R v Woosup

Case [2022] QCA 270

SUPREME COURT OF QUEENSLAND

CITATION:

R v Woosup [2022] QCA 270

PARTIES:

R
v
WOOSUP, Larry Joe
(appellant)

FILE NOS:

CA No 29 of 2022
DC No 90 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns – Date of Conviction: 4 November 2021 (Morzone QC DCJ)

DELIVERED ON:

Date of Orders: 14 November 2022
Date of Publication of Reasons: 23 December 2022

DELIVERED AT:

Brisbane

HEARING DATE:

14 November 2022

JUDGES:

Morrison and Flanagan JJA and Applegarth J

ORDERS:

Date of Orders: 14 November 2022

1.   Appeal allowed.

2.   The conviction dated 4 November 2021 be set aside.

3.   Retrial is ordered.

CATCHWORDS:

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON DIRECTION – directions to the jury regarding fraud – directions to the jury regarding dishonesty – directions to the jury regarding Indigenous custom – where the appellant was a native title applicant – where the appellant entered into an agreement on behalf of the native title group – where the appellant was found guilty of fraud with respect to the agreement on the basis that he did not consult the native title group prior to entering into the agreement – where the appellant gave evidence that he believed that he had authority to enter into the agreement – whether the learned trial judge failed to adequately direct the jury as to how to determine whether the appellant was dishonest

Criminal Code (Qld), s 408C(1)(d), s 408C(2)(d)

R v Dale[2012] QCA 303, cited
R v DBV [2021] QCA 227, cited
R v Lyons[2021] QCA 136, cited
R v Orchard[2018] QCA 58, cited
R v Perrin [2018] 2 Qd R 174; [2017] QCA 194, cited

COUNSEL:

M J Jackson for the appellant
C W Wallis for the respondent

SOLICITORS:

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

  1. MORRISON JA:  I have had the considerable advantage of reading the draft reasons prepared by Flanagan JA.  His Honour’s reasons reflect those of my own for joining in the orders made on 14 November 2022.

  2. FLANAGAN JA: After a seven day trial before Judge Morzone QC, the appellant was convicted of two counts of fraud pursuant to s 408C(1)(d) and s 408C(2)(d) of the Criminal Code.

  3. The appellant appeals against his convictions on the following ground:

    “The learned trial judge failed to adequately direct the jury to decide how the nature of the appellant’s knowledge, belief or intent was dishonest and that occasioned a miscarriage of justice.”

  4. At the conclusion of the hearing of the appeal on 14 November 2022 the Court made the following orders:

    1.The appeal is allowed;

    2.The convictions dated 4 November 2021 be set aside; and

    3.A re-trial is ordered.

    These are my reasons for joining in the making of those orders.

    Factual overview

  5. The appellant is a traditional owner of land situated on the…

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Details
AGLC
R v Woosup [2022] QCA 270
Case
[2022] QCA 270
Decision Date

CaseChat Overview and Summary

In the matter of R v Woosup, the appellant was convicted of fraud in relation to a native title agreement. The case was brought before the court on the grounds that the appellant, a native title applicant, did not consult the native title group before entering into an agreement with Gulf Alumina. The appellant argued that he believed he had the authority to enter into the agreement on behalf of the native title group. The central legal issues revolved around the adequacy of the jury's directions concerning fraud, dishonesty, and Indigenous customs. Specifically, the court had to determine whether the trial judge's directions were sufficient in guiding the jury on how to assess the appellant's state of mind and whether he was dishonest in entering into the agreement.

The court found that the trial judge's directions were inadequate in several respects. The judge did not sufficiently instruct the jury on how to consider the appellant's "claimed right of entitlement" in relation to the agreement. Additionally, the judge failed to provide specific guidance on how to compare the appellant's claimed entitlement with the knowledge, belief, or intent identified by the prosecution. The court held that the directions necessary in any trial depend on the individual circumstances of the case, including the issues in contest, the complexity of the issues, and the length of the case. In this instance, the court found that the directions were not adequate given the complex nature of the issues surrounding the appellant's subjective state of mind and the specific context of Indigenous customs and native title negotiations.

As a result of the inadequate directions, the court allowed the appeal and set aside the conviction. A retrial was ordered to ensure that the jury received proper directions on the relevant issues. The orders were made on 14 November 2022, specifying that the conviction dated 4 November 2021 be set aside and a retrial be conducted.

