R v McConaghy[2022] QDC 233

DISTRICT COURT OF QUEENSLAND

CRIMINAL JURISDICTION

JUDGE SMITH

Indictment No 42 of 2022

THE QUEEN

v.

LAWRENCE McCONAGHY

CAIRNS

10.53 AM, TUESDAY, 30 AUGUST 2022

RULING

HIS HONOUR:   This is an appeal against two convictions of charges under the Commonwealth Criminal Code.  The appellant, on the 11^th of March 2022, was found guilty of two charges of giving false or misleading information contrary to section 137(1) of the Criminal Code.  There was an original ground of appeal that the verdict could not be supported, but after counsel became involved, this was amended – and the amendment is not opposed by the prosecutor – to allege that the Magistrate failed to advise the appellant of the shift in onus of proof. 

The appellant was self-represented.  At the beginning of the trial, he was handed a copy of section 137 and a particulars document.  The particulars document for charge 1 alleged that the appellant gave the Maritime Safety Authority a document purporting to be from P&O Maritime Services Proprietary Limited.  It attached an international seafarer certificate.  This was false because it misstated the period of sea service and the total number of days sea service, and he knew this to be false.

For charge 2, it is alleged that the appellant gave AMSA a document purporting to be from Sea Swift Proprietary Limited which also attached an AMSA 19.  It was alleged this was false because the period of sea service and the total number of days of sea service was wrong, and he knew this to be false.  He was also given an element sheet which purportedly set out the elements of the offence.  I will return to this later.

The Magistrate then purported to explain the trial process to the appellant.  The

Magistrate told him, amongst other things, that the onus of  proof was on the Prosecution to prove the elements of the offences beyond reasonable doubt and there was no onus on the defendant to prove anything.  The Prosecutor informed the Court that on 25 May 2020, the appellant lodged two documents with an application for an international seafarer certificate and referred to charge 1, the letter purporting to be that he served aboard the Wanooma for 318 days between 22 April 2019 and 4

March 2020, and for charge 2, the vessels Wanderer and Albatross in 2018 to 2020.

Amanda Ferguson gave evidence that she was a senior officer with AMSA as seafarer certificate coordinator.  Her role was to receive applications, to review the sea time and college courses to see the accuracy, to issue a certificate of competency.  Exhibit 1 was the form 419 dated 25 May 2020.  Her evidence is that without evidence of seagoing service, they will not continue with the application.  The appellant tried to cross-examine the witness but did not get too far at all.  He seemed to suggest the attached documents were not material because of the wording of the form. 

Mr Gary Williams gave evidence he was the lead investigator for AMSA and was called for cross-examination.  Again, the defendant did not get too far in crossexamination.  Angela Maloney from P&O was shown exhibit 2, and she said this was not her signature on the document.  She gave no permission for somebody else to sign it.  Sean Hinchey, the superintendent and master at P&O, gave evidence he knew the appellant.  The appellant served on Wanooma in 2019 but not in 2020, contrary to the letter.  Mr Massey gave evidence he worked for Sea Swift and that he drafted exhibit 3 but he did not sign the letter attached to exhibit 1.  It was clear the dates of service on Warrana and Albatross were different, and he said that Warrana was not – not operating for a majority of that period.

The Prosecution then closed its case.  The Magistrate advised the appellant he could make a no case submission.  He then advised him he had a choice on whether or not to call evidence and he did not have the burden of proving or disproving anything. 

Ultimately, in light of this explanation, the appellant chose not to give evidence.  The Prosecution submitted that each of the elements had been proved.  It – it was submitted it could be inferred the appellant knew of this falsity but, as I apprehend it, no submissions were made as to materiality.

In the appellant’s final address, he had attempted to introduce evidence – that the companies did not get the sea time calculations correct.  He then said he did not understand what the Magistrate had told him about giving or not calling evidence.  

The Magistrate refused to allow him to tender email evidence and – that he could not change his election.  The Magistrate then handed down his reasons, convicted the appellant of each charge, finding the Prosecution had proved each element beyond reasonable doubt and finding the letters were false.

