R v Vest

[1992] QCA 398

IN THE COURT OF APPEAL [1992] QCA 398

SUPREME COURT OF QUEENSLAND C.A. No. 153 of 1992

T H E Q U E E N

v.

MICHAEL BRUCE VEST

(Appellant)

Mr Justice Pincus
Mr Justice Moynihan
Mr Justice Ambrose

Judgment of Moynihan J delivered the 23rd day of November, 1992. Separate reasons of Moynihan S J A agreeing with the orders of Pincus J A and the reasons of both Pincus J A and Ambrose J

CASE REMITTED TO THE TRIAL JUDGE WITH THE FIRST QUESTION ASKED ANSWERED IN THE POSITIVE AND THE COURT DECLINING TO ANSWER THE SECOND QUESTION.

JUDGMENT - PINCUS J.A.

Delivered the Twenty-third day of November 1992

This criminal matter came before the Court in what one would hope were unusual circumstances. Mr. Vest who may, in view of the second last sentence of s.668B of the Code, be called the appellant, was charged with an offence, tried in the District Court and had a verdict of guilty entered against him

on 5 September 1989. He was not asked whether he had anything to say why sentence should not be passed upon him, as s.648

contemplates shall be done, because counsel for the appellant had applied to the judge to reserve questions of law under s.668B. His Honour therefore postponed sentence, asking that counsel present a draft case. The appellant was allowed bail and the Court adjourned.

It was not until 15 May 1992 that the judge stated "in a case signed by him, the question of law so reserved, with the special circumstance upon which it arose", as s.668B requires. The questions stated were as follows:

1.Was it permissible in law for the jury to consider the
charge set out in the indictment against Michael Bruce

Vest being a charge of obtaining property by a false

pretence and with intent to defraud?

2.Was the accused Michael Bruce Vest rightly convicted in

law of the offence with which he was charged?

It appears to me that the second question may conveniently

be dealt with first. The whole transcript of evidence formed

part of the record and we were invited to analyse it to

determine whether or not it was so, as counsel for the appellant

contended, that the evidence was not such as safely to found a conviction. Questions of law may arise and be properly framed which raise matters concerning the sufficiency of evidence to support a conviction. It now appears clear, however, that s.668B does not contemplate the reservation of such a broad question as counsel for the appellant sought to raise. As I

read the case stated, the trial judge did not contemplate that this Court would do so; his Honour appeared to have in mind, as

to question 2., that the Court would resolve a more specific

point. Precisely what it was did not appear from the case and

his Honour seemed to intend that the Court should ascertain its

full dimensions by a study of the evidence. It is my view that

the Court should decline to answer the second question.

The first question seems to me sufficiently to raise a

point as to the form of the indictment. The charge set out in

the indictment alleged that the appellant, by falsely pretending

a certain matter, obtained a motor car with intent thereby then to defraud. It was not contended that the count was bad on the

face of it. The argument advanced was that the appellant, if

guilty at all, was guilty as a participant in an offence with

one Tito. The case shows that Tito was charged with an offence somewhat similarly framed and that the appellant and Tito were alleged to have acted together in the commission of the offence.

Mr. Bourke argued for the appellant that the indictment should have been framed so as to include one count only, charging both the appellant and Tito with one offence. It appears to me that the argument requires that one read s.568(5) of the Code so as to require that persons charged with committing the same offence must be charged, not only in the same indictment, but in the one count. What s.568(5) in fact provides, among other things, is that such persons -

"... may be charged with substantive offences in the same indictment and may be tried together ..." (emphasis added).

Section 568(6) deals with a question as to the

permissibility of including certain charges in the one

indictment and gives no assistance to the appellant's argument.

To exemplify the appellant's point, it is that if two

people are charged with committing an offence, one on the basis

that he actually did the act which constituted the offence -

s.7(a) of the Code - and the other that he merely aided - s.7(b) - then they must be charged in the one count. The Code does not so provide, nor have I found any authority to support the proposition, which does not appear to me to be correct.

Clearly, in the example I have mentioned, each could be charged

in a separate indictment and separately tried. If the two are

included in the one indictment, there is no reason why each

should not be the subject of a separate count.

I would therefore answer the first question "Yes".

It remains to be considered what should now be done with

the case. It is to be heard and determined as an appeal, as the

second last sentence of s.668B requires. It is, however, an appeal of a peculiar sort since, by the terms of the section, a case may be brought here, as this one was, after verdict but before sentence. The proper course is to remit the case to the

District Court for further hearing and in particular to deal

with the question of punishment; I refer to the orders made in R. v. Kaporonowski [1972] Qd.R. 465 at 521, R. v. Kaeser [1961]

Q.W.N. 11 and R. v. Thompson [1933] Q.W.N. 36.

The orders which in my view should be made are as follows:

1.The first question reserved is answered "Yes".

2.The Court declines to answer to the second question.

3.The case is remitted to the trial judge.

JUDGMENT - MOYNIHAN J

Delivered the 23rd day of November, 1992

I agree with the orders proposed by Pincus JA and with his reasons together with those of

Ambrose J.