SUPREME COURT OF QUEENSLAND
CITATION:
R v McEwan [2019] QCA 16
PARTIES:
R
v
McEWAN, Anthony Francis
(appellant)FILE NO/S:
CA No 117 of 2017
DC No 329 of 2015DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Cairns – Date of Conviction: 8 May 2017 (Harrison DCJ)
DELIVERED ON:
12 February 2019
DELIVERED AT:
Brisbane
HEARING DATE:
16 March 2018
JUDGES:
Sofronoff P and Morrison JA and Brown J
ORDER:
Appeal dismissed.
CATCHWORDS:
APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – ERROR OF LAW – where the Crown’s case was a largely circumstantial case that relied on an array of facts from which it contended the appellant’s guilt should be drawn – where the appellant submits that a Weissensteiner comment ought not have been given to the jury – where the appellant submits that the case was not of the rare and exceptional character which warranted the making of the comment – where the appellant does not contest that it was open to the jury to determine that the only rational inference on the evidence was the appellant’s guilt
Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25, considered
Peacock v The King (1911) 13 CLR 619; [1911] HCA 66, cited
R v DAH (2004) 150 A Crim R 14; [2004] QCA 419, cited
R v Doyle [2018] QCA 303, cited
R v Hillier (2007) 228 CLR 618; [2007] HCA 13, cited
R v Surrey [2005] 2 Qd R 81; (2005) 151 A Crim R 547; [2005] QCA 4, considered
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3, cited
Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65, consideredCOUNSEL:
S C Holt QC for the appellant
D C Boyle for the respondentSOLICITORS:
Bosscher Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent
SOFRONOFF P: I agree with the reasons of Brown J and the order her Honour proposes.
MORRISON JA: I have read the reasons of Brown J and agree with those reasons and the order her Honour proposes.
BROWN J: After an eight day trial in the District Court, the appellant, Anthony Francis McEwan, on 8 May 2017, was found guilty of two counts of fraud as an employee with circumstances of aggravation. The Crown alleged that the appellant dishonestly obtained money and bank credits from his employer, Simon George and Sons Pty Ltd (Simon George), to a value of $1,677,632.81 during two periods: from 1 November 2003 to 30 November 2008 (Count 1) and from 1 December 2008 to 25 July 2013 (Count 2).
The appellant was the proprietor of two businesses, Stinga Enterprises (Stinga) and G&M Fresh Produce (G&M). It was accepted by the appellant that both businesses were under his control. The appellant was the sole signatory for the bank…
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- AGLC
- R v McEwan [2019] QCA 16
- Case
- [2019] QCA 16
- Decision Date
CaseChat Overview and Summary
The legal issue before the court was whether the trial judge had correctly exercised their discretion to give a Weissensteiner comment to the jury, and if not, whether this error was sufficiently significant to warrant a new trial. The appellant submitted that the comment should not have been given because the case was not rare and exceptional, but the court disagreed, finding that the evidence supported the trial judge's decision to give the comment. The court considered the parameters for making such a comment, including the need for the evidence to be largely circumstantial and for the accused to have peculiar knowledge of facts that could explain or contradict the inference sought by the prosecution.
The court concluded that the trial judge had appropriately exercised their discretion to give the Weissensteiner comment, as the evidence was largely circumstantial and the appellant had peculiar knowledge of facts that could explain the inference drawn by the prosecution. The court found that the comment was correctly given in accordance with established legal principles and did not constitute a significant error warranting a new trial. The appeal was therefore dismissed, and the convictions were upheld.
Orders
Orders of the court
Appeal 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
In my view, the circumstances of the present case are such that it was appropriate to provide a Weissensteiner comment, for the reasons set out below. ConsiderationDoes a case have to be “rare and exceptional”? The contention that a case must be able to be characterised as “rare and exceptional” before a Weissensteiner comment is appropriately made, incorrectly characterises the comments of the majority in Azzopardi as creating an additional threshold or requirement that must be met prior to it being appropriate for the comment to be given. It is evident that the comment made by the majority in Azzopardi that the cases in which such a direction will be made are rare and exceptional, is a statement that the preconditions for the making of the comment as outlined in [64] of the judgment are rarely met, not that a case must pass some threshold of being rare and exceptional before such a comment will be made. This is evident from the comment of the majority which followed their recognition that the cases in which such a comment is appropriate are rare and exceptional, namely that:“They will occur only if the evidence is capable of explanation by disclosure of additional facts known only to the accused.”[20][20]Azzopardi v The Queen (2001) 205 CLR 50 at [68]. The fact that such cases will be rare and exceptional arises from the parameters that have been laid down for the making of a Weissensteiner comment. First, that the comment is only properly made where the Crown’s case relies on the jury drawing inferences from proved facts.[21] Secondly, that the accused cannot be called upon to give evidence to deny or simply contradict the case against him or her. The entry of a plea of not guilty constitutes a denial. Thirdly, that prior to it being appropriate for a trial judge to make the comment, he or she must be satisfied that the accused had peculiar knowledge of additional facts which would explain or contradict the inference which the prosecution seeks to have the jury draw. Those facts must be additional to the facts already given in evidence by the witnesses who were called.[22] Most cases would involve the accused only being in a position to contradict the case against him or her not to have peculiar knowledge of facts additional to those called which would explain or contradict the inference which the prosecution seeks to have the jury draw.[21]Azzopardi at [58] referring to the decision of RPS v The Queen (2000) 199 CLR 620 at [79].[22]Azzopardi at [64]. The evidence called by the Crown must be assessed by the jury against the requisite standard of proof without regard to the fact that the accused did not give evidence.[23] This is in recognition of the fact that in an accusatorial trial, no onus lies on the accused to contradict the Crown’s case.[23]Azzopardi at [64]. The appellant has highlighted the hallmarks of the accusatorial system which apply to criminal trials as reasons why a case must be rare and exceptional before a Weissensteiner comment can be made. However, the High Court has sought to protect those hallmarks by requiring that certain directions and clear parameters which recognise the danger of making such a comment be provided to the jury, not by the imposition of a threshold that a case must be rare and exceptional.[24] As regards those directions that are required to be given if such a comment is made by the trial judge, they were summarised by White JA as follows:“[T]he essential elements which must be conveyed to a jury, that is, that no adverse inference may be drawn from the defendant’s failure to give evidence, that the onus of proof lies upon the prosecution, that the defendant is presumed innocent until the prosecution adduces sufficient evidence to reach a conclusion of guilt beyond reasonable doubt and that the failure to give evidence does not strengthen the prosecution case or supply additional proof against a defendant or fill gaps in the evidence.”[25][24]Azzopardiv The Queen (2001) 205 CLR 50 at [65] and [67].[25]R v DAH (2004) 150 A Crim R 14.