Senior Constable Sheehan v Leo
[2016] QDC 131
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- Unreported Judgment
- Senior Constable Sheehan v Leo[2016] QDC 131
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Senior Constable Sheehan v Leo[2016] QDC 131
Senior Constable Sheehan v Leo[2016] QDC 131
DISTRICT COURT OF QUEENSLAND
CITATION: | Senior Constable Sheehan v Leo [2016] QDC 131 |
PARTIES: | SENIOR CONSTABLE RUSSELL SHEEHAN (appellant) v RYAN DANIEL LEO (respondent) |
FILE NO/S: | BD-4690/15 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Maroochydore Magistrates Court |
DELIVERED ON: | 3.6.16 |
DELIVERED AT: | Maroochydore District Court |
HEARING DATE: | 22.4.16 |
JUDGE: | Robertson DCJ |
ORDER: | Appeal allowed. The costs order made below is set aside, otherwise her Honour’s orders remain in place. The parties are invited to submit orders as to the costs of the appeal and the hearing below. Liberty to apply within 14 days. |
CATCHWORDS: | APPEAL; COSTS: charges of fraud were dismissed by the learned Magistrate on the ground of unsoundness of mind; whether the case was one of “special difficulty, complexity or importance”; whether her Honour, in awarding a higher amount for costs, applied the wrong test and misdirected herself and so erred in the exercise of her discretion pursuant to s 158B(2) of the Justices Act 1886. Cases considered Allison v Channel Seven Queensland Pty Ltd [2015] QDC 111 Cullinane v McCahon [2014] QDC 120 Durrant v Gardiner [2000] QDC 198 House v R (1936) 55 CLR 499 Palmgrove Holdings Pty Ltd v Sunshine Coast Regional Council [2014] QDC 77 R v Chin (1985) 157 CLR 671 R v Dillon; Ex-parte Attorney-General [2015] QCA 155 R v Easton [1994] 1 Qd.R. 531 R v Ghosh [1982] QB 1053 R v Soma (2003) 196 ALR 421 Travers v McDonagh; Carey v La Rocca [2013] QDC 177 Whitby v Stockair Pty Ltd & Anor [2015] QDC 79 Legislation considered Criminal Code 1899 Drugs Misuse Act 1986 Justices Act 1886 Justices Regulation 2004 |
COUNSEL: | Cummings, G. of Counsel for the appellant Lewis, S. of Counsel for the respondent |
SOLICITORS: | Office of the Director of Public Prosecutions for the appellant Bernard Bradley & Associates for the respondent |
Introduction
- [1]On 2 November 2015, after a short one day hearing in the Maroochydore Magistrates Court on 9 September 2015, her Honour Magistrate Hennessy found the respondent (Mr Leo) not guilty of 3 counts of fraud on the ground of unsoundness of mind. The complainant police officer has appealed against the dismissal of the charges and an order for costs setting out in his initial notice of appeal, (5) grounds in all.
- [2]On 2 March 2016 an amended notice of appeal was filed abandoning all grounds relating to the dismissal of the charges and seeking to agitate only two grounds relating to costs (the second of which was an additional ground):
- Her Honour erred in classifying the matter as involving special difficulty, complexity or importance when determining appropriate costs.
- She erred in not using, as a guide, the costs allowed for as per the scale of costs in the Justices Regulation 2004 when awarding costs under s 158B(2) of the Justices Act 1886.
- [3]The last ground as I have said was added, and Mr Leo does not object to it being added as a ground of appeal, and I give leave to the appellant to add that ground.
- [4]It follows that there is no reason to explore further the remaining grounds, and, in particular the ground that her Honour “erred by applying the incorrect test in determining the elements of ‘dishonesty’ and ‘intention’ when concluding the prosecution had not proved ‘intention’ beyond a reasonable doubt”.
- [5]As indicated at the hearing, and as agreed by the parties, I do intend to say something about the appropriate test in charges in which dishonesty is an element, which I hope, will assist both Prosecutors and Magistrates in relation to such charges.
A brief summary of facts
- [6]Essentially there were (3) counts of fraud described in the Bench Charge sheets as being pursuant to s 408C(1)(A)(1) of the Criminal Code. The section is s 408C(1)(a)(i).
- [7]It was common ground that Mr Leo had been employed by the complainant BMD Constructions Pty Ltd trading as BMD Constructions. He was injured at work on 9 February 2013 in a motor vehicle accident, and was on workers’ compensation leave at the time he committed the offences. On (3) separate occasions the complainant inadvertently paid into Mr Leo’s bank account sums of money which he then applied to his own use.
- [8]By way of example, the first payment was made on 3 April 2013, and on 4 April 2013 Mr Leo had applied all that money to his use ($17,871.53). The same thing happened on 11 April 2013 ($18,218.65), and 18 April 2013 ($18,218.65). The mistake was discovered in early July, and Mr Leo ignored demand letters and phone calls and subsequently declared himself bankrupt in September 2013.
