R v Mill

Case [2007] QCA 150 11 May 2007

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Mill [2007] QCA 150

PARTIES:

R
v
MILL, Darren Lindsay
(appellant)

FILE NO/S:

CA No 255 of 2006
DC No 2021 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

11 May 2007

DELIVERED AT:

Brisbane

HEARING DATE:

20 April 2007

JUDGES:

de Jersey CJ, Keane JA and Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal allowed in part
2. In relation to count 1, conviction set aside and a new trial ordered. Otherwise, appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where appellant convicted of fraud – where appellant unrepresented at trial – where during trial Crown suggested that analysis of forensic accounting report commissioned by appellant disclosed further offences – where appellant claimed not to have had access to report – whether appellant was thereby induced not to call or give evidence – whether appellant was denied opportunity to tender report or call witness – whether Crown was obliged to tender report or call witness – whether appellant lost fair chance of acquittal

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – WHERE GROUNDS FOR INTERFERENCE WITH VERDICT – PARTICULAR CASES – WHERE APPEAL ALLOWED – where defence arguably available under s 22(2) of the Criminal Code Act 1899 – whether jury sufficiently directed in this regard

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – AVERMENTS – UNCERTAINTY, DUPLICITY AND AMBIGUITY – where more than one offence charged in count one of indictment – whether indictment bad for duplicity

Criminal Code 1899 (Qld), s 22(2), s 408C(1), s 441, s 567(3),
s 568(3)

Lawless v The Queen (1979) 142 CLR 659, applied
MWJ v The Queen (2005) 80 ALJR 329, cited
National Justice Compania Naviera SA v Prudential Assurance Co Ltd [1993] 2 Lloyd's Rep 68, cited
Polivitte Ltd v Commercial Union Assurance Co Plc [1987]
1 Lloyd's Rep 379, cited
R v Katsidis; ex parte A-G (Qld) [2005] QCA 229; CA No 47 of 2005, 24 June 2005, applied
R v Lawrence (1996) 138 ALR 487, applied
R v Stafford; ex parte A-G (Qld)[1997] QCA 333; CA No 40 of 1997, 23 September 1997, applied
Richardson v The Queen (1974) 131 CLR 116, distinguished
RPS v The Queen (2000) 199 CLR 620, considered
The Queen v Apostilides (1984) 154 CLR 563, applied
Van Den Hoek v The Queen (1986) 161 CLR 158, applied
Whitehouse v Jordan [1981] 1 All ER 267, cited

COUNSEL:

R J Clutterbuck for the appellant
M J Copley for the respondent

SOLICITORS:

Mylne Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

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 Mill

Details

AGLC: R v Mill [2007] QCA 150
Case: [2007] QCA 150
Decision Date: 11 May 2007

CaseChat Overview and Summary

In the matter of the appeal by the respondent against their conviction, the appellant was found guilty of fraud in the Supreme Court of Queensland. The appellant was unrepresented during the trial and claimed that they were induced not to call or give evidence due to the Crown's suggestion that an analysis of a forensic accounting report commissioned by the appellant disclosed further offences. The appellant argued that they were denied the opportunity to tender the report or call a witness, and the Crown was obliged to do so. The appellant also contended that they lost their fair chance of acquittal due to the Crown's actions.

The legal issues in this case were whether the appellant was denied the opportunity to call or give evidence and whether the Crown was obliged to tender the report or call a witness. Additionally, the court considered whether the appellant lost their fair chance of acquittal and if the indictment was bad for duplicity, as more than one offence was charged in count one.

The court found that the Crown's conduct may have led the appellant to believe that it was unnecessary to call or give evidence, and therefore, the appellant may have lost their fair chance of acquittal. The court also found that the indictment was not bad for duplicity as the offences charged were alternative means of committing the same crime. However, the court held that the jury was not sufficiently directed in relation to the defence arguably available under s 22(2) of the Criminal Code Act 1899, leading to the appeal being allowed in part.

The orders of the court were that the appeal was allowed in part, and in relation to count 1, the conviction was set aside and a new trial ordered. Otherwise, the appeal was dismissed.

