Roberts v The Queen

Case [2022] SASCA 36

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

ROBERTS v THE QUEEN

[2022] SASCA 36

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)

28 April 2022

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - OTHER FRAUDS AND IMPOSITIONS - FRAUDULENTLY OR DECEPTIVELY OBTAINING MONEY, VALUABLE, FINANCIAL BENEFIT OR ADVANTAGE

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - TAKING OBJECTION TO SUMMING UP

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EXPRESSION OF JUDGE'S OWN OPINION - GENERALLY

COURTS AND JUDGES - JUDGES - CONTROL OF COURTROOM - UNDUE INTERVENTION BY JUDGE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Application for permission to appeal against conviction and appeal against conviction.

The applicant was convicted by a jury of 75 counts of dishonestly obtaining a financial advantage from the Commonwealth, contrary to s 134.2(1) of the Criminal Code 1995 (Cth).

Between December 2002 and April 2006, the applicant lodged falsified claims for diesel fuel under the Commonwealth Government’s Diesel and Alternative Fuels Grants Scheme and received rebates from the Australian Taxation Office totalling $3.8 million. Claims were made by the applicant on behalf of three road haulage companies and the monies received through rebates were transferred to his own personal accounts. These companies did not, at any stage, engage in any legitimate business activities or purchase fuel. Rather, they were sham companies set up using falsified information and identities for the sole purpose of making fraudulent claims under the scheme.

In August 2005, the Australian Taxation Office commenced an audit of the applicant’s businesses’ claims. Following a lengthy audit and investigation, charges were laid in July 2016, and the matter proceeded to trial in February 2021.

The applicant seeks permission to appeal against his conviction on five grounds. He complains that the trial judge made comments during his summing-up which were unfairly favourable to the prosecution case or pejorative of the defence case (Grounds 1 and 2), did not adequately summarise the defence case (Ground 3), intervened in an excessive and unfair manner in the course of the trial (Ground 4), and erred in his direction in relation to discreditable conduct evidence adduced at trial (Ground 5).

The applicant was granted permission to appeal on Grounds 3 and 4.  The application for permission to appeal on Grounds 1, 2 and 5 was heard in conjunction with the appeal on Grounds 3 and 4.

Held, per Doyle JA (Livesey P and David JA agreeing), granting permission to appeal on Grounds 1, 2 and 5 but dismissing the appeal on all grounds:

1.      Discussion of role of trial judge in making comments during the course of a trial (at [62]-[70]), in summarising the defence case (at [212]-[217]), and in making comments during the course of the summing-up (at [231]-[251]).

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Roberts v The Queen [2022] SASCA 36
Case
[2022] SASCA 36
Decision Date

CaseChat Overview and Summary

The applicant, Roberts, appealed against his conviction and sentence for offences related to fraudulently obtaining money under the diesel fuel rebate scheme. The appeal concerned alleged misdirections and undue intervention by the trial judge during the proceedings, as well as the manifest excessiveness of the sentence imposed.

The legal issues before the Court of Appeal included whether the trial judge's interventions during the examination of witnesses, and comments made during the summing-up, amounted to a miscarriage of justice. The court was also required to determine if the defence case was fairly and accurately summarised to the jury, and whether evidence of the applicant's prior discreditable conduct was properly admitted and directed upon. Furthermore, the appeal raised questions about the sentencing judge's consideration of previous convictions, the application of totality principles, and whether the sentence was manifestly excessive.

The Court of Appeal, per Doyle JA, found that while some of the trial judge's interventions were "unfortunate" and capable of conveying incredulity, they did not, either individually or cumulatively, give rise to a miscarriage of justice when considered in their broader trial context. The court held that the defence case was accurately and fairly summarised, and the comments made during the summing-up did not result in a miscarriage of justice. The admission of evidence regarding the applicant's earlier role in claiming rebates for other companies he owned was also found to be without error, as were the directions given in relation to that evidence. Regarding the sentence, the court granted permission to appeal but dismissed the appeal, finding no error in the sentencing judge's approach and concluding that the head sentence and non-parole period were not manifestly excessive in the circumstances.

Orders

Orders of the court

Held, per Doyle JA (Livesey P and David JA agreeing), granting permission to appeal on Grounds 1, 2 and 5 but dismissing the appeal on all grounds:

1. Discussion of role of trial judge in making comments during the course of a trial (at [62]-[70]), in summarising the defence case (at [212]-[217]), and in making comments during the course of the summing-up (at [231]-[251]).

2. When considered in their immediate and broader trial context, the impugned interventions made by the trial judge during the course of the trial did not, either individually or cumulatively, give rise to a miscarriage of justice (Ground 4) (at [177]).

3. The defence case, including the various hypotheses consistent with innocence relied upon by defence counsel, was accurately and fairly summarised to the jury (Ground 3) (at [228]).

