R v Thomson - [2002] QCA 548

SUPREME COURT OF QUEENSLAND

CITATION:

R v Thomson [2002] QCA 548

PARTIES:

R
v

THOMSON, Kevin James
(appellant)

FILE NO/S:

CA No 257 of 2002
DC No 2 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Kingaroy

DELIVERED ON:

19 December 2002

DELIVERED AT:

Brisbane

HEARING DATE:

2 December 2002

JUDGES:

McMurdo P, Helman and Philippides JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal allowed;

2.   Appellant’s convictions quashed and orders made below set aside;

3.   New trial ordered;

4.   Appellant to be admitted to bail pending the new trial unless it can be shown when the decision of this court is handed down that there is a proper ground for refusing bail.

CATCHWORDS:

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 appellant lodged business activity statements with the Australian Taxation Office containing false claims for GST allegedly paid – where alleged lies by appellant – where Crown case confined to ‘credibility lies’ – where trial judge’s summing-up directed exclusively to ‘probative lies’ – where redirections sought on behalf of appellant were refused – whether a substantial miscarriage of justice occurred

Crimes Act 1914 (Cth), s 7, s 29D
Criminal Code (Qld), s 668E(1A)

Edwards v R (1993) 178 CLR 193, discussed
R v Brennan [1999] QCA 522; [1999] 2 Qd R 529, referred to
R v Wehlow [2001] QCA 193, CA No 210 of 2000, 25 May 2001, referred to
Zoneff v The Queen (1993) 178 CLR 193, applied

COUNSEL:

G P Long for the appellant
A J Rafter for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Commonwealth) for the respondent

McMURDO P: I agree with the reasons for judgment of Helman J and with the orders proposed.

HELMAN J:
On 25 July 2002 the appellant, a disabled pensioner born on

11 December 1956 who conducted as a hobby a jewellery repairing and manufacturing business under the name Thomson & Thomson jewellers, was found guilty after a trial, which began on 22 July 2002 in the District Court at Kingaroy, on two counts of defrauding the Commonwealth and one of attempting to do so. Those offences are provided for in ss 7 and 29D of the Crimes Act 1914. The fraud alleged concerned the Commonwealth goods and services tax which was first imposed in July 2000. The learned trial judge sentenced him to imprisonment for three and a half years on each count, the sentences to be served concurrently. A non-parole period of fifteen months was set. His Honour also made a pecuniary penalty order requiring the appellant to pay $87,862.58 to the Commonwealth. The only ground specified in the notice of appeal against conviction was…

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 Thomson

Details

AGLC: R v Thomson [2002] QCA 548
Case: [2002] QCA 548
Decision Date: 19 December 2002

CaseChat Overview and Summary

The appellant, Thomson, appealed against his conviction for lodging false business activity statements with the Australian Taxation Office. The nature of the appeal was focused on the alleged misdirection and non-direction by the trial judge during the summing-up of the case. The Court of Appeal was tasked with determining whether the trial judge's direction led to a substantial miscarriage of justice.

The primary legal issue before the Court of Appeal was whether the trial judge's summing-up, which focused exclusively on 'probative lies' rather than 'credibility lies', constituted a misdirection that led to a substantial miscarriage of justice. The Court had to consider whether the trial judge's failure to address 'credibility lies' was an error of law that warranted the appeal. Furthermore, the Court needed to assess whether the refusal of redirections on behalf of the appellant contributed to the miscarriage of justice.

The Court of Appeal found that the trial judge's summing-up did indeed contain a misdirection by exclusively directing the jury to consider 'probative lies' rather than also addressing 'credibility lies'. The Court held that this error of law was material and likely contributed to the jury's decision. The refusal of redirections further compounded the issue, leading the Court to conclude that there was a substantial miscarriage of justice. Consequently, the Court allowed the appeal, quashed the convictions, set aside the orders made below, and ordered a new trial. The appellant was to be admitted to bail pending the new trial unless a proper ground for refusing bail was established when the decision of the Court was handed down.

Orders

Orders of the court

1. Appeal allowed;

2. Appellant’s convictions quashed and orders made below set aside;

3. New trial ordered;

4. Appellant to be admitted to bail pending the new trial unless it can be shown when the decision of this court is handed down that there is a proper ground for refusing bail.

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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CITATION:	R v Thomson [2002] QCA 548
PARTIES:	R v THOMSON, Kevin James (appellant)
FILE NO/S:	CA No 257 of 2002 DC No 2 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Kingaroy
DELIVERED ON:	19 December 2002
DELIVERED AT:	Brisbane
HEARING DATE:	2 December 2002
JUDGES:	McMurdo P, Helman and Philippides JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal allowed; 2. Appellant’s convictions quashed and orders made below set aside; 3. New trial ordered; 4. Appellant to be admitted to bail pending the new trial unless it can be shown when the decision of this court is handed down that there is a proper ground for refusing bail.
CATCHWORDS:	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 appellant lodged business activity statements with the Australian Taxation Office containing false claims for GST allegedly paid – where alleged lies by appellant – where Crown case confined to ‘credibility lies’ – where trial judge’s summing-up directed exclusively to ‘probative lies’ – where redirections sought on behalf of appellant were refused – whether a substantial miscarriage of justice occurred Crimes Act 1914 (Cth), s 7, s 29D Criminal Code (Qld), s 668E(1A) Edwards v R (1993) 178 CLR 193, discussed R v Brennan [1999] QCA 522; [1999] 2 Qd R 529, referred to R v Wehlow [2001] QCA 193, CA No 210 of 2000, 25 May 2001, referred to Zoneff v The Queen (1993) 178 CLR 193, applied
COUNSEL:	G P Long for the appellant A J Rafter for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Commonwealth) for the respondent