Orders

Orders of the court

1. Appeal allowed in part

2. In relation to count 1, conviction set aside and a new trial ordered. Otherwise, appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Mill [2007] QCA 150

Most Recent Citation

R v Harris [2001] QCA 150

Cases citing this decision · 9 of 9 shown

R v Li; R v McKenzie; R v Pisasale
[2020] QCA 39 Para 18

…xplains that the requirements for the defence are not only that the claim of right is honest, but also there must not be an intention to defraud. [72][2007] QCA 150.…
R v Orchard
[2018] QCA 58 Para 10

…o subjective intent was a deficiency of a kind that warranted a new trial. [36][2017] QCA 194 per Morrison JA at [72]-[81] (Atkinson J agreeing). [37][2007] QCA 150 at [81], [85].…
R v Perrin
[2017] QCA 194 Para 15

…which was cited to the learned trial judge, that decision was per incuriam , as that Court was not referred to, and did not consider, Mill . [37][2007] QCA 150. [38][2012] QCA 303.…
Heffernan v Ibell
[2016] QDC 154

…v Pollard [1962] QWN 13; R v Waine [2006] 1 Qd R 458; R v Lawrence [1977] 86 A Crim R 412; R v Mill [2007] QCA 150; R v Dale [2012] QCA 303; Attorney-General of the Northern Territory v Ward [2003] (Full Court) FCAFC 283; Ostrowski v Palmer (2004) 218 CLR 493; Mueller v Vigilante [2007] WASC 259; R v Jeffrey & Da…
Scriven v Sargent (No. 2)
[2016] QDC 16 Para 1

…There was some consideration of a defence under s 22 in R v Mill [2007] QCA 150. The appellant was charged with fraud, in that he had applied to his own use money belonging to a company or to an individual. The appellant was at the relevant time the accountant for the company and the individual, and indeed for pa…
R v Illingworth
[2014] QDC 229 Para 1

…Count 6 is framed in accordance with s 568(3) of the Code , a provision considered by the Court of Appeal in R v Mill [2007] QCA 150. In that case, Keane JA, with whom de Jersey CJ and Lyons J agreed, said:-…
R v. Campbell
[2009] QDC 61 Para 1

…that the issue is simply whether the defendant honestly believed himself to be entitled to do what he did. Commenting on that summing up in R v Mill [2007] QCA 150 Keane JA at [81] noted that its focus was on the belief of the accused person to do that with which he or she is charged. The practical effect theref…
James v Keogh
[2008] SASC 156 Para 20

…t [78]; FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33 at [3]; Auto Masters Australia Pty Ltd v Bruness Pty Ltd [2004] WASCA 229 at [28]; R v Mill [2007] QCA 150 at [49]; Australian Securities and Investments Commission v Rich (2005) 218 ALR 764 at [127]. They have been applied by this court in Southern Equiti…
R v Harris
[2001] QCA 150

…Alternatively, he submits that the prosecution caused a delay of six years between his arrest and his sentence for this offence. That is, however, plainly not so. The delay was caused by his having to serve his sentence in New South Wales for murdering Jacobson. He also submits that the intervention…

View all 9 citing cases →

Cases cited in this decision · 11 of 11 shown

Love v The Queen
[2012] ACTCA 8 Para 1

…ir trial simply because he or she is left with a subjective sense of grievance that his or her conduct of the trial was not crowned with success. [5] Love v The Queen (1983) 49 ALR 382. [6] South Australia v O'Shea (1987) 163 CLR 378 at 389, 405; Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at…
MWJ v The Queen
[2005] HCA 74 Para 1

…he appellant made his own choice in this regard unconstrained by the conduct of the Crown Prosecutor or the learned trial judge. [11] MWJ v The Queen (2005) 80 ALJR 329 at 340 [41].…
R v Katsidis; ex parte A-G (Qld)
[2005] QCA 229 Para 1

…fied of the appellant's guilt beyond reasonable doubt.[3] [3] Lawless v The Queen (1979) 142 CLR 659 at 675 – 676; R v Katsidis; ex parte A-G (Qld) [2005] QCA 229 at [18] – [19].…
RPS v The Queen
[2000] HCA 3

…eptember 1997, applied Richardson v The Queen (1974) 131 CLR 116, distinguished RPS v The Queen (2000) 199 CLR 620, considered The Queen v Apostilides (1984) 154 CLR 563, applied Van Den Hoek v The Queen (1986) 161 CLR 158, applied Whitehouse v Jordan [1981] 1 All ER 267, cited COUNSEL: R J Clutterbuck for the appell…
R v Stafford
[1997] QCA 333

…24 June 2005, applied R v Lawrence (1996) 138 ALR 487, applied R v Stafford; ex parte A-G (Qld) [1997] QCA 333; CA No 40 of 1997, 23 September 1997, applied Richardson v The Queen (1974) 131 CLR 116, distinguished RPS v The Queen (2000) 199 CLR 620, considered The Queen v Apostilides (1984) 154 CLR 563, applied V…
Haoucher v Minister for Immigration and Ethnic Affairs
[1990] HCA 22 Para 1

