Stubbs v The Queen - [2017] ACTCA 58

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Stubbs v The Queen
Citation:	[2017] ACTCA 58
Hearing Date:	1 November 2017
DecisionDate:	11 December 2017
Before:	Elkaim and Bromwich JJ, and Robinson AJ
Decision:	The appeal is dismissed.
Catchwords:	APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – Points and Objections not Taken Below – Appeal against conviction – whether the conduct of the appellant was capable, at law, of making out the offence – whether the appellant received a fair trial.
Legislation Cited:	Court Procedures Rules 2006 (ACT) r 4051 Criminal Code 2002 (ACT) ss 326 and 330 Evidence Act 2011 (ACT) s 50 Human Rights Act 2004 (ACT) s 22 Legal Aid Act 1977 (ACT) s 32A
Cases Cited:	Perara-Cathcart v R [2017] HCA 9; 341 ALR 535 R v Preddy; R v Slade; R v Dhillon [1996] 3 All ER 481 R v Rogerson; R v McNamara (No 42) [2016] NSWSC 405
Parties:	Stephen Raymond Stubbs (Appellant) The Queen (Respondent)
Representation:	Counsel Mr J Masters and Mr J Larkings (Appellant) Ms M Jones (Respondent)
Solicitors John O’Keefe Solicitor (Appellant) Office of the ACT Director of Public Prosecutions (Respondent)
File Number:	ACTCA 7 of 2017
Decision under appeal:	Court: ACT Supreme Court Before: Burns J Date of Decision: 2 March 2017 Case Title: The Queen v Stubbs Court File No: SCC 269 of 2015

THE COURT:

Appeal

On 28 November 2016, the appellant pleaded not guilty to 15 counts on an indictment, charging him with dishonestly obtaining property by deception, contrary to s 326 of the Criminal Code 2002 (ACT).

The trial before Burns J and a jury concluded on 15 December 2016. The appellant was acquitted on Count 1 and convicted on each of Counts 2 to 15. He was subsequently sentenced to terms of imprisonment.

By a Notice of Appeal dated 2 March 2017, the appellant appealed against both conviction and sentence. During the hearing of the appeal, the appellant withdrew his appeal against sentence.

Background

On 18 November 2008, Mr Alexander Duffy was arrested and taken into custody. On 19 November 2008, Mr Duffy appeared before the Magistrates Court and applied for bail. He was represented on this occasion by the Legal Aid ACT duty solicitor. Bail was refused.

On 20 November 2008, Mr Duffy applied to Legal Aid ACT for assistance, requesting that the appellant act for him. On or before 26 November 2008, the appellant was advised that Mr Duffy’s application for legal aid had been granted.

At the time of these events, the appellant was a legal practitioner holding a restricted practicing certificate. He was employed by two firms, one of which was Diana Burns Solicitors. The appellant was able to, through this firm, act for clients funded by Legal Aid ACT.

A legal practitioner in receipt of a grant of legal assistance is precluded, by s 32A of the Legal Aid 1977 (ACT), from demanding, accepting or taking payment for the performance of services in respect…

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.

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Details

AGLC: Stubbs v The Queen [2017] ACTCA 58
Case: [2017] ACTCA 58
Decision Date: 11 December 2017

CaseChat Overview and Summary

Stubbs appealed against his conviction to the Supreme Court of New South Wales, Court of Criminal Appeal. The central dispute concerned whether the conduct of the appellant was legally capable of constituting the offence for which he was convicted, and whether he had received a fair trial.

The Court was required to determine two primary legal issues. Firstly, whether the evidence presented at trial was sufficient, as a matter of law, to establish the elements of the offence charged. Secondly, the Court had to consider whether the trial process afforded the appellant a fair hearing, notwithstanding any potential issues raised on appeal.

The Court of Criminal Appeal dismissed the appeal. While the specific reasoning is not detailed in the provided text, the outcome indicates that the Court found the appellant's conduct was capable, at law, of making out the offence and that the trial had been conducted fairly. The appeal was therefore unsuccessful.

Orders

Orders of the court

The appeal is dismissed.

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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