- [9]The first charge is pleaded in the following terms:
“… on the 4th day of April 2013 at Buderim … (Mr Leo) … dishonestly applied to his own use the sum of $17,871.53 belonging to BMD Constructions Proprietary Limited trading as BMD Constructions.”
- [10]In relation to each charge, Mr Leo admitted all elements by way of formal admissions under s 644 of the Criminal Code except for the element of “dishonesty”.
- [11]The factual issue impacting on this element was said to be Mr Leo’s state of mind at the time he applied the money.
- [12]Her Honour (at page 7 – lines 3-5) in dealing with the element of dishonesty said, after referring to the evidence about Mr Leo’s state of mind, “on the basis of forming an intent to dishonestly deprive the employer of the money, … there isn’t sufficient evidence beyond reasonable doubt as to that element of the offence”. It would have made no difference to the outcome, as her Honour then proceeded to deal with the unsoundness of mind defence, and found Mr Leo not guilty on the ground of unsoundness of mind, however to ensure that the correct test is applied in the future, reference should be made to R v Dillon; Ex-parte Attorney-General [2015] QCA 155, in which the Court of Appeal, on a reference by the Attorney General, brought Queensland Law into line with the approach taken in relation to Federal offending involving charges which have “dishonesty” as an element of the offence: Peters v The Queen (1998) 192 CLR 493, so that the prosecution need only prove that what the defendant did was dishonest by the standards of ordinary people. In so doing, the Court did not follow the two stage test that Queensland Courts had applied (despite Peters) since R v Ghosh [1982] QB 1053; so it follows that proof of the element of dishonesty does not involve proof of any subjective realisation by the defendant as to what he or she was doing was dishonest, so intention does not come into a consideration of this particular element of a charge under s 408C. Intention may come into play in relation to the element of “applied”: R v Easton [1994] 1 Qd.R. 531, but as that was admitted in this case, it is of no consequence.
The costs argument
- [13]The relevant sections of the Justices Act 1886 are as follows:
“158 Costs on dismissal
- (1)When justices instead of convicting or making an order dismiss the complaint, they may by their order of dismissal order that the complainant shall pay to the defendant such costs as to them seem just and reasonable.
…
158(A) Exercise of discretion in relation to an award of costs
- (2)Despite s 158(1), justices who dismiss a complaint may make an order for costs in favour of a defendant against a complainant who is a police officer or public officer only if the justices are satisfied that it is proper that the order for costs should be made.”
Section 158A(2) then sets out a number of matters that the Court must take into account in exercising the discretion including “all relevant circumstances”. …
“158B Costs for division
- (1)In deciding the costs that are just and reasonable for this division, the justices may award costs only -
- (a)for an item allowed for this division under a scale of costs prescribed under a regulation; and
- (b)up to the amount allowed for the item under the scale.
- (2)However, the justices may allow a higher amount for costs if the justices are satisfied that the higher amount is just and reasonable having regard to the special difficulty, complexity or importance of the case.”
- [14]After she had delivered her decision dismissing the complaint on 2 November 2015 her Honour heard a full argument from both parties in relation to costs. She then adjourned for a number of hours to consider the arguments before giving her costs decision.
- [15]As her substantive reasons for dismissing the charge reveal, the trial proceeded quickly. Exhibit 1 was a set of admissions. The only issue was whether the prosecution could prove the element of dishonesty beyond a reasonable doubt; and if it could, whether Mr Leo could satisfy her Honour on the balance of probabilities that at the time he committed the 3 offences he was in a state of mental disease or natural infirmity such that he was deprived of one or more of the capacities to understand what he was doing, to control his actions, or to know that he ought not do the act.
- [16]Despite the admissions, the Prosecutor nevertheless called a representative of the complainant company to prove that once the overpayments had been discovered, contact was attempted with Mr Leo by telephone and by letter with no success leading up to a complaint to police in September 2013, at or around the time the complainant became aware of Mr Leo’s bankruptcy.
- [17]The evidence touching on the s 27 issue was lead through clinical neuropsychologist Dr Jeanne Georgius whose curriculum vitae was tendered as Exhibit 4. Dr Georgius holds a number of academic qualifications including a doctor of psychology in clinical neuropsychology, and was predominantly involved in medico-legal assessments of traumatic brain injury cases. The evidence before her Honour established that Mr Leo was involved in a work related motor vehicle accident in February 2013; and CT brain scans and an MRI reveal “some residual effects consistent with a traumatic brain injury”. He was referred to Dr Georgius for a neuropsychological assessment in May 2013, and she assessed him over (3) days on 30 May 2013, and 6 June 2013, and interviewed him again for “feedback” on 20 June 2013. Her report to the referring doctor dated 21 June 2013 was admitted as Exhibit 6. As the report reveals, she conducted a series of assessment tests, and interviewed both Mr Leo and his girlfriend. She assessed him as having suffered a mild and moderate traumatic brain injury in February 2013. She wrote:
“Research indicates that most recovery occurs by 6 months post head injury but that process continues for 12-36 months with a maximal improvement at 3 years post injury”.
