CA No 6 of 2017 CA No 20 of 2017 DC No 1083 of 2014 DC No 2552 of 2016
DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction & Sentence
ORIGINATING COURT:
District Court at Brisbane – Date of Conviction: 20 December 2016; Date of Sentence: 27 January 2017 (Dick SC DCJ)
DELIVERED ON:
5 September 2017
DELIVERED AT:
Brisbane
HEARING DATE:
27 April 2017
JUDGES:
Morrison and Philippides JJA and Atkinson J
ORDER:
1. The appeal against conviction is dismissed.
2. The application for leave to appeal against sentence is allowed.
3. The appeal against sentence is allowed.
4. The order as to parole eligibility, imposed on 27 January 2017, is set aside, an in lieu thereof it is ordered that the parole eligibility date is set at 20 June 2020.
5. Otherwise the sentences imposed on 27 January 2017 are affirmed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IRREGULARITIES IN RELATION TO JURY – CONDUCT OF TRIAL JUDGE – where the appellant was convicted of six counts of aggravated forgery and three counts of aggravated fraud – where the appellant contends that the trial judge wrongly decided that the exculpatory provision in s 22(2) of the Criminal Code (Qld), an honest claim of right, would not be left for the jury to consider – where the appellant submits that by failing to leave s 22(2) to the jury, a miscarriage of justice was caused – where there are similarities between the criteria that establish a forgery or fraud offence and the defence in s 22(2) – where the respondent submitted that if an offence of forgery is proven, s 22(2) cannot apply – where case law demonstrates that s 22(2) has three criteria, which must be satisfied with reference to the act constituting the offence – where defence counsel at trial conceded that there was a logical difficulty in satisfying the three criteria, because of the similarities between the defence in s 22(2) and the elements of fraud and forgery – whether the trial judge was correct to conclude that a direction on s 22(2) was not necessary
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant was sentenced to concurrent terms of imprisonment with a head sentence of eight years imprisonment with a parole eligibility date of 20 December 2020 – where the applicant contends that the learned sentencing judge erred in failing to account for his cooperation in the administration of justice – where the applicant made a number of admissions during the course of the trial – where such admissions avoided the need for expert witnesses – where the learned sentencing judge expressly referred to that in her Honour’s sentencing remarks but did not state what discount would be applied because of such cooperation…
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.
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AGLC
R v Perrin [2017] QCA 194
Case
[2017] QCA 194
Decision Date
CaseChat Overview and Summary
The appellant, represented by senior counsel, was convicted of six counts of aggravated forgery and three counts of aggravated fraud. He sought to appeal against his convictions and sentence. In relation to the convictions, the appellant contended that the trial judge wrongly decided that the exculpatory provision in s 22(2) of the Criminal Code (Qld), an honest claim of right, would not be left for the jury to consider. The appellant submitted that by failing to leave s 22(2) to the jury, a miscarriage of justice was caused. In relation to the sentence, the appellant contended that the learned sentencing judge erred in failing to account for his cooperation in the administration of justice. The appellant submitted that the sentence as a whole was manifestly excessive.
The court considered the legal issues, including whether the trial judge was correct to conclude that a direction on s 22(2) was not necessary, and whether the sentence as a whole was manifestly excessive. The court found that the appeal against the convictions should be dismissed, and the application for leave to appeal against sentence should be allowed. The court found that the trial judge was correct to conclude that a direction on s 22(2) was not necessary, as the circumstances did not warrant the provision being left to the jury. The court also found that the sentence as a whole was not manifestly excessive, but that the order as to parole eligibility was set aside, and an alternative date was imposed. The sentences imposed on 27 January 2017 were affirmed otherwise.
Orders
Orders of the court
1. The appeal against conviction is dismissed.
2. The application for leave to appeal against sentence is allowed.
3. The appeal against sentence is allowed.
4. The order as to parole eligibility, imposed on 27 January 2017, is set aside, an in lieu thereof it is ordered that the parole eligibility date is set at 20 June 2020.