4. The impugned comments made by the trial judge during his summing up did not give rise to a miscarriage of justice (at [271]).

5. No error has been demonstrated in the trial judge’s admission of the discreditable conduct evidence in relation to the applicant’s earlier role in claiming rebates on behalf of two other companies that he owned and operated, or in the trial judge’s directions in relation to that evidence (at [288]).

Application for permission to appeal against sentence.

In January 2021, the applicant was sentenced for the separate offence of attempting to possess a commercial quantity of a border-controlled drug, namely methylamphetamine, to 10 years and six months imprisonment with a non-parole period of six years and 10 months.

In July 2021, the applicant was sentenced for the subject offending to a single sentence of 10 years imprisonment to be served cumulatively with the sentence imposed for the trafficking offence. The total sentence to be served was 20 years and six months with a non-parole period of 14 years, backdated to commence on 30 December 2019.

The applicant seeks permission to appeal against his sentence on the ground of manifest excess. Underpinning this ground are five complaints of specific errors made by the sentencing judge: first, in considering a previous conviction for dishonest offending that occurred in the 1990s; secondly, in taking into account a 2009 conviction for trafficking offending; thirdly, in considering a single sentence of 150 years and applying totality; fourthly, in failing to account for delay; and fifthly, in finding that the subject offending was committed against a lifetime of other offending.

Held, per Doyle JA (Livesey P and David JA agreeing), granting permission to appeal but dismissing the appeal:

1. There was no error in the approach adopted by the sentencing judge in respect of any of the specific errors alleged by the applicant.

2. The head sentence and non-parole period were not, in the circumstances, manifestly excessive.

Background

Background to the litigation

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Evidence

Evidence Before The Court

To do justice to the applicant’s complaints, while at the same time not losing sight of the context in which they occurred, it is necessary to address each of the impugned interventions in the sequence and context in which they occurred. It is convenient to do so by grouping the interventions by reference to the witness during whose evidence the interventions occurred. For ease of later reference, I shall number each of the impugned interventions.Evidence of Ms Dodawec The first group of complaints relate to interventions during the course of the evidence of the first prosecution witness, Ms Dodawec. Ms Dodawec was an ATO auditor who gave evidence on several topics, including how the diesel fuel rebate scheme worked, her dealings with the applicant (both at the outset of the audit process and then during that process, including in relation to the provision and receipt of documents from the applicant), and the detail of the audit and its findings in relation to each of the 75 charged rebate claims. Intervention 1 (T144) occurred during the course of Ms Dodawec’s examination˗in˗chief about a conversation she had with the applicant relatively early in the audit process. The judge asked the following two questions:HIS HONOURQ.You are indicating that he said he had spoken to Inter Link. Did he say how he was able to do that when he claimed he didn't have a number for them.A. No, he didn't.Q.If he had spoken to them did he provide you with any number on which he had spoken with them as he said he had done.A.No. This was an unfortunate intervention. While the judge’s two questions addressed fairly natural and obvious implications that arose from the witness’s account of her conversation with the applicant, they were capable of being understood as conveying a degree of incredulity on the part of the judge as to the truth of the applicant’s out of court statements. By itself, this intervention was of little consequence; but its significance falls to be considered in the context of the balance of the interventions, and the trial as a whole. Intervention 2 (T226) occurred later in the examination-in-chief. It occurred in the context of Ms Dodawec’s evidence to the effect that the applicant provided her with 12 boxes of documents, which she said she took as a “show of openness” by the applicant, at least in the sense that while he was not able to provide substantiation of fuel purchases, he was prepared to hand over all of the records he had to demonstrate that he had “nothing to hide”. The judge intervened to ask two questions:HIS HONOURQ.So he didn't produce to you any actual records saying 'Well, this is my record of purchasing petrol', he just said 'Take the 12 boxes'.A. Yes, 'You can have all of my records', yep.Q. You took that as a show of helpfulness, did you.A. Well -HIS HONOUR: It's a rhetorical issue. Ignore my comments, members of the jury. This intervention was also unfortunate. While the first question was an appropriate attempt to clarify the effect of the evidence that had been given, the second question was capable of being understood as conveying some level of incredulity on the part of the judge as to the applicant’s helpfulness. The judge appeared to recognise that his question might be interpreted in this way, and immediately told the jury to ignore his comments.

Decision

Reasons for decision

I would grant permission to appeal against sentence, but would dismiss the appeal.Conclusion For the reasons set out, I would grant permission to appeal against conviction on Grounds 1, 2 and 5,[109] but dismiss the appeal. I would also grant permission to appeal against sentence, but dismiss the appeal.[109] Noting that the applicant has already been granted permission to appeal on Grounds 3 and 4. DAVID JA: I agree with the reasons of Doyle JA, and the orders he has proposed.

Ratio Decidendi

Legal Principle Established

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