R v Robertson

Case [2023] QCA 47

SUPREME COURT OF QUEENSLAND

CITATION:

R v Robertson [2023] QCA 47

PARTIES:

R
v
ROBERTSON, Lee
(appellant)

FILE NO/S:

CA No 225 of 2021
DC No 354 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Maroochydore – Date of Conviction: 25 August 2021 (Loury KC DCJ)

DELIVERED ON:

21 March 2023

DELIVERED AT:

Brisbane

HEARING DATE:

8 March 2022

JUDGES:

Fraser and Morrison and Bond JJA

ORDERS:

1.   Appeal allowed.

2.   Conviction quashed.

3.   Retrial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL ALLOWED – where the appellant was convicted by a jury of a single count of fraud as an employee to the value of $30,000 or more, contrary to s 408C of the Criminal Code (Qld) – where the appellant was an employee of a not-for-profit foundation – where the appellant caused bank credits to be transferred from the foundation to another person who was the mayor of the local community – where the factual dispute at trial concerned whether the appellant’s conduct was properly regarded as dishonest within the meaning of s 408C in that the appellant knew the mayor did not provide services to the foundation, was not entitled to the monies, and the bank credits were not for a legitimate purpose of the foundation – where there was evidence that despite the appellant’s personal adverse views as to the lack of merits of the mayor’s claims against the foundation, the appellant honestly thought he was entitled to set aside his personal views and transfer foundation monies to the mayor because the acting chair of the foundation authorised him to do so – whether the evidence raised a statutory excuse pursuant to s 22(2) of the Criminal Code – where the primary judge ruled that because the issue in the trial was dishonesty there was no work for the statutory excuse in s 22(2) to do – where the trial judge did not direct the jury in relation to s 22(2) of the Criminal Code – where the appellant complains about the adequacy of the directions given by the trial judge – whether a miscarriage of justice occurred

Criminal Code (Qld), s 22(2), s 36, s 408C, s 488

Macleod v The Queen (2003) 214 CLR 230; [2003] HCA 24, discussed
Peters v The Queen (1998) 192 CLR 493; [1998] HCA 7, followed
R v Dale[2012] QCA 303, cited
R v Davidson[2022] QCA 22, cited
R v Dillon; Ex parte Attorney-General (Qld) [2016] 1 Qd R 56; [2015] QCA 155, cited
R v Jayaweera[2022] QCA 103, followed
R v Lyons[2021] QCA 136, cited
R v Macleod (2001) 52 NSWLR 389; [2001] NSWCCA 357, cited
R v Mirotsos[2022] QCA 76, cited
R v Perrin [2018] 2 Qd R 174; [2017] QCA 194, discussed
Taiapa v The…

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CaseChat Overview and Summary

The appellant, Robertson, was convicted by a jury of fraud as an employee under s 408C of the Criminal Code (Qld). The key issue was whether the appellant's actions, which involved transferring significant sums from a not-for-profit foundation to the mayor of a local community, were dishonest. The trial judge did not direct the jury on the statutory excuse provided by s 22(2) of the Criminal Code, which Robertson argued led to a miscarriage of justice. The court was required to determine if the omission to direct the jury on this point warranted a retrial.

The court found that the trial judge's failure to properly direct the jury on the statutory excuse under s 22(2) of the Criminal Code led to a miscarriage of justice. The appellant had argued that despite his personal views, he believed he was authorised to transfer the funds due to the acting chair's approval. This point was critical to assessing the appellant's state of mind and whether his actions could be considered dishonest under the objective standard of ordinary honest people. The court concluded that the statutory excuse was relevant and should have been considered by the jury, hence the conviction must be quashed and a retrial ordered.