The appellant submits that in addition to the elements contained on the Prosecution element sheet, there was a requirement that the document had to be false in a material particular.  It was submitted that there was an evidential onus on the appellant concerning this matter under section 13.3 of the code.  It is submitted the Magistrate failed to advise the appellant as to this requirement. 

On the other hand, in written submissions, the respondent submits that the Magistrate acted fairly and, in all the circumstances, there was no prejudice to the appellant, although, in oral submissions, Mr Marley – very fair submissions, I might say – conceded that it may be that there was room for confusion, bearing in mind the evidential onus provision by reason of the way the Magistrate explained the onus here.

Having considered all of the submissions and the material, it is my view the appellant was not appropriately advised as to the elements of the offence.  Section 137(2) required the falsity to be in a material particular.  That is an element of the offence.  To be material, it must be of such moment or significance and not trivial or inconsequential.  See R v Maslen [1995] 79 A Crim R 199.  A defendant has an evidential burden under section 137(2) and 13.3 regarding this element.  The appellant was not advised of this, and indeed, was advised to the contrary.  At the least, when it became evident during the final addresses that the appellant had evidence on this question, he should have been given the opportunity to call evidence.  See R v Pangilinan [1999] QCA 528;  [2001] 1 Qd R 56 at paragraph 38.

In the circumstances, I am satisfied that an error of law occurred here.  I am not persuaded it is immaterial.  Exhibit 3 shows that he did complete some sea service, and it may well be a live issue at any subsequent trial as to whether any false document was material.  In those circumstances, I have decided to allow the appeal.  I will remit the matter – sorry.  I quash the convictions.  The matter is retried – sorry – remitted to the Magistrates Court at Cairns for retrial before a different Magistrate.  Any further reasons or order needed, Mr Jackson?

MR JACKSON:   No further reasons, your Honour, but just on the issue of costs - - - 

HIS HONOUR:   I will come back to you on that.

HIS HONOUR:   And any other reasons or - - - 

MR MARLEY:   No, your Honour.

HIS HONOUR:   - - - orders needed, Mr Marley?  Yes.  Costs.  Yes, Mr Jackson.

MR JACKSON:   Your Honour, just briefly, I understand that this is, in true form, a summary offence;  therefore, there is no prohibition on your Honour having jurisdiction to award costs of the appeal.  I do not make the submission that the appellant is entitled to costs of the summary trial but rather, because he has had to engage private lawyers for the purpose of the appeal, I make the application for costs on scale for the hearing before your Honour.

HIS HONOUR:   How much is that?

MR JACKSON:   Eighteen hundred dollars.

HIS HONOUR:   All right.  Any opposition to that?

MR MARLEY:   My ultimate submission is that section 226 provides that - - - 

HIS HONOUR:   Two-two?

MR MARLEY:   Two-two-six of the Justices Act.  It provides that a Judge may make such orders as to costs as a Judge may think just.  It is limited by section 232A to the scale, which is $1800.  In my respectful submission, given the way that the hearing has - - - 

HIS HONOUR:   I cannot give an appeal costs fund certificate to the Commonwealth, can I?

MR MARLEY:   No, I do not think so.

HIS HONOUR:   No, I think it is excluded.

MR MARLEY:   No.  My ultimate submission is that your Honour would not exercise the discretion in this circumstance, given the narrow nature of the appeal.  I cannot advance my submissions much further than that.

HIS HONOUR:   Thank you, Mr Marley.  Yes.  Well, I have considered both submissions on costs.  The fact is an error occurred.  The appellant had to engage lawyers, and the amended notice of appeal was put in to argue the proper ground, it seems to me.  I have had regard to section 226.  In the exercise of my discretion, I do propose to aware costs, but I will limit it to the scale fee, Mr Jackson, Mr Marley.  So I order the respondent pay the appellant costs fixed in the sum of $1800, to be paid within – a month or - - - 

MR MARLEY:   Thank you, your Honour.

MR JACKSON:   Yes, thank you, your Honour.

HIS HONOUR:   Nothing else?

MR MARLEY:   No, thank you, your Honour.

HIS HONOUR:   Thanks, Mr Jackson.  Thank you, Mr Marley, for your assistance.