5. Otherwise the sentences imposed on 27 January 2017 are affirmed.
Background
Background to the litigation
The following explains my reasons for concluding that the appeal against the convictions should be dismissed, and the application for leave to appeal against sentence should be allowed.Background facts Because the original ground of appeal (that the verdicts were unsafe or unsatisfactory) was abandoned, there is no need to set out an exhaustive account of the facts. The following draws upon those agreed as relevant by the appellant and the respondent. The appellant and Nicole Bricknell[4] were married in 1996 and their first child was born in 1998. Prior to that birth she gave up work as a beauty therapist. The appellant was a solicitor. They purchased a house and land at Southern Cross Drive, Cronin Island, in about May 1999. The purchase price was about $1.5m. To fund that purchase the appellant and Mrs Perrin obtained a loan secured by a mortgage over the property. The property was put in Mrs Perrin’s name because the appellant’s former partner in a law firm was being sued and the appellant wanted to avoid any possibility of the partner’s actions affecting them. He told her that a lawyer (which he was) puts assets in his wife’s name in order to protect the asset.[4]At the time of the trial Mrs Nicole Perrin had reverted to her previous name, Nicole Bricknell. For convenience she is referred to in these reasons as Mrs Perrin, or Nicole Perrin where appropriate to understand the evidence. A company, Christie Qld Pty Ltd, (Christie) was created around 1998. Mrs Perrin and the appellant were the only directors and shareholders. The purpose of the company was to run everything for their family. Christie held all of their cash assets. Mrs Perrin gave birth to their second child in 2000 and around that time the appellant finalised a transaction to do with a surfwear business called Billabong, which eventually resulted in them receiving $33m. She and the appellant knocked down the house they had purchased at Cronin Island, and built a new house. Sometime after 2001, they purchased the adjoining house and land.[5] They rented that house out for a while but then decided that, due to land tax issues, they would knock it down. They then amalgamated the titles of the two properties into one title, in her name.[5]Initially this was put in the name of Mrs Perrin’s sister, to hide its true ownership from neighbours: AB 124. The Billabong shares[6] were in Mrs Perrin’s name.[7] After Billabong was floated they received $8m and that money was put into Christie’s bank account. The money was used to demolish the house at Cronin Island and to fund the construction of the new house, at a cost of $7.4m.[6]Acquired when the appellant purchased an interest in the business.[7]She agreed that this was done to protect the shares: AB 143. Mrs Perrin said she basically ran the household and looked after the children, and she left the appellant in charge of the business affairs.[8] She said that they would discuss things,[9] but business decisions were made by the appellant; he said that he would only give her a brief overview.[10] As to the ownership of properties the appellant said he “thought of everything as ours”.[8]AB 124.[9]AB 124, 145.[10]AB 284, 289, 299, 338.
Evidence
Evidence Before The Court
She never gave the appellant any authority, either express or implied, to mortgage the property at Cronin Island, to offer her as a guarantor for loans or lines of credit, or to sign documents on her behalf. She denied that the appellant had been signing her name on documents since 1999 with her permission. She said it was not her signature on a guarantee dated 29 September 2004 which exposed her to a $100m liability[36] and that it was not her signature on an application to construct a jetty.[36]AB 149, 154.The appellant’s evidence He said he had Mrs Perrin’s authority to sign all the documents the subject of the counts of forgery and she had expressly stated that to him. All of the documents for the transactions in May, June and August 2008 were signed in similar circumstances of urgency. He “honestly believed [he] could sign for Nicole”. From the year 2000 on, Mrs Perrin had said if she was available and it was convenient she would sign documents, but if she was not available or it was inconvenient the appellant was to sign for her. The appellant said that Mrs Perrin had expressly authorised him to sign documents on her behalf.Ground 1 – direction as to s 22(2) of the Criminal Code 1899 (Qld) Senior Counsel for the appellant advanced a number of contentions in support of this ground of appeal, including:(a)a judge is obliged to leave an exculpatory provision if there is some evidence capable of raising it; the appellant’s evidence raised the provision, in that the appellant believed he had his wife’s authority to deal with their property;(b)the learned trial judge did not rule whether or not s 22(2) was raised on the evidence, but rather did not leave s 22(2) to the jury because s 22(2) was not needed because the prosecution had to prove dishonesty beyond reasonable doubt; for the fraud counts that was so, but for the forgery counts it was necessary for the prosecution to prove an intent to defraud beyond reasonable doubt;(c)relying on R v Mill,[37] the learned trial judge should have directed the jury as to s 22(2); and(d)to the extent that reliance might be placed on R v Dale,[38] 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. Senior Counsel for the Crown contended that:(a)for