, then she would have been found not guilty. Section 24 of the Criminal Code was an irrelevant consideration for this task. I note that the jury clearly rejected the appellant’s evidence in coming to their verdicts.Unreasonable verdict not supported by the evidence The appellant’s notice of appeal alleges that the jury’s verdict was unreasonable or not supported having regard to the evidence. This submission was not well developed in her written or oral submissions. However, as the point has been raised, it is incumbent on this Court to conduct an independent examination of the whole of the evidence to determine whether it was open for the jury to be satisfied beyond reasonable doubt that the appellant was guilty on all counts.[18][18]R v Khan [2020] QCA 242 at [74]. In summary, the evidence led by the prosecution consisted of oral testimony from twelve witnesses, including the complainants, Mr Holden and investigating officer Senior Constable Julie Smith. In addition, the prosecution tendered a number of emails and other documents sent by the appellant, as well as the appellant’s bank account records. The appellant gave evidence in her own defence. She also briefly recalled Mr Bird and Mr Rolle (the complainants in relation to counts four and five) to give evidence about the trailers they had purchased from her. The appellant’s evidence was confusing and repetitive, and subject to a very large number of well-founded objections from the prosecution. On 3 August 2017 (the fourth day of the trial), the appellant served a subpoena on Mr David Begg, the managing director of a company called BBC Chartering Australia Pty Ltd (“BBC Chartering”). However, the trial judge set that subpoena aside pursuant to section 33(1)(a) of the Criminal Practice Rules 1999 (Qld) on the grounds that the subpoena was too wide, the requested material was irrelevant, and the volume of material requested and timeframes for production were oppressive in the circumstances. There was no error by the trial judge in doing so.The prosecution caseMr and Mrs McBean The first two prosecution witnesses were Mr McBean (the complainant in relation to count one) and his wife. Mr and Mrs McBean were negotiating with brokers in San Diego to buy a vessel called the Ninkosa, which they intended to freight back to Australia. Before the negotiations were completed, Mr and Mrs McBean spoke to the appellant about organising sea freight if the purchase went ahead and they were quoted $65,000.00.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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