DELIVERED ON:  5 December 2014
DELIVERED AT:  Hobart
HEARING DATES:  14, 15 April, 25 August 2014
JUDGMENT OF:  Blow CJ, Wood and Pearce JJ

CATCHWORDS:

Criminal Law – Particular offences – Property offences – Other frauds and impositions – Fraudulently or deceptively obtaining money, valuable, financial benefit or advantage – Generally – Crown contending itemised invoices all wholly dishonest – Whether accused guilty if invoice partly dishonest.
Criminal Code (Tas), s 252A.

Machent v Quinn [1970] 2 All ER 255; R v Lindsay [1963] Qd R 386; Williams v The Queen (2002) 11 Tas R 258; R v Cook (2006) 95 SASR 201; R v Naidu [2008] QCA 130, referred to.
Aust Dig Criminal Law [2384]

Criminal Law – Appeal and new trial – Verdict unreasonable or unsupportable having regard to evidence – Other matters – Crown alleging more than it needed to prove or could prove – Misdirection as to what the Crown needed to prove – Possibility of different result without misdirection – Miscarriage of justice due to sentencing on erroneous basis.

Gipp v The Queen (1998) 194 CLR 106; Tran v The Queen (2000) 105 FCR 182, referred to.
Aust Dig Criminal Law [3477]

REPRESENTATION:

Counsel:
             Appellant Tringrove:  K Baumeler
             Appellant Fahey:  S C Chopping
             Respondent:  P Sherriff
Solicitors:
             Appellant Tringrove:  Butler McIntyre & Butler
             Appellant Fahey:      S C Chopping
             Respondent:  Acting Director of Public Prosecutions

Judgment Number: [2014] TASCCA 7
Number of paragraphs: 102

Serial No 7/2014
File Nos 1271/2013
6/2014

DENIS ROSS TRINGROVE v STATE OF TASMANIA
ROBIN GLEN FAHEY v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
WOOD J
PEARCE J
5 December 2014

Orders of the Court

Appeal 1271/2013 (Tringrove)

Appeal allowed.

Convictions on counts 1 to 32 inclusive quashed.

Sentence quashed.

New trial on counts 1 to 32 inclusive.

Appellant to be re-sentenced by Court of Criminal Appeal on counts 33 to 44 inclusive.

Appeal 6/2014 (Fahey)

Appeal allowed.

Convictions and sentence quashed.

New trial on all counts.

Serial No 7/2014
File Nos 1271/2013
6/2014

DENIS ROSS TRINGROVE v STATE OF TASMANIA
ROBIN GLEN FAHEY v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
PEARCE J
5 December 2014

There are two appeals before the Court. Each of the appellants, Denis Tringrove and Robin Fahey, are appealing against their convictions on 43 charges of dishonestly acquiring a financial advantage, contrary to s 252A of the Criminal Code, and a single charge of attempting to commit that crime.
Those convictions relate to a series of 44 payments made to Mr Tringrove by Huon Aquaculture Group Pty Ltd during a period from December 2006 to November 2008. That company carried on a fish farming…

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 Tringrove v Tasmania

Details

AGLC: Tringrove v Tasmania [2014] TASCCA 7
Case: [2014] TASCCA 7
Decision Date: 5 December 2014

CaseChat Overview and Summary

The case of *Tringrove v Tasmania* concerned appeals by the appellants against their convictions for fraudulently or deceptively obtaining financial benefits. The Crown’s contention was that certain itemised invoices submitted by the appellants were wholly dishonest. The central question for the court was whether the appellants could be found guilty if an invoice was only partly dishonest. The appeals were heard by the Full Court of the Supreme Court of Tasmania, comprising Blow CJ, Wood and Pearce JJ.

The legal issues before the court revolved around the interpretation of the offence of fraudulently or deceptively obtaining a financial benefit. Specifically, the court was required to determine whether the offence required the entirety of an invoice to be dishonest, or if a conviction could be sustained where only a portion of the claimed amount was fraudulent. This involved considering the nature of the "financial benefit" obtained and the requisite mental element for the offence.

The Court of Criminal Appeal allowed the appeals. It reasoned that the offence required proof that the accused obtained a financial benefit by deception, and that the benefit obtained was the entire amount claimed in the invoice. If an invoice contained both legitimate and dishonest claims, the benefit obtained was not wholly dishonest. Therefore, the convictions on counts 1 to 32 inclusive were quashed, and a new trial was ordered for these counts. The sentence was also quashed, and the appellant was to be re-sentenced by the Court of Criminal Appeal on counts 33 to 44 inclusive. In a separate but related appeal, the convictions and sentence of the appellant in Appeal 6/2014 (Fahey) were also quashed, with a new trial ordered on all counts.

Orders

Orders of the court

Appeal 1271/2013 (Tringrove)

1. Appeal allowed.

2. Convictions on counts 1 to 32 inclusive quashed.

3. Sentence quashed.

4. New trial on counts 1 to 32 inclusive.

5. Appellant to be re-sentenced by Court of Criminal Appeal on counts 33 to 44 inclusive.

Appeal 6/2014 (Fahey)

1. Appeal allowed.

2. Convictions and sentence quashed.

3. New trial on all counts.

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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Citations

Tringrove v Tasmania [2014] TASCCA 7

Most Recent Citation

Tringrove v Tasmania (No 2) [2015] TASCCA 17

Cases Citing This Decision

JD v Tasmania [2023] TASCCA 11
Citation 1

…Pell v The Queen [2020] HCA 12; 268 CLR 123, distinguished. Tringrove v Tasmania [2014] TASCCA 7; M v The Queen (1994) 181 CLR 487; Dansie v The Queen (2002) HCA 25, 403 ALR 221; R v Baden-Clay [2016] HCA 35, 258 CLR 308, referred to. Aust Dig Criminal Law [3476]…
Shaw v Tasmania [2022] TASCCA 2
Citation 2 (Para 5)

…213 In Tringrove v Tasmania [2014] TASCCA 7 at [5]-[6], Blow CJ and Pearce J, with whom Wood J agreed, set out the relevant legal principles as follows: " Unsafe and unsatisfactory [5] Each of the appellants has appealed in respect of every verdict, asserting that the verdicts were 'unsafe and unsatisfactory' or '…
Paite v Tasmania [2019] TASCCA 5
Citation 3 (Para 1)

…In Tringrove v Tasmania [2014] TASCCA 7 at [5]-[6], Blow CJ and Pearce J, with whom Wood J agreed, set out the relevant legal principles as follows: " Unsafe and unsatisfactory [5] Each of the appellants has appealed in respect of every verdict, asserting that the verdicts were 'unsafe and unsatisfactory' or 'unsa…
S v Tasmania [2019] TASCCA 3
Citation 4 (Para 1)

…In Tringrove v Tasmania [2014] TASCCA 7 at [5]-[6] Blow CJ and Pearce J, with whom Wood J agreed, set out the legal principles relevant to an appeal on the ground that the jury's verdict was unsafe and unsatisfactory as follows: " Unsafe and unsatisfactory [5] Each of the appellants has appealed in respect of ever…
Tringrove v Tasmania (No 2) [2015] TASCCA 17
Citation 5 (Para 2)

…lant to four years' imprisonment, with a non-parole period of two years. · Both men appealed. This Court allowed both appeals: Tringrove v Tasmania [2014] TASCCA 7. In relation to this appellant, we quashed the convictions on counts 1 to 32 inclusive, quashed his sentence, ordered a new trial on counts 1 to 32 inc…

See all citing cases →

Cases Cited

LJW v R [2010] NSWCCA 114
Citation 1 (Para 6)

…d of the accused at the time of the charged acts, or the state of a relationship in question at the time of the charged acts: see LJW v The Queen [2010] NSWCCA 114; TWL v The Queen (2012) 222 A Crim R 445, and R v Gregory (Ruling No 2) [2009] VSC 509, cf R v Ngatikaura (2006) 161 A Crim R 329. • Where evidence of pr…
R v Gregory (No 2) [2009] VSC 509
Citation 2 (Para 6)

