- Unreported Judgment
IN THE COURT OF CRIMINAL APPEAL
C.A. No. 138 of 1979
Mr. Justice Lucas
Mr. Justice Kelly
Mr. Justice Sheahan
BRISBANE, 25 OCTOBER 1979
(Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter, Court Reporting Bureau.)
MR. JUSTICE LUCAS: This is an appeal against a conviction on two counts of an offence under S.398(8)(b) of the Criminal Code. Mr. Pratt has said everything that could be possibly said in support of the appeal, but in the first instance he recognises the difficulty under which he labours in that although the appellant was defended by counsel, no application was made to the learned judge for any redirections after he had concluded his summing up. A failure to ask for redirection is not, of course, decisive in the sense that if it appears that any miscarriage of justice has occurred by reason of something said during the course of the summing up, or by reason of something else that has occurred at the trial, it is open to a Court of Criminal Appeal to quash the conviction in the absence of any such request. But where an accused person is defended by counsel the failure to ask for a redirection can be a very useful indication of whether a miscarriage of justice has actually occurred.
The Crown case was that on two separate occasions the accused had converted to his own use a cheque which had been given to him by the complainants with a direction that it was to be handed over to the name of the payee on the face of the cheque, which in each case was an aviation company.
The learned judge in a very comprehensive summing up, in my opinion put before the jury satisfactorily all the elements in relation to all the matters as to which they had to be satisfied.
The first complaint which is made is that he failed fully to put the defence case to the jury, in particular because he failed to make more than brief reference to the evidence which had been given by two witnesses and to certain documents which were put in evidence. A judge, of course, is not under a necessity of recapitulating the arguments that have been put forward by defence counsel, and I cannot find in the summing up any indication that the defence of the appellant was not treated in an entirely adequate manner.
The other complaint which is made relates to the directions made by the learned judge upon the provisions of S.393 of the Criminal Code. The jury have to be satisfied in each case, first, that the appellant did receive the money with a direction; secondly, that he then converted the money to his own use; thirdly, that there was no debtor/creditor relationship subsisting between the parties of such a nature that the payment to him in the absence of a direction would normally form an item in that type of account, because in the latter case a person cannot be charged with stealing unless the direction is in writing, which is not the case here.
In my opinion the learned judge adequately left these elements to the jury, and it seems to me that when one reflects that no redirections were asked for, it cannot be said in this case that any miscarriage of justice occurred.
I would dismiss the appeal.
MR. JUSTICE KELLY: I agree, for the reasons given by my learned brother the presiding judge, that the appeal should be dismissed.
MR. JUSTICE SHEAHAN: I agree, and have nothing to add.
MR. JUSTICE LUCAS: That is the order of the Court. The time for payment of the fines and for the making of restitution is extended to 25 January 1980. Otherwise the orders of the learned judge stand.
- Published Case Name:
The Queen v David Hennig
- Shortened Case Name:
R v Hennig
 CCA 94
Lucas J, Kelly J, Sheahan J
25 Oct 1979
No Litigation History