Orders

Orders of the court

1. Appeal allowed.

2. Conviction quashed.

3. Retrial ordered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For reasons which follow, the appeal must be allowed; the conviction quashed; and a retrial ordered.The relevant evidence at trial Hope Vale is an aboriginal community in Far North Queensland. The local authority for the community is the Hope Vale Aboriginal Shire Council (the Council).The Foundation The Foundation is a “not for profit”[1] company limited by guarantee incorporated under the Corporations Act 2001 (Cth). The date of commencement of its registration under the Corporations Act was 13 February 2009.[2] The Constitution of the Foundation reveals that it was established for the objects of:[3]“Charitable and benevolent purposes for the relief of poverty, sickness, suffering, distress, misfortune, disability and helplessness consistent with the spirit and intendment of the Statute of Charitable Uses of 1601, amongst and in the Community of Hope Vale”.[1]Clause 5 of sch (A) of the Constitution: Appeal Record (AR) at 251.[2]ASIC Certificate of Registration of a Company: AR at 252.[3]Clause 1.1 of Schedule (A) of the Constitution: AR at 247. Schedule (A) to the Constitution expanded on that general statement of charitable purposes by:(a)an inclusive list of purposes which should be regarded as charitable purposes, e.g., the relief of poverty; the advancement of education; the advancement of religion including Aboriginal lore and custom;[4](b)an identification of direct programs which could be regarded as included in such purposes, e.g., family support programs; substance abuse diversion; sexual assault and domestic violence programs;[5](c)an identification of activities which would be regarded as consistent with beneficial purposes, e.g., addressing social and economic disadvantage in the community; providing accommodation and housing services;[6](d)empowering the Foundation to act as a corporate trustee of charitable trusts;[7] and(e)empowering the Foundation to do anything a natural person could do, in support of the objects of the Foundation.[8][4]Clauses 1.2-1.7 of sch (A) of the Constitution: AR at 247-248.[5]Clauses 2-2.7 of sch (A) of the Constitution: AR at 248.[6]Clauses 3-3.18 of sch (A) of the Constitution: AR at 249-250.[7]Clause 4.2 of sch (A) of the Constitution: AR at 250.[8]Clause 6 of sch (A) of the Constitution: AR at 251. Notwithstanding the last-mentioned empowering provision, cl 5 of the Constitution set out a very broad range of specific powers which the Foundation would have “for the purpose of carrying out the objects and not otherwise”. Amongst other powers were the following powers:(a)“to make such grants to or in aid of or to make donations or give assistance to or to make contracts with such individuals, … as may be necessary or desirable”;[9](b)“to sell, improve, manage, develop, exchange, lease, dispose of, turn to account or otherwise deal with all or any part of the property and rights of [the Foundation]”;[10] and(c)“to do all such other acts matters and things and to enter into and make such agreements as are incidental or conducive to the attainment of the objects and the exercise of the powers of the [Foundation].”[11][9]Clause 5(a) of the Constitution: AR at 226.[10]Clause 5(q) of the Constitution: AR at 228.[11]Clause 5(y) of the Constitution: AR at 228.

Decision

Reasons for decision

In the present case, it was the failure to give the latter part of that direction which occasioned a miscarriage of justice.Conclusion The appeal should be allowed. The following orders should be made: appeal allowed; conviction quashed; and retrial ordered. MORRISON JA: I have had the advantage of reading the draft reasons of Fraser JA and Bond JA. Their Honours’ analysis enables me to state briefly why I have reached a different conclusion. The four impugned payments made by the appellant from the Foundation’s bank account to the Mayor (McLean) were:(a)21 December 2012: $30,000 into McLean’s Indigenous Business of Australia (IBA) loan repayment account;(b)21 December 2012: $6,000 into McLean’s bank account;(c)24 December 2012: $12,500 into McLean’s bank account; and(d)20 February 2013: $9,900 into McLean’s bank account. The central question at the trial was whether appellant’s act or omission must have been done or made “dishonestly”. So far as that element of the offence is concerned, in R v Jayaweera,[112] the Court of Appeal observed:“Yet the law is clear that in a case of this nature, the Crown must articulate clearly the relevant aspect of the accused’s knowledge, belief or intent which, on the Crown case, rendered the accused’s conduct dishonest and the trial judge must:(a)identify for the jury the knowledge, belief or intent of the accused which was said to render the impugned conduct by the accused dishonest; and(b)instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, the conduct was dishonest by the standards of ordinary honest people.”[112]R v Jayaweera [2022] QCA 103 at [13] (per Fraser and Bond JJA). Citations omitted. The Crown had particularised its case on dishonesty consistently with the law summarised in Jayaweera. The alleged inculpatory state of mind focussed on was the appellant’s state of mind as to the legitimacy of McLean’s claim as against the Foundation, namely:(a)knowledge that McLean did not provide any professional services to the Foundation; (b)knowledge that McLean was not entitled to the money; and (c)knowledge that the transfer of the bank credits was not for a legitimate purpose of the Foundation. The question agitated on appeal proceeded on the basis that the appellant’s knowledge of those three matters had the result that requisite dishonesty was established but for the operation of s 22(2). That is to say, the impugned conduct was done “dishonestly” for the purposes of s 408C because the evaluation of acts done or omitted with that particular state of mind was dishonest by the application of an objective standard; that is, by the standards of ordinary honest people. Put at its highest, the appellant’s statement is said to have raised the s 22(2) issue in this way:(a)the Crown case was that the appellant knew of the lack of merits of McLean’s claim as against the Foundation and, on account of his having that knowledge, his causing Foundation funds to be transferred to McLean was dishonest by the standards of ordinary, honest people; and(b)despite the appellant’s personal view of the lack of merits of McLean’s claims as against the Foundation, he honestly thought that he was entitled to set aside his personal views and transfer Foundation monies to McLean because the acting Chair of the Board of the Foundation (Pearson) authorised him to do so.

