R v White - [2002] QCA 477

SUPREME COURT OF QUEENSLAND

CITATION:

R v White [2002] QCA 477

PARTIES:

R
v
WHITE, Wende Ann
(appellant)

FILE NO/S:

CA No 227 of 2002
DC No 37 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against conviction

ORIGINATING COURT:

District Court at Innisfail

DELIVERED ON:

8 November 2002

DELIVERED AT:

Brisbane

HEARING DATE:

31 October 2002

JUDGES:

de Jersey CJ, McPherson JA, Mullins J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal allowed to the extent only of varying the verdict of guilty and conviction of fraud with circumstances of aggravation by substituting a verdict of guilty and conviction of stealing with the same circumstances of aggravation. The sentence at trial is imposed in respect of the substituted conviction.

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL - PRACTICE - AFTER CRIMINAL APPEAL LEGISLATION - POWER TO SUBSTITUTE VERDICT OF GUILTY OF OTHER OFFENCE - GENERALLY - Crown Prosecutor proceeded as if charge was stealing - whether judge’s directions to the jury regarding stealing can satisfy requirements of s 408C Criminal Code

Criminal Code Qld, s 398, s 408C, s 581(b)

Spies v The Queen (2000) 201 CLR 603, applied
R v Laurie [1987] 2 Qd R 762, considered

COUNSEL:

M J Byrne QC for the appellant
M J Copley for the respondent

SOLICITORS:

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

de JERSEY CJ: I have had the advantage of reading the reasons for judgment of McPherson JA. I agree with the orders proposed by his Honour, and with his reasons.

McPHERSON JA: The appellant was found guilty at her trial in the District Court at Innisfail on a charge under s 408C of the Criminal Code of dishonestly applying to her own use money which was the property of Trinity Petroleum Services Pty Ltd. The indictment averred two circumstances of aggravation against the appellant: (1) that she was an employee of Trinity; and (2) that the property was of value $5,000 or more, namely $53,270.80. The jury by their verdicts found each of those circumstances proved.

The prosecution evidence at trial can be summarised as follows. The appellant was employed by Trinity as supervisor at its service station at Tully where, as well as motor fuels, there was a shop that sold foodstuff and groceries. There were several employees some of whom worked morning and others who worked afternoon and evening shifts operating consoles at which money was received from customers. Their instructions were that, once the amount received totalled $400, they were to transfer it to the office safe. The safe, which was equipped with a shute through which the money was deposited, was kept locked. The combination was known only to the appellant and a Mrs McBeath, who was a trusted employee of long standing. The defence specifically disavowed any suggestion that she had taken the money.

The appellant was in charge of other members 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.

Continue reading R v White

Details

AGLC: R v White [2002] QCA 477
Case: [2002] QCA 477
Decision Date: 8 November 2002

CaseChat Overview and Summary

The appellant, White, was charged with fraud with circumstances of aggravation, contrary to section 581(b) of the Criminal Code (Qld). The trial proceeded on the basis that the Crown Prosecutor would be proceeding as if the charge was stealing, and the trial judge directed the jury on the offence of stealing. White was found guilty of fraud and convicted with circumstances of aggravation. He appealed against his conviction, arguing that the trial judge’s directions to the jury regarding the offence of stealing were insufficient to satisfy the requirements of section 408C of the Criminal Code. The Court of Appeal had to determine whether the trial judge’s directions to the jury on the offence of stealing were sufficient to satisfy the requirements of section 408C of the Criminal Code.

The Court of Appeal noted that section 408C provides for the substitution of a verdict of guilty of another offence when the jury is directed on more than one offence. In order for the section to apply, the jury must be directed on an offence that is a lesser included offence of the offence with which the defendant was charged. The Court of Appeal held that the offence of stealing was a lesser included offence of the offence of fraud with circumstances of aggravation. The Court of Appeal then considered whether the trial judge’s directions to the jury on the offence of stealing were sufficient. The Court of Appeal found that the directions were sufficient, as they included all the elements of the offence of stealing, including the mens rea and actus reus. The Court of Appeal noted that the directions were not defective, and that the jury was properly directed on the offence of stealing.

The Court of Appeal allowed the appeal to the extent of varying the verdict of guilty and conviction of fraud with circumstances of aggravation by substituting a verdict of guilty and conviction of stealing with the same circumstances of aggravation. The sentence at trial was imposed in respect of the substituted conviction. The Court of Appeal considered that the appeal should be allowed as the trial judge’s directions to the jury on the offence of stealing were sufficient to satisfy the requirements of section 408C of the Criminal Code. The Court of Appeal noted that the directions included all the elements of the offence of stealing, including the mens rea and actus reus, and that the jury was properly directed on the offence of stealing. The Court of Appeal found that the directions were not defective, and that the jury was properly directed on the offence of stealing.

Orders

Orders of the court

Appeal allowed to the extent only of varying the verdict of guilty and conviction of fraud with circumstances of aggravation by substituting a verdict of guilty and conviction of stealing with the same circumstances of aggravation. The sentence at trial is imposed in respect of the substituted conviction.

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 White [2002] QCA 477
PARTIES:	R v WHITE, Wende Ann (appellant)
FILE NO/S:	CA No 227 of 2002 DC No 37 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against conviction
ORIGINATING COURT:	District Court at Innisfail
DELIVERED ON:	8 November 2002
DELIVERED AT:	Brisbane
HEARING DATE:	31 October 2002
JUDGES:	de Jersey CJ, McPherson JA, Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Appeal allowed to the extent only of varying the verdict of guilty and conviction of fraud with circumstances of aggravation by substituting a verdict of guilty and conviction of stealing with the same circumstances of aggravation. The sentence at trial is imposed in respect of the substituted conviction.
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL - PRACTICE - AFTER CRIMINAL APPEAL LEGISLATION - POWER TO SUBSTITUTE VERDICT OF GUILTY OF OTHER OFFENCE - GENERALLY - Crown Prosecutor proceeded as if charge was stealing - whether judge’s directions to the jury regarding stealing can satisfy requirements of s 408C Criminal Code Criminal Code Qld, s 398, s 408C, s 581(b) Spies v The Queen (2000) 201 CLR 603, applied R v Laurie [1987] 2 Qd R 762, considered
COUNSEL:	M J Byrne QC for the appellant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent