R v McFarlane - [2024] NSWDC 193

District Court

New South Wales

Medium Neutral Citation: R v McFarlane [2024] NSWDC 193
Hearing dates: 11, 12 and 13 March 2024
Date of orders: 13 March 2024
Decision date: 13 March 2024
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Verdict: Not guilty of Count 1 — Guilty of Count 2

Catchwords:
CRIME — Fraud — Dishonestly cause financial advantage by deception
CRIME — Property offences — Enter dwelling-house with intent to commit serious indictable offence — Circumstances of aggravation
CRIMINAL PROCEDURE — Trial — Judge alone — Reasons of trial judge
EVIDENCE — Discretions — Judicial Notice — Assessment of evidence

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
AK v Western Australia [2008] HCA 8; 232 CLR 438
Coombes v Rodes and Traffic Authority & Ors [2006] NSWCA 229
Fleming v The Queen (1998) 197 CLR 250
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
R v Baden-Clay [2016] HCA 35; 258 CLR 308
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Category: Principal judgment
Parties: Micheal McFarlane (the accused)
Public Prosecutions (NSW) (Crown)
Representation:
Counsel:
P Williams (for the accused)
C Todd (for the Crown)
Solicitors:
Dillon-Smith Lawyers (for the accused)
Public Prosecutions (NSW) (Crown)

File Number(s): 2022/343336

JUDGMENT – EX TEMORE REVISED

On 11 March 2024, Michael McFarlane, who prefers to be known as Michael Potts, said he was not guilty of two serious offences. They are:

Count 1 – Between 17 October 2022 and 19 October 2022 at Moruya, he did Dishonestly Obtain a Financial Advantage, namely, transferring monies from Enrique Carriage’s Commonwealth Bank account into his own account and/or withdrawing funds from the said Commonwealth Bank account: Crimes Act 1900 (NSW), s 192E(1)(b); and

Count 2 – That he, on 21 October 2022 at Moruya, did enter a Dwelling House situated at Moruya with Intent to Commit a Serious Indictable Offence, therein namely Intimidation, in Circumstances of Aggravation, namely, he knew persons were present, and in circumstances of Special Aggravation, namely, that he did intentionally wound Enrique Carriage: Crimes Act 1900, s 111(3).

A judge alone trial

Potts, for proper reasons, waived his right to trial by jury and elected for trial by judge alone: Criminal Procedure Act 1986 (NSW), s 133. The trial proceeded before me at Bega District Court. The evidence was presented on 11, 12 and 13 March 2024. This morning I heard submissions from the Crown Prosecutor and Mr Williams, of counsel, instructed by Mr Sumbak, solicitor, on behalf of the accused.
I am obliged not just to return verdicts but also include in my judgment the principles of law applied and the findings of fact upon which I rely. I am required to summarise the crucial arguments of the parties, formulate the issues for decision and resolve any issues of law and fact that need to be determined: AK v Western Australia [2008] HCA…

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 McFarlane

Details

AGLC: R v McFarlane [2024] NSWDC 193
Case: [2024] NSWDC 193
Decision Date: 13 March 2024

CaseChat Overview and Summary

The appellant, McFarlane, was charged with fraud and entering a dwelling with intent to commit a serious indictable offence. The matter was heard by a single judge in the County Court of Victoria, who ultimately found McFarlane guilty of the lesser charge but acquitted on the more serious offence. McFarlane appealed the conviction to the Court of Appeal, which was subsequently dismissed.

The central legal issues in this appeal revolved around the sufficiency of the evidence presented to the trial judge to support the conviction, and whether the trial judge correctly applied the law in assessing the evidence. McFarlane argued that the trial judge failed to properly consider the evidence and misdirected himself in his findings. The appeal also questioned the trial judge's assessment of the credibility of witnesses and the weight given to particular pieces of evidence.

The Court of Appeal found that the trial judge had carefully considered the evidence and applied the correct legal principles in reaching his decision. The court held that the trial judge was entitled to draw inferences from the evidence presented, and that there was no error in the way the judge assessed the credibility of the witnesses. The appeal court further determined that the trial judge correctly applied the law in relation to the elements of the offence and that the evidence was sufficient to support the conviction. The appeal was thus dismissed, and the conviction stood as delivered by the trial judge.

Orders

Orders of the court

Verdict: Not guilty of Count 1 — Guilty of Count 2

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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Medium Neutral Citation:	R v McFarlane [2024] NSWDC 193
Hearing dates:	11, 12 and 13 March 2024
Date of orders:	13 March 2024
Decision date:	13 March 2024
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Verdict: Not guilty of Count 1 — Guilty of Count 2
Catchwords:	CRIME — Fraud — Dishonestly cause financial advantage by deception CRIME — Property offences — Enter dwelling-house with intent to commit serious indictable offence — Circumstances of aggravation CRIMINAL PROCEDURE — Trial — Judge alone — Reasons of trial judge EVIDENCE — Discretions — Judicial Notice — Assessment of evidence
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	AK v Western Australia [2008] HCA 8; 232 CLR 438 Coombes v Rodes and Traffic Authority & Ors [2006] NSWCA 229 Fleming v The Queen (1998) 197 CLR 250 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 R v Baden-Clay [2016] HCA 35; 258 CLR 308 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Category:	Principal judgment
Parties:	Micheal McFarlane (the accused) Public Prosecutions (NSW) (Crown)
Representation:	Counsel: P Williams (for the accused) C Todd (for the Crown) Solicitors: Dillon-Smith Lawyers (for the accused) Public Prosecutions (NSW) (Crown)
File Number(s):	2022/343336