Ratio Decidendi

Legal Principle Established

Mr Russell Gibson, the director of the Foundation appointed in early 2013, was called and questioned concerning the events which the appellant had related and which are recorded at [36] above. He confirmed, partly by recollection and partly by agreeing, that details in an earlier statement of his would have been correct, that he received a phone call from Mayor McLean seeking payment of $6,000 for consultancy work. Following this conversation Mr Gibson spoke with Ms Pearson and in consequence Mr Gibson directed the appellant to pay the monies said to be owed.[77][77]AR at 186.39-188.5.Consideration Section 408C deals with the offence for which the appellant was convicted, and relevantly provides:“(1)A person who dishonestly–…(e) causes a detriment, pecuniary or otherwise, to any person;…commits the crime of fraud.Maximum penalty—5 years imprisonment(2)The offender is liable to imprisonment for 14 years if, for an offence against subsection (1)–…(b)the offender is an employee of the victim; or…(d)the property, or the yield to the offender from the dishonesty, or the detriment caused, is of a value of at least $30,000 but less than $100,000”. Putting to one side the aggravating features of s 408C(2)(b) and (d), there are three elements to the offence: (a)a person has suffered a pecuniary detriment;(b)the appellant must have done an act or made an omission which must be regarded as having “caused” that to occur; and(c)the appellant’s act or omission must have been done or made “dishonestly”. As mentioned, only the third element was in issue at the trial. So far as that element of the offence is concerned, in R v Jayaweera [2022] QCA 103,[78] the Court of Appeal followed Peters v The Queen (1998) 192 CLR 493 at [15]–[18] to observe (citations omitted):“Yet the law is clear that in a case of this nature, the Crown must articulate clearly the relevant aspect of the accused’s knowledge, belief or intent which, on the Crown case, rendered the accused’s conduct dishonest and the trial judge must:(a)identify for the jury the knowledge, belief or intent of the accused which was said to render the impugned conduct by the accused dishonest; and(b)instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, the conduct was dishonest by the standards of ordinary honest people.”[78]At [13] (per Fraser and Bond JJA), citing Peters v The Queen (1998) 192 CLR 493 at [15]–[18]; R v Dillon; Ex parte Attorney-General (Qld) [2016] 1 Qd R 56 at [48]; R v Lyons [2021] QCA 136 at [5]–[6], [19] and [136]; R v Davidson [2022] QCA 22 at [11]–[14]; and R v Mirotsos [2022] QCA 76 at [29]. Thus, a determination that the impugned conduct was done “dishonestly” for the purposes of s 408C requires, first, determination that the accused had a particular inculpatory state of mind[79] and, second, the evaluation of acts done or omitted with that particular state of mind as dishonest by the application of an objective standard.[80] The Crown carries the burden of proving beyond reasonable doubt the affirmative of each proposition.[79]I.e., the relevant aspect of knowledge, belief or intent which, on the Crown case, is said to have rendered the accused’s conduct dishonest.[80]I.e. the standards of ordinary, honest people.