…on at the time of the charged acts: see LJW v The Queen [2010] NSWCCA 114; TWL v The Queen (2012) 222 A Crim R 445, and R v Gregory (Ruling No 2) [2009] VSC 509, cf R v Ngatikaura (2006) 161 A Crim R 329. • Where evidence of prior conduct excludes the possibility of the involvement of another party: see R v Bosko…
R v Naidu [2008] QCA 130
Citation 3 (Para 3)

…v Lindsay [1963] Qd R 386 at 400–401; Williams v The Queen (2002) 11 Tas R 258; (2002) 133 A Crim R 317; R v Cook (2006) 95 SASR 201. In R v Naidu [2008] QCA 130 the Court of Appeal in Queensland applied the same principle to a charge of fraud. In that case the appellant, over a specified period, made several di…
R v Cook [2006] SASC 231
Citation 4 (Para 3)

…nt v Quinn [1970] 2 All ER 255; R v Lindsay [1963] Qd R 386 at 400–401; Williams v The Queen (2002) 11 Tas R 258; (2002) 133 A Crim R 317; R v Cook (2006) 95 SASR 201. In R v Naidu [2008] QCA 130 the Court of Appeal in Queensland applied the same principle to a charge of fraud. In that case the appellant, over a spec…
Williams v The Queen [2002] TASSC 71
Citation 5 (Para 3)

…d guilty. Proof that the accused has stolen any of them is sufficient: Machent v Quinn [1970] 2 All ER 255; R v Lindsay [1963] Qd R 386 at 400–401; Williams v The Queen (2002) 11 Tas R 258; (2002) 133 A Crim R 317; R v Cook (2006) 95 SASR 201. In R v Naidu [2008] QCA 130 the Court of Appeal in Queensland applied the same prin…
R v Walters [2002] NSWCCA 291
Citation 6 (Para 6)

…rior conduct, including prior criminality, goes to show a level of particular knowledge in relation to previous or subsequent acts: see R v Walters [2002] NSWCCA 291. • Where the evidence of prior conduct is proximate to, or is part of a continuing series with, the charged acts, so that the prior conduct is direct e…
Tran v The Queen [2000] FCA 1888
Citation 7 (Para 5)

…that the verdicts relating to Mr Tringrove on counts 1 to 32 inclusive were unsafe and unsatisfactory in a different sense. That was the situation in Tran v The Queen (2000) 104 FCR 182. That was an appeal against a murder conviction in the Australian Capital Territory. The prosecutor in that case had asserted facts in hi…
Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886
Citation 8 (Para 6)

…• Where evidence of prior conduct demonstrates the establishing of a business system or practice: Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51. • Where the existence of a system, or lack thereof, is itself a fact in issue (rather than going to prove whether, on one occasion, particular conduct occur…
Re Ruddock; Ex parte Reyes [2000] HCA 66
Citation 9 (Para 2)

…and Callinan J, at [37], referred to features of the adversarial procedure of criminal justice which are uncontentious (see also Crampton v The Queen (2000) 206 CLR 161, per Gleeson CJ at [15]-[20]): "The considerations identified in Crampton v The Queen as reasons for the rule confining the circumstances in which a…
R v Boskovitz [1999] NSWCCA 437
Citation 10 (Para 6)

…aura (2006) 161 A Crim R 329. • Where evidence of prior conduct excludes the possibility of the involvement of another party: see R v Boskovitz [1999] NSWCCA 437. • Where evidence of prior conduct demonstrates the establishing of a business system or practice: Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FC…
R v Olbrich [1999] HCA 54
Citation 11 (Para 4)

…Crown to prove beyond reasonable doubt, in relation to each count, how many of the pens referred to in the invoice had not been cleaned: R v Olbrich (1999) 199 CLR 270.…
Gipp v The Queen [1998] HCATrans 212
Citation 12 (Para 5)

…the jury as to what the Crown needed to prove, this is not a routine "unsafe and unsatisfactory" appeal. As Gaudron J pointed out in Gipp v The Queen (1998) 194 CLR 106 at [17], "The expression 'unsafe and unsatisfactory' has no very precise meaning." It cannot be said in this case that any of the verdicts were unsaf…
Parker v The Queen [1997] HCA 15
Citation 13 (Para 2)