Clearly, at that stage, she was not considering the s 27 capacities.
- [18]Ultimately, she was engaged by Mr Bradley on behalf of Mr Leo, and her trial report was admitted and marked Exhibit 8. She noted that the misuse of the overpaid funds had occurred approximately two months after Mr Leo had sustained the brain injury, and that her assessments were conducted (5) months post injury. She opined “Given the severity and nature of the symptoms and the fact that Mr Leo had sustained a significant traumatic brain injury and was in the post-concussion stage in April 2013, it is my opinion that he was deprived of the capacity to both understand what he was doing and to control his actions in April 2013.” She also opined (not surprisingly) in her evidence before her Honour, that his cognitive functioning including his memory would have improved by June 2014 when he was interviewed by police.
- [19]By far the most time taken up in the hearing was in the cross-examination of Dr Georgius by the Prosecutor.
- [20]At the close of the defence case, the Prosecutor sought to adjourn the hearing to enable it to call rebuttal evidence in relation to the neuropsychological evidence. This was rightly refused, as the prosecution had been provided with a report in February 2013 at a pre-trial mediation hearing. The Prosecutor sought leave to tender and play the record of an interview to that dated 24 June 2014 and leave was granted and the interview became Exhibit 10. In my opinion, this was contrary to the long established principle, that the prosecution should not be entitled to split its case: R v Chin (1985) 157 CLR 671. Here, the issue of the record of interview was discussed at the start of the trial. It was conceded by the Prosecutor that it contained no admissions. If the Prosecutor regarded it as relevant to the confined issues in the case which were then clearly articulated by Mr Lewis on behalf of Mr Leo, he should have tendered it as part of his case. Evidence of this kind should only be permitted to be called in exceptional circumstances, and generally speaking not if the occasion for calling the further evidence ought reasonably to have been foreseen by the prosecutor: R v Soma (2003) 196 ALR 421. Nothing turns on this as the ruling was favourable to the appellant.
Her Honours’ costs ruling
- [21]At the conclusion of the hearing on 9 September 2015, as I have noted, her Honour reserved her decision until 2 November 2015 when she dismissed the charges. She then heard argument in relation to costs and adjourned again until the afternoon when she awarded costs of $12,080 in Mr Leo’s favour. Her costs decision commences on page 21 of the November transcript.
- [22]There is no argument advanced by the appellant that her Honour erred in holding that pursuant to s 158A(1) it was proper that an order for costs be made.
- [23]There is no argument that for the reasons she gave (relating really to s 158A(2)(b)) that the discretion to award costs was not enlivened.
- [24]Her Honour then went on to consider s 158A(2). Her reasons for awarding a higher amount are set out from pages 25 to 27 of the transcript. In relation to “special difficulty” she said this (after referring to the s 27 defence):
“It does take it somewhat out of the realm of the ordinary. It certainly takes it out of the ordinary preparation for fraud charges to have to seek and rely on expert evidence of that nature. Whilst a difficulty [sic] is a word that can be interpreted a number of ways, it certainly creates special circumstances in relation to the defence of this particular case; [sic] difficulty to the extent that it necessitates the incurrence of additional costs.”
- [25]In relation to the issue of “special importance,” her Honour said at (26):
“The defence base their primary submission in relation to the higher amount of costs being just and reasonable on the last consideration in subsection (2) which was the importance of the case. The defence argued that it was effectively a public policy issue, that the defendant in this case was in a position of significant disadvantage as – following his involvement in a work accident which left him with a serious acquired brain injury, that it wasn’t the defence said a situation where the defendant had, through lifestyle choices, placed himself in a position of incurring that injury and that the public policy issue was that the arresting officer and thereafter the prosecuting authority did not give sufficient weight to the significant disadvantage and the nature of the disadvantage that the defendant was placed in.
The prosecution had objected and argued the case in relation to the issue of importance on the basis of every case being important to each particular defendant and that this case was not out of the ordinary in relation to its importance, either to the defendant or to the community generally. It was, in its essence, facts are fairly straightforward for the prosecution. This is not a matter of the case being of particular importance to the defendant, although obviously it would be.
However, I do note that the defendant is not shirking his responsibility per se in relation to the owing of this money, but rather told the police in the first instance that he considered it to be a civil issue. But it seems to me that this is not a consideration relating to any particular importance ascribed to the case for the defendant, but I do accept the defence submission that on a public policy basis that consideration should have been given to the particular disadvantage that the defendant was placed in and how he came to be in that position.
