R v Voyka - [2006] QCA 493

SUPREME COURT OF QUEENSLAND

CITATION:

R v Voyka [2006] QCA 493

PARTIES:

R
v
VOYKA, John
(appellant/applicant)

FILE NO/S:

CA No 149 of 2006
CA No 186 of 2006
DC No 160 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction and Sentence

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

24 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

29 September 2006

JUDGES:

Jerrard and Keane JJA and Jones J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal against conviction dismissed
2. Application for leave to appeal against sentence dismissed

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 DISMISSED – appellant convicted of five counts of defrauding the Commonwealth under s 29D Crimes Act 1914 (Cth) – appellant did not deduct Pay as You Earn tax from the wages of his workers and remit that to the Australian Tax Office (ATO) – appellant referred to workers as “sub-contractors” rather than employees – appellant ignored advice from ATO that workers fell within definition of “employees” under s 221A(1) Income Tax Assessment Act 1936 (Cth) – whether trial judge erred in giving any directions regarding statements said to be lies by the appellant in circumstances where the prosecution chose not to call workers from callings such as draftspersons, plumbers and electrical engineers – whether trial judge gave inadequate directions as to lies

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 DISMISSED – whether trial judge erred in failing to warn jury to closely scrutinise the evidence of a particular witness in circumstances where the evidence indicated that pressure had been applied to the witness by an Australian Federal Police Officer, prior to him receiving undertaking that he would not be prosecuted on the contents of a statement subsequently given against the appellant

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 DISMISSED – whether a Jones v Dunkel (1959) 101 CLR 298 direction was required

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – PARTICULAR MATTERS DISCHARGE OF JURY – whether trial judge erred in failing to discharge the jury when two witnesses gave inadmissible and highly prejudicial evidence regarding conversations with the appellant’s “works manager”

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…

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 Voyka

Details

AGLC: R v Voyka [2006] QCA 493
Case: [2006] QCA 493
Decision Date: 24 November 2006

CaseChat Overview and Summary

The appellant was convicted of five counts of defrauding the Commonwealth under section 29D of the Crimes Act 1914 (Cth). The appellant did not deduct Pay as You Earn tax from the wages of his workers and remit that to the Australian Tax Office (ATO). He referred to the workers as "sub-contractors" rather than employees, despite advice from the ATO that they fell within the definition of "employees" under section 221A(1) of the Income Tax Assessment Act 1936 (Cth). The Court of Appeal considered several grounds of appeal, including the trial judge's directions to the jury regarding the appellant's alleged lies, the need for a Jones v Dunkel direction, the failure to discharge the jury upon inadmissible evidence, the summing up regarding the element of dishonesty, and the sentence.

The primary legal issues before the court were whether the trial judge erred in giving directions regarding the appellant's alleged lies, whether the judge failed to warn the jury to closely scrutinise the evidence of a particular witness, and whether the trial judge gave an inadequate Jones v Dunkel direction. The court also considered whether the trial judge erred in failing to discharge the jury when two witnesses gave inadmissible and highly prejudicial evidence. Additionally, the court examined whether the summing up in relation to the element of dishonesty was unbalanced and whether the sentencing judge placed insufficient weight on the appellant's physical and mental health and whether the judge was wrong to sentence on the basis that the ATO was deprived over 5 years of $640,000.

The Court of Appeal held that the trial judge did not err in giving directions regarding the appellant's alleged lies, as the prosecution chose not to call certain workers who could have testified. The court found no error in the trial judge's failure to warn the jury to closely scrutinise the evidence of a particular witness, as there was no indication that pressure had been applied to the witness. The court held that a Jones v Dunkel direction was not required, as the evidence was not of such a nature that the jury ought to be warned. The court found that the trial judge did not err in failing to discharge the jury when two witnesses gave inadmissible and highly prejudicial evidence, as the evidence was not so prejudicial as to endanger the appellant's right to a fair trial. The court held that the summing up in relation to the element of dishonesty was not unbalanced and that the sentencing judge did not place insufficient weight on the appellant's physical and mental health. The court held that the sentencing judge was not wrong to sentence on the basis that the ATO was deprived over 5 years of $640,000, and that the figure was not misleading.

The appeal against conviction was dismissed, and the application for leave to appeal against sentence was dismissed. The appellant's conviction and sentence were upheld.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Voyka [2006] QCA 493
PARTIES:	R v VOYKA, John (appellant/applicant)
FILE NO/S:	CA No 149 of 2006 CA No 186 of 2006 DC No 160 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction and Sentence
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	24 November 2006
DELIVERED AT:	Brisbane
HEARING DATE:	29 September 2006
JUDGES:	Jerrard and Keane JJA and Jones J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence dismissed
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 DISMISSED – appellant convicted of five counts of defrauding the Commonwealth under s 29D Crimes Act 1914 (Cth) – appellant did not deduct Pay as You Earn tax from the wages of his workers and remit that to the Australian Tax Office (ATO) – appellant referred to workers as “sub-contractors” rather than employees – appellant ignored advice from ATO that workers fell within definition of “employees” under s 221A(1) Income Tax Assessment Act 1936 (Cth) – whether trial judge erred in giving any directions regarding statements said to be lies by the appellant in circumstances where the prosecution chose not to call workers from callings such as draftspersons, plumbers and electrical engineers – whether trial judge gave inadequate directions as to lies 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 DISMISSED – whether trial judge erred in failing to warn jury to closely scrutinise the evidence of a particular witness in circumstances where the evidence indicated that pressure had been applied to the witness by an Australian Federal Police Officer, prior to him receiving undertaking that he would not be prosecuted on the contents of a statement subsequently given against the appellant 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 DISMISSED – whether a Jones v Dunkel (1959) 101 CLR 298 direction was required CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – PARTICULAR MATTERS DISCHARGE OF JURY – whether trial judge erred in failing to discharge the jury when two witnesses gave inadmissible and highly prejudicial evidence regarding conversations with the appellant’s “works manager” 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…