R v Orchard

Case [2018] QCA 58

SUPREME COURT OF QUEENSLAND

CITATION:

R v Orchard [2018] QCA 58

PARTIES:

R
v
ORCHARD, Elizabeth Margaret
(appellant)

FILE NO/S:

CA No 136 of 2017
DC No 171 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 5 June 2017 (Devereaux SC DCJ)

DELIVERED ON:

29 March 2018

DELIVERED AT:

Brisbane

HEARING DATE:

27 November 2017

JUDGES:

Sofronoff P and Gotterson JA and Henry J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION OR NON-DIRECTION – PARTICULAR CASES – where the appellant was convicted of fraud pursuant to s 408C(1)(b) of the Criminal Code (Qld) with a circumstance of aggravation – where the appellant argued the directions were deficient because they failed to refer to the need for the prosecution to prove beyond reasonable doubt that the accused acted with a subjective dishonest intent – where the respondent argued the directions were not deficient because a subjective dishonest intent was not an element of dishonesty in the offence charged – whether the trial judge’s directions on dishonesty were inadequate

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – MENS REA – PARTICULAR OFFENCES – FRAUD, IMPOSITIONS AND FALSE STATEMENTS – where the appellant was convicted of fraud pursuant to s 408(1)(b) of the Criminal Code (Qld) – where the appellant argued the prosecution was required to prove beyond reasonable doubt that the accused acted with a subjective dishonest intent – whether subjective dishonest intent is an element of dishonesty in a s 408C offence

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION OR NON-DIRECTION – GENERAL PRINCIPLES – where the appellant argued the jury should have been instructed not to speculate about what witnesses who were not called might have said in testimony – where general directions were given not to speculate and to determine the case on the testimony and exhibits only – where cautions against speculation were given by counsel – whether the directions were sufficient to guard against speculation by the jury about the evidence of witnesses that were not called

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant argued its trial counsel had elicited highly prejudicial inadmissible evidence from the complainant in the process of a cross-examination that was devoid of forensic purpose – where the appellant argued its trial counsel had cross-examined witnesses in an objectionable manner, leading to frequent interventions by the trial judge that were damaging to its prospects at trial – whether defence counsel’s conduct deprived the appellant of a chance of acquittal that was fairly open

Criminal Code (Qld), s 408C(1)

Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45, followed
Ivey v Genting Casinos (UK) Ltd [2017] 3 WLR 1212; [2017] UKSC 67, considered

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AGLC
R v Orchard [2018] QCA 58
Case
[2018] QCA 58
Decision Date

CaseChat Overview and Summary

The appeal in this case was brought by the appellant, who was convicted of fraud under section 408C(1)(b) of the Criminal Code (Qld) with a circumstance of aggravation. The respondent argued that the conviction should stand as the trial judge's directions on dishonesty were sufficient and that the directions given to the jury were adequate to prevent speculation about uncalled witnesses. The appellant argued that the trial judge's directions on dishonesty were deficient because they failed to refer to the need for the prosecution to prove beyond reasonable doubt that the accused acted with a subjective dishonest intent. The appellant also argued that the directions were insufficient to guard against speculation by the jury about the evidence of witnesses that were not called, and that the conduct of trial counsel was prejudicial and deprived the appellant of a chance of acquittal that was fairly open.

The court was required to decide whether the trial judge's directions on dishonesty were adequate, whether the directions were sufficient to prevent speculation by the jury, and whether the conduct of trial counsel was prejudicial. The court considered the relevant legal principles and statutes, including the requirement for the prosecution to prove beyond reasonable doubt that the accused acted with a dishonest intent, and the principles governing the conduct of counsel during a trial. The court also examined the trial judge's directions to the jury, the evidence presented, and the conduct of trial counsel.

The court found that the trial judge's directions on dishonesty were not deficient, as a subjective dishonest intent was not an element of dishonesty in the offence charged. The court also found that the directions given to the jury were sufficient to prevent speculation about uncalled witnesses, and that the conduct of trial counsel did not deprive the appellant of a chance of acquittal that was fairly open. The court held that the appeal should be dismissed.

The court dismissed the appeal and confirmed the conviction of the appellant.

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

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