The Queen v Jensen[1998] QCA 300

COURT OF APPEAL

FITZGERALD P

DAVIES JA

FRYBERG J

BRISBANE

DATE 24/02/98

JUDGMENT

THE PRESIDENT:  This is an application for an extension of time within which to appeal against conviction.  The applicant, Dudley Peter Jensen was convicted in the District Court of Brisbane on 8 December 1997 on two counts of misappropriation.

Count 1 alleged:

"That between 30 November 1987 and 3 December 1992 the applicant dishonestly applied for his own use or use of another person property in the form of a chose in action consisting of bank credits belonging to Veronica Margaret McCabe or the administrators or executors of her estate and further that the said property was upwards of $5,000."

The second count alleged:

"That between 3 December 1987 and 4 December 1993 Mr Jensen dishonestly applied to his own use or use of another person property in the of a chose in action consisting of bank credits belonging to Veronica Margaret McCabe and Josephine Mary McCabe or the administrators or executors of their estates and further that the said property was of a value of $5,000."

The jury acquitted Mr Jensen of a third count alleging:

"That between 8 September 1988 and 24 September that year he dishonestly applied to his own use or use of another person property in the form of a chose in action consisting of bank credits belonging to Veronica Margaret McCabe and Josephine Mary McCabe or the administrators or executors of their estates and further that the said property was of a value of $5,000."

...

THE PRESIDENT:  Count 1 related to 27 withdrawals made by cheques drawn on the cheque account of Veronica Margaret McCabe totalling $31,624.19.  Count 2 related to 67 withdrawals by cheque from the joint account of Veronica

Margaret McCabe and Josephine Mary McCabe which totalled $192,116.83.  Count 3 related to four withdrawals totalling $28,000 made from the joint passbook account of Veronica Margaret McCabe and Josephine Mary McCabe.

Mr Jensen did not seek to appeal against his conviction until the Attorney-General appealed against the sentence imposed by the trial Judge.

In respect of the two offences of which Mr Jensen was convicted His Honour imposed a sentence of imprisonment for three years, but suspended it immediately - that is to say, the whole term of imprisonment - on the basis that Mr Jensen must not commit another offence punishable by imprisonment within a period of three years, if he was to avoid being dealt with for the suspended term of imprisonment.

The Attorney-General's appeal was filed on 23 December 1997, that is to say, of course, shortly before Christmas, and Mr Jensen deposes to delays associated with the Christmas holiday period by way of explanation of his delay in commencing his appeal.

He says that he was unable to seek advice until 6 January 1998 and that thereupon there were instructions given for a notice of application for leave to appeal, or for an extension of time, whichever there should be, against conviction.  And, in fact, the papers were only filed one day late.

The question remains, however, whether there is any prospect of success in the appeal.  Mr Jensen's sole ground which he seeks to advance is that the verdicts of the jury were inconsistent.  However, in my opinion that is plainly not the case. 

In relation to count 3 the prosecution failed to establish how the withdrawals from the passbook account - the joint passbook account - were distributed, whereas for counts 1 and 2 it was proven that the distributions were all made to Mr Jensen.

He gave evidence that he was authorised to withdraw the money and use it for his own purposes, an explanation which the jury obviously disbelieved.  Mr Jensen accepted in an argument before this Court that in the event of his evidence not causing a reasonable doubt in the minds of the jury, or this was the effect of his concession, his conviction on those counts was all but inevitable.

The point was not taken by Mr Jensen that the indictment was in incorrect form in combining the various fraudulent withdrawals the subject of count 1 in count 1, and the various fraudulent withdrawals the subject of count 2 in count 2.

At the time when the indictment was presented, which was prior to 1 July 1997, it seems that such a course might not have been permissible.

However, subsection 3 of section 568 of the Code has permitted that course at least since 1 July 1997.  The trial did not commence until November or December 1997 and it is plain that had there been any formal defect in the indictment the indictment could have been withdrawn and a fresh indictment, complying with section 568(3) of the Code, could have been presented and the charges against Mr Jensen could have proceeded.

In the circumstances it seems to me that there was no substantial miscarriage of justice if there was any defect in the indictment.

In the circumstances, since it appears to me that the appeal which Mr Jensen wishes to bring has no prospects of success, I would refuse the application for an extension of time.

DAVIES JA:  I agree.

FRYBERG J:  I agree.

THE PRESIDENT:  The application is refused.