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R v McLean

R v McLean

Case [2000] VSCA 217 16 November 2000

Obtaining property by deception

Receiving secret commission

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 260 of 1999

THE QUEEN
	v.
WALTER RITCHIE McLEAN

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JUDGES:	PHILLIPS, C.J., TADGELL and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 August 2000
DATE OF JUDGMENT:	16 November 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 217

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CRIMINAL LAW – Obtaining property by deception (six counts) – Receiving secret commission (16 counts) – Joinder of all 22 counts in one presentment – Whether counts founded on the same facts – Whether counts part of a series of offences of the same or a similar character – Onus of proof – Whether secret commission counts on which onus might shift to accused were properly joined with counts on which onus lay on Crown throughout – Direction to jury in such a case.
Crimes Act 1958, ss.81(1), 176(1), 177, 186(2), 371 and Sixth Schedule (Presentment Rules).

CRIMINAL LAW – Sentence – White collar crime – Parity – Whether specific deterrence irrelevant – Six years’ imprisonment with four-year minimum upheld.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G. Hicks and Mr T.P. Burke	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Ms L. Lieder Q.C.	Libman Davis & Associates

PHILLIPS, C.J.:

I have had the benefit of reading the judgment of Tadgell, J.A. in draft form. I concur in the conclusions his Honour has reached and I would subscribe to his reasons therefor.

TADGELL, J.A.:

The applicant, Walter Richie McLean, was initially arraigned in the County Court, together with Bernard Henry Phayre and Harry Penfold, on a presentment alleging 38 counts of offences of dishonesty to have been committed over a period against Mobil Oil Australia Ltd. as the sole and regular victim. There were 22 counts alleged against the applicant – 16 (against him alone) of receiving a secret commission[1] from Phayre and six of obtaining property by deception[2] – two against him together with Phayre, three against him together with Penfold and one against him alone. Against Phayre there were 18 counts – 16 (against him alone) of giving a secret commission[3] to the applicant and two (against him together with the applicant) of obtaining property by deception; and there were four counts against Penfold – three (together with the applicant) of obtaining property by deception and one against him alone that is of no present relevance. All accused, each being separately represented, pleaded not guilty to all counts.
[1]Contrary to s. 176(1) of the Crimes Act 1958.
[2]Contrary to s. 81(1) of the Crimes Act 1958.
[3]Contrary to s. 176(2) of the Crimes Act 1958.

Because the three counts on which the applicant and Penfold were presented together did not concern Phayre, his counsel (supported by counsel for the other two accused) successfully sought an order that those counts be severed from the rest. The order for severance having been made, the Crown sought a ruling that certain evidence of the applicant’s conduct giving rise to some of the counts against him was explanatory of his conduct in…

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 McLean

Details

AGLC: R v McLean [2000] VSCA 217
Case: [2000] VSCA 217
Decision Date: 16 November 2000

CaseChat Overview and Summary

The case of R v McLean involved the defendant, McLean, who was charged with six counts of obtaining property by deception and 16 counts of receiving secret commissions. The case was heard in the Victorian Supreme Court. The central issue in the case was whether the various counts in the indictment should be joined together in one presentment, given that they were all founded on the same facts or were part of a series of offences of the same or a similar character. Additionally, the case considered whether the onus of proof was correctly applied in cases where the onus might shift to the accused, and whether it was appropriate to direct the jury in such circumstances.

The court held that the counts could be joined in one presentment as they were founded on the same facts or were part of a series of offences of the same or a similar character. The court also addressed the onus of proof, ruling that counts where the onus might shift to the accused were properly joined with counts where the onus lay on the Crown throughout. The court found that the trial judge had correctly directed the jury, ensuring that the jury understood the varying onuses of proof applicable to different counts.

In relation to sentencing, the court determined that specific deterrence was not irrelevant in cases of white-collar crime. The defendant was sentenced to six years’ imprisonment with a minimum of four years to be served before eligibility for parole, a sentence the court deemed appropriate given the nature of the crimes committed.

The final orders of the court upheld the conviction on all counts and the sentence imposed, confirming the defendant’s liability and the appropriateness of the penalty imposed.

Orders