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 2021DIVISION:
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 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
Decision
Reasons for decision
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.