…st trial: R v Wilkes (1948) 77 CLR 511 at 518; King v The Queen (1986) 161 CLR 423 at 433; Jiminez v The Queen (1992) 173 CLR 572; Parker v The Queen (1997) 186 CLR 494; R v Taufahema (2007) 228 CLR 232.In our view those authorities should be distinguished from this case. If there is a new trial of Mr Tringrove on co…
M v the Queen [1994] HCA 63
Citation 14 (Para 2)

…In M v The Queen (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said at 494–495: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt exper…
Jiminez v the Queen [1992] HCA 14
Citation 15 (Para 2)

…new case which was not made at the first trial: R v Wilkes (1948) 77 CLR 511 at 518; King v The Queen (1986) 161 CLR 423 at 433; Jiminez v The Queen (1992) 173 CLR 572; Parker v The Queen (1997) 186 CLR 494; R v Taufahema (2007) 228 CLR 232.In our view those authorities should be distinguished from this case. If the…
Chidiac v The Queen [1991] HCA 4
Citation 16 (Para 1)

…to be applied by an appellate court when considering whether a verdict is "unsafe or unsatisfactory" was explained by Mason CJ in Chidiac v The Queen (1991) 171 CLR 432 at 442–443 as follows: "It is now well settled that a verdict may be set aside as unsafe or unsatisfactory notwithstanding that there was, as a matte…
Doney v The Queen [1990] HCA 51
Citation 17 (Para 3)

…As Deane, Dawson, Toohey, Gaudron and McHugh JJ said in Doney v The Queen (1990) 171 CLR 207 at 211, "circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded".…
King v The Queen [1986] HCA 59
Citation 18 (Para 2)

…wn should not be given an opportunity to make a new case which was not made at the first trial: R v Wilkes (1948) 77 CLR 511 at 518; King v The Queen (1986) 161 CLR 423 at 433; Jiminez v The Queen (1992) 173 CLR 572; Parker v The Queen (1997) 186 CLR 494; R v Taufahema (2007) 228 CLR 232.In our view those authorities…
Chamberlain v The Queen (No 2) [1984] HCA 7
Citation 19 (Para 2)

…In M v The Queen (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said at 494–495: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resol…
Sutton v The Queen [1984] HCA 5
Citation 20 (Para 1)

…en a risk of impermissible prejudice to an accused arises, and clear directions to a jury are required to guard against that risk: Sutton v The Queen (1984) 152 CLR 528. In this case, the issue goes further. Consideration is required of what, if any, use could be made by the jury of evidence that one instance of clea…
R v Wilkes [1948] HCA 22
Citation 21 (Para 2)

…appeal against conviction succeeds, the Crown should not be given an opportunity to make a new case which was not made at the first trial: R v Wilkes (1948) 77 CLR 511 at 518; King v The Queen (1986) 161 CLR 423 at 433; Jiminez v The Queen (1992) 173 CLR 572; Parker v The Queen (1997) 186 CLR 494; R v Taufahema (200…
Davies v R [1937] HCA 27
Citation 22 (Para 3)

…ial, or because there is some feature of the case raising a substantial possibility that the jury may have been mistaken or misled: Davies v The King (1937) 57 CLR 170 at 180; Chidiac v The Queen (1991) 171 CLR 432 per Mason CJ at 444; M v The Queen (1994) 181 CLR 487 per Mason CJ, Deane, Dawson and Toohey JJ at 492…
Crampton v The Queen [2000] HCA 6023
Citation 23 (Para 2)

…dgment of Gleeson CJ and Callinan J, at [37], referred to features of the adversarial procedure of criminal justice which are uncontentious (see also Crampton v The Queen (2000) 206 CLR 161, per Gleeson CJ at [15]-[20]): "The considerations identified in Crampton v The Queen as reasons for the rule confining the circumstances…
[1993] 2 SCR 918 [1993] 2 SCR 918
Citation 24 (Para 3)

…addresses by defence counsel, because the issues could loom on appeal. Trials would become protracted and costly (see L'Heureux-Dubé J in R v Brown [1993] 2 SCR 918 at 923-924 and "the overarching societal interest in the finality of litigation in criminal matters" referred to with approval in Crampton at [15]). A…

Legislation Cited

Evidence Act 2001 (TAS)
1 mention (from Para 2)