…ve v The Queen (1983) 49 ALR 382. [6] South Australia v O'Shea (1987) 163 CLR 378 at 389, 405; Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 660 – 661.…
South Australia v O'Shea
[1987] HCA 39 Para 1

…of grievance that his or her conduct of the trial was not crowned with success. [5] Love v The Queen (1983) 49 ALR 382. [6] South Australia v O'Shea (1987) 163 CLR 378 at 389, 405; Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 660 – 661.…
Van den Hoek v The Queen
[1986] HCA 76 Para 1

…stion by way of payment of fees due to him or by way of reimbursement of expenses incurred by him for Suga Pty Ltd.[13] [13] Van Den Hoek v The Queen (1986) 161 CLR 158 at 161 – 162.…
R v Apostilides
[1984] HCA 38

…1 CLR 116, distinguished RPS v The Queen (2000) 199 CLR 620, considered The Queen v Apostilides (1984) 154 CLR 563, applied Van Den Hoek v The Queen (1986) 161 CLR 158, applied Whitehouse v Jordan [1981] 1 All ER 267, cited COUNSEL: R J Clutterbuck for the appellant M J Copley for the respondent SOLICITORS: Mylne Law…
Lawless v The Queen
[1979] HCA 49 Para 1

…ry, if it had been aware of that evidence, would not have been satisfied of the appellant's guilt beyond reasonable doubt.[3] [3] Lawless v The Queen (1979) 142 CLR 659 at 675 – 676; R v Katsidis; ex parte A-G (Qld) [2005] QCA 229 at [18] – [19].…
Richardson v The Queen
[1974] HCA 19

…d R v Stafford; ex parte A-G (Qld) [1997] QCA 333; CA No 40 of 1997, 23 September 1997, applied Richardson v The Queen (1974) 131 CLR 116, distinguished RPS v The Queen (2000) 199 CLR 620, considered The Queen v Apostilides (1984) 154 CLR 563, applied Van Den Hoek v The Queen (1986) 161 CLR 158, applied Whitehouse v Jordan [198…

Legislation cited in this decision · 1

Criminal Code Act 1899 (Qld)
1 mention

CITATION:	R v Mill [2007] QCA 150
PARTIES:	R v MILL, Darren Lindsay (appellant)
FILE NO/S:	CA No 255 of 2006 DC No 2021 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	11 May 2007
DELIVERED AT:	Brisbane
HEARING DATE:	20 April 2007
JUDGES:	de Jersey CJ, Keane JA and Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal allowed in part 2. In relation to count 1, conviction set aside and a new trial ordered. Otherwise, appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where appellant convicted of fraud – where appellant unrepresented at trial – where during trial Crown suggested that analysis of forensic accounting report commissioned by appellant disclosed further offences – where appellant claimed not to have had access to report – whether appellant was thereby induced not to call or give evidence – whether appellant was denied opportunity to tender report or call witness – whether Crown was obliged to tender report or call witness – whether appellant lost fair chance of acquittal CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – WHERE GROUNDS FOR INTERFERENCE WITH VERDICT – PARTICULAR CASES – WHERE APPEAL ALLOWED – where defence arguably available under s 22(2) of the Criminal Code Act 1899 – whether jury sufficiently directed in this regard CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – AVERMENTS – UNCERTAINTY, DUPLICITY AND AMBIGUITY – where more than one offence charged in count one of indictment – whether indictment bad for duplicity Criminal Code 1899 (Qld), s 22(2), s 408C(1), s 441, s 567(3), s 568(3) Lawless v The Queen (1979) 142 CLR 659, applied MWJ v The Queen (2005) 80 ALJR 329, cited National Justice Compania Naviera SA v Prudential Assurance Co Ltd [1993] 2 Lloyd's Rep 68, cited Polivitte Ltd v Commercial Union Assurance Co Plc [1987] 1 Lloyd's Rep 379, cited R v Katsidis; ex parte A-G (Qld) [2005] QCA 229; CA No 47 of 2005, 24 June 2005, applied R v Lawrence (1996) 138 ALR 487, applied R v Stafford; ex parte A-G (Qld)[1997] QCA 333; CA No 40 of 1997, 23 September 1997, applied Richardson v The Queen (1974) 131 CLR 116, distinguished RPS v The Queen (2000) 199 CLR 620, considered The Queen v Apostilides (1984) 154 CLR 563, applied Van Den Hoek v The Queen (1986) 161 CLR 158, applied Whitehouse v Jordan [1981] 1 All ER 267, cited
COUNSEL:	R J Clutterbuck for the appellant M J Copley for the respondent
SOLICITORS:	Mylne Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent