R v Wynhoven - [2008] VSCA 234

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 40 of 2008

THE QUEEN
	v
RONALD WILLIAM WYNHOVEN

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JUDGES:	MAXWELL P, NETTLE & WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 November 2008
DATE OF JUDGMENT:	27 November 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 234

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CRIMINAL LAW – Application for leave to appeal against conviction – Attempting to obtain financial advantage by deception and obtaining financial advantage by deception – Whether conviction on one count inconsistent with other acquittals – Whether verdicts unsafe and unsatisfactory – Whether trial judge erred by admitting evidence of witness who died after testifying at committal – Leave to appeal refused

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R I Gipp	Commonwealth Director of Public Prosecutions
For the Applicant	Mr D Just	Victoria Legal Aid

MAXWELL P
NETTLE JA
WEINBERG JA:

The applicant, Ronald Wynhoven, was convicted in the County Court, at Geelong, of five counts of attempting to obtain a financial advantage by deception (counts 1, 2, 3, 5 and 6) and three counts of obtaining a financial advantage by deception (counts 4, 7 and 18). He was acquitted of the remaining 13 counts on the presentment. He was sentenced to a term of three years’ imprisonment with all but 12 months suspended. He now seeks leave to appeal against conviction.

Counts 1 to 4 on the presentment related to representations which he, as an accredited home loan broker, made on behalf of one Judith Williams, since deceased, to two separate home loan lending institutions. Each of counts 1, 2 and 3 involved unsuccessful applications to a body known as Tonto Home Loans. Count 4 concerned a successful application made to another home loan lending institution, Pepper Homeloans Pty Ltd.

Counts 5 and 6 involved unsuccessful applications made on behalf of Edward and Olive Pilcher to Pepper Homeloans Pty Ltd. Count 7 related to a successful application on behalf of the Pilchers to yet another home loan lending institution, Mortgage Management Corporation Pty Ltd.

Finally, count 18 involved a Mrs Margaret Senior, who at all times lived in Canberra. She received what was described as a ‘cold call’ from Karen Ajaye, a Canberra-based consultant acting on behalf of the applicant. Mrs Senior sought a loan of $30,000 to meet her current expenses (including a credit card liability), and also so that she could travel interstate. Her Canberra home was at the time unencumbered. After Mrs Senior’s initial discussion with Ms Ajaye, the applicant took over negotiations. Acting on his advice, Mrs Senior obtained a loan for $235,000. It was clear on the evidence that neither Mrs Senior, nor indeed Ms Williams or the Pilchers, had any experience in, or understanding of, financial matters.

In the end, Mrs Senior acted upon the applicant’s advice to invest $200,000 of the $235,000 obtained in one of the applicant’s private business ventures. That venture failed and she lost the whole of that sum. That was a significant pecuniary loss to her as she was 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 Wynhoven

Details

AGLC: R v Wynhoven [2008] VSCA 234
Case: [2008] VSCA 234
Decision Date: 27 November 2008

CaseChat Overview and Summary

The case of R v Wynhoven arose before the court as an application for leave to appeal against a conviction, which included charges of attempting to obtain financial advantage by deception and obtaining financial advantage by deception. The appellant, Wynhoven, was convicted on these counts in the County Court of Victoria, and the respondent, the Crown, opposed the application for leave to appeal.

The legal issues central to this appeal related to the consistency of the conviction on one count with the appellant's acquittals on other related charges, as well as the safety and satisfaction of the verdicts reached by the jury. Additionally, the appellant argued that the trial judge had erred in admitting evidence from a witness who had died before the trial, despite having testified at the committal proceedings. The appellant contended that this error was so significant that it rendered the verdicts unsafe and unsatisfactory.

In evaluating these issues, the court found that the conviction on the count of obtaining financial advantage by deception was not inconsistent with the acquittals on other related charges. The court further determined that the verdicts were safe and satisfactory, despite the admission of the deceased witness's evidence. The court held that the trial judge's decision to admit this evidence was not erroneous and did not prejudice the fairness of the trial. Consequently, the application for leave to appeal was dismissed, as the court found no basis for allowing an appeal on the grounds presented.

No orders were made, as the application for leave to appeal was refused.

Orders