R v Falkenhagen[2008] QCA 136

COURT OF APPEAL

FRASER JA

PHILIPPIDES J

DAUBNEY J

CA No 55 of 2008

THE QUEEN

v.

ERIC ALAN FALKENHAGEN                          Applicant

BRISBANE 

..DATE 27/05/2008

JUDGMENT

APPLICANT conducted his own case

MR D MEREDITH (instructed by the Director of Public Prosecutions (Queensland)) for the respondent

FRASER JA:  On 15 November 2006, after a six day trial, the applicant was convicted by a jury of one count of receiving a number of stolen welders and nine counts of fraud concerning the applicant's purported sales of the stolen welders.  The applicant was sentenced to a term of four years imprisonment for the receiving offence and concurrent terms of two years imprisonment for each of the fraud offences.  The Court fixed a parole eligibility date of 15 November 2008.

On 4 March 2008 the applicant filed a notice of application for an extension of time within which to appeal against his conviction and sentence.  He requires an extension of more than 14 months.

In determining whether to grant the application the Court is required to examine whether there is any good reason shown to account for the delay and to consider overall whether it is in the interests of justice to do.  See R v Tait [1999] 2 Qd R 667 at 668, paragraph 5.  The same decision shows that it is easier to excuse a short delay rather than a long delay such as has occurred here.

The offences concerned the admitted theft by persons unknown of 17 welders taken during a break-in of a factory near Brisbane in January 2006.  The welders were apparently valued at some $12,000 each.  Within a few days of the theft 10 of them were in the possession of the applicant in North Queensland.  The applicant advertised them for sale and he sold nine of them for $2000 each.  One of the cheques was stopped before being banked so that he received $16,000.  The applicant told each purchaser the same false story as explanation for the sale.  When first questioned by the police some two weeks after the theft the applicant said he had received four or five of the welders from a man whose name he did not know.  He said that he had not seen the man again but that he believed that the man was entitled to sell the welders.

When the applicant gave evidence he admitted that he had received 10 welders.  He said he had bought three and that the man had given him seven more on commission to sell.  He said he had seen the man again the day before being questioned by police and had given him $12,600.  When challenged with the fact that the applicant still had the proceeds of sale in his bank account the applicant said that he had $12,000 to $13,000 in his possession from another source which he gave to the man whose name he still did not know.

For the receiving charge the prosecution relied upon the inference that could be drawn from the fact that the applicant could give no satisfactory explanation for his possession of property that was stolen very shortly before it came into his possession.

The prosecution asked the jury to disbelieve the version of events given by the applicant.  The prosecution also relied upon evidence said to show that the applicant had destroyed duplicate receipts for the sales that he had previously held.  Reference was also made to what were said to be lies told by the applicant to the police in his first interview.  The applicant had not initially revealed that he had possessed 10 welders rather than the three or four he mentioned to police.  The applicant also said to police that the man who delivered the welders had not called back to see him but the applicant's evidence was that there was such a second visit.  The Prosecutor asked the jury to disbelieve the explanations given by the applicant about those matters and as to the source of the $12,600 the applicant claimed that he had given to the unnamed man.

The jury acquitted the applicant of the theft of the welders with which he had also been charged but, as I have indicated, the jury convicted him of the receiving and fraud charges.

The applicant's only explanation for his delay in appealing is his claim that he was advised by his legal representatives not to appeal and his claim in submissions today that he was not in good health.  This is plainly not a satisfactory explanation for a delay of more than 14 months.

The grounds of the proposed appeal against convictions suggest the absence of any substantial basis for it.  The applicant complains that he had a disability of such significance that the recordings of his interviews with the police should not have been admitted in evidence.  The applicant claims that he was hearing impaired and also had a mental disorder of Alzheimer's disease diagnosed in 1998 and 2003.

The medical reports presented by the applicant however fall far short of suggesting that he lacked capacity to hear the questions the police asked him or to give his account to the police.  It appears that this point was not taken at the trial.  In any event there is no substance in this proposed ground of appeal.

The applicant also wishes to contend in the proposed appeal that the trial judge misdirected the jury by failing to direct that if they were in doubt as to whether the applicant knew the property was stolen when he received it then the jury should find the applicant not guilty.  There is no substance in this proposed ground. 

The trial judge clearly directed the jury both that one of the elements of the receiving charge required proof that the accused had reason to believe the welders had been stolen and that it was only if the jury was satisfied beyond reasonable doubt of all of the elements of the offence that the jury might lawfully convict the applicant.

The applicant also wishes to argue in the proposed appeal that it was not proven that he knew the welders were stolen and that the trial judge should have directed the jury to return a verdict of not guilty.  As the brief summary of the evidence I earlier gave reveals, there was evidence from which the jury was entitled to infer that the applicant knew that the welders were stolen.  The applicant's real complaint appears to be that the jury should have believed the explanations that he gave in evidence but it is evident that the jury was entitled to reject those explanations and that it did so.

In my view, there is both no satisfactory explanation for the very lengthy delay in bringing the proposed appeal against conviction and no apparent substance in the proposed grounds of appeal.

The applicant does not include any ground in support of the proposed application for leave to appeal against sentence and there is no reason to think that the sentence was manifestly excessive or affected by any other error.

The application for an extension of time within which to appeal against conviction and within which to apply for leave to appeal against sentence should be refused.

PHILIPPIDES J:  I agree.

DAUBNEY J:  I concur.

FRASER JA:  That will be the order of the Court.