R v Ton That Quynh Du - [1990] TASSC 70

Serial No 69/1990
List "A"

COURT: SUPREME COURT OF TASMANIA

CITATION: R v Ton That Quynh Du [1990] TASSC 70; A69/1990

PARTIES:  R
  v
  TON THAT QUYNH DU

FILE NO/S:  72/1989
DELIVERED ON:  24 October 1990
JUDGMENT OF:  Wright J

Judgment Number: A69/1990
Number of paragraphs: 33

Serial No 69/1990
List "A"
File No 72/1989

R v TON THAT QUYNH DU

REASONS FOR JUDGMENT WRIGHT J

24 October 1990

A number of interesting points have arisen for determination in this trial, and I will commence by reviewing something of the history of the case.

The accused has been indicted upon 24 counts of stealing Commonwealth property contrary to s71 of the Crimes Act 1914. The prosecution has closed its case without applying to amend or to add alternative counts to the indictment.

Mr McDermott for the defence submits no case to answer in respect of all charges. He makes this submission on the basis that the prosecution may have shown that the accused has either stolen or fraudulently misappropriated Commonwealth funds, but it has not shown which of those offences, he has committed. Mrs Singh all but conceded this point yesterday afternoon, as I understood her, and indeed suggested that the preponderance of the evidence suggested that fraudulent misappropriation rather than larceny had taken place.

However, this morning she re–opened her submissions in this respect and put to me that upon Counts 6, 7, 9, 10, 13, 17, 20, 22, 23 and 24 there was evidence indicating that moneys had been given to the accused by other Commonwealth employees in his Department which he may have misappropriated on these specific occasions.

However, there was no evidence which she could point to which indicated positively that any part of the funds misappropriated on those occasions consisted of those moneys which the accused had obtained from the other Commonwealth public servants.

Consequently I am still of the view that Mr McDermott's point is valid and that there is no rational basis upon which the jury could conclude, beyond reasonable doubt, that the accused committed theft rather than some other species of misappropriation on any individual occasion.

Section 71 of the Crimes Act recognises that larceny and fraudulent misappropriation are two separate and distinct offences, and indeed any student of criminal law will appreciate the historical distinction between theft and embezzlement at common law, and the difficult case law that that distinction has engendered over the years.

Unlike the Tasmanian Criminal Code and the Larceny Act 1915 (United Kingdom), the Commonwealth Crimes Act provides no statutory mechanism for the jury to convict of fraudulent misappropriation upon an indictment for stealing. For the jury to do this in these proceedings it would be necessary for the indictment to contain an allegation of fraudulent misappropriation as an alternative to each count of stealing. This procedure is frequently and necessarily used in State prosecutions in those cases in which the Crown can foresee that an offence other than that charged in the indictment, or one of…

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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Details

Case: [1990] TASSC 70
Decision Date: 24 October 1990

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the case of R v Ton That Quynh Du revolved around the defendant's alleged commission of multiple counts of stealing Commonwealth property under section 71 of the Crimes Act 1914. The defence argued that there was no case to answer for all charges due to insufficient evidence to distinguish between theft and fraudulent misappropriation. The defence counsel submitted that while the evidence may suggest fraudulent misappropriation, there was no basis for the jury to conclude beyond reasonable doubt that the accused committed theft. The prosecution had closed its case without amending the indictment to include alternative counts for fraudulent misappropriation.

The legal issues before the court included whether the evidence was sufficient to support a conviction for theft rather than fraudulent misappropriation, and if the court had the power to amend the indictment to include alternative counts for fraudulent misappropriation. The court found that the Crimes Act did not provide a statutory mechanism for the jury to convict of fraudulent misappropriation if indicted for stealing, and there was no evidence that any misappropriated funds came from other Commonwealth employees. Therefore, the court upheld the defence's submission of no case to answer.

The court also considered whether it had the power to allow the prosecution to amend the indictment to include fraudulent misappropriation as an alternative to the stealing charges. The court found that section 21A(1) of the Crimes Act only allowed amendments if an objection was taken to a defect in the indictment, which was not the case here. The court concluded that the power to amend could not be exercised and that allowing amendments at this stage could prejudice the accused, potentially causing injustice. Consequently, the court upheld the no case submission and directed the jury to acquit on all 24 counts in the indictment.

Orders