Orders

Orders of the court

Date of Orders: 14 November 2022

1. Appeal allowed.

2. The conviction dated 4 November 2021 be set aside.

3. Retrial is ordered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The prosecution called Peter Callaghan, the CEO of the Cape York Land Council Aboriginal Corporation. The effect of his evidence was that the Ankamuthi people included the “wider group” and, that in his opinion, “the negotiation should have occurred on behalf of the wider group”. (RB 241).The appellant’s evidence The appellant, together with his father, who was an initiated lore man, was one of the original registered native title claimants. The claim was lodged in 1998 together with anthropological evidence confirming that the five named people on the claim had “a legitimate claim”. He recalled that at the initial meetings with Gulf Alumina in 2008 to 2010 other Ankamuthi persons, who had not made a native title claim, were represented by the Cape York Land Council. The appellant recalled a disagreement between the CEO of the Cape York Land Council and representatives of Gulf Alumina. A representative of Gulf Alumina made specific reference to s 31of the Native Title Act which deals with the negotiation procedure in relation to future acts. By reference to this section, the representative of Gulf Alumina said words to the effect that the company could deal directly with the registered native title claimants. Thereafter, the appellant engaged Mr Wone, as well as Chalk and Fitzgerald. The appellant did not have a good relationship with the Cape York Land Council and did not seek its assistance. In negotiating the 2013 Agreement, the appellant considered himself negotiating on behalf of the registered native title claimants representing the five apical ancestor families. As part of the process of signing the 2013 Agreement, cultural surveying was undertaken. Families were flown from Cape York, Torres Strait and surrounding areas for the signing of the agreement. According to the appellant this involved approximately 20 people and extended over the course of four days. The appellant stated that everyone supported entering into the agreement and no one objected. All persons who participated in the four day meeting had been given a copy of the agreement prior to it being signed. While the appellant was aware that other persons were seeking to become native title claimants which involved a much larger group, the appellant considered that this claim was based on an “unfinished connection report”. It was, according to the appellant, “just anybody in the bucket”. (RB, 363 lines 29 – 34). There was a lot of conflict between the communities in the northern Cape regarding who was recognised as Ankamuthi people. This conflict led to an incident of violence towards the appellant and his family which required his brother to be hospitalised. This conflict still persists. In conducting the meetings for the registered native title claimants for the purposes of the 2013 Agreement, the appellant was satisfied that he had all the appropriate people at those meetings. (RB 364, lines 35 – 38). In cross-examination, the appellant reiterated that in negotiating the 2013 Agreement he represented “the people who were part of that original claim”. (RB 366, lines 13 – 14).

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

It was conceded by the respondent that this does not constitute a correct statement of the law as discussed below.Consideration The appellant submitted that his Honour’s direction failed to adequately instruct the jury how to determine whether the appellant held the relevant knowledge, belief or intent. While the jury was told to take into account the appellant’s “claimed right of entitlement to do what he did”, his Honour did not, in light of the appellant’s evidence, sufficiently identify what matters the jury should take into account in considering the appellant’s “claimed right of entitlement”. Nor did the jury receive any directions as to how matters relevant to the appellant’s “claimed right of entitlement” were to be compared with the knowledge, belief or intent identified by the prosecution in “MFI-U”. The directions necessary in any trial will depend on the individual circumstances of the case, including the issues in contest, the complexity of the issues and the length of the case: R v DBV [2021] QCA 227 per McMurdo JA. In the present case, there were a number of complex issues relevant to the appellant’s subjective state of mind. These included that at the time of entering into the 2013 Agreement, the appellant was one of only two surviving registered native title claimants in relation to the original 1998 claim. That claim has passed the registration test for the purposes of the Native Title Act. This was achieved by anthropological evidence and confirmed by the appellant’s father, as the only initiated lore man of the Ankamuthi people. It was the appellant’s status as a registered native title claimant that permitted Gulf Alumina to enter into negotiations with him after the 2010 negotiations involving the Cape York Land Council collapsed. The appellant’s evidence was that a representative of Gulf Alumina, by reference to s 31 of the Native Title Act, recognised that negotiations could be conducted with the appellant and Ms Tamwoy as the registered claimants. In the course of deliberations, the jury sent a note to the trial judge enquiring about the negotiation process:“Can we please be reminded or told if Gulf Alumina approached Larry Woosup and told him that under the Native Title Act they could negotiate directly with him, or did he approach Gulf Alumina once the previous negotiations with them in the wider community have fallen through” (RB 134, line 26 – RB 139, line 38). While the jury were provided with a summary of the relevant evidence on the issue, including evidence from the appellant, and were also reminded of the competing contentions on that issue, no additional or specific guidance was provided about those contentions and the element of dishonesty.[1][1]Appellant’s outline of argument, paragraph 31. In his evidence, the appellant repeatedly stated that in entering into the 2013 Agreement, he believed he was acting as a registered native title claimant on behalf of the five original apical ancestor families. A copy of the agreement was provided to these families prior to it being executed and a four day meeting with presentations was conducted with representatives of these families prior to execution. These representatives supported the agreement.