I guess to a lesser extent, although this was not argued by the defence, it is specifically in relation to this issue, but the issue of whether or not there was good faith on the part of the complainant in not loaning the complainant in the first place in the circumstances, could also be a consideration for the Queensland Police Service on that public policy basis.”
- [26]On appeal, Mr Leo accepts the principles that apply in such cases as discussed in the appellant’s outline filed 21 January 2016. It is accepted therefore that “special” qualifies “difficulty, complexity, and importance” in the exercise of the discretion to award a higher amount under s 158B(2): Palmgrove Holdings Pty Ltd v Sunshine Coast Regional Council [2014] QDC 77 at [82], in which his Honour Judge Long, SC quoted with approval from Travers v McDonagh; Carey v La Rocca [2013] QDC 177 at [23]-[24].
- [27]In the case of Allison v Channel Seven Queensland Pty Ltd [2015] QDC 111, his Honour Judge Morzone SC allowed an appeal against an award of costs of $20,000. It was not sufficient that the case was “of some importance” to the party. His Honour considered the test:
Is an objective one of whether the difficulty, complexity or importance of the particular case at hand surpasses what is common or usual in an ordinary case. The inquiry ought not be directed to subjective importance of the case to the respective parties.
His Honour found that case was:
“not one that raised any important point of law, nor any question of public importance that is likely to arise again either frequently or at all, nor is the result one that involves any manifest injustice. Whilst the case touched upon matters of freedom of speech, that was not unusual in the circumstances. The legal issues were comparatively narrow … .”
- [28]Judge Morzone (at [28]) referred to, and agreed with comments his Honour Judge Farr SC, DCJ made in the case of Whitby v Stockair Pty Ltd & Anor [2015] QDC 79 where he affirmed his earlier decision of Cullinane v McCahon [2014] QDC 120 where he said:
“… I accept that this case was important to the appellant, as no doubt every criminal case is to every defendant. To invoke special importance however, the case must involve more than the charge merely relating to a defendant in his/her professional capacity. ‘Special importance’ is clearly a reference to the importance of the case generally, in terms of questions of law or public interest (this list is not exhaustive) and is not intended to refer to the subjective assessment of a defendant as to whether the case is important to him or her”.
- [29]Although her Honour’s reasons referred to above are somewhat equivocal about the issue of “special difficulty”, I agree with the appellant that in stating that the s 27 issue takes “it somewhat out of the realm of the ordinary”, her Honour misdirected herself as to the threshold that was required by reference to authority. It may be unusual for a s 27 defence to be raised in the Magistrates Court, but, in this case the issue was greatly simplified by the approach of the parties. The trial lasted less than a day. The prosecution evidence took 9 minutes. Dr Georgious gave evidence for 59 minutes most of which was in cross-examination. There were no objectively especially difficult aspects of the case. “Unusual” is not synonymous with “difficulty” and, in any event, this was not a case that involved special difficulty, including having regard to the reversal of onus issue that does arise from time to time e.g. s 129(1)(c) of the Drugs Misuse Act 1986.
- [30]In deciding that the case was of “special importance”, her Honour has impermissibly conflated matters relevant to the exercise of discretion under s 158(2)(a), with the concept of “special importance” referred to in s 158B(2). She did not hold that the proceeding was brought or continued in bad faith, and it was therefore an error to use that as a basis for holding that the case was of “special importance”. It is clear, when one has regard to the authorities, that this was not a case that went beyond the importance of a case to Mr Leo into general importance “in terms of questions of law or public interest”.
- [31]In awarding a higher amount under s 158B(2), her Honour erred in taking into account irrelevant matters in the House v R (1936) 55 CLR 499 sense, and the appeal should be allowed on that basis.
- [32]It follows that it is not necessary for me to determine the additional ground which was added relating to the Justice Regulation 2004. The regulation is reproduced at [73] of Palmgrove Holdings. Clearly, when a Magistrate decides to act under s 158B(2), reference nevertheless should be had to the appropriate scale (in this case the regulation) and not to a quantum that was “within the range of appropriateness in the normal course of such proceedings”. In Durrant v Gardiner [2000] QDC 198, Judge McGill observed that “when a statutory scale is provided then the starting point is always the amount of costs is to be in accordance with the scale prescribed, and even when there is a discretion to award a larger amount, the prescribed scale should be used as guide to the proper exercise of the discretion”.
- [33]The appeal is allowed. The costs order made below is set aside, otherwise Her Honour’s orders remain place. I invite the parties to submit orders as to the costs to be awarded below and on appeal. As a matter of common-sense, the respective orders may cancel each other out but I will leave that to the parties.
- [34]Liberty to apply within 14 days.