each allegation of fraud or forgery it was necessary to prove, beyond reasonable doubt, that the appellant held an intent to defraud or acted dishonestly; the learned trial Judge so directed the jury;(b)for s 22(2) to apply the words of the section require that there be both an honest claim of right and an absence of an intention to defraud; if there is an intent to defraud it is difficult to conceive there could be an honest claim of right; all cases which prove that a defendant acted dishonestly or with an intent to defraud will defeat s 22(2);(c)Mill was distinguishable, and Dale applied; therefore there was no need to direct the jury as to s 22(2);(d)the directions given were adequate to deal with the real issues at trial;(e)having regard to the manner in which the trial was litigated, there was no need for the trial Judge to direct the jury concerning s 22(2); and(f)if it was found that the jury should have been directed concerning s 22(2), no substantial miscarriage of justice has actually occurred and the proviso in s 668E(1A) of the Criminal Code applies; significant to that was the evidence that the appellant had forged his brother’s signatures as purported witness to the other forged signatures.Discussion – ground 1
Decision
Reasons for decision
As mentioned, in Macleod,[229] it was emphasised that “dishonesty” is not to be equated with an absence of a belief of legal right, except where used in its special sense. It follows, that since “dishonestly” is used in s 408C in its ordinary sense, there remains room for the application of s 22(2) in the case of fraud under s 408C. As was stated by McMurdo P in Dillon,[230] the construction of the term “dishonestly” to connote and require that the conduct in question be dishonest only according to ordinary honest standards, works harmoniously with the defence provision of s 22(2). Accordingly, where there is evidence that the accused actually had an honest belief (no matter how unreasonable or wrongheaded[231]) as to a legal entitlement to act as he or she did, to secure a conviction, the prosecution must disprove that honest belief beyond reasonable doubt in order to negative the defence of honest claim of right under s 22(2).[232][229]Macleod at [39], endorsing Peters at [111].[230]Dillon at [48].[231]The unreasonableness of the belief may be relevant in considering whether the belief was honestly held: R v Lawrence [1997] 1 VR 459 at 467.[232]Dillon at [48].The decision in Mill Furthermore, where an honest claim of right to property is raised on the evidence, a direction as to the subjective element of dishonesty in terms of the Ghosh test can never be a sufficient direction for the purposes of s 22(2). It is in that context that it is informative to turn to Mill. Although it preceded Peters, the decision highlighted the inadequacy of the Ghosh test as apt to focus the jury’s attention as to the subjective nature of an honest claim of right. The trial judge had directed as to the test of dishonesty in terms of the Ghosh test (that the jury consider whether what the accused did was “dishonest according to the standards of the community and further dishonest, according to those standards, to the knowledge of the accused”[233]). On appeal, it was not disputed that an arguable case of exculpation under s 22(2) was raised at trial, even though the appellant had not adverted to the provision in his address. Rather, the issue was whether that part of the direction as to dishonesty, which directed the jury’s inquiry to the accused’s own belief as to whether he acted dishonestly according to the standards of ordinary people, was a sufficient direction for the purposes of s 22(2).[233]Mill at [77]. The circumstances of the fraud count in question in Mill related to the transfer of money from Suga Pty Ltd, a company of which Mill was a director, to other entities that he owned or controlled. The evidence of complex arrangements, both personal and business, gave rise to a real issue as to whether Mill honestly believed he was legally entitled to transfer the money; by way of payment of fees due to him or by way of reimbursement of expenses incurred by him. It was held by Keane JA[234] that the appellant was entitled to have the jury instructed that he should be acquitted, unless they were satisfied beyond reasonable doubt that he did not honestly believe that he was entitled to apply the moneys to his own use (by way of payment of fees due to him or by way of reimbursement of expenses incurred by him for Suga Pty Ltd). In other words, the jury should have been directed that if the appellant honestly believed he was entitled to apply the moneys to his own use then, however unreasonable that belief, the defendant should be found not guilty.[235] In so finding, Keane JA applied the dicta of Callaway JA in R v Lawrence,[236] that directions as to the element of dishonesty, in terms of activity which was dishonest by the standards of ordinary people, was incapable of explaining to the jury the proposition that a person cannot fraudulently misappropriate property that he believes to be his own.[237] The directions given by the trial judge were therefore inadequate. They did not clearly raise for the jury’s consideration the proposition that the appellant was entitled to be found not guilty if the prosecution failed to establish that the appellant did not honestly believe he was entitled to apply the moneys in question to his own use.[238][234]Mill at [83].[235]Mill at [85].[236][1997] 1 VR 459.[237]Mill at [84].[238]Mill at [86].