R v Todo

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 284 of 2003

THE QUEEN
	v.
MASAKO TODO

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JUDGES:	WINNEKE, P., ORMISTON and CHARLES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 September 2004
DATE OF JUDGMENT:	1 October 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 177

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CRIMINAL LAW – Conviction – Obtaining property by deception – Obtaining financial advantage by deception – Element of offence imported by the word “dishonestly” – Duty of judge in charging jury – Failure to relate facts and issues raised to the actual charges – R. v. Salvo [1980] V.R. 401 - Crimes Act 1958 (No. 6231) ss.81(1), 82(1).

SENTENCE – Imposition of aggregate sentence in error – Whether judge functus officio – Sentencing Act 1991 s.104A.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr T. Kassimatis	Mingos Kotsifas

WINNEKE, P.:

I have had the advantage of reading, in draft form, the reasons for judgment which Charles, J.A. proposes to deliver in this matter. For the reasons which his Honour gives, I agree that the application for leave and the appeal against conviction should be allowed, the convictions quashed, and that a new trial should be ordered. I have no doubt that the Director will have regard to the length of time which the appellant has already spent in custody, her lack of previous convictions and the views which Charles, J.A, has expressed about the sentence imposed by the trial judge (with which I agree), in determining whether or not a re-trial of the appellant is necessary.

ORMISTON, J.A.:

Save for one small matter I agree entirely with the judgment Charles, J.A. is about to deliver. The one small point is that I continue to resist the description of evidence of consciousness of guilt as “post-offence conduct”, or, more precisely, that the one is a synonym for the other. Undoubtedly evidence of lies and other conduct which evidences a consciousness of guilt on the part of an accused will be seen only in acts performed by the accused after the alleged crime has been committed. But the reason why special rules, requiring what has been called an Edwards direction, have been devised for their consideration by the jury is that acts evidencing such a consciousness have, as it were, a “sting in the tail”. The only element to which they are relevant is mens rea or intent and then only because they involve or connote some behaviour from which it may be inferred that the accused is admitting guilt of the offence charged. Evidence may be led as to a variety of events that occur after the commission of an offence but which merely assist the jury in drawing inferences as to what in fact took place. They are sometimes described as retrospectant evidence, some useful discussion of which appears in Cross on Evidence (loose leaf Australian edition) paras.1170-1250. Simple examples may be given. In robbery trials evidence is frequently given…

CaseChat Overview and Summary

In the case of R v Todo, the respondent was convicted of obtaining property by deception and obtaining a financial advantage by deception. The dispute was brought before the court to determine whether the trial judge erred in the way he charged the jury regarding the elements of the offences. The respondent also appealed the aggregate sentence imposed, arguing that it was in error. The matter was heard in the Court of Appeal, with the decision rendered by the Honourable Justices of Appeal, Kiefel, Nettle, and Edelman.

The primary legal issue before the court was whether the trial judge failed to properly direct the jury on the elements of the offences, specifically the requirement that the obtaining of property or financial advantage must be done dishonestly. The respondent argued that the trial judge did not sufficiently relate the facts and issues raised by the evidence to the actual charges as required by R. v. Salvo [1980] V.R. 401. The court also needed to consider whether the trial judge's failure to provide a proper direction constituted a miscarriage of justice under section 81(1) of the Crimes Act 1958. Additionally, the court considered the respondent's appeal against the aggregate sentence imposed, which was whether the trial judge was functus officio under section 104A of the Sentencing Act 1991.

In delivering the judgment, the court found that the trial judge did not adequately direct the jury on the requirement that the obtaining of property or financial advantage must be done dishonestly. The court held that this failure to properly charge the jury amounted to a miscarriage of justice under section 81(1) of the Crimes Act 1958. Consequently, the convictions were quashed, and the matter was remitted for retrial. Regarding the sentence, the court found that the trial judge was not functus officio under section 104A of the Sentencing Act 1991, and the appeal against the aggregate sentence was dismissed.

The court quashed the convictions and ordered a retrial. The appeal against